137

This Letter of Instruction requires a request's specification of three (3) things: first, the
specific purposes for which the funds shall be used; second, circumstances that make the
expense necessary; and third, the disbursement's pm1icular aims. L.O.I. No. 1282 (1983),
par. 2 provides: "Effective immediately, all requests for the allocation or release of
intelligence funds shall indicate in full detail the specific purposes for which said funds shall
be spent and shall explain the circumstances giving rise to the necessity for the expenditure
and the particular aims to be accomplished."

Uriarte used Arroyo's approval to illegally accumulate these CIF funds which she
138

encashed during the period 2008-20 10. Uriai1e utilized Arroyo's approval to secure PCSO
Board confirmation of such additional CIF funds and to "liquidate" the same resulting in the
questionable credit advices issued by accused Plaras. These were simply consummated
raids on public treasury. (See Dissenting Opinion of J. Leonen in Macapagal-Arroyo v.
People, G.R. No. 220598, July. 19, 2016,
<http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > [Per J.
Bersamin, En Banc] citing the Sandiganbayan Resolution dated November 5, 2013.)

139
Soriquez v. Sandiganbayan, 5 l 0 Phil. 709, 719 (2015) [Per J. Garcia, Third Division].

140
Nicolas v. Sandiganbayan, 568 Phil. 297 (2008) [Per J. Carpio-Morales, Second Division].

141
Id. at 309.

142
Id.

143
Id.

144
Id.

145
Id. at 311.
146

Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July

147

19, 2016

<http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > 18-32

[Per J. Bersamin, En Banc].

148
Rep. Act No. 7080, sec. 4 provides:

Section· 4. Rule of Evidence. - For purpose of establishing the crime of plunder, it

shall not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy.

149
Estrada v. Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].

150
Id. at 851.
 Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.F. No. 220598, July 19,
151

2016, <http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > 10 [Per J.

Bersamin, En Banc].

See Estrada v. Sandiganbayan, 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc]; Enrile v.
152

People, G.R. No. 213455, August 11, 2015, 766 SCRA I [Per J. Brion, En Banc]; Serapio v.
Sandiganbayan, 444 Phil. 499 (2003) [Per J. Callejo Sr., En Banc]: Estrada v.
Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].

Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.F. No. 220598, July 19,
153

2016, <http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > 35-36

[Per J. Bersamin, En Banc].

154
Estrada v. Sandiganbayan, 421 Phil. 290 (200 I) [Per J. Bellosillo, En Banc]

155
Id. at 367.

III. INTRODUCTION ETO PHILIPPINE COURTS AND CASES

Case 1: In Re: Cunanan, 94 Phil. 534

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

Resolution March 18, 1954

In the Matter of the Petitions for Admission to the Bar of Unsuccessful Candidates of 1946 to
1953;
ALBINO CUNANAN, ET AL., petitioners.

Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile Inton for petitioners.
Office of the Solicitor General Juan R. Liwag for respondent.

DIOKNO, J.:

In recent years few controversial issues have aroused so much public interest and concern as
Republic Act No. 972, popularly known as the "Bar Flunkers' Act of 1953." Under the Rules of
Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may
be deemed to have passed his examinations successfully, he must have obtained a general
average of 75 per cent in all subjects, without falling below 50 per cent in any subject." (Rule
127, sec. 14, Rules of Court). Nevertheless, considering the varying difficulties of the different
bar examinations held since 1946 and the varying degree of strictness with which the
examination papers were graded, this court passed and admitted to the bar those candidates
who had obtained an average of only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in
1948, and 74 per cent in 1949. In 1950 to 1953, the 74 per cent was raised to 75 per cent.
Believing themselves as fully qualified to practice law as those reconsidered and passed by this
court, and feeling conscious of having been discriminated against (See Explanatory Note to
R.A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than
those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate
Bill No. 12 which, among others, reduced the passing general average in bar examinations to
70 per cent effective since 1946. The President requested the views of this court on the bill.
Complying with that request, seven members of the court subscribed to and submitted written
comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not
override the veto. Instead, it approved Senate Bill No. 371, embodying substantially the
provisions of the vetoed bill. Although the members of this court reiterated their unfavorable
views on the matter, the President allowed the bill to become a law on June 21, 1953 without his
signature. The law, which incidentally was enacted in an election year, reads in full as follows:

REPUBLIC ACT NO. 972

AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM

NINETEEN HUNDRED AND FORTY-SIX UP TO AND INCLUDING NINETEEN
HUNDRED AND FIFTY-FIVE.

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

Congress assembled:

SECTION 1. Notwithstanding the provisions of section fourteen, Rule numbered one

hundred twenty-seven of the Rules of Court, any bar candidate who obtained a general
average of seventy per cent in any bar examinations after July fourth, nineteen hundred
and forty-six up to the August nineteen hundred and fifty-one bar examinations; seventy-
one per cent in the nineteen hundred and fifty-two bar examinations; seventy-two per
cent in the in the nineteen hundred and fifty-three bar examinations; seventy-three per
cent in the nineteen hundred and fifty-four bar examinations; seventy-four per cent in the
nineteen hundred and fifty-five bar examinations without a candidate obtaining a grade
below fifty per cent in any subject, shall be allowed to take and subscribe the
corresponding oath of office as member of the Philippine Bar: Provided, however, That
for the purpose of this Act, any exact one-half or more of a fraction, shall be considered
as one and included as part of the next whole number.

SEC. 2. Any bar candidate who obtained a grade of seventy-five per cent in any subject
in any bar examination after July fourth, nineteen hundred and forty-six shall be deemed
to have passed in such subject or subjects and such grade or grades shall be included in
computing the passing general average that said candidate may obtain in any
subsequent examinations that he may take.

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

Enacted on June 21, 1953, without the Executive approval.

After its approval, many of the unsuccessful postwar candidates filed petitions for admission to
the bar invoking its provisions, while others whose motions for the revision of their examination
papers were still pending also invoked the aforesaid law as an additional ground for admission.
There are also others who have sought simply the reconsideration of their grades without,
however, invoking the law in question. To avoid injustice to individual petitioners, the court first
reviewed the motions for reconsideration, irrespective of whether or not they had invoked
Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If
they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if
declared valid, should be applied equally to all concerned whether they have filed petitions or
not. A complete list of the petitioners, properly classified, affected by this decision, as well as a
more detailed account of the history of Republic Act No. 972, are appended to this decision as
Annexes I and II. And to realize more readily the effects of the law, the following statistical data
are set forth:

(1) The unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No.
972 total 1,168, classified as follows:

1946 (August) 206 121 18

1946 (November) 477 228 43
1947 749 340 0
1948 899 409 11
1949 1,218 532 164
1950 1,316 893 26
1951 2,068 879 196
1952 2,738 1,033 426
1953 2,555 968 284
TOTAL 12,230 5,421 1,168

Of the total 1,168 candidates, 92 have passed in subsequent examination, and only 586 have
filed either motions for admission to the bar pursuant to said Republic Act, or mere motions for
reconsideration.

(2) In addition, some other 10 unsuccessful candidates are to be benefited by section 2 of said
Republic Act. These candidates had each taken from two to five different examinations, but
failed to obtain a passing average in any of them. Consolidating, however, their highest grades
in different subjects in previous examinations, with their latest marks, they would be sufficient to
reach the passing average as provided for by Republic Act No. 972.

(3) The total number of candidates to be benefited by this Republic Acts is therefore 1,094, of
which only 604 have filed petitions. Of these 604 petitioners, 33 who failed in 1946 to 1951 had
individually presented motions for reconsideration which were denied, while 125 unsuccessful
candidates of 1952, and 56 of 1953, had presented similar motions, which are still pending
because they could be favorably affected by Republic Act No. 972, — although as has been
already stated, this tribunal finds no sufficient reasons to reconsider their grades

UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972

Having been called upon to enforce a law of far-reaching effects on the practice of the legal
profession and the administration of justice, and because some doubts have been expressed as
to its validity, the court set the hearing of the afore-mentioned petitions for admission on the sole
question of whether or not Republic Act No. 972 is constitutional.
We have been enlightened in the study of this question by the brilliant assistance of the
members of the bar who have amply argued, orally an in writing, on the various aspects in
which the question may be gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente
J. Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of the validity of the law,
and of the U.P. Women's Lawyers' Circle, the Solicitor General, Messrs. Arturo A. Alafriz,
Enrique M. Fernando, Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de
Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside from the memoranda of
counsel for petitioners, Messrs. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio
Enrile Inton, and of petitioners Cabrera, Macasaet and Galema themselves, has greatly helped
us in this task. The legal researchers of the court have exhausted almost all Philippine and
American jurisprudence on the matter. The question has been the object of intense deliberation
for a long time by the Tribunal, and finally, after the voting, the preparation of the majority
opinion was assigned to a new member in order to place it as humanly as possible above all
suspicion of prejudice or partiality.

Republic Act No. 972 has for its object, according to its author, to admit to the Bar, those
candidates who suffered from insufficiency of reading materials and inadequate preparation.
Quoting a portion of the Explanatory Note of the proposed bill, its author Honorable Senator
Pablo Angeles David stated:

The reason for relaxing the standard 75 per cent passing grade is the tremendous
handicap which students during the years immediately after the Japanese occupation
has to overcome such as the insufficiency of reading materials and the inadequacy of
the preparation of students who took up law soon after the liberation.

Of the 9,675 candidates who took the examinations from 1946 to 1952, 5,236 passed. And now
it is claimed that in addition 604 candidates be admitted (which in reality total 1,094), because
they suffered from "insufficiency of reading materials" and of "inadequacy of preparation."

By its declared objective, the law is contrary to public interest because it qualifies 1,094 law
graduates who confessedly had inadequate preparation for the practice of the profession, as
was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of
legal profession adequate preparation and efficiency, precisely more so as legal problem
evolved by the times become more difficult. An adequate legal preparation is one of the vital
requisites for the practice of law that should be developed constantly and maintained firmly. To
the legal profession is entrusted the protection of property, life, honor and civil liberties. To
approve officially of those inadequately prepared individuals to dedicate themselves to such a
delicate mission is to create a serious social danger. Moreover, the statement that there was an
insufficiency of legal reading materials is grossly exaggerated. There were abundant materials.
Decisions of this court alone in mimeographed copies were made available to the public during
those years and private enterprises had also published them in monthly magazines and annual
digests. The Official Gazette had been published continuously. Books and magazines published
abroad have entered without restriction since 1945. Many law books, some even with revised
and enlarged editions have been printed locally during those periods. A new set of Philippine
Reports began to be published since 1946, which continued to be supplemented by the addition
of new volumes. Those are facts of public knowledge.

Notwithstanding all these, if the law in question is valid, it has to be enforced.

The question is not new in its fundamental aspect or from the point of view of applicable
principles, but the resolution of the question would have been easier had an identical case of
similar background been picked out from the jurisprudence we daily consult. Is there any
precedent in the long Anglo-Saxon legal history, from which has been directly derived the
judicial system established here with its lofty ideals by the Congress of the United States, and
which we have preserved and attempted to improve, or in our contemporaneous judicial history
of more than half a century? From the citations of those defending the law, we can not find a
case in which the validity of a similar law had been sustained, while those against its validity
cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon (State vs. Cannon, 240
NW, 441), the opinion of the Supreme Court of Massachusetts in 1932 (81 ALR 1061), of
Guariña (24 Phil., 37), aside from the opinion of the President which is expressed in his vote of
the original bill and which the postponement of the contested law respects.

This law has no precedent in its favor. When similar laws in other countries had been
promulgated, the judiciary immediately declared them without force or effect. It is not within our
power to offer a precedent to uphold the disputed law.

To be exact, we ought to state here that we have examined carefully the case that has been
cited to us as a favorable precedent of the law — that of Cooper (22 NY, 81), where the Court of
Appeals of New York revoked the decision of the Supreme court of that State, denying the
petition of Cooper to be admitted to the practice of law under the provisions of a statute
concerning the school of law of Columbia College promulgated on April 7, 1860, which was
declared by the Court of Appeals to be consistent with the Constitution of the state of New York.

It appears that the Constitution of New York at that time provided:

They (i.e., the judges) shall not hold any other office of public trust. All votes for either of
them for any elective office except that of the Court of Appeals, given by the Legislature
or the people, shall be void. They shall not exercise any power of appointment to public
office. Any male citizen of the age of twenty-one years, of good moral character, and
who possesses the requisite qualifications of learning and ability, shall be entitled to
admission to practice in all the courts of this State. (p. 93).

According to the Court of Appeals, the object of the constitutional precept is as follows:

Attorneys, solicitors, etc., were public officers; the power of appointing them had
previously rested with the judges, and this was the principal appointing power which they
possessed. The convention was evidently dissatisfied with the manner in which this
power had been exercised, and with the restrictions which the judges had imposed upon
admission to practice before them. The prohibitory clause in the section quoted was
aimed directly at this power, and the insertion of the provision" expecting the admission
of attorneys, in this particular section of the Constitution, evidently arose from its
connection with the object of this prohibitory clause. There is nothing indicative of
confidence in the courts or of a disposition to preserve any portion of their power over
this subject, unless the Supreme Court is right in the inference it draws from the use of
the word `admission' in the action referred to. It is urged that the admission spoken of
must be by the court; that to admit means to grant leave, and that the power of granting
necessarily implies the power of refusing, and of course the right of determining whether
the applicant possesses the requisite qualifications to entitle him to admission.
 These positions may all be conceded, without affecting the validity of the act. (p. 93.)

Now, with respect to the law of April 7, 1860, the decision seems to indicate that it provided that
the possession of a diploma of the school of law of Columbia College conferring the degree of
Bachelor of Laws was evidence of the legal qualifications that the constitution required of
applicants for admission to the Bar. The decision does not however quote the text of the law,
which we cannot find in any public or accessible private library in the country.

In the case of Cooper, supra, to make the law consistent with the Constitution of New York, the
Court of Appeals said of the object of the law:

The motive for passing the act in question is apparent. Columbia College being an
institution of established reputation, and having a law department under the charge of
able professors, the students in which department were not only subjected to a formal
examination by the law committee of the institution, but to a certain definite period of
study before being entitled to a diploma of being graduates, the Legislature evidently,
and no doubt justly, considered this examination, together with the preliminary study
required by the act, as fully equivalent as a test of legal requirements, to the ordinary
examination by the court; and as rendering the latter examination, to which no definite
period of preliminary study was essential, unnecessary and burdensome.

The act was obviously passed with reference to the learning and ability of the applicant,
and for the mere purpose of substituting the examination by the law committee of the
college for that of the court. It could have had no other object, and hence no greater
scope should be given to its provisions. We cannot suppose that the Legislature
designed entirely to dispense with the plain and explicit requirements of the Constitution;
and the act contains nothing whatever to indicate an intention that the authorities of the
college should inquire as to the age, citizenship, etc., of the students before granting a
diploma. The only rational interpretation of which the act admits is, that it was intended
to make the college diploma competent evidence as to the legal attainments of the
applicant, and nothing else. To this extent alone it operates as a modification of pre-
existing statutes, and it is to be read in connection with these statutes and with the
Constitution itself in order to determine the present condition of the law on the subject.
(p.89)

xxx xxx xxx

The Legislature has not taken from the court its jurisdiction over the question of
admission, that has simply prescribed what shall be competent evidence in certain cases
upon that question. (p.93)

From the foregoing, the complete inapplicability of the case of Cooper with that at bar may be
clearly seen. Please note only the following distinctions:

(1) The law of New York does not require that any candidate of Columbia College who failed in
the bar examinations be admitted to the practice of law.

(2) The law of New York according to the very decision of Cooper, has not taken from the court
its jurisdiction over the question of admission of attorney at law; in effect, it does not decree the
admission of any lawyer.
(3) The Constitution of New York at that time and that of the Philippines are entirely different on
the matter of admission of the practice of law.

In the judicial system from which ours has been evolved, the admission, suspension,
disbarment and reinstatement of attorneys at law in the practice of the profession and their
supervision have been disputably a judicial function and responsibility. Because of this attribute,
its continuous and zealous possession and exercise by the judicial power have been
demonstrated during more than six centuries, which certainly "constitutes the most solid of
titles." Even considering the power granted to Congress by our Constitution to repeal, alter
supplement the rules promulgated by this Court regarding the admission to the practice of law,
to our judgment and proposition that the admission, suspension, disbarment and reinstatement
of the attorneys at law is a legislative function, properly belonging to Congress, is unacceptable.
The function requires (1) previously established rules and principles, (2) concrete facts, whether
past or present, affecting determinate individuals. and (3) decision as to whether these facts are
governed by the rules and principles; in effect, a judicial function of the highest degree. And it
becomes more undisputably judicial, and not legislative, if previous judicial resolutions on the
petitions of these same individuals are attempted to be revoked or modified.

We have said that in the judicial system from which ours has been derived, the act of admitting,
suspending, disbarring and reinstating attorneys at law in the practice of the profession is
concededly judicial. A comprehensive and conscientious study of this matter had been
undertaken in the case of State vs. Cannon (1932) 240 NW 441, in which the validity of a
legislative enactment providing that Cannon be permitted to practice before the courts was
discussed. From the text of this decision we quote the following paragraphs:

This statute presents an assertion of legislative power without parallel in the history of
the English speaking people so far as we have been able to ascertain. There has been
much uncertainty as to the extent of the power of the Legislature to prescribe the
ultimate qualifications of attorney at law has been expressly committed to the courts, and
the act of admission has always been regarded as a judicial function. This act purports
to constitute Mr. Cannon an attorney at law, and in this respect it stands alone as an
assertion of legislative power. (p. 444)

Under the Constitution all legislative power is vested in a Senate and Assembly. (Section
1, art. 4.) In so far as the prescribing of qualifications for admission to the bar are
legislative in character, the Legislature is acting within its constitutional authority when it
sets up and prescribes such qualifications. (p. 444)

But when the Legislature has prescribed those qualifications which in its judgment will
serve the purpose of legitimate legislative solicitude, is the power of the court to impose
other and further exactions and qualifications foreclosed or exhausted? (p. 444)

Under our Constitution the judicial and legislative departments are distinct, independent,
and coordinate branches of the government. Neither branch enjoys all the powers of
sovereignty which properly belongs to its department. Neither department should so act
as to embarrass the other in the discharge of its respective functions. That was the
scheme and thought of the people setting upon the form of government under which we
exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel. Bashford vs. Barstow, 4
Wis., 567. (p. 445)
 The judicial department of government is responsible for the plane upon which the
administration of justice is maintained. Its responsibility in this respect is exclusive. By
committing a portion of the powers of sovereignty to the judicial department of our state
government, under 42a scheme which it was supposed rendered it immune from
embarrassment or interference by any other department of government, the courts
cannot escape responsibility fir the manner in which the powers of sovereignty thus
committed to the judicial department are exercised. (p. 445)

The relation at the bar to the courts is a peculiar and intimate relationship. The bar is an
attache of the courts. The quality of justice dispense by the courts depends in no small
degree upon the integrity of its bar. An unfaithful bar may easily bring scandal and
reproach to the administration of justice and bring the courts themselves into disrepute.
(p.445)

Through all time courts have exercised a direct and severe supervision over their bars,
at least in the English speaking countries. (p. 445)

After explaining the history of the case, the Court ends thus:

Our conclusion may be epitomized as follows: For more than six centuries prior to the
adoption of our Constitution, the courts of England, concededly subordinate to
Parliament since the Revolution of 1688, had exercise the right of determining who
should be admitted to the practice of law, which, as was said in Matter of the Sergeant's
at Law, 6 Bingham's New Cases 235, "constitutes the most solid of all titles." If the
courts and judicial power be regarded as an entity, the power to determine who should
be admitted to practice law is a constituent element of that entity. It may be difficult to
isolate that element and say with assurance that it is either a part of the inherent power
of the court, or an essential element of the judicial power exercised by the court, but that
it is a power belonging to the judicial entity and made of not only a sovereign institution,
but made of it a separate independent, and coordinate branch of the government. They
took this institution along with the power traditionally exercise to determine who should
constitute its attorney at law. There is no express provision in the Constitution which
indicates an intent that this traditional power of the judicial department should in any
manner be subject to legislative control. Perhaps the dominant thought of the framers of
our constitution was to make the three great departments of government separate and
independent of one another. The idea that the Legislature might embarrass the judicial
department by prescribing inadequate qualifications for attorneys at law is inconsistent
with the dominant purpose of making the judicial independent of the legislative
department, and such a purpose should not be inferred in the absence of express
constitutional provisions. While the legislature may legislate with respect to the
qualifications of attorneys, but is incidental merely to its general and unquestioned power
to protect the public interest. When it does legislate a fixing a standard of qualifications
required of attorneys at law in order that public interests may be protected, such
qualifications do not constitute only a minimum standard and limit the class from which
the court must make its selection. Such legislative qualifications do not constitute the
ultimate qualifications beyond which the court cannot go in fixing additional qualifications
deemed necessary by the course of the proper administration of judicial functions. There
is no legislative power to compel courts to admit to their bars persons deemed by them
unfit to exercise the prerogatives of an attorney at law. (p. 450)
 Furthermore, it is an unlawful attempt to exercise the power of appointment. It is quite
likely true that the legislature may exercise the power of appointment when it is in
pursuance of a legislative functions. However, the authorities are well-nigh unanimous
that the power to admit attorneys to the practice of law is a judicial function. In all of the
states, except New Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our
investigation reveals, attorneys receive their formal license to practice law by their
admission as members of the bar of the court so admitting. Cor. Jur. 572; Ex
parte Secombre, 19 How. 9,15 L. Ed. 565; Ex parteGarland, 4 Wall. 333, 18 L. Ed. 366;
Randall vs. Brigham, 7 Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P.
646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021, 130 Am. St. Rep.
1030, 20 Ann. Cas. 413.

The power of admitting an attorney to practice having been perpetually exercised by the
courts, it having been so generally held that the act of the court in admitting an attorney
to practice is the judgment of the court, and an attempt as this on the part of the
Legislature to confer such right upon any one being most exceedingly uncommon, it
seems clear that the licensing of an attorney is and always has been a purely judicial
function, no matter where the power to determine the qualifications may reside. (p. 451)

In that same year of 1932, the Supreme Court of Massachusetts, in answering a consultation of
the Senate of that State, 180 NE 725, said:

It is indispensible to the administration of justice and to interpretation of the laws that

there be members of the bar of sufficient ability, adequate learning and sound moral
character. This arises from the need of enlightened assistance to the honest, and
restraining authority over the knavish, litigant. It is highly important, also that the public
be protected from incompetent and vicious practitioners, whose opportunity for doing
mischief is wide. It was said by Cardoz, C.L., in People ex rel. Karlin vs. Culkin, 242 N.Y.
456, 470, 471, 162 N.E. 487, 489, 60 A.L.R. 851: "Membership in the bar is a privilege
burden with conditions." One is admitted to the bar "for something more than private
gain." He becomes an "officer of the court", and ,like the court itself, an instrument or
agency to advance the end of justice. His cooperation with the court is due "whenever
justice would be imperiled if cooperation was withheld." Without such attorneys at law
the judicial department of government would be hampered in the performance of its
duties. That has been the history of attorneys under the common law, both in this
country and England. Admission to practice as an attorney at law is almost without
exception conceded to be a judicial function. Petition to that end is filed in courts, as are
other proceedings invoking judicial action. Admission to the bar is accomplish and made
open and notorious by a decision of the court entered upon its records. The
establishment by the Constitution of the judicial department conferred authority
necessary to the exercise of its powers as a coordinate department of government. It is
an inherent power of such a department of government ultimately to determine the
qualifications of those to be admitted to practice in its courts, for assisting in its work,
and to protect itself in this respect from the unfit, those lacking in sufficient learning, and
those not possessing good moral character. Chief Justice Taney stated succinctly and
with finality in Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It has been well settled,
by the rules and practice of common-law courts, that it rests exclusively with the court to
determine who is qualified to become one of its officers, as an attorney and counselor,
and for what cause he ought to be removed." (p.727)
In the case of Day and others who collectively filed a petition to secure license to practice the
legal profession by virtue of a law of state (In re Day, 54 NE 646), the court said in part:

In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the court, holding the test
oath for attorneys to be unconstitutional, explained the nature of the attorney's office as
follows: "They are officers of the court, admitted as such by its order, upon evidence of
their possessing sufficient legal learning and fair private character. It has always been
the general practice in this country to obtain this evidence by an examination of the
parties. In this court the fact of the admission of such officers in the highest court of the
states to which they, respectively, belong for, three years preceding their application, is
regarded as sufficient evidence of the possession of the requisite legal learning, and the
statement of counsel moving their admission sufficient evidence that their private and
professional character is fair. The order of admission is the judgment of the court that the
parties possess the requisite qualifications as attorneys and counselors, and are entitled
to appear as such and conduct causes therein. From its entry the parties become
officers of the court, and are responsible to it for professional misconduct. They hold
their office during good behavior, and can only be deprived of it for misconduct
ascertained and declared by the judgment of the court after opportunity to be heard has
been afforded. Ex parte Hoyfron, admission or their exclusion is not the exercise of a
mere ministerial power. It is the exercise of judicial power, and has been so held in
numerous cases. It was so held by the court of appeals of New York in the matter of the
application of Cooper for admission. Re Cooper 22 N. Y. 81. "Attorneys and
Counselors", said that court, "are not only officers of the court, but officers whose duties
relate almost exclusively to proceedings of a judicial nature; and hence their
appointment may, with propriety, be entrusted to the court, and the latter, in performing
his duty, may very justly considered as engaged in the exercise of their appropriate
judicial functions." (pp. 650-651).

We quote from other cases, the following pertinent portions:

Admission to practice of law is almost without exception conceded everywhere to be the

exercise of a judicial function, and this opinion need not be burdened with citations in
this point. Admission to practice have also been held to be the exercise of one of the
inherent powers of the court. — Re Bruen, 102 Wash. 472, 172 Pac. 906.

Admission to the practice of law is the exercise of a judicial function, and is an inherent
power of the court. — A.C. Brydonjack, vs. State Bar of California, 281 Pac. 1018; See
Annotation on Power of Legislature respecting admission to bar, 65, A.L. R. 1512.

On this matter there is certainly a clear distinction between the functions of the judicial and
legislative departments of the government.

The distinction between the functions of the legislative and the judicial departments is
that it is the province of the legislature to establish rules that shall regulate and govern in
matters of transactions occurring subsequent to the legislative action, while the judiciary
determines rights and obligations with reference to transactions that are past or
conditions that exist at the time of the exercise of judicial power, and the distinction is a
vital one and not subject to alteration or change either by legislative action or by judicial
decree.
 The judiciary cannot consent that its province shall be invaded by either of the other
departments of the government. — 16 C.J.S., Constitutional Law, p. 229.

If the legislature cannot thus indirectly control the action of the courts by requiring of
them construction of the law according to its own views, it is very plain it cannot do so
directly, by settling aside their judgments, compelling them to grant new trials, ordering
the discharge of offenders, or directing what particular steps shall be taken in the
progress of a judicial inquiry. — Cooley's Constitutional Limitations, 192.

In decreeing the bar candidates who obtained in the bar examinations of 1946 to 1952, a
general average of 70 per cent without falling below 50 per cent in any subject, be admitted in
mass to the practice of law, the disputed law is not a legislation; it is a judgment — a judgment
revoking those promulgated by this Court during the aforecited year affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for
justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive
department, that may be so. Any attempt on the part of any of these departments would be a
clear usurpation of its functions, as is the case with the law in question.

That the Constitution has conferred on Congress the power to repeal, alter or supplement the
rule promulgated by this Tribunal, concerning the admission to the practice of law, is no valid
argument. Section 13, article VIII of the Constitution provides:

Section 13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice, and procedure in all courts, and the admission to the practice of law.
Said rules shall be uniform for all courts of the same grade and shall not diminish,
increase or modify substantive rights. The existing laws on pleading, practice and
procedure are hereby repealed as statutes, and are declared Rules of Court, subject to
the power of the Supreme Court to alter and modify the same. The Congress shall have
the power to repeal, alter, or supplement the rules concerning pleading, practice, and
procedure, and the admission to the practice of law in the Philippines. — Constitution of
the Philippines, Art. VIII, sec. 13.

It will be noted that the Constitution has not conferred on Congress and this Tribunal equal
responsibilities concerning the admission to the practice of law. the primary power and
responsibility which the Constitution recognizes continue to reside in this Court. Had Congress
found that this Court has not promulgated any rule on the matter, it would have nothing over
which to exercise the power granted to it. Congress may repeal, alter and supplement the rules
promulgated by this Court, but the authority and responsibility over the admission, suspension,
disbarment and reinstatement of attorneys at law and their supervision remain vested in the
Supreme Court. The power to repeal, alter and supplement the rules does not signify nor permit
that Congress substitute or take the place of this Tribunal in the exercise of its primary power on
the matter. The Constitution does not say nor mean that Congress may admit, suspend, disbar
or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law.
Its power is limited to repeal, modify or supplement the existing rules on the matter, if according
to its judgment the need for a better service of the legal profession requires it. But this power
does not relieve this Court of its responsibility to admit, suspend, disbar and reinstate attorneys
at law and supervise the practice of the legal profession.

Being coordinate and independent branches, the power to promulgate and enforce rules for the
admission to the practice of law and the concurrent power to repeal, alter and supplement them
may and should be exercised with the respect that each owes to the other, giving careful
consideration to the responsibility which the nature of each department requires. These powers
have existed together for centuries without diminution on each part; the harmonious delimitation
being found in that the legislature may and should examine if the existing rules on the admission
to the Bar respond to the demands which public interest requires of a Bar endowed with high
virtues, culture, training and responsibility. The legislature may, by means of appeal,
amendment or supplemental rules, fill up any deficiency that it may find, and the judicial power,
which has the inherent responsibility for a good and efficient administration of justice and the
supervision of the practice of the legal profession, should consider these reforms as the
minimum standards for the elevation of the profession, and see to it that with these reforms the
lofty objective that is desired in the exercise of its traditional duty of admitting, suspending,
disbarring and reinstating attorneys at law is realized. They are powers which, exercise within
their proper constitutional limits, are not repugnant, but rather complementary to each other in
attaining the establishment of a Bar that would respond to the increasing and exacting
necessities of the administration of justice.

The case of Guariña (1913) 24 Phil., 37, illustrates our criterion. Guariña took examination and
failed by a few points to obtain the general average. A recently enacted law provided that one
who had been appointed to the position of Fiscal may be admitted to the practice of law without
a previous examination. The Government appointed Guariña and he discharged the duties of
Fiscal in a remote province. This tribunal refused to give his license without previous
examinations. The court said:

Relying upon the provisions of section 2 of Act No. 1597, the applicant in this case seeks
admission to the bar, without taking the prescribed examination, on the ground that he
holds the office of provincial fiscal for the Province of Batanes.

Section 2 of Act No. 1597, enacted February 28, 1907, is as follows:

Sec. 2. Paragraph one of section thirteen of Act Numbered One Hundred and ninety,
entitled "An Act providing a Code of Procedure in Civil Actions and Special Proceedings
in the Philippine Islands," is hereby amended to read as follows:

1. Those who have been duly licensed under the laws and orders of the Islands under
the sovereignty of Spain or of the United States and are in good and regular standing as
members of the bar of the Philippine Islands at the time of the adoption of this
code; Provided, That any person who, prior to the passage of this act, or at any time
thereafter, shall have held, under the authority of the United States, the position of
justice of the Supreme Court, judge of the Court of First Instance, or judge or associate
judge of the Court of Land Registration, of the Philippine Islands, or the position of
Attorney General, Solicitor General, Assistant Attorney General, assistant attorney in the
office of the Attorney General, prosecuting attorney for the City of Manila, city attorney of
Manila, assistant city attorney of Manila, provincial fiscal, attorney for the Moro Province,
or assistant attorney for the Moro Province, may be licensed to practice law in the courts
of the Philippine Islands without an examination, upon motion before the Supreme Court
and establishing such fact to the satisfaction of said court.

The records of this court disclose that on a former occasion this appellant took, and
failed to pass the prescribed examination. The report of the examining board, dated
March 23, 1907, shows that he received an average of only 71 per cent in the various
 branches of legal learning upon which he was examined, thus falling four points short of
the required percentage of 75. We would be delinquent in the performance of our duty to
the public and to the bar, if, in the face of this affirmative indication of the deficiency of
the applicant in the required qualifications of learning in the law at the time when he
presented his former application for admission to the bar, we should grant him license to
practice law in the courts of these Islands, without first satisfying ourselves that despite
his failure to pass the examination on that occasion, he now "possesses the necessary
qualifications of learning and ability."

But it is contented that under the provisions of the above-cited statute the applicant is
entitled as of right to be admitted to the bar without taking the prescribed examination
"upon motion before the Supreme Court" accompanied by satisfactory proof that he has
held and now holds the office of provincial fiscal of the Province of Batanes. It is urged
that having in mind the object which the legislator apparently sought to attain in enacting
the above-cited amendment to the earlier statute, and in view of the context generally
and especially of the fact that the amendment was inserted as a proviso in that section
of the original Act which specifically provides for the admission of certain candidates
without examination. It is contented that this mandatory construction is imperatively
required in order to give effect to the apparent intention of the legislator, and to the
candidate's claim de jure to have the power exercised.

And after copying article 9 of Act of July 1, 1902 of the Congress of the United States, articles 2,
16 and 17 of Act No. 136, and articles 13 to 16 of Act 190, the Court continued:

Manifestly, the jurisdiction thus conferred upon this court by the commission and
confirmed to it by the Act of Congress would be limited and restricted, and in a case
such as that under consideration wholly destroyed, by giving the word "may," as used in
the above citation from Act of Congress of July 1, 1902, or of any Act of Congress
prescribing, defining or limiting the power conferred upon the commission is to that
extent invalid and void, as transcending its rightful limits and authority.

Speaking on the application of the law to those who were appointed to the positions
enumerated, and with particular emphasis in the case of Guariña, the Court held:

In the various cases wherein applications for the admission to the bar under the
provisions of this statute have been considered heretofore, we have accepted the fact
that such appointments had been made as satisfactory evidence of the qualifications of
the applicant. But in all of those cases we had reason to believe that the applicants had
been practicing attorneys prior to the date of their appointment.

In the case under consideration, however, it affirmatively appears that the applicant was
not and never had been practicing attorney in this or any other jurisdiction prior to the
date of his appointment as provincial fiscal, and it further affirmatively appears that he
was deficient in the required qualifications at the time when he last applied for admission
to the bar.

In the light of this affirmative proof of his defieciency on that occasion, we do not think
that his appointment to the office of provincial fiscal is in itself satisfactory proof if his
possession of the necessary qualifications of learning and ability. We conclude therefore
 that this application for license to practice in the courts of the Philippines, should be
denied.

In view, however, of the fact that when he took the examination he fell only four points
short of the necessary grade to entitle him to a license to practice; and in view also of
the fact that since that time he has held the responsible office of the governor of the
Province of Sorsogon and presumably gave evidence of such marked ability in the
performance of the duties of that office that the Chief Executive, with the consent and
approval of the Philippine Commission, sought to retain him in the Government service
by appointing him to the office of provincial fiscal, we think we would be justified under
the above-cited provisions of Act No. 1597 in waiving in his case the ordinary
examination prescribed by general rule, provided he offers satisfactory evidence of his
proficiency in a special examination which will be given him by a committee of the court
upon his application therefor, without prejudice to his right, if he desires so to do, to
present himself at any of the ordinary examinations prescribed by general rule. — (In
re Guariña, pp. 48-49.)

It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs
exclusively to this Court, and the law passed by Congress on the matter is of permissive
character, or as other authorities say, merely to fix the minimum conditions for the license.

The law in question, like those in the case of Day and Cannon, has been found also to suffer
from the fatal defect of being a class legislation, and that if it has intended to make a
classification, it is arbitrary and unreasonable.

In the case of Day, a law enacted on February 21, 1899 required of the Supreme Court, until
December 31 of that year, to grant license for the practice of law to those students who began
studying before November 4, 1897, and had studied for two years and presented a diploma
issued by a school of law, or to those who had studied in a law office and would pass an
examination, or to those who had studied for three years if they commenced their studies after
the aforementioned date. The Supreme Court declared that this law was unconstitutional being,
among others, a class legislation. The Court said:

This is an application to this court for admission to the bar of this state by virtue of
diplomas from law schools issued to the applicants. The act of the general assembly
passed in 1899, under which the application is made, is entitled "An act to amend
section 1 of an act entitled "An act to revise the law in relation to attorneys and
counselors," approved March 28, 1884, in force July 1, 1874." The amendment, so far as
it appears in the enacting clause, consists in the addition to the section of the following:
"And every application for a license who shall comply with the rules of the supreme court
in regard to admission to the bar in force at the time such applicant commend the study
of law, either in a law or office or a law school or college, shall be granted a license
under this act notwithstanding any subsequent changes in said rules". — In re Day et al,
54 N.Y., p. 646.

. . . After said provision there is a double proviso, one branch of which is that up to
December 31, 1899, this court shall grant a license of admittance to the bar to the holder
of every diploma regularly issued by any law school regularly organized under the laws
of this state, whose regular course of law studies is two years, and requiring an
attendance by the student of at least 36 weeks in each of such years, and showing that
the student began the study of law prior to November 4, 1897, and accompanied with
the usual proofs of good moral character. The other branch of the proviso is that any
student who has studied law for two years in a law office, or part of such time in a law
office, "and part in the aforesaid law school," and whose course of study began prior to
November 4, 1897, shall be admitted upon a satisfactory examination by the examining
board in the branches now required by the rules of this court. If the right to admission
exists at all, it is by virtue of the proviso, which, it is claimed, confers substantial rights
and privileges upon the persons named therein, and establishes rules of legislative
creation for their admission to the bar. (p. 647.)

Considering the proviso, however, as an enactment, it is clearly a special legislation,

prohibited by the constitution, and invalid as such. If the legislature had any right to
admit attorneys to practice in the courts and take part in the administration of justice, and
could prescribe the character of evidence which should be received by the court as
conclusive of the requisite learning and ability of persons to practice law, it could only be
done by a general law, persons or classes of persons. Const. art 4, section 2. The right
to practice law is a privilege, and a license for that purpose makes the holder an officer
of the court, and confers upon him the right to appear for litigants, to argue causes, and
to collect fees therefor, and creates certain exemptions, such as from jury services and
arrest on civil process while attending court. The law conferring such privileges must be
general in its operation. No doubt the legislature, in framing an enactment for that
purpose, may classify persons so long as the law establishing classes in general, and
has some reasonable relation to the end sought. There must be some difference which
furnishes a reasonable basis for different one, having no just relation to the subject of
the legislation. Braceville Coal Co. vs. People, 147 Ill. 66, 35 N.E. 62; Ritchie vs. People,
155 Ill. 98, 40 N.E. 454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255.

The length of time a physician has practiced, and the skill acquired by experience, may
furnish a basis for classification (Williams vs. People 121 Ill. 48, II N.E. 881); but the
place where such physician has resided and practiced his profession cannot furnish
such basis, and is an arbitrary discrimination, making an enactment based upon it void
(State vs. Pennyeor, 65 N.E. 113, 18 Atl. 878). Here the legislature undertakes to say
what shall serve as a test of fitness for the profession of the law, and plainly, any
classification must have some reference to learning, character, or ability to engage in
such practice. The proviso is limited, first, to a class of persons who began the study of
law prior to November 4, 1897. This class is subdivided into two classes — First, those
presenting diplomas issued by any law school of this state before December 31, 1899;
and, second, those who studied law for the period of two years in a law office, or part of
the time in a law school and part in a law office, who are to be admitted upon
examination in the subjects specified in the present rules of this court, and as to this
latter subdivision there seems to be no limit of time for making application for admission.
As to both classes, the conditions of the rules are dispensed with, and as between the
two different conditions and limits of time are fixed. No course of study is prescribed for
the law school, but a diploma granted upon the completion of any sort of course its
managers may prescribe is made all-sufficient. Can there be anything with relation to the
qualifications or fitness of persons to practice law resting upon the mere date of
November 4, 1897, which will furnish a basis of classification. Plainly not. Those who
began the study of law November 4th could qualify themselves to practice in two years
as well as those who began on the 3rd. The classes named in the proviso need spend
only two years in study, while those who commenced the next day must spend three
years, although they would complete two years before the time limit. The one who
 commenced on the 3rd. If possessed of a diploma, is to be admitted without examination
before December 31, 1899, and without any prescribed course of study, while as to the
other the prescribed course must be pursued, and the diploma is utterly useless. Such
classification cannot rest upon any natural reason, or bear any just relation to the subject
sought, and none is suggested. The proviso is for the sole purpose of bestowing
privileges upon certain defined persons. (pp. 647-648.)

In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441, where the legislature
attempted by law to reinstate Cannon to the practice of law, the court also held with regards to
its aspect of being a class legislation:

But the statute is invalid for another reason. If it be granted that the legislature has
power to prescribe ultimately and definitely the qualifications upon which courts must
admit and license those applying as attorneys at law, that power can not be exercised in
the manner here attempted. That power must be exercised through general laws which
will apply to all alike and accord equal opportunity to all. Speaking of the right of the
Legislature to exact qualifications of those desiring to pursue chosen callings, Mr.
Justice Field in the case of Dent. vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233,
32 L. Ed. 626, said: "It is undoubtedly the right of every citizen of the United States to
follow any lawful calling, business or profession he may choose, subject only to such
restrictions as are imposed upon all persons of like age, sex, and condition." This right
may in many respects be considered as a distinguishing feature of our republican
institutions. Here all vocations are all open to every one on like conditions. All may be
pursued as sources of livelihood, some requiring years of study and great learning for
their successful prosecution. The interest, or, as it is sometimes termed, the "estate"
acquired in them — that is, the right to continue their prosecution — is often of great
value to the possessors and cannot be arbitrarily taken from them, any more than their
real or personal property can be thus taken. It is fundamental under our system of
government that all similarly situated and possessing equal qualifications shall enjoy
equal opportunities. Even statutes regulating the practice of medicine, requiring
medications to establish the possession on the part of the application of his proper
qualifications before he may be licensed to practice, have been challenged, and courts
have seriously considered whether the exemption from such examinations of those
practicing in the state at the time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general principle. State vs. Thomas
Call, 121 N.C. 643, 28 S.E. 517; see, also, The State ex rel. Winkler vs. Rosenberg, 101
Wis. 172, 76 N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468.

This law singles out Mr. Cannon and assumes to confer upon him the right to practice
law and to constitute him an officer of this Court as a mere matter of legislative grace or
favor. It is not material that he had once established his right to practice law and that one
time he possessed the requisite learning and other qualifications to entitle him to that
right. That fact in no matter affect the power of the Legislature to select from the great
body of the public an individual upon whom it would confer its favors.

A statute of the state of Minnesota (Laws 1929, c. 424) commanded the Supreme Court
to admit to the practice of law without examination, all who had served in the military or
naval forces of the United States during the World War and received a honorable
discharge therefrom and who (were disabled therein or thereby within the purview of the
Act of Congress approved June 7th, 1924, known as "World War Veteran's Act, 1924
 and whose disability is rated at least ten per cent thereunder at the time of the passage
of this Act." This Act was held |unconstitutional on the ground that it clearly violated the
quality clauses of the constitution of that state. In re Application of George W.
Humphrey, 178 Minn. 331, 227 N.W. 179.

A good summary of a classification constitutionally acceptable is explained in 12 Am. Jur. 151-

153 as follows:

The general rule is well settled by unanimity of the authorities that a classification to be
valid must rest upon material differences between the person included in it and those
excluded and, furthermore, must be based upon substantial distinctions. As the rule has
sometimes avoided the constitutional prohibition, must be founded upon pertinent and
real differences, as distinguished from irrelevant and artificial ones. Therefore, any law
that is made applicable to one class of citizens only must be based on some substantial
difference between the situation of that class and other individuals to which it does not
apply and must rest on some reason on which it can be defended. In other words, there
must be such a difference between the situation and circumstances of all the members
of the class and the situation and circumstances of all other members of the state in
relation to the subjects of the discriminatory legislation as presents a just and natural
cause for the difference made in their liabilities and burdens and in their rights and
privileges. A law is not general because it operates on all within a clause unless there is
a substantial reason why it is made to operate on that class only, and not generally on
all. (12 Am. Jur. pp. 151-153.)

Pursuant to the law in question, those who, without a grade below 50 per cent in any subject,
have obtained a general average of 69.5 per cent in the bar examinations in 1946 to 1951, 70.5
per cent in 1952, 71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954, and 73.5
per cent in 1955, will be permitted to take and subscribe the corresponding oath of office as
members of the Bar, notwithstanding that the rules require a minimum general average of 75
per cent, which has been invariably followed since 1950. Is there any motive of the nature
indicated by the abovementioned authorities, for this classification ? If there is none, and none
has been given, then the classification is fatally defective.

It was indicated that those who failed in 1944, 1941 or the years before, with the general
average indicated, were not included because the Tribunal has no record of the unsuccessful
candidates of those years. This fact does not justify the unexplained classification of
unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954, 1955. Neither is the
exclusion of those who failed before said years under the same conditions justified. The fact that
this Court has no record of examinations prior to 1946 does not signify that no one concerned
may prove by some other means his right to an equal consideration.

To defend the disputed law from being declared unconstitutional on account of its retroactivity, it
is argued that it is curative, and that in such form it is constitutional. What does Rep. Act 972
intend to cure ? Only from 1946 to 1949 were there cases in which the Tribunal permitted
admission to the bar of candidates who did not obtain the general average of 75 per cent: in
1946 those who obtained only 72 per cent; in the 1947 and those who had 69 per cent or more;
in 1948, 70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who obtained 74 per
cent, which was considered by the Court as equivalent to 75 per cent as prescribed by the
Rules, by reason of circumstances deemed to be sufficiently justifiable. These changes in the
passing averages during those years were all that could be objected to or criticized. Now, it is
desired to undo what had been done — cancel the license that was issued to those who did not
obtain the prescribed 75 per cent ? Certainly not. The disputed law clearly does not propose to
do so. Concededly, it approves what has been done by this Tribunal. What Congress lamented
is that the Court did not consider 69.5 per cent obtained by those candidates who failed in 1946
to 1952 as sufficient to qualify them to practice law. Hence, it is the lack of will or defect of
judgment of the Court that is being cured, and to complete the cure of this infirmity, the
effectivity of the disputed law is being extended up to the years 1953, 1954 and 1955,
increasing each year the general average by one per cent, with the order that said candidates
be admitted to the Bar. This purpose, manifest in the said law, is the best proof that what the
law attempts to amend and correct are not the rules promulgated, but the will or judgment of the
Court, by means of simply taking its place. This is doing directly what the Tribunal should have
done during those years according to the judgment of Congress. In other words, the power
exercised was not to repeal, alter or supplement the rules, which continue in force. What was
done was to stop or suspend them. And this power is not included in what the Constitution has
granted to Congress, because it falls within the power to apply the rules. This power
corresponds to the judiciary, to which such duty been confided.

Article 2 of the law in question permits partial passing of examinations, at indefinite intervals.
The grave defect of this system is that it does not take into account that the laws and
jurisprudence are not stationary, and when a candidate finally receives his certificate, it may
happen that the existing laws and jurisprudence are already different, seriously affecting in this
manner his usefulness. The system that the said law prescribes was used in the first bar
examinations of this country, but was abandoned for this and other disadvantages. In this case,
however, the fatal defect is that the article is not expressed in the title will have temporary effect
only from 1946 to 1955, the text of article 2 establishes a permanent system for an indefinite
time. This is contrary to Section 21 (1), article VI of the Constitution, which vitiates and annuls
article 2 completely; and because it is inseparable from article 1, it is obvious that its nullity
affect the entire law.

Laws are unconstitutional on the following grounds: first, because they are not within the
legislative powers of Congress to enact, or Congress has exceeded its powers; second,
because they create or establish arbitrary methods or forms that infringe constitutional
principles; and third, because their purposes or effects violate the Constitution or its basic
principles. As has already been seen, the contested law suffers from these fatal defects.

Summarizing, we are of the opinion and hereby declare that Republic Act No. 972 is
unconstitutional and therefore, void, and without any force nor effect for the following reasons,
to wit:

1. Because its declared purpose is to admit 810 candidates who failed in the bar examinations
of 1946-1952, and who, it admits, are certainly inadequately prepared to practice law, as was
exactly found by this Court in the aforesaid years. It decrees the admission to the Bar of these
candidates, depriving this Tribunal of the opportunity to determine if they are at present already
prepared to become members of the Bar. It obliges the Tribunal to perform something contrary
to reason and in an arbitrary manner. This is a manifest encroachment on the constitutional
responsibility of the Supreme Court.

2. Because it is, in effect, a judgment revoking the resolution of this Court on the petitions of
these 810 candidates, without having examined their respective examination papers, and
although it is admitted that this Tribunal may reconsider said resolution at any time for justifiable
reasons, only this Court and no other may revise and alter them. In attempting to do it directly
Republic Act No. 972 violated the Constitution.

3. By the disputed law, Congress has exceeded its legislative power to repeal, alter and
supplement the rules on admission to the Bar. Such additional or amendatory rules are, as they
ought to be, intended to regulate acts subsequent to its promulgation and should tend to
improve and elevate the practice of law, and this Tribunal shall consider these rules as minimum
norms towards that end in the admission, suspension, disbarment and reinstatement of lawyers
to the Bar, inasmuch as a good bar assists immensely in the daily performance of judicial
functions and is essential to a worthy administration of justice. It is therefore the primary and
inherent prerogative of the Supreme Court to render the ultimate decision on who may be
admitted and may continue in the practice of law according to existing rules.

4. The reason advanced for the pretended classification of candidates, which the law makes, is
contrary to facts which are of general knowledge and does not justify the admission to the Bar of
law students inadequately prepared. The pretended classification is arbitrary. It is undoubtedly a
class legislation.

5. Article 2 of Republic Act No. 972 is not embraced in the title of the law, contrary to what the
Constitution enjoins, and being inseparable from the provisions of article 1, the entire law is
void.

6. Lacking in eight votes to declare the nullity of that part of article 1 referring to the
examinations of 1953 to 1955, said part of article 1, insofar as it concerns the examinations in
those years, shall continue in force.

RESOLUTION

Upon mature deliberation by this Court, after hearing and availing of the magnificent and
impassioned discussion of the contested law by our Chief Justice at the opening and close of
the debate among the members of the Court, and after hearing the judicious observations of two
of our beloved colleagues who since the beginning have announced their decision not to take
part in voting, we, the eight members of the Court who subscribed to this decision have voted
and resolved, and have decided for the Court, and under the authority of the same:

1. That (a) the portion of article 1 of Republic Act No. 972 referring to the examinations of 1946
to 1952, and (b) all of article 2 of said law are unconstitutional and, therefore, void and without
force and effect.

2. That, for lack of unanimity in the eight Justices, that part of article 1 which refers to the
examinations subsequent to the approval of the law, that is from 1953 to 1955 inclusive, is valid
and shall continue to be in force, in conformity with section 10, article VII of the Constitution.

Consequently, (1) all the above-mentioned petitions of the candidates who failed in the
examinations of 1946 to 1952 inclusive are denied, and (2) all candidates who in the
examinations of 1953 obtained a general average of 71.5 per cent or more, without having a
grade below 50 per cent in any subject, are considered as having passed, whether they have
filed petitions for admission or not. After this decision has become final, they shall be permitted
to take and subscribe the corresponding oath of office as members of the Bar on the date or
dates that the chief Justice may set. So ordered.

Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes, JJ., concur.

ANNEX I

PETITIONERS UNDER REPUBLIC ACT NO. 972

A resume‚ of pertinent facts concerning the bar examinations of 1946 to 1953 inclusive follows:

August, 19461
Board of Examiners: Hon. Pedro Tuason, Chairman, Prof. Gerardo
Florendo, Atty. Bernardino Guerrero, Atty. Joaquin Ramirez, Atty.
Crispin Oben, Hon. Jose Teodoro, Atty. Federico Agrava, Atty. Jose
Perez Cardenas, and Hon. Bienvenido A. Tan, members.
Number of candidates 206
Number of candidates whose grades were raised 12
73'S 6
72'S 6
Number of candidates who passed 85
Number of candidates who failed 121
Number of those affected by Republic Act No. 972 18
Percentage of success (per cent) 41.62
Percentage of failure (per cent) 58.74
Passing grade (per cent) 72
November, 1946
Board of Examiners: The same as that of August, 1946, except Hon.
Jose Teodoro who was substituted by Atty. Honesto K. Bausan.
Number of candidates 481
Number of candidates whose grades were raised 19
(72 per cent and above 73 per cent ---
Minutes of March 31, 1947)
Number of candidates who passed 249
Number of candidates who failed 228
Number of those affected by Republic Act No. 972 43
Percentage of success (per cent) 52.20
Percentage of failure (per cent) 47.80
Passing grade (per cent) 72
 (By resolution of the Court).
October, 1947
Board of Examiners: Hon. Cesar Bengzon, Chairman, Hon. Guillermo B.
Guevara, Atty. Antonio Araneta, Atty. Simon Cruz, Hon. Sixto de la
Costa, Atty. Celso B. Jamora, Hon. Emilio Peña, Atty. Federico Agrava,
Atty. Carlos B. Hilado, Members.
Number of candidates 749
Number of candidates whose grades were raised 43
70.55 per cent with 2 subject below 50 per 1
cent
69 per cent 40
68 per cent 2
Number of candidates who passed 409
Number of candidates who failed 340
Number of those affected by Republic Act No. 972 972
Percentage of success (per cent) 54.59
Percentage of failure (per cent) 45.41
Passing grade (per cent) 69
(by resolution of the Court).

Note.--In passing the 2 whose grades were 68.95 per cent and
68.1 per cent respectively, the Court found out that they were
not benefited at all by the bonus of 12 points given by the
Examiner in Civil Law.
August, 1948
Board of Examiners: Hon. Marceliano R. Montemayor, Chairman Hon.
Luis P. Torres, Hon. Felipe Natividad, Hon. Jose Teodoro, Sr., Atty.
Federico Agrava, Atty. Macario Peralta, Sr., Hon. Jesus G. Barrera,
Hon. Rafael Amparo, Atty. Alfonso Ponce Enrile, Members.
Number of candidates 899
Number of candidates whose grades were raised 64
71's 29
70's 35
Number of candidates who passed 490
Number of candidates who failed 409
Number of those affected by Republic Act No. 972 11
Percentage of success (per cent) 62.40
Percentage of failure (per cent) 37.60
Passing grade (per cent) 70
(by resolution of the Court).
August, 1949
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Fernando
Jugo, Hon. Enrique Filamor, Atty. Salvador Araneta, Hon. Pastor M.
Endencia, Atty. Federico Agrava, Hon. Mariano H. de Joya, Hon. Felipe
Natividad, Atty. Emeterio Barcelon, Members.
Number of candidates 1,218
Number of candidates whose grades were raised 55
(74's)
Number of candidates who passed 686
Number of candidates who failed 532
Number of those affected by Republic Act No. 972 164
Percentage of success (per cent) 56.28
Percentage of failure (per cent) 43.72
Passing grade (per cent) 74
(by resolution of the Court).
August, 1950
Board of Examiners: Hon. Fernando Jugo,2 Chairman, Hon. Guillermo
B. Guevara, Atty. Enrique Altavas, Atty. Marcial P. Lichauco, Atty.
Carlos B. Hilado, Atty. J. Antonio Araneta, Hon. Enrique V. Filamor,
Hon. Francisco A. Delgado, Hon. Antonio Horrilleno, Members.
Number of candidates 1,316
Number of candidates whose grades were raised 38
(The grade of 74 was raised to 75 per cent by recommendation
and authority
of the examiner in Remedial Law, Atty. Francisco Delgado).
Number of candidates who passed 432
Number of candidates who failed 894
Number of those affected by Republic Act No. 972 26
Percentage of success (per cent) 32.14
Percentage of failure (per cent) 67.86
Passing grade (per cent) 75
August, 1951
Board of Examiners: Hon. Guillermo F. Pablo, Chairman, Hon. Pastor
M. Endencia, Atty. Enrique Altavas, Hon. Manuel Lim, Hon. Felipe
Natividad, Hon. Vicente Albert, Atty. Arturo Alafriz, Hon. Enrique V.
Filamor, Hon. Alfonso Felix, Members.
Number of candidates 2,068
Number of candidates whose grades were raised 112
(74's)
Number of candidates who passed 1,189
Number of candidates who failed 879
 Number of those affected by Republic Act No. 972 196
Percentage of success (per cent) 57.49
Percentage of failure (per cent) 42.51
Passing grade (per cent) 75
August, 1952
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Pastor M.
Endencia, Hon. Enrique V. Filamor, Atty. Francisco Ortigas, Hon. Emilio
Peña, Atty. Emilio P. Virata, Hon. Alfonso Felix, Hon. Felipe Natividad,
Atty. Macario Peralta, Sr., Members.
Number of candidates 2,738
Number of candidates whose grades were raised 163
(74's)
Number of candidates who passed 1,705
Number of candidates who failed 1,033
Number of those affected by Republic Act No. 972 426
Percentage of success (per cent) 62.27
Percentage of failure (per cent) 37.73
Passing grade (per cent) 75
August, 1953
Board of Examiners: Hon. Fernando Jugo, Chairman, Hon. Pastor M.
Endencia, Atty. Enrique Altavas, Atty. Francisco Ortigas, Jr., Hon.
Emilio Peña, Atty. Jose S. de la Cruz, Hon. Alfonso Felix, Hon. Felipe
Natividad, Hon. Mariano L. de la Rosa, Members.
Number of candidates 2,555
Number of candidates whose grades were raised 100
(74's)
Number of candidates who passed 1,570
Number of candidates who failed 986
Number of those affected by Republic Act No. 972 284
Percentage of success (per cent) 61.04
Percentage of failure (per cent) 38.96
Passing grade (per cent) 75

A list of petitioners for admission to the Bar under Republic Act No. 972, grouped by the years in
which they took the bar examinations, with annotations as to who had presented motions for
reconsideration which were denied (MRD), and who filed mere motions for reconsideration
without invoking said law, which are still pending, follows:

PETITIONER UNDER THE BAR FLUNKERS' LAW

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.
Av.
MRD- 1. Agunod, Filemon L. 66 71 61 76 80 83 73 75 71.4
MRD- 2. Cunanan, Albino 76 72 74 75 70 70 65 72 71.45
MRD- 3. Mejia, Flaviano V. 64 64 65 68 83 74 68 80 69.85
1948
MRD- 4. Orlina, Soledad R. 71 68 66 75 63 75 70 88 69.9
MRD- 5. Vivero, Antonio Lu. 75 73 73 65 63 66 65 80 69.95
MRD- 6. Gatchalian, Salud 72 66 71 75 78 68 65 50 69.65
1949
7. Abaya, Jesus A. 69 79 75 75 71 89 55 75 70.8
MRD- 8. Advincula, David D. 76 80 62 86 81 72 60 65 70.5
9. Agraviador, Alfredo L. 63 85 70 77 80 81 65 80 71.8
10. Alacar, Pascual C. 61 63 83 79 71 85 65 80 72.05
11. Amog, Pedro M. 75 66 76 78 81 74 55 85 72.2
12. Apolinario, Miguel S. 75 84 78 78 70 70 60 75 71.95
13. Aquino, Maximo G. 82 77 71 77 76 77 60 75 73.15
14. Asinas, Candido D. 75 83 69 80 81 83 55 85 72.65
15. Baldivino, Jose B. 75 65 72 82 82 69 60 80 71.95
16. Balintona, Bernardo 75 80 64 78 74 67 65 70 70
17. Banawa, Angel L. 78 70 70 75 81 83 60 60 72.3
18. Bandala, Anacleto A. 66 80 66 71 93 72 55 70 69.6
19. Bandon, Alawadin L. 74 79 69 77 91 73 60 80 73.35
20. Baquero, Benjamin 76 79 64 77 85 72 65 75 72.5
21. Blanco, Jose 75 75 70 75 77 76 60 90 72.5
22. Buenaluz, Victoriano T. 75 71 72 78 67 82 60 75 70.85
23. Canda, Benjamin S. 75 72 75 82 76 77 65 75 73.55
24. Canon, Guillermo 77 86 67 88 75 69 70 85 73.9
25. Carlos, Estela S. 75 81 81 79 72 73 65 70 73.8
26. Cerezo, Gregorio O. 69 76 76 79 71 80 55 80 70.4
27. Clarin, Manuel L. 75 82 76 81 73 69 70 75 73.95
28. Claudo, Conrado O. 76 62 78 77 73 72 60 70 71.4
29. Condevillamar, Antonio 68 65 74 80 85 75 60 75 71.65
V.
MRD- Cornejo, Crisanto R. 72 75 69 82 83 79 65 80 73.4
30.
31. Corona, Olvido D. 68 76 73 81 81 72 60 75 71.15
32. Dizon, Marcial C. 76 86 69 83 75 74 65 80 73.1
33. Enriquez, Agustin P. 75 77 70 81 81 77 65 80 73.75
34. Espiritu, Irineo E. 80 88 69 75 76 77 65 75 73.8
35. Fernandez, Macario J. 63 82 76 75 81 84 65 75 72.95
36. Gallardo, Amando C. 78 79 67 77 76 75 60 65 70.95
37. Garcia, Freidrich M. 76 80 66 75 72 70 60 75 69.7
38. Garcia, Julian L. 64 77 68 82 89 77 65 75 72.15
39. Garcia, Leon Mo. 77 86 71 80 60 82 65 75 71.85
40. Garcia, Pedro V. 76 82 73 81 74 83 60 85 73.6
41. Garcia, Santiago C. 62 91 79 75 72 75 65 80 71.8
42. Genoves, Pedro 75 83 70 78 87 76 55 80 72.7
43. Gonzales, Amado P. 75 71 71 75 86 75 60 75 72.65
44. Guia, Odon R. de 77 76 66 81 74 76 60 75 70.9
45. Fernandez, Simeon 62 68 71 80 74 90 65 75 70.85
46. Jakosalem, Filoteo 82 83 73 82 61 87 65 70 73.6
47. Jesus, Felipe D. de 75 83 67 79 78 85 60 75 72.45
48. Jocom, Jacobo M. 77 77 74 77 74 64 55 85 70.65
49. Juares, Nicolas 77 84 56 76 73 82 60 85 70
50. Kalalang, Remigio 65 75 74 80 70 70 65 85 70.3
51. Layumas, Vicente L. 67 84 65 75 89 66 60 80 70.3
52. Leyson, Amancio F. 69 83 75 76 81 75 65 75 73.15
53. Libanan, Marcelino 71 83 61 77 80 81 65 85 71.75
54. Lim, Jose E. 77 77 72 76 72 64 65 70 71.15
55. Lim, Jose F. 70 75 62 83 80 71 65 80 70.4
56. Linao, Mariano M. 66 84 76 78 80 75 60 75 71.75
57. Lopez, Angelo P. 67 81 75 72 79 81 55 80 71
58. Lopez, Eliezar M. 77 75 60 75 77 85 60 75 70.7
59. Lopez, Nicanor S. 72 71 70 78 77 84 60 75 71.55
60. Manoleto, Proceso D. 72 70 65 78 81 90 60 80 71.95
61. Mancao, Alfredo P. 67 64 71 83 76 76 65 80 70.95
62. Manera, Mariano A. 75 78 75 75 68 79 60 65 71
63. Mercado, Arsenio N. 67 64 71 83 76 76 65 80 70.95
64. Miranda, Benjamin G. 76 81 67 82 74 77 65 80 72.55
65. Manad, Andres B. 77 75 68 82 69 72 65 75 71.15
1948
66. Orosco, Casimiro P. 72 84 69 81 70 82 65 75 71.9
67. Padua, Manuel C. 76 76 68 80 79 79 50 75 70.1
68. Palang, Basilio S. 71 75 82 71 55 87 55 75 69.6
69. Palma, Cuadrato 62 75 69 93 80 79 55 80 69.5
70. Pañganiban, Jose V. 67 83 61 81 91 74 60 75 70.6
71. Pareja, Felipe 66 71 75 81 67 74 60 70 68.75
72. Patalinjug, Eriberto 73 77 78 73 78 71 55 75 71.25
73. Paulin, Jose C. 66 69 71 77 83 82 65 75 72.1
74. Pido, Serafin C. 72 78 63 80 71 85 70 80 72.05
75. Pimentel, Luis P. 77 75 76 81 76 68 55 80 71.6
76. Plantilla, Rodrigo C. 72 78 68 89 79 81 65 85 73.55
77. Regalario, Benito B. 72 80 64 80 75 81 55 80 69.55
78. Robis, Casto P. 62 77 74 73 68 80 70 80 70.9
79. Rodil, Francisco C. 68 69 70 81 76 75 65 75 70.75
80. Rodriguez, Mariano I. 80 75 69 80 72 80 65 80 73.35
81. Romero, Crispulo P. 78 75 66 77 76 83 65 75 72.85
82. Saez, Porfirio D. 75 75 72 81 69 77 60 75 71
83. Saliguma, Crisogono 79 79 74 78 69 65 65 70 71.8
D.
84. Samano, Fortunato A. 75 84 72 77 70 82 60 75 71.9
85. Santos, Faustina C. 71 68 68 76 75 85 55 75 69.5
86. Santos, Josefina R. 68 69 76 71 77 82 65 75 72.3
87. Seludo, Ananias G. 75 80 69 79 77 82 65 75 73.25
88. Semilia, Rafael I. 68 85 55 83 89 79 65 80 71.25
89. Telan, Gaudencio 77 79 70 75 70 75 60 75 70.85
90. Tesorero, Leocadio T. 75 71 63 75 82 62 65 63 69.65
91. Torre, Valentin S. de la 85 81 71 76 69 65 55 70 70.4
92. Torres, Ariston L. 78 71 72 81 61 84 55 85 70.4
93. Veyra, Zosimo C. de 70 75 71 79 65 80 65 80 70.65
94. Viado, Jose 67 70 74 75 75 90 55 80 70.7
95. Villacarlos, Delfin A. 73 87 71 82 69 70 75 85 73.85
96. Villamil, Leonor S. 73 81 76 86 86 73 55 85 73.6
97. Zabala, Amando A. 76 70 67 75 76 76 60 75 70.6
1950
MRD- Cruz, Filomeno de la 70 71 78 81 76 72 64 96 73.4
98.
99. Española, Pablo S. 71 78 55 76 85 69 65 93 70.2
100. Foronda, Clarencio J. 60 78 68 79 84 88 62 93 71.9
101. Hechanova, Vicente 59 76 75 75 69 68 75 96 71.3
MRD- Peñalosa, Osias R. 80 78 61 76 61 77 66 85 70.2
102.
103. Sarmiento, Floro A. 65 86 63 82 89 72 60 72 70.15
MRD- Torre, Catalino P. 75 85 68 78 69 67 65 69 70.25
104.
105. Ungson, Fernando S. 61 87 75 70 57 85 83 82 72.8
1951
106. Abasolo, Romulo 77 70 64 65 76 70 76 64 71.7
107. Adeva, Daniel G. 75 59 74 65 69 51 78 67 70.4
108. Aguilar, Vicente Z. 73 63 68 75 70 69 75 75 71.25
109. Amodia, Juan T. 75 76 66 75 76 60 77 76 72.35
MRD- Añosa, Pablo S. 76 78 63 75 74 61 75 79 71.6
110.
111. Antiola, Anastacio R. 68 76 75 70 71 70 81 66 73.05
112. Aquino, S. Rey A. 70 71 71 60 74 62 76 77 71.1
113. Atienza, Manuel G. 71 78 68 80 86 51 82 75 73.85
114. Avanceña, Alfonso 71 71 65 75 70 72 78 80 71.8
MRD- Balacuit, Camilo N. 75 73 75 70 72 65 75 76 73.25
115.
116. Barinaga, Jeremias L. 68 69 73 70 74 50 80 79 71.2
MRD- Barrientos, Ambrosio 76 60 67 55 74 63 77 62 70.25
117. D.
MRD- Benitez, Tomas P. 67 75 75 60 73 72 75 78 72.2
118.
119. Biason, Sixto F. 73 82 67 65 66 72 77 68 71.25
MRD- Briñas, Isagani A. 71 69 74 70 76 52 79 72 71.95
120.
121. Buela, Arcadio P. 72 77 61 70 71 58 79 71 69.75
122. Cabilao, Leonardo S. 73 50 75 75 75 60 71 79 71.25
123. Cabrera, Ireneo M. 75 66 70 65 72 81 70 79 72.4
124. Cacacho, Emilio V.
125. Calilung, Soledad C. 64 73 73 80 73 57 75 59 69.65
MRD- Calimlim, Jose B. 64 73 73 80 73 57 75 59 69.65
126.
127. Calimlim, Pedro B. 66 82 69 60 69 52 83 75 70
128. Camello, Sotero H. 70 77 63 65 75 66 84 64 71.55
129. Campos, Juan A. 71 88 70 75 64 69 71 62 70.15
130. Castillo, Antonio del 78 78 70 60 79 67 69 76 72.65
MRD- Castillo, Dominador 75 61 72 75 74 71 67 66 71.1
131. Ad.
MRD- Castro, Jesus B. 72 86 72 75 65 75 76 71 72.85
132.
133. Casuga, Bienvenido B. 75 72 72 70 69 61 75 60 70.95
134. Cabangbang, Santiago 77 67 61 80 73 59 83 76 72.2
B.
135. Cruz, Federico S. 69 74 75 75 68 65 76 70 71.65
136. Dacanay, Eufemio P. 70 73 62 75 72 69 85 71 72.05
137. Deysolong, Felisberto 66 62 72 75 70 62 83 62 70.85
MRD- Dimaano, Jr., Jose N. 78 79 63 75 73 75 81 59 73.5
138.
139. Espinosa, Domingo L. 78 63 58 70 70 67 87 63 71.6
MRD- Farol, Evencia C. 80 78 66 75 81 72 62 73 72.25
140.
141. Felix, Conrado S. 71 71 75 65 70 58 75 69 70.75
142. Fernan, Pablo L. 67 88 66 85 73 68 78 75 72.35
143. Gandioco, Salvador G. 64 58 66 65 76 70 89 75 72.1
144. Gastardo, Crispin B. 70 69 68 75 78 66 86 72 73.9
145. Genson, Angelo B. 75 57 73 65 67 54 78 56 69.55
146. Guiani, Guinald M. 68 60 75 65 74 67 75 77 71.5
147. Guina, Graciano P. 66 69 67 60 78 52 83 61 69.6
MRD- Homeres, Praxedes P. 74 74 75 75 71 69 75 71 73.35
148.
149. Ibarra, Venancio M. 60 75 74 70 74 70 80 75 71.9
150. Imperial, Monico L. 72 78 75 75 72 56 82 77 73.7
MRD- Ibasco, Jr., Emiliano M. 71 70 63 85 71 60 85 53 70.85
151.
152. Inandan, Fortunato C. 77 77 67 53 73 75 79 57 72.5
153. Jimenez, Florencio C. 75 70 70 75 72 61 75 78 72.05
154. Kintanar, Woodrow M. 70 83 72 65 76 73 75 69 72.95
155. Languido, Cesar V. 63 71 63 85 70 61 85 79 70.55
156. Lavilles, Cesar L. 61 89 75 55 73 63 75 78 70.55
157. Llenos, Francisco U. 64 70 65 60 72 65 92 75 71.75
158. Leon, Marcelo D. de 63 73 60 85 75 75 90 70 72.75
159. Llanto, Priscilla 72 68 60 65 76 67 84 68 71.35
160. Machachor, Oscar 68 59 78 70 67 57 75 75 70.15
MRD- Magsino, Encarnacion 77 66 70 70 76 71 75 61 72.75
161.
MRD- Maligaya, Demetrio M. 70 61 75 65 75 50 91 51 72.3
162.
163. Manio, Gregorio 67 67 69 80 71 67 75 75 70.65
164. Puzon, Eduardo S. 72 82 60 60 69 70 68 72 62.05
MRD- Marcial, Meynardo R. 66 75 74 70 75 67 81 75 73.15
165.
166. Martin, Benjamin S. 68 72 63 75 69 63 84 62 70.1
MRD- Monterroyo, Catalina 70 80 75 80 76 66 82 51 73.95
167. S.
MRD- Montero, Leodegario 73 67 66 80 81 65 81 75 73.75
168. C.
169. Monzon, Candido T. 70 72 74 75 67 70 77 69 72.05
170. Natividad, Alberto M. 73 79 68 65 73 69 75 79 72.2
MRD- Navallo, Capistrano C. 70 72 68 85 81 66 71 74 72.1
171.
172. Nisce, Camilo Z. 66 66 75 65 79 68 85 62 73.5
MRD- Ocampo, Antonio F. de 75 81 76 65 74 67 75 69 73.75
173.
174. Olaviar, Jose O. 72 70 69 55 66 70 77 75 70.5
MRD- Perez, Cesario Z. 75 76 66 80 72 63 82 69 72.95
175.
176. Pogado, Causin O. 70 66 65 70 75 64 75 70 69.95
177. Ramos-Balmori, 75 73 62 65 78 59 75 66 70.2
Manuela
178. Recinto, Ireneo I. 73 76 68 75 74 68 80 53 72.3
MRD- Redor, Francisco K. 62 77 73 75 69 64 76 69 70
179.
MRD- Regis, Deogracias A. 76 74 68 65 65 65 88 75 73.35
180.
181. Rigor, Estelita C. 67 78 61 80 71 77 79 65 70.9
MRD- Rimorin-Gordo, Estela 70 72 62 60 88 66 67 79 70.15
182.
183. Rosario, Prisco del 70 64 70 70 72 73 85 57 72.65
184. Rosario, Vicente D. del 75 91 65 75 68 68 79 62 72.2
185. Saavedra, Felipe 73 80 63 75 76 73 68 62 70.35
186. Salazar, Alfredo N. 66 72 73 75 67 68 77 69 70.85
187. Salem, Romulo R. 77 81 72 65 73 60 76 75 73
188. Foz, Julita A. 75 72 75 75 65 70 76 64 72.5
189. Santa Ana, Candido T. 77 69 65 75 81 75 70 75 73
190. Santos, Aquilino 72 66 69 65 68 70 81 71 71.7
191. Santos, Valeriano V. 76 72 75 75 68 62 76 79 73.1
192. Suico, Samuel 73 79 72 75 71 59 84 65 73.3
193. Suson, Teodorico 74 68 66 80 66 59 79 67 70.35
194. Tado, Florentino P. 64 76 67 65 76 72 76 53 69.7
195. Tapayan, Domingo A. 69 72 69 70 76 73 82 79 73.75
MRD- 67 60 71 75 79 67 84 60 72.7
Tiausas, Miguel V.
196.
197. Torres, Carlos P. 68 71 71 70 70 63 82 71 71.6
198. Tria, Hipolito 69 72 75 60 69 54 78 66 70.05
199. Velasco, Avelino A. 65 72 75 75 71 67 78 76 72.1
200. Villa, Francisco C. 65 80 73 75 68 79 65 75 70.2
201. Villagonzalo, Job R. 78 67 74 65 72 51 69 71 70.25
202. Villarama, Jr., Pedro 75 74 75 55 75 66 67 75 71.45
1952
203. Abacon, Pablo 75 72 78 81 78 72 64 55 72.7
MRP- Abad, Agapito 73 76 73 85 75 63 62 75 70.95
204.
MRP- Abella, Ludovico B. 70 81 76 81 70 66 77 58 72.7
205.
MRP- Abellera, Geronimo F. 75 79 79 87 76 51 63 70 71.7
206.
MRP- Abenojar, Agapito N. 71 72 78 84 70 75 69 70 72.9
207.
208. Alandy, Doroteo R. 64 83 93 91 68 59 60 60 71.2
209. Alano, Fabian T. 70 83 61 83 72 87 72 70 71.9
MRP- Alcantara, Pablo V. 71 79 80 81 73 70 72 62 73.65
210.
211. Arcangel, Agustin Ag. 75 85 71 73 76 65 68 65 71.85
212. Acosta, Dionisio N. 75 81 78 87 56 65 77 70 72.8
MRP- Abinguna, Agapito C. 66 85 80 84 75 58 76 75 73.65
213.
214. Adove, Nehemias C. 76 86 78 77 66 78 69 62 73.55
215. Adrias, Inocencio C. 75 83 61 88 76 67 79 75 73.4
216. Aglugub, Andres R. 75 83 73 88 72 62 72 62 72.65
217. Andrada, Mariano L. 76 85 66 87 63 77 75 77 73.
MRP- Almeda, Serafin V. 72 72 75 81 61 67 73 65 70.75
218.
219. Almonte-Peralta, 73 71 72 91 75 67 65 53 70.7
Felicidad
MRP- Amodia, Juan T. 75 79 68 85 62 64 75 78 71.4
220.
MRP- Antonio, Felino A. 71 76 81 83 79 52 72 70 73.3
221.
MRP- Antonio, Jose S. 75 92 90 68 65 64 68 60 73.75
222.
223. Añonuevo, Ramos B. 71 87 78 81 64 63 74 76 72.7
224. Aquino, S. Rey A. 67 77 57 78 69 70 69 80 67.7
225. Arteche, Filomeno D. 78 83 50 89 76 77 70 70 70.8
MRP- Arribas, Isaac M. 75 78 70 81 73 70 67 78 72.2
226.
MRP- Azucena, Ceferino D. 72 67 78 89 72 67 77 65 73.95
227.
228. Atienza, Ricardo 72 87 70 79 66 55 75 75 70.85
229. Balacuit, Camilo N. 75 78 89 75 70 54 66 75 73.3
MRP- Baclig, Cayetano S. 77 84 83 80 69 70 61 65 73
230.
231. Balcita, Oscar C. 75 77 79 90 64 60 67 50 70.65
232. Barilea, Dominador Z. 71 67 82 77 64 61 65 80 70.5
MRP- Banta, Jose Y. 75 80 77 81 75 63 71 75 73.95
233.
MRP- Barrientos, Ambrosio 76 70 67 80 67 65 70 81 70.7
234. D.
235. Batucan, Jose M. 66 76 78 88 62 76 67 78 71.2
236. Bautista, Atilano C. 70 82 84 85 58 61 71 62 71.25
237. Bautista, Celso J. 71 68 63 87 80 67 80 70 72.75
238. Belderon, Jose 76 81 76 92 70 66 67 62 72.65
MRP- Belo, Victor B. 76 77 64 73 75 71 76 76 72.85
239.
MRP- Bejec, Conceso D. 79 80 73 82 63 77 75 50 73.15
240.
MRP- Beltran, Gervasio M. 72 75 81 73 75 57 75 80 73.95
241.
MRP- Benaojan, Robustiano 74 84 77 84 75 63 68 62 72.85
242. O.
MRP- Beriña, Roger C. 70 80 79 79 68 72 64 78 71.85
243.
MRP- Bihis, Marcelo M. 75 86 65 92 64 64 84 75 73.45
244.
MRP- Binaoro, Vicente M. 73 69 78 83 73 59 70 82 72.75
245.
MRP- Bobila, Rosalio B. 76 86 76 83 68 59 71 78 73.05
246.
247. Buenafe, Avelina R. 78 80 75 75 70 55 72 80 72.75
248. Bueno, Anastacio F. 73 78 71 78 71 67 71 60 71.15
249. Borres, Maximino L. 67 85 62 91 72 63 76 80 70.9
MRP- Cabegin, Cesar V. 72 71 76 75 74 70 71 60 72.2
250.
MRP- Cabello, Melecio F. 72 78 78 89 58 70 67 71 70.5
251.
MRP- Cabrera, Irineo M. 79 88 53 91 71 85 75 76 73.3
252.
253. Cabreros, Paulino N. 71 79 83 84 60 62 71 50 70.85
254. Calayag, Florentino R. 69 79 66 88 69 75 68 76 70.6
MRP- Calzada, Cesar de la 76 72 80 67 62 71 66 62 70.85
255.
256. Canabal, Isabel 70 82 81 77 78 51 75 75 73.7
MRP- Cabugao, Pablo N. 76 87 69 80 58 64 78 75 71.8
257.
258. Calañgi, Mateo C. 73 93 71 87 70 66 69 62 71.8
259. Canda, Benjamin S. 72 71 77 90 62 75 66 82 71.95
260. Cantoria, Eulogio 71 80 71 89 70 55 72 75 71
261. Capacio, Jr., Conrado 67 78 71 90 65 75 72 60 70.65
262. Capitulo, Alejandro P. 75 70 53 87 78 63 76 91 71.2
MRP- Calupitan, Jr., Alfredo 75 93 81 76 64 75 68 56 73.15
263.
MRP- Caluya, Arsenio V. 75 86 70 87 77 52 77 82 73.9
264.
MRP- Campanilla, Mariano B. 80 75 78 77 73 71 63 76 73.65
265.
MRP- Campos, Juan A. 66 85 83 84 67 61 80 57 73.25
266.
267. Cardoso, Angelita G. 78 71 73 76 79 56 69 60 71.8
268. Cartagena, Herminio 71 72 65 89 64 73 80 70 71.65
R.
MRP- Castro, Daniel T. 65 75 77 76 85 60 75 69 73.15
269.
270. Cauntay, Gaudencio V. 70 78 72 73 77 69 64 80 71.2
271. Castro, Pedro L. de 70 68 69 87 76 75 72 70 73.35
272. Cerio, Juan A. 75 82 75 86 60 54 76 75 71.75
273. Colorado, Alfonso R. 68 75 80 74 77 66 67 80 72.6
274. Chavez, Doroteo M. 73 65 79 84 73 69 66 84 73.1
275. Chavez, Honorato A. 77 76 79 86 74 53 71 75 73.65
MRP- Cobangbang, Orlando 69 81 74 82 76 61 78 80 73.85
276. B.
277. Cortez, Armando R. 78 60 88 86 60 66 69 64 73.1
278. Crisostomo, Jesus L. 76 87 74 76 62 55 76 66 71.45
MRP- Cornejo, Crisanto R. 68 87 78 86 79 50 80 60 73.7
279.
MRP- Cruz, Raymundo 75 81 79 85 72 57 68 75 72.95
280.
MRP- Cunanan, Jose C. 78 92 63 83 76 72 68 65 72.4
281.
282. Cunanan, Salvador F. 70 82 64 92 67 75 73 76 71.45
283. Cimafranca, Agustin B. 71 76 76 80 70 71 75 71 73.35
284. Crisol, Getulio R. 70 91 78 85 68 55 71 50 70.8
MRP- Dusi, Felicisimo R. 76 82 69 82 66 62 80 71 72.85
285.
MRP- Datu, Alfredo J. 70 75 72 86 80 55 68 79 71.5
286.
287. Dacuma, Luis B. 71 67 87 83 71 50 65 70 71.25
MRP- Degamo, Pedro R. 73 80 82 74 80 67 67 57 73.65
288.
289. Delgado, Vicente N. 70 84 82 84 77 52 73 50 72.65
MRP- Diolazo, Ernesto A. 75 83 86 73 54 54 75 75 72.25
290.
291. Dionisio, Jr., Guillermo 73 84 64 89 71 78 75 66 72.8
MRP- Dichoso, Alberto M. 71 77 71 81 69 75 80 70 73.65
292.
MRP- Dipasupil, Claudio R. 70 76 82 73 79 70 72 56 73.9
293.
MRP- Delgado, Abner 75 84 63 67 64 60 70 72 68.35
294.
MRP- Domingo, Dominador 70 69 81 82 68 63 71 75 72.2
295. T.
296. Ducusin, Agapito B. 70 78 53 88 75 77 62 76 68.05
MRP- Duque, Antonio S. 75 77 78 86 76 72 64 75 73.9
297.
298. Duque, Castulo 75 80 73 83 66 67 65 66 70.65
299. Ebbah, Percival B. 70 80 85 76 66 63 76 75 73.95
300. Edisa, Sulpicio 65 77 75 89 75 62 75 65 72
301. Edradan, Rosa C. 70 75 84 84 71 59 69 86 73.4
MRP- Enage, Jacinto N. 66 70 88 93 72 67 65 75 73.2
302.
MRP- Encarnacion, Alfonso 75 86 73 81 63 77 69 75 72.65
303. B.
304. Encarnacion, Cesar 65 78 58 68 66 64 75 78 67.1
305. Estoista, Agustin A. 78 76 74 86 58 67 70 76 71.7
MRP- Fabros, Jose B. 66 75 80 82 80 71 67 70 73.05
306.
MRP- Fajardo, Balbino P. 77 69 82 83 65 60 75 75 73.9
307.
308. Fajardo, Genaro P. 70 79 77 79 79 50 73 75 72.5
309. Evangelista, Felicidad 75 75 72 87 63 63 77 70 72.15
P.
310. Familara, Raymundo Z. 68 75 87 83 64 65 68 65 71.85
311. Fariñas, Dionisio 70 78 89 66 65 75 70 50 72.75
312. Favila, Hilario B. 71 84 74 70 75 67 73 59 72.2
MRP- Feliciano, Alberto I. 71 69 70 85 69 81 72 70 72.25
313.
MRP- Fernando, Lope F. 73 77 86 79 70 76 64 50 73
314.
MRP- Flores, Dionisio S. 78 72 77 83 67 60 68 73 72.05
315.
MRP- Fortich, Benjamin B. 70 82 70 70 78 65 64 75 70.35
316.
MRP- Fuente, Jose S. de la 76 88 72 74 60 71 79 79 73.55
317.
318. Fohmantes, Nazario S. 72 79 71 77 68 61 76 60 70.9
MRP- Fuggan, Lorenzo B. 76 81 74 69 71 71 73 60 72.85
319.
320. Gabuya, Jesus S. 70 83 82 83 70 63 75 65 73.75
321. Galang, Victor N. 69 83 84 76 70 57 71 60 71.95
322. Gaerlan, Manuel L. 73 87 77 90 67 61 72 75 73.15
323. Galem, Nestor R. 72 79 86 78 60 61 75 70 73.05
324. Gallardo, Jose Pe B. 75 88 75 75 63 70 70 65 71.85
MRP- Gallos, Cirilo B. 70 78 84 91 80 51 65 70 72.85
325.
326. Galindo, Eulalio D. 70 89 87 65 78 71 62 62 73.4
327. Galman, Patrocinio G. 72 72 80 85 71 56 70 53 71.15
328. Gamalinda, Carlos S. 76 79 81 86 67 63 69 55 72.55
329. Gamboa, Antonio G. 71 67 70 72 76 60 75 68 70.95
330. Gannod, Jose A. 69 80 75 81 68 62 73 68 71.25
MRP- Garcia, Matias N. 67 78 74 90 79 59 76 65 72.8
331.
MRP- Ganete, Carmelo 75 87 77 82 74 57 68 81 73.3
332.
333. Gilbang, Gaudioso R. 75 67 80 82 67 57 64 70 70.5
334. Gofredo, Claro C. 68 78 72 86 78 52 70 76 70.9
335. Gomez, Jose S. 71 76 71 81 76 63 69 62 70.85
MRP- Gosiaoco, Lorenzo V. 68 93 85 78 64 69 70 54 72.35
336.
MRP- Gonzales, Rafael C. 77 75 71 89 55 70 70 60 70.05
337.
MRP- Gracia, Eulalia L. de 66 68 90 84 77 59 69 65 73.3
338.
339. Grageda, Jose M. A. 70 85 72 67 70 60 73 73 70.75
340. Guzman, Juan de 75 86 69 84 64 79 75 76 73.6
MRP- Guzman, Mateo de 76 79 79 73 72 69 68 80 73.9
341.
342. Guzman, Salvador B. 71 61 74 72 61 66 78 75 70.75
343. Guzman, Salvador T. 75 84 64 81 74 61 78 58 71.75
de
344. Habelito, Geronimo E. 71 76 71 87 73 60 67 55 69.65
345. Hedriana, Naterno G. 75 68 84 76 66 58 76 60 72.9
346. Hernandez, Quintin B. 67 75 72 81 72 72 66 76 70.6
1952
347. Homeres, Agustin R. 73 84 65 86 70 77 63 76 70.7
348. Ines, Leonilo F. 65 88 71 88 77 73 61 70 70.55
349. Jamer, Alipio S. 68 75 83 89 80 61 65 50 72
MRP- Ibasco, Jr., Emiliano M. 75 65 68 85 76 70 83 54 73.8
350.
MRP- Jardinico, Jr., Emilio 73 86 72 78 82 67 67 64 72.8
351.
MRP- Jaen, Justiniano F. 76 75 78 84 71 66 70 77 73.85
352.
353. Jaring, Antonio S. 72 77 79 70 72 57 71 50 70.75
MRP- Javier, Aquilino M. 75 84 79 78 77 61 66 66 73.05
354.
355. Jomuad, Francisco 75 75 72 88 78 58 76 43 72.4
MRP- Jose, Nestor L. 78 61 64 73 68 76 64 80 69.7
356.
357. La Q, Jose M. 75 71 75 72 70 67 81 59 73.5
358. Leon, Brigido C. de 67 75 78 91 78 51 72 80 72.55
359. Leones, Constante B. 68 81 79 84 73 60 77 60 73
360. Liboro, Horacio T. 72 69 80 87 73 62 70 61 72.4
361. Llanera, Cesar L. 77 81 80 78 64 59 75 63 73
362. Lomontod, Jose P. 75 76 69 70 73 76 74 75 73.2
363. Luna, Lucito 70 75 69 83 59 53 74 75 68.4
MRP- Luz, Lauro L. 76 90 78 88 64 58 75 77 73.95
364.
MRP- Macasaet, Tomas S. 73 81 72 83 66 75 72 70 72.5
365.
366. Magbiray, Godofredo 80 67 84 76 70 62 65 68 73.05
V.
367. Majarais, Rodolfo P. 70 62 64 82 88 75 71 79 72.85
MRP- Makabenta, Eduardo 75 90 77 83 59 71 72 78 73.3
368.
MRP- Malapit, Justiniano S. 74 83 74 89 58 60 72 76 71.1
369.
370. Maloles, Iluminado M. 70 87 73 76 77 50 76 76 72.3
371. Maniquis, Daniel R. 75 80 73 91 69 71 65 70 72.1
372. Maraña, Arsenio 65 79 60 72 73 51 75 86 67.9
373. Marasigan, Napoleon 75 71 83 75 69 62 69 70 72.75
MRP- Marco, Jaime P. 75 67 74 76 64 75 75 57 71.9
374.
MRP- Martir, Osmundo P. 70 86 76 78 72 71 75 53 72.95
375.
MRP- Masancay, Amando E. 73 87 75 77 72 50 78 80 73.2
376.
MRP- Mati-ong, Ignacio T. 62 87 72 79 73 76 69 77 71.3
377.
378. Mara, Guillermo L. 70 78 78 89 75 67 66 65 72.35
MRP- Mercado, Felipe A. 73 77 82 82 78 52 69 85 73.9
379.
MRP- Miculob, Eugenio P. 70 82 73 86 77 52 79 65 72.8
380.
381. Mison, Rafael M. Jr., 79 78 73 75 71 68 69 53 71.95
MRP- Monponbanua, Antonio 79 79 68 88 64 78 69 83 73.1
382. D.
MRP- Montero, Leodegario 72 89 69 89 70 68 70 75 72.15
383. C.
384. Morada, Servillano S. 75 76 67 71 65 66 75 76 70.9
385. Mocorro, Generoso 78 84 78 84 60 73 68 70 73
MRP- Mosquera, Estanislao 75 78 75 85 72 55 77 66 73.15
386. L.
387. Motus, Rodentor P. 80 78 70 94 72 75 70 57 73.75
388. Macario, Pedro R. 70 67 74 86 78 63 72 66 72.15
MRP- Nadela, Geredion T. 72 64 64 81 73 50 75 75 69.15
389.
MRP- Nazareno, Romeo P. 67 70 71 76 76 79 75 57 72.05
390.
391. Nieto, Benedicto S. 69 79 77 77 72 62 76 76 72.9
MRP- Noguera, Raymundo 71 86 81 80 73 56 72 70 73.15
392.
MRP- Nodado, Domiciano R. 70 70 69 73 57 37 64 72 63.6
393.
394. Nono, Pacifico G. 67 77 78 67 75 59 71 76 71.35
MRP- Nuval, Manuel R. 78 72 67 90 72 68 78 67 73.65
395.
396. Ocampo, Augusto 75 90 77 72 69 55 65 67 60.7
397. Oliveros, Amado A. 72 75 68 72 84 50 75 79 71.9
398. Opiña, Jr., Pedro 76 77 74 67 73 66 68 70 71.85
MRP- Olaviar, Jose O. 70 62 85 81 74 50 68 79 71.8
399.
MRP- Olandesca, Per O. 70 91 76 87 72 66 70 79 73.45
400.
401. Orden, Apolonio J. 72 65 84 86 66 50 72 68 71.45
402. Ortiz, Melencio T. 71 75 78 81 66 67 70 78 72.1
MRP- Pablo, Fedelino S. 72 64 76 86 72 61 76 75 72.95
403.
404. Pacifico, Vicente V. 76 79 69 80 76 52 72 80 71.95
MRP- Paderna, Perfecto D. 75 69 72 75 78 58 75 70 72.6
405.
406. Padlan, Crispin M. 71 66 76 79 68 67 74 66 71.65
407. Padilla, Jose C. 70 65 67 82 78 75 78 75 73.3
408. Padilla, Jr., Estanislao 71 88 78 86 59 75 78 50 72.95
E.
MRP- Palma, Bartolome 67 81 80 82 71 75 69 75 73.25
409.
MRP- Papa, Angel A. 75 72 85 85 77 59 63 71 73.45
410.
MRP- Parayno, Mario V. 71 88 74 89 69 66 76 73 73.65
411.
412. Pariña, Santos L. 70 87 85 77 64 67 63 76 71.85
MRP- Pasion, Anastacio 63 80 68 81 82 79 76 58 72.55
413.
414. Pastrana, Rizal R. 69 76 71 76 68 63 77 83 71.65
MRP- Paulin, Jose O. 70 66 80 87 75 50 65 80 70.9
415.
MRP- Pelaez, Jr., Vicente C. 79 87 73 83 69 71 68 65 73.2
416.
417. Peña, Jesus 75 75 75 62 75 70 60 66 70.4
418. Perez, Toribio R. 71 64 81 92 69 58 67 70 71.25
419. Pestaño, Melquiades 77 81 74 87 59 68 76 75 73.2
MRP- Pido, Serafin C. 77 81 72 82 69 71 60 75 71.15
420.
421. Pinlac, Filemon 67 76 74 86 65 79 65 72 70.55
422. Poblete, Celso B. 72 79 82 76 66 64 74 50 72.15
MRP- Piza, Luz 68 70 75 87 74 67 64 75 70.8
423.
424. Puzon, Eduardo S. 72 80 81 69 72 53 67 70 71.05
425. Quetulio, Josefina D. 75 90 60 93 64 78 76 83 72.9
MRP- Quipanes, Melchor V. 69 88 79 82 65 62 71 66 71.55
426.
MRP- Quietson, Bayani R. 73 75 76 77 70 81 71 53 72.85
427.
428. Racho, Macario D. 68 75 81 82 78 53 66 54 70.55
429. Ramirez, Sabas P. 71 80 73 87 62 62 75 80 71.65
MRP- Raffiñan, Jose A. 80 83 79 79 62 72 68 65 73.25
430.
MRP- Ramos, Patricio S. 75 87 76 75 72 72 61 75 72.25
431.
MRP- Ramos-Balmori, 78 84 76 90 48 75 80 65 73.45
432. Manuela
MRP- Raro, Celso 75 81 76 67 75 77 55 77 71.4
433.
MRP- Rayos, Victor S. 75 86 79 91 71 67 67 70 73.9
434.
435. Revilla, Mariano S. 75 78 81 90 70 54 69 81 73.35
436. Reyes, Abdon L. 72 64 81 78 76 73 69 53 72.85
437. Reyes, Domingo B. 72 87 78 83 72 75 62 70 72.7
438. Reyes, Francisco M. 75 85 84 68 75 71 68 50 73.9
439. Reyes, Lozano M. 80 57 78 79 78 65 64 79 73.35
MRP- Reyes, Oscar R. 75 75 82 82 76 64 68 60 73.65
440.
441. Rigonan, Cesar V. 71 85 65 86 75 70 76 70 72.7
442. Rivera, Honorio 71 56 70 90 71 65 75 71 71.2
MRP- Rivero, Buenaventura 72 88 72 94 68 73 66 80 72.6
443. A.
MRP- Robles, Enrique 75 77 75 77 82 64 69 70 73.7
444.
445. Rodriguez, Orestes 76 75 76 63 69 77 65 78 72.25
Arellano
446. Roldan, Jose V. 67 80 79 83 73 71 75 70 73.9
447. Rosario, Adelaida R. 80 75 65 70 68 72 80 70 73.15
del
448. Rosario, Restituto F. 75 75 79 90 68 65 66 63 72.1
del
MRP- Sabelino, Conrado S. 71 81 69 75 77 71 75 70 72.95
449.
450. San Juan, Damaso 77 86 72 89 59 76 65 72 71.6
451. Sañiel, Felix L. 72 93 76 80 67 75 66 62 72.1
452. Samaniego, Jesus B. 75 80 76 72 60 67 68 70 70.6
MRP- Sandoval, Emmanuel 75 83 70 83 77 67 77 60 73.95
453. M.
MRP- Sanidad, Emmanuel Q. 71 75 81 90 62 64 76 68 72.95
454.
455. Santiago, Jr., Cristobal 75 76 84 93 63 65 59 70 71.8
456. Santillan, Juanito Ll. 76 89 83 83 63 58 65 52 71.25
MRP- Santos, Rodolfo C. 75 75 78 82 73 76 66 70 73.7
457.
MRP- Santos, Ruperto M. 67 54 69 76 63 64 71 60 66.75
458.
MRP- Santos, Aquilino C. 72 71 73 79 73 79 71 85 73.8
459.
MRP- Santos, Rufino A. 75 81 79 85 74 72 66 54 73.3
460.
461. Suanding, Bantas 75 67 67 92 79 59 76 76 73.1
MRP- Sulit, Feliz M. 76 79 76 78 72 75 68 67 73.5
462.
463. Songco, Felicisimo G. 70 68 82 84 60 69 76 65 73.35
464. Soriano, Aniceto S. 64 79 77 80 80 53 70 65 70.7
465. Suarez, Pablo D. 73 85 70 87 76 70 64 70 71.9
MRP- Sybico, Jesus L. 79 70 70 72 75 75 72 60 73.05
466.
467. Tabaque, Benjamin R. 69 68 77 79 74 68 72 60 71.85
MRP- Tan Kiang, Clarita 81 79 72 80 62 75 73 80 73.95
468.
MRP- Tando, Amado T. 71 82 78 83 71 61 71 60 72
469.
470. Tasico, Severo E. 71 69 75 89 70 75 67 63 71.65
471. Tiburcio, Ismael P. 73 82 72 93 76 57 68 54 71.15
MRP- Tiongson, Federico T. 70 70 76 84 77 75 75 50 73.45
472.
MRP- Tolentino, Jesus C. 75 89 63 84 85 73 73 50 73.4
473.
474. Torrijas, Alfredo A. 77 66 67 83 68 75 71 63 71.3
MRP- Tobias, Artemio M. 69 58 74 81 71 55 65 57 67.55
475.
MRP- Trillana, Jr., Apolonio 76 86 76 86 70 68 75 50 73.8
476.
MRP- Trinidad, Manuel O. 66 91 83 75 63 66 67 65 70.8
477.
478. Trinidad, Pedro O. 66 78 78 85 78 51 64 75 70.8
MRP- Udarbe, Flavio J. 80 82 77 82 67 56 68 75 72.6
479.
480. Umali, Osmundo C. 68 75 81 80 71 69 68 60 71.7
481. Umayam, Juanito C. 77 75 87 85 56 56 66 60 71
MRP- Usita, Gelacio U. 75 72 75 74 73 76 71 70 73.55
482.
483. Valino, Francisco M. 72 81 80 84 62 78 71 75 73.7
484. Varela, Dominador M. 67 75 81 86 72 57 81 70 73.85
485. Vega, Macairog L. de 78 62 79 87 70 70 71 65 73.8
MRP- Velasco, Emmanuel D. 71 80 74 85 60 66 76 76 71.85
486.
487. Velez, Maria E. 73 70 89 80 56 50 72 67 71.05
MRP- Venal, Artemio V. 78 91 58 67 76 55 75 73 73.65
488.
489. Venus, Conrado B. 69 81 74 85 62 66 72 77 77.05
MRP- Verzosa, Federico B. 75 79 72 88 76 68 74 59 73.7
490.
MRP- Villafuerte, Eduardo V. 75 83 70 76 64 64 75 65 71.2
491.
MRP- Villanueva, Cecilio C. 75 85 79 88 66 77 67 70 73.95
492.
493. Villar, Custodio R. 73 69 70 88 76 66 69 50 70.75
MRP- Villaseñor, Leonidas F. 80 85 67 77 62 75 76 73 73.15
494.
495. Viterbo, Jose H. 80 77 65 93 70 65 65 65 70.65
496. Yaranon, Pedro 70 77 76 85 72 50 75 75 71.85
MRP- Yasay, Mariano R. 75 75 72 76 63 77 70 60 71.1
497.
MRP- Ygay, Venancio M. 73 80 83 84 62 59 72 77 72.65
498.
499. Yulo, Jr., Teodoro 73 82 78 75 60 81 75 75 73.95
500. Zamora, Alberto 70 65 76 79 62 77 69 82 71.3
501. Rigonan, Felipe C. 70 79 69 89 76 62 71 64 71.2

A list of those who petitioned for the consolidation of their grades in subjects passed in
previous examinations, showing the years in which they took the examinations together
with their grades and averages, and those who had filed motions for reconsideration
which were denied, indicated by the initials MRD, follows:

PETITIONERS UNDER REPUBLIC ACT NO. 72

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.

Av.
1. Amao, Sulpicio M.
1946 68 67 76 76 73 73 49 50 66.5
1950 59 80 67 77 62 80 71 57 67.4
2. Baldo, Olegario Ga.
1951 65 76 58 55 59 63 75 72 64.9
1952 65 68 75 84 72 59 73 57 69.75
1953 57 74 68 68 76 52 71 76 66.7
3. Blanco, Jose B.
MRD-1949 75 75 70 75 77 76 60 90 72.15
1951 64 71 58 65 68 70 75 71 66.95
4. Condeno, Mateo
1950 71 80 62 75 75 81 55 92 69.3
1951 70 60 61 65 77 64 67 81 67.85
5. Ducusin, Agapito B.
MRD-1949 69 70 76 73 76 71 55 60 68.65
1950 60 71 55 67 67 75 56 89 68.1
6. Garcia, Manuel N.
MRD-1949 60 70 82 79 70 69 60 80 69.25
1950 57 65 51 69 54 85 56 84 60.3
7. Luna, Lucito A.
1946 63 53 69 76 75 76 57 69 66.55
1952 70 75 69 83 59 53 74 75 68.4
8. Maraña, Arsenio s.
1949 72 68 68 75 75 72 60 75 69.35
1952 65 79 60 72 73 51 75 86 67.9
9. Montano, Manuel M.
1951 61 60 58 60 70 63 75 64 64.8
1952 70 77 65 79 66 52 70 50 66.4
1953 78 64 66 68 81 50 71 78 70.65
10. Peña, Jesus S.
1950 25 75 45 75 45 52 46 71 46.2
1951 70 77 65 79 66 52 70 50 66.4
1952 75 75 75 62 75 70 60 66 70.4
11. Placido, Sr., Isidro
1950 68 78 70 75 69 70 58 69 67.75
1951 65 62 75 60 73 57 75 71 66.8
12. Rementizo, Filemon S.
1949 65 75 72 75 60 75 55 85 66.65
1951 68 57 48 60 91 66 55 75 64.05
1952 68 53 68 67 58 56 75 64 65.7
13. Amao, Sulpicio M.
1952 67 80 51 69 69 77 73 53 66.35
1953 65 67 78 74 75 62 69 80 70.9
14. Rodulfa, Juan T.
1951 67 60 70 65 68 56 75 66 67.75
1952 70 71 67 78 67 75 71 70 70.1
15. Sanchez, Juan J.
1948 39 69 82 75 76 72 55 50 63.5
MRD-1949 67 56 69 75 72 77 60 75 68
1951 70 59 55 60 68 57 78 67 65.8
16. Santos, Constantino
1952 62 76 54 82 72 77 66 65 66.65
1953 73 71 70 65 78 64 65 78 70.4
17. Santos, Salvador H.
1951 60 64 55 70 68 52 70 75 62.85
1952 75 64 70 81 76 55 61 75 69.1
 1953 70 71 79 65 72 54 66 80 70
18. Sevilla, Macario C.
MRD-1948 50 64 76 66 66 69 60 52 63.1
MRD-1949 47 66 78 64 71 86 65 85 68
1950 35 65 40 75 63 57 27 49 45
MRD-1951 68 59 72 55 69 65 75 75 69.3
1953 70 73 74 70 81 56 69 71 71.05

Finally, with regards to the examinations of 1953, while some candidates--85 in all--presented
motions for reconsideration of their grades, others invoked the provisions of Republic Act No.
972. A list of those candidates separating those who filed mere motions for reconsideration (56)
from those who invoked the aforesaid Republic act, is as follows:

1953 PETITIONERS FOR RECONSIDERATION

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.

Av.
1. Acenas, Calixto R. 73 70 68 62 82 51 67 77 73.45
2. Alcantara, Pedro N. 67 70 75 85 87 54 71 80 72.8
3. Alejandro, Exequiel 67 72 71 75 80 76 75 77 73.4
4. Andres, Gregorio M. 70 73 86 58 79 50 71 78 72.7
5. Arnaiz, Antonio E. 66 80 76 58 79 68 77 81 73.4
6. Asis, Floriano U. de 66 78 75 81 77 55 73 69 71.25
7. Bacaiso, Celestino M. 71 65 76 68 76 50 75 70 70.95
8. Bala, Florencio F. 64 82 47 70 82 58 75 82 67
9. Baldo, Olegario A. 57 74 68 68 76 52 71 76 66.7
10. Barrios, Benjamin O. 65 71 76 75 80 62 83 73 73.95
11. Buhay, Eduardo L. 73 76 71 91 76 61 74 78 73.35
12. Burgos, Dominador C. 72 80 89 61 66 37 69 68 70.05
13. Cariño, Eldo J. 79 81 60 75 74 74 76 74 73
14. Casar, Dimapuro 67 73 84 79 77 61 71 74 73.35
15. Castañeda, Gregorio 70 73 80 71 75 70 73 78 73.95
16. Estrellado, Benjamin R. 67 79 64 73 82 62 71 74 70.2
17. Fabunan, Edilberto C. 70 72 68 69 77 60 76 74 71.1
18. Feril, Domingo B. 75 71 84 65 70 60 65 70 71.6
19. Fernandez, Alejandro G. 65 75 87 80 81 63 61 80 72.8
20. Gapus, Rosita S. (Miss) 76 80 86 77 64 74 66 69 73.9
21. Garcia, Rafael B. 70 86 70 75 73 63 73 75 71.65
22. Gracia, Miguel L. de 73 68 75 59 80 51 72 71 71
23. Gungon, Armando G. 68 76 76 84 77 57 77 83 73.6
24. Gutierrez, Antonio S. 68 77 66 70 72 59 71 74 69.1
25. Ilejay, Abraham I. 77 70 76 77 81 62 70 68 73.7
26. Leon, Benjamin La. De 66 66 75 70 77 55 71 82 70.35
27. Lugtu, Felipe L. 62 70 78 65 78 56 69 81 69.9
28. Lukman, Abdul-Hamid 76 64 67 69 73 59 73 75 70.45
29. Maloles, Jr., Benjamin G. 77 76 68 68 71 51 75 78 70.85
30. Maloles, Julius G. 77 71 60 71 79 62 68 72 69.75
31. Mandi, Santiago P. 65 76 70 61 79 68 75 72 71.1
32. Margete, Rufino C. 70 76 66 75 85 73 71 75 72.75
33. Melocoton, Nestorio B. 70 81 73 78 83 52 72 75 72.35
34. Molina, Manuel C. 75 78 70 61 75 63 66 85 70.95
35. Muñoz, Mariano A. 75 80 86 67 74 57 68 76 73.75
36. Navarro, Buenaventura 80 75 65 75 83 55 73 79 73
M.
37. Nodado, Domiciano R. 60 67 67 50 70 50 56 75 61.7
38. Papas, Sisenando B. 65 62 71 61 70 56 66 67 66
39. Pagulayan-Sy, Fernando 63 75 71 62 83 67 70 72 70.4
40. Padula, Benjamin C. 70 77 54 62 74 78 75 68 69.05
41. Pasno, Enrique M. 78 72 66 54 71 58 72 78 69.85
42. Peña, Jr., Narciso 70 95 81 78 67 66 67 73 72.55
43. Peralta, Rodolfo P. 70 70 52 81 68 63 59 69 63.7
44. Pigar, Leopoldo R. 76 75 78 61 72 72 71 79 73.75
45. Publico, Paciano L. 68 69 76 76 70 59 74 67 70.6
46. Radaza, Leovigildo 75 78 76 61 77 50 71 86 72.2
47. Ramos, Bernardo M. 64 62 75 93 81 52 66 80 70.1
48. Rabaino, Andres D. 68 72 75 73 78 55 69 76 70.65
49. Ravanera, Oscar N. 70 77 80 71 82 62 69 78 73.6
50. Renovilla, Jose M. 65 75 80 68 79 52 62 78 69.5
51. Sabaot, Solomon B. 69 73 80 69 82 69 69 79 73.85
52. Sumaway, Ricardo S. 66 76 69 76 74 56 72 68 69.1
53. Torrefiel, Sofronio O. 70 77 74 75 73 50 68 72 69.55
54. Vera, Federico V. de 60 61 47 77 69 50 67 77 60.9
55. Viray, Venancio Bustos 65 67 67 52 73 64 71 65 67.15
56. Ylaya, Angela P. (Miss) 63 70 56 75 68 54 70 77 64.5

PETITIONERS UNDER REPUBLIC ACT NO. 972

 Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.
Av.

1. Ala, Narciso 70 71 73 59 73 74 81 77 73.5

2. Alcantara, Pedro N. 67 70 75 85 87 54 71 80 72.8
3. Arellano, Antonio L. 74 66 73 60 78 63 78 72 72.9
4. Buhay, Eduardo L. 73 76 71 91 76 61 74 78 73.35
5. Calautit, Celestino R. 71 78 84 75 75 61 68 72 73.2
6. Casuncad, Sulvio P. 61 73 82 69 81 68 71 84 73.05
7. Enriquez, Pelagio y 84 69 76 75 82 50 58 79 72.05
Concepcion
8. Estonina, Severino 80 74 64 89 81 56 68 82 72.4
9. Fernandez, Alejandro Q. 65 75 87 80 81 63 61 80 72.8
10. Fernandez, Luis N. 70 75 77 75 78 67 72 73 73.35
11. Figueroa, Alfredo A. 70 75 87 78 75 50 68 68 72.3
12. Formilleza, Pedro 65 75 89 68 83 51 70 75 73.25
13. Garcia, Manuel M. 69 68 83 83 73 62 62 70 71
14. Grospe, Vicente E. 68 75 78 66 79 61 69 82 71.6
15. Galema, Nestor R. (1952) 72 79 86 78 60 61 75 70 73.05
16. Jacobo, Rafael F. 76 76 75 74 76 50 72 76 72.3
17. Macalindong, Reinerio L. 67 77 79 79 74 72 68 77 72.75
18. Mangubat, Antonio M. 70 70 78 61 80 74 62 70 71.45
19. Montano, Manuel M. 78 64 66 68 81 50 71 78 70.65
20. Plomantes, Marcos 73 67 74 58 68 70 76 71 71.6
21. Ramos, Eugenio R. 70 80 76 67 72 69 72 79 72.6
22. Reyes, Juan R. 71 73 77 76 81 59 72 74 73.2
23. Reyes, Santiago R. 65 78 83 60 76 75 70 70 72.9
24. Rivera, Eulogio J. 65 67 78 74 75 62 69 80 70.9
25. Santos, Constantino P. 73 71 70 65 78 64 65 78 70.4
26. Santos, Salvador H. 70 71 79 65 72 54 66 80 70
27. Sevilla, Macario C. 70 73 74 70 81 56 69 71 71.05
28. Villavicencio, Jose A. 78 75 70 67 69 77 64 77 73.2
29. Viray, Ruperto G. 76 73 76 73 80 58 68 83 73.25

There are the unsuccessful candidates totaling 604 directly affected by this resolution. Adding
490 candidates who have not presented any petition, they reach a total of 1,094.

The Enactment of Republic Act No. 972

As will be observed from Annex I, this Court reduced to 72 per cent the passing general
average in the bar examination of august and November of 1946; 69 per cent in 1947; 70 per
cent in 1948; 74 per cent in 1949; maintaining the prescribed 75 per cent since 1950, but raising
to 75 per cent those who obtained 74 per cent since 1950. This caused the introduction in 1951,
in the Senate of the Philippines of Bill No. 12 which was intended to amend Sections 5, 9, 12,
14 and 16 of Rule 127 of the Rules of Court, concerning the admission of attorneys-at-law to the
practice of the profession. The amendments embrace many interesting matters, but those
referring to sections 14 and 16 immediately concern us. The proposed amendment is as follows:

SEC. 14. Passing average. — In order that a candidate may be deemed to have passed
the examinations successfully, he must have obtained a general average of 70 per cent
without falling below 50 per cent in any subject. In determining the average, the
foregoing subjects shall be given the following relative weights: Civil Law, 20 per cent;
Land Registration and Mortgages, 5 per cent; Mercantile Law, 15 per cent; Criminal Law,
10 per cent; Political Law, 10 per cent; International Law, 5 per cent; Remedial Law, 20
per cent; Legal Ethics and Practical Exercises, 5 per cent; Social Legislation, 5 per cent;
Taxation, 5 per cent. Unsuccessful candidates shall not be required to take another
examination in any subject in which they have obtained a rating of 70 per cent or higher
and such rating shall be taken into account in determining their general average in any
subsequent examinations: Provided, however, That if the candidate fails to get a general
average of 70 per cent in his third examination, he shall lose the benefit of having
already passed some subjects and shall be required to the examination in all the
subjects.

SEC. 16. Admission and oath of successful applicants. — Any applicant who has
obtained a general average of 70 per cent in all subjects without falling below 50 per
cent in any examination held after the 4th day of July, 1946, or who has been otherwise
found to be entitled to admission to the bar, shall be allowed to take and subscribe
before the Supreme Court the corresponding oath of office. (Arts. 4 and 5, 8, No. 12).

With the bill was an Explanatory Note, the portion pertinent to the matter before us being:

It seems to be unfair that unsuccessful candidates at bar examinations should be

compelled to repeat even those subjects which they have previously passed. This is not
the case in any other government examination. The Rules of Court have therefore been
amended in this measure to give a candidate due credit for any subject which he has
previously passed with a rating of 75 per cent or higher."

Senate Bill No. 12 having been approved by Congress on May 3, 1951, the President requested
the comments of this Tribunal before acting on the same. The comment was signed by seven
Justices while three chose to refrain from making any and one took no part. With regards to the
matter that interests us, the Court said:

The next amendment is of section 14 of Rule 127. One part of this amendment provides
that if a bar candidate obtains 70 per cent or higher in any subject, although failing to
pass the examination, he need not be examined in said subject in his next examination.
This is a sort of passing the Bar Examination on the installment plan, one or two or three
subjects at a time. The trouble with this proposed system is that although it makes it
easier and more convenient for the candidate because he may in an examination
prepare himself on only one or two subjects so as to insure passing them, by the time
that he has passed the last required subjects, which may be several years away from
the time that he reviewed and passed the firs subjects, he shall have forgotten the
principles and theories contained in those subjects and remembers only those of the one
or two subjects that he had last reviewed and passed. This is highly possible because
there is nothing in the law which requires a candidate to continue taking the Bar
examinations every year in succession. The only condition imposed is that a candidate,
on this plan, must pass the examination in no more that three installments; but there is
no limitation as to the time or number of years intervening between each examination
taken. This would defeat the object and the requirements of the law and the Court in
admitting persons to the practice of law. When a person is so admitted, it is to be
presumed and presupposed that he possesses the knowledge and proficiency in the law
and the knowledge of all law subjects required in bar examinations, so as presently to be
able to practice the legal profession and adequately render the legal service required by
prospective clients. But this would not hold true of the candidates who may have
obtained a passing grade on any five subjects eight years ago, another three subjects
one year later, and the last two subjects the present year. We believe that the present
system of requiring a candidate to obtain a passing general average with no grade in
any subject below 50 per cent is more desirable and satisfactory. It requires one to be all
around, and prepared in all required legal subjects at the time of admission to the
practice of law.

xxx xxx xxx

We now come to the last amendment, that of section 16 of Rule 127. This amendment
provides that any application who has obtained a general average of 70 per cent in all
subjects without failing below 50 per cent in any subject in any examination held after
the 4th day of July, 1946, shall be allowed to take and subscribe the corresponding oath
of office. In other words, Bar candidates who obtained not less than 70 per cent in any
examination since the year 1946 without failing below 50 per cent in any subject, despite
their non-admission to the Bar by the Supreme Court because they failed to obtain a
passing general average in any of those years, will be admitted to the Bar. This provision
is not only prospective but retroactive in its effects.

We have already stated in our comment on the next preceding amendment that we are
not exactly in favor of reducing the passing general average from 75 per cent to 70 per
cent to govern even in the future. As to the validity of making such reduction retroactive,
we have serious legal doubts. We should not lose sight of the fact that after every bar
examinations, the Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general average grade, but also
rejecting and denying the petitions for reconsideration of those who have failed. The
present amendment would have the effect of repudiating, reversing and revoking the
Supreme Court's resolution denying and rejecting the petitions of those who may have
obtained an average of 70 per cent or more but less than the general passing average
fixed for that year. It is clear that this question involves legal implications, and this phase
of the amendment if finally enacted into law might have to go thru a legal test. As one
member of the Court remarked during the discussion, when a court renders a decision or
promulgate a resolution or order on the basis of and in accordance with a certain law or
rule then in force, the subsequent amendment or even repeal of said law or rule may not
affect the final decision, order, or resolution already promulgated, in the sense of
revoking or rendering it void and of no effect.
 Another aspect of this question to be considered is the fact that members of the bar are
officers of the courts, including the Supreme Court. When a Bar candidate is admitted to
the Bar, the Supreme Court impliedly regards him as a person fit, competent and
qualified to be its officer. Conversely, when it refused and denied admission to the Bar to
a candidate who in any year since 1946 may have obtained a general average of 70 per
cent but less than that required for that year in order to pass, the Supreme Court equally
and impliedly considered and declared that he was not prepared, ready, competent and
qualified to be its officer. The present amendment giving retroactivity to the reduction of
the passing general average runs counter to all these acts and resolutions of the
Supreme Court and practically and in effect says that a candidate not accepted, and
even rejected by the Court to be its officer because he was unprepared, undeserving
and unqualified, nevertheless and in spite of all, must be admitted and allowed by this
Court to serve as its officer. We repeat, that this is another important aspect of the
question to be carefully and seriously considered.

The President vetoed the bill on June 16, 1951, stating the following:

I am fully in accord with the avowed objection of the bill, namely, to elevate the standard
of the legal profession and maintain it on a high level. This is not achieved, however, by
admitting to practice precisely a special class who have failed in the bar examination,
Moreover, the bill contains provisions to which I find serious fundamental objections.

Section 5 provides that any applicant who has obtained a general average of 70 per cent
in all subjects without failing below 50 per cent in any subject in any examination held
after the 4th day of July, 1946, shall be allowed to take and subscribed the
corresponding oath of office. This provision constitutes class legislation, benefiting as it
does specifically one group of persons, namely, the unsuccessful candidates in the
1946, 1947, 1948, 1949 and 1950 bar examinations.

The same provision undertakes to revoke or set aside final resolutions of the Supreme
Court made in accordance with the law then in force. It should be noted that after every
bar examination the Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general average but also
rejecting and denying the petitions for reconsideration of those who have failed. The
provision under consideration would have the effect of revoking the Supreme Court's
resolution denying and rejecting the petitions of those who may have failed to obtain the
passing average fixed for that year. Said provision also sets a bad precedent in that the
Government would be morally obliged to grant a similar privilege to those who have
failed in the examinations for admission to other professions such as medicine,
engineering, architecture and certified public accountancy.

Consequently, the bill was returned to the Congress of the Philippines, but it was not repassed
by 2/3 vote of each House as prescribed by section 20, article VI of the Constitution. Instead Bill
No. 371 was presented in the Senate. It reads as follows:

AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM 1946 UP
TO AND INCLUDING 1953

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

Congress assembled:
 SECTION 1. Notwithstanding the provisions of section 14, Rule 127 of the Rules of
Court, any bar candidate who obtained a general average of 70 per cent in any bar
examinations after July 4, 1946 up to the August 1951 Bar examinations; 71 per cent in
the 1952 bar examinations; 72 per cent in the 1953 bar examinations; 73 per cent in the
1954 bar examinations; 74 per cent in 1955 bar examinations without a candidate
obtaining a grade below 50 per cent in any subject, shall be allowed to take and
subscribe the corresponding oath of office as member of the Philippine Bar; Provided,
however, That 75 per cent passing general average shall be restored in all succeeding
examinations; and Provided, finally, That for the purpose of this Act, any exact one-half
or more of a fraction, shall be considered as one and included as part of the next whole
number.

SEC. 2. Any bar candidate who obtained a grade of 75 per cent in any subject in any bar
examination after July 4, 1945 shall be deemed to have passed in such subject or
subjects and such grade or grades shall be included in computing the passing general
average that said candidate may obtain in any subsequent examinations that he may
take.

SEC. 3. This bill shall take effect upon its approval.

With the following explanatory note:

This is a revised Bar bill to meet the objections of the President and to afford another
opportunity to those who feel themselves discriminated by the Supreme Court from 1946
to 1951 when those who would otherwise have passed the bar examination but were
arbitrarily not so considered by altering its previous decisions of the passing mark. The
Supreme Court has been altering the passing mark from 69 in 1947 to 74 in 1951. In
order to cure the apparent arbitrary fixing of passing grades and to give satisfaction to all
parties concerned, it is proposed in this bill a gradual increase in the general averages
for passing the bar examinations as follows; For 1946 to 1951 bar examinations, 70 per
cent; for 1952 bar examination, 71 per cent; for 1953 bar examination, 72 per cent; for
1954 bar examination, 73 percent; and for 1955 bar examination, 74 per cent. Thus in
1956 the passing mark will be restored with the condition that the candidate shall not
obtain in any subject a grade of below 50 per cent. The reason for relaxing the standard
75 per cent passing grade, is the tremendous handicap which students during the years
immediately after the Japanese occupation has to overcome such as the insufficiency of
reading materials and the inadequacy of the preparation of students who took up law
soon after the liberation. It is believed that by 1956 the preparation of our students as
well as the available reading materials will be under normal conditions, if not improved
from those years preceding the last world war.

In this will we eliminated altogether the idea of having our Supreme Court assumed the
supervision as well as the administration of the study of law which was objected to by
the President in the Bar Bill of 1951.

The President in vetoing the Bar Bill last year stated among his objections that the bill
would admit to the practice of law "a special class who failed in the bar examination". He
considered the bill a class legislation. This contention, however, is not, in good
conscience, correct because Congress is merely supplementing what the Supreme
Court have already established as precedent by making as low as 69 per cent the
 passing mark of those who took the Bar examination in 1947. These bar candidates for
who this bill should be enacted, considered themselves as having passed the bar
examination on the strength of the established precedent of our Supreme Court and
were fully aware of the insurmountable difficulties and handicaps which they were
unavoidably placed. We believe that such precedent cannot or could not have been
altered, constitutionally, by the Supreme Court, without giving due consideration to the
rights already accrued or vested in the bar candidates who took the examination when
the precedent was not yet altered, or in effect, was still enforced and without being
inconsistent with the principles of their previous resolutions.

If this bill would be enacted, it shall be considered as a simple curative act or corrective
statute which Congress has the power to enact. The requirement of a "valid
classification" as against class legislation, is very expressed in the following American
Jurisprudence:

A valid classification must include all who naturally belong to the class, all who possess
a common disability, attribute, or classification, and there must be a "natural" and
substantial differentiation between those included in the class and those it leaves
untouched. When a class is accepted by the Court as "natural" it cannot be again split
and then have the dissevered factions of the original unit designated with different rules
established for each. (Fountain Park Co. vs. Rensier, 199 Ind. 95, N. E. 465 (1926).

Another case penned by Justice Cardozo: "Time with its tides brings new conditions
which must be cared for by new laws. Sometimes the new conditions affect the
members of a class. If so, the correcting statute must apply to all alike. Sometimes the
condition affect only a few. If so, the correcting statute may be as narrow as the
mischief. The constitution does not prohibit special laws inflexibly and always. It permits
them when there are special evils with which the general laws are incompetent to cope.
The special public purpose will sustain the special form. . . . The problem in the last
analysis is one of legislative policy, with a wide margin of discretion conceded to the
lawmakers. Only in the case of plain abuse will there be revision by the court. (In
Williams vs. Mayor and City Council of Baltimore, 286 U. S. 36, 77 L. Ed. 1015, 53 Sup.
Ct. 431). (1932)

This bill has all the earmarks of a corrective statute which always retroacts to the extent
of the care of correction only as in this case from 1946 when the Supreme Court first
deviated from the rule of 75 per cent in the Rules of Court.

For the foregoing purposes the approval of this bill is earnestly recommended.

(Sgd.) PABLO ANGELES DAVID

Senator

Without much debate, the revised bill was passed by Congress as above transcribed. The
President again asked the comments of this Court, which endorsed the following:

Respectfully returned to the Honorable, the Acting Executive Secretary, Manila, with the
information that, with respect to Senate Bill No. 371, the members of the Court are
taking the same views they expressed on Senate Bill No. 12 passed by Congress in
 May, 1951, contained in the first indorsement of the undersigned dated June 5, 1951, to
the Assistant Executive Secretary.

(Sgd.) RICARDO PARAS

The President allowed the period within which the bill should be signed to pass without vetoing
it, by virtue of which it became a law on June 21, 1953 (Sec. 20, Art. VI, Constitution) numbered
972 (many times erroneously cited as No. 974).

It may be mentioned in passing that 1953 was an election year, and that both the President and
the author of the Bill were candidates for re-election, together, however, they lost in the polls.

Separate Opinions

LABRADOR, J., concurring and dissenting:

The right to admit members to the Bar is, and has always been, the exclusive privilege of this
Court, because lawyers are members of the Court and only this Court should be allowed to
determine admission thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is exercise. This power should
be distinguished from the power to promulgate rules which regulate admission. It is only this
power (to promulgate amendments to the rules) that is given in the Constitution to the
Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the
holding of examination, the qualifications of applicants, the passing grades, etc. are within the
scope of the legislative power. But the power to determine when a candidate has made or has
not made the required grade is judicial, and lies completely with this Court.

I hold that the act under consideration is an exercise of the judicial function, and lies beyond the
scope of the congressional prerogative of amending the rules. To say that candidates who
obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955
should be considered as having passed the examination, is to mean exercise of the privilege
and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different
years with grades lower than the passing mark. No reasoning is necessary to show that it is an
arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as
discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to
have the privilege of a lower passing grade, while those taking earlier or later are not?

I vote that the act in toto be declared unconstitutional, because it is not embraced within the
rule-making power of Congress, because it is an undue interference with the power of this Court
to admit members thereof, and because it is discriminatory.

PARAS, C.J., dissenting:

Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to
have passed his examinations successfully, he must have obtained a general average of 75 per
cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has
always been adhered to, with certain exception presently to be specified.

With reference to the bar examinations given in August, 1946, the original list of successful
candidates included only those who obtained a general average of 75 per cent or more. Upon
motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73
per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of
November, 1946 the list first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but, upon motion for
reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent
by resolution of March 31, 1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but below 75 per cent were
included. After the original list of 1947 successful bar candidates had been released, and on
motion for reconsideration, all candidates with a general average of 69 per cent were allowed to
pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948,
in addition to the original list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of
whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28,
1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and
for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an
amendment of section 14 of Rule 127.

Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages
mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents
set by this Court in 1947 and 1948, but said motions were uniformly denied.

In the year 1951, the Congress, after public hearings where law deans and professors,
practising attorneys, presidents of bar associations, and law graduates appeared and argued
lengthily pro or con, approved a bill providing, among others, for the reduction of the passing
general average from 75 per cent to 70 per cent, retroactive to any bar examination held after
July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of
Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress
passed another bill similar to the previous bill vetoed by the President, with the important
difference that in the later bill the provisions in the first bill regarding (1) the supervision and
regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and
Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the
examination, and (4) the equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No.
972, by the President by merely not signing it within the required period; and in doing so the
President gave due respect to the will of the Congress which, speaking for the people, chose to
repass the bill first vetoed by him.

Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent
in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar
examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations;
and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in
any subject, shall be allowed to pass. Said Act also provides that any bar candidate who
obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be
deemed to have passed in such subject or subjects and such grade or grades shall be included
in computing the passing in any subsequent examinations.

Numerous candidates who had taken the bar examinations previous to the approval of Republic
Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or
separate petitions, praying that they be admitted to the practice of law under and by virtue of
said Act, upon the allegation that they have obtained the general averages prescribed therein.
In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized representatives of bar associations,
were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing
being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in
so far as it affects past bar examinations and the matter" involved "a new question of public
interest."

All discussions in support of the proposition that the power to regulate the admission to the
practice of law is inherently judicial, are immaterial, because the subject is now governed by the
Constitution which in Article VII, section 13, provides as follows:

The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not diminish, increase or
modify substantive right. The existing laws on pleading, practice, and procedure are
hereby repealed as statutes and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to
repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.

Under this constitutional provision, while the Supreme Court has the power to promulgate rules
concerning the admission to the practice of law, the Congress has the power to repeal, alter or
supplement said rules. Little intelligence is necessary to see that the power of the Supreme
Court and the Congress to regulate the admission to the practice of law is concurrent.

The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar
examinations held prior to its approval, is unconstitutional, because it sets aside the final
resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners,
thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view
is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the
finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods
after which they become executory and unalterable. Resolutions on bar matters, specially on
motions for reconsiderations filed by flunkers in any give year, are subject to revision by this
Court at any time, regardless of the period within which the motion were filed, and this has been
the practice heretofore. The obvious reason is that bar examinations and admission to the
practice of law may be deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no
judicial function involved, in the subject and constitutional sense of the word, because bar
examinations and the admission to the practice of law, unlike justiciable cases, do not affect
opposing litigants. It is no more than the function of other examining boards. In the second
place, retroactive laws are not prohibited by the Constitution, except only when they would
be ex post facto, would impair obligations and contracts or vested rights or would deny due
process and equal protection of the law. Republic Act No. 972 certainly is not an ex post
facto enactment, does not impair any obligation and contract or vested rights, and denies to no
one the right to due process and equal protection of the law. On the other hand, it is a mere
curative statute intended to correct certain obvious inequalities arising from the adoption by this
Court of different passing general averages in certain years.

Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against,
because we no longer have any record of those who might have failed before the war, apart
from the circumstance that 75 per cent had always been the passing mark during said period. It
may also be that there are no pre-war bar candidates similarly situated as those benefited by
Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be
determined by the legislative body. It is proper to recall that the Congress held public hearings,
and we can fairly suppose that the classification adopted in the Act reflects good legislative
judgment derived from the facts and circumstances then brought out.

As regards the alleged interference in or encroachment upon the judgment of this Court by the
Legislative Department, it is sufficient to state that, if there is any interference at all, it is one
expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited
by the Constitution is essentially aimed at protecting rights of litigants that have already been
vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating
appearances of separation and equality among the three branches of the Government. Republic
Act No. 972 has not produced a case involving two parties and decided by the Court in favor of
one and against the other. Needless to say, the statute will not affect the previous resolutions
passing bar candidates who had obtained the general average prescribed by section 14 of Rule
127. A law would be objectionable and unconstitutional if, for instance, it would provide that
those who have been admitted to the bar after July 4, 1946, whose general average is below 80
per cent, will not be allowed to practice law, because said statute would then destroy a right
already acquired under previous resolutions of this Court, namely, the bar admission of those
whose general averages were from 75 to 79 per cent.

Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power
conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by
reducing the passing average to 70 per cent, effective several years before the date of the
resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who
obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a
general average of 70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the
examinations held in August 1947 and August 1948, said section (fixing the general average at
75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the
Supreme Court and the Congress have concurrent power to regulate the admission to the
practice of law, that the latter may validly pass a retroactive rule fixing the passing general
average.

Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or
capricious, since this Court had already adopted as passing averages 69 per cent for the 1947
bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire
into the wisdom of the law, since this is a matter that is addressed to the judgment of the
legislators. This Court in many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on that ground.
To say that the admission of the bar candidates benefited under Republic Act 972 is against
public interest, is to assume that the matter of whether said Act is beneficial or harmful to the
general public was not considered by the Congress. As already stated, the Congress held public
hearings, and we are bound to assume that the legislators, loyal, as do the members of this
Court, to their oath of office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the Congress, representing the people
who elected them, should be more qualified to make an appraisal. I am inclined to accept
Republic Act No. 972 as an expression of the will of the people through their duly elected
representatives.

I would, however, not go to the extent of admitting that the Congress, in the exercise of its
concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to
the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court
may not do so. We are thus left in the situation, incidental to a democracy, where we can and
should only hope that the right men are put in the right places in our Government.

Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given
effect in its entirety.

Separate Opinions

LABRADOR, J., concurring and dissenting:

The right to admit members to the Bar is, and has always been, the exclusive privilege of this
Court, because lawyers are members of the Court and only this Court should be allowed to
determine admission thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is exercise. This power should
be distinguished from the power to promulgate rules which regulate admission. It is only this
power (to promulgate amendments to the rules) that is given in the Constitution to the
Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the
holding of examination, the qualifications of applicants, the passing grades, etc. are within the
scope of the legislative power. But the power to determine when a candidate has made or has
not made the required grade is judicial, and lies completely with this Court.

I hold that the act under consideration is an exercise of the judicial function, and lies beyond the
scope of the congressional prerogative of amending the rules. To say that candidates who
obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955
should be considered as having passed the examination, is to mean exercise of the privilege
and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different
years with grades lower than the passing mark. No reasoning is necessary to show that it is an
arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as
discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to
have the privilege of a lower passing grade, while those taking earlier or later are not?

I vote that the act in toto be declared unconstitutional, because it is not embraced within the
rule-making power of Congress, because it is an undue interference with the power of this Court
to admit members thereof, and because it is discriminatory.
PARAS, C.J., dissenting:

Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to
have passed his examinations successfully, he must have obtained a general average of 75 per
cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has
always been adhered to, with certain exception presently to be specified.

With reference to the bar examinations given in August, 1946, the original list of successful
candidates included only those who obtained a general average of 75 per cent or more. Upon
motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73
per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of
November, 1946 the list first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but, upon motion for
reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent
by resolution of March 31, 1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but below 75 per cent were
included. After the original list of 1947 successful bar candidates had been released, and on
motion for reconsideration, all candidates with a general average of 69 per cent were allowed to
pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948,
in addition to the original list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of
whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28,
1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and
for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an
amendment of section 14 of Rule 127.

Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages
mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents
set by this Court in 1947 and 1948, but said motions were uniformly denied.

In the year 1951, the Congress, after public hearings where law deans and professors,
practising attorneys, presidents of bar associations, and law graduates appeared and argued
lengthily pro or con, approved a bill providing, among others, for the reduction of the passing
general average from 75 per cent to 70 per cent, retroactive to any bar examination held after
July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of
Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress
passed another bill similar to the previous bill vetoed by the President, with the important
difference that in the later bill the provisions in the first bill regarding (1) the supervision and
regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and
Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the
examination, and (4) the equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No.
972, by the President by merely not signing it within the required period; and in doing so the
President gave due respect to the will of the Congress which, speaking for the people, chose to
repass the bill first vetoed by him.
Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent
in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar
examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations;
and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in
any subject, shall be allowed to pass. Said Act also provides that any bar candidate who
obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be
deemed to have passed in such subject or subjects and such grade or grades shall be included
in computing the passing in any subsequent examinations.

Numerous candidates who had taken the bar examinations previous to the approval of Republic
Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or
separate petitions, praying that they be admitted to the practice of law under and by virtue of
said Act, upon the allegation that they have obtained the general averages prescribed therein.
In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized representatives of bar associations,
were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing
being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in
so far as it affects past bar examinations and the matter" involved "a new question of public
interest."

All discussions in support of the proposition that the power to regulate the admission to the
practice of law is inherently judicial, are immaterial, because the subject is now governed by the
Constitution which in Article VII, section 13, provides as follows:

The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not diminish, increase or
modify substantive right. The existing laws on pleading, practice, and procedure are
hereby repealed as statutes and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to
repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.

Under this constitutional provision, while the Supreme Court has the power to promulgate rules
concerning the admission to the practice of law, the Congress has the power to repeal, alter or
supplement said rules. Little intelligence is necessary to see that the power of the Supreme
Court and the Congress to regulate the admission to the practice of law is concurrent.

The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar
examinations held prior to its approval, is unconstitutional, because it sets aside the final
resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners,
thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view
is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the
finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods
after which they become executory and unalterable. Resolutions on bar matters, specially on
motions for reconsiderations filed by flunkers in any give year, are subject to revision by this
Court at any time, regardless of the period within which the motion were filed, and this has been
the practice heretofore. The obvious reason is that bar examinations and admission to the
practice of law may be deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no
judicial function involved, in the subject and constitutional sense of the word, because bar
examinations and the admission to the practice of law, unlike justiciable cases, do not affect
opposing litigants. It is no more than the function of other examining boards. In the second
place, retroactive laws are not prohibited by the Constitution, except only when they would
be ex post facto, would impair obligations and contracts or vested rights or would deny due
process and equal protection of the law. Republic Act No. 972 certainly is not an ex post
facto enactment, does not impair any obligation and contract or vested rights, and denies to no
one the right to due process and equal protection of the law. On the other hand, it is a mere
curative statute intended to correct certain obvious inequalities arising from the adoption by this
Court of different passing general averages in certain years.

Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against,
because we no longer have any record of those who might have failed before the war, apart
from the circumstance that 75 per cent had always been the passing mark during said period. It
may also be that there are no pre-war bar candidates similarly situated as those benefited by
Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be
determined by the legislative body. It is proper to recall that the Congress held public hearings,
and we can fairly suppose that the classification adopted in the Act reflects good legislative
judgment derived from the facts and circumstances then brought out.

As regards the alleged interference in or encroachment upon the judgment of this Court by the
Legislative Department, it is sufficient to state that, if there is any interference at all, it is one
expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited
by the Constitution is essentially aimed at protecting rights of litigants that have already been
vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating
appearances of separation and equality among the three branches of the Government. Republic
Act No. 972 has not produced a case involving two parties and decided by the Court in favor of
one and against the other. Needless to say, the statute will not affect the previous resolutions
passing bar candidates who had obtained the general average prescribed by section 14 of Rule
127. A law would be objectionable and unconstitutional if, for instance, it would provide that
those who have been admitted to the bar after July 4, 1946, whose general average is below 80
per cent, will not be allowed to practice law, because said statute would then destroy a right
already acquired under previous resolutions of this Court, namely, the bar admission of those
whose general averages were from 75 to 79 per cent.

Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power
conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by
reducing the passing average to 70 per cent, effective several years before the date of the
resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who
obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a
general average of 70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the
examinations held in August 1947 and August 1948, said section (fixing the general average at
75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the
Supreme Court and the Congress have concurrent power to regulate the admission to the
practice of law, that the latter may validly pass a retroactive rule fixing the passing general
average.

Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or
capricious, since this Court had already adopted as passing averages 69 per cent for the 1947
bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire
into the wisdom of the law, since this is a matter that is addressed to the judgment of the
legislators. This Court in many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on that ground.

To say that the admission of the bar candidates benefited under Republic Act 972 is against
public interest, is to assume that the matter of whether said Act is beneficial or harmful to the
general public was not considered by the Congress. As already stated, the Congress held public
hearings, and we are bound to assume that the legislators, loyal, as do the members of this
Court, to their oath of office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the Congress, representing the people
who elected them, should be more qualified to make an appraisal. I am inclined to accept
Republic Act No. 972 as an expression of the will of the people through their duly elected
representatives.

I would, however, not go to the extent of admitting that the Congress, in the exercise of its
concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to
the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court
may not do so. We are thus left in the situation, incidental to a democracy, where we can and
should only hope that the right men are put in the right places in our Government.

Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given
effect in its entirety.

Footnotes

1
Designed as Chairman of the Committee of Bar Examiners vice Mr. Justice Roman
Ozaeta, resigned.

2
In 1946 and 1947, the members of the Supreme Court were Hon. Manuel V. Moran,
Chief Justice, Ho. Ricardo Paras, Hon. Felicisimo Feria, Hon. Guillermo F. Pablo, Hon.
Gregorio Perfecto, Ho. Carlos Hilado, Hon. Cesar Bengzon, Hon. Manuel C. Briones,
Hon. Jose Hontiveros, Hon. Sabino Padilla, and Hon. Pedro Tuason, Associate Justices.
In 1948, Justices Marcelino R. Montemayor and Alex. Reyes took the place of Justice
Hilado, resigned, and Hontiveros, retired. Justice Roman Ozaeta was returned to the
Court and Justice Sabino Padilla was appointed Secretary of Justice. In June, 1949,
Justice Padilla was returned to the Tribunal, as Justice Briones resigned. In October,
1950, Justices Fernando Jugo and Felix Bautista Angelo were appointed to the Court, as
Justice Perfecto Jugo and Felix Bautista Angelo were appointed to the Court, as Justice
Perfecto had died, and Justice Ozaeta had resigned. In 1951, Chief Justice Manuel V.
Moran resigned and Justice Ricardo Paras was appointed Chief Justice. In 1953, Justice
Felicisimo R. Feria retired.
Case 2: Carino v. Commission on Human Rights, G.R. No. 96681, 02 December 1991

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 96681 December 2, 1991

HON. ISIDRO CARIÑO, in his capacity as Secretary of the Department of Education, Culture &
Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of
Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA
IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and
APOLINARIO ESBER, respondents.

NARVASA, J.:

The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the
Solicitor General, may be formulated as follows: where the relief sought from the Commission
on Human Rights by a party in a case consists of the review and reversal or modification of a
decision or order issued by a court of justice or government agency or official exercising quasi-
judicial functions, may the Commission take cognizance of the case and grant that relief? Stated
otherwise, where a particular subject-matter is placed by law within the jurisdiction of a court or
other government agency or official for purposes of trial and adjudgment, may the Commission
on Human Rights take cognizance of the same subject-matter for the same purposes of hearing
and adjudication?

The facts narrated in the petition are not denied by the respondents and are hence taken as
substantially correct for purposes of ruling on the legal questions posed in the present action.
These facts, 1 together with others involved in related cases recently resolved by this Court 2 or
otherwise undisputed on the record, are hereunder set forth.

1. On September 17, 1990, a Monday and a class day, some 800 public school teachers,
among them members of the Manila Public School Teachers Association (MPSTA) and Alliance
of Concerned Teachers (ACT) undertook what they described as "mass concerted actions" to
"dramatize and highlight" their plight resulting from the alleged failure of the public authorities to
act upon grievances that had time and again been brought to the latter's attention. According to
them they had decided to undertake said "mass concerted actions" after the protest rally staged
at the DECS premises on September 14, 1990 without disrupting classes as a last call for the
government to negotiate the granting of demands had elicited no response from the Secretary
of Education. The "mass actions" consisted in staying away from their classes, converging at
the Liwasang Bonifacio, gathering in peaceable assemblies, etc. Through their representatives,
the teachers participating in the mass actions were served with an order of the Secretary of
Education to return to work in 24 hours or face dismissal, and a memorandum directing the
DECS officials concerned to initiate dismissal proceedings against those who did not comply
and to hire their replacements. Those directives notwithstanding, the mass actions continued
into the week, with more teachers

GUTIERREZ, JR., J., concurring:

I concur in the result. The teachers are not to be blamed for exhausting all means to overcome
the Secretary's arbitrary act of not reinstating them.

PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa

I wish to add however that the Commission on Human Rights should concern itself in this case
and in many other similar cases:

(1) not only with the human rights of striking teachers but also the human rights of
students and their parents;

(2) not only with the human rights of the accused but also the human rights of the victims
and the latter's families;

(3) not only with the human rights of those who rise against the government but also
those who defend the same;

(4) not only the human rights of striking laborers but also those who as a consequence
of strikes may be laid off because of financial repercussions.

The defense of human rights is not a monopoly of a government agency (such as the
Commission on Human Rights) nor the monopoly of a group of lawyers defending so-called
"human rights' but the responsibility of ALL AGENCIES (governmental or private) and of ALL
LAWYERS, JUDGES, and JUSTICES.
Finally, the Commission should realize that while there are "human rights", there are also
corresponding "human obligations."

PADILLA, J., dissenting:

I vote to dismiss the petition for the same reasons stated in my earlier separate opinion filed in
this case.

# Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the result. The teachers are not to be blamed for exhausting all means to overcome
the Secretary's arbitrary act of not reinstating them.

PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa

I wish to add however that the Commission on Human Rights should concern itself in this case
and in many other similar cases:

(1) not only with the human rights of striking teachers but also the human rights of
students and their parents;

(2) not only with the human rights of the accused but also the human rights of the victims
and the latter's families;

(3) not only with the human rights of those who rise against the government but also
those who defend the same;

(4) not only the human rights of striking laborers but also those who as a consequence
of strikes may be laid off because of financial repercussions.

The defense of human rights is not a monopoly of a government agency (such as the
Commission on Human Rights) nor the monopoly of a group of lawyers defending so-called
"human rights' but the responsibility of ALL AGENCIES (governmental or private) and of ALL
LAWYERS, JUDGES, and JUSTICES.
Finally, the Commission should realize that while there are "human rights", there are also
corresponding "human obligations."

PADILLA, J., dissenting:

I vote to dismiss the petition for the same reasons stated in my earlier separate opinion filed in
this case.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-25716 July 28, 1966

FERNANDO LOPEZ, petitioner,

vs.
GERARDO ROXAS and PRESIDENTIAL ELECTORAL TRIBUNAL, respondents.

Vicente Francisco for petitioner.

Sycip and Salazar for respondents.

CONCEPCION, C.J.:

Petitioner Fernando Lopez and respondent Gerardo Roxas were the main contenders for the
Office of Vice-President of the Philippines in the general elections held on November 9, 1965.
By Resolution No. 2, approved on December 17, 1965, the two Houses of Congress, in joint
session assembled as the board charged with the duty to canvass the votes then cast for
President and Vice President of the Philippines, proclaimed petitioner Fernando Lopez elected
to the latter office with 3,531,550 votes, or a plurality of 26,724 votes over his closest opponent,
respondent Gerardo M. Roxas, in whose favor 3,504,826 votes had been tallied, according to
said resolution. On January 5, 1966, respondent filed, with the Presidential Electoral Tribunal,
Election Protest No. 2, contesting the election of petitioner herein as Vice-President of the
Philippines, upon the ground that it was not he, but said respondent, who had obtained the
largest number of votes for said office.

On February 22, 1966, petitioner Lopez instituted in the Supreme Court the present original
action, for prohibition with preliminary injunction, against respondent Roxas, to prevent the
Presidential Electoral Tribunal from hearing and deciding the aforementioned election contest,
upon the ground that Republic Act No. 1793, creating said Tribunal, is "unconstitutional," and
that, "all proceedings taken by it are a nullity."

Petitioner's contention is predicated upon the ground, that Congress may not, by law, authorize
an election contest for President and Vice-President, the Constitution being silent thereon; that
such contest tends to nullify the constitutional authority of Congress to proclaim the candidates
elected for President and Vice-President; that the recount of votes by the Presidential Electoral
Tribunal, as an incident of an election contest, is inconsistent with the exclusive power of
Congress to canvass the election returns for the President and the Vice-President; that no
amendment to the Constitution providing for an election protest involving the office of President
and Vice-President has been adopted, despite the constitutional amendment governing election
contests for Members of Congress; that the tenure of the President and the Vice-President is
fixed by the Constitution and cannot be abridged by an Act of Congress, like Republic Act No.
1793; that said Act has the effect of amending the Constitution, in that it permits the Presidential
Electoral Tribunal to review the congressional proclamation of the president-elect and the vice-
president-elect; that the constitutional convention had rejected the original plan to include in the
Constitution a provision authorizing election contest affecting the president-elect and the vice-
president-elect before an electoral commission; that the people understood the Constitution to
authorize election contests only for Members of Congress, not for President and Vice-President,
and, in interpreting the Constitution, the people's intent is paramount; that it is illegal for Justices
of the Supreme Court to sit as members of the Presidential Electoral Tribunal, since the
decisions thereof are appealable to the Supreme Court on questions of law; that the Presidential
Electoral Tribunal is a court inferior to the Supreme Court; and that Congress cannot by
legislation appoint in effect the members of the Presidential Electoral Tribunal.

Pursuant to the Constitution, "the Judicial power shall be vested in one Supreme Court and in
such inferior courts as may be established by law.1

This provision vests in the judicial branch of the government, not merely some specified
or limited judicial power, but "the" judicial power under our political system, and, accordingly, the
entirety or "all" of said power, except, only, so much as the Constitution confers upon some
other agency, such as the power to "judge all contests relating to the election, returns and
qualifications" of members of the Senate and those of the House of Representatives which is
vested by the fundamental law solely in the Senate Electoral Tribunal and the House Electoral
Tribunal, respectively.2

Judicial power is the authority to settle justiciable controversies or disputes involving rights that
are enforceable and demandable before the courts of justice or the redress of wrongs for
violations of such rights.3 The proper exercise of said authority requires legislative action: (1)
defining such enforceable and demandable rights and/or prescribing remedies for violations
thereof; and (2) determining the court with jurisdiction to hear and decide said controversies or
disputes, in the first instance and/or on appeal. For this reason, the Constitution ordains that
"Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various
courts," subject to the limitations set forth in the fundamental law.4

Prior to the approval of Republic Act No. 1793, a defeated candidate for president or vice-
president, who believe that he was the candidate who obtained the largest number of votes for
either office, despite the proclamation by Congress of another candidate as the president-elect
or vice-president-elect, had no legal right to demand by election protest a recount of the votes
cast for the office concerned, to establish his right thereto. As a consequence, controversies or
disputes on this matter were not justiciable.5

Section 1 of Republic Act No. 1793, which provides that:

There shall be an independent Presidential Electoral Tribunal ... which shall be the sole
judge of all contests relating to the election, returns, and qualifications of the president-
elect and the vice-president-elect of the Philippines.

has the effect of giving said defeated candidate the legal right to contest judicially the election of
the President-elect or Vice-President-elect and to demand a recount of the votes cast for the
office involved in the litigation as well as to secure a judgment declaring that he6 is the one
elected president or vice-president, as the case may be,7 and that, as such, he is entitled to
assume the duties attached to said office. And by providing, further, that the Presidential
Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the
Supreme Court," said legislation has conferred upon such Court an additional original
jurisdiction of an exclusive character.8

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon
the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the
enactment may be likened to the fact that courts of first instance perform the functions of such
ordinary courts of first instance,9 those of court of land registration, 10those of probate
courts, 11 and those of courts of juvenile and domestic relations. 12 It is, also, comparable to the
situation obtaining when the municipal court of a provincial capital exercises its authority,
pursuant to law, over a limited number of cases which were previously within the exclusive
jurisdiction of courts of first instance. 13

In all of these instances, the court (court of first instance or municipal court) is only one,
although the functions may be distinct and, even, separate. Thus the powers of a court of first
instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well as
distinct and separate from, those of the same court acting as a court of land registration or
a probate court, or as a court of juvenile and domestic relations. So too, the authority of the
municipal court of a provincial capital, when acting as such municipal court, is, territorially more
limited than that of the same court when hearing the aforementioned cases which are primary
within the jurisdiction of courts of first instance. In other words, there is only one court, although
it may perform the functions pertaining to several types of courts, each having some
characteristics different from those of the others.

Indeed, the Supreme Court, 14 the Court of Appeals 15 and courts of first instance, 16 are vested
with original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are
booth trial courts and appellate courts, without detracting from the fact that there is only one
Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority to
discharged said dual functions. A court of first instance, when performing the functions of a
probate court or a court of land registration, or a court of juvenile and domestic relations,
although with powers less broad than those of a court of first instance, hearing ordinary actions,
is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential Electoral
Tribunal is not inferior to the Supreme Court, since it is the same Court although
the functions peculiar to said Tribunal are more limited in scope than those of the Supreme
Court in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793,
does not entail an assumption by Congress of the power of appointment vested by the
Constitution in the President. It merely connotes the imposition of additional duties upon the
Members of the Supreme Court. 17

Moreover, the power to be the "judge ... of ... contests relating to the election, returns, and
qualifications" of any public officer is essentially judicial. As such — under the very principle of
separation of powers invoked by petitioner herein — it belongs exclusively to
the judicial department, except only insofar as the Constitution provides otherwise. This is
precisely the reason why said organic law ordains that "the Senate and the House of
Representatives shall each have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their respective Members" (Article
VI, Section 11, of the Constitution). In other words, the purpose of this provision was
to exclude the power to decide such contests relating to Members of Congress — which by
nature is judicial 18 — from the operation of the general grant of judicial power 19 to "the
Supreme Court and such inferior courts as may be established by law.

Instead of indicating that Congress may not enact Republic Act No. 1793, the aforementioned
provision of the Constitution, establishing said Electoral Tribunals for Members of Congress
only, proves the exact opposite, namely: that the Constitution intended to vest Congress with
discretion 20 to determine by law whether or not the election of a president-elect or that of a vice-
president-elect may be contested and, if Congress should decide in the affirmative, which court
of justice shall have jurisdiction to hear the contest. It is, even, debatable whether such
jurisdiction may be conferred, by statute, to a board, commission or tribunal composed partly of
Members of Congress and Members of the Supreme Court because of its possible
inconsistency with the constitutional grant of the judicial power to "the Supreme Court and ...
such inferior courts as may be established by law," for said board, commission or tribunal would
be neither "the Supreme Court, 21 nor, certainly, "such inferior courts as, may be established by
law."

It follows, therefore, not only that Republic Act No. 1793 is not inconsistent with the Constitution
or with the principle of separation of powers underlying the same, but, also, that it is in
harmony with the aforementioned grant of "the judicial power" to said courts. Indeed, when
Claro M. Recto, Chairman of the Constitutional Convention, proposed that the original move
therein to include in the fundamental law a provision creating an Electoral Commission 22 to
hear election contests against the President-elect and the Vice-President-elect, be given up, he
expressed the view that the elimination of said provision would have the effect of leaving in the
hands of the legislative department the power to decide what entity or body would "look into the
protests for the positions of President and Vice-President." 23 Twenty-two (22) years later, or on
May 3, 1957 then Senator Recto reiterated this view, when, in the course of the debates on the
Bill which later became Republic Act No. 1793, he stated:
 ... Mr. President, as far as I can remember, the intention of the constitutional convention
was to leave this matter to ordinary legislation.

Such was, also, the impression of Dr. Jose M. Aruego, another prominent Member of the
Convention, who says 24that

Election protests for the Presidency and the Vice-Presidendency were left to be judged
in a manner and by a body decided by the National Assembly. (Emphasis ours.)

No less than one of the main counsel for petitioner herein, himself, another delegate to the
Constitutional Convention, evidently shared this view as late as September 30, 1965, for the
introduction to his 1965 edition of "the Revised Election Code" states that "he will always be
remembered for ... his famous bill creating the Presidential Electoral Tribunal ...". Indeed as a
member of the Senate, on January 3, 1950, he Introduced Senate Bill No. 1 seeking to create a
Presidential Electoral Tribunal "to try, hear and decide protests contesting the election of the
President and the Vice-President of the Philippines", which shall be composed of three Justices
of the Supreme Court, including the Chief Justice, and four Senators and four Members of the
House of Representatives.

Then, again, the records of the Convention show, that in voting eventually to eliminate, from the
draft of the Constitution, the provision establishing a Presidential Electoral Commission, the
delegates were influenced by the fact that there was no similar provision in the Federal
Constitution of the United States. Having followed the pattern thereof, it must be assumed,
therefore, in the absence of any indicium to the contrary,25 that the Convention had adhered,
also, to the interpretation given to this feature of said Federal Constitution, as may be deduced
from the fact that, by an act of Congress of the United States, approved on January 29, 1877,
an Electoral Commission was created to hear and decide certain issues concerning the election
of the President of said nation held in 1876. It is, also worthy of notice that pursuant to said Act,
nothing therein "shall be held to impair or affect any right now existing under the Constitution
and laws to question, by proceedings in the judicial courts of the United States, the right or title
of the person who shall be declared elected, or who shall claim to be President or Vice-
President of the United States, if any such right exists". 26 Thus the absence of a provision in
said Federal Constitution governing protests against the election of the President and the Vice-
President had been construed to be without prejudice to the right of the defeated candidate to
file a protest before the courts of justice of the United States, if the laws thereof permitted it. In
other words, the Federal Congress was deemed clothed with authority to determine, by ordinary
legislation, whether or not protests against the election of said officers may properly be
entertained by the judicial department.

Needless to say, the power of congress to declare who, among the candidates for President
and/or Vice-President, has obtained the largest number of votes, is entirely different in nature
from and not inconsistent with the jurisdiction vested in the Presidential Electoral Tribunal by
Republic Act No. 1793. Congress merely acts as a national board of canvassers, charged with
the ministerial and executive duty 27 to make said declaration, on the basis of the election
returns duly certified by provincial and city boards of canvassers. 28 Upon the other hand, the
Presidential Electoral Tribunal has the judicial power to determine whether or not said duly
certified election returns have been irregularly made or tampered with, or reflect the true result
of the elections in the areas covered by each, and, if not, to recount the ballots cast, and,
incidentally thereto, pass upon the validity of each ballot or determine whether the same shall
be counted, and, in the affirmative, in whose favor, which Congress has power to do.
It is, likewise, patent that the aforementioned authority of the Presidential Electoral Tribunal to
determine whether or not the protestant has a better right than the President and/or the Vice-
President declared elected by Congress would not abridge the constitutional tenure. If the
evidence introduced in the election protest shows that the person really elected president or
vice-president is the protestant, not the person declared elected by Congress, then the latter
had legally no constitutional tenure whatsoever, and, hence, he can claim no abridgement
thereof.1äwphï1.ñët

It is similarly obvious that, in imposing upon the Supreme Court the additional duty of performing
the functions of a Presidential Electoral Tribunal, Congress has not, through Republic Act No.
1793, encroached upon the appointing power of the Executive. The imposition of new duties
constitutes, neither the creation of an office, nor the appointment of an officer. 29

In view of a resolution of this Court dated July 8, 1966, upholding the validity of Republic Act No.
1793, upon the ground that it merely vests additional jurisdiction in the Supreme Court,
petitioner has filed a motion dated July 13, 1966, praying this Court "to clarify whether or not"
this "election contest should as a consequence ... be docketed with, and the records thereof
transferred, to this Supreme Court, and all pleadings, papers and processes relative thereto
should thence forth be filed with it". The motion is, evidently, based upon the premise that the
Supreme Court is different and distinct from the Presidential Electoral Tribunal, which is
erroneous, as well as contrary to the ruling made in said resolution.

Wherefore, the petition herein is hereby dismissed and the writs therein prayed for denied
accordingly. The aforesaid motion is, moreover, denied. With costs against the petitioner. It is so
ordered.

Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, J.P. Bengzon, Zaldivar, Sanchez and Castro,
JJ., concur.

Footnotes

1
Article VIII, Section 1, of the Constitution.

2
Article VI, Section 11, of the Constitution.

3
Black, Constitutional Law, 2nd ed. p. 82; Ruperto vs. Torres, G.R. No. L-3785, February
27, 1957, citing 34 C.J. 1183-1184; Wheeling & Elm Grove Railroad Co., Appt. vs. Town
of Philadelphia, et al., 4 LRA (NS) pp. 321, 328-329.

4
Article VIII, Section 2.

5
Thus in Channie Tan vs. Republic, G.R. No. L-14159, April 18, 1960, in which this Court
ruled that an action for judicial declaration of citizenship was held not to be a justiciable
controversy, because there is nolegislation authorizing the institution of such proceeding.
Tan Yu Chin vs. Republic, G.R. No. L-15775, April 29, 1961; Tan vs. Republic, G.R. No.
L-16108, October 31, 1961; Santiago vs. Commissioner, G.R. No. L-14653, January 31,
1963; Reyes vs. Republic, G.R. No. L-17642, November 27, 1964; Dy Poco vs.
Commissioner of Immigration, et al., 13, March 31, 1966. See, also, Mabanag vs.
Vito, 78 Phil. 1, in which it was held that "political questions are not within the province of
the judiciary, except to the extent that power to deal with such questions has
been conferred upon the courts by express constitutional or statutory provision."

6
Not the candidate proclaimed elected by Congress.

7
If the evidence so establishes it.

8
See, for instance, Sec. 2. Act 496 (Land Registration Act), Sec. 14, Act 1956
(Insolvency jaw), and Sec. 8, CA 473 (Revised Naturalization Law), which confer upon
courts of first instance additional original jurisdiction.

9
The Courts Of First Instance function not only as Courts of General Jurisdiction, i.e.,
competent to decide all cases, civil and criminal, within their own jurisdiction (12 CJS 20-
21, I Moran xxxiii; Rep. Act 296. Secs. 39, 44) but also as Courts of Special Jurisdiction,
empowered to decide certain specified matters, such as probate, admiralty,
naturalization, bankruptcy, cadastral and land registration cases.

10
The powers and functions of the Court of Land Registration, established by virtue of
Act 496, Sec. 2, were subsequently conferred "upon the Courts of First Instance and
judges thereof," by authority of Sec. 10, Act 2347.

11
Aside from performing the functions of a probate court (Sec. 44, par. [e], Republic Act
296, as amended), courts of first instance also act as admiralty courts (Sec. 44[d],
Republic Act 296), bankruptcy courts (Act 1956), and as courts of juvenile and domestic
relations (Republic Act No. 1401, Sec. 1).

12
Except in Manila. Republic Act No. 409, Sec. 38-A, as amended by Republic Act No.
1401.

13
See Sec. 88, Republic Act 296, as amended, pursuant to which "municipal judges may,
with the approval of the Secretary of Justice, be assigned by the respective district judge
in each case to hear and determine cadastral or land registration cases covering lots
where there is no controversy or opposition, or contested lots the value of which does
not exceed ten thousand pesos, x x x ." Also, said municipal and city judges, "in the
absence of the District Judge from the province, may exercise within the
province like interlocutory jurisdiction as the Court of First Instance, which shall be held
to include the hearing of all motions for the appointment of a receiver, for temporary
injunctions, and for all other orders of the court which are not final in their character and
do not involve a decision of the case on its merits, and the hearing of petitions for a writ
of habeas corpus." Sec. 87, Republic Act 296 confers upon municipal judges in the
capitals of provinces and sub-provinces and judges of city courts like jurisdiction as the
Court of First Instance to try parties charged with an offense committed within their
respective jurisdictions, in which the penalty provided by law does not exceed prision
correccional or imprisonment for not more than six years or fine not exceeding six
thousand pesos or both, and in the absence of the district judge, like jurisdiction within
the province as the Court of First Instance to hear application for bail.

14
In addition to the original and the appellate jurisdictions conferred upon the Supreme
Court by the Constitution (Art. VIII, Sec. 2), Republic Act 296, Sec. 17 vests it
with concurrent jurisdiction with courts of first instance.
15
Sections 29 and 30, Republic Act 296, as amended.

16
Sections 44 and 45, Republic Act 296, as amended.

17
The imposition by the legislature to a constitutional body of additional duties not
inconsistent with those already prescribed by the Constitution is a practice recognized in
many jurisdiction. See, 42 Am. Jur. Public Officers, Secs. 31, 9, pp. 902, 1949; State vs.
Caldwell, 23 So. 2d 855, Terrell, J., Supreme Court of Florida; Rouse vs. Johnson, 28
S.W. (2d) 745, 70 A.L.R. 1077, CA Kentucky (1930). Even this Court has recognized the
authority of the Legislature to add to, but not to diminish, the jurisdiction of the Supreme
Court. In re Guariña, 24 Phil. 37; United States vs. Limsiongco, 41 Phil. 94, 2 PAL. 309.

18
"The Constitution makes each house of Congress the judge as to the elections and
returns of its members. This would appear on its face to be essentially judicial function.
In fact, in England and in some of the British dominions, it is assigned to the courts. This
was not the case, however, at the time of the adoption of our Constitution and we
followed the plan then existing in that country whereby the House of Commons passed
on election contests." American Constitutional System — Mathews — p. 98.

"There are certain matters which each house determines for itself, and in respect
to which its decision is conclusive. x x x it decides upon the election and
qualifications of its own members. x x x In determining questions concerning
contested seat the house will exercise judicial power, but generally in accordance
with a course of practice which has sprung from precedents in similar cases, and
no other authority is at liberty to interfere." Cooley, Thomas M., A Treatise on the
Constitutional Limitations, Vol. 1, pp. 270-271, 1927 ed.

"Determining of existing facts and resultant and controverted rights and duties, is
a judicial function." 23 W & P 147 (1965 Pocket Part)

"After primary election has been held and results have been ascertained,
question regarding qualifications of candidates becomes one which relates to his
eligibility to hold office to which he aspires and one which requires the exercise of
"judicial functions" to decide x x x ". State ex rel. Tanner vs. Duncan, 10 So. 2d
507, 511, 23 W & P. 148 (1965 Pocket Part)

19
Made in Section 1 of Art. VIII of the Constitution.

20
Which is denied thereto in connection with election contests affecting its own
members.

In which Members of Congress may not — under the principle of separation of powers
21

— sit.

22
Consisting of members of the legislative department and members of the Supreme
Court.

23
The journal of the Convention shows that the following statements were made on the
floor thereof:
 "The Acting President. — Is there any objection to this proposition? (Silence).
The Chair does not hear any. Approved.

"Delegate Saguin. — For an information. It seems that this Constitution does not
contain any provision with respect to the entity or body which will look into the
protests for the positions of President and Vice-President.

"President Recto. — Neither does the American constitution contain a provision

over the subject.

"Delegate Saguin. — But, then, who will decide these protests ?

"President Recto. — I suppose that the National Assembly will decide that."
(Emphasis ours.)

24
In his work on "The Framing of the Philippine Constitution" Vol. I, p. 410, printed in
1937.

25
And none has been brought to our attention.

26
Emphasis ours.

27
Just like that of any municipal, city or provincial board of canvassers.

28
Article VII, Section 2, Constitution of the Philippines.

29
"Imposition of new duties upon an officer already elected or appointed does not
constitute the creation of an office or the appointment of an officer. When new duties are
thus attached to an office, a reappointment of the officer need not be made." (42 Am.
Jur., Public Officers, Sec. 90, p. 949).

"In the United States, except for such offices as are created by Constitution, the
creation of public offices is primarily a legislative function. In so far as the
legislative power in this respect is not restricted by constitutional provisions, it is
supreme, and the legislature may decide for itself what offices are suitable,
necessary, or convenient. When in the exigencies of government it is necessary
to create and define new duties, the legislative department has the discretion to
determine whether additional offices shall be created or these duties shall be
attached to and become ex officio duties of existing offices." (42 Am. Jur., Public
Officers, Sec. 31, p. 902; 40 ALR 1052, 1057.)

x x x the legislature may impose additional powers and duties on

both constitutional and statutory officers so long as such duties are not
inconsistent with their duties imposed by the constitution. x x x the legislature
may make an existing officer the member of another and different board by
enlarging his duties." (State vs. Caldwell, 23 So. 2d 855, Terrell, Supreme Court
of Florida.)
 "That the Legislature may annex additional duties to a constitutional office, or
confer powers upon a constitutional officer other than those expressly prescribed
by the Constitution, unless inhibited from so doing by that instrument,
is everywhere recognized and practiced in this and other jurisdictions, x x x ."
(Rouse vs. Johnson, 28 S.W. [2d] 745, 70 ALR. 1077, C.A. Kentucky [1930].)

x x x Congress may create an office, it cannot appoint the officer x x x . It cannot

be doubted, x x x that Congress may increase the power and duties of an
existing office without thereby rendering it necessary that the incumbent should
be again nominated and appointed. (Shoemaker vs. United States, 37 Law ed.
170, 185.)

Case 4: Francisco v House of Representatives

G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO,
INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX
WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN,
MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA
CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-
HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA
CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO
RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS,
RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR
PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR.,
JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO,
GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT,
ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO,
DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA,
GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL
ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO,
MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA,
JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND
RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON
C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE
HOUSE OF REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON

MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG,
ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE,
WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY
SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO,
JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA,
JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX
VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

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

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.

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

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED

BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS
CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING
PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents.

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF
THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN
S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN
B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND
IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES
WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT
CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents.

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

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.

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

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner,

vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF
THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE
HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.

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

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND
THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.

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

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO

G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

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

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.

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

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.
MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY
ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE
LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L.
JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND
INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON,
AS SENATE PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent
branches of government of the nature, scope and extent of their respective constitutional
powers where the Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.

There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions – whether the filing of the second impeachment complaint against
Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year
bar provided in the Constitution, and whether the resolution thereof is a political question – has
resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a
political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative,
executive or judicial branches of government by no means prescribes for absolute autonomy in
the discharge by each of that part of the governmental power assigned to it by the sovereign
people.
At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches must be
given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

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.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office, on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from office as provided by law, but
not by impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either
to affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.
 (6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between
these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II RULE V

INITIATING IMPEACHMENT BAR AGAINST INITIATION OF

IMPEACHMENT
Section 2. Mode of Initiating PROCEEDINGS AGAINST THE
Impeachment. – Impeachment SAME OFFICIAL
shall be initiated only by a verified
complaint for impeachment filed by Section 16. – Impeachment
any Member of the House of Proceedings Deemed Initiated. –
Representatives or by any citizen In cases where a Member of the
upon a resolution of endorsement House files a verified complaint
by any Member thereof or by a of impeachment or a citizen files
verified complaint or resolution of a verified complaint that is
impeachment filed by at least one- endorsed by a Member of the
third (1/3) of all the Members of House through a resolution of
the House. endorsement against an
impeachable officer,
impeachment proceedings
against such official are deemed
initiated on the day the
Committee on Justice finds that
the verified complaint and/or
resolution against such official,
as the case may be, is sufficient
in substance, or on the date the
House votes to overturn or affirm
the finding of the said Committee
 that the verified complaint and/or
resolution, as the case may be, is
not sufficient in substance.

In cases where a verified

complaint or a resolution of
impeachment is filed or
endorsed, as the case may be,
by at least one-third (1/3) of the
Members of the
House, impeachment
proceedings are deemed initiated
at the time of the filing of such
verified complaint or resolution of
impeachment with the Secretary
General.

RULE V Section 17. Bar Against Initiation

Of Impeachment Proceedings. –
BAR AGAINST IMPEACHMENT Within a period of one (1) year
from the date impeachment
Section 14. Scope of Bar. – No proceedings are deemed initiated
impeachment proceedings shall be as provided in Section 16 hereof,
initiated against the same official no impeachment proceedings, as
more than once within the period such, can be initiated against the
of one (1) year. same official. (Italics in the
original; emphasis and
underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures
by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)." 3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo
B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on
Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution
which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
 corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being
insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to
the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by
Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella
(Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This
second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House
of Representatives.13

Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in
the House Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5)
of the Constitution, to return the second impeachment complaint and/or strike it off the records
of the House of Representatives, and to promulgate rules which are consistent with the
Constitution; and (3) this Court permanently enjoin respondent House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers,
alleging that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice
or, in the event that the Senate has accepted the same, from proceeding with the impeachment
trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a
writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
he has locus standi to bring petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his
petition for Injunction that the second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House
of Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul
M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors
and agents to desist from conducting any proceedings or to act on the impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing
of the second impeachment complaint involves paramount public interest and pray that Sections
16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III
of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens,
citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray
for the issuance of a writ prohibiting respondents House of Representatives and the Senate
from conducting further proceedings on the second impeachment complaint and that this Court
declare as unconstitutional the second impeachment complaint and the acts of respondent
House of Representatives in interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as
an official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of
the Chief Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that
as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays
in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction"
that the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance, prays
in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and
(3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the
resolution of endorsement and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the
impeachment trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to the
Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of
the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of
the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion
was put forth that the second impeachment complaint be formally transmitted to the Senate, but
it was not carried because the House of Representatives adjourned for lack of quorum, 19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives
and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at
10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this
Court called on petitioners and respondents to maintain the status quo, enjoining all the parties
and others acting for and in their behalf to refrain from committing acts that would render the
petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose
C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin
the House of Representatives, which is an independent and co-equal branch of government
under the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a
Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as
the impeachment court to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of
the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments
on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain
exclusively to the proceedings in the House of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put
Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the
petitions as the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang

Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World
War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.

The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3,
2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke
it; on what issues and at what time; and whether it should be exercised by this Court at
this time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);
 c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of
the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise
of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining.
These matters shall now be discussed in seriatim.

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.

This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:

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. (Emphasis
supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:

x x x In 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 and
among the integral or constituent units thereof.
 As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said instrument. The Constitution sets
forth in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels,for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living
constitution. In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence
for a period of more than one and a half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of article VIII of our
Constitution.

The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is
the power of judicial review under the Constitution. Even then, this power of judicial
review is limited to actual cases and controversies to be exercised after full opportunity
of argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon questions of wisdom, justice
or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.24 (Italics in the original; emphasis and underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial
power itself, which is "the power of the court to settle actual controversies involving rights which
are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence
for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the
supreme law of the land, the constitution itself is first mentioned; and not the laws of the
United States generally, but those only which shall be made in pursuance of the
constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a law
repugnant to the constitution is void; and that courts, as well as other departments, are
bound by that instrument.28(Italics in the original; emphasis supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral

component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure coordination in the workings
of the various departments of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.32 (Emphasis and underscoring
supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial
review is the chief, indeed the only, medium of participation – or instrument of intervention – of
the judiciary in that balancing operation."34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored
in the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:

xxx

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of 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 or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance that
in a number of cases against the government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ of habeas corpus, that is,
the authority of courts to order the release of political detainees, and other matters
related to the operation and effect of martial law failed because the government set up
the defense of political question. And the Supreme Court said: "Well, since it is political,
we have no authority to pass upon it." The Committee on the Judiciary feels that this was
not a proper solution of the questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies and offices
of the government as well as those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters of this nature.
 This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original; emphasis and underscoring
supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:

We look to the language of the document itself in our search for its meaning. We do not
of course stop there, but that is where we begin. It is to be assumed that the words in
which constitutional provisions are couched express the objective sought to be attained.
They are to be given their ordinary meaning except where technical terms are employed
in which case the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain that it should
ever be present in the people's consciousness, its language as much as possible should
be understood in the sense they have in common use. What it says according to the text
of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what they
say. Thus these are the cases where the need for construction is reduced to a
minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame

Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in constitutional construction
is to ascertain and thereafter assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also be safely assumed that the
 people in ratifying the Constitution were guided mainly by the explanation offered by the
framers.41 (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated a

provision of our Constitution merely for the benefit of one person without considering that
it could also affect others.When they adopted subsection 2, they permitted, if not willed,
that said provision should function to the full extent of its substance and its terms, not by
itself alone, but in conjunction with all other provisions of that great
document.43 (Emphasis and underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the
whole purpose of the Constitution and one section is not to be allowed to defeat another,
if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make
the words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings
are powerless to vary the terms of the Constitution when the meaning is clear. Debates
in the constitutional convention "are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the mass of our fellow citizens
whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was understood by the people adopting
it than in the framers's understanding thereof.46 (Emphasis and underscoring supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49

In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system
of checks and balances, under which impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in fashioning relief.51 Respondents likewise
point to deliberations on the US Constitution to show the intent to isolate judicial power of review
in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution
and American authorities cannot be credited to support the proposition that the Senate's "sole
power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial review to check
and restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the
case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the
U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court
and lower courts, as expressly provided for in the Constitution, is not just a power but also
a duty, and it was given an expanded definition to include the power to correct any grave abuse
of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution
with respect to the power of the House of Representatives over impeachment proceedings.
While the U.S. Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to impeach, and the one
year bar on the impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this
Court to exercise judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively, recognizing full well the
perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v. Carr,57"judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support
of the argument that the impeachment power is beyond the scope of judicial review, are not in
point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the
House of Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the
House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the
legislative power is vested exclusively in Congress, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before such member-
elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review
over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned to
it by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest possible opportunity; and (4)
the issue of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies
to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not
have standing since only the Chief Justice has sustained and will sustain direct personal
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this
Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in
cases involving paramount public interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to determine whether or not the other branches
of the government have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them.72 Amicus curiae Dean Raul
Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that, when the real party in interest is unable
to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant
petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties can maintain an
action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or by
official action taken, but by concerned citizens, taxpayers or voters who actually sue in
the public interest. Hence the question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party
who would be benefited or injured by the judgment, or the 'party entitled to the avails of
the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional
acts of the House of Representatives, none of the petitioners before us asserts a violation of the
personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit;
and members of the bar and of the legal profession – which were supposedly violated by the
alleged unconstitutional acts of the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves
the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of
personal interest.

In the case of a taxpayer, he is 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
there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he would sustain a direct injury as a result of the enforcement of the questioned statute
or contract. It is not sufficient that he has merely a general interest common to all members of
the public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing
trial of the Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.83

While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the
issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court
to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle, binding on all members
of the class whether or not they were before the court.89 Where it clearly appears that not all
interests can be sufficiently represented as shown by the divergent issues raised in the
numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionallyallege standing as citizens and taxpayers, however, their petition will
stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are
instructive: (1) the character of the funds or other assets involved in the case; (2) the presence
of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being raised.90 Applying these determinants,
this Court is satisfied that the issues raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public.91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the matter
is totally eliminated. A party must, at the very least, still plead the existence of such interest, it
not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to
allege any interest in the case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they
raise the same issues and the same standing, and no objection on the part of petitioners
Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for
Leave of Court to Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to
join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,
alleging that "they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for intervention had been
complied with.

Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
raise the additional issue of whether or not the second impeachment complaint against the
Chief Justice is valid and based on any of the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et

al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in
the matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against
which the herein petitions are directed. For this reason, and to fully ventilate all substantial
issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier
stated, allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:
 x x x While, concededly, the elections to be held involve the expenditure of public
moneys, nowhere in their Petition do said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional protection against abuses of
legislative power," or that there is a misapplication of such funds by respondent
COMELEC, or that public money is being deflected to any improper purpose. Neither do
petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected to
any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to
clothe him with standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture." 96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged
in an appropriate legal proceeding.

The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second impeachment complaint had been filed
with the House of Representatives and the 2001 Rules have already been already promulgated
and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be
no urgent need for this Court to render a decision at this time, it being the final arbiter on
questions of constitutionality anyway. He thus recommends that all remedies in the House and
Senate should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves when
the Articles of Impeachment are presented on a motion to transmit to the same to the Senate.
The dean maintains that even assuming that the Articles are transmitted to the Senate, the
Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of
Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither
the House of Representatives nor the Senate is clothed with the power to rule with
definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or
otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I,
Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power
to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, 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.99(Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason,
this Court vacillated on its stance of taking cognizance of cases which involved political
questions. In some cases, this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies.101 Even in
the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of
whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a
political question, it being a question decided by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment
that the judiciary is the weakest among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the judiciary has nothing with which to
enforce its decisions or commands except the power of reason and appeal to conscience which,
after all, reflects the will of God, and is the most powerful of all other powers without exception.
x x x And so, with the body's indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of 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 or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance that
in a number of cases against the government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ of habeas corpus, that is,
the authority of courts to order the release of political detainees, and other matters
related to the operation and effect of martial law failed because the government set up
the defense of political question. And the Supreme Court said: "Well, since it is political,
we have no authority to pass upon it." The Committee on the Judiciary feels that this was
not a proper solution of the questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. I am sure the members of the Bar are
familiar with this situation. But for the benefit of the Members of the Commission who are
not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973
on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law
was announced on September 22, although the proclamation was dated September 21.
The obvious reason for the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September 21. So that when martial
law was announced on September 22, the media hardly published anything about it. In
fact, the media could not publish any story not only because our main writers were
already incarcerated, but also because those who succeeded them in their jobs were
under mortal threat of being the object of wrath of the ruling party. The 1971
Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had
not finished the Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial law, some delegates to
that 1971 Constitutional Convention, dozens of them, were picked up. One of them was
our very own colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacañang. In 17 days, they finished
what the delegates to the 1971 Constitutional Convention had been unable to
accomplish for about 14 months. The draft of the 1973 Constitution was presented to the
President around December 1, 1972, whereupon the President issued a decree calling a
plebiscite which suspended the operation of some provisions in the martial law decree
which prohibited discussions, much less public discussions of certain matters of public
concern. The purpose was presumably to allow a free discussion on the draft of the
Constitution on which a plebiscite was to be held sometime in January 1973. If I may use
a word famous by our colleague, Commissioner Ople, during the interregnum, however,
the draft of the Constitution was analyzed and criticized with such a telling effect that
Malacañang felt the danger of its approval. So, the President suspended indefinitely the
holding of the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the questions to be submitted
in the referendum were not announced until the eve of its scheduled beginning, under
the supposed supervision not of the Commission on Elections, but of what was then
designated as "citizens assemblies or barangays." Thus the barangays came into
existence. The questions to be propounded were released with proposed answers
thereto, suggesting that it was unnecessary to hold a plebiscite because the answers
given in the referendum should be regarded as the votes cast in the plebiscite.
Thereupon, a motion was filed with the Supreme Court praying that the holding of the
referendum be suspended. When the motion was being heard before the Supreme
Court, the Minister of Justice delivered to the Court a proclamation of the President
declaring that the new Constitution was already in force because the overwhelming
majority of the votes cast in the referendum favored the Constitution. Immediately after
the departure of the Minister of Justice, I proceeded to the session room where the case
was being heard. I then informed the Court and the parties the presidential proclamation
declaring that the 1973 Constitution had been ratified by the people and is now in force.

A number of other cases were filed to declare the presidential proclamation null and
void. The main defense put up by the government was that the issue was a political
question and that the court had no jurisdiction to entertain the case.

xxx

The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members
of the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference

between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the case.
This is not the only major case in which the plea of "political question" was set up. There
have been a number of other cases in the past.

x x x The defense of the political question was rejected because the issue was clearly
justiciable.

xxx

x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There
are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a
 decided case, a husband complained that his wife was unwilling to perform her duties as
a wife. The Court said: "We can tell your wife what her duties as such are and that she is
bound to comply with them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by law, but they are so
personal that to enforce them by actual compulsion would be highly derogatory to
human dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important
function. The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme within
its own sphere and independent of the others. Because of that supremacy power to
determine whether a given law is valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies and offices
of the government as well as those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an
initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis
supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not
vested in the Supreme Court alone but also in other lower courts as may be created by
law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political
questions with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

 MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where
there is a question as to whether the government had authority or had abused its
authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political
question. Therefore, the court has the duty to decide.

xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme
Court according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political question
doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting

to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with
the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial power. But
the Gentleman will notice it says, "judicial power includes" and the reason being that the
definition that we might make may not cover all possible areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from the political
question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions
are beyond the pale of judicial power.104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although said provision by
no means does away with the applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case of Baker
v. Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question.112(Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion. These
standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.

In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits
on powers or functions conferred upon political bodies. If there are, then our courts are duty-
bound to examine whether the branch or instrumentality of the government properly acted within
such limits. This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section
3(4), Article XI of the Constitution.

III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the
12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of
the Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI
of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require
this Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In
fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:
 x x x It is a well-established rule that a court should not pass upon a constitutional
question and decide a law to be unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the record also presents some other
ground upon which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a decision
upon such question will be unavoidable.116 [Emphasis and underscoring supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into such a
question are first satisfied. Thus, there must be an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination, the constitutional question
must have been opportunely raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the case itself.118 [Emphasis
supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome
of this controversy could possibly be made to rest. In determining whether one, some or all of
the remaining substantial issues should be passed upon, this Court is guided by the related
cannon of adjudication that "the court should not form a rule of constitutional law broader than is
required by the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling
for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers;
(c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an
assault on the independence of the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of
this Court that the issue of the constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in general,
which would thus be broader than is required by the facts of these consolidated cases. This
opinion is further strengthened by the fact that said petitioners have raised other grounds in
support of their petition which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
 The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted
provision of the Constitution. Thus, as provided therein, the investigation must be "in aid
of legislation in accordance with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries shall be respected." It follows
then that the right rights of persons under the Bill of Rights must be respected, including
the right to due process and the right not be compelled to testify against one's self.123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by Representatives Gilberto
Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of
Section 3 (4), Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at

least one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a
Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the
application of the afore-mentioned section in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the Members of the House." With the
exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are
alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point to
the "Verification" of the Resolution of Endorsement which states that:

"We are the proponents/sponsors of the Resolution of Endorsement of the

abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for
said second impeachment complaint to automatically become the Articles of Impeachment and
for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely
endorsed, by at least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment complaint should
have been calendared and referred to the House Committee on Justice under Section 3(2),
Article XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
 Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by
the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions
would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but
the efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination
of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute
the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the
House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

Judicial Restraint

Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of
impeachment. Again, this Court reiterates that the power of judicial review includes the power of
review over justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses because Members of
the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to
take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas,
"jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it,
it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office,
the public has laid on [a member of the judiciary] their confidence that [he] is mentally and
morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him]
to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or
power and to be equipped with a moral fiber strong enough to resist the temptations lurking in
[his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled in
the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all
of them were interested parties to said case as respondents therein. This would have reduced
the Tribunal's membership to only its three Justices-Members whose disqualification was not
sought, leaving them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator
sitting in the Tribunal by any of his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully discharge if shorn of
the participation of its entire membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal be not prevented
from discharging a duty which it alone has the power to perform, the performance of
which is in the highest public interest as evidenced by its being expressly imposed by no
less than the fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election contest that
would involve all Senators—elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the
Constitution provides no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose disqualification may be
sought. Litigants in such situations must simply place their trust and hopes of vindication
in the fairness and sense of justice of the Members of the Tribunal. Justices and
Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
 Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial judgment. What
we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of Senators and that no
amendment of its Rules can confer on the three Justices-Members alone the power of
valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them,
is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And
if that judge is the one designated by the Constitution to exercise the jurisdiction of his
court, as is the case with the Justices of this Court, the deprivation of his or their judicial
power is equivalent to the deprivation of the judicial power of the court itself. It affects the
very heart of judicial independence. The proposed mass disqualification, if sanctioned
and ordered, would leave the Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire membership of
Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions 'is legitimate only in
the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by
the record, if there is also present some other ground upon which the case may be
disposed of. This rule has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from
the highest court of a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can be sustained on an
independent state ground.
 5. The Court will not pass upon the validity of a statute upon complaint of one who fails
to show that he is injured by its operation. Among the many applications of this rule,
none is more striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible by which the question
may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the following
categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of the
case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the
statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano
echoes this argument by alleging that failure of this Court to enforce its Resolution against
Congress would result in the diminution of its judicial authority and erode public confidence and
faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court
to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon
their constitutional duties just because their action may start, if not precipitate, a crisis.

Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded
as settled until the Supreme Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also political consequences.
Those political consequences may follow even where the Court fails to grant the
petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently,
failure to act explicitly, one way or the other, itself constitutes a decision for the
respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there
were not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the
pre-existing constitutional order was disrupted which paved the way for the establishment of the
martial law regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches
of the government would behave in a lawless manner and not do their duty under the law to
uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any
of the branches of government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine
in People v. Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If [public
officers], under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting under its authority.
Under this system, [public officers] are guided by the Rule of Law, and ought "to protect
and enforce it without fear or favor," resist encroachments by governments, political
parties, or even the interference of their own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16

and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of
our present Constitution, contending that the term "initiate" does not mean "to file;" that Section
3 (1) is clear in that it is the House of Representatives, as a collective body, which has the
exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to
file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be
accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of
the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any
member; or (3) by at least 1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate Justices had not been initiated as
the House of Representatives, acting as the collective body, has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions held on November
5, 2003 at which he added that the act of "initiating" included the act of taking initial action on
the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article
XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The beginning or the initiation
is the filing of the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives
Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the
Justice Committee votes in favor of impeachment or when the House reverses a
contrary vote of the Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The language is recognition
that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a
time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of
the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its
records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many proposals
and, I think, these would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment proceedings starting
with initiation, action of the Speaker committee action, calendaring of report, voting on
the report, transmittal referral to the Senate, trial and judgment by the Senate.

xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment
on the floor. The procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment is the one approved by the
body.

As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the resolution. It
is not the body which initiates it. It only approves or disapproves the resolution. So, on
that score, probably the Committee on Style could help in rearranging these words
because we have to be very technical about this. I have been bringing with me The
Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with
me. The proceedings on the case of Richard Nixon are with me. I have submitted my
proposal, but the Committee has already decided. Nevertheless, I just want to indicate
this on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
 "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or
to override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned
on line 25 in the case of the direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of the
House of Representatives of the United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in
deleting the phrase "to initiate impeachment proceedings" as contained in the text of the
provision of Section 3 (3) was to settle and make it understood once and for all that the initiation
of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of
the House in a resolution of impeachment does not initiate the impeachment proceedings which
was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article
XI of the Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used
in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object
in the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that the House, by a vote
of one-third of all its members, can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No other body can do it. However,
before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin
word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the Senate but in the House and consists
of several steps: (1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects
or upholds the complaint, the resolution must be forwarded to the House for further processing;
and (4) there is the processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a contrary resolution by a
vote of one-third of all the members. If at least one third of all the Members upholds the
complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point
that the House "initiates an impeachment case." It is at this point that an impeachable public
official is successfully impeached. That is, he or she is successfully charged with an
impeachment "case" before the Senate as impeachment court.

Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is
initiated or begins, when a verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal
to delete the line on the ground that the vote of the House does not initiate impeachment
proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not
found in the present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action.
By his explanation, this interpretation is founded on the common understanding of the meaning
of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people,
both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary
meaning into ordinary words and not abstruse meaning, they ratify words as they understand it
and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the
exclusive power to initiate all cases of impeachment," This is a misreading of said provision and
is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of
the impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement
of the impeachment complaint to the House Committee on Justice or, by the filing by at least
one-third of the members of the House of Representatives with the Secretary General of the
House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed against the same
official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment

proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice
that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning
from filing and referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know more about the real meaning because
of the latter's balanced perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission – Chief
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the
records of the deliberations and proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:
 Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary to
either affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have
the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and the
result which is sought to be attained. It is only within these limitations that all matters of method
are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia,
Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic
as he stressed that in the Philippine setting there is even more reason for courts to inquire into
the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of power if we
assume jurisdiction over he case at bar. Even in the United States, the principle of
separation of power is no longer an impregnable impediment against the interposition of
judicial power on cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view
the issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the
rules of its proceedings." It appears that in pursuance of this authority the House had,
prior to that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be
noted by the clerk and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in determining the
presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort
to for determining the presence of a quorum, nor what matters the Speaker or clerk may
of their own volition place upon the journal. Neither do the advantages or disadvantages,
the wisdom or folly, of such a rule present any matters for judicial consideration. With the
courts the question is only one of power. The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules ignore constitutional restraints
or violate fundamental rights, and there should be a reasonable relation between the
mode or method of proceedings established by the rule and the result which is sought to
be attained. But within these limitations all matters of method are open to the
determination of the House, and it is no impeachment of the rule to say that some other
way would be better, more accurate, or even more just. It is no objection to the validity of
a rule that a different one has been prescribed and in force for a length of time. The
power to make rules is not one which once exercised is exhausted. It is a continuous
power, always subject to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by the
Court and it was found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable
relationship with the result sought to be attained. By examining Rule XV, the Court did
not allow its jurisdiction to be defeated by the mere invocation of the principle of
separation of powers.154

xxx

In the Philippine setting, there is a more compelling reason for courts to categorically
reject the political question defense when its interposition will cover up abuse of power.
For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts
"x x x to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government." This power is new and was not granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the US Constitution or any foreign state
constitution. The CONCOM granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were shielded
from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent
former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the
checking powers of the judiciary vis-à-vis the Executive and the Legislative departments
of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere power
which it can decline to exercise. Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of a branch or instrumentality of
government or any of its officials done with grave abuse of discretion amounting to lack
or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking
powers of this Court against the other branches of government despite their more
democratic character, the President and the legislators being elected by the people.156

xxx

The provision defining judicial power as including the 'duty of the courts of justice. . . 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'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was
dictated by our experience under martial law which taught us that a stronger and more
independent judiciary is needed to abort abuses in government. x x x

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court
from passivity to activism. This transformation, dictated by our distinct experience as
nation, is not merely evolutionary but revolutionary.Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially determining what
it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is
mandated to approach constitutional violations not by finding out what it should not do
but what it must do. The Court must discharge this solemn duty by not resuscitating a
past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of
our power to review violations of the rules of the House. We will not be true to our trust
as the last bulwark against government abuses if we refuse to exercise this new power
or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the
judicial sword that has increasingly emboldened other branches of government to
denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial power is
distinctly Filipino and its interpretation should not be depreciated by undue reliance on
 inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own
history should provide us the light and not the experience of foreigners.157 (Italics in the
original emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or
(2) once the House itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment complaint
and referral to the House Committee on Justice, the initial action taken thereon, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in
the foregoing manner, another may not be filed against the same official within a one year
period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally exhausting experience.
Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe
to be the correct position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets
armed with their familiar slogans and chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe and denominations of faith – offered
suggestions for a return to a state of normalcy in the official relations of the governmental
branches affected to obviate any perceived resulting instability upon areas of national life.

Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-
interference was made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full
of all the requisite conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a
genuine constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in
fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only
the main issue of whether the impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go
about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative of their own powers to
bring about ultimately the beneficent effects of having founded and ordered our society upon the
rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is
that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations
or speculations could be made to it, so long as it rendered judgment according to the law and
the facts. Why can it not now be trusted to wield judicial power in these petitions just because it
is the highest ranking magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official act as tested by
the limits set by the Constitution? Of course, there are rules on the inhibition of any member of
the judiciary from taking part in a case in specified instances. But to disqualify this entire
institution now from the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of
its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual's rights irrespective of his station in
life.

The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has
resorted to no other than the Constitution in search for a solution to what many feared would
ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to
have found answers in our bedrock of legal principles, it is equally important that it went through
this crucible of a democratic process, if only to discover that it can resolve differences without
the use of force and aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario
G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on
October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

Bellosillo and Tinga, JJ., see separate opinion.

Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
Case 5: In Re Vallarta and Valenzuela

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 98-5-01-SC November 9, 1998

In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24,
Cabananatuan City, respectively.

NARVASA, C.J.:

The question presented for resolution in the administrative matter at bar is whether, during the
period of the ban on appointments imposed by Section 15, Article VII of the, Constitution, the
President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9
of Article VIII. A corollary question is whether he can make appointments to the judiciary during
the period of the ban in the interest of public service.

Resolution of the issues is needful; it will preclude a recurrence of any conflict in the matter of
nominations and appointments to the Judiciary — as that here involved — between the Chief
Executive, on the one hand, and on the other, the Supreme Court and the Juducial and Bar
Council over which the Court exercises general supervision and wields specific powers
including the assignment to it of other functions and duties in addition to its principal one of
recommending appointees to the Judiciary, and the determination of its Members emoluments.1

I. The Relevant Facts

The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the relevant facts
and is for that reason hereunder reproduced in full.

Referred to the Court En Banc by the Chief Justice are the appointments signed
by His Excellency the President under date of March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively. The
appointments were received at the Chief Justice's chambers on May 12, 1998.
The referral was made in view of the serious constitutional issue concerning said
appointments arising from the pertinent antecedents.

The issue was first ventilated at the meeting of the Judicial and Bar Council on
March 9, 1998. The meeting had been called, according to the Chief Justice
as Ex Officio Chairman, to discuss the question raised by some sectors about the
"constitutionality of ** appointments" to the Court of Appeals, specifically, in light
of the forthcoming presidential elections. Attention was drawn to Section 15,
Article VII of the Constitution reading as follows:

Sec. 15. Two months immediately before the next presidential

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

On the other hand, appointments to fill vacancies in the Supreme Court during
the period mentioned in the provision just quoted could seemingly be justified by
another provision of the same Constitution Section 4 (1) of Article VIII which
states:

Sec. 4 (1) The Supreme Court shall be composed of a Chief

Justice and fourteen Associate Justices. ** **. Any vacancy shall
be filled within ninety days from the occurrence thereof.

Also pertinent although not specifically discussed is Section 9 of the same Article
VIII which provides that for the lower courts, the President shall issue the
appointments — from a list of at least three nominees prepared by the Council
for every vacancy — within ninety days from the submission of the list.

The view was then expressed by Senior Associate Justice Florenz D. Regalado,
Consultant of the Council, who had been a member of the Committee of the
Executive Department and of the Committee on the Judicial Department of the
1986 Constitutional Commission, that on the basis of the commission's records,
the election ban had no application to appointments to the Court of Appeals.
Without any extended discussion or any prior research and study on the part of
the other Members of the JBC, this hypothesis was accepted, and was then
submitted to the President for consideration, together with the Council's
nominations for eight (8) vacancies in the Court of Appeals.

On April 6, 1998 the Chief Justice received an official communication from the
Executive Secretary transmitting the appointments of eight (8) Associate Justices
of the Court of Appeals all of which had been duly signed on March 11, 1998 by
His Excellency the President. In view of the fact that all the appointments had
been sign on March 11, 1998 — the day immediately before the commencement
of the ban on appointments imposed by Section 15, Article VII of the Constitution
— who impliedly but no less clearly indicated that the President's Office did not
agree with the hypothesis that appointments to the Judiciary were not covered by
said ban, the Chief Justice resolved to defer consideration of nominations for the
vacancy in the Supreme Court created by the retirement of Associate Justice
Ricardo J. Francisco, specially considering that the Court had scheduled
sessions in Baquio City in April, 1998, that the legislature's representatives to the
JBC were occupied with the forthcoming elections, and that a member of the
Council was going on a trip out of the country.

On May 4, 1998, the Chief Justice received a letter from the President,
addressed to the JBC, requesting transmission of the "list of final nominees" for
the vacancy "no later than Wednesday, May 6, 1998" in view of the duty imposed
on him by the Constitution "to fill up the vacancy ** within ninety (90) days from
February 13, 1998, the date the present vacancy occurred.

On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief
Justice for "guidance" respecting the expressed desire of the "regular members"
of the JBC to hold a meeting immediately to fill up the vacancy in the Court in line
with the President's letter of May 4. The Chief Justice advised Secretary Bello to
await the reply that he was drafting to the President's communication, a copy of
which he would give the Secreatary the following day.

On May 6, 1998 the Chief Justice sent his reply to the President. He began by
stating that no sessions had been scheduled for the Council until after the May
elections for the reason that apparently the President's Office did not share the
view posited by the JBC that Section 15, Article VII of the Constitution had no
application to JBC-recommendend appointments — the appointments to the
Court of Appeals having been all uniformly dated March 11, 1998, before the
commencement of the prohibition in said provision — thus giving rise to the
"need to undertake further study of the matter," prescinding from "the-desire to
avoid any constitutional isssue regarding the appointment to the mentioned
vacancy" and the further fact that "certain senior members of the Court of
Appeals ** (had) asked the Council to reopen the question of their exclusion on
account of age from such (final) list." He closed with the assurance that the JBC
expected to deliberate on the nominations "forthwith upon the completion of the
coming elections." The letter was delivered to Malacañang at about 5 o'clock in
the afternoon of May 6, 1998 and a copy given to the Office of Justice Secretary
Bello shortly before that hour.

It would appear, however, that the Justice Secretary and the regular members of
the Council had already taken action without awaiting the Chief Justice's
promised response to the President's letter of May 4, 1998. On that day, May 6,
1998, they met at some undisclosed place, deliberated, and came to an
agreement on a resolution which they caused to be reduced to writing and
thereafter signed. In that two-page Resolution they drew attention to Section 4
(1), Article VIII of the Constitution (omitting any mention of Section 15, Article VII)
as well as to the President's letter of May 4 in which he "emphatically requested
that the required list of final nominees be submitted to him;" and pointing out that
the "Council would be remiss in its duties" should it fail to submit said
nominations, closed with an appeal that the Chief Justice convene the Council for
the purpose "on May 7, 1998, at 2:00 o'clock in the afternoon." This Resolution
they transmitted to the Chief Justice together with their letter, also dated May 6,
in which they emphasized that "we are pressed for time" again drawing attention
to Section 4 (1). Article VIII of the Constitution (and again omitting any reference
to Section 15, Article VII). They ended their letter with the following intriguing
paragraph:

Should the Chief Justice be not disposed to call for the meeting
aforesaid, the undersigned members constituting the majority will
be constrained to convene the Council for the purpose of
complying with its Constitutional mandate:

It seems evident, as just intimated, that the resolution and the covering letter
were deliberated on, prepared and signed hours before delivery of the Chief
Justice's letter to the President and the Justice Secretary.

Since the Members of the Council appeared determined to hold a meeting

regardless of the Chief Justice's wishes, the latter convoked the Council to a
meeting at 3 o'clock in the afternoon of May 7, 1998. Present at the meeting were
the Chief Justice, Secretary Bello, ex officio member and the regular members of
the Council: Justice Regino Hermosisima. Atty. Teresita Cruz Sison, Judge
Cesar C. Peralejo. Also present, on invitation of the Chief Justice, were Justices
Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S.
Puno, Jose C. Vitug, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M.
Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The Chief Justice
reviewed the events leading to the session, and after discussion, the body
agreed to give the President time to answer the Chief Justice's letter of May 6,
1998.

On May 7, 1998, the Chief Justice received a letter from his Excellency the
President in reply to his letter of May 6 (which the President said had been
"received early this morning"). The President expressed the view that "the
election-ban provision (Article VII, Sec. 15) ** applies only to executive
appointments or appointments in the executive branch of government," the whole
article being "entitled 'EXECUTIVE DEPARTMENT."' He also observed that
further proof of his theory "is the fact that appointments to the judiciary have
special, specific provisions applicable to them" (citing Article VIII, Sec, 4 (1) and
Article VIII, Section 9. In view thereof, he "firmly and respectfully
reiterate(d) ** (his) request for the Judicial and Bar Council to transmit ** the final
list of nominees for the lone Supreme Court vacancy."

The Chief Justice replied to the letter the following day, May 8, 1998. Since the
Chief Justice's letter explains the issue quite, plainly, it is here quoted in full.

Thank you for your letter of May 7, 1998, responding to my own

communication of May 6, 1998 which, I would like to say reflects
 the collective sentiments of my colleagues in the Supreme Court.
Knowing how busy you are, I will deal straightaway with the points
set out in your letter.

The dating of the latest appointments to the Court of Appeals was

adverted to merely to explain how we in the Court and the JBC
came to have the impression that you did not share the view
expressed in the JBC minutes of March 9, 1998 that there is no
election ban with regard to the JBC appointments. Be this as it
may, the Court feels that there is a serious question concerning
the matter in light of the seemingly inconsistent provision of the
Constitution. The first of these is Section 15, Article VII, which
reads:

Sec. 15. Two months immediately before the next presidential

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

The second is Section 4 (1) of Article VIII which states:

Sec. 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. ** ** Any vacancy shall be filled within ninety days from the
occurrence thereof.

As you can see, Your Excellency, Section 15 of Article VII imposes a direct
prohibition on the President: he "shall not make appointments" within the period
mentioned, and since there is no specification of which appointments are
proscribed, the same may be considered as applying to all appointments of any
kind and nature. This is the general rule then, the only exception being only as
regards "executive positions" as to which "temporary appointments may be made
within the interdicted period "when continued vacancies therein will prejudice
public service or endanger public safety." As the exception makes reference only
to "executive" positions, it would seem that "judicial" positions are covered by the
general rule.

On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the
Supreme Court "shall be filled within ninety days from the occurrence thereof."
Unlike Section 15 Article VII, the duty of filling the vacancy is not specifically
imposed on the President; hence, it may be inferred that it is a duty shared by the
Judicial and Bar Council and the President.

Now, in view of the general prohibition in the first-quoted provision, how is the
requirement of filling in the Court within ninety days to be construed? One
interpretation that immediately suggests itself is that Section 4 (1), Article VIII is a
general provision while Section 15, Article VII is a particular one; that is to say,
normally, when there are no presidential elections — which after all, occur only
every six years — Section 4 (1), Article VIII shall apply: vacancies in the
Supreme Court shall be filled within 90 days; but when (as now) there are
presidential elections, the prohibition in Section 15, Article VII comes into play:
the President shall not make any appointments. The reason for said prohibition,
according to Fr. J. Bernas, S.J., an authority on Constitutional Law and himself a
member of the Constitutional Commission, is "(i)n order not to tie the hands of
the incoming President through midnight appointments." Another interpretation is
that put forth in the Minutes of the JBC meeting of March 9, 1998.

I must emphasize that the validity of any appointment to the Supreme Court at
this time hinges on the correct interpretation of the foregoing sections of the
Constitution. On account of the importance of the question, I consulted the Court
about it but, as I stated in my letter of May 6, 1998, "it declined to take any
position, since obviously there had not been enough time to delivarate on the
same ** (although it) did agree that further study wass necessary **.

Since the question has actually come up, and its importance cannot be gainsaid,
and it is the Court that is empowered under the Constitution to make an
authoritative interpretation of its (provisions) or of those of any other law. I
believe that the Court may now perhaps consider the issue ripe for determination
and come to grips with it, to avoid any possible polemics concerning the matter.
However the Court resolves the issue, no serious prejudice will be done. Should
the Court rule that the President is indeed prohibited to make appointments in a
presidential election year, then any appointment Attempted within the proscribed
period would be void anyway. If the Court should adjudge that the ban has no
application to appointments to the Supreme Court, the JBC may submit
nominations and the President may make the appointment forthwith upon such
adjudgment.

The matter is a delicate one, quite obviously, and must thus be dealt with with
utmost circumspection, to avoid any question regarding the validity of an
appointment to the Court at this time, or any accusation of "midnight"
appointments or rash hasty action on the part of the JBC or the President

In view thereof, and upon the advice and consent of the Members of the Court, I
am requesting the regular Members of the Judicial Bar Council to defer action on
the matter until further device by the Court. I earnestly make the same request of
you, Your Excellency. I assure you, however that as befits a matter in which the
Chief Executive has evinced much interest, my colleagues and I will give it
preferential and expeditious attention and consideration. To this end, I intend to
convene the Court by next week, at the latest.

On May 8, 1998, again on the insistence of the regular Members of the JBC,
another meeting was held at which were present the Chief Justice, the Secretary
of Justice and the three regular, Members above mentioned, as well as Justices
Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S.
Puno, Jose C. Vitug, Santiago M. Kapunan, Vicente V. Mendoza, Artemio V.
Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P.
Purisima. The meeting closed with a resolution that "the constitutional
provisions ** (in question) be referred to the Supreme Court En Bancfor
appropriate action, together with the request that the Supreme Court consider
 that the ninety-day period stated in Section 4 (1), Article VIII be suspended or
interrupted in view of the peculiar circumstances. **.

On May 12, 1998, the Chief Justice received from Malacañang the appointments
of two (2) Judges of the Regional Trial Court mentioned above. This places on
the Chief Justice the obligation of acting thereon: i.e., transmitting the
appointments to the appointees so that they might take their oaths and assume
the duties of their office. The trouble is that in doing so, the Chief Justice runs the
risk of acting in a manner inconsistent with the Constitution, for these
appointments appear prima facie, at least, to be expressly prohibited by Section
15, Article VII of the Charter. This circumstance, and the referral of the
constitutional question to the Court in virtue of the Resolution of May 8,
1998, supra operate to raise a justiciable issue before the Court, an issue of
sufficient importance to warrant consideration and adjudication on the merits.

Accordingly, the Court Resolved to (1) CONSIDER the case at bar an

administrative matter and cause it to be appropriately docketed: (2) to DIRECT
the Clerk of Court to immediately serve copies of this Resolution on (a) the Office
of the President, (b) the Office of the Solicitor General. (c) Hon. Mateo A.
Valenzuela, and (d) Hon. Placido B. Vallarta (at their addresses recorded in the
Judicial and Bar Council); and (3) to REQUIRE the Office of the President, the
Office of the Solicitor General, Hon. Mateo A. Valenzuela, and Hon. Placido B.
Vallarta to file their comments on this Resolution within fifteen (15) days from
notice thereof.

The Court further Resolved that (1) pending the foregoing proceedings and the
deliberation by the Court on the matter, and until further orders, no action be
taken on the appointments of Hon. Valenzuela and Hon. Vallarta which in the
meantime shall be held in abeyance and not given any effect and said
appointees shall refrain from taking their oath of office; and that (2) exercising its
power of supervision over the Judicial and Bar Council, said Council and its ex
officio and regular Members herein mentioned be INSTRUCTED, as they are
herby INSTRUCTED, to defer all action on the matter of nominations to fill up the
lone vacancy in the Supreme Court or any other vacancy until further orders.

SO ORDERED.

II The Relevant Pleadings

In compliance with the foregoing Resolution, the following pleadings and other documents were
filed; to wit:

1) the manifestation dated May 28, 1998 of Hon. Mateo

A.Valenzuela in compliance with the Resolution of May 14, 1998;

2) the letter dated June 1, 1998 of Hon. Placido B. Vallarta in

compliance with the same Resolution;

3) the "Comments" of Hon. Valenzuela dated May 25, 1998;

 4) his "Addendum to Comments" dated June 8, 1998;

5) his "Explanation" dated June 8, 1998;

6) the letter of Hon. Vallarta dated June 8, 1998;

7) his letter dated June 16, 1998;

8) the "Explanation" of Hon.Valenzuela dated July 17, 1998: and

9) the "Comment" of the Office of the Solicitor General dated

August 5, 1998.

A. Valenzuela's Assumption of Duty

as Judge on May 14, 1998

In his Manifestation dated May 28, 1998, Judge Valenzuela alleged inter alia :

** that on May 14, 1998, he took his Oath of Office as Judge, RTC Branch 62,
Bago City, before Hon. Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod
City, pursuant to the Appointment dated March 30, 1998, (and) he also, reported
for duty as such before said RTC Branch 62, Bago City ** (and that he did so)
"faultless!y," ** without knowledge of the on-going deliberations on the matter.

At that time, the originals of the appointments of Messrs. Valenzuela and Vallarta, dated March
30, 1998 — addressed to them "Thru: the Chief Justice, Supreme Court of the Philippines,
Manila, and which had been sent to and received by the Chief Justice on May 12, 19982 —
were still in the latter's Office, and had not been transmitted to them precisely because of the
serious issue concerning the validily of their appointments. Indeed, one of the directives in the
Resolution of May 14, 1998 was that "pending ** deliberatibn by the Court on the matter, and
until further orders, no action be taken on the appointments ** which in the meantime shall be
held in abeyance and not given any effect **." For this reason, by Resolution dated June 23,
1998, the Court required Valenzuela to EXPLAIN by what authority he had taken his oath on
May 14, 1998 as Judge of Branch 62 of the RTC at Bago City. In his "Explanation" dated July
17, 1998. Valenzuela stated that he did so because on May 7, 1998 he "received from
Malacañang copy of his appointment **" which contained the following direction: "By virtue
hereof, you may qualify and enter upon the performance of the duties of the office **."

The Court then deliberated on the pleadings and documents above mentioned, in relation to the
facts and circumstances on record and thereafter Resolved to promulgate the following opinion.

III. The Relevant Constitutional Provisions

The provisons of the Constitution material to the inquiry at bar read as follows:3

Sec. 15, Article VII:

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

Sec. 4 (1), Article VIII :

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

Sec. 9, Article VIII :

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

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

IV. The Court's View

The Court's view is that during the period stated in Section 15. Article VII of the Constitution —
"(t)wo months immediatey before the next presidential elections and up to the end his term" —
the President is neither required to make appointments to the courts nor allowed to do so; and
that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill
vacancies in the courts within the time frames provided therein unless prohibited by Section 15
of Article VII. It is not noteworthy that the prohibition on appointments comes into effect only
once every six years.

V Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the
original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum
wanted to increase the number of Justices to fifteen. He also wished to ensure that that number
would not be reduced for any appreciable length of time (even only temporarily), and to this end
proposed that any vacancy. "must be filled within two months from the date that the vacancy
occurs." His proposal to have a 15-member Court was not initially adopted. Persisting however
in his desire to make certain that the size of the Court would not be decreased for any
substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent
the Court's membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME
SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later
agreed to suggestions to make the period three, instead of two, months. As thus amended, the
proposal was approved.4 As it turned out; however, the Commission ultimately agreed on a
fifteen-member Court.5 Thus it was that the section fixing the composition of the Supreme Court
came to include a command to fill up any vacancy therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any "vacany shall be filled
within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition Section 15, Article VII, which is couched in stronger negative language — that "a
President or Acting President shall not make appointments. . ."

The Commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a
Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph:
WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of
nominees by the Judicial and Bar Council to the President).6 Davide stated that his purpose was
to provide a "uniform rule" for lower courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the President in view of the possibility that
the President might reject the list submitted to him and the JBC thus need more time to submit a
new one.7

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

VI. Analysis of Provisions

Now, it appears that Section 15, Article VI is directed against two types of appointments: (1)
those made for buying votes and (2) those made for partisan considerations. The first refers to
those appointments made within the two months preceding a Presidential election and are
similar to those which are declared elections offenses in the Omnibus Election Code, viz.:8

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. — (1) Any person who gives, offer or promises
money or anything of value gives or promises any office or employment,
franchise or grant, public or private, or makes or offers to make an expenditure,
directly or indirectly, or cause an expenditure to be made to any person,
association, corporation, entity, or community in order to induce anyone or the
public in general to vote for or against any candidate or withhold his vote in the
election, or to vote for or against any aspirant for the nomination or choice of a
candidate in a convention or similar selection process of a political party.

xxx xxx xxx

(g) Appointment of new employees, creation of new position, promotion, or giving

salary increases. — During the period of forty-five days before a regular election
and thirty days before a regular election and thirty days before a special election,
(1) any head, official or appointing officer of a government office, agency or
instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether
provisional, temporary, or casual, or creates and fills any new position, except
upon prior authority of the Commission. The Commission shall not grant the
authority sought unless, it is satisfied that the position to be filled is essential to
the proper functioning of the office or agency concerned, and that the position
shall not be filled in a manner that mayinfluence the election.
The second type of appointments prohibited by Section 15, Article VII consist of the so-called
"midnight" appointments. In Aytona v. Castillo,9 it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated
in his bid for reelection, became no more than a "caretaker" administrator whose duty was to
"prepare for the transfer of authority to the incoming President." Said the Court:

The filling up of vacancies in important positions, if few, and so spaced as to

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

As indicated, the Court recognized that there may well be appointments to important positions
which have to be made even after the proclamations of a new President. Such appointments, so
long as they are "few and so spaced as to afford some assurance of deliberate action and
careful consideration of the need for the appointment and the appointee's qualifications,"10 can
be made by the outgoing President. Accordingly, several appointments made by President
Garcia, which were shown to have been well considered, were upheld.11

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

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

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

To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should
prevail over Section 15 of Article VII, because they may be considered later expressions of the
people when they adopted the Constitution, it suffices to point out that the Constitution must be
construed in its entirely as one, single instrument.
To be sure, instances may be conceived of the imperative need for an appointment, during the
period of the ban, not only in the executive but also in the Supreme Court. This may be the case
should the membership of the Court be so reduced that it will have no quorum, or should the
voting on a particularly important question requiring expeditious resolution be evenly divided.
Such a case, however, is covered by neither Section 15 of Article VII nor Sections 4 (1) and 9 of
Article VIII.12

VII. A Last Word

A final word, concerning Valenzuela's oath-taking and "reporting for duty" as Presiding Judge of
RTC Branch 62, Bago City, on May 14, 1998.13 Standing practice is for the originals of all
apointments to the Judiciary — from the highest to the lowest court — to be sent by the Office of
the President to the Office of the Chief Justice, the appointments being addressed to the
appointee's "Thru: the Chief Justice, Supreme Court Manila." It is the Clerk of Court of the
Supreme Court in the Chief Justice's behalf, who thereafter advises the individual appointee's of
their appointments and also of the date of commencement of the pre-requisite orientation
seminar to be conducted by the Philippine Judicial Academy for new Judges. The rationale of
this procedure is salutary and readily precieved. The procedure ensures the authenticity of the
appointments, enables the Court, particularly the Office of the Court Administrator, to enter in
the appropriate records all appointments to the Judiciary as well as other relevant data such as
the dates of qualification, the completion by the appointee's of their pre-requisite orientation
seminars, their assumption of duty, etc.

The procedure also precludes the possibility, however remote of Judges acting on spurious or
otherwise defective appointments. It is obviously not advisable, to say the least, for a Judge to
take his oath of office and enter upon the performance of his duties on the basis alone of a
document purporting to be a copy of his appointment coming from Malacañang, the authenticity
of which has not been verified from the latter or the Office of the Court Administrator; or
otherwise to begin performing his duties as Judge without the Court Administrator knowing of
that fact. The undesirability of such a situation is illustrated by the case of Judge Valenzuela
who acted, with no little impatience or rashness, on a mere copy of his supposed appointment
without having received any formal notice from this Court and without verifying the authenticity
of the appointment or the propriety of taking oath on the basis thereof. Had he bothered to
inquire about his appointment from the Court Administrator's Office, he would havebeen
informed of the question concerning it and the Court's injunction.

VIII. Conclusion

The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the
Office of the Chief Justice on May 14, 998) were unquestionably made during the period of the
ban. Consequently, they come within the operation of the first prohibition relating to
appointments which are considered to be for the purpose of buying votes or influencing the
election. While the filling of vacancies in the judiciary is undoubtedly in the public interest, there
is no showing in this case of any compelling reason to justify the making of the appointments
during the period of the ban. On the other hand, as already discussed, there is a strong public
policy for the prohibition against appointments made within the period of the ban.

In view of the foregoing considerations, the Court Resolved to DECLARE VOID the
appointments signed by His Excellency the President under date of March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively and to order them,
forthwith on being served with notice of this decision, to forthwith CEASE AND DESIST from
discharging the office of Judge of the Courts to which they were respectively appointed on
March 30, 1998. This without prejudice to their being considered anew by the Judicial and Bar
Council for re-nomination to the same positons.

IT IS SO ORDERED.

Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza Panganiban,
Quisumbing, Purisima and Pardo, JJ., concur.

Mendoza, J., is on leave.

Footnotes

1 Section 8, Article VIII, Constitution.

2 N.B. The letter of the JBC dated March 3, 1998, containing the nominations of
Judge Valenzuela and two (2) others to RTC Branch 62, Bago City, together with
nominations of other persons to four (4) other courts, was received by the Office
of the President on March 20, 1998. The JBC's nominations of Judge Vallarta
and three others to RTC Branch 24, Cabanatuan City, and of others to MeTC
Branch 56, Malabon, are contained in its letter dated February 24, 1998, also
received on March 20, 1998 at Malacañang. Of those thus nominated, only
Messrs. Valenzuela and Vallarta were appointed by the President.

3 Emphasis supplied.

4 RECORD OF THE CONSTITUTIONAL COMMISSION (hereafter cited as

RECORD) pp. 479-482 (Session of July 14, 1986).

5 RECORD, pp. 632-634 (Session of Oct. 8, 1986).

6 1 RECORD, pp. 489-490 (Session of July 14, 1986).

7 Id. at p. 445.

8 Emphasis supplied.

9 114 Phil. vii (1962).

10 Id at x-xi.

11 See Merrera v. Liwag, 18 Phil. 1038 (1963); Jorge v. Mayor, 119 Phil. 595
(1964); Quimsing v. Tajanglangit, 119 Phil. 729 (1964).

12 See Sec. 9, second paragraph, of R.A. No. 296 (The Judiciary Act of 1948), in
relation to SEC. 47 of B.P. No. 129 (The Judiciary Reorganization Act of
1980): cf: Rilloranza v. Vargas, 80 Phil. 297 (1948).
 13 See footnote 2, supra.

Case 6: De Castro v JBC

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 191002 April 20, 2010

ARTURO M. DE CASTRO, Petitioner,

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

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

G.R. No. 191032

JAIME N. SORIANO, Petitioner,

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

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

G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

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

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

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

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO

APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149

JOHN G. PERALTA, Petitioner,

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

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

G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B.
INTING (IBPGovernor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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

G.R. No. 191420

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

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

RESOLUTION

BERSAMIN, J.:

On March 17, 2010, the Court promulgated its decision, holding:

WHEREFORE, the Court:

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

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

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

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

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

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

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

SO ORDERED.

Motions for Reconsideration

Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting
(G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors
Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S.
Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V.
Tan, Jr.; the Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano;
Mitchell John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.), filed
their respective motions for reconsideration. Also filing a motion for reconsideration was Senator
Aquilino Q. Pimentel, Jr., whose belated intervention was allowed.

We summarize the arguments and submissions of the various motions for reconsideration, in
the aforegiven order:

Soriano

1. The Court has not squarely ruled upon or addressed the issue of whether or not the
power to designate the Chief Justice belonged to the Supreme Court en banc.

2. The Mendoza petition should have been dismissed, because it sought a mere
declaratory judgment and did not involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The mere fact that
the Chief Justice sits as ex officio head of the JBC should not prevail over the more
compelling state interest for him to participate as a Member of the Court.

Tolentino and Inting

1. A plain reading of Section 15, Article VII does not lead to an interpretation that
exempts judicial appointments from the express ban on midnight appointments.

2. In excluding the Judiciary from the ban, the Court has made distinctions and has
created exemptions when none exists.

3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because
it limits an executive, not a judicial, power.

4. Resort to the deliberations of the Constitutional Commission is superfluous, and is

powerless to vary the terms of the clear prohibition.

5. The Court has given too much credit to the position taken by Justice Regalado.
Thereby, the Court has raised the Constitution to the level of a venerated text whose
intent can only be divined by its framers as to be outside the realm of understanding by
the sovereign people that ratified it.

6. Valenzuela should not be reversed.

7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question
the illegal composition of the JBC.

Philippine Bar Association

1. The Court’s strained interpretation of the Constitution violates the basic principle that
the Court should not formulate a rule of constitutional law broader than what is required
by the precise facts of the case.

2. Considering that Section 15, Article VII is clear and straightforward, the only duty of
the Court is to apply it. The provision expressly and clearly provides a general limitation
on the appointing power of the President in prohibiting the appointment of any person to
any position in the Government without any qualification and distinction.

3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against
midnight appointments.

4. The Constitution has installed two constitutional safeguards:- the prohibition against
midnight appointments, and the creation of the JBC. It is not within the authority of the
Court to prefer one over the other, for the Court’s duty is to apply the safeguards as they
are, not as the Court likes them to be.

5. The Court has erred in failing to apply the basic principles of statutory construction in
interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or section headings, despite
precedents on statutory construction holding that such headings carried very little
weight.

7. The Constitution has provided a general rule on midnight appointments, and the only
exception is that on temporary appointments to executive positions.

8. The Court has erred in directing the JBC to resume the proceedings for the
nomination of the candidates to fill the vacancy to be created by the compulsory
retirement of Chief Justice Puno with a view to submitting the list of nominees for Chief
Justice to President Arroyo on or before May 17, 2010. The Constitution grants the Court
only the power of supervision over the JBC; hence, the Court cannot tell the JBC what to
do, how to do it, or when to do it, especially in the absence of a real and justiciable case
assailing any specific action or inaction of the JBC.

9. The Court has engaged in rendering an advisory opinion and has indulged in
speculations.

10. The constitutional ban on appointments being already in effect, the Court’s directing
the JBC to comply with the decision constitutes a culpable violation of the Constitution
and the commission of an election offense.

11. The Court cannot reverse on the basis of a secondary authority a doctrine
unanimously formulated by the Court en banc.

12. The practice has been for the most senior Justice to act as Chief Justice whenever
the incumbent is indisposed. Thus, the appointment of the successor Chief Justice is not
urgently necessary.

13. The principal purpose for the ban on midnight appointments is to arrest any attempt
to prolong the outgoing President’s powers by means of proxies. The attempt of the
incumbent President to appoint the next Chief Justice is undeniably intended to
perpetuate her power beyond her term of office.

IBP-Davao del Sur, et al.

1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to
appointments to the Judiciary. Hence, no cogent reason exists to warrant the reversal of
the Valenzuela pronouncement.

2. Section 16, Article VII of the Constitution provides for presidential appointments to the
Constitutional Commissions and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments are vested in him in this
Constitution" is enough proof that the limitation on the appointing power of the President
extends to appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16
of Article VII apply to all presidential appointments in the Executive and Judicial
Branches of the Government.

3. There is no evidence that the framers of the Constitution abhorred the idea of an
Acting Chief Justice in all cases.
 Lim

1. There is no justiciable controversy that warrants the Court’s exercise of judicial

review.

2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy
in the Court and to other appointments to the Judiciary.

3. The creation of the JBC does not justify the removal of the safeguard under Section
15 of Article VII against midnight appointments in the Judiciary.

Corvera

1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on
midnight appointments is based on an interpretation beyond the plain and unequivocal
language of the Constitution.

2. The intent of the ban on midnight appointments is to cover appointments in both the
Executive and Judicial Departments. The application of the principle of verba legis
(ordinary meaning) would have obviated dwelling on the organization and arrangement
of the provisions of the Constitution. If there is any ambiguity in Section 15, Article VII,
the intent behind the provision, which is to prevent political partisanship in all branches
of the Government, should have controlled.

3. A plain reading is preferred to a contorted and strained interpretation based on

compartmentalization and physical arrangement, especially considering that the
Constitution must be interpreted as a whole.

4. Resort to the deliberations or to the personal interpretation of the framers of the

Constitution should yield to the plain and unequivocal language of the Constitution.

5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and
in accord with the Constitution.

BAYAN, et al.

1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition
did not present a justiciable controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice was not yet vacant and that
the JBC itself has yet to decide whether or not to submit a list of nominees to the
President.

2. The collective wisdom of Valenzuela Court is more important and compelling than the
opinion of Justice Regalado.

3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the
Court has violated the principle of ut magis valeat quam pereat (which mandates that the
Constitution should be interpreted as a whole, such that any conflicting provisions are to
be harmonized as to fully give effect to all). There is no conflict between the provisions;
they complement each other.

4. The form and structure of the Constitution’s titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear and plain language
of Section 15, Article VII precludes interpretation.

Tan, Jr.

1. The factual antecedents do not present an actual case or controversy. The clash of
legal rights and interests in the present case are merely anticipated. Even if it is
anticipated with certainty, no actual vacancy in the position of the Chief Justice has yet
occurred.

2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the
Judiciary runs in conflict with long standing principles and doctrines of statutory
construction. The provision admits only one exception, temporary appointments in the
Executive Department. Thus, the Court should not distinguish, because the law itself
makes no distinction.

3. Valenzuela was erroneously reversed. The framers of the Constitution clearly

intended the ban on midnight appointments to cover the members of the Judiciary.
Hence, giving more weight to the opinion of Justice Regalado to reverse the en banc
decision in Valenzuela was unwarranted.

4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day
mandate to fill any vacancy lasts until August 15, 2010, or a month and a half after the
end of the ban. The next President has roughly the same time of 45 days as the
incumbent President (i.e., 44 days) within which to scrutinize and study the qualifications
of the next Chief Justice. Thus, the JBC has more than enough opportunity to examine
the nominees without haste and political uncertainty.1avvphi1

5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article
VIII is suspended.

6. There is no basis to direct the JBC to submit the list of nominees on or before May 17,
2010. The directive to the JBC sanctions a culpable violation of the Constitution and
constitutes an election offense.

7. There is no pressing necessity for the appointment of a Chief Justice, because the
Court sits en banc, even when it acts as the sole judge of all contests relative to the
election, returns and qualifications of the President and Vice-President. Fourteen other
Members of the Court can validly comprise the Presidential Electoral Tribunal.

WTLOP

1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees
for Chief Justice to the President on or before May 17, 2010, and to continue its
proceedings for the nomination of the candidates, because it granted a relief not prayed
for; imposed on the JBC a deadline not provided by law or the Constitution; exercised
control instead of mere supervision over the JBC; and lacked sufficient votes to reverse
Valenzuela.

2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of
statutory construction to the effect that the literal meaning of the law must be applied
when it is clear and unambiguous; and that we should not distinguish where the law
does not distinguish.

3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary
Act of 1948 already provides that the power and duties of the office devolve on the most
senior Associate Justice in case of a vacancy in the office of the Chief Justice.

Ubano

1. The language of Section 15, Article VII, being clear and unequivocal, needs no
interpretation

2. The Constitution must be construed in its entirety, not by resort to the organization
and arrangement of its provisions.

3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the
pertinent records of the Constitutional Commission are clear and unambiguous.

4. The Court has erred in ordering the JBC to submit the list of nominees to the
President by May 17, 2010 at the latest, because no specific law requires the JBC to
submit the list of nominees even before the vacancy has occurred.

Boiser

1. Under Section 15, Article VII, the only exemption from the ban on midnight
appointments is the temporary appointment to an executive position. The limitation is in
keeping with the clear intent of the framers of the Constitution to place a restriction on
the power of the outgoing Chief Executive to make appointments.

2. To exempt the appointment of the next Chief Justice from the ban on midnight
appointments makes the appointee beholden to the outgoing Chief Executive, and
compromises the independence of the Chief Justice by having the outgoing President be
continually influential.

3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the
principle of stare decisis.

Bello, et al.

1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing
President is prohibited from making within the prescribed period. Plain textual reading
and the records of the Constitutional Commission support the view that the ban on
midnight appointments extends to judicial appointments.
 2. Supervision of the JBC by the Court involves oversight. The subordinate subject to
oversight must first act not in accord with prescribed rules before the act can be redone
to conform to the prescribed rules.

3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition
did not present a justiciable controversy.

Pimentel

1. Any constitutional interpretative changes must be reasonable, rational, and

conformable to the general intent of the Constitution as a limitation to the powers of
Government and as a bastion for the protection of the rights of the people. Thus, in
harmonizing seemingly conflicting provisions of the Constitution, the interpretation
should always be one that protects the citizenry from an ever expanding grant of
authority to its representatives.

2. The decision expands the constitutional powers of the President in a manner totally
repugnant to republican constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.

Comments

The Office of the Solicitor General (OSG) and the JBC separately represent in their respective
comments, thus:

OSG

1. The JBC may be compelled to submit to the President a short list of its nominees for
the position of Chief Justice.

2. The incumbent President has the power to appoint the next Chief Justice.

3. Section 15, Article VII does not apply to the Judiciary.

4. The principles of constitutional construction favor the exemption of the Judiciary from
the ban on midnight appointments.1awph!1

5. The Court has the duty to consider and resolve all issues raised by the parties as well
as other related matters.

JBC

1. The consolidated petitions should have been dismissed for prematurity, because the
JBC has not yet decided at the time the petitions were filed whether the incumbent
President has the power to appoint the new Chief Justice, and because the JBC, having
yet to interview the candidates, has not submitted a short list to the President.
 2. The statement in the decision that there is a doubt on whether a JBC short list is
necessary for the President to appoint a Chief Justice should be struck down as bereft of
constitutional and legal basis. The statement undermines the independence of the JBC.

3. The JBC will abide by the final decision of the Court, but in accord with its
constitutional mandate and its implementing rules and regulations.

For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if
the OSG and the JBC were the only ones the Court has required to do so. He states that the
motions for reconsideration were directed at the administrative matter he initiated and which the
Court resolved. His comment asserts:

1. The grounds of the motions for reconsideration were already resolved by the decision
and the separate opinion.

2. The administrative matter he brought invoked the Court’s power of supervision over
the JBC as provided by Section 8(1), Article VIII of the Constitution, as distinguished
from the Court’s adjudicatory power under Section 1, Article VIII. In the former, the
requisites for judicial review are not required, which was why Valenzuela was docketed
as an administrative matter. Considering that the JBC itself has yet to take a position on
when to submit the short list to the proper appointing authority, it has effectively solicited
the exercise by the Court of its power of supervision over the JBC.

3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend
the Constitution.

4. The portions of the deliberations of the Constitutional Commission quoted in the

dissent of Justice Carpio Morales, as well as in some of the motions for reconsideration
do not refer to either Section 15, Article VII or Section 4(1), Article VIII, but to Section 13,
Article VII (on nepotism).

Ruling

We deny the motions for reconsideration for lack of merit, for all the matters being thereby
raised and argued, not being new, have all been resolved by the decision of March 17, 2010.

Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and
emphasis.

First: Most of the movants contend that the principle of stare decisis is controlling, and
accordingly insist that the Court has erred in disobeying or abandoning Valenzuela.1

The contention has no basis.

Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to
adhere to precedent and not to unsettle things that are settled. It simply means that a principle
underlying the decision in one case is deemed of imperative authority, controlling the decisions
of like cases in the same court and in lower courts within the same jurisdiction, unless and until
the decision in question is reversed or overruled by a court of competent authority. The
decisions relied upon as precedents are commonly those of appellate courts, because the
decisions of the trial courts may be appealed to higher courts and for that reason are probably
not the best evidence of the rules of law laid down. 2

Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.3 In a hierarchical judicial system like ours, the decisions of
the higher courts bind the lower courts, but the courts of co-ordinate authority do not bind each
other. The one highest court does not bind itself, being invested with the innate authority to rule
according to its best lights.4

The Court, as the highest court of the land, may be guided but is not controlled by precedent.
Thus, the Court, especially with a new membership, is not obliged to follow blindly a particular
decision that it determines, after re-examination, to call for a rectification.5 The adherence to
precedents is strict and rigid in a common-law setting like the United Kingdom, where judges
make law as binding as an Act of Parliament.6 But ours is not a common-law system; hence,
judicial precedents are not always strictly and rigidly followed. A judicial pronouncement in an
earlier decision may be followed as a precedent in a subsequent case only when its reasoning
and justification are relevant, and the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of the precedent is for the sake of
convenience and stability.

For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or
reversed, and that its wisdom should guide, if not control, the Court in this case is, therefore,
devoid of rationality and foundation. They seem to conveniently forget that the Constitution itself
recognizes the innate authority of the Court en banc to modify or reverse a doctrine or principle
of law laid down in any decision rendered en banc or in division.7

Second: Some intervenors are grossly misleading the public by their insistence that the
Constitutional Commission extended to the Judiciary the ban on presidential appointments
during the period stated in Section 15, Article VII.

The deliberations that the dissent of Justice Carpio Morales quoted from the records of the
Constitutional Commission did not concern either Section 15, Article VII or Section 4(1), Article
VIII, but only Section 13, Article VII, a provision on nepotism. The records of the Constitutional
Commission show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and
justices related to the President within the fourth civil degree of consanguinity or affinity among
the persons whom the President might not appoint during his or her tenure. In the end, however,
Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in Section 13, Article
VII "(t)o avoid any further complication,"8 such that the final version of the second paragraph of
Section 13, Article VII even completely omits any reference to the Judiciary, to wit:

Section 13. xxx

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen
or heads of bureaus or offices, including government-owned or controlled corporations and their
subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article VII does not
apply to appointments in the Judiciary. They aver that the Court either ignored or refused to
apply many principles of statutory construction.

The movants gravely err in their posture, and are themselves apparently contravening their
avowed reliance on the principles of statutory construction.

For one, the movants, disregarding the absence from Section 15, Article VII of the express
extension of the ban on appointments to the Judiciary, insist that the ban applied to the
Judiciary under the principle of verba legis. That is self-contradiction at its worst.

Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section
9, both of Article VIII, the express applicability of the ban under Section 15, Article VII during the
period provided therein, despite the silence of said provisions thereon. Yet, construction cannot
supply the omission, for doing so would generally constitute an encroachment upon the field of
the Constitutional Commission. Rather, Section 4(1) and Section 9 should be left as they are,
given that their meaning is clear and explicit, and no words can be interpolated in
them.9Interpolation of words is unnecessary, because the law is more than likely to fail to
express the legislative intent with the interpolation. In other words, the addition of new words
may alter the thought intended to be conveyed. And, even where the meaning of the law is clear
and sensible, either with or without the omitted word or words, interpolation is improper,
because the primary source of the legislative intent is in the language of the law itself.10

Thus, the decision of March 17, 2010 has fittingly observed:

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

We cannot permit the meaning of the Constitution to be stretched to any unintended point in
order to suit the purposes of any quarter.

Final Word

It has been insinuated as part of the polemics attendant to the controversy we are resolving that
because all the Members of the present Court were appointed by the incumbent President, a
majority of them are now granting to her the authority to appoint the successor of the retiring
Chief Justice.

The insinuation is misguided and utterly unfair.

The Members of the Court vote on the sole basis of their conscience and the merits of the
issues. Any claim to the contrary proceeds from malice and condescension. Neither the
outgoing President nor the present Members of the Court had arranged the current situation to
happen and to evolve as it has. None of the Members of the Court could have prevented the
Members composing the Court when she assumed the Presidency about a decade ago from
retiring during her prolonged term and tenure, for their retirements were mandatory. Yet, she is
now left with an imperative duty under the Constitution to fill up the vacancies created by such
inexorable retirements within 90 days from their occurrence. Her official duty she must comply
with. So must we ours who are tasked by the Constitution to settle the controversy.

ACCORDINGLY, the motions for reconsideration are denied with finality.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 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.
REYNATO S. PUNO
Chief Justice

Footnotes

1
In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of
Branch 24, Cabanatuan City, respectively, A.M. No. 98-5-01-SC, November 9, 1998,
298 SCRA 408.

2
Price & Bitner, Effective Legal Research, Little, Brown & Co., New York (1962), § 9.7.

3
Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA 247

4
E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.

5
Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September 5, 1996,
261 SCRA 464.

6
See Calabresi, A Common Law for the Age of Statutes, Harvard University Press, p. 4
(1982) and endnote 12 of the page, which essentially recounts that the strict application
of the doctrine of stare decisis is true only in a common-law jurisdiction like England
(citing Wise, The Doctrine of Stare Decisis, 21 Wayne Law Review, 1043, 1046-1047
(1975). Calabresi recalls that the English House of Lords decided in 1898 (London
Tramways Co. v. London County Council, A.C. 375) that they could not alter precedents
laid down by the House of Lords acting as the supreme court in previous cases, but that
such precedents could only be altered by an Act of Parliament, for to do otherwise would
mean that the courts would usurp legislative function; he mentions that in 1966, Lord
Chancellor Gardiner announced in a Practice Statement a kind of general memorandum
from the court that while: "Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the law," they "nevertheless
recognize that too rigid adherence to precedent may lead to injustice in a particular case
and also unduly restrict the proper development of the law. They propose, therefore, to
modify their present practice and, while treating former decisions of this House as
normally binding, to depart from a previous decision when it appears right to do so."
(Calabresi cites Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare
Decisis Falls, 80 Harvard Law Review, 797 (1967).

7
Section 4 (2), Article VIII, provides:

xxx

(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case,
without the concurrence of at least three of such Members. When the required
number is not obtained, the case shall be decided en banc; Provided, that no
 doctrine or principle of law laid down by the court in a decision rendered en banc
or in division may be modified or reversed except by the court sitting en banc.

8
Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44. pp.
542-543.

9
Smith v. State, 66 Md. 215, 7 Atl. 49.

10
State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO MORALES, J.:

No compelling reason exists for the Court to deny a reconsideration of the assailed Decision.
The various motions for reconsideration raise hollering substantial arguments and legitimately
nagging questions which the Court must meet head on.

If this Court is to deserve or preserve its revered place not just in the hierarchy but also in
history, passion for reason demands the issuance of an extended and extensive resolution that
confronts the ramifications and repercussions of its assailed Decision. Only then can it offer an
illumination that any self-respecting student of the law clamors and any adherent of the law
deserves. Otherwise, it takes the risk of reeking of an objectionable air of supreme judicial
arrogance.

It is thus imperative to settle the following issues and concerns:

Whether the incumbent President is constitutionally proscribed from appointing the successor of
Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00
noon of June 30, 2010

1. In interpreting the subject constitutional provisions, the Decision disregarded

established canons of statutory construction. Without explaining the inapplicability of
each of the relevant rules, the Decision immediately placed premium on the
arrangement and ordering of provisions, one of the weakest tools of construction, to
arrive at its conclusion.

2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not firmly
rest on ConCom deliberations, yet it did not offer to cite a material ConCom deliberation.
It instead opted to rely on the memory of Justice Florenz Regalado which incidentally
mentioned only the "Court of Appeals." The Decision’s conclusion must rest on the
strength of its own favorable Concom deliberation, none of which to date has been cited.
 3. Instead of choosing which constitutional provision carves out an exception from the
other provision, the most legally feasible interpretation (in the limited cases of temporary
physical or legal impossibility of compliance, as expounded in my Dissenting Opinion) is
to consider the appointments ban or other substantial obstacle as a temporary
impossibility which excuses or releases the constitutional obligation of the Office of the
President for the duration of the ban or obstacle.

In view of the temporary nature of the circumstance causing the impossibility of performance,
the outgoing President is released from non-fulfillment of the obligation to appoint, and the duty
devolves upon the new President. The delay in the fulfillment of the obligation becomes
excusable, since the law cannot exact compliance with what is impossible. The 90-day period
within which to appoint a member of the Court is thus suspended and the period could only start
or resume to run when the temporary obstacle disappears (i.e., after the period of the
appointments ban; when there is already a quorum in the JBC; or when there is already at least
three applicants).

Whether the Judicial and Bar Council is obliged to submit to the President the shortlist of
nominees for the position of Chief Justice (or Justice of this Court) on or before the occurrence
of the vacancy.

1. The ruling in the Decision that obligates the JBC to submit the shortlist to the
President on or before the occurrence of the vacancy in the Court runs counter to the
Concom deliberations which explain that the 90-day period is allotted for both the
nomination by the JBC and the appointment by the President. In the move to increase
the period to 90 days, Commissioner Romulo stated that "[t]he sense of the Committee
is that 60 days is awfully short and that the [Judicial and Bar] Council, as well as the
President, may have difficulties with that."

2. To require the JBC to submit to the President a shortlist of nominees on or before the
occurrence of vacancy in the Court leads to preposterous results. It bears reiterating that
the requirement is absurd when, inter alia, the vacancy is occasioned by the death of a
member of the Court, in which case the JBC could never anticipate the death of a
Justice, and could never submit a list to the President on or before the occurrence of
vacancy.

3. The express allowance in the Constitution of a 90-day period of vacancy in the

membership of the Court rebuts any public policy argument on avoiding a vacuum of
even a single day without a duly appointed Chief Justice. Moreover, as pointed out in my
Dissenting Opinion, the practice of having an acting Chief Justice in the interregnum is
provided for by law, confirmed by tradition, and settled by jurisprudence to be an internal
matter.

The Resolution of the majority, in denying the present Motions for Reconsideration, failed to
rebut the foregoing crucial matters.

I, therefore, maintain my dissent and vote to GRANT the Motions for Reconsideration of the
Decision of March 17, 2010 insofar as it holds that the incumbent President is not
constitutionally proscribed from appointing the successor of Chief Justice Reynato S. Puno
upon his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010 and that
the Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for
the position of Chief Justice on or before May 17, 2010.

CONCHITA CARPIO MORALES

Associate Justice

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

BRION, J.:

The Motions for Reconsideration

After sifting through the motions for reconsideration, I found that the arguments are largely the
same arguments that we have passed upon, in one form or another, in the various petitions.
Essentially, the issues boil down to justiciability; the conflict of constitutional provisions; the
merits of the cited constitutional deliberations; and the status and effect of the
Valenzuela1 ruling. Even the motion for reconsideration of the Philippine Bar Association (G.R.
No. 191420), whose petition I did not expressly touch upon in my Separate Opinion, basically
dwells on these issues.

I have addressed most, if not all, of these issues and I submit my Separate Opinion2 as my
basic response to the motions for reconsideration, supplemented by the discussions below.

As I reflected in my Separate Opinion (which three other Justices joined),3 the election
appointment ban under Article VII, Section 15 of the Constitution should not apply to the
appointment of Members of the Supreme Court whose period for appointment is separately
provided for under Article VIII, Section 4(1). I shared this conclusion with the Court’s Decision
although our reasons differed on some points.

I diverged fully from the Decision on the question of whether we should maintain or reverse our
ruling in Valenzuela. I maintained that it is still good law; no reason exists to touch the ruling as
its main focus – the application of the election ban on the appointment of lower court judges
under Article VIII, Section 9 of the Constitution – is not even an issue in the present case and
was discussed only because the petitions incorrectly cited the ruling as authority on the issue of
the Chief Justice’s appointment. The Decision proposed to reverse Valenzuela but only secured
the support of five (5) votes, while my Separate Opinion in support of Valenzuela had four (4)
votes. Thus, on the whole, the Decision did not prevail in reversing Valenzuela, as it only had
five (5) votes in a field of 12 participating Members of the Court. Valenzuela should therefore
remain, as of the filing of this Opinion, as a valid precedent.

Acting on the present motions for reconsideration, I join the majority in denying the motions with
respect to the Chief Justice issue, although we differ in some respects on the reasons
supporting the denial. I dissent from the conclusion that the Valenzuela ruling should be
reversed. My divergence from the majority’s reasons and conclusions compels me to write this
Concurring and Dissenting Opinion.

The Basic Requisites / Justiciability

One marked difference between the Decision and my Separate Opinion is our approach on the
basic requisites/justiciability issues. The Decision apparently glossed over this aspect of the
case, while I fully explained why the De Castro4 and Peralta5 petitions should be dismissed
outright. In my view, these petitions violated the most basic requirements of their chosen
medium for review – a petition for certiorari and mandamus under Rule 65 of the Rules of Court.

The petitions commonly failed to allege that the Judicial and Bar Council (JBC) performs judicial
or quasi-judicial functions, an allegation that the petitions could not really make, since the JBC
does not really undertake these functions and, for this reason, cannot be the subject of a
petition for certiorari; hence, the petitions should be dismissed outright. They likewise failed to
facially show any failure or refusal by the JBC to undertake a constitutional duty to justify the
issuance of a writ of mandamus; they invoked judicial notice that we could not give because
there was, and is, no JBC refusal to act.6 Thus, the mandamus aspects of these petitions should
have also been dismissed outright. The ponencia, unfortunately, failed to fully discuss these
legal infirmities.

The motions for reconsideration lay major emphasis on the alleged lack of an actual case or
controversy that made the Chief Justice’s appointment a justiciable issue. They claim that the
Court cannot exercise the power of judicial review where there is no clash of legal rights and
interests or where this clash is merely anticipated, although the anticipated event shall come
with certainty.7

What the movants apparently forgot, focused as they were on their respective petitions, is that
the present case is not a single-petition case that rises or falls on the strength of that single
petition. The present case involves various petitions and interventions,8 not necessarily pulling
towards the same direction, although each one is focused on the issue of whether the election
appointment ban under Article VII, Section 15 of the Constitution should apply to the
appointment of the next Chief Justice of the Supreme Court.

Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano (G.R. No. 191032)
and Mendoza (A.M. No. 10-2-5-SC). The first two are petitions for prohibition under Section 2 of
Rule 65 of the Rules of Court.9 While they commonly share this medium of review, they differ in
their supporting reasons. The Mendoza petition, on the other hand, is totally different – it is a
petition presented as an administrative matter (A.M.) in the manner that the Valenzuela case
was an A.M. case. As I pointed out in the Separate Opinion, the Court uses the A.M. docket
designation on matters relating to its exercise of supervision over all courts and their
personnel.10 I failed to note then, but I make of record now, that court rules and regulations – the
outputs in the Court’s rulemaking function – are also docketed as A.M. cases.

That an actual case or controversy involving a clash of rights and interests exists is immediately
and patently obvious in the Tolentino and Soriano petitions. At the time the petitions were filed,
the JBC had started its six-phase nomination process that would culminate in the submission of
a list of nominees to the President of the Philippines for appointive action. Tolentino and Soriano
– lawyers and citizens with interest in the strict observance of the election ban – sought to
prohibit the JBC from continuing with this process. The JBC had started to act, without any
prodding from the Court, because of its duty to start the nomination process but was hampered
by the petitions filed and the legal questions raised that only the Supreme Court can settle with
finality.11 Thus, a clash of interests based on law existed between the petitioners and the JBC.
To state the obvious, a decision in favor of Tolentino or Soriano would result in a writ of
prohibition that would direct the JBC not to proceed with the nomination process.

The Mendoza petition cited the effect of a complete election ban on judicial appointments (in
view of the already high level of vacancies and the backlog of cases) as basis, and submitted
the question as an administrative matter that the Court, in the exercise of its supervisory
authority over the Judiciary and the JBC itself, should act upon. At the same time, it cited the
"public discourse and controversy" now taking place because of the application of the election
ban on the appointment of the Chief Justice, pointing in this regard to the very same reasons
mentioned in Valenzuela about the need to resolve the issue and avoid the recurrence of
conflict between the Executive and the Judiciary, and the need to "avoid polemics concerning
the matter."12

I recognized in the Separate Opinion that, unlike in Valenzuela where an outright defiance of the
election ban took place, no such obvious triggering event transpired in the Mendoza
petition.13 Rather, the Mendoza petition looked to the supervisory power of the Court over
judicial personnel and over the JBC as basis to secure a resolution of the election ban issue.
The JBC, at that time, had indicated its intent to look up to the Court’s supervisory power and
role as the final interpreter of the Constitution to guide it in responding to the challenges it
confronts.14 To me, this was "a point no less critical, from the point of view of supervision, than
the appointment of the two judges during the election ban period in Valenzuela."15

In making this conclusion, I pointed out in my Separate Opinion the unavoidable surrounding
realities evident from the confluence of events, namely: (1) an election to be held on May 10,
2010; (2) the retirement of the Chief Justice on May 17, 2010; (3) the lapse of the terms of the
elective officials from the President to the congressmen on June 30, 2010; (4) the delay before
the Congress can organize and send its JBC representatives; and (5) the expiration of the term
of a non-elective JBC member in July 2010.16 All these – juxtaposed with the Court’s
supervision over the JBC, the latter’s need for guidance, and the existence of an actual
controversy on the same issues bedeviling the JBC – in my view, were sufficient to save the
Mendoza petition from being a mere request for opinion or a petition for declaratory relief that
falls under the jurisdiction of the lower court. This recognition is beyond the level of what this
Court can do in handling a moot and academic case – usually, one that no longer presents a
judiciable controversy but one that can still be ruled upon at the discretion of the court when the
constitutional issue is of paramount public interest and controlling principles are needed to guide
the bench, the bar and the public.17

To be sure, this approach in recognizing when a petition is actionable is novel. An overriding

reason for this approach can be traced to the nature of the petition, as it rests on the Court’s
supervisory authority and relates to the exercise of the Court’s administrative rather than its
judicial functions (other than these two functions, the Court also has its rulemaking function
under Article VIII, Section 5(5) of the Constitution). Strictly speaking, the Mendoza petition calls
for directions from the Court in the exercise of its power of supervision over the JBC,18 not on
the basis of the power of judicial review.19 In this sense, it does not need the actual clash of
interests of the type that a judicial adjudication requires. All that must be shown is the active
need for supervision to justify the Court’s intervention as supervising authority.
Under these circumstances, the Court’s recognition of the Mendoza petition was not an undue
stretch of its constitutional powers. If the recognition is unusual at all, it is so only because of its
novelty; to my knowledge, this is the first time ever in Philippine jurisprudence that the
supervisory authority of the Court over an attached agency has been highlighted in this manner.
Novelty, per se, however, is not a ground for objection nor a mark of infirmity for as long as the
novel move is founded in law. In this case, as in the case of the writ of amparo and habeas data
that were then novel and avowedly activist in character, sufficient legal basis exists to actively
invoke the Court’s supervisory authority – granted under the Constitution, no less – as basis for
action.

To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5) provide that "A
Judicial and Bar Council is hereby created under the supervision of the Supreme Court… It may
exercise such other functions and duties as the Supreme Court may assign to it." Supervision,
as a legal concept, more often than not, is defined in relation with the concept of control.20 In
Social Justice Society v. Atienza,21 we defined "supervision" as follows:

[Supervision] means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate
officer ha[s] done in the performance of his duties and to substitute the judgment of the former
for that of the latter.

Under this definition, the Court cannot dictate on the JBC the results of its assigned task, i.e.,
who to recommend or what standards to use to determine who to recommend. It cannot even
direct the JBC on how and when to do its duty, but it can, under its power of supervision, direct
the JBC to "take such action or step as prescribed by law to make them perform their duties," if
the duties are not being performed because of JBC’s fault or inaction, or because of extraneous
factors affecting performance. Note in this regard that, constitutionally, the Court can also
assign the JBC other functions and duties – a power that suggests authority beyond what is
purely supervisory.

Where the JBC itself is at a loss on how to proceed in light of disputed constitutional provisions
that require interpretation,22 the Court is not legally out of line – as the final authority on the
interpretation of the Constitution and as the entity constitutionally-tasked to supervise the JBC –
in exercising its oversight function by clarifying the interpretation of the disputed constitutional
provision to guide the JBC. In doing this, the Court is not simply rendering a general legal
advisory; it is providing concrete and specific legal guidance to the JBC in the exercise of its
supervisory authority, after the latter has asked for assistance in this regard. That the Court
does this while concretely resolving actual controversies (the Tolentino and Soriano petitions)
on the same issue immeasurably strengthens the intrinsic correctness of the Court’s action.

It may be asked: why does the Court have to recognize the Mendoza petition when it can
resolve the conflict between Article VII, Section 15 and Article VIII, Section 4(1) through the
Tolentino and Soriano petitions?

The answer is fairly simple and can be read between the lines of the above explanation on the
relationship between the Court and the JBC. First, administrative is different from judicial
function and providing guidance to the JBC can only be appropriate in the discharge of the
Court’s administrative function. Second, the resolution of the Tolentino and Soriano petitions will
lead to rulings directly related to the underlying facts of these petitions, without clear guidelines
to the JBC on the proper parameters to observe vis-à-vis the constitutional dispute along the
lines the JBC needs. In fact, concrete guidelines addressed to the JBC in the resolution of the
Tolentino/Soriano petitions may even lead to accusations that the Court’s resolution is broader
than is required by the facts of the petitions. The Mendoza petition, because it pertains directly
to the performance of the JBC’s duty and the Court’s supervisory authority, allows the issuance
of precise guidelines that will enable the JBC to fully and seasonably comply with its
constitutional mandate.

I hasten to add that the JBC’s constitutional task is not as simple as some people think it to be.
The process of preparing and submitting a list of nominees is an arduous and time-consuming
task that cannot be done overnight. It is a six-step process lined with standards requiring the
JBC to attract the best available candidates, to examine and investigate them, to exhibit
transparency in all its actions while ensuring that these actions conform to constitutional and
statutory standards (such as the election ban on appointments), to submit the required list of
nominees on time, and to ensure as well that all these acts are politically neutral. On the time
element, the JBC list for the Supreme Court has to be submitted on or before the vacancy
occurs given the 90-day deadline that the appointing President is given in making the
appointment. The list will be submitted, not to the President as an outgoing President, nor to the
election winner as an incoming President, but to the President of the Philippines whoever he or
she may be. If the incumbent President does not act on the JBC list within the time left in her
term, the same list shall be available to the new President for him to act upon. In all these, the
Supreme Court bears the burden of overseeing that the JBC’s duty is done, unerringly and with
utmost dispatch; the Court cannot undertake this supervision in a manner consistent with the
Constitution’s expectation from the JBC unless it adopts a pro-active stance within the limits of
its supervisory authority.

The Disputed Provisions

The movants present their arguments on the main issue at several levels. Some argue that the
disputed constitutional provisions – Article VII, Section 15 and Article VIII, Section 4(1) – are
clear and speak for themselves on what the Constitution covers in banning appointments during
the election period.23 One even posits that there is no conflict because both provisions can be
given effect without one detracting against the full effectiveness of the other,24 although the
effect is to deny the sitting President the option to appoint in favor of a deferment for the
incoming President’s action. Still others, repeating their original arguments, appeal to the
principles of interpretation and latin maxims to prove their point.25

In my discussions in the Separate Opinion, I stated upfront my views on how the disputed
provisions interact with each other. Read singly and in isolation, they appear clear (this reading
applies the "plain meaning rule" that Tolentino advocates in his motion for reconsideration, as
explained below). Arrayed side by side with each other and considered in relation with the other
provisions of the Constitution, particularly its structure and underlying intents, the conflict
however becomes obvious and unavoidable.

Section 15 on its face disallows any appointment in clear negative terms ("shall not make")
without specifying the appointments covered by the prohibition.26 From this literal and isolated
reading springs the argument that no exception is provided (except that found in Section 15
itself) so that even the Judiciary is covered by the ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy
in the Court shall be filled within 90 days from its occurrence.27 In the way of Section 15, Section
4(1) is also clear and categorical and provides no exception; the appointment refers solely to the
Members of the Supreme Court and does not mention any period that would interrupt, hold or
postpone the 90-day requirement.

From this perspective, the view that no conflict exists cannot be seriously made, unless with the
mindset that one provision controls and the other should yield. Many of the petitions in fact
advocate this kind of reading, some of them openly stating that the power of appointment should
be reserved for the incoming President.28 The question, however, is whether – from the
viewpoint of strict law and devoid of the emotionalism and political partisanship that permeate
the present Philippine political environment – this kind of mindset can really be adopted in
reading and applying the Constitution.

In my view, this kind of mindset and the conclusion it inevitably leads to cannot be adopted; the
provisions of the Constitution cannot be read in isolation from what the whole contains. To be
exact, the Constitution must be read and understood as a whole, reconciling and harmonizing
apparently conflicting provisions so that all of them can be given full force and effect,29 unless
the Constitution itself expressly states otherwise.30

Not to be forgotten in reading and understanding the Constitution are the many established
underlying constitutional principles that we have to observe and respect if we are to be true to
the Constitution. These principles – among them the principles of checks and balances and
separation of powers – are not always expressly stated in the Constitution, but no one who
believes in and who has studied the Constitution can deny that they are there and deserve
utmost attention, respect, and even priority consideration.

In establishing the structures of government, the ideal that the Constitution seeks to achieve is
one of balance among the three great departments of government – the Executive, the
Legislative and the Judiciary, with each department undertaking its constitutionally-assigned
task as a check against the exercise of power by the others, while all three departments move
forward in working for the progress of the nation. Thus, the Legislature makes the laws and is
supreme in this regard, in the way that the Executive is supreme in enforcing and administering
the law, while the Judiciary interprets both the Constitution and the law. Any provision in each of
the Articles on these three departments31 that intrudes into the other must be closely examined
if the provision affects and upsets the desired balance.

Under the division of powers, the President as Chief Executive is given the prerogative of
making appointments, subject only to the legal qualification standards, to the checks provided
by the Legislature’s Commission on Appointments (when applicable) and by the JBC for
appointments in the Judiciary, and to the Constitution’s own limitations. Conflict comes in when
the Constitution laid down Article VII, Section 15 limiting the President’s appointing power during
the election period. This limitation of power would have been all-encompassing and would, thus,
have extended to all government positions the President can fill, had the Constitution not
inserted a provision, also on appointments, in the Article on the Judiciary with respect to
appointments to the Supreme Court. This conflict gives rise to the questions: which provision
should prevail, or should both be given effect? Or should both provisions yield to a higher
concern – the need to maintain the integrity of our elections?
A holistic reading of the Constitution – a must in constitutional interpretation – dictates as a
general rule that the tasks assigned to each department and their limitations should be given full
effect to fulfill the constitutional purposes under the check and balance principle, unless the
Constitution itself expressly indicates its preference for one task, concern or standard over the
others,32 or unless this Court, in its role as interpreter of the Constitution, has spoken on the
appropriate interpretation that should be made.33

In considering the interests of the Executive and the Judiciary, a holistic approach starts from
the premise that the constitutional scheme is to grant the President the power of appointment,
subject to the limitation provided under Article VII, Section 15. At the same time, the Judiciary is
assured, without qualifications under Article VIII, Section 4(1), of the immediate appointment of
Members of the Supreme Court, i.e., within 90 days from the occurrence of the vacancy. If both
provisions would be allowed to take effect, as I believe they should, the limitation on the
appointment power of the President under Article VII, Section 15 should itself be limited by the
appointment of Members of the Court pursuant to Article VIII, Section 4(1), so that the provision
applicable to the Judiciary can be given full effect without detriment to the President’s appointing
authority. This harmonization will result in restoring to the President the full authority to appoint
Members of the Supreme Court pursuant to the combined operation of Article VII, Section 15
and Article VIII, Section 4(1).

Viewed in this light, there is essentially no conflict, in terms of the authority to appoint, between
the Executive and Judiciary; the President would effectively be allowed to exercise the
Executive’s traditional presidential power of appointment while respecting the Judiciary’s own
prerogative. In other words, the President retains full powers to appoint Members of the Court
during the election period, and the Judiciary is assured of a full membership within the time
frame given.

Interestingly, the objection to the full application of Article VIII, Section 4(1) comes, not from the
current President, but mainly from petitioners echoing the present presidential candidates, one
of whom shall soon be the incoming President. They do not, of course, cite reasons of power
and the loss of the opportunity to appoint the Chief Justice; many of the petitioners/intervenors
oppose the full application of Article VIII, Section 4(1) based on the need to maintain the
integrity of the elections through the avoidance of a "midnight appointment."

This "integrity" reason is a given in a democracy and can hardly be opposed on the theoretical
plane, as the integrity of the elections must indeed prevail in a true democracy. The statement,
however, begs a lot of questions, among them the question of whether the appointment of a full
Court under the terms of Article VIII, Section 4(1) will adversely affect or enhance the integrity of
the elections.

In my Separate Opinion, I concluded that the appointment of a Member of the Court even during
the election period per se implies no adverse effect on the integrity of the election; a full Court is
ideal during this period in light of the Court’s unique role during elections. I maintain this view
and fully concur in this regard with the majority.

During the election period, the court is not only the interpreter of the Constitution and the
election laws; other than the Commission on Elections and the lower courts to a limited extent,
the Court is likewise the highest impartial recourse available to decisively address any problem
or dispute arising from the election. It is the leader and the highest court in the Judiciary, the
only one of the three departments of government directly unaffected by the election. The Court
is likewise the entity entrusted by the Constitution, no less, with the gravest election-related
responsibilities. In particular, it is the sole judge of all contests in the election of the President
and the Vice-President, with leadership and participation as well in the election tribunals that
directly address Senate and House of Representatives electoral disputes. With this grant of
responsibilities, the Constitution itself has spoken on the trust it reposes on the Court on
election matters. This reposed trust, to my mind, renders academic any question of whether an
appointment during the election period will adversely affect the integrity of the elections – it will
not, as the maintenance of a full Court in fact contributes to the enforcement of the constitutional
scheme to foster a free and orderly election.

In reading the motions for reconsideration against the backdrop of the partisan political noise of
the coming elections, one cannot avoid hearing echoes from some of the arguments that the
objection is related, more than anything else, to their lack of trust in an appointment to be made
by the incumbent President who will soon be bowing out of office. They label the incumbent
President’s act as a "midnight appointment" – a term that has acquired a pejorative meaning in
contemporary society.

As I intimated in my Separate Opinion, the imputation of distrust can be made against any
appointing authority, whether outgoing or incoming. The incoming President himself will be
before this Court if an election contest arises; any President, past or future, would also naturally
wish favorable outcomes in legal problems that the Court would resolve. These possibilities and
the potential for continuing influence in the Court, however, cannot be active considerations in
resolving the election ban issue as they are, in their present form and presentation, all
speculative. If past record is to be the measure, the record of past Chief Justices and of this
Court speaks for itself with respect to the Justices’ relationship with, and deferral to, the
appointing authority in their decisions.

What should not be forgotten in examining the records of the Court, from the prism of problems
an electoral exercise may bring, is the Court’s unique and proven capacity to intervene and
diffuse situations that are potentially explosive for the nation. EDSA II particularly comes to mind
in this regard (although it was an event that was not rooted in election problems) as it is a
perfect example of the potential for damage to the nation that the Court can address and has
addressed. When acting in this role, a vacancy in the Court is not only a vote less, but a
significant contribution less in the Court’s deliberations and capacity for action, especially if the
missing voice is the voice of the Chief Justice.

Be it remembered that if any EDSA-type situation arises in the coming elections, it will be
compounded by the lack of leaders because of the lapse of the President’s term by June 30,
2010; by a possible failure of succession if for some reason the election of the new leadership
becomes problematic; and by the similar absence of congressional leadership because
Congress has not yet convened to organize itself.34 In this scenario, only the Judiciary of the
three great departments of government stands unaffected by the election and should at least
therefore be complete to enable it to discharge its constitutional role to its fullest potential and
capacity. To state the obvious, leaving the Judiciary without any permanent leader in this
scenario may immeasurably complicate the problem, as all three departments of government
will then be leaderless.

To stress what I mentioned on this point in my Separate Opinion, the absence of a Chief Justice
will make a lot of difference in the effectiveness of the Court as he or she heads the Judiciary,
sits as Chair of the JBC and of the Presidential Electoral Tribunal, presides over impeachment
proceedings, and provides the moral suasion and leadership that only the permanent mantle of
the Chief Justice can bestow. EDSA II is just one of the many lessons from the past when the
weightiest of issues were tackled and promptly resolved by the Court. Unseen by the general
public in all these was the leadership that was there to ensure that the Court would act as one,
in the spirit of harmony and stability although divergent in their individual views, as the Justices
individually make their contributions to the collegial result. To some, this leadership may only be
symbolic, as the Court has fully functioned in the past even with an incomplete membership or
under an Acting Chief Justice. But as I said before, an incomplete Court "is not a whole
Supreme Court; it will only be a Court with 14 members who would act and vote on all matters
before it." To fully recall what I have said on this matter:

The importance of the presence of one Member of the Court can and should never be
underestimated, particularly on issues that may gravely affect the nation. Many a case has been
won or lost on the basis of one vote. On an issue of the constitutionality of a law, treaty or
statute, a tie vote – which is possible in a 14 member court – means that the constitutionality is
upheld. This was our lesson in Isagani Cruz v. DENR Secretary.

More than the vote, Court deliberation is the core of the decision-making process and one voice
is less is not only a vote less but a contributed opinion, an observation, or a cautionary word
less for the Court. One voice can be a big difference if the missing voice is that of the Chief
Justice.

Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the
Court of a permanent sitting Chief Justice cannot be equaled. He is the first among equals – a
primus inter pares – who sets the tone for the Court and the Judiciary, and who is looked up to
on all matters, whether administrative or judicial. To the world outside the Judiciary, he is the
personification of the Court and the whole Judiciary. And this is not surprising since, as Chief
Justice, he not only chairs the Court en banc, but chairs as well the Presidential Electoral
Tribunal that sits in judgment over election disputes affecting the President and the Vice-
President. Outside of his immediate Court duties, he sits as Chair of the Judicial and Bar
Council, the Philippine Judicial Academy and, by constitutional command, presides over the
impeachment of the President. To be sure, the Acting Chief Justice may be the ablest, but he is
not the Chief Justice without the mantle and permanent title of the Office, and even his
presence as Acting Chief Justice leaves the Court with one member less. Sadly, this member is
the Chief Justice; even with an Acting Chief Justice, the Judiciary and the Court remains
headless. 35

Given these views, I see no point in re-discussing the finer points of technical interpretation and
their supporting latin maxims that I have addressed in my Separate Opinion and now feel need
no further elaboration; maxims can be found to serve a pleader’s every need and in any case
are the last interpretative tools in constitutional interpretation. Nor do I see any point in
discussing arguments based on the intent of the framers of the Constitution now cited by the
parties in the contexts that would serve their own ends. As may be evident in these discussions,
other than the texts of the disputed provisions, I prefer to examine their purposes and the
consequences of their application, understood within the context of democratic values. Past
precedents are equally invaluable for the lead, order, and stability they contribute, but only if
they are in point, certain, and still alive to current realities, while the history of provisions,
including the intents behind them, are primarily important to ascertain the purposes the
provisions serve.
From these perspectives and without denigrating the framers’ historical contributions, I say that
it is the Constitution that now primarily speaks to us in this case and what we hear are its direct
words, not merely the recorded isolated debates reflecting the personal intents of the
constitutional commissioners as cited by the parties to fit their respective theories. The voice
speaking the words of the Constitution is our best guide, as these words will unalterably be
there for us to read in the context of their purposes and the nation’s needs and circumstances.
This Concurring and Dissenting Opinion hears and listens to that voice.

The Valenzuela Decision

The ponencia’s ruling reversing Valenzuela, in my view, is out of place in the present case,
since at issue here is the appointment of the Chief Justice during the period of the election ban,
not the appointment of lower court judges that Valenzuela resolved. To be perfectly clear, the
conflict in the constitutional provisions is not confined to Article VII, Section 15 and Article VIII,
Section 4(1) with respect to the appointment of Members of the Supreme Court; even before the
Valenzuela ruling, the conflict already existed between Article VII, Section 15 and Article VIII,
Section 9 – the provision on the appointment of the justices and judges of courts lower than the
Supreme Court. After this Court’s ruling in Valenzuela, no amount of hairsplitting can result in
the conclusion that Article VII, Section 15 applied the election ban over the whole Judiciary,
including the Supreme Court, as the facts and the fallo of Valenzuela plainly spoke of the
objectionable appointment of two Regional Trial Court judges. To reiterate, Valenzuela only
resolved the conflict between Article VII, Section 15 and appointments to the Judiciary under
Article VIII, Section 9.

If Valenzuela did prominently figure at all in the present case, the prominence can be attributed
to the petitioners’ mistaken reading that this case is primary authority for the dictum that Article
VII, Section 15 completely bans all appointments to the Judiciary, including appointments to the
Supreme Court, during the election period up to the end of the incumbent President’s term.

In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence, cannot be cited for
its primary precedential value. This legal situation still holds true as Valenzuela was not
doctrinally reversed as its proposed reversal was supported only by five (5) out of the 12
participating Members of the Court. In other words, this ruling on how Article VII, Section 15 is to
be interpreted in relation with Article VIII, Section 9, should continue to stand unless otherwise
expressly reversed by this Court.

But separately from the mistaken use of an obiter ruling as primary authority, I believe that I
should sound the alarm bell about the Valenzuela ruling in light of a recent vacancy in the
position of Presiding Justice of the Sandiganbayan resulting from Presiding Justice Norberto
Geraldez’s death soon after we issued the decision in the present case. Reversing the
Valenzuela ruling now, in the absence of a properly filed case addressing an appointment at this
time to the Sandiganbayan or to any other vacancy in the lower courts, will be an irregular ruling
of the first magnitude by this Court, as it will effectively be a shortcut that lifts the election ban on
appointments to the lower courts without the benefit of a case whose facts and arguments
would directly confront the continued validity of the Valenzuela ruling. This is especially so after
we have placed the Court on notice that a reversal of Valenzuela is uncalled for because its
ruling is not the litigated issue in this case.

In any case, let me repeat what I stressed in my Separate Opinion about Valenzuela which rests
on the reasoning that the evils Section 15 seeks to remedy – vote buying, midnight
appointments and partisan reasons to influence the elections – exist, thus justifying an election
appointment ban. In particular, the "midnight appointment" justification, while fully applicable to
the more numerous vacancies at the lower echelons of the Judiciary (with an alleged current
lower court vacancy level of 537 or a 24.5% vacancy rate), should not apply to the Supreme
Court which has only a total of 15 positions that are not even vacated at the same time. The
most number of vacancies for any one year occurred only last year (2009) when seven (7)
positions were vacated by retirement, but this vacancy rate is not expected to be replicated at
any time within the next decade. Thus "midnight appointments" to the extent that they were
understood in Aytona36 will not occur in the vacancies of this Court as nominations to its
vacancies are all processed through the JBC under the public’s close scrutiny. As already
discussed above, the institutional integrity of the Court is hardly an issue. If at all, only
objections personal to the individual Members of the Court or against the individual applicants
can be made, but these are matters addressed in the first place by the JBC before nominees
are submitted. There, too, are specific reasons, likewise discussed above, explaining why the
election ban should not apply to the Supreme Court. These exempting reasons, of course, have
yet to be shown to apply to the lower courts. Thus, on the whole, the reasons justifying the
election ban in Valenzuela still obtain in so far as the lower courts are concerned, and have yet
to be proven otherwise in a properly filed case. Until then, Valenzuela, except to the extent that
it mentioned Section 4(1), should remain an authoritative ruling of this Court.

CONCLUSION

In light of these considerations, a writ of prohibition cannot issue to prevent the JBC from
performing its principal function, under the Constitution, of recommending nominees for the
position of Chief Justice. Thus, I vote to deny with finality the Tolentino and Soriano motions for
reconsideration.

The other motions for reconsideration in so far as they challenge the conclusion that the
President can appoint the Chief Justice even during the election period are likewise denied with
finality for lack of merit, but are granted in so far as they support the continued validity of the
ruling of this Court in In Re: Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.

My opinion on the Mendoza petition stands.

ARTURO D. BRION
Associate Justice

Footnotes

1
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves the
constitutional validity of the appointment of two (2) RTC Judges on March 30, 1998 – a
date that falls within the supposed ban under Section 15, Article VII of the Constitution.
We nullified the appointments.

2
G.R. No. 191002 and companion cases, promulgated on March 17, 2010.

3
Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral Mendoza.
4
G.R. No. 191002, Petition for Certiorari and Mandamus.

5
G.R. No. 191149, Petition for Certiorari and Mandamus.

6
The JBC reiterates its position in its Comment (dated April 12, 2010) on the motions for
reconsideration that it is still acting on the preparation of the list of nominees and is set
to interview the nominees.

7
See, for instance, the motion for reconsideration of intervenor Alfonso Tan, Jr.

8
The docketed petitions were seven; the petitions-in-intervention were ten.

9
A prohibition petition seeks to stop the proceedings of a tribunal, corporation, board,
officer or person exercising judicial, quasi-judicial or ministerial functions if any of its act
is without or in excess of jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction.

10
Separate Opinion, p. 16.

11
The JBC position states:

xxxx

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

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

12
Mendoza Petition, pp. 5-6.

13
Separate Opinion, pp. 16-17.

14
Supra note 11.

15
Id. at 17.

16
Separate Opinion, pp. 19-22:

A first reality is that the JBC cannot, on its own due to lack of the proper
authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary
and it has no authority to interpret constitutional provisions, even those affecting
its principal function; the authority to undertake constitutional interpretation
belongs to the courts alone.

A second reality is that the disputed constitutional provisions do not stand alone
and cannot be read independently of one another; the Constitution and its
various provisions have to be read and interpreted as one seamless whole,
giving sufficient emphasis to every aspect in accordance with the hierarchy of our
constitutional values. The disputed provisions should be read together and, as
reflections of the will of the people, should be given effect to the extent that they
should be reconciled.

The third reality, closely related to the second, is that in resolving the coverage of
the election ban vis-à-vis the appointment of the Chief Justice and the Members
of the Court, provisions of the Constitution other than the disputed provisions
must be taken into account. In considering when and how to act, the JBC has to
consider that:

1. The President has a term of six years which begins at noon of June
30 following the election, which implies that the outgoing President
remains President up to that time. (Section 4, Article VII). The President
assumes office at the beginning of his or her term, with provision for the
situations where the President fails to qualify or is unavailable at the
beginning of his term (Section 7, Article VII).

2. The Senators and the Congressmen begin their respective terms also
at midday of June 30(Sections 4 and 7, Article VI). The Congress
convenes on the 4th Monday of July for its regular session, but the
President may call a special session at any time. (Section 15, Article VI)

3. The Valenzuela case cited as authority for the position that the election
ban provision applies to the whole Judiciary, only decided the issue with
respect to lower court judges, specifically, those covered by Section 9,
Article VIII of the Constitution. Any reference to the filling up of vacancies
in the Supreme Court pursuant to Section 4(1), Article VIII constitutes
obiter dictum as this issue was not directly in issue and was not ruled
upon.

These provisions and interpretation of the Valenzuela ruling – when read

together with disputed provisions, related with one another, and considered with
the May 17, 2010 retirement of the current Chief Justice – bring into focus certain
unavoidable realities, as follows:

1. If the election ban would apply fully to the Supreme Court, the
incumbent President cannot appoint a Member of the Court beginning
March 10, 2010, all the way up to June 30, 2010.

2. The retirement of the incumbent Chief Justice – May 17, 2010 – falls
within the period of the election ban. (In an extreme example where the
retirement of a Member of the Court falls on or very close to the day the
election ban starts, the Office of the Solicitor General calculates in its
 Comment that the whole 90 days given to the President to make
appointment would be covered by the election ban.)

3. Beginning May 17, 2010, the Chief Justice position would be vacant,
giving rise to the question of whether an Acting Chief Justice can act in
his place. While this is essentially a Supreme Court concern, the Chief
Justice is the ex officio Chair of the JBC; hence it must be concerned and
be properly guided.

4. The appointment of the new Chief Justice has to be made within 90

days from the time the vacancy occurs, which translates to a deadline of
August 15, 2010.

5. The deadline for the appointment is fixed (as it is not reckoned from the
date of submission of the JBC list, as in the lower courts) which means
that the JBC ideally will have to make its list available at the start of the
90-day period so that its process will not eat up the 90-day period granted
the President.

6. After noon of June 30, 2010, the JBC representation from Congress
would be vacant; the current representatives’ mandates to act for their
principals extend only to the end of their present terms; thus, the JBC
shall be operating at that point at less than its full membership.

7. Congress will not convene until the 4th Monday of July, 2010, but
would still need to organize before the two Houses of Congress can send
their representatives to the JBC – a process may extend well into August,
2010.

8. By July 5, 2010, one regular member of the JBC would vacate his post.
Filling up this vacancy requires a presidential appointment and the
concurrence of the Commission on Appointments.

9. Last but not the least, the prohibition in Section 15, Article VII is that "a
President or Acting President shall not make appointments." This
prohibition is expressly addressed to the President and covers the act of
appointment; the prohibition is not against the JBC in the performance of
its function of "recommending appointees to the Judiciary" – an act that is
one step away from the act of making appointments.

17
The Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel Ancestral Domain, G.R. Nos. 183591, 183791, 183752, 183893, 183951
and 183962, October 14, 2008.

18
By virtue of its power of administrative supervision, the Supreme Court oversees the
judges’ and court personnel’s compliance with the laws, rules and regulations. It may
take the proper administrative action against them if they commit any violation. See
Ampong v. CSC, G.R. No. 107910, August 26, 2008, 563 SCRA 293. The Constitution
separately provides for the Supreme Court’s supervision over the JBC. See Article VIII,
Section 8 of the CONSTITUTION.
19
Judicial Review is the power of the courts to test the validity of executive and
legislative acts for their conformity with the Constitution, Garcia v. Executive Secretary,
G.R. No. 157584, April 2, 2009.

20
Control is the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter. It is distinguished from supervision in that the
latter means overseeing, or the power or authority of an officer to see that subordinate
officers perform their duties, and if the latter fail or neglect to fulfill them, then the former
may take such action or steps as prescribed by law to make them perform these duties.
Nachura, J., Outline Reviewer in Political Law, 2006 ed., p. 276.

21
G.R. No. 156052, February 13, 2008, 545 SCRA 92.

22
Supra notes 11 and 14.

23
Philippine Bar Association (PBA), Women Trial Lawyers Organization of the
Philippines (WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving
Corvera and Alfonso V. Tan, Jr.

24
See PBA’s Motion for Reconsideration.

25
See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z. Tolentino,
Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.

26
CONSTITUTION, Article VII, Section 15:

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

27
CONSTITUTION, Article VIII, Section 4(1):

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

xxxx

28
See Petition on Intervention of WTLOP, as cited in the decision in the above-
captioned cases; see also: PBA’s motion for reconsideration.

29
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415
SCRA 44, citing Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1994);
Peralta v. Commission on Elections, G.R. No. 47771, March 11, 1978, 82 SCRA 30
(1978); Ang-Angco v. Castillo, G.R. No. 17169, November 30, 1963, 9 SCRA 619
(1963).
30
Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310 SCRA
614, citing Chiongbian v. De Leon, 82 Phil 771 (1949).

31
Article VI for the Legislature, Article VII for the Executive, and Article VIII for the
Judiciary.

32
See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49; where the
court resolved the clash between the power of the President to extend ad interim
appointments and the power of the Commission on Appointments to confirm presidential
appointments.

33
Ibid.

34
Supra note 13.

35
Separate Opinion, p. 32.
Case 7: Republic V Sereno

G.R. No. 237428, May 11, 2018 - REPUBLIC OF THE PHILIPPINES, REPRESENTED
BY SOLICITOR GENERAL JOSE C. CALIDA, Petitioner, v. MARIA LOURDES P. A.
SERENO, Respondent.

RESOLUTION

JARDELEZA, J.:

On some positions cowardice asks the question. is it

safe? Expediency asks the question, is it politic?

Vanity asks the question, is it popular? But

conscience asks the question, is it right? And there

 comes a time when one must take a position that is

neither safe, nor politic, nor popular but he must

take it because conscience tells him it is right. -

Martin Luther King1

Respondent Chief Justice Maria Lourdes P. A. Sereno (respondent) in her Ad

Cautelam Respectful Motion for Inhibition (Motion) seeks to prevent me from
participating in this special civil action for quo warranto. She invokes the New Code
of Judicial Conduct, which enjoins judges to disqualify themselves from participating
in a matter in which it may appear, to a reasonable observer, that they are unable
to decide a matter impartially, and where the judge has actual bias or prejudice
concerning a party. She further invokes the due process clause of the Constitution.

Determining whether a sitting justice of the Supreme Court should recuse in a case
is an exercise fraught with constitutional difficulty. This is due in no small measure
to the absence of a clear litmus test by which a jurist's partiality is measured.
Walking the tightrope between a judge's duty to decide and inhibition being a
matter of conscience, the Court has made largely ad hoc decisions that turn on the
factual subtleties of each case. This has prevented the development of a bright line
rule on inhibition. In the Philippines, this tightrope walk between judicial
accountability and judicial independence is made more problematic by the very
paucity of formal mechanisms that institutionalize the reconciliation of these two
concepts.2 This gap in the law is complicated by the history, practice and tradition
of the Court respecting recusal from within its ranks: the individual justices of the
Court decide for themselves whether to inhibit from a case, and whether to explain
their decision or remain silent. Finally, because the Court itself abides by the
Justice's judgment, and because there is no appeal, a Justice's decision on the
matter of his recusal is final.

Fully conscious of these sensitivities, I have thus endeavored to: (I) provide, in the
interest of transparency and fuller context, the specific charges made against me,
as set forth in respondent's Motion, as well as other relevant events which led up to
these charges, including my testimony before the Committee on Justice of the
House of Representatives (House Committee on Justice); (II) survey the relevant
rules and statutes on inhibitions and recusals; (III) study applicable jurisprudence,
both local and American, on the subject, including where they seemingly implicate
issues of due process; and (IV) consider the practice of the Court with respect to
the inhibition and recusal of its own members. I submit this Resolution to show how
I have decided, in good conscience, to participate in this case.

A
The Motion cites three charges that allegedly evidence my bias or prejudice against
respondent, namely that: (1) I have stated that she committed treason; (2) I
described her actions during my nomination to the Court as "inhumane" and "not
those of a normal person;" and (3) my negative characterization of her persists to
this day.

In the interest of full disclosure and to enable the reader to appreciate the context
of these charges, I quote respondents' allegation in full.

The first charge cites my statement before the House Committee on

Justice that respondent committed "treason:"

On 11 December 2017, Justice Jardeleza testified before the Committee on Justice
of the House of Representatives in relation to the charge that the Chief Justice
allegedly. "manipulated the shortlist of the Judicial and Bar Council (JBC) to exclude
then Solicitor General Francis H. Jardeleza, for personal and political reasons,
thereby disgracing then Sol. Gen. Jardeleza and curtailing the President's power to
appoint him. There is reasonable basis to conclude from Justice Jardeleza's
testimony, that he harboured ill feelings towards the Chief Justice as a consequence
of the latter's challenge to his integrity during the nomination process for the
Associate Justice position (vice Hon. Justice Roberto A. Abad) in 2014. Justice
Jardeleza apparently asserted that the Chief Justice has committed "treason", to
wit:
[JUSTICE] JARDELEZA. x x x

So, ngayon mabalik po tayo. Ano po ang paratang sa akin? Ang paratang po at dito
nakasaad sa supplemental comment ng Chief Justice. Sinabi na po ni Attorney
Capacite, ito pong supplemental comment and reply pirmado ni Attorney Capacite,
hindi po ito verified. Subalit iyong part two po nito, naka-all caps, it's page 13,
statement of the Chief Justice on the integrity objection. Ang first sentence po,
basahin ko, "This portion is solely attributable to the Chief Justice." Ano pong
sinasaad nito? Na iyong diskarte ko na pumanig ako na huwag isama, ako ay to
quote her words, "disloyal to the republic." Iyong disloyalty to the republic, if you
check the Pilipino-English dictionary ay naghudas sa ating Inang Bayan.
Napakabigat po.

Direct quote again, iyong diskarte ko na iyon ay is an act of treason. Treason. Sa

madaling salita po sa Tagalog ako po ay traydor sa Inang Bayan. x x x

xxxx

So, sa punto na iyon ay ibabalik ko po ang tanong. Hindi ko po ikaila na may

diskarte itong American lawyers, may diskarte ang Foreign Affairs, may diskarte rin
kami. Eh bakit naman kung nasa kabilang panig ako disloyal sa bayan natin? This is
a difference of opinion. And, in fact, on an executive matter, so iyong po ang unang
tanong. Ako ay pinaratangan na disloyal o anghudas sa bayan natin, Eh sa
pananaw ko po it is the Chief Justice who acted disloyally, naghudas sa bayan
natin. Bakit? Eh bakit niya gagamitin itong classified, top secret or secret
document? Para sa anong gamit? Hindi siya kasama sa arbitration. Ang ginamit
niya du'ng [sic] dokumento ay illegally secured document. So binabalik ko po sa
kanya ang paratang na disloyal to the government. At noong panahon na iyon hindi
pa tapos ang kaso. That was a continuing case. Nagkadesisyon lang po kasi 2016
na. So, sino po ang disloyal sa bansa natin. Sa palagay kop o hindi ako, hindi ang
Office of the President, hindi si Chief PLC.

xxxx

[JUSTICE] JARDELEZA. (Continuing) ... largest island in the Spratlys." Salita niya
yun, hindi ko salita yun. Ayun nga ang pinag-aawayan. Ang statement na Itu Aba is
the largest island in the Spratlys ay taliwas, contradictory sa posisyon ng gobyerno
na ang itu Aba ay rock lang. So ngayon, ang paratang sa akin na ang ginawa ko,
ang diskarte ko ay treason, maitanong ko po sa inyo sino ngayon [sic] ang
committed an act of treason sa pananalita nya na Itu Aba is an island? Bagkus, ang
posisyon ng gobyerno Itu Aba is a rock. At saka sinabi niya ito na Itu Aba is an
island not once but twice. Sinabi niya ulit, inulit niya pa sa paragraph 68, "It must
be emphasized that the categorical legal position that characterizes Itu Aba is an
island ... as an island," inulit pa. So, ngayon binabalik ko iyung paratang, sino sa
amin ang nagcommit ng act of treason? Hindi po ako. Hirap na hirap iyung team na
mabigyan ng pruweba na iyung Itu Aba ay rock at hindi island. Bakit po? Bagk us
kasi kahit na hindi ... kahit na minensiyon (mention) natin, ang mga hukom ng
tribunal ay, at a certain point, ay kusang nagbigay ng order na Pilipinas, isama mo
sa diskusyon mo iyung dalawampu, 20 features kung ano ito, island or rock. Kahit
hindi natin minensiyon, and arbitral tribunal mismo nagsabi isama ninyo, kasama
doon ang Itu Aba. So napilitan tayo na idiscuss na itong Itu Aba up front and
center. Now, itanong ninyo sa amin. itanong ninyo sa akin, hanggang sa
madesisyunan ba kampante kami na mananalo tayo sa issue na ito? Hindi po. lyun
ang biggest nightmare natin because kapag na-declare ang itu Aba na island,
magkakaroon ng 200 miles. But, as they say, the rest is history. Mabuti na lang,
mabuti na lang nanalo tayo.

Magbalik ako, habang pending pa ito, habang pending pa iyung kaso, eh, bakit
naman tawagin akong traydor sa Inang Bayan? binabalik ko sa Chief Justice. Sa
palagay ko you were the one who committed treason. While the case was pending,
walang pakundangan na ginamit mo ang isang dokumento na top secret, classified
secret, nilagay mo sa publiko ang isang pangyayari na mayroong disagreement sa
legal team. At saka contrary sa pinaghihirapan ng Pilipinas na iyan ay rock, eh,
dalawang beses mo sinabi in writing iyun po ay island. So sa palagay ko po, kapag
kayo ang hukom dito ay kung hindi po iyun treason, hindi ko na alam. And I am not
asking for anything that she did not do unto me. Alam ko po iyung treason may
view na there can be no treason without war. At binabalik ko sa Punong Mahistrado.
eh, wala naming digmaan noong 2014, ti nawag mo akong traydor, tinawag mo ang
diskarte ko ay treason so ibabalik ko sa iyo. So, ang ibig sabihin sa mind ni Chief
Justice, ang treason can be committed even kung walang digmaan.

So Honorable Members of the House, I will leave that to you, kayo po ang hukom
dito. Ang sinasabi ko ay pananaw ko, iyung sinasabi ko na ang Chief Justice ang
nag-commit ng acts of disloyalty and acts of treason against the Republic is not a
plain opinion. Iyun po ay bati sa... batay sa facts. Number one, ginamit niya,
pinalabas niya sa publiko ang classified document; number two, tinawag niya na
island iyung feature na hirap na hirap ang gobyerno naming i-pruweba na rock.

Maraming salamat po.

xxxx

REP. HERNANDEZ. Thank you, Mr. Chairman.

Let me just clarify it, Justice Jardeleza, are you saying that you are accusing the
Chief Justice of committing treason? Can you just clarify that?

[JUSTICE] JARDELEZA. Ayaw ko po na maakusahan ni Congressman Marcoleta na

ano iyun, ewan, ewan. (Laughter). So, ang straight po na sagot, iyun na
po.Because sa pananaw ko, eh, bakit mo... bakit mo ilantad ang classified
document? Ano ang pakialam ng hudikatura? O? Alam mo, ang pinag-aawayan ay
ang kahulugan ng island. The category of Itu Aba making it an island is a
conclusion based on facts. So, kung ang posisiyon ng gobyerno ay that is a rock,
iyung tano na magsabi, "Ay, hindi, island yan," again, if that is not treason, I do not
know what is treason.3
The second charge involves my characterization of respondent's actions relevant to
my nomination as a "personal slight,"4 "inhumane" and "not those of a normal
person." As evidence, respondent quotes the following portions of my testimony
before the House Committee on Justice, to wit:
REP. G.F. GARCIA. And so, she did not conduct herself as would have been
expected of a chief justice, head of a separate branch of government? Would that
be a fair statement[?]

[JUSTICE] JARDELEZA. I think that is a fair statement, Mr. Chairman.

REP. G.F. GARCIA. And yet as Chief Justice and assumed to be knowledgeable
about the law, it would have struck her or at least, it could have crossed her mind
that precisely attacking your integrity on the grounds of your legal strategy on the
West Philippine Sea would not hold water if we are to question integrity per se
because integrity would now delve on morality, on...what else...well, precisely
morality, in this case, this purely involved a professional position or a professional
judgment, do you think the Chief Justice could not have foreseen that?

[JUSTICE] JARDELEZA. Mr. Chairman, hindi ko po talaga alam. Ang katotohanan po

hanggang sa ngayon...kasi wala...wala po kaming history, wala kaming...sabi ko
nga tinuturing naming siya na pamilya ko, na kaibigan, wala akong maisip na away
propesyunal or personal. So, hanggang ngayon hindi ko talaga po maintindihan
bakit nagawa niya iyun...nagawa sa akin iyung isang bagay na napakatindi.
Napakatindi po iyun, mahirap. So, I am sorry, up to now, I cannot understand why
that was done to me.
 xxxx

REP. G.F. GARCIA. So, we are left to conclude that the Chief Justice's opposition to
your good self was purely out of an...what cannot be comprehended,
incomprehensible quirk of her personality?

[JUSTICE] JARDELEA. Because I cannot understand because I cannot get into her
mind, as I cannot understand, I can only say. Mr. Chairman. talagang. in my
view, what was done to me was inhuman.

REP. G.F. GARCIA. That no decent humane and human person much less a Chief
justice of a country would do?

[JUSTICE] JARDELEZA. Mr. Chairman, that...that...you know, when dealing with a

fellow human being, we should afford each other some measure of decency. Kung
ayaw po sa akin, kasi alam ko nan1an may nagsasabi, "Ay, hindi ikaw ang manok
ni Chief Justice." Eh, Mr. Chairman, lahat...iyung karamihan ng mga abugado dito,
iyung maluklok sa Korte Suprema, siguro iyun ang isa sa mga pinaka-minimithi. Sa
kadulu-dulo ng isang career ng isang tao, minsan man lang maka-apply ka. Masabi
mo sa mga apo mo, Aba, nag-apply ako. na-nominate ako. Eh, iyun lang naman
ako eh, bakit...and I was...I was minding my own business, I came from the private
sector, akala ko tapos na iyung mga anak ko puwede na akong tumulong. So,
littled did I know that I will get into all of these. As I said to the UP graduates, ito
po iyung ginawa sa akin were the most difficult two months of my life. Hindi ko
alam kung bakit ginawa but iyung...iyung ordeal na you would go through two
months hindi moa lam kung ano mangyayari. Bagkus, Mr. Chairman, one week to
go nagpaalam na ako sa Executive Secretary at saka kay CPLC then Ben, sinabi ko
naintindihan ninyo ba ang ginawa ko? Kinalaban ko iyung Chief Justice. Kung hindi
ako manalo sa Supreme Court, I will not be an effective SolGen. At saka hindi lang
iyun, eh, wala na ho, ang term na ginamit ni Justice Brion it is a...is a career killer.
Ang term na ginamit ko sa UP College of Law, it was a neardeath
experience sapagkat mabuti na lang sinuportahan ako ng Supreme Court. Kung
hindi po, I will live the rest of my life tagged na tao, abogadong walang integridad.
Integrity is a requirement before you can become a member of the Board of
Directors of a publicly-listed company. Under the fit and proper rule of the Central
Bank, integrity is a requirement. So, ano po ang mangyayari kung... kung hindi ako
nagdulog sa Supreme Court, ay, talagang wala na ho akong professional life, para
na ring naitsupuwera. So, I can agree po with...with you.

REP. G.F. GARCIA.In other words, iyung nangyari po sa inyo, sinabi po ninyo those
were the worst two months of your life kung saan kunuwestiyon (question) ang
integridad ninyo on the basis of what was purely a professional legal strategy and
belatedly nagdagdag pa ng dalawa na allegations which were totally
unsubstantiated. Ibig sabihin po, eh, talagang the Chief Justice was out to discredit
you, was out to destroy your reputation, was out to kill you career-wise, is this a
normal act of a Chief Justice and would you say that the Chief Justice in this
instance committed a great and grave injustice to yourself po?
MR. JARDELEZA. I believe po that that is not the act of a normal person.5
The third charge asserts that my negative assessment of respondent's character is
the very issue raised in the present petition, and that this negative characterization
persists to this day. She cites a portion of my testimony before the Committee on
Justice as illustrative:
It appears that Justice Jardeleza's apparent bias or prejudice against the Chief
Justice continues until present. With due respect, this is evident from the following
testimony:

REP. J.C.Y. BELMONTE. (Continuing)... nag-oath taking po kayo. Sir, as justice,

congratulations po and dapat lang talaga; you deserved it. Pero that's an aside,
noong nagoath po kayo, kanino po kayo nag-oath?

[JUSTICE] JARDELEZA.Ganito po and kuwento, Mr. Chairman. I think I went to

Malacanang almost four-five o'clock na. Noong nandoon na po ako sa Malacanang, I
asked Secretary Ochoa, "Puwede mag-oath before President Aquino?" then ang
sagot ay "Sige titingnan natin kung ma-schedule, kung maka-schedule pa tayo."
So, nagantay po ako doon. After a while, sabi, Baka masikip. Then, one of the
aides, one of the political aides of Secretary Ochoa said, "Alam mo, mabuti siguro
kung doon ka mag-oath before the CJ para naman anon a, to repair things." Eh
talaga pong nag-o-object ako. Sabi ko, "Puwede ba si President? Siya naman ang
nagnombra sa akin eh?" Kaya lang I don't know how many minutes passed, hindi
... sabi, "Hindi ka pa rin mapagbigyan. The schedule is full."

Ang hindi alam nu'ng lahat eh mahirap na iyon masingitan, nag-oath na ako sa
notary, I think mga bandang two o'clock para just in case may mangyari may oath
na ako, so may hawak-hawak na akong oath. After a while, wala pa rin, hindi pa rin
maano. And then, well, to my eternal regret pumayag ako. And why do I say to my
eternal regret because, katulad ni Justice Brion, the next morning I think and he is
here, I sought out Justice Brion to apologize because there were several people first
who said, "Eh mali naman ang ginawa mo. People went out on a limb for you to
help you, eh ba't doon ka naman nag-take oath?" So, iyon po ang katotohanan. I
had to apologize to Justice Brion why I allowed ... I took my oath before the Cj. And
again binalikan ko si Secretary Ochoa, "paki-arrange naman na mag-take oath ako
kay Pangulong Aquino." Kaya pag mabisita mo ako, ang picture ko po, I'm taking
my oath before President Aquino.

REP. J.C.Y. BELMONTE. I'm...thank you very much for that, Justice. I'm sorry I had
to ask that question.

[JUSTICE' JARDELEZA. It's all right but what I'm trying to say is iyong ginawa po sa
akin hindi makatao. Hindi po iyon nabura noong ako ay nagte-take oath and she
was smiling and everything is okay. Of course, everything was not okay and up to
today everything is not okay.6
B

In the interest of full transparency and to provide a more complete context, I shall
also narrate the relevant events which preceded my testimony before the House
Committee on Justice:

1. In June 2014, respondent attempted to block my nomination to the Court on

the ground that I lacked integrity, as shown by my handling of the West
Philippine Sea arbitration case which the Philippines filed before the
Petmanent Court of Arbitration at The Hague. I was then Solicitor General
and led the Philippine legal team that worked on the crafting of the
arbitration case. I would later be appointed the Philippine Agent for purposes
of the arbitration.

In public filings made in Jardeleza v. Sereno,7 respondent accused me of

committing "treason," being a "traitor," and being disloyal to the country
through my alleged "deliberate refusal to promote the remedies available to
the Philippines, and deliberately weakening the country's arguments."8 She
also faulted me for allegedly demonstrating "weakness of character" when I
was supposedly "not willing to protect the interest" of the Republic, even
inferring that I "may have been listening to extraneous factors or may have
been promised something", thereby imputing that I may have compromised
national interests because of personal agenda.9

On August 19, 2014, the Court ordered my inclusion in the JBC shortlist.
President Benigno S. Aquino III appointed me to the Court the following day.

2. On June 29, 2015, a little over a year before the final award on the West
Philippine Sea arbitration case was issued,10 I gave the commencement
address at the occasion of the graduation of the University of the Philippines
College of Law Class of 2015. In my address, I spoke about the value of hard
work and integrity in one's success and shared my harrowing experience in
aspiring for a seat in the Court. I ecalled then how painful it was to spend a
whole lifetime building a reputation worthy of my parents and my family,
only for my integrity to be disparaged at the peak of a legal career. I told the
graduates that in life, when faced with a shark or a bully, they should stand
their ground and push back. Admittedly, I referred to respondent's viciously
false accusations as those consistent of a "bully" and a "shark."11 My address
reads, in pertinent part:

xxxx

My third story is about my near death experience.

When I became Solicitor General in 2012, I thought I had reached the

pinnacle of my career. Former United States Solicitor General Rex Lee
described the position as "probably the creamiest lawyering job in the
country." But, as former United States Supreme Court Justice Potter Stewart
said. while the Solicitor General's office provides "the best lawyer's jobs," a
seat on the Supreme Court may be "the best job in American law." Thus,
after two and a half years as Solicitor General, I aspired for a seat in our
Supreme Court.

And then, Wham! The Chief Justice and the Senior Associate Justice of the
Supreme Court objected to my nomination, on grounds that I lack integrity in
my handling of the West Philippine Sea arbitration. Wow. It came as a
complete surprise; I did not know what hit me. This was the start of the most
difficult two months of my life, and that of [my wife], and of my children.

You will read most about what happened in Jardeleza v. Sereno. What the
case will not tell you, though, is how much pain the vicious untruths thrown
my way caused me and my family.

You spend a whole lifetime building a reputation worthy of your parents. My

father finished law in a school in Iloilo, and he passed the bar on the second
try. He practiced solo until he had to take a government job for its steady
income. This was when my siblings and I were entering high school. My
mother was a pharmacist and a college teacher who taught piano in the
evenings to supplement her income. They both worked very hard and saved.
They borrowed to build a house and paid the debt in twenty years. All of one
thousand pesos per year. They never owned a car in their lifetime. They only
dreamt to send all of us to UP, which they did.

You also spend a whole lifetime building a reputation worthy of your

family. [My wife] and I have raised our three children in the same way our
own parents reared us: education is the great equalizer, work hard, and the
only legacy we can bequeath them is a good name. We come from humble
beginnings. and we live a modest life. Name and reputation are most
important for us.

Thus, when my integrity was attacked, I knew I had to fight back, if only to
clear my name.

I had a most difficult defense because, first, as a lawyer, I had to keep the
confidences of my client, the Republic of the Philippines. Under our code of
ethics, we carry the secrets of the client to the grave. These secrets include
litigation strategy and tactics. You do not telegraph these to the adversary.
That would be treason. Second, I could not even confirm or deny the
existence of a leaked memorandun1 purporting to show the judgment calls
being debated in the highest levels of the Executive Department of
Government. As you can imagine, there are laws and administrative orders
prohibiting public officers charged with the custody of confidential and secret
documents from revealing their contents.12 My accusers violated these laws
with impunity. Criminal wrongdoing was piled upon brazen disregard for the
safekeeping of state secrets. Laws were broken when persons who had
custody of official documents leaked them to persons not members of the
legal team, and when the latter recklessly placed them in the public domain.
Read again Jardeleza v. Sereno. Read carefully between the lines.
 Fortunately for me, the Supreme Court decided to allow my name to be
placed in nomination, and the President appointed me to the Court.

I was so close to professional death, an inglorious end to a career I worked

so hard to nurture. It is an experience I would not wish on anybody, not even
to those who made those vile accusations against me.

xxxx

"Don't back down from the sharks." "Face down the bullies." These are
among the life lessons given by Naval Admiral William H. McRaven to the
graduates of the University of Texas, in his commencement address last May
2014. According to Admiral McRaven: "There are a lot of sharks in the world.
If you hope to complete the swim, you will have to deal with them." You see,
part of basic Navy SEAL training involves swimming in the shark infested
waters off Clemente Island in San Diego. His advice? When a shark circles
your position, you must stand your ground. Do not swim away. If it attacks,
you must summon all your strength and punch that shark in the snout.

Admiral McCraven, with the bravado of a true Navy SEAL, assumes that the
sharks and bullies will swim away when you punch them. I do not know
about that. Sharks and bullies can be mindlessly brutal. And relentless. I
cannot guarantee that you will triumph over the bullies and the sharks when
they circle you. Like I told you, in my case, I almost perished. To this day, I
am still searching for answers as to why that had to be done to me and to
my family. I still don't have the answers, but I knew then what I had to do. I
stood my ground. I pushed back.

In life, when faced with a shark or a bully, my advice to you: push back. Use
all your might, use your UP Law training. Push back for your parents. For
yourself. For your spouse. For your children. For your loved ones. For your
class. For your block mates.

Class of 2015, as you push back the bully, as you punch the shark, use all
your might and pray that you punched hard enough. It worked for me.

xxxx

3. On July 12, 2016, the Arbitral Tribunal in The Hague promulgated its ruling,
which was an astounding decision in favor of the Philippines. With this, I was
free at last to talk about the arbitration and, more importantly for me, the
treatment of Itu Aba.

The first opportunity presented itself within three months from the date of
the issuance of the arbitral decision. On October 21, 2016, I was invited to
deliver the keynote speech before the Integrated Bar of the Philippines (IBP)
- Western Visayas Regional Convention, which had for its theme, "Ensuring a
legal system based on respect for the Rul e of Law."

In my remarks, I shared the complete story behind the Itu Aba issue13 There,
I recounted how the Philippine legal team, composed of lawyers from
different offices within the Executive Department, and in coordination with
our international legal team, unanimously and purposively embarked on a
low-risk strategy involving the question of which features to include in the
Philippine submission. Specifically, only features that (in our estimation and
based on evidence known or avai lable to us) could, at worst, be declared
only as rocks were included in our January 2013 submission to the Arbitral
Tribunal. Relatedly, the team made a deliberate decision not to include Itu
Aba, the largest feature in the Spratly Islands, as it was reputed to have
sources of potable water which, arguably, could qualify it as an island, to the
detriment of the entire Philippine case.

In brief, the risk posed by including Itu Aba was this: if declared by the
arbitral tribunal to be an island, Itu Aba would generate a 200 Nautical Mile
(NM) Exclusive Economic Zone (EEZ) that would cover large parts of the
Philippine EEZ in the west, including Reed Bank and extending almost up to
Palawan. This was a risk none of the members of the Philippine legal team
was willing to take.

Towards the end of the year, however, foreign counsel recommended the
amendment of the Philippine statement of claim, with the addition of other
features, among them, Itu Aba. Considering the gravity and sensitivity of the
proposal, we asked counsel to visit Manila to personally discuss the matter
with the rest of the Philippine legal team. In a meeting held in Malacanan in
January 2014, the advantages and disadvantages of the proposal were
discussed. In the end, the team unanimously affirmed the low-risk strategy
initially agreed upon and decided against amending the Philippine submission
to include Itu Aba.

Despite this, foreign counsel again proposed, during the preparation of the
Philippine Memorial, to include therein fourteen (14)
paragraphs mentioning Itu Aba. These additional paragraphs would argue
that although Itu Aba is the largest high-tide feature in the Spratly Islands, it
is still incapable of sustaining human habitation or economic life of its own,
and thus cannot be held to be an island. After reminding counsel that the
matter has already been decided in the January 2014 Manila meeting, I
proposed that the recommendation be placed in a formal
memorandum14 addressed to the Secretary of Foreign Affairs and myself, for
purposes of elevating the matter to then President Aquino for his decision.
After discussion, President Aquino decided to go with the foreign counsel's
recommendation and the additional paragraphs mentioning Itu Aba were
included in the Memorial.15

Respondent would later on use this same confidential Memorandum to block

 my nomination and impugn my integrity before the JBC. I emphasize that
neither respondent nor her informant, Senior Associate Justice Antonio T.
Carpio, were part of the Philippine legal team. They did not participate in the
discussions that led to the initial adoption of the low-risk strategy, nor in the
decision not to amend the Philippine submission. In fact, I did not furnish
respondent or Justice Carpio a copy of this confidential Memorandum in view
of its highly sensitive content.

4. On December 11, 2017, I appeared and testified before the House

Committee on Justice.

II

This part shall cover my survey of the relevant rules on inhibition or

disqualification of judges.

First, there is Section 5, Canon 3 of the New Code of Judicial Conduct, cited
by respondent, which provides as follows:

Sec. 5. Judges shall disqualify themselves from participating in any

proceedings in which they are unable to decide the matter impartially or in
which it may appear to a reasonable observer that they are unable to decide
a matter impartially. Such proceedings include, but are not limited to
instances where:

a) The judge has actual bias or prejudice concerning a party or personal

knowledge of disputed evidentiary facts concerning the proceedings;

b) The judge previously served as a lawyer or was a material witness in the

matter in controversy;

c) The judge, or a member of his or her family, has an economic interest in

the outcome of the matter in controversy;

d) The judge served as executor, administrator, guardian, trustee or lawyer

in the case or matter in controversy, or a former associate of the judge
served as counsel during their association, or the judge or lawyer was a
material witness therein;

e) The judge's ruling in a lower court is the subject of review;

f) The judge is related by consanguinity or affinity to a party litigant within

the sixth civil degree or to counsel within the fourth civil degree; or

g) The judge knows that his or her spouse or child has a financial interest, as
heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in
 controversy or in a party to the proceeding, or any other interest that could
be substantially affected by the outcome of the proceedings.

A.M. No. 03-05-01-SC, or the Adoption of the New Code of the Philippine Judiciary,
was promulgated on May 15, 2004. It was touted as the Philippines' acceptance and
implementation of the Bangalore Draft of the Code of Judicial Conduct which was, in
turn, intended to be the Universal Declaration of Judicial Standards applicable in all
judiciaries of member countries.16 Somewhat similarly with the New Code of Judicial
Conduct, Bangalore Draft Value 2.5 provides:
2.5 A judge shall disqualify himself or herself from participating in any proceedings
in which the judge is unable to decide the matter impartially or in which it may
appear to a reasonable observer that the judge is unable to decide the matter
impartially. Such proceedings include, but are not limited to, instances where:

2.5.1 the judge has actual bias or prejudice concerning a party or personal
knowledge of disputed evidentiary facts concerning the proceedings;

2.5.2 the judge previously served as a lawyer or was a material witness in the
matter in controversy; or

2.5.3 the judge or a member of the judge's family, has an economic interest in the
outcome of the matter in controversy: Provided that disqualification of a judge shall
not be required if no other tribunal can be constituted to deal with the case or,
because of urgent circumstances, failure to act could lead to a serious miscarriage
of justice.
Rule 137 of the Rules of Court also enumerates grounds for either the
disqualification or inhibition of a judge, to wit:
Sec. 1. Disqualification of judges. - No judge or judicial officer shall sit in any case
in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree, computed
according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has been presided in any
inferior court when his ruling or decision is the subject of review, without the
written consent of all parties in interest, signed by them and entered upon the
record.

A judge may in the exercise of his sound discretion, disqualify himself from sitting
in a case, for just or valid reasons other than those mentioned above.17
Finally, Rule 8 of A.M. No. 10-4-20-SC, or the Internal Rules of the Supreme
Court,18 also provides the following grounds for inhibition:
Sec. 1. Grounds for inhibition. - A Member of the Court shall inhibit himself or
herself from participating in the resolution of the case for any of these and similar
reasons:

(a) the Member of the Court was the ponente of the decision or participated in the
proceedings in the appellate or trial court;
(b) the Member of the Court was counsel, partner or member of law firm that is or
was the counsel in the case subject to Section 3(c) of this rule;

(c) the Member of the Court or his or her spouse, parent or child is pecuniarily
interested in the case;

(d) the Member of the Court is related to either party in the case within the sixth
degree of consanguinity or affinity, or to an attorney or any member of a law firm
who is counsel of record in the case within the fourth degree of consanguinity or
affinity;

(e) the Member of the Court was executor, administrator, guardian or trustee in the
case; and

(f) the Member of the Court was an official or is the spouse of an official or former
official of a government agency or private entity that is a party to the case and the
Justice or his or her spouse has reviewed or acted on any matter relating to the
case.

A Member of the Court may in the exercise of his or her sound discretion, inhibit
himself or herself for a just or valid reason other than any of those mentioned
above.

The inhibiting Member must state the precise reason for the inhibition.
In comparison, the applicable United States federal statute on the inhibition of
justices and judges, which is broadly governed by Section 455 of the Ethical
Standard Act of 1988, provides that:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a

lawyer with whom he previously practiced law served during such association as a
lawyer concerning the matter, or the judge or such lawyer has been a material
witness concerning it;

(3) Where he has served in governmental employment and in such capacity

participated as counsel, adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of
them, or the spouse of such a person:

(i) Is a party to the proceeding or an officer, director or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected
by the outcome of the proceeding;

(iv) Is, to the judge's knowledge, likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial
interests, and make a reasonable effort to inform himself about the personal
financial interests of his spouse and minor children residing in his household.
Relatedly, and upon study of the foregoing rules, there seems to me an established
dichotomy between grounds calling for mandatory disqualifications and voluntary
inhibitions.

Grounds calling for the mandatory disqualification of judges from sitting in, and
deciding, cases are those set forth in paragraphs (b) to (g), Section 5Canon 3 of
the New Code of Judicial Conduct, the first paragraph of Section 1, Rule 137 of the
Rules of Court, and the first paragraph of Section 1, Rule 8 of the Internal Rules of
the Supreme Court. These provisions similarly provide for objectively verifiable
bases upon which to support a judge's disqualification. On the other hand, the
second paragraphs of both Section 1, Rule 137 of the Rules of Court and Rule 8 of
the Internal Rules similarly provide that a judge may, in the exercise of his
discretion, inhibit himself or herself for a just or valid reason other than any of
those calling for mandatory disqualification. To me, the decision of whether to
participate in a case is left to the judge's sound discretion because it acknowledges
the possibility of other grounds for inhibition which, by nature, may not be
objectively verifiable, as compared to the previous grounds so listed.

While paragraph (a), Section 5, Canon 3 of the New Code of Judicial Conduct can
arguably be construed to call for the mandatory disqualification of a judge due to
the use of the word "shall," it is my view that a careful (and reconciliatory) reading
of this Section would show that it is more akin to the grounds provided under the
second paragraph of Section 1, Rule 137 of the Rules of Court and the penultimate
paragraph of Section 1, Rule 8 of the Internal Rules. Unlike the prophylactic
grounds enumerated in the first paragraphs of the aforementioned sections of the
Rules, which include verifiable relations of consanguinity or affinity and pecuniary
interests, bias and prejudice do not submit themselves to mathematically precise
determination and are therefore included in the grounds that are to be decided
based on the challenged judge's discretion.
 III

The dichotomy between mandatory and voluntary inhibitions, I find, has been
validated by jurisprudence, at least insofar as to the manner by which such
disqualification or inhibition shall be made. This Court has consistently pronounced
that the first paragraphs of Section 1, Rule 137 of the Rules of Court and Section 1,
Rule 8 of the Internal Rules of the Supreme Court, by virtue of their objective
verifiability, warrant prompt compulsory disqualification, regardless of the will of
the judge.19 However, when the prayer for inhibition is triggered by grounds that
are not objectively verifiable, such as bias or prejudice, the Court generally leaves
the inhibition discretionary, and submits it to the sole discernment of the judge
sought to be inhibited.20

Furthermore, I find from my review of Philippine jurisprudence that cases involving

the recusal of judges and justices below the level of this Court have generally been
approached following this methodology: First, the Court decides whether the facts
trigger the application of mandatory disqualification or discretionary inhibition;
Second, if the grounds raised on the motion call for mandatory disqualification, the
Court involves itself and ensures disqualification of the challenged judge; If,
however, it finds that the grounds raised are discretionary, the Court leaves the
decision of inhibition to the best judgment and careful self-examination of the judge
concerned, save for instances where grave abuse of discretion is shown.

Unfortunately, the Court has not laid down a clear litmus test by which a case
of voluntary recusal by lower court judges and justices should be decided. As it
stands, it seems to me that the body of law on discretionary recusal turns on eight
(8) identifiable, but not internally consistent, principles: (1) partiality of a judge or
justice is not presumed;21 (2) bare allegations of partiality are not sufficient;22 (3)
clear and convincing extrinsic evidence is required to prove partiality;23 (4)
voluntary inhibition applies only to conduct or statements made from extrajudicial
sources, i.e., not in the court proceedings in question;24 (5) the judge must do a
careful self-examination before deciding;25 (6) the judge or justice has a duty to
decide and to sit;26 (7) judges and justices must act "like Caesar's wife - above
suspicion";27 and (8) the judge's or justice's decision must affirm the public's faith
in the judiciary, for "any act which would give the appearance of impropriety
becomes, of itself, reprehensible."28

Demonstrably, court decisions on recusal use one or more of these principles to

anive at conclusions that are widely varied and which decidedly turn on the peculiar
facts of each case. My review of jurisprudence produced two cases, Pimentel v.
Salanga29 and People v. Ong,30 which to me illustrate the stark unpredictability of
applications of these eight principles in theorem vis-a-vis praxis.

In Pimentel, the judge was being inhibited by the litigant by virtue of an earlier
extraneous administrative case filed by the litigant against the same sitting judge.
There, the Court held that "[i]t ill behooves this Court to tar and feather a judge as
biased or prejudiced, simply because counsel for a party litigant happens to
complain against him." It thereafter laid the following guideposts for voluntary
inhibition:
But when suggestion is made of record that he might be induced to act in favor of
one party or with bias or prejudice against a litigant arising out of circumstance
reasonabl y capable of inciting such a state of mind, he should conduct a careful
self-examination. He should exercise his discretion in a way that the people's faith
in the courts of justice is not impaired. A salutary norm is that he reflects on the
probability that a losing party might nurture at the back of his mind the thought
that the judge had unmeritoriously tilted the scales of justice against him.31
In the end, the Court in Pimentel upheld the judge's refusal to inhibit, thus:
As applied here, respondent judge has not as yet crossed the line that divides
partiality and impartiality. He has not thus far stepped to one side of the fulcrum.
No act or conduct of his would show arbitrariness or prejudice. Therefore, we are
not to assume what respondent judge, not otherwise legally disqualified, will do in a
case before him.
The case of Ong, on the other hand, involved the move for the disqualification of
Justice Gregory S. Ong, then an associate justice and chairperson of the Fourth
Division of the Sandiganbayan, from presiding over the trial and sitting in judgment
in ten consolidated cases against former First Lady Imelda R. Marcos. It was
alleged, as grounds for his inhibition, that he made, on separate occasions, remarks
that were allegedly prejudicial and revealing of his predisposition to dismiss the
cases.32 Justice Ong denied the motion to inhibit him. Upon appeal to the Court, we
held that his remark as imputed should have been sufficient ground for Justice Ong
to voluntarily inhibit himself, for "judges must be like Caesar's wife - above
suspicion." This, despite the pronouncement by the Court in the same decision that
two important requirements were not met: first, petitioner was unable to adduce
clear and convincing evidence as required, and second, the potentially prejudicial
remark, apart from being contested, triggered only voluntary inhibition which,
pursuant to other cases that preceded and succeeded it, should have been left to
the conclusive assessment of the judge concerned.

Although both cases involved discretionary inhibition, in Pimentel, the Court

considered the judge's decision notto recuse to be conclusive upon itself. In Ong,
however, the Court effectively reviewed the decision of the challenged justice not to
inhibit from the case, and ultimately reversed it and directed his recusal.

To compare, in American jurisprudence, the issue of recusal is governed by Section

455 of the Ethical Standard Act of 1988, which prescribes that a judge must
disqualify himself whenever his impartiality "might reasonably be questioned." In
applying Section 455, the U.S. Supreme Court has consistently employed the
uniform "test of reasonableness" in examining a judge's actual bias or prejudice or
an appearance thereof, pursuant to the statutory shift33 from a harder evaluative
trigger Gudge's opinion) to Section 455's softer question of reasonability
(appearance of partiality).34

Considering how similar Section 5, Canon 3 of our New Code of Judicial Conduct is
to Section 455 of the U.S. Federal Ethical Standard Act of 1988, I find it useful to
examine how the United States Supreme Court and lower federal courts have
interpreted Section 455.

In 1994, the American Supreme Court in Liteky et al. v. United States35 ruled that
Section 455 disqualifications applied exclusively to extrajudicial sources, thus
settling divergent interpretations made by federal circuit courts of appeals. In the
process, the U.S. Supreme Court explained the origins, meaning and boundaries of
the words "bias and prejudice" and "impartiality" as used under Section 455.

Speaking through Associate Justice Antonin Scalia, the Court explained that not all
unfavourable disposition towards an individual is properly described in the
pejorative terms "bias" or "prejudice" as to merit recusal.36Laying down three tests,
Justice Scalia wrote that for a conduct or utterance to be of the nature as to give
rise to the propriety of inhibition, apart from being extrajudicial, they must be: (1)
undeserved, or one that (2) rests upon the knowledge that the subject ought not to
possess,37 or one that is (3) excessive in degree.38 The U.S. Supreme Court opined
that unless an extrajudicial conduct or utterance is any or all of these three
characterizations, it is not a bias or prejudice that may be reasonably perceived to
warrant the judge's inhibition. Elucidating on the term "extrajudicial source" and
the pejorative characterization of the term "personal bias or prejudice," the Court
held:
In our view, the proper (though unexpressed) rationale for Grinnell, and the basis
of the modern "extrajudicial source" doctrine, is not the statutory term "personal"
for several reasons. First and foremost, that explanation is simply not the semantic
success it pretends tc be. Bias and prejudice seem to us not divided into the
"personal" kind, which is offensive, and the official kind, which is perfectly all right.
As generally used, these are pejorative terms, describing dispositions that are
never appropriate. It is common to speak of "personal bias" or "personal prejudice"
without meaning the adjective to do anything except emphasize the idiosyncratic
nature of bias and prejudice, and certainly without implying that there is some
other "non-personal," benign category of those mental states. In a similar vein, one
speaks of an individual's "personal preference," without implying that he could also
have a "non-personal preference." Secondly, interpreting the term "personal" to
create a complete dichotomy between courtacquired and extrinsically acquired bias
produces results so intolerable as to be absurd. Imagine, for example, a lengthy
trial in which the presiding judge for the first time learns of an obscure religious
sect and acquires a passionate hatred for all its adherents. This would be "official"
rather than "personal" bias and would provide no basis for the judge's recusing
himself.

It seems to us that the origin of the "extrajudicial source" doctrine, and the key to
understanding its flexible scope (or the so-called "exceptions" to it), is simply the
pejorative connotation of the words "bias or prejudice." Not all unfavorable
disposition towards an individual (or his case) is properly described by those terms.
One would not say, for example, that world opinion is biased or prejudiced against
Adolf Hitler. The words connote a favorable or unfavorable disposition or opinion
that is somehow wrongful or inappropriate, either because it is undeserved, or
because it rests upon knowledge that the subject ought not to possess (for
example, a criminal juror who has been biased or prejudiced by receipt of
inadmissible evidence concerning the defendant's prior criminal activities), or
because it is excessive in degree (for example, a criminal juror who is so inflamed
by properly admitted evidence of a defendant's prior criminal activities that he will
vote guilty regardless of the facts). The "extrajudicial source" doctrine is one
application of this pejorativeness requirement to the terms "bias" and "prejudice"
as hey are used in §§ 144 and 455(b)(l) with specific reference to the work of
judges.

The judge who presides at a trial may, upon completion of the evidence, be
exceedingly ill disposed towards the defendant, who has been shown to be a
thoroughly reprehensible person. But the judge is not thereby recusable for bias or
prejudice, since his knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are indeed sometimes
(as in a bench trial) necessary to completion of the judge's task. As Judge Jerome
Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean
child-like innocence. If the judge did not form judgments of the actors in those
court-house dramas called trials, he could never render decisions." In re J. P.
Linahan, Inc., 138 F.2d 650, 654 (CA2 1943). Also not subject to deprecatory
characterization as "bias" or "prejudice" are opinions held by judges as a result of
what they learned in earlier proceedings. It has long been regarded as normal and
proper for a judge to sit in the same case upon its remand, and to sit in successive
trials involving the same defendant.39
Stated differently, Liteky drew the narrowly sharp distinction in extrajudicial
sources, discriminating against those extrajudicial sources that do not necessarily
trigger a question of recusal, and those extrajudicial sources that are wholly
pejorative or "wrongful or inappropriate" as to become a valid impetus for
disqualification.

In 2000, in Microsoft v. United States,40 Chief Justice William H. Rehnquist would

interpret the words "in which his (judge's) impartially might reasonably be
questioned," as used by Section 455, to refer to the "perspective of a reasonable
observer who is informed of all the surrounding facts and circumstances."41

Justice Scalia, in his Memorandum explaining his non-recusal in the 2004 case
of Cheney v. United States, District Court for the District of Columbia,42 would add
that "the decision whether a judge's impartiality can reasonably be questioned is to
be made in light of the facts as they existed, and not as they were sunnised or
reported."

The Ninth Circuit Court of Appeals, in United States v. Holland,43 explained the
concept of the reasonable third-party observer in the following wise:
First, under section 455(a), the judge must apply the "objective" standard
articulated in Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194. That standard requires
recusal if a reasonable third-party observer would perceive that there is a
significant risk.. that the judge will be influenced by the threat and resolve the case
on a basis other than the merits. The reasonable third-party observer is not a
"partly informed man-in-the-street," but rather someone who "understand[s] all the
relevant facts" and has examined the record and law. LoCascio v. United States.
473 F.3d 493, 496 (2d Cir.2007); see also Clemens, 428 F.3d at 1178 ("The
reasonable person in this context means a wellinformed, thoughtful observer, as
opposed to a hypersensitive or unduly suspicious person." (internal quotation marks
and citation omitted)); but see In re Nettles, 394 F.3d 1001, 1002 (7th Cir.2005)
("We must bear in mind that these outside observers are less inclined to credit
judges' impartiality and mental discipline than the judiciary itself will be." (internal
quotation marks and citation omitted)). The "objective" standard is a check to avoid
even the "appearance of partiality," Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194, and
ensure that the judge's decision is reasonable to an informed observer.44
B

Beyond the specific prescriptions of statutes or court rules regulating the

disqualification or recusal of judges for cause, which I have covered above, there
lies the overarching due process guarantee of the Constitution. This guarantee has
given rise to, among others, the stricture that due process of law requires a hearing
before an impartial and disinterested tribunal, and that every litigant is entitled to
nothing less than the cold neutrality of an impartial judge.45

As the Court has recognized in Mateo Jr. v. Villaluz,46 there may be, in addition to
the causes for disqualification identified by Section 1, Rule 137 of the Rules of
Court, other causes that could conceivably erode the trait of objectivity, as to call
for inhibition as a matter of constitutional law.47 These causes, however, would be
rare, and the specific issue in each case would be whether the acts of the judge
complained of would negate the degree of objectivity required by the
Cohstitution.48 Thus, the rule would be that where a claim for the disqualification of
a judge can be resolved under the narrower grounds provided for in the Rules of
Court, the Court will not lightly tread on constitutional grounds. Plainly, not all
grounds for disqualification or recusal implicate the great due process clause of the
Constitution.

In Mateo, Jr., the Court held that a trial judge before whom a witness executed an
extrajudicial statement, which the witness later recanted for having been made
under duress, cannot be expected to rule fairly on the question on whether the
witness executed his statement freely, for indeed to admit that there was
government intimidation would be hardly flattering to the judge.

I read the same judicial attitude of severely limiting the applicability of the due
process clause to the matter of judicial disqualification to obtain in the United
States. The leading case is Caperton v. A. T. Massey Coal Co.49where the U.S.
Supreme Court reiterated that a fair trial in a fair tribunal is a basic requirement of
due process. It recognized, however, that most matters relating to judicial
disqualification do not rise to a constitutional level. Consequently, the U.S. Supreme
Court has limited the application of the due process clause, with respect to judicial
disqualification, to only two instances.

The first involves judges with a financial interest in the outcome of the case,
although the interest was less than what would have been considered personal or
direct at common law. In Tumey v. Ohio,50 involving the case of a village mayor
with authority to sit as judge to try those accused of violating a liquor ban and
receive a salary supplement each time he convicts and levies a fine on an offender
(and none in cases of acquittal), the U.S. Supreme Court held this procedure to
violate the due process clause.

The second instance involved cases where a judge was challenged because of a
conflict arising from his participation in an earlier proceeding. In In re
Murchison,51 a judge examined witnesses to determine whether criminal charges
would be brought against them. Both witnesses appeared before the judge. The
first witness answered questions, which the judge found untruthful and
consequently charged him with perjury. The second witness, who declined to
answer, was charged by the judge with contempt. The same judge thereafter
proceeded to try and convict both witnesses. The Court set aside their convictions
on grounds of conflict of interest, stating that "no man can be a judge in his own
case," and "no man is permitted to try cases where he has an interest in the
outcome."52

There stood jurisprudence until 2009 when the U.S. Supreme Court crafted
a third instance, though one (it was quick to caution) available only under
"extraordinarily extreme facts." In Caperton,53 a West Virginia jury found
respondent coal company guilty of fraud and awarded petitioner $50Million in
damages. West Virginia then held judicial elections. Knowing that the State
Supreme Court of Appeals would be considering the appeal, respondent's chairman
supported Benjamin, against the incumbent justice seeking reelection, with
$3Million in contributions, an amount exceeding the total spent by all other
supporters. Benjamin would go on to win the election by fewer than 50,000 votes.
When petitioner moved to disqualify now Justice Benjamin under the due process
clause and the State's Code of Judicial Conduct, the latter refused to recuse himself
and still participated in making judgment on the appeal. The U.S. Supreme Court
ultimately vacated the judgment of the State Supreme Court of Appeals and held
that Justice Benjamin's participation in the case violated the due process clause of
the Constitution: "Just as no man is allowed to be a judge in his own cause, similar
fears of bias can arise when-without the consent of the other parties-a man
chooses the judge in his own case." It went on to hold that respondent chairman's
significant and disproportionate influence offers a possible temptation to the
average judge to lead him not to hold the balance nice, clear and true, and that
"[o]n these extreme facts, the probability of actual bias rises to an unconstitutional
level."54

IV

While the Internal Rules of the Supreme Court enumerate grounds for inhibition, it
does not specify how the Court should treat a Member's inhibition beyond stating
that the inhibiting member must state, typically in abbreviated language, the
precise reason for the inhibition. The practice of the Court in this respect, on the
other hand, is mixed as it is instructive. This part shall deal with the practice of the
Court with respect to the recusal of its own members.
In Estrada v. Desierto,55 then Associate Justice Artemio Panganiban offered to
inhibit himself (despite absence of proof of any of the grounds for inhibition) so as
not to give any person excuse to cast doubt on the integrity of the proceeding. The
Court accepted the inhibition. Justice Panganiban then wrote an extended opinion
on the subject, discussing at length the distinction between mandatory and
voluntary inhibition.

In contrast, in Veterans Federation Party v. Comelec,56 the Court denied (then

already Chief) Justice Panganiban's offer to inhibit on grounds that he had been
general counsel of one of the respondents. The Court considered, among others,
the fact that the case involved important constitutional questions which should, as
much as possible, be decided by a complete Court.57

In Commission of Internal Revenue v. Court of Appeals,58 Justice Santiago M.

Kapunan denied by way of a resolution a motion for his inhibition. The Court En
Banc upheld Justice Kapunan's decision, declaring thus:
On the motion to disqualify Justice Kapunan from participating in this case, the
Court took note o( the old doctrine that when a Justice of the Court of Appeals or
the Supreme Court is challenged "the magistrate sits with the court and the
question is decided by it as a body." It will be observed. however, that the basis of
the challenge there was that the Justice had previously acted as the fiscal in an
earlier proceeding in the case, a ground for compulsory inhibition, and that the
matter was dealt with under Article 8 of the Code of Civil Procedure the provisions
of which differ from those under the first paragraph of Rule 137 of the Rules of
Court.

xxxx

In the present case. the so-called grounds relied upon for the disqualification of
Justice Kapunan, i.e., his having served under Atty. Estelito Mendoza when the
latter was the Solicitor General, and their having had business relations in
connection with the operation of a small restaurant, even if true, could not
constitute compulsory grounds for Justice Kapunan's recusation. It is for him alone,
therefore, to determine his qualification.59
I have compared the above Philippine experience with the practice in the U.S.
Supreme Court, which does not have formal rules governing recusal by its
Members. In the US, individual Members of the Court have expressed their views
on recusal as contained in extended Memoranda explaining their non-recusal in
specific cases. Chief Justice John G. Roberts, Jr. has also expressed this view on
recusal at the level of the Supreme Court.

Prior to the 1974 amendment to Section 455, Laird v. Tatum60 was the guiding
decision on the question of recusal. The case involved a group of anti-war activists
who brought a challenge to the constitutionality of the U.S. Army's domestic
surveillance program, then perceived as the Nixon administration's attempt at
monitoring the activities of American dissidents. Then Associate Justice Rehnquist
was being disqualified due to his leadership position as an Assistant Attorney
General in the Justice Department's office of Legal Counsel to the White House at
the time the surveillance program was instituted.61 Breaking the U.S. Supreme
Court's perceived ritual of silence to explain his non-recusal,62 Justice Rehnquist
denied the motion to recuse based in part on a reading of the governing
disqualification statute,63 as well as on his consistent observations that "a federal
judge has a duty to sit where not disqualified which is equally as strong as the duty
to not sit where disqualified."64 He explained:
I think that the policy in favor of the "equal duty" concept is even stronger in the
case of a Justice of the Supreme Court of the United States. There is no way of
substituting Justices on this Court as on judge may be substituted for another in
the district courts. There is no higher court of appeal which may review an equally
divided decision of this Court and thereby establish the law for our jurisdiction.

xxxx

While it can seldom be predicted with confidence at the time that a Justice
addresses himself to the issue of disqualification whether or not the Court in a
particular case will be closely divided, the disqualification of one Justice of this
Court raises the possibility of an affirmance of the judgment below by an equally
divided Court. The consequence attending such a result is, of course, that the
principle of law presented by the case is left unsettled. The undesirability of such a
disposition is obviously not a reason for refusing to disqualify oneself where in fact
one deems himself disqualified, but I believe it is a reason for not "bending over
backwards" in order to deem one's self disqualified.65
In 2000, (at the time, already Chief) Justice Rehnquist was again asked to inhibit
from participating, this time in the case of Microsoft v. United States66 on the
ground that Microsoft had retained the services of the law finn for which Chief
Justice Rehnquist's son was a partner. In a Memorandum explaining his non-
recusal, Chief Justice Renhquist said:
Finally, it is important to note the negative impact that the unnecessary
disqualification of even one Justice may have upon our Court. Here-unlike the
situation in a District Court or a Court of Appeals-there is no way to replace a
recused Justice. Not only is the Court deprived of the participation of one of its nine
members, but the even number of those remaining creates a risk of affirmance of a
lower court decision by an equally divided court.
In 2004, Justice Scalia refused to inhibit from the case of Cheney v. United States
District Court for District of Columbia.67 One of the parties to the case sought to
inhibit Justice Scalia because he previously rode on the same government aircraft
and joined a duck hunting trip ith Vice President Richard Cheney, a respondent to
the case. In his Memorandum explaining his non-recusal, Justice Scalia said:
Let me respond, at the outset, to Sierra Club's suggestion that I should "resolve
any doubts in favor of recusal." Motion to Recuse 8. That might be sound advice if I
were sitting on a Court of Appeals. But see In re Aguinda, 241 F. 3d 194, 201 (CA2
2000). There, my place would be taken by another judge, and the case would
proceed normally. On the Supreme Court, however, the consequence is different:
The court proceeds with eight justices, raising the possibility that, by reason of a tie
vote, it will find itself unable to resolve the significant legal issue presented by the
case. x x x Moreover, granting the motion is (insofar as the outcome of the
particular case is concerned) effectively the same as casting a vote against the
petitioner. The petitioner needs five votes to overturn the judgment below, and it
makes no difference whether the needed fifth vote is missing because it has been
cast for the other side, or because it has not been cast at all.68
In more recent high-profile cases, issues of non-recusal were settled with the
challenged Justices refusing to recuse without an extended explanation for such
choice. This silent non-recusal is perhaps best illustrated by the denial of the
motions to disqualify Justices Clarence Thomas and Elena Kagan from participating
in the cases posing legal challenges to the constitutionality of the Patient Protection
and Affordable Care Act (PPACA) of 201069 of then President Barrack Obama.
Justice Thomas's impartiality was questioned by vittue of the fact that his wife,
Virginia Thomas, was actively engaged with a conservative policy group that
challenged the constitutionality of the Obama health care law.70 and herself a highly
visible voice in a nationwide campaign against the Obama administration and its
health-care reform law.71 Justice Kagan, for her part, was sought to be disqualified
from participating in the case on the ground that she was Solicitor General when
the Obama administration was building the defense for the health care law's
legality.72 In the end, both Justices Thomas and Kagan refused to recuse from the
case, and neither issued a written official explanation for the same.

It is generally held that the Thomas and Kagan non-recusals led Chief Justice
Roberts to discuss the American Supreme Court practice on recusals in his 2011
Year-End Report:
Congress has directed that federal judicial officers must disqualify themselves from
hearing cases in specified circumstances. As in the case of financial reporting and
gift requirements, the limits of Congress's power to require recusal have never
been tested. The Justices follow the same general principles respecting recusal as
other federal judges, but the application of those principles can differ due to the
unique circumstances of the Supreme Court. The governing statute, which i s set
out in Title 28, Section 455, of the United States Code, states, as a general
principle, that a judge shall recuse in any case in which the judge's impartiality
might reasonably be questioned. That objective standard focuses the recusal
inquiry on the perspective of a reasonable person who is knowledgeable about the
legal process and fan1iliar with the relevant facts. Section 455 also identifies a
number of more specific circumstances when a judge must recuse. All of the federal
courts follow essentially the same process in resolving recusal questions. In the
lower courts, individual judges decide for themselves whether recusal is warranted,
sometimes in response to a formal written motion from a party, and sometimes at
the judge's own initiative. In applying the Section 455 standard, the judge may
consult precedent, consider treatises and scholarly publications, and seek advice
from other sources, including judicial colleagues and the Judicial Conference's
Committee on Codes of Conduct. A trial judge's decision not to recuse is reviewable
by a court of appeals, and a court of appeals judge's decision not to recuse is
reviewabl e by the Supreme Court. A court normally does not sit in judgment of one
of its own members' recusal decision in the course of deciding a case. The process
within the Supreme Court is similar. Like lower court judges, the individual Justices
decide for themselves whether recusal is warranted under Section 455. They may
consider recusal in response to a request from a party in a pending case, or on their
own initiative. They may also examine precedent and scholarly publications, seek
advice from the Court's Legal Office, consult colleagues, and even seek counsel
from the Committee on Codes of Conduct. There is only one major difference in the
recusal process: There is no higher court to review a Justice's decision not to recuse
in a particular case. This is a consequence of the Constitution's command that there
be only one supreme Court. The Justices serve on the Nation's court of last resort.
As in the case of the lower courts, the Supreme Court does not sit in judgment of
one of its own Members decision whether to recuse in the course of deciding a case.
Indeed, if the Supreme Court reviewed those decisions, it would create an
undesirable situation in which the Court could affect the outcome of a case by
selecting who among its Members may participate. Although a Justice's process for
considering recusal is similar to that of the lower court judges, the Justice must
consider an important factor that is not present in the lower courts. Lower court
judges can freely substitute for one another. If an appeals court or district court
judge withdraws from a case, there is another federal judge who can serve in that
recused judge's place. But the Supreme Court consists of nine Members who always
sit together, and if a Justice withdraws from a case, the Court must sit without its
full membership. A Justice accordingl y cannot withdraw from a case as a matter of
convenience or simply to avoid controversy. Rather, each Justice has an obligation
to the Court to be sure of the need to recuse before deciding to withdraw from a
case.73
This acknowledgment of a heightened, if not heavier, sense of responsibility when it
comes to recusals within its ranks echoes the sentiment earlier articulated by the
Court in its 1993 Statement of Recusal Policy regarding cases when a covered
relative-lawyer "has participated in the case at an earlier stage of the litigation," or
when [he] is "a partner in a finn appearing before [the Court.]" There, the U.S.
Supreme Court, in carefully delineating the specific instances wherein recusal by its
members on the above grounds wou ld be warranted, explained:
Even one unnecessary recusal impairs the functioning of the Court. x x x In this
Court, where the absence of one Justice cannot be made up by another, needless
recusal deprives litigants of the nine Justices to which they are entitled, produces
the possibility of an even division on the merits of the case, and has a distorting
effect upon the certiorari process. requiring the petitioner to obtain (under our
current practice) four votes out of eight instead of four votes out of nine. x x x
Conclusion

In wrestling with the present issue of recusal, I have taken to heart the process
suggested by Chief Justice Roberts and exerted my utmost to identify and explain
the legal reasoning behind my decision on this very divisive issue.74 Marrying the
best insights from our laws and experience and those from our American
counterparts, I have resolved to participate in this case.

First, I resolved to sit in this case by tilting the balance in favor of giving full weight
to the value of a judge's duty to sit and decide a case. I am convinced that the
grave importance of this case, its far-reaching doctrinal value and its permanent
implications to the Court as an institution and an equal branch of Government call
for no less than a decision made by a full court. Consistent with Veterans
Federation Party, a decision handed down by any less than that would, in my view,
only fall short of affirming the public's faith in our country's administration of
justice.75

Second, and after careful reflection, I have come to the view that questions of
inhibition should, as a principle, be solely addressed to, and answered by, the good
judgment and conscience of the individual Justice/s concerned. To permit otherwise
would only contribute to the arguably attractive temptation of "strategizing
recusals."76 As in this case, respondent should not be allowed to affect (or worse,
impair) the ability of the Court to decide significant legal issues with its full
membership through the simple expedient of fashioning a colorable ground for
inhibition on the part of one (or some) of its members.

Third, on analysis, my acts complained of, under all the circumstances, do not
negate the degree of objectivity required of me by the due process clause of the
Constitution as to disqualify me. Far from it, I am convinced that respondent's
factual bases, when measured against the three tests in Liteky, all fail to prove my
alleged bias and prejudice against her. My conduct and utterances of which she
complains were not undeserved, as they were not done or said by me to merely vex
her reputation. They were all founded on fact. They were also only done and said in
self-defense, as measures to restore whatever I could salvage or restore of my
name, in the face of respondent 's unprovoked assaults on my integrity. This is the
reason why I have endeavored to include in this Resolution a full narration of the
facts that led to her attacks on me, and my acts and words done subsequent to the
issuance by the Arbitral Tribunal in The Hague of its ruling, which release allowed
me to air my full side.

Specifically, my act of calling her "treasonous" was merely in reference to the

lexical equivalent of the label she rerself used to pertain to me and my actions. In
fact, I find that the use of said term was not undeserved as it was merely
semantically descriptive, and was merited, even necessary, in the instance that I
employed it. As I earlier recounted, respondent recklessly placed into the public
domain sensitive issues of legal strategy77 and characterized Itu Aba in her public
filings as an island,78 contrary to national interest, in general, and the Republic's
official submission before the UNCLOS arbitral tribunal, in particular. My use of the
word "inhumane" to depict her manner and means of objecting to my nomination
was also not undeserved, as it was, in fact, how I personally perceived such an
affront. Such perception is personal, the effect of which is not measured by the
doer of the act, but by its receiver. Furthermore, the suggestion that my
characterizations of respondent persists to this day cannot be conceived as
undeserved, for it is wholly an opinion, based on facts, one which she and maybe
those sympathetic to her are completely free to disagree with.

My conduct and utterances were also not based on evidence or information illegally
received, as all the facts upon which I anchored my actions were culled from my
personal experience and knowledge. All the bases for my actions, whether it be the
"treasonous" description attributed to her, or the "inhumane" depiction of her
actions, or the negative characterization of herself, are borne of my personal
knowledge, and not obtained through other means. Finally, I do not believe my
conduct or utterances were excessive, as they were not made with blind fury, but
only with righteous indignation and merely as a means to the vindication of a right.

Finally, and maybe most importantly, my actions and words complained of are
wholly extraneous and immaterial to the facts and issues raised in this Quo
Warranto petition which specifically relates to respondent's alleged deficient
submissions of her Statement of Assets, Liabilities and Net Worth (SALN). That I
cannot be impartial and decide this case on the merits based on the facts and
evidence on record cannot be presumed simply on account of my unpleasant
"history" with respondent.

This Resolution is intended to serve as a record upon which all wellinformed and
reasonable observers who care to know the facts can make their own judgment on
whether my acts and words rise to the level of a disqualifying bias or prejudice. To
borrow from Chief Justice Rehnquist, I imagine that other reasonable observers
may arrive at a legal conclusion contrary to mine, and that there may be sound
arguments79 that plausibly lean towards my recusal. Perhaps if I were preoccupied
with avoiding controversy and would like to act in favor of simple convenience,80 I
may as well recuse. My conscience, aided by my self-examination and analysis of
the pertinent laws and the facts of the present case, nevertheless impels me
otherwise.

Every judgment of conscience has been said to be obligatory, in that "he who acts
against his conscience always sins."81 Judgment on the soundness of my decision
will ultimately be for the public to decide. I am nevertheless comforted by the fact
that I have resolved this matter with as much transparency and judiciousness as
my conscience dictates and now leave people to decide in accordance with their
own conscience, as "every man should leave me to mine."82

In my Commencement Address to the U.P. College of Law in 2014, I described the

two months that started with respondent's attack on my integrity, the JBC's
rejection of my nomination, my decision to take on a sitting Chief Justice
in Jardeleza v Sereno, the Court's last-minute decision to allow my nomination, and
finally my appointment by President Aquino, as the most painful and difficult time
of my life, as well as of my wife and children. My family and I had to live those two
terrible months with the label "traitor" tarred and feathered on my being. In my
address, I described our painful experience as one "I would not wish on anybody,
not even to those who made these vile accusations against me."

Today, four years later, respondent and her family have had to face up to more
months of attacks on her integrity. Perhaps, because my family and I have endured
such a harrowing experience, I fervently hope that reasonably informed persons
would believe that I would be among the last to taint another human being's name
out of sheer spite.

WHEREFORE, the foregoing premises considered, the Ad Cautelam Respectful

Motion for Inhibition of Hon. Associate Justice Francis H. Jardeleza filed by
Respondent Maria Lourdes P.A. Sereno is hereby DENIED.
SO ORDERED.

Endnotes:

1
A PROPER SENSE OF PRIORITIES, February 6, 1968, Washington, D.C. Taken
from http://www.aavw.org/special_features/speeches_speech_king04.html, last
accessed May 8, 2018.

2
See Establishing a Legal Framework for the Development of a Mechanism for the
Judicial Responsibility of an Incumbent Supreme Court Justice: Judicial
Independence and Judicial Accountability in Light of Recent Jurisprudence and Legal
Developments by Maria Luisa Isabel L. Rosales, Ateneo Law Journal, Vol. 56.
pp.558-640.

3
Ad Cautelam Respectful Motion for Inhibition (Motion), pp. 2-5; emphasis and
underscoring retained.

4
Motion, p. 6.

5
Motion. pp. 6-8; emphasis and underscoring retained.

6
Motion, p. 9; emphasis and underscoring retained.

7
G.R. No. 213181, August 19, 2014, J. Leonen's dissent, citing Judicial and Bar
Council Supplementary Reply, pp. 1-7, pp. 170-176 of the Records.

8
Id.

9
Id., more fully, the pertinent portion of the dissent read "She was asked whether
the integrity objection would hold considering that there was no proof that the
Petitioner obtained money for his actuation in the West Philippine Sea case. She
explained her point of view that one's capacity and willingness to uphold the
Constitution determines in tegrity. An objection to integrity does not necessarily
require proof of unlawful receipt of money in exchange for a decision or an action.
She stressed that one does not have integrity when one is not willing to protect the
interest of one's client to the utmost, especially in this case when the client
happens to be the Republic. She said that through his actuations, Petitioner has
demonstrated weakness of character. She inferred that he may have been listening
to extraneous factors or may have been promised something. She also said she had
seen many instances where national interests had been compromised because of
personal agendas. She cited her experiences as the Director of the Institute of
International Legal Studies in the University of the Philippines, when she observed
the actuations of certain government officials. She saw how the country's ability to
protect Scarborough Shoal was compromised by a foreign affairs official in
exchange for a possible United Nations position. She also observed how public
officials were willing to see the country lose its defense in the two international
arbitration cases brought against it by the companies Fraport and Philippine
International Air Terminals Co., Inc., all for something other than duty to the
Republic."

10
Said final award was issued by the Permanent Court of Arbitration at The Hague
on July 12, 2016.

11
See Tarra Quismundo's "Jardeleza lashes out at 2 SC colleagues", Philippine Daily
Inquirer, July 1, 2015; "Sereno: It's not helpful to comment on Jardeleza
attack", Philippine Daily Inquirer, July 3, 2015.

12
See Memorandum Circular No. 78, Promulgating Rules Governing Security of
Classified Matter in Government Offices, August 14, 1964. See also Memorandum
Circular No. 196, amending MC No. 78, July 19, 1968; Letter of Inst ruction No.
1420. Prohibiting disclosure to unauthorized persons, the media or general public,
top secret, secret, confidential or restricted matters; Executive Order No. 608,
Establishing a National Security Clearance System for Government Personnel with
Access to Classified Matters and For Other Purposes, March 30, 2007; Republic Act
No. 6713, Code of Conduct and Ethical Standards for Public Officials and
Employees; Civil Service Commission Resolution No. 1101502, Revised Rules on
Administrative Cases in the Civil Service (RRACCS), November 18, 2011.

13
With the full transcript of the Keynote Address attached hereto as "Annex A."

14
In this Memorandum, lead counsel for the Republic, Paul Reichler, argued that
ignoring the issue of Itu Aba would damage the Philippines's credibility before the
Tribunal and undermine the entire case. Executive Secretary Paquito Ochoa Jr, then
Chief Presidential Legal Counsel (now Associate Justice of the Court) Alfredo
Benjamin Caguioa, and I, for our part, crafted our own memorandum where we
argued that the legal and political risks of "mentioning" Itu Aba were no different
from the risks of amending the submission to "include" Itu Aba.

15
As fate and the vagaries of litigation would have it, the Arbitral Tribunal itself
later on directed the Philippines to make submissions on the status of more than
twenty features in the Spratly Islands, including Itu Aba, and made the
determination of their status part of the proceeding.

16
The Bangalore Draft was deliberated upon and approved at the Round Table
Meeting of Chief Justices by the Judicial Group on Strengthening Judicial Integrity at
the Peace Palace, The Hague, on November 25-26, 2002. For further analysis of the
history of the Bangalore draft as the precursor of the Philippine New Code of
Judicial Conduct, see Commentary on the Bangalore Principles of Judicial Conduct,
by the United Nations Office on Drugs and Crime, September 2007.

17
Rule 137, in turn, had its origins in Section 8 of Act 190, or the 1901 Code of
Civil Procedure. In People v. Lopez (G.R. No. L-1243, April 14, 1947), the Court
interpreted the determination of the question of a Justice's disqualification and
competency under Section 8 of said Act to lie on the Justice's power alone, with the
intervention of the Court as merely advisory in nature. Later on, the Supreme Court
promulgated the Rules of Court where Rule 126, covering the rule on
disqualification of judges, which appears to have merely reproduced Section 8 and
Section 608 of the Code of Civil Procedure (Vargas v. Rilloraza, G.R. No. L-1612,
February 26, 1948; People v. Lopez, G.R. No. L-1243, April 14, 1947).

18
Published on May 7, 2010 in the Manila Bulletin; as amended in the Resolutions
dated July 6, 2010, August 3, 2010, January 17, 2012, July 31, 2012, September
18, 2012, March 12, 2013, June 18, 2013 and September 10, 2013.

Santos v. Lacurom, A.M. No. RTJ-04-1823 (Resolution), August 28, 2006, 531
19

PHIL 239-253; Ong v. Spouses Basco, G.R. No. 167899, August 6, 2008, 583 PHIL
248-256); Chin v. Court of Appeals, G.R. No. 144618, August 15, 2003, 409 SCRA
206, 212.

20
There have been a few cases wherein the Court has seen fit to intervene
effectively reverse the Justice's offer/decision on the question of recusal
(See People v. Ong, G.R. Nos. 162130-39, May 5, 2006, and Veterans Federation
Party v. COMELEC, G.R. Nos. 136781, 136786 and 136795, October 6, 2000).

21
See Pimentel v. Salanga, G.R. No. 27934, September 18, 1967, 21 SCRA
160; People v. Court of Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-
160; Saylo v. Rojo, A.M. No. MTJ-99-1225, April 12, 2000, 386 PHIL 446-
452; Soriano v. Angeles, G.R. No. 109920, August 31, 2000, 393 PHIL 769-
784; Gohu v. Spouses Gohu, G.R. No. 128230, October 13, 2000, 397 PHIL 126-
136; Gochan v. Gochan, G.R. No. 143089, February 27, 2003, 446 PHIL 433-
461; Talag v. Reyes, A.M. No. RTJ-04-1852, OCA-IPI No. 03-1759-RTJ, June 3,
2004, 474 PHIL 481-491; Planas v. Reyes, A.M. No. RTJ-05-1905, OCA-IPI No. 03-
1712-RTJ, February 23, 2005, 492 PHIL 288-302; Republic v. Evangelista, G.R. No.
156015, August 11, 2005, 504 PHIL 115-125.

22
See People v. Kho; Go v. Court of Appeals, G.R. No. 106087, April 7, 1993, 221
SCRA 397; Abad v. Belen, A.M. No. RTJ-92-813, January 30, 1995, 240 SCRA
733; People v. Tabarno, G.R. No. 101338, March 20, 1995, 242 SCRA 456; People
v. Court of Appeals and Pacificador, G.R. No. 129120, July 2, 1999, 309 SCRA
705; People v. Court of Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-
160; Gohu v. Spouses Gohu, G.R. No. 128230, October 13, 2000, 397 PHIL 126-
136; Pagoda Philippines, Inc. v. Universal Canning, Inc., G.R. No. 160966, October
11, 2005, 509 PHIL 339-347; Spouses Abrajano v. Heirs of Salas, Jr., G.R. No.
158895, February 16, 2006, 517 PHIL 663-676; Kilosbayan Foundation v. Janolo,
Jr., G.R. No. 180543, July 27, 2010, 640 PHIL 33-61; Aguinaldo v. Aquino III, G.R.
No. 224302, February 21, 2017.

Supra note 20; See also Aleria v. Velez, G.R. No. 127400, November 16,
23

1998; Gahol v. Riodique, G.R. No. L-40415, June 27, 1975, 65 SCRA 505; Dimo
Realty & Development Inc. v. Dimaculangan, G.R. No. 130991, March 11,
2004; Castillo v. Juan, G.R. Nos. 1-39516-17, January 28, 1975, 159 PHIL 143-
149; Cruz v. Iturralde, A.M. No. RTJ-03-1775, April 30, 2003. 450 PHIL 77-
88; Dimo Realty and Development Inc. v. Dimaculangan, G.R. No. 130991, March
11, 2004, 469 PHIL 373-385; Planas v. Reyes, A.M. No. RTJ-05-1905, OCA-IPI No.
03-1712-RTJ, February 23, 2005, 492 PHIL 288-302; Spouses Abrajano v. Heirs of
Salas, Jr., G.R. No. 158895, February 16, 2006, 517 PHIL 663-676; Villamar, Jr. v.
Manalastas, G.R. No. 171247, July 22, 2015; Castro v. Mangrobang, A.M. No. RTJ-
16-2455, Resolution, April 11, 2016.

24
Supra note 20 and 21; Webb v. People, G.R. No. 127262, July 24, 1997, 276
SCRA 243, 253-254, citing People v. Massarella, 400 N.E. 2d, 436; Aleria, Jr. v.
Velez, G.R. No. 127400, November 16, 1998, 359 PHIL 141-150; People v. Court of
Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-160; De Vera v. Dames II,
A.M. No. RTJ-99-1455, July 13, 1999, 369 PHIL 470-486; Seveses v. Court of
Appeals, G.R. No. 102675, October 13, 1999, 375 PHIL 64-74; Viewmaster
Construction Corp. v. Roxas, G.R. No. 133576, July 13, 2000, 390 PHIL 872-
884; Soriano v. Angeles, G.R. No. 109920, August 31, 2000, 393 PHIL 769-
784; Estrada v. Desierto, G.R. Nos. 146710-15, 146738, March 2, 2001, 406 PHIL
1-142; Gochan v. Gochan, G.R. No. 143089, February 27, 2003, 446 PHIL 433-
461; Cruz v. Iturralde, A.M. No. RTJ-03-1775, April 30, 2003, 450 PHIL 77-88; Chin
v. Court of Appeals, G.R. No. 144618, August 15, 2003, 456 PHIL 440-
453; Spouses Hizon v. Spouses Mangahas, G.R. No. 152328, March 23, 2004, 469
PHIL 1076-1076; Tan v. Estoconing, A.M. Nos. MTJ-04-1554 & MTJ-04-1562, June
29, 2005, 500 PHIL 392-407; Republic v. Evangelista, G.R. No. 156015, August 11,
2005, 504 PHIL 115-125; Republic v. Gingoyon, G.R. No. 166429, December 19,
2005, 514 PHIL 657-782; Spouses Duma v. Espinas, G.R. No. 141962, January 25,
2006, 515 PHIL 685-701; Deutsche Bank Manila v. Spouses Chua Yok See, G.R. No.
165606, February 6, 2006. 517 PHIL 212-235; People v. Ong, G.R. Nos. 162130-
39, May 5, 2006, 523 PHIL 347-359; Pasricha v. Don Luis Dison Realty, Inc., G.R.
No. 136409, March 14, 2008, 572 PHIL 52-71; Reyes v. Paderanga, A.M. No. RTJ-
06-1973, March 14, 2008, 572 PHIL 27-44; Heirs of Juaban v. Bancale, G.R. No.
156011, July 3, 2008, 579 PHIL 285-297; Law Firm of Tungol & Tibayan v. Court of
Appeals, G.R. No. 169298, July 9, 2008. 579 PHIL 717-730; Ong v. Spouses Basco,
G.R. No. 167899, August 6, 2008, 583 PHIL 248-256; Dipatuan v. Mangotara, A.M.
No. RTJ-09-2190, April 23, 2010, 633 PHIL 67-79; Kilosbayan Foundation v. Janolo,
Jr., G.R. No. 180543, July 27, 2010, 640 PHIL 33-61; City Government of Butuan v.
Consolidated Broadcasting System, Inc., G.R. No. 157315, December 1, 2010, 651
PHIL 37-56; Melendres v. Presidential Anti Graft Commission, G.R. No. 163859,
August 15, 2012, 692 PHIL 546-565; Sison-Barias v. Rubia, A.M. No. RTJ-14-2388,
June 10, 2014, 736 PHIL 81-123; Jimenez, Jr. v. People, G.R. Nos. 209195,
209215, September 17, 2014; Umali, Jr. v. Hernandez, IPI No. 15-35-SB-J,
February 23, 2016; Aranjuez v. Magno, A.C. No. 10526, July 19, 2017.

Gacayan v. Pamintuan, A.M. No. RTJ-99-1483, September 17, 1999, 314 SCRA
25

682; Mateo, Jr. v. Villaluz, G.R. Nos. L-34756-59, March 31, 1973, 151-A PHIL 21-
34; Bautista v. Rebueno, G.R. No. L-46117, February 22, 1978, 171 PHIL 472-
480; Paderanga v. Azura, G.R. No. L-69640-45, April 30, 1985, 220 PHIL 644-
647; Intestate Estate of the Late Borromeo v. Borromeo, G.R. No. L-41171, L-
55000. L-62895, L-63818, L-65995, July 23, 1987, 236 PHIL 184-212; Gutang v.
Court of Appeals, G.R. No. 124760, July 8, 1998, 354 PHIL 77-90; Garcia v.
Burgos, G.R. No. 124130, June 29, 1998, 353 PHIL 740-775; Republic v. Gingoyon,
G.R. No. 166429, December 19, 2005, 514 PHIL 657-782; Castro v. Mangrobang,
A.M. No. RTJ-16-2455, April 11, 2016.

26
See People v. Ong and Webb v. People; People v. Kho, G.R. No. 139381, April
20, 2001, 409 PHIL 326-337; Chin v. Court of Appeals, G.R. No. 144618, August
15, 2003, 456 PHIL 440-453; Pagoda Philippines, Inc. v. Universal Canning, Inc.,
G.R. No. 160966, October 11, 2005, 509 PHIL 339-347.

27
People v. Ong, supra note 19; Palang v. Zosa, G.R. No. L-38229, August 30,
1974, 157 PHIL 761-764; Villapando v. Quitain, G.R. No. L-41333, L-41738, L-
41739, L-41740, L-41741, January 20, 1977, 166 PHIL 26-33; Bautista v. Rebueno,
G.R. No. L-46117, February 22, 1978, 171 PHIL 472-480; Rosauro v. Villanueva,
Jr., A.M. No. RTJ-99-1433, June 26, 2000, 389 PHIL 699-707.

Supra note 20; Aguas v. Court of Appeals, G.R. No. 1 20107, January 20, 1998,
28

348 PHIL 417-427; People v. Ong, G.R. Nos. 162130-39, May 5, 2006, 523 PHIL
347-359; Calayag v. Sulpicio Lines, Inc., G.R. No. 221864, September 14, 2016.

29
Supra note 21.

30
Supra note 20.

31
Emphasis supplied.

32
Supra note 20.

33
After the 1974 amendment.

34
James Sample, Supreme Court Recusal from Marbury to the Modern Day, 26
Geo. J. Legal Ethics 95 (2013); citing Debra Lyn Bassett, Judicial Disqualification in
the Federal Courts, 87 Iowa L. Rev. 1213, 1225 (2002) at 603.

35
510 U.S. 540 (1994).

36
Id. at 550.

37
"For example, a criminal juror who has been biased or prejudiced by receipt of
inadmissible evidence concern ing the defendant's prior criminal activities."

38
"For example, a criminal juror who is so inflamed by properly admitted evidence
of defendant's prior criminal activities that he will vote guilty regardless of the
facts."

Supra note 34, pp. 549-551. See also Shawn P. Flaherty, Liteky v. United States:
39

The Entrenchment of an Extrajudicial Source Factor in the Recusal of federal Judges

under 28 U.S.C. 455 (a). 15 N. III. U. L. Rev. 411 (1995); Jeremy S.
Brumbelow, Liteky v. United States: The Extrajudicial Source Doctrine and Its
Implications for Judicial Disqualification, 48 Ark. L. Rev. 1059 (1995).

40
Nos. 00-139 and 00-261. Decided September 26, 2000; In this case, Justice
William Rehnquist's inhibition was being sought by virtue of the fact that Microsoft
retained the services of the law firm for which Justice Rehnquist's son was a
partner. In refusing to inhibit himself despite imputations of actual and apparent
bias, Rehnquist opined that for a reasonable observation to be one that determines
his recusal, such observation must be informed of all the facts and circumstances of
the imputed bias, otherwise, such misappreciation of the facts cannot hold sway.
Rehnquist additionally noted the negative impact of the unnecessary disqualification
of even one irreplaceable Justice may have on the Supreme Court.

41
Id.

42
No. 03-475. Decided March 18, 2004; Justice Scalia was being asked to inhibit by
virtue of one duck hunting trip during which he rode the same government aircraft
with then Vice Present Richard Cheney. Scalia rejected the suggestion of recusal by
pounding on the misperception of the public through the pervasive inaccuracies of
facts as told by the media, echoing Rehnquist in saying that a "blast of largely
inaccurate and uninformed opinion cannot determine the recusal question". He
cautioned against the danger of erroneously considering just any perception of bias,
even an unapprised one, as reasonble perception of bias that calls for recusal.

43
519 F.3d 909, 914 (2007).

44
Id. Emphasis supplied. See Joey Kavanagh, "Judicial Impartiality in Recent Civil
Rights Victories: An Analysis of the Disqualification of Judge Shira Scheindlin
in Floyd v. New York City," American University Journal of Gender Social Policy and
Law 23, No. 1 (2014); 197-229.

45
Gutierrez v. Santos, L-15824, May 30, 1961, 2 SCRA 249.

46
G.R. Nos. L-34756-59, March 31, 1973, 50 SCRA 18.

47
Id. at 24.

48
Id. at 28.

49
556 U.S. 886 (2009).

50
273 U.S. 510 (1927).

51
349 U.S. 133 (1955).

52
Id. at 136.

53
556 U.S. 886 (2009).
54
See sharp dissent from Chief Justice Roberts, joined by Justices Scalia, Thomas
and Alito, criticizing the "probability of bias" analysis used by the Court. "Until
today, we have recognized exactly two situations in which the Federal Due Process
Clause requires disqualification of a judge: when the judge has a financial interest
in the outcome of the case, land when the judge is trying a defendant for certain
criminal contempts. Vaguer notions of bias or the appearance of bias were never a
basis for disqualification, either at common law or under our constitutional
precedents. Those issues were instead addressed by legislation or court rules." See
also Lynne H. Rambo, High Court Pretense, Lower Court Candor: Judicial
Impartiality after Caperton v. Massey Coal Co., 13 Cardozo Pub. L. Pol'y & Ethics J.
441 (2015); Raymond J. McKoski, Judicial Disqualification after Caperton v. A.T.
Massey Coal Company: What's Due Process Got to Do With It, 63 Baylor L. Rev.
368 (2011).

55
G.R. No. L-146710-15; G.R. No. 146738, March 2, 2001.

56
Supra note 20.

57
Chief Justice Panganiban would go on to write the opinion for the Court in this
case.

58
G.R. No. 119322, February 6, 1997.

59
Id.

60
Memorandum of Mr. Justice Rehnquist, October 10, 1972, 409 U.S. 824-25.

61
Jeffrey W. Stempel, Rehnquist, Recusal and Reform, 53 Brook.L.Rev., 589, 602
(1987).

62
Robert Nagel, Partiality and Disclosure in the Supreme Court Opinions, 7 Nw.J.L.
& Soc. Pol'y.116 (2012).

63
Supra note 34; Before its amendment two years after Laird, the disqualification
statute required only that a justice disqual ify himself when "he has a substa ntial
interest, has been of counsel, is or has been a material witness, or is so related ...
as to render it improper, in his opinion, for him to sit..."

Supra note 60; citing Edwards v. United States, 334 F.2d 360, 362 (CA5
64

1964); Tynan v. United States, 1 26 U.S.App.D.C. 206, 376 F.2d. 761(1967); In re

Union Leader Corporation, 292 F.2d 381 (CAl 1961); iWolfson v. Palmieri 396 F.2d
121 (CA2 1968); Simmons v. United States, 302 F 2d. 71 (CA3 1962); United
States v. Hoffa, 382 F.2d 856 (CA6 1967); Tucker v. Tucker, 186 F.2d 79 (CA7
1950); Walker v. Bishop, 408 2d 1378 (CA 1969).

65
Id.

66
Supra note 41.
67
Supra note 42.

68
Id. See also Monroe H. Freedman, Duck-Blind Justice: Justice Scalia's
Memorandum in the Cheney Case, 18 Geo. J. Legal Ethics 229 (2004); David
Feldman, Duck Hunting, Deliberating, and Disqualification: Cheney v. U.S. District
Court and the Flaws of 28 U.S.C. Sec 455(A), 15 B.U. Pub. Int. L.J. 319 (2006);
Luke Mcfarland, Is Anyone Listening - The Duty to Sit Still Matters Because the
Justices Say it Does, 24 Geo. J. Legal Ethics 677 (2011).

Florida ex ref. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235,
69

1241 (11th Cir. 2011), cert. granted sub nom. Nat'l Fed'n of Indep. Bus. v.
Sebelius, 132 S. Ct. 603(2011), cert. granted, 132 S. Ct. 604 (2011), and cert.
granted in part, 132 S. Ct. 604 (2011).

70
Carrie Johnson, Health Care Rulings Reignite Judicial Bias Debate, NPR.
December 16, 2010.

71
Jeffrey Toobin, Partners; Will Clarence and Virginia Thomas Succeed in Killing
Obama's Health-Care Plan? The New Yorker, August 29, 2011, at p. 40.

72
Robert Barnes, Recusals Could Force Newest Justice to Miss Many Cases,
Washington Post, October 4, 2010 at A15; further stating "Elena Kagan begins
hearing cases as the Supreme Court's 112th Justice Monday morning. But anyone
who wants to see her in action needs to be sharp. x x x Her chair will be empty
when the Court returns next Tuesday and she'll put in a half-day the next day.
Kagan's old job as solicitor general - the "tenth justice" - is initiall y making it hard
to do her new job as the ninth justice"; See Suzanne Levy, Your Honor, Please Ex
plain: Why Congress Can, and Should, Require Justices to Publish Reasons for Their
Recusal Decisions, 16 U. Pa. J. Const. L. 1161 (2014).

73
Published on December 31, 2011; James Sample, Supreme Court Recusal from
Marbury to the Modern Day, 26 Geo. 1. Legal Ethics 95 (2013).

74
As Lincoln Caplan, in "The Tenth Justice" (1987) posited, since the mea ning of
the Constitution is neither fixed nor self-explanatory, it has been vital that legal
reasoning be marked by its own integrity.

75
Supra note 20.

76
U.S. Supreme Court Statement of Recusal Policy. See also Jurado & Co. v.
Hongkong and Shanghai Banking Corporation (G.R. No. L-1061, October 10, 1902)
where the Court rejected a construction which would allow questions of inhibitions
of its members to be decided by it, to the exclusion of the challenged member/s, as
it would "put it in the power of a party to stop all proceedings in the cause by
challenging [a sufficient number] of the justices."

77
Supra note 7, in the Judicial and Bar Council Supplementary Reply, pp. 14-17,
pp. 183-186 of the Records.

78
Id. at 17-18, 186-187 of the Records.

79
See Gutang v. Court Appeals, G .R. No. 124760, July 8, 1998; Orola v. Alovera,
G.R. No. 111074, July 14, 2000; Luque v. Kayanan, G.R. No. L-26826, August 29,
1969.

80
Supra note 74.

81
Saint Thomas Aquinas, III Quodlibet, p. 27.

82
St. Thomas More's Letter to His Daughter Margaret, 17 April 1534. St. Thomas
More: Selected Letters, Ed. Elizabeth Rogers, Yale University Press, 1961 , Letter
#54, pp. 215-223. Taken
from https://www.thomasmorestudies.org/docs/More%20to%20Margaret%2017%
20Apr%201534.pdf, last accessed May 9, 2018.

"INTEGRITY, ITU ABA, AND THE RULE OF LAW IN THE WEST PHILIPPINE SEA
ARBITRATION"

A Keynote Speech
By
Supreme Court Associate Justice Francis H. Jardeleza1
IBP Western Visayas Regional Convention
Theme: "Ensuring a legal system based on respect for the rule of law"
October 21, 2016, Iloilo City

Ladies and Gentlemen of the IBP Western Visayas Region, thank you for inviting me
to be your keynote speaker. It warms my heart to speak before friends in Iloilo, the
place where I was born and raised. Here was where I spent my formative years and
where I made life-long friends. I am very grateful for your kind invitation to be with
you today.

Your EVP and Governor for Western Visayas, Atty. Ade, asked me to share my
insights on your convention theme, "Ensuring a legal system based on respect for
the rule of law." As lawyers, we are all sworn. to act in ways designed to advance
respect for the Rule of Law. Each of you, I am sure, may have your own personal
experiences as to how, in your own small ways, you were able to contribute to the
ideal of a legal system based on the Rule of Law. Every experience will carry with it
its own lessons, each one as important as those of the person sitting next to you. It
is, I believe, in the sharing of, and learning from, these experiences that we help
move our profession just that bit nearer to our common aspiration, that of a legal
system based on respect for the rule of law.
Today, I would like to share with you a personal story about integrity and keeping
faith with the rule of law.

As you know, when I aspired for a seat in the Supreme Court, my application was
blocked by the Chief Justice and Senior Associate Justice of the Supreme Court, on
the ground that I lacked integrity, specifically in relation to my handling of the
Republic's West Philippine Sea arbitration against China.

What was this integrity issue all about? Essentially, the Chief Justice and Senior
Associate Justice disagreed with a decision on legal strategy that I made in the case
we filed against China. I actually have a whole lecture to explain what the
Philippines' case against China was about. Since we do not have the time for it now,
I will just try to give you the basics.

In the arbitration case we filed against China, we had four principal submissions or
what we know as causes of action under our Rules on Civil Procedure. One of the
submissions related to the status of certain features in the West Philippine Sea.

Under the United Nations Convention on the Law of the Seas (or UNCLOS), there
are three kinds of land features: an island, a rock, or a low tide elevation.
An island is defined under the UNCLOS as a naturally-formed area of land,
surrounded by water, and is above water at high tide. A good example would be
Luzon Island.

See page 2

(Figure 1)

At the other extreme is the feature called a low tide elevation. It is, by definition,
not visible at high tide. It includes submerged reefs. A good example would be Subi
Reef before China introduced improvements to convert it into an artificial island.
(See fig. 2).

See page 2

(Figure 2)

In between these two categories are features called rocks. They are reefs mainly
below water, but have rocky promontories that protrude at high tide. What
distinguishes them from islands is that they "cannot sustain human habitation or
economic life of its own." A good example would be Scarborough Shoal (See fig. 3).

See page 3

(Figure 3)

Why is it important to ascertain the status of a feature? It is important because, in

simple terms, status determines right to the adjacent sea. An island would, for
example, be entitled to a 12 NM territorial sea and a 200 NM exclusive economic
zone. A rock, on the other hand, would be entitled to a 12 NM territorial sea. A low
tide elevation would not be entitled to anything.

Now, there are more than six hundred features in the West Philippine Sea. Given
the challenges posed by the above definitions, our submission was part of what I
call a low-risk strategy, purposely designed to protect our interests in (1)
Scarborough Shoal, a traditional fishing ground for Filipino fishermen, and (2) Reed
Bank, a potentially oil and gas rich area beyond Palawan. Our submissions were
limited to eight2 features, occupied either by us or by China. These features, we
submitted, were either low-tide elevations (like Subi Reef) entitled to nothing, or at
most, rocks (like Scarborough Shoal) entitled to no more than a 12 NM territorial
sea.

I called it a low-risk strategy because it presented what the team thought was an
"acceptable" worst case scenario, that is, any or all of the features we included in
the suit would be declared rocks entitled to a 12 NM territorial sea. Otherwise
stated, we were confident that none of the features we identified would conceivably
be declared an island (as defined under UNCLOS) capable of generating a 200 NM
EEZ. More importantly, none of the features we identified would be capable of
generating a 200 NM to overlap with our EEZ and put Reed Bank at risk. This was
how matters stood as of January 23, 2013, the date we filed our submission.

Towards the end of 2013, however, and a few months before the Philippine
Memorial was due, our foreign counsel Paul Reichler from Foley Hoag
recommended3 that we amend our submissions to include Ayungin Shoal, Pagasa
plus four other Philippine-occupied features, and Itu Aba, a feature located just
outside our EEZ and occupied by Taiwan. These additional features, we would
argue, are either low tide elevations or rocks not capable of sustaining human
habitation or economic life on its own.

Although our foreign lawyers conceded that there was a risk that the tribunal would
conclude that Itu Aba was significant enough a feature to warrant an entitlement of
up to 200 NM EEZ, they argued that as a practical matter, the Philippines would not
be worse off because competing claims would still remain. That is, even if Itu Aba
was declared an island, Philippine-occupied Pagasa, which is only slightly smaller,
would, by parity of reasoning, likely also be declared an island itself entitled to a
200 NM EEZ which would overlap with the EEZ to be generated by Itu Aba.4

Considering the gravity of the proposal, we asked Mr. Reichler and his team to visit
Manila in January 2014 to discuss the matter further. The Philippine legal team,
which I headed and reported directly to then Executive Secretary Paquito Ochoa,
readily agreed to amend our claim to include Ayungin Shoal, which we asserted to
be a low-tide elevation. At that time, China was already increasing its interference
with Philippine resupply missions to our military personnel in the area. Amending
our claim to include Ayungin did not add any risk to our original low-risk strategy as
the projected worst case would only be, similar to our earlier claims, that it would
be declared a rock entitled to no more than a 12NM territorial sea.
Amending to include Itu Aba was, however, an entirely different matter.

The members of the Philippine team (composed of then Chief Presidential Legal
Counsel, now Supreme Court Associate Justice, Benjamin Caguioa, then
Undersecretary for Special Concerns Mike Musngi, then Foreign Affairs Secretary
Albert del Rosario, then Cabinet Secretary Rene Almendras, myself, and lawyers
from the OSG, DOJ and DOE) were unanimous in deciding against amending our
submissions to include Itu Aba and the four other features occupied by the
Philippines. We explained to Mr. Reichler that doing so would deviate tram the low-
risk strategy that permeated the filing of the arbitration, and that the risk posed by
the inclusion of Itu Aba was not acceptable.

Why? Here are photos of Itu Aba (See fig. 4).

See page 5

(Figure 4)

At approximately 43 square miles, it is the largest feature in the Spratly Islands and
has been occupied by Taiwan since 1946. It reportedly has two wells, garrisoned by
military and coast guard personnel, and is partially covered by scrub grass and
trees. A military supply ship services the feature twice a year, and a civilian
merchant brings general goods every 20 days. Our case being one of first
impression, we did not know how the tribunal would rule on the status of Itu Aba.
Unlike the case of Scarborough Shoal, none of the members of the Philippine legal
team were willing to risk the chances of Itu Aba possibly being declared an island
and end up with a worst case scenario like this (See fig. 5).

See page 6

(Figure 5)

If Itu Aba was declared an island, it would be capable of generating a 200 NM EEZ
that would cover large parts of our EEZ, including Reed Bank and extending almost
up to Palawan. We thus politely informed our foreign counsel, who accepted our
judgment call as client.

Towards the end of March 2014, Undersecretary Musngi and I, together with our
staffs, and lawyers from the DFA, went to Washington, D.C. to supervise the
preparation of the Memorial which was due for filing at the end of the month. It was
then that Reichler and his team proposed to include 14 paragraphs into the
Memorial which would mention that Itu Aba, even as it is largest high tide feature in
the Spratly Islands, is incapable of sustaining human habitation or economic life of
its own.

Undersecretary Musngi and I immediately reminded Mr. Reichler and his team
about the Manila decision not to amend our submissions. We argued that the
additional paragraphs would bring about the same legal and political risks that
prompted the decision not to amend in the first place. Since the DFA lawyers
supported the inclusion of the 14 paragraphs, I proposed that Reichler, et al. put
their recommendation in a memorandum addressed to me and Secretary del
Rosario so that we can take the matter up with President Aquino for his decision.

Paul Reichler released their memo5 over that weekend in time for my arrival in
Manila with Undersecretary Musngi and the rest of the Philippine delegation. There,
they asserted that ignoring the issue of Itu Aba, the largest and most significant
feature in the Spratly Islands, would not only damage the Philippines' credibility
before the Tribunal but also undermine the entire case.

Secretary Ochoa, CPLC Caguioa, and I thereafter submitted our own memo6 to
President Aquino where we argued against the inclusion of the additional 14
paragraphs and submitted that if the Tribunal iso minded, it would, on its own,
instruct us to include (whether in the oral arguments or in further written
submissions) consideration of the status of Itu Aba in the arbitration. That same
day, the three of us were summoned by President Aquino to discuss the conflicting
positions. After discussion, President Aquino decided to defer to the advice of our
foreign counsel. The matter thus decided, I forthwith communicated the President's
instructions to our lawyers. Our Memorial was filed on March 30, 2014, including
the 14 paragraphs mentioning Itu Aba.

Little did I realize that my actions concerning the mention of Itu Aba in the
Memorial would later be used to impugn my integrity and block my nomination to
the Court. The charge against me centered on a memorandum relating to a
judgment call made at the highest level of government. A copy of the confidential
Foley Hoag memo was leaked to the Chief Justice and to the Senior Associate
Justice (both of whom, by the way, had nothing to do with, and were not
accountable for, the conduct of the arbitration) who thereafter used the same
Memo against me.

At the time my nomination was being blocked, however, the arbitration case was
still pending. While I knew the truth, I could not, as a professional, disclose
intimate case details and matters of strategy as part of my defense. In the one-
sided proceedings before the JBC, I was painted, by individuals who were not part
of our arbitration team, as being disloyal to our country, and thereby lacking the
integrity to be a member of the Supreme Court.

You spend a whole lifetime building a reputation worthy of your parents and of your
family. When my integrity was attacked, I knew I had to fight back, if only to clear
my name. But, at that time, as agent of the Republic of the Philippines to the
arbitration, I had a duty to keep the confidences of my client. I was sworn to keep
sensitive secrets about our litigation strategy and tactics affecting the arbitration.
One does not telegraph them to the opponent. Considering its sensitive nature, I
could neither deny or confirm the existence of the leaked. Foley Hoag
memorandum, much less discuss its content. To do so will reveal the reasons for
the positions taken by the government, to the possible prejudice of our success in
the arbitration. Thus, at that time, I was constrained to put up a defense purely on
due process grounds and hope that the rule of law would prevail.

Of course, I was not alone in the handling of the country's arbitration case against
China. The Philippine team was composed of many Filipino patriots, who labored
long and hard on the West Philippine Sea arbitration. Many of us were lawyers, who
believed that the Rule of Law applies to, and protects all of us under international
law. Each of us acted according to the best of our abilities and our conscience. In
refusing to include Itu Aba in our claim, did we in fact do the right thing? For my
part, I can assure you that I acted only with the best of intentions. Did I act with
integrity? I would like to believe so, even if in the end the President chose to go
another way.

As fate and the vagaries of litigation would have it, it was the Arbitral Tribunal itself
that directed the Philippines to make submissions on the status of more than 20
features in the Spratly Islands, including Itu Aba, and to make the determination of
their status part of the proceeding. The rest, as they say, is history. On this specific
point, the arbitral tribunal unanimously decided that Itu Aba, like Pagasa, was a
rock that does not generate an entitlement beyond a 12 NM territorial sea. Thus,
the Reed Bank is securely within our EEZ.

This astounding win for the Philippines, and for President Aquino, merits a story by
itself about the role of the Rule of Law under international law. The promulgation of
the decision also allowed me to talk, publicly and for the first time, about the
integrity issue raised against me in the JBC during my nomination to the Supreme
Court. I have chosen to break my silence about this issue in my home town, before
you, because it is here in Iloilo where the foundations of the integrity I have tried to
embrace under a life in the law were first nurtured. I will be dishonest if I say that
we knew that we will win, or that the result would be a win as big as this. We did
not. The team had many agreements and a few disagreements. But we all worked
as a band of patriots, under the leadership of President Aquino, blessed to play a
role in the making of history. Along the way, I was just unfortunate that my
integrity was questioned.

The meaning of the Rule of Law became so personal to me in a way I never

imagined. I was so close to professional death, an inglorious end to a career I
worked so hard to nurture. It is an experience I would not wish on anybody.
Fortunately for me, however; the Rule of Law prevailed. The Supreme Court
decided to allow my name to be placed in nomination, and President Benigno S.
Aquino III appointed me to the Court.

I am so glad I did not lose heart. Against all odds, and with only my abiding belief
in the Rule of Law, I kept my faith by resorting to the Supreme Court as court of
last resort. My falling back on the Rule of Law allowed me to keep the confidences
of my client, the Republic, in the West Philippine Sea arbitration, and at the same
time, it allowed me a case to be vindicated in the Supreme Court. I tell you these
stories because I want to share with you, from real life experience, how we can
deal with opportunities and challenges and act in ways to ensure a legal system
based on the Rule of Law. I realize that this might not be the case for everyone. I
hope though that by sharing with you my story you would be encouraged to
continue keeping your faith in the Rule of Law.

Thank you all very much for your time.

Case 8: Angara v Electoral Commission

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no
matter how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is
significant and of first impression. We are asked to decide whether the Commission on
Elections (COMELEC) has the competence to limit expressions made by the citizens — who are
not candidates — during elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and
letter3 issued on February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing
the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten
feet (10') in size. They were posted on the front walls of the cathedral within public view. The
first tarpaulin contains the message "IBASURA RH Law" referring to the Reproductive Health
Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the present
case.4 This tarpaulin contains the heading "Conscience Vote" and lists candidates as either
"(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The
electoral candidates were classified according to their vote on the adoption of Republic Act No.
10354, otherwise known as the RH Law.6Those who voted for the passing of the law were
classified by petitioners as comprising "Team Patay," while those who voted against it form
"Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid
for by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates
for the 2013 elections, but not of politicians who helped in the passage of the RH Law but were
not candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer
of Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most
Rev. Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within
three (3) days from receipt for being oversized. COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop
be given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2)
pending this opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate
removal of the tarpaulin; otherwise, it will be constrained to file an election offense against
petitioners. The letter of COMELEC Law Department was silenton the remedies available to
petitioners. The letter provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had
already given you notice on February 22, 2013 as regards the election propaganda material
posted on the church vicinity promoting for or against the candidates and party-list groups with
the following names and messages, particularly described as follows:
 Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution

No. 9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent
division of the said tarpaulin into two), as the lawful size for election propaganda material is only
two feet (2’) by three feet (3’), please order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained to file an election offense case against
you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for
preliminary injunction and temporary restraining order.14 They question respondents’ notice
dated February 22, 2013 and letter issued on February 27, 2013. They pray that: (1) the petition
be given due course; (2) a temporary restraining order (TRO) and/or a writ of preliminary
injunction be issued restraining respondents from further proceeding in enforcing their orders for
the removal of the Team Patay tarpaulin; and (3) after notice and hearing, a decision be
rendered declaring the questioned orders of respondents as unconstitutional and void, and
permanently restraining respondents from enforcing them or any other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order
enjoining respondents from enforcing the assailed notice and letter, and set oral arguments on
March 19, 2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari
and prohibition under Rule 65 of the Rules of Court filed before this court is not the proper
remedy to question the notice and letter of respondents; and (2) the tarpaulin is an election
propaganda subject to regulation by COMELEC pursuant to its mandate under Article IX-C,
Section 4 of the Constitution. Hence, respondents claim that the issuances ordering its removal
for being oversized are valid and constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening
holidays.19

The issues, which also served as guide for the oral arguments, are:20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER

MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65
PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS

DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE

NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES
WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE
CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE

"POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT
PETITIONER IS NOT A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY
TO REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER

MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;]
[AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES

THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not
final orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise
of its adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the ouster of
jurisdiction.22 As a special civil action, there must also be a showing that there be no plain,
speedy, and adequate remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions
affecting elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is limited to final decisions, orders, rulings and
judgments of the COMELEC En Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings
and decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial
powers." This decision must be a final decision or resolution of the Comelec en banc, not of a
division, certainly not an interlocutory order of a division.The Supreme Court has no power to
review viacertiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court provided
exceptions to this general rule. Repolwas another election protest case, involving the mayoralty
elections in Pagsanghan, Samar.36 This time, the case was brought to this court because the
COMELEC First Division issued a status quo ante order against the Regional Trial Court
executing its decision pending appeal.37 This court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
COMELEC Division.38However, consistent with ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves
the principle of social justice or the protection of labor, when the decision or resolution sought to
be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued
by the COMELEC Division was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed
before this court a petition for certiorari against an interlocutory order of the COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed
the main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions
to the general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of
the mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case
that he engaged in vote buying in the 1995 elections.46No motion for reconsideration was filed
before the COMELEC En Banc. This court, however, took cognizance of this case applying one
of the exceptions in ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC
denying her motion for reconsideration to dismiss the election protest petition for lack of form
and substance.49 This court clarified the general rule and refused to take cognizance of the
review of the COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled
that these exceptions did not apply.50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning
candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed
to assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the
implementation of its regulatory powers. When it issued the notice and letter, the COMELEC
was allegedly enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech
and the "chilling effect" caused by respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February
27, 2013 ordering the removal of the tarpaulin.53 It is their position that these infringe on their
fundamental right to freedom of expression and violate the principle of separation of church and
state and, thus, are unconstitutional.54

The jurisdiction of this court over the subject matter is determined from the allegations in the
petition. Subject matter jurisdiction is defined as the authority "to hear and determine cases of
the general class to which the proceedings in question belong and is conferred by the sovereign
authority which organizes the court and defines its powers."55Definitely, the subject matter in this
case is different from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move
people to action. It is concerned with the sovereign right to change the contours of power
whether through the election of representatives in a republican government or the revision of the
basic text of the Constitution. The zeal with which we protect this kind of speech does not
depend on our evaluation of the cogency of the message. Neither do we assess whether we
should protect speech based on the motives of COMELEC. We evaluate restrictions on freedom
of expression from their effects. We protect both speech and medium because the quality of this
freedom in practice will define the quality of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of
repetition. Under the conditions in which it was issued and in view of the novelty of this case,it
could result in a "chilling effect" that would affect other citizens who want their voices heard on
issues during the elections. Other citizens who wish to express their views regarding the
election and other related issues may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is
also the procedural platform for raising grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this
court’s expanded exercise of certiorari as provided by the Constitution as follows:

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 ornot 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.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the
COMELEC had any jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter
on free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of
the word "affecting" in this provision cannot be interpreted to mean that COMELEC has the
exclusive power to decide any and allquestions that arise during elections. COMELEC’s
constitutional competencies during elections should not operate to divest this court of its own
jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for
certiorari and prohibition. This should be read alongside the expanded jurisdiction of the court in
Article VIII, Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of

discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within
this court’s power to review.
During elections, we have the power and the duty to correct any grave abuse of discretion or
any act tainted with unconstitutionality on the part of any government branch or instrumentality.
This includes actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to
protect the people against government’s infringement of their fundamental rights. This
constitutional mandate out weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of
concurrent jurisdiction is sufficient ground for the dismissal of their petition.57 They add that
observation of the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions to the general rule on
hierarchy of courts, none of these are present in this case.59

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature
and importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court."62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms
that the policy is not to be ignored without serious consequences. The strictness of the policy is
designed to shield the Court from having to deal with causes that are also well within the
competence of the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to it. The Court may
act on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when
absolutely necessary or when serious and important reasons exist to justify an exception to the
policy.64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of
certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform
the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and
should not be burdened with the task of dealing with causes in the first instance. Its original
jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefore. Hence, that jurisdiction
should generally be exercised relative to actions or proceedings before the Court of Appeals, or
before constitutional or other tribunals, bodies or agencies whose acts for some reason or
another are not controllable by the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either
of these courts that the specific action for the writ’s procurement must be presented. This is and
should continue to be the policy in this regard, a policy that courts and lawyers must strictly
observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure
that every level of the judiciary performs its designated roles in an effective and efficient
manner. Trial courts do not only determine the facts from the evaluation of the evidence
presented before them. They are likewise competent to determine issues of law which may
include the validity of an ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially organized into regions
and then into branches. Their writs generally reach within those territorial boundaries.
Necessarily, they mostly perform the all-important task of inferring the facts from the evidence
as these are physically presented before them. In many instances, the facts occur within their
territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a determination of
the constitutionality of such action. The consequences, of course, would be national in scope.
There are, however, some cases where resort to courts at their level would not be practical
considering their decisions could still be appealed before the higher courts, such as the Court of
Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination
of facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has
original jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a
nationwide scope. It is competent to determine facts and, ideally, should act on constitutional
issues thatmay not necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating
— in the light of new circumstances or in the light of some confusions of bench or bar —
existing precedents. Rather than a court of first instance or as a repetition of the actions of the
Court of Appeals, this court promulgates these doctrinal devices in order that it truly performs
that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full
discretionary power to take cognizance and assume jurisdiction [over] special civil actions for
certiorari . . .filed directly with it for exceptionally compelling reasons69 or if warranted by the
nature of the issues clearly and specifically raised in the petition."70 As correctly pointed out by
petitioners,71 we have provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality
that must be addressed at the most immediate time. A direct resort to this court includes
availing of the remedies of certiorari and prohibition toassail the constitutionality of actions of
both legislative and executive branches of the government.72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to
freedom of expression in the present case, but also of others in future similar cases. The case
before this court involves an active effort on the part of the electorate to reform the political
landscape. This has become a rare occasion when private citizens actively engage the public in
political discourse. To quote an eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a
whole way of life. The theory grew out of an age that was awakened and invigorated by the idea
of new society in which man's mind was free, his fate determined by his own powers of reason,
and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put
forward as a prescription for attaining a creative, progressive, exciting and intellectually robust
community. It contemplates a mode of life that, through encouraging toleration, skepticism,
reason and initiative, will allow man to realize his full potentialities.It spurns the alternative of a
society that is tyrannical, conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may
provide, as public participation in nation-building isa fundamental principle in our Constitution.
As such, their right to engage in free expression of ideas must be given immediate protection by
this court.

A second exception is when the issuesinvolved are of transcendental importance.74 In these

cases, the imminence and clarity of the threat to fundamental constitutional rights outweigh the
necessity for prudence. The doctrine relating to constitutional issues of transcendental
importance prevents courts from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech
and freedom of expression which warrants invocation of relief from this court. The principles laid
down in this decision will likely influence the discourse of freedom of speech in the future,
especially in the context of elections. The right to suffrage not only includes the right to vote for
one’s chosen candidate, but also the right to vocalize that choice to the public in general, in the
hope of influencing their votes. It may be said that in an election year, the right to vote
necessarily includes the right to free speech and expression. The protection of these
fundamental constitutional rights, therefore, allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression,
no jurisprudence yet exists that will guide the lower courts on this matter. In Government of the
United States v. Purganan,76 this court took cognizance of the case as a matter of first
impression that may guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings
constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide
lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of
whether the right of suffrage includes the right of freedom of expression. This is a question
which this court has yet to provide substantial answers to, through jurisprudence. Thus, direct
resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this
court held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a
thorough deliberation by a collegiate body and with the concurrence of the majority of those who
participated in its discussion.79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with
finality on whether COMELEC committed grave abuse of discretion or performed acts contrary
to the Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the
2013 election period. Although the elections have already been concluded, future cases may be
filed that necessitate urgency in its resolution. Exigency in certain situations would qualify as an
exception for direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional
body. In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the
chaos that would ensue if the Court of First Instance ofeach and every province were [to]
arrogate itself the power to disregard, suspend, or contradict any order of the Commission on
Elections: that constitutional body would be speedily reduced to impotence."81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies
with the lower courts, any ruling on their part would not have been binding for other citizens
whom respondents may place in the same situation. Besides, thiscourt affords great respect to
the Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this
court would be in the best interest of respondents, in order that their actions may be guided
accordingly in the future.

Seventh, 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.

In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other
sufficient remedies in the course of law alone is sufficient ground to allow direct resort to this
court.

Eighth, the petition includes questionsthat 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 found to be patent nullities, or the appeal was consideredas clearly an inappropriate
remedy."82 In the past, questions similar to these which this court ruled on immediately despite
the doctrine of hierarchy of courts included citizens’ right to bear arms,83 government contracts
involving modernization of voters’ registration lists,84 and the status and existence of a public
office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this
court is permitted.
It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case
falls under the recognized exceptions and, as such, may be resolved by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate
opinion in Osmeña v. COMELEC86 to support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the
"State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of
the Constitution to be all that adversarial or irreconcilably inconsistent with the right of free
expression. In any event, the latter, being one of general application, must yield to the specific
demands of the Constitution. The freedom of expression concededly holds, it is true, a vantage
point in hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not
without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and
the "weak" in our society but it is to me a genuine attempt on the part of Congress and the
Commission on Elections to ensure that all candidates are given an equal chance to media
coverage and thereby be equally perceived as giving real life to the candidates’ right of free
expression rather than being viewed as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be best in giving life to the
Constitutional mandate, is not for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and
weak, on their equal opportunities for media coverage of candidates and their right to freedom
of expression. This case concerns the right of petitioners, who are non-candidates, to post the
tarpaulin in their private property, asan exercise of their right of free expression. Despite the
invocation of the political question doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a
political question:

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,
withdiscretionary power to act.89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law
should be. In political forums, particularly the legislature, the creation of the textof the law is
based on a general discussion of factual circumstances, broadly construed in order to allow for
general application by the executive branch. Thus, the creation of the law is not limited by
particular and specific facts that affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.

The complementary nature of the political and judicial branches of government is essential in
order to ensure that the rights of the general public are upheld at all times. In order to preserve
this balance, branches of government must afford due respectand deference for the duties and
functions constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule.
Prudence dictates that we are careful not to veto political acts unless we can craft doctrine
narrowly tailored to the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no
political question. It can be acted upon by this court through the expanded jurisdiction granted to
this court through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of

different agencies and departments of the executive or those of the legislature. The political
question doctrine is used as a defense when the petition asks this court to nullify certain acts
that are exclusively within the domain of their respective competencies, as provided by the
Constitution or the law. In such situation, presumptively, this court should act with deference. It
will decline to void an act unless the exercise of that power was so capricious and arbitrary so
as to amount to grave abuse of discretion.

The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the official whose action is being questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of
carefully and narrowly tailored constitutional doctrines. This trend was followed in cases such as
Daza v. Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the
1987 Constitution involving the removal of petitioners from the Commission on Appointments. In
times past, this would have involved a quint essentially political question as it related to the
dominance of political parties in Congress. However, in these cases, this court exercised its
power of judicial review noting that the requirement of interpreting the constitutional provision
involved the legality and not the wisdom of a manner by which a constitutional duty or power
was exercised. This approach was again reiterated in Defensor Santiago v. Guingona, Jr.94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible
existence ofa political question did not bar an examination of whether the exercise of discretion
was done with grave abuse of discretion. In that case, this court ruled on the question of
whether there was grave abuse of discretion in the President’s use of his power to call out the
armed forces to prevent and suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the
political legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may
avert catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas
v. Executive Secretary Oscar Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the
issue involved concerns the validity of such discretionary powers or whether said powers are
within the limits prescribed by the Constitution, We will not decline to exercise our power of
judicial review. And such review does not constitute a modification or correction of the act of the
President, nor does it constitute interference with the functions of the President. 98

The concept of judicial power in relation to the concept of the political question was discussed
most extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat
the question of the validity of the second impeachment complaint that was filed against former
Chief Justice Hilario Davide was a political question beyond the ambit of this court. Former
Chief Justice Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the
new Constitution which expanded the definition of judicial power as including "the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." As well observed by retired Justice Isagani Cruz, this expanded definition of
judicial power considerably constricted the scope of political question. He opined that the
language luminously suggests that this duty (and power) is available even against the executive
and legislative departments including the President and the Congress, in the exercise of their
discretionary powers.100 (Emphasis in the original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied
in the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court,under previous constitutions, would have normally left
to the political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases." (Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive.
The reason is that, even if we were to assume that the issue presented before us was political in
nature, we would still not be precluded from resolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even the political question.x x x (Emphasis
and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-
justiciable question lies in the answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or instrumentality of the government
properly acted within such limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence,
the existence of constitutionally imposed limits justifies subjecting the official actions of the body
to the scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any
instance that this right may be abridged demands judicial scrutiny. It does not fall squarely into
any doubt that a political question brings.

I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative

remedies. Respondents insist that petitioners should have first brought the matter to the
COMELEC En Banc or any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that
"there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law."103 They add that the proper venue to assail the validity of the assailed issuances was in
the course of an administrative hearing to be conducted by COMELEC.104 In the event that an
election offense is filed against petitioners for posting the tarpaulin, they claim that petitioners
should resort to the remedies prescribed in Rule 34 of the COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a
court may come into the picture."106

Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the
filing of the election offense against petitioners is already an actionable infringement of this right.
The impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested
in their pleadings prolongs the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative remedies yields in order to protect this
fundamental right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the
current controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and
judicial action may be validly resorted to immediately: (a) when there is a violation of due
process; (b) when the issue involved is purely a legal question; (c) when the administrative
action is patently illegal amounting to lack or excess of jurisdiction; (d) when there is estoppel on
the part ofthe administrative agency concerned; (e) when there is irreparable injury; (f) when the
respondent is a department secretary whose acts as analter ego of the President bear the
implied and assumed approval of the latter; (g) when to require exhaustion of administrative
remedies would be unreasonable; (h) when it would amount to a nullification of a claim; (i) when
the subject matter is a private land in land case proceedings; (j) whenthe rule does not provide a
plain, speedy and adequate remedy; or (k) when there are circumstances indicating the urgency
of judicial intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle
of separation of church and state. This is a purely legal question. Second, the circumstances of
the present case indicate the urgency of judicial intervention considering the issue then on the
RH Law as well as the upcoming elections. Thus, to require the exhaustion of administrative
remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the
elections by calling attention to issues they want debated by the publicin the manner they feel
would be effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they
had the power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates
and political parties. Petitioners are not candidates. Neither do theybelong to any political party.
COMELEC does not have the authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 4. The Commission may,during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections.114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for
the creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned
the provision prohibiting journalists from covering plebiscite issues on the day before and on
plebiscite day.117 Sanidad argued that the prohibition was a violation of the "constitutional
guarantees of the freedom of expression and of the press. . . ."118 We held that the "evil sought
to be prevented by this provision is the possibility that a franchise holder may favor or give any
undue advantage to a candidate in terms of advertising space or radio or television
time."119 This court found that "[m]edia practitioners exercising their freedom of expression
during plebiscite periods are neither the franchise holders nor the candidates[,]"120 thus, their
right to expression during this period may not be regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this
provision only affects candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions
"parties" and "candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and
party-list groups to erect common poster areas for their candidates in not more than ten (10)
public places such as plazas, markets, barangay centers and the like, wherein candidates can
post, display or exhibit election propaganda: Provided, That the size ofthe poster areas shall not
exceed twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with no
political parties may likewise be authorized to erect common poster areas in not more than ten
(10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with the consent of the
owner thereof, and in public places or property which shall be allocated equitably and impartially
among the candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing
the Fair Election Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster
areas and those enumerated under Section 7 (g) of these Rules and the like is prohibited.
Persons posting the same shall be liable together with the candidates and other persons who
caused the posting. It will be presumed that the candidates and parties caused the posting of
campaign materials outside the common poster areas if they do not remove the same within
three (3) days from notice which shall be issued by the Election Officer of the city or municipality
where the unlawful election propaganda are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political
parties, and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and
local elective positions subject to the limitation on authorized expenses of candidates and
political parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar
wording. These provisions show that election propaganda refers to matter done by or on behalf
of and in coordination with candidates and political parties. Some level of coordination with the
candidates and political parties for whom the election propaganda are released would ensure
that these candidates and political parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On
the other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power
under the Constitution, to some extent, set a limit on the right to free speech during election
period.127

National Press Club involved the prohibition on the sale and donation of space and time for
political advertisements, limiting political advertisements to COMELEC-designated space and
time. This case was brought by representatives of mass media and two candidates for office in
the 1992 elections. They argued that the prohibition on the sale and donation of space and time
for political advertisements is tantamount to censorship, which necessarily infringes on the
freedom of speech of the candidates.128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club.
However, this case does not apply as most of the petitioners were electoral candidates, unlike
petitioners in the instant case. Moreover, the subject matter of National Press Club, Section
11(b) of Republic Act No. 6646,129 only refers to a particular kind of media such as newspapers,
radio broadcasting, or television.130 Justice Feliciano emphasized that the provision did not
infringe upon the right of reporters or broadcasters to air their commentaries and opinions
regarding the candidates, their qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their commentary on the issues involving
the plebiscite, National Press Clubdoes not involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the
2013 national elections because of the COMELEC notice and letter. It was not merelya
regulation on the campaigns of candidates vying for public office. Thus, National Press
Clubdoes not apply to this case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election
Code, defines an"election campaign" as follows:

....
(b) The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office which
shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons

for the purpose of soliciting votes and/or undertaking any campaign for or against a
candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or

against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or

oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of
aspirants for nomination for candidacy to a public office by a political party, aggroupment, or
coalition of parties shall not be considered as election campaign or partisan election activity.
Public expressions or opinions or discussions of probable issues in a forthcoming electionor on
attributes of or criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any election campaign or
partisan political activity contemplated under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and
political parties themselves. The focus of the definition is that the act must be "designed to
promote the election or defeat of a particular candidate or candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners
invoke their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate
their fundamental right to freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to
their regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution.
Thus, the assailed notice and letter ordering itsremoval for being oversized are valid and
constitutional.131
II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for redress
of grievances.132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays.135 What was
questioned was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s
public meeting.136 Nevertheless, this court recognized the constitutional right to freedom of
speech, to peaceful assembly and to petition for redress of grievances, albeit not
absolute,137 and the petition for mandamus to compel respondent Mayor to issue the permit was
granted.138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc
Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining
order to stop ABS-CBN from conducting exit surveys.139 The right to freedom of expression was
similarly upheld in this case and, consequently, the assailed resolution was nullified and set
aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against
the abridgment of speech should not mean an absolute prohibition against regulation. The
primary and incidental burden on speech must be weighed against a compelling state interest
clearly allowed in the Constitution. The test depends on the relevant theory of speech implicit in
the kind of society framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition
to the freedom of speech and of the press provided in the US Constitution. The word
"expression" was added in the 1987 Constitution by Commissioner Brocka for having a wider
scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2,
line 29, it says: "No law shall be passed abridging the freedom of speech." I would like to
recommend to the Committee the change of the word "speech" to EXPRESSION; or if not, add
the words AND EXPRESSION after the word "speech," because it is more expansive, it has a
wider scope, and it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears
none; the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom
of speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to
freedom itself as "[t]he right to think is the beginning of freedom, and speech must be protected
from the government because speech is the beginning of thought."142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when

"(1) a speaker, seeking to signal others, uses conventional actions because he orshe
reasonably believes that such actions will be taken by the audience in the manner intended; and
(2) the audience so takes the actions."144 "[I]n communicative action[,] the hearer may respond
to the claims by . . . either accepting the speech act’s claims or opposing them with criticism or
requests for justification."145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech

sometimes referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’
elements are combined in the same course of conduct,’ the ‘communicative element’ of the
conduct may be ‘sufficient to bring into play the [right to freedom of expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner of
communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members
of the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute
the flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion,
Justice Cruz discussed how the salute is a symbolic manner of communication and a valid form
of expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights
that guarantees to the individual the liberty to utter what is in his mind also guarantees to him
the liberty not to utter what is not in his mind. The salute is a symbolic manner of communication
that conveys its messageas clearly as the written or spoken word. As a valid form of expression,
it cannot be compelled any more than it can be prohibited in the face of valid religious objections
like those raised in this petition. To impose it on the petitioners is to deny them the right not to
speak when their religion bids them to be silent. This coercion of conscience has no place in the
free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion
of unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners,
no less than the impatience of those who disagree with them, are protected by the Constitution.
The State cannot make the individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal
utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification
of the motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the
classification "is without legal and factual basis and is exercised as impermissible restraint of
artistic expression."153 This court recognized that "[m]otion pictures are important both as a
medium for the communication of ideas and the expression of the artistic impulse."154 It adds
that "every writer,actor, or producer, no matter what medium of expression he may use, should
be freed from the censor."155 This court found that "[the Board’s] perception of what constitutes
obscenity appears to be unduly restrictive."156 However, the petition was dismissed solely on the
ground that there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make
it easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it
easier for passengers inside moving vehicles to read its content. Compared with the
pedestrians, the passengers inside moving vehicles have lesser time to view the content of a
tarpaulin. The larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the
message. The effectivity of communication sometimes relies on the emphasis put by the
speakers and onthe credibility of the speakers themselves. Certainly, larger segments of the
public may tend to be more convinced of the point made by authoritative figures when they
make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to
communicate. Rather than simply placing the names and images of political candidates and an
expression of support, larger spaces can allow for brief but memorable presentations of the
candidates’ platforms for governance. Larger spaces allow for more precise inceptions of ideas,
catalyze reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both good governance
and accountability in our government.

These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and
kept hostage by brief and catchy but meaningless sound bites extolling the character of the
candidate. Worse, elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should in fact encourage
it. Between the candidates and the electorate, the latter have the better incentive to demand
discussion of the more important issues. Between the candidates and the electorate, the former
have better incentives to avoid difficult political standpoints and instead focus on appearances
and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part
of expression protected under Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic
right to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to
criticize government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open,
[and] ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory
may be considered broad, but it definitely "includes [a] collective decision making with the
participation of all who will beaffected by the decision."160 It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.161 To ensure order in
running the state’s affairs, sovereign powers were delegated and individuals would be elected or
nominated in key government positions to represent the people. On this note, the theory on
deliberative democracy may evolve to the right of the people to make government accountable.
Necessarily, this includes the right of the people to criticize acts made pursuant to governmental
functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances
and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the
principle that "debate on public issues should be uninhibited, robust,and wide open . . .
[including even] unpleasantly sharp attacks on government and public officials."164

Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by
[the] free trade in ideas:"165

When men have realized that time has upset many fighting faiths, they may come to believe
even more than they believe the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas - that the best test of truth is the power of the
thought to get itself accepted in the competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop
their own conclusions."167 A free, open, and dynamic market place of ideas is constantly
shaping new ones. This promotes both stability and change where recurring points may
crystallize and weak ones may develop. Of course, free speech is more than the right to
approve existing political beliefs and economic arrangements as it includes, "[t]o paraphrase
Justice Holmes, [the] freedom for the thought that we hate, no less than for the thought that
agrees with us."168 In fact, free speech may "best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to
anger."169 It is in this context that we should guard against any curtailment of the people’s right
to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means
of assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also
political rights essential to man's enjoyment of his life, to his happiness and to his full and
complete fulfillment.Thru these freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights
so that he can appeal to the appropriate governmental officers or agencies for redress and
protection as well as for the imposition of the lawful sanctions on erring public officers and
employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for
deliberation, and for the formation of identity and community spirit[,] [and] are largely immune
from [any] governmental interference."173 They also "provide a buffer between individuals and
the state - a free space for the development of individual personality, distinct group identity, and
dissident ideas - and a potential source of opposition to the state."174 Free speech must be
protected as the vehicle to find those who have similar and shared values and ideals, to join
together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two
potentially vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or
plundered by despotic federal officials"176 and the minorities who may be oppressed by
"dominant factions of the electorate [that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance in a republic not only to guard the
society against the oppression of its rulers, but to guard one part of the society against the
injustice of the other part."178 We should strive to ensure that free speech is protected especially
in light of any potential oppression against those who find themselves in the fringes on public
issues.

Lastly, free speech must be protected under the safety valve theory.179 This provides that
"nonviolent manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to
burst . . . resulting in the ‘banking up of a menacing flood of sullen anger behind the walls of
restriction’"181 has been used to describe the effect of repressing nonviolent outlets.182 In order
to avoid this situation and prevent people from resorting to violence, there is a need for peaceful
methods in making passionate dissent. This includes "free expression and political
participation"183 in that they can "vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature alerting other citizens of their
concerns[,]"184 and conduct peaceful rallies and other similar acts.185 Free speech must, thus, be
protected as a peaceful means of achieving one’s goal, considering the possibility that
repression of nonviolent dissent may spill over to violent means just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1.
Definitions . . .

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or
a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate
or candidates to a public office. In broadcast media, political advertisements may take the form
of spots, appearances on TV shows and radio programs, live or taped announcements, teasers,
and other forms of advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social networks, blogging sites, and
micro-blogging sites, in return for consideration, or otherwise capable of pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions,
views and beliefs about issues and candidates."188 They argue that the tarpaulin was their
statement of approval and appreciation of the named public officials’ act of voting against the
RH Law, and their criticism toward those who voted in its favor.189It was "part of their advocacy
campaign against the RH Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their]
freedom of expression should be declared unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme
of constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine
Blooming Mills, this court discussed the preferred position occupied by freedom of expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless
attempt to limit the power of government and ceases to be an efficacious shield against the
tyranny of officials, of majorities, ofthe influential and powerful, and of oligarchs - political,
economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and political
institutions; and such priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage." 196 A
similar idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s
concurring and dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that
genuine democracy thrives only where the power and right of the people toelect the men to
whom they would entrust the privilege to run the affairs of the state exist. In the language of the
declaration of principles of our Constitution, "The Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from them" (Section 1, Article II).
Translating this declaration into actuality, the Philippines is a republic because and solely
because the people in it can be governed only by officials whom they themselves have placed in
office by their votes. And in it is on this cornerstone that I hold it tobe self-evident that when the
freedoms of speech, press and peaceful assembly and redress of grievances are being
exercised in relation to suffrage or asa means to enjoy the inalienable right of the qualified
citizen to vote, they are absolute and timeless. If our democracy and republicanism are to be
worthwhile, the conduct of public affairs by our officials must be allowed to suffer incessant and
unabating scrutiny, favorable or unfavorable, everyday and at all times. Every holder of power in
our government must be ready to undergo exposure any moment of the day or night, from
January to December every year, as it is only in this way that he can rightfully gain the
confidence of the people. I have no patience for those who would regard public dissection of the
establishment as an attribute to be indulged by the people only at certain periods of time. I
consider the freedoms of speech, press and peaceful assembly and redress of grievances,
when exercised in the name of suffrage, as the very means by which the right itself to vote can
only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or
time.198 (Emphasis supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some
types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under its pervasive
police power, in order that it may not be injurious to the equal right of others or those of the
community or society. The difference in treatment is expected because the relevant interests of
one type of speech, e.g., political speech, may vary from those of another, e.g., obscene
speech. Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe
permissible scope of restrictions on various categories of speech. We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are
not entitled to constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been
defined as speech that does "no more than propose a commercial transaction."202 The
expression resulting from the content of the tarpaulin is, however, definitely political speech. In
Justice Brion’s dissenting opinion, he discussed that "[t]he content of the tarpaulin, as well as
the timing of its posting, makes it subject of the regulations in RA 9006 and Comelec Resolution
No. 9615."203 He adds that "[w]hile indeed the RH issue, by itself,is not an electoralmatter, the
slant that the petitioners gave the issue converted the non-election issue into a live election one
hence, Team Buhay and Team Patay and the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for
or posted "in return for consideration" by any candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the
facts of this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or
a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate
or candidates to a public office. In broadcast media, political advertisements may take the form
of spots, appearances on TV shows and radio programs, live or taped announcements, teasers,
and other forms of advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social networks, blogging sites, and
micro-blogging sites, in return for consideration, or otherwise capable of pecuniary estimation.
(Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office, and
shall include any of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not be
considered acts of election campaigning or partisan politicalactivity unless expressed by
government officials in the Executive Department, the Legislative Department, the Judiciary, the
Constitutional Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in
Republic Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion
of public affairs. We acknowledged that free speech includes the right to criticize the conduct of
public men:

The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of official dom. Men in
public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be
exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of
grievances, allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v.
People,208 this court noted every citizen’s privilege to criticize his or her government, provided it
is "specific and therefore constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This
court explained that it is the poster’s anonymous character that is being penalized.212 The
ponente adds that he would "dislike very muchto see this decision made the vehicle for the
suppression of public opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their
views. According to this court, "[i]ts value may lie in the fact that there may be something worth
hearing from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be
changed for the better and ideas that may be deliberated on to attain that purpose. Necessarily,
it also makes the government accountable for acts that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits
mass media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216This court mentioned how "discussion of public issues and
debate on the qualifications of candidates in an election are essential to the proper functioning
of the government established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context
of elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known
what the people need to know,219 while the meaningful exercise of one’s right of suffrage
includes the right of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public
issues, and the freedom of expression especially in relation to information that ensures the
meaningful exercise of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and
wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp
attacks on government and public officials. Too many restrictions will deny to people the robust,
uninhibited, and wide open debate, the generating of interest essential if our elections will truly
be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost
respect when what may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage.221(Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other
rights and even government protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech
are still subjectto some restrictions. The degree of restriction may depend on whether the
regulation is content-based or content-neutral.223 Content-based regulations can either be based
on the viewpoint of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation.
The order was made simply because petitioners failed to comply with the maximum size
limitation for lawful election propaganda.224

On the other hand, petitioners argue that the present size regulation is content-based as it
applies only to political speech and not to other forms of speech such as commercial
speech.225 "[A]ssuming arguendo that the size restriction sought to be applied . . . is a mere
time, place, and manner regulation, it’s still unconstitutional for lack of a clear and reasonable
nexus with a constitutionally sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or content-
based.227 Regardless, the disposition of this case will be the same. Generally, compared with
other forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver
opinions that shape both their choices. It does not cover, for instance, commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-
candidates will be adjudged as "election paraphernalia." There are no existing bright lines to
categorize speech as election-related and those that are not. This is especially true when
citizens will want to use their resources to be able to raise public issues that should be tackled
by the candidates as what has happened in this case. COMELEC’s discretion to limit speech in
this case is fundamentally unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is
not easily divorced from the size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the
clear and present danger rule as measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if
justified by a compelling reason, and the restrictions imposedare neither overbroad nor
vague.229 (Citations omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is
no compelling and substantial state interest endangered by the posting of the tarpaulinas to
justify curtailment of the right of freedom of expression. There is no reason for the state to
minimize the right of non-candidate petitioners to post the tarpaulin in their private property. The
size of the tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234The ordinance in this case was construed to grant the Mayor discretion
only to determine the public places that may be used for the procession ormeeting, but not the
power to refuse the issuance of a permit for such procession or meeting.235 This court explained
that free speech and peaceful assembly are "not absolute for it may be so regulated that it shall
not beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of
the community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution
that prohibited the passing of animal-drawn vehicles along certain roads at specific
hours.238 This court similarly discussed police power in that the assailed rules carry outthe
legislative policy that "aims to promote safe transit upon and avoid obstructions on national
roads, in the interest and convenience of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark
the public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is
with this backdrop that the state is justified in imposing restrictions on incidental matters as time,
place, and manner of the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit
applicants must follow which include informing the licensing authority ahead of time as regards
the date, public place, and time of the assembly.242 This would afford the public official time to
inform applicants if there would be valid objections, provided that the clear and present danger
test is the standard used for his decision and the applicants are given the opportunity to be
heard.243 This ruling was practically codified in Batas Pambansa No. 880, otherwise known as
the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa
No. 880 does not prohibit assemblies but simply regulates their time, place, and manner.245 In
2010, this court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor
Atienza committed grave abuse of discretion when he modified the rally permit by changing the
venue from Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity
to be heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not
easily divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is
relayed but not the content of what is conveyed."248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not
pass the three requirements for evaluating such restraints on freedom of speech.249 "When the
speech restraints take the form of a content-neutral regulation, only a substantial governmental
interest is required for its validity,"250 and it is subject only to the intermediate approach.251

This intermediate approach is based on the test that we have prescribed in several cases.252 A
content-neutral government regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident restriction on alleged [freedom of speech
& expression] is no greater than is essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates.
On the second requirement, not only must the governmental interest be important or substantial,
it must also be compelling as to justify the restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have

held, for example, that "the welfare of children and the State’s mandate to protect and care for
them, as parens patriae,254 constitute a substantial and compelling government interest in
regulating . . . utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public
information campaigns among candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to
ensure equality of public information campaigns among candidates, as allowing posters with
different sizes gives candidates and their supporters the incentive to post larger posters[,] [and]
[t]his places candidates with more money and/or with deep-pocket supporters at an undue
advantage against candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a
private citizen] to freely express his choice and exercise his right of free speech."258 In any case,
faced with both rights to freedom of speech and equality, a prudent course would be to "try to
resolve the tension in a way that protects the right of participation."259

Second, the pertinent election lawsrelated to private property only require that the private
property owner’s consent be obtained when posting election propaganda in the property.260 This
is consistent with the fundamental right against deprivation of property without due process of
law.261 The present facts do not involve such posting of election propaganda absent consent
from the property owner. Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective

measures to minimize election spending. Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
This does not qualify as a compelling and substantial government interest to justify regulation of
the preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three
feet (3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution
implements the Fair Election Act that provides for the same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State
in guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of
tarpaulins that may be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in
imposing the restriction, but more so at the effects of such restriction, if implemented. The
restriction must not be narrowly tailored to achieve the purpose. It must be demonstrable. It
must allow alternative avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the
maximum sizeof the tarpaulin would render ineffective petitioners’ message and violate their
right to exercise freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when
exercised to make more meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the
electorate. Given the stature of petitioners and their message, there are indicators that this will
cause a "chilling effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of Marshall
McLuhan, "the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has
earlier asserted that "the materials on which words were written down have often counted for
more than the words themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form
of tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality
are really paid for by the candidate or political party. This skirts the constitutional value that
provides for equal opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the
situation that confronts us. In such cases, it will simply be a matter for investigation and proof of
fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected.
It is true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s
real levels of expenditures. However, labelling all expressions of private parties that tend to
have an effect on the debate in the elections as election paraphernalia would be too broad a
remedy that can stifle genuine speech like in this case. Instead, to address this evil, better and
more effective enforcement will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will
spend their own resources in order to lend support for the campaigns. This may be without
agreement between the speaker and the candidate or his or her political party. In lieu of
donating funds to the campaign, they will instead use their resources directly in a way that the
candidate or political party would have doneso. This may effectively skirt the constitutional and
statutory limits of campaign spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties
will carry in their election posters or media ads. The message of petitioner, taken as a whole, is
an advocacy of a social issue that it deeply believes. Through rhetorical devices, it
communicates the desire of Diocese that the positions of those who run for a political position
on this social issue be determinative of how the public will vote. It primarily advocates a stand
on a social issue; only secondarily — even almost incidentally — will cause the election or non-
election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs
such devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may
target any individual or group in society, private and government alike. It seeks to effectively
communicate a greater purpose, often used for "political and social criticism"269 "because it tears
down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty lampooned and spoofed."270 Northrop Frye,
wellknown in this literary field, claimed that satire had two defining features: "one is wit or humor
founded on fantasy or a sense of the grotesque and absurd, the other is an object of
attack."271 Thus, satire frequently uses exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor
could the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of
the candidates in his list was to cause death intentionally. The tarpaulin caricatures political
parties and parodies the intention of those in the list. Furthermore, the list of "Team Patay" is
juxtaposed with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and
contain no sophisticated literary allusion to any social objective. Thus, they usually simply exhort
the public to vote for a person with a brief description of the attributes of the candidate. For
example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa
Makati."
This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human institution no matter how endowed with
the secular ability to decide legal controversies with finality entails that we are not the keepers of
all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest
dissent. Tolerance has always been a libertarian virtue whose version is embedded in our Billof
Rights. There are occasional heretics of yesterday that have become our visionaries.
Heterodoxies have always given us pause. The unforgiving but insistent nuance that the
majority surely and comfortably disregards provides us with the checks upon reality that may
soon evolve into creative solutions to grave social problems. This is the utilitarian version. It
could also be that it is just part of human necessity to evolve through being able to express or
communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value.
Among these are the provisions that acknowledge the idea of equality. In shaping doctrine
construing these constitutional values, this court needs to exercise extraordinary prudence and
produce narrowly tailored guidance fit to the facts as given so as not to unwittingly cause the
undesired effect of diluting freedoms as exercised in reality and, thus, render them meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that
separate at the point of giving priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly
subsidizing, unpopular or dissenting voices often systematically subdued within society’s
ideological ladder.274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that may drown out the
messages of others. This is especially true in a developing or emerging economy that is part of
the majoritarian world like ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always
been a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering
freedoms exercised within such limitation as merely "protect[ing] the already established
machinery of discrimination."275 In his view, any improvement "in the normal course of events"
within an unequal society, without subversion, only strengthens existing interests of those in
power and control.276

In other words, abstract guarantees of fundamental rights like freedom of expression may
become meaningless if not taken in a real context. This tendency to tackle rights in the abstract
compromises liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life:
to be able to determine what to do and what not to do, what to suffer and what not. But the
subject of this autonomy is never the contingent, private individual as that which he actually is or
happens to be; it is rather the individual as a human being who is capable of being free with the
others. And the problem of making possible such a harmony between every individual liberty
and the other is not that of finding a compromise between competitors, or between freedom and
law, between general and individual interest, common and private welfare in an established
society, but of creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to be created even
for the freest of the existing societies.277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and
deliberated by the people — "implies a necessary condition, namely, that the people must be
capable of deliberating and choosing on the basis of knowledge, that they must have access to
authentic information, and that, on this basis, their evaluation must be the result of autonomous
thought."278 He submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace of ideas’ is
organized and delimited by those who determine the national and the individual interest."279 A
slant toward left manifests from his belief that "there is a ‘natural right’ of resistance for
oppressed and overpowered minorities to use extralegal means if the legal ones have proved to
be inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance of libertarian
society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent
protections of expressive liberty,"281 especially by political egalitarians. Considerations such as
"expressive, deliberative, and informational interests,"282 costs or the price of expression, and
background facts, when taken together, produce bases for a system of stringent protections for
expressive liberties.283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis
proposed that "public discussion is a political duty."284 Cass Sustein placed political speech on
the upper tier of his twotier model for freedom of expression, thus, warranting stringent
protection.285 He defined political speech as "both intended and received as a contribution to
public deliberation about some issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince
"favorable conditions for realizing the expressive interest will include some assurance of the
resources required for expression and some guarantee that efforts to express views on matters
of common concern will not be drowned out by the speech of betterendowed citizens."288 Justice
Brandeis’ solution is to "remedy the harms of speech with more speech."289 This view moves
away from playing down the danger as merely exaggerated, toward "tak[ing] the costs seriously
and embrac[ing] expression as the preferred strategy for addressing them."290 However, in
some cases, the idea of more speech may not be enough. Professor Laurence Tribe observed
the need for context and "the specification of substantive values before [equality] has full
meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus, more speech can only mean more speech
from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section
11(b) ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or
giving free of charge print space or air time for campaign or other political purposes, except to
the Commission on Elections."294 This court explained that this provision only regulates the time
and manner of advertising in order to ensure media equality among candidates.295 This court
grounded this measure on constitutional provisions mandating political equality:296 Article IX-C,
Section 4

Section 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect
and enhance the right of all the people to human dignity, reducesocial, 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. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.
 The other view

However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with
the libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional
validity or invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than
affirmative language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the
Constitution protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private
order to their own devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom
of speech includes "not only the right to express one’s views, but also other cognate rights
relevant to the free communication [of] ideas, not excluding the right to be informed on matters
of public concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of
voters and candidates, education, means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter’s resistance to pressure — the utmost
ventilation of opinion of men and issues, through assembly, association and organizations, both
by the candidate and the voter, becomes a sine qua non for elections to truly reflect the will of
the electorate.302 (Emphasis supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:

the concept that the government may restrict the speech of some elements in our society in
order to enhance the relative voice of the others is wholly foreign to the First Amendment which
was designed to "secure the widest possible dissemination of information from diverse and
antagonistic sources" and "to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still
the best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US
Supreme Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions
(even if content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative
voice of others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not
use the equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person
can speak, which takes out of his exclusive judgment the decision of when enough is enough,
deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts
the sum of public information and runs counter to our ‘profound national commitment that
debate on public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result
than on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is
not necessarily to argue that the sky’s the limit [because in] any campaign there are saturation
levels and a point where spending no longer pays off in votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional
respect for human potentiality and the effect of speech. It valorizes the ability of human beings
to express and their necessity to relate. On the other hand, a complete guarantee must also
take into consideration the effects it will have in a deliberative democracy. Skewed distribution
of resources as well as the cultural hegemony of the majority may have the effect of drowning
out the speech and the messages of those in the minority. In a sense, social inequality does
have its effect on the exercise and effect of the guarantee of free speech. Those who have more
will have better access to media that reaches a wider audience than those who have less.
Those who espouse the more popular ideas will have better reception than the subversive and
the dissenters of society.To be really heard and understood, the marginalized view normally
undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or
her expression. This view, thus, restricts laws or regulation that allows public officials to make
judgments of the value of such viewpoint or message content. This should still be the principal
approach.

However, the requirements of the Constitution regarding equality in opportunity must provide
limits to some expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or
the members of their political parties or their political parties may be regulated as to time, place,
and manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club
v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not
candidates or who do not speak as members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are
not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation (a) should be provided by
law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of
all candidates to be heard and considering the primacy of the guarantee of free expression, and
(d) demonstrably the least restrictive means to achieve that object. The regulation must only be
with respect to the time, place, and manner of the rendition of the message. In no situation may
the speech be prohibited or censored onthe basis of its content. For this purpose, it will
notmatter whether the speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be
arbitrary. At certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to the abridgement
of speech with political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations
relating to election propaganda by applying such regulations to private individuals.314 Certainly,
any provision or regulation can be circumvented. But we are not confronted with this possibility.
Respondents agree that the tarpaulin in question belongs to petitioners. Respondents have also
agreed, during the oral arguments, that petitioners were neither commissioned nor paid by any
candidate or political party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
property of petitioners. Their right to use their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be
posted is "so broad that it encompasses even the citizen’s private property."317 Consequently, it
violates Article III, Section 1 of the Constitution which provides thatno person shall be deprived
of his property without due process of law. This court explained:

Property is more than the mere thing which a person owns, it includes the right to acquire, use,
and dispose of it; and the Constitution, in the 14th Amendment, protects these essential
attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the
right to acquire, use, and dispose of it. The Constitution protects these essential attributes of
property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383.
Property consists of the free use, enjoyment, and disposal of a person’s acquisitions without
control or diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley
245 US 60 [1917])318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is
joined by a "liberty" interest, the burden of justification on the part of the Government must be
exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or
display of election propaganda in any place, whether public or private, except inthe common
poster areas sanctioned by COMELEC. This means that a private person cannot post his own
crudely prepared personal poster on his own front dooror on a post in his yard. While the
COMELEC will certainly never require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or regulation, may do. 319 Respondents
ordered petitioners, who are private citizens, to remove the tarpaulin from their own property.
The absurdity of the situation is in itself an indication of the unconstitutionality of COMELEC’s
interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s
infringement upon petitioners’ property rights as in the present case also reaches out to
infringement on their fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote
justifies the intrusion into petitioners’ property rights. Election laws and regulations must be
reasonable. It must also acknowledge a private individual’s right to exercise property rights.
Otherwise, the due process clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of
election propaganda in private property without the consent of the owners of such private
property. COMELEC has incorrectly implemented these regulations. Consistent with our ruling
in Adiong, we find that the act of respondents in seeking to restrain petitioners from posting the
tarpaulin in their own private property is an impermissible encroachments on the right to
property.

V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned
notice and letter violated the right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second
is the free exercise and enjoyment of religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other
religious make such act immune from any secular regulation.324 The religious also have a
secular existence. They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts
to religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to
its Catholic dogma, faith, and moral teachings. . . ."325

The difficulty that often presents itself in these cases stems from the reality that every act can
be motivated by moral, ethical, and religious considerations. In terms of their effect on the
corporeal world, these acts range from belief, to expressions of these faiths, to religious
ceremonies, and then to acts of a secular character that may, from the point of view of others
who do not share the same faith or may not subscribe to any religion, may not have any
religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of

Schools of Cebu326 in claiming that the court "emphatically" held that the adherents ofa
particular religion shall be the ones to determine whether a particular matter shall be considered
ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s Witnesses from
participating in the flag ceremony "out of respect for their religious beliefs, [no matter how]
"bizarre" those beliefsmay seem to others."328 This court found a balance between the assertion
of a religious practice and the compelling necessities of a secular command. It was an early
attempt at accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government
policies that take religion specifically intoaccount not to promote the government’s favored form
of religion, but to allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or
institution’s religion. As Justice Brennan explained, the "government [may] take religion into
account . . . to exempt, when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby be infringed, or to
create without state involvement an atmosphere in which voluntary religious exercise may
flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional
when: (1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3)
it does not foster an excessive entanglement with religion.331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any
religious doctrine of the Catholic church."332 That the position of the Catholic church appears to
coincide with the message of the tarpaulin regarding the RH Law does not, by itself, bring the
expression within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to
candidates classified under "Team Patay" and "Team Buhay" according to their respective votes
on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic
faithful, the church doctrines relied upon by petitioners are not binding upon this court. The
position of the Catholic religion in the Philippines as regards the RH Law does not suffice to
qualify the posting by one of its members of a tarpaulin as religious speech solely on such
basis. The enumeration of candidates on the face of the tarpaulin precludes any doubtas to its
nature as speech with political consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations

Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil
courts as enumerated in the Austriacase such as "proceedings for excommunication,
ordinations of religious ministers, administration of sacraments and other activities withattached
religious significance."334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in
this case. However, it was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce
spending among candidates and their registered political parties. It is not to regulate or limit the
speech of the electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and
party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a
single issue — and a complex piece of legislation at that — can easily be interpreted as
anattempt to stereo type the candidates and party-list organizations. Not all may agree to the
way their thoughts were expressed, as in fact there are other Catholic dioceses that chose not
to follow the example of petitioners.

Some may have thought that there should be more room to consider being more broad-minded
and non-judgmental. Some may have expected that the authors would give more space to
practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental
liberties. It is not a detailed code that prescribes good conduct. It provides space for all to be
guided by their conscience, not only in the act that they do to others but also in judgment of the
acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority.
This can often be expressed by dominant institutions, even religious ones. That they made their
point dramatically and in a large way does not necessarily mean that their statements are true,
or that they have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention,
cause debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners
of their ecclesiastical duty, but their parishioner’s actions will have very real secular
consequences. Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate
that tends to rouse the public to debate contemporary issues. This is not speechby candidates
or political parties to entice votes. It is a portion of the electorate telling candidates the
conditions for their election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is
protected as a fundamental and primordial right by our Constitution. The expression in the
medium chosen by petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously
issued is hereby made permanent. The act of the COMELEC in issuing the assailed notice
dated February 22, 2013 and letter dated February 27, 2013 is declared unconstitutional.

SO ORDERED.

MARVIC M.V.F. LEONEN

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 CASTRO ARTURO D. BRION*

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO MARTN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

No Part
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

Case 10: Carpio – Morales v Court of Appeals

EN BANC
[ G.R. Nos. 217126-27, November 10, 2015 ]
 CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN, PETITIONER,
VS. COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY, JR.,
RESPONDENTS.

DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and immemorially
acknowledged so to be[.]"[1]

The Case

Before the Court is a petition for certiorari and prohibition[2] filed on March 25, 2015 by petitioner
Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the Office
of the Solicitor General (OSG), assailing: (a) the Resolution[3] dated March 16, 2015 of public
respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private
respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the implementation of the Joint Order[4] dated March 10, 20,15
of the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City Government of
Makati, for six (6) months without pay; and (b) the Resolution[5] dated March 20, 2015 of the CA,
ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt[6] in CA-G.R. SP No.
139504.

Pursuant to the Resolution[7] dated April 6, 2015, the CA issued a writ of preliminary
injunction[8] (WPI) in CA-G.R. SP No. 139453 which further enjoined the implementation of the
preventive suspension order, prompting the Ombudsman to file a supplemental petition[9] on
April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit[10] was filed by Atty. Renato L. Bondal and Nicolas
"Ching" Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public
officers and employees of the City Government of Makati (Binay, Jr., et al), accusing them of
Plunder[11] and violation of Republic Act No. (RA) 3019,[12] otherwise known as "The Anti-Graft
and Corrupt Practices Act," in connection with the five (5) phases of the procurement and
construction of the Makati City Hall Parking Building (Makati Parking Building). [13]

On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators[14] to

conduct a fact-finding investigation, submit an investigation report, and file the necessary
complaint, if warranted (1st Special Panel).[15]Pursuant to the Ombudsman's directive, on March
5, 2015, the 1st Special Panel filed a complaint[16] (OMB Complaint) against Binay, Jr., et al,
charging them with six (6) administrative cases[17] for Grave Misconduct, Serious Dishonesty,
and Conduct Prejudicial to the Best Interest of the Service, and six (6) criminal cases[18] for
violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification of Public
Documents (OMB Cases).[19]

As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities
attending the following procurement and construction phases of the Makati Parking Building
project, committed during his previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)[20]

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award[21] for Phase III of the Makati
Parking Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently,
executed the corresponding contract[22]on September 28, 2010,[23] without the required
publication and the lack of architectural design,[24] and approved the release of funds therefor in
the following amounts as follows: (1) P130,518,394.80 on December 15, 2010;[25](2)
P134,470,659.64 on January 19, 2011;[26] (3) P92,775,202.27 on February 25, 2011;[27] (4)
P57,148,625.51 on March 28, 2011;[28] (5) P40,908,750.61 on May 3, 2011;[29] and (6)
P106,672,761.90 on July 7, 2011;[30]

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award[31] for Phase IV of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract[32] on August 18, 2011,[33] without the required publication and the lack of architectural
design,[34] and approved the release of funds therefor in the following amounts as follows: (1)
P182,325,538.97 on October 4, 2O11;[35] (2) P173,132,606.91 on October 28,2011;[36] (3)
P80,408,735.20 on December 12, 2011;[37] (4) P62,878,291.81 on February 10, 2012;[38] and (5)
P59,639,167.90 on October 1, 2012;[39]

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award[40] for Phase V of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract[41] on September 13, 2012,[42] without the required publication and the lack of
architectural design,[43] and approved the release of the funds therefor in the amounts of
P32,398,220.05[44] and P30,582,629.30[45] on December 20, 2012; and

Binay, Jr.'s Second Term (2013 to 2016)[46]

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining
balance of the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking
Building project in the amount of P27,443,629.97;[47] and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract[48] with MANA Architecture & Interior Design Co. (MANA) for the design and
architectural services covering the Makati Parking Building project in the amount of
P429,011.48.[49]

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2nd Special
Panel).[50] Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders[51] for
each of the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.[52]

Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the
recommendation of the 2ndSpecial Panel, issued on March 10, 2015, the subject preventive
suspension order, placing Binay, Jr., et al. under preventive suspension for not more than six (6)
months without pay, during the pendency of the OMB Cases.[53] The Ombudsman ruled that the
requisites for the preventive suspension of a public officer are present,[54] finding that: (a) the
evidence of Binay, Jr., et al.'s guilt was strong given that (1) the losing bidders and members of
the Bids and Awards Committee of Makati City had attested to the irregularities attending the
Makati Parking Building project; (2) the documents on record negated the publication of bids;
and (3) the disbursement vouchers, checks, and official receipts showed the release of funds;
and (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious
Dishonesty, and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if
proven to be true, warrant removal from public service under the Revised Rules on
Administrative Cases in the Civil Service (RRACCS), and (3) Binay, Jr., et al.'s respective
positions give them access to public records and allow them to influence possible witnesses;
hence, their continued stay in office may prejudice the investigation relative to the OMB Cases
filed against them.[55] Consequently, the Ombudsman directed the Department of Interior and
Local Government (DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to
immediately implement the preventive suspension order against Binay, Jr., et al., upon receipt
of the same.[56]

On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City
Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s staff.[57]

The Proceedings Before the CA

On even date,[58] Binay, Jr. filed a petition for certiorari[59] before the CA, docketed as CA-G.R.
SP No. 139453, seeking the nullification of the preventive suspension order, and praying for the
issuance of a TRO and/or WPI to enjoin its implementation.[60] Primarily, Binay, Jr. argued that
he could not be held administratively liable for any anomalous activity attending any of the five
(5) phases of the Makati Parking Building project since: (a) Phases I and II were undertaken
before he was elected Mayor of Makati in 2010; and (b) Phases III to V transpired during his first
term and that his re-election as City Mayor of Makati for a second term effectively condoned his
administrative liability therefor, if any, thus rendering the administrative cases against him moot
and academic.[61]In any event, Binay, Jr. claimed that the Ombudsman's preventive suspension
order failed to show that the evidence of guilt presented against him is strong, maintaining that
he did not participate in any of the purported irregularities.[62] In support of his prayer for
injunctive relief, Binay, Jr. argued that he has a clear and unmistakable right to hold public
office, having won by landslide vote in the 2010 and 2013 elections, and that, in view of the
condonation doctrine, as well as the lack of evidence to sustain the charges against him, his
suspension from office would undeservedly deprive the electorate of the services of the person
they have conscientiously chosen and voted into office.[63]

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the
preventive suspension order through the DILG National Capital Region - Regional Director,
Renato L. Brion, CESO III (Director Brion), who posted a copy thereof on the wall of the Makati
City Hall after failing to personally serve the same on Binay, Jr. as the points of entry to the
Makati City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C.
Evangelista administered the oath of office on Makati City Vice Mayor Romulo V. Peña, Jr.
(Peña, Jr.) who thereupon assumed office as Acting Mayor.[64]

At noon of the same day, the CA issued a Resolution[65] (dated March 16, 2015), granting Binay,
Jr.'s prayer for a TRO,[66] notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor
earlier that day.[67] Citing the case of Governor Garcia, Jr. v. CA,[68] the CA found that it was
more prudent on its part to issue a TRO in view of the extreme urgency of the matter and
seriousness of the issues raised, considering that if it were established that the acts subject of
the administrative cases against Binay, Jr. were all committed during his prior term, then,
applying the condonation doctrine, Binay, Jr.'s re-election meant that he can no longer be
administratively charged.[69] The CA then directed the Ombudsman to comment on Binay, Jr.'s
petition for certiorari.[70]

On March 17, 2015, the Ombudsman manifested[71] that the TRO did not state what act was
being restrained and that since the preventive suspension order had already been served and
implemented, there was no longer any act to restrain.[72]
On the same day, Binay, Jr. filed a petition for contempt,[73] docketed as CA-G.R. SP No.
139504, accusing Secretary Roxas, Director Brion, the officials of the Philippine National Police,
and Pena, Jr. of deliberately refusing to obey the CA, thereby allegedly impeding, obstructing, or
degrading the administration of justice.[74] The Ombudsman and Department of Justice
Secretary Leila M. De Lima were subsequently impleaded as additional respondents upon
Binay, Jr.'s filing of the amended and supplemental petition for contempt[75] (petition for
contempt) on March 19, 2015.[76] Among others, Binay, Jr. accused the Ombudsman and other
respondents therein for willfully and maliciously ignoring the TRO issued by the CA against the
preventive suspension order.[77]

In a Resolution[78] dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s
petition for contempt, directed the Ombudsman to file her comment thereto.[79] The cases were
set for hearing of oral arguments on March 30 and 31, 2015.[80]

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the
Ombudsman filed the present petition before this Court, assailing the CA's March 16, 2015
Resolution, which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the
March 20, 2015 Resolution directing her to file a comment on Binay, Jr.'s petition for contempt
in CA-G.R. SP No. 139504.[81] The Ombudsman claims that: (a) the CA had no jurisdiction to
grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA 6770,[82] or "The Ombudsman Act of
1989," which states that no injunctive writ could be issued to delay the Ombudsman's
investigation unless there is prima facie evidence that the subject matter thereof is outside the
latter's jurisdiction;[83] and (b) the CA's directive for the Ombudsman to comment on Binay, Jr.'s
petition for contempt is illegal and improper, considering that the Ombudsman is an
impeachable officer, and therefore, cannot be subjected to contempt proceedings.[84]

In his comment[85] filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial power to review acts of any branch or
instrumentality of government, including the Office of the Ombudsman, in case of grave abuse
of discretion amounting to lack or excess of jurisdiction, which he asserts was committed in this
case when said office issued the preventive suspension order against him.[86] Binay, Jr. posits
that it was incumbent upon the Ombudsman to1 have been apprised of the condonation
doctrine as this would have weighed heavily in determining whether there was strong evidence
to warrant the issuance of the preventive suspension order.[87] In this relation, Binay, Jr.
maintains that the CA correctly enjoined the implementation of the preventive suspension order
given his clear and unmistakable right to public office, and that it is clear that he could not be
held administratively liable for any of the charges against him since his subsequent re-election
in 2013 operated as a condonation of any administrative offenses he may have committed
during his previous term.[88] As regards the CA's order for the Ombudsman to comment on his
petition for contempt, Binay, Jr. submits that while the Ombudsman is indeed an impeachable
officer and, hence, cannot be removed from office except by way of impeachment, an action for
contempt imposes the penalty of fine and imprisonment, without necessarily resulting in removal
from office. Thus, the fact that the Ombudsman is an impeachable officer should not deprive the
CA of its inherent power to punish contempt.[89]

Meanwhile, the CA issued a Resolution[90] dated April 6, 2015, after the oral arguments before it
were held,[91]granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of
 the preventive suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible
right to the final relief prayed for, namely, the nullification of the preventive suspension order, in
view of the condonation doctrine, citing Aguinaldo v. Santos.[92] Particularly, it found that the
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-
election in 2013 as City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from 2007 to 2013.[93] In this
regard, the CA added that, although there were acts which were apparently committed by Binay,
Jr. beyond his first term — namely, the alleged payments on July 3, July 4, and July 24,
2013,[94] corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,[95] and Mayor
Garcia v. Mojica[96]wherein the condonation doctrine was still applied by the Court although the
payments were made after the official's re-election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election.[97] To this, the CA added that
there was no concrete evidence of Binay, Jr.'s participation for the alleged payments made on
July 3, 4, and 24, 2013.[98]

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition[99] before this Court, arguing that the condonation
doctrine is irrelevant to the determination of whether the evidence of guilt is strong for purposes
of issuing preventive suspension orders. The Ombudsman also maintained that a reliance on
the condonation doctrine is a matter of defense, which should have been raised by Binay, Jr.
before it during the administrative proceedings, and that, at any rate, there is no condonation
because Binay, Jr. committed acts subject of the OMB Complaint after his re-election in
2013.[100]

On April 14 and 21, 2015,[101] the Court conducted hearings for the oral arguments of the
parties. Thereafter, they were required to file their respective memoranda.[102] In compliance
thereto, the Ombudsman filed her Memorandum[103] on May 20, 2015, while Binay, Jr. submitted
his Memorandum the following day.[104]

Pursuant to a Resolution[105] dated June 16, 2015, the Court directed the parties to comment on
each other's memoranda, and the OSG to comment on the Ombudsman's Memorandum, all
within ten (10) days from receipt of the notice.

On July 15, 2015, both parties filed their respective comments to each other's
memoranda.[106] Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of
Comment,[107] simply stating that it was mutually agreed upon that the Office of the Ombudsman
would file its Memorandum, consistent with its desire to state its "institutional position."[108] In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded, among
others, that this Court abandon the condonation doctrine.[109] In view of the foregoing, the case
was deemed submitted for resolution.

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted
before this Court, the main issues to be resolved in seriatim are as follows:

I. Whether or not the present petition, and not motions for reconsideration of the assailed CA
issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the Ombudsman's
plain, speedy, and adequate remedy;
 II. Whether or not the CA has subject matter jurisdiction over the main petition for certiorari in
CA-G.R. SP No. 139453;
III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining
the implementation of a preventive suspension order issued by the Ombudsman;
IV. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the
WPI in CA-G.R. SP No. 139453 enjoining the implementation of the preventive suspension
order against Binay, Jr. based on the condonation doctrine; and
V. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s petition
for contempt in CA- G.R. SP No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.

I.

A common requirement to both a petition for certiorari and a petition for prohibition taken under
Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy,
and adequate remedy in the ordinary course of law. Sections 1 and 2 thereof provide:

Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.

xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any other plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts r with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and justice may require.

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court
prior to resorting to the extraordinary remedy of certiorari or prohibition since a motion for
reconsideration may still be considered as a plain, speedy, and adequate remedy in the ordinary
course of law. The rationale for the pre-requisite is to grant an opportunity for the lower court or
agency to correct any actual or perceived error attributed to it by the re-examination of the legal
and factual circumstances of the case.[110]

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the
propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly
relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower
court or agency, x x x."[111]

In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a
petition for prohibition.[112] These are: (a) where the order is a patent nullity, as where the court a
quo has no jurisdiction; (b) where the questions raised in the certiorariproceedings have been
duly raised and passed upon by the lower court, or are the same as those raised and passed
upon in the lower court; (c) where there is an urgent necessity for the resolution of the question
and any further delay would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was deprived of due process and there is
extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable; (g) where the proceedings in the
lower court are a nullity for lack of due process; (h) where the proceedings were ex parte or in
which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of
law or where public interest is involved.[113]

In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first
time, the question on the authority of the CA - and of this Court, for that matter - to enjoin the
implementation of a preventive suspension order issued by the Office of the Ombudsman is put
to the fore. This case tests the constitutional and statutory limits of the fundamental powers of
key government institutions - namely, the Office of the Ombudsman, the Legislature, and the
Judiciary - and hence, involves an issue of transcendental public importance that demands no
less than a careful but expeditious resolution. Also raised is the equally important issue on the
propriety of the continuous application of the condonation doctrine as invoked by a public officer
who desires exculpation from administrative liability. As such, the Ombudsman's direct resort
to certiorari and prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No.
139504 before the CA, is justified.

II.

Albeit raised for the first time by the Ombudsman in her Memorandum,[114] it is nonetheless
proper to resolve the issue on the CA's lack of subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453, in view of the well-established rule that a court's
jurisdiction over the subject matter may be raised at any stage of the proceedings. The rationale
is that subject matter jurisdiction is conferred by law, and the lack of it affects the very authority
of the court to take cognizance of and to render judgment on the action.[115] Hence, it should be
preliminarily determined if the CA indeed had subject matter jurisdiction over the main CA-G.R.
SP No. 139453 petition, as the same determines the validity of all subsequent proceedings
relative thereto. It is noteworthy to point out that Binay, Jr. was given the opportunity by this
Court to be heard on this issue,[116] as he, in fact, duly submitted his opposition through his
comment to the Ombudsman's Memorandum.[117] That being said, the Court perceives no
reasonable objection against ruling on this issue.

The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main
petition, and her corollary prayer for its dismissal, is based on her interpretation of Section 14,
RA 6770, or the Ombudsman Act,[118]which reads in full:
Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office
of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court[119]) from issuing a writ of injunction to delay an investigation being conducted by
the Office of the Ombudsman. Generally speaking, "[injunction is a judicial writ, process or
proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the
main action or merely a provisional remedy for and as an incident in the main
action."[120]Considering the textual qualifier "to delay," which connotes a suspension of an action
while the main case remains pending, the "writ of injunction" mentioned in this paragraph could
only refer to injunctions of the provisional kind, consistent with the nature of a provisional
injunctive relief.

The exception to the no injunction policy is when there is prima facie evidence that the subject
matter of the investigation is outside the office's jurisdiction. The Office of the Ombudsman has
disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies, with the exception only of impeachable officers,
Members of Congress, and the Judiciary.[121] Nonetheless, the Ombudsman retains the power to
investigate any serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if
warranted.[122] Note that the Ombudsman has concurrent jurisdiction over certain administrative
cases which are within the jurisdiction of the regular courts or administrative agencies, but has
primary jurisdiction to investigate any act or omission of a public officer or employee who is
under the jurisdiction of the Sandiganbayan.[123]

On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or
application for remedy may be heard against the decision or findings of the Ombudsman, with
the exception of the Supreme Court on pure questions of law. This paragraph, which the
Ombudsman particularly relies on in arguing that the CA had no jurisdiction over the main CA-
G.R. SP No. 139453 petition, as it is supposedly this Court which has the sole jurisdiction to
conduct a judicial review of its decisions or findings, is vague for two (2) reasons: (1) it is
unclear what the phrase "application for remedy" or the word "findings" refers to; and (2) it does
not specify what procedural remedy is solely allowable to this Court, save that the same be
taken only against a pure question of law. The task then, is to apply the relevant principles of
statutory construction to resolve the ambiguity.

"The underlying principle of all construction is that the intent of the legislature should be sought
in the words employed to express it, and that when found[,] it should be made to govern, x x x. If
the words of the law seem to be of doubtful import, it may then perhaps become necessary to
look beyond them in order to ascertain what was in the legislative mind at the time the law was
enacted; what the circumstances were, under which the action was taken; what evil, if any, was
meant to be redressed; x x x [a]nd where the law has contemporaneously been put into
operation, and in doing so a construction has necessarily been put upon it, this construction,
especially if followed for some considerable period, is entitled to great respect, as being very
probably a true expression of the legislative purpose, and is not lightly to be overruled, although
it is not conclusive."[124]

As an aid to construction, courts may avail themselves of the actual proceedings of the
legislative body in interpreting a statute of doubtful meaning. In case of doubt as to what a
provision of a statute means, the meaning put to the provision during the legislative
deliberations may be adopted,[125] albeit not controlling in the interpretation of the law.[126]

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on
the matter of judicial review of her office's decisions or findings, is supposedly clear from the
following Senate deliberations:[127]

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition
for" delete the word "review" and in lieu thereof, insert the word CERTIORARI. So that, review
or appeal from the decision of the Ombudsman would only be taken not on a petition for review,
but on certiorari.

The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to
reverse the decision under review?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts
of the Ombudsman would be almost conclusive if supported by substantial evidence. Second,
we would not unnecessarily clog the docket of the Supreme Court. So, it in effect will be a very
strict appeal procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive
remedies available to a respondent, the respondent himself has the right to exhaust the
administrative remedies available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme
Court only on certiorari?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f no certiorari available, is the respondent given the
right to exhaust his administrative remedies first before the Ombudsman can take the
appropriate action?
Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law
principle that before one can go to court, he must exhaust all administrative remedies xxx
available to him before he goes and seeks judicial review.

xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of
appeal from one of a petition for review to a petition for certiorari?

Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the
effect that the finding of facts of the Ombudsman is conclusive if supported by substantial
evidence.

Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I
concur, that in an appeal by certiorari, the appeal is more difficult. Because in certiorari it is a
matter of discretion on the part of the court, whether to give due course to the petition or dismiss
it outright. Is that not correct, Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari, the issue is limited to whether or not the
Ombudsman here has acted without jurisdiction and has committed a grave abuse of discretion
amounting to lack of jurisdiction. Is that not the consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to
make it harder to have a judicial review, but should be limited only to cases that I have
enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a
petition for review and a petition for certiorari; because before, under the 1935 Constitution
appeal from any order, ruling or decision of the COMELEC shall be by means of review. But
under the Constitution it is now by certiorari and the Supreme Court said that by this change,
the court exercising judicial review will not inquire into the facts, into the evidence, because we
will not go deeply by way of review into the evidence on record but its authority will be limited to
a determination of whether the administrative agency acted without, or in excess of, jurisdiction,
or committed a grave abuse of discretion. So, I assume that that is the purpose of this
amendment, Mr. President.

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated,
Mr. President.

xxxx

The President. It is evident that there must be some final authority to render decisions. Should it
be the Ombudsman or should it be the Supreme Court?
Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and
has to be the Supreme Court to make the final determination.

The President. Then if that is so, we have to modify Section 17.

Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation
to introduce an appropriate change during the period of Individual Amendments.

xxxx

The President. All right. Is there any objection to the amendment inserting the
word CERTIORARI instead of "review"? [Silence] Hearing none, the same is approved.[128]

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the
provision debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the
exchange begins with the suggestion of Senator Angara to delete the word "review" that comes
after the phrase "petition for review" and, in its stead, insert the word "certiorari" so that the
"review or appeal from the decision of the Ombudsman would not only be taken on a petition for
review, but on certiorari" The ensuing exchange between Senators Gonzales and Angara then
dwells on the purpose of changing the method of review from one of a petition for review to a
petition for certiorari - that is, to make "the appeal x x x more difficult." Ultimately, the
amendment to the change in wording, from "petition for review" to "petition for certiorari" was
approved.

Noticeably, these references to a "petition for review" and the proposed "petition for certiorari"
are nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that
this provision, particularly its second paragraph, does not indicate what specific procedural
remedy one should take in assailing a decision or finding of the Ombudsman; it only reveals that
the remedy be taken to this Court based on pure questions of law. More so, it was even
commented upon during the oral arguments of this case[129] that there was no debate or
clarification made on the current formulation of the second paragraph of Section 14, RA 6770
per the available excerpts of the Senate deliberations. In any case, at least for the above-cited
deliberations, the Court finds no adequate support to sustain the Ombudsman's entreaty that
the CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.

On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually
reflects the approval of Senator Angara's suggested amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition for certiorari to this Court (fourth paragraph),
and further, his comment on the conclusive nature of the factual findings of the Ombudsman, if
supported by substantial evidence (third paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman
must be filed within five (5) days after receipt of written notice and shall be entertained only on
any of the following grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant.
The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That
only one motion for reconsideration shall be entertained.
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are
conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand,
suspension of not more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten
(10) days from receipt of the written notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the ' Ombudsman as the interest
of justice may require. (Emphasis and underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition
for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-
known that under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed
by Rule 65 of the said Rules. However, it should be discerned that the Ombudsman Act was
passed way back in 1989[130] and, hence, before the advent of the 1997 Rules of Civil
Procedure.[131] At that time, the governing 1964 Rules of Court,[132] consistent with Section 27,
RA 6770, referred to the appeal taken thereunder as a petition for certiorari, thus possibly
explaining the remedy's textual denomination, at least in the provision's final approved version:

RULE 45
Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari, from a
judgment of the Court of Appeals, by filing with the Supreme Court a petition for certiorari, within
fifteen (15) days from notice of judgment or of the denial of his motion for reconsideration filed in
due time, and paying at the same time, to the clerk of said court the corresponding docketing
fee. The petition shall not be acted upon without proof of service of a copy thereof to the Court
of Appeals. (Emphasis supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the
meaning of the provision.

To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any
appeal or application for remedy against the decision or findings of the Ombudsman, except the
Supreme Court, on pure question of law." ;

As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of
remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal against any
decision or finding of the Ombudsman, and (b) "any application of remedy" (subject to the
exception below) against the same. To clarify, the phrase "application for remedy," being a
generally worded provision, and being separated from the term "appeal" by the disjunctive
"or",[133] refers to any remedy (whether taken mainly or provisionally), except an appeal,
following the maxim generalia verba sunt generaliter intelligenda: general words are to be
understood in a general sense.[134] By the same principle, the word "findings," which is also
separated from the word "decision" by the disjunctive "or", would therefore refer to any finding
made by the Ombudsman (whether final or provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the
specific procedural vehicle is not explicit from its text, it is fairly deducible that the second
paragraph of Section 14, RA 6770 excepts, as the only allowable remedy against "the decision
or findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy taken
to the Supreme Court on "pure questions of law," whether under the 1964 Rules of Court or the
1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters
involved, the assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the judgment sought
to be reviewed, together with twelve (12) copies of the record on appeal, if any, and of the
petitioner's brief as filed in the Court of Appeals. A verified statement of the date when notice of
judgment and denial of the motion for reconsideration, if any, were received shall accompany
the petition.

Only questions of law may be raised in the petition and must be distinctly set forth. If no record
on appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon
admission of the petition, shall demand from the Court of Appeals the elevation of the whole
record of the case. (Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45
Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an
application for a writ of preliminary injunction or other provisional remedies and shall raise only
questions of law, which must be distinctly set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the same action or proceeding at any time during
its pendency. (Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a
suggestion that defies traditional norms of procedure. It is basic procedural law that a Rule 65
petition is based on errors of jurisdiction, and not errors of judgment to which the classifications
of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact and law, relate to. In
fact, there is no procedural rule, whether in the old or new Rules, which grounds a Rule 65
petition on pure questions of law. Indeed, it is also a statutory construction principle that the
lawmaking body cannot be said to have intended the establishment of conflicting and hostile
systems on the same subject. Such a result would render legislation a useless and idle
ceremony, and subject the laws to uncertainty and unintelligibility.[135] There should then be no
confusion that the second paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to this
Court, and no other. In sum, the appropriate construction of this Ombudsman Act provision is
that all remedies against issuances of the Office of the Ombudsman are prohibited, except the
above-stated Rule 45 remedy to the Court on pure questions of law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal -which is within the sphere of the rules of
procedure promulgated by this Court - can only be taken against final decisions or orders of
lower courts,[136] and not against "findings" of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure; hence, it cannot alter the scope of a
Rule 45 appeal so as to apply to interlocutory "findings" issued by the Ombudsman. More
significantly, by confining the remedy to a Rule 45 appeal, the provision takes away the remedy
of certiorari, grounded on errors of jurisdiction, in denigration of the judicial power
constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770 also
increased this Court's appellate jurisdiction, without a showing, however, that it gave its consent
to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA
6770 (as above-cited), which was invalidated in the case of Fabian v. Desiertoni[137] (Fabian).[138]

In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as
unconstitutional since it had the effect of increasing the appellate jurisdiction of the Court
without its advice and concurrence in violation of Section 30, Article VI of the 1987
Constitution.[139] Moreover, this provision was found to be inconsistent with Section 1, Rule 45 of
the present 1997 Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-judicial
agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the
Court of Appeals. In Ruivivar v. Office of the Ombudsman,[140] the Court's ratiocinations and
ruling in Fabian were recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of
R.A. No. 6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of
Procedure of the Office of the Ombudsman) on the availability of appeal before the Supreme
Court to assail a decision or order of the Ombudsman in administrative cases. In Fabian, we
invalidated Section 27 of R.A. No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other
rules implementing the Act) insofar as it provided for appeal by certiorari under Rule 45 from the
decisions or orders of the Ombudsman in administrative cases. We held that Section 27 of R.A.
No. 6770 had the effect, not only of increasing the appellate jurisdiction of this Court without its
advice and concurrence in violation of Section 30, Article VI of the Constitution; it was also
inconsistent with Section 1, Rule 45 of the Rules of Court which provides that a petition for
review on certiorari shall apply only to a review of "judgments or final orders of the Court of
Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other courts
authorized by law." We pointedly said:
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be
struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals
from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from
decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken
to the CA under the provisions of Rule 43.[141] (Emphasis supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or
findings" of the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of
Section 27, RA 6770[142] - attempts to effectively increase the Supreme Court's appellate
jurisdiction without its advice and concurrence,[143] it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing,[144] Fabian should squarely apply since the above-stated Ombudsman Act provisions
are in part materia in that they "cover the same specific or particular subject matter,"[145] that is,
the manner of judicial review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the
existence of the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition,
including all subsequent proceedings relative thereto, as the Ombudsman herself has
developed, the Court deems it proper to resolve this issue ex mero motu (on its own motion[146]).
This procedure, as was similarly adopted in Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by
a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we
shall explain.

Since the constitution is intended for the observance of the judiciary and other departments of
the government and the judges are sworn to support its provisions, the courts are not at liberty
to overlook or disregard its commands or countenance evasions thereof. When it is clear , that a
statute transgresses the authority vested in a legislative body, it is the duty of the courts to
declare that the constitution, and not the statute, governs in a case before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in
the pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude
a court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks
jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine
whether or not it has jurisdiction, it necessarily follows that it may inquire into the
constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily
rejected unless the jurisdiction of the court below or that of the appellate court is involved in
which case it may be raised at any time or on the court's own motion. The Court ex mero
motu may take cognizance of lack of jurisdiction at any point in the case where that fact is
developed. The court has a clearly recognized right to determine its own jurisdiction in any
proceeding.[147] (Emphasis supplied)

D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr.
before the CA in order to nullify the preventive suspension order issued by the Ombudsman, an
interlocutory order,[148] hence, unappealable.[149]
In several cases decided after Fabian, the Court has ruled that Rule 65 petitions
for certiorari against unappelable issuances[150] of the Ombudsman should be filed before the
CA, and not directly before this Court:

In Office of the Ombudsman v. Capulong[151] (March 12, 2014), wherein a preventive

suspension order issued by the Office of the Ombudsman was - similar to this case - assailed
through a Rule 65 petition for certiorari filed by the public officer before the CA, the Court held
that "[t]here being a finding of grave abuse of discretion on the part of the Ombudsman, it was
certainly imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule
65."[152]

In Dagan v. Office of the Ombudsman[153] (November 19, 2013), involving a Rule 65 petition for
certiorari assailing a final and unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that "petitioner employed the correct mode of review in
this case, i.e., a special civil action for certiorari before the Court of Appeals."[154] In this relation,
it stated that while "a special civil action for Certiorari is within the concurrent original jurisdiction
of the Supreme Court and the Court of Appeals, such petition should be initially filed with the
Court of Appeals in observance of the doctrine of hierarchy of courts." Further, the Court
upheld Barata v. Abalos, Jr.[155](June 6, 2001), wherein it was ruled that the remedy against final
and unappealable orders of the Office of the Ombudsman in an administrative case was a Rule
65 petition to the CA. The same verdict was reached in Ruivivar[156] (September 16, 2008).

Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes that the CA has subject matter jurisdiction over
the main CA-G.R. SP No. 139453 petition. That being said, the Court now examines the
objections of the Ombudsman, this time against the CA's authority to issue the assailed TRO
and WPI against the implementation of the preventive suspension order, incidental to that main
case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has
no jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive
suspension orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in
conjunction with her office's independence under the 1987 Constitution. She advances the idea
that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it from
judicial intervention,"[157] particularly, "from injunctive reliefs traditionally obtainable from the
courts,"[158]claiming that said writs may work "just as effectively as direct harassment or political
pressure would."[159]

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas[,] and Mindanao. A separate Deputy for the military establishment may likewise
be appointed. (Emphasis supplied)
In Gonzales III v. Office of the President[160] (Gonzales III), the Court traced the historical
underpinnings of the Office of the Ombudsman:

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the ( 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree
(PD) No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the
Ombudsman to be known as Tanodbayan. It was tasked principally to investigate, on complaint
or motu proprio, any administrative act of any administrative agency, including any government-
owned or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979,
the powers previously vested in the Special Prosecutor were transferred to the Tanodbayan
himself. He was given the exclusive authority to conduct preliminary investigation of all cases
cognizable by the Sandiganbayan, file the corresponding information, and control the
prosecution of these cases.

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II
and the standard of accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive
and effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest lives.[161] (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's mandate, and in
correlation, the impetus behind its independence:

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is
envisioned to be the "protector of the people" against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action bureau. This constitutional vision
of a Philippine Ombudsman practically intends to make the Ombudsman an authority to directly
check and guard against the ills, abuses and excesses , of the bureaucracy. Pursuant to
Section 13 (8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it
to further realize the vision of the Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of the
Government and its subdivisions, instrumentalities, and agencies, including Members of the
Cabinet, local government, government-owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by impeachment or over Members of Congress,
and the Judiciary.
As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its
actions, although not squarely falling under the broad powers granted [to] it by the Constitution
and by RA No. 6770, if these actions are reasonably in line with its official function and
consistent with the law and the Constitution.

The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit
to insulate the Office of the Ombudsman from the pressures and influence of officialdom and
partisan politics and from fear of external reprisal by making it an "independent" office, x x x.

xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies." It has powers, both constitutional and statutory, that are commensurate ,
with its daunting task of enforcing accountability of public officers.[162] (Emphasis and
underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the Ombudsman's
independence vis-a-vis the independence of the other constitutional bodies. Pertinently, the
Court observed:

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics - they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy.
In general terms, the framers of the Constitution intended that these 'independent' bodies be
insulated from political pressure to the extent that the absence of 'independence' would result in
the impairment of their core functions"[163];

(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only [of] the express mandate of the Constitution, but especially as
regards the Supreme Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based";[164] and

(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for
independence. In the deliberations of the 1973 Constitution, the delegates amended the 1935
Constitution by providing for a constitutionally-created Civil Service Commission, instead of one
created by law, on the premise that the effectivity of this body is dependent on its freedom from
the tentacles of politics. In a similar manner, the deliberations of the 1987 Constitution on the
Commission on Audit highlighted the developments in the past Constitutions geared towards
insulating the Commission on Audit from political pressure."[165]

At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office
of the Ombudsman, as well as that of the foregoing independent bodies, meant freedom from
control or supervision of the Executive Department:
[T]he independent constitutional commissions have been consistently intended by the framers
to be independent from executive control or supervision or any form of political influence. At
least insofar as these bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we
emphasized that the Constitutional Commissions, which have been characterized under the
Constitution as "independent," are not under the control of the President, even if they discharge
functions that are executive in nature. The Court declared as unconstitutional the President's act
of temporarily appointing the respondent in that case as Acting Chairman of the [Commission on
Elections] "however well-meaning" it might have been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that
the tenure of the commissioners of the independent Commission on Human Rights could not be
placed under the discretionary power of the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior
- but is similar in degree and kind - to the independence similarly guaranteed by the Constitution
to the Constitutional Commissions since all these offices fill the political interstices of a
republican democracy that are crucial to its existence and proper functioning.[166] (Emphases
and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a]
Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process," partially
unconstitutional insofar as it subjected the Deputy Ombudsman to the disciplinary authority of
the President for violating the principle of independence. Meanwhile, the validity of Section 8
(2), RA 6770 was maintained insofar as the Office of the Special Prosecutor was concerned
since said office was not considered to be constitutionally within the Office of the Ombudsman
and is, hence, not entitled to the independence the latter enjoys under the Constitution.[167]

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's
independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law,
unless the Constitution itself allows, or an amendment thereto is made;

Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom
to use or dispose of [its] funds for purposes germane to [its] functions;[168] hence, its budget
cannot be strategically decreased by officials of the political branches of government so as to
impair said functions; and

Third: insulation from executive supervision and control, which means that those within the
ranks of the office can only be disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the Ombudsman
from political harassment and pressure, so as to free it from the "insidious tentacles of
politics."[169]
That being the case, the concept of Ombudsman independence cannot be invoked as basis to
insulate the Ombudsman from judicial power constitutionally vested unto the courts. Courts are
apolitical bodies, which are ordained to act as impartial tribunals and apply even justice to all.
Hence, the Ombudsman's notion that it can be exempt from an incident of judicial power - that
is, a provisional writ of injunction against a preventive suspension order - clearly strays from the
concept's rationale of insulating the office from political harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.

The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it

remains that the first paragraph of Section 14, RA 6770 textually prohibits courts from extending
provisional injunctive relief to delay any investigation conducted by her office. Despite the usage
of the general phrase "[n]o writ of injunction shall be issued by any court," the Ombudsman
herself concedes that the prohibition does not cover the Supreme Court.[170] As support, she
cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I
would just like to inquire for the record whether below the Supreme Court, it is understood that
there is no injunction policy against the Ombudsman by lower courts. Or, is it necessary to have
a special paragraph for that?

Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction
against the Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this being one of the highest
constitutional bodies, is to subject this only to certiorari to the Supreme Court. I think an
injunction from the Supreme Court is, of course, in order but no lower courts should be allowed
to interfere. We had a very bad experience with even, let us say, the Forestry Code where no
injunction is supposed to be issued against the Department of Natural Resources. Injunctions
are issued right and left by RTC judges all over the country.

The President. Why do we not make an express provision to that effect?

Senator Angara. We would welcome that, Mr. President.

The President. No [writs of injunction] from the trial courts other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same is approved.[171]

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987
Constitution, acts of the Ombudsman, including interlocutory orders, are subject to the Supreme
Court's power of judicial review As a corollary, the Supreme Court may issue ancillary mjunctive
writs or provisional remedies in the exercise of its power of judicial review over matters
pertaining to ongoing investigations by the Office of the Ombudsman. Respecting the CA,
however, the Ombudsman begs to differ.[172]
With these submissions, it is therefore apt to examine the validity of the first paragraph of
Section 14, RA 6770 insofar as it prohibits all courts, except this Court, from issuing provisional
writs of injunction to enjoin an Ombudsman investigation. That the constitutionality of this
provision is the lis mota of this case has not been seriously disputed. In fact, the issue anent its
constitutionality was properly raised and presented during the course of these
proceedings.[173] More importantly, its resolution is clearly necessary to the complete disposition
of this case.[174]

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),[175] the
"Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative[,] and the judicial departments of the government."[176] The
constitutional demarcation of the three fundamental powers of government is more commonly
known as the principle of separation of powers. In the landmark case of Belgica v. Ochoa, Jr.
(Belgica),[177] the Court held that "there is a violation of the separation of powers principle when
one branch of government unduly encroaches on the domain of another."[178] In particular, "there
is a violation of the principle when there is impermissible (a) interference with and/or (b)
assumption of another department's functions."[179]

Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme
Court and all such lower courts:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress. Thus, through the passage of Batas Pambansa
Bilang (BP) 129,[180] known as "The Judiciary Reorganization Act of 1980," the Court of
Appeals,[181] the Regional Trial Courts,[182] and the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts[183] were established. Later, through the passage of
RA 1125,[184] and Presidential Decree No. (PD) 1486,[185] the Court of Tax Appeals, and the
Sandiganbayan were respectively established.

In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, except that it may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5[186] of the same Article:

Section 2. The Congress shall have the power to define, prescribe, ' and apportion the
jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5 hereof.

xxxx

Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject
matter of an action. In The Diocese of Bacolod v. Commission on Elections,[187] subject matter
jurisdiction was defined as "the authority 'to hear and determine cases of the general class to
which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of
this Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and
the trial courts, through the passage of BP 129, as amended.

In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition
for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but
also concurrent with the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and
the Supreme Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In view of
the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine of hierarchy
of courts should be followed. In People v. Cuaresma,[188] the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of

the writs an absolute, unrestrained freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals.[189]

When a court has subject matter jurisdiction over a particular case, as conferred unto it by law,
said court may then exercise its jurisdiction acquired over that case, which is called judicial
power.

Judicial power, as vested in the Supreme Court and all other courts established by law, has
been defined as the "totality of powers a court exercises when it assumes jurisdiction and hears
and decides a case."[190] Under Section 1, Article VIII of the 1987 Constitution, it includes "the
duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government."

In Oposa v. Factoran, Jr.[191] the Court explained the expanded scope of judicial power under
the 1987 Constitution:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents
a broadening of f judicial power to enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because they are tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is
a very elastic phrase that can expand or contract according to the disposition of the judiciary.[192]

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has
acquired over a particular case conforms to the limits and parameters of the rules of procedure
duly promulgated by this Court. In other words, procedure is the framework within which judicial
power is exercised. In Manila Railroad Co. v. Attorney-General,[193] the Court elucidated that
"[t]he power or authority of the court over the subject matter existed and was fixed before
procedure in a given cause began. Procedure does not alter or change that power or authority;
it simply directs the manner in which it shall be fully and justly exercised. To be sure, in certain
cases, if that power is not exercised in conformity with the provisions of the procedural law,
purely, the court attempting to exercise it loses the power to exercise it legally. This does not
mean that it loses jurisdiction of the subject matter."[194]

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court. (Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice[195] (Echegaray), the Court traced the evolution of its rule-
making authority, which, under the 1935[196] and 1973 Constitutions,[197] had been priorly
subjected to a power-sharing scheme with Congress.[198] As it now stands, the 1987
Constitution textually altered the old provisions by deleting the concurrent power of Congress to
amend the rules, thus solidifying in one body the Court's rule-making powers, in line with the
Framers' vision of institutionalizing a "[s]tronger and more independent judiciary."[199]

The records of the deliberations of the Constitutional Commission would show[200] that the
Framers debated on whether or not the Court's rule-making powers should be shared with
Congress. There was an initial suggestion to insert the sentence "The National Assembly may
repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme
Court", right after the phrase "Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance to the underprivileged" in the
enumeration of powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino
proposed to delete the former sentence and, instead, after the word "[underprivileged," place a
comma (,) to be followed by "the phrase with the concurrence of the National Assembly."
Eventually, a compromise formulation was reached wherein (a) the Committee members agreed
to Commissioner Aquino's proposal to delete the phrase "the National Assembly may repeal,
alter, or supplement the said rules with the advice and concurrence of the Supreme Court" and
(b) in turn, Commissioner Aquino agreed to withdraw his proposal to add "the phrase with the
concurrence of the National Assembly." The changes were approved, thereby leading to the
present lack of textual reference to any form of Congressional participation in Section 5 (5),
Article VIII, supra. The prevailing consideration was that "both bodies, the Supreme Court and
the Legislature, have their inherent powers."[201]

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules
concerning pleading, practice, and procedure. As pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first time was given the
power to promulgate rules concerning the protection and enforcement of constitutional rights.
The Court was also r granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away
the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and
procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no
longer shared by this Court with Congress, more so with the Executive.[202] (Emphasis and
underscoring supplied)

Under its rule-making authority, the Court has periodically passed various rules of procedure,
among others, the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural
remedies needed for the reasonable exercise of every court's judicial power, the provisional
remedies of temporary restraining orders and writs of preliminary injunction were thus provided.

A temporary restraining order and a writ of preliminary injunction both constitute temporary
measures availed of during the pendency of the action. They are, by nature, ancillary because
they are mere incidents in and are dependent upon the result of the main action. It is well-
settled that the sole object of a temporary restraining order or a writ of preliminary injunction,
whether prohibitory or mandatory, is to preserve the status quo[203]until the merits of the case
can be heard. They are usually granted when it is made to appear that there is a substantial
controversy between the parties and one of them is committing an act or threatening the
immediate commission of an act that will cause irreparable injury or destroy the status quo of
the controversy before a full hearing can be had on the merits of the case. In other words, they
are preservative remedies for the protection of substantive rights or interests, and, hence, not a
cause of action in itself, but merely adjunct to a main suit.[204] In a sense, they are regulatory
processes meant to prevent a case from being mooted by the interim acts of the parties.

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a
TRO and a WPI. A preliminary injunction is defined under Section 1,[205] Rule 58, while Section
3[206] of the same Rule enumerates the grounds for its issuance. Meanwhile, under Section
5[207] thereof, a TRO may be issued as a precursor to the issuance of a writ of preliminary
injunction under certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent
power to issue all auxiliary writs, processes, and other means necessary to carry its acquired
jurisdiction into effect under Section 6, Rule 135 of the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, f processes and other means necessary to carry it into
effect may be employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by law[208] or by these rules, any
suitable process or mode of proceeding may be adopted which appears comfortable to the spirit
of the said law or rules.

In City of Manila v. Grecia-Cuerdo,[209] which is a case involving "[t]he supervisory power or

jurisdiction of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate
jurisdiction"[210] over "decisions, orders or resolutions of the RTCs in local tax cases originally
decided or resolved by them in the exercise of their original or appellate jurisdiction,"[211] the
Court ruled that said power "should coexist with, and be a complement to, its appellate
jurisdiction to review, by appeal, the final orders and decisions of the RTC, in order to have
complete supervision over the acts of the latter:"[212]

A grant of appellate jurisdiction implies that there is included in it the power necessary to
exercise it effectively, to make all orders that ; will preserve the subject of the action, and to give
effect to the final determination of the appeal. It carries with it the power to protect that
jurisdiction and to make the decisions of the court thereunder effective. The court, in aid of its
appellate jurisdiction, has authority to control all auxiliary and incidental matters necessary to
the efficient and proper exercise of that jurisdiction. For this purpose, it may, when necessary,
prohibit or restrain the performance of any act which might interfere with the proper exercise of
its rightful jurisdiction in cases pending before it.[213] (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court endowed with subject matter
jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are
necessary to enable it to act effectively within such jurisdiction. These should be regarded as
powers which are inherent in its jurisdiction and the court must possess them in order to enforce
its rules of practice and to suppress any abuses of its process and to t defeat any attempted
thwarting of such process.

xxxx

Indeed, courts possess certain inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers
are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or are
essential to the existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable to the execution of
their granted powers; and include the power to maintain the court's jurisdiction and render it
effective in behalf of the litigants.[214] (Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched
constitutional principle, articulated way back in the 1936 case of Angara, that "where a general
power is conferred or duty enjoined, every particular power necessary for the exercise of the
one or the performance of the other is also conferred."[215]

In the United States, the "inherent powers doctrine refers to the principle, by which the courts
deal with diverse matters over which they are thought to have intrinsic authority like procedural
[rule-making] and general judicial housekeeping. To justify the invocation or exercise of inherent
powers, a court must show that the powers are reasonably necessary to achieve the specific
purpose for which the exercise is sought. Inherent powers enable the judiciary to accomplish its
constitutionally mandated functions."[216]
In Smothers v. Lewis[217] (Smothers), a case involving the constitutionality of a statute which
prohibited courts from enjoining the enforcement of a revocation order of an alcohol beverage
license pending appeal,[218] the Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably
necessary for the administration of justice within the scope of their jurisdiction. x x x [W]e said
while considering the rule making power and the judicial power to be one and the same that ". .
. the grant of judicial power [rule making power] to the courts by the constitution carries with it,
as a necessary incident, the right to make that power effective in the administration of justice."
(Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an

exercise of the court's inherent power, and to this end, stated that any attempt on the part of
Congress to interfere with the same was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28
Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once having
obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of
power, inherent power to do all things reasonably necessary to the administration of justice in
the case before it. In the exercise of this power, a court, when necessary in order to protect or
preserve the subject matter of the litigation, to protect its jurisdiction and to make its judgment
effective, may grant or issue a temporary injunction in aid of or ancillary to the principal action.

The control over this inherent judicial power, in this particular instance the injunction, is
exclusively within the constitutional realm of the courts. As such, it is not within the purview of
the legislature to grant or deny the power nor is it within the purview of the legislature to shape
or fashion circumstances under which this inherently judicial power may be or may not be
granted or denied.

This Court has historically recognized constitutional limitations upon the power of the legislature
to interfere with or to inhibit the performance of constitutionally granted and inherently provided
judicial functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of
a cause of action, has, as incidental to its general jurisdiction, inherent power to do all things
reasonably necessary f to the administration of justice in the case before it. . ." This includes the
inherent power to issue injunctions. (Emphases supplied)

Smothers also pointed out that the legislature's authority to provide a right to appeal in the
statute does not necessarily mean that it could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the right
to encroach upon the constitutionally granted powers of the judiciary. Once the administrative
action has ended and the right to appeal arises the legislature is void of any right to control a
subsequent appellate judicial proceeding. The judicial rules have come into play and have
preempted the field.[219] (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress passed the first
paragraph of Section 14, RA 6770 and, in so doing, took away from the courts their power to
issue a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it
encroached upon this Court's constitutional rule-making authority. Clearly, these issuances,
which are, by nature, provisional reliefs and auxiliary writs created under the provisions of the
Rules of Court, are matters of procedure which belong exclusively within the province of this
Court. Rule 58 of the Rules of Court did not create, define, and regulate a right but merely
prescribed the means of implementing an existing right[220] since it only provided for temporary
reliefs to preserve the applicant's right in esse which is threatened to be violated during the
course of a pending litigation. In the case of Fabian,[221] it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with procedure.

Notably, there have been similar attempts on the part of Congress, in the exercise of its
legislative power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The
National Power Corporation from Payment of Filing/ Docket Fees;[222] (b) Re: Petition for
Recognition of the Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees;[223] and (c) Baguio Market Vendors Multi-Purpose Cooperative
(BAMARVEMPCO) v. Cabato-Cortes[224] While these cases involved legislative enactments
exempting government owned and controlled corporations and cooperatives from paying filing
fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
nonetheless, ruled that the prerogative to amend, repeal or even establish new rules of
procedure[225] solely belongs to the Court, to the exclusion of the legislative and executive
branches of government. On this score, the Court described its authority to promulgate rules on
pleading, practice, and procedure as exclusive and "[o]ne of the safeguards of [its] institutional
independence."[226]

That Congress has been vested with the authority to define, prescribe, and apportion the
jurisdiction of the various courts under Section 2, Article VIII supra, as well as to create statutory
courts under Section 1, Article VIII supra, does not result in an abnegation of the Court's own
power to promulgate rules of pleading, practice, and procedure under Section 5 (5), Article VIII
supra. Albeit operatively interrelated, these powers are nonetheless institutionally separate and
distinct, each to be preserved under its own sphere of authority. When Congress creates a court
and delimits its jurisdiction, the procedure for which its jurisdiction is exercised is fixed by the
Court through the rules it promulgates. The first paragraph of Section 14, RA 6770 is not a
jurisdiction-vesting provision, as the Ombudsman misconceives,[227] because it does not define,
prescribe, and apportion the subject matter jurisdiction of courts to act on certiorari cases;
the certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of BP
129 which were not shown to have been repealed. Instead, through this provision, Congress
interfered with a provisional remedy that was created by this Court under its duly promulgated
rules of procedure, which utility is both integral and inherent to every court's exercise of judicial
power. Without the Court's consent to the proscription, as may be manifested by an adoption of
the same as part of the rules of procedure through an administrative circular issued therefor,
there thus, stands to be a violation of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting provisional
injunctions, such as in the first paragraph of Section 14, RA 6770, does not only undermine the
constitutional allocation of powers; it also practically dilutes a court's ability to carry out its
functions. This is so since a particular case can easily be mooted by supervening events if no
provisional injunctive relief is extended while the court is hearing the same. Accordingly, the
court's acquired jurisdiction, through which it exercises its judicial power, is rendered nugatory.
Indeed, the force of judicial power, especially under the present Constitution, cannot be
enervated due to a court's inability to regulate what occurs during a proceeding's course. As
earlier intimated, when jurisdiction over the subject matter is accorded by law and has been
acquired by a court, its exercise thereof should be undipped. To give true meaning to the judicial
power contemplated by the Framers of our Constitution, the Court's duly promulgated rules of
procedure should therefore remain unabridged, this, even by statute. Truth be told, the policy
against provisional injunctive writs in whatever variant should only subsist under rules of
procedure duly promulgated by the Court given its sole prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay)
mirrors the foregoing observations:

JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?

ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under
the rubric of what is called provisional remedies, our resident expert because Justice Peralta is
not here so Justice Bersamin for a while. So provisional remedy you have injunction, x x x.

xxxx

JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the
Constitution, if you have a copy of the Constitution, can you please read that provision? Section
5, Article VIII the Judiciary subparagraph 5, would you kindly read that provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts..."

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

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.

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

ACTING SOLICITOR GENERAL HILBAY:

That is true.

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

ACTING SOLICITOR GENERAL HILBAY:

Correct.

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

ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that
was created by Congress. In the absence of jurisdiction... (interrupted)

JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special
agrarian court it has all procedures with it but it does not attach particularly to that particular
court, is that not correct?

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

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

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx[228] (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010,[229] the Court instructed that "[i]t is
through the Constitution that the fundamental powers of government are established, limited
and defined, and by which these powers are distributed among the several departments. The
Constitution is the basic and paramount law to which all other laws must conform and to which
all persons, including the highest officials of the land, must defer." It would then follow that laws
that do not conform to the Constitution shall be stricken down for being unconstitutional.[230]

However, despite the ostensible breach of the separation of powers principle, the Court is not
oblivious to the policy considerations behind the first paragraph of Section 14, RA 6770, as well
as other statutory provisions of similar import. Thus, pending deliberation on whether or not to
adopt the same, the Court, under its sole prerogative and authority over all matters of
procedure, deems it proper to declare as ineffective the prohibition against courts other than the
Supreme Court from issuing provisional injunctive writs to enjoin investigations conducted by
the Office of the Ombudsman, until it is adopted as part of the rules of procedure through an
administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first paragraph
of Section 14, RA 6770) without the Court's consent thereto, it remains that the CA had the
authority to issue the questioned injunctive writs enjoining the implementation of the preventive
suspension order against Binay, Jr. At the risk of belaboring the point, these issuances were
merely ancillary to the exercise of the CA's certiorari jurisdiction conferred to it under Section 9
(1), Chapter I of BP 129, as amended, and which it had already acquired over the main CA-G.R.
SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction
in issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order
is a persisting objection to the validity of said injunctive writs. For its proper analysis, the Court
first provides the context of the assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive suspension order.

By nature, a preventive suspension order is not a penalty but only a preventive measure.
In Quimbo v. Acting Ombudsman Gervacio,[231] the Court explained the distinction, stating
that its purpose is to prevent the official to be suspended from using his position and the powers
and prerogatives of his office to influence potential witnesses or tamper with records which may
be vital in the prosecution of the case against him:

Jurisprudential law establishes a clear-cut distinction between suspension as preventive

measure and suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative

investigation. The purpose of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence potential witnesses or tamper
with records which may be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is found guilty of acts
warranting his suspension or removal, then he is suspended, removed or dismissed. This is the
penalty.

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule
XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive
Order No. 292) and other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)
Not being a penalty, the period within which one is under preventive suspension is not
considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV
provides:
Section 25. The period within which a public officer or employee charged is placed under
preventive suspension shall not be considered part of the actual penalty of suspension imposed
upon the employee found guilty.[232](Emphases supplied)
The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA
6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend
any officer or employee under his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the
charges would warrant removal from the service; or (c) the respondent's continued stay in office
may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition
of the respondent, in which case the period of such delay shall not be counted in computing the
period of suspension herein provided. (Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance
of an order of preventive suspension pending an investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty;

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against him.[233]

B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the
Ombudsman's non-compliance with the requisites provided in Section 24, RA 6770 was not the
basis for the issuance of the assailed injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was
based on the case of Governor Garcia, Jr. v. CA[234] (Governor Garcia, Jr.), wherein the Court
emphasized that "if it were established in the CA that the acts subject of the administrative
complaint were indeed committed during petitioner [Garcia's] prior term, then, following settled
jurisprudence, he can no longer be administratively charged."[235] Thus, the Court, contemplating
the application of the condonation doctrine, among others, cautioned, in the said case, that "it
would have been more prudent for [the appellate court] to have, at the very least, on account of
the extreme urgency of the matter and the seriousness of the issues raised in
the certiorari petition, issued a TRO x x x"[236] during the pendency of the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was
based on the condonation doctrine, citing the case of Aguinaldo v. Santos[237] The CA held that
Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the nullification of the
preventive suspension order, finding that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati
condoned any administrative liability arising from anomalous activities relative to the Makati
Parking Building project from 2007 to 2013.[238] Moreover, the CA observed that although there
were acts which were apparently committed by Binay, Jr. beyond his first term , i.e., the alleged
payments on July 3, 4, and 24, 2013,[239] corresponding to the services of Hillmarc's and MANA
- still, Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima v.
Guingona, Jr.,[240] and Mayor Garcia v. Mojica,[241] wherein the condonation dobtrine was applied
by the Court although the payments were made after the official's election, reasoning that the
payments were merely effected pursuant to contracts executed before said re-election.[242]

The Ombudsman contends that it was inappropriate for the CA to have considered the
condonation doctrine since it was a matter of defense which should have been raised and
passed upon by her office during the administrative disciplinary proceedings.[243] However, the
Court agrees with the CA that it was not precluded from considering the same given that it was
material to the propriety of according provisional injunctive relief in conformity with the ruling
in Governor Garcia, Jr., which was the subsisting jurisprudence at that time. Thus, since
condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,[244] the CA
did not err in passing upon the same. Note that although Binay, Jr. secondarily argued that the
evidence of guilt against him was not strong in his petition in CA-G.R. SP No. 139453,[245] it
appears that the CA found that the application of the condonation doctrine was already sufficient
to enjoin the implementation of the preventive suspension order. Again, there is nothing
aberrant with this since, as remarked in the same case of Governor Garcia, Jr., if it was
established that the acts subject of the administrative complaint were indeed committed during
Binay, Jr.'s prior term, then, following the condonation doctrine, he can no longer be
administratively charged. In other words, with condonation having been invoked by Binay, Jr. as
an exculpatory affirmative defense at the onset, the CA deemed it unnecessary to determine if
the evidence of guilt against him was strong, at least for the purpose of issuing the subject
injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs herein laid down, the
Court now proceeds to determine if the CA gravely abused its discretion in applying the
condonation doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or implied
forgiveness of an offense, [especially] by treating the offender as if there had been no
offense."[246]

The condonation doctrine - which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon - is not based on statutory law. It is a jurisprudential
creation that originated from the 1959 case of Pascual v. Hon. Provincial Board of Nueva
Ecija,[247] (Pascual), which was therefore decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija,
sometime in November 1951, and was later re-elected to the same position in 1955. During his
second term, or on October 6, 1956, the Acting Provincial Governor filed administrative
charges before the Provincial Board of Nueva Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a criminal complaint in Criminal Case No. 3556 on
December 18 and 20, 1954. In defense, Arturo Pascual argued that he cannot be made liable
for the acts charged against him since they were committed during his previous term of office,
and therefore, invalid grounds for disciplining him during his second term. The Provincial Board,
as well as the Court of First Instance of Nueva Ecija, later decided against Arturo Pascual, and
when the case reached this Court on appeal, it recognized that the controversy posed a novel
issue - that is, whether or not an elective official may be disciplined for a wrongful act committed
by him during his immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and "found that cases on the matter are conflicting due in part, probably, to
differences in statutes and constitutional provisions, and also, in part, to a divergence of views
with respect to the question of whether the subsequent election or appointment condones the
prior misconduct."[248] Without going into the variables of these conflicting views and cases, it
proceeded to state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove one
from office because of misconduct during a prior term, to which we fully
subscribe.[249] (Emphasis and underscoring supplied)

The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation,
which, in the words of Pascual, theorizes that an official's re-election denies the right to remove
him from office due to a misconduct during a prior term. In fact, as pointed out during the oral
arguments of this case, at least seventeen (17) states in the US have abandoned the
condonation doctrine.[250] The Ombudsman aptly cites several rulings of various US State
courts, as well as literature published on the matter, to demonstrate the fact that the doctrine is
not uniformly applied across all state jurisdictions. Indeed, the treatment is nuanced:

(1) For one, it has been widely recognized that the propriety of removing a public officer from his
current term or office for misconduct which he allegedly committed in a prior term of office is
governed by the language of the statute or constitutional provision applicable to the facts of a
particular case (see In Re Removal of Member of Council Coppola).[251] As an example, a Texas
statute, on the one hand, expressly allows removal only for an act committed during a present
term: "no officer shall be prosecuted or removed from office for any act he may have committed
prior to his election to office" (see State ex rel. Rowlings v. Loomis).[252] On the other hand, the
Supreme Court of Oklahoma allows removal from office for "acts of commission, omission, or
neglect committed, done or omitted during a previous or preceding term of office" (see State v.
Bailey)[253] Meanwhile, in some states where the removal statute is silent or unclear, the case's
resolution was contingent upon the interpretation of the phrase "in office." On one end, the
Supreme Court of Ohio strictly construed a removal statute containing the phrase "misfeasance
of malfeasance in office" and thereby declared that, in the absence of clear legislative language
making, the word "office" must be limited to the single term during which the offense charged
against the public officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga
County)[254] Similarly, the Common Pleas Court of Allegheny County, Pennsylvania decided that
the phrase "in office" in its state constitution was a time limitation with regard to the grounds of
removal, so that an officer could not be removed for misbehaviour which occurred; prior to the
taking of the office (see Commonwealth v. Rudman)[255] The opposite was construed in the
Supreme Court of Louisiana which took the view that an officer's inability to hold an office
resulted from the commission of certain offenses, and at once rendered him unfit to continue in
office, adding the fact that the officer had been re-elected did not condone or purge the offense
(see State ex rel. Billon v. Bourgeois).[256] Also, in the Supreme Court of New York, Apellate
Division, Fourth Department, the court construed the words "in office" to refer not to a particular
term of office but to an entire tenure; it stated that the whole purpose of the legislature in
enacting the statute in question could easily be lost sight of, and the intent of the law-making
body be thwarted, if an unworthy official could not be removed during one term for misconduct
for a previous one (Newman v. Strobel).[257]

(2) For another, condonation depended on whether or not the public officer was a successor in
the same office for which he has been administratively charged. The "own-successor theory,"
which is recognized in numerous States as an exception to condonation doctrine, is premised
on the idea that each term of a re-elected incumbent is not taken as separate and distinct, but
rather, regarded as one continuous term of office. Thus, infractions committed in a previous
term are grounds for removal because a re-elected incumbent has no prior term to speak
of[258] (see Attorney-General v. Tufts;[259] State v. Welsh;[260] Hawkins v. Common Council of
Grand Rapids;[261] Territory v. Sanches;[262] and Tibbs v. City of Atlanta).[263]

(3) Furthermore, some State courts took into consideration the continuing nature of an offense
in cases where the condonation doctrine was invoked. In State ex rel. Douglas v.
Megaarden,[264] the public officer charged with malversation of public funds was denied the
defense of condonation by the Supreme Court of Minnesota, observing that "the large sums of
money illegally collected during the previous years are still retained by him." In State ex rel.
Beck v. Harvey[265] the Supreme Court of Kansas ruled that "there is no necessity" of applying
the condonation doctrine since "the misconduct continued in the present term of office[;] [thus]
there was a duty upon defendant to restore this money on demand of the county
commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,[266] the Supreme Court of
Kansas held that "insofar as nondelivery and excessive prices are concerned, x x x there
remains a continuing duty on the part of the defendant to make restitution to the country x x x,
this duty extends into the present term, and neglect to discharge it constitutes misconduct."

Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there
is a "weight of authority" in the US on the condonation doctrine. In fact, without any cogent
exegesis to show that Pascual had accounted for the numerous factors relevant to the debate
on condonation, an outright adoption of the doctrine in this jurisdiction would not have been
proper.

At any rate, these US cases are only of persuasive value in the process of this Court's decision-
making. "[They] are not relied upon as precedents, but as guides of
interpretation."[267] Therefore, the ultimate analysis is on whether or not the condonation
doctrine, as espoused in Pascual, and carried over in numerous cases after, can be held up
against prevailing legal norms. Note that the doctrine of stare decisis does not preclude this
Court from revisiting existing doctrine. As adjudged in the case of Belgica, the stare decisis rule
should not operate when there are powerful countervailing considerations against its
application.[268] In other words, stare decisis becomes an intractable rule only when
circumstances exist to preclude reversal of standing precedent.[269] As the Ombudsman correctly
points out, jurisprudence, after all, is not a rigid, atemporal abstraction; it is an organic creature
that develops and devolves along with the society within which it thrives.[270] In the words of a
recent US Supreme Court Decision, "[w]hat we can decide, we can undecide."[271]

In this case, the Court agrees with the Ombudsman that since the time Pascual was decided,
the legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the
1935 Constitution, which dated provisions do not reflect the experience of the Filipino People
under the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of
course, the sheer impact of the condonation doctrine on public accountability, calls
for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer
was elected for each term is separate and distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish cause
for removaland this is especially true where the constitution provides that the penalty in
proceedings for removal shall not extend beyond the removal from office, and disqualification
from holding office for the term for which the officer was elected or appointed. (67 C.J.S. p. 248,
citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex
rel. Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher County vs.
Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43
S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.[272]

Second, an elective official's re-election serves as a condonation of previous misconduct,

thereby cutting the right to remove him therefor; and

[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to
the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs.
Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.[273] (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and
character of candidates, of their right to elect officers:

As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA
(NS) 553 —
The Court should never remove a public officer for acts done prior to his present term of office.
To do otherwise would be to deprive the people of their right to elect their officers. When the
people have elected a man to office, it must be assumed that they did this with knowledge of his
life and character, and that they disregarded or forgave his faults or misconduct, if he had been
guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule
the will of the people.[274] (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova[275] (May 17, 1966) - wherein the Court first applied the condonation
doctrine, thereby quoting the above-stated passages from Pascual in verbatim.

(2) Insco v. Sanchez, et al.[276] (December 18, 1967) - wherein the Court clarified that the
condonation doctrine does not apply to a criminal case. It was explained that a criminal case is
different from an administrative case in that the former involves the People of the Philippines as
a community, and is a public wrong to the State at large; whereas, in the latter, only the
populace of the constituency he serves is affected. In addition, the Court noted that it is only the
President who may pardon a criminal offense.

(3) Aguinaldo v. Santos[277] (Aguinaldo; August 21, 1992) - a case decided under the 1987
Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his re-election merely supervened the pendency of, the
proceedings.

(4) Salalima v. Guinsona, Jr.[278] (Salalima; May 22, 1996) -wherein the Court reinforced the
condonation doctrine by stating that the same is justified by "sound public policy." According to
the Court, condonation prevented the elective official from being "hounded" by administrative
cases filed by his "political enemies" during a new term, for which he has to defend himself "to
the detriment of public service." Also, the Court mentioned that the administrative liability
condoned by re-election covered the execution of the contract and the incidents related
therewith.[279]

(5) Mayor Garcia v. Mojica[280] (Mayor Garcia; September 10, 1999) - wherein the benefit of the
doctrine was extended to then Cebu City Mayor Alvin B. Garcia who was administratively
charged for his involvement in an anomalous contract for the supply of asphalt for Cebu City,
executed only four (4) days before the upcoming elections. The Court ruled that notwithstanding
the timing of the contract's execution, the electorate is presumed to have known the petitioner's
background and character, including his past misconduct; hence, his subsequent re-election
was deemed a condonation of his prior transgressions. More importantly, the Court held that the
determinative time element in applying the condonation doctrine should be the time when the
contract was perfected; this meant that as long as the contract was entered into during a prior
term, acts which were done to implement the same, even if done during a succeeding term, do
not negate the application of the condonation doctrine in favor of the elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman[281] (Salumbides, Jr.; April 23, 2010) - wherein
the Court explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The
condonation rule was applied even if the administrative complaint was not filed before the
reelection of the public official, and even if the alleged misconduct occurred four days before the
elections, respectively. Salalima did not distinguish as to the date of filing of the administrative
complaint, as long as the alleged misconduct was committed during the prior term, the precise
timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave
rise to the public official's culpability was committed prior to the date of reelection. [282](Emphasis
supplied)

The Court, citing Civil Service Commission v. Sojor,[283] also clarified that the condonation
doctrine would not apply to appointive officials since, as to them, there is no sovereign will to
disenfranchise.

(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked
that it would have been prudent for the appellate court therein to have issued a temporary
restraining order against the implementation of a preventive suspension order issued by the
Ombudsman in view of the condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia,
and Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015
Resolutions directing the issuance of the assailed injunctive writs - would show that the basis for
condonation under the prevailing constitutional and statutory framework was never accounted
for. What remains apparent from the text of these cases is that the basis for condonation, as
jurisprudential doctrine, was - and still remains - the above-cited postulates of Pascual, which
was lifted from rulings of US courts where condonation was amply supported by their own state
laws. With respect to its applicability to administrative cases, the core premise of condonation -
that is, an elective official's re-election cuts qff the right to remove him for an administrative
offense committed during a prior term - was adopted hook, line, and sinker in our jurisprudence
largely because the legality of that doctrine was never tested against existing legal norms. As in
the US, the propriety of condonation is - as it should be -dependent on the legal foundation of
the adjudicating jurisdiction. Hence, the Court undertakes an examination of our current laws in
order to determine if there is legal basis for the continued application of the doctrine of
condonation.

The foundation of our entire legal system is the Constitution. It is the supreme law of the
land;[284] thus, the unbending rule is that every statute should be read in light of the
Constitution.[285] Likewise, the Constitution is a framework of a workable government; hence, its
interpretation must take into account the complexities, realities, and politics attendant to the
operation of the political branches of government.[286]

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided
within the context of the 1935 Constitution which was silent with respect to public accountability,
or of the nature of public office being a public trust. The provision in the 1935 Constitution that
comes closest in dealing with public office is Section 2, Article II which states that "[t]he defense
of the State is a prime duty of government, and in the fulfillment of this duty all citizens may be
required by law to render personal military or civil service."[287] Perhaps owing to the 1935
Constitution's silence on public accountability, and considering the dearth of jurisprudential
rulings on the matter, as well as the variance in the policy considerations, there was no glaring
objection confronting the Pascual Court in adopting the condonation doctrine that originated
from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent
a significant change. The new charter introduced an entire article on accountability of public
officers, found in Article XIII. Section 1 thereof positively recognized, acknowledged, and
declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and employees shall
serve with the highest degree of responsibility, integrity, loyalty and efficiency, and shall remain
accountable to the people."

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted
the 1987 Constitution, which sets forth in the Declaration of Principles and State Policies in
Article II that "[t]he State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."[288] Learning how unbridled power
could corrupt public servants under the regime of a dictator, the Framers put primacy on the
integrity of the public service by declaring it as a constitutional principle and a State policy. More
significantly, the 1987 Constitution strengthened and solidified what has been first proclaimed in
the 1973 Constitution by commanding public officers to be accountable to the people at all
times:

Section 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency
and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of the
Constitution which embodies the parameters of the people's trust. The notion of a public trust
connotes accountability x x x.[289] (Emphasis supplied)

The same mandate is found in the Revised Administrative Code under the section of the Civil
Service Commission,[290] and also, in the Code of Conduct and Ethical Standards for Public
Officials and Employees.[291]

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an
elective local official from office are stated in Section 60 of Republic Act No. 7160,[292] otherwise
known as the "Local Government Code of 1991" (LGC), which was approved on October 10
1991, and took effect on January 1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined,
suspended, or removed from office on any of the r following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least
prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan,
and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order
of the proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from
office as a result of an administrative case shall be disqualified from running for any elective
local position:

Section 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:

xxxx

(b) Those removed from office as a result of an administrative case;

x x x x (Emphasis supplied)

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement
benefits, perpetual disqualification from holding public office, and bar from taking the civil
service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he
meets the qualifications required for the office. Note, however, that the provision only pertains to
the duration of the penalty and its effect on the official's candidacy. Nothing therein states that
the administrative liability therefor is extinguished by the fact of re-election:

Section 66. Form and Notice of Decision. - x x x.

xxxx

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period
of six (6) months for every administrative offense, nor shall said penalty be a bar to the
candidacy of the respondent so suspended as long as he meets the qualifications required for
the office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this
Court to the conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term
of office, or even another elective post. Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the
notion that an official elected for a different term is fully absolved of any administrative liability
arising from an offense done during a prior term. In this jurisdiction, liability arising from
administrative offenses may be condoned bv the President in light of Section 19, Article VII of
the 1987 Constitution which was interpreted in Llamas v. Orbos[293] to apply to administrative
offenses:

The Constitution does not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment cases. By the same token, if
executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of
the Constitution. Following petitioner's proposed interpretation, cases of impeachment are
automatically excluded inasmuch as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason why the President
cannot grant executive clemency in administrative cases. It is Our considered view that if the
President can grant reprieves, commutations and pardons, and remit fines and forfeitures in
criminal cases, with much more reason can she grant executive clemency in administrative
cases, which are clearly less serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to hold him
administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC
precludes condonation since in the first place, an elective local official who is meted with the
penalty of removal could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes a penalty of perpetual disqualification from holding public office as an accessory to the
penalty of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US State jurisdictions
wherein the doctrine of condonation of administrative liability was supported by either a
constitutional or statutory provision stating, in effect, that an officer cannot be removed by a
misconduct committed during a previous term,[294] or that the disqualification to hold the office
does not extend beyond the term in which the official's delinquency occurred.[295] In one
case,[296] the absence of a provision against the re-election of an officer removed - unlike
Section 40 (b) of the LGC-was the justification behind condonation. In another case,[297] it was
deemed that condonation through re-election was a policy under their constitution - which
adoption in this jurisdiction runs counter to our present Constitution's requirements on public
accountability. There was even one case where the doctrine of condonation was not adjudicated
upon but only invoked by a party as a ground;[298] while in another case, which was not reported
in full in the official series, the crux of the disposition was that the evidence of a prior irregularity
in no way pertained to the charge at issue and therefore, was deemed to be
incompetent.[299] Hence, owing to either their variance or inapplicability, none of these cases can
be used as basis for the continued adoption of the condonation doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of
suspension beyond the unexpired portion of the elective local official's prior term, and likewise
allows said official to still run for re-election This treatment is similar to People ex rel Bagshaw v.
Thompson[300] and Montgomery v. Novell[301] both cited in Pascual,wherein it was ruled that an
officer cannot be suspended for a misconduct committed during a prior term. However, as
previously stated, nothing in Section 66 (b) states that the elective local official's administrative
liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually
supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts
would be depriving the electorate of their right to elect their officers if condonation were not to
be sanctioned. In political law, election pertains to the process by which a particular
constituency chooses an individual to hold a public office. In this jurisdiction, there is, again, no
legal basis to conclude that election automatically implies condonation. Neither is there any
legal basis to say that every democratic and republican state has an inherent regime of
condonation. If condonation of an elective official's administrative liability would perhaps, be
allowed in this jurisdiction, then the same should have been provided by law under our
governing legal mechanisms. May it be at the time of Pascual or at present, by no means has it
been shown that such a law, whether in a constitutional or statutory provision, exists. Therefore,
inferring from this manifest absence, it cannot be said that the electorate's will has been
abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are
assumed to have done so with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule.[302]Besides, it is contrary to human
experience that the electorate would have full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that most corrupt acts by public officers are
shrouded in secrecy, and concealed from the public. Misconduct committed by an elective
official is easily covered up, and is almost always unknown to the electorate when they cast
their votes.[303] At a conceptual level, condonation presupposes that the condoner has actual
knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton[304] decided by the New Jersey
Supreme Court:
Many of the cases holding that re-election of a public official prevents his removal for acts done
in a preceding term of office are reasoned out on the theory of condonation. We cannot
subscribe to that theory because condonation, implying as it does forgiveness, connotes
knowledge and in the absence of knowledge there can be no condonation. One cannot forgive
something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in
this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of
US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by - the
current legal regime. In consequence, it is high time for this Court to abandon the condonation
doctrine that originated from Pascual, and affirmed in the cases following the same, such
as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by
the CA.

It should, however, be clarified that this Court's abandonment of the condonation doctrine
should be prospective in application for the reason that judicial decisions applying or interpreting
the laws or the Constitution, until reversed, shall form part of the legal system of the
Philippines.[305] Unto this Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. As explained in De Castro v.
Judicial Bar Council.[306]

Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.[307]

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as "good law" prior to its abandonment. Consequently, the people's reliance
thereupon should be respected. The landmark case on this matter is People v.
Jabinal,[308] wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof.

Later, in Spouses Benzonan v. CA,[309] it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions
form part of the law of the land, they are also subject to Article 4 of the Civil Code which
provides that "laws shall have no retroactive effect unless the contrary is provided." This is
expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not
backward. The rationale against retroactivity is easy to perceive. The retroactive application of a
law usually divests rights that have already become vested or impairs the obligations of contract
and hence, is unconstitutional.[310]

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and
rectify its ensuing course. Thus, while it is truly perplexing to think that a doctrine which is
barren of legal anchorage was able to endure in our jurisprudence for a considerable length of
time, this Court, under a new membership, takes up the cudgels and now abandons the
condonation doctrine.
E. Consequence of ruling.

As for this section of the Decision, the issue to be resolved is whether or not the CA committed
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
injunctive writs.

It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction.The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.[311] It has also been held that "grave abuse
of discretion arises when a lower court or tribunal patently violates the Constitution, the law or
existing jurisprudence."[312]

As earlier established, records disclose that the CA's resolutions directing the issuance of the
assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. To
recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was based on
the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the
subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia,and again, Governor
Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at
that time, unwittingly remained "good law," it cannot be concluded that the CA committed a
grave abuse of discretion based on its legal attribution above. Accordingly, the WPI against the
Ombudsman's preventive suspension order was correctly issued.

With this, the ensuing course of action should have been for the CA to resolve the main petition
for certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the
Ombudsman, on October 9, 2015, had already found Binay, Jr. administratively liable and
imposed upon him the penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative charges against him, the
said CA petition appears to have been mooted.[313] As initially intimated, the preventive
suspension order is only an ancillary issuance that, at its core, serves the purpose of assisting
the Office of the Ombudsman in its investigation. It therefore has no more purpose - and
perforce, dissolves - upon the termination of the office's process of investigation in the instant
administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding
the validity of the preventive suspension order subject of this case does not preclude any of its
foregoing determinations, particularly, its abandonment of the condonation doctrine. As
explained in Belgica, '"the moot and academic principle' is not a magical formula that can
automatically dissuade the Court in resolving a case. The Court will decide cases, otherwise
moot, if: first, there is a grave violation of the Constitution; second, the exceptional character of
the situation and the paramount public interest is involved; third, when the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review."[314] All of these scenarios obtain
in this case:

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it
were not to abandon the condonation doctrine now that its infirmities have become apparent. As
extensively discussed, the continued application of the condonation doctrine is simply
impermissible under the auspices of the present Constitution which explicitly mandates that
public office is a public trust and that public officials shall be accountable to the people at all
times.

Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a
defense of elective officials to escape administrative liability. It is the first time that the legal
intricacies of this doctrine have been brought to light; thus, this is a situation of exceptional
character which this Court must ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the multitude of elective local
officials throughout the years, it is indubitable that paramount public interest is involved.

Third, the issue on the validity of the condonation doctrine clearly requires the formulation of
controlling principles to guide the bench, the bar, and the public. The issue does not only involve
an in-depth exegesis of administrative law principles, but also puts to the forefront of legal
discourse the potency of the accountability provisions of the 1987 Constitution. The Court owes
it to the bench, the bar, and the public to explain how this controversial doctrine came about,
and now, its reasons for abandoning the same in view of its relevance on the parameters of
public office.

And fourth, the defense of condonation has been consistently invoked by elective local officials
against the administrative charges filed against them. To provide a sample size, the
Ombudsman has informed the Court that "for the period of July 2013 to December 2014 alone,
85 cases from the Luzon Office and 24 cases from the Central Office were dismissed on the
ground of condonation. Thus, in just one and a half years, over a hundred cases of alleged
misconduct - involving infractions such as dishonesty, oppression, gross neglect of duty and
grave misconduct - were placed beyond the reach of the Ombudsman's investigatory and
prosecutorial powers."[315]Evidently, this fortifies the finding that the case is capable of repetition
and must therefore, not evade review.

In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to
uphold and defend the Constitution, revoke it notwithstanding supervening events that render
the subject of discussion moot.

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the
final issue on whether or not the CA's Resolution[316] dated March 20, 2015 directing the
Ombudsman to comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is
improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot
be the subject of a charge for indirect contempt[317] because this action is criminal in nature and
the penalty therefor would result in her effective removal from office.[318] However, a reading of
the aforesaid March 20, 2015 Resolution does not show that she has already been subjected to
contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding the directive
for the Ombudsman to comment, the CA has not necessarily given due course to Binay, Jr.'s
contempt petition:
Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita
Carpio Morales, in her capacity as the Ombudsman, and the Department of Interior and Local
Government] are hereby DIRECTED to file Comment on the Petition/Amended and
Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an inextendible period of
three (3) days from receipt hereof. (Emphasis and underscoring supplied)

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she
may properly raise her objections to the contempt proceedings by virtue of her being an
impeachable officer, the CA, in the exercise of its sound judicial discretion, may still opt not to
give due course to Binay, Jr.'s contempt petition and accordingly, dismiss the same. Sjmply put,
absent any indication that the contempt petition has been given due course by the CA, it would
then be premature for this Court to rule on the issue. The submission of the Ombudsman on this
score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the
Court resolves as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is

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

(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in

effect;

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the
Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding Binay,
Jr. administratively liable in the six (6) administrative complamts, docketed as OMB-C-A-15-
0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and
OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA
is DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with
utmost dispatch.

SO ORDERED.

Sereno, C.J. Carpio, Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez,
Reyes, and Leonen, JJ., concur.
Velasco, Jr., Peralta, and Jardeleza, JJ., no part.
Brion, J., no part/ on leave.
Mendoza, J., on leave.
Bersamin, J., please see my concurring & dissenting opinion.
 NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on November 10, 2015 a Decision/Resolution, copy attached herewith,
was rendered by the Supreme Court in the above-entitled case, the original of which was
received by this Office on November 13, 2015 at 10:03 a.m.

Very truly yours,

(SGD)
FELIPA G. BORLONGAN-ANAMA
Clerk of Court

Duncano v Sandiganbayan

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 191894 July 15, 2015

DANILO A. DUNCANO, Petitioner,

vs.
HON. SANDIGANBAYAN (2nd DIVISION), and HON. OFFICE OF THE SPECIAL
PROSECUTOR, Respondents.

DECISION

PERALTA, J.:

This petition for certiorari under Rule 65 of the Rules of Court (Rules) with prayer for issuance of
preliminary injunction and/or temporary restraining order seeks to reverse and set aside the
August 18, 2009 Resolution1 and February 8, 2010 Order2 of respondent Sandiganbayan
Second Division in Criminal Case No. SB-09-CRM-0080, which denied petitioner's Motion to
Dismiss on the ground of la9k of jurisdiction.

The facts are plain and undisputed.

Petitioner Danilo A. Duncano is, at the time material to the case, the Regional Director of the
Bureau of Internal Revenue (BIR) with Salary Grade 26 as classified under Republic Act (R.A.)
No. 6758.3 On March 24, 2009,4 the Office of the Special Prosecutor (OSP), Office of the
Ombudsman, filed a criminal case against him for violation of Section 8, in relation to Section 11
of R.A. No. 6713,5 allegedly committed as follows:
That on or about April 15, 2003, or sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, accused DANILODUNCANO y
ACIDO, a high ranking public officer, being the Regional Director of Revenue Region No. 7, of
the Bureau of Internal Revenue, Quezon City, and as such is under an obligation to accomplish
and submit declarations under oath of his assets, liabilities and net worth and financial and
business interests, did then and there, wilfully, unlawfully and criminally fail to disclose in his
Sworn Statement of Assets and Liabilities and Networth (SALN) for the year 2002, his financial
and business interests/connection in Documail Provides Corporation and Don Plus Trading of
which he and his family are the registered owners thereof, and the 1993 Nissan Patrol motor
vehicle registered in the name of his son VINCENT LOUIS P. DUNCANO which are part of his
assets, to the damage and prejudice of public interest.

CONTRARY TO LAW.6

Prior to his arraignment, petitioner filed a Motion to Dismiss With Prayer to Defer the Issuance
of Warrant of Arrest7before respondent Sandiganbayan Second Division. As the OSP alleged,
he admitted that he is a Regional Director with Salary Grade 26. Citing Inding v.
Sandiganbayan8 and Serana v. Sandiganbayan, et al.,9 he asserted that under Presidential
Decree (P.D.) No. 1606, as amended by Section 4 (A) (1) of R.A No. 8249,10 the
Sandiganbayan has no jurisdiction to try and hear the case because he is an official of the
executive branch occupying the position of a Regional Director but with a compensation that is
classified as below Salary Grade 27.

In its Opposition,11 the OSP argued that a reading of Section 4 (A) (1) (a) to (g) of the subject
law would clearly show that the qualification as to Salary Grade 27 and higher applies only to
officials of the executive branch other than the Regional Director and those specifically
enumerated. This is so since the term "Regional Director" and "higher" are separated by the
conjunction "and," which signifies that these two positions are different, apart and distinct, words
but are conjoined together "relating one to the other" to give effect to the purpose of the law.
The fact that the position of Regional Director was specifically mentioned without indication as
to its salary grade signifies the lawmakers’ intention that officials occupying such position,
regardless of salary grade, fall within the original and exclusive jurisdiction of the
Sandiganbayan. This issue, it is claimed, was already resolved in Inding. Finally, the OSP
contended that the filing of the motion to dismiss is premature considering that the
Sandiganbayan has yet to acquire jurisdiction over the person of the accused.

Still not to be outdone, petitioner invoked the applicability of Cuyco v. Sandiganbayan12 and
Organo v. Sandiganbayan13 in his rejoinder.

On August 18, 2009, the Sandiganbayan Second Division promulgated its Resolution,
disposing: WHEREFORE, in the light of the foregoing, the Court hereby DENIES the instant
Motion to Dismiss for being devoid of merit. Let a Warrant of Arrest be therefore issued against
the accused.

SO ORDERED.14

The respondent court ruled that the position of Regional Director is one of those exceptions
where the Sandiganbayan has jurisdiction even if such position is not Salary Grade 27. It was
opined that Section 4 (A) (1) of R.A No. 8249 unequivocally provides that respondent court has
jurisdiction over officials of the executive branch of the government occupying the position of
regional director and higher, otherwise classified as Salary Grade 27 and higher, of R.A. No.
6758, including those officials who are expressly enumerated in subparagraphs (a) to (g). In
support of the ruling, this Court’s pronouncements in Indingand Binay v. Sandiganbayan15 were
cited.

Petitioner filed a Motion for Reconsideration, but it was denied;16 Hence, this petition.

Instead of issuing a temporary restraining order or writ of preliminary injunction, the Court
required respondents to file a comment on the petition without necessarily giving due course
thereto.17 Upon compliance of the OSP, a Rejoinder (supposedly a Reply) was filed by
petitioner.

At the heart of the controversy is the determination of whether, according to P.D. No. 1606, as
amended by Section 4 (A) (1) of R.A No. 8249, only Regional Directors with Salary Grade of 27
and higher, as classified under R.A. No. 6758, fall within the exclusive jurisdiction of the
Sandiganbayan. Arguing that he is not included among the public officials specifically
enumerated in Section 4 (A) (1) (a) to (g) of the law and heavily relying as well on Cuyco,
petitioner insists that respondent court lacks jurisdiction over him, who is merely a Regional
Director with Salary Grade 26. On the contrary, the OSP maintains that a Regional Director,
irrespective of salary grade, falls within the exclusive original jurisdiction of the Sandiganbayan.
We find merit in the petition.

The creation of the Sandiganbayan was mandated by Section 5, Article XIII of the 1973
Constitution.18 By virtue of the powers vested in him by the Constitution and pursuant to
Proclamation No. 1081, dated September 21, 1972, former President Ferdinand E. Marcos
issued P.D. No. 1486.19 The decree was later amended by P.D. No. 1606,20Section 20 of Batas
Pambansa Blg. 129,21 P.D. No. 1860,22 and P.D. No. 1861.23

With the advent of the 1987 Constitution, the special court was retained as provided for in
Section 4, Article XI thereof.24 Aside from Executive Order Nos. 1425 and 14-a,26 and R.A.
7080,27 which expanded the jurisdiction of the Sandiganbayan, P.D. No. 1606 was further
modified by R.A. No. 7975,28 R.A. No. 8249,29 and just this year, R.A. No. 10660.30

For the purpose of this case, the relevant provision is Section 4 of R.A. No. 8249, which states:
SEC. 4. Section 4 of the same decree is hereby further amended to read as follows:

"SEC. 4. Jurisdiction.– The Sandiganbayan shall exercise exclusive original jurisdiction in all
cases involving:

"A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim capacity, at the time of
the commission of the offense:

"(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade ‘27’ and higher, of the Compensation and Position Classification
Act of 1989 (Republic Act No. 6758), specifically including:
 "(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan,
and provincial treasurers, assessors, engineers, and other provincial department heads;

"(b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department heads;

"(c) Officials of the diplomatic service occupying the position of consul and higher;

"(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

"(e) Officers of the Philippine National Police while occupying the position of provincial
director and those holding the rank of senior superintendent or higher;

"(f) City and provincial prosecutors and their assistants, and officials and prosecutors in
the Office of the Ombudsman and special prosecutor;

"(g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions or foundations.

"(2) Members of Congress and officials thereof classified as Grade ‘27’ and up under the
Compensation and Position Classification Act of 1989;

"(3) Members of the judiciary without prejudice to the provisions of the Constitution;

"(4) Chairmen and members of Constitutional Commission, without prejudice to the

provisions of the Constitution; and

"(5) All other national and local officials classified as Grade ‘27’ and higher under the
Compensation and Position Classification Act of 1989.

"B. Other offenses or felonies whether simple or complexed with other crimes committed by the
public officials and employees mentioned in subsection a of this section in relation to their office.

"C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2,
14 and 14-A, issued in 1986.

x x x"

Based on the afore-quoted, those that fall within the original jurisdiction of the Sandiganbayan
are: (1) officials of the executive branch with Salary Grade 27 or higher, and (2) officials
specifically enumerated in Section 4 (A) (1) (a) to (g), regardless of their salary grades. 31 While
the first part of Section 4 (A) covers only officials of the executive branch with Salary Grade 27
and higher, its second part specifically includes other executive officials whose positions may
not be of Salary Grade 27 and higher but who are by express provision of law placed under the
jurisdiction of the Sandiganbayan.32

That the phrase "otherwise classified as Grade ‘27’ and higher" qualifies "regional director and
higher" is apparent from the Sponsorship Speech of Senator Raul S. Roco on Senate Bill Nos.
1353and 844, which eventually became R.A. Nos. 7975 and 8249, respectively:
As proposed by the Committee, the Sandiganbayan shall exercise original jurisdiction over the
cases assigned to it only in instances where one or more of the principal accused are officials
occupying the positions of regional director and higher or are otherwise classified as Grade 27
and higher by the Compensation and Position Classification Act of 1989, whether in a
permanent, acting or interim capacity at the time of the commission of the offense. The
jurisdiction, therefore, refers to a certain grade upwards, which shall remain with the
Sandiganbayan.33 (Emphasis supplied)

To speed up trial in the Sandiganbayan, Republic Act No. 7975 was enacted for that Court to
concentrate on the "larger fish" and leave the "small fry" to the lower courts. This law became
effective on May 6, 1995 and it provided a two-pronged solution to the clogging of the dockets of
that court, to wit:

It divested the Sandiganbayan of jurisdiction over public officials whose salary grades were at
Grade "26" or lower, devolving thereby these cases to the lower courts, and retaining the
jurisdiction of the Sandiganbayan only over public officials whose salary grades were at Grade
"27" or higher and over other specific public officials holding important positions in government
regardless of salary grade; x x x34 (Emphasis supplied)

The legislative intent is to allow the Sandiganbayan to devote its time and expertise to big-time
cases involving the so-called "big fishes" in the government rather than those accused who are
of limited means who stand trial for "petty crimes," the so-called "small fry," which, in turn, helps
the court decongest its dockets.35

Yet, those that are classified as Salary Grade 26 and below may still fall within the jurisdiction of
the Sandiganbayan, provided that they hold the positions enumerated by the law.36 In this
category, it is the position held, not the salary grade, which determines the jurisdiction of the
Sandiganbayan.37 The specific inclusion constitutes an exception to the general qualification
relating to "officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade ‘27’ and higher, of the Compensation and Position
Classification Act of 1989."38 As ruled in Inding:

Following this disquisition, the paragraph of Section 4 which provides that if the accused is
occupying a position lower than SG 27, the proper trial court has jurisdiction, can only be
properly interpreted as applying to those cases where the principal accused is occupying a
position lower than SG 27 and not among those specifically included in the enumeration in
Section 4 a. (1) (a) to (g). Stated otherwise, except for those officials specifically included in
Section 4 a. (1) (a) to (g), regardless of their salary grades, over whom the Sandiganbayan has
jurisdiction, all other public officials below SG 27 shall be under the jurisdiction of the proper trial
courts "where none of the principal accused are occupying positions corresponding to SG 27 or
higher." By this construction, the entire Section 4 is given effect. The cardinal rule, after all, in
statutory construction is that the particular words, clauses and phrases should not be studied as
detached and isolated expressions, but the whole and every part of the statute must be
considered in fixing the meaning of any of its parts and in order to produce a harmonious whole.
And courts should adopt a construction that will give effect to every part of a statute, if at all
possible. Ut magis valeat quam pereat or that construction is to be sought which gives effect to
the whole of the statute – its every word.39

Thus, to cite a few, We have held that a member of the Sangguniang Panlungsod,40 a
department manager of the Philippine Health Insurance Corporation (Philhealth),41 a student
regent of the University of the Philippines,42 and a Head of the Legal Department and Chief of
the Documentation with corresponding ranks of Vice-Presidents and Assistant Vice-President of
the Armed Forces of the Philippines Retirement and Separation Benefits System (AFP-
RSBS)43 fall within the jurisdiction of the Sandiganbayan.

Petitioner is not an executive official with Salary Grade 27 or higher. Neither does he hold any
position particularly enumerated in Section 4 (A) (1) (a) to (g). As he correctly argues, his case
is, in fact, on all fours with Cuyco.1avvphi1Therein, the accused was the Regional Director of
the Land Transportation Office, Region IX, Zamboanga City, but at the time of the commission
of the crime in 1992, his position was classified as Director II with Salary Grade 26.44It was
opined: Petitioner contends that at the time of the commission of the offense in 1992, he was
occupying the position of Director II, Salary Grade 26, hence, jurisdiction over the cases falls
with the Regional Trial Court.

We sustain petitioner's contention.

The Sandiganbayan has no jurisdiction over violations of Section 3(a) and (e), Republic Act No.
3019, as amended, unless committed by public officials and employees occupying positions of
regional director and higher with Salary Grade "27" or higher, under the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758) in relation to their office.

In ruling in favor of its jurisdiction, even though petitioner admittedly occupied the position of
Director II with Salary Grade "26" under the Compensation and Position Classification Act of
1989 (Republic Act No. 6758), the Sandiganbayan incurred in serious error of jurisdiction, and
acted with grave abuse of discretion amounting to lack of jurisdiction in suspending petitioner
from office, entitling petitioner to the reliefs prayed for.45

In the same way, a certification issued by the OIC – Assistant Chief, Personnel Division of the
BIR shows that, although petitioner is a Regional Director of the BIR, his position is classified as
Director II with Salary Grade 26.46

There is no merit in the OSP’s allegation that the petition was prematurely filed on the ground
that respondent court has not yet acquired jurisdiction over the person of petitioner. Records
disclose that when a warrant of arrest was issued by respondent court, petitioner voluntarily
surrendered and posted a cash bond on September 17, 2009.Also, he was arraigned on April
14, 2010,prior to the filing of the petition on April 30, 2010.

WHEREFORE, the foregoing considered, the instant petition for certiorari is GRANTED. The
August 18, 2009 Resolution and February 8, 2010 Order of the Sandiganbayan Second
Division, which denied petitioner's Motion to Dismiss on the ground of lack of jurisdiction, are
REVERSED AND SET ASIDE.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:
 PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO* MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ**

Associate Justice

ATTESTATION

I attest 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's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the, Constitution and the Division Chairperson's
Attestation, 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's Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*
Designated Acting Member in lieu of Associate Justice Francis H. Jardeleza, per
Special Order No. 2095 dated July I, 2015.

**
Designated Acting Member in lieu of Associate Justice Bienvenido L. Reyes, per
Special Order No. 2084 dated June 29, 2015.

1
Penned by Associate Justice Teresita V. Diaz-Baldos, with Associate Justices Edilberto
G. Sandoval and Samuel R. Martires concurring; rollo, pp. 28-34.

2
Id. at 35-38.

3
Otherwise known as the Compensation and Position Classification Act of 1989.

4
Rollo, p. 39.
5
Otherwise known as the Code of Conduct and Ethical Standards for Public Officials
and Employees.

6
Rollo, pp. 39-40.

7
Id. at 42-46.

8
478 Phil. 506 (2004).

9
566 Phil. 224 (2008).

10
An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending for the
Purpose Presidential Decree No. 1606, As Amended, Providing Funds Therefor, and For
Other Purposes.

11
Rollo, pp. 47-60.

12
381 Phil. 906 (2000).

13
372 Phil. 816 (1999).

14
Rollo, p. 33.

15
374 Phil. 413 (1999).

16
Rollo, pp. 35-38, 61-70.

17
Id. at 73.

18
SEC. 5.The Batasang Pambansa shall create a special court, to be known as
Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft
and corrupt practices and such other offenses committed by public officers and
employees including those in government-owned or controlled corporations, in relation to
their office as may be determined by law.

19
Entitled Creating A Special Court To Be Known As "Sandiganbayan" And For Other
Purposes,Effective on June 11, 1978.

20
Entitled Revising Presidential Decree No. 1486 Creating A Special Court To Be
Known As "Sandiganbayan" And For Other Purposes, Effective on December 10,1978.

21
The Judiciary Reorganization Act of 1980 (August 14, 1981) provided: Sec. 20.
Jurisdiction in criminal cases. – Regional Trial Courts shall exercise exclusive original
jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal
or body, except those now falling under the exclusive and concurrent jurisdiction of the
Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter.
(See Lacson v. Executive Secretary, 361 Phil. 251, 264 [1999] and Maj. Gen. Garcia v.
Sandiganbayan, 499 Phil. 589, 607 [2005])
22
Entitled Amending The Pertinent Provisions Of Presidential Decree No. 1606 And
Batas Pambansa Blg. 129 Relative To The Jurisdiction Of The Sandiganbayan And For
Other Purposes, Effective on January 14, 1983.

23
Entitled Amending The Pertinent Provisions Of Presidential Decree No. 1606 And
Batas Pambansa Blg. 129 Relative To The Jurisdiction Of The Sandiganbayan And For
Other Purposes, Effective on March 23, 1983.

24
Section 4. The present anti-graft court known as the Sandiganbayan shall continue to
function and exercise its jurisdiction as now or hereafter may be provided by law.

25
Entitled Defining The Jurisdiction Over Cases Involving The Ill-Gotten Wealth Of
Former President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, Members Of Their
Immediate Family, Close Relatives, Subordinates, Close And/Or Business Associates,
Dummies, Agents And Nominees, Effective on May 7, 1986.

26
Effective on August 18, 1986.

27
Entitled An Act Defining And Penalizing The Crime Of Plunder, Approved on July 12,
1991.

28
Entitled An Act To Strengthen The Functional And Structural Organization Of The
Sandiganbayan, Amending For That Purpose Presidential Decree No. 1606, As
Amended, Approved on March 30, 1995 and took effect on May 16, 1995 (See Lacson v.
Executive Secretary, 361 Phil. 251, 264 [1999]).

29
Entitled An Act Further Defining The Jurisdiction Of The Sandiganbayan, Amending
For The Purpose Presidential Decree No. 1606, As Amended, Providing Funds Therefor,
And For Other Purposes, Approved on February 5, 1997.

30
Entitled An Act Strengthening Further the Functional and Structural Organization of
the Sandiganbayan, Further Amending Presidential Decree No. 1606, As Amended, and
Appropriating Funds Therefor, Approved on April 16, 2015.

31
See Inding v. Sandiganbayan, supra note 8, at 520-521.

32
Geduspan v. People, 491 Phil. 375, 380 (2005), as cited in Lazarte, Jr. v.
Sandiganbayan (First Division), et al., 600 Phil. 475, 497 (2009); Serana v.
Sandiganbayan, et al., 566 Phil. 224, 249 (2008); and Alzaga v. Sandiganbayan (2nd
Division), 536 Phil. 726, 731 (2006).

33
RECORD OF THE SENATE, Vol. IV, No. 60, February 8, 1995, p. 701.

34
RECORD OF THE SENATE, Vol. I, No. 24, September 25, 1996, p. 799.

35
See RECORD OF THE SENATE, Vol. IV, No. 60, February 8, 1995, pp. 700-701.

36
People v. Sandiganbayan (Third Div.) et al., 613 Phil. 407 (2009).
37
Alzaga v. Sandiganbayan (2nd Division), supra note 32.

38
See Inding v. Sandiganbayan, supra note 8, at 520.

39
Id. at 526-527.

40
People v. Sandiganbayan (Third Div.) et al., 645 Phil. 53 (2010); People v.
Sandiganbayan (Third Div.) et al., supra note 36; and Inding v. Sandiganbayan, supra
note 8.

41
Geduspan v. People, supra note 32.

42
Serana v. Sandiganbayan, et al., supra note 32.

43
Alzaga v. Sandiganbayan (2nd Division), supra note 32, citing People v.
Sandiganbayan, 456 Phil. 136 (2003) and Ramiscal, Jr. v. Hon. Sandiganbayan, 487
Phil. 384 (2004).

44
See Geduspan v. People, supra note 32, at 379.

45
Cuyco v. Sandiganbayan, supra note 12, at 910.

46
Rollo, p. 71.
Firestone Ceramics v Court of Appeals 1127245

EN BANC

[G.R. No. 127022. June 28, 2000.]

FIRESTONE CERAMICS, INC., BOOMTOWN DEVELOPMENT CORPORATION, Spouses

CYNTHIA D. CHING and CHING TIONG KENG, Spouses CARMEN SOCO and
LORENZO ONG ENG CHONG, Spouses SOLEDAD B. YU and YU SY CHIA and LETICIA
NOCOM CHAN, Petitioners, v. COURT OF APPEALS, LORENZO J. GANA, PATROCINIO
E. MARGOLLES, ALICE E. SOTTO, VIRGINIA E. VILLONGCO, EDGARDO C.
ESPINOSA, LUCIA E. LAPERAL, NORMA C. ESPINOSA, TERESITA E. CASAL, PELTAN
DEVELOPMENT, INC., REGIONAL TRIAL COURT (formerly CFI of Rizal) and the
REGISTER OF DEEDS OF LAS PIÑAS, METRO MANILA, Respondents.

ALEJANDRO B. REY, petitioner-intervenor.

[G.R. No. 127245. June 28, 2000.]

 REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR, LAND
MANAGEMENT BUREAU, Petitioner, v. HON. COURT OF APPEALS, LORENZO J.
GANA, PATROCINIO E. MARGOLLES, ALICE E. SOTTO, VIRGINIA E. VILLONGCO,
EDGARDO C. ESPINOSA, LUCIA A. LAPERAL, NORMA C. ESPINOSA, TERESITA E.
CASAL, PELTAN DEVELOPMENT INC., THE REGIONAL TRIAL COURT (formerly CFI)
of RIZAL, and THE REGISTER OF DEEDS OF LAS PIÑAS, Respondents.

RESOLUTION

PURISIMA, J.:

This resolves petitioners’ Motions to Refer to the Court En Banc these consolidated
cases, which the Third Division decided on September 2, 1999. The motions for
reconsideration seasonably filed by the petitioners, Republic of the Philippines and
Firestone Ceramics, Inc., Et Al., are pending.

Under Supreme Court Circular No. 2-89, dated February 7, 1989, as amended by
the Resolution of November 18, 1993:chanrobles virtuallawlibrary

. . ., the following are considered en banc cases:chanrob1es virtual 1aw library

1. Cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, executive order, or presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question;

2. Criminal cases in which the appealed decision imposes the death penalty;

3. Cases raising novel questions of law;

4. Cases affecting ambassadors, other public ministers and consuls;

5. Cases involving decisions, resolutions or orders of the Civil Service Commission,

Commission on Elections, and Commission on Audit;

6. Cases where the penalty to be imposed is the dismissal of a judge, officer or

employee of the judiciary, disbarment of a lawyer, or either the suspension of any
of them for a period of more than one (1) year or a fine exceeding P10,000.00 or
both;

7. Cases where a doctrine or principle laid down by the court en banc or in division
may be modified or reversed;

8. Cases assigned to a division which in the opinion of at least three (3) members
thereof merit the attention of the court en banc and are acceptable to a majority of
the actual membership of the court en banc; and
9. All other cases as the court en banc by a majority of its actual membership may
deem of sufficient importance to merit its attention.

The cases at bar involve a vast tract of land with an area of around ninety-nine (99)
hectares presumptively belonging to the Republic of the Philippines, which land had
been adjudicated to private individuals by a court alleged to be without jurisdiction.
Since the validity of the said decision and the original certificate of title as well as
transfer certificates of title issued pursuant thereto hinges on the classification of
subject area at the time it was so adjudicated, determination of the validity of the
disposition thereof is in order.

The assailed decision does not indicate the classification of the land in question,
when the herein private respondents obtained their decree of registration
thereover.

In Limketkai Sons Milling, Inc. v. Court of Appeals, the Court conceded that it is not
infallible. Should any error of judgment be perceived, it does not blindly adhere to
such error, and the parties adversely affected thereby are not precluded from
seeking relief therefrom, by way of a motion for reconsideration. In this jurisdiction,
rectification of an error, more than anything else, is of paramount importance.

Here, there was submitted to the Court en consulta, petitioners’ Motions to Refer to
the Court En Banc these consolidated cases for the consideration of the Court. A
pleading, entitled "FOR THE CONSIDERATION OF THE COURT EN BANC, EN
CONSULTA," was presented but when the same was first brought to its attention on
March 7, 2000, the Court opined that since the Third Division had not yet acted on
subject motions to refer the cases to the Banc, it was then premature for the Court
to resolve the consulta. However, the Court succinctly cautioned that the action of
the Third Division on the matter would just be tentative.

On March 8, 2000, the Third Division voted 4-1 to deny petitioners’ motion to
transfer these cases to the Banc. Thus, on March 14, 2000, the Court deliberated
on the consulta and thereafter, voted 9-5 to accept the cases for the Banc to pass
upon in view of the finding that the cases above entitled are of sufficient
importance to merit its attention. Evidently, the action of the Court under the
premises is a legitimate and valid exercise of its RESIDUAL POWER within the
contemplation of paragraph 9 of the Resolution En Banc of November 18, 1993,
which reads: "All other cases as the court en banc by a majority of its actual
membership may deem of sufficient importance to merit its attention." (Emphasis
supplied)

Untenable is the contention of Justice Panganiban that the Chief Justice and the
eight (8) Associate Justices who voted to treat these consolidated cases as En Banc
cases, have not given any cogent or compelling reason for such action. Considering
that paragraph 9 of the Resolution of this Court dated November 18, 1993, has
been cited to support the majority opinion, it is decisively clear that these
consolidated cases have been found to be of sufficient importance to merit the
attention and disposition of the entire Court en banc and therefore, the prayer of
the Republic of the Philippines and the private petitioners for the Court en banc to
hear and resolve their pending motions for reconsideration, is meritorious. The
aforesaid finding by the Court constitutes a reason cogent and compelling enough
to warrant the majority ruling that the Court En Banc has to act upon and decide
petitioners’ motions for reconsideration.

It bears stressing that where, as in the present cases, the Court En Banc entertains
a case for its resolution and disposition, it does so without implying that the
Division of origin is incapable of rendering objective and fair justice. The action of
the Court simply means that the nature of the cases calls for en banc attention and
consideration. Neither can it be concluded that the Court has taken undue
advantage of sheer voting strength. It was merely guided by the well-studied
finding and sustainable opinion of the majority of its actual membership — that,
indeed, subject cases are of sufficient importance meriting the action and decision
of the whole Court. It is, of course, beyond cavil that all the members of this
highest Court of the land are always imbued with the noblest of intentions in
interpreting and applying the germane provisions of law, jurisprudence, rules and
Resolutions of the Court — to the end that public interest be duly safeguarded and
rule of law be observed.

Reliance by Justice Panganiban on the ruling of the Court in the Sumilao case is
misplaced. The said case is not on all fours with these cases. In the Sumilao case,
before it was brought to the Banc en consulta, the motion for reconsideration of the
decision therein rendered had been voted upon by the Second Division with a vote
of 2-2. The Court ruled that the stalemate resulting from the said voting constituted
a denial of the motion for reconsideration.chanrobles.com : virtual law library

In the two consolidated cases under consideration, however, the Motions for
Reconsideration of the petitioners, Republic of the Philippines and Firestone
Ceramics, Inc., Et Al., are pending and unresolved.

Taking into account the importance of these cases and the issues raised, let alone
the enormous value of the area in litigation, which is claimed as government
property, there is merit in the prayer of petitioners that their pending motions for
reconsideration should be resolved by the Court En Banc.

WHEREFORE, these consolidated cases are considered and treated as en banc

cases; and petitioners’ motions for reconsideration are hereby set for oral argument
on July 18, 2000, at 11:00 a.m. Let corresponding notices issue.

SO ORDERED.chanroblesvirtuallawlibrary

Davide, Jr., C.J., Bellosillo, Kapunan, Mendoza, Buena, Ynares-Santiago and De

Leon, Jr., JJ., concur.

Melo, J., joined the dissents and in lieu of the close vote, urge that this action be
not repeated and that it be reviewed again.
Vitug, J., joined the dissenting justices.

Separate Opinions

PUNO, J., dissenting:chanrob1es virtual 1aw library

In the session last March 21, 2000, information was given that a majority of the
members of the Third Division intends to hear the Motion for Reconsideration filed
by the Republic and then report its result to the Court en banc. I sincerely believe
that the result of the said oral arguments will be a vital factor to consider before the
court en banc should finally decide to assume jurisdiction over the case at bar. The
issue for resolution in the said Motion for Reconsideration concerns res judicata.
This is an issue that does not strictly involve a question of law for beyond doubt its
resolution will rest on some amorphous questions of fact. Until and unless these
questions of fact are sharpened and given shape in the intended oral arguments, I
am of the opinion and so vote that the Court en banc should defer its action to
assume jurisdiction over the case at bar.chanrob1es virtua1 1aw 1ibrary

GONZAGA-REYES, J., dissenting:chanrob1es virtual 1aw library

With due respect, I am constrained to dissent from the acceptance by the Court en
banc of the referral of the motions for reconsideration in the cases at bar. The
justification for the referral is stated thus:jgc:chanrobles.com.ph

"These cases involve a vast tract of land around ninety-nine (99) hectares
presumptively belonging to the Republic of the Philippines, which land had been
adjudicated to private individuals under a decision allegedly rendered by a court
without jurisdiction. Since the validity of the said decision and of the original
certificate of title as well as transfer certificates of title issued pursuant thereto is
contingent on the character or classification of subject area at the time it was so
adjudicated to private persons, the determination of the same is essential. The
decision sought to be reconsidered does not clearly reflect or indicate the correct
character of the land involved at the time the private respondents obtained a
degree of registration thereover. Thus, should it be established that indeed the land
in question was still within the forest zone and inalienable at the time of its
disposition to private parties, reversal of this Court’s decision is in order.

In Lemketkai Sons Milling, Inc. v. Court of Appeals, 1 this Court has acknowledged
that it is not infallible and that, if upon examination an error in judgment is
perceived, the Court is not obliged to blindly adhere to such decision and the
parties are not precluded from seeking relief by way of a motion for
reconsideration. In this jurisdiction, rectification of an error, more than anything
else, is paramount."cralaw virtua1aw library

The fact alone that the property involved covers an area of 99 hectares does not
provide a cogent reason to elevate the cases to the Court en banc. Nowhere in the
extent guidelines for referral to the Court en banc is the value of the property
subject of the case relevant to determine whether the division should refer a matter
to the Court en banc. Moreover, the validity of OCT No. 4216, which petitioner
Republic raised as a principal issue in the instant petition, had already been long
settled by final judgments of this Court in three (3) cases. 2

It was also submitted that the cases are of sufficient importance to be "reexamined
and reviewed" by the Court en banc pursuant to S. C. Circular No. 2-89 dated
February 7, 1989 as amended by the Resolution of November 18, 1993, which
considers the following, among others, as en banc cases:chanrob1es virtual 1aw
library

x x x

"9. All other cases as the Court en banc by a majority of its actual membership may
deem of sufficient importance to merit its attention."cralaw virtua1aw library

It is believed that the acceptance by the court en banc of the referral on the
proposal of one member of the division is not called for on the following
grounds:chanrob1es virtual 1aw library

(1) The motion for reconsideration from the decision unanimously adopted by the
3rd Division on September 2, 1999 is still pending. If there is any error to be
rectified in the said decision, the matter should be left to the sound judgment of the
members of the division which promulgated the decision unless there is a
demonstrated incapacity or disqualification on the part of its members to render a
fair and just resolution of the motion for reconsideration.

(2) The court en banc is not an appellate court to which a decision or resolution
may be appealed:chanrob1es virtua1 1aw 1ibrary

Article VIII, Section 4, of the 1987 Constitution provides:jgc:chanrobles.com.ph

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

(2) All cases involving the constitutionality of a treaty, international or executive

agreement, or law which shall be heard by the Supreme Court en banc, and all
other cases which under the Rules of Court are required to be heard en banc,
including those involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of majority of the members who
actually took part in the deliberations on the issues in the case and voted thereon.

(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of majority of the Members who actually took part in the deliberations
on the issues in the case and voted thereon, and in no case without the
concurrence of at least three of such Members. When the required number is not
obtained, the case shall be decided en banc; Provided, that no doctrine or principle
of law laid down by the court in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc."cralaw virtua1aw library

It is implicit in the paragraph immediately preceding that decisions or resolutions of

a division of the court, when concurred in by a majority of its members who
actually took part in the deliberations on the issues in a case and voted thereon is a
decision or resolution of the Supreme Court itself. The Supreme Court sitting en
banc is not an appellate court vis a vis its Divisions, and it exercises no appellate
jurisdiction over the latter. Each division of the Court is considered not a body
inferior to the Court en banc, and sits veritably as the Court en banc itself. The only
constraint is that any doctrine or principle of law laid down by the Court, either
rendered en banc or in division, may be overturned or reversed only by the Court
sitting en banc.

(3) Circular No. 2-89 of the Court en banc laid down the following Guidelines and
Rules on the referral to the Court en banc of cases assigned to a
Division:jgc:chanrobles.com.ph

"1. The Supreme Court sits either en banc or in Divisions of three, five or seven
Members (Sec. 4[1]. Article VIII, 1987 Constitution). At present the Court has three
Divisions of five Members each.

2. A decision or resolution of a Division of the Court, when concurred in by a

majority of its Members who actually took part in the deliberations on the issues in
a case and voted thereon, and in no case without the concurrence of at least three
of such Members, is a decision or resolution of the Supreme Court (Section 4[3].
Article VIII, 1987 Constitution).

3. The Court en banc is not an Appellate Court to which decisions or resolutions of a

Division may be appealed.

4. At any time after a Division takes cognizance of a case and before a judgment or
resolution therein rendered becomes final and executory, the Division may refer the
case en consulta to the Court en banc which, after consideration of the reasons of
the Division for such referral, may return the case to the Division or accept the case
for decision or resolution.

4a. Paragraph [f] of the Resolution of this Court of 23 February 1984 in Bar Matter
No. 205 (formerly item 6, en banc Resolution dated 29 September 1977),
enumerating the cases considered as en banc cases, states:jgc:chanrobles.com.ph

"f. Cases assigned to a division including motions for reconsideration which in the
opinion of at least three (3) members merit the attention of the Court en banc and
are acceptable by a majority vote of the actual members of the Court en
banc."cralaw virtua1aw library

5. A resolution of the Division denying a party’s motion for referral to the Court en
banc of any Division case, shall be final and not appealable to the Court en banc.

6. When a decision or resolution is referred by a Division to the Court en banc, the

latter may, in the absence of sufficiently important reasons, decline to take
cognizance of the same, in which case, the decision or resolution shall be returned
to the referring Division.

7. No motion for reconsideration of the action of the Court en banc declining to take
cognizance of a referral by a Division, shall be entertained.

8. This Circular shall take effect on March 1, 1989." chanrob1es virtua1 1aw 1ibrary

In the Resolution of the Court en banc dated November 18, 1993, the following
were enumerated as the cases to be considered as "en banc cases"
:jgc:chanrobles.com.ph

"1. Cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, executive order, or presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question;

2. Criminal cases in which the appealed decision imposes the death penalty;

3. Cases raising novel questions of law;

4. Cases affecting ambassadors, other public ministers and consuls;

5. Cases involving decisions, resolutions or orders of the Civil Service Commission,

Commission on Elections, and Commission on Audit;

6. Cases where the penalty to be imposed is the dismissal of a judge, officer or

employee of the judiciary, disbarment of a lawyer, or either the suspension of any
of them for a period of more than one (1) year or a fine exceeding P10,000.00 or
both;

7. Cases where a doctrine or principle laid down by the court en banc or in division
may be modified or reversed;

8. Cases assigned to a division which in the opinion of at least three (3) members
thereof merit the attention of the court en banc and are acceptable to a majority of
the actual membership of the court en banc; and

9. All other cases as the court en banc by a majority of its actual membership may
deem of sufficient importance to merit its attention."cralaw virtua1aw library

Notably, the rule that "cases assigned to a division which is the opinion of at least
three (3) members thereof merit the attention of the Court en banc and are
acceptable to a majority of the actual membership of the Court en banc" has been
reiterated.

However, a new paragraph was added in the 1993 Resolution, as

follows:jgc:chanrobles.com.ph

"9. All other cases as the Court en banc by a majority of its actual membership may
deem of sufficient importance to merit its attention."cralaw virtua1aw library

The immediately foregoing paragraph may lend itself to an interpretation that any
case which the Court en banc by majority vote of its members "may deem of
sufficient importance to merit its attention" is an en banc case.

This interpretation is of doubtful validity and soundness.

To begin with, Resolution dated November 18, 1993 is essentially an amendment to

Sections 15 and 16, Rule 136 of the Rules of Court which deals with the form
("unglazed paper," margins, number of copies, etc.) of unprinted and printed
papers to be filed with this Court. This Resolution was clearly not intended to lay
down new guidelines or rules for referral to the court en banc of cases assigned to a
Division. Thus, the principle that the court en banc is not an appellate court to
which decisions or resolutions of a Division may be appealed could not have been
intended to be abrogated. Article VIII, Section 4 of the Constitution, earlier quoted,
expressly provides that "when the required number (the concurrence of at least
three members of the division) is not obtained, the case shall be decided en banc."
The obvious contemplation is that when the required vote of at least three
members is obtained, the banc’s participation is not called for.

(4) It is true that the Constitution itself recognizes the power of the Supreme Court
to require other cases to be heard en banc (Article VIII, Sec. 4 (2)). As pointed out,
the November 18, 1993 Resolution quoted earlier, could not, by reading the
issuance in proper context, have been intended to expand the enumeration of en
banc cases. A reasonable interpretation is that paragraph 9 refers to cases accepted
by the banc pursuant to existing rules, foremost of which is that the referral
requires the concurrence of at least three of the members of the division. If the
provision "all other cases as the court en banc by a majority of its actual
membership may deem of sufficient importance to merit its attention" was intended
to give the court en banc a general residual power and prerogative to cause the
elevation of any case assigned to a division, without a consulta from the division
itself, this intent should be ineluctably expressed, having in mind the essential and
traditional role of a division of the court sitting veritably as the court en banc itself.

The court en banc should be shielded from the importunings of litigants who
perceive themselves aggrieved by a decision of a division of the court and resort to
the convenience of an appeal to the court en banc on the plea that its case is "of
sufficient importance to merit its attention." In the Sumilao case, the majority of
the banc’s members refused to take the case where there was a two-two tie vote in
the division for the elevation of the motion for reconsideration to the court en banc.
In an earlier precedent involving the conviction of Imelda Marcos by the
Sandiganbayan, the case was considered as deserving of a full court treatment,
despite the fact that the motion for reconsideration did not garner a majority vote
in the division. The Court should establish a consistent policy on these referrals for
the stability of its policies and procedures.

The prerogative to take out a case from the division without the concurrence of a
majority of its members, should, if at all, be used only for clearly compelling
reasons; otherwise the decision of the Court en banc to take cognizance of the
matter itself would be suspect of irregularity and the precedent would be difficult to
justify before litigants who may be similarly situated.

I vote to deny the motions to refer the motions for reconsideration to the Court en
banc.

Quisumbing and Pardo, JJ., concur.

PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library

With due respect, I dissent from the majority’s Resolution.

Very briefly, these are the relevant antecedents. On September 2, 1999, the Court
through the Third Division unanimously promulgated its Decision denying the
Petitions in these cases. Thereafter, both the government and private petitioners
filed separate (1) Motions for Reconsideration and (2) Motions to Refer the Cases to
the Court en Banc.chanrob1es virtua1 1aw 1ibrary

By vote of 4-1, 1 the Third Division rejected the Motions to Refer the Cases to the
full Court because the movants had utterly failed to adduce any legal reason for
such referral. Subsequently, Justice Fidel P. Purisima, the lone dissenter, asked the
Court en banc to yank the case out of and against the will of the said Division, and
to empower the banc to resolve the pending Motions for Reconsideration. By the
instant Resolution, the majority has agreed with Justice Purisima.

With due respect, I say that the majority has not given any cogent or compelling
reason for this unprecedented action. Its Resolution, penned by Justice Purisima,
simply pontificates that "these consolidated cases are of sufficient importance to
merit the attention and disposition of the entire Court," without stating why. The
majority simply used its sheer voting strength to bulldoze the earlier 4-1 action of
the Third Division. If at all, the lame excuse given that the "subject Decision
[promulgated by the Third Division] does not clearly indicate the classification of
said land" is merely an argument why the pending Motions for Reconsideration
should be granted, not why the banc should take over this case.

I fully agree with the well-reasoned Dissent of Justice Minerva P. Gonzaga-Reyes,

the ponente of the Third Division’s unanimous Decision. I write, however, to stress
one point. In the celebrated Sumilao farmers’ case, 2 a similar motion to refer to
the full Court was turned down by the Second Division by a vote of 3-1. Arguing
that the Division’s earlier vote of 2-2 on the Motion for Reconsideration was not
decisive, Justice Jose A. R. Melo (who was then a member of the Second Division)
subsequently asked the banc to take over the case. Justice Melo argued that under
Article VIII, Section 4 (3) of the Constitution," [c]ases or matters heard by a
division shall be decided or resolved with the concurrence of a majority of the
members who actually took part in the deliberations on the issues in the case and
voted thereon, and in no case without the concurrence of at least three of such
members." Since the Motion for Reconsideration did not obtain the required three
votes in the Division, he added that the banc should thus take over and resolve the
impasse. In other words, Justice Melo presented a genuine "question of sufficient
importance" — which the Second Division was not in a position to resolve — to
justify a take-over by the banc. Yet, the full Court turned down his proposal. Only
Justice Vitug and I supported Justice Melo.

I therefore cannot understand why the banc is now taking over this case against
the wishes of the Third Division. It turned down the poor farmers’ plea and the Melo
proposal. Why then should the banc grant the not-so-poor private petitioners’
prayer here? Why then should it approve the groundless Purisima proposal? At the
very least, if it should take over this case, then it should likewise assume
jurisdiction over the farmer’s suit. After all, the vote in the Motion for
Reconsideration in that case was two in favor and two against, while in the present
case, the Third Division has not even voted on the plea for reconsideration. In other
words, there was sufficient reason for the banc to take over the Sumilao problem
because of the 2-2 vote of the Division. Here, no cogent reason whatsoever —
other than the motherhood peroration that the case was "of sufficient importance"
— is given by the majority.

Parenthetically, I should add that the Third Division is not averse to hearing the
petitioners’ Motions for Reconsideration. As a matter of fact, if the banc did not take
over this case, it would have scheduled the said Motions for oral argument. Simply
stated, the Third Division is not incapable of rendering objective and fair justice in
this case and to rule on the issue of "classification of said land."cralaw virtua1aw
library

Having taken over this case, the banc — in the name of equal justice — should also
take over the Sumilao farmers’ Petition. But having rejected their case, then it
should also turn down this one. Sauce for the poor goose should be the same sauce
for the rich gander. That is simple, equal justice for all.chanrob1es virtua1 1aw
1ibrary

Endnotes:

GONZAGA-REYES, dissenting:chanrob1es virtual 1aw library

1. 262 SCRA 464, 467.

2. Margolles v. CA, 230 SCRA 97; Peltan Development Inc., et. al. v. CA, 270 SCRA
83; Goldenrod, Inc. v. CA and Peltan Development, Inc. G.R. No. 112038, August
10, 1994.

PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library

1. JJ Jose A.R. Melo, Jose C. Vitug, Artemio V. Panganiban and Minerva P. Gonzaga-
Reyes voted to deny said Motions, while J. Fidel P. Purisima voted to grant them.

2. Fortich v. Corona, GR No. 131457, April 24, 1998, November 17, 1998 and
August 19, 1999.

Fabian v Desierto G.R. No. 127245

EN BANC

G.R. No. 129742. September 16, 1998

TERESITA G. FABIAN Petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as ombudsman;
HON. JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon; and NESTOR V.
AGUSTIN Respondents.

DECISION

REGALADO, J:

Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court from the "Joint Order"
issued by public respondents on June 18, 1997 in OMB-Adm. Case No. 0-95-0411 which granted the
motion for reconsideration of and absolved private respondents from administrative charges for inter
aliagrave misconduct committed by him as then Assistant Regional Director, Region IV-A, Department
of Public Works and Highways (DPWH).

It appears from the statement and counter-statement of facts of the parties that petitioner Teresita G.
Fabian was the major stockholder and president of PROMAT Construction Development Corporation
(PROMAT) which was engaged in the construction business. Private respondents Nestor V. Agustin was
the incumbent District Engineering District (FMED) when he allegedly committed the offenses for which
he was administratively charged in the Office in the office of the Ombudsman.

Promat participated in the bidding for government construction project including those under the FMED,
and private respondent, reportedly taking advantage of his official position, inveigled petitioner into an
amorous relationship. Their affair lasted for some time, in the course of which private respondents gifted
PROMAT with public works contracts and interceded for it in problems concerning the same in his
office.

Later, misunderstanding and unpleasant incidents developed between the parties and when petitioner tried
to terminate their relationship, private respondent refused and resisted her attempts to do so to the extent
of employing acts of harassment, intimidation and threats. She eventually filed the aforementioned
administrative case against him in a letter-complaint dated July 24, 1995.

The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act
No. 6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service
Decree), with an ancillary prayer for his preventive suspension. For purposes of this case, the charges
referred to may be subsumed under the category of oppression, misconduct, and disgraceful or immoral
conduct.

On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private
respondents guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all
benefits under the law. His resolution bore the approval of Director Napoleon Baldrias and Assistant
Ombudsman Abelardo Aportadera of their office.

Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid resolution
with modifications, by finding private respondent guilty of misconduct and meting out the penalty of
suspension without pay for one year. After private respondent moved for reconsideration, respondent
Ombudsman discovered that the former's new counsel had been his "classmate and close associate" hence
he inhibited himself. The case was transferred to respondent Deputy Ombudsman Jesus F. Guerrero who,
in the now challenged Joint Order of June 18, 1997, set aside the February 26, 1997 Order of respondent
Ombudsman and exonerated private respondents from the administrative charges.

II

In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of
1989)1 pertinently provides that -

In all administrative diciplinary cases, orders, directives or decisions of the Office of the Ombudsman
may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt
of the written notice of the order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court. (Emphasis supplied)

However, she points out that under Section 7, Rule III of Administrative Order No. 07 (Rules of
Procedure of the office of the Ombudsman),2 when a respondent is absolved of the charges in an
administrative proceeding decision of the ombudsman is final and unappealable. She accordingly submits
that the office of the ombudsman has no authority under the law to restrict, in the manner provided in its
aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the power of review of
this Court. Because of the aforecited provision in those Rules of Procedure, she claims that she found it
"necessary to take an alternative recourse under Rule 65 of the Rules of Court, because of the doubt it
creates on the availability of appeals under Rule 45 of the Rules of Court.

Respondents filed their respective comments and rejoined that the Office of the Ombudsman is
empowered by the Constitution and the law to promulgate its own rules of procedure. Section 13(8),
Article XI of the 1987 Constitution provides, among others, that the Office of the Ombudsman can
"(p)romulgate its rules of procedure and exercise such other powers or perform such functions or duties as
may be provided by law."

Republic Act No. 6770 duly implements the Constitutional mandate with these relevant provisions:

Sec. 14. Restrictions. - x x x No court shall hear any appeal or application for remedy against the decision
or findings of the Ombudsman except the Supreme Court on pure question on law.

xxx

Sec. 18. Rules of Procedure. - (1) The Office of the Ombudsman shall promulgate
its own rules of procedure for the effective exercise or performance of its powers,
functions, and duties.

xxx

Sec. 23. Formal Investigation. - (1) Administrative investigations by the Office of

the Ombudsman shall be in accordance with its rules of procedure and consistent
with the due process. x x x

xxx

Sec. 27. Effectivity and Finality of Decisions. - All provisionary orders at the Office
of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the
Ombudsman must be filed within five (5) days after receipt of written notice shall
be entertained only on any of the following grounds:

xxx

Findings of fact by the Office of the Ombudsman when supported by substantial

evidence are conclusive. Any order, directive or decision imposing the penalty of
public censure or reprimand, suspension of not more than one month salary shall
be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office

of the Ombudsman may be appealed to the Supreme Court by filing a petition
for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with
Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the Ombudsman as
the interest of justice may require.

Respondents consequently contend that, on the foregoing constitutional and

statutory authority, petitioner cannot assail the validity of the rules of procedure
formulated by the Office of the Ombudsman governing the conduct of proceeding
before it, including those with respect to the availabity or non-avalability of appeal
in administrative cases. Such as Section 7, Rule III of Administrative Order No.07.

Respondents also question the propriety of petitioner's proposition that, although

she definitely prefaced her petition by categorizing the same as "an appeal
by certiorari under Rule 45 of the Rules of Court," she makes the aforequoted
ambivalent statement which in effect asks that, should the remedy under Rule 45
be unavailable, her petition be treated in the alternative as an original action
for certiorari under Rule 65. The parties thereafter engage in a discussion of the
differences between a petition for review on certiorari under Rule 45 and a special
civil action of certiorari under Rule 65.

Ultimately, they also attempt to review and rationalize the decision of this Court
applying Section 27 of Republic Act No. 6770 vis--vis Section 7, Rule III of
Administrative Order No. 07. As correctly pointed out by public respondents,
Ocampo IV vs. Ombudsman, et al.3 and Young vs. Office of the Ombudsman, et
al.4 were original actions for certiorari under Rule 65. Yabut vs. Office of the
Ombudsman, et al.5 was commenced by a petition for review on certiorari under
Rule 45. Then came Cruz, Jr. vs. People, et al.,6 Olivas vs. Office of the
Ombudsman, et al., 7Olivarez vs. Sandiganbayan, et al.,8 and Jao, et al. vs.
Vasquez,9which were for certiorari, prohibition and/or mandamus under Rule 65.
Alba vs. Nitorreda, et al.10 was initiated by a pleading unlikely denominated as an
"Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary
remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano
Desierto, et al.11 which was a special civil action for certiorari.

Considering, however the view that this Court now takes of the case at bar and the
issues therein which will shortly be explained, it refrains from preemptively
resolving the controverted points raised by the parties on the nature and propriety
of application of the writ of certiorari when used as a mode of appeal or as the basis
of a special original action, and whether or not they may be resorted to
concurrently or alternatively, obvious though the answers thereto appear to be.
Besides, some seemingly obiter statements in Yabuts and Alba could bear
reexamination and clarification. Hence, we will merely observe and lay down the
rule at this juncture that Section 27 of Republic Act No. 6770 is involved only
whenever an appeal by certiorari under Rule 45 is taken from a decision in an
administrative diciplinary action. It cannot be taken into account where an original
action for certiorari under Rule 65 is resorted to as a remedy for judicial review,
such as from an incident in a criminal action.

III
After respondents' separate comments had been filed, the Court was intrigued by
the fact, which does appear to have been seriously considered before, that the
administrative liability of a public official could fall under the jurisdiction of both the
Civil Service Commission and the Office of the Ombudsman. Thus, the offenses
imputed to herein private respondent were based on both Section 19 of Republic
Act. No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the
amendment of section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all
adjudications by Civil Service Commission in administrative disciplinary cases were
made appealable to the Court of Appeals effective March 18, 1995, while those of
the Office of the Ombudsman are appealable to this Court.

It could thus be possible that in the same administrative case involving two
respondents, the proceedings against one could eventually have been elevated to
the Court of Appeals, while the other may have found its way to the Ombudsman
from which it is sought to be brought to this Court. Yet systematic and efficient
case management would dictate the consolidation of those cases in the Court of
Appeals, both for expediency and to avoid possible conflicting decisions.

Then there is the consideration that Section 30, Article VI of the 1987 Constitution
provides that "(n)o law shall be passed increasing the appellate indiction of the
Supreme Court as provided in this Constitution without its advice and consent," and
that Republic Act No. 6770, with its challenged Section 27, took effect on November
17, 1989, obviously in spite of that constitutional grounds must be raised by a party
to the case, neither of whom did so in this case, but that is not an inflexible rule, as
we shall explain.

Since the constitution is intended fort the observance of the judiciary and other
departments of the government and the judges are sworn to support its provisions,
the courts are not at liberty to overlook or disregard its commands or countenance
evasions thereof. When it is clear that a statute trangresses the authority vested in
a legislative body, it is the duty of the courts to declare that the constitution, and
not the statute, governs in a case before them for judgement.12cräläwvirtualibräry

Thus, while courts will not ordinarily pass upon constitutional questions which are
not raised in the pleadings,13 the rule has been recognized to admit of certain
exceptions. It does not preclude a court from inquiring into its own jurisdiction or
compel it to enter a judgement that it lacks jurisdiction to enter. If a statute on
which a court's jurisdiction in a proceeding depends is unconstitutional, the court
has no jurisdiction in the proceeding, and since it may determine whether or not it
has jurisdiction, it necessarily follows that it may inquire into the constitutionality of
the statute.14cräläwvirtualibräry

Constitutional question, not raised in the regular and orderly procedure in the trial
are ordinarily rejected unless the jurisdiction of the court below or that of the
appellate court is involved in which case it may be raised at any time or on the
court's own motion.15 The Court ex mero motu may take cognizance of lack of
jurisdiction at any point in the case where the fact is developed.16 The court has a
clearly recognized right to determine its own jurisdiction in any
proceeding.17cräläwvirtualibräry

The foregoing authorities notwithstanding, the Court believed that the parties
hereto should be further heard on this constitutional question. Correspondingly, the
following resolution was issued on May 14, 1998, the material parts stating as
follows:

The Court observes that the present petition, from the very allegations thereof, is
"an appeal by certiorari under Rule 45 of the Rules of Court from the 'Joint Order
(Re: Motion for Reconsideration)' issued in OMB-Adm. Case No. 0-95-0411, entitled
'Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst. Regional Director, Region IV-
A, EDSA, Quezon City,' which absolved the latter from the administrative charges
for grave misconduct, among other."

It is further averred therein that the present appeal to this Court is allowed under
Section 27 of the Ombudsman Act of 1987 (R.A. No. 6770) and, pursuant thereto,
the Office of the Ombudsman issued its Rules of Procedure, Section 7 whereof is
assailed by petitioner in this proceeding. It will be recalled that R.A. No. 6770 was
enacted on November 17, 1989, with Section 27 thereof pertinently providing that
all administrative diciplinary cases, orders, directives or decisions of the Office of
the Ombudsman may be appealed to this Court in accordance with Rule 45 of the
Rules of Court.

The Court notes, however, that neither the petition nor the two comments thereon
took into account or discussed the validity of the aforestated Section 27 of R.A. No.
8770 in light of the provisions of Section 30, Article VI of the 1987 Constitution that
"(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court
as provided in this Constitution without its advise and consent."

The Court also invites the attention of the parties to its relevant ruling in First
Lepanto Ceramics, Inc. vs. The Court of Appeals , et al. (G.R. No. 110571, October
7, 1994, 237 SCRA 519) and the provisions of its former Circular No. 1-95,as now
substantially reproduced in Rule 43 of the 1997 revision of the Rules of Civil
Procedure.

In view of the fact that the appellate jurisdiction of the Court is invoked and
involved and in this case, and the foregoing legal consideration appear to impugn
the constitutionality and validity of the grant of said appellate jurisdiction to it, the
Court deems it necessary that the parties be heard thereon and the issue be first
resolved before conducting further proceedings in this appellate review.

ACCORDINGLY, the Court Resolved to require the parties to Submit their position
and arguments on the matter subject of this resolution by filing their corresponding
pleadings within ten (10) days from notice hereof.

IV
The records do not show that the Office of the Solicitor General has complied with
such requirement, hence the Court dispenses with any submission it should have
presented. On the other hand, petitioner espouses the theory that the provision in
Section 27 of Republic Act No. 6770 which authorizes an appeal by certiorari to this
Court of the aforementioned adjudications of the Ombudsman is not violative of
Section 30, Article VI of the Constitution. She claims that what is proscribed is the
passage of law "increasing" the appellate jurisdiction of this Court "as provided in
this Constitution," and such appellate jurisdiction includes "all cases in which only
an error or question of law is involved." Since Section 5(2)(e), Article VIII of the
Constitution authorizes this Court to review, revise, reverse, modify, or affirm on
appeal or certiorari the aforesaid final judgement or orders "as the law or the Rules
of Court may provide," said Section 27 does not increase this Court may provide,"
said section 27 does not increase this Court's appellate jurisdiction since, by
providing that the mode of appeal shall be by petition for certiorari under Rule 45,
then what may be raised therein are only questions of law of which this Court
already has of which this Court already has jurisdiction.

We are not impressed by this discourse. It overlooks the fact that by jurisprudential
developments over the years, this Court has allowed appeals by certiorari under
Rule 45 in a substantial number of cases and instances even if questions of fact are
directly involved and have to be resolved by the appellate court.18Also, the very
provision cited by petitioner specifies that the appellate jurisdiction of this Court
contemplated therein is to be exercised over "final judgements and orders of lower
courts," that is, the courts composing the integrated judicial system. It does not
include the quasi-judicial bodies or agencies, hence whenever the legislature
intends that the decisions or resolutions of the quasi-judicial agency shall be
reviewable by the Supreme Court or the Court of Appeals, a specific provision to
that effect is included in the law creating that quasi-judicial agency and, for that
matter, any special statutory court. No such provision on appellate procedure is
required for the regular courts of the integrated judicial system because they are
what are referred to and already provided for in Section 5, Article VIII of the
Constitution.

Apropos to the foregoing, and as correctly observed by private respondent, the

revised Rules of Civil Procedure19 preclude appeals from quasi-judicial agencies to
the Supreme Court via a petition for review on certiorari under Rule 45. In the 1997
Rules of Civil Procedure, Section 1 Rule 45, on "Appeal by Certiorari to the Supreme
Court," explicitly states:

SECTION 1 . Filing of petition with Supreme Court. - A person desiring to appeal

by certiorari from a judgement or final order or Resolution of the Court of Appeals,
the Sandiganbayan, the Regional Trial Court or other court whenever authorized by
law, may file with the Supreme Court a verified petition for review on certiorari. The
petition shall raise only question of law which must be distinctly set forth. (Italics
ours).

This differs from the former Rule 45 of the 1964 Rules of Court which made
mention only of the Court of Appeals, and had to be adopted in statutes creating
and providing for appeals from certain administrative or quasi-judicial agencies,
whenever the purpose was to restrict the scope of the appeal to questions of law.
That intended limitation on appellate review, as we have just discussed, was not
fully subserved by recourse to the former Rule 45 but, then, at that time there was
no uniform rule on appeals from quasi-judicial agencies.

Under the present Rule 45, appeals may be brought through a petition for review
on certiorari but only from judgments and final orders of the courts enumerated in
Section 1 thereof. Appeals from judgments and final orders of quasi-judicial
agencies20 are now required to be brought to the Court of Appeals on a verified
petition for review, under the requirements and conditions in Rule 43 which was
precisely formulated and adopted to provide for a uniform rule of appellate
procedure for quasi-judicial agencies .21cräläwvirtualibräry

It is suggested, however, that the provisions of Rule 43 should apply only to

"ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman which is
a "high constitutional body." We see no reason for this distinction for, if hierarchical
rank should be a criterion, that proposition thereby disregards the fact that Rule 43
even includes the Office of the President and the Civil Service Commission,
although the latter is even an independent constitutional commission, unlike the
Office of the Ombudsman which is a constitutionally-mandated but statutorily
created body.

Regarding the misgiving that the review of the decision of the Office of the
Ombudsman by the Court of Appeals would cover questions of law, of fact or of
both, we do not perceive that as an objectionable feature. After all, factual
controversies are usually involved in administrative disciplinary actions, just like
those coming from the Civil Service, Commission, and the Court of Appeals as a
trier of fact is better prepared than this Court to resolve the same. On the other
hand, we cannot have this situation covered by Rule 45 since it now applies only to
appeals from the regular courts. Neither can we place it under Rule 65 since the
review therein is limited to jurisdictional questions.*

The submission that because this Court has taken cognizance of cases involving
Section 27 of Republic Act No. 6770, that fact may be viewed as "acquiescence" or
"acceptance" by it of the appellate jurisdiction contemplated in said Section 27, is
unfortunately too tenuous. The jurisdiction of a court is not of acquiescence as a
matter of fact but an issue of conferment as a matter of law. Besides, we have
already discussed the cases referred to, including the inaccuracies of some
statements therein, and we have pointed out the instances when Rule 45 is
involved, hence covered by Section 27 of Republic Act No. 6770 now under
discussion, and when that provision would not apply if it is a judicial review under
Rule 65.

Private respondent invokes the rule that courts generally avoid having to decide a
constitutional question, especially when the case can be decided on other grounds.
As a general proposition that is correct. Here, however, there is an actual case
susceptible of judicial determination. Also, the constitutional question, at the
instance of this Court, was raised by the proper parties, although there was even
no need for that because the Court can rule on the matter sua sponte when its
appellate jurisdiction is involved. The constitutional question was timely raised,
although it could even be raised any time likewise by reason of the jurisdictional
issue confronting the Court. Finally, the resolution of the constitutional issue here is
obviously necessary for the resolution of the present case. 22cräläwvirtualibräry

It is, however, suggested that this case could also be decided on other grounds,
short of passing upon; the constitutional question. We appreciate the ratiocination
of private respondent but regret that we must reject the same. That private
respondent could be absolved of the charge because the decision exonerating him
is final and unappealable assumes that Section 7, Rule III of Administrative Order
No. 07 is valid, but that is precisely one of the issues here. The prevailing rule that
the Court should not interfere with the discretion of the Ombudsman in prosecuting
or dismissing a complaint is not applicable in this administrative case, as earlier
explained. That two decisions rendered by this Court supposedly imply the validity
of the aforementioned Section 7 of Rule III is precisely under review here because
of some statements therein somewhat at odds with settled rules and the decisions
of this Court on the same issues, hence to invoke the same would be to beg the
question.

Taking all the foregoing circumstances in their true legal roles and effects,
therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to
this Court from decisions of the Office of the Ombudsman in administrative
disciplinary cases. It consequently violates the proscription in Section 30, Article VI
of the Constitution against a law which increases the Appellate jurisdiction of this
Court. No countervailing argument has been cogently presented to justify such
disregard of the constitutional prohibition which, as correctly explained in First
Leparto Ceramics, Inc. vs. The Court of Appeals, el al. 23 was intended to give this
Court a measure of control over cases placed under its appellate Jurisdiction.
Otherwise, the indiscriminate enactment of legislation enlarging its appellate
jurisdiction would unnecessarily burden the Court 24cräläwvirtualibräry

We perforce have to likewise reject the supposed inconsistency of the ruling in First
Lepanto Ceramics and some statements in Yabut and Alba, not only because of the
difference in the factual settings, but also because those isolated cryptic statements
in Yabut and Alba should best be clarified in the adjudication on the merits of this
case. By way of anticipation, that will have to be undertaken by the proper court of
competent jurisdiction.

Furthermore in addition to our preceding discussion on whether Section 27 of

Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and
consent, private respondent's position paper correctly yields the legislative
background of Republic Act No. 6770. On September 26, 1989, the Conference
Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new
version of what would later be Republic Act No. 6770, was approved on second
reading by the House of Representatives.25 The Senate was informed of the
approval of the final version of the Act on October 2, 1989 26 and the same was
thereafter enacted into law by President Aquino on November 17, 1989.

Submitted with said position paper is an excerpt showing that the Senate, in the
deliberations on the procedure for appeal from the Office of the Ombudsman to this
Court, was aware of the provisions of Section 30, Article III of the Constitution. It
also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor
of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction,
and that the Committee on Justice and Human Rights had not consulted this Court
on the matter, thus:

INTERPELLATION OF SENATOR SHAHANI

xxx

Thereafter, with reference to Section 22(4) which provides that the decisions of the
Office of the Ombudsman may be appealed to the Supreme Court, in reply to
Senator Shahani's query whether the Supreme Court would agree to such provision
in the light of Section 30, Article VI of the Constitution which requires its advice and
concurrence in laws increasing its appellate jurisdiction, Senator Angara informed
that the Committee has not yet consulted the Supreme Court regarding the matter.
He agreed that the provision will expand the Supreme Court's jurisdiction by
allowing appeals through petitions for review, adding that they should be appeals
on certiorari.27 There is no showing that even up to its enactment, Republic Act No.
6770 was ever referred to this Court for its advice and consent .28

VI

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770

should be struck down as unconstitutional, and in line with the regulatory
philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised
Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals under the
provisions of Rule 43.

There is an intimation in the pleadings, however, that said Section 27 refers to

appellate jurisdiction which, being substantive in nature, cannot be disregarded by
this Court under its rule-making power, especially if it results in a diminution,
increase or modification of substantive rights. Obviously, however, where the law is
procedural in essence and purpose, the foregoing consideration would not pose a
proscriptive issue against the exercise of the rule-making power of this Court. This
brings to fore the question of whether Section 27 of Republic Act No. 6770 is
substantive or procedural.

It will be noted that no definitive line can be drawn between those rules or statutes
which are procedural, hence within the scope of this Court's rule-making power,
and those which are substantive. In fact, a particular rule may be procedural in one
context and substantive in another.29 It is admitted that what is procedural and
what is substantive is frequently a question of great difficulty.30 It is not, however,
an insurmountable problem if a rational and pragmatic approach is taken within the
context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice
and procedure of the lower courts, abridges, enlarges, or modifies any substantive
right, the test is whether the rule really regulates procedure, that is, the judicial
process for enforcing rights and duties recognized by substantive law and for justly
administering remedy and redress for a disregard or infraction of them.31 If the rule
takes away a vested right, it is not procedural. If the rule creates a right such as
the right to appeal, it may be classified as a substantive matter; but if it operates
as a means o implementing an existing right then the rule deals merely with
procedure.32cräläwvirtualibräry

In the situation under consideration, a transfer by the Supreme Court, in the

exercise of its rule-making power, of pending cases involving a review of decisions
of the Office of the Ombudsman in administrative disciplinary actions to the Court
of Appeals which shall now be vested with exclusive appellate jurisdiction
thereover, relates to procedure only.33 This is so because it is not the right to
appeal of an aggrieved party which is affected by the law. That right has been
preserved. Only the procedure by which the appeal is to be made or decided has
been changed. The rationale for this is that litigant has a vested right in a particular
remedy, which may be changed by substitution without impairing vested rights,
hence he can have none in rules of procedure which relate to the
remedy.34cräläwvirtualibräry

Furthermore, it cannot be said that transfer of appellate jurisdiction to the Court of

Appeals in this case is an act of creating a new right of appeal because such power
of the Supreme Court to transfer appeals to subordinate appellate courts is purely a
procedural and not a substantive power. Neither can we consider such transfer as
impairing a vested right because the parties have still a remedy and still a
competent tribunal to administer that remedy.35cräläwvirtualibräry

Thus, it has been generally held that rules or statutes involving a transfer of cases
from one court to another, are procedural and remedial merely and that, as such,
they are applicable to actions pending at the time the statute went into effect36 or,
in the case at bar, when its invalidity was declared. Accordingly, even from the
standpoint of jurisdiction ex hypothesi the validity of the transfer of appeals in said
cases to the Court of Appeals can be sustained.

WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989),

together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure
of the Office of the Ombudsman), and any other provision of law or issuance
implementing the aforesaid Act and insofar as they provide for appeals in
administrative disciplinary cases from the Office of the Ombudsman to the Supreme
Court, are hereby declared INVALID and of no further force and effect.
The instant petition is hereby referred and transferred to the Court of Appeals for
final disposition, with said petition to be considered by the Court of Appeals pro hac
vice as a petition for review under Rule 43, without prejudice to its requiring the
parties to submit such amended or supplemental pleadings and additional
documents or records as it may deem necessary and proper.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Martinez, Quisumbing, and Purisima JJ., concur.

Secretary of National Defense v Manalo

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES,petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.

DECISION

PUNO, C.J.:

While victims of enforced disappearances are separated from the rest of the world behind secret
walls, they are not separated from the constitutional protection of their basic rights. The constitution
is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty
and security in the first petition for a writ of Amparo filed before this Court.

This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section
191 of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact
and law, the Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001,
entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National
Defense, the Chief of Staff, Armed Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order
(TRO)2 filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop
herein petitioners (therein respondents) and/or their officers and agents from depriving them of their
right to liberty and other basic rights. Therein petitioners also sought ancillary remedies, Protective
Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal
and equitable reliefs under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section
6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of the
Department of National Defense and the Chief of Staff of the AFP, their agents, representatives, or
persons acting in their stead, including but not limited to the Citizens Armed Forces Geographical
Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of therein
petitioners, or otherwise restricting, curtailing, abridging, or depriving them of their right to life, liberty,
and other basic rights as guaranteed under Article III, Section 14 of the 1987 Constitution.5

While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on
October 24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and
Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ commanding therein
respondents to make a verified return within the period provided by law and containing the specific
matter required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and all
other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after
hearing, render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just and
equitable reliefs.8

On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under
the Amparo Rule and further resolved, viz:

WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with
the CA (Court of Appeals) a verified written return within five (5) working days from service of
the writ. We REMAND the petition to the CA and designate the Division of Associate Justice
Lucas P. Bersamin to conduct the summary hearing on the petition on November 8, 2007 at
2:00 p.m. and decide the petition in accordance with the Rule on the Writ of Amparo.9

On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners
(herein respondents), the dispositive portion of which reads, viz:

ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.

The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:

1. To furnish to the petitioners and to this Court within five days from notice of this
decision all official and unofficial reports of the investigation undertaken in connection
with their case, except those already on file herein;

2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka
Rollie Castillo and Donald Caigas within five days from notice of this decision.

3. To cause to be produced to this Court all medical reports, records and charts,
reports of any treatment given or recommended and medicines prescribed, if any, to
the petitioners, to include a list of medical and (sic) personnel (military and civilian)
 who attended to them from February 14, 2006 until August 12, 2007 within five days
from notice of this decision.

The compliance with this decision shall be made under the signature and oath of respondent
AFP Chief of Staff or his duly authorized deputy, the latter's authority to be express and
made apparent on the face of the sworn compliance with this directive.

SO ORDERED.10

Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein
respondents:

Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006,
several uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the
residents of their barangay in San Idelfonso, Bulacan. Respondents were not able to attend as they
were not informed of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.11

On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso,
Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was Bestre, but his mother, Ester Manalo,
replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and forced to
the ground face down. He was kicked on the hip, ordered to stand and face up to the light, then
forcibly brought near the road. He told his mother to follow him, but three soldiers stopped her and
told her to stay.12

Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning
de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all
members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized
brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being
forcibly taken, he also saw outside of his house two barangaycouncilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and armed men.13

The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being
blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he
learned their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he
estimated was about 40 years of age or older. The leader of the team who entered his house and
abducted him was "Ganata." He was tall, thin, curly-haired and a bit old. Another one of his
abductors was "George" who was tall, thin, white-skinned and about 30 years old.14

The van drove off, then came to a stop. A person was brought inside the van and made to sit beside
Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside
him as his brother Reynaldo's. The van stopped several times until they finally arrived at a house.
Raymond and Reynaldo were each brought to a different room. With the doors of their rooms left
open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the head and
other parts of his body with the butt of their guns for about 15 minutes. After which, Reynaldo was
brought to his (Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room.
The soldiers asked him if he was a member of the New People's Army. Each time he said he was
not, he was hit with the butt of their guns. He was questioned where his comrades were, how many
soldiers he had killed, and how many NPA members he had helped. Each time he answered none,
they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him
up would salute them, call them "sir," and treat them with respect. He was in blindfolds when
interrogated by the high officials, but he saw their faces when they arrived and before the blindfold
was put on. He noticed that the uniform of the high officials was different from those of the other
soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of
combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas
corpus case filed in connection with the respondents' abduction.16 While these officials interrogated
him, Raymond was not manhandled. But once they had left, the soldier guards beat him up. When
the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only
at night, usually with left-over and rotten food.17

On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat
him up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his
forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a
burning wood. When he could no longer endure the torture and could hardly breathe, they stopped.
They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they
warned Raymond that they would come back the next day and kill him.18

The following night, Raymond attempted to escape. He waited for the guards to get drunk, then
made noise with the chains put on him to see if they were still awake. When none of them came to
check on him, he managed to free his hand from the chains and jumped through the window. He
passed through a helipad and firing range and stopped near a fishpond where he used stones to
break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo
church. He talked to some women who were doing the laundry, asked where he was and the road to
Gapan. He was told that he was in Fort Magsaysay.19 He reached the highway, but some soldiers
spotted him, forcing him to run away. The soldiers chased him and caught up with him. They brought
him to another place near the entrance of what he saw was Fort Magsaysay. He was boxed
repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him. Then a so-
called "Mam" or "Madam" suddenly called, saying that she wanted to see Raymond before he was
killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay where Reynaldo
was detained.20

For some weeks, the respondents had a respite from all the torture. Their wounds were treated.
When the wounds were almost healed, the torture resumed, particularly when respondents' guards
got drunk.21

Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by
steel bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything
there, including urinating, removing his bowels, bathing, eating and sleeping. He counted that
eighteen people22 had been detained in that bartolina, including his brother Reynaldo and himself.23

For about three and a half months, the respondents were detained in Fort Magsaysay. They were
kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The
house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their
house. They were also sometimes detained in what he only knew as the "DTU."24

At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took
their urine samples and marked them. When asked how they were feeling, they replied that they had
a hard time urinating, their stomachs were aching, and they felt other pains in their body. The next
day, two ladies in white arrived. They also examined respondents and gave them medicines,
including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents'
urine test and advised them to drink plenty of water and take their medicine. The two ladies returned
a few more times. Thereafter, medicines were sent through the "master" of the DTU, "Master" Del
Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While
there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take
care of them.25

One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several
other armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks in a big two-storey house. Hilario and Efren
stayed with them. While there, Raymond was beaten up by Hilario's men.26

From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the
Revo. They were detained in a big unfinished house inside the compound of "Kapitan" for about
three months. When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of
the house to a basketball court in the center of the compound and made to sit. Gen. Palparan was
already waiting, seated. He was about two arms' length away from respondents. He began by asking
if respondents felt well already, to which Raymond replied in the affirmative. He asked Raymond if
he knew him. Raymond lied that he did not. He then asked Raymond if he would be scared if he
were made to face Gen. Palparan. Raymond responded that he would not be because he did not
believe that Gen. Palparan was an evil man.27

Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:

Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa

akin?"

Sumagot akong, "Siyempre po, natatakot din..."

Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't
sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa
mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na
sumuko na sa gobyerno."28

Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At
about 3:00 in the morning, Hilario, Efren and the former's men - the same group that abducted them
- brought them to their parents' house. Raymond was shown to his parents while Reynaldo stayed in
the Revo because he still could not walk. In the presence of Hilario and other soldiers, Raymond
relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond's parents
acceded. Hilario threatened Raymond's parents that if they continued to join human rights rallies,
they would never see their children again. The respondents were then brought back to Sapang.29

When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with
the four "masters" who were there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw
Raymond, he called for him. He was in a big white vehicle. Raymond stood outside the vehicle as
Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he left for
him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them
strong. He also said that they should prove that they are on the side of the military and warned that
they would not be given another chance.31 During his testimony, Raymond identified Gen. Palparan
by his picture.32

One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The
medicine, named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of
this medicine and instructed to take one capsule a day. Arman checked if they were getting their
dose of the medicine. The "Alive" made them sleep each time they took it, and they felt heavy upon
waking up.33

After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman
instructed Raymond that while in Sapang, he should introduce himself as "Oscar," a military trainee
from Sariaya, Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who
abducted him from his house, and got acquainted with other military men and civilians.34

After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry
Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put
on him and he was kept in the barracks.35

The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It
was then he learned that he was in a detachment of the Rangers. There were many soldiers,
hundreds of them were training. He was also ordered to clean inside the barracks. In one of the
rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the
University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home and be with her
parents. During the day, her chains were removed and she was made to do the laundry.36

After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other
captives, Karen Empeño and Manuel Merino, arrived. Karen and Manuel were put in the room with
"Allan" whose name they later came to know as Donald Caigas, called "master" or "commander" by
his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At
times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their
chains were removed, but were put back on at night. They were threatened that if they escaped,
their families would all be killed.37

On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should
be thankful they were still alive and should continue along their "renewed life." Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were brought back to
Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond
was instructed to continue using the name "Oscar" and holding himself out as a military trainee. He
got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated in
his affidavit.38

On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a
camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed
in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there,
battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach
with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made
to clean, cook, and help in raising livestock.39

Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers
brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought
to Barangay Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin.
The soldiers said he was killed because he had a son who was a member of the NPA and he
coddled NPA members in his house.40 Another time, in another "Operation Lubog," Raymond was
brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the old man
of the house who was sick was there. They spared him and killed only his son right before
Raymond's eyes.41

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was
in charge of the house. Like in Limay, the five detainees were made to do errands and chores. They
stayed in Zambales from May 8 or 9, 2007 until June 2007.42

In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel
were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed
and experienced in the camp, viz:

Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na
inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man
kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay ng
isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito'y
sinunog. Masansang ang amoy.

Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo
mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang
hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.

Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng
kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at
binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong
isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.

Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga
bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan
nakita kong mayroong sinilaban, at napakamasangsang ang amoy.

May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa
akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.

xxx xxx xxx

Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan.
Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig
ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw

pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.

Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni
Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si
Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay
magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise
poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he
would take care of the food of their family. They were also told that they could farm a small plot
adjoining his land and sell their produce. They were no longer put in chains and were instructed to
use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as
cousins from Rizal, Laguna.44

Respondents started to plan their escape. They could see the highway from where they stayed.
They helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved
their earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could
get a cellular phone as he wanted to exchange text messages with a girl who lived nearby. A phone
was pawned to him, but he kept it first and did not use it. They earned some more until they had
saved Php1,400.00 between them.

There were four houses in the compound. Raymond and Reynaldo were housed in one of them
while their guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the
guards. Respondents' house did not have electricity. They used a lamp. There was no television, but
they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking session.
At about 1:00 a.m., Raymond turned up the volume of the radio. When none of the guards awoke
and took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind their
sleeping guards and barking dogs. They boarded a bus bound for Manila and were thus freed from
captivity.45

Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they
related to matters they witnessed together. Reynaldo added that when they were taken from their
house on February 14, 2006, he saw the faces of his abductors before he was blindfolded with his
shirt. He also named the soldiers he got acquainted with in the 18 months he was detained. When
Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told
that they were indeed members of the NPA because Raymond escaped. With a .45 caliber pistol,
Reynaldo was hit on the back and punched in the face until he could no longer bear the pain.

At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was
separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of
Kapitan, a friend of Hilario, in a mountainous area. He was instructed to use the name "Rodel" and to
represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along
Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and
made to wait in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where
Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario drove a black and red
vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove the blindfold once
outside the province. In one of their trips, they passed by Fort Magsaysay and Camp Tecson where
Reynaldo saw the sign board, "Welcome to Camp Tecson."46

Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo.
Dr. Molino specialized in forensic medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly cases where torture was
involved. He was requested by an NGO to conduct medical examinations on the respondents after
their escape. He first asked them about their ordeal, then proceeded with the physical examination.
His findings showed that the scars borne by respondents were consistent with their account of
physical injuries inflicted upon them. The examination was conducted on August 15, 2007, two days
after respondents' escape, and the results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the
examination.47
Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with
the October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:

13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly
abducted, detained, held incommunicado, disappeared or under the custody by the military.
This is a settled issue laid to rest in the habeas corpus case filed in their behalf by
petitioners' parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt.
Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito
Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes
Esperon, in his capacity as the Commanding General of the Philippine Army, and members
of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti
dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the writ... On July 4, 2006, the Court of Appeals
dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan,
then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to
establish their personal involvement in the taking of the Manalo brothers. In a Decision dated
June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence
establishing his involvement in any capacity in the disappearance of the Manalo brothers,
although it held that the remaining respondents were illegally detaining the Manalo brothers
and ordered them to release the latter.48

Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner)
Secretary of National Defense, which attested that he assumed office only on August 8, 2007 and
was thus unaware of the Manalo brothers' alleged abduction. He also claimed that:

7. The Secretary of National Defense does not engage in actual military directional
operations, neither does he undertake command directions of the AFP units in the field, nor
in any way micromanage the AFP operations. The principal responsibility of the Secretary of
National Defense is focused in providing strategic policy direction to the Department
(bureaus and agencies) including the Armed Forces of the Philippines;

8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this
case, I have directed the Chief of Staff, AFP to institute immediate action in compliance with
Section 9(d) of the Amparo Rule and to submit report of such compliance... Likewise, in a
Memorandum Directive also dated October 31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a competent court against any members of the
AFP:

(1) to verify the identity of the aggrieved party;

(2) to recover and preserve evidence related to the death or disappearance of the
person identified in the petition which may aid in the prosecution of the person or
persons responsible;

(3) to identify witnesses and obtain statements from them concerning the death or
disappearance;
 (4) to determine the cause, manner, location and time of death or disappearance as
well as any pattern or practice that may have brought about the death or
disappearance;

(5) to identify and apprehend the person or persons involved in the death or
disappearance; and

(6) to bring the suspected offenders before a competent court.49

Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the
Writ, attesting that he received the above directive of therein respondent Secretary of National
Defense and that acting on this directive, he did the following:

3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of the petitioners.

3.2. I have caused the immediate investigation and submission of the result thereof to Higher
headquarters and/or direct the immediate conduct of the investigation on the matter by the
concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to the
Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB
PA). A Copy of the Radio Message is attached as ANNEX "3" of this Affidavit.

3.3. We undertake to provide result of the investigations conducted or to be conducted by the

concerned unit relative to the circumstances of the alleged disappearance of the persons in
whose favor the Writ of Amparohas been sought for as soon as the same has been furnished
Higher headquarters.

3.4. A parallel investigation has been directed to the same units relative to another Petition
for the Writ of Amparo (G.R. No. 179994) filed at the instance of relatives of a certain
Cadapan and Empeño pending before the Supreme Court.

3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish
the surrounding circumstances of the disappearances of the petitioners and to bring those
responsible, including any military personnel if shown to have participated or had complicity
in the commission of the complained acts, to the bar of justice, when warranted by the
findings and the competent evidence that may be gathered in the process.50

Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA,
earlier filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeño and
Merino, which averred among others, viz:

10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion
detachment as detention area, I immediately went to the 24th IB detachment in Limay,
Bataan and found no untoward incidents in the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeño and Manuel Merino being held captive;

11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay,
Bataan;
 12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine
National Police, Limay, Bataan regarding the alleged detentions or deaths and were
informed that none was reported to their good office;

13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan,
Karen Empeño and Manuel Merino were detained. As per the inquiry, however, no such
beachhouse was used as a detention place found to have been used by armed men to
detain Cadapan, Empeño and Merino.51

It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen
Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for the submission of the Return and would be
subsequently submitted.52

Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez,
Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan,
Pampanga, Tarlac and a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry
Division.54

On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry
Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged
abduction of the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz;
CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA
Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to
determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular investigation was initiated not by a complaint as was the
usual procedure, but because the Commanding General saw news about the abduction of the
Manalo brothers on the television, and he was concerned about what was happening within his
territorial jurisdiction.58

Jimenez summoned all six implicated persons for the purpose of having them execute sworn
statements and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in
the morning and finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo
Lingad, took the individual sworn statements of all six persons on that day. There were no other
sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned
and investigated61 as according to Jimenez, the directive to him was only to investigate the six
persons.62

Jimenez was beside Lingad when the latter took the statements.63 The six persons were not known
to Jimenez as it was in fact his first time to meet them.64 During the entire time that he was beside
Lingad, a subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a single
question to the six persons.65

Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and
Rudy Mendoza had to come back the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified that the two signed on May 30,
2006, but the jurats of their statements indicated that they were signed on May 29, 2006.66 When the
Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He
began writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.67 He then gave his
report to the Office of the Chief of Personnel.68

As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence,
the report is herein substantially quoted:

III. BACKGROUND OF THE CASE

4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who
were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a case for Abduction in the
civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela
Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).

a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit
"B") states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church located nearby his residence, together with some
neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo
Manalo. As to the allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that those who abducted the
Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any
participation or involvement on the abduction of said victims.

b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @
KA BESTRE of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he
claims that on February 14, 2006, he was one of those working at the concrete chapel being
constructed nearby his residence. He claims further that he just came only to know about the
incident on other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan.
That subject CAA vehemently denied any participation about the incident and claimed that
they only implicated him because he is a member of the CAFGU.

c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O")
states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member
of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was very much
aware about the background of the two (2) brothers Raymond and Reynaldo as active
supporters of the CPP NPA in their Brgy. and he also knew their elder brother "KUMANDER
BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that on 14 February
2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he
learned only about the incident when he arrived home in their place. He claims further that
the only reason why they implicated him was due to the fact that his mother has filed a
criminal charge against their brother Rolando Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for that reason they implicated him in support of their
brother. Subject CAA vehemently denied any involvement on the abduction of said Manalo
brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states
that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and
he knew them since childhood. Being one of the accused, he claims that on 14 February
2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was
being informed only about the incident lately and he was not aware of any reason why the
two (2) brothers were being abducted by alleged members of the military and CAFGU. The
only reason he knows why they implicated him was because there are those people who are
angry with their family particularly victims of summary execution (killing) done by their brother
@ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their
brother @ KA BESTRE who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the abduction of the Manalo brothers.

e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states
that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a
farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims further
that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA
BESTRE is an NPA leader. Being one of the accused, he claims that on 14 February 2006,
he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan.
That he vehemently denied any participation of the alleged abduction of the two (2) brothers
and learned only about the incident when rumors reached him by his barrio mates. He claims
that his implication is merely fabricated because of his relationship to Roman and Maximo
who are his brothers.

f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G")
states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan,
the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato Detachment, San
Miguel, Bulacan. He claims that he knew very well the brothers Raymond and Reynaldo
Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged
further that they are active supporters or sympathizers of the CPP/NPA and whose elder
brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being
one of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their
concrete chapel in their place and he learned only about the incident which is the abduction
of Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo
Cunanan informed him about the matter. He claims further that he is truly innocent of the
allegation against him as being one of the abductors and he considers everything fabricated
in order to destroy his name that remains loyal to his service to the government as a CAA
member.

IV. DISCUSSION

5. Based on the foregoing statements of respondents in this particular case, the proof of
linking them to the alleged abduction and disappearance of Raymond and Reynaldo Manalo
that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, is unsubstantiated. Their alleged involvement theretofore to that incident is
considered doubtful, hence, no basis to indict them as charged in this investigation.

Though there are previous grudges between each families (sic) in the past to quote: the
killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo,
this will not suffice to establish a fact that they were the ones who did the abduction as a
form of revenge. As it was also stated in the testimony of other accused claiming that the
 Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean,
however, that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGU's, they ought to be vigilant in protecting their village
from any intervention by the leftist group, hence inside their village, they were fully aware of
the activities of Raymond and Reynaldo Manalo in so far as their connection with the
CPP/NPA is concerned.

V. CONCLUSION

6. Premises considered surrounding this case shows that the alleged charges of abduction
committed by the above named respondents has not been established in this investigation.
Hence, it lacks merit to indict them for any administrative punishment and/or criminal liability.
It is therefore concluded that they are innocent of the charge.

VI. RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated
from the case.

8. Upon approval, this case can be dropped and closed.69

In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing
evidence and assail the December 26, 2007 Decision on the following grounds, viz:

I.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND

GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.

II.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING

RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL
REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR
CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN
WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka
ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE
COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE A LIST OF
MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM
FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70

The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that
resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced
Disappearances sponsored by the Court on July 16-17, 2007. The Summit was "envisioned to
provide a broad and fact-based perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and social spectrum, as well
as all the stakeholders in the justice system"72 participated in mapping out ways to resolve the crisis.

On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of
extralegal killing and enforced disappearances."73 It was an exercise for the first time of the Court's
expanded power to promulgate rules to protect our people's constitutional rights, which made its
maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law
regime.74 As the Amparo Rule was intended to address the intractable problem of "extralegal killings"
and "enforced disappearances," its coverage, in its present form, is confined to these two instances
or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings."75 On the other hand, "enforced disappearances"
are "attended by the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation of liberty which places such persons
outside the protection of law."76

The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837,
de Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S. appealed to many Mexican jurists.78 One of
them, Manuel Crescencio Rejón, drafted a constitutional provision for his native state,
Yucatan,79 which granted judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz:

The federal courts shall protect any inhabitant of the Republic in the exercise and
preservation of those rights granted to him by this Constitution and by laws enacted pursuant
hereto, against attacks by the Legislative and Executive powers of the federal or state
governments, limiting themselves to granting protection in the specific case in litigation,
making no general declaration concerning the statute or regulation that motivated the
violation.80

Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing,
the judge determines that a constitutional right of the petitioner is being violated, he orders the
official, or the official's superiors, to cease the violation and to take the necessary measures to
restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the limitations on judicial power characteristic
of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by
protecting individual rights in particular cases, but prevents them from using this power to make law
for the entire nation.82

The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various
forms, in response to the particular needs of each country.83 It became, in the words of a justice of
the Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the
world's legal heritage that institution which, as a shield of human dignity, her own painful history
conceived."84 What began as a protection against acts or omissions of public authorities in violation
of constitutional rights later evolved for several purposes: (1) Amparo libertad for the protection of
personal freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial
review of the constitutionality of statutes; (3) Amparo casacion for the judicial review of the
constitutionality and legality of a judicial decision; (4) Amparo administrativo for the judicial review of
administrative actions; and (5) Amparo agrario for the protection of peasants' rights derived from the
agrarian reform process.85

In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to
protect against human rights abuses especially committed in countries under military juntas. In
general, these countries adopted an all-encompassing writ to protect the whole gamut of
constitutional rights, including socio-economic rights.86 Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some
constitutional guarantees or fundamental rights.87

In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo,
several of the above Amparo protections are guaranteed by our charter. The second paragraph of
Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial
power "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 Clause
accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo
casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas
corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring of the U.S.
common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v.
Madison.89

While constitutional rights can be protected under the Grave Abuse Clause through remedies of
injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under
Rule 102,90 these remedies may not be adequate to address the pestering problem of extralegal
killings and enforced disappearances. However, with the swiftness required to resolve a petition for a
writ of Amparo through summary proceedings and the availability of appropriate interim and
permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions
- borne out of the Latin American and Philippine experience of human rights abuses - offers a better
remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides
rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require full and
exhaustive proceedings.91

The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in
the commission of these offenses; it is curative in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run,
the goal of both the preventive and curative roles is to deter the further commission of extralegal
killings and enforced disappearances.

In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the
respondents of their right to liberty and other basic rights on August 23, 2007,93 prior to the
promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody
Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the
Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have
their petition treated as an Amparo petition as it would be more effective and suitable to the
circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in
disputing the Decision of the Court of Appeals states, viz:

The Court of Appeals seriously and grievously erred in believing and giving full faith and
credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and
self-serving affidavit/testimony of herein respondent Raymond Manalo.94

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause
of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof
required.

Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:

Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.
(emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:

Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish
their claims by substantial evidence.

xxx xxx xxx

Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.95

After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that
respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on
August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless
candid details of respondents' harrowing experience and tenacious will to escape, captured through
his different senses and etched in his memory. A few examples are the following: "Sumilip ako sa
isang haligi ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang
tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis
ang bakas."98 "Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang
mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell phone; sabi
ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar."100

We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's
affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently identified by the
petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond
recalled that the six armed men who barged into his house through the rear door were
military men based on their attire of fatigue pants and army boots, and the CAFGU
auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la
Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts
during the abduction. Raymond was sure that three of the six military men were Ganata, who
headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents
of their long captivity, as narrated by the petitioners, validated their assertion of the
participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU
auxiliaries.

We are convinced, too, that the reason for the abduction was the suspicion that the
petitioners were either members or sympathizers of the NPA, considering that the abductors
were looking for Ka Bestre, who turned out to be Rolando, the brother of petitioners.

The efforts exerted by the Military Command to look into the abduction were, at best, merely
superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on
the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due
to the fact that the Provost Marshall could delve only into the participation of military
personnel, but even then the Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily investigated...

Gen. Palparan's participation in the abduction was also established. At the very least, he was
aware of the petitioners' captivity at the hands of men in uniform assigned to his command.
In fact, he or any other officer tendered no controversion to the firm claim of Raymond that
he (Gen. Palparan) met them in person in a safehouse in Bulacan and told them what he
wanted them and their parents to do or not to be doing. Gen. Palparan's direct and personal
role in the abduction might not have been shown but his knowledge of the dire situation of
the petitioners during their long captivity at the hands of military personnel under his
command bespoke of his indubitable command policy that unavoidably encouraged and not
merely tolerated the abduction of civilians without due process of law and without probable
cause.

In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices
Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal
Hilario had anything to do with the abduction or the detention. Hilario's involvement could
not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive
the van in which the petitioners were boarded and ferried following the abduction, did not
testify. (See the decision of the habeas proceedings at rollo, p. 52)

However, in this case, Raymond attested that Hilario drove the white L-300 van in which the
petitioners were brought away from their houses on February 14, 2006. Raymond also
attested that Hilario participated in subsequent incidents during the captivity of the
petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a
Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they
were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and
then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the
Revo, to an unfinished house inside the compound of Kapitan where they were kept for more
or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to
 face with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to
the house of the petitioners' parents, where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario
warned the parents that they would not again see their sons should they join any rallies to
denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four
Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan
conversed on the occasion when Gen. Palparan required Raymond to take the medicines for
his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that
Hilario had a direct hand in their torture.

It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other military
personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly
established.

xxx xxx xxx

As to the CAFGU auxiliaries, the habeas Court found them personally involved in the
abduction. We also do, for, indeed, the evidence of their participation is overwhelming.101

We reject the claim of petitioners that respondent Raymond Manalo's statements were not
corroborated by other independent and credible pieces of evidence.102 Raymond's affidavit and
testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and
medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the
physical injuries inflicted on respondents,103 also corroborate respondents' accounts of the torture
they endured while in detention. Respondent Raymond Manalo's familiarity with the facilities in Fort
Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be
the "Division Training Unit,"104 firms up respondents' story that they were detained for some time in
said military facility.

In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the
Commission considered similar evidence, among others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz
was kidnapped and tortured in early November 1989. The Commission's findings of fact were mostly
based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding
her ordeal.106 These statements were supported by her recognition of portions of the route they took
when she was being driven out of the military installation where she was detained.107 She was also
examined by a medical doctor whose findings showed that the 111 circular second degree burns on
her back and abrasions on her cheek coincided with her account of cigarette burning and torture she
suffered while in detention.108

With the secret nature of an enforced disappearance and the torture perpetrated on the victim during
detention, it logically holds that much of the information and evidence of the ordeal will come from
the victims themselves, and the veracity of their account will depend on their credibility and
candidness in their written and/or oral statements. Their statements can be corroborated by other
evidence such as physical evidence left by the torture they suffered or landmarks they can identify in
the places where they were detained. Where powerful military officers are implicated, the hesitation
of witnesses to surface and testify against them comes as no surprise.

We now come to the right of the respondents to the privilege of the writ of Amparo. There is no
quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has
now passed as they have escaped from captivity and surfaced. But while respondents admit that
they are no longer in detention and are physically free, they assert that they are not "free in every
sense of the word"109 as their "movements continue to be restricted for fear that people they have
named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and
have not been held accountable in any way. These people are directly connected to the Armed
Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty
and security."110 (emphasis supplied) Respondents claim that they are under threat of being once
again abducted, kept captive or even killed, which constitute a direct violation of their right to
security of person.111

Elaborating on the "right to security, in general," respondents point out that this right is "often
associated with liberty;" it is also seen as an "expansion of rights based on the prohibition against
torture and cruel and unusual punishment." Conceding that there is no right to security expressly
mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from
torture and from incommunicado detention and solitary detention places112 fall under the general
coverage of the right to security of person under the writ of Amparo." They submit that the Court
ought to give an expansive recognition of the right to security of person in view of the State Policy
under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of every
human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation
of the right to security of person, respondents cite the teaching in Moncupa v. Enrile113 that "the
right to liberty may be made more meaningful only if there is no undue restraint by the State on the
exercise of that liberty"114 such as a requirement to "report under unreasonable restrictions that
amounted to a deprivation of liberty"115 or being put under "monitoring and surveillance."116

In sum, respondents assert that their cause of action consists in the threat to their right to life and
liberty, and a violation of their right to security.

Let us put this right to security under the lens to determine if it has indeed been violated as
respondents assert. The right to security or the right to security of person finds a textual hook
in Article III, Section 2 of the 1987 Constitution which provides, viz:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge...

At the core of this guarantee is the immunity of one's person, including the extensions of his/her
person - houses, papers, and effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more importantly, protects the privacy and
sanctity of the person himself.117 The purpose of this provision was enunciated by the Court
in People v. CFI of Rizal, Branch IX, Quezon City, viz: 118

The purpose of the constitutional guarantee against unreasonable searches and seizures is
to prevent violations of private security in person and property and unlawful invasion of the
security of the home by officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858;
Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the
dignity and happiness and to the peace and security of every individual, whether it be
of home or of persons and correspondence. (Tañada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right
against unreasonable searches and seizures must be deemed absolute as nothing is
closer to a man's soul than the serenity of his privacy and the assurance of his
 personal security. Any interference allowable can only be for the best causes and
reasons.119 (emphases supplied)

While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 -
upon which the enjoyment of all other rights is preconditioned - the right to security of person is a
guarantee of the secure quality of this life, viz: "The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it
is a life lived with the assurance that the government he established and consented to, will protect
the security of his person and property. The ideal of security in life and property... pervades the
whole history of man. It touches every aspect of man's existence."122 In a broad sense, the right to
security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs,
his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life
while existing, and it is invaded not only by a deprivation of life but also of those things which are
necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the
individual."123

A closer look at the right to security of person would yield various permutations of the exercise of this
right.

First, the right to security of person is "freedom from fear." In its "whereas" clauses,
the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars
postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual
international human right.124 It is the "right to security of person" as the word "security" itself means
"freedom from fear."125 Article 3 of the UDHR provides, viz:

Everyone has the right to life, liberty and security of person.126 (emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil
and Political Rights (ICCPR) also provides for the right to security of person, viz:

1. Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law. (emphasis supplied)

The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the
rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from
being baseless to well-founded as people react differently. The degree of fear can vary from one
person to another with the variation of the prolificacy of their imagination, strength of character or
past experience with the stimulus. Thus, in the Amparo context, it is more correct to say that the
"right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with
violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision.127

Second, the right to security of person is a guarantee of bodily and psychological integrity or
security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body
cannot be searched or invaded without a search warrant.128 Physical injuries inflicted in the context
of extralegal killings and enforced disappearances constitute more than a search or invasion of the
body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the
degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law,
physical injuries constitute a crime against persons because they are an affront to the bodily integrity
or security of a person.129

Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to
vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it
constitutes an invasion of both bodily and psychological integrity as the dignity of the human person
includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:

(2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free
will shall be used against him (any person under investigation for the commission of an
offense). Secret detention places, solitary, incommunicado or other similar forms of detention
are prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not
involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the
sense of "freedom from threat" as afore-discussed.

Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation
for the commission of an offense. Victims of enforced disappearances who are not even under such
investigation should all the more be protected from these degradations.

An overture to an interpretation of the right to security of person as a right against torture was made
by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this
case, the claimant, who was lawfully detained, alleged that the state authorities had physically
abused him in prison, thereby violating his right to security of person. Article 5(1) of the European
Convention on Human Rights provides, viz: "Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law ..." (emphases supplied) Article 3, on the other hand, provides that "(n)o
one shall be subjected to torture or to inhuman or degrading treatment or punishment." Although the
application failed on the facts as the alleged ill-treatment was found baseless, the ECHR relied
heavily on the concept of security in holding, viz:

...the applicant did not bring his allegations to the attention of domestic authorities at the time
when they could reasonably have been expected to take measures in order to ensure
his security and to investigate the circumstances in question.

xxx xxx xxx

... the authorities failed to ensure his security in custody or to comply with the procedural
obligation under Art.3 to conduct an effective investigation into his allegations.131 (emphasis
supplied)

The U.N. Committee on the Elimination of Discrimination against Women has also made a statement
that the protection of the bodily integrity of women may also be related to the right to security and
liberty, viz:

...gender-based violence which impairs or nullifies the enjoyment by women of human rights
and fundamental freedoms under general international law or under specific human rights
conventions is discrimination within the meaning of article 1 of the Convention (on the
 Elimination of All Forms of Discrimination Against Women). These rights and freedoms
include . . . the right to liberty and security of person.132

Third, the right to security of person is a guarantee of protection of one's rights by the
government. In the context of the writ of Amparo, this right is built into the guarantees of the right
to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of
person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III,
Section 2. The right to security of person in this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution.133 As
the government is the chief guarantor of order and security, the Constitutional guarantee of the rights
to life, liberty and security of person is rendered ineffective if government does not afford protection
to these rights especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection to victims of extralegal
killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders
to the bar of justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case,134viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government.135

This third sense of the right to security of person as a guarantee of government protection has been
interpreted by the United Nations' Human Rights Committee136 in not a few cases involving Article
9137 of the ICCPR. While the right to security of person appears in conjunction with the right to liberty
under Article 9, the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily be a deprivation of
liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,138 a case
involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social
views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz:

The first sentence of article 9 does not stand as a separate paragraph. Its location as a part
of paragraph one could lead to the view that the right to security arises only in the context of
arrest and detention. The travaux préparatoires indicate that the discussions of the first
sentence did indeed focus on matters dealt with in the other provisions of article 9. The
Universal Declaration of Human Rights, in article 3, refers to the right to life, the right
to liberty and the right to security of the person. These elements have been dealt with
in separate clauses in the Covenant. Although in the Covenant the only reference to
the right of security of person is to be found in article 9, there is no evidence that it
was intended to narrow the concept of the right to security only to situations of formal
deprivation of liberty. At the same time, States parties have undertaken to guarantee
the rights enshrined in the Covenant. It cannot be the case that, as a matter of law,
States can ignore known threats to the life of persons under their jurisdiction, just
because that he or she is not arrested or otherwise detained. States parties are under
an obligation to take reasonable and appropriate measures to protect them. An
interpretation of article 9 which would allow a State party to ignore threats to the
personal security of non-detained persons within its jurisdiction would render totally
ineffective the guarantees of the Covenant.139(emphasis supplied)

The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and
prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements
following his release from detention. In a catena of cases, the ruling of the Committee was of a
similar import: Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation and
persecution of opponents of the ruling party in that state; Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a supporter of democratic reform in Zaire; Dias v.
Angola,143 involving the murder of the complainant's partner and the harassment he
(complainant) suffered because of his investigation of the murder; and Chongwe v.
Zambia,144 involving an assassination attempt on the chairman of an opposition alliance.

Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not
only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the
State to afford protection of the right to liberty.145 The ECHR interpreted the "right to security of
person" under Article 5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had been arrested by
state authorities and had not been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant suggested that this was a
violation of her son's right to security of person. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the very
purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed
control over that individual it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take
effective measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been taken
into custody and has not been seen since.147 (emphasis supplied)

Applying the foregoing concept of the right to security of person to the case at bar, we now
determine whether there is a continuing violation of respondents' right to security.

First, the violation of the right to security as freedom from threat to respondents' life, liberty
and security.

While respondents were detained, they were threatened that if they escaped, their families, including
them, would be killed. In Raymond's narration, he was tortured and poured with gasoline after he
was caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam,"
who wanted to see him before he was killed, spared him.

This time, respondents have finally escaped. The condition of the threat to be killed has come to
pass. It should be stressed that they are now free from captivity not because they were released by
virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the
end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay,
Bataan, respondents' captors even told them that they were still deciding whether they should be
executed. Respondent Raymond Manalo attested in his affidavit, viz:

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw

pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.148

The possibility of respondents being executed stared them in the eye while they were in detention.
With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced
and implicated specific officers in the military not only in their own abduction and torture, but also in
those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeño, and
Manuel Merino, among others.

Understandably, since their escape, respondents have been under concealment and protection by
private citizens because of the threat to their life, liberty and security. The threat vitiates their free will
as they are forced to limit their movements or activities.149 Precisely because respondents are being
shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to their life, liberty and security.
Nonetheless, the circumstances of respondents' abduction, detention, torture and escape
reasonably support a conclusion that there is an apparent threat that they will again be abducted,
tortured, and this time, even executed. These constitute threats to their liberty, security, and life,
actionable through a petition for a writ of Amparo.

Next, the violation of the right to security as protection by the government. Apart from the
failure of military elements to provide protection to respondents by themselves perpetrating the
abduction, detention, and torture, they also miserably failed in conducting an effective investigation
of respondents' abduction as revealed by the testimony and investigation report of petitioners' own
witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.

The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He
merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians
whom he met in the investigation for the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but he did not propound a single question to
ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test
the alibis given by the six implicated persons nor for the family or neighbors of the respondents.

In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive
dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the
AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court
against any members of the AFP, which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and
securing statements from them; determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons involved in the death or
disappearance; and bringing of the suspected offenders before a competent court.150 Petitioner AFP
Chief of Staff also submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he immediately caused
to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of
the alleged disappearance and the recent reappearance of the respondents, and undertook to
provide results of the investigations to respondents.151 To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the investigation which they now seek through
the instant petition for a writ of Amparo.

Under these circumstances, there is substantial evidence to warrant the conclusion that there is a
violation of respondents' right to security as a guarantee of protection by the government.

In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective investigation and protection on
the part of the military.

Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.
First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file with the court.

Second, that petitioners confirm in writing the present places of official assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas.

Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records
and charts, and reports of any treatment given or recommended and medicines prescribed, if
any, to the Manalo brothers, to include a list of medical personnel (military and civilian) who
attended to them from February 14, 2006 until August 12, 2007.

With respect to the first and second reliefs, petitioners argue that the production order sought by
respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites
for the issuance of a search warrant must be complied with prior to the grant of the production order,
namely: (1) the application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there exists probable
cause with one specific offense; and (4) the probable cause must be personally determined by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce.152 In the case at bar, however, petitioners point out that other than the bare, self-serving
and vague allegations made by respondent Raymond Manalo in his unverified declaration and
affidavit, the documents respondents seek to be produced are only mentioned generally by name,
with no other supporting details. They also argue that the relevancy of the documents to be
produced must be apparent, but this is not true in the present case as the involvement of petitioners
in the abduction has not been shown.

Petitioners' arguments do not hold water. The production order under the Amparo Rule should not
be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand of the people such
as respondents.

Instead, the Amparo production order may be likened to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order.

Upon motion of any party showing good cause therefor, the court in which an action
is pending may (a) order any party to produce and permit the inspection and copying
or photographing, by or on behalf of the moving party, of any designated documents,
papers, books of accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control...

In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of
Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the
books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the
subpoena on the ground that it violated the search and seizure clause. The Court struck down the
argument and held that the subpoena pertained to a civil procedure that "cannot be identified or
confused with unreasonable searches prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the
investigations conducted or to be conducted by the concerned unit relative to the circumstances of
the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as
soon as the same has been furnished Higher headquarters."

With respect to the second and third reliefs, petitioners assert that the disclosure of the present
places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the
submission of a list of medical personnel, is irrelevant, improper, immaterial, and unnecessary in the
resolution of the petition for a writ of Amparo. They add that it will unnecessarily compromise and
jeopardize the exercise of official functions and duties of military officers and even unwittingly and
unnecessarily expose them to threat of personal injury or even death.

On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind their
abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of
territorial jurisdiction. Such disclosure would also help ensure that these military officers can be
served with notices and court processes in relation to any investigation and action for violation of the
respondents' rights. The list of medical personnel is also relevant in securing information to create
the medical history of respondents and make appropriate medical interventions, when applicable
and necessary.

In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed
out from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that
gives voice to preys of silent guns and prisoners behind secret walls.

WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of
Appeals dated December 26, 2007 is affirmed.

SO ORDERED.

REYNATO S. PUNO
Chief Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice
 PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

Echegaray v Secretary of Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 132601 January 19, 1999

LEO ECHEGARAY, petitioner,

vs.
SECRETARY OF JUSTICE, ET AL., respondents.

RESOLUTION

PUNO, J.:
For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this
Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental
Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that:

1. The Decision in this case having become final and executory, its execution enters the
exclusive ambit of authority of the executive authority. The issuance of the TRO may
be construed as trenching on that sphere of executive authority;
2. The issuance of the temporary restraining order . . . creates dangerous precedent as
there will never be an end to litigation because there is always a possibility that
Congress may repeal a law.
3. Congress had earlier deliberated extensively on the death penalty bill. To be certain,
whatever question may now be raised on the Death Penalty Law before the present
Congress within the 6-month period given by this Honorable Court had in all
probability been fully debated upon . . .
4. Under the time honored maxim lex futuro, judex praeterito, the law looks forward
while the judge looks at the past, . . . the Honorable Court in issuing the TRO has
transcended its power of judicial review.
5. At this moment, certain circumstances/supervening events transpired to the effect
that the repeal or modification of the law imposing death penalty has become nil, to
wit:

a. The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the repeal
of the law;
c. The fact that Senator Roco's resolution to repeal the law only bears his
signature and that of Senator Pimentel.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a
copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution
expressing the sense of the House of Representative to reject any move to review Republic Act No.
7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and
the Executive Department of the position of the House of Representative on this matter, and urging
the President to exhaust all means under the law to immediately implement the death penalty law."
The Resolution was concurred in by one hundred thirteen (113) congressman.

In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of
judicial power and duty and does not trench on executive powers nor on congressional prerogatives;
(2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not
lose jurisdiction to address incidental matters involved or arising from the petition; (4) public
respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that
the law on capital punishment will not be repealed or modified until Congress convenes and
considers all the various resolutions and bills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not
incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic
review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601,
where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and
regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999
merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and
Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to
intervene in the case at bar, let alone the fact that the interest of the State is properly represented by
the Solicitor General.

We shall now resolve the basic issues raised by the public respondents.

First. We do not agree with the sweeping submission of the public respondents that this Court lost its
jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner.
Obviously, public respondents are invoking the rule that final judgments can no longer be altered in
accord with the principle that "it is just as important that there should be a place to end as there
should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its
final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of
this Court that became final. These metes and bounds are clearly spelled out in the Entry of
Judgment in this case, viz:

ENTRY OF JUDGMENT

This is to certify that on October 12, 1998 a decision rendered in the above-entitled
case was filed in this Office, the dispositive part of which reads as follows:

WHEREFORE, the petition is DENIED insofar as petitioner seeks to

declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19 of the
Rules and Regulations to Implement Republic Act No. 8177 are
concerned, which are hereby declared INVALID because (a) Section
17 contravenes Article 83 of the Revised Penal Code, as amended by
Section 25 of Republic Act No. 7659; and (b) Section 19 fails to
provide for review and approval of the Lethal Injection Manual by the
Secretary of Justice, and unjustifiably makes the manual confidential,
hence unavailable to interested parties including the accused/convict
and counsel. Respondents are hereby enjoined from enforcing and
implementing Republic Act No. 8177 until the aforesaid Sections 17
and 19 of the Rules and Regulations to Implement Republic Act No.
8177 are appropriately amended, revised and/or corrected in
accordance with this Decision.

SO ORDERED.

and that the same has, on November 6, 1988 become final and executory and is
hereby recorded in the Book of Entries of Judgment.

Manila, Philippine.

Clerk
of
Court

By:
(SGD)
TERES
 ITA G.
DIMAI
SIP

Acting
Chief

Judicial
Record
s Office

The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable
Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the
Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On
October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has
caused the publication of the said Amended Rules and Regulations as required by the
Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable
mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules
and Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced
and implemented until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177
are amended. It is also daylight clear that this Decision was not altered a whit by this Court. Contrary
to the submission of the Solicitor General, the rule on finality of judgment cannot divest this Court of
its jurisdiction to execute and enforce the same judgment. Retired Justice Camilo Quiason
synthesized the well established jurisprudence on this issue as
follows: 2

xxx xxx xxx

the finality of a judgment does not mean that the Court has lost all its powers nor the
case. By the finality of the judgment, what the court loses is its jurisdiction to amend,
modify or alter the same. Even after the judgment has become final the court retains
its jurisdiction to execute and enforce it. 3 There is a difference between the
jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify
or alter the same. The former continues even after the judgment has become final for
the purpose of enforcement of judgment; the latter terminates when the judgment
becomes final. 4 . . . For after the judgment has become final facts and circumstances
may transpire which can render the execution unjust or impossible.5

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed
out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of
Prisons v. Judge of First Instance, 6 viz:

This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same cannot change or alter its
judgment, as its jurisdiction has terminated . . . When in cases of appeal or review
the cause has been returned thereto for execution, in the event that the judgment
has been affirmed, it performs a ministerial duty in issuing the proper order. But it
does not follow from this cessation of functions on the part of the court with reference
to the ending of the cause that the judicial authority terminates by having then
passed completely to the Executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
 absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out of the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible that assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the (court)
has performed its ministerial duty of ordering the execution . . . and its part is ended,
if however a circumstance arises that ought to delay the execution, and there is an
imperative duty to investigate the emergency and to order a postponement. Then the
question arises as to whom the application for postponing the execution ought to be
addressed while the circumstances is under investigation and so to who has
jurisdiction to make the investigation.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be
the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one
Supreme Court and in such lower courts as may be established by law. To be sure, the important
part of a litigation, whether civil or criminal, is the process of execution of decisions where
supervening events may change the circumstance of the parties and compel courts to intervene and
adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening
contingencies that courts have been conceded the inherent and necessary power of control of its
processes and orders to make them conformable to law and justice. 8 For this purpose, Section 6 of
Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary
writs, processes and other means necessary to carry it into effect may be employed by such court or
officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted
which appears conformable to the spirit of said law or rules." It bears repeating that what the Court
restrained temporarily is the execution of its own Decision to give it reasonable time to check its
fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to
popular misimpression, did not restrain the effectivity of a law enacted by Congress. 1âwphi1.nêt

The more disquieting dimension of the submission of the public respondents that this Court has no
jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the
judiciary. Since the implant of republicanism in our soil, our courts have been conceded the
jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court
promulgated rules concerning pleading, practice and procedure which, among others, spelled out
the rules on execution of judgments. These rules are all predicated on the assumption that courts
have the inherent, necessary and incidental power to control and supervise the process of execution
of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases.
Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate
rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance
its independence, for in the words of Justice Isagani Cruz "without independence and integrity,
courts will lose that popular trust so essential to the maintenance of their vigor as champions of
justice." 9 Hence, our Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning
pleading, practice and procedure was granted but it appeared to be co-existent with legislative
power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section
13, Article VIII provides:

Sec.13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice and procedure in all courts, and the admission to the practice of
law. Said rules shall be uniform for all courts of the same grade and shall not
diminish, increase, or modify substantive rights. The existing laws on pleading,
practice and procedure are hereby repealed as statutes, and are declared Rules of
Court, subject to the power of the Supreme Court to alter and modify the same. The
Congress have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re
Cunanan 10Congress in the exercise of its power to amend rules of the Supreme Court regarding
admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a
passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and
71% in the 1952 bar examinations. This Court struck down the law as unconstitutional. In
his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a legislation; it is a judgment
— a judgment promulgated by this Court during the aforecited years affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for justifiable
reasons, it is no less certain that only this Court, and not the legislative nor executive department,
that may do so. Any attempt on the part of these department would be a clear usurpation of its
function, as is the case with the law in question." 12The venerable jurist further ruled: "It is obvious,
therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this
Court, and the law passed by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court
qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and
procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the
Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:

xxx xxx xxx

Sec.5. The Supreme Court shall have the following powers.

xxx xxx xxx

(5) Promulgate rules concerning pleading, practice,

and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which,
however, may be repealed, altered, or supplemented
by the Batasang Pambansa. Such rules shall provide
a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of
 the same grade, and shall not diminish, increase, or
modify substantive rights.

Well worth noting is that the 1973 Constitution further strengthened the independence of the
judiciary by giving to it the additional power to promulgate rules governing the integration of the
Bar. 13

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:

xxx xxx xxx

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning the protection and

enforcement of constitutional rights, pleading, practice
and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the
Supreme Court.

The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court
was also granted for the first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen
the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has
no jurisdiction to control the process of execution of its decisions, a power conceded to it and which
it has exercised since time immemorial.

To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to
control and supervise the implementation of its decision in the case at bar. As aforestated, our
Decision became final and executory on November 6, 1998. The records reveal that after November
6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of
this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable
Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the
Warrant of Execution dated November 17, 1998 bearing the designated execution day of death
convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the
execution date fixed by such trial court to the public when requested." The relevant portions of the
Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide
the appropriate relief" state:
 xxx xxx xxx

5. Instead of filing a comment on Judge Ponferrada's Manifestation

however, herein respondent is submitting the instant Manifestation
and Motion (a) to stress, inter alia, that the non-disclosure of the date
of execution deprives herein respondent of vital information
necessary for the exercise of his statutory powers, as well as renders
nugatory the constitutional guarantee that recognizes the people's
right to information of public concern, and (b) to ask this Honorable
Court to provide the appropriate relief.

6. The non-disclosure of the date of execution deprives herein

respondent of vital information necessary for the exercise of his
power of supervision and control over the Bureau of Corrections
pursuant to Section 39, Chapter 8, Book IV of the Administrative
Code of 1987, in relation to Title III, Book IV of such Administrative
Code, insofar as the enforcement of Republic Act No. 8177 and the
Amended Rules and Regulations to Implement Republic Act No.
8177 is concerned and for the discharge of the mandate of seeing to
it that laws and rules relative to the execution of sentence are
faithfully observed.

7. On the other hand, the willful omission to reveal the information

about the precise day of execution limits the exercise by the
President of executive clemency powers pursuant to Section 19,
Article VII (Executive Department) of the 1987 Philippine Constitution
and Article 81 of the Revised Penal Code, as amended, which
provides that the death sentence shall be carried out "without
prejudice to the exercise by the President of his executive powers at
all times." (Emphasis supplied) For instance, the President cannot
grant reprieve, i.e., postpone the execution of a sentence to a day
certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a
precise date to reckon with. The exercise of such clemency power, at
this time, might even work to the prejudice of the convict and defeat
the purpose of the Constitution and the applicable statute as when
the date at execution set by the President would be earlier than that
designated by the court.

8. Moreover, the deliberate non-disclosure of information about the

date of execution to herein respondent and the public violates Section
7, Article III (Bill of Rights) and Section 28, Article II (Declaration of
Principles and State Policies) of the 1987 Philippine Constitution
which read:

Sec. 7. The right of the people to information on matters of public

concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development shall, be afforded the citizen, subject to such
limitations as may beprovided by law.
 Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all
transactions involving public interest.

9. The "right to information" provision is self-executing. It supplies

"the rules by means of which the right to information may be enjoyed
(Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by
guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of the
Constitution without need for any ancillary act of the Legislature (Id.,
at p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared State policy
of full public disclosure of all transactions involving public interest
(Constitution, Art. II, Sec. 28). However, it cannot be overemphasized
that whatever limitation may be prescribed by the Legislature, the
right and the duty under Art. III, Sec. 7 have become operative and
enforceable by virtue of the adoption of the New Charter." (Decision
of the Supreme Court En Banc in Legaspi v. Civil Service
Commission, 150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner
Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his
client's right to due process and the public's right to information. The Solicitor General, as counsel for
public respondents, did not oppose petitioner's motion on the ground that this Court has no more
jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by
the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998.
There was not a whimper of protest from the public respondents and they are now estopped from
contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court
does not depend on the convenience of litigants.

II

Second. We likewise reject the public respondents' contention that the "decision in this case having
become final and executory, its execution enters the exclusive ambit of authority of the executive
department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an
executive function." 14 Public respondents cite as their authority for this proposition, Section 19,
Article VII of the Constitution which reads:

Except in cases of impeachment, or as otherwise provided in this Constitution, the

President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures after conviction by final judgment. He shall also have the power to grant
amnesty with the concurrence of a majority of all the members of the Congress.

The text and tone of this provision will not yield to the interpretation suggested by the public
respondents. The provision is simply the source of power of the President to grant reprieves,
commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also
provides the authority for the President to grant amnesty with the concurrence of a majority of all the
members of the Congress. The provision, however, cannot be interpreted as denying the power of
courts to control the enforcement of their decisions after their finality. In truth, an accused who has
been convicted by final judgment still possesses collateral rights and these rights can be claimed in
the appropriate courts. For instance, a death convict who become insane after his final conviction
cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally
assumed that due process of law will prevent the government from executing the death sentence
upon a person who is insane at the time of execution." 16 The suspension of such a death sentence is
undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve
though its effects is the same — the temporary suspension of the execution of the death convict. In
the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing
the penalty of death to life imprisonment. The effect of such an amendment is like that of
commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its
plenary power to amend laws be considered as a violation of the power of the President to commute
final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save
the life of a death convict do not exclude each other for the simple reason that there is no higher
right than the right to life. Indeed, in various States in the United States, laws have even been
enacted expressly granting courts the power to suspend execution of convicts and their
constitutionality has been upheld over arguments that they infringe upon the power of the President
to grant reprieves. For the public respondents therefore to contend that only the Executive can
protect the right to life of an accused after his final conviction is to violate the principle of co-equal
and coordinate powers of the three branches of our government.

III

Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its
proper perspective as it has been grievously distorted especially by those who make a living by
vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at
about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4,
the first working day of 1999; (b) that members of Congress had either sought for his executive
clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator
Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital
punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President
Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of
the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment,
and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding
review of the same law.

When the Very Urgent Motion was filed, the Court was already in its traditional recess and would
only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the
Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent
Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be
executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's
allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere
speculations or not. To the Court's majority, there were good reasons why the Court should not
immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that
petitioner's allegations were made in a pleading under oath and were widely publicized in the print
and broadcast media. It was also of judicial notice that the 11th Congress is a new Congress and
has no less than one hundred thirty (130) new members whose views on capital punishment are still
unexpressed. The present Congress is therefore different from the Congress that enacted the Death
Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's
minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify
petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was
impossible as Congress was not in session. Given these constraints, the Court's majority did not
rush to judgment but took an extremely cautious stance by temporarily restraining the execution of
petitioner. The suspension was temporary — "until June 15, 1999, coeval with the constitutional
duration of the present regular session of Congress, unless it sooner becomes certain that no repeal
or modification of the law is going to be made." The extreme caution taken by the Court was
compelled, among others, by the fear that any error of the Court in not stopping the execution of the
petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the
Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt
it needed the certainty that the legislature will not petitioner as alleged by his counsel. It was
believed that law and equitable considerations demand no less before allowing the State to take the
life of one its citizens.

The temporary restraining order of this Court has produced its desired result, i.e., the crystallization
of the issue whether Congress is disposed to review capital punishment. The public respondents,
thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that
Congress will repeal or amend the death penalty law. He names these supervening events as
follows:

xxx xxx xxx

a. The public pronouncement of President Estrada that he will veto any law imposing
the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the repeal of the
law;
c. The fact that Senator Roco's resolution to repeal the law only bears his signature and
that of Senator Pimentel. 18

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House
Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of
the House of Representatives to reject any move to review R.A. No. 7659 which provided for the
reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of
the position of the House of Representative on this matter and urging the President to exhaust all
means under the law to immediately implement the death penalty law." The Golez resolution was
signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended
up 3 o'clock in the morning, the House of Representative with minor, the House of Representative
with minor amendments formally adopted the Golez resolution by an overwhelming vote. House
Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review
Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify
the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these
developments, the Court's TRO should now be lifted as it has served its legal and humanitarian
purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital
punishment had been the subject of endless discussion and will probably never be settled so long as
men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked,
the debate on the legal and moral predicates of capital punishment has been regrettably blurred by
emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and
righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of
epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse
of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty
of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice
Brennan reminds us ". . . it is the very purpose of the Constitution — and particularly the Bill of
Rights — to declare certain values transcendent, beyond the reach of temporary political
majorities." 20 Man has yet to invent a better hatchery of justice than the courts. It is a hatchery where
justice will bloom only when we can prevent the roots of reason to be blown away by the winds of
rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is
the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass
their litmus test only when they can be fair to him who is momentarily the most hated by society. 21

IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration
and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining
Order issued in its Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial
Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in
accordance with applicable provisions of law and the Rules of Court, without further delay.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima and
Pardo, JJ., concur.

Vitug and Panganiban, JJ., Please see Separate Opinion.

Buena and Gonzaga-Reyes, JJ., took no part.

Separate Opinions

VITUG, J., separate opinion;

Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it
prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of
my brethren on the Court, who hold similarly, have consistently expressed this stand in the
affirmance by the Court of death sentences imposed by Regional Trial Courts.

In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a
temporary restraining order ("TRO") because, among other things, of what had been stated to be
indications that Congress would re-examine the death penalty law. It was principally out of respect
and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly
minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.

The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment
convicting the accused or recall the imposition of the death penalty.

The doctrine has almost invariably been that after a decision becomes final and executory, nothing
else is further done except to see to its compliance since for the Court to adopt otherwise would be
to put no end to litigations The rule notwithstanding, the Court retains control over the case until the
full satisfaction of the final judgment conformably with established legal processes. Hence, the Court
has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry
out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and
executory judgments admits of settled exceptions. Concededly, the Court may, for instance,
suspend the execution of a final judgment when it becomes imperative in the higher interest of
justice or when supervening events warrant it.1 Certainly, this extraordinary relief cannot be denied
any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement
in Director of Prisons vs. Judge of First Instance of Cavite,2 should be instructive. Thus —

This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same has elapsed, the court can not
change or after its judgment, as its jurisdiction has terminated, functus est officio suo,
according to the classical phrase. When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having then passed
completely to the executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that, notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible the assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the Court of
First Instance has performed its ministerial duty of ordering the execution, functus est
officio suo, and its part is ended, if however a circumstance arises that ought to delay
the execution, there is an imperative duty to investigate the emergency and to order
a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the
President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or
modify the law that could benefit the convicted accused are not essentially preclusive of one another
nor constitutionally incompatible and may each be exercised within their respective spheres and
confines. Thus, the stay of execution issued by the Court would not prevent either the President from
exercising his pardoning power or Congress from enacting a measure that may be advantageous to
the adjudged offender.

The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999,
"coeval with the duration of the present regular session of Congress," if it "sooner becomes certain
that no repeal or modification of the law is going to be made." The "Urgent Motion for
Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain
circumstances/supervening events (have) transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any
chance for a timely3 re-examination by Congress of the death penalty law, then I can appreciate why
the majority of the Justices on the Court feel rightly bound even now to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most
thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for
the need to have a second look at the conditions sine qua non prescribed by the Constitution in the
imposition of the death penalty. In People vs. Masalihit,4 in urging, with all due respect, Congress to
consider a prompt re-examination of the death penalty law, I have said:

The determination of when to prescribe the death penalty lies, in the initial instance,
with the law-making authority, the Congress of the Philippines, subject to the
conditions that the Constitution itself has set forth; viz: (1) That there must
be compelling reasons to justify the imposition of the death penalty; and (2) That the
capital offense must involve a heinous crime. It appears that the fundamental law did
not contemplate a simple 'reimposition' of the death penalty to offenses theretofore
alreadyprovided in the Revised Penal Code or, let alone, just because of it. The term
'compelling reasons' would indicate to me that there must first be a marked change in
the milieu from that which has prevailed at the time of adoption of the 1987
Constitution, on the one hand, to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand, that would make it distinctively
inexorable to allow the re-imposition of the death penalty. Most importantly, the
circumstances that would characterize the 'heinous nature' of the crime and make it
so exceptionally offensive as to warrant the death penalty must be spelled out with
great clarity in the law, albeit without necessarily precluding the Court from exercising
its power of judicial review given the circumstances of each case. To venture, in the
case of murder, the crime would become 'heinous' within the Constitutional concept,
when, to exemplify, the victim is unnecessarily subjected to a painful and
excruciating death or, in the crime of rape, when the offended party is callously
humiliated or even brutally killed by the accused. The indiscriminate imposition of the
death penalty could somehow constrain courts to apply, perhaps without consciously
meaning to, stringent standards for conviction, not too unlikely beyond what might
normally be required in criminal cases, that can, in fact, result in undue exculpation of
offenders to the great prejudice of victims and society.

Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met
as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the
majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the
Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each
time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone
else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion;

I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the
disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned
disquisition. I write only to explain my vote in the context of the larger issue of the death penalty.
Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during
its current session which ends on June 15, 1999 and that, in any event, the President will veto any
such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my
objections to the imposition of the death penalty transcend the TRO and permeate its juridical
essence.

I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts
thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and
"compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly
stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the
Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of
my Dissent promulgated on February 7, 1997.

Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and
enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is
unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA
8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in
which RA 7659 ( the Death Penalty Law) is to implemented.

Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the
Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority
vote, be implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration.

G.R. No. 117472 February 7, 1997

PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.

Supplemental Motion for Reconsideration

SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic
Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original
Motion for Reconsideration filed by his previous counsel,3 this transcendental issue was nor brought
up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of
death.4

The Constitution Abolished Death Penalty

Sec. 19, Article III of the 1987 Constitution provides:

Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced toreclusion perpetua. (Emphasis supplied)
The second and third sentences of the above provision are new and had not been written in the
1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death
penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and
reduced "any death penalty already imposed" toreclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces
imposed capital sentences to the lesser penalty of imprisonment).

This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction toreclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed,6 "(t)he
majority voted for the constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the non-imposition of the death penalty, what he had in mind was the total
abolition and removal from the statute books of the death penalty. This became the intent of the
frames of the Constitution when they approved the provision and made it a part of the Bill of Rights."
With such abolition as a premise, restoration thereof becomes an exception to a constitutional
mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly
construed against the State and liberally in favor of the people.8 In this light, RA 7659 enjoys no
presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to reimpose it on condition that it (Congress)9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward"10): the authority of
Congress to "provide for it" is not absolute. Rather, it is strictly limited:

1. by "compelling reasons" that may arise after the Constitution became effective; and
2. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of
"compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-
making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress,
by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the
death penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating
a new article therein; 13 and (3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more sever
sanction, either collectively for all the offenses or individually for each of them.
Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.

The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted
it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave
abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III,
Sec. 19? The answer, I respectfully submit, is YES.

Heinous Crimes

To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY
to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress.
As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death
as an applicable penalty. It did not give a standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient definition or

characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be
"heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be determined. Calling the crimes
"grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the
description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood
as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation, much less
prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the
Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating
circumstances. 16

In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery,17 no new crimes were introduced by RA 7659. The offenses punished by death
under said law were already to punishable by the Revised Penal Code 18 and by special laws.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to
a question of Sen. Ernesto Maceda, wryly said: 19
 So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.

By merely reimposing capital punishment on the very same crimes which were already penalized
with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our
criminal laws and 2) make its restoration possible only under and subject to stringent conditions is
evident not only from the language of the Constitution but also from the charter debates on this
matter.

The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous,
he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape
victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not
just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I
believe that the available information shows that, when deliberating on "heinousness", the
Constitutional Commission did not have in mind the offenses already existing and already penalized
with death. I also believe that the heinousness clause requires that:

1. the crimes should be entirely new offenses, the elements of which have an inherent
quality, degree or level of perversity, depravity or viciousness unheard of until then;
or
2. even existing crimes, provided some new element or essential ingredient like
"organized" or "brutal" is added to show their utter perversity, odiousness or
malevolence; or
3. the means or method by which the crime, whether new or old, is carried out evinces
a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to
demonstrate its heinousness. 21

For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs
Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that
paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It should be remembered that every word or
phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed
aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot
be done wholesale but must shown for each and every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, in the words of Comm.
Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that
the conditions and the situation (during the deliberations of the Constitutional Commission) might
change for very specific reasons" requiring the return of the constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo
Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these
compelling reasons: 23

MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.

MR. LAGMAN. So the compelling reason which the distinguished sponsor would like
to justify or serve as an anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation. The Gentleman claims
that is one the compelling reasons. But before we dissent this particular "compelling
reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.) Justice, Mr. Speaker.

MR. LAGMAN. Justice.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice was
not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstances after 1987.

MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
punished and that the penalty imposed be commensurate with the offense
committed.

MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it refers
to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be meted out for those who have
committed heinous crimes.

xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order"
and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify
the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent.
Statistics from the Philippine National Police show that the crime volume and crime rate particularly
on those legislated capital offenses did not worsen but in fact declined between 1987, the date when
the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following
debate 24 also between Representatives Garcia and Lagman:

MR. LAGMAN. Very good, Mr. Speaker.

Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of
the crime of murder in 1987?

MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN. So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman
inform us the volume of murder in 1988?

MR. GARCIA (P.). It was 10,521, Mr. Speaker.

MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988.

Correspondingly, the crime rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker?

MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by
the PC.

MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the
death penalty? May we know from the distinguished Gentleman the volume of
robbery in 1987?

MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it.

MR. LAGMAN. No, Mr. Speaker, I am asking the question.

MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent.

MR. LAGMAN. This was the year immediately after the abolition of the death penalty.
Could the Gentleman tell us the volume of robbery cases in 1988?

MR. GARCIA (P.). It was 16,926, Mr. Speaker.

MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the
volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to
16,926 or a crime rate of 29 percent. Would the Gentleman confirm
that, Mr. Speaker?

MR. GARCIA (P.). This is what the statistics say, I understand we are reading now
from the same document.
 MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate
of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would
the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document
and I would not want to say that the Gentleman is misreading the document that I
have here.

MR. LAGMAN. But would the Gentleman confirm that?

MR. GARCIA (P.). The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of
persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25

Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 — this was the year when the death penalty was
abolished — the persons arrested in drug-related cases were 3,062, and the figure
dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It
still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.

But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any
conclusiveness the relationship between the prescription of the death penalty for certain offenses
and the commission or non-commission thereof. This is a theory that can be debated on and on, 27 in
the same manner that another proposition — that the real deterrent to crime is the certainty of
immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and
inconvenience to the victim, his heirs or his witnesses — can be argued indefinitely. 28 This debate
can last till the academics grow weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling
reasons" limits of its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee in favor of the accused — be zealously
protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor
of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is
not just crimes — but capital crimes!
So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that
"(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary
right of the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by
the 1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence,
the Constitution values the dignity of every human person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the mother and the unborn
from the moment of conception 34 and establishes the people's rights to health, a balanced ecology
and education. 35

This Constitutional explosion of concern for man more than property for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its
perceived enemies.

Indeed, volumes have been written about individual rights to free speech. assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life, the
other rights cease in their enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row
Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:

1. Since the reimposition of the death penalty, 186 persons 37 have been sentenced to
death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995,
the number rose to 90; an average of seven (7) convicts per month; double the
monthly average of capital sentences imposed the prior year. From January to June
1996, the number of death penalty convicts reached 72, an average of 12 convicts
per month, almost double the monthly average of capital sentences imposed in 1995.
2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between
P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent
(4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while approximately two percent (2%) earn
subsistence wages with another five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how much they earn in a month.
3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the
government-mandated minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only
one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on
a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.
4. In terms of occupation, approximately twenty one percent (21%) are agricultural
workers or workers in animal husbandry; of these thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the transport and construction
industry, with thirty one (31) construction workers or workers in allied fields
(carpentry, painting, welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers.
Eighteen percent (18%) are in clerical, sales and service industries, with fourteen
 (14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve
(12) service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk) About four percent (4%) are government workers,
with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives comprise only three percent
(3%), nine percent (9%) are unemployed.
5. None of the DRC's use English as their medium of communication. About forty four
percent (44%), or slightly less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak
and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand Niponggo.
6. Approximately twelve percent (12%) graduated from college, about forty seven
percent (47%) finished varying levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts,
finished varying levels of high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational education; nine (9) convicts did not
study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently
demonstrates that RA 7659 has militated against the poor and the powerless in society — those who
cannot afford the legal services necessary in capital crimes, where extensive preparation,
investigation, research and presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in
the proceedings in the trial court and even before this Court until the Free legal Assistance Group
belatedly brought it up in the Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated,
intimidating and damning. The net effect of having a death penalty that is imposed more often than
not upon the impecunious is to engender in the minds of the latter, a sense — unfounded, to be
sure, but unhealthy nevertheless — of the unequal balance of the scales of justice.

Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-
economic profile of the DRCs, the law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far
as the disadvantaged are concerned, the law would still be complex and written in a strange and
incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and
employment opportunities, are consequently confined to living, working and subsisting in less-than-
ideal environments, amidst less-than-genteel neighbors similarly situated as themselves, and are
therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death penalty neither improves nor worsens
their lot substantially. Or, to be more precise, such law may even be said to help improve their
situation (at least in theory) by posing a much stronger deterrent to the commission of heinous
crimes.

However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think, simply that
everyone ultimately wants to better himself and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and
constitutional firmament.

Epilogue

In sum, I respectfully submit that:

(1) The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.

(2) The Charter effectively granted a new right: the constitution right against the death penalty, which
is really a species of the right to life.

(3) Any law reviving the capital penalty must be strictly construed against the State and liberally in
favor of the accused because such a stature denigrates the Constitution, impinges on a basic right
and tends to deny equal justice to the underprivileged.

(4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-
treated or brushed aside.

(5) Congressional power death is severely limited by two concurrent requirements:

a. First, Congress must provide a set of attendant circumstances which the prosecution
must prove beyond reasonable doubt, apart from the elements of the crime and itself.
Congress must explain why and how these circumstances define or characterize the
crime as "heinous".
b. Second, Congress has also the duty of laying out clear and specific reasons which
arose after the effectivity of the Constitution compelling the enactment of the law. It
bears repeating that these requirements are inseparable. They must both be present
in view of the specific constitutional mandate — "for compelling reasons involving
heinous crimes." The compelling reason must flow from the heinous nature of the
offense.

(6) In every law reviving the capital penalty, the heinousness and compelling reasons must be set
out for each and every crime, and not just for all crimes generally and collectively.

"Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the
death penalty, it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to
Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the
extreme of executing the offender except in cases of absolute necessity: in other words, when it
would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-
existent."
Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death
penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and
above even the state which man created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous
crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically non-existent.

In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe
death against well-defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental
Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by
deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion
perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.

Separate Opinions
VITUG, J., separate opinion;

Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it
prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of
my brethren on the Court, who hold similarly, have consistently expressed this stand in the
affirmance by the Court of death sentences imposed by Regional Trial Courts.

In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a
temporary restraining order ("TRO") because, among other things, of what had been stated to be
indications that Congress would re-examine the death penalty law. It was principally out of respect
and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly
minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.

The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment
convicting the accused or recall the imposition of the death penalty.

The doctrine has almost invariably been that after a decision becomes final and executory, nothing
else is further done except to see to its compliance since for the Court to adopt otherwise would be
to put no end to litigations The rule notwithstanding, the Court retains control over the case until the
full satisfaction of the final judgment conformably with established legal processes. Hence, the Court
has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry
out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and
executory judgments admits of settled exceptions. Concededly, the Court may, for instance,
suspend the execution of a final judgment when it becomes imperative in the higher interest of
justice or when supervening events warrant it.1 Certainly, this extraordinary relief cannot be denied
any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement
in Director of Prisons vs. Judge of First Instance of Cavite,2 should be instructive. Thus —
 This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same has elapsed, the court can not
change or after its judgment, as its jurisdiction has terminated, functus est officio suo,
according to the classical phrase. When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having then passed
completely to the executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that, notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible the assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the Court of
First Instance has performed its ministerial duty of ordering the execution, functus est
officio suo, and its part is ended, if however a circumstance arises that ought to delay
the execution, there is an imperative duty to investigate the emergency and to order
a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the
President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or
modify the law that could benefit the convicted accused are not essentially preclusive of one another
nor constitutionally incompatible and may each be exercised within their respective spheres and
confines. Thus, the stay of execution issued by the Court would not prevent either the President from
exercising his pardoning power or Congress from enacting a measure that may be advantageous to
the adjudged offender.

The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999,
"coeval with the duration of the present regular session of Congress," if it "sooner becomes certain
that no repeal or modification of the law is going to be made." The "Urgent Motion for
Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain
circumstances/supervening events (have) transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any
chance for a timely3 re-examination by Congress of the death penalty law, then I can appreciate why
the majority of the Justices on the Court feel rightly bound even now to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most
thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for
the need to have a second look at the conditions sine qua non prescribed by the Constitution in the
imposition of the death penalty. In People vs. Masalihit,4 in urging, with all due respect, Congress to
consider a prompt re-examination of the death penalty law, I have said:

The determination of when to prescribe the death penalty lies, in the initial instance,
with the law-making authority, the Congress of the Philippines, subject to the
conditions that the Constitution itself has set forth; viz: (1) That there must
be compelling reasons to justify the imposition of the death penalty; and (2) That the
capital offense must involve a heinous crime. It appears that the fundamental law did
not contemplate a simple 'reimposition' of the death penalty to offenses theretofore
alreadyprovided in the Revised Penal Code or, let alone, just because of it. The term
'compelling reasons' would indicate to me that there must first be a marked change in
the milieu from that which has prevailed at the time of adoption of the 1987
Constitution, on the one hand, to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand, that would make it distinctively
inexorable to allow the re-imposition of the death penalty. Most importantly, the
circumstances that would characterize the 'heinous nature' of the crime and make it
so exceptionally offensive as to warrant the death penalty must be spelled out with
great clarity in the law, albeit without necessarily precluding the Court from exercising
its power of judicial review given the circumstances of each case. To venture, in the
case of murder, the crime would become 'heinous' within the Constitutional concept,
when, to exemplify, the victim is unnecessarily subjected to a painful and
excruciating death or, in the crime of rape, when the offended party is callously
humiliated or even brutally killed by the accused. The indiscriminate imposition of the
death penalty could somehow constrain courts to apply, perhaps without consciously
meaning to, stringent standards for conviction, not too unlikely beyond what might
normally be required in criminal cases, that can, in fact, result in undue exculpation of
offenders to the great prejudice of victims and society.

Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met
as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the
majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the
Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each
time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone
else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion;

I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the
disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned
disquisition. I write only to explain my vote in the context of the larger issue of the death penalty.

Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during
its current session which ends on June 15, 1999 and that, in any event, the President will veto any
such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my
objections to the imposition of the death penalty transcend the TRO and permeate its juridical
essence.
I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts
thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and
"compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly
stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the
Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of
my Dissent promulgated on February 7, 1997.

Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and
enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is
unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA
8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in
which RA 7659 ( the Death Penalty Law) is to implemented.

Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the
Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority
vote, be implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration.

G.R. No. 117472 February 7, 1997

PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.

Supplemental Motion for Reconsideration

SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic
Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original
Motion for Reconsideration filed by his previous counsel,3 this transcendental issue was nor brought
up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of
death.4

The Constitution Abolished Death Penalty

Sec. 19, Article III of the 1987 Constitution provides:

Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced toreclusion perpetua. (Emphasis supplied)

The second and third sentences of the above provision are new and had not been written in the
1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death
penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and
reduced "any death penalty already imposed" toreclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces
imposed capital sentences to the lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction toreclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed,6 "(t)he
majority voted for the constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the non-imposition of the death penalty, what he had in mind was the total
abolition and removal from the statute books of the death penalty. This became the intent of the
frames of the Constitution when they approved the provision and made it a part of the Bill of Rights."
With such abolition as a premise, restoration thereof becomes an exception to a constitutional
mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly
construed against the State and liberally in favor of the people.8 In this light, RA 7659 enjoys no
presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to reimpose it on condition that it (Congress)9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward"10): the authority of
Congress to "provide for it" is not absolute. Rather, it is strictly limited:

1. by "compelling reasons" that may arise after the Constitution became effective; and
2. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of
"compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-
making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress,
by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA

7659 11 to "provide for it" (the death penalty) (1) by amending certain provisions of the Revised Penal
Code; 12 (2) by incorporating a new article therein; 13 and (3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more sever
sanction, either collectively for all the offenses or individually for each of them.

Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.
The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted
it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave
abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III,
Sec. 19? The answer, I respectfully submit, is YES.

Heinous Crimes

To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY
to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress.
As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death
as an applicable penalty. It did not give a standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient definition or

characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be
"heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be determined. Calling the crimes
"grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the
description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood
as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation, much less
prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the
Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating
circumstances. 16

In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery,17 no new crimes were introduced by RA 7659. The offenses punished by death
under said law were already to punishable by the Revised Penal Code 18 and by special laws.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to
a question of Sen. Ernesto Maceda, wryly said: 19

So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.
By merely reimposing capital punishment on the very same crimes which were already penalized
with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our
criminal laws and 2) make its restoration possible only under and subject to stringent conditions is
evident not only from the language of the Constitution but also from the charter debates on this
matter.

The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous,
he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape
victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not
just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I
believe that the available information shows that, when deliberating on "heinousness", the
Constitutional Commission did not have in mind the offenses already existing and already penalized
with death. I also believe that the heinousness clause requires that:

1. the crimes should be entirely new offenses, the elements of which have an inherent
quality, degree or level of perversity, depravity or viciousness unheard of until then;
or
2. even existing crimes, provided some new element or essential ingredient like
"organized" or "brutal" is added to show their utter perversity, odiousness or
malevolence; or

3) the means or method by which the crime, whether new or old, is carried out
evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity,
viciousness as to demonstrate its heinousness. 21

For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs
Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that
paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It should be remembered that every word or
phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed
aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot
be done wholesale but must shown for each and every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, in the words of Comm.
Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that
the conditions and the situation (during the deliberations of the Constitutional Commission) might
change for very specific reasons" requiring the return of the constitutionally-abhorred penalty.

In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo
Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these
compelling reasons: 23
 MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.

MR. LAGMAN. So the compelling reason which the distinguished sponsor would like
to justify or serve as an anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation. The Gentleman claims
that is one the compelling reasons. But before we dissent this particular "compelling
reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.) Justice, Mr. Speaker.

MR. LAGMAN. Justice.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice was
not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstances after 1987.

MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
punished and that the penalty imposed be commensurate with the offense
committed.

MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it refers
to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be meted out for those who have
committed heinous crimes.

xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order"
and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify
the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent.
Statistics from the Philippine National Police show that the crime volume and crime rate particularly
on those legislated capital offenses did not worsen but in fact declined between 1987, the date when
the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following
debate 24 also between Representatives Garcia and Lagman:

MR. LAGMAN. Very good, Mr. Speaker.

Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of
the crime of murder in 1987?

MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN. So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman
inform us the volume of murder in 1988?

MR. GARCIA (P.). It was 10,521, Mr. Speaker.

MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988.

Correspondingly, the crime rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker?

MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by
the PC.

MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the
death penalty? May we know from the distinguished Gentleman the volume of
robbery in 1987?

MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it.

MR. LAGMAN. No, Mr. Speaker, I am asking the question.

MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent.

MR. LAGMAN. This was the year immediately after the abolition of the death penalty.
Could the Gentleman tell us the volume of robbery cases in 1988?

MR. GARCIA (P.). It was 16,926, Mr. Speaker.

MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the
volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to
16,926 or a crime rate of 29 percent. Would the Gentleman confirm
that, Mr. Speaker?

MR. GARCIA (P.). This is what the statistics say, I understand we are reading now
from the same document.

MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate
of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would
the Gentleman confirm that, Mr. Speaker?
 MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document
and I would not want to say that the Gentleman is misreading the document that I
have here.

MR. LAGMAN. But would the Gentleman confirm that?

MR. GARCIA (P.). The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of
persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25

Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 — this was the year when the death penalty was abolished — the persons
arrested in drug-related cases were 3,062, and the figure dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It
still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.

But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any
conclusiveness the relationship between the prescription of the death penalty for certain offenses
and the commission or non-commission thereof. This is a theory that can be debated on and on, 27 in
the same manner that another proposition — that the real deterrent to crime is the certainty of
immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and
inconvenience to the victim, his heirs or his witnesses — can be argued indefinitely. 28 This debate
can last till the academics grow weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling
reasons" limits of its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee in favor of the accused — be zealously
protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor
of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is
not just crimes — but capital crimes!

So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that
"(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary
right of the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by
the 1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence,
the Constitution values the dignity of every human person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the mother and the unborn
from the moment of conception 34 and establishes the people's rights to health, a balanced ecology
and education. 35

This Constitutional explosion of concern for man more than property for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its
perceived enemies.

Indeed, volumes have been written about individual rights to free speech. assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life, the
other rights cease in their enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row
Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:

1. Since the reimposition of the death penalty, 186 persons 37 have been sentenced to
death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995,
the number rose to 90; an average of seven (7) convicts per month; double the
monthly average of capital sentences imposed the prior year. From January to June
1996, the number of death penalty convicts reached 72, an average of 12 convicts
per month, almost double the monthly average of capital sentences imposed in 1995.
2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between
P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent
(4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while approximately two percent (2%) earn
subsistence wages with another five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how much they earn in a month.
3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the
government-mandated minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only
one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on
a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.
4. In terms of occupation, approximately twenty one percent (21%) are agricultural
workers or workers in animal husbandry; of these thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the transport and construction
industry, with thirty one (31) construction workers or workers in allied fields
(carpentry, painting, welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers.
Eighteen percent (18%) are in clerical, sales and service industries, with fourteen
(14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve
(12) service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk) About four percent (4%) are government workers,
 with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives comprise only three percent
(3%), nine percent (9%) are unemployed.
5. None of the DRC's use English as their medium of communication. About forty four
percent (44%), or slightly less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak
and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand Niponggo.
6. Approximately twelve percent (12%) graduated from college, about forty seven
percent (47%) finished varying levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts,
finished varying levels of high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational education; nine (9) convicts did not
study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently
demonstrates that RA 7659 has militated against the poor and the powerless in society — those who
cannot afford the legal services necessary in capital crimes, where extensive preparation,
investigation, research and presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in
the proceedings in the trial court and even before this Court until the Free legal Assistance Group
belatedly brought it up in the Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated,
intimidating and damning. The net effect of having a death penalty that is imposed more often than
not upon the impecunious is to engender in the minds of the latter, a sense — unfounded, to be
sure, but unhealthy nevertheless — of the unequal balance of the scales of justice.

Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-
economic profile of the DRCs, the law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far
as the disadvantaged are concerned, the law would still be complex and written in a strange and
incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and
employment opportunities, are consequently confined to living, working and subsisting in less-than-
ideal environments, amidst less-than-genteel neighbors similarly situated as themselves, and are
therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death penalty neither improves nor worsens
their lot substantially. Or, to be more precise, such law may even be said to help improve their
situation (at least in theory) by posing a much stronger deterrent to the commission of heinous
crimes.

However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think, simply that
everyone ultimately wants to better himself and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and
constitutional firmament.

Epilogue

In sum, I respectfully submit that:

1. The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.
2. The Charter effectively granted a new right: the constitution right against the death penalty,
which is really a species of the right to life.
3. Any law reviving the capital penalty must be strictly construed against the State and liberally
in favor of the accused because such a stature denigrates the Constitution, impinges on a
basic right and tends to deny equal justice to the underprivileged.
4. Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-
treated or brushed aside.
5. Congressional power death is severely limited by two concurrent requirements:

a. First, Congress must provide a set of attendant circumstances which the prosecution
must prove beyond reasonable doubt, apart from the elements of the crime and itself.
Congress must explain why and how these circumstances define or characterize the
crime as "heinous".

Second, Congress has also the duty of laying out clear and specific reasons which arose after the
effectivity of the Constitution compelling the enactment of the law. It bears repeating that these
requirements are inseparable. They must both be present in view of the specific constitutional
mandate — "for compelling reasons involving heinous crimes." The compelling reason must flow
from the heinous nature of the offense.

1. In every law reviving the capital penalty, the heinousness and compelling reasons must be
set out for each and every crime, and not just for all crimes generally and collectively.

"Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the
death penalty, it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to
Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the
extreme of executing the offender except in cases of absolute necessity: in other words, when it
would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-
existent."

Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death
penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and
above even the state which man created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous
crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically non-existent.
In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe
death against well-defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental
Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by
deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion
perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.

Footnotes
1 Stoll v. Gottlieb, 305 US 165, 172; 59 S. Ct. 134, 138; 83 L. ed. 104 [1938].

2 Philippine Courts and their Jurisdiction, p. 13, 1998 ed.

3 Citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 100 Phil. 230; American
Insurance Co. v. US Lines Co., 63 SCRA 325; Republic v. Reyes, 71 SCRA 426;
Luzon Stevedoring Corp. v. Reyes, 71 SCRA 655; Agricultural and Industrial
Marketing Inc. v. CA, 118 SCRA 49; Vasco v. CA, 81 SCRA 712; Mindanao Portland
Cement Corp. v. Laquihan, 120 SCRA 930.

4 Ibid., at pp. 12-14, citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 63
O.G. 358; Cabaya v. Hon. R. Mendoza, 113 SCRA 400; Bueno Industrial and
Development Corp. v. Encaje, 104 SCRA 388.

5 Ibid., pp. 14-15 citing Molina v. dela Riva, 8 Phil. 569; Behn Meyer & Co. v.
McMicking, 11 Phil. 276; Warmer Barnes & Co. v. Jaucian, 13 Phil. 4; Espiritu v.
Crossfield, 14 Phil. 588; Mata v. Lichauco, 36 Phil. 809; De la Costa v. Cleofas, 67
Phil. 686; Omar v. Jose, 77 Phil. 703; City of Butuan v. Ortiz, 113 Phil. 636; De los
Santos v. Rodriguez, 22 SCRA 551; City of Cebu v. Mendoza, 66 SCRA 174.

6 29 Phil. 267 (1915), p. 270.

7 Sec. 1, Article VIII of the 1987 Constitution.

8 Sec. 5(f), Rule 135.

9 Philippine Political Law, p. 225, 1993 ed.

10 94 Phil. 534 (1954), pp. 550-555.

11 R.A. No. 372.

12 94 Phil. 550, p. 551.

13 See In re Integration of the Bar of the Philippines, January 9, 1973, 49 SCRA 22.

14 See pp. 3-4 of Urgent Motion for Reconsideration.

15 See Art. 79 of the Revised Penal Code.

16 Modern Constitutional Law, Vol. 1, p. 409, 1969 ed., citing Caritativo v. California,
357 US 549, 21 L ed. 2d 1531, 78 S. Ct. 1263 [1958].

17 December 30 and 31, 1998 were declared holidays. January 1, 1999 was an
official holiday. January 2 was a Saturday and January 3 was a Sunday.

18 Urgent Motion for Reconsideration of Public respondents, p. 8.

19 Darrow, Crime: Its Cause and Treatment, p. 166 (1922).

20 Eisler, A Justice For All, p. 268.

21 "Where personal liberty is involved, a democratic society employs a different

arithmetic and insists that it is less important to reach an unshakable decision than to
do justice." Pollack, Proposals to Curtail Habeas Corpus for State Prisoners:
Collateral Attack on the Great Writ. 66 Yale LJ 50, 65 (1956).

VITUG, J., separate opinion;

1 Candelana vs. Cañizares, 4 SCRA 738; Philippine Veterans Bank vs. Intermediate
Appellate Court, 178 SCRA 545, Lipana vs. Development Bank of Rizal, 154 SCRA
257; Lee vs. De Guzman, 187 SCRA 276, Bachrach Corporation vs. Court of
Appeals, G.R. No. 128349, 25 September 1998.

2 29 Phil 267.

3 At least for Mr. Echegaray.

4 G.R. No 124329, 14 December 1998.

PANGANIBAN, J., separate opinion;

* I have further explained my unflinching position on this matter in my recent

book Battles in the Supreme Court, particularly on page 58 to 84.

Separate opinion;

1 It is called "Supplemental" because there was a (main) Motion for Reconsideration

filed by the previous counsel of the accused, which this Court already denied.

2 The Anti Death Penalty Task Force of the Free Legal Assistance Group — Pablito
V. Sanidad, Jose Manuel I. Diokno, Arno V. Sanidad, Efren Moncupa, Eduardo R.
Abaya and Ma. Victoria I. Diokno — filed its Notice of Appearance dated August 22,
1996 only on August 23, 1996, after the Per Curiam Decision of this Court was
promulgated on June 25, 1996.

3 Atty. Julian R. Vitug, Jr.

4 The bulk of jurisprudence precludes raising an issue for the first time only on
appeal. See, for instance, Manila Bay Club Corporation vs. Court of Appeals, 249
SCRA 303, October 13, 1995; Manila Bay Club Corporation vs. Court of Appeals,
245 SCRA 715, July 11, 1995; Securities and Exchange Commission vs. Court of
Appeals, 246 SCRA 738, July 21, 1995. However, the Court resolved to tackle the
question of constitutionality of Republic Act No. 7659 in this case, anticipating that
the same question would be raised anyway in many other subsequent instances. The
Court resolved to determine and dispose of the issue once and for all, at the first
opportunity. To let the issue pass unresolved just because it was raised after the
promulgation of the decision affirming conviction may result in grave injustice.

5 In People vs. Muñoz, 170 SCRA 107, February 9, 1989, the Court, prior to the
enactment and effectivity of RA 7659, ruled by a vote of 9-6 (J. Cruz, ponente, C.J.
Fernan, JJ., Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino and
Medialdea, concurring) that the death penalty was not abolished but only prohibited
from imposed. But see also the persuasive Dissenting Opinion of Mme. Justice
Ameurfina Melencio-Herrera (joined by JJ. Narvasa, Paras, Sarmiento, Cortes and
Regalado) who contended that the Constitution totally abolished the death penalty
and removed it form the statute books. People vs. Muñoz reversed the earlier
"abolition" doctrine uniformly held in People vs. Gavarra, 155 SCRA 327, October 30,
1987, (per C.J. Yap); People vs. Masangkay, 155 SCRA 113, October 27, 1987, (per
J. Melencio-Herrera) and People vs. Atencio, 156 SCRA 242, December 10, 1987
(per C.J. Narvasa). It is time that these cases are revisited by this Court.

6 This quote is taken from I Record of the Constitutional Commission, p. 676 (July
17, 1986) as follows:

Fr. Bernas:

xxx xxx xxx

My recollection on this is that there was a division in the Committee not on whether
the death penalty should be abolished or not, but rather on whether the abolition
should be done by the Constitution — in which case it cannot be restored by the
legislature — or left to the legislature. The majority voted for the constitutional
abolition of the death penalty. And the reason is that capital punishment is inhuman
for the convict and his family who are traumatized by the waiting, even if it is never
carried out. There is no evidence that death penalty deterred deadly criminals,
hence, life should not be destroyed just in the hope that other lives might be saved.
Assuming mastery over the life of another man is just too presumptuous for any man.
The fact that the death penalty as an institution has been there from time immemorial
should not deter us from reviewing it. Human life is more valuable than an institution
intended precisely to serve human life. So basically, this is the summary of the
reason which were presented in support of the constitutional abolition of the death
penalty (emphasis supplied)

7 Dissenting Opinion in People vs. Muñoz, supra, p. 129.

8 Thus in People vs. Burgos, 144 SCRA 1, September 4, 1986, we held that a
statute which allows an exception to a constitutional right (against warrantless
arrests) should be strictly construed.

9 In his scholarly Memorandum, Fr. Joaquin G. Bernas, S.J. as amicus curiae in

People vs. Pedro V. Malabago (G.R. No. 115686, December 2, 1996), vigorously
argues that RA 7659 has validly restored the death penalty which may now be
imposed provided that the prosecution proves, and the court is convinced, that (a)
the accused is guilty of a crime designated by RA 7659 as capital, (b) whose
commission is accompanied by aggravating circumstances as defined by Arts. 14
and 15 of the Revised Penal Code, (c) the accompanying aggravating circumstance
must be one which can be characterized by the court as making the crime "heinous",
and (d) that the execution of the offender is demanded by "compelling reasons"
related to the offense. In other words, according to him, it is the courts — not
Congress — that have responsibility of determining the heinousness of a crime and
the compelling reason for its imposition upon a particular offender, depending on the
facts of each case. I cannot however subscribe to this view. The Constitution clearly
identifies Congress as the sovereign entity which is given the onus of fulfilling these
two constitutional limitations.

10 People vs. Muñoz, supra, p. 121.

11 Which became effective on December 31, 1993, per People vs. Burgos, 234
SCRA 555, 569, July 29, 1994; People vs. Godoy, 250 SCRA 676, December 6,
1995; People vs. Albert, 251 SCRA 136, December 11, 1995.

12 Art. 114 — Treason; Art. 123 — Qualified Piracy; Art. 246 — Parricide;
Art. 248 — Murder; Art. 255 — Infanticide; Art. 267 — Kidnapping and Serious Illegal
Detention; Art. 294 — Robbery with violence against or intimidation of persons; Art.
320 — Destructive Arson; Art. 335 — Rape.

13 Art. 221-A on Qualified Bribery.

14 Sec. 2, RA 7080 — Plunder; Secs. 3, 4, 5, 7, 8 and 9 of Article II of

RA 6425 — Prohibited Drugs; Secs. 14, 14-A and 15 of Article III of said RA 6425 —
Carnapping.

15 A preamble is not an essential part of a statute. (Agpalo, Statutory Construction,

Second Edition 1990; Martin, Statutory Construction, Sixth Edition, 1984). The
function of the preamble is to supply reasons and explanation and not to confer
power or determine rights. Hence it cannot be given the effect of enlarging the scope
or effect of a statute. (C. Dallas Sands, Statutes and Statutory Construction, Fourth
Edition, Volume LA, § 20.03).

16 Under Sec. 11, RA 7659, it appears that death is the mandatory penalty for rape,
regardless of the presence or absence of aggravating or mitigating circumstances,
"(w)hen by reason or on the occasion of the rape, a homicide is committed," or when
it is "committed with any of the attendant circumstances enumerated" in said section.

17 While in plunder and qualified bribery are "new" capital offenses, RA 7659
nonetheless fails to justify why they are considered heinous. In addition, the specific
compelling reasons for the prescribed penalty of death are note laid out by the
statute.

18 In the case of rape, RA 7659 provided certain attendant circumstances which the
prosecution must prove before courts can impose the extreme penalty. Just the
same however, the law did not explain why said circumstances would make the
crimes heinous. Neither did it set forth the complelling reasons therefor.

19 Record of the Senate, First Regular Session, January 18 to March 11, 1993,
Volume III, No. 48, January 25, 1993, p. 122.

20 I Record of the Constitutional Commission, July 18, 1986, pp. 742-743:

MR. SUAREZ The Gentleman advisedly used the words 'heinous crimes', whatever
is the pronunciation. Will the Gentleman give examples of 'heinous crimes'? For
example, would the head of an organized syndicate in dope distribution or dope
smuggling fall within the qualification of a heinous offender such as to preclude the
application of the principle of abolition of death penalty?

MR. MONSOD Yes, Madam President. That is one of the possible crimes that would
qualify for a heinous crime. Another would be organized murder. In other words,
yesterday there were many arguments for and against, and they all had merit. But in
the contemporary society, we recognize the sacredness of human life and — I think it
was Honorable Laurel who said this yesterday — it is only God who gives and takes
life. However, the voice of the people is also the voice of God, and we cannot
presume to have the wisdom of the ages. Therefore, it is entirely possible in the
future that circumstances may arise which we should not preclude today. We know
that this is very difficult question. The fact that the arguments yesterday were quite
impassioned and meritorious merely tell us that this is far from a well-settled issue. At
least in my personal opinion, we would like the death penalty to be abolished.
However, in the future we should allow the National Assembly in its wisdom and as
representatives of the people, to still impose the death penalty for the common good,
in specific cases.

MR. SUAREZ. Thank you.

I would like to pursue some more the Gentleman's definition of 'heinous crimes'.
Would the brutal murder of a rape victim be considered as falling within that
classification?

MR. MONSOD. Madam President, yes, particularly, if it is a person in authority. He

would, therefore, add as an aggravating circumstance to the crime the abuse of this
position authority.

MR. SUAREZ. Thank you.

21 Some examples of this may be taken by Congress from Richmond vs. Lewis, 506
US 40, like "gratuitous violence" or "needless mutilation" of the victim.

22 Paragraph 3 & 4 of the preamble reads:

 WHEREAS, due to the alarming upsurge of such crimes which has resulted
not only in the loss of human lives and wanton destruction of property but has
also affected the nation's efforts towards sustainable economic development
and prosperity while at the same time has undermined the people's faith in
the Government and the latter's ability to maintain peace and order in the
country.

WHEREAS, the Congress, in the interest of justice, public order and the rule of law,
and the need to rationalize and harmonize the penal sanctions for heinous crimes,
finds compelling reasons to impose the death penalty for said crimes;

23 Record of the House of Representatives, First Regular Session, 1992-1993,

Volume IV, February 10, 1993, p. 674, emphasis supplied.

24 Record of the House of Representatives, First Regular Session, 1992-1993, Vol.

III, November 10, 1992, p. 448; emphasis supplied.

25 Record of the Senate, First Regular Session, January 18 to March 11, 1993,
Volume III, No. 50, January 27, 1993, pp. 176-177.

26 See "Sponsorship Remarks" of Rep. Manuel Sanchez, Record of the House of

Representatives, November 9, 1992, pp. 40-42.

27 Witness, for instance, this interesting exchange between Commissioners Joaquin

Bernas and Napoleon Rama (I Record of the Constitutional Commission, p. 678):

FR. BERNAS. When some experts appeared before us and we asked them if there
was evidence to show that the death penalty had deterred the commission of deadly
crimes, none of them was able to say that there was evidence, conclusive evidence,
for that.

MR. RAMA. I am curious. Who are experts then — social scientist or penologists or
what?

FR. BERNAS. Penologists.

MR. RAMA. Of course we are aware that there is also another school of thought
here, another set of experts, who would swear that the death penalty discourages
crimes or criminality. Of course. Commissioner Bernas knows that never in our
history has there been a higher incidence of crime. I say that criminality was at its
zenith during the last decade.

FR. BERNAS. Correct, in spite of the existence of the death penalty.

MR. RAMA. Yes, but not necessarily in spite of the existence of the death penalty. At
any rate, does the sponsor think that in removing the death penalty, it would not
affect, one way or another, the crime rate of the country?

FR. BERNAS. The position taken by the majority of those who voted in favor of this
provision is that means other than the death penalty should be used for the
prevention of crime.
28 Cf. Report to the United Nations Committee on Crime Prosecution and Control,
United Nations Social Affairs Division, Crime Prevention and Criminal Justice
Branch, Vienna, 1988, p. 110.

29 Former Chief Justice Enriquez M. Freehand, in his book, The Bill of Rights,
(Second Edition, 1972, p. 4.) states: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a bill of rights. Precisely a
constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. . . ." In the
context of the role of a bill of right the vast powers of government are clearly to be
exercise within the limits set by the constitution, particularly the bill of rights. In
Ermita-Malate Hotel and Motel Operators vs. City Mayor of Manila, (L-24693, July
31, 1967), it was held that the exercise of police power, insofar as it may affect the
life, liberty or property of any person is subject to judicial inquiry. The guarantee in
Sec. 1 of Article III of the Constitution embraces life, liberty and property. In the
words of Justice Roberto Concepcion in People vs. Hernandez, (99 Phil 515, 551-2
[1956]), ". . . individual freedom is too basic, too transcendental and vital in a
republican state, like ours, to be denied upon mere general principle and abstract
consideration of public safety. Indeed, the preservation of liberty is such a major
preoccupation of our political system that, not satisfied with guaranteeing its
enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of
our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14),
(15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects
of freedom. . . ." These guarantees are preserved in the 1987 Constitution, according
to Fr. Bernas.

30 See, for instance People vs. Sinatao, 249 SCRA 554, 571, October 25, 1995, and
People vs. Pidia, 249 SCRA 687, 702-703, November 10, 1995.

31 Art. III, Sec. 1.

32 Art. III, Sec. 11.

33 Art. II, Sec. 12 (2).

34 Art. II, Sec. 12.

35 Art. II, Secs. 15, 16 & 17.

36 For details, see Annex A of the Memorandum for the Accused-Appellant dated
September 26, 1996 filed by the Free Legal Assistance Group in People vs.
Malabago, G.R. No. 115686, December 2, 1996.

37 The FLAG-submitted Profile states that have been sentenced to death by trial
courts since the effectivity of RA 7659. The Philippine Star issue of December 9,
1996, page 17, however reports that, quoting Sen. Ernesto Herrera, the total number
of death row inmates has gone up to 267, as of November, 1996, of whom, more
than one half (139) are rape convicts. Some major dailies (Philippine Daily Inquirer,
Philippine Star, Manila Standard) in their February 3, 1997 issue up the death row
figure to 300, as of the end of January 1997, with 450 as the probable number at the
end of 1997.
38 The preamble of the Constitution is theistic. It declares the "sovereign Filipino
people's imploration of the "aid of Almighty God".

39 Cetechism of the Catholic Churh, p. 512, Word and Life Publications:

2266. Preserving the common good of society requires rendering the

aggressor unable to inflict harm. For this reason the traditional teaching of
the Church has acknowledged as well-founded the right and duty of
legitimate public authority to punish malefactors by means of penalties
commensurate with the gravity of the crime, not excluding, in cases of
extreme gravity, the death penalty. For analogous reasons those holding
authority have the right to repel by armed force aggressors against the
community in their charge.

40 Evangelium Vitae, items no. 55 and 56 states:

55. This should not cause surprise: to kill a human being, in whom the image
of God is present, is a particularly serious sin. Only God is the master of life!
Yet from the beginning, faced with the many and often tragic cases which
occur in the life of individuals and society, Christian reflection has sought a
fuller and deeper understanding of what God's commandment prohibits and
prescribes. There are, in fact situations in which values proposed by God's
Law seem to involve a genuine paradox. This happens for example in the
case of legitimate defence, in which the right to protect one's own life and the
duty not to harm someone else's life are difficult to reconcile in practice.
Certainly, the intrinsic value of life and the duty to love oneself no less than
others are the basis of a true right to self-defence. The demanding
commandment of love of neighbor, set forth in the Old Testament and
confirmed by Jesus, itself presupposes love of oneself as the basis of
comparison: "You shall love your neighbor as yourself" (Mk. 12:31).
Consequently, no one can renounce the right to self-defence out of lack of
love for life or for self. This can only be done in virtue of a heroic love which
deepens and transfigures the love of self into a radical self-offering,
according to the spirit of the Gospel Beatitudes (cf. Mt. 5:38-40). The sublime
example of this self-offering is the Lord Jesus himself.

Moreover, "legitimate defence can be not only a right but a grave duty for
someone responsible for another's life, the common good of the family or of
the State." Unfortunately it happens that the need to render the aggresor
incapable of causing harm sometimes involves taking his life. In this case,
the fatal outcome is attributable to the aggressor incapable whose action
brought it about, even though he may not be morally responsible because of
a lack of the use of reason.

56. This is context in which to place the problem of the death penalty. On this
matter there is a growing tendency, both in the Church and in civil society, to
demand that it be applied in a very limited way or even that it be abolished
completely. The problem must be viewed in the context of a system of penal
justice even more in line with dignity and thus, in the end, with God's plan for
man and society. The primary purpose of the punishment which society
inflicts is "to redress the disorder caused by the offence." Public authority
must redress the violation of personal and social rights by imposing on the
offender to regain the exercise of his or her freedom. In this way authority
also fulfills the purpose of defending public order and ensuring people's
safety, while at the same time offering the offender an incentive and help to
change his or her behavior and be rehabilitated.

It is clear that, for these purposes to be achieved, the nature and extent of
the punishment must be carefully evaluated and decided upon, and ought not
go to the extreme of executing the offender except in cases of absolute
necessity: in other words, when it would not be possible other wise to defend
society. Today however, as a result of steady improvements in the
organization of the penal system, such cases are very rare, if not partically
non-existent.1âw phi1.nêt

In any event, the principle, set forth in the new Catechism of the Catholic
Church remains valid: "If bloodless means are sufficient to defend human
lives against an aggressor and to protect public order and the safety of
persons, public authority must limit itself to such means, because they better
correspond to the concrete conditions of the common good and are more in
conformity to the dignity of the human person."
Oil and Natural Gas Commission v Court of Appeals

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 114323 July 23, 1998

OIL AND NATURAL GAS COMMISSION, petitioner,

vs.

COURT OF APPEALS and PACIFIC CEMENT COMPANY, INC., respondents.

MARTINEZ, J.:

This proceeding involves the enforcement of a foreign judgment rendered by the Civil Judge of
Dehra Dun, India in favor of the petitioner, OIL AND NATURAL GAS COMMISSION and against the
private respondent, PACIFIC CEMENT COMPANY, INCORPORATED.

The petitioner is a foreign corporation owned and controlled by the Government of India while the
private respondent is a private corporation duly organized and existing under the laws of the
Philippines. The present conflict between the petitioner and the private respondent has its roots in a
contract entered into by and between both parties on February 26, 1983 whereby the private
respondent undertook to supply the petitioner FOUR THOUSAND THREE HUNDRED (4,300) metric
tons of oil well cement. In consideration therefor, the petitioner bound itself to pay the private
respondent the amount of FOUR HUNDRED SEVENTY-SEVEN THOUSAND THREE HUNDRED
U.S. DOLLARS ($477,300.00) by opening an irrevocable, divisible, and confirmed letter of credit in
favor of the latter. The oil well cement was loaded on board the ship MV SURUTANA NAVA at the
port of Surigao City, Philippines for delivery at Bombay and Calcutta, India. However, due to a
dispute between the shipowner and the private respondent, the cargo was held up in Bangkok and
did not reach its point destination. Notwithstanding the fact that the private respondent had already
received payment and despite several demands made by the petitioner, the private respondent
failed to deliver the oil well cement. Thereafter, negotiations ensued between the parties and they
agreed that the private respondent will replace the entire 4,300 metric tons of oil well cement with
Class "G" cement cost free at the petitioner's designated port. However, upon inspection, the Class
"G" cement did not conform to the petitioner's specifications. The petitioner then informed the private
respondent that it was referring its claim to an arbitrator pursuant to Clause 16 of their contract which
stipulates:

Except where otherwise provided in the supply order/contract all questions and
disputes, relating to the meaning of the specification designs, drawings and
instructions herein before mentioned and as to quality of workmanship of the items
 ordered or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification,
instruction or these conditions or otherwise concerning the materials or the execution
or failure to execute the same during stipulated/extended period or after the
completion/abandonment thereof shall be referred to the sole arbitration of the
persons appointed by Member of the Commission at the time of dispute. It will be no
objection to any such appointment that the arbitrator so appointed is a Commission
employer (sic) that he had to deal with the matter to which the supply or contract
relates and that in the course of his duties as Commission's employee he had
expressed views on all or any of the matter in dispute or difference.

The arbitrator to whom the matter is originally referred being transferred or vacating
his office or being unable to act for any reason the Member of the Commission shall
appoint another person to act as arbitrator in accordance with the terms of the
contract/supply order. Such person shall be entitled to proceed with reference from
the stage at which it was left by his predecessor. Subject as aforesaid the provisions
of the Arbitration Act, 1940, or any Statutory modification or re-enactment there of
and the rules made there under and for the time being in force shall apply to the
arbitration proceedings under this clause.

The arbitrator may with the consent of parties enlarge the time, from time to time, to
make and publish the award.

The venue for arbitration shall be at Dehra dun. 1*

On July 23, 1988, the chosen arbitrator, one Shri N.N. Malhotra, resolved the dispute in petitioner's
favor setting forth the arbitral award as follows:

NOW THEREFORE after considering all facts of the case, the evidence, oral and
documentarys adduced by the claimant and carefully examining the various written
statements, submissions, letters, telexes, etc. sent by the respondent, and the oral
arguments addressed by the counsel for the claimants, I, N.N. Malhotra, Sole
Arbitrator, appointed under clause 16 of the supply order dated 26.2.1983, according
to which the parties, i.e. M/S Oil and Natural Gas Commission and the Pacific
Cement Co., Inc. can refer the dispute to the sole arbitration under the provision of
the Arbitration Act. 1940, do hereby award and direct as follows: —

The Respondent will pay the following to the claimant: —

1. Amount received by the Respondent

against the letter of credit No. 11/19

dated 28.2.1983 US $ 477,300.00

2. Re-imbursement of expenditure incurred

by the claimant on the inspection team's

visit to Philippines in August 1985 US $ 3,881.00

 3. L.C. Establishment charges incurred

by the claimant US $ 1,252.82

4. Loss of interest suffered by claimant

from 21.6.83 to 23.7.88 US $ 417,169.95

Total amount of award US $ 899,603.77

In addition to the above, the respondent would also be liable to pay to the claimant
the interest at the rate of 6% on the above amount, with effect from 24.7.1988 up to
the actual date of payment by the Respondent in full settlement of the claim as
awarded or the date of the decree, whichever is earlier.

I determine the cost at Rs. 70,000/- equivalent to US $5,000 towards the expenses
on Arbitration, legal expenses, stamps duly incurred by the claimant. The cost will be
shared by the parties in equal proportion.

Pronounced at Dehra Dun to-day, the 23rd of July 1988. 2

To enable the petitioner to execute the above award in its favor, it filed a Petition before the
Court of the Civil Judge in Dehra Dun. India (hereinafter referred to as the foreign court for
brevity), praying that the decision of the arbitrator be made "the Rule of Court" in India. The
foreign court issued notices to the private respondent for filing objections to the petition. The
private respondent complied and sent its objections dated January 16, 1989. Subsequently,
the said court directed the private respondent to pay the filing fees in order that the latter's
objections could be given consideration. Instead of paying the required filing fees, the private
respondent sent the following communication addressed to the Civil judge of Dehra Dun:

The Civil Judge

Dehra Dun (U.P.) India

Re: Misc. Case No. 5 of 1989

M/S Pacific Cement Co.,

Inc. vs. ONGC Case

Sir:

1. We received your letter dated 28 April 1989 only

last 18 May 1989.

2. Please inform us how much is the court fee to be

paid. Your letter did not mention the amount to be
paid.
 3. Kindly give us 15 days from receipt of your letter
advising us how much to pay to comply with the
same.

Thank you for your kind consideration.

Pacific Cement Co., Inc.

By:

Jose Cortes, Jr.

President 3

Without responding to the above communication, the foreign court refused to admit the private
respondent's objections for failure to pay the required filing fees, and thereafter issued an Order on
February 7, 1990, to wit:

ORDER

Since objections filed by defendant have been rejected through Misc. Suit No. 5 on
7.2.90, therefore, award should be made Rule of the Court.

ORDER

Award dated 23.7.88, Paper No. 3/B-1 is made Rule of the Court. On the basis of
conditions of award decree is passed. Award Paper No. 3/B-1 shall be a part of the
decree. The plaintiff shall also be entitled to get from defendant (US$ 899,603.77
(US$ Eight Lakhs ninety nine thousand six hundred and three point seventy seven
only) along with 9% interest per annum till the last date of realisation. 4

Despite notice sent to the private respondent of the foregoing order and several demands by the
petitioner for compliance therewith, the private respondent refused to pay the amount adjudged by
the foreign court as owing to the petitioner. Accordingly, the petitioner filed a complaint with Branch
30 of the Regional Trial Court (RTC) of Surigao City for the enforcement of the aforementioned
judgment of the foreign court. The private respondent moved to dismiss the complaint on the
following grounds: (1) plaintiffs lack of legal capacity to sue; (2) lack of cause of action; and (3)
plaintiffs claim or demand has been waived, abandoned, or otherwise extinguished. The petitioner
filed its opposition to the said motion to dismiss, and the private respondent, its rejoinder thereto. On
January 3, 1992, the RTC issued an order upholding the petitioner's legal capacity to sue, albeit
dismissing the complaint for lack of a valid cause of action. The RTC held that the rule prohibiting
foreign corporations transacting business in the Philippines without a license from maintaining a suit
in Philippine courts admits of an exception, that is, when the foreign corporation is suing on an
isolated transaction as in this case. 5 Anent the issue of the sufficiency of the petitioner's cause of
action, however, the RTC found the referral of the dispute between the parties to the arbitrator under
Clause 16 of their contract erroneous. According to the RTC,

[a] perusal of the shove-quoted clause (Clause 16) readily shows that the matter
covered by its terms is limited to "ALL QUESTIONS AND DISPUTES, RELATING TO
THE MEANING OF THE SPECIFICATION, DESIGNS, DRAWINGS AND
INSTRUCTIONS HEREIN BEFORE MENTIONED and as to the QUALITY OF
 WORKMANSHIP OF THE ITEMS ORDERED or as to any other questions, claim,
right or thing whatsoever, but qualified to "IN ANY WAY ARISING OR RELATING TO
THE SUPPLY ORDER/CONTRACT, DESIGN, DRAWING, SPECIFICATION, etc.,"
repeating the enumeration in the opening sentence of the clause.

The court is inclined to go along with the observation of the defendant that the
breach, consisting of the non-delivery of the purchased materials, should have been
properly litigated before a court of law, pursuant to Clause No. 15 of the
Contract/Supply Order, herein quoted, to wit:

"JURISDICTION

All questions, disputes and differences, arising under out of or in

connection with this supply order, shall be subject to the EXCLUSIVE
JURISDICTION OF THE COURT, within the local limits of whose
jurisdiction and the place from which this supply order is situated."6

The RTC characterized the erroneous submission of the dispute to the arbitrator as a
"mistake of law or fact amounting to want of jurisdiction". Consequently, the proceedings had
before the arbitrator were null and void and the foreign court had therefore, adopted no legal
award which could be the source of an enforceable right. 7

The petitioner then appealed to the respondent Court of Appeals which affirmed the dismissal of the
complaint. In its decision, the appellate court concurred with the RTC's ruling that the arbitrator did
not have jurisdiction over the dispute between the parties, thus, the foreign court could not validly
adopt the arbitrator's award. In addition, the appellate court observed that the full text of the
judgment of the foreign court contains the dispositive portion only and indicates no findings of fact
and law as basis for the award. Hence, the said judgment cannot be enforced by any Philippine
court as it would violate the constitutional provision that no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it is based. 8 The
appellate court ruled further that the dismissal of the private respondent's objections for non-
payment of the required legal fees, without the foreign court first replying to the private respondent's
query as to the amount of legal fees to be paid, constituted want of notice or violation of due
process. Lastly, it pointed out that the arbitration proceeding was defective because the arbitrator
was appointed solely by the petitioner, and the fact that the arbitrator was a former employee of the
latter gives rise to a presumed bias on his part in favor of the petitioner. 9

A subsequent motion for reconsideration by the petitioner of the appellate court's decision was
denied, thus, this petition for review on certiorari citing the following as grounds in support thereof:

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

LOWER COURT'S ORDER OF DISMISSAL SINCE:

A. THE NON-DELIVERY OF THE CARGO WAS A MATTER PROPERLY

COGNIZABLE BY THE PROVISIONS OF CLAUSE 16 OF THE CONTRACT;

B. THE JUDGMENT OF THE CIVIL COURT OF DEHRADUN, INDIA WAS AN

AFFIRMATION OF THE FACTUAL AND LEGAL FINDINGS OF THE ARBITRATOR
AND THEREFORE ENFORCEABLE IN THIS JURISDICTION;

C. EVIDENCE MUST BE RECEIVED TO REPEL THE EFFECT OF A

PRESUMPTIVE RIGHT UNDER A FOREIGN JUDGMENT. 10
The threshold issue is whether or not the arbitrator had jurisdiction over the dispute between the
petitioner and the private respondent under Clause 16 of the contract. To reiterate, Clause 16
provides as follows:

Except where otherwise provided in the supply order/contract all questions and
disputes, relating to the meaning of the specification designs, drawings and
instructions herein before mentioned and as to quality of workmanship of the items
ordered or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification,
instruction or these conditions or otherwise concerning the materials or the execution
or failure to execute the same during stipulated/extended period or after the
completion/abandonment thereof shall be referred to the sole arbitration of the
persons appointed by Member of the Commission at the time of dispute. It will be no
objection to any such appointment that the arbitrator so appointed is a Commission
employer (sic) that he had to deal with the matter to which the supply or contract
relates and that in the course of his duties as Commission's employee he had
expressed views on all or any of the matter in dispute or difference. 11

The dispute between the parties had its origin in the non-delivery of the 4,300 metric tons of oil well
cement to the petitioner. The primary question that may be posed, therefore, is whether or not the
non-delivery of the said cargo is a proper subject for arbitration under the above-quoted Clause 16.
The petitioner contends that the same was a matter within the purview of Clause 16, particularly the
phrase, ". . . or as to any other questions, claim, right or thing whatsoever, in any way arising or
relating to the supply order/contract, design, drawing, specification, instruction . . .". 12 It is argued
that the foregoing phrase allows considerable latitude so as to include non-delivery of the cargo
which was a "claim, right or thing relating to the supply order/contract". The contention is bereft of
merit. First of all, the petitioner has misquoted the said phrase, shrewdly inserting a comma between
the words "supply order/contract" and "design" where none actually exists. An accurate reproduction
of the phrase reads, ". . . or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification, instruction or
these conditions . . .". The absence of a comma between the words "supply order/contract" and
"design" indicates that the former cannot be taken separately but should be viewed in conjunction
with the words "design, drawing, specification, instruction or these conditions". It is thus clear that to
fall within the purview of this phrase, the "claim, right or thing whatsoever" must arise out of or relate
to the design, drawing, specification, or instruction of the supply order/contract. The petitioner also
insists that the non-delivery of the cargo is not only covered by the foregoing phrase but also by the
phrase, ". . . or otherwise concerning the materials or the execution or failure to execute the
same during the stipulated/extended period or after completion/abandonment thereof . . .".

The doctrine of noscitur a sociis, although a rule in the construction of statutes, is equally applicable
in the ascertainment of the meaning and scope of vague contractual stipulations, such as the
aforementioned phrase. According to the maxim noscitur a sociis, where a particular word or phrase
is ambiguous in itself or is equally susceptible of various meanings, its correct construction may be
made clear and specific by considering the company of the words in which it is found or with which it
is associated, or stated differently, its obscurity or doubt may be reviewed by reference to associated
words. 13 A close examination of Clause 16 reveals that it covers three matters which may be
submitted to arbitration namely,

(1) all questions and disputes, relating to the meaning of the specification designs, drawings and
instructions herein before mentioned and as to quality of workmanship of the items ordered; or
(2) any other question, claim, right or thing whatsoever, in any way arising out of or relating to the
supply order/contract design, drawing, specification, instruction or these conditions; or

(3) otherwise concerning the materials or the execution or failure to execute the same during
stipulated/extended period or after the completion/abandonment thereof.

The first and second categories unmistakably refer to questions and disputes relating to the design,
drawing, instructions, specifications or quality of the materials of the supply/order contract. In the
third category, the clause, "execution or failure to execute the same", may be read as "execution or
failure to execute the supply order/contract". But in accordance with the doctrine of noscitur a sociis,
this reference to the supply order/contract must be construed in the light of the preceding words with
which it is associated, meaning to say, as being limited only to the design, drawing, instructions,
specifications or quality of the materials of the supply order/contract. The non-delivery of the oil well
cement is definitely not in the nature of a dispute arising from the failure to execute the supply
order/contract design, drawing, instructions, specifications or quality of the materials. That Clause 16
should pertain only to matters involving the technical aspects of the contract is but a logical inference
considering that the underlying purpose of a referral to arbitration is for such technical matters to be
deliberated upon by a person possessed with the required skill and expertise which may be
otherwise absent in the regular courts.

This Court agrees with the appellate court in its ruling that the non-delivery of the oil well cement is a
matter properly cognizable by the regular courts as stipulated by the parties in Clause 15 of their
contract:

All questions, disputes and differences, arising under out of or in connection with this
supply order, shall be subject to the exclusive jurisdiction of the court, within the local
limits of whose jurisdiction and the place from which this supply order is situated. 14

The following fundamental principles in the interpretation of contracts and other instruments
served as our guide in arriving at the foregoing conclusion:

Art. 1373. If some stipulation of any contract should admit of several meanings, it
shall be understood as bearing that import which is most adequate to render it
effectual. 15

Art. 1374. The various stipulations of a contract shall be interpreted together,

attributing the doubtful ones that sense which may result from all of them taken
jointly. 16

Sec. 11. Instrument construed so as to give effect to all provisions. In the

construction of an instrument, where there are several provisions or particulars, such
a construction is, if possible, to be adopted as will give effect to all. 17

Thus, this Court has held that as in statutes, the provisions of a contract should not be read in
isolation from the rest of the instrument but, on the contrary, interpreted in the light of the other
related provisions. 18The whole and every part of a contract must be considered in fixing the meaning
of any of its harmonious whole. Equally applicable is the canon of construction that in interpreting a
statute (or a contract as in this case), care should be taken that every part thereof be given effect, on
the theory that it was enacted as an integrated measure and not as a hodge-podge of conflicting
provisions. The rule is that a construction that would render a provision inoperative should be
avoided; instead, apparently inconsistent provisions should be reconciled whenever possible as
parts of a coordinated and harmonious whole. 19
The petitioner's interpretation that Clause 16 is of such latitude as to contemplate even the non-
delivery of the oil well cement would in effect render Clause 15 a mere superfluity. A perusal of
Clause 16 shows that the parties did not intend arbitration to be the sole means of settling disputes.
This is manifest from Clause 16 itself which is prefixed with the proviso, "Except where otherwise
provided in the supply order/contract . . .", thus indicating that the jurisdiction of the arbitrator is not
all encompassing, and admits of exceptions as may be provided elsewhere in the supply
order/contract. We believe that the correct interpretation to give effect to both stipulations in the
contract is for Clause 16 to be confined to all claims or disputes arising from or relating to the design,
drawing, instructions, specifications or quality of the materials of the supply order/contract, and for
Clause 15 to cover all other claims or disputes.

The petitioner then asseverates that granting, for the sake of argument, that the non-delivery of the
oil well cement is not a proper subject for arbitration, the failure of the replacement cement to
conform to the specifications of the contract is a matter clearly falling within the ambit of Clause 16.
In this contention, we find merit. When the 4,300 metric tons of oil well cement were not delivered to
the petitioner, an agreement was forged between the latter and the private respondent that Class "G"
cement would be delivered to the petitioner as replacement. Upon inspection, however, the
replacement cement was rejected as it did not conform to the specifications of the contract. Only
after this latter circumstance was the matter brought before the arbitrator. Undoubtedly, what was
referred to arbitration was no longer the mere non-delivery of the cargo at the first instance but also
the failure of the replacement cargo to conform to the specifications of the contract, a matter clearly
within the coverage of Clause 16.

The private respondent posits that it was under no legal obligation to make replacement and that it
undertook the latter only "in the spirit of liberality and to foster good business relationship". 20 Hence,
the undertaking to deliver the replacement cement and its subsequent failure to conform to
specifications are not anymore subject of the supply order/contract or any of the provisions thereof.
We disagree.

As per Clause 7 of the supply order/contract, the private respondent undertook to deliver the 4,300
metric tons of oil well cement at "BOMBAY (INDIA) 2181 MT and CALCUTTA 2119 MT". 21 The
failure of the private respondent to deliver the cargo to the designated places remains undisputed.
Likewise, the fact that the petitioner had already paid for the cost of the cement is not contested by
the private respondent. The private respondent claims, however, that it never benefited from the
transaction as it was not able to recover the cargo that was unloaded at the port of Bangkok. 22 First
of all, whether or not the private respondent was able to recover the cargo is immaterial to its
subsisting duty to make good its promise to deliver the cargo at the stipulated place of delivery.
Secondly, we find it difficult to believe this representation. In its Memorandum filed before this Court,
the private respondent asserted that the Civil Court of Bangkok had already ruled that the non-
delivery of the cargo was due solely to the fault of the carrier. 23 It is, therefore, but logical to assume
that the necessary consequence of this finding is the eventual recovery by the private respondent of
the cargo or the value thereof. What inspires credulity is not that the replacement was done in the
spirit of liberality but that it was undertaken precisely because of the private respondent's recognition
of its duty to do so under the supply order/contract, Clause 16 of which remains in force and effect
until the full execution thereof.

We now go to the issue of whether or not the judgment of the foreign court is enforceable in this
jurisdiction in view of the private respondent's allegation that it is bereft of any statement of facts and
law upon which the award in favor of the petitioner was based. The pertinent portion of the judgment
of the foreign court reads:

ORDER
 Award dated 23.7.88, Paper No. 3/B-1 is made Rule of the Court. On the basis of
conditions of award decree is passed. Award Paper No. 3/B-1 shall be a part of the
decree. The plaintiff shall also be entitled to get from defendant (US$ 899,603.77
(US$ Eight Lakhs ninety nine thousand six hundred and three point seventy seven
only) along with 9% interest per annum till the last date of realisation. 24

As specified in the order of the Civil Judge of Dehra Dun, "Award Paper No. 3/B-1 shall be a part of
the decree". This is a categorical declaration that the foreign court adopted the findings of facts and
law of the arbitrator as contained in the latter's Award Paper. Award Paper No. 3/B-1, contains an
exhaustive discussion of the respective claims and defenses of the parties, and the arbitrator's
evaluation of the same. Inasmuch as the foregoing is deemed to have been incorporated into the
foreign court's judgment the appellate court was in error when it described the latter to be a
"simplistic decision containing literally, only the dispositive portion". 25

The constitutional mandate that no decision shall be rendered by any court without expressing
therein dearly and distinctly the facts and the law on which it is based does not preclude the validity
of "memorandum decisions" which adopt by reference the findings of fact and conclusions of law
contained in the decisions of inferior tribunals. In Francisco v. Permskul, 26 this Court held that the
following memorandum decision of the Regional Trial Court of Makati did not transgress the
requirements of Section 14, Article VIII of the Constitution:

MEMORANDUM DECISION

After a careful perusal, evaluation and study of the records of this case, this Court
hereby adopts by reference the findings of fact and conclusions of law contained in
the decision of the Metropolitan Trial Court of Makati, Metro Manila, Branch 63 and
finds that there is no cogent reason to disturb the same.

WHEREFORE, judgment appealed from is hereby affirmed in toto. 27 (Emphasis

supplied.)

This Court had occasion to make a similar pronouncement in the earlier case of Romero v.
Court of Appeals, 28 where the assailed decision of the Court of Appeals adopted the findings
and disposition of the Court of Agrarian Relations in this wise:

We have, therefore, carefully reviewed the evidence and made a re-assessment of

the same, and We are persuaded, nay compelled, to affirm the correctness of the
trial court's factual findings and the soundness of its conclusion. For judicial
convenience and expediency, therefore, We hereby adopt by way of reference, the
findings of facts and conclusions of the court a quo spread in its decision, as integral
part of this Our decision. 29 (Emphasis supplied)

Hence, even in this jurisdiction, incorporation by reference is allowed if only to avoid the
cumbersome reproduction of the decision of the lower courts, or portions thereof, in the
decision of the higher court. 30 This is particularly true when the decision sought to be
incorporated is a lengthy and thorough discussion of the facts and conclusions arrived at, as
in this case, where Award Paper No. 3/B-1 consists of eighteen (18) single spaced pages.

Furthermore, the recognition to be accorded a foreign judgment is not necessarily affected by the
fact that the procedure in the courts of the country in which such judgment was rendered differs from
that of the courts of the country in which the judgment is relied on. 31 This Court has held that matters
of remedy and procedure are governed by the lex fori or the internal law of the forum. 32 Thus, if
under the procedural rules of the Civil Court of Dehra Dun, India, a valid judgment may be rendered
by adopting the arbitrator's findings, then the same must be accorded respect. In the same vein, if
the procedure in the foreign court mandates that an Order of the Court becomes final and executory
upon failure to pay the necessary docket fees, then the courts in this jurisdiction cannot invalidate
the order of the foreign court simply because our rules provide otherwise.

The private respondent claims that its right to due process had been blatantly violated, first by
reason of the fact that the foreign court never answered its queries as to the amount of docket fees
to be paid then refused to admit its objections for failure to pay the same, and second, because of
the presumed bias on the part of the arbitrator who was a former employee of the petitioner.

Time and again this Court has held that the essence of due process is to be found in the reasonable
opportunity to be heard and submit any evidence one may have in support of one's defense 33 or
stated otherwise, what is repugnant to due process is the denial of opportunity to be heard. 34 Thus,
there is no violation of due process even if no hearing was conducted, where the party was given a
chance to explain his side of the controversy and he waived his right to do so. 35

In the instant case, the private respondent does not deny the fact that it was notified by the foreign
court to file its objections to the petition, and subsequently, to pay legal fees in order for its
objections to be given consideration. Instead of paying the legal fees, however, the private
respondent sent a communication to the foreign court inquiring about the correct amount of fees to
be paid. On the pretext that it was yet awaiting the foreign court's reply, almost a year passed
without the private respondent paying the legal fees. Thus, on February 2, 1990, the foreign court
rejected the objections of the private respondent and proceeded to adjudicate upon the petitioner's
claims. We cannot subscribe to the private respondent's claim that the foreign court violated its right
to due process when it failed to reply to its queries nor when the latter rejected its objections for a
clearly meritorious ground. The private respondent was afforded sufficient opportunity to be heard. It
was not incumbent upon the foreign court to reply to the private respondent's written communication.
On the contrary, a genuine concern for its cause should have prompted the private respondent to
ascertain with all due diligence the correct amount of legal fees to be paid. The private respondent
did not act with prudence and diligence thus its plea that they were not accorded the right to
procedural due process cannot elicit either approval or sympathy from this Court. 36

The private respondent bewails the presumed bias on the part of the arbitrator who was a former
employee of the petitioner. This point deserves scant consideration in view of the following
stipulation in the contract:

. . . . It will be no objection any such appointment that the arbitrator so appointed is a

Commission employer (sic) that he had to deal with the matter to which the supply or
contract relates and that in the course of his duties as Commission's employee he
had expressed views on all or any of the matter in dispute or difference. 37 (Emphasis
supplied.)

Finally, we reiterate hereunder our pronouncement in the case of Northwest Orient Airlines, Inc. v.
Court of Appeals 38 that:

A foreign judgment is presumed to be valid and binding in the country from which it
comes, until the contrary is shown. It is also proper to presume the regularity of the
proceedings and the giving of due notice therein.

Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in

personam of a tribunal of a foreign country having jurisdiction to pronounce the same
 is presumptive evidence of a right as between the parties and their successors-in-
interest by a subsequent title. The judgment may, however, be assailed by evidence
of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
law or fact. Also, under Section 3 of Rule 131, a court, whether of the Philippines or
elsewhere, enjoys the presumption that it was acting in the lawful exercise of
jurisdiction and has regularly performed its official duty. 39

Consequently, the party attacking a foreign judgment, the private respondent herein, had the
burden of overcoming the presumption of its validity which it failed to do in the instant case.

The foreign judgment being valid, there is nothing else left to be done than to order its enforcement,
despite the fact that the petitioner merely prays for the remand of the case to the RTC for further
proceedings. As this Court has ruled on the validity and enforceability of the said foreign judgment in
this jurisdiction, further proceedings in the RTC for the reception of evidence to prove otherwise are
no longer necessary.

WHEREFORE, the instant petition is GRANTED, and the assailed decision of the Court of Appeals
sustaining the trial court's dismissal of the OIL AND NATURAL GAS COMMISSION's complaint in
Civil Case No. 4006 before Branch 30 of the RTC of Surigao City is REVERSED, and another in its
stead is hereby rendered ORDERING private respondent PACIFIC CEMENT COMPANY, INC. to
pay to petitioner the amounts adjudged in the foreign judgment subject of said case.

SO ORDERED.

Tanada v Cuenco
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10520 February 28, 1957

LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, petitioners,

vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA
CAYETANO, MANUEL SERAPIO, PLACIDO REYES, and FERNANDO HIPOLITO in his capacity
as cashier and disbursing officer,respondents.

Tañada, Teehankee and Macapagal for petitioners.

Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr. for
respondents.

CONCEPCION, J.:

Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and President of the
Citizens Party, whereas petitioner Diosdado Macapagal, a member of the House of Representatives
of the Philippines, was one of the official candidates of the Liberal Party for the Senate, at the
General elections held in November, 1955, in which Pacita Madrigal Warns, Lorenzo Sumulong,
Quintin Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso
Rosales, were proclaimed elected. Subsequently, the elections of this Senators-elect-who eventually
assumed their respective seats in the Senate-was contested by petitioner Macapagal, together with
Camilo Osias, Geronima Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and William
Chiongbian-who had, also, run for the Senate, in said election-in Senate Electoral Case No. 4, now
pending before the Senate Electoral Tribunal. .

The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias, on
behalf of the Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano
Primicias, as members of the Senate Electoral Tribunal. Upon nomination of petitioner Senator
Tañada, on behalf of the Citizens Party, said petitioner was next chosen by the Senate as member
of said Tribunal. Then, upon nomination of Senator Primicias on behalf of the Committee on Rules of
the Senate, and over the objections of Senators Tañada and Sumulong, the Senate choose
respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the same
Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz and Catalina
Cayetano, as technical assistant and private secretary, respectively, to Senator Cuenco, as
supposed member of the Senate Electoral Tribunal, upon his recommendation of said respondent;
and (2) Manuel Serapio and Placido Reyes, as technical assistant and private secretary,
respectively to Senator Delgado, as supposed member of said Electoral Tribunal, and upon his
recommendation.

Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado Macapagal instituted the
case at bar against Senators Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, as well as Fernando Hipolito, in his capacity as Cashier and
Disbursing Officer of the Senate Electoral Tribunal. Petitioners allege that on February 22, 1956, as
well as at present, the Senate consists of 23 Senators who belong to the Nacionalista Party, and one
(1) Senator-namely, petitioner, Lorenzo M. Tañada-belonging to the Citizens Party; that the
Committee on Rules for the Senate, in nominating Senators Cuenco and Delgado, and the Senate,
in choosing these respondents, as members of the Senate Electoral Tribunal, had "acted absolutely
without power or color of authority and in clear violation .. of Article VI, Section 11 of the
Constitution"; that "in assuming membership in the Senate Electoral Tribunal, by taking the
corresponding oath of office therefor", said respondents had "acted absolutely without color of
appointment or authority and are unlawfully, and in violation of the Constitution, usurping, intruding
into and exercising the powers of members of the Senate Electoral Tribunal"; that, consequently, the
appointments of respondents, Cruz, Cayetano, Serapio and Reyes, as technical assistants and
private secretaries to Senators Cuenco and Delgado-who caused said appointments to be made-as
members of the Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and
Delgado "are threatening and are about to take cognizance of Electoral Case No. 4 of the Senate
Electoral Tribunal, as alleged members thereof, in nullification of the rights of petitioner Lorenzo M.
Tañada, both as a Senator belonging to the Citizens Party and as representative of the Citizens
Party in the Senate Electoral Tribunal, and in deprivation of the constitutional rights of petitioner
Diosdado Macapagal and his co-protestants to have their election protest tried and decided-by an
Electoral Tribunal composed of not more than three (3) senators chosen by the Senate upon
nomination of the party having the largest number of votes in the Senate and not more than the (3)
Senators upon nomination of the Party having the second largest number of votes therein, together,
three (3) Justice of the Supreme Court to be designated by the Chief Justice, instead of by an
Electoral Tribunal packed with five members belonging to the Nacionalista Party, which is the rival
party of the Liberal Party, to which the Petitioner Diosdado Macapagal and his co-protestants in
Electoral Case No. 4 belong, the said five (5) Nacionalista Senators having been nominated and
chosen in the manner alleged.. hereinabove.".

Petitioners pray that:.

"1. Upon petitioners' filing of bond in such amount as may be determined by this Honorable Court, a
writ of preliminary injunction be immediately issued directed to respondents Mariano J. Cuenco,
Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes,
restraining them from continuing to usurp, intrude into and/ or hold or exercise the said public offices
respectively being occupied by them in the Senate Electoral Tribunal, and to respondent Fernando
Hipolito restraining him from paying the salaries of respondent Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, pending this action.

"2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco Francisco A.
Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes from the
aforementioned public offices in the Senate Electoral Tribunal and that they be altogether excluded
therefrom and making the Preliminary injunction permanent, with costs against the respondents.".

Respondents have admitted the main allegations of fact in the petition, except insofar as it questions
the legality, and validity of the election of respondents Senators Cuenco and Delgado, as members
of the Senate Electoral Tribunal, and of the appointment of respondent Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes as technical assistants and private secretaries to said
respondents Senators. Respondents, likewise, allege, by way of special and affirmative defenses,
that: (a) this Court is without power, authority of jurisdiction to direct or control the action of the
Senate in choosing the members of the Electoral Tribunal; and (b) that the petition states no cause
of action, because "petitioner Tañada has exhausted his right to nominate after he nominated
himself and refused to nominate two (2) more Senators", because said petitioner is in estoppel, and
because the present action is not the proper remedy. .

I. Respondents assail our jurisdiction to entertain the petition, upon the ground that the power to
choose six (6) Senators as members of the Senate Electoral Tribunal has been expressly conferred
by the Constitution upon the Senate, despite the fact that the draft submitted to the constitutional
convention gave to the respective political parties the right to elect their respective representatives in
the Electoral Commission provided for in the original Constitution of the Philippines, and that the only
remedy available to petitioners herein "is not in the judicial forum", but "to bring the matter to the bar
of public opinion.".

We cannot agree with the conclusion drawn by respondents from the foregoing facts. To begin with,
unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino (77 Phil., 192)-relied
upon by the respondents this is not an action against the Senate, and it does not seek to compel the
latter, either directly or indirectly, to allow the petitioners to perform their duties as members of said
House. Although the Constitution provides that the Senate shall choose six (6) Senators to be
members of the Senate Electoral Tribunal, the latter is part neither of Congress nor of the Senate.
(Angara vs. Electoral Commission, 63 Phil., 139, Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off.
Gaz., 462.).

Secondly, although the Senate has, under the Constitution, the exclusive power to choose the
Senators who shall form part of the Senate Electoral Tribunal, the fundamental law has prescribed
the manner in which the authority shall be exercised. As the author of a very enlightening study on
judicial self-limitation has aptly put it:.

"The courts are called upon to say, on the one hand, by whom certain powers shall be exercised,
and on the other hand, to determine whether the powers possessed have been validly exercised. In
performing the latter function, they do not encroach upon the powers of a coordinate branch of the,
government, since the determination of the validity of an act is not the same, thing as the
performance of the act. In the one case we are seeking to ascertain upon whom devolves the duty of
the particular service. In the other case we are merely seeking to determine whether the Constitution
has been violated by anything done or attented by either an executive official or the legislative."
(Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis
supplied,).

The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes their own pretense.
This Court exercised its jurisdiction over said case and decided the same on the merits thereof,
despite the fact that it involved an inquiry into the powers of the Senate and its President over the
Senate Electoral Tribunal and the personnel thereof. .

Again, under the Constitution, "the legislative power" is vested exclusively in the Congress of the
Philippines. Yet, this does not detract from the power of the courts to pass upon the constitutionality
of acts of Congress 1 And, since judicial power includes the authority to inquire into the legality of
statutes enacted by the two Houses of Congress, and approved by the Executive, there can be no
reason why the validity of an act of one of said Houses, like that of any other branch of the
Government, may not be determined in the proper actions. Thus, in the exercise of the so-called
"judicial supremacy", this Court declared that a resolution of the defunct National Assembly could not
bar the exercise of the powers of the former Electoral Commission under the original Constitution. 2
(Angara vs. Electoral Commission, supra), and annulled certain acts of the Executive 3 as
incompatible with the fundamental law.

In fact, whenever the conflicting claims of the parties to a litigation cannot properly be settled without
inquiring into the validity of an act of Congress or of either House thereof, the courts have, not only
jurisdiction to pass upon said issue, but, also, the duty to do so, which cannot be evaded without
violating the fundamental law and paving the way to its eventual destruction. 4.

Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco (88 Phil.,
654), likewise, invoked by respondents, in point. In the Mabanag case, it was held that the courts
could not review the finding of the Senate to the effect that the members thereof who had been
suspended by said House should not be considered in determining whether the votes cast therein, in
favor of a resolution proposing an amendment to the Constitution, sufficed to satisfy the
requirements of the latter, such question being a political one. The weight of this decision, as a
precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83 Phil., 17), in
which this Court proceeded to determine the number essential to constitute a quorum in the Senate.
Besides, the case at bar does not hinge on the number of votes needed for a particular act of said
body. The issue before us is whether the Senate-after acknowledging that the Citizens Party is the
party, having the second largest number of votes in the Senate, to which party the Constitution gives
the right to nominate three (3) Senators for the Senate electoral Tribunal-could validly choose
therefor two (2) Nacionalista Senators, upon nomination by the floor leader of the Nacionalista Party
in the Senate, Senator Primicias claiming to act on behalf of the Committee on Rules for the Senate.

The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing its
representation in the Commission on Appointments. This was decided in the negative, upon the
authority of Alejandrino vs. Quezon (supra) and Vera vs. Avelino (supra), the main purpose of the
petition being "to force upon the Senate the reinstatement of Senator Magalona in the Commission
on Appointments," one-half (1/2) of the members of which is to be elected by each House on the
basis of proportional representation of the political parties therein. Hence, the issue depended
mainly on the determination of the political alignment of the members of the Senate at the time of
said reorganization and of the necessity or advisability of effecting said reorganization, which is a
political question. We are not called upon, in the case at bar, to pass upon an identical or similar
question, it being conceded, impliedly, but clearly, that the Citizens Party is the party with the second
largest number of votes in the Senate. The issue, therefore, is whether a right vested by the
Constitution in the Citizens Party may validly be exercised, either by the Nacionalista Party, or by the
Committee on Rules for the Senate, over the objection of said Citizens Party.

xxx xxx xxx

The only ground upon which respondents' objection to the jurisdiction of this Court and their theory
to the effect that the proper remedy for petitioners herein is, not the present action, but an appeal to
public opinion, could possibly be entertained is, therefore, whether the case at bar raises merely a
political question, not one justiciable in nature.

In this connection, respondents assert in their answer that "the remedy of petitioners is not in the
judicial forum, but, to use petitioner, Tañada's own words, to bring the matter to the bar of public
opinion' (p. 81, Discussion on the Creation of the Senate Electoral Tribunal, February 21, 1956)."
This allegation may give the impression that said petitioner had declared, on the floor of the Senate,
that his only relief against the acts complained of in the petition is to take up the issue before the
people- which is not a fact. During the discussions in the Senate, in the course of the organization of
the Senate Electoral Tribunal, on February 21, 1956, Senator Tañada was asked what remedies he
would suggest if he nominated two (2) Nacionialista Senators and the latter declined the,
nomination. Senator Tañada replied:.

"There are two remedies that occur to my mind right now, Mr. Senator; one is the remedy open to all
of us that if we feel aggrieved and there is no recourse in the court of justice, we can appeal to public
opinion. Another remedy is an action in the Supreme Court. Of course, as Senator Rodriguez, our
President here, has said one day; "If you take this matter to the Supreme Court, you will lose,
because until now the Supreme Court has always ruled against any action that would constitute
interference in the business of anybody pertaining to the Senate. The theory of separation of powers
will be upheld by the Supreme Court." But that learned opinion of Senator Rodriguez, our President,
notwithstanding, I may take the case to the Supreme Court if my right herein is not respected. I may
lose, Mr. President, but who has not lost in the Supreme Court? I may lose because of the theory of
the separation of powers, but that does not mean, Mr. President, that what has been done here is
pursuant to the provision of the Constitution." (Congressional Record, Vol. III, p. 339; emphasis
supplied.).

This statement did not refer to the nomination, by Senator Primicias, and the election, by the Senate,
of Senators Cuenco and Delgado as members of said Tribunal. Indeed, said nomination and election
took place the day after the aforementioned statement of Senator Tañada was made. At any rate,
the latter announced that he might "take the case to the Supreme Court if my right here is not
respected.".

As already adverted to, the objection to our jurisdiction hinges on the question whether the issue
before us is political or not. In this connection, Willoughby lucidly states:.

"Elsewhere in this treatise the well-known and well-established principle is considered that it is not
within the province of the courts to pass judgment upon the policy of legislative or executive action.
Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in
which those powers are exercised is not subject to judicial review. The courts, therefore, concern
themselves only with the question as to the existence and extent of these discretionary powers.

"As distinguished from the judicial, the legislative and executive departments are spoken of as the
political departments of government because in very many cases their action is necessarily dictated
by considerations of public or political policy. These considerations of public or political policy of
course will not permit the legislature to violate constitutional provisions, or the executive to exercise
authority not granted him by the Constitution or by, statute, but, within these limits, they do permit
the departments, separately or together, to recognize that a certain set of facts exists or that a given
status exists, and these determinations, together with the consequences that flow therefrom, may
not be traversed in the courts." (Willoughby on the Constitution of the United States, Vol. 3, p. 1326;
emphasis supplied.).

To the same effect is the language used in Corpus Juris Secundum, from which we quote:.

"It is well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred upon the courts by express
constitutional or statutory provisions.

"It is not easy, however, to define the phrase `political question', nor to determine what matters, fall
within its scope. It is frequently used to designate all questions that lie outside the scope of the
judicial 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." (16 C.J.S., 413; see, also Geauga Lake Improvement Ass'n.
vs. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs, Elizalde, 112 F. 2d 29, 72 App. D. C., 108;
emphasis supplied.).

Thus, it has been repeatedly held that the question whether certain amendments to the Constitution
are invalid for non-compliance with the procedure therein prescribed, is not a political one and may
be settled by the Courts. 5 .

In the case of In re McConaughy (119 N.W. 408), the nature of political question was considered
carefully. The Court said:.
"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 x x x.

" .. 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, 51 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 a 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 question, but because they are matters which the people have
by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated
to him, free from judicial control, so long as he observes the laws and acts within the limits of the
power conferred. His discretionary acts cannot be controllable, not primarily because they are of a
political nature, but because the Constitution and laws have placed the particular matter under his
control. But every officer under a constitutional government must act according to law and subject
him to the restraining and controlling power of the people, acting through the 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
men'-words which Webster said were the greatest contained in any written constitutional document."
(pp. 411, 417; emphasis supplied.).

In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. 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.

Such is not the nature of the question for determination in the present case. Here, we are called
upon to decide whether the election of Senators Cuenco and Delgado, by the Senate, as members
of the Senate Electoral Tribunal, upon nomination by Senator Primicias-a member and spokesman
of the party having the largest number of votes in the Senate-on behalf of its Committee on Rules,
contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be
chosen "upon nomination .. of the party having the second largest number of votes" in the Senate,
and hence, is null and void. This is not a political question. The Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its
power thereon is subject to constitutional limitations which are claimed to be mandatory in nature. It
is clearly within the legitimate prove of the judicial department to pass upon the validity the
proceedings in connection therewith.

".. whether an election of public officers has been in accordance with law is for the judiciary.
Moreover, where the legislative department has by statute prescribed election procedure in a given
situation, the judiciary may determine whether a particular election has been in conformity with such
statute, and, particularly, whether such statute has been applied in a way to deny or transgress on
the constitutional or statutory rights .." (16 C.J.S., 439; emphasis supplied.).

It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and
determine the principal issue raised by the parties herein.

II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the Electoral
Tribunal, valid and lawful?.

Section 11 of Article VI of the Constitution, reads:.

"The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or of the House of Representatives, as the case may be, who shall be
chosen by each House, three upon nomination of the party having the largest number of votes and
three of the party having the second largest number of votes therein. The Senior Justice in each
Electoral Tribunal shall be its Chairman." (Emphasis supplied.).

It appears that on February 22, 1956, as well as at present, the Senate of the Philippines consists of
twenty three (23) members of the Nacionalista Party and one (1) member of the Citizens Party,
namely, Senator Tañada, who is, also, the president of said party. In the session of the Senate held
on February 21, 1956, Senator Sabido moved that Senator Tañada, "the President of the Citizens
Party, be given the privilege to nominate .. three (3) members" of the Senate Electoral Tribunal
(Congressional Record for the Senate, Vol. III, pp. 328-329), referring to those who, according to the
provision above-quoted, should be nominated by "the party having the second largest number of
votes" in the Senate. Senator Tañada objected formally to this motion upon the-ground: (a) that the
right to nominate said members of the Senate Electoral Tribunal belongs, not to the Nacionalista
Party of which Senator Sabido and the other Senators are members-but to the Citizens Party, as the
one having the second largest number of votes in the Senate, so that, being devoid of authority to
nominate the aforementioned members of said Tribunal, the Nacionalista Party cannot give it to the
Citizens Party, which, already, has such authority, pursuant to the Constitution; and (b) that Senator
Sabido's motion would compel Senator Tañada to nominate three (3) Senators to said Tribunal,
although as representative of the minority party in the Senate he has "the right to nominate one, two
or three to the Electoral Tribunal," in his discretion. Senator Tañada further stated that he reserved
the right to determine how many he would nominate, after hearing the reasons of Senator Sabido in
support of his motion. After some discussion, in which Senators Primicias, Cea, Lim, Sumulong,
Zulueta, and Rodrigo took part, the Senate adjourned until the next morning, February 22, 1956
(Do., do, pp. 329, 330, 332-333, 336, 338, 339, 343).

Then, said issues were debated upon more extensively, with Senator Sumulong, not only seconding
the opposition of Senator Tañada, but, also, maintaining that "Senator Tañada should nominate only
one" member of the Senate, namely, himself, he being the only Senator who belongs to the minority
party in said House (Do., do., pp. 360-364, 369). Thus, a new issue was raised - whether or not one
who does not belong to said party may be nominated by its spokesman, Senator Tañada - on which
Senators Paredes, Pelaez, Rosales and Laurel, as well as the other Senators already mentioned,
expressed their views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375). Although the deliberations of
the Senate consumed the whole morning and afternoon of February 22, 1956, a satisfactory solution
of the question before the Senate appeared to be remote. So, at 7:40 p.m., the meeting was
suspended, on motion of Senator Laurel, with a view to seeking a compromise formula (Do., do., pp.
377). When session was resumed at 8:10 p.m., Senator Sabido withdrew his motion above referred
to. Thereupon, Senator Primicias, on behalf of the Nacionalista Party, nominated, and the Senate
elected, Senators Laurel, Lopez and Primicias, as members of the Senate Electoral Tribunal.
Subsequently, Senator Tañada stated:.

"On behalf of the Citizens Party, the minority party in this Body, I nominate the only Citizens Party
member in this Body, and that is Senator Lorenzo M. Tañada.".

Without an objection, this nomination was approved by the House. Then, Senator Primicias stood up
and said:.

"Now, Mr. President, in order to comply with the provision in the Constitution, the Committee on
Rules of the Senate-and I am now making this proposal not on behalf of the Nacionalista Party but
on behalf of the Committee on Rules of the Senate-I nominate two other members to complete the
membership of the Tribunal: Senators Delgado and Cuenco.".

What took place thereafter appears in the following quotations from the Congressional Record for
the Senate.

"SENATOR TAÑADA. Mr. President.

"EL PRESIDENTE INTERINO. Caballero de Quezon.

"SENATOR TAÑADA. I would like to record my opposition to the nominations of the last two named
gentlemen, Senators Delgado and Cuenco, not because I don't believe that they do not deserve to
be appointed to the tribunal but because of my sincere and firm conviction that these additional
nominations are not sanctioned by the Constitution. The Constitution only permits the Nacionalista
Party or the party having the largest number of votes to nominate three.

"SENATOR SUMULONG. Mr. President.

"EL PRESIDENTE INTERINO. Caballero de Rizal.

"SENATOR SUMULONG. For the reasons that I have stated a few moments ago when I took the
floor, I also wish to record my objection to the last nominations, to the nomination of two additional
NP's to the Electoral Tribunal.

"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores: Si.) Los que
esten conformes con la nominacion hecha por el Presidente del Comite de Reglamentos a favor de
los Senadores Delgado y Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios
Senadores: Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada." (Congressional Record
for the Senate, Vol. III, p. 377; emphasis supplied.).

Petitioners maintain that said nomination and election of Senators Cuenco and Delgado-who belong
to the Nacionalista Party-as members of the Senate Electoral Tribunal, are null and void and have
been made without power or color of authority, for, after the nomination by said party, and the
election by the Senate, of Senators Laurel, Lopez and Primicias, as members of said Tribunal, the
other Senators, who shall be members thereof, must necessarily be nominated by the party having
the second largest number of votes in the Senate, and such party is, admittedly, the Citizens Party,
to which Senator Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that "each Electoral
Tribunal shall be compose of nine (9) members," six (6) of whom "shall be members of the Senate or
of the House of Representatives, as the case may be", is mandatory; that when-after the nomination
of three (3) Senators by the majority party, and their election by the Senate, as members of the
Senate Electoral Tribunal-Senator Tañada nominated himself only, on behalf of the minority party,
he thereby "waived his right to no two more Senators;" that, when Senator Primicias nominated
Senators Cuenco and Delgado, and these respondents were chosen by the Senate, as members of
the Senate Electoral Tribunal, Said Senator Primicias and the Senate merely complied with the
aforementioned provision of the fundamental law, relative to the number of members of the Senate
Electoral Tribunal; and, that, accordingly, Senators Cuenco and Delgado are de jure members of
said body, and the appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes is valid and lawful.

At the outset, it will be recalled that the proceedings the organization of the Senate Electoral Tribunal
began with a motion of Senator Sabido to the effect that "the distinguished gentleman from Quezon,
the President of the Citizens Party, be given the privilege to nominate the three Members" of said
Tribunal. Senator Primicias inquired why the movant had used the word "privilege". Senator Sabido
explained that the present composition of the Senate had created a condition or situation which was
not anticipated by the framers of our Constitution; that although Senator Tañada formed part of the
Nacionalista Party before the end of 1955, he subsequently parted ways with" said party; and that
Senator Tañada "is the distinguished president of the Citizens Party," which "approximates the
situation desired by the framers of the Constitution" (Congressional Record for the Senate Vol. III,
pp. 329-330). Then Senator Lim intervened, stating:.

"At present Senator Tañada is considered as forming the only minority or the one that has the
second largest number of votes in the existing Senate, is not that right? And if this is so, he should
be given this as a matter of right, not as a matter of privilege. .. I don't believe that we should be
allowed to grant this authority to Senator Tañada only as a privilege but we must grant it as a matter
of right." (Id., id., p. 32; emphasis supplied.).

Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party Senator, has the
right and not a mere privilege to nominate," adding that:.

".. the question is whether we have a party here having the second largest number of votes, and it is
clear in my mind that there is such a party, and that is the Citizens Party to which the gentleman
from Quezon belongs. .. We have to bear in mind, .. that when Senator Tañada was included in the
Nacionalista Party ticket in 1953, it was by virtue of a coalition or an alliance between the Citizens
Party and the Nacionalista Party at that time, and I maintain that when Senator Tañada as head of
the Citizens Party entered into a coalition with the Nacionalista Party, he did not thereby become a
Nacionalista because that was a mere coalition, not a fusion. When the Citizens Party entered into a
mere coalition, that party did not lose its personality as a party separate and distinct from the,
Nacionalista Party. And we should also remember that the certificate of candidacy filed by Senator
Tañada in the 1953 election was one to the effect that he belonged to the Citizens Party .." (Id., id.,
p. 360; emphasis supplied.).

The debate was closed by Senator Laurel, who remarked, referring to Senator Tañada:.

"..there is no doubt that he does not belong to the majority in the first place, and that, therefore, he
belongs to the minority. And whether we like it or not, that is the reality of the actual situation-that he
is not a Nacionalista now, that he is the head and the representative of the Citizens Party. I think that
on equitable ground and from the point of view of public opinion, his situation .. approximates or
approaches what is within the spirit of that Constitution. .. and from the point of view of the spirit of
the Constitution it would be a good thing if we grant the opportunity to Senator Tañada to help us in
the organization of this Electoral Tribunal (Id., id., p. 376; emphasis supplied.).

The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his motion to grant
Senator Tañada the "privilege" to nominate, and said petitioner actually nominated himself "on
behalf of the Citizens Party, the minority party in this Body"-not only without any, objection
whatsoever, but, also, with the approval of the Senate-leave no room for doubt that the Senate-leave
no room for doubt that the Senate has regarded the Citizens Party, represented by Senator Tañada,
as the party having the second largest number of votes in said House.

Referring, now, to the contention of respondents herein, their main argument in support of the
mandatory character of the constitutional provision relative to the number of members of the Senate
Electoral Tribunal is that the word "shall", therein used, is imperative in nature and that this is borne
out by an opinion of the Secretary of Justice dated February 1, 1939, pertinent parts of which are
quoted at the footnote. 6.

Regardless of the respect due its author, as a distinguished citizen and public official, said opinion
has little, if any, weight in the solution of the question before this Court, for the practical construction
of a Constitution is of little, if any, unless it has been uniform .." 6a Again, "as a general rule, it is only
in cases of substantial doubt and ambiguity that the doctrine of contemporaneous or practical
construction has any application". As a consequence, "where the meaning of a constitutional
provision is clear, a contemporaneous or practical executive interpretation thereof is entitled to no
weight, and will not be allowed to distort or in any way change its natural meaning." The reason is
that "the application of the doctrine of contemporaneous construction is more restricted as applied to
the interpretation of constitutional provisions than when applied to statutory provisions", and that,
"except as to matters committed by the Constitution, itself to the discretion of some other
department, contemporary or practical construction is not necessarily binding upon the courts, even
in a doubtful case." Hence, "if in the judgment of the court, such construction is erroneous and its
further application is not made imperative by any paramount considerations of public policy, it may
he rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b.

The aforemention opinion of the Secretary of Justice is not backed up by a, "uniform" application of
the view therein adopted, so essential to give thereto the weight accorded by the rules on
contemporaneous constructions. Moreover, said opinion tends to change the natural meaning of
section 11 of Article VI of the Constitution, which is clear. What is more, there is not the slightest
doubt in our mind that the purpose and spirit of said provisions do not warrant said change and that
the rejection of the latter is demanded by paramount considerations of public policy. .

The flaw in the position taken in said opinion and by respondent herein is that, while, it relies upon
the compulsory nature of the word "shall", as regards the number of members of the Electoral
Tribunals, it ignores the fact that the same term is used with respect to the method prescribed for
their election, and that both form part of a single sentence and must be considered, therefore, as
integral portions of one and the same thought. Indeed, respondents have not even tried to show and
we cannot conceive-why "shall" must be deemed mandatory insofar as the number of members of
each Electoral Tribunal, and should be considered directory as regards the procedure for their
selection. More important still, the history of section 11 of Article VI of the Constitution and the
records of the Convention, refute respondents' pretense, and back up the theory of petitioners
herein.

Commenting on the frame of mind of the delegates to the Constitutional Convention, when they
faced the task of providing for the adjudication of contests relating to the election, returns and
qualifications of members of the Legislative Department, Dr. Jose M. Aruego, a member of said
Convention, says:.

"The experience of the Filipino people under the provisions of the organic laws which left to the
lawmaking body the determination of the elections, returns, and qualifications of its members was
not altogether satisfactory. There were many complaints against the lack of political justice in this
determination; for in a great number of cases, party interests controlled and dictated the decisions.
The undue delay in the dispatch of election contests for legislative seats, the irregularities that
characterized the proceedings in some of them, and the very apparent injection of partisanship in the
determination of a great number of the cases were decried by a great number of the people as well
as by the organs of public opinion.

"The faith of the people in the uprightness of the lawmaking body in the performance of this function
assigned to it in the organic laws was by no means great. In fact so blatant was the lack of political
justice in the decisions that there was, gradually built up a camp of thought in the Philippines inclined
to leave to the courts the determination of election contests, following the practice in some countries,
like England and Canada.

"Such were the conditions of things at the time of the meeting of the convention." (The Framing of
the Philippine Constitution by Aruego, Vol. 1, pp. 257-258; emphasis supplied.).

This view is shared by distinguished members of the Senate. Thus, in its session of February 22,
1956, Senator Sumulong declared:.

".. when you leave it to either House to decide election protests involving its own members, that is
virtually placing the majority party in a position to dictate the decision in those election cases,
because each House will be composed of a majority and a minority, and when you make each
House the judge of every election protest involving any member of that House, you place the
majority in a position to dominate and dictate the decision in the case and result was, there were so
many abuses, there were so main injustices: committed by the majority at the expense and to the
prejudice of the minority protestants. Statements have been made here that justice was done even
under the old system, like that case involving Senator Mabanag, when he almost became a victim of
the majority when he had an election case, and it was only through the intervention of President
Quezon that he was saved from becoming the victim of majority injustices.

"It is true that justice had sometimes prevailed under the old system, but the record will show that
those cases were few and they were the rare exceptions. The overwhelming majority of election
protests decided under the old system was that the majority being then in a position to dictate the,
decision in the election protest, was tempted to commit as it did commit many abuses and
injustices." (Congressional Record for the Senate, Vol. 111, p. 361; emphasis supplied.).

Senator Paredes, a veteran legislator and former Speaker of the House of Representatives, said:.

".. what was intended in the creation of the electoral tribunal was to create a sort of collegiate court
composed of nine members: Three of them belonging to the party having the largest number of
votes, and three from the party having the second largest number votes so that these members may
represent the party, and the members of said party who will sit before the electoral tribunal as
protestees. For when it comes to a party, Mr. President, there ground to believe that decisions will
be made along party lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis
supplied.).
Senator Laurel, who played an important role in the framing of our Constitution, expressed himself
as follows:.

"Now, with reference to the protests or contests, relating to the election, the returns and the
qualifications of the members of the legislative bodies, I heard it said here correctly that there was a
time when that was given to the corresponding chamber of the legislative department. So the
election, returns and qualifications of the members, of the Congress or legislative body was
entrusted to that body itself as the exclusive body to determine the election, returns and
qualifications of its members. There was some doubt also expressed as to whether that should
continue or not, and the greatest argument in favor of the retention of that provision was the fact that
was, among other things, the system obtaining in the United States under the Federal Constitution of
the United States, and there was no reason why that power or that right vested in the legislative
body should not be retained. But it was thought that would make the determination of this contest, of
this election protest, purely political as has been observed in the past." (Congressional Record for
the Senate, Vol. III, p. 376; emphasis supplied.).

It is interesting to note that not one of the members of the Senate contested the accuracy of the
views thus expressed.

Referring particularly to the philosophy underlying the constitutional provision quoted above, Dr.
Aruego states:.

"The defense of the Electoral Commission was based primarily upon the hope and belief that the
abolition of Party line because of the equal representation in this body of the majority and the
minority parties of the National Assembly and the intervention of some members of the Supreme
Court who, under the proposed constitutional provision, would also be members of the same, would
insure greater political justice in the determination of election contests for seats in the National
Assembly than there would be if the power had been lodged in the lawmaking body itself. Delegate
Francisco summarized the arguments for the creation of the Electoral Commission in the following
words:.

"I understand that from the time that this question is placed in the hands of members not only of the
majority party but also of the minority party, there is already a condition, a factor which would make
protests decided in a non-partisan manner. We know from experience that many times in the many
protests tried in the House or in the Senate, it was impossible to prevent the factor of party from
getting in. From the moment that it is required that not only the majority but also the minority should
intervene in these questions, we have already enough guarantee that there would be no tyranny on
the part of the majority.

`But there is another more detail which is the one which satisfies me most, and that is the
intervention of three justices. So that with this intervention of three justices if there would be any
question as to the justice applied by the majority or the minority, if there would be any fundamental
disagreement, or if there would be nothing but questions purely of party in which the members of the
majority as well as those of the minority should wish to take lightly a protest because the protestant
belongs to one of said parties, we have in this case, as a check upon the two parties, the actuations
of the three justices. In the last analysis, what is really applied in the determination of electoral cases
brought before the tribunals of justice or before the House of Representatives or the Senate? Well, it
is nothing more than the law and the doctrine of the Supreme Court. If that is the case, there will be
greater skill in the application of the laws and in the application of doctrines to electoral matters
having as we shall have three justices who will act impartially in these electoral questions.
`I wish to call the attention of my distinguished colleagues to the fact that in electoral protests it is
impossible to set aside party interests. Hence, the best guarantee, I repeat, for the administration of
justice to the parties, for the fact that the laws will not be applied rightfully or incorrectly as well as for
the fact that the doctrines of the Supreme Court will be applied rightfully, the best guarantee which
we shall have, I repeat, is the intervention of the three justices. And with the formation of the
Electoral Commission, I say again, the protestants as well as the protestees could remain tranquil in
the certainty that they will receive the justice that they really deserve. If we eliminate from this
precept the intervention of the party of the minority and that of the three justices, then we shall be
placing protests exclusively in the hands of the party in power. And I understand, gentlemen, that in
practice that has not given good results. Many have criticized, many have complained against, the
tyranny of the majority in electoral cases .. I repeat that the best guarantee the fact that these
questions will be judged not only by three members of the majority but also by three members of the
minority, with the additional guarantee of the impartial judgment of three justices of the Supreme
Court." (The Framing of the Philippine Constitution by Aruego, Vol. I, pp. 261-263; emphasis
supplied.).

The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara vs. Electoral
Commission (63 Phil., 139), he asserted:.

"The members of the Constitutional Convention who framed our fundamental law were in their
majority-men mature in years and experience. To be sure, many of them were familiar with the
history and political development of other countries of the world. When, therefore they deemed it
wise to create an Electoral Commission as a constitutional organ and invested with the exclusive
function of passing upon and determining the election, returns and qualifications of the members of
the National Assembly, they must have done so not only in the light of their own experience but also
having in view the experience of other enlightened peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its
creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the Constitution, the creation of the Electoral
Commission is the expression of the wisdom `ultimate justice of the people'. (Abraham Lincoln, First
Inaugural Address, March 4, 1861.).

"From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer
in its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge
and appreciation of contemporary constitutional precedents, however, as the long felt need of
determining legislative contests devoid of partisan considerations which prompted the people acting
through their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and minority parties
are equally represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme Court,"
(Pp. 174-175.) 7.

As a matter of fact, during the deliberations of the convention, Delegates Conejero and Roxas said:.

"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomite de
Siete.

"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto. "El Sr. CONEJERO.
Tal como esta el draft., dando tres miembrosala mayoria, y otros t?-es a la minyoryia y atros a la
Corte Suprerma, no cree su Senoria que este equivale pricticamente a dejar el asunto a los
miembros del Tribunal Supremo?.

"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido en esa forma, tanto
los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Saprema
consideration la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente
para dar el triunbo.

"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos hacer que tanto los de
la mayoria como los de la minoria prescindieran del partidisrno?.

"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs. Electoral
Commission, supra, pp. 168-169; emphasis supplied.).

It is clear from the foregoing that the main objective of the framers of our Constitution in providing for
the establishment, first, of an Electoral Commission, 8 and then 9 of one Electoral Tribunal for each
House of Congress, was to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body. To achieve this purpose, two devices were
resorted to, namely: (a) the party having the largest number of votes, and the party having the
second largest number of votes, in the National Assembly or in each House of Congress, were given
the same number of representatives in the Electoral Commission or Tribunal, so that they may
realize that partisan considerations could not control the adjudication of said cases, and thus be
induced to act with greater impartiality; and (b) the Supreme Court was given in said body the same
number of representatives as each one of said political parties, so that the influence of the former
may be decisive and endow said Commission or Tribunal with judicial temper.

This is obvious from the very language of the constitutional provision under consideration. In fact,
Senator Sabido-who had moved to grant to Senator Tañada the privilege" to make the nominations
on behalf of party having the second largest number of votes in the Senate-agrees with it. As
Senator Sumulong inquired:.

"..I suppose Your Honor will agree with me that the framers of the Constitution precisely thought of
creating this Electoral Tribunal so as to prevent the majority from ever having a preponderant
majority in the Tribunal." (Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.).

Senator Sabido replied:.

"That is so, .." (Id., p. 330.).

Upon further interpretation, Senator Sabido said:.

".. the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a
balance between the two parties and make the members of the Supreme Court the controlling power
so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal situation."
(Congressional Record for the Senate, Vol. III, p. 349; emphasis supplied.).

Senator Sumulong opined along the same line. His words were: .

"..The intention is that when the three from the majority and the three from the minority become
members of the Tribunal it is hoped that they will become aware of their judicial functions, not to
protect the protestants or the protegees. It is hoped that they will act as judges because to decide
election cases is a judicial function. But the framers of, the Constitution besides being learned were
men of experience. They knew that even Senators like us are not angels, that we are human beings,
that if we should be chosen to go to the Electoral Tribunal no one can say that we will entirely be
free from partisan influence to favor our party, so that in, case that hope that the three from the
majority and the three from the minority who will act as Judges should result in disappointment, in
case they do not act as judges but they go there and vote along party liner, still there is the
guarantee that they will offset each other and the result will be that the deciding vote will reside in
the hands of the three Justices who have no partisan motives to favor either the protestees or the
protestants. In other words, the whole idea is to prevent the majority from controlling and dictating
the decisions of the Tribunal and to make sure that the decisive vote will be wielded by the
Congressmen or Senators who are members the Tribunal but will be wielded by the Justices who, by
virtue of their judicial offices, will have no partisan motives to serve, either protestants, or protestees.
That is my understanding of the intention of the framers of the Constitution when they decided to
create the Electoral Tribunal.

xxx xxx x x x.

"My idea is that the intention of the framers of the constitution in creating the Electoral Tribunal is to
insure impartially and independence in its decision, and that is sought to be done by never allowing
the majority party to control the Tribunal, and secondly by seeing to it that the decisive vote in the
Tribunal will be left in the hands of persons who have no partisan interest or motive to favor either
protestant or protestee." (Congressional Record for the Senate, Vol. III, pp. 362-363, 365-366;
emphasis supplied.).

So important in the "balance of powers" between the two political parties in the Electoral Tribunals,
that several members of the Senate questioned the right of the party having the second largest
number of votes in the Senate and, hence, of Senator Tañada, as representative of the Citizens
Party-to nominate for the Senate Electoral Tribunal any Senator not belonging to said party.
Senators Lim, Sabido, Cea and Paredes maintained that the spirit of the Constitution would be
violated if the nominees to the Electoral Tribunals did not belong to the parties respectively making
the nominations. 10.

It is not necessary, for the purpose of this decision, to determine whether the parties having the
largest, and the second largest, number of votes in each House may nominate, to the Electoral
Tribunals, those members of Congress who do not belong to the party nominating them. It is patent,
however, that the most vital feature of the Electoral Tribunals is the equal representation of said
parties therein, and the resulting equilibrium to be maintained by the Justices of the Supreme Court
as members of said Tribunals. In the words of the members of the present Senate, said feature
reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to which the Senate Electoral
Tribunal should be organized (Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351,
355, 358, 362-3, 364, 370, 376).

Now then, it is well settled that "the purpose of all rules or maxims as to the construction or
interpretation of statutes is to discover the true intention of the law" (82 C. J. S., 526) and that.

"As a general rule of statutory construction, the spirit or intention of a statute prevails over the letter
thereof, and whatever is within the spirit of statute is within the statute although it is not within the
letter, while that which is within the letter, but not within the spirit of a statute, is not within the
statute; but, where the law is free and clear from ambiguity, the letter of it is not to be disregarded on
the pretext of pursuing its spirit." (82 C. J. S., 613.).
"There is no universal rule or absolute test by which directory provisions in a statute may in all
circumstances be distinguished from those which are mandatory. However, in the determination of
this question, as of every other question of statutory construction, the prime object is to ascertain the
legislative intent. The legislative intent must be obtained front all the surrounding circumstances, and
the determination does not depend on the form of the statute. Consideration must be given to the
entire statute, its nature, its object, and the consequences which would result from construing it one
way or the other, and the statute must be construed in connection with other related statutes. Words
of permissive character may be given a mandatory significance in order to effect the legislative
intent, and, when the terms of a statute are such that they cannot be made effective to the extent of
giving each and all of them some reasonable operation, without construing the statute as mandatory,
such construction should be given; .. On the other hand, the language of a statute, however
mandatory in form, may be deemed directory whenever legislative purpose can best be carried out
by such construction, and the legislative intent does not require a mandatory construction; but the
construction of mandatory words as directory should not be lightly adopted and never where it would
in fact make a new law instead of that passed by the legislature. .. Whether a statute is mandatory or
directory depends on whether the thing directed to be done is of the essence of the thing required, or
is a mere matter of form, and what is a matter of essence can often be determined only by judicial
construction. Accordingly, when a particular provision of a statute relates to some immaterial matter,
as to which compliance with the statute is a matter of convenience rather than substance, or where
the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of
business, it is generally regarded as directory, unless followed by words of absolute prohibition; and
a statute is regarded as directory were no substantial rights depend on it, no injury can result from
ignoring it, and the purpose of the legislative can be accomplished in a manner other than that
prescribed, with substantially the same result. On the other hand, a provision relating to the essence
of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation
of a statute, which directs acts or proceedings to be done in a certain way shows that the legislature
intended a compliance with such provision to be essential to the validity of the act or proceeding, or
when same antecedent and pre-requisite conditions must exist prior to the exercise of power, or
must be performed before certain other powers can be exercise, the statute must be regarded as
mandatory. (Id., pp. 869-874.) (See also, Words and Phrases, Vol. 26, pp. 463-467; emphasis
supplied.).

What has been said above, relative to the conditions antecedent to, and concomitant with, the
adoption of section 11 of Article VI of the Constitution, reveals clearly that its framers intended to
prevent the majority party from controlling the Electoral Tribunals, and that the structure thereof is
founded upon the equilibrium between the majority and the minority parties therein, with the Justices
of the Supreme Court, who are members of said Tribunals, holding the resulting balance of power.
The procedure prescribed in said provision for the selection of members of the Electoral Tribunals is
vital to the role they are called upon to play. it constitutes the essence of said Tribunals. Hence,
compliance with said procedure is mandatory, and acts performed in violation thereof are null and
void. 11.

It is true that the application of the foregoing criterion would limit the membership of the Senate
Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9), members; but, it is conceded
that the present composition of the Senate was not foreseen by the framers of our Constitution
(Congressional Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the
spirit of the law prevails over its letter, and the solution herein adopted maintains the spirit of the
Constitution, for partisan considerations can not be decisive in a tribunal consisting of three (3)
Justices of the Supreme Court, three (3) members nominated by the majority party and either one
(1) or two (2) members nominated by the party having the second largest number of votes in the
House concerned.
Upon the other hand, what would be the result of respondents' contention if upheld? Owing to the
fact that the Citizens Party 12 has only one member in the Upper House, Senator Tañada felt he
should nominate, for the Senate Electoral Tribunal, only said member of the Citizens Party. The
same is, thus, numerically handicapped, vis-a-vis the majority party, in said Tribunal. Obviously,
Senator Tañada did not nominate other two Senators, because, otherwise, he would worsen the
already disadvantageous position, therein, of the Citizens Party. Indeed, by the aforementioned
nomination and election of Senators Cuenco and Delgado, if the same were sanctioned, the
Nacionalista Party would have five (5) members in the Senate Electoral Tribunal, as against one (1)
member of the Citizens Party and three members of the Supreme Court. With the absolute majority
thereby attained by the majority party in said Tribunal, the philosophy underlying the same would be
entirely upset. The equilibrium between the political parties therein would be destroyed. What is
worst, the decisive moderating role of the Justices of the Supreme Court would be wiped out, and, in
lieu thereof, the door would be thrown wide open for the predominance of political considerations in
the determination of election protests pending before said Tribunal, which is precisely what the
fathers of our Constitution earnestly strove to forestall. 13.

This does not imply that the honesty, integrity or impartiality of Senators Cuenco and Delgado are
being questioned. As a matter of fact, when Senator Tañada objected to their nomination, he
explicitly made of record that his opposition was based, not upon their character, but upon the
principle involved. When the election of members of Congress to the Electoral Tribunal is made
dependent upon the nomination of the political parties above referred to, the Constitution thereby
indicates its reliance upon the method of selection thus established, regardless of the individual
qualities of those chosen therefor. Considering the wealth of experience of the delegatesto the
Convention, as lawyers of great note, as veteran politicians and as leaders in other fields of
endeavor, they could not, and did not, ignore the fact that the Constitution must limit itself to giving
general patterns or norms of action. In connection, particularly, with the composition of the Electoral
Tribunals, they believed that, even the most well meaning individuals often find it difficult to shake off
the bias and prejudice created by political antagonisms and to resist the demands of political
exigencies, the pressure of which is bound to increase in proportion to the degree of predominance
of the party from which it comes. As above stated, this was confirmed by distinguished members of
the present Senate. (See pp. 25-28, 33, 34, supra.).

In connection with the argument of the former Secretary of Justice to the effect that when "there is
no minority party represented in the Assembly, the necessity for such a check by the minority
disappears", the following observations of the petitioners herein are worthy of notice:.

" Under the interpretation espoused by the respondents, the very frauds or terrorism committed by a
party would establish the legal basis for the final destruction of minority parties in the Congress at
least. Let us suppose, for example, that in the Senate, the 15 or 16 senators with unexpired terms
belong to the party A. In the senatorial elections to fill the remaining 8 seats, all the 8 candidates of
party A are proclaimed elected through alleged fraud and/or terrorism. (The ouster of not less than 3
senators-elect in the elections held since liberation attests to the reality of election frauds and
terrorism in our country.) There being no senator or only one senator belonging to the minority, who
would sit in judgment on the election candidates of the minority parties? According to the contention
of the respondents, it would be a Senate Electoral Tribunal made up of three Supreme Court
Justices and 5 or 6 members of the same party A accused of fraud and terrorism. Most respectfully,
we pray this Honorable Court to reject an interpretation that would make of a democratic constitution
the very instrument by which a corrupt and ruthless party could entrench itself in power the
legislature and thus destroy democracy in the Philippines.

xxx xxx x x x.
".. When there are no electoral protests filed by the Minority party, or when the only electoral protests
filed are by candidates of the majority against members-elect of the same majority party, there might
be no objection to the statement. But if electoral protests are filed by candidates of the minority
party, it is at this point that a need for a check on the majority party is greatest, and contrary to the
observation made in the above-quoted opinion, such a cheek is a function that cannot be
successfully exercised by the 3 Justices of the Supreme Court, for the obvious and simple reason
that they could easily be outvoted by the 6 members of the majority party in the Tribunal.

xxx xxx x x x.

"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it, did not appear that
there were minority party candidates who were adversely affected by the ruling of the Secretary of
Justice and who could have brought a test case to court." (Emphasis supplied.).

The defenses of waiver and estoppel set up against petitioner Tañada are untenable. Although "an
individual may waive constitutional provisions intended for his benefit", particularly those meant for
the protection of his property, and, sometimes, even those tending "to secure his personal liberty",
the power to waive does not exist when "public policy or public morals" are involved. (11 Am. Jur.
765; I Cooley's Constitutional Limitations, pp. 368-371). The procedure outlined in the Constitution
for the organization, of the Electoral Tribunals was adopted in response to the demands of the
common weal, and it has been held that where a statute is founded on public policy, those to whom
it applies should not be permitted to waive its provisions" (82 C. J. S., 874). Besides, there can be no
waiver without an intent to such effect, which Senator Tañada did not have. Again, the alleged
waiver or exhaustion of his rights does not justify the exercise thereof by a person or party, other
than that to which it is vested exclusively by the Constitution.

The rule estoppel is that "whenever a party has, by his declaration, act or omissions, intentionally
and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot,
in a litigation arising out of such declaration, act or omission, be permitted to falsify it" (Rule 69, sec.
68 [a], Rules of Court). In the case at bar, petitioner Senator Tañada did not lead the Senate to
believe that Senator Primicias could nominate Senators Cuenco and Delgado. On the contrary, said
petitioner repeatedly asserted that his was the exclusive right to make the nomination. He, likewise,
specifically contested said nomination of Senators Cuenco and Delgado. Again, the rule on estoppel
applies to questions of fact, not of law, about the truth of which the other party is ignorant (see
Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature of the
situation that confronted Senator Tañada and the other members of the Senate. Lastly, the case of
Zandueta vs. De la Costa (66 Phil., 615), cited by respondents, is not in point. Judge Zandueta
assumed office by virtue of an appointment, the legality of which he later on assailed. In the case at
bar, the nomination and election of Senator Tañada as member of the Senate Electoral Tribunal was
separate, distinct and independent from the nomination and election of Senators Cuenco and
Delgado.

In view of the foregoing, we hold that the Senate may not elect, as members of the Senate Electoral
Tribunal, those Senators who have not been nominated by the political parties specified in the
Constitution; that the party having the largest number of votes in the Senate may nominate not more
than three (3) members thereof to said Electoral Tribunal; that the party having the second largest
number of votes in the Senate has the exclusive right to nominate the other three (3) Senators who
shall sit as members in the Electoral Tribunal; that neither these three (3) Senators, nor any of them,
may be nominated by a person or party other than the one having the second largest number of
votes in the Senate or its representative therein; that the Committee on Rules for the Senate has no
standing to validly make such nomination and that the nomination of Senators Cuenco and Delgado
by Senator Primicias, and the election of said respondents by the Senate, as members of said
Tribunal, are null and void ab initio.

As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, we
are not prepared to hold, however, that their appointments were null and void. Although
recommended by Senators Cuenco and Delgado, who are not lawful members of the Senate
Electoral Tribunal, they were appointed by its Chairman, presumably, with the consent of the
majority of the de jure members of said body 14 or, pursuant to the Rules thereof. At any rate, as
held in Suanes vs. Chief Accountant (supra), the election of its personnel is an internal matter falling
within the jurisdiction and control of said body, and there is every reason to believe that it will,
hereafter take appropriate measures, in relation to the four (4) respondents abovementioned,
conformably with the spirit of the Constitution and of, the decision in the case at bar.

Wherefore, judgment is hereby rendered declaring that, respondents Senators Mariano Jesus
Cuenco and Francisco A. Delgado have not been duly elected as Members of the Senate Electoral
Tribunal, that they are not entitled to act as such and that they should be, as they are hereby,
enjoined from exercising the powers and duties of Members of said Electoral Tribunal and from
acting in such capacity in connection with Senate Electoral Case No. 4 thereof. With the qualification
stated above, the petition is dismissed, as regards respondents Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes. Without special pronouncement as to costs. It is so ordered.

Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Reyes, J.B.L., and Felix, JJ., concur.

Paras, C.J., dissenting:.

In 1939, Section (4) of Article VI of the Philippine Constitution provided that "There shall be an
Electoral Commission composed of three Justices of the Supreme Court designated by the Chief
Justice, and of six members chosen by the National Assembly, three of whom shall be nominated by
the party having the largest number of votes, and three by the party having the second largest
number of votes therein." As all the members of the National Assembly then belonged to the
Nacionalista Party and a belief arose that it was impossible to comply with the constitutional
requirement that three members of the Electoral Commission should be nominated by the party
having the second largest number of votes, the opinion of the Secretary of Justice was sought on the
proper interpretation of the constitutional provision involved. Secretary of Justice Jose A. Santos
accordingly rendered the following opinion:.

"Sir:.

"I have the honor to acknowledge the receipt of your letter of January 24, 1939, thru the office of His
Excellency, the President, in which you request my opinion as `to the proper interpretation of the
following provision of Section (4) of Article VI of the Philippine Constitution':.

`There shall be an Electoral Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six members chosen by the National Assembly, three of
whom shall be nominated by the party having the largest number of votes, and three by the party
having the second largest number of votes therein.'.
"You state that `as all the members of the present National Assembly belong to the Nacionalista
Party, it is impossible to comply with the last part of the provision which requires that three members
shall be nominated by the party having the second largest number of votes in the Assembly.'.

"The main features of the constitutional provision in question are: (1) that there shall be an Electoral
Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and
of six members chosen by the National Assembly; and that (2) of the six members to be chosen by
the National Assembly, three shall be nominated by the party having the largest number of votes and
three by the party having the second largest number of votes.

"Examining the history of the constitutional provision, I find that in the first two drafts it was provided
that the Electoral Commission shall be composed of `three members elected by the members of the
party having the largest number of vote three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court ..(Aruego, The Framing of the Phil.
Const., pp. 260-261). But as finally adopted by the Convention, the Constitution explicitly states that
there shall be `six members chosen by the National Assembly, three of whom shall be nominated by
the party having the largest number of votes, an and three by the party having the second largest
number of votes' (Aruego, The Framing of the Phil. Const., pp. 271-272).

"From the foregoing changes in the phraseology of the provision, it is evident that the intention of the
framers of our Constitution was that there should invariably be six members from the National
Assembly. It was also intended to create a non-partisan body to decide any partisan contest that
may be brought before the Commission. The primary object was to avoid decision based chiefly if
not exclusively on partisan considerations.

"The procedure or manner of nomination cannot possibly affect the constitutional mandate that the
Assembly is entitled to six members in the Electoral Commission. When for lack of a minority
representation in the Assembly the power to nominate three minority members cannot be exercised,
it logically follows that the only party the Assembly may nominate three others, otherwise the explicit
mandate of the Constitution that there shall be six members from the National Assembly would be
nullified.

"In other words, fluctuations in the total membership of the Commission were not and could not have
been intended. We cannot say that the Commission should have nine members during one
legislative term and six members during the next. Constitutional provisions must always have a
consistent application. The membership of the Commission is intended to be fixed and not variable
and is not dependent upon the existence or non-existence of one or more parties in the Assembly.

"`A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform
interpretation, so they shall not be taken to mean one thing at one time and another thing at another
time, even though the circumstances may have so changed as to make a different rule after
desirable (11 Am. Jur. 659).

"It is undisputed of course that the primary purpose of the Convention in giving representation to the
minority party in the Electoral Commission was to safeguard the rights of the minority party and to
protect their interests, especially when the election of any member of the minority party is protested.
The basic philosophy behind the constitutional provision was to enable the minority party to act as a
check on the majority in the Electoral Commission, with the members of the Supreme Court as the
balancing factor. Inasmuch, however, as there is no minority party represented in the Assembly, the
necessity for such a check by the minority party disappears. It is a function that is expected to be
exercised by the three Justices of the Supreme Court.
"To summarize, considering the plain terms of the constitutional provision in question, the changes
that it has undergone since it was first introduced until finally adopted by the convertion, as well as,
the considerations that must have inspired the Constitutional Convention in adopting it as it is, I have
come to the conclusion that the Electoral Commission should be composed of nine members, three
from the Supreme Court and six chosen by the National Assembly to be nominated by the party in
power, there being no other party entitled to such nomination.".

Pursuant to the foregoing opinion of February 1, 1939, the Electoral Commission was formally
organized, with six members of the National Assembly all belonging to the same party and three
Justices of the Supreme Court. Constitutional amendments were introduced and duly adopted in
1940, and the Electoral Commission was replaced by an Electoral Tribunal for each house of
Congress. It is now provided that "Each Electoral Tribunal shall be composed of nine Members,
three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or of the House of Representatives, as the case may
be, who shall be chosen by each house, three upon nomination of the party having the largest
number of votes and three of the party having the second largest number of votes therein. The
senior Justice in each Electoral Tribunal shall be its Chairman." (Article VI, Section 11, of the
Constitution.).

If there was any doubt on the matter, the same was removed by the amendment of 1940 the framers
of which may be assumed to have been fully aware of the one-party composition of the former
National Assembly which gave rise to the abovequoted opinion of the Secretary of Justice. When
instead of wording the amendment in such a form as to nullify said opinion, Section 11 of Article VI
of the Constitution not only did not substantially depart from the original constitutional provision but
also positively and expressly ordains that "Each Electoral Tribunal shall be composed of nine
Members," the intent has become clear and mandatory that at all times the Electoral Tribunal shall
have nine Members regardless of whether or not two parties make up each house of Congress.

It is very significant that while the party having the second largest number of votes is allowed to
nominate three Members of the Senate or of the House of Representatives, it is not required that the
nominees should belong to the same party. Considering further that the six Members are chosen by
each house, and not by the party or parties, the conclusion is inescapable that party affiliation is
neither controlling nor necessary.

Under the theory of the petitioners, even if there were sufficient Members belonging to the party
having the second largest of votes, the latter may nominate less than three or none at all; and the
Chief Justice may similarly designate less than three Justices. If not absurd, would frustrate the
purpose of having an ideal number in the composition of the Electoral Tribunal and guarding against
the possibility of deadlocks. It would not be accurate to argue that the Members of the Electoral
Tribunal other than the Justices of the Supreme Court would naturally vote along purely partisan
lines, checked or fiscalized only by the votes of the Justices; otherwise membership in the Tribunal
may well be limited to the Justices of the Supreme Court and so others who are not Members of the
Senate or of the House of Representatives. Upon the other hand, he framers of the Constitution-not
insensitive to some such argument-still had reposed their faith and confidence in the independence,
integrity and uprightness of the Members of each House who are to sit in the Electoral Tribunals and
thereby expected them, as does everybody, to decide jointly with the Justices of the Supreme Court
election contests exclusively upon their merits.

In view of the failure or unwillingness of Senator Lorenzo M. Tañada of the Citizens Party, the party
having the second largest number of votes in the Senate, to nominate two other Members of the
Electoral Tribunal, the Senate was justified, in obedience to the constitutional mandate, to choose-as
it did-said two Members.
I vote to dismiss the petition.

Endencia, J., concurs.

LABRADOR, J., dissenting:.

I dissent and herewith proceed to explain my reasons therefor.

The constitutional provision, in pursuance of which Senators Cuenco and Delgado were elected by
the Senate members of the Senate Electoral Tribunal is as follows:.

"The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or of the House of Representatives, as the case may be, who shall be
chosen by each House, three upon nomination of the party having the largest number of votes and
three of the party having the second largest number of votes therein. The Senior Justice in each
Electoral Tribunal shall be its Chairman." (Section II, Article VI of the Constitution.).

I hold that the above provision, just as any other constitutional provision, is mandatory in character
and that this character is true not only of the provision that nine members shall compose the tribunal
but also that which defines the manner in which the members shall be chosen. Such a holding is in
accord with well-settled rules of statutory construction.

"As a general proposition, there is greater likelihood that constitutional provisions will be given
mandatory effect than is true of any other class of organic law. Indeed, such a construction accords
with the generally acknowledged import of constitutional fiat; that its character is such as to require
absolute compliance in all cases without exception. And the very principles of our institutions,
involving as they do concepts of constitutional supremacy, are such as to form reasonable grounds
for a presumption that the framers of a constitution intended that just such efficacy be given to it .."
(Sec. 5807, Sutherland Statutory Construction, Vol. 3, p.84.).

The majority helds that as Senator Tañada, the only member of the Senate who does not belong to
the Nacionalista Party, has refused to exercise the constitutional privilege afforded him to nominate
the two other members the Senate may not elect said two other members. And the reason given for
this ruling is the presumed intention of the constitutional provision to safeguard the interests of the
minority. This holding is subject to the following fundamental objections. In the first Place, it renders
nugatory the provision which fixes the membership of the Senate Electoral Tribunal at nine, a
provision which is admittedly a mandatory provision. In the second place, it denies to the Senate the
power that the constitutional provision expressly grants it, i. e., that of electing the members of the
Electoral Tribunal so in effect this right or prerogative is lodged, as a consequence of the refusal of
the minority member to nominate, in the hands of said member of the minority, contrary to the
constitutional provision. In the third place, it would make the supposedly procedural provision, the
process of nomination lodged in the minority party in the Senate, superior to and paramount over the
power of election, which is in the whole Senate itself. So by the ruling of the majority, a procedural
provision overrides a substantive one and renders nugatory the other more important mandatory
provision that the Electoral Tribunal shall be composed of nine members. In the fourth place, the
majority decision has by interpretation inserted a provision in the Constitution, which the
Constitutional Convention alone had the power to introduce, namely, a proviso to the effect that if the
minority fails or refuses to exercise its privilege to nominate all the three members, the membership
of the Electoral Tribunal shall thereby be correspondingly reduced. This arrogation of power by us is
not justified by any rule of law or reason.

I consider the opinion of the Senate that the refusal of Senator Tañada to nominate the two other
members must be construed as a waiver of a mere privilege, more in consonance not only with the
constitutional provision as a whole, but with the dictates of reason. The above principle (of waiver)
furnishes the remedy by which two parts of the constitutional provision, that which fixes membership
at nine and that which outlines the procedure in which said membership of nine may be elected, can
be reconciled. Well known is the legal principle that provisions which in their application may nullify
each other should be reconciled to make them both effective, if the reconciliation can be effected by
the application of other legal principles. The reconciliation is brought about in this case by the
principle of waiver.

While I agree with the majority that it is the duty of this Court to step in, when a constitutional
mandate is ignored, to enforce said mandate even as against the other coordinate departments, this
is not the occasion for it to do so, for to say the least it does not clearly appear that the form and
manner in which the Senate exercised its expressly recognized power to elect its members to the
Senate Electoral Tribunal has been clearly violative of the constitutional mandate.

_Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä_.

1 Casanovas vs. Hord, 8 Phil., 125; Omo vs. Insular Gov't., 11 Phil., 67; Weigall vs. Shuster, 11
Phil., 340; Barrameda vs. Moir, 25 Phil., 44; Hamilton vs. McGirr, 30 Phil., 563; Compania Gral. de
Tabacos vs. Board of Public Utility Commissioners, 34 Phil., 136; Central Capiz vs. Ramirez, 40
Phil., 883; Concepcion vs. Paredes, 42 Phil 599; McDaniel vs. Apacible, 42 Phil., 749; U. S. vs. Ang
Tan Ho, 43 Phil., 1; People vs. Pomar, 46 Phil., 440. Agcaoili vs. Saguitan, 48 Phil., 676; Gov't. vs.
Springer, 50 Phil., 259; Gov't. us. Agoncillo, 50 Phil., 348; Gov't. vs. El Hogar Filipino, 50 Phil, 399;
Manila Electric vs. Pasay Transp., 57 Phil., 600; Angara vs. Electoral Commission, supra; People vs.
Vera, 65 Phil., 56; Vargas vs. Rilloraza, 45 Off. Gaz., 3847; Endencia vs. David, 49 Off. Gaz., A822;
Rutter vs. Esteban, 49 Off. Gaz., 1807; Comm. investment vs. Garcia, 49 Off. Gaz., 1801; Marbury
vs. Madison, 1 Cranch 137; Ex Parte Garland, 4 Wall. 333; Hepburn vs. Griswold, 8 Wall. 603; Knox
vs. Lee, 12 Wall. 457; Civil Rights Cases [U. S. vs. M. Stanley; U. S. vs. M. Ryan, U. S. vs. S.
Nichols; U. S. vs. Singleton; Robinson vs. and Charleston Railroad Co.], 109 U. S. 3 Pollock vs.
Farmers' Loan and Trust Co. 157 U. S. 429, 158 U. S. 601; Fairbanks vs. U. S., 181 U. S. 286.

2 Which, insofar as pertinent to the issues in the case at bar, is substantially identical to each of the
Electoral Tribunals under the Constitution as amended.

3 Araneta vs. Dinglasan, Barredo vs. Commission on Elections, and Rodriguez vs. Teasurer of the
Philippines, 84 Phil., 368, 45 Off. Gaz., 4411, 4457; Nacionalista Party vs. Bautista, 85 Phil., 101, 47
Off. Gaz., 2356; Lacson vs. Romero, 84 Phil., 740, 47 Off. Gaz., 1778; De los Santos vs. Mallare, 87
Phil., 289, 48 Off. Gaz., 1787; Lacson vs. Roque, 92 Phil., 456, 49 Off. Gaz., 93; Jover Ledesma vs.
Borra, 93 Phil., 506, 49 Off. Gaz., 2765; Ramos vs. Avelino, 97 Phil., 844, 51 Off. Gaz., 5607.

_Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä_ 4 "From the very nature of the

American system of government with Constitutions prescribing the jurisdiction and powers of each of
the three branches of government, it has devolved on the judiciary to determine whether the acts of
the other two departments are in harmony with the fundamental law. All the departments are of the
government are unquestionably entitled and compelled to judge of the Constitution for themselves;
but, in doing so, they act under the obligations imposed in the instrument, and in the order of time
pointed out by it. When the, judiciary has once spoken, if the acts of the other two departments are
held to be unauthorized or despotic, in violation of the Constitution or the vested rights of the citizen,
they cease to be operative or binding.

xxx xxx x x x.

"Since the Constitution is intended for the observance of the judiciary as well as the other
departments of government and the judges are sworn to support its provisions, the court are not at
liberty to overlook or disregard its commands. It is their duty in authorized proceedings to give effect
to the existing Constitution and to obey all constitutional provisions irrespective of their opinion as to
the wisdom of such provisions.

"In accordance with principles which are basic, the rule is fixed that the duty in a proper case to
declare a law unconstitutional cannot be declined and must be performed in accordance with the
deliberate judgment of the tribunal before which the validity of the enactment is directly drawn into
question. When it is clear that a statute transgresses the authority vested in the legislature by the
Constitution, it is the duty of the courts to declare the act unconstitutional cause they cannot shrink
from it without violating their oaths of office. This duty of the courts to maintain the Constitution as
the fundamental law of the state is imperative and unceasing; and, as Chief Justice Marshal said,
whenever a statute is in violation of the fundamental law, the courts must so adjudge and thereby
give effect to the Constitution. Any other course would lead to the destruction of the Constitution.
Since the question as to the constitutionality of a statute is a judicial matter, the courts will not
decline the exercise of jurisdiction upon the suggestion that action might be taken by political
agencies in disregard of the judgment of the judicial tribunals." (11 Am. Jur., pp. 712-713, 713-715;
emphasis supplied).

5 Rich vs. Board of Canvassers, 59 N. W. 183; State vs. McBride, 29 Am. Dec. 636; Collier vs.
Frierson, 24 Ala. 100; State vs. Swift, 69 Ind. 505; State vs. Timme, 11 N.W. 785; Prohibition and
Amendment Cases, 24 Kan. 700; Kadderly vs. Portland, 74 Pac. 710; Koehler vs. Hill, 14 N. W. 738;
State vs. Brockhart, 84 S. W. 1064; University vs. Melver, 72 N. C. 76; Westinghausen vs. People, 6
N.W. 641; State vs. Powell, 27 South, 927; Bott vs. Wurtz, 43 Atl. 744; Rice vs. Palmer, 96 S. W.
396; State vs. Tooker, 37 Pac. 840.

6 "The procedure or manner of nomination cannot possibly affect the, constitutional mandate that the
Assembly is entitled to six in the Electoral Commission. When for lack of a minority representation in
the Assembly the power to nominate three minority members cannot be exercised, it logically follows
that the only party in the Assembly may nominate three others, otherwise the explicit mandate of the
Constitution that there shall be six members from the National Assembly would be nullified.

"In other words, fluctuations in the total membership of the Commission were not and could have
been intended; We cannot say that the Commission should have nine members during one
legislative term and six members during the next. Constitutional provisions must always have a
consistent application. The membership of the Commission is intended to be fixed and not variable
and is not dependent upon the existence or non-existence of one or more parties in the Assembly.

`A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform
interpretation, so they shall not be taken to mean one thing at one time and another thing at another
time, even though the circumstance may have so changed as to make a different rule seem
desirable (11 Am. Jur. 659).'.

"It is undisputed of course that the primary purpose of the Convention in giving representation to the
minority party in the Electoral Commission was to safeguard the rights of the minority party and to
protect their interests, especially when the election of any member of the minority party is protected.
The basic philosophy behind the constitutional provision was to enable the minority party to act as a
check on the majority of the Electoral Commission, with the members of the Supreme Court as the
balancing factor. Inasmuch, however, as there is no minority party represented in the Assembly, the
necessity for such a check by the minority party disappears. It is a function that is expected to be
exercised by the three Justices of the Supreme Court.

"To summarize, considering the plain terms of the constitutional provision in question, the changes
that it has undergone since it was first introduced until finally adopted by the Convention, as well as
the considerations that must have inspired the Constitutional Convention in adopting it as it is, I have
come to the conclusion that the Electoral Commission should be composed of nine members, three
from the Supreme Court and six chosen by the National Assembly to be nominated by the party in
power, there being no other party entitled to such nomination." Annex A to the Answers pp. 2-3.

6a Since 1939, when said opinion was rendered, the question therein raised has not been taken up
or discussed, until the events leading to the case at bar (in February 1956).

6b "Thus, in Suanes vs. Chief Accountant (supra)-in which the respondents maintained that the
Electoral Commission formed part of the National Assembly, citing in support thereof the principle of
contemporaneous and practical construction-this Court deemed it unnecessary to refute the same in
order to adopt the opposite view.

7 Senator Laurel reiterated this view on the floor of the Senate, on February 22. 1956, in the
following language:.

"And hence this provision that we find in the Constitution, three to represent, in the manner
prescribed in the Constitution, the party that received the highest number of votes, meaning the
majority party which is the Nacionalista Party now, and three to represent the party receiving the
next highest number of votes therein, meaning the minority party, the party receiving the next
highest number of votes. But there was a great deal of opinion that it would be better if this political
organization, so far as the legislative department is concerned, could be tempered by a sort of a
judicial reflection which could be done by drafting three, as to each Electoral Tribunal, from the
Supreme Court. And that, I think, was the reason because a great majority of the delegates to the
constitutional convention accepted that principle. That is why we have nine members in each
electoral tribunal, in the House and in the Senate. And one reason that I remember then and I am
speaking from memory, Mr. President, was that it is likely that the three members representing a
party would naturally favor the protestants or protestees, and so on. So it would be better that even
on that hypothesis or on that supposition it would be better, in case they annul each other because
three votes in favor or three votes against, depending on the party of the protestants or the
protestees, that the Supreme Court decide the case because then it would be a judicial decision in
reality. Another reason is founded on the theory that the Justices of the Supreme Court are
supposed to be beyond influence, although that may not be true. But having reached the highest
judicial position of the land, these persons would likely act impartially." (Congressional Record for
the Senate Vol. III, p. 376.).

8 When the legislative power was vested in a unicameral body, known as the National Assembly.

9 Upon the substitution of the National Assembly by a bicameral Congress, consisting of the Senate
and the House of Representatives.

10 Senator Lim said:.

"But in the spirit, Your Honor can see very well that those three should belong to the party having the
second largest number of votes, precisely, as Your Honor said, to maintain equilibrium because
partisan considerations naturally enter into the mind and heart of a senator belonging to a particular
party. Although grammatically, I agree with Your Honor, Your Honor can see that the spirit of the
provision of the Constitution is clear that the three must come from the party having the highest
number of votes and the other three nominated must belong to the party having the second highest
number of votes. Your Honor can see the point. If we allow Your Honor to back up your argument
that equilibrium should be maintained, because partisan considerations enter when one is with the
majority party, and that no party should prevail, Your Honor should also have to consider that the
spirit of the Constitution is precisely to obviate that to the extent that the only three can be nominated
from the party having the largest number of votes and three from the party having the second largest
number of votes." (Congressional Record of the Senate, Vol. Ill, p, 337; emphasis supplied.).

_Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä_.

The statement of Senator Sabido was:.

".. the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a
balance between the two parties and make the members of the Supreme Court the controlling power
so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal situation.".

xxx xxx x x x.

".. I said that the ideal composition in the contemplation of the framers of the Constitution is that
those participating in the electoral tribunal shall belong to the members of the party who are before
the electoral tribunal either as protestants or protestees, in order to insure impartiality in the
proceeding and justice in the decision that may be finally rendered." (Congressional Record for the
Senate, Vol. III, pp. 349, 352; emphasis supplied.).

_Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä_.

Senator Cea declared:.

".. the original purpose of the Constitution is to nominate only members of the two major parties in
the Senate in the Electoral Tribunal." (Congressional Record for the Senate, Vol. III, p. 350;
emphasis supplied.).

The words of Senator Paredes were:.

".. what was intended in the creation of the electoral tribunal was to create a sort of collegiate court
composed of nine members three of them belonging to the party having largest number of votes,
and three from, the party having the second largest number of votes so that these members my
represent the party, and the members of said party who will sit before the electoral tribunal as
protestees. For when it comes to a party, Mr. President, there is ground to believe that decisions will
be made along party lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis
supplied.).

11 The need of adopting this view is demanded, not only by the factors already adverted to, but,
also, by the fact that constitutional provisions, unlike statutory enactments, are presumed to be
mandatory, "unless the contrary is unmistakably manifest." The pertinent rule of statutory
construction is set forth in the American Jurisprudence as follows:.
"In the interpretation of Constitutions, questions frequently arise as to whether particular sections are
mandatory or directory. The courts usually hesitate to declare that a constitutional provision is
directory merely in view of the tendency of the legislature to disregard provisions which are not said
to be mandatory. Accordingly, it is the general rule to regard constitutional provisions as mandatory,
and not to leave any direction to the will of a legislature to obey or to disregard them. This
presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the
provisions are intended to be merely directory. The analogous rules distinguishing mandatory and
directory statutes are of little value in this connection and are rarely applied in passing upon the
provisions of a Constitution.

"So strong is the inclination in favor of giving obligatory force to the terms of the organic law that it
has even been said that neither by the courts nor by any other department of the government may
any provision of the Constitution be regarded as merely directory, but that each and everyone of its
provisions should be treated as imperative and mandatory, without reference to the rules and
distinguishing between the directory and the mandatory statutes." (II Am. Jur. 686-687; emphasis
supplied.).

12 Which admittedly, has the second largest number of votes in the Senate.

13 In Angara vs. Electoral Commission (supra, 169) Senator, then Justice, Laurel, speaking for this
Court, recalled that:.

"In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by
reducing the representation of the minority party and the Supreme Court in the Electoral
Commission to two members each, so as to accord more representation to the majority party. The
Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46), thus
maintaining the non-partisan character of the commission."(emphasis supplied.).

Needless to say, what the Constitutional Convention thus precluded from being done by direct action
or grant of authority in the Charter of our Republic should not receive judicial sanction, when done by
resolution of one House of Congress, a mere creature of said charter.

14 Namely, the other two (2) Justices of the Supreme Court and Senators Laurel, Lopez and
Primicias, or a total of six (6) members of the Tribunal.
Film Development Council v Colon Heritage Realty Corporation

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 203754 June 16, 2015

FILM DEVELOPMENT COUNCIL OF THE PHILIPPINES, Petitioner,

vs.
COLON HERITAGE REALTY CORPORATION, operator of Oriente Group Theaters,
represented by ISIDORO A. CANIZARES, Respondent.

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

FILM DEVELOPMENT COUNCIL OF THE PHILIPPINES, Petitioner,

vs.
CITY OF CEBU and SM PRIME HOLDINGS, INC., Respondents.

DECISION

VELASCO, JR., J.:

The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts
with the Constitution. In the discharge of their defined functions, the three departments of
government have no choice but to yield obedience to the commands of the Constitution. Whatever
limits it imposes must be observed.1
 The Case

Once again, We are called upon to resolve a clash between the Inherent taxing power of the
legislature and the constitutionally-delegated power to tax of local governments in these
consolidated Petitions for Review on Certiorari under Rule 45 of the Rules of Court seeking the
reversal of the Decision dated September 25, 2012 of the Regional Trial Court (RTC), Branch 5 in
Cebu City, in Civil Case No. CEB-35601, entitled Colon Heritage Realty Corp., represented by
Isidoro Canizares v. Film Development Council of the' Philippines, and Decision dated October 24,
2012 of the RTC, Branch 14 in Cebu City, in Civil Case No. CEB-35529, entitled City of Cebu v. Film
Development Council of the Philippines, collectively declaring Sections 13 and 14 of Republic Act
No. (RA) 9167 invalid and unconstitutional.

The Facts

The facts are simple and undisputed.

Sometime in 1993, respondent City of Cebu, in its exercise of its power to impose amusement taxes
under Section 140 of the Local Government Code2 (LGC) anchored on the constitutional policy on
local autonomy,3 passed City Ordinance No. LXIX otherwise known as the "Revised Omnibus Tax
Ordinance of the City of Cebu (tax ordinance)." Central to the case at bar are Sections 42 and 43,
Chapter XI thereof which require proprietors, lessees or operators of theatres, cinemas, concert
halls, circuses, boxing stadia, and other places of amusement, to pay an amusement tax equivalent
to thirty percent (30%) of the gross receipts of admission fees to the Office of the City Treasurer of
Cebu City. Said provisions read:

CHAPTER XI - Amusement Tax

Section 42. Rate of Tax. - There shall be paid to the Office of the City Treasurer by the proprietors,
lessees, or operators of theaters, cinemas, concert halls, circuses, boxing stadia and other places of
amusement, an amusement tax at the rate of thirty percent (30%) of the gross receipts from
admission fees.4

Section 43. Manner of Payment. - In the case of theaters or cinemas, the tax shall first be deducted
and withheld by their proprietors, lessees, or operators and paid to the city treasurer before the
gross receipts are divided between said proprietor, lessees, operators, and the distributors of the
cinematographic films.

Almost a decade later, or on June 7, 2002, Congress passed RA 9167,5 creating the Film
Development Council qf the Philippines (FDCP) and abolishing the Film Development Foundation of
the Philippines, Inc. and the Film Rating Board. Secs. 13 and 14 of RA 9167 provided for the tax
treatment of certain graded films as follows:

Section 13. Privileges of Graded Films. - Films which have obtained an "A" or "B" grading from the
Council pursuant to Sections 11 and 12 of this Act shall be entitled to the following privileges:

a. Amusement tax reward. - A grade "A" or "B" film shall entitle its producer to an incentive
equivalent to the amusement tax imposed and collected on the graded films by cities and
municipalities in Metro Manila and other highly urbanized and independent component cities in the
Philippines pursuant to Sections 140 to 151 of Republic Act No. 7160 at the following rates:

1. For grade "A" films - 100% of the amusement tax collected on such film; and
 2. For grade "B" films - 65% of the amusement tax collected on such films. The
remaining thirty-five (35%) shall accrue to the funds of the Council.

Section 14. Amusement Tax Deduction and Remittance. - All revenue from the amusement tax on
the graded film which may otherwise accrue to the cities and municipalities in Metropolitan Manila
and highly urbanized and independent component cities in the Philippines pursuant to Section 140 of
Republic Act. No. 7160 during the period the graded film is exhibited, shall be deducted and withheld
by the proprietors, operators or lessees of theaters or cinemas and remitted within thirty (30) days
from the termination of the exhibition to the Council which shall reward the corresponding
amusement tax to the producers of the graded film within fifteen (15) days from receipt thereof.

Proprietors, operators and lessees of theaters or cinemas who fail to remit the amusement tax
proceeds within the prescribed period shall be liable to a surcharge equivalent to five percent (5%) of
the amount due for each month of delinquency which shall be paid to the Council. (emphasis added)

According to petitioner, from the time RA 9167 took effect up to the present, all the cities and
municipalities in Metro Manila, as well as urbanized and independent component cities, with the sole
exception of Cebu City, have complied with the mandate of said law.

Accordingly, petitioner, through the Office of the Solicitor General, sent on January 2009 demand
letters for unpaid amusement tax reward (with 5% surcharge for each month of delinquency) due to
the producers of the Grade "A" or "B" films to the following cinema proprietors and operators in Cebu
City:

Amusement
Tax Reward Number
Cinema (with 5% of CEB
Period Covered
Proprietor/Operator surcharge for Graded
each moth of Films
delinquency)
SM Prime Holdings Inc. 76,836,807.08 89 Sept. 11, 2003 - Nov. 4, 2008
Ayala Center Cinemas 43,435,718.23 70 May 14, 2003 - Nov. 4, 2008
Colon Heritage Realty 8,071,267.00 50 Aug. 11, 2004-Nov. 4, 2008
Corp.
Eden Theater 428,938.25 4 May 5, 2005 - Sept. 2, 2008
Cinema Theater 3,100,354.80 22 Feb. 18, 2004-Oct. 7, 2008
Visaya Cineplex Corp. 17,582,521.89 86 June 25, 2005 - Oct. 21, 2008
Ultra Vistarama Cinema 68,821.60 2 July 2 - 22, 2008
Cebu Central Realty Corp. 9,853,559.69 48 Jan. 1, 2004 - Oct. 21, 2008

In said letters, the proprietors and cinema operators, including private respondent Colon Heritage
Realty Corp. (Colon Heritage), operator of the Oriente theater, were given ten (10) days from receipt
thereof to pay the aforestated amounts to FDCP. The demand, however, fell on deaf ears.
Meanwhile, on March 25, 2009, petitioner received a letter from Regal Entertainment, Inc., inquiring
on the status of its receivables for tax rebates in Cebu cinemas for all their A and B rate films along
with those which it co-produced with GMA films. This was followed by a letter from

Star Cinema ABS-CBN Film Productions, Inc., requesting the immediate remittance of its
amusement tax rewards for its graded films for the years 2004-2008.

Because of the persistent refusal of the proprietors and cinema operators to remit the said amounts
as FDCP demanded, on one hand, and Cebu City's assertion of a claim on the amounts in question,
the city finally filed on May 18, 2009 before the RTC, Branch 14 a petition for declaratory relief with
application for a writ of preliminary injunction, docketed as Civil Case No. CEB-35529 (City of Cebu
v. FDCP). In said petition, Cebu City sought the declaration of Secs. 13 and 14 of RA 9167 as invalid
and unconstitutional.

Similarly, Colon Heritage filed before the RTC, Branch 5 Civil Case No. CEB-35601 (Colon Heritage
v. FDCP), seeking to declare Sec. 14 of RA 9167 as unconstitutional.

On May 25, 2010, the RTC, Branch 14 issued a temporary restraining order (TRO) restraining and
enjoining FDCP, et al. from, inter alia:

(a) Collecting amusement tax incentive award in the City of Cebu and from imposing
surcharges thereon;

(b) Demanding from the owners, proprietors, and lessees of theaters and cinemas located
and operated within Cebu City, payment of said amusement tax incentive award which
should have been deducted, withheld, and remitted to FDCP, etc. by the owners, etc., or
being operated within Cebu City and imposing surcharges on the unpaid amount; and

(c) Filing any suit due to or arising from the failure of the owners, etc., of theaters or cinemas
within Cebu City, to deduct, withhold, and remit the incentive to FDCP.

Meanwhile, on August 13, 2010, SM Prime Holdings, Inc. moved for leave to file and admit attached
comment-in-intervention and was later granted.6

Rulings of the Trial Courts

In City of Cebu v. FDCP, the RTC, Branch 14 issued the challenged Decision7 declaring Secs. 13
and 14 of RA 9167 unconstitutional, disposing as follows:

WHEREFORE, in view of all the disquisitions, judgment is rendered in favor of petitioner City of
Cebu against respondent Film Development Council of the Philippines, as follows:

1. Declaring Sections 13 and 14 of the (sic) Republic Act No. 9167 otherwise known as an
Act Creating the Film Development Council of the Philippines, Defining its Powers and
Functions, Appropriating Funds Therefor and for other purposes, as violative of Section 5
Article X of the 1997 (sic) Philippine Constitution; Consequently

2. Declaring that defendant Film Development Council of the Philippines (FDCP) cannot
collect under Sections 13 and 14 of R.A. 9167 as of the finality of the decision in G.R. Nos.
203754 and 204418;
 3. Declaring that Intervenor SM Cinema Corporation has the obligation to remit the
amusement taxes, withheld on graded cinema films to respondent FDCP under Sections 13
and 14 of R.A. 9167 for taxes due prior to the finality of the decision in G.R. Nos. 203754 and
204418;

4. Declaring that after the finality of the decision in G.R. Nos. 203 754 and 204418, all
amusement taxes withheld and those which may be collected by Intervenor SM on graded
films shown in SM Cinemas in Cebu City shall be remitted to petitioner Cebu City pursuant to
City Ordinance LXIX, Chapter XI, Section 42.

As to the sum of PhP 76,836,807.08 remitted by the Intervenor SM to petitioner City of Cebu, said
amount shall be remitted by the City of Cebu to petitioner FDCP within thirty (30) days from finality of
this decision in G.R. Nos. 203754 and 204418 without interests and surcharges.

SO ORDERED.

According to the court, what RA 9167 seeks to accomplish is the segregation of the amusement
taxes raised and collected by Cebu City and its subsequent transfer to FDCP. The court concluded
that this arrangement cannot be classified as a tax exemption but is a confiscatory measure where
the national government extracts money from the local government's coffers and transfers it to
FDCP, a private agency, which in turn, will award the money to private persons, the film producers,
for having produced graded films.

The court further held that Secs. 13 and 14 of RA 9167 are contrary to the basic policy in local
autonomy that all taxes, fees, and charges imposed by the LGUs shall accrue exclusively to them,
as articulated in A1iicle X,. Sec. 5 of the 1987 Constitution. This edict, according to the court, is a
limitation upon the rule-making power of Congress when it provides guidelines and limitations on the
local government unit's (LGU's) power of taxation. Therefore, when Congress passed this
"limitation," if went beyond its legislative authority, rendering the questioned provisions
unconstitutional.

By the same token, in Colon Heritage v. FDCP, the RTC, Branch 5, in its Decision of September 25,
2012, also ruled against the constitutionality of said Secs. 13 and 14 of RA 9167 for the following
reasons: (a) while Congress, through the enactment of RA 9167, may have amended Secs.
140(a)8 and 1519 of the LGC, in the exercise of its plenary power to amend laws, such power must be
exercised within constitutional parameters; (b) the assailed provision violates the constitutional
directive that taxes should accrue exclusively to the LGU concerned; (c) the Constitution, through its
Art. X, Sec. 5,10 directly conferred LGUs with authority to levy taxes-the power is no longer delegated
by the legislature; (d) In CIR v. SM Prime Holdings,11 the Court ruled that amusement tax on
cinema/theater operators or proprietors remain with the LGU, amusement tax, being, by nature, a
local tax. The fallo of the questioned judgment reads:

WHEREFORE, in view of all the foregoing, Judgment is hereby rendered in favor of petitioner, as
follows:

(1) Declaring Republic Act No. 9167 as invalid and unconstitutional;

(2) The obligation to remit amusement taxes for the graded films to respondent is ordered
extinguished;

(3) Directing respondent to refund all the amounts paid by petitioner, by way of amusement
tax, plus the legal rate of interest thereof, until the whole amount is paid in full.
Notify parties and counsels of this order.

SO ORDERED.

The Issue

Undeterred by two defeats, petitioner has come directly to this Court, presenting the singular issue:
whether or not the RTC (Branches 5 and 14) gravely erred in declaring Secs. 13 and 14 of RA 9167
invalid for being unconstitutional.

Anent Sec. 13,12 FDCP concedes that the amusement taxes assessed in RA 9167 are to be given to
the producers of graded films who are private persons. Nevertheless, according to FDCP, this
particular tax arrangement is not a violation of the rule on the use of public funds for RA 9167 was
enacted for a public purpose, that is, the promotion and support of the "development and growth of
the local film industry as a medium for the upliftment of aesthetic, cultural, and social values for the
better understanding and appreciation of the Filipino identity" as well as the "encouragement of the
production of quality films that will promote the growth and development' of the local film
industry."13 Moreover, FDCP suggests that "even if the resultant effect would be a certain loss of
revenue, [LGUs] do not feel deprived nor bitter for they realize that the benefits for the film industry,
the fortification of our values system, and the cultural boost for the nation as a whole, far outweigh
the pecuniary cost they would shoulder by backing this law."14 Finally, in support of its stance, FDCP
invites attention to the following words of former Associate Justice Isagani A. Cruz: "[t]he mere fact
that the tax will be directly enjoyed by a private individual does not make it invalid so long as some
link to the public welfare is established."15

As regards Sec. 1416 of RA 9167, FDCP is of the position that Sec. 5, Article X of the Constitution
does not change the doctrine that municipal corporations only possess delegated, not inherent,
powers of taxation and that the power to tax is still primarily vested in the Congress. Thus, wielding
its power to impose limitations on this delegated power, Congress further restricted the LGU's power
to impose amusement taxes via Secs. 13 and 14 of RA 9167-an express and real intention of
Congress to further contain the LGU's delegated taxing power. It, therefore, cannot be construed as
an undue limitation since it is well within the power of Congress to make such restriction.
Furthermore, the LGC is a mere statute which Congress can amend, which it in fact did when it
enacted RA 916417 and, later, the questioned law, RA 9167.18

This, according to FDCP, evinces the overriding intent of Congress to remove from the LGU' s
delegated taxing power all revenues from amusement taxes on grade "A" or "B" films which would
otherwise accrue to the cities and municipalities in Metropolitan Manila and highly urbanized and
independent component cities in the Philippines pursuant to Secs. 140 and 151 of the LGC.

In fine, it is petitioner's posture that the inclusion in RA 9167 of the questioned provisions was a valid
exercise of the legislature's power to amend laws and an assertion of its constitutional authority to
set limitations on the LGU' s authority to tax.

The Court's Ruling

We find no reason to disturb the assailed rulings.

Local fiscal autonomy and the constitutionally-delegated power to tax

The power of taxation, being an essential and inherent attribute of sovereignty, belongs, as a matter
of right, to every independent government, and needs no express conferment by the people before it
can be exercised. It is purely legislative and, thus, cannot be delegated to the executive and judicial
branches of government without running afoul to the theory of separation of powers. It, however, can
be delegated to municipal corporations, consistent with the principle that legislative powers may be
delegated to local governments in respect of matters of local concern.19 The authority of provinces,
cities, and municipalities to create their own sources of revenue and to levy taxes, therefore, is not
inherent and may be exercised only to the extent that such power might be delegated to them either
by the basic law or by statute.20 Under the regime of the 1935 Constitution, there was no
constitutional provision on the delegation of the power to tax to municipal corporations. They only
derived such under a limited statutory authority, outside of which, it was deemed withheld.21 Local
governments, thus, had very restricted taxing powers which they derive from numerous tax laws.
This highly-centralized government structure was later seen to have arrested the growth and efficient
operations of LG Us, paving the way for the adoption of a more decentralized system which granted
LGUs local autonomy, both administrative and fiscal autonomy.22

Material to the case at bar is the concept and scope of local fiscal autonomy. In Pimentel v.
Aguirre,23 fiscal autonomy was defined as "the power [of LGUs] to create their own sources of
revenue in addition to their equitable share in the national taxes released by the national
government, as well as the power to allocate their resources in accordance with their own priorities.
It extends to the preparation of their budgets, and local officials in tum have to work within the
constraints thereof."

With the adoption of the 1973 Constitution,24 and later the 1987 Constitution, municipal corporations
were granted fiscal autonomy via a general delegation of the power to tax.25 Section 5, Article XI of
the 1973 Constitution gave LGUs the "power to create its own sources of revenue and to levy taxes,
subject to such limitations as may be provided by law.'' This authority was further strengthened in the
1987 Constitution, through the inclusion in Section 5, Article X thereof of the condition that " [s]uch
taxes, fees, and charges shall accrue exclusively to local governments."26

Accordingly, under the present Constitution, where there is neither a grant nor a prohibition by
statute, the tax power of municipal corporations must be deemed to exist although Congress may
provide statutory limitations and guidelines.27 The basic rationale for the current rule on local fiscal
autonomy is the strengthening of LGUs and the safeguarding of their viability and self-sufficiency
through a direct grant of general and broad tax powers. Nevertheless, the fundamental law did not
intend the delegation to be absolute and unconditional. The legislature must still see to it that (a) the
taxpayer will not be over-burdened or saddled with multiple and unreasonable impositions; (b) each
LGU will have its fair share of available resources; ( c) the resources of the national government will
not be unduly disturbed; and ( d) local taxation will be fair, uniform, and just.28

In conformity to the dictate of the fundamental law for the legislature to "enact a local government
code which shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization,"29 consistent with the basic policy of local autonomy,
Congress enacted the LGC, Book II of which governs local taxation and fiscal matters and sets forth
the guidelines and limitations for the exercise of this power. In Pelizloy Realty Corporation v. The
Province of Benguet,30 the Court alluded to the fundamental principles governing the taxing powers
of LGUs as laid out in Section 130 of the LGC, to wit:

1. Taxation shall be uniform in each LGU.

2. Taxes, fees, charges and other impositions shall:

 a. be equitable and based as far as practicable on the taxpayer's ability to pay;

b. be levied and collected only for public purposes;

c. not be unjust, excessive, oppressive, or confiscatory;

d. not be contrary to law, public policy, national economic policy, or in the restraint of
trade.

3. The collection of local taxes, fees, charges and other impositions shall in no case be let to
any private person.

4. The revenue collected pursuant to the provisions of the LGC shall inure solely to the
benefit of, and be subject to the disposition by, the LGU levying the tax, fee, charge or other
imposition unless otherwise specifically provided by the LGC.

5. Each LGU shall, as far as practicable, evolve a progressive system of taxation.

It is in the application of the adverted fourth rule, that is-all revenue collected pursuant to the
provisions of the LGC shall inure solely to the benefit of, and be subject to the disposition by, the
LGU levying the tax, fee, charge or other imposition unless otherwise specifically provided by the
LGC-upon which the present controversy grew.

RA 9167 violates local fiscal autonomy

It is beyond cavil that the City of Cebu had the authority to issue its City Ordinance No. LXIX and
impose an amusement tax on cinemas pursuant to Sec. 140 in relation to Sec. 151 of the LGC. Sec.
140 states, among other things, that a "province may levy an amusement tax to be collected from
the proprietors, lessees, or operators of theaters, cinemas, concert halls, circuses, boxing stadia,
and other places of amusement at a rate of not more than thirty percent (30%) of the gross receipts
from admission fees." By operation of said Sec. 151,31 extending to them the authority of provinces
and municipalities to levy certain taxes, fees, and charges, cities, such as respondent city
government, may therefore validly levy amusement taxes subject to the parameters set forth under
the law. Based on this authority, the City of Cebu passed, in 1993, its Revised Omnibus Tax
Ordinance,32 Chapter XI, Secs. 42 and 43 of which reads:

CHAPTER XI - Amusement Tax

Section 42. Rate of Tax. - There shall be paid to the Office of the City Treasurer by the proprietors,
lessees, or operators of theaters, cinemas, concert halls, circuses, boxing stadia and other places of
amusement, an amusement tax at the rate of thirty percent (30%) of the gross receipts from
admission fees.33

Section 43. Manner of Payment. - In the case of theaters or cinemas, the tax shall first be deducted
and withheld by their proprietors, lessees, or operators and paid to the city treasurer before the
gross receipts are divided between said proprietor, lessees, operators, and the distributors of the
cinematographic films.

Then, after almost a decade of cities reaping benefits from this imposition, Congress, through RA
9167, amending Section 140 of the LGC,34 among others, transferred this income from the cities and
municipalities in Metropolitan Manila and highly urbanized and independent component cities, such
as respondent City of Cebu, to petitioner FDCP, which proceeds will ultimately be rewarded to the
producers of graded films. We reproduce anew Secs. 13 and 14 of RA 9167, thus:

Section 13. Privileges of Graded Films. - Films which have obtained an "A" or "B" grading from the
Council pursuant to Sections 11 and 12 of this Act shall be entitled to the following privileges: a.
Amusement tax reward. - A grade "A" or "B" film shall entitle its producer to an incentive equivalent
to the amusement tax imposed and collected on the graded films by cities and municipalities in
Metro Manila and other highly urbanized and independent component cities in the Philippines
pursuant to Sections 140 to 151 of Republic Act No. 7160 at the following rates:

1. For grade "A" films - 100% of the amusement tax collected on such film; and

2. For grade "B" films - 65% of the amusement tax collected on such films. The remaining
thirty-five (35%) shall accrue to the funds of the Council.

Section 14. Amusement Tax Deduction and Remittance. -All revenue from the amusement tax on
the graded film which may otherwise accrue to the cities and municipalities in Metropolitan Manila
and highly urbanized and independent component cities in the Philippines pursuant to Section 140 of
Republic Act. No. 7160 during the period the graded film is exhibited, shall be deducted and withheld
by the proprietors, operators or lessees of theaters or cinemas and remitted within thirty (30) days
from the termination of the exhibition to the Council which shall reward the corresponding
amusement tax to the producers of the graded film within fifteen (15) days from receipt thereof.

Proprietors, operators and lessees of theaters or cinemas who fail to remit the amusement tax
proceeds within the prescribed period shall be liable to a surcharge equivalent to five percent (5%) of
the amount due for each month of delinquency which shall be paid to the Council.

Considering the amendment, the present rule is that ALL amusement taxes levied by covered cities
and municipalities shall be 2iven by proprietors, operators or lessees of theatres and cinemas to
FDCP, which shall then reward said amount to the producers of graded films in this wise:

1. For grade "A" films, ALL amusement taxes collected by ALL covered LGUs on said films
shall be given to the producer thereof. The LGU, therefore, is entitled to NOTHING from its
own imposition.

2. For grade "B" films, SIXTY FIVE PERCENT (65%) of ALL amusement taxes derived by
ALL covered LGUs on said film shall be given to the producer thereof. In this case, however,
the LGU is still NOT entitled to any portion of the imposition, in view of Sec. 16 of RA 9167
which provides that the remaining 35% may be expended for the Council's operational
expenses. Thus: Section 16. Funding. - The Executive Secretary shall immediately include in
the Office of the President's program the implementation of this Act, the funding of which
shall be included in the annual General Appropriations Act.

To augment the operational expenses of the Council, the Council may:

a. Utilize the remaining thirty-five (35%) percent of the amusement tax collected during the period of
grade "B" film is exhibited, as provided under Sections 13 and 14 hereof x x x.

For petitioner, the amendment is a valid legislative manifestation of the intention to remove from the
grasp of the taxing power of the covered LGUs all revenues from amusement taxes on grade "A" or
"B" films which would otherwise accrue to them. An evaluation of the provisions in question,
however, compels Us to disagree.

RA 9167, Sec. 14 states:

Section 14. Amusement Tax Deduction and Remittance. - All revenue from the amusement tax on
the graded film which may otherwise accrue to the cities and municipalities in Metropolitan Manila
and highly urbanized and independent component cities in the Philippines pursuant to Section 140 of
Republic Act. No. 7160 during the period the graded film is exhibited, shall be deducted and withheld
by the proprietors, operators or lessees of theaters or cinemas and remitted within thirty (30) days
from the termination of the exhibition to the Council which shall reward the corresponding
amusement tax to the producers of the graded film within fifteen (15) days from receipt thereof.

A reading of the challenged provision reveals that the power to impose amusement taxes was NOT
removed from the covered LGUs, unlike what Congress did for the taxes enumerated in Sec. 133,
Article X of the LGC,35 which lays down the common limitations on the taxing powers of LGUs. Thus:

Section 133. Common Limitations on the Taxing Powers of Local Government Units. -Unless
otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and
barangays shall not extend to the levy of the following:

(a) Income tax, except when levied on banks and other financial institutions;

(b) Documentary stamp tax;

(c) Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis causa, except
as otherwise provided herein;

(d) Customs duties, registration fees of vessel and wharfage on wharves, tonnage dues, and
all other kinds of customs fees, charges and dues except wharfage on wharves constructed
and maintained by the local government unit concerned;

(e) Taxes, fees, and charges and other impositions upon goods carried into or out of, or
passing through, the territorial jurisdictions of local government units in the guise of charges
for wharfage, tolls for bridges or otherwise, or other taxes, fees, or charges in any form
whatsoever upon such goods or merchandise;

(f) Taxes, fees or charges on agricultural and aquatic products when sold by marginal
farmers or fishermen;

(g) Taxes on business enterprises certified to by the Board of Investments as pioneer or non-
pioneer for a period of six (6) and four (4) years, respectively from the date of registration;

(h) Excise taxes on articles enumerated under the national Internal Revenue Code, as
amended, and taxes, fees or charges on petroleum products;

(i) Percentage or value-added tax (VAT) on sales, barters or exchanges or similar

transactions on goods or services except as otherwise provided herein;
 (j) Taxes on the gross receipts of transportation contractors and persons engaged in the
transportation of passengers or freight by hire and common carriers by air, land or water,
except as provided in this Code;

(k) Taxes on premiums paid by way or reinsurance or retrocession;

(l) Taxes, fees or charges for the registration of motor vehicles and for the issuance of all
kinds of licenses or permits for the driving thereof, except tricycles;

(m) Taxes, fees, or other charges on Philippine products actually exported, except as
otherwise provided herein;

(n) Taxes, fees, or charges, on Countryside and Barangay Business Enterprises and
cooperatives duly registered under R.A. No. 6810 and Republic Act Numbered Sixty-nine
hundred thirty-eight (R.A. No. 6938) otherwise known as the "Cooperative Code of the
Philippines" respectively; and

(o) Taxes, fees or charges of any kind on the National Government, its agencies and
instrumentalities, and local government units. (emphasis ours)

From the above, the difference between Sec. 133 and the questioned amendment of Sec. 140 of the
LGC by RA 9167 is readily revealed. In Sec. · 133, what Congress did was to prohibit the levy by
LGUs of the enumerated taxes. For RA 9167, however, the covered LGUs were deprived of the
income which they will otherwise be collecting should they impose amusement taxes, or, in
petitioner's own words, "Section 14 of [RA 9167] can be viewed as an express and real intention on
the part of Congress to remove from the LGU's delegated taxing power, all revenues from the
amusement taxes on graded films which would otherwise accrue to [them] pursuant to Section 140
of the [LGC]."36

In other words, per RA 9167, covered LGUs still have the power to levy amusement taxes, albeit at
the end of the day, they will derive no revenue therefrom. The same, however, cannot be said for
FDCP and the producers of graded films since the amounts thus levied by the LGUs which should
rightfully accrue to them, they being the taxing authority-will be going to their coffers. As a matter of
fact, it is only through the exercise by the LGU of said power that the funds to be used for the
amusement tax reward can be raised. Without said imposition, the producers of graded films will
receive nothing from the owners, proprietors and lessees of cinemas operating within the territory of
the covered LGU.

Taking the resulting scheme into consideration, it is apparent that what Congress did in this instance
was not to exclude the authority to levy amusement taxes from the taxing power of the covered
LGUs, but to earmark, if not altogether confiscate, the income to be received by the LGU from the
taxpayers in favor of and for transmittal to FDCP, instead of the taxing authority. This, to Our mind, is
in clear contravention of the constitutional command that taxes levied by LGUs shall accrue
exclusively to said LGU and is repugnant to the power of LGUs to apportion their resources in line
with their priorities.

It is a basic precept that the inherent legislative powers of Congress, broad as they may be, are
limited and confined within the four walls of the Constitution.37 Accordingly, whenever the legislature
exercises its power to enact, amend, and repeal laws, it should do so without going beyond the
parameters wrought by the organic law.
In the case at bar, through the application and enforcement of Sec. 14 of RA 9167, the income from
the amusement taxes levied by the covered LGUs did not and will under no circumstance accrue to
them, not even partially, despite being the taxing authority therefor. Congress, therefore, clearly
overstepped its plenary legislative power, the amendment being violative of the fundamental law's
guarantee on local autonomy, as echoed in Sec. 130(d) of the LGC, thus: Section 130. Fundamental
Principles. - The following fundamental principles shall govern the exercise of the taxing and other
revenue-raising powers of local government units:

xxxx

(d) The revenue collected pursuant to the provisions of this Code shall inure solely to the benefit of,
and be subject to the disposition by, the local government unit levying the tax, fee, charge or other
imposition unless otherwise specifically provided herein x x x.

Moreover, in Pimentel,38 the Court elucidated that local fiscal autonomy includes the power of LGUs
to allocate their resources in accordance with their own priorities. By earmarking the income on
amusement taxes imposed by the LGUs in favor of FDCP and the producers of graded films, the
legislature appropriated and distributed the LGUs' funds-as though it were legally within its control-
under the guise of setting a limitation on the LGUs' exercise of their delegated taxing power. This,
undoubtedly, is a usurpation of the latter's exclusive prerogative to apportion their funds, an
impermissible intrusion into the LGUs' constitutionally-protected domain which puts to naught the
guarantee of fiscal autonomy to municipal corporations enshrined in our basic law.

Grant of amusement tax reward incentive:

not a tax exemption

It was argued that subject Sec. 13 is a grant by Congress of an exemption from amusement taxes in
favor of producers of graded films. Without question, this Court has previously upheld the power of
Congress to grant exemptions over the power of LGUs to impose taxes.39 This amusement tax
reward, however, is not, as the lower court posited, a tax exemption. Exempting a person or entity
from tax is to relieve or to excuse that person or entity from the burden of the imposition. Here,
however, it cannot be said that an exemption from amusement taxes was granted by Congress to
the producers of graded films. Take note that the burden of paying the amusement tax in question is
on the proprietors, lessors, and operators of the theaters and cinemas that showed the graded films.
Thus, per City Ordinance No. LXIX: CHAPTER XI - Amusement Tax

Section 42. Rate of Tax. - There shall be paid to the Office of the City Treasurer by the proprietors,
lessees, or operators of theaters, cinemas, concert halls,, circuses, boxing stadia and other places of
amusement, an amusement tax at the rate of thirty percent (30%) of the gross receipts from
admission fees.

Section 43. Manner of Payment. - In the case of theaters or cinemas, the tax shall first be deducted
and withheld by their proprietors, lessees, or operators and paid to the city treasurer before the
gross receipts are divided between said proprietor, lessees, operators, and the distributors of the
cinematographic films.

Similarly, the LGC provides as follows:

Section 140. Amusement Tax. –

 (a) The province may levy an amusement tax to be collected from the proprietors, lessees, or
operators of theaters, cinemas, concert halls, circuses, boxing stadia, and other places of
amusement at a rate of not more than thirty percent (30%) of the gross receipts from
admission fees.

(b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by their
proprietors, lessees, or operators and paid to the provincial treasurer before the gross
receipts are divided between said proprietors, lessees, or operators and the distributors of
the cinematographic films.

Simply put, both the burden and incidence of the amusement tax are borne by the proprietors,
lessors, and operators, not by the producers of the graded films. The transfer of the amount to the
film producers is actually a monetary reward given to them for having produced a graded film, the
funding for which was taken by the national government from the coffers of the covered LGUs.
Without a doubt, this is not an exemption from payment of tax.

Declaration by the RTC, Branch 5 of the

entire RA 9167 as unconstitutional

Noticeably, the RTC, Branch 5, in its September 25, 2012 Decision in Colon Heritage v. FDCP, ruled
against the constitutionality of the entire law, not just the assailed Sec. 14. The fallo of the judgment
reads:

WHEREFORE, in view of all the foregoing, Judgment is hereby rendered in favor of petitioner, as
follows:

(1) Declaring Republic Act No. 9167 as invalid and unconstitutional;

(2) The obligation to remit amusement taxes for the graded films to respondent is ordered
extinguished;

(3) Directing respondent to refund all the amounts paid by petitioner, by way of amusement
tax, plus the legal rate of interest thereof, until the whole amount is paid in full.

In this regard, it is well to emphasize that if it appears that the rest of the law is free from the taint of
unconstitutionality, then it should remain in force and effect if said law contains a separability clause.
A separability clause is a legislative expression of intent that the nullity of one provision shall not
invalidate the other provisions of the act. Such a clause is not, however, controlling and the courts, in
spite of it, may invalidate the whole statute where what is left, after the void part, is not complete and
workable.40

In this case, not only does RA 9167 have a separability clause, contained in Section 23 thereof
which reads:

Section 23. Separability Clause. -If, for any reason, any provision of this Act, or any part thereof, is
declared invalid or unconstitutional, all other sections or provisions not affected thereby shall remain
in force and effect.

it is also true that the constitutionality of the entire law was not put m question in any of the said
cases.
Moreover, a perusal of RA 9167 easily reveals that even with the removal of Secs. 13 and 14 of the
law, the remaining provisions can survive as they mandate other matters like a cinema evaluation
system, an incentive and reward system, and local and international film festivals and activities that
"will promote the growth and development of the local film industry and promote its participation in
both domestic and foreign markets," and to "enhance the skills and expertise of Filipino talents."41

Where a part of a statute is void as repugnant to the Constitution, while another part is valid, the
valid portion, if separable from the invalid, may stand-and be enforced. The exception to this is when
the parts of a statute are so mutually dependent and connected, as conditions, considerations,
inducements, or compensations for each other, as to warrant a belief that the legislature intended
them as a whole, in which case, the nullity of one part will vitiate the rest.42

Here, the constitutionality of the rest of the provisions of RA 9167 was never put in question. Too,
nowhere in the assailed judgment of the RTC was it explicated why the entire law was being
declared as unconstitutional.

It is a basic tenet that courts cannot go beyond the issues in a case,43 which the RTC, Branch 5 did
when it declared RA 9167 unconstitutional. This being the case, and in view of the elementary rule
that every statute is presumed valid,44 the declaration by the R TC, Branch 5 of the entirety of RA
9167 as unconstitutional, is improper.

Amounts paid by Colon Heritage

need not be returned

Having ruled that the questioned provisions are unconstitutional, the RTC, Branch 5, in Colon
Heritage v. FDCP, ordered the return of all amounts paid by respondent Colon Heritage to FDCP by
way of amusement tax. Thus:

WHEREFORE, in view of all the foregoing, Judgment is hereby rendered in favor of petitioner, as
follows:

(1) Declaring Republic Act No. 9167 as invalid and unconstitutional;

(2) The obligation to remit amusement taxes for the graded films to respondent is ordered
extinguished;

(3) Directing respondent to refund all the amounts paid by petitioner, by way of amusement
tax, plus the legal rate of interest thereof, until the whole amount is paid in full.

As regards the refund, the Court cannot subscribe to this position.

It is a well-settled rule that an unconstitutional act is not a law; it . confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all.
Applying this principle, the logical conclusion would be to order the return of all the amounts remitted
to FDCP and given to the producers of graded films, by all of the covered cities, which actually
amounts to hundreds of millions, if not billions. In fact, just for Cebu City, the aggregate deficiency
claimed by FDCP is ONE HUNDRED FIFTY NINE MILLION THREE HUNDRED SEVENTY SEVEN
THOUSAND NINE HUNDRED EIGHTY-EIGHT PESOS AND FIFTY FOUR CENTAVOS
(₱159,377,988.54). Again, this amount represents the unpaid amounts to FDCP by eight cinema
operators or proprietors in only one covered city.
An exception to the above rule, however, is the doctrine of operative fact, which applies as a matter
of equity and fair play. This doctrine nullifies the effects of an unconstitutional law or an executive act
by recognizing that the existence of a statute prior to a determination of unconstitutionality is an
operative fact and may have consequences that cannot always be ignored. It applies when a
declaration of unconstitutionality will impose an undue burden on those who have relied on the
invalid law.45

In Hacienda Luisita v. PARC, the Court elucidated the meaning and scope of the operative fact
doctrine, viz:

The "operative fact" doctrine is embodied in De Agbayani v. Court of Appeals, wherein it is stated
that a legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid
and must be complied with, thus:

xxx xxx xxx

This doctrine was reiterated in the more recent case of City of Makati v. Civil Service Commission,
wherein we ruled that:

Moreover, we certainly cannot nullify the City Government's order of suspension, as we have no
reason to do so, much less retroactively apply such nullification to deprive private respondent of a
compelling and valid reason for not filing the leave application. For as we have held, a void act
though in law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions
done in reliance thereof. Consequently, the existence of a statute or executive order prior to its being
adjudged void is an operative fact to which legal consequences are attached. It would indeed be
ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a
formal leave application.

The applicability of the operative fact doctrine to executive acts was further explicated by this Court
in Rieta v. People, thus:

Petitioner contends that his arrest by virtue of Arrest . Search and Seizure Order (ASSO) No. 4754
was invalid, as the law upon which it was predicated-General Order No. 60, issued by then President
Ferdinand E. Marcos - was subsequently declared by the Court, in Tanada v. Tuvera, 33 to have no
force and effect. Thus, he asserts, any evidence obtained pursuant thereto is inadmissible in
evidence.

We do not agree. In Tanada, the Court addressed the possible effects of its declaration of the
invalidity of various presidential issuances. Discussing therein how such a declaration might affect
1a\^/phi 1

acts done on a presumption of their validity, the Court said:

" ... In similar situations in the past this Court had taken the pragmatic and realistic course set forth in
Chicot County Drainage District vs. Baxter Bank to wit:

'The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. . . . It is quite clear, however, that such
broad statements as to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to [the determination of its invalidity], is an
operative fact and may have consequences which cannot justly be ignored. The past cannot always
be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have
to be considered in various aspects – with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations deemed to
have finality and acted upon accordingly, of public policy in the light of the nature both of the statute
and of its previous application, demand examination. These questions are among the most difficult
of those which have engaged the attention of courts, state and federal, and it is manifest from
numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity
cannot be justified.'

xxx xxx xxx

"Similarly, the implementation/ enforcement of presidential decrees prior to their publication in the
Official Gazette is 'an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."

The Chicot doctrine cited in Tanada advocates that, prior to the nullification of a statute, there is an
imperative necessity of taking into account its actual existence as an operative fact negating the
acceptance of "a principle of absolute retroactive invalidity." Whatever was done while the legislative
or the executive act was in operation should be duly recognized and presumed to be valid in all
respects. The ASSO that was issued in 1979 under General Order No. 60 - long before our Deeision
n Taiiada and the arrest of petitioner - is an operative fact that can no longer be disturbed or simply
ignored. (citations omitted; emphasis in the original.)

Bearing in mind that PARC Resolution No. 89-12-2-an executive act-was declared invalid in the
instant case, the operative fact doctrine is clearly applicable.46

Here, to order FDCP and the producers of graded films which may have already received the
amusement tax incentive reward pursuant to the questioned provisions of RA 9167, to return the
amounts received to the respective taxing authorities would certainly impose a heavy, and possibly
crippling, financial burden upon them who merely, and presumably in good faith, complied with the
legislative fiat subject of this case. For these reasons, We are of the considered view that the
application of the doctrine of operative facts in the case at bar is proper so as not to penalize FDCP
for having complied with the legislative command in RA 9167, and the producers of graded films who
have already received their tax cut prior to this Decision for having produced top-quality films.

With respect to the amounts retained by the cinema proprietors due to petitioner FDCP, said
proprietors are required under the law to remit the same to petitioner. Obeisance to the rule of law
must always be protected and preserved at all times and the unjustified refusal of said proprietors
cannot be tolerated. The operative fact doctrine equally applies to the non-remittance by said
proprietors since the law produced legal effects prior to the declaration of the nullity of Secs. 13 and
14 in these instant petitions. It can be surmised, however, that the proprietors were at a loss whether
or not to remit said amounts to FDCP considering the position of the City of Cebu for them to remit
the amusement taxes directly to the local government. For this reason, the proprietors shall not be
liable for surcharges.

In view of the declaration of nullity of unconstitutionality of Secs. 13 and 14 of RA 9167, all

amusement taxes remitted to petitioner FDCP prior to the date of the finality of this decision shall
remain legal and valid under the operative fact doctrine. Amusement taxes due to petitioner but
unremitted up to the finality of this decision shall be remitted to petitioner within thirty (30) days from
date of finality. Thereafter, amusement taxes previously covered by RA 9167 shall be remitted to the
local governments.
WHEREFORE, premises considered, the consolidated petitions are hereby PARTIALLY GRANTED.
The questioned Decision of the RTC, Branch 5 of Cebu City in Civil Case No. CEB-35601 dated
September 25, 2012 and that of the R TC, Branch 14, Cebu City in Civil Case No. CEB-35529 dated
October 24, 2012, collectively declaring Sections 13 and 14 of Republic Act No. 9167 invalid and
unconstitutional, are hereby AFFIRMED with MODIFICATION.

As modified, the decisions of the lower courts shall read:

1. Civil Case No. CEB-35601 entitled Colon Heritage Realty Corp. v. Film Development Council of
the Philippines:

WHEREFORE, in view of all the foregoing, Judgment is hereby rendered in favor of Colon Heritage
Realty Corp. and against the Film Development council of the Philippines, as follows: 1. Declaring
Sections 13 and 14 of Republic Act No. 9167 otherwise known as an Act Creating the Film
Development Council of the Philippines, Defining its Powers and Functions, Appropriating Funds
therefor arid for other purposes, as invalid and unconstitutional;

2. Declaring that the Film Development Council of the Philippines cannot collect under
Sections 13 and 14 of R.A. 9167 as of the finality of the decision in G.R. Nos. 203754 and
204418;

3. Declaring that Colon Heritage Realty Corp. has the obligation to remit the amusement
taxes withheld on graded cinema films to FDCP under Sections 13 and 14 of R.A. 9167 for
taxes due prior to the finality of this Decision, without surcharges;

4. Declaring that upon the finality of this decision, all amusement taxes withheld and those
which may be collected by Colon Heritage Realty Corp. on graded films shown in its cinemas
in Cebu City shall be remitted to Cebu City pursuant to City Ordinance LXIX, Chapter XI,
Section 42.

2. Civil Case No. CEB-35529 entitled City of Cebu v. Film Development Council of the Philippines:

WHEREFORE, in view of all the disquisitions, judgment is rendered in favor of the City of Cebu
against the Film development Council of the Philippines, as follows:

1. Declaring Sections 13 and 14 of Republic Act No. 9167 otherwise known as an Act
Creating the Film Development Council of the Philippines, Defining its Powers and
Functions, Appropriating Funds therefor and for other purposes, void and unconstitutional;

2. Declaring that the Film Development Council of the Philippines cannot collect under
Sections 13 and 14 of R.A. 9167 as of the finality of this Decision;

3. Declaring that Intervenor SM Cinema Corporation has the obligation to remit the
amusement taxes, withheld on graded cinema films to respondent FDCP under Sections 13
and 14 of R.A. 9167 for taxes due prior to the finality of this Decision, without surcharges;

4. Declaring that after the finality of this Decision, all amusement taxes withheld and those
which may be collected by Intervenor SM on graded films shown in SM Cinemas in Cebu
City shall be remitted to petitioner Cebu City pursuant to City Ordinance LXIX, Chapter XI,
Section 42.
As to the sum of PhP 76,836,807.08 remitted by the Intervenor SM to petitioner City of Cebu, said
amount shall be remitted by the City of Cebu to petitioner FDCP within thirty (30) days from finality of
this decision in G.R. Nos. 203754 and 204418 without interests and surcharges. Since Sections 13
and 14 of Republic Act No. 9167 were declared void and unconstitutional, all remittances of
amusement taxes pursuant to said Sections 13 and 14 of said law prior to the date of finality of this
Decision shall remain valid and legal. Cinema proprietors who failed to remit said amusement taxes
to petitioner FDCP prior to the date of finality of this Decision are obliged to remit the same, without
surcharges, to petitioner FDCP under the doctrine of operative fact.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

ANTONIO T. CARPIO TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

(On Official Leave)

ARTURO D. BRION
DIOSDADO M. PERALTA*
Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

(On Official Leave)

ESTELA M. PERLAS-BERNABE
MARVIC M.V.F. LEONEN*
Associate Justice
Associate Justice

(No Part)
FRANCIS H. JARDELEZA**
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the cases were assigned to the writer of
the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

Footnotes

* On official leave.

** No part.

1
Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency (PDEA), G.R. No. 157870, November 3, 2008, 570 SCRA 410.

2
Section 140. Amusement Tax.* - (a) The province may levy an amusement' tax to be
collected from the proprietors, lessees, or operators of theaters, cinemas, concert halls,
circuses, boxing stadia, and other places of amusement at a rate of not more than thirty
percent (30%) of the gross receipts from admission fees.

(b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by
their proprietors, lessees, or operators and paid to the provincial treasurer before the
gross receipts are divided between said proprietors, lessees, or operators and the
distributors of the cinematographic films.

(c) The holding of operas, concerts, dramas, recitals, painting and art exhibitions,
flower shows, musical programs, literary and oratorical presentations, except pop,
rock, or similar concerts shall be exempt from the payment of the tax hereon
imposed.

(d) The sangguniang panlalawigan may prescribe the time, manner, terms and
conditions for the payment of tax. In case of fraud or failure to pay the tax, the
sangguniang panlalawigan may impose such surcharges, interest and penalties as it
may deem appropriate.

(e) The proceeds from the amusement tax shall be shared equally by the province
and the municipality where such amusement places are located. [RA 7160]

* Section 140 of RA 7160 was later amended by RA 9640 [An Act Amending Section
140 (A) of Republic Act No. 7160, Otherwise Known as "The Local Government
Code of 1991 "]. RA 9640 lapsed into law on May 21, 2009. Presently, Sec. 140
reads:

SEC. 140. Amusement Tax. -(a) The province may levy an amusement tax to be
collected from the proprietors, lessees, or operators of theaters, cinemas, concert
halls, circuses, boxing stadia, and other places of amusement at a rate of not more
than ten percent (10%) of the gross receipts from the admissions fees

(b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by
their proprietors, lessees, or operators and paid to the provincial treasurer before the
gross receipts are divided between said proprietors, lessees, or operators and the
distributors of the cinematographic films.
 (c) The holding of operas, concerts, dramas, recitals, paintings, and art exhibitions,
flower shows, musical programs, literary and oratorical presentations, except pop,
rock, or similar concerts shall be exempt from the payment of the tax herein imposed.

(d) The sangguniang panlalawigan may prescribe the time, manner, terms and
conditions for the payment of tax. In case of fraud or failure to pay the tax, the
sangguniang panlalawigan may impose such surcharges, interest and penalties as it
may deem appropriate.

(e) The proceeds from the amusement tax shall be shared equally by the province
and the municipality where such amusement places are located.

3
Section 5, Article X of the 19&7 Constitution. Each local government unit shall have the
power to create its own sources of revenues and to levy taxes, 'fees, and charges subject to
such guidelines and limitations as the Congress may provide, consistent with the basic policy
of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.

4
The rate was later reduced to 10% pursuant to an amendatory ordinance.

5
An Act Creating the Film Development Council of the Philippines, Defining Its Powers and
Functions, Appropriating Funds Therefor, and for Other Purposes.

6
In its October 21, 2010 Order.

7
Dated October 24, 2012, by Presiding Judge Raphael B. Ysrastorza, Sr.

8
SEC. 140. Amusement Tax. -(a) The province may levy an amusement tax to be collected
from the proprietors; lessees, or operators of theaters, cinemas, concert halls, circuses,
boxing stadia, and other places of amusement at a rate of not more than thirty percent (30%)
of the gross receipts from admission fees.

9
SEC. 151. Scope of Taxing Powers. - Except as otherwise provided in this Code, the city,
may levy the taxes, fees, and charges which the province or municipality may impose:
Provided, however, That the taxes, fees and charges levied and collected by highly
urbanized and independent component cities shall accrue to them and distributed in
accordance with the provisions of this Code. The rates of taxes that the city may levy may
exceed the maximum rates allowed for the province or municipality by not more than fifty
percent (50%) except the rates of professional and amusement taxes.

10
Section 5. Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as
the Congress may provide, consistent with the basic policy of local autonomy. Such taxes,
fees and charges shall accrue exclusively to the local governments.

G.R. No. 183505, February 26, 2010, 613 SCRA 774. Penned by Associate Justice
11

Mariano C. Del Castillo. There, the Court held:

The repeal of the Local Tax Code by the LGC of 1991 is not ·a legal basis for the
imposition of VAT on the gross receipts of cinema/theater operators or proprietors
derived from admission tickets. The removal of the prohibition under the Local Tax
 Code did nor grant nor restore to the national government the power to impose
amusement tax on cinema/theater operators or proprietors. Neither did it expand the
coverage of VAT. Since the imposition of a tax is a burden 9n the taxpayer, it cannot
be presumed nor can it be extended by implication. A law will not be construed as
imposing a tax unless it does so clearly, expressly, and unambiguously. As it is, the
power to impose amusement tax on cinema/theater operators or proprietors remains
with the local government.

12
Section 13. Privileges of Graded Films. - Films which have obtained an "A" or "8" grading
from the Council pursuant to Sections 11 and 12 of this Act shall be entitled to the following
privileges:

a. Amusement tax reward. - A grade "A" or "8" film shall entitle its producer to an
incentive equivalent to the amusement tax imposed and collected on the graded films
by cities and municipalities in Metro Manila and other highly urbanized and
independent component cities in the Philippines pursuant to Sections 140 and 151 of
Republic Act No. 7160 at the following rates:

1. For grade "A" films - I 00% of the amusement tax collected on such films; and

2. For grade "8" films. -65% of the amusement tax collected on such films. The
remaining thirty-five (35%) shall accrue to the funds of the Council.

13
Rollo (G.R. No. 204418), pp. 43, 44.

14
Id. at 44, 45.

15
Id. at 45; citing Cruz, Isagani A., Constitutional Law (2007).

16
Section 14. Amusement Tax Deduction and Remittances. - All revenue from the
amusement tax on the graded film which may otherwise accrue to the cities and
municipalities in Metropolitan Manila and highly urbanized and independent component cities
in the Philippines pursuant to Section 140 of Republic Act. No. 7160 during the period the
graded film is exhibited, shall be deducted and withheld by the proprietors, operators or
lessees of theaters or cinemas and remitted within thirty (30) days from the termination of the
exhibition to the Council which shall reward the corresponding amusement tax to the
producers of the graded film within fifteen (15) days from receipt thereof.

Proprietors, operators and lessees of theaters or cinemas who fail to remit the
amusement tax proceeds within the prescribed period shall be liable to a surcharge
equivalent to five percent (5%) of the amount due for each month of delinquency
which shall be paid to the Council.

An Act Amending Section 140 (A) of Republic Act No. 7160, Otherwise Known As "The
17

Local Government Code Of 1991." RA 9640 lapsed into law on May 21, 2009. With the
amendment, Sec. 140 now reads as follows:

SEC. 140. Amusement Tax. -(a) The province may levy an amusement tax to be
collected from the proprietors, lessees, or operators of theaters, cinemas, concert
halls, circuses, boxing stadia, and other places of amusement at a rate of not more
than ten percent (10%) of the gross receipts from the admissions fees.
 (b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by
their proprietors, lessees, or operators and paid to the provincial treasurer before the
gross receipts are divided between said proprietors, lessees, or operators and the
distributors of the cinematographic films.

(c) The holding of operas, concerts, dramas, recitals, paintings, and art exhibitions,
flower shows, musical programs, literary and oratorical presentations, except pop,
rock, or similar concerts shall be exempt from the payment of the tax herein imposed.

(d) The sangguniang panlalawigan may prescribe' the time, manner, terms and
conditions for the payment of tax. In case of fraud or failure to pay the tax, the
sangguniang panlalawigan may impose such surcharges, interest and penalties as it
may deem appropriate.

(e) The proceeds from the amusement tax shall be shared equally by the province
and the municipality where such amusement places are located.

Section 22. Repealing Clause. - Executive Order No. 811 is hereby repealed. Executive
18

Order 1051 and Section 140 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, are hereby amended accordingly.

All other laws, decrees, orders issuances, rules and regulations which are
inconsistent with the provisions of this Act are hereby repealed, amended or modified
accordingly.

Pepsi-Cola Bottling Company of the Philippines, Inc. v. Municipality of Tanauan, Leyte, The
19

Municipal Mayor, et al., No. L-31156, February 27, 1976, 69 SCRA 460.

Manila Electric Company v. Province of Laguna, G.R. No. 131359, May 5, 1999, 306
20

SCRA 750.

21
Id.

22
The Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

23
G.R. No. 132988, July 19, 2000, 336 SCRA 201.

It was also during this time that then President Ferdinand E. Marcos issued Presidential
24

Decree No. 231 dated July I, 1973, enacting a local tax code for provinces, cities,
municipalities, and barrios, which codified the various tax laws and echoed the constitutional
policy on local autonomy.

25
See Manila Electric Company v. Province of Laguna, supra note 20.

26
Each local government unit shall have the power to create its own sources of revenues and
to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress
may provide, consistent with the basic policy of local autonomy. Such taxes, fees and
charges shall accrue exclusively to the local governments. [Section 5, Article X, 1987
Constitution]; see Napocor v. City of Cabanatuan, G.R. No. 149110, April 9, 2003, 40 I
SCRA 259 [Taxation assumes even greater significance with the ratification of the 1987
Constitution. Thenceforth, the power to tax is no longer vested exclusively on Congress;
local legislative bodies are now given direct authority to levy taxes, fees and other charges x
x x. This paradigm shift results from the realization that genuine development can be
achieved only by strengthening local autonomy and promoting decentralization of
governance. For a long time, the country's highly centralized government structure has bred
a culture of dependence among local government leaders upon the national leadership. It
has also "dampened the spirit of initiative, innovation and imaginative resilience in matters of
local development on the part of local government leaders.]; the 1987 Constitution
enunciates the policy that the territorial and political subdivisions shall enjoy local autonomy.
In obedience to that mandate of the fundamental law, the LGC expresses that the territorial
and political subdivisions of the State shall enjoy genuine and meaningful local autonomy in
order to enable them to attain their fullest development as self-reliant communities and make
them more effective partners in the attainment of national goals, and that it is a basic aim of
the State to provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government units shall be given
more powers, authority, responsibilities and resources. (LTO v. City of Butuan, G.R. No.
131512, January 20, 2000)

27
See The City Government of Quezon City, et al. v. Bayan Telecommunications, Inc., G.R.
No. 162015, March 6, 2006, 484 SCRA 169 [The Court has taken stock of the fact that by
virtue of Section 5, Article X of the 1987 Constitution, local governments are empowered to
levy taxes.]

28
See Manila Electric Company v. Province of Laguna, supra note 20.

29
See Article X, Section 3 of the 1987 Constitution [Section 3. The Congress shall enact a
local government code which shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and operation of the
local units.]; See also Napocor v. City of Cabanatuan, G.R. No. 149110, April 9, 2003, 401
SCRA 259 [Considered as the most revolutionary piece of legislation on local autonomy, the
LGC effectively deals with the fiscal constraints faced by LGUs. 1t widens the tax base of
LGUs to include taxes which were prohibited by previous laws such as the imposition of
taxes on forest products, forest concessionaires, mineral products, mining operations, and
the like. The LGC likewise provides enough flexibility to impose tax rates in accordance with
their needs and capabilities. It does not prescribe graduated fixed rates but merely specifies
the minimum and maximum tax rates and leaves the determination of the actual rates to the
respective sanggunian.]

G.R. No. 183137, April 10, 2013, 695 SCRA 491, penned by Associate Justice Marvic
30

M.V.F. Leonen.

31
Section 151. Scope of Taxing Powers. - Except as otherwise provided in this Code, the
city, may levy the taxes, fees, and charges which the province or municipality may impose:
Provided, however, That the taxes, fees and charges levied and collected by highly
urbanized and independent component cities shall accrue to them and distributed in
accordance with the provisions of this Code.
 The rates of taxes that the city may levy may exceed the maximum rates allowed for
the province or municipality by not more than fifty percent (50%) except the rates of
professional and amusement taxes. [Local Government Code of 1991]

32
City Ordinance No. LXIX."

33
The rate was later reduced to 10% pursuant to an amendatory ordinance.

Section 22. Repealing Clause. - Executive Order No. 811 is hereby repealed. Executive
34

Order 1051 and Section 140 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, are hereby amended accordingly. [RA 9167]

See Pelizloy Realty Corporation v. The Province of Benguet, supra note 30, where the
35

Court recognized the power of Congress to remove from the taxing power of LG Us the
authority to levy certain taxes.

36
Rollo (G.R. No. 203754), p. 218.

37
See Social Justice Society (SJS) v. Dangerous Drugs Board, supra note 1; citing
Government v. Springer, 50 Phil. 259 (1927). [As early as 1927, in Government v. Springer,
the Court has defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the Government,
like the boundaries of the ocean, are unlimited. In constitutional governments,
however, as well as governments acting under delegated authority, the powers of
each of the departments x x x are limited and confined within the four walls of the
constitution or the charter, and each department can only exercise such powers as
are necessarily implied from the given powers. The Constitution is the shore of
legislative authority against which the waves of legislative enactment may dash, but
over which it cannot leap.]

38
Supra note 23.

39
See The City Government of Quezon City, et al. v. Bayan Telecommunications, Inc., supra
note 27 [For sure, in Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of
Davao, this Court has upheld the power of Congress to grant exemptions over. the power of
local government units to impose taxes. There, the Court wrote:,

Indeed, the grant of taxing powers to local government units under the Constitution
and the LGC does not affect the power of Congress to grant exemptions to certain
persons, pursuant to a declared national policy. The legal effect of the constitutional
grant to local governments simply means that in interpreting statutory provisions on
municipal taxing powers, doubts must be resolved in favor of municipal corporations.]

Ruben E. Agpalo, Statutory Construction, 1 1990, cited in Associate Justice Kapunan's

40

concurring and dissenting opinion in Tatad v. Secretary, G.R. No. 124360, December 3,
1997.

41
Sec. 3 of RA 9167.

42
Ruben E. Agpalo, Statutory Construction, supra note 40.
 Bolaos v. Bernarte, G.R. No. 180997, November 17, 2010, 635 SCRA 264; See also
43

Trenas v. People, G.R. No. 195002, January 25, 2012.

See Farinas v. The Executive Secretary, 463 Phil. 179, 197 (2003); cited in Lawyers
44

against Monopoly and Poverty v. Secretary, G:R. No. 164987, April 24, 2012.

Claudio S. Yap v. Thenamaris Ship's Management and Intermare Maritime Agencies, Inc.,
45

G.R. No. 179532. May 30, 2011, 649 SCRA 369.

46
Resolution dated November 22, 2011, G.R. No. 171101.

Ocampo v Enriquez
 EN BANC

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, v. 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, v. 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, v. 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, v. 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, v. 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, v. 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, v. 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, Respondent.

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 Malacañan 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: ChanRoblesVirt ualawli bra ry

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 c hanro blesvi rt uallawl ibra ry

On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the following directives to the
Philippine Army (PA) Commanding General: ChanRobles Vi rtua lawlib rary

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:

chanRoble svirtual Lawlib ra ry [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
chanRoble svirtual Lawlib ra ry

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 chanro bleslaw

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,13as 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,
chanRoble svirtual Lawlib ra ry

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 cralawlawli bra ry

(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.20chanrob leslaw

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 Ascralaw red

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,27locus 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.33chanrob leslaw

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.39 chanro bles law

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 chan robles law

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 2,4711,48 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.

Tañada v. Angara58 already ruled that the provisions in Article II of the Constitution are not self-executing.
Thus: ChanRoblesVi rtua lawlib rary

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 chan roblesv irt uallawl ibrary

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 chanrob leslaw

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 chan roble slaw

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 chanrob leslaw

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 c hanro bles law

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 chanrobles law

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 chanro bles law

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 chanrob leslaw

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: ChanRobles Vi rtu alawlib rary
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 chanro blesvi rt uallawli bra ry

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: ChanRobles Vi rtualaw lib rary

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:

chanRoble svirtual Lawlib ra ry 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 chanrob leslaw

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 chan roble slaw
 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.101cha nro bleslaw

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 chanrobles law

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 chan roble slaw
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.129chanrobles law

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 chanro bleslaw

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 chanrobles law

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:

chanRoble svirtual Lawlib ra ry (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.143cha nrob leslaw

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 chanro bles law

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
chanRoble svirtual Lawlib ra ry

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 cha nro blesvi rtua llawli bra ry

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 chan robles law

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: ChanRobles Vi rtualaw lib rary

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
chanRoble svirtual Lawlib ra ry

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:

chanRoble svirtual Lawlib ra ry (i) Medal of Honor;163 cha nrob leslaw

(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:

chanRoble svirtual Lawlib ra ry (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
chanRoble svirtual Lawlib ra ry

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
chanRoble svirtual Lawlib ra ry

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:

chanRoble svirtual Lawlib ra ry (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 chan roble slaw

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 (P20,000.00), 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 cha nrob leslaw

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
(P500,000.00) 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 cralawlawlib rary
 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
chan robles law

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: ChanRoblesVirt ualawli bra ry

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
chanRoble svirtual Lawlib ra ry

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
chanro bleslaw

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 militarymemorials, 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 chanrobles law

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.

Endnotes:

*
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).

Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral
22

Domain (GRP), et al., supra.

23
Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519-520.

Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Acestral
24

Domain (GRP), et al., supra note 21.

25
Tañada v. Cuenco, 100 Phil. 1101 (1957); Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at
cralaw red

526.
26
Id.; id.

27
Black's Law Dictionary, 941 (1991 6th ed.).

Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 527.
28

Id. at 527, citing La Bugal-B'Laan, Inc. v. Sec. Ramos, 465 Phil. 860, 890 (2004).
29

Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 528.
30

31
Rene A.V. Saguisag, Sr. and Rene A.Q. Saguisag, Jr.

Prof David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 762 (2006).

32

Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000).

33

34
Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110.

The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015, 747 SCRA 1, 46.
35

36
258 Phil 479 (1989).

37
REP. TEDDY BRAWNER BAGUILAT JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP.
EMMANUEL A. BILLONES.

BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 648 (2000).
38

Biraogo v. The Philippine Truth Commission, 651 Phil. 374, 439 (2010).
39

Maglalang v. Philippine Amusement and Gaming Corp., 723 Phil. 546, 556 (2013).
40

Id.
41

Id. at 557.
42

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 non-
exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and
adequate remedy; (k) when strong public interest is involved; and, (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
Tañada 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).

Philippine Constitution Association v. Enriquez, G.R. No. 113105, 113174, 113766, and 113888, August
62

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
chanRoble svirtual Lawlib ra ry

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 cralawlawli bra ry

(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. Tañada III, Edcel C. Lagman, Rene L.
Relampagos, Joseph Emilio A. Abaya, Walden F. Bello, Kaka J. Bag-ao, Teodoro A. Casiño, 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:

chanRoble svirtual Lawlib ra ry (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.

Remman Enterprises, Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al., 726 Phil.
84

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
chanRoble svirtual Lawlib ra ry

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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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.

VI. Treatment of victims

92

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.

Id.
96

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.

E.O. No. 58 issued on August 16, 1954 (See Arula v. Brig. Gen. Espino, etc., et al., 138 Phil. 570, 589-
104

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.

Proclamation No. 618 dated October 13, 1969, as amended by Proclamation No. 1272 dated June 4,
112

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.

http://server.pvao.mil.ph/PDF/shrines/usafipnl.pdf, last accessed on September 19, 2016.

128

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).

P.D. No. 105 is an issuance of Marcos, acting as the AFP Commander-in-Chief and by virtue of his powers
135

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: ChanRoblesVirtualawl ibra ry

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.

Id.
142

143
10 U.S.C.A. § 4723.

144
36 C.F.R. § 12.2.

Id.
145

Id.
146

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: ChanRoble sVirtualawli bra ry

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: ChanRobles Vi rtualaw lib rary

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 Doña Josefa Edralin Marcos; (4) that on September 9, Doña 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).

Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771 & 181527,
157

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
chanRoble svirtual Lawlib ra ry

eligible person, even though the individual is:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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
chanRoble svirtual Lawlib ra ry

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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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").

Emphasis supplied.
185

Almario, et al. v. Executive Secretary, et al., supra note 46, at 163.

186

Vol. IV Record, September 19, 1986, pp. 829-831; See also Bernas, Joaquin G., S.J., The Intent of the
187

1986 Constitution Writers. 1995. pp. 116-117.

DISSENTING OPINION

SERENO, C.J.:

The whole thesis of respondents on the substantive issues lies in the absence of an express prohibition
against the burial of former President Marcos; hence, they argue that this Court cannot characterize the
current President's decision to have him buried at the Libingan ng mga Bayani (LMB) as one made in grave
abuse of discretion.
Nothing can be more wrong, and no view more diminishing of the Judiciary's mandated role under the 1987
Constitution.

If the absence of an express prohibition were to be the primary or sole determinant of the merits of this
case, then even the processing clerk of the administrative office supervising the LMB could decide this
matter by simply ticking off the appropriate box in a Yes or No question that asks: "Is there an express
statute that prohibits a President from burying a former bemedalled soldier or president in the Libingan ng
Mga Bayani? If yes, bury. If no, do not bury."

To the contrary, the case can only be decided by deeply and holistically analyzing the extent and
implications of the legal phenomenon called the power to exercise presidential discretion, and how it should
be measured in this case.

In light of allegations that the decision to bury the late President will run counter to the Constitution,
statutory standards and judicial pronouncements, this Court must take a step back in history to understand
what the Constitution that it is defending stands for; whether it is in danger of being violated in spirit or in
letter; and whether this danger is of such kind and degree that the exercise of presidential discretion should
be restrained. This Court must also compare the statutory standards that have been raised and determine
whether the course of action proposed by the President would run counter to those standards. This Court
must also examine the doctrines and language employed in many of its decisions if it is to guard against
heresy directed at the spirit of the Constitution that could undermine not just one doctrine, but perhaps the
moral legitimacy of the Court itself.

This is how consequential any statement coming from the Court on this issue could be.

The Court's bounden duty is not only to preserve the Constitution, but also itself.

It has been posited that the Court should not meddle in a political maneuver that the President is compelled
to make. Whether it is a maneuver that is animated by the need to maintain credibility in the eyes of
important supporters, or whether it is necessary to advance unity in this country, is not a motivation that
the President should be accountable for.

Likewise, it has been proposed that this Court should look beyond the past and shift its focus to today's
political reality - that the present decision maker is the most powerful and the most popular politician in the
republic; that for him to undertake the reforms he has promised requires that he be able to deliver on his
promises; that the key to unity in this day and age is to forgive the past and give former President Marcos
the honors due the office that he held and the bemedalled soldiering he rendered; and that in any event, the
state has enacted many measures not only to compensate Martial Law victims but also to advance the cause
of human rights.

At the initial stage of any discussion in this Court, these kinds of arguments are usually met with skepticism
by its Members under the express unction of the Constitution as interpreted in the post-Marcos
decisions.1 For the relevant judicial powers provisions of the 1987 Constitution impels the Court to relegate
the political question argument, and any semblance of such argument - deference, political wisdom, etc. to a
status of non-importance, especially if it fails to satisfy the threshold test. Simply put, that test is whether
indeed the question is one addressed to purely political exercises internal to the workings of the
legislature;2 or whether, on the part of the President, there are no legal standards against which his
particular action can be evaluated.3 Indeed, the Court has, in questions of grave national importance,
generally exercised judicial review when the allegations of grave abuse of discretion are sufficiently serious.

For the implications of this case goes to the very fulcrum of the powers of Government: the Court must do
what is right by correctly balancing the interests that are present before it and thus preserve the stability of
Philippine democracy.

If the Court unduly shies away from addressing the principal question of whether a decision to bury the
former President would contradict the anti Martial Law and human rights underpinnings and direction of the
1987 Constitution, it would, wittingly or unwittingly, weaken itself by diminishing its role as the protector of
the constitutional liberties of our people. It would dissipate its own moral strength and progressively be
weakened, unable to promptly speak against actions that mimic the authoritarian past, or issue judicial writs
to protect the people from the excesses of government.

This Court must, perforce, painstakingly go through the process of examining whether any claim put forth
herein by the parties genuinely undermines the intellectual and moral fiber of the Constitution. And, by
instinct, the Court must defend the Constitution and itself.

The 1987 Constitution is the embodiment of the Filipino nations' enduring values, which this
Court must zealously protect.

Countless times, this Court has said in so many words that the 1987 Constitution embodies the Filipinos'
enduring values.4 The protection of those values has consequently become the duty of the Court. That this is
the legal standard by which to measure whether it has properly comported itself in its constitutional role has
been declared in various fashions by the Court itself.

See, for example, how this Court articulated its duty to protect the
environment,5 women,6 children,7 labor,8 the indigenous people,9 and consistently, those who have been or
are in danger of being deprived of their human rights.10 chanro bleslaw

Note the power that the Constitution vests in the Court to actively promulgate rules for the protection of
human rights, and how the Court in turn described this duty when it promulgated the writs of kalikasan,
habeas data, and amparo.11 chanrobleslaw

Any conclusion in this case that betrays a lack of enthusiasm on the part of this Court to protect the
cherished values of the Constitution would be a judicial calamity. That the Judiciary is designed to be
passive relative to the "active" nature of the political departments is a given. But when called upon to
discharge its relatively passive role, the post-1986 Supreme Court has shown zealousness in the protection
of constitutional rights, a zealousness that has been its hallmark from then up to now. It cannot, in the year
2016, be reticent in asserting this brand of protective activism.

Not everything legally required is written in black and white; the Judges' role is to discern within
the penumbra.

As early as 1950, the Civil Code, a creation of the Legislature, has instructed the Judiciary on how to
proceed in situations where there is no applicable law or where there is ambiguity in the legislation that
seems to apply to the case at hand. The code provides: ChanRobles Virtualawl ibra ry

Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the laws.

Article 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail.
I do not believe that this Court is bereft of sufficient guides that can aid in the exercise of its role of
protecting and advancing constitutional rights. It must with a magnifying lens examine whether clear intent,
historical references, and express mandates can be found in the 1987

Constitution and whether these are relevant to this case. We must pick them out and examine them. The ill-
gotten wealth statutes, the remedial human rights legislation - all describe the burden of a nation that must
recover from the financial and moral plunder inflicted upon this nation by Marcos, his family and his cronies.
We must get our bearings from these guideposts and find out if they instruct us on what must be done with
respect to his proposed burial beyond the express and implied condemnation of the wrongs he has
committed against the country. The pronouncements of this Court and those of the Sandiganbayan, the
legal pleadings and administrative propositions submitted by the Philippine government to international and
local tribunals from 1987 to the present a full 29 years from these we must infer an indication of the
treatment that should be given to the proposed action of the Government.

That constitutional and statutory interpretation is the bread and butter of adjudication is beyond cavil. From
the oldest cases in the Philippine Reports to its latest decision,12 this Court has been in the business of filling
in gaps, interpreting difficult texts, so that "right and justice will prevail." That this is the entire reason for
the existence of the Judiciary is self-evident. The end of "judging" is not to do what an administrative clerk
can very well do; it is to ensure that "right and justice" will prevail.

Indeed, that judges must interpret statutes as well as declare the existence and protection of individual
rights so that "justice and right" might prevail has been the essence of an independent Judiciary. This has
been so from the time that the necessity for such independence was first recognized by the 1215 Magna
Carta signed by King John; that no man, not even the highest ruler of the land and King John believed in his
divine right to rule - can exercise power in such a way that denies the fundamental liberty of any man.
And the modern Judiciary has progressed considerably from that time. The Philippine Judiciary will thus be
measured by the universal standard of whether it has discharged its power of review, so that "right and
justice will prevail."

There was a time when this Court hid under the "political question" doctrine and evaded constitutional and
moral responsibility for the long period of suppression of the people's basic rights. Rightly so, that same
Court, after the repudiation by our people of the Marcos regime in 1986, likewise repudiated the acts of the
majority of the Court during Martial Law.

This Court cannot afford to retrogress and make the same mistakes as those made by its predecessor courts
during Martial Law. To do so would possibly merit the same kind of condemnation that former President
Marcos reaped in the fullness of time.

Is the preference for the protection of human rights encoded in the legal DNA of the
Constitution?

There is no question that the importance given to human rights is encoded in the very building blocks of the
Philippine Constitution. For the Constitution to make sense, the Supreme Court has to recognize that it is
programmed to reject government actions that are contrary to the respect for human rights, and to uphold
those that do.

The recognition of the hallowed place given to the protection of human rights has been tirelessly repeated
by all the Justices who ever walked the halls of Padre Faura. Not one has said that it was unimportant; or
that it should be sacrificed at the altar of something else - not economic progress, not even peace not even
by those who saw when, why, and how Martial Law began and progressed.

Former Chief Justice Reynato Puno has said: ChanRoblesVirt ualawli bra ry

The sole purpose of government is to promote, protect and preserve these [human] rights. And when
govermnent not only defaults in its duty but itself violates the very rights it was established to protect, it
forfeits its authority to demand obedience of the governed and could be replaced with one to which the
people consent. The Filipino people exercised this highest of rights in the EDSA Revolution of February
1986.13
Chief Justice Puno unequivocably repudiated the "ends-justifies-means" mantra of Martial Law when he
catapulted the rights that Marcos trampled upon to the highest pinnacle of government priorities, and when
as Chief Justice he made as his tenure's flagship the promulgation of the extraordinary and novel human
rights writs of amparo and habeas data.

If it is true that when the Government itself violates the very rights it was established to protect, that
violation forfeits its right to govern, then it becomes necessary for this Court to reject any governmental
attempt that encourages the degradation of those rights. For this Court guards not only against clear and
direct violations of the Constitution, but also against actions that lead this country and its rulers to a slippery
slope that threatens to hurl its people to the abyss of helpless unprotectedness.

Contrary to the thesis of my esteemed colleague Justice Diosdado Peralta, the constitutional provisions
guaranteeing the protection of human rights are not inert, coming to life only when there is a specific law
that would make these rights accessible in specific cases. Each right that is sought to be protected by the
Constitution acts as a prohibition against the Government's derogation of those rights. Not all of the rights
guaranteed by the Constitution direct the commission of positive acts. Yet these rights can, under the right
circumstances, be invoked either singly or collectively to bar public officers from performing certain acts that
denigrate those rights.

Summary of the arguments on the substantive issues

Credit must be given to the Solicitor General for immediately agreeing that the Constitution, decisions of this
Court, human right statutes and the ill-gotten wealth laws and proceedings - in their totality - condemn the
Martial Law regime of the late President Marcos, his family and his cronies.14 Nevertheless, he posits that all
of these are in the past; human rights victims are to be compensated, anyway; and the recovery of ill-
gotten wealth would continue, including the pursuit of criminal cases against the Marcos family and their
cronies. In other words, while he admits that it would be most difficult to make former President Marcos out
as a hero, considering the latter's martial rule and recorded plunder, nevertheless, Marcos was a bemedalled
war soldier, and that, in addition, his being a former President who was never dishonorably discharged as a
soldier - this fact alone - entitles him to be interred at the LMB. To the Solicitor General, it is non
sequitur for human rights victims to claim that the burial of Marcos at a cemetery called Libingan ng mga
Bayani will entomb him as a hero and negate the plethora of legal pronouncements that he is not.

The candid admission made by the Solicitor General has made the job of this Court much easier. For the
substantive issue now boils down to whether, in fact and in law, the proposed burial of the late President
Marcos at the LMB

(1) will derogate from the state's duty to protect and promote human rights
under the Constitution, domestic statutes, and international law·

(2) will violate Presidential Decree No. 105, and Republic Act Nos. 10066,
10086 and 289;

(3) is an unconstitutional devotion of public property to a private purpose;

(4) is an illegal use of public funds;

(5) cannot be sourced from the residual powers of the President or his
powers to reserve lands for public purposes;

(6) cannot find legal mooring in AFP Regulation G 161-375;

(7) is in violation of the clause on faithful execution of the laws

and thus the proposed burial is unconstitutional and illegal, and the presidential discretion sought to be
exercised is being committed in grave abuse of discretion.

On the procedural points, this Opinion fully agrees with the Dissenting Opinion of Justice Alfredo Benjamin
S. Caguioa, Jr., but will nevertheless, attempt to augment what has been so ably discussed by Justice
Caguioa on the political question defense.

On the substantive points, I fully agree with Justice Caguioa, whose Dissenting Opinion had first been
proposed as the main decision. I had prepared this Opinion to elucidate my independent understanding of
some of the issues he has covered.

DISCUSSION

I.

THE COURT HAS THE AUTHORITY TO RESOLVE THIS CONTROVERSY UNDER THE EXPANDED
CONCEPT OF JUDICIAL REVIEW IN THE 1987 CONSTITUTION.

Respondents contend that the issue in this case is a matter within the discretion of the Executive and must
consequently be considered beyond our power of judicial review.

As will be further discussed, this Court cannot refuse to review an issue simply because it is alleged to be a
political question. That train has departed a long time ago. Prevailing jurisprudence is a generation apart
from the former usefulness of the political question doctrine as a bar to judicial review. The reason for that
departure - Philippine Martial Law experience.

A. With the advent of the 1987 Constitution, respondents can no longer utilize the traditional
political question doctrine to impede the power of judicial review.

The 1987 Constitution has expanded the concept of judicial review15 by expressly providing in Section 1,
Article VIII, as follows: ChanRobles Vi rtua lawlib rary

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 above provision delineates judicial power and engraves, for the first time, the so-
called expanded certiorari jurisdiction of the Supreme Court.16 chanrobles law

The first part of the provision represents the traditional concept of judicial power involving the settlement of
conflicting rights as conferred by law. The second part represents the expansion of judicial power to enable
the courts of justice to review what was before forbidden territory; that is, the discretion of the political
departments of the govemment.17 chanro bles law

As worded, the new provision vests in the judiciary, particularly in the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature, as well as to declare their acts
invalid for lack or excess of jurisdiction, should they be tainted with grave abuse of discretion.18 c hanro bleslaw

The deliberations of the 1986 Constitutional Commission provide the nature and rationale of this expansion
of judicial power. In his Sponsorship Speech, former Chief Justice and Constitutional Commissioner Roberto
R. Concepcion stated: ChanRoblesVi rtua lawlib rary

The first section starts with a sentence copied from former Constitutions. It says: ChanRoblesVi rt ualawlib rary

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of 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 or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law.
As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the circumstance that in a number of cases against
the government, which then had no legal defense at all, the solicitor general set up the defense
of political questions and got away with it. As a consequence, certain principles concerning particularly
the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the government set up the
defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to
pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions
involved. It did not merely request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime....

xxxx

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the govermnent
as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or
not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute a
political question.19 (Emphasis supplied)
The expansion of judicial power resulted in constricting the reach of the political question doctrine.20Marcos
v. Manglapus21 was the first case that squarely dealt with the issue of the scope of judicial power vis-a-
vis the political question doctrine under the 1987 Constitution. In that case, the Court explained:ChanRob les Virtualawl ibra ry

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide.

xxxx

x x x When political questions are involved, the Constitution limits the determination to whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official
whose action is being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter
alone to decide.22
The prerogative of the Court to review cases in order to determine the existence of grave abuse of discretion
was further clarified in Estrada v. Desierto:23
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it
expanded the power of judicial review of this court not only to settle actual controversies involving rights
which are legally demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed
against the exercise of its jurisdiction. With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the
new provision did not just grant the Court power of doing nothing.24 (Citations omitted and Emphasis
supplied)
Notably, the present Constitution has not only vested the judiciary with the right to exercise judicial power,
but made it a duty to proceed therewith - a duty that cannot be abandoned "by the mere specter of this
creature called the political question doctrine."25 This duty must be exercised "to correct errors of
cra lawred

jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial
or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the
latter does not exercise judicial, quasi-judicial or ministerial functions."26
chanrob leslaw

Chief Justice Concepcion had emphatically explained to the 1986 Constitutional Commission that the
Supreme Court, which he had been a part of, used the political question theory to avoid reviewing acts of
the President during Martial Law, and thus enabled the violation of the rights of the people. In his words: ChanRoblesVirtualawli bra ry

It [referring to the refusal of the Supreme Court to review] did not merely request an encroachment upon
the rights of the people, but it, in effect, encouraged further violations thereof during the martial law
regime.27
The question I now pose to my colleagues in the Majority: "Are we not, by refusing to pass upon the
question of the effects of the Marcos burial at the LMB, encouraging authoritarianism, plunder, and the
violation of human rights, by signaling that what Marcos and his Martial Rule represents is not anathema?"

B. In the exercise of its expanded judicial power, the Court has decided issues that were
traditionally considered political questions.

Following the effectivity of the present Constitution, only a select number of issues continue to be
recognized by the Court as truly political and thus beyond its power of review. These issues include the
executive's determination by the executive of sovereign or diplomatic immunity,28 its espousal of the claims
of its nationals against a foreign government,29 and the electorate's expression of confidence in an
incumbent official.30
chan roble slaw

Apart from these matters, all other acts of government have been the subject of the
expanded certiorari jurisdiction of the Court under Article VIII, Section II of the Constitution. As
demonstrated in the following cases, the Court has reviewed the acts of the President, the Senate, the
House of Representatives, and even of independent bodies such as the electoral tribunals and the
Commission on Elections, even for acts that were traditionally considered political.

Acts of the President

The Court in Marcos v. Manglapus31 ascertained the validity of the President's determination that the return
of the Marcoses posed a serious threat to the national interest and welfare, as well as the validity of the
prohibition on their return. As previously stated, the political question doctrine was first invoked and then
rejected by the Court in that case in view of its expanded power of judicial review under the 1987
Constitution.

The Court then reviewed the constitutionality of a presidential veto in Gonzales v. Macaraig, Jr.32 It ruled
that "the political question doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to this Court."

The expanded power of judicial review was likewise utilized to examine the grant by the President of
clemency in administrative cases;33 and the President's power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion.34 The Court even tackled the legitimacy of the Arroyo
administration in Estrada v. Desierto.35 Although it resolved the question as a constitutional issue, the Court
clarified that it would not defer its resolution based merely on the political question doctrine.

In David v. Macapagal-Arroyo,36 it was the validity of then President Arroyo's declaration of national
emergency that was assailed before the Court. Significantly, it reviewed the issue even while it recognized
that the matter was solely vested in the wisdom of the executive: ChanRoble sVi rt ualawlib ra ry

While the Court considered the President's "calling-out" power as a discretionary power solely vested in his
wisdom, it stressed that this does not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. This ruling is mainly a result of the Court's reliance on Section 1, Article VIII of 1987 Constitution
which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the
political departments. Under the new definition of judicial power, the courts are authorized not only "to
settle actual controversies involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."37 (Citations omitted)
In Biraogo v. Philippine Truth Commission of 2010,38 even the President's creation of a Truth Commission
was reviewed by the Court. As will be further explained, the fact that the commission was created
to implement a campaign promise did not prevent the Court from examining the issue.

Acts of the Legislature

The Court has likewise exercised its expanded power of judicial review in relation to actions of Congress and
its related bodies. In Daza v. Singson,39 it reviewed the manner or legality of the organization of the
Commission on Appointments by the House of Representatives. While the review was premised on the fact
that the question involved was legal and not political, the Court nevertheless held that "even if we were to
assume that the issue presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question."

In later cases, the Court rejected the political question doctrine and proceeded to look into the following
political acts of the legislature: (a) the decision of the House of Representatives to allow the dominant
political party to change its representative in the House Electoral Tribunal;40 (b) the decision of the Senate
Blue Ribbon Committee to require the petitioners to testify and produce evidence at its inquiry;41 (c) the
propriety of permitting logging in the country;42 (d) the validity of the filing of a second impeachment
complaint with the House ofRepresentatives;43(d) the validity of an investigation conducted in aid of
legislation by certain Senate committees;44 and (e) the decision of the House of Representatives Committee
on Justice to take cognizance of two impeachment complaints.45 chan robles law

We also exercised our constitutional duty "to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction"46 on the part of the Senate when it ratified the WTO
Agreement and the three Annexes thereof in Tañada v. Angara.47 The Court firmly emphasized in that case
that "it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any
officer, agency, instrumentality, or department of the govemment."48 chanroble slaw

Latest Jurisprudence

The most recent jurisprudence in this area remains in line with the notion of expanded certiorari jurisdiction.
The Court has been consistent in its rejection of the political question doctrine as a bar to its expanded
power of review.
In 2013, the constitutionality of the pork barrel system was resolved in Belgica v. Ochoa.49 While the Court
clarified that the issue involved legal questions, it nonetheless rejected the invocation of the political
question doctrine and upheld the expanded judicial powers of the Court.

In 2014, Araullo v. Aquino III50 delved into the constitutionality of the Disbursement Acceleration Program of
the executive department, again emphasizing the Court's expanded power of review.

In 2015, the Court in The Diocese of Bacolod v. Commission on Elections51 rejected the application of the
political question doctrine. It ruled that the right of the non-candidate petitioners to post the subject
tarpaulin in their private property was an exercise of their right to free expression. In rejecting the
COMELEC's political question defense, it held that "the concept of a political question.... never precludes
judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective
right."52
chan robles law

A few months after Diocese of Bacolod, the policy of the Judicial and Bar Council (JBC) requiring judges of
first-level courts to render five years of service before they could qualify as applicants to second-level courts
was assailed as unconstitutional in Villanueva v. Judicial and Bar Council.53 The Court resolved the issue by
stating "since the formulation of guidelines and criteria, including the policy that the petitioner now assails,
is necessary and incidental to the exercise of the JBC's constitutional mandate, a determination must be
made on whether the JBC has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing and enforcing the said policy."54 chan rob leslaw

Early this year, the Court in Saguisag v. Ochoa, Jr.,55 determined the constitutionality of the Enhanced
Defense Cooperation Agreement between the Republic of the Philippines and the United States of America.
The Court affirmed therein its expanded jurisdiction: C hanRobles Vi rt ualawlib ra ry

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power
has been extended to the determination of whether in matters traditionally considered to be within the
sphere of appreciation of another branch of government, an exercise of discretion has been attended with
grave abuse. The expansion of this power has made the political question doctrine "no longer the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review."56 (Citations omitted)
Notably, while there were instances when the Court deferred from interfering with an issue involving a
political question, it did so not because political questions were involved but because of a finding that there
was no grave abuse of discretion.57 Otherwise stated, the Court still exercised its expanded judicial power,
but found no reason to annul the questioned acts. It held in Defensor-Santiago v. Guingona, Jr.,58 "the all-
embracing and plenary power and duty of the Court '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' is restricted only by the definition and confines of the term 'grave abuse of discretion.'"

It is evident from this long line of cases that the Court can no longer refuse to adjudicate cases on the basis
of the "political question doctrine." Whenever issues of a political nature are raised before it, it is the duty of
the Court to meet the questions head-on for as long as grave abuse of discretion or constitutionality is
seriously involved.

C. The assertion that the burial is intended to implement an election campaign promise does not
render the matter non-justiciable.

In view of the above rulings of this Court, it is evident that we must resolve the present controversy,
notwithstanding the allegation that the decision of the President to allow the burial is purely political in
character. That the order was supposedly founded on an "election campaign promise" does not transform
the matter into a political issue that is beyond our power to review.

In fact, in Biraogo v. Philippine Truth Commission of 2010,59 the Court reviewed the validity of the creation
of the Truth Commission, despite its recognition that the act was meant to implement a campaign promise
made by then President Benigno Aquino III: ChanRoblesVi rt ualawlib ra ry

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections,
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption
with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and
of his ability to carry out this noble objective, catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission).60
Even under those circumstances, however, the Court still decided the controversy and ultimately declared
the creation of the Truth Commission unconstitutional. While I maintain my dissenting view because
unknowable standards were imposed in that case, I believe that the Court correctly took cognizance of the
dispute, notwithstanding the fact that a campaign promise was involved. There is no reason for the Court to
deviate from that course in the present case.

Having established the duty of the Court to review the assailed acts, it is now necessary to examine whether
the decision of the President to allow the burial of former President Marcos at the LMB is consistent with the
Constitution and the laws.

II.

THE PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND IN VIOLATION OF HIS DUTY
TO FAITHFULLY EXECUTE THE LAWS WHEN HE ORDERED THE BURIAL OF MARCOS IN
THE LIBINGAN NG MGA BAYANI.

The 1987 Constitution mandates the president to ensure that laws are faithfully executed.61 This duty of
faithful execution circumscribes all the actions of the President as the Chief Executive. It also limits every
exercise of his discretion. As this Court declared in Almario v. Executive Secretary: ChanRoblesVirtu alawlibra ry

Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to keep it
from straying. In its classic formulation, "discretion is not unconfined and vagrant" but "canalized within
banks that keep it from overflowing." The President's power must be exercised in accordance with existing
laws. Section 17, Article VII of the Constitution prescribes faithful execution of the laws by the President: ChanRobles Vi rtua lawlib rary

Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.
The President's discretion in the conferment of the Order of National Artists should be exercised in
accordance with the duty to faithfully execute the relevant laws. The faithful execution clause is best
construed as an obligation imposed on the President, not a separate grant of power. It simply
underscores the rule of law and, corollarily, the cardinal principle that the President is not above
the laws but is obliged to obey and execute them. This is precisely why the law provides that
"[a]dministrative or executive acts, orders and regulations shall be valid only when they are not contrary to
the laws or the Constitution."62 (Citations omitted and Emphasis supplied)
In fulfilling this duty, the President is not only obligated to enforce the express terms of the Constitution or
the statutes; he is likewise bound to implement any right, duty, or obligation inferable from these primary
sources.63 This rule finds support in Cunningham v. Neagle,64 in which the United States Supreme Court
suggested that the duty of the President to faithfully execute the law is not limited to the
enforcement of the express terms of acts of Congress or of treaties, that duty extends to "all
rights, duties and obligations growing out of the Constitution itself, our international relations,
and all the protection implied by the nature of the government under the Constitution."65 chanroble slaw

As a consequence of these principles, any act of the President that contravenes the law, its policies, or any
right or duty inferable therefrom must be considered grave abuse of discretion.66 By the same token, a
refusal to execute the laws when necessary must be invalidated in the absence of any statutory
justification.67
chan roble slaw

As will be demonstrated, the directive of President Duterte to allow the burial of Marcos at the LMB
contravenes the constitution, laws, policies, and jurisprudence. Moreover, the basis for the directive was an
invalid regulation issued by the Armed Forces of the Philippines (AFP) in excess of its statutory authority.
Considering that the order was made in contravention of law, it cannot be justified by mere reference to the
President's residual powers. Such act is tainted with grave abuse of discretion.

A. Statutes and jurisprudence establish a clear policy to condemn the acts of Marcos and what he
represents, which effectively prohibits the incumbent President from honoring him through a
burial in the Libingan ng mga Bayani.

It is the duty of the Court to give effect not only to the letter of the law, but more importantly to the spirit
and the policy that animate it. In Alonzo v. Intermediate Appellate Court,68 the Court explained: ChanRob les Virtualawl ibra ry
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice
are inseparable, and we must keep them so. x x x
The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read
according to its spirit or intent. For what is within the spirit is within the statute although it is not within the
letter thereof; and that which is within the letter but not within the spirit is not within the statute. Stated
differently, a thing which is within the intent of the lawmaker is as much within the statute as within the
letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of
the lawmakers.69
To carry out this duty, the Court must examine not only the subject law itself, but the entire body of related
laws including the Constitution, domestic statutes, administrative issuances and jurisprudence. It is only by
taking a holistic view of the matter that the Court can ensure that its reading of the law is consistent with
the spirit thereof. In Social Weather Stations, Inc. v. COMELEC,70 we explained the importance of taking a
holistic view when interpreting the law: ChanRobles Virtualawl ibra ry

Third, the assumption that there is, in all cases, a universal plain language is erroneous. In reality,
universality and uniformity of meaning is a rarity. A contrary belief wrongly assumes that language is static.

The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider
context and the interplay of the historical, the contemporary, and even the envisioned. Judicial
interpretation entails the convergence of social realities and social ideals. The latter are meant to be effected
by the legal apparatus, chief of which is the bedrock of the prevailing legal order: the Constitution. Indeed,
the word in the vernacular that describes the Constitution - saligan - demonstrates this imperative of
constitutional primacy.

Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we consider not an
abstruse provision but a stipulation that is part of the whole, i.e., the statute of which it is a part, that is
aimed at realizing the ideal of fair elections. We consider not a cloistered provision but a norm that should
have a present authoritative effect to achieve the ideals of those who currently read, depend on, and
demand fealty from the Constitution.71
In this case, we are being asked to decide whether the President may validly order the burial of Former
President Marcos in the LMB. The resolution of this question requires more than an examination of the text
of AFP Regulations 161-375. More than finding a textual anchor, we are compelled by this issue to scrutinize
the implications of the President's order and determine if it conflicts with the text, the policy, and the spirit
of the law.

At its core, the present dispute turns on whether the state, through the President and the AFP,
may legally honor Former President Marcos and his family. For that is the essence of the
proposed burial at the LMB regardless of whether Marcos is to be buried as a hero, as a soldier or
as a former president. A clear understanding of our Constitution, laws, jurisprudence, and our
international obligations must lead to the conclusion that the grant of any such honors for the
late dictator is prohibited.

Setting aside the validity of AFP Regulations 161-375 for the moment, their blind application to the present
case would be an egregious mistake. Considering that various laws and jurisprudence reveal the clear policy
of the state to denounce both former President Marcos and the Martial Law regime, it would be
inappropriate, if not absurd, for the state to honor his memory.

1. Marcos is perpetuated as a plunderer and a perpetrator of human rights violations in our organic and
statutory laws.

As soon as the EDSA Revolution succeeded in 1986, the revolutionary government - installed by the direct
exercise of the power of the Filipino people72 - declared its objective to immediately recover the ill-gotten
wealth amassed by Marcos, his family, and his cronies. The importance of this endeavor is evident in the
fact that it was specifically identified in the 1986 Provisional Constitution as part of the mandate of the
people. Article II, Section 1 of that Constitution states: ChanRoblesVirtualawlib ra ry

SECTION 1. Until a legislature is elected and convened under a New Constitution, the President shall
continue to exercise legislative power.

The President shall give priority to measures to achieve the mandate of the people to:
xxxx

d) Recover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect
the interest of the people through orders of sequestration or freezing of assets of accounts;
Pursuant to this mandate, then President Corazon Aquino issued three executive orders focused entirely on
the recovery of the ill-gotten wealth taken by Marccs and his supporters:
chanRoble svirtual Lawlib ra ry

a) Executive Order No. 173 created the Presidential Commission on Good

Government (PCGG) tasked to, among others, assist the President in the
"recovery of all ill-gotten wealth accumulated by former President
Marcos, his immediate family, relatives, subordinates and close
associates x x x by taking undue advantage of their public office and/or
using their powers, authority, influence, connections or relationship."74

b) Executive Order No. 275 authorized the freezing and sequestration of

assets pertaining to Marcos, his relatives, associates, dummies, agents
or nominees, which had been "acquired by them directly or indirectly,
through or as a result of the improper or illegal use of funds or
properties owned by the Government of the Philippines;"76 or "by taking
undue advantage of their office, authority, influence, connections or
relationship."77

c) Executive Order No. 1478 empowered the PCGG to file and prosecute all
cases it had investigated pursuant to Executive Order Nos. 1 and 2.

All three executive orders affirmed that Marcos, his relatives and supporters had acquired assets and
properties through the improper or illegal use of government funds or properties by taking undue advantage
of their office, authority, influence, or connections. These acts were proclaimed to have caused "grave
damage and prejudice to the Filipino people and the Republic of the Philippines."79 chan roble slaw

The gravity of the offenses committed by former President Marcos and his supporters even prompted the
Court to describe the mandate of the PCGG as the recovery of "the tremendous wealth plundered from the
people by the past regime in the most execrable thievery perpetrated in all history."80 The importance of this
mandate was further underscored by the sovereign Filipino people when they ratified the 1987 Constitution,
including the following provision: ChanRobles Vi rtua lawlib rary

ARTICLE XVIII
Transitory Provisions

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.
Apart from being declared a plunderer, Marcos has likewise been pronounced by the legislature as a
perpetrator of human rights violations. In Republic Act No. (R.A.) 10368, the state recognized the following
facts:
chanRoble svirtual Lawlib ra ry

a) Human rights violations were committed during the Martial Law period
"from September 21, 1972 to February 25, 1986 by persons acting in an
official capacity and/or agents of the State;"81 and

b) A number of these human rights violations occurred because of decrees,

 declarations or issuances made by Marcos;82 and by "acts of force,
intimidation or deceit"83 done by him, his spouse, Imelda Marcos, and
their immediate relatives by consanguinity or affinity, associates, cronies
and subordinates.84

Because of the human rights violations perpetrated by Marcos and his associates, the legislature has
decreed that victims are entitled to both monetary85 and non-monetary86 reparations to be principally
sourced from the funds transferred to the Philippine government by virtue of the Order of the Swiss Federal
Supreme Court.87 Those funds were earlier declared part of the ill-gotten wealth of the Marcos family and
forfeited in favor of the Philippine government.

The statements in the above laws were clear indictments by both the revolutionary government
and the legislature against the massive plunder and the countless abuses committed by Marcos
and his cronies during his tenure as President. These laws not only condemn him as a thief; they
equally recognize his criminal liability for the atrocities inflicted on innumerable victims while he
was in power.

2. Decisions of this Court have denounced the abuses committed by Marcos during the Martial Law
dictatorship.

Apart from earning the condemnation of the legislature, Marcos and the Martial Law regime have likewise
received harsh criticism from this Court. In dozens of decisions, it denounced the abuses he had committed;
the pernicious effects of his dictatorship; and the grave damage inflicted upon the nation by his corruption,
thievery, and contempt for human rights. Foremost among these denunciations are found in are four cases
ordering the forfeiture of the ill-gotten wealth he amassed with the assistance of his relatives and cronies.

In Republic v. Sandiganbayan,88 the Court forfeited a total of USD

658 million in favor of the government. These funds, contained in Swiss deposit accounts in the name of
certain foundations, were declared ill-gotten, as they were manifestly out of proportion to the known lawful
income of the Marcos family. The Court used the same reasoning in Marcos, Jr. v. Republic89 to justify the
forfeiture of the assets of Arelma, S.A., valued at USD 3,369,975 in 1983.

On the other hand, in Republic v. Estate of Hans Menzi90 and in Yuchengco v. Sandiganbayan,91 the Court
scrutinized the beneficial ownership of certain shares of Bulletin Publishing Corporation and Philippine
Telecommunications Investment Corporation, respectively. The Court concluded in the two cases that the
shares, although registered in the names of cronies and nominees of Marcos, were part of the ill-gotten
wealth of the dictator and were subject to forfeiture.

It must be emphasized that in the preceding cases, the Court noted the grand schemes employed by Marcos
and his supporters to unlawfully amass wealth and to conceal their transgressions. In Yuchengco, it
declared:ChanRob les Vi rtualawl ib rary

In PCGG v. Peña, this Court, describing the rule of Marcos as a "well-entrenched plundering regime" of
twenty years, noted the "magnitude of the past regime's 'organized pillage' and the ingenuity of the
plunderers and pillagers with the assistance of the experts and best legal minds available in the market."
The evidence presented in this case reveals one more instance of this grand scheme. This Court - guardian
of the high standards and noble traditions of the legal profession - has thus before it an opportunity to
undo[,] even if only to a certain extent, the damage that has been done.92 (citations omitted)
In addition to the plunder of the public coffers, Marcos was harshly condemned by this Court for the human
rights abuses committed during the Martial Law period.93 In Mijares v. Ranada, et al.,94 it stated:
ChanRoblesVirtualawl ibra ry

Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bitter
crop. While the restoration of freedom and the fundamental structures and processes of democracy have
been much lauded, according to a significant number, the changes, however, have not sufficiently healed
the colossal damage wrought under the oppressive conditions of the martial law period. The cries of
justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in
the hearts of the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended
through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not
merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of
reparations due within the confines of the restored rule of law.
The petitioners in this case are prominent victims of human rights violations who, deprived of the
opportunity to directly confront the man who once held absolute rule over this country, have
chosen to do battle instead with the earthly representative, his estate.95 (Emphasis supplied)
Marcos himself was severely criticized for abuses he had personally committed while in power. For
instance, he was found to have unlawfully exercised his authority for personal gain in the following cases:
(a) Tabuena v. Sandiganbayan,96 in which he ordered the general manager of the Manila International
Airport Authority to directly remit to the Office of the President the amount owed by the agency to the
Philippine National Construction Corporation; (b) Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto,97 in which Marcos made a marginal note prohibiting the foreclosure of the mortgaged
assets of Mindanao Coconut Oil Mills and waiving the liabilities of the corporation and its owners to the
National Investment and Development Corporation; and (c) Republic v. Tuvera,98 in which Marcos himself
granted a Timber License Agreement to a company owned by the son of his longtime aide, in violation of the
Forestry Reform Code and Forestry Administrative Order No. 11.

Marcos was likewise deemed personally responsible for the corruption of the judicial process in Galman v.
Sandiganbayan.99 Affirming the findings of a commission created to receive evidence on the case, the Court
stated:ChanRoblesVirtualawl ibra ry

The Court adopts and approves the Report and its findings and holds on the basis thereof and of the
evidence received and appreciated by the Commission and duly supported by the facts of public record and
knowledge set forth above and hereinafter, that the then President (code named Olympus) had stage
managed in and from Malacanang Palace "a scripted and pre-determined manner of handling and
disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman
case and the Justices who tried and decided the same acted under the compulsion of some
pressure which proved to be beyond their capacity to resist", and which not only prevented the
prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise
presented, but also pre-determined the final outcome of the case of total absolution of the twenty-six
respondents accused of all criminal and civil liability.

xxxx

The record shows suffocatingly that from beginning to end, the then President used, or more precisely,
misused the overwhelming resources of the government and his authoritarian powers to corrupt
and make a mockery of the judicial process in the Aquino-Galman murder cases. x x x

Indeed, the secret Malacañang conference at which the authoritarian President called together the Presiding
Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by
Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close
monitoring of the entire proceedings to assure the predetermined ignominious final outcome are without
parallel and precedent in our annals and jurisprudence.100 (Emphasis supplied)
Because of the abuses committed, the Court condemned the Marcos years as a "dark chapter in our
history,"101 a period of "national trauma"102 dominated by a "well-entrenched plundering regime,"103 which
brought about "colossal damage wrought under the oppressive conditions of the Martial Law period."104 The
attempt by the dictator to return to the country after the EDSA Revolution was even described by the Court
as "the case of a dictator forced out of office and into exile after causing twenty years of political, economic
and social havoc in the country."105 chanrob leslaw

The foregoing pronouncements are considered part of the legal system of the Philippines106 and must be
considered binding, since they are integral parts of final and immutable judgments. It may be presumed
that the Court made the above declarations only after a judicious consideration of the evidence and the
applicable law. Consequently, those declarations cannot be questioned, reversed, or disregarded without
running afoul of the doctrine of immutability of judgment. This doctrine of finality of judgments applies even
to the highest court of the land.107 chan robles law

The claim that judgment has not been rendered against Marcos for the plunder and the atrocities committed
under his regime is belied by the declarations of this very Court. In his Separate Opinion in Olaguer v.
Military Commission No. 34,108 former Chief Justice Claudio Teehankee wrote of our nation's history during
the Martial Law regime, and it would be well to recall his words: ChanRobles Vi rtua lawlib rary

It was a long and horrible nightmare when our people's rights, freedoms and liberties were sacrificed at the
altar of "national security" even though it involved nothing more than the President-dictator's perpetuation
in office and the security of his relatives and some officials in high positions and their protection from public
accountability of their acts of venality and deception in government, many of which were of public
knowledge.

xxxx

The treacherous assassination on August 21, 1983 of the martyred Benigno S. Aquino, Jr., within minutes of
his arrival at the Manila International Airport, although ringed with 2,000 soldiers, shocked and outraged the
conscience of the nation. After three years of exile following almost eight years of detention since martial
law, Aquino, although facing the military commission's predetermined death sentence, supra, yet refused
proper travel documents, was returning home "to strive for genuine national reconciliation founded on
justice." The late Senator Jose W. Diokno who passed away this year was among the first victims of the
martial law coup d'etat to be locked up with Senator Aquino. In March, 1973, all of their personal effects,
including their eyeglasses were ominously returned to their homes. Their wives' visitation privileges were
suspended and they lost all contact for over a month. It turned out that Aquino had smuggled out of his cell
a written statement critical of the martial law regime. In swift retribution, both of them were flown out
blindfolded to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in dark boarded
cells with hardly any ventilation. When their persons were produced before the Court on habeas
corpus proceedings, they were a pitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was
to be released in September, 1974 after almost two years of detention. No charges of any kind were ever
filed against him. His only fault was that he was a possible rival for the presidency.

Horacia Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the
Development Academy of the Philippines, was among the hard-working government functionaries who had
been radicalized and gave up their government positions. Morales went underground on the night he was
supposed to receive his TOYM award, declaring that "(F)or almost ten years, I have been an official in the
reactionary government, serviced the Marcos dictatorship and all that it stands for, serving a ruling system
that has brought so much suffering and misery to the broad masses of the Filipino people. (I) refuse to take
any more part of this. I have had enough of this regime's tyranny and treachery, greed and brutality,
exploitation and oppression of the people," and "(I)n rejecting my position and part in the reactionary
government, I am glad to be finally free of being a servant of foreign and local vested interest. I am happy
to be fighting side by side with the people." He was apprehended in 1982 and was charged with the capital
crime of subversion, until he was freed in March, 1986 after President Corazon C. Aquino's assumption of
office, together with other political prisoners and detainees and prisoners of conscience in fulfillment of her
campaign pledge.

Countless others forfeited their lives and stand as witnesses to the tyranny and repression of the past
regime. Driven by their dreams to free our motherland from poverty, oppression, iniquity and injustice,
many of our youthful leaders were to make the supreme sacrifice. To mention a few: U.P. Collegian editor
Abraham Sarmiento, Jr., worthy son of an illustrious member of the Court pricked the conscience of many as
he asked on the front page of the college paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos
kung hindi tayo kikilos? Kung hindi ngayon, kailan pa? He was locked up in the military camp and released
only when he was near death from a severe attack of asthma, to which he succumbed. Another TOYM
awardee, Edgar Jopson, an outstanding honor student at the Ateneo University, instinctively pinpointed the
gut issue in 1971 he pressed for a "non-partisan Constitutional Convention;" and demanded that the then
president-soon-to-turn dictator "put down in writing" that he was not going to manipulate the Constitution
to remove his disqualification to run for a third term or perpetuate himself in office and was called down as
"son of a grocer." When as he feared, martial law was declared, Jopson went underground to continue the
struggle and was to be waylaid and killed at the age of 34 by 21 military troops as the reported head of the
rebel movement in Mindanao. Another activist honor student leader, Emmanuel Yap, son of another eminent
member of the Court, was to disappear on Valentine's Day in 1976 at the young age of 24, reportedly picked
up by military agents in front of Channel 7 in Quezon City, and never to be seen again.

One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor of the province of
Antique at 28, a Harvard-trained lawyer, was mercilessly gunned down with impunity in broad daylight at 10
a.m. in front of the provincial capitol building by six mad-dog killers who riddled his body with 24 bullets
fired from M-16 armalite rifles (the standard heavy automatic weapon of our military). He was just taking a
breather and stretching his legs from the tedious but tense proceedings of the canvassing of the returns of
the presidential snap election in the capitol building. This was to be the last straw and the bloodless EDSA
revolt was soon to unfold. The Court in Javier vs. Comelec, through Mr. Justice Cruz, said these meager
words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak
against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and
fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him.
Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return
of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of
shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the
enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark
enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier
made that dawn draw nearer because he was, like Saul and Jonathan, swifter than eagles and stronger than
lions.109 (Citations omitted)
The pronouncements of the Court on this matter must be respected and considered conclusive. Hence, while
Marcos may have evaded a criminal proceeding by choosing to go on exile after the EDSA Revolution, the
atrocities committed against the Filipino people during his regime must be remembered. Our declarations on
this matter cannot be disregarded or forgotten, as Chief Justice Teehankee reminded us in Olaguer: ChanRobles Virtualawl ibra ry

The greatest threat to freedom is the shortness of human memory. We must note here the
unforgettable and noble sacrifices of the countless brave and patriotic men and women who feel
as martyrs and victims during the long dark years of the deposed regime. In vacating the death
sentence imposed on the petitioners who survived the holocaust, we render them simple justice and we
redeem and honor the memory of those who selflessly offered their lives for the restoration of truth,
decency, justice and freedom in our beloved land.110 (Emphasis supplied)
3. The President may not contradict or render ineffective the denunciations, or the policies and principles
enunciated in the foregoing statutes and jurisprudence.

It is the obligation of the President to give effect to the pronouncements of the Legislature and the Judiciary
as part of his duty to faithfully execute the laws. At the very least, the President cannot authorize an act
that runs counter to the letter and the spirit of the law.

In this case, the foregoing statutes and jurisprudence condemning Marcos and his regime effectively prohibit
the incumbent President from granting him any form of tribute or honor. The President's discretion in this
matter is not unfettered. Contrary to the assertions of respondents, the President cannot arbitrarily
and whimsically decide that the acts attributed to Marcos during Martial Law are irrelevant,
solely because "he possessed the title to the presidency until his eventual ouster from office."111 chanrobles law

Indeed, it would be the height of absurdity for the Executive branch to insist on paying tribute to
an individual who has been condemned by the two other branches of government as a dictator, a
plunderer, and a human rights violator. Whether Marcos is to be buried in the LMB as a hero,
soldier, or former President is of little difference. The most important fact is that the burial would
accord him honor. For the Court to pretend otherwise is to sustain a delusion, as this controversy
would not have arisen if not for this reality.

A state of affairs that would allow Marcos to reap any accolade or tribute from the state using public funds
and property would obviously contradict the laws and judicial findings described above. Clearly, there is
more than sufficient basis to reject the proposed burial.

B. The AFP does not have the power to determine which persons are qualified for interment in
the Libingan.

The argument of respondents that the burial is permitted under AFP Regulations 161-375 is unavailing, as
the AFP does not have the authority to select which persons are qualified to be buried in the LMB. For this
reason, the enumeration contained in AFP Regulations 161-375 must be deemed invalid.

In Proclamation No. 208,112 then President Marcos reserved a certain parcel of land in Taguig the proposed
site of the LMB for "national shrine purposes." This parcel of land was placed "under the administration" of
the National Shrines Commission (NSC). The NSC was later transferred to the Department of National
Defense (from the Department of Education) and then abolished through the Integrated Reorganization
Plan. The functions of the former NSC were then transferred to the National Historical Institute (NHI).

On 26 January 1977, Presidential Decree No. (P.D.) 1076113 created the Philippine Veterans Affairs Office
(PVAO) under the Department of National Defense. The PVAO was tasked to, among others, "administer,
maintain and develop military memorials and battle monuments proclaimed as national shrines." P.D. 1076
also abo1ished the NHI and transferred its functions to the PVAO. The transferred functions pertained to
military memorials, including the authority to "administer" the LMB.

The authority of the PVAO to administer, maintain and develop the LMB pertains purely to the management
and care of the cemetery. Its power does not extend to the determination of which persons are entitled to
be buried there. This authority pertains to Congress, because the power to deal with public
property, including the right to specify the purposes for which the property may be used, is
legislative in character.114 Accordingly, the provision in AFP Regulations 161-375 enumerating the
persons qualified to be interred in the LMB cannot bind this Court.

At any rate, the AFP Regulations cannot be considered in isolation. As part of the legal system,
administrative issuances must be interpreted and implemented in a manner consistent with statutes,
jurisprudence, and other rules.115 In the same manner, the purported discretion of the President to
determine the persons who may be interred in the LMB must be considered limited by statutes and judicial
decisions.116
c hanro bles law

Since the proposed interment of Marcos in the LMB runs counter to law as explained in the preceding
section, AFP Regulations 161-375 must be interpreted to mean that Marcos is specifically disqualified from
being buried in that cemetery. Only by adhering to this interpretation can the Court ensure that the issuance
is in harmony with other existing laws. Consequently, we cannot choose to implement AFP Regulations 161-
375 exclusively while disregarding the statutes and jurisprudence referred to above.

C. The burial cannot be justified by mere reference to the President's residual powers; it is not
unfettered, and such power can only be exercised in conformity with the entire Constitution.

During the oral arguments, respondents attempted to justify the decision of the President to allow the burial
primarily on the basis of his residual power.117 Citing Marcos v. Manglapus118 and Sanlakas v. Executive
Secretary,119 they argued that the President is vested with powers other than those enumerated in the
Constitution and statutes, and that these powers are implicit in the duty to safeguard and protect the
general welfare.120 chan robles law

It must be emphasized that the statement in Marcos v. Manglapus acknowledging the "President's
residual power to protect the general welfare of the people" was not unconditional. The Court, in
fact, explicitly stated that only acts "not forbidden" by the Constitution or the laws were
permitted under this concept: ChanRobles Vi rtua lawlib rary

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of the President, as steward
of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbidden by the Constitution or the laws that the needs of the
nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and
defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that
the laws are faithfully executed [see Hyman,The American President, where the author advances the view
that an allowance of discretionary power is unavoidable in any government and is best lodged in the
President].121 (Emphasis supplied)
The Court in that case also reiterated the underlying principles that must guide the exercise of presidential
functions and powers, residual or otherwise: ChanRoble sVirtualawli bra ry

Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are essentially
ideals to guide governmental action. But such does not mean that they are empty words. Thus, in the
exercise of presidential functions, in drawing a plan of government, and in directing implementing action for
these plans, or from another point of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and adhere to them.122 (Emphasis supplied)
Clearly, the residual power of the President cannot be used to justify acts that are contrary to the
Constitution and the laws. To allow him to exercise his powers in disregard of the law would be to grant him
unbridled authority in the guise of inherent power. Clearly, that could not have been the extent of the
residual powers contemplated by the Court in Marcos v. Manglapus.

To reiterate, the President is not above the laws but is, in fact, obliged to obey and execute them.123 This
obligation is even more paramount in this case because of historical considerations and the nature of the
norms involved, i.e., peremptory nonns of human rights that are enshrined both in domestic and
intetnational law.

III.

TO ALLOW MARCOS TO BE BURIED IN THE LIBINGAN NG MGA BAYANI WOULD VIOLATE

INTERNATIONAL HUMAN RIGHTS LAW AS AN INDEPENDENT SOURCE OF STATE OBLIGATIONS,
AND WOULD NEGATE THE REMEDIES PROVIDED BY REPUBLIC ACT NO. 10368.
An examination of the vast body of international human rights law establishes a duty on the part of the state
to provide the victims of human rights violations during the Marcos regime a range of effective remedies and
reparations. This obligation is founded on the state's duty to ensure respect for, and to protect and fulfill
those rights.

Allowing the proposed burial of Marcos in the LMB would be a clear violation of the foregoing international
law obligations. Consequently, the planned interment must be enjoined in light of Article II, Section II of the
Constitution, the established principle of pacta sunt servanda, and the fact that the state has already
acknowledged these duties and incorporated them in our domestic laws.

A. Under international law, the Philippines is obligated to provide effective remedies, including
holistic reparations, to human rights victims.

The obligation of the Philippines to respect, protect, and fulfill human rights has its legal basis in
international agreements and customary international law. As will be discussed, this obligation includes the
duty to provide effective remedies, which, in turn, incorporates the grant of holistic reparations to victims of
human rights violations.

1. The Philippines is bound to respect, protect, and fulfill human rights under its treaty obligations and
customary international law.

As a party to the United Nations (UN) Charter124 and the International Covenant on Civil and Political Rights
(ICCPR),125 the Philippines is bound to comply in good faith with our obligations therein pursuant to the
principle of pacta sunt servanda.126 These treaties form the normative foundation of the duty of the state to
provide effective remedies and reparations to victims of human rights violations.

The promotion, protection and fulfilment of human rights norms are obligations woven throughout the entire
UN Charter, beginning with the Preamble which "reaffirm[s] faith in fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women and of nations large and
small."127 In line with this statement, the promotion of "universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex, language, or religion"128 was
identified as one of the basic purposes of the United Nations.129 These principles became part of a concrete
obligation via Article 56 of the Charter, as states were mandated to take joint and separate action in
cooperation with the UN for the achievement of its purposes.130 chan robles law

On the other hand, the ICCPR obligates states parties to respect and ensure the human rights of all
individuals within its territory. Article 2(1) of this covenant provides: ChanRoble sVirtualawl ibra ry

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.
Interpreting this provision, the United Nations Human Rights Committee131 (UNHRC) issued General
Comment No. 31132 declaring that the obligation in Article 2(1) is owed not just to individuals as the rights
holders under the ICCPR, but to every state party therein.133 The duty to respect basic human rights is
likewise considered an erga omnes obligation in view of the importance of the rights involved.134 In other
words, it is an obligation towards the international community as a whole.135 chan robles law

Further establishing the obligation to respect human rights is the Universal Declaration of Human Rights
(UDHR) which defines and codifies human rights norms provided for in the UN Charter. Considered the most
important human rights document in the world,136 the UDHR enumerates the human rights that states are
bound to respect, including the right to life, liberty, and security of persons;137 the prohibition against
torture and arbitrary arrest or detention;138 and the right to freedom from interference with one's privacy,
family, home, or correspondence.139While not a legally binding treaty, the UDHR is generally considered a
codification of the customary international law on human rights.140 Hence, it binds all nations including the
Philippines.

The foregoing instruments clearly create rights that every state is obliged to recognize and respect. To give
effect to these entitlements, a violation of protected rights brings about the obligation on the part of the
offending state to provide a corresponding remedy.

2. The duty to respect, protect, and fulfill human rights includes the obligation to provide an effective
remedy.

The international guarantee of a remedy for human rights violations is well established141 as one of the
bedrock principles of contemporary international human rights law.142Ubi ius ibi remedium - "where there is
a right, there is a remedy."143 It is settled that gross human rights violations give rise to a right to remedy
for victims, which in turn implies a duty on the part of states to provide the same.144 This obligation is based
on the principle that failure to provide an adequate remedy for violations renders the duty to respect the
rights involved meaningless and illusory.145cha nro bleslaw

Under Treaties

International human rights law instruments, both global and regional, impose upon states the duty not
merely to offer a remedy, but also to ensure that the remedy provided is "effective." This rule is clearly
demonstrated in the provisions discussed below.

It is an accepted principle that "[e]veryone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution or by law."146 This rule is
further developed in Article 2 of the ICCPR, which provides: ChanRobles Vi rt ualawlib ra ry

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
chanRoble svirtual Lawlib ra ry

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.147
Explaining the nature of the obligations imposed by this provision, the UNHRC stated that the grant of
reparations to individual victims is a central component of this legal obligation.148 chan rob leslaw

A similar guarantee of effective remedies is included in the Convention on the Elimination of Racial
Discrimination (CERD),149 while the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention Against Torture)150 refers to an equivalent right in the form of redress
and compensation.151 This right to redress was clarified in General Comment No. 3152 of the UN Committee
Against Torture (UNCAT) as a comprehensive reparative concept, which embraces both "effective remedy"
and "reparation." Redress "entails restitution, compensation, rehabilitation, satisfaction and guarantees of
nonrepetition and refers to the full scope of measures required to redress violations under the
Convention."153 The committee also emphasized that reparative measures must take into account the
particular needs of the victims and the gravity of the violations committed against them.154 chan robles law

Even regional instruments such as the European Convention for the Protection of Human Rights and
Fundamental Freedoms,155 the American Convention on Human Rights,156 and the Protocol to the African
Charter,157 provide for effective remedies for human rights violations.

Under Customary International Law

At the same time, customary international law, as discerned from the law of state responsibility and the
progressive development of human rights treaty law, is further solidifying the legal basis of the right to
remedy of victims of human rights violations.158 cha nro bleslaw

The Articles on the Responsibility of States for Internationally Wrongful Acts codified by the International
Law Commission (ILC Articles) provides that state responsibility arising from an inte1nationally wrongful
act159 gives rise to the duty to make reparations. Under the ILC Articles, a state held liable for the breach of
an obligation may be required to perform the following acts: (1) cessation of the violation,160 (2) guarantee
of non repetition,161 and (3) full reparation for the injury caused.162 chanrob leslaw

Because of the emergence of human rights in international law,163 the duty to remedy a breach under the
ILC Articles is deemed owed not only to the injured state as traditionally imagined, but also to individuals
whose human rights have been impaired by the breach under a state's jurisdiction.164 The right to effective
remedies and just reparations for individual victims may be culled from the obligations of the state to cease
violations, guarantee non-repetition and make full reparation.165 This right is further affirmed by Article 33 of
the ILC Articles, which declares that the obligation of the state to provide reparations is "without prejudice
to any right, arising from the international responsibility of a State, which may accrue directly to any person
or entity other than a State."166 chanro bles law

To further substantiate the existence of a rule of customary international law on this matter, two
declarations approved by the UNHRC and the UN General Assembly, respectively, may be cited.

The Declaration on the Protection of All Persons from Enforced Disappearance167 issued by the UNHRC is a
body of principles concerning enforced disappearances, including a provision for the right of victims of acts
of enforced disappearance to adequate compensation and complete rehabilitation.168 chan robles law

On the other hand, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power169 offers guidelines in relation to abuse of economic and political power. Through this declaration, the
UN General Assembly recognized that millions of people suffer harm as a result of crime and abuse of
power, and that these victims are entitled to prompt redress and access to the mechanisms of justice.170 chanro bleslaw

These instruments and customary nonns of international human rights law clearly provide for the duty to
grant effective remedies to a victim of violations. More than being an essential component of other
substantive norms, they create a distinct obligation; hence, the failure to provide effective remedies is an
additional and independent violation of internationally recognized human rights.171 chan roble sla w

Defining Effective Remedies

Because an exact definition of an effective remedy is not provided by the foregoing international
instruments, it is necessary to examine the interpretations of authorized bodies, as well as the theory and
practice of international courts, in order to determine the exact scope of the obligation.172 chanrobles law

As the succeeding discussion will show, the duty to provide an "effective remedy" does not embrace a
singular concept. Rather, that duty embodies a variety of measures more aptly referred to as holistic
"reparations."

3. The obligation of the state to provide an effective remedy incorporates the duty to offer holistic
reparations.

The right to effective remedy is comprised of two dimensions: procedural and substantive.173 As explained
by the UNCAT in General Comment No. 3: ChanRoblesVirt ualawli bra ry

The obligations of States parties to provide redress under Article 14 are two-fold: procedural and
substantive. To satisfy their procedural obligations, States parties shall enact legislation and establish
complaints mechanisms, investigation bodies and institutions, including independent judicial
bodies, capable of determining the right to and awarding redress for a victim of torture and ill-treatment,
and ensure that such mechanisms and bodies are effective and accessible to all victims. At the substantive
level, States parties shall ensure that victims of torture or ill-treatment obtain full and effective redress
and reparation, including compensation and the means for as full rehabilitation as
possible.174 (Emphasis supplied)
In other words, the procedural dimension refers to the legal means by which alleged human rights violations
are addressed by an impartial authority; the substantive dimension involves prompt and effective reparation
for the harm suffered.175chanrob leslaw

The right to reparations is therefore but one side of an effective remedy, and is a crucial element in
delivering justice to victims.176 As such, the duty to provide reparations is as binding as the duty to provide
effective remedies. This principle is clearly enunciated in international instruments, to the extent that it has
achieved a non-derogable status.177 As the International Criminal Court (ICC) in Prosecutor v. Thomas
Lubanga Dyilo (Lubanga Case)178 ratiocinated: ChanRob les Vi rtualawl ib rary

The Chamber accepts that the right to reparations is a well-established and basic human right, that
is enshrined in universal and regional human rights treaties, and in other international
instruments, including the UN Basic Principles; the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power; the Guidelines on Justice in Matters involving Child Victims and Witnesses of
Crime; the Nairobi Declaration; the Cape Town Principles and Best Practices on the Recruitment of Children
into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa; and the
Paris Principles. These international instruments, as well as certain significant human rights reports, have
provided guidance to the Chamber in establishing the present principles.179 (Emphasis supplied)
Understanding Reparations

The term reparation is derived from the word repair. Thus, it is often perceived as making of amends by
providing recompense to persons who suffered loss or harm due to gross human rights violations.180 Within
the context of State responsibility, it pertains to a series of actions expressing the State's acknowledgment
and acceptance of its responsibility in consequence of the gross violations. Reparation therefore denotes all
types of redress for victims of human rights violations,181 all seeking to make them whole again to the fullest
extent possible. The Chorzow Factory case182 decided by the Permanent Court of International Justice (PCIJ)
in 1928 provides the leading definition of the concept: ChanRoble sVirt ualawli brary

Reparation must, as far as possible, wipe out all consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been committed.183
Reparation, as a means to provide redress for past violations, goes to the very heart of human protection. It
has been recognized as a "vital process in the acknowledgment of the wrong done to the victim, and a key
component in addressing the complex needs of victims in the aftermath of violations of international human
rights and humanitarian law."184 As explained by the Inter-American Commission of Human Rights (IACtHR)
in its Report on the Implementation of the Justice and Peace Law:185
The [Inter-American Court of Human Rights] considers that, beyond the established legal system, the State
has a key role and a primary responsibility to guarantee that victims of crimes against international law will
have effective access under conditions of equality to measures of reparation, consistent with the standards
of international law governing human rights. Access to reparations for victims of crimes against humanity
must never be subject exclusively to determination of the criminal liability of the perpetrators, or the prior
disposal of their personal goods, licit or illicit.186 c han robles law

xxxx

The State must play a primary, rather than a secondary, role in guaranteeing victims' access to reparations
in accordance with the standards of international law.187
UN Reparations Principles

The most important text dealing with the concept of reparations is 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 (UN Reparations Principles).188 This text is regarded as
the international standard for the provision of reparations around the world.189 chan robles law

The UN Reparations Principles was the product of the work of Theodoor Van Boven, who was appointed in
1989 by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, to
examine the possibility of developing basic principles and guidelines on remedies for gross violations.190 Van
Boven's work resulted in a landmark final report in 1993, also known as the Van Boven Principles, which
declared that human rights violations give rise to a right of reparation for victims.191 These principles
attribute the State's duty to make such reparations to its obligation to afford remedies and ensure respect
for human rights and fundamental freedoms.192 chan roble slaw

After 15 years of consideration, the UN General Assembly adopted the UN Reparations Principles on 16
December 2005193 without a vote. While these principles are argued to be soft law, they are considered
binding on states because they elucidate the basic standards applicable to reparations internationally and
domestically.194 The number of states in the UN General Assembly that accepted the resolution by consensus
likewise indicates the authoritative weight of the principles, and signifies the status of these rules as part of
emerging customary international law.195 chan roble slaw

It must be emphasized that the UN Reparations Principles is not a source of new commitments but rather a
statement of existing obligations, as it expresses the content of international law on reparations to ensure
that this is respected. This view was explicitly set out in the prefatory statement of the principles: ChanRoble sVirtualawl ibra ry

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 x x x.196
Therefore, the state obligation to provide reparations to victims of human right violations - as established in
this text - takes its normative character from existing legal obligations under international human rights law.
As declared in the Preamble197 and Parts I198 and II199 of the UN Reparations Principles, the underlying
framework of this document is grounded on the right to effective remedies enshrined in international human
rights law.
"Adequate, effective and prompt reparation for harm suffered" is, in fact, a component of the remedies
required to be accorded to victims of gross violations of international human rights law, and serious
violations of international humanitarian law.200 Elaborating on the purpose and scope of reparation, the UN
Reparations Principles provides: ChanRobles Vi rt ualawlib ra ry

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.

xxxx

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.
Holistic Approach to Reparations

Although the PCIJ in the Chorzow Factory case201 declared that the ultimate goal of reparation is restitutio in
integrum,202 or the return of the victims to a situation prior to the unlawful conduct, it is acknowledged that
human rights violations are impossible to rectify. As aptly stated by Special Rapporteur Van Boven in his
final report: ChanRob les Virtualawl ibra ry

It is obvious that gross violations of human rights and fundamental freedoms, particularly when they have
been committed on a massive scale, are by their nature irreparable. In such instances any remedy or
redress stands in no proportional relationship to the grave injury inflicted upon the victims. It is
nevertheless an imperative norm of justice that the responsibility of the perpetrators be clearly established
and that the rights of the victims be sustained to the fullest possible extent.203 (Emphasis supplied)
This view was seconded by Judge A.A. Cancado Trindade of the IACtHR in his Separate Opinion in Bulacio v.
Argentina,204 He opined "the harm cannot be erased. Instead, reparations for human rights violations only
provide the victims the means to attenuate their suffering, making it less unbearable, perhaps
bearable."205 chan robles law

These statements reflect the underlying idea that the reparations in the UN Reparations Principles are
envisioned to extend beyond the pecuniary or material dimension. Rather, holistic reparation is the key. This
conclusion is supported by Principles 19 to 23 of the UN Reparations Principles pertaining to the five forms of
full and effective reparation: ChanRobles Vi rtua lawlib rary

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:
chanRoble svirtual Lawlib ra ry

(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:
chanRoble svirtual Lawlib ra ry

(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 acknowledgement 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:
chanRoble svirtual Lawlib ra ry

(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 tor 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.
Clearly, aside from addressing the injuries suffered by victims through financial compensation, reparation
also addresses a broader set of issues, through the prevention of future human rights violations. It
addresses "democracy, good governance, and building an inclusive political community. Reparations includes
recognition, acknowledgment of violations and state responsibility. It can contribute to structural
transformation"206 while also seeking to promote peace and reconciliation.207 This holistic approach to
reparation is followed in other human rights institutions like the UNCAT, the UNHRC, the ICC, the IACtHR
and the European Court of Human Rights (ECHR).

General Comment No. 3 of the UNCAT emphasizes that "monetary compensation alone may not be sufficient
redress for a victim of torture and ill-treatment. The Committee affirms that the provision of only monetary
compensation is inadequate for a State party to comply with its obligations under article 14."208 General
Comment No. 31 of the UNHRC likewise notes that "where appropriate, reparation can involve restitution,
rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-
repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of
human rights violations."209 chanrobl eslaw

The holistic approach was likewise applied by the ICC to the Lubanga Case,210 in which it held that victims of
war crimes, crimes against humanity, and genocide have a fundamental right to receive reparations. The
trial chamber observed that reparations "go beyond the notion of punitive justice, towards a solution which
is more inclusive, encourages participation and recognizes the need to provide effective remedies for
victims."211 It then explained that reparations must be applied in a broad and flexible manner, so as to allow
it to approve the widest possible remedies for violations of the rights of the victims.212 chan roble slaw

In Blazek v. Czech Republic, the UNHRC declared that a remedy is only effective if it results in adequate
measures of reparation granted to victims. It further provided that the approach must be holistic so as to
put the needs and interests of the victim at the center of the process with the aim of restoring the latter's
dignity.213 c hanrobles law

For its part, the IACtHR made it clear that as a principle of international law, every violation of an
international obligation that results in harm creates a duty to make adequate reparation. In this respect, the
Court ruled that reparation
consists in full restitution (restitutio in integrum), which includes the re establishment of the previous
situation. If this is not feasible, as in most cases of human rights violations, the Court will determine
measures to guarantee the rights that have been violated and to redress the consequences of the violations.
Therefore, the Court has found it necessary to award different measures of reparation in order to redress
the damage fully, so that, in addition to pecuniary compensation, measures of restitution, rehabilitation and
satisfaction, and parantees of non-repetition, have special relevance to the harm caused.214
It is noteworthy that the IACtHR has constantly addressed human rights violations of a widespread nature,
which can be attributed to the authoritarian regimes and violent conflicts in Latin America during the 1970s
and early 1980s.215 Consequently, IACtHR rulings are particularly relevant to our discussion of the
authoritarian Marcos regime.

Lastly, while the ECHR has awarded "just satisfaction" partaking of a pecuniary nature in most of its
cases,216 the intention to provide a holistic approach in providing effective satisfaction can be discerned in
its Vagrancy Cases against the Belgian Government: ChanRobles Vi rtual awlib rary

[I]f the victim, after exhausting in vain the domestic remedies before complaining at Strasbourg of a
violation of his rights, were obliged to do so a second time before being able to obtain from the Court just
satisfaction, the total length of the procedure instituted by the Convention would scarcely be in keeping with
the idea of the effective protection of human rights. Such a requirement would lead to a situation
incompatible with the aim and object of the Convention.217 chan roble slaw

xxxx

Nevertheless, the provisions of Article 50 which recognise the Court's competence to grant to the injured
party a just satisfaction also cover the case where the impossibility of restitutio in integrum follows from the
very nature of the injury; indeed common sense suggests that this must be so a fortiori.218
B. The burial would contravene the duty of the Philippines to provide reparations to victims of
human rights violations during the Marcos regime.

It is evident from the foregoing discussion that the Philippines is obligated to provide holistic reparations to
victims of human rights violations during Martial Law. In fact, as discussed in the previous section, R.A.
10368 acknowledged the "moral and legal obligation [of the State] to recognize and/or provide reparation to
said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered
under the Marcos regime."219 As stated in the Explanatory Note of House Bill No. 54 - one of the progenitors
of R.A. 10368 - this recognition was one of the main features of the law: ChanRobles Virtualawl ibra ry

Among the important features of this bill are:

One, Congress recognition that those who have filed a case against the Marcoses before the US Federal
chanRoble svirtual Lawlib ra ry

District Court in Hawaii and are given favorable judgment are considered human rights violations victims.
This is called legislative cognizance.

Two, any person who has secured or can secure a favorable judgment from any court in the country arising
from a human rights violation is given a so-called conclusive presumption that he or she is a human rights
violation victim.

Three, some ten billion pesos of funds seized from bank accounts and discovered investments of the Marcos
family shall be used to compensate the victims; and cralawlawlib rary

Four, an independent Human Rights Victims Compensation Board is created attached to, but not necessarily
under the direct supervision of the CHR to ensure the proper disposition of the funds guided by this Act.

No amount of money can really be enough to compensate our living heroes and those survived by their
kinds for the democracy that our people are now enjoying. The least we can do though is pass this bill to
honor, in our small way, the sacrifices, that they have made for our country.220
The law also recognized the binding nature of the Decision of the US Federal District Court of Honolulu,
Hawaii,221 by creating a conclusive presumption that the claimants in the case against the Estate of
Ferdinand Marcos were human rights violations victims.222 In that case, compensatory and exemplary
damages were awarded to (a) the class plaintiffs who were declared to have been tortured; or (b) the heirs
and beneficiaries of those who were summarily executed, or who disappeared while in the custody of
Philippine military or paramilitary groups.223 Several petitioners in the present case were claimants therein
and are thus conclusively considered victims of human rights during the Marcos regime.

Both monetary224 and non-monetary225 forms of reparations were provided for in R.A. 10368. These
measures notwithstanding, the members of the Bicameral Conference Committee emphasized the symbolic
value of recognition in acknowledgment of the fact that material forms of reparation are not sufficient to
atone for the suffering of the victims of atrocities:
ChanRob les Virtualawl ibra ry

Sen. Guingona: Page 5, letter (d) "Monetary Compensation refers to financial consideration equivalent to."
Then, we changed "economically assessable damage" just to - We just make it "refers to financial
consideration extended to human rights violation victims."

Ang rationale dito kasi this one implies - The present definition implies that the damage - When
you're human rights victim, it can be equivalent to a material damage when actually there is no
adequate compensation when your human rights are violated. So we just make it just "financial
consideration extended to human rights violation victims as defined in this Act." Ganoon.

Rep. Lagman: Baka instead of financial consideration, maski iyong consideration, ano, eh - Ah, financial
reparation.

Sen. Guingona: Okay.

Rep. Lagman: Reparation.

Sen. Guingona: Reparation. Instead of "economically assessable" parang sinasabi mo you[r] right
has been violated but that's eqivalent to this amount.226 chanrob leslaw

xxxx

Sen. Arroyo: x x x Here, we seemed to be concerned about the physical aspects of human rights, meaning
torture and all that. But take for instance, those who were economically depressed, harassed. You mean to
say the family of Chino Roces, who lost his entire Manila Times and his family, is not really living in poverty
x x x.

Now they will not ask for compensation but they would want recognition. This is the purpose of
recognition. That is why to us that roll of honor is very important. Because to others, they just
want to be recognized.227 (Emphasis supplied)
Considering the foregoing, the intent is that not only must material reparation be provided by the state to
human rights victims, the prohibition against public acts and symbolisms that degrade the recognition of the
injury inflicted - although not expressly mentioned in the statute - are likewise included in the obligation of
the state. Therefore, while the passage of legislative measures and the provision of government
mechanisms in an effort to comply with this obligation are lauded, the State's duty does not end there.

Contrary to the implications of the ponencia, the statutes, issuances, and rules enacted by the different
branches of government to promote human rights cannot suffice for the purpose of fulfilling the state's
obligation to the human rights victims of former President Marcos. These enactments cannot erase the
violations committed against these victims, or the failure of the state to give them justice; more important,
these enactments cannot negate the further violation of their rights through the proposed burial.

It must be emphasized that the obligation owed by the Philippine government to the victims of human rights
violations during Martial Law is distinct from the general obligation to avoid further violations of human
rights. As distinct species of obligations, the general duty to prevent further human rights violations cannot
offset the right of past victims to full and holistic reparations. Their rights under international law have
already been violated; they have already disappeared, been tortured or summarily executed.228 The
government cannot choose to disregard their specific claims and assert that it has fulfilled its obligation to
them merely by enacting laws that apply in general to future violations of human rights.

As will be further discussed, victims of human rights violations during the Martial Law regime have a distinct
right to holistic reparations, including the grant thereof in symbolic form.

1. Symbolic reparation is an indispensable facet of an adequate reparations regime.

Symbolic forms of reparation are mandated by international law and are considered hallmarks of any
reparations regime.229 Within the framework of the UN Reparations Principles, satisfaction and guarantees of
nonrepetition are described as symbolic, because they involve a greater intangible element.230 On the other
hand, restitution, compensation, and rehabilitation are typically financial or material in character. As earlier
explained, a comprehensive and holistic program of reparations is expected to contain aspects of both.231 chanrobles law

Symbols as sources of meaning

The collective dimension of symbolic reparations is the source of their value.232 Symbolic reparations extend
beyond the victim and their families, and represent a demand for recognition, respect, dignity, and hope for
a safe future.233 They assist communities as a whole in dealing with the process of remembering and
commemorating the past.234 In other words, symbolic measures provide moral reparation,235 which is
considered by victims to be of equal or higher importance than material or physical reparation.

The United Nations, in its guidelines for reparation programs for postconflict states, describes the
significance of symbolic reparations in this manner: ChanRoblesVi rtua lawlib rary

As many recent reparations programmes have been proposed by truth commissions (which have broader
mandates and goals than typical judicial instances), they are becoming less like mere compensation
mechanisms and are increasingly proposing more complex reparations measures, including symbolic ones.
Individualized letters of apology signed by the highest authority in Government, sending each victim a copy
of the truth commission's report and supporting families to give a proper burial to their loved ones are some
of the individual symbolic measures that have been tried with some success in different contexts. Some of
the collective symbolic measures that have been tried are renaming public spaces, building museums and
memorials, rededicating places of detention and torture, turning them into sites of memory, establishing
days of commemoration and engaging in public acts of atonement. Like other reparations measures,
symbolic benefits are, at least in part, geared towards fostering recognition. However, in contrast to
other benefits, symbolic measures derive their great potential from the fact that they are carriers
of meaning, and therefore can help victims in particular and society in general to make sense of
the painful events of the past. Symbolic measures usually turn out to be so significant because,
by making the memory of the victims a public matter, they disburden their families from their
sense of obligation to keep the memory alive and allow them to move on. This is essential if
reparations are to provide recognition to victims not only as victims but also as citizens and as
rights holders more generally.236 (Emphasis supplied)
Restitution, compensation, and rehabilitation under the UN Reparations Principles, while necessary, are
lacking in this symbolic dimension. Monetary forms of reparation can indeed provide funds for certain
necessities and improve the future of victims, but without more, it is unlikely that they would lead to the
justice sought.

Moreover, it has been observed that human rights victims want an apology, above all else.237 They also
place a premium on obtaining recognition of the harm done to them.238 In contrast, financial reparations or
damages are considered less important than emotional or symbolic reparations, because the former fail to
squarely address a person's need for "dignity, emotional relief, participation in the social polity, or
institutional reordering."239 If given in isolation, monetary reparation may even have a trivializing effect on
suffering in certain cultural, social, and political contexts.240 chan robles law

Forms of Symbolic Reparation

Because of its peculiar nature, symbolic reparation takes various forms. An examination of the UN
Reparations Principles, as well as the decisions of international and regional courts, reveals that different
measures have been utilized to satisfy this requirement.

The following have been identified as examples of measures intended to offer satisfaction to victims of
atrocities: (a) "verification of the facts and full and public disclosure of the truth";241 (b) "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";242 (c) "public apology";243 and (d) "commemorations and
tributes to the victims."244 These methods deal with the emotional, psychological, and symbolic aspects of
the suffering of the victims,245 and are primarily concerned with the restoration of their dignity through an
acknowledgment by the state of the harm done.

Guarantees of non-repetition, on the other hand, focus on reform and restructuring initiatives pursuant to
the state's commitment to never again engage in the practices that led to human rights violations.246 The
actual steps taken by state institutions represent the guarantees of non-repetition. These steps include
"promoting mechanisms for preventing and monitoring social conflicts and their resolution"247 and "reviewing
and reforming laws contributing to or allowing gross violations of international human rights law."248 chanrob leslaw

Meanwhile, the ICC in the Lubanga Case considered the conviction and the sentence issued by the Court
itself as forms of reparation on account of their significance to the victims and the communities.249 In turn,
the IACtHR - the most progressive court in terms of granting reparations to victims of human rights
violations - has ordered the following measures as part of "other forms of reparation": (a) the construction
of monuments to commemorate the suffering of victims,250 (b) the naming of a school after them,251 (c) the
designation of a day of remembrance for them,252 (d) the conduct by the state of public ceremonies offering
apologies in honor of the fallen;253 (e) the establishment of memorial scholarships;254 and (f) human rights
courses.255chan robles law

Memorials as Symbolic Reparation

In a report on memorialization processes utilized by states transitioning from conflicts or periods of

repression, Farida Shaheed, the UN Special Rapporteur in the field of cultural rights, identified memorials as
"physical representation[s] or commemorative activities, located in public spaces, that concern specific
events regardless of the period of occurrence (wars and conflicts, mass or grave human rights violations), or
the persons involved (soldiers, combatants, victims, political leaders or activists for example)."256 chan roble slaw

In recent times, memorials have become principally focused on honoring the victims of human rights
atrocities. As Special Rapporteur Shaheed explained, memorials were utilized as a means of "ensuring
recognition for the victims, as reparation for mass or grave violations of human rights and as a guarantee of
non-recurrence,"257 as well as a way to combat injustice and promote reconciliation.258 This trend was
followed in post-conflict states, where memorials commemorating victims of human rights violations were
regularly established. The Report states: ChanRobles Virtualawl ibra ry

An exhaustive list of all truth and reconciliation commissions that have advocated the construction of
memorials is beyond the scope of this document. Nevertheless, one should mention the recommendations of
the truth and reconciliation commissions in El Salvador, Germany, Guatemala, Peru, Morocco and South
Africa and the commission of inquiry in Chad, even though not all their recommendations were
implemented.

The Commission on the Truth for El Salvador clearly called in its report for the construction of a national
monument in El Salvador bearing the names of all victims of the conflict, recognition of their good name and
the serious crimes of which they were the victims and the institution of a national holiday in memory of the
victims of conflict as a symbol of reconciliation.

Similarly, the Commission for Historical Clarification in Guatemala recommended, among other things, that
monuments and parks be constructed and the names of victims assigned to public buildings and highways in
memory of the victims. The Commission stated that "the historical memory, both individual and collective,
forms the basis of national identity."259
The reason behind the creation of memorials intended to commemorate victims of atrocities was explained
by Special Rapporteur Shaheed in relation to the duty to provide symbolic reparations: ChanRobles Virtualawl ibra ry

With the passage of time, memorials have shifted from honouring soldiers dying in the line of duty to a
victims' perspective and new visions of reconciliation. Starting in the 1980s, the creation of memorials has
become linked to the idea that ensuring public recognition of past crimes is indispensable to the victims,
essential for preventing further violence and necessary for redefining national unity. Memorialization is often
a demand of victims and society at large and the path to national reconciliation is seen to pass through not
only legal reparations, but also symbolic reparations such as memorials.260
2. The proposed burial would be the antithesis of an act of symbolic reparation.

In the present case, the dispute also involves the creation of a memorial in the form of a burial plot located
at the LMB. Instead of commemorating victims, however, the memorial proposes to honor Marcos, the
recognized perpetrator of countless human rights violations during the Martial Law regime. The
establishment of this memorial would accomplish the exact opposite of what is intended by symbolic
reparation, and would consequently violate the obligations of the Philippines under international human
rights law.

For reasons previously discussed, the burial of Marcos would be more than a simple matter of the intennent
of his remains, because it would involve his victims' right to symbolic reparations. Undoubtedly, to honor the
very perpetrator of human rights atrocities would be the direct opposite of the duty of the state to respect,
promote, and fulfil human rights.

These conclusions are supported by the opmwn of UN Special Rapporteur Pablo De Greiff in the analogous
case of another dictator, General Francisco Franco of Spain, and his burial place - the Valle de los
Caidos (Valley of the Fallen).261 The site, located in Madrid, serves as a monument and a memorial, as it is
also the burial ground of almost 34,000 other individuals. The structure, however, is still considered by
many as "an exaltation of Francoism"262 and a reminder of the forced labor of thousands of political
prisoners who were compelled to build the structure.263 c hanro ble slaw

In his Report on the promotion of truth, justice, reparation and guarantees of non-recurrence,264 Special
Rapporteur De Greiff studied the fate of symbols of Francoism in relation to the then newly enacted 2007
Law of Historical Memory.265 This law dealt with the recognition of victims of human rights violations during
the Spanish Civil War and the 40-year regime of General Franco.

Special Rapporteur De Greiff reviewed, in particular, the effects of a provision in the Law of Historical
Memory requiring the removal of all memorials related to Franco and the latter's dictatorship. In his report,
he welcomed the measures introduced to combat the exaltation of the coup d'etat, the Civil War, and the
repression by the Franco dictatorship, particularly through the removal of symbols and monuments.266 He
further noted "majority of inventoried symbols and monuments had been removed, and that the remaining
symbols and monuments either required a lengthy administrative procedure or considerable expense, or
were subject to protection rules for their historic or artistic value."267 chanro bleslaw

As part of the implementation of the Law of Historical Memory, the removal of Valle de los Caidos was
proposed because of its ties to General Franco and Francoism. However, because the structure could not be
removed without disturbing the burial grounds of other individuals,268 De Greiff made the following
recommendation with respect to the site: ChanRobles Vi rtualaw lib rary

The site can be put to good use and "reinterpreted", with suitable techniques and pedagogy, in favour of the
promotion of truth and memory, and given an educational and preventive purpose. It can hardly be
construed as a place devoted to peace and reconciliation, so long as silence is maintained about
the facts relevant to the context and origin of the site, and especially while the flower-covered
tomb of the dictator remains in the centre of the monument.269 [Emphasis supplied]
The necessity for the reinterpretation and "recontextualization" of the Valle de los Caidos highlights the fact
that far from being an ordinary burial plot, the final resting place of a dictator and perpetrator of human
rights violations is a symbol and a source of meaning. The meaning it conveys, particularly to the victims of
atrocities, cannot be underestimated. Special Rapporteur Shaheed, in her report on memorialization
processes, also expressed concerns about the monuments and sites intended to honor past oppressive
regimes: Cha nRobles Vi rtua lawlib rary

The question is how to manage an architectural legacy with strong symbolic connotations when oppressive
regimes collapse. Should a new democratic Government destroy, conserve or transform these legacies?
Answers vary from situation to situation, frequently giving rise to intense controversy, including amongst
victims. Striking examples include debates in Spain over the memorial in Valle de los caidos (the Valley of
the Fallen) where Franco is buried, in Bulgaria over the mausoleum of former communist leader Georgy
Dimitrov, which was finally destroyed, and in Germany over Hitler's bunker, now located beneath a parking
lot in the centre of Berlin, marked only by a small sign.270
Shaheed therefore concludes "the choice to conserve, transform or destroy always carries meaning
and so needs to be discussed, framed and interpreted." 271 In this undertaking, the concerns and
views of victims are given primary consideration and for good reason - they are, after all, the
persons most affected by any decision on the matter.
In this case, the victims of human rights violations have expressed their objection to the proposed
burial of Marcos in the LMB. They assert that the burial would constitute a state-sanctioned
narrative that would confer honor upon him.272This, in turn, would subject his human rights
victims to the same indignity, hurt, and damage that they have already experienced under his
regime.273 chanrobles law

These opinions must be given paramount consideration by the state in compliance with its duty to provide
symbolic reparations to victims of human rights atrocities. For the President to allow the burial in disregard
of these views would constitute a clear contravention of international human rights law and would amount to
grave abuse of discretion.

C. The burial would run counter to the duty of the state to combat impunity.

As part of their obligation to protect and ensure human rights under international law,274 states have the
duty to combat impunity and hold perpetrators of human rights violations accountable. In fact, the clear
nexus between the impunity of perpetrators of gross violations of human rights, and the failure to provide
adequate reparation to the victims275 indicate that the two obligations must go hand in hand.

In his report, Special Rapporteur Theodoor Van Boven concluded that "in many situations where impunity
has been sanctioned by the law or where de facto impunity prevails with regard to persons responsible for
gross violations of human rights, the victims are effectively barred from seeking and receiving redress and
reparation."276 His conclusion is unsurprising, given the significant role of reparations in ensuring that the
perpetrators are held responsible for their actions.

Certainly, states cannot claim to look after the interest of the victims and at the same time endorse a social
and political climate where impunity prevails. This incongruity would be tantamount to a violation of the
victims' right to effective remedy and reparations. In Van Boven's words, "it is hard to perceive that a
system of justice that cares for the rights of victims can remain at the same time indifferent and inert
towards the gross misconduct of perpetrators."277 chanro bleslaw

The UN Impunity Principles

The primary instrument providing for the duty to combat impunity is the UN Set of Principles for the
Protection and Promotion of Human Rights through Action to Combat Impunity (UN Impunity
Principles).278 Like the UN Reparations Principles, this document does not impose new obligations, but only
frames and emphasizes the existing state obligations under international human rights law. This rule is
apparent in the Preamble of the Principles, which cites the UN Charter and the UDHR as the bases for the
statement that "the duty of every State under international law to respect and to secure respect for human
rights requires that effective measures should be taken to combat impunity."279 chanroble slaw

In these Principles, the UN Human Rights Committee enumerates the acts from which impunity may arise.
Principle 1 states: ChanRoble sVirtualawl ibra ry

Impunity arises from a failure by States to meet their obligations to investigate violations; to take
appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that
those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with
effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the
inalienable right to know the truth about violations; and to take other necessary steps to prevent a
recurrence of violations.280
A reading of the UN Principles on Impunity reveals the close relationship between impunity and the concepts
of reparations and the preservation of memory.

Impunity and the Right to Reparation

The provision of effective remedies and reparations for victims has been recognized as one of the means to
combat impunity. Principles 31 and 34 provide: ChanRoble sVirt ualawli bra ry

PRINCIPLE 31. RIGHTS AND DUTIES ARISING OUT OF THE OBLIGATION TO MAKE REPARATION

Any human rights violation gives rise to a right to reparation on the part of the victim or his or her
beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to
seek redress from the perpetrator.
xxxx

PRINCIPLE 34. SCOPE OF THE RIGHT TO REPARATION

The right to reparation shall cover all injuries suffered by victims; it shall include measures of restitution,
compensation, rehabilitation, and satisfaction as provided by international law.
In particular, symbolic reparations are considered significant. In his Report281 on the Question of the
Impunity of Perpetrators of Human Rights Violations (Civil and Political),282 Special Rapporteur Louis Joinet
concluded: ChanRoble sVirt ualawli bra ry

On a collective basis, symbolic measures intended to provide moral reparation, such as formal public
recognition by the State of its responsibility, or official declarations aimed at restoring victims' dignity,
commemorative ceremonies, naming of public thoroughfares or the erection of monuments, help to
discharge the duty of remembrance. In France, for example, it took more than 50 years for the Head of
State formally to acknowledge, in 1996, the responsibility of the French State for the crimes against human
rights committed by the Vichy regime between 1940 and 1944. Mention can be made of similar statements
by President Cardoso concerning violations committed under the military dictatorship in Brazil, and more
especially of the initiative of the Spanish Government, which recently conferred the status of ex-servicemen
on the anti-Fascists and International Brigade members who fought on the Republican side during the
Spanish civil war.283
The Duty to Preserve Memory

Another facet of the fight against impunity involves the duty of a state to preserve the memory of its people.
In this regard, the UN Impunity Principles requires states to combat any measure that tends to encourage
people to forget or downplay past human rights violations. Principle 3 provides: ChanRoble sVirtualawl ibra ry

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 61fulfillment 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.
While the UN Impunity Principles sees reconciliation and justice as the primary goals, it is firm in asserting
that these goals may not be achieved by disregarding human rights atrocities that occurred in the past. In
fact, the principles emphasize that before true reconciliation can be achieved, the human rights violators
must be held accountable. This dictum is reflected in the Preamble of the instrument: ChanRobles Vi rtua lawlib rary

Aware that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied,

Equally aware that forgiveness, which may be an important element of reconciliation, implies, insofar as it is
a private act, that the victim or the victim's beneficiaries know the perpetrator of the violations and that the
latter has acknowledged his or her deeds,

xxxx

Convinced, therefore, that national and international measures must be taken for that purpose with a view
to securing jointly, in the interests of the victims of violations, observance of the right to know and, by
implication, the right to the truth, the right to justice and the right to reparation, without which there can be
no effective remedy against the pernicious effects of impunity.284
Consistent with the foregoing, the UN Impunity Principles imposes restrictions on certain rules of law like
limiting the entitlement of perpetrators to amnesties and other measures of clemency. In Principle 24, the
restrictions are imposed even when clemency measures are "intended to establish conditions conducive to a
peace agreement or to foster national reconciliation."285Joinet, in his report, emphasizes the importance of
accountability in the context of reconciliation: ChanRob les Vi rtualawl ib rary

[T]here can be no just and lasting reconciliation without an effective response to the need for justice; as a
factor of reconciliation, forgiveness, insofar as it is a private act, implies that the victim must know the
perpetrator of the violations and that the latter has been in a position to show repentance. For forgiveness
to be granted, it must first have been sought.286
In this case, the burial of Marcos in the LMB would be tantamount to a disregard of the human
rights violations perpetrated by his regime. To allow it to proceed would sanction an egregious
act of impunity and allow the government to bestow an honor that is clearly not due upon a
perpetrator of human rights violations. To allow it would be a rampant violation of the rights of
victims under international law.
In the process of mapping through the vast body of international human rights law, each turn leads to the
conclusion that the burial of Marcos in the LMB would be incompatible with the international obligations of
the Philippines. For the Court to permit the burial would be to sanction these violations and allow the state
to disregard the latter's duty to provide effective remedies to victims of human rights violations, particularly
its duty to provide symbolic reparations and to combat impunity.

Incorporation of international law principles in Philippine law

The foregoing principles of international law have been incorporated in Philippine law as part of two domestic
statutes intended for the protection of human rights.

As discussed above, R.A. 10368 was enacted pursuant to generally accepted principles of international law.
as well as the specific obligations of the Philippines under international human rights laws and
conventions.287 In accordance with these principles, the statute recognized the "heroism and sacrifices of all
Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other
gross human rights violations" and vowed to "restore the victims' honor and dignity" through the grant of
reparations to victims and/or their families.288
cha nrob leslaw

The same principles were likewise incorporated in R.A. 9851,289 a statute penalizing crimes against
international humanitarian law, genocide, and other crimes against humanity. In providing remedies for
offenses under this law, courts were specifically mandated to follow international principles relating to
reparations for victims, including restitution, compensation, and rehabilitation.290 The statute also
enumerated the sources of international law that may guide the courts in the application and interpretation
of the statute. These sources include international instruments, decisions of international courts and
tribunals, as well as writings of most highly qualified publicists and authoritative commentaries.

The obligation of the state to provide holistic reparations for victims of human rights violations is, therefore,
enshrined in both international and domestic laws. This obligation includes the responsibility to provide
victims with reparations - both financial and symbolic - in recognition of their suffering and heroism. The
grant of reparations should likewise go hand in hand with the duty of the state to combat impunity by
holding perpetrators of human rights violations accountable.

As previously discussed, the proposed burial of former President Marcos in the LMB contravenes these
principles, because it would honor the identified perpetrator of human rights violations. As such, it would
accomplish the exact opposite of what is intended to be accomplished by international and domestic
principles on reparations, i.e., to recognize and honor the sufferings of victims; and to make amends for the
physical, emotional and psychological harm they have sustained. The burial would also perpetuate a climate
of impunity, as it would effectively disregard the human rights violations perpetrated by Marcos and permit
the state to honor him despite his transgressions.

Clearly, the President cannot sanction the burial without going against domestic and international principles,
as well as his solemn oath to faithfully execute the law.

IV.

PUBLIC FUNDS AND PROPERTY CANNOT BE USED FOR THE BURIAL AS IT SERVES NO LEGITIMATE
PUBLIC PURPOSE.

On a final note, I must point out that the discretion of the President in this case is not unlimited, as argued
by respondents. Because their proposal involves public funds and property, certain rules must be complied
with.

Respondents propose the use of a portion of the LMB, a national cemetery owned by the government, for
the interment of Marcos. They likewise intend to use money from the government coffers for the preparation
and maintenance of the gravesite, as well as for military honors to be accorded to the deceased by the AFP.

Considering that public resources would be used for the interment, it is necessary for this Court to
determine if the planned expenditures are for a legitimate public purpose. The reason is simple public
property, including public funds, belongs to the people.291 Hence, it is the duty of the government to ensure
the prudent use of these resources at all times to prevent dissipation and waste.292 As a necessary corollary
to these principles, it is settled that public property and funds may only be used for public purposes.293 chan robles law
This Court has explained the nature and the meaning of the term "public purpose" in the context of public
expenditures in several cases. It has declared that the term includes not only activities that will benefit the
community as a body and are related to the traditional functions of government,294 but also those designed
to promote social justice, general welfare and the common good.295 This broad understanding of the public
purpose requirement, however, does not authorize the use of public funds and property for unmistakably
personal and political motives.296chan roble slaw

Ultimately, the validity of a public expenditure depends on the essential character of its direct object.
In Albon v. Fernando,297 the Court explained: ChanRobles Vi rtua lawlib rary

In Pascual v. Secretary of Public Works, the Court laid down the test of validity of a public expenditure: it is
the essential character of the direct object of the expenditure which must determine its validity
and not the magnitude of the interests to be affected nor the degree to which the general
advantage of the community, and thus the public welfare, may be ultimately benefited by their
promotion. Incidental advantage to the public or to the State resulting from the promotion of private
interests and the prosperity of private enterprises or business does not justify their aid by the use of public
money.298 (Citations omitted and Emphasis supplied)
Based on the foregoing standard, the validity of public expenditures must be determined based on the
nature of the particular expense involved, and the public purpose sought to be accomplished.

As will be explained in further detail, the proposed burial would promote only the private interest of
the Marcos family. Significantly, respondents have failed to prove that any sort of public purpose would be
served by the planned interment; in fact, the event would contravene the public purposes of the LMB.
Consequently, the intended public expenditure cannot be allowed.

A. The burial would contravene the public purpose of the Libingan ng mga Bayani.

The government in this case proposes to shoulder the expenses for the burial of Marcos in the LMB, a
military cemetery maintained on public property and a declared national shrine. The expenses contemplated
are comprised of the cost of a plot inside a military cemetery, the maintenance expenses for the gravesite,
and the cost of military honors and ceremonies.299 chan roble slaw

Generally, burial expenses are not borne by the government because interments are customarily private
affairs. However, as exceptions to the foregoing rule, public expenditure is allowed in the case of cemeteries
that serve certain public purposes, for instance: (a) burial grounds set aside for the indigent in the name of
social justice;300 and (b) cemeteries reserved for individuals deemed worthy of honor and reverence, i.e.,
the nation's war dead, soldiers or dignitaries, of the government.301 The LMB belongs to this second
exception.

Formerly known as the Republic Memorial Cemetery, the LMB was designated by former President Ramon M.
Magsaysay as the national cemetery for the nation's war dead in 1954. Through Executive Order No.
77,302 he ordered that the remains of the war dead interred at the Bataan Memorial Cemetery and other
places be transferred to the LMB to accord honor to dead war heroes; improve the accessibility of the burial
grounds to relatives of the deceased; and consolidate the expenses of maintenance and upkeep of military
cemeteries. He thereafter issued Proclamation No. 86,303 which renamed the cemetery to "Libingan ng mga
Bayani," because the former name was "not symbolic of the cause for which our soldiers have died, and
does not truly express the nation's esteem and reverence for her war dead."

It is therefore evident that the LMB is no ordinary cemetery, but a burial ground established on public
property to honor the nation's war dead and fallen soldiers. Further, the designation of the cemetery as a
national shrine confirms its sacred character and main purpose, that is, to serve as a symbol for the
community and to encourage remembrance of the honor and valor of great Filipinos.304 Respondents
themselves acknowledged this fact when they argued that the LMB implements a public purpose because it
is a military shrine and a military memorial.305 cha nrob leslaw

To allow the LMB to fulfill the foregoing purposes, it has been and continues to be the recipient of public
funds and property. Not only was the cemetery established on land owned by the government, public funds
are also being utilized for the cost of maintenance and other expenses. The use of these resources is
justified because of the public purpose of the site. As a necessary consequence of this principle, an
expenditure that does not further this public purpose is invalid.

Applying the foregoing standards, the proposed expenditures for the burial of Marcos in the LMB must be
considered invalid. As earlier discussed, Marcos was an ousted dictator and disgraced president.
Consequently, he is clearly not worthy of commendation from the state and no public purpose
would be served by his interment therein. In fact, his burial in the LMB would result in a
contravention of the public purpose of the site as it would no longer be a sacred symbol of honor
and valor.

B. Respondents have not explained how the burial would serve the avowed policy of national
unity and healing.

Considering that the public purpose of the LMB would not be served by the intennent, we must now examine
the other public purpose supposedly fulfilled by the proposal. According to respondents, that purpose
pertains to national unity and healing. In their Comment, they contend: ChanRoblesVi rt ualawlib ra ry

Undeniably, no cadaver has polarized this nation for the longest time other than that of the former President
Marcos. Thus, President Duterte deems that it is but high time to put an end to this issue by burying the
mortal remains of a former President, Commander-in-Chief, and soldier.

President Duterte's decision to accord respect to the remains of former President Marcos is not simply a
matter of political accommodation, or even whims. Viewed from a wider perspective, this decision should be
dovetailed to his war against corruption and dangerous drugs, and his recent dealings with the
CPP/NPA/NDF. All these are geared towards changing the national psyche and beginning the painful healing
of this country.306
chanrob leslaw

xxxx

It should likewise be emphasized that President Duterte's order to allow former President Marcos' interment
at the Libingan is based on his determination that it shall promote national healing and forgiveness, and
redound to the benefit of the Filipino people. Surely, this is an exercise of his executive prerogative beyond
the ambit of judicial review.307
It is significant to note, however, that respondents fail to explain how the burial would lead to national unity
and healing. Consequently, their statements remain meaningless assertions. To emphasize, mere reference
to an avowed public purpose cannot automatically justify the use of public funds and property. This Court
must still review the validity of the declared purpose of public expenditure, as well as the reasonable
connection between the objective and the proposed means for its attainment. Our duty to safeguard public
funds and property demands no less. To reiterate, "[p]ublic funds are the property of the people and must
be used prudently at all times with a view to prevent dissipation and waste."308 chanrob leslaw

Furthermore, as previously discussed, it is the essential character of the direct object of public expenditure
that determines its validity,309 and not the incidental advantage derived from it by the community. Hence,
assuming for the sake of argument that the burial· would bear an incidental benefit of promoting unity and
healing, this supposed benefit would not erase the reality that the interment would principally be for the
promotion of the personal interest of former President Marcos and his family.

C. The burial would promote only the private interest of the Marcos family.

It is clear from the foregoing discussion that the burial would ultimately benefit only the Marcos family. No
general advantage is derived by the public from the interment; as it stands, divisiveness instead of unity has
resulted from the plan.

The circumstances surrounding the order of the President to allow the burial likewise reveal the political
color behind the decision. In their Comment, respondents admit that the President ordered the burial to
fulfill a promise made during his presidential campaign.310 It must be pointed out, however, that the
President made that pledge not at any random location, but while campaigning in Ilocos Norte,311 a known
stronghold of the Marcos family. During the oral arguments held in this case, it was also revealed that the
preparations for the burial were prompted by a letter sent by the Marcos heirs to Secretary Lorenzana,
urging him to issue the orders required for the interment at the earliest opportunity.312 chan roble slaw

Needless to state, the private interest of the Marcos family and the personal objective of the President to
fulfill a pledge to his political allies will not justify the proposed public expenditure for the burial.

Indeed, it is completely unseemly for the Marcos family to expect the Filipino people to bear the
financial and emotional cost of burying the condemned former President even while this country
has yet to recover all the ill-gotten wealth that he, his family, and unrepentant cronies continue
to deny them.313 It is wrong for this Government and the Marcos family to refer human rights
victims to the financial reparation provided by Republic Act 10386 as recompense, which moneys
will come, not from the private wealth of the Marcos family, but from the money they illegally
acquired while in office, and on which the Philippine state spent fortunes to recover. Every
Filipino continues to suffer because of the billions of unwarranted public debt incurred by the
country under the Marcos leadership;314 and every Filipino will incur more expenses, no matter
how modest, for the proposed burial. No situation can be more ironic indeed.

EPILOGUE

Stripped to its core, this case involves an order by the President to bury a dictator - one declared to have
perpetrated human rights violations and plundered the wealth of the nation - with all the trappings of a
hero's burial. It may not be an express declaration, as respondents themselves concede that the President
does not have the power to declare any individual a hero, but it is a pronouncement of heroism
nevertheless. It is far from being an empty statement bereft of significance. As respondents themselves
recognize, the nature of the office held by the President provides him the opportunity to "profoundly
influence the public discourse x x x by the mere expediency of taking a stand on the issues of the
day."315 Clearly, the order of the President to allow the burial is, at the very least, a declaration that Marcos
is worthy of a grave at a cemetery reserved for war heroes, despite the objections of countless victims of
human rights violations during the Martial Law regime. It is an executive pronouncement that his memory
may be preserved and maintained using public funds.

Justice Isagani Cruz once stated: "liberty is not a gift of the government but the rights of the
govemed."316 Throughout his regime, Marcos trampled upon this statement by his own acts and those of his
subordinates, in a stampede wrought by the fervor to supposedly protect the nation from lawless elements.
It pitted Filipino against Filipino, masking each face in shades of black or white and sowing fear and terror
whilst reaping a harvest of public treasure. The nation was silenced. But people like petitioners persevered,
keeping in their hearts the essence of Justice Cruz's words. They fought, and the people ultimately rose and
won back the freedom we all now enjoy. The statement continues: ChanRobles Vi rtualaw lib rary

Every person is free, save only for the fetters of the law that limit but do not bind him unless he affronts the
rights of others or offends the public welfare. Liberty is not derived from the sufferance of the government
or its magnanimity or even from the Constitution itself, which merely affirms but does not grant it. Liberty is
a right that inheres in every one of us as a member of the human family.317
To forget that Marcos took this right away from the citizens of the Philippines would be the peak of
intellectual and moral complacency. As a nation of laws, we cannot tolerate anything less than the full
remembrance of a dark past from which we derive lessons that we imbue into the legal firmament. We
cannot tolerate another instance in which our rights would be run to the ground, in which we would lose
sight of the values held in our own Constitution, the symbols we hold dear, the aspirations we cherish. The
LMB is revered because of the symbolism it carries. One treatise on geography and public memory
explains:ChanRoble sVirt ualawli bra ry

Cemeteries, as one type of memorial space, create a symbolic encounter between the living and the dead in
the form of individual gravesites and the ritual activities taking place in the burial space. In contrast to
communal cemeteries, national cemeteries are state shrines that belong to the national narrative of the
people. The heroes buried there - most prominently national leaders and fallen soldiers - are privileged
members of the national pantheon.318
A grave in the LMB is a testament to the honor and valor of the person buried therein. The Marcos family
has long sought a burial for the dictator at this site for this exact reason.

The Court cannot order that a particular event be remembered in a particular way, but it can negate an act
that whimsically ignores legal truths. It can invalidate the arbitrary distillation of the nation's collective
memory into politically convenient snippets and moments of alleged glory. The Court is empowered to do
justice, and justice in this case means preventing a whitewash of the sins of Marcos against the Filipino
people.

The burial of Marcos in the earth from whence he came is his right, despite all that he did. However, his
burial in the grave of heroes on the impulse of one man would continue the desecration of other citizens'
rights, a chilling legacy of the Marcos regime that curiously survives to this very day, long after the death of
the dictator.

Respondents may deny the implications of their actions today,319 but the symbolism of the burial will outlive
even their most emphatic refutations. Long after the clarifications made by this administration have been
forgotten, the gravesite at the LMB will remain. That is the peculiar power of symbols in the public landscape
they are not only carriers of meaning, but are repositories of public memory and ultimately, history.

For the Court to pretend that the present dispute is a simple question of the entitlement of a soldier to a
military burial is to take a regrettably myopic view of the controversy. It would be to disregard historical
truths and legal principles that persist after death. As important, it would be to degrade the state's duty to
recognize the pain of countless victims of Marcos and Martial Law. Regardless of the promised national unity
that the proposed burial will bring, I cannot, in good conscience, support such an expedient and shortsighted
view of Philippine history.

WHEREFORE, I vote to GRANT the Petitions.

Endnotes:

Gloria Macapagal Arroyo v People of the Philippines

EN BANC

April 18, 2017

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; GRANTSthe 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 FUNDSAND 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-017411 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 CASTRO DIOSDADO M. PERALTA

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO JOSE CATRAL MENDOZA

Associate Justice Associate Justice

Please see concurring and

BIENVENIDO L. REYES Dissenting opinion in the main 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

SAMUEL R. MARTIREZ
ALFREDO BENJAMIN S,. 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

DISSENTING OPINION

LEONEN, J:

I maintain my dissent.

This Court's July 19, 2016 Decision 1 sets a dangerous precedent. It effectively requires new
elements to the crime of plunder that are not sustained by the text of the Anti-Plunder Law. In doing
so, this Court sets itself upon the course of encroaching on Congress' plenary power to make laws.·
It also denies the State the opportunity to adequately present its case. Likewise, it unwittingly
licenses the most cunning plunderers to prey upon public funds with impunity.

This is not what the Anti-Plunder Law intends.

Republic Act No. 7080 or the Anti-Plunder Law was adopted in the wake of the Marcos dictatorship,
when the pilferage of the country's wealth by former President Ferdinand E. Marcos, his wife Imelda,
their family and cronies bled the Philippine economy dry. 2 The terms "kleptocracy," "plunder," and
"government by thievery" populated political discourse during Marcos' rule. 3 Their ravaging is
confirmed in jurisprudence. Republic v. Sandiganbayan4professes the Marcos' regime's looting of at
least US$650 million (as of January 31, 2002) worth of government funds.

After the 1986 People Power Revolution, former Senate President Jovito Salonga lamented that
laws already in force, such as Republic Act No. 3019 - the Anti-Graft and Corrupt Practices Act -
"were clearly inadequate to cope with the magnitude of the corruption and thievery committed during
the Marcos years. "5 Thus, he filed in the Senate a bill to address large-scale larceny of public
resources - the anti-plunder bill. Then Representative Loma Yap filed a counterpart bill in the House
of Representatives. 6

The Explanatory Note to Senate Bill No. 733 stated:

The acts and/or omissions sought to be penalized. . . constitute plunder of an entire nation resulting
in material damage to the national economy[, which] does not yet exist in Philippine statute books.
Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the
depravities of the previous regime and as a deterrent to those with similar inclination to succumb to
the corrupting influence of power. 7 (Emphasis supplied)
Senate Bill No. 733 and House Bill No. 22752 were consolidated into Republic· Act No.
7080, 8 which President Corazon Aquino signed on July 12, 1991.9

II

Republic Act No. 7080, as amended by Republic Act No. 7659, defines plunder as follows:

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 or criminal acts as described in Section l(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 life imprisonment with perpetual absolute disqualification from
holding any public office. Any person who participated with said public officer in the commission of
plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances 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 stock derived from the deposit or investment thereof forfeited in favor of
the State. (Emphasis supplied)

This statutory definition may be divided into three (3) main parts.

The first part identifies the persons who may be liable for plunder and the central acts around which
plunder revolves. It penalizes "[a]ny public officer who, by himself or in connivance with members of
his family, relatives ... or other persons, amasses, accumulates or acquires ill-gotten wealth [.]"

The law only requires a showing that a person holds public office. He or she may act alone or in
conspiracy with others. ·Thus, the Anti-Plunder Law explicitly recognizes that plunder may be
committed collectively-"in connivance with" others. In doing so, it makes no distinction between the
conspirators. Glaringly absent is any mention of a so-called "main plunderer" or specific "personal
benefit" gained by any confederate to the crime.

It is also silent on the manner by which conspirators organized themselves, or otherwise went about
committing the offense. Thus, there is no need to show that plunder is centralized. All that Section 2
requires is proof that the accused acted out of a common design to amass, accumulate, or acquire
ill-gotten wealth.

The second part specifies the means through which plunder is committed, that is, "through a
combination or series of overt or criminal acts as described in Section l(d) of Republic Act No. 7080."

"Combination," as used in Section 2 of the Anti-Plunder Law, was explained in Estrada vs.
Sandiganbayan 10 to refer to "at least any two different predicate acts in any of said items" in Section
1 (d). 11 "Series" was explained as synonymous to "on several instances" 12 or a "repetition of the
same predicate act in any of the items in Section l(d) of the law." 13

The "overt or criminal acts described in Section 1 (d)" are the following:

a. Misappropriating, converting, misusing, or malversing public funds; or raiding on the public

treasury;
 b. Receiving any commission or kickbacks from a government contract or project, or by
reason of one's. office or position;

c. Fraudulently disposing government assets;

d. Obtaining any interest or participating in any business undertaking;

e. Establishing monopolies or implementing decrees that benefit particular persons or

interests; and

f. Taking undue advantage of one's official position or influence to enrich oneself at the
expense of the People and the Republic.

Like Section 2, Section 1 (d) does not speak of any "main plunderer" or any "personal benefit"
obtained. In defining "ill-gotten wealth," it merely speaks of acquisitions made through a
"combination or series" of any, some, or all of the six (6) identified schemes. Thus, for example, two
(2) instances of raiding on the public treasury suffice to sustain a finding of plunder.

As I noted in my dissent to the majority's July 19, 2016Decision: 14

Section 2 does not require plunder to be centralized, whether in terms of its planning and execution,
or in terms of its benefits. All it requires is for the offenders to act out of a common design to amass,
accumulate, or acquire ill-gotten wealth, such that the aggregate amount obtained is at least
₱50,000,000.00. 15

The third part specifies the threshold amount for plunder. It must be "in the aggregate amount or
total value of at least Fifty million pesos (₱50,000,000.00)[.]" The law speaks of an "aggregate
amount." It also uses the term, "total value," to highlight how the amount must be counted in its
whole, and not severed into parts. How this Court has replaced the statutory requirement of
"aggregate amount" or "total value" to mere "aliquot" shares 16 is bewildering.

It is not for this Court to repeal or modify statutes in the guise of merely construing them. Our power
to interpret law does not encompass the power to add to or cancel the statutorily prescribed
elements of offenses.

III

The most recent jurisprudence on plunder prior to this case is Enrile v. People. 17 Promulgated on
August 15, 2015, Enrile specifies the elements of plunder under Republic Act No. 7080, as follows:

[T]he elements of plunder are:

(1) That the offender is' a public officer who acts by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates, or other persons;

(2) That he amassed, accumulated or acquired ill-gotten wealth through a combination or

series of the following overt or criminal acts:

a. through misappropriation, conversion, misuse, or malversation of public funds or

raids on the public treasury;
 b. by receiving, directly or indirectly, any commission, gift, share, percentage,
kickback or any other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer;

c. by the illegal or fraudulent conveyance or disposition of assets belonging to the

National Government or any of its subdivisions, agencies or instrumentalities of
Government owned or -controlled corporations or their subsidiaries;

d. 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;

e. 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

f. by taking advantage of official position, authority, relationship, connection or

influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines; and,

(3) That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated
or acquired is at least ₱50,000,000.00. 18 (Emphasis in the original)

Enrile is faithful to the text of the Anti-Plunder Law. It makes no reference to a "main plunderer" or to
"personal benefit." The prosecution and the Sandiganbayan were correct to rely on this recital of
elements in the course of the proceedings that culminated in the Sandiganbayan' s assailed
September 10, 2015 Resolution.

The Office of the Ombudsman laments that this Court has effectively increased the elements
required for conviction. 19 Coming at the heels of our definitive pronouncements in Enrile, the
prosecution was caught by surprise. 20

The majority's July 19, 2016 Decision states:

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 coconspirators, who may be members of her family,
relatives by affinity or consanguinity, business associates, subordinates 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 ... 21 (Emphasis
and underscoring supplied)

The July 19, 2016 Decision proceeds to cite the 2002 Decision in Estrada v. Sandiganbayan22 (2002
Estrada case) in support of the supposed need for a specification of a "main plunderer" and of
"personal benefit":
This interpretation is supported by [Jose "Jinggoy "] 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.23 (Emphasis and underscoring in the original)

The majority's sweeping reliance 24 on the 2002 Estrada case is misplaced. It fails to account for
nuances that engendered the pronouncements made in Estrada.

The 2002 Estrada25 case referred to one (1) of five (5) cases filed against former President Joseph
Ejercito Estrada, his family, and associates. It explicitly acknowledged that the five (5) criminal
complaints were "an offshoot of the impeachment proceedings against [former President] Estrada."26

More specifically, the 2002 Estrada case involved a separate charge of plunder against Pres,ident
Estrada's son, Jose "Jinggoy" Estrada. Thus, it became necessary to state in the information that
Jinggoy Estrada engaged in a conspiracy with his father. 27 That case needed to specifically establish
the conspiracy linkage between former President Estrada·and Jinggoy Estrada:

From a reading of the Amended Information, the case at bar appears similar to a "wheel" conspiracy.
The hub is former President Estrada while the spokes are all the accused [Jose "Jinggoy" Estrada,
et al.], and the rim that encloses the spokes is the common goal in the overall conspiracy, i.e., the
amassing, accumulation and acquisition of ill-gotten wealth. 28

Notwithstanding these nuances in the 2002 Estrada case, it remains that, in a conspiracy:

[T]he act of one is the act of all the conspirators, and a conspirator may be held as a principal even if
he did not participate in the actual commission of every act constituting the offense. In conspiracy, all
those who in one way or another helped and cooperated in the consummation of the crime are
considered co-principals since the degree or charac.ter of the individual · participation of each
conspirator in the commission of the crime becomes immaterial. 29

There is no need to identify a "main conspirator" and a "coconspirator." For the accused to be found
liable as a co-principal, prosecution must only show:

[A]n overt act in furtherance of the conspiracy, either by actively participating in the actual
commission of the crime, or by lending moral assistance to his co-conspirators by being present at
the scene of the crime,. or by exerting moral ascendancy over the rest of the conspirators as to
move them to executing the conspiracy. 30
Unlike in the 2002 Estrada case, all of the accused here are charged in the same information; not in
five (5) separate informations that were explicit "offshoots of the impeachment proceedings against
former President Estrada." 31

The present case is more akin to that involved in the 2015 Enrile Decision. There, the accused
public officer, Senator Juan Ponce Enrile, along with his Chief of Staff, Jessica Lucila G. Reyes, as
well as Janet Lim Napoles, Ronald John Lim, and John Raymund de Asis were charged in the same
information with conspiring to commit plunder. Enrile never required the identification of a "main
plunderer" or the showing of any "personal benefit" obtained. It is the more appropriate benchmark
for this case.

IV

The July 19, 2016 Decision's requirement of a specification of a "main plunderer" and of "personal
benefit," which was imposed only after the prosecution presented its case before the
Sandiganbayan, makes it necessary for the prosecution to, at least, be given an opportunity to
address this novel requirement. Otherwise, the prosecution shall have been deprived of due process
to adequately ventilate its case. Thus, a favorable action on the prosecution's Motion for
Reconsideration is not a violation of petitioners' right against double jeopardy.

Section 9 of Rule 11 7 of the Revised Rules on Criminal Procedure32 identifies· three (3) elements
of double jeopardy: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy
must have been validly terminated; and, (3) a second jeopardy must be for the same offense as that
in the first.

Legal jeopardy attaches, only (a) upon a valid indictment, (b) before a competent court, (c) after
arraignment, (d) when a valid plea has been entered, and (e) when the case was dismissed or
otherwise terminated without the express consent of the accused. 33

Gorion v. Regional Trial Court of Cebu34 has held that the right against double jeopardy is not
violated when the first case was dismissed in violation of the prosecution's right to due process. Any
such acquittal is "no acquittal at all, and thus can not constitute a proper basis for a claim of former
jeopardy":35

[The dismissal] unquestionably deprived the State of a fair opportunity to present and prove its case.
Thus, its right to due process was violated. The said order is null and void and hence, cannot be
pleaded by the petitioner to bar the subsequent annulment of the dismissal order or a reopening of
the case on the ground of double jeopardy. This is the rule obtaining in this jurisdiction.36

Due process requires that both parties have a real and fair opportunity to be heard. "The State, like
the accused[,] is also entitled to due process in criminal cases."37 In Dimatulac v. Villon: 38

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused
alone. The interests of society and the offended parties [including the State] which have been
wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of
justice; and an acquittal is not necessarily a triumph of justice; for, to the society offended and the
party wronged, it could also mean injustice. Justice then must be rendered even-handedly to both
the accused, on one hand, and 'the State and offended party, on the other.39(Citation omitted)

The state must be afforded the right to prosecute, present,· and prove its case. Just as importantly,
the prosecution must be able to fully rely on expressed legal provisions, as well as on settled and
standing jurisprudential principles. It should not be caught in a bind by a sudden and retroactive
imposition of additional requirements for successful prosecution.

In Serino v. Zosa,40 the judge announced that he would first hear the civil aspect of the case before
the criminal aspect of the case. The public and private prosecutors then stepped out of the
courtroom. After trial in the civil case was finished, the criminal case was called. By then, the
prosecutors were unavailable. The judge dismissed the case for failure to prosecute. This Court held
that double jeopardy did not attach as the order of dismissal was void for having been issued without
due process.

In People v. Navarro, 41 a Joint Decision was issued acquitting the accused of light threats and
frustrated theft. However, there was no actual joint trial in these two (2) criminal cases and no
hearing in the light threats case. This Court nullified the judgment of acquittal for light threats.

In People v. Gomez, 42 the trial court issued a notice of hearing only to the assistant city prosecutor,
not to the special prosecutor actively handling the case. The assistant city prosecutor arrived for trial,
but the special prosecutor did not, as he did not know of the hearing. The records, however, were
with the special prosecutor. Not ready to appear, the assistant city prosecutor moved to postpone
the hearing. The trial court denied the motion and proceeded to dismiss the case due to alleged
delays. This Court overruled the dismissal for depriving the State of a fair opportunity to prosecute
and convict.

In People v. Pablo,43 the prosecution's last witness failed to arrive. The prosecution moved to
postpone the hearing as that witness' testimony was indispensable. The judge denied the motion.
The defense, in turn, filed a motion to consider the prosecution's case rested and to dismiss the
case. The judge granted the motion and acquitted all the accused on the same day, "without giving
the prosecution a chance to oppose the same, and without reviewing the evidence already
presented for a proper assessment as to what crime has been committed by the accused of which
they may properly be convicted thereunder[. ]"44

This Court overturned the acquittal, declaring that courts must be fair to both parties:

There are several actions which the respondent judge could and should have taken if he had wished
to deal with the case considering the gravity of the crime charged, with fairness to both parties, as is
demanded by his function of dispensing justice and equity. But he utterly failed to take such actions.

Thus, he should have first given warning that there will definitely be no further postponement after
that which he reasonably thought should be the last.45 (Emphasis supplied)

In these cases, the State was denied vital avenues for the adequate prosecution of offenses, and
was not given a fair chance to fully present and prove its case. Thus:

A purely capricious dismissal of an information, as herein involved, moreover, deprives the State of
fair opportunity to prosecute and convict. It denies the prosecution its day in court. Accordingly, it is a
dismissal without due process and, therefore, null and void. A dismissal invalid for lack of a
fundamental prerequisite, such as due process, will not constitute a proper basis for the claim of
double jeopardy.46

Here, the import of identifying the "main plunderer" and the "personal benefit" obtained was not
emphasized upon the prosecution at the onset. At the minimum, this Court's July 19, 2016 Decision
should be considered an admonition, and then applied only prospectively.
Such a consideration would be analogous to the course taken by this Court in Carpio-Morales v.
Court of Appeals.47There, this Court abandoned the condonation doctrine, but expressly made its
ruling applicable only to future cases, and not to the case at hand. Respecting the people's reliance
on "good law,"48 we stated:

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general
rule, recognized as "good law" prior to its abandonment. Consequently, the people's reliance
thereupon should be respected. The landmark case on this matter is People v. Jabinal, wherein it
was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should
be applied prospectively, and should not apply to parties who had relied on the old doctrine and
acted on the faith thereof.

Later, in Spouses Benzonan v. CA, it was further elaborated:

[P]ursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions form
part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that
"laws shall have no retroactive effect unless the contrary is provided." This is expressed in the
familiar legal maxim lexprospicit, non respicit, the law looks forward not backward. The rationale
against retroactivity is easy to perceive. The retroactive application of a law usually divests rights
that have already become vested ... and hence, is unconstitutional. 49

There is ample evidentiary basis for trial in the Sandiganbayan to proceed.

The prosecution underscores that funds were diverted to the Office of the President. 50 Citing the
April 6, 2015 51Sandiganbayan Resolution, it also emphasizes that petitioner former President Gloria
Macapagal-Arroyo's approvals for the letter-requests of petitioner Philippine Charity Sweepstakes
Office (PCSO) General Manager Rosario C. Uriarte (Uriarte) for the disburnement of additional
Corfidential and Intelligence Fund52 and for the latter's use of these funds 53 are overt acts of plunder
within the contemplation of Section 2, in relation to Section l(d) of the Anti-Plunder Law. 54

To begin with, Arroyo's appointment of Uriarte to the position of PCSO General Manager already
raises serious doubts. 55 According to the prosecution, Uriarte's appointment was made in violation of
Republic Act No. 1169,56 as amended by Batas Pambansa Blg. 42 and Presidential Decree No.
1157. Section 2 of the amended Republic Act No. 1169 states that the power to appoint the PCSO
General Manager is lodged in its Board of Directors·, not in the President of the Philippines:

Section 2. The [PCSO] general manager shall be appointed by the [PCSO] Board of Directors and
he [or she] can be removed or suspended only for cause as provided by law. He [or she] shall have
the direction and control of the Office in all matters which are not specifically· reserved for action by
the Board. Subject to the approval of the Board of Directors, he [or she] shall also appoint the
personnel of the Office, except the Auditor and the personnel of the Office of the Auditor who shall
be appointed by the Auditor General.

The purpose for the disbursement of Confidential and Intelligence Fund was not specifically
detailed.57 Letter of Instruction No. 1282 expressly provides that requests for intelligence funds must
particularly state the purposes for which these would be spent: 58
Effective immediately, all requests for the allocation or release of intelligence funds shall
indicate infull detail the specific purposes for which said funds shall be spent and shall explain the
circumstances giving rise to the necessity for the expenditure and the particular aims to be
accomplished. (Emphasis supplied) 59

According to the Sandiganbayan, Uriarte and Benigno Aguas (Aguas) made sweeping certifications
that these funds were used for anti-lottery fraud and anti-terrorist operations, thus:

In an attempt to explain and justify the use of these [Confidential and Intelligence Fund] funds,
Uriarte together with Aguas, certified that these were utilized for the following purposes:

a) Fraud and threat that affect integrity of operation.

b) Bomb threat, kidnapping, destabilization and terrorism

c) Bilateral and security relation. 60

The prosecution emphasized that the purpose61 for the disbursement not only lacked particulars, but
that the "second and third purposes were never mentioned in Uriarte's letter-requests for additional
[Confidential and Intelligence Fund] funds addressed to Arroyo." 62

Moreover, under Commission on Audit Circular 2003-002, cash advances must be on a per-project
basis and must be liquidated within one (1) month from the date the purpose of the cash advance
was accomplished. The prosecution adduced proof that the certification of petitioner PCSO Budget
and Accounts Officer Aguas that there were enough funds for cash advances63 was fraudulent, as
the Philippine Charity Sweepstakes Office had suffered significant losses from 2006 to 2009.64

The liquidation of Uriarte's cash advances, certified to by Aguas, was made on a semi-annual basis-'
without a monthly liquidation or at least a progress report on the monthly liquidation.65 The liquidation
was also questionable. For instance, in 2009, only ₱24.97 million was liquidated, despite the CIF's
cash advances totalling ₱138.42 million for the same year. 66 Aguas and Uriarte likewise submitted
what appeared to be spurious accomplishment reports, stating that the cash advances were remitted
to law enforcement agencies, which denied these remittances. 67

In addition, Aguas did not object to the charges that he falsified his certifications of fund availability,
and that the repeated release of Confidential and Intelligence Fund cash advances was riddled with
several serious irregularities.68 He later disclosed that the funds were transferred to the Office of the
President, which was under Arroyo's full control as then President of the Philippines. 69 This was
resolved by the Sandiganbayan on April 6, 2015.

According to the prosecution, "Uriarte and Valencia [i.e. PCSO Board of Directors Chairperson
Sergio O. Valencia] continued to receive [Confidential and Intelligence Fund] cash advances despite
having earlier unliquidated cash advances,"70 and Aguas could not have correctly certified that the
previous liquidations were accounted for.71 The prosecution further avers that petitioner Commission
on Audit Head of Intelligence/Confidential Fund Fraud Audit Unit Nilda B. Plaras "repeatedly issued
credit notices in favor of Uriarte and Valencia even as Aguas himself admitted that their [Confidential
and Intelligence Fund] advances remained unliquidated. Moreover, Uriarte and Valencia continued
to receive [Confidential and Intelligence Fund] advances despite having earlier unliquidated cash
advances[.]"
According to the Sandiganbayan,72 these acts violate Section 89 of Presidential Decree No. 1445,
which states:

Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific
purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it
was given has been served. No additional cash advance shall be allowed to any official or employee
unless the previous cash advance given to him is first settled or a proper accounting thereof is
made.

The prosecution also argues that before she fled the country and evaded arrest, then PCSO General
Manager Uriarte, with Arroyo's complicity,73 "received and took possession of around 90% of the
approximately ₱366 million cash advances from the PCSO's Confidential and Intelligence Fund. 74 As
payee, Uriarte drew a total of 48 checks against the Confidential and Intelligence Fund in 2008,
2009, and 2010. 75 She was able to withdraw from the Confidential and Intelligence Fund solely on
the basis of Arroyo's approval, which was not ministerial in nature,76and despite Uriarte not having
been designated as a special disbursing officer under Commission on Audit Circulars 92-385 and
03·002.77

Uriarte was designated as a special disbursing officer only on February 18, 2009,78 after several
disbursements were already made. 79 She managed to use the additional Confidential and
Intelligence Fund at least three (3) times in 2008 and in early 2009, solely through Arroyo's
approval. 80

The prosecution further highlights that Uriarte "is a fugitive from justice" and has remained at
large. 81 Jurisprudence has settled that flight is an indication of guilt.82 For, indeed, "a truly innocent
person would normally grasp the first available opportunity to defend [herself] and to assert [her]
innocence."83 The Sandiganbayan's finding of ample evidence against her is therefore bolstered by
her leaving the country and evading arrest.

The prosecution also takes exception to this Court's finding that the commingling of funds is not
illegal. 84 Section 685 of Republic Act No. 1169 states that PCSO's revenues should be remitted in
specific portions to separate funds or accounts, and not commingled together. The prosecution
assails how the accused diverted public money from the PCSO Charity Fund and Prize Fund to the
Operating Fund, and then commingled these funds to "conceal the violation of the restrictions
imposed by [Republic Act] No. 1169."86 The 2007 Annual Audit Report of the Commission on Audit
has specifically directed then PCSO officers to immediately put a halt to this practice, but it fell on
deaf ears. 87

In addition, the PCSO had been placed under the supervision and control of the Department of
Social Welfare and Development,88 and later of the Department of Health. 89 Yet, Uriarte was able to
bypass departmental approval and divert PCSO funds amounting to ₱244 1nillion to the Office of the
President,90 upon the sole approval of Arroyo. 91Later, with conflict-of interest, both Uriarte and
Valencia approved the disbursement vouchers and made the checks payable to them at the same
time. 92

According to the prosecution, Uriarte requested for additional Confidential and Intelligence Fund,
and Arroyo's unqualified approval of these requests was deliberate and willful.93 The prosecution
argues that "[w]ithout [Arroyo's] participation, [Uriarte] could not release any money because there
was then no budget for additional [Confidential and Intelligence Fund]."94 Thus, "Arroyo's unmitigated
failure to comply with the laws and rules regulating the approval of the [Confidential and Intelligence
Fund] releases betrays any claim of lack of malice on her part."95Without Arroyo or Aguas, the
conspiracy to pillage the PCSO's Confidential and Intelligence Fund would not have succeeded. 96
 VI

Plunder may be committed in connivance or conspiracy with others. The share that each accused
received is not the pivotal consideration. What is more crucial is that the total amount amassed is at
least ₱50 million. 97 In a conspiracy, the act of one is the act of all. Each conspirator is considered a
principal actor of the crime. Enrile v. People98 is on point:

The law on plunder provides that it is committed by "a public officer who acts by himself or in
connivance with ... " The term "connivance" suggests an agreement or consent to commit an
unlawful act or deed with another; to connive is to cooperate or take part secretly with another. It
implies both knowledge and assent that may either be active or passive.

Since the crime of plunder may be done in connivance or in · conspiracy with other persons, and the
Information filed clearly alleged that Enrile and Jessica Lucila Reyes conspired with one another and
with Janet Lim Napoles, Ronald John Lim and John Raymund De Asis, then it is unnecessary to
specify, as an essential element of the offense, whether the ill-gotten wealth amounting to at least
₱172,834,500.00 had been acquired by one, by two or by all of the accused. In the crime of
plunder, the amount of ill-gotten wealth acquired by each accused in a conspiracy is
immaterial for as long as the total amount amassed, acquired or accumulated is at least ₱5O
million.99

Section 2 of the Anti-Plunder Law focuses on the "aggregate amount or total value" amassed,
accumulated, or acquired, not its severed distributions among· confederates. Thus, in the present
case, it is unnecessary to specify whether the allegedly amassed amount of ₱365,997,915.00
ultimately came to the possession of one, some, or all of the accused.

Enrile also underscores that conspiracy is not the essence of plunder 100 To sufficiently charge
conspiracy as a mode of committing plunder, an information may simply state that the accused
"conspired with one another": 101

We point out that conspiracy in the present case is not charged as a crime by itself but only as the
mode or committing the crime. Thus, there is no absolute necessity of reciting its particulars in the
Information because conspiracy is not the gravamen of the offense charged.

It is enough to allege conspiracy as a mode in the commission of [plunder] in either of the following
manner: (1) by use of the word "conspire,"or its derivatives or synonyms, such as confederate,
connive, collude; or (2) by allegations of basic facts constituting the conspiracy in a manner that a
person of common understanding would know what is intended, and with such precision as the
nature of the crime charged will admit, to enable the accused to competently enter a plea to a
subsequent indictment based on the same facts. 102 (Emphasis in the original)

In this case, the accused were properly informed that they were to be answerable for the charge of
plunder "in connivance" with each other. As in Enrile, the information here ·.1ses the words,
"conniving, conspiring, and confederating":

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 A.S. 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 O. VALEN CIA, then Chairman of the Board of
Directors, MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA
J\.S. 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: ... 103

I take exception to the majority's July 19, 2016 Decision stating that the prosecution needed to
specifically allege in the information whether the conspiracy was by express agreement, by wheel
conspiracy, or by chain conspiracy. 104In Enrile, an accused's assent in a conspiracy may be active or
passive, and may be alleged simply "by use of the word 'conspire,' or its derivatives or
synonyms, such as confederate, connive, collude[.]" 105 The prosecution has faithfully complied with
these requirements.

The information is valid in all respects. Retroactively mandating additional averments for the
prosecution violates its right to due process.

VII

"Raids on the public treasury" must be understood in its plain meaning. There is no need to derive its
meaning from the other words mentioned in Section l(d)(l) of the Anti-Plunder Law. It does not
inherently entail taking for personal gain.

People v. Sandiganbayan 106 emphasized that the words in a statute must generally be understood in
their natural, plain, and ordinary meaning, unless the lawmakers have evidently assigned a technical
or special legal meaning to these words. 107 "The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory phraseology in [a natural, plain, and
ordinary] manner is always presumed." 108

Contrary to the majority's position, 109 there are no words with which the term "raids on the public
treasury," as mentioned in Section 1 (d)(l) of the Anti-Plunder Law are to be associated, thereby
justifying the application of noscitur a sociis. Misappropriation, conversion, misuse, and malversation
of public funds are items enumerated distinctly from "raids on the public treasury," they being
separated by the disjunctive "or." 110 Therefore, there is no basis for insisting upon the term "raids on
the public treasury" the concept of personal benefit.

Even if the preceding terms were to be associated with "raids on the public treasury," it does not
follow that "personal benefit" becomes its element. For example, malversation does not inherently
involve· taking for one's personal benefit. As pointed out in the prosecution's Motion for
Reconsideration, 111 malversation under Article 220 112 of the Revised Penal Code does not require
that the offender personally benefited from the crime. It only requires that he or she used the funds
for a purpose different from that for which the law appropriated them.
This finds further support in the Congress' deletion of the phrase, "knowingly benefited," from the
final text of Republic Act No. 7080. 113

This Court can also apply by analogy the principles governing the crime of theft. Like in plunder, theft
involves the UI?-lawful taking of goods belonging to another. 114 In theft, the mere act of taking-
regardless of actual gain-already consummates the crime. 115 In Valenzuela v. People: 116

Unlawful taking, which is the deprivation of one's personal property, is the element which produces
the felony in its consummated stage...

….

. . . The presumed inability of the offenders to freely dispose of [i.e. gain from] the stolen property
does not negate the fact that the owners have already been deprived of their rights to possession
upon the completion of the taking.

[T]he taking has been completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft. 117

This standard for theft takes on greater significance in plunder. Valenzuela reminds us to not lose
sight of the owners' deprivation of their property. 118 Here, public funds were taken from the
government. Theft involves larceny against individuals; plunder involves pillage of the State.
Certainly, it is much more depraved and heinous than theft:

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 193 to include it among the heinous
crimespunishable by reclusion perpetua to death. 119

Plunder is a betrayal of public trust. Thus, it cannot require an element that a much lesser crime of
the same nature does not even require. Ruling otherwise would "introduce a convenient defense for
the accused which does notreflect any legislated intent." 120

To raid means to "steal from, break into, loot, [or] plunder." 121 Etymologically, it comes from the Old
English word, "rad," which referred to the act of riding 122 or to an incursion along the border. 123 It
described the incursion into towns by malefactors on horseback (i.e. mounted military expedition
124), who fled easily as peoples of more sedentary cultures could not keep pace with them. 125 In
1863, during the American Civil War, the word, "raid," gave birth to an agent noun, "raider," 126 or a
person trained to participate in a sudden attack against the enemy. 127 In more recent times, "raider"
·has evolved to likewise refer to "a person who seizes control of a company, as by secretly buying
stock and gathering proxies." 128 The act of taking through stealth, treachery, or otherwise taking
advantage of another's weakness characterizes the word, "raid" or "raider."

The specific phrase used in the Anti-Plunder Law - "raids on the pubic treasury" - is of American
origin. It was first used during the Great Depression, when the United States Congress sought to
pass several° bills, such as an appropriation of $35 million to feed people and livestock, 129 in an
attempt to directly lift Americans from squalor. 130Then President Herbert Hoover did not see wisdom
in government intervention. He vetoed these bills, famously declaring that "[p]rosperity cannot be
restored by raids upon the public treasury." 131

In its plain meaning, and taking its history and etymological development into account, "raids on the
public treasury" refers to dipping one's hands into public funds, taking them as booty. In the context
of the Anti-Plunder Law, this may be committed by a public officer through fraud, stealth, or secrecy,
done over a period of time. 132 The Sandiganbayan's November 5, 2013 Resolution in this case is
enlightening:

[A] ''raid on the public treasury" can be said to have been achieved thr[ough] the pillaging or looting
of public coffers either through misuse,. misappropriation or conversion, without need of establishing
gain or profit to the raider. Otherwise stated. once a "raider" gets material possession of a
government asset through improper means and has free disposal of the same, the raid or pillage is
completed .... 133

There are reasonable grounds for proceeding with trial. The voluminous records and pieces of
evidence, consisting of at least 600 documentary exhibits, testimonies of at least 10 prosecution
witnesses, and case records of at least 40 folders 134 -which the Sandiganbayan carefully probed for
years 135 -point to a protracted scheme of raiding the public treasury to amass ill-gotten wealth. There
were ostensible irregularities attested to by the prosecution in the disbursement of the Philippine
Charity Sweepstakes Office funds, such as the accused's commingling of funds, 136their non-
compliance with Letter of Instruction No. 1282, 137 and the unilateral approval of disbursements. 138

VIII

Under Section 119 of Rule 23 of the Revised Rules on Criminal Procedure, an order denying a
demurrer to evidence may not be assailed through· an appeal or by certiorari before judgment. Thus,
the accused's remedy for the Sandiganbayan's denial of their demurrer is to "continue with the case
in due course and when an unfavorable verdict is handed down, to appeal in the manner authorized
by law." 139

The majority's July 19, 2016 Decision cites Nicolas v. Sandiganbayan 140 in asserting that this Court
may review the Sandiganbayan's denial of a demurrer when there is grave abuse of discretion.
Nicolas stated:

[T]he general rule prevailing is that [certiorari] does not lie to review an order denying a demurrer to
evidence, which is equivalent to a motion to dismiss, filed after the prosecution has presented its
evidence and rested its case.

Such order, being merely interlocutory, is not appealable," neither can it be the subject of a petition
for certiorari. The rule admits of exceptions, however. Action on a demurrer or on a motion to
dismiss rests on the sound exercise of judicial discretion. 141 (Emphasis supplied)

Indeed, Nicolas illustrates an instance when this Court overruled the Sandiganbayan's denial of a
demurrer for having been issued with grave abuse of discretion. 142 What sets Nicolas apart from this
case, however, is that the Sandiganbayan's grave abuse of discretion was so patent in Nicolas.
There, Economic Intelligence and Investigation Bureau Commissioner Wilfred A. Nicolas was
administratively and criminally charged for his alleged bad faith and gross neglect of duty. This Court
exonerated him in the administrative charge, finding that the records are bereft of any substantial
evidence of bad faith and gross negligence on his part. 143 Considering that the criminal case-
violation of Section 3(e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, based
on his alleged bad faith and gross negligence-required the highest burden of proof beyond
reasonable doubt, then the finding that there was no substantial evidence of his bad faith and gross
negligence binds the criminal case for the same act complained of. 144

In contrast, here, the prosecution has sufficient evidence to establish a prima facie case that
accused committed plunder or at least malversation. In ruling on a demurrer to evidence, this Court
only needs to ascertain whether there is "competent or sufficient evidence to establish a prima
facie case to sustain the indictment." 145

The prosecution should have been given the chance to present this prima facie case against the
accused. As I noted in my dissent to the majority's July 19, 2016 Decision:

First, evidence was adduced to show that there was co-mingling of PCSO's Prize Fund, Charity
Fund, and Operating Fund. In the Annual Audit Report of PCSO for 2007, the Commission on Audit
already found this practice of having a ''combo account" questionable. The prosecution further
alleged that this co-mingling was "to ensure that there is always a readily accessible fund from which
to draw [Confidential and Intelligence Fund] money."

….

Second, the prosecution demonstrated - through Former President Arroyo's handwritten notations -
that she personally approved PCSO General Manager Rosario C. Uriarte's (Uriarte) · "requests for
the allocation,' release and use of additional [Confidential and Intelligence Fund.]" The prosecution
stressed that these approvals were given despite Uriarte's generic one-page requests, which
ostensibly violated Letter of Instruction No. 1282 's requirement that, for intelligence funds to
be released, there must be a specification· of: (1) specific purposes for which the funds shall
be used; (2) circumstances that make the expense necessary; and (3) the disbursement's
particular aims. The prosecution further emphasized that Former President Arroyo's personal
approvals were necessary, as Commission on Audit Circular No. 92-385's stipulates that
confidential and intelligence funds may only be released upon approval of the President of
the Philippines. Unrefuted, these approvals are indicative of

Former President Arroyo's indispensability in the scheme to plunder.

….

Third, the prosecution demonstrated that Uriarte was enabled to withdraw from the CIF solely on the
strength of Former President Arroyo's approval and despite not having been designated as a special
disbursing officer, pursuant, to Commission on Audit Circulars 92-385 and 03-002.

….

Fourth, there were certifications on disbursement vouchers issued and submitted by Aguas, in his
capacity as PCSO Budget and Accounts Manager, which stated that: there were adequate funds for
the cash advances; that prior cash advances have been liquidated or accounted for; that the cash
advances were accompanied by supporting documents; and that the expenses incurred through
these were in order. As posited by the prosecution, these certifications facilitated the drawing of cash
advances by PCSO General Manager Uriarte and Chairperson Sergio Valencia.

….

Fifth, officers from the Philippine National Police, the Armed Forces of the Philippines, and the
National Bureau of Investigation gave testimonies to the effect that no intelligence activities were
conducted by PCSO with their cooperation, contrary to Uriarte's claims. . . The prosecution added
that no contracts, receipts, correspondences, or any other documentary evidence exist to support
expenses for PCSO 's intelligence operations. These suggest that funds allocated for the CIF were
not spent for their designated purposes, even as they appeared to have been released through cash
advances. This marks a critical juncture in the alleged scheme of the accused. The disbursed funds
were no longer in the possession and control of PCSO and, hence, susceptible to misuse or
malversation.

….

Sixth, another curious detail was noted by the prosecution: that Former President Arroyo directly
dealt with PCSO despite her having issued her own executive orders which put PCSO under the
direct control and supervision of other agencies. 147 (Emphasis in the original)

The matters established by the prosecution belie any grave abuse of discretion on the part of the
Sandiganbayan when it ruled that trial must proceed. This is especially considering that the Anti-
Plunder Law does not even require proof of every single act alleged to have been committed by the
accused. What it penalizes is the overarching scheme characterized by a series or combination of
overt or criminal acts.148 In Jose "Jinggoy" Estrada v. Sandiganbayan: 149

A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and
folly of filing multiple information’s. The Anti-Plunder Law was enacted in the aftermath of the Marcos
regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged
cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude
of the acts allegedly committed by the former President to acquire illegal wealth. They also found
that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised
Penal Code and other special laws, the acts involved different transactions, different time and
different personalities. Every transaction constituted a separate crime and required a separate case
and the over-all conspiracy fwd to be broken down into several criminal and graft charges. The
preparation of multiple Information’s was a legal nightmare but eventually, thirty-nine (39) separate
and independent cases were filed against practically the same accused before the Sandiganbayan.
Republic Act No. 7080 or the Anti-Plunder Law was enacted precisely to address this procedural
problem. 150 (Emphasis in the original, citations omitted)

Thus, as I emphasized in my Dissent to the majority's July 19, 2016 Decision:

It would be inappropriate to launch a full-scale evaluation of the evidence, lest this Court-an
appellate court, vis-a-vis the Sandiganbayan's original jurisdiction over plunder-be invited to indulge
in an exercise which is not only premature, but also one which may entirely undermine the
Sandiganbayan's competence. Nevertheless, even through a prima facie review, the prosecution
adduced evidence of a combination or series of events that appeared to be means in a coherent
scheme to effect a design to amass accumulate, or acquire ill-gotten wealth. Without meaning to
make conclusions on the guilt of the accused, specifically of petitioners, these pieces of evidence
beg, at the very least, to be addressed during trial. Thus, there was no grave abuse of discretion on
the part of the Sandiganbayan. 151

IX

Even granting that the prosecution has failed to establish as case for plunder, trial must nevertheless
proceed for malversation.

This Court has consistently held 152 that the lesser offense of malversation can be included in plunder
when the amount amassed reaches at least ₱50,000,000.00. The predicate acts of bribery and
malversation do not need to be charged under separate information’s when a person has already
been charged with plunder.
I reiterate the following from my dissent from the majority's July 19, 2016 Decision:

This Court's statements in Estrada v. Sandiganbayan are an acknowledgement of how the predicate
acts of bribery and malversation (if applicable) need not be charged under separate informations
when one has already been charged with plunder:

I reiterate the following from my dissent from the majority's July 19, 2016 Decision:

This Court's statements in Estrada v. Sandiganbayan are an acknowledgement of how the predicate
acts of bribery and malversation (if applicable) need not be charged under separate informations
when one has already been charged with plunder:

A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and
folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath or the Marcos
regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged
cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude
of the acts allegedly committed by the former President to acquire illegal wealth. They also found
that under the then existing laws such as the anti-Graft and Corrupt Practices Act, the revised Penal
Code and other special laws, the acts involved different personalities.

Every transaction constituted a separate crime and required a separate case and over-all conspiracy
had to be broken down into several criminal and graft charges. Thepreparations of multiple
informations was a legal nightmare but eventually. Thirty-nine (39) separate and independent case
were filed against practically the same accused before sandiganbayan. Republic Act No. 7080 or the
Anti-Plunder Law was enacted precisely to address this procedural problem. (Emphasis in the
original, citations omitted)

In Atty. Serapio v. sandiganbayan, the accused assailed the information for charging more than one
offense: bribery, malversation of public funds or property, and violations of Sec. 3(e) of Republic Act
No. 3019 and Section 7(d) of Republic Act No. 6713. This Court observed that "the acts alleged in
the information are not separate or independent offenses, but are predicate acts of the crime of
plunder." The Court, quoting the Sandiganbayan, clarified:

It should be stressed that the Anti-Plunder law specifically Section 1 (d) thereof does not make any
express reference to any specific provision of laws, other than R.A. No. 7080, as amended. which
coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated
therein. The said acts which form part of the combination or series of act are described in their
generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms
'misappropriation,' 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise
be penalized under other laws is incidental. The said' acts are mentioned only as predicate acts of
the crime of plunder and the allegations relative thereto are not to be taken or to be understood as
allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-
Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and
Employees.

The observation that the accused in these petitions may be made to answer for malversation was
correctly pointed out by Justice Ponferrada of the Sandiganbayan in his separate concurring and
dissenting opinion:

There is evidence, however, that certain amounts were released to accused Rosario Urimie and
Sergio Valencia and these releases were made possible by certain participatory acts of accused
Arroyo and Aguas, as discussed in the subject Resolution. Hence, there is a need for said accused
to present evidence to exculpate them from liability which need wiII warrant the denial of their
Demurrer to Evidence, as under the variance rule they maybe held liable for the lesser crimes which
are necessarily included in the offense of plunder.

Significantly, the Sandiganbayan's Resolution to the demurrers to evidence includes the finding that
the PCSO Chairperson Valencia, should still be made to answer for malversation as included in the
Information in these cases. Since the Information charges conspiracy, both petitioners in these
consolidated cases still need to answer for those charges. Thus, the demurrer to evidence should
also be properly denied. It would be premature to dismiss and acquit the petitioners. 153

The Anti-Plunder Law penalizes the most consummate larceny and economic treachery perpetrated
by repositories of public trust. The majority's Decision-which effectively makes more stringent the
1âw phi1

threshold for conviction by implying elements not supported by statutory textcripples the State's
capacity to exact accountability. In Joseph Ejercito Estrada v. Sandiganbayan: 154

Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily
methodical and economically catastrophic footing of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left
unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional
fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against the avarice and other venalities in
public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national
importance can equal the amount of interest and passion generated by petitioner's ignominious fall
from the highest office, and his eventual prosecution and trial under a virginal statute. This
continuing saga has driven a wedge of dissension among our people that may linger for a long time.
Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall
we emerge triumphant in the midst of ferment. 155 (Emphasis in supplied)

In issuing the Resolutions denying petitioners' demurrers to evidence, the Sandiganbayan acted
well-within its jurisdiction and competence. It is not for us to substitute our wisdom for that of the
court which presided over the full conduct of trial, as well as the reception and scrutiny of evidence.

The rule proscribing appeals to denials of demurrers to evidence is plain and basic. An accused's
recourse is to present evidence and to rebut the prosecution's evidence. The petitioners here failed
to establish an exceptional predicament.

This Court's overruling of the April 6, 2015 and September 10, 2015 resolutions of the
Sandiganbayan on the strength of findings of inadequacy on the part of the prosecution, but based
on standards introduced only upon the rendition of this Court's July 19, 2016 Decision, violated the
prosecution's constitutional right to due process. Both the prosecution and the accused deserve
fairness: the prosecution, that it may sufficiently establish its case in contemplation of every
appropriate legal standard; and the accused, that they may more competently dispel any case the
prosecution may have established against them.

Trial must, thus, proceed.

Accordingly, I vote to GRANT the Motion for Reconsideration. Public respondent Sandiganbayan
committed no grave abuse of discretion and acted within its competence and jurisdiction in issuing
the assailed April 6, 2015 and September 10, 2015 Resolutions.

MARVIC M.V.F. LEONEN

Associate Justice

Footnotes

1
Macapagal-Arroyov. People. G.R. No. 220598, July19, 2016
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/220598.pdf
/ > [Per J. Bersamin, En Banc].

2
See Stolen Assert Recovery Initiative of the World Bank and the United Nations Office on
Drugs and Crime, <http://star.worldbank.org/corruption-cases/node/18497 > (last visited April
17, 2017); see also University of the Philippines Alumni Obituary for Senator Jovito
Salonga, Martial law veteran, Senate President who presided at anti bases vote, dies,
<http://alum.up.edu.ph/?p=4864 > (last visited April 17, 2017), Michael Bueza, Plunder in the
Philippines, RAPPLER, June 21, 2014, <http://www.rappler.com/newsbreak/60139-plunder-
philippines-history > (last visited April 17, 2017), and Nikko Dizon.

Salonga, senator, patriot, statesman;95, INQUIRER.NET

< http://newsinfo.inquirer.net/772662/salonga-senator-patriot-statesman-95 > (last visited
April 17, 2017).

3
Mortalla, Nelson Nogot, Graft and Corruption:The Philippine Experience,
<http://www.unafei.or.jp/english/pdf/RS_No56/No56_44PA_Mortalla.pdf >502 (last visited
April 17, 2017).

4
461 Phil. 598 (2003) [Per J. Corona, En Banc].

5
Michael Bueza, Plunder in the Philippines, RAPPLER, June 21, 2014,
<http://www.rappler.com/newsbreak/60139-plunder-philippines-history > (last visited April 17,
2017).

6
Michael Bueza, Plunder in the Philippines, RAPPLER, June 21, 2014
<http://www.rappler.com/newsbreak/60139-plunder-philippines-history (last visited April 17,
2017).

8
Michael Bueza, Plunder in the Philippines, RAPPLER, June 21,
2014, http://www.rappler.com/newsbreak/60139-plunder-philippines-history (last visited April
17, 2017).

7
Estrada v. Sandiganbayan, 427 Phil. 820, 851-852 (2002) [Per J. Puno, En Banc].

8
See Michael Bueza, Plunder in the Philippines, RAPPLER, June 21, 2014,
<http://www.rappler.com/newsbreak/60139-plunder-philippines-history > (last visited April 17,
2017).

9
Republic Act No. 7080 (1991), An Act Defining and Penalizing the Crime of Plunder.
10
427 Phil. 820 (2002) [Per J. Puno, En Banc].

11
Id.at846.

12
Id.

13
Id.

Dissenting Opinion of J. Leonen in Macapagal Arroyo v. People, G.R. No. 220598, July 19,
14

2016, [Per J. Bersamin, En Banc].

15
Id. at 8.

16
Macapagal-Arroyo v. People, G.R. No. 220598, July 19, 2016
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=jurisprudence/2016/july2016/220598.pdf
> 35[Per. J. Bersamin, En Banc].

17Enrile v. People, G.R. No. 213455, August 11, 2015

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l5/august2015/213455.
pdf > [Per J. Brion, En Banc].

18
Id .at 21.

19
Rollo, pp. 4162-4171, Motion for Reconsideration.

The prosecution refers to the insertion of new elements as a"retroactive imposition "that"
20

border[s] on judicial legislation [and] is bereft of basis within the context of R[epublic] A[ct]
No. 7080. "(See Motion for Reconsideration, p. 15)

Macapagal-Arroyo v. People G.R. No. 220598, July 19, 2016

21

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/220598.pdf
> 34 [Per J. Bersamin, En Banc].

22
Estrada.v.Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].

Macapagal-Arroyo v. People, G.R. No.220598, July 19, 201634-

23

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/220598.pdf
> 34-35 [Per J. Bersamin, En Banc].

See Macapagal-Arroyo v. People. G.R. No. 220598, July 19, 2016

24

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/220598.pdf
> 31-35 [Per J. Bersamin, En Banc].

25
Estrada v. Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].

26
Id. at 839.

27
Id. at 848-853.

28
Id.at853.
29
People v. Medina, 354 Phil. 447,460 (1998) [Per J. Regalado, En Banc], citing People v.
Paredes, 133 Phil. 633,660 (1968) [Per J. Angeles, En Banc]; Valdez v. People, 255 Phil.
156,160-161 (1986) [Per J. Cortes, En Banc]; People v. Dela Cruz, 262 Phil. 838,856 (1990)
[Per J.Melencio Herrera, Second Division]; People v. Camaddo, 291 Phil. 154,160-161
(1993) [Per J. Bidin, Third Division].

30
People v. Peralta, 134 Phil. 703,723 (1968) [Per Curiam, En Banc].

31
Estrada v.Sandiganbayan, 427 Phil. 820,839 (2002) [PerJ.Puno,EnBanc].

32
RULES OF COURT, Rule 117, sec.9 provides:

Section 9. Formerconvictionoracquittalorformerjeopardy.-When a defendant shall

have been convicted or acquitted, or the case against him dismissed or otherwise
terminated without the express consent of the defendant, by acourt of competent
jurisdiction, upon a valid complaint or information or other formal charge sufficient
inform and substance to sustain a conviction, and after the defendant had pleaded to
the charge, the conviction or acquittal of the defendant-or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint or
information.

33
People v. Declaro, 252 Phil. 139,143 (1989) [Per J. Cancayco, First Division].

34
Gorion v.RTC of Cebu, 287Phil. 1078 (1992) [Per J. Davide Jr.,Third Division].

35
Id. at 1085.

36
Id.

37
People v. JudgeTac-an, 446 Phil. 496,505 (2003) [Per J. Callejo, Second Division].

38
Dimatulac v.Villon, 358 Phil. 328(1998) [Per J. Davide Jr., First Division].

39
Id. at 365.

40
148-B Phil. 497 (1971) [Per J. Makalintal, En Banc].

41
159 Phil. 863 (1975) [Per J. Fernandez, Second Division].

42
126Phil.640(1967)[PerJ.Bengzon,EnBanc].

43
187Phil.190(1980)[PerJ.DeCastro,FirstDivision].

44
Id.at197-198.

45
Id.at196.

46
Peoplev.Gomez,126Phil.640,645(1967)PerJ.Bengzon,EnBanc].
 Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, November 10, 2015
47

<http://sc.judiciary.gov.ph/pdf/web/viewcr.htmI?file=/jurisprudence/20l5/november2015/2171
26-27.pdf > [Per J. Perlas-Bernabe, En Banc].

Carpio-Morales v. Court of Appeals, G.R.Nos.217126-27, November 10, 2015 [Per J.

48

Perlas Bernabe, En Banc].

49
Id. at 65-66.

50
Rollo, p. 4164, Motion for Reconsideration.

51
Id. at 4178-4179.

52
Id. at 4174-4173.

53
Id. at 4179.

54
Id. at 4179-4181.

Id. at 4177. The prosecution states: "the PCSO Board designated [Uriarte] by virtue of
55

Arroyo's 'I desire' letter/order. Obviously, Uriarte's appointment by Arroyo was a clear
departure from Section 2 of [Republic Act] No. 1169.

56
An Act Providing for Charity Sweepstakes. Horse Races, and Lotteries.

57
Id. at 4174.

58
L.O.I. No. 1282 (1983).

59
L.0.I.No.1282(1983).

60
Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July19,
2016, 16 [Per J. Bersamin, En Banc] citing the Sandiganbayan Resolution dated November
5, 2013.

61
According to Uriarte's testimony before the Senate, the main purpose for these cash
advances was for the "roll-out" of the small town lottery program. However, the
accomplishment report submitted by Aguas shows that ₱137,500,000 was spent on non-
related PCSO activities, such as" bomb threat, kidnapping, terrorism and bilateral and
security relations."All the cash advances made by Uriarte in 2010 were made in violation of
LOI 1282, and COA Circulars 2003-002 and 92-385. These were thus improper use of the
additional CIF funds amounting to raids on the PCSO coffers and were ill-gotten because
Uriarte had encashed the checks and came into possession of the monies, which she had
complete freedom to dispose of but was not able to properly account for. (Dissenting Opinion
of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July 19, 2016,
<http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf/ > 13-14 [Per J.
Bersamin, En Banc] citing the Sandiganbayan Resolution dared November 5, 2013.)

62
Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July 19,
2016, <http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf/ > 16 [Per
J. Bersamin, En Banc] citing the Sandiganbayan Resolution dated November 5, 2013.)
63
Rollo, p. 4178.

64
Id. at 4178-4182.

See Dissenting Opinion of .I. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598,
65

July 19, 2016, <http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf/ >

15 [Per J. Bersamin, En Banc] citing the Sandiganbayan Resolution dated November 5,
2013.)

66
Rollo, p. 4174.

67
Id.at4179.

68
Id. at 4181.

69
Id.at4179.

70
Id.at4175.

See Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598,

71

July 19, 2016, 15 [Per J. Bersamin, En Banc].

72
Id.

73
Id. at 4176.

74
ld.at4175.

75
ld.at 4174.

76
Id. at4177.

77
Id. at 1652-1653.

7
8 Id. at 1653.

79
At that time, three (3) disbursements were already made based on the approval of the
requests of PCSO General Manager Uriarte. These were made on April 2, 2008, August 13,
2008, and January 19, 2009.

80
Rollo (G.R. No. 220598), p. 1653.

81
Id.at4174.

82
People v. Diaz, 443 Phil. 67, 89 (2003) [Per J. Austria-Martinez, Second Division].

83
People v. Del Mundo, 418 Phil. 740, 753 (200 I) [Per J. Ynares-Santiago, First Division].

84
Rollo, p. 4171.
85
Rep. Act No. 1169, sec. 6 provides: Section 6. Allocation of Net Receipts.- From the gross
receipts from the sale of sweepstakes tickets, whether for sweepstakes races, lotteries or
similar activities shall be deducted the printing cost of such tickets which in no case shall
exceed two percent of such gross receipts to arrive at the net receipts. The net receipts shall
be allocated as follows:

A. Fifty-five percent (55%) shall be set aside as a prize fund for the payment of
prizes, including those for the owners, jockeys of running horses, and sellers of
winning tickets.

Prizes not claimed by the public within one year from date of draw shall be
considered forfeited, and shall form part of the charity fund for disposition as stated
below. B. Thirty percent (30%) shall be set aside as contributions to the charity fund
from which the Board of Directors. in consultation with the Ministry of Human
Settlement on identified priority programs. needs. and requirements in specific
communities and with approval of the Office of the President (Prime Minister), shall
make payments or grants for health programs, including the expansion of existing
ones, medical assistance and services and/or charities of national character, such as
the Philippine National Red Cross, under such policies and subject to such rules and
regulations as the Board may from time establish and promulgate. The Board may
apply part of the contributions to the charity fund to approved investments of the
01'lice pursuant to Section I (B) hereof, but in no case shall such application to
investments, exceed ten percent (10%) of the net receipts from the sale of
sweepstakes tickets in any given year. Any prope1ty acquired by an institution or
organization with funds given to it under this Act shall not be sold -or otherwise
disposed of without the approval of the Office of the President (Prime Minister), and
that in the event of its dissolution all such property shall be transferred to and shall
automatically become the property of the Philippine Government.

C. Fifteen (15%) percent shall he set aside as contributions to the operating

expenses and capital expenditures of the Office.

D. All balances of any funds in the Philippine Charity Sweepstakes Office shall revert
to and form part of the charity fund provided for in paragraph (B), and shall be
subject to disposition as above stated.The disbursements of the allocation herein
authorized shall be subject to the usual auditing rules and regulations.

86
Rollo, p. 4172.

87
Id.

Exec. Order No. 383, sec. I provides: Section . I. The Philippine Charity Sweepstakes
88

Office shall hereby be under the supervision and control of the Department of Social Welfare
and Development.

Exec. Order No. 455, sec. I provides: Section I. The Philippine Charity Sweepstakes Office
89

shall hereby be placed under the supervision and control of the Department of Health.

Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July 19,
90

2016, [Per J. Bersamin, En Banc] citing the Sandiganbayan Resolution related November 5,
2013.
91
Rollo (G.R. No. 220598), p. 1831.

92
Id. at 4174.

93
ld .at 4177.

94
Id. at 4176.

95
ld.at4178.

96
Id. at 4181.

97
Enrile v. People, G.R. No. 213455, August 11, 2015
< http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l5/august2015/213455.
pdf > 22 [Per J. Brion, En Banc]. 98 Enrile v. People, G.R. No. 213455, August 11, 2015
< http://sc.judiciary.gov.ph/pdf/web/viewer.html?file/jurisprudence/20l5/august2015/213455.p
df > [Per J. Brion, En Banc].

99
Id. at 22:

100
Id.

101
Id.

102
Id.

103
Rollo, pp. 305-307-A.

Macapagal-Arroyo v. People, G.R. No. 220598, July 19, 2016 32- 33 [Per J. Bersamin, En
104

Banc].

105
Enrile v. People, G.R. No. 213455, August 11,
2015 http://sc.judiciary.gov.ph/pdt/web/viewer.html?file
=/jurisprudence/2015/august2015/213455.pdf 22 [Per J. Brion, En Banc].

106
People v. Sandiganbayan, 613 Phil. 407 (2009) [Per J. Peralta, Third Division].

107
Id. at 426.

108
Id.

109
Macapagal-Arroyo v. People. G.R. No. 22059&, July 19,
2016 http://sc.judiciary.gov.ph/pdt/web/viewer.html?file
=/jurisprudence/2016/july2016/213455.pdf 44- 45 [Per J. Bersamin, En Banc]. The Decision
stated: 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.

Rep. Act No. 7060, sec. l(d)(I) states that plunder is committed "through misappropriation,
110

conversion, misuse, or malversation of public funds or raids on the public treasury."

111
Rollo, p. 4169, Motion for Reconsideration.

112
REV. PEN. CODE, art. 220 provides: Article 220. Illegal Use of Public Funds or Property. -
Any public officer who shall apply any public fund or property under his administration lo any
public use other than that for which such fund or property were appropriated by law or
ordinance shall suffer the penalty of prision correccional in its minimum period or a fine
ranging from one-half to the total of the sum misapplied, if by reason of such misapplication,
any damage or embarrassment shall have resulted to the public service. In either case, the·
offender shall also suffer the penalty of temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall
be a fine from 5 to 50 per cent of the sum misapplied.

113
Record of the Senate, Vol. IV, No. 141, p. 1403 (1989).

114
REV. PEN. CODE, art. 308 provides:

Article 308. Who are liable for theft. -Theft is committed by any person who, with
intent to gain but without violence against or intimidation of persons nor force upon
things, shall take personal property of another without the latter's consent. Theft is
likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same
to the local authorities or to its owner; 2. Any person who, after having
maliciously damaged the property of another, shall remove or make use of
the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner,
shall hunt or fish upon the same or shall gather cereals, or other forest or
farm products.

115
Valenzuela v. People, 552 Phil. 381, 416 417 (2008) [Per J. Tinga, En Banc].

116
Valenzuela v. People, 552 Phil. 381 (2008) [Per J. Tinga, En Banc].

117
ld. At 417-418.

118
Id. at 418.

119
Estrada v. Sandiganbayan, 421 Phil. 290. 365 (2001) [Per J. Bellosillo, En Banc].

120
Valenzuela v. People, 552 Phil. 381, 417 (2008) [Per J. Tinga, En Banc].
 Collins Dictionary, <http://collinsdictionary.com/dictionary/english/raid > (last visited April
121

17, 2017).

ANDREAS H. JUCKER, DANIELA LANDERT, ANNINA SEILER, NICOLE STUDER-JOH,

122

MEANING IN THE HISTORY OF ENGLISH: WORDS AND TEXTS IN CONTEXT 64(2013).

Collins Dictionary, <http://collinsdictionary.com/dictionary/english/raid > (last visited April

123

17, 2017).

Online Etymology Dictionary,

124

<http://www.etymonline.com/index.php?term=raid&allowed_in_frame=0 > (last visited April

17, 2017).

The Science Show,

125

<http://web.archive.org/web/20081006030339/htpp://www.abc.net.au/rn/science/ss/stories/s
70986.htm > visited April 17, 2017).

126
Douglas Harper, Online Etymology Dictionary, <http://www.dictionary.com/browse/raider/ >
(last visited April 17, 2017).

Collins Dictionary, <http://collinsdictionary.com/dictionary/english/raid > (last visited April

127

17, 2017).

Based on the Random House Dictionary, Random House, Inc. (2017)

128

<http://collinsdictionary.com/dictionary/english/raid > (last visited April 17, 2017).

ROBERT A. CARO, THE PATH TO POWERS THE YEAR OFLYNDON JOHNSON 247
129

(1982).

Herbert Hoover, <http://www.history.com/topics/us-president/herbert-hoover > (last visited

130

April 17, 2017).

Herbert Hoover, <http://www.history.com/topics/us-president/herbert-hoover > (last visited

131

April 17, 2017).

See S.B. No. 733, as cited in Estrada' Sandiganbayan, 427 Phil. 820, 851 (2002) [Per J.
132

Puno, En Banc].

133
Rollo, pp. 450-510.

134
Id. at 4175.

135
Id. at 4I64.

The additional allocations for CIF were of increasing amounts running into the hundreds of
136

millions of pesos. In 2010 alone, it was One Hundred Fitly Million Pesos (₱150,000,000.00).
The General Manager of the PCSO was able to disburse more than One Hundred Thirty
Eight Million Pesos (₱138,000,000.00) to herself. That disbursement remains unaccounted.

Despite continued annual warnings from the Commission on Audit with respect to the
illegality and irregularity of the co-mingling of funds that should have been allocated
 for the Prize Fund, the Charitable Fund, and the Operational Fund, this co-mingling
was maintained. See Dissenting Opinion of J. Leonen in Macapagal-Arroyo v.
People, G.R. No. 220598, July 19, 2016,
<http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > [Per J.
Bersamin, En Banc].

137
This Letter of Instruction requires a request's specification of three (3) things: first, the
specific purposes for which the funds shall be used; second, circumstances that make the
expense necessary; and third, the disbursement's pm1icular aims. L.O.I. No. 1282 (1983),
par. 2 provides: "Effective immediately, all requests for the allocation or release of
intelligence funds shall indicate in full detail the specific purposes for which said funds shall
be spent and shall explain the circumstances giving rise to the necessity for the expenditure
and the particular aims to be accomplished."

Uriarte used Arroyo's approval to illegally accumulate these CIF funds which she
138

encashed during the period 2008-20 10. Uriai1e utilized Arroyo's approval to secure PCSO
Board confirmation of such additional CIF funds and to "liquidate" the same resulting in the
questionable credit advices issued by accused Plaras. These were simply consummated
raids on public treasury. (See Dissenting Opinion of J. Leonen in Macapagal-Arroyo v.
People, G.R. No. 220598, July. 19, 2016,
<http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > [Per J.
Bersamin, En Banc] citing the Sandiganbayan Resolution dated November 5, 2013.)

139
Soriquez v. Sandiganbayan, 5 l 0 Phil. 709, 719 (2015) [Per J. Garcia, Third Division].

140
Nicolas v. Sandiganbayan, 568 Phil. 297 (2008) [Per J. Carpio-Morales, Second Division].

141
Id. at 309.

142
Id.

143
Id.

144
Id.

145
Id. at 311.
146

Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July

147

19, 2016

<http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > 18-32

[Per J. Bersamin, En Banc].

148
Rep. Act No. 7080, sec. 4 provides:

Section· 4. Rule of Evidence. - For purpose of establishing the crime of plunder, it

shall not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
 wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy.

149
Estrada v. Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].

150
Id. at 851.

Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.F. No. 220598, July 19,
151

2016, <http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > 10 [Per J.

Bersamin, En Banc].

See Estrada v. Sandiganbayan, 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc]; Enrile v.
152

People, G.R. No. 213455, August 11, 2015, 766 SCRA I [Per J. Brion, En Banc]; Serapio v.
Sandiganbayan, 444 Phil. 499 (2003) [Per J. Callejo Sr., En Banc]: Estrada v.
Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].

Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.F. No. 220598, July 19,
153

2016, <http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf > 35-36

[Per J. Bersamin, En Banc].

154
Estrada v. Sandiganbayan, 421 Phil. 290 (200 I) [Per J. Bellosillo, En Banc]

155
Id. at 367.

III. INTRODUCTION ETO PHILIPPINE COURTS AND CASES

Case 1: In Re: Cunanan, 94 Phil. 534

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

Resolution March 18, 1954

In the Matter of the Petitions for Admission to the Bar of Unsuccessful Candidates of 1946 to
1953;
ALBINO CUNANAN, ET AL., petitioners.

Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile Inton for petitioners.
Office of the Solicitor General Juan R. Liwag for respondent.
DIOKNO, J.:

In recent years few controversial issues have aroused so much public interest and concern as
Republic Act No. 972, popularly known as the "Bar Flunkers' Act of 1953." Under the Rules of
Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may
be deemed to have passed his examinations successfully, he must have obtained a general
average of 75 per cent in all subjects, without falling below 50 per cent in any subject." (Rule
127, sec. 14, Rules of Court). Nevertheless, considering the varying difficulties of the different
bar examinations held since 1946 and the varying degree of strictness with which the
examination papers were graded, this court passed and admitted to the bar those candidates
who had obtained an average of only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in
1948, and 74 per cent in 1949. In 1950 to 1953, the 74 per cent was raised to 75 per cent.

Believing themselves as fully qualified to practice law as those reconsidered and passed by this
court, and feeling conscious of having been discriminated against (See Explanatory Note to
R.A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than
those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate
Bill No. 12 which, among others, reduced the passing general average in bar examinations to
70 per cent effective since 1946. The President requested the views of this court on the bill.
Complying with that request, seven members of the court subscribed to and submitted written
comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not
override the veto. Instead, it approved Senate Bill No. 371, embodying substantially the
provisions of the vetoed bill. Although the members of this court reiterated their unfavorable
views on the matter, the President allowed the bill to become a law on June 21, 1953 without his
signature. The law, which incidentally was enacted in an election year, reads in full as follows:

REPUBLIC ACT NO. 972

AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM

NINETEEN HUNDRED AND FORTY-SIX UP TO AND INCLUDING NINETEEN
HUNDRED AND FIFTY-FIVE.

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

Congress assembled:

SECTION 1. Notwithstanding the provisions of section fourteen, Rule numbered one

hundred twenty-seven of the Rules of Court, any bar candidate who obtained a general
average of seventy per cent in any bar examinations after July fourth, nineteen hundred
and forty-six up to the August nineteen hundred and fifty-one bar examinations; seventy-
one per cent in the nineteen hundred and fifty-two bar examinations; seventy-two per
cent in the in the nineteen hundred and fifty-three bar examinations; seventy-three per
cent in the nineteen hundred and fifty-four bar examinations; seventy-four per cent in the
nineteen hundred and fifty-five bar examinations without a candidate obtaining a grade
below fifty per cent in any subject, shall be allowed to take and subscribe the
corresponding oath of office as member of the Philippine Bar: Provided, however, That
for the purpose of this Act, any exact one-half or more of a fraction, shall be considered
as one and included as part of the next whole number.

SEC. 2. Any bar candidate who obtained a grade of seventy-five per cent in any subject
in any bar examination after July fourth, nineteen hundred and forty-six shall be deemed
 to have passed in such subject or subjects and such grade or grades shall be included in
computing the passing general average that said candidate may obtain in any
subsequent examinations that he may take.

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

Enacted on June 21, 1953, without the Executive approval.

After its approval, many of the unsuccessful postwar candidates filed petitions for admission to
the bar invoking its provisions, while others whose motions for the revision of their examination
papers were still pending also invoked the aforesaid law as an additional ground for admission.
There are also others who have sought simply the reconsideration of their grades without,
however, invoking the law in question. To avoid injustice to individual petitioners, the court first
reviewed the motions for reconsideration, irrespective of whether or not they had invoked
Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If
they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if
declared valid, should be applied equally to all concerned whether they have filed petitions or
not. A complete list of the petitioners, properly classified, affected by this decision, as well as a
more detailed account of the history of Republic Act No. 972, are appended to this decision as
Annexes I and II. And to realize more readily the effects of the law, the following statistical data
are set forth:

(1) The unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No.
972 total 1,168, classified as follows:

1946 (August) 206 121 18

1946 (November) 477 228 43
1947 749 340 0
1948 899 409 11
1949 1,218 532 164
1950 1,316 893 26
1951 2,068 879 196
1952 2,738 1,033 426
1953 2,555 968 284
TOTAL 12,230 5,421 1,168

Of the total 1,168 candidates, 92 have passed in subsequent examination, and only 586 have
filed either motions for admission to the bar pursuant to said Republic Act, or mere motions for
reconsideration.

(2) In addition, some other 10 unsuccessful candidates are to be benefited by section 2 of said
Republic Act. These candidates had each taken from two to five different examinations, but
failed to obtain a passing average in any of them. Consolidating, however, their highest grades
in different subjects in previous examinations, with their latest marks, they would be sufficient to
reach the passing average as provided for by Republic Act No. 972.
(3) The total number of candidates to be benefited by this Republic Acts is therefore 1,094, of
which only 604 have filed petitions. Of these 604 petitioners, 33 who failed in 1946 to 1951 had
individually presented motions for reconsideration which were denied, while 125 unsuccessful
candidates of 1952, and 56 of 1953, had presented similar motions, which are still pending
because they could be favorably affected by Republic Act No. 972, — although as has been
already stated, this tribunal finds no sufficient reasons to reconsider their grades

UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972

Having been called upon to enforce a law of far-reaching effects on the practice of the legal
profession and the administration of justice, and because some doubts have been expressed as
to its validity, the court set the hearing of the afore-mentioned petitions for admission on the sole
question of whether or not Republic Act No. 972 is constitutional.

We have been enlightened in the study of this question by the brilliant assistance of the
members of the bar who have amply argued, orally an in writing, on the various aspects in
which the question may be gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente
J. Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of the validity of the law,
and of the U.P. Women's Lawyers' Circle, the Solicitor General, Messrs. Arturo A. Alafriz,
Enrique M. Fernando, Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de
Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside from the memoranda of
counsel for petitioners, Messrs. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio
Enrile Inton, and of petitioners Cabrera, Macasaet and Galema themselves, has greatly helped
us in this task. The legal researchers of the court have exhausted almost all Philippine and
American jurisprudence on the matter. The question has been the object of intense deliberation
for a long time by the Tribunal, and finally, after the voting, the preparation of the majority
opinion was assigned to a new member in order to place it as humanly as possible above all
suspicion of prejudice or partiality.

Republic Act No. 972 has for its object, according to its author, to admit to the Bar, those
candidates who suffered from insufficiency of reading materials and inadequate preparation.
Quoting a portion of the Explanatory Note of the proposed bill, its author Honorable Senator
Pablo Angeles David stated:

The reason for relaxing the standard 75 per cent passing grade is the tremendous
handicap which students during the years immediately after the Japanese occupation
has to overcome such as the insufficiency of reading materials and the inadequacy of
the preparation of students who took up law soon after the liberation.

Of the 9,675 candidates who took the examinations from 1946 to 1952, 5,236 passed. And now
it is claimed that in addition 604 candidates be admitted (which in reality total 1,094), because
they suffered from "insufficiency of reading materials" and of "inadequacy of preparation."

By its declared objective, the law is contrary to public interest because it qualifies 1,094 law
graduates who confessedly had inadequate preparation for the practice of the profession, as
was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of
legal profession adequate preparation and efficiency, precisely more so as legal problem
evolved by the times become more difficult. An adequate legal preparation is one of the vital
requisites for the practice of law that should be developed constantly and maintained firmly. To
the legal profession is entrusted the protection of property, life, honor and civil liberties. To
approve officially of those inadequately prepared individuals to dedicate themselves to such a
delicate mission is to create a serious social danger. Moreover, the statement that there was an
insufficiency of legal reading materials is grossly exaggerated. There were abundant materials.
Decisions of this court alone in mimeographed copies were made available to the public during
those years and private enterprises had also published them in monthly magazines and annual
digests. The Official Gazette had been published continuously. Books and magazines published
abroad have entered without restriction since 1945. Many law books, some even with revised
and enlarged editions have been printed locally during those periods. A new set of Philippine
Reports began to be published since 1946, which continued to be supplemented by the addition
of new volumes. Those are facts of public knowledge.

Notwithstanding all these, if the law in question is valid, it has to be enforced.

The question is not new in its fundamental aspect or from the point of view of applicable
principles, but the resolution of the question would have been easier had an identical case of
similar background been picked out from the jurisprudence we daily consult. Is there any
precedent in the long Anglo-Saxon legal history, from which has been directly derived the
judicial system established here with its lofty ideals by the Congress of the United States, and
which we have preserved and attempted to improve, or in our contemporaneous judicial history
of more than half a century? From the citations of those defending the law, we can not find a
case in which the validity of a similar law had been sustained, while those against its validity
cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon (State vs. Cannon, 240
NW, 441), the opinion of the Supreme Court of Massachusetts in 1932 (81 ALR 1061), of
Guariña (24 Phil., 37), aside from the opinion of the President which is expressed in his vote of
the original bill and which the postponement of the contested law respects.

This law has no precedent in its favor. When similar laws in other countries had been
promulgated, the judiciary immediately declared them without force or effect. It is not within our
power to offer a precedent to uphold the disputed law.

To be exact, we ought to state here that we have examined carefully the case that has been
cited to us as a favorable precedent of the law — that of Cooper (22 NY, 81), where the Court of
Appeals of New York revoked the decision of the Supreme court of that State, denying the
petition of Cooper to be admitted to the practice of law under the provisions of a statute
concerning the school of law of Columbia College promulgated on April 7, 1860, which was
declared by the Court of Appeals to be consistent with the Constitution of the state of New York.

It appears that the Constitution of New York at that time provided:

They (i.e., the judges) shall not hold any other office of public trust. All votes for either of
them for any elective office except that of the Court of Appeals, given by the Legislature
or the people, shall be void. They shall not exercise any power of appointment to public
office. Any male citizen of the age of twenty-one years, of good moral character, and
who possesses the requisite qualifications of learning and ability, shall be entitled to
admission to practice in all the courts of this State. (p. 93).

According to the Court of Appeals, the object of the constitutional precept is as follows:

Attorneys, solicitors, etc., were public officers; the power of appointing them had
previously rested with the judges, and this was the principal appointing power which they
 possessed. The convention was evidently dissatisfied with the manner in which this
power had been exercised, and with the restrictions which the judges had imposed upon
admission to practice before them. The prohibitory clause in the section quoted was
aimed directly at this power, and the insertion of the provision" expecting the admission
of attorneys, in this particular section of the Constitution, evidently arose from its
connection with the object of this prohibitory clause. There is nothing indicative of
confidence in the courts or of a disposition to preserve any portion of their power over
this subject, unless the Supreme Court is right in the inference it draws from the use of
the word `admission' in the action referred to. It is urged that the admission spoken of
must be by the court; that to admit means to grant leave, and that the power of granting
necessarily implies the power of refusing, and of course the right of determining whether
the applicant possesses the requisite qualifications to entitle him to admission.

These positions may all be conceded, without affecting the validity of the act. (p. 93.)

Now, with respect to the law of April 7, 1860, the decision seems to indicate that it provided that
the possession of a diploma of the school of law of Columbia College conferring the degree of
Bachelor of Laws was evidence of the legal qualifications that the constitution required of
applicants for admission to the Bar. The decision does not however quote the text of the law,
which we cannot find in any public or accessible private library in the country.

In the case of Cooper, supra, to make the law consistent with the Constitution of New York, the
Court of Appeals said of the object of the law:

The motive for passing the act in question is apparent. Columbia College being an
institution of established reputation, and having a law department under the charge of
able professors, the students in which department were not only subjected to a formal
examination by the law committee of the institution, but to a certain definite period of
study before being entitled to a diploma of being graduates, the Legislature evidently,
and no doubt justly, considered this examination, together with the preliminary study
required by the act, as fully equivalent as a test of legal requirements, to the ordinary
examination by the court; and as rendering the latter examination, to which no definite
period of preliminary study was essential, unnecessary and burdensome.

The act was obviously passed with reference to the learning and ability of the applicant,
and for the mere purpose of substituting the examination by the law committee of the
college for that of the court. It could have had no other object, and hence no greater
scope should be given to its provisions. We cannot suppose that the Legislature
designed entirely to dispense with the plain and explicit requirements of the Constitution;
and the act contains nothing whatever to indicate an intention that the authorities of the
college should inquire as to the age, citizenship, etc., of the students before granting a
diploma. The only rational interpretation of which the act admits is, that it was intended
to make the college diploma competent evidence as to the legal attainments of the
applicant, and nothing else. To this extent alone it operates as a modification of pre-
existing statutes, and it is to be read in connection with these statutes and with the
Constitution itself in order to determine the present condition of the law on the subject.
(p.89)

xxx xxx xxx

 The Legislature has not taken from the court its jurisdiction over the question of
admission, that has simply prescribed what shall be competent evidence in certain cases
upon that question. (p.93)

From the foregoing, the complete inapplicability of the case of Cooper with that at bar may be
clearly seen. Please note only the following distinctions:

(1) The law of New York does not require that any candidate of Columbia College who failed in
the bar examinations be admitted to the practice of law.

(2) The law of New York according to the very decision of Cooper, has not taken from the court
its jurisdiction over the question of admission of attorney at law; in effect, it does not decree the
admission of any lawyer.

(3) The Constitution of New York at that time and that of the Philippines are entirely different on
the matter of admission of the practice of law.

In the judicial system from which ours has been evolved, the admission, suspension,
disbarment and reinstatement of attorneys at law in the practice of the profession and their
supervision have been disputably a judicial function and responsibility. Because of this attribute,
its continuous and zealous possession and exercise by the judicial power have been
demonstrated during more than six centuries, which certainly "constitutes the most solid of
titles." Even considering the power granted to Congress by our Constitution to repeal, alter
supplement the rules promulgated by this Court regarding the admission to the practice of law,
to our judgment and proposition that the admission, suspension, disbarment and reinstatement
of the attorneys at law is a legislative function, properly belonging to Congress, is unacceptable.
The function requires (1) previously established rules and principles, (2) concrete facts, whether
past or present, affecting determinate individuals. and (3) decision as to whether these facts are
governed by the rules and principles; in effect, a judicial function of the highest degree. And it
becomes more undisputably judicial, and not legislative, if previous judicial resolutions on the
petitions of these same individuals are attempted to be revoked or modified.

We have said that in the judicial system from which ours has been derived, the act of admitting,
suspending, disbarring and reinstating attorneys at law in the practice of the profession is
concededly judicial. A comprehensive and conscientious study of this matter had been
undertaken in the case of State vs. Cannon (1932) 240 NW 441, in which the validity of a
legislative enactment providing that Cannon be permitted to practice before the courts was
discussed. From the text of this decision we quote the following paragraphs:

This statute presents an assertion of legislative power without parallel in the history of
the English speaking people so far as we have been able to ascertain. There has been
much uncertainty as to the extent of the power of the Legislature to prescribe the
ultimate qualifications of attorney at law has been expressly committed to the courts, and
the act of admission has always been regarded as a judicial function. This act purports
to constitute Mr. Cannon an attorney at law, and in this respect it stands alone as an
assertion of legislative power. (p. 444)

Under the Constitution all legislative power is vested in a Senate and Assembly. (Section
1, art. 4.) In so far as the prescribing of qualifications for admission to the bar are
 legislative in character, the Legislature is acting within its constitutional authority when it
sets up and prescribes such qualifications. (p. 444)

But when the Legislature has prescribed those qualifications which in its judgment will
serve the purpose of legitimate legislative solicitude, is the power of the court to impose
other and further exactions and qualifications foreclosed or exhausted? (p. 444)

Under our Constitution the judicial and legislative departments are distinct, independent,
and coordinate branches of the government. Neither branch enjoys all the powers of
sovereignty which properly belongs to its department. Neither department should so act
as to embarrass the other in the discharge of its respective functions. That was the
scheme and thought of the people setting upon the form of government under which we
exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel. Bashford vs. Barstow, 4
Wis., 567. (p. 445)

The judicial department of government is responsible for the plane upon which the
administration of justice is maintained. Its responsibility in this respect is exclusive. By
committing a portion of the powers of sovereignty to the judicial department of our state
government, under 42a scheme which it was supposed rendered it immune from
embarrassment or interference by any other department of government, the courts
cannot escape responsibility fir the manner in which the powers of sovereignty thus
committed to the judicial department are exercised. (p. 445)

The relation at the bar to the courts is a peculiar and intimate relationship. The bar is an
attache of the courts. The quality of justice dispense by the courts depends in no small
degree upon the integrity of its bar. An unfaithful bar may easily bring scandal and
reproach to the administration of justice and bring the courts themselves into disrepute.
(p.445)

Through all time courts have exercised a direct and severe supervision over their bars,
at least in the English speaking countries. (p. 445)

After explaining the history of the case, the Court ends thus:

Our conclusion may be epitomized as follows: For more than six centuries prior to the
adoption of our Constitution, the courts of England, concededly subordinate to
Parliament since the Revolution of 1688, had exercise the right of determining who
should be admitted to the practice of law, which, as was said in Matter of the Sergeant's
at Law, 6 Bingham's New Cases 235, "constitutes the most solid of all titles." If the
courts and judicial power be regarded as an entity, the power to determine who should
be admitted to practice law is a constituent element of that entity. It may be difficult to
isolate that element and say with assurance that it is either a part of the inherent power
of the court, or an essential element of the judicial power exercised by the court, but that
it is a power belonging to the judicial entity and made of not only a sovereign institution,
but made of it a separate independent, and coordinate branch of the government. They
took this institution along with the power traditionally exercise to determine who should
constitute its attorney at law. There is no express provision in the Constitution which
indicates an intent that this traditional power of the judicial department should in any
manner be subject to legislative control. Perhaps the dominant thought of the framers of
our constitution was to make the three great departments of government separate and
 independent of one another. The idea that the Legislature might embarrass the judicial
department by prescribing inadequate qualifications for attorneys at law is inconsistent
with the dominant purpose of making the judicial independent of the legislative
department, and such a purpose should not be inferred in the absence of express
constitutional provisions. While the legislature may legislate with respect to the
qualifications of attorneys, but is incidental merely to its general and unquestioned power
to protect the public interest. When it does legislate a fixing a standard of qualifications
required of attorneys at law in order that public interests may be protected, such
qualifications do not constitute only a minimum standard and limit the class from which
the court must make its selection. Such legislative qualifications do not constitute the
ultimate qualifications beyond which the court cannot go in fixing additional qualifications
deemed necessary by the course of the proper administration of judicial functions. There
is no legislative power to compel courts to admit to their bars persons deemed by them
unfit to exercise the prerogatives of an attorney at law. (p. 450)

Furthermore, it is an unlawful attempt to exercise the power of appointment. It is quite

likely true that the legislature may exercise the power of appointment when it is in
pursuance of a legislative functions. However, the authorities are well-nigh unanimous
that the power to admit attorneys to the practice of law is a judicial function. In all of the
states, except New Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our
investigation reveals, attorneys receive their formal license to practice law by their
admission as members of the bar of the court so admitting. Cor. Jur. 572; Ex
parte Secombre, 19 How. 9,15 L. Ed. 565; Ex parteGarland, 4 Wall. 333, 18 L. Ed. 366;
Randall vs. Brigham, 7 Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P.
646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021, 130 Am. St. Rep.
1030, 20 Ann. Cas. 413.

The power of admitting an attorney to practice having been perpetually exercised by the
courts, it having been so generally held that the act of the court in admitting an attorney
to practice is the judgment of the court, and an attempt as this on the part of the
Legislature to confer such right upon any one being most exceedingly uncommon, it
seems clear that the licensing of an attorney is and always has been a purely judicial
function, no matter where the power to determine the qualifications may reside. (p. 451)

In that same year of 1932, the Supreme Court of Massachusetts, in answering a consultation of
the Senate of that State, 180 NE 725, said:

It is indispensible to the administration of justice and to interpretation of the laws that

there be members of the bar of sufficient ability, adequate learning and sound moral
character. This arises from the need of enlightened assistance to the honest, and
restraining authority over the knavish, litigant. It is highly important, also that the public
be protected from incompetent and vicious practitioners, whose opportunity for doing
mischief is wide. It was said by Cardoz, C.L., in People ex rel. Karlin vs. Culkin, 242 N.Y.
456, 470, 471, 162 N.E. 487, 489, 60 A.L.R. 851: "Membership in the bar is a privilege
burden with conditions." One is admitted to the bar "for something more than private
gain." He becomes an "officer of the court", and ,like the court itself, an instrument or
agency to advance the end of justice. His cooperation with the court is due "whenever
justice would be imperiled if cooperation was withheld." Without such attorneys at law
the judicial department of government would be hampered in the performance of its
duties. That has been the history of attorneys under the common law, both in this
 country and England. Admission to practice as an attorney at law is almost without
exception conceded to be a judicial function. Petition to that end is filed in courts, as are
other proceedings invoking judicial action. Admission to the bar is accomplish and made
open and notorious by a decision of the court entered upon its records. The
establishment by the Constitution of the judicial department conferred authority
necessary to the exercise of its powers as a coordinate department of government. It is
an inherent power of such a department of government ultimately to determine the
qualifications of those to be admitted to practice in its courts, for assisting in its work,
and to protect itself in this respect from the unfit, those lacking in sufficient learning, and
those not possessing good moral character. Chief Justice Taney stated succinctly and
with finality in Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It has been well settled,
by the rules and practice of common-law courts, that it rests exclusively with the court to
determine who is qualified to become one of its officers, as an attorney and counselor,
and for what cause he ought to be removed." (p.727)

In the case of Day and others who collectively filed a petition to secure license to practice the
legal profession by virtue of a law of state (In re Day, 54 NE 646), the court said in part:

In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the court, holding the test
oath for attorneys to be unconstitutional, explained the nature of the attorney's office as
follows: "They are officers of the court, admitted as such by its order, upon evidence of
their possessing sufficient legal learning and fair private character. It has always been
the general practice in this country to obtain this evidence by an examination of the
parties. In this court the fact of the admission of such officers in the highest court of the
states to which they, respectively, belong for, three years preceding their application, is
regarded as sufficient evidence of the possession of the requisite legal learning, and the
statement of counsel moving their admission sufficient evidence that their private and
professional character is fair. The order of admission is the judgment of the court that the
parties possess the requisite qualifications as attorneys and counselors, and are entitled
to appear as such and conduct causes therein. From its entry the parties become
officers of the court, and are responsible to it for professional misconduct. They hold
their office during good behavior, and can only be deprived of it for misconduct
ascertained and declared by the judgment of the court after opportunity to be heard has
been afforded. Ex parte Hoyfron, admission or their exclusion is not the exercise of a
mere ministerial power. It is the exercise of judicial power, and has been so held in
numerous cases. It was so held by the court of appeals of New York in the matter of the
application of Cooper for admission. Re Cooper 22 N. Y. 81. "Attorneys and
Counselors", said that court, "are not only officers of the court, but officers whose duties
relate almost exclusively to proceedings of a judicial nature; and hence their
appointment may, with propriety, be entrusted to the court, and the latter, in performing
his duty, may very justly considered as engaged in the exercise of their appropriate
judicial functions." (pp. 650-651).

We quote from other cases, the following pertinent portions:

Admission to practice of law is almost without exception conceded everywhere to be the

exercise of a judicial function, and this opinion need not be burdened with citations in
this point. Admission to practice have also been held to be the exercise of one of the
inherent powers of the court. — Re Bruen, 102 Wash. 472, 172 Pac. 906.
 Admission to the practice of law is the exercise of a judicial function, and is an inherent
power of the court. — A.C. Brydonjack, vs. State Bar of California, 281 Pac. 1018; See
Annotation on Power of Legislature respecting admission to bar, 65, A.L. R. 1512.

On this matter there is certainly a clear distinction between the functions of the judicial and
legislative departments of the government.

The distinction between the functions of the legislative and the judicial departments is
that it is the province of the legislature to establish rules that shall regulate and govern in
matters of transactions occurring subsequent to the legislative action, while the judiciary
determines rights and obligations with reference to transactions that are past or
conditions that exist at the time of the exercise of judicial power, and the distinction is a
vital one and not subject to alteration or change either by legislative action or by judicial
decree.

The judiciary cannot consent that its province shall be invaded by either of the other
departments of the government. — 16 C.J.S., Constitutional Law, p. 229.

If the legislature cannot thus indirectly control the action of the courts by requiring of
them construction of the law according to its own views, it is very plain it cannot do so
directly, by settling aside their judgments, compelling them to grant new trials, ordering
the discharge of offenders, or directing what particular steps shall be taken in the
progress of a judicial inquiry. — Cooley's Constitutional Limitations, 192.

In decreeing the bar candidates who obtained in the bar examinations of 1946 to 1952, a
general average of 70 per cent without falling below 50 per cent in any subject, be admitted in
mass to the practice of law, the disputed law is not a legislation; it is a judgment — a judgment
revoking those promulgated by this Court during the aforecited year affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for
justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive
department, that may be so. Any attempt on the part of any of these departments would be a
clear usurpation of its functions, as is the case with the law in question.

That the Constitution has conferred on Congress the power to repeal, alter or supplement the
rule promulgated by this Tribunal, concerning the admission to the practice of law, is no valid
argument. Section 13, article VIII of the Constitution provides:

Section 13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice, and procedure in all courts, and the admission to the practice of law.
Said rules shall be uniform for all courts of the same grade and shall not diminish,
increase or modify substantive rights. The existing laws on pleading, practice and
procedure are hereby repealed as statutes, and are declared Rules of Court, subject to
the power of the Supreme Court to alter and modify the same. The Congress shall have
the power to repeal, alter, or supplement the rules concerning pleading, practice, and
procedure, and the admission to the practice of law in the Philippines. — Constitution of
the Philippines, Art. VIII, sec. 13.

It will be noted that the Constitution has not conferred on Congress and this Tribunal equal
responsibilities concerning the admission to the practice of law. the primary power and
responsibility which the Constitution recognizes continue to reside in this Court. Had Congress
found that this Court has not promulgated any rule on the matter, it would have nothing over
which to exercise the power granted to it. Congress may repeal, alter and supplement the rules
promulgated by this Court, but the authority and responsibility over the admission, suspension,
disbarment and reinstatement of attorneys at law and their supervision remain vested in the
Supreme Court. The power to repeal, alter and supplement the rules does not signify nor permit
that Congress substitute or take the place of this Tribunal in the exercise of its primary power on
the matter. The Constitution does not say nor mean that Congress may admit, suspend, disbar
or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law.
Its power is limited to repeal, modify or supplement the existing rules on the matter, if according
to its judgme

The law in question, like those in the case of Day and Cannon, has been found also to suffer
from the fatal defect of being a class legislation, and that if it has intended to make a
classification, it is arbitrary and unreasonable.

In the case of Day, a law enacted on February 21, 1899 required of the Supreme Court, until
December 31 of that year, to grant license for the practice of law to those students who began
studying before November 4, 1897, and had studied for two years and presented a diploma
issued by a school of law, or to those who had studied in a law office and would pass an
examination, or to those who had studied for three years if they commenced their studies after
the aforementioned date. The Supreme Court declared that this law was unconstitutional being,
among others, a class legislation. The Court said:

This is an application to this court for admission to the bar of this state by virtue of
diplomas from law schools issued to the applicants. The act of the general assembly
passed in 1899, under which the application is made, is entitled "An act to amend
section 1 of an act entitled "An act to revise the law in relation to attorneys and
counselors," approved March 28, 1884, in force July 1, 1874." The amendment, so far as
it appears in the enacting clause, consists in the addition to the section of the following:
"And every application for a license who shall comply with the rules of the supreme court
in

two different conditions and limits of time are fixed. No course of study is prescribed for
the law school, but a diploma granted upon the completion of any sort of course its
managers may prescribe is made all-sufficient. Can there be anything with relation to the
qualifications or fitness of persons to practice law resting upon the mere date of
November 4, 1897, which will furnish a basis of classification. Plainly not. Those who
began the study of law November 4th could qualify themselves to practice in two years
as well as those who began on the 3rd. The classes named in the proviso need spend
only two years in study, while those who commenced the next day must spend three
years, although they would complete two years before the time limit. The one who
commenced on the 3rd. If possessed of a diploma, is to be admitted without examination
before December 31, 1899, and without any prescribed course of study, while as to the
other the prescribed course must be pursued, and the diploma is utterly useless. Such
classification cannot rest upon any natural reason, or bear any just relation to the subject
sought, and none is suggested. The proviso is for the sole purpose of bestowing
privileges upon certain defined persons. (pp. 647-648.)
In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441, where the legislature
attempted by law to reinstate Cannon to the practice of law, the court also held with regards to
its aspect of being a class legislation:

But the statute is invalid for another reason. If it be granted that the legislature has
power to prescribe ultimately and definitely the qualifications upon which courts must
admit and license those applying as attorneys at law, that power can not be exercised in
the manner here attempted. That power must be exercised through general laws which
will apply to all alike and accord equal opportunity to all. Speaking of the right of the
Legislature to exact qualifications of those desiring to pursue chosen callings, Mr.
Justice Field in the case of Dent. vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233,
32 L. Ed. 626, said: "It is undoubtedly the right of every citizen of the United States to
follow any lawful calling, business or profession he may choose, subject only to such
restrictions as are imposed upon all persons of like age, sex, and condition." This right
may in many respects be considered as a distinguishing feature of our republican
institutions. Here all vocations are all open to every one on like conditions. All may be
pursued as sources of livelihood, some requiring years of study and great learning for
their successful prosecution. The interest, or, as it is sometimes termed, the "estate"
acquired in them — that is, the right to continue their prosecution — is often of great
value to the possessors and cannot be arbitrarily taken from them, any more than their
real or personal property can be thus taken. It is fundamental under our system of
government that all similarly situated and possessing equal qualifications shall enjoy
equal opportunities. Even statutes regulating the practice of medicine, requiring
medications to establish the possession on the part of the application of his proper
qualifications before he may be licensed to practice, have been challenged, and courts
have seriously considered whether the exemption from such examinations of those
practicing in the state at the time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general principle. State vs. Thomas
Call, 121 N.C. 643, 28 S.E. 517; see, also, The State ex rel. Winkler vs. Rosenberg, 101
Wis. 172, 76 N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468.

This law singles out Mr. Cannon and assumes to confer upon him the right to practice
law and to constitute him an officer of this Court as a mere matter of legislative grace or
favor. It is not material that he had once established his right to practice law and that one
time he possessed the requisite learning and other qualifications to entitle him to that
right. That fact in no matter affect the power of the Legislature to select from the great
body of the public an individual upon whom it would confer its favors.

A statute of the state of Minnesota (Laws 1929, c. 424) commanded the Supreme Court
to admit to the practice of law without examination, all who had served in the military or
naval forces of the United States during the World War and received a honorable
discharge therefrom and who (were disabled therein or thereby within the purview of the
Act of Congress approved June 7th, 1924, known as "World War Veteran's Act, 1924
and whose disability is rated at least ten per cent thereunder at the time of the passage
of this Act." This Act was held |unconstitutional on the ground that it clearly violated the
quality clauses of the constitution of that state. In re Application of George W.
Humphrey, 178 Minn. 331, 227 N.W. 179.

A good summary of a classification constitutionally acceptable is explained in 12 Am. Jur. 151-

153 as follows:
 The general rule is well settled by unanimity of the authorities that a classification to be
valid must rest upon material differences between the person included in it and those
excluded and, furthermore, must be based upon substantial distinctions. As the rule has
sometimes avoided the constitutional prohibition, must be founded upon pertinent and
real differences, as distinguished from irrelevant and artificial ones. Therefore, any law
that is made applicable to one class of citizens only must be based on some substantial
difference between the situation of that class and other individuals to which it does not
apply and must rest on some reason on which it can be defended. In other words, there
must be such a difference between the situation and circumstances of all the members
of the class and the situation and circumstances of all other members of the state in
relation to the subjects of the discriminatory legislation as presents a just and natural
cause for the difference made in their liabilities and burdens and in their rights and
privileges. A law is not general because it operates on all within a clause unless there is
a substantial reason why it is made to operate on that class only, and not generally on
all. (12 Am. Jur. pp. 151-153.)

Pursuant to the law in question, those who, without a grade below 50 per cent in any subject,
have obtained a general average of 69.5 per cent in the bar examinations in 1946 to 1951, 70.5
per cent in 1952, 71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954, and 73.5
per cent in 1955, will be permitted to take and subscribe the corresponding oath of office as
members of the Bar, notwithstanding that the rules require a minimum general average of 75
per cent, which has been invariably followed since 1950. Is there any motive of the nature
indicated by the abovementioned authorities, for this classification ? If there is none, and none
has been given, then the classification is fatally defective.

It was indicated that those who failed in 1944, 1941 or the years before, with the general
average indicated, were not included because the Tribunal has no record of the unsuccessful
candidates of those years. This fact does not justify the unexplained classification of
unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954, 1955. Neither is the
exclusion of those who failed before said years under the same conditions justified. The fact that
this Court has no record of examinations prior to 1946 does not signify that no one concerned
may prove by some other means his right to an equal consideration.

To defend the disputed law from being declared unconstitutional on account of its retroactivity, it
is argued that it is curative, and that in such form it is constitutional. What does Rep. Act 972
intend to cure ? Only from 1946 to 1949 were there cases in which the Tribunal permitted
admission to the bar of candidates who did not obtain the general average of 75 per cent: in
1946 those who obtained only 72 per cent; in the 1947 and those who had 69 per cent or more;
in 1948, 70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who obtained 74 per
cent, which was considered by the Court as equivalent to 75 per cent as prescribed by the
Rules, by reason of circumstances deemed to be sufficiently justifiable. These changes in the
passing averages during those years were all that could be objected to or criticized. Now, it is
desired to undo what had been done — cancel the license that was issued to those who did not
obtain the prescribed 75 per cent ? Certainly not. The disputed law clearly does not propose to
do so. Concededly, it approves what has been done by this Tribunal. What Congress lamented
is that the Court did not consider 69.5 per cent obtained by those candidates who failed in 1946
to 1952 as sufficient to qualify them to practice law. Hence, it is the lack of will or defect of
judgment of the Court that is being cured, and to complete the cure of this infirmity, the
effectivity of the disputed law is being extended up to the years 1953, 1954 and 1955,
increasing each year the general average by one per cent, with the order that said candidates
be admitted to the Bar. This purpose, manifest in the said law, is the best proof that what the
law attempts to amend and correct are not the rules promulgated, but the will or judgment of the
Court, by means of simply taking its place. This is doing directly what the Tribunal should have
done during those years according to the judgment of Congress. In other words, the power
exercised was not to repeal, alter or supplement the rules, which continue in force. What was
done was to stop or suspend them. And this power is not included in what the Constitution has
granted to Congress, because it falls within the power to apply the rules. This power
corresponds to the judiciary, to which such duty been confided.

Article 2 of the law in question permits partial passing of examinations, at indefinite intervals.
The grave defect of this system is that it does not take into account that the laws and
jurisprudence are not stationary, and when a candidate finally receives his certificate, it may
happen that the existing laws and jurisprudence are already different, seriously affecting in this
manner his usefulness. The system that the said law prescribes was used in the first bar
examinations of this country, but was abandoned for this and other disadvantages. In this case,
however, the fatal defect is that the article is not expressed in the title will have temporary effect
only from 1946 to 1955, the text of article 2 establishes a permanent system for an indefinite
time. This is contrary to Section 21 (1), article VI of the Constitution, which vitiates and annuls
article 2 completely; and because it is inseparable from article 1, it is obvious that its nullity
affect the entire law.

Laws are unconstitutional on the following grounds: first, because they are not within the
legislative powers of Congress to enact, or Congress has exceeded its powers; second,
because they create or establish arbitrary methods or forms that infringe constitutional
principles; and third, because their purposes or effects violate the Constitution or its basic
principles. As has already been seen, the contested law suffers from these fatal defects.

Summarizing, we are of the opinion and hereby declare that Republic Act No. 972 is
unconstitutional and therefore, void, and without any force nor effect for the following reasons,
to wit:

1. Because its declared purpose is to admit 810 candidates who failed in the bar examinations
of 1946-1952, and who, it admits, are certainly inadequately prepared to practice law, as was
exactly found by this Court in the aforesaid years. It decrees the admission to the Bar of these
candidates, depriving this Tribunal of the opportunity to determine if they are at present already
prepared to become members of the Bar. It obliges the Tribunal to perform something contrary
to reason and in an arbitrary manner. This is a manifest encroachment on the constitutional
responsibility of the Supreme Court.

2. Because it is, in effect, a judgment revoking the resolution of this Court on the petitions of
these 810 candidates, without having examined their respective examination papers, and
although it is admitted that this Tribunal may reconsider said resolution at any time for justifiable
reasons, only this Court and no other may revise and alter them. In attempting to do it directly
Republic Act No. 972 violated the Constitution.

3. By the disputed law, Congress has exceeded its legislative power to repeal, alter and
supplement the rules on admission to the Bar. Such additional or amendatory rules are, as they
ought to be, intended to regulate acts subsequent to its promulgation and should tend to
improve and elevate the practice of law, and this Tribunal shall consider these rules as minimum
norms towards that end in the admission, suspension, disbarment and reinstatement of lawyers
to the Bar, inasmuch as a good bar assists immensely in the daily performance of judicial
functions and is essential to a worthy administration of justice. It is therefore the primary and
inherent prerogative of the Supreme Court to render the ultimate decision on who may be
admitted and may continue in the practice of law according to existing rules.

4. The reason advanced for the pretended classification of candidates, which the law makes, is
contrary to facts which are of general knowledge and does not justify the admission to the Bar of
law students inadequately prepared. The pretended classification is arbitrary. It is undoubtedly a
class legislation.

5. Article 2 of Republic Act No. 972 is not embraced in the title of the law, contrary to what the
Constitution enjoins, and being inseparable from the provisions of article 1, the entire law is
void.

6. Lacking in eight votes to declare the nullity of that part of article 1 referring to the
examinations of 1953 to 1955, said part of article 1, insofar as it concerns the examinations in
those years, shall continue in force.

RESOLUTION

Upon mature deliberation by this Court, after hearing and availing of the magnificent and
impassioned discussion of the contested law by our Chief Justice at the opening and close of
the debate among the members of the Court, and after hearing the judicious observations of two
of our beloved colleagues who since the beginning have announced their decision not to take
part in voting, we, the eight members of the Court who subscribed to this decision have voted
and resolved, and have decided for the Court, and under the authority of the same:

1. That (a) the portion of article 1 of Republic Act No. 972 referring to the examinations of 1946
to 1952, and (b) all of article 2 of said law are unconstitutional and, therefore, void and without
force and effect.

2. That, for lack of unanimity in the eight Justices, that part of article 1 which refers to the
examinations subsequent to the approval of the law, that is from 1953 to 1955 inclusive, is valid
and shall continue to be in force, in conformity with section 10, article VII of the Constitution.

Consequently, (1) all the above-mentioned petitions of the candidates who failed in the
examinations of 1946 to 1952 inclusive are denied, and (2) all candidates who in the
examinations of 1953 obtained a general average of 71.5 per cent or more, without having a
grade below 50 per cent in any subject, are considered as having passed, whether they have
filed petitions for admission or not. After this decision has become final, they shall be permitted
to take and subscribe the corresponding oath of office as members of the Bar on the date or
dates that the chief Justice may set. So ordered.

Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes, JJ., concur.
 ANNEX I

PETITIONERS UNDER REPUBLIC ACT NO. 972

A resume‚ of pertinent facts concerning the bar examinations of 1946 to 1953 inclusive follows:

August, 19461
Board of Examiners: Hon. Pedro Tuason, Chairman, Prof. Gerardo
Florendo, Atty. Bernardino Guerrero, Atty. Joaquin Ramirez, Atty.
Crispin Oben, Hon. Jose Teodoro, Atty. Federico Agrava, Atty. Jose
Perez Cardenas, and Hon. Bienvenido A. Tan, members.
Number of candidates 206
Number of candidates whose grades were raised 12
73'S 6
72'S 6
Number of candidates who passed 85
Number of candidates who failed 121
Number of those affected by Republic Act No. 972 18
Percentage of success (per cent) 41.62
Percentage of failure (per cent) 58.74
Passing grade (per cent) 72
November, 1946
Board of Examiners: The same as that of August, 1946, except Hon.
Jose Teodoro who was substituted by Atty. Honesto K. Bausan.
Number of candidates 481
Number of candidates whose grades were raised 19
(72 per cent and above 73 per cent ---
Minutes of March 31, 1947)
Number of candidates who passed 249
Number of candidates who failed 228
Number of those affected by Republic Act No. 972 43
Percentage of success (per cent) 52.20
Percentage of failure (per cent) 47.80
Passing grade (per cent) 72
(By resolution of the Court).
October, 1947
Board of Examiners: Hon. Cesar Bengzon, Chairman, Hon. Guillermo B.
Guevara, Atty. Antonio Araneta, Atty. Simon Cruz, Hon. Sixto de la
Costa, Atty. Celso B. Jamora, Hon. Emilio Peña, Atty. Federico Agrava,
Atty. Carlos B. Hilado, Members.
Number of candidates 749
Number of candidates whose grades were raised 43
70.55 per cent with 2 subject below 50 per 1
cent
69 per cent 40
68 per cent 2
Number of candidates who passed 409
Number of candidates who failed 340
Number of those affected by Republic Act No. 972 972
Percentage of success (per cent) 54.59
Percentage of failure (per cent) 45.41
Passing grade (per cent) 69
(by resolution of the Court).

Note.--In passing the 2 whose grades were 68.95 per cent and
68.1 per cent respectively, the Court found out that they were
not benefited at all by the bonus of 12 points given by the
Examiner in Civil Law.
August, 1948
Board of Examiners: Hon. Marceliano R. Montemayor, Chairman Hon.
Luis P. Torres, Hon. Felipe Natividad, Hon. Jose Teodoro, Sr., Atty.
Federico Agrava, Atty. Macario Peralta, Sr., Hon. Jesus G. Barrera,
Hon. Rafael Amparo, Atty. Alfonso Ponce Enrile, Members.
Number of candidates 899
Number of candidates whose grades were raised 64
71's 29
70's 35
Number of candidates who passed 490
Number of candidates who failed 409
Number of those affected by Republic Act No. 972 11
Percentage of success (per cent) 62.40
Percentage of failure (per cent) 37.60
Passing grade (per cent) 70
(by resolution of the Court).
August, 1949
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Fernando
Jugo, Hon. Enrique Filamor, Atty. Salvador Araneta, Hon. Pastor M.
Endencia, Atty. Federico Agrava, Hon. Mariano H. de Joya, Hon. Felipe
Natividad, Atty. Emeterio Barcelon, Members.
Number of candidates 1,218
Number of candidates whose grades were raised 55
(74's)
Number of candidates who passed 686
Number of candidates who failed 532
Number of those affected by Republic Act No. 972 164
Percentage of success (per cent) 56.28
Percentage of failure (per cent) 43.72
Passing grade (per cent) 74
(by resolution of the Court).
August, 1950
Board of Examiners: Hon. Fernando Jugo,2 Chairman, Hon. Guillermo
B. Guevara, Atty. Enrique Altavas, Atty. Marcial P. Lichauco, Atty.
Carlos B. Hilado, Atty. J. Antonio Araneta, Hon. Enrique V. Filamor,
Hon. Francisco A. Delgado, Hon. Antonio Horrilleno, Members.
Number of candidates 1,316
Number of candidates whose grades were raised 38
(The grade of 74 was raised to 75 per cent by recommendation
and authority
of the examiner in Remedial Law, Atty. Francisco Delgado).
Number of candidates who passed 432
Number of candidates who failed 894
Number of those affected by Republic Act No. 972 26
Percentage of success (per cent) 32.14
Percentage of failure (per cent) 67.86
Passing grade (per cent) 75
August, 1951
Board of Examiners: Hon. Guillermo F. Pablo, Chairman, Hon. Pastor
M. Endencia, Atty. Enrique Altavas, Hon. Manuel Lim, Hon. Felipe
Natividad, Hon. Vicente Albert, Atty. Arturo Alafriz, Hon. Enrique V.
Filamor, Hon. Alfonso Felix, Members.
Number of candidates 2,068
Number of candidates whose grades were raised 112
(74's)
Number of candidates who passed 1,189
Number of candidates who failed 879
Number of those affected by Republic Act No. 972 196
Percentage of success (per cent) 57.49
Percentage of failure (per cent) 42.51
Passing grade (per cent) 75
August, 1952
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Pastor M.
Endencia, Hon. Enrique V. Filamor, Atty. Francisco Ortigas, Hon. Emilio
 Peña, Atty. Emilio P. Virata, Hon. Alfonso Felix, Hon. Felipe Natividad,
Atty. Macario Peralta, Sr., Members.
Number of candidates 2,738
Number of candidates whose grades were raised 163
(74's)
Number of candidates who passed 1,705
Number of candidates who failed 1,033
Number of those affected by Republic Act No. 972 426
Percentage of success (per cent) 62.27
Percentage of failure (per cent) 37.73
Passing grade (per cent) 75
August, 1953
Board of Examiners: Hon. Fernando Jugo, Chairman, Hon. Pastor M.
Endencia, Atty. Enrique Altavas, Atty. Francisco Ortigas, Jr., Hon.
Emilio Peña, Atty. Jose S. de la Cruz, Hon. Alfonso Felix, Hon. Felipe
Natividad, Hon. Mariano L. de la Rosa, Members.
Number of candidates 2,555
Number of candidates whose grades were raised 100
(74's)
Number of candidates who passed 1,570
Number of candidates who failed 986
Number of those affected by Republic Act No. 972 284
Percentage of success (per cent) 61.04
Percentage of failure (per cent) 38.96
Passing grade (per cent) 75

A list of petitioners for admission to the Bar under Republic Act No. 972, grouped by the years in
which they took the bar examinations, with annotations as to who had presented motions for
reconsideration which were denied (MRD), and who filed mere motions for reconsideration
without invoking said law, which are still pending, follows:

PETITIONER UNDER THE BAR FLUNKERS' LAW

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.
Av.
MRD- 1. Agunod, Filemon L. 66 71 61 76 80 83 73 75 71.4
MRD- 2. Cunanan, Albino 76 72 74 75 70 70 65 72 71.45
MRD- 3. Mejia, Flaviano V. 64 64 65 68 83 74 68 80 69.85
1948
MRD- 4. Orlina, Soledad R. 71 68 66 75 63 75 70 88 69.9
MRD- 5. Vivero, Antonio Lu. 75 73 73 65 63 66 65 80 69.95
MRD- 6. Gatchalian, Salud 72 66 71 75 78 68 65 50 69.65
1949
7. Abaya, Jesus A. 69 79 75 75 71 89 55 75 70.8
MRD- 8. Advincula, David D. 76 80 62 86 81 72 60 65 70.5
9. Agraviador, Alfredo L. 63 85 70 77 80 81 65 80 71.8
10. Alacar, Pascual C. 61 63 83 79 71 85 65 80 72.05
11. Amog, Pedro M. 75 66 76 78 81 74 55 85 72.2
12. Apolinario, Miguel S. 75 84 78 78 70 70 60 75 71.95
13. Aquino, Maximo G. 82 77 71 77 76 77 60 75 73.15
14. Asinas, Candido D. 75 83 69 80 81 83 55 85 72.65
15. Baldivino, Jose B. 75 65 72 82 82 69 60 80 71.95
16. Balintona, Bernardo 75 80 64 78 74 67 65 70 70
17. Banawa, Angel L. 78 70 70 75 81 83 60 60 72.3
18. Bandala, Anacleto A. 66 80 66 71 93 72 55 70 69.6
19. Bandon, Alawadin L. 74 79 69 77 91 73 60 80 73.35
20. Baquero, Benjamin 76 79 64 77 85 72 65 75 72.5
21. Blanco, Jose 75 75 70 75 77 76 60 90 72.5
22. Buenaluz, Victoriano T. 75 71 72 78 67 82 60 75 70.85
23. Canda, Benjamin S. 75 72 75 82 76 77 65 75 73.55
24. Canon, Guillermo 77 86 67 88 75 69 70 85 73.9
25. Carlos, Estela S. 75 81 81 79 72 73 65 70 73.8
26. Cerezo, Gregorio O. 69 76 76 79 71 80 55 80 70.4
27. Clarin, Manuel L. 75 82 76 81 73 69 70 75 73.95
28. Claudo, Conrado O. 76 62 78 77 73 72 60 70 71.4
29. Condevillamar, Antonio 68 65 74 80 85 75 60 75 71.65
V.
MRD- Cornejo, Crisanto R. 72 75 69 82 83 79 65 80 73.4
30.
31. Corona, Olvido D. 68 76 73 81 81 72 60 75 71.15
32. Dizon, Marcial C. 76 86 69 83 75 74 65 80 73.1
33. Enriquez, Agustin P. 75 77 70 81 81 77 65 80 73.75
34. Espiritu, Irineo E. 80 88 69 75 76 77 65 75 73.8
35. Fernandez, Macario J. 63 82 76 75 81 84 65 75 72.95
36. Gallardo, Amando C. 78 79 67 77 76 75 60 65 70.95
37. Garcia, Freidrich M. 76 80 66 75 72 70 60 75 69.7
38. Garcia, Julian L. 64 77 68 82 89 77 65 75 72.15
39. Garcia, Leon Mo. 77 86 71 80 60 82 65 75 71.85
40. Garcia, Pedro V. 76 82 73 81 74 83 60 85 73.6
41. Garcia, Santiago C. 62 91 79 75 72 75 65 80 71.8
42. Genoves, Pedro 75 83 70 78 87 76 55 80 72.7
43. Gonzales, Amado P. 75 71 71 75 86 75 60 75 72.65
44. Guia, Odon R. de 77 76 66 81 74 76 60 75 70.9
45. Fernandez, Simeon 62 68 71 80 74 90 65 75 70.85
46. Jakosalem, Filoteo 82 83 73 82 61 87 65 70 73.6
47. Jesus, Felipe D. de 75 83 67 79 78 85 60 75 72.45
48. Jocom, Jacobo M. 77 77 74 77 74 64 55 85 70.65
49. Juares, Nicolas 77 84 56 76 73 82 60 85 70
50. Kalalang, Remigio 65 75 74 80 70 70 65 85 70.3
51. Layumas, Vicente L. 67 84 65 75 89 66 60 80 70.3
52. Leyson, Amancio F. 69 83 75 76 81 75 65 75 73.15
53. Libanan, Marcelino 71 83 61 77 80 81 65 85 71.75
54. Lim, Jose E. 77 77 72 76 72 64 65 70 71.15
55. Lim, Jose F. 70 75 62 83 80 71 65 80 70.4
56. Linao, Mariano M. 66 84 76 78 80 75 60 75 71.75
57. Lopez, Angelo P. 67 81 75 72 79 81 55 80 71
58. Lopez, Eliezar M. 77 75 60 75 77 85 60 75 70.7
59. Lopez, Nicanor S. 72 71 70 78 77 84 60 75 71.55
60. Manoleto, Proceso D. 72 70 65 78 81 90 60 80 71.95
61. Mancao, Alfredo P. 67 64 71 83 76 76 65 80 70.95
62. Manera, Mariano A. 75 78 75 75 68 79 60 65 71
63. Mercado, Arsenio N. 67 64 71 83 76 76 65 80 70.95
64. Miranda, Benjamin G. 76 81 67 82 74 77 65 80 72.55
65. Manad, Andres B. 77 75 68 82 69 72 65 75 71.15
1948
66. Orosco, Casimiro P. 72 84 69 81 70 82 65 75 71.9
67. Padua, Manuel C. 76 76 68 80 79 79 50 75 70.1
68. Palang, Basilio S. 71 75 82 71 55 87 55 75 69.6
69. Palma, Cuadrato 62 75 69 93 80 79 55 80 69.5
70. Pañganiban, Jose V. 67 83 61 81 91 74 60 75 70.6
71. Pareja, Felipe 66 71 75 81 67 74 60 70 68.75
72. Patalinjug, Eriberto 73 77 78 73 78 71 55 75 71.25
73. Paulin, Jose C. 66 69 71 77 83 82 65 75 72.1
74. Pido, Serafin C. 72 78 63 80 71 85 70 80 72.05
75. Pimentel, Luis P. 77 75 76 81 76 68 55 80 71.6
76. Plantilla, Rodrigo C. 72 78 68 89 79 81 65 85 73.55
77. Regalario, Benito B. 72 80 64 80 75 81 55 80 69.55
78. Robis, Casto P. 62 77 74 73 68 80 70 80 70.9
79. Rodil, Francisco C. 68 69 70 81 76 75 65 75 70.75
80. Rodriguez, Mariano I. 80 75 69 80 72 80 65 80 73.35
81. Romero, Crispulo P. 78 75 66 77 76 83 65 75 72.85
82. Saez, Porfirio D. 75 75 72 81 69 77 60 75 71
83. Saliguma, Crisogono 79 79 74 78 69 65 65 70 71.8
D.
84. Samano, Fortunato A. 75 84 72 77 70 82 60 75 71.9
85. Santos, Faustina C. 71 68 68 76 75 85 55 75 69.5
86. Santos, Josefina R. 68 69 76 71 77 82 65 75 72.3
87. Seludo, Ananias G. 75 80 69 79 77 82 65 75 73.25
88. Semilia, Rafael I. 68 85 55 83 89 79 65 80 71.25
89. Telan, Gaudencio 77 79 70 75 70 75 60 75 70.85
90. Tesorero, Leocadio T. 75 71 63 75 82 62 65 63 69.65
91. Torre, Valentin S. de la 85 81 71 76 69 65 55 70 70.4
92. Torres, Ariston L. 78 71 72 81 61 84 55 85 70.4
93. Veyra, Zosimo C. de 70 75 71 79 65 80 65 80 70.65
94. Viado, Jose 67 70 74 75 75 90 55 80 70.7
95. Villacarlos, Delfin A. 73 87 71 82 69 70 75 85 73.85
96. Villamil, Leonor S. 73 81 76 86 86 73 55 85 73.6
97. Zabala, Amando A. 76 70 67 75 76 76 60 75 70.6
1950
MRD- Cruz, Filomeno de la 70 71 78 81 76 72 64 96 73.4
98.
99. Española, Pablo S. 71 78 55 76 85 69 65 93 70.2
100. Foronda, Clarencio J. 60 78 68 79 84 88 62 93 71.9
101. Hechanova, Vicente 59 76 75 75 69 68 75 96 71.3
MRD- Peñalosa, Osias R. 80 78 61 76 61 77 66 85 70.2
102.
103. Sarmiento, Floro A. 65 86 63 82 89 72 60 72 70.15
MRD- Torre, Catalino P. 75 85 68 78 69 67 65 69 70.25
104.
105. Ungson, Fernando S. 61 87 75 70 57 85 83 82 72.8
1951
106. Abasolo, Romulo 77 70 64 65 76 70 76 64 71.7
107. Adeva, Daniel G. 75 59 74 65 69 51 78 67 70.4
108. Aguilar, Vicente Z. 73 63 68 75 70 69 75 75 71.25
109. Amodia, Juan T. 75 76 66 75 76 60 77 76 72.35
MRD- Añosa, Pablo S. 76 78 63 75 74 61 75 79 71.6
110.
111. Antiola, Anastacio R. 68 76 75 70 71 70 81 66 73.05
112. Aquino, S. Rey A. 70 71 71 60 74 62 76 77 71.1
113. Atienza, Manuel G. 71 78 68 80 86 51 82 75 73.85
114. Avanceña, Alfonso 71 71 65 75 70 72 78 80 71.8
MRD- Balacuit, Camilo N. 75 73 75 70 72 65 75 76 73.25
115.
116. Barinaga, Jeremias L. 68 69 73 70 74 50 80 79 71.2
MRD- Barrientos, Ambrosio 76 60 67 55 74 63 77 62 70.25
117. D.
MRD- Benitez, Tomas P. 67 75 75 60 73 72 75 78 72.2
118.
119. Biason, Sixto F. 73 82 67 65 66 72 77 68 71.25
MRD- Briñas, Isagani A. 71 69 74 70 76 52 79 72 71.95
120.
121. Buela, Arcadio P. 72 77 61 70 71 58 79 71 69.75
122. Cabilao, Leonardo S. 73 50 75 75 75 60 71 79 71.25
123. Cabrera, Ireneo M. 75 66 70 65 72 81 70 79 72.4
124. Cacacho, Emilio V.
125. Calilung, Soledad C. 64 73 73 80 73 57 75 59 69.65
MRD- Calimlim, Jose B. 64 73 73 80 73 57 75 59 69.65
126.
127. Calimlim, Pedro B. 66 82 69 60 69 52 83 75 70
128. Camello, Sotero H. 70 77 63 65 75 66 84 64 71.55
129. Campos, Juan A. 71 88 70 75 64 69 71 62 70.15
130. Castillo, Antonio del 78 78 70 60 79 67 69 76 72.65
MRD- Castillo, Dominador 75 61 72 75 74 71 67 66 71.1
131. Ad.
MRD- Castro, Jesus B. 72 86 72 75 65 75 76 71 72.85
132.
133. Casuga, Bienvenido B. 75 72 72 70 69 61 75 60 70.95
134. Cabangbang, Santiago 77 67 61 80 73 59 83 76 72.2
B.
135. Cruz, Federico S. 69 74 75 75 68 65 76 70 71.65
136. Dacanay, Eufemio P. 70 73 62 75 72 69 85 71 72.05
137. Deysolong, Felisberto 66 62 72 75 70 62 83 62 70.85
MRD- Dimaano, Jr., Jose N. 78 79 63 75 73 75 81 59 73.5
138.
139. Espinosa, Domingo L. 78 63 58 70 70 67 87 63 71.6
MRD- Farol, Evencia C. 80 78 66 75 81 72 62 73 72.25
140.
141. Felix, Conrado S. 71 71 75 65 70 58 75 69 70.75
142. Fernan, Pablo L. 67 88 66 85 73 68 78 75 72.35
143. Gandioco, Salvador G. 64 58 66 65 76 70 89 75 72.1
144. Gastardo, Crispin B. 70 69 68 75 78 66 86 72 73.9
145. Genson, Angelo B. 75 57 73 65 67 54 78 56 69.55
146. Guiani, Guinald M. 68 60 75 65 74 67 75 77 71.5
147. Guina, Graciano P. 66 69 67 60 78 52 83 61 69.6
MRD- Homeres, Praxedes P. 74 74 75 75 71 69 75 71 73.35
148.
149. Ibarra, Venancio M. 60 75 74 70 74 70 80 75 71.9
150. Imperial, Monico L. 72 78 75 75 72 56 82 77 73.7
MRD- Ibasco, Jr., Emiliano M. 71 70 63 85 71 60 85 53 70.85
151.
152. Inandan, Fortunato C. 77 77 67 53 73 75 79 57 72.5
153. Jimenez, Florencio C. 75 70 70 75 72 61 75 78 72.05
154. Kintanar, Woodrow M. 70 83 72 65 76 73 75 69 72.95
155. Languido, Cesar V. 63 71 63 85 70 61 85 79 70.55
156. Lavilles, Cesar L. 61 89 75 55 73 63 75 78 70.55
157. Llenos, Francisco U. 64 70 65 60 72 65 92 75 71.75
158. Leon, Marcelo D. de 63 73 60 85 75 75 90 70 72.75
159. Llanto, Priscilla 72 68 60 65 76 67 84 68 71.35
160. Machachor, Oscar 68 59 78 70 67 57 75 75 70.15
MRD- Magsino, Encarnacion 77 66 70 70 76 71 75 61 72.75
161.
MRD- Maligaya, Demetrio M. 70 61 75 65 75 50 91 51 72.3
162.
163. Manio, Gregorio 67 67 69 80 71 67 75 75 70.65
164. Puzon, Eduardo S. 72 82 60 60 69 70 68 72 62.05
MRD- Marcial, Meynardo R. 66 75 74 70 75 67 81 75 73.15
165.
166. Martin, Benjamin S. 68 72 63 75 69 63 84 62 70.1
MRD- Monterroyo, Catalina 70 80 75 80 76 66 82 51 73.95
167. S.
MRD- Montero, Leodegario 73 67 66 80 81 65 81 75 73.75
168. C.
169. Monzon, Candido T. 70 72 74 75 67 70 77 69 72.05
170. Natividad, Alberto M. 73 79 68 65 73 69 75 79 72.2
MRD- Navallo, Capistrano C. 70 72 68 85 81 66 71 74 72.1
171.
172. Nisce, Camilo Z. 66 66 75 65 79 68 85 62 73.5
MRD- Ocampo, Antonio F. de 75 81 76 65 74 67 75 69 73.75
173.
174. Olaviar, Jose O. 72 70 69 55 66 70 77 75 70.5
MRD- Perez, Cesario Z. 75 76 66 80 72 63 82 69 72.95
175.
176. Pogado, Causin O. 70 66 65 70 75 64 75 70 69.95
177. Ramos-Balmori, 75 73 62 65 78 59 75 66 70.2
Manuela
178. Recinto, Ireneo I. 73 76 68 75 74 68 80 53 72.3
MRD- Redor, Francisco K. 62 77 73 75 69 64 76 69 70
179.
MRD- Regis, Deogracias A. 76 74 68 65 65 65 88 75 73.35
180.
181. Rigor, Estelita C. 67 78 61 80 71 77 79 65 70.9
MRD- Rimorin-Gordo, Estela 70 72 62 60 88 66 67 79 70.15
182.
183. Rosario, Prisco del 70 64 70 70 72 73 85 57 72.65
184. Rosario, Vicente D. del 75 91 65 75 68 68 79 62 72.2
185. Saavedra, Felipe 73 80 63 75 76 73 68 62 70.35
186. Salazar, Alfredo N. 66 72 73 75 67 68 77 69 70.85
187. Salem, Romulo R. 77 81 72 65 73 60 76 75 73
188. Foz, Julita A. 75 72 75 75 65 70 76 64 72.5
189. Santa Ana, Candido T. 77 69 65 75 81 75 70 75 73
190. Santos, Aquilino 72 66 69 65 68 70 81 71 71.7
191. Santos, Valeriano V. 76 72 75 75 68 62 76 79 73.1
192. Suico, Samuel 73 79 72 75 71 59 84 65 73.3
193. Suson, Teodorico 74 68 66 80 66 59 79 67 70.35
194. Tado, Florentino P. 64 76 67 65 76 72 76 53 69.7
195. Tapayan, Domingo A. 69 72 69 70 76 73 82 79 73.75
MRD- 67 60 71 75 79 67 84 60 72.7
Tiausas, Miguel V.
196.
197. Torres, Carlos P. 68 71 71 70 70 63 82 71 71.6
198. Tria, Hipolito 69 72 75 60 69 54 78 66 70.05
199. Velasco, Avelino A. 65 72 75 75 71 67 78 76 72.1
200. Villa, Francisco C. 65 80 73 75 68 79 65 75 70.2
201. Villagonzalo, Job R. 78 67 74 65 72 51 69 71 70.25
202. Villarama, Jr., Pedro 75 74 75 55 75 66 67 75 71.45
1952
203. Abacon, Pablo 75 72 78 81 78 72 64 55 72.7
MRP- Abad, Agapito 73 76 73 85 75 63 62 75 70.95
204.
MRP- Abella, Ludovico B. 70 81 76 81 70 66 77 58 72.7
205.
MRP- Abellera, Geronimo F. 75 79 79 87 76 51 63 70 71.7
206.
MRP- Abenojar, Agapito N. 71 72 78 84 70 75 69 70 72.9
207.
208. Alandy, Doroteo R. 64 83 93 91 68 59 60 60 71.2
209. Alano, Fabian T. 70 83 61 83 72 87 72 70 71.9
MRP- Alcantara, Pablo V. 71 79 80 81 73 70 72 62 73.65
210.
211. Arcangel, Agustin Ag. 75 85 71 73 76 65 68 65 71.85
212. Acosta, Dionisio N. 75 81 78 87 56 65 77 70 72.8
MRP- Abinguna, Agapito C. 66 85 80 84 75 58 76 75 73.65
213.
214. Adove, Nehemias C. 76 86 78 77 66 78 69 62 73.55
215. Adrias, Inocencio C. 75 83 61 88 76 67 79 75 73.4
216. Aglugub, Andres R. 75 83 73 88 72 62 72 62 72.65
217. Andrada, Mariano L. 76 85 66 87 63 77 75 77 73.
MRP- Almeda, Serafin V. 72 72 75 81 61 67 73 65 70.75
218.
219. Almonte-Peralta, 73 71 72 91 75 67 65 53 70.7
Felicidad
MRP- Amodia, Juan T. 75 79 68 85 62 64 75 78 71.4
220.
MRP- Antonio, Felino A. 71 76 81 83 79 52 72 70 73.3
221.
MRP- Antonio, Jose S. 75 92 90 68 65 64 68 60 73.75
222.
223. Añonuevo, Ramos B. 71 87 78 81 64 63 74 76 72.7
224. Aquino, S. Rey A. 67 77 57 78 69 70 69 80 67.7
225. Arteche, Filomeno D. 78 83 50 89 76 77 70 70 70.8
MRP- Arribas, Isaac M. 75 78 70 81 73 70 67 78 72.2
226.
MRP- Azucena, Ceferino D. 72 67 78 89 72 67 77 65 73.95
227.
228. Atienza, Ricardo 72 87 70 79 66 55 75 75 70.85
229. Balacuit, Camilo N. 75 78 89 75 70 54 66 75 73.3
MRP- Baclig, Cayetano S. 77 84 83 80 69 70 61 65 73
230.
231. Balcita, Oscar C. 75 77 79 90 64 60 67 50 70.65
232. Barilea, Dominador Z. 71 67 82 77 64 61 65 80 70.5
MRP- Banta, Jose Y. 75 80 77 81 75 63 71 75 73.95
233.
MRP- Barrientos, Ambrosio 76 70 67 80 67 65 70 81 70.7
234. D.
235. Batucan, Jose M. 66 76 78 88 62 76 67 78 71.2
236. Bautista, Atilano C. 70 82 84 85 58 61 71 62 71.25
237. Bautista, Celso J. 71 68 63 87 80 67 80 70 72.75
238. Belderon, Jose 76 81 76 92 70 66 67 62 72.65
MRP- Belo, Victor B. 76 77 64 73 75 71 76 76 72.85
239.
MRP- Bejec, Conceso D. 79 80 73 82 63 77 75 50 73.15
240.
MRP- Beltran, Gervasio M. 72 75 81 73 75 57 75 80 73.95
241.
MRP- Benaojan, Robustiano 74 84 77 84 75 63 68 62 72.85
242. O.
MRP- Beriña, Roger C. 70 80 79 79 68 72 64 78 71.85
243.
MRP- Bihis, Marcelo M. 75 86 65 92 64 64 84 75 73.45
244.
MRP- Binaoro, Vicente M. 73 69 78 83 73 59 70 82 72.75
245.
MRP- Bobila, Rosalio B. 76 86 76 83 68 59 71 78 73.05
246.
247. Buenafe, Avelina R. 78 80 75 75 70 55 72 80 72.75
248. Bueno, Anastacio F. 73 78 71 78 71 67 71 60 71.15
249. Borres, Maximino L. 67 85 62 91 72 63 76 80 70.9
MRP- Cabegin, Cesar V. 72 71 76 75 74 70 71 60 72.2
250.
MRP- Cabello, Melecio F. 72 78 78 89 58 70 67 71 70.5
251.
MRP- Cabrera, Irineo M. 79 88 53 91 71 85 75 76 73.3
252.
253. Cabreros, Paulino N. 71 79 83 84 60 62 71 50 70.85
254. Calayag, Florentino R. 69 79 66 88 69 75 68 76 70.6
MRP- Calzada, Cesar de la 76 72 80 67 62 71 66 62 70.85
255.
256. Canabal, Isabel 70 82 81 77 78 51 75 75 73.7
MRP- Cabugao, Pablo N. 76 87 69 80 58 64 78 75 71.8
257.
258. Calañgi, Mateo C. 73 93 71 87 70 66 69 62 71.8
259. Canda, Benjamin S. 72 71 77 90 62 75 66 82 71.95
260. Cantoria, Eulogio 71 80 71 89 70 55 72 75 71
261. Capacio, Jr., Conrado 67 78 71 90 65 75 72 60 70.65
262. Capitulo, Alejandro P. 75 70 53 87 78 63 76 91 71.2
MRP- Calupitan, Jr., Alfredo 75 93 81 76 64 75 68 56 73.15
263.
MRP- Caluya, Arsenio V. 75 86 70 87 77 52 77 82 73.9
264.
MRP- Campanilla, Mariano B. 80 75 78 77 73 71 63 76 73.65
265.
MRP- Campos, Juan A. 66 85 83 84 67 61 80 57 73.25
266.
267. Cardoso, Angelita G. 78 71 73 76 79 56 69 60 71.8
268. Cartagena, Herminio 71 72 65 89 64 73 80 70 71.65
R.
MRP- Castro, Daniel T. 65 75 77 76 85 60 75 69 73.15
269.
270. Cauntay, Gaudencio V. 70 78 72 73 77 69 64 80 71.2
271. Castro, Pedro L. de 70 68 69 87 76 75 72 70 73.35
272. Cerio, Juan A. 75 82 75 86 60 54 76 75 71.75
273. Colorado, Alfonso R. 68 75 80 74 77 66 67 80 72.6
274. Chavez, Doroteo M. 73 65 79 84 73 69 66 84 73.1
275. Chavez, Honorato A. 77 76 79 86 74 53 71 75 73.65
MRP- Cobangbang, Orlando 69 81 74 82 76 61 78 80 73.85
276. B.
277. Cortez, Armando R. 78 60 88 86 60 66 69 64 73.1
278. Crisostomo, Jesus L. 76 87 74 76 62 55 76 66 71.45
MRP- Cornejo, Crisanto R. 68 87 78 86 79 50 80 60 73.7
279.
MRP- Cruz, Raymundo 75 81 79 85 72 57 68 75 72.95
280.
MRP- Cunanan, Jose C. 78 92 63 83 76 72 68 65 72.4
281.
282. Cunanan, Salvador F. 70 82 64 92 67 75 73 76 71.45
283. Cimafranca, Agustin B. 71 76 76 80 70 71 75 71 73.35
284. Crisol, Getulio R. 70 91 78 85 68 55 71 50 70.8
MRP- Dusi, Felicisimo R. 76 82 69 82 66 62 80 71 72.85
285.
MRP- Datu, Alfredo J. 70 75 72 86 80 55 68 79 71.5
286.
287. Dacuma, Luis B. 71 67 87 83 71 50 65 70 71.25
MRP- Degamo, Pedro R. 73 80 82 74 80 67 67 57 73.65
288.
289. Delgado, Vicente N. 70 84 82 84 77 52 73 50 72.65
MRP- Diolazo, Ernesto A. 75 83 86 73 54 54 75 75 72.25
290.
291. Dionisio, Jr., Guillermo 73 84 64 89 71 78 75 66 72.8
MRP- Dichoso, Alberto M. 71 77 71 81 69 75 80 70 73.65
292.
MRP- Dipasupil, Claudio R. 70 76 82 73 79 70 72 56 73.9
293.
MRP- Delgado, Abner 75 84 63 67 64 60 70 72 68.35
294.
MRP- Domingo, Dominador 70 69 81 82 68 63 71 75 72.2
295. T.
296. Ducusin, Agapito B. 70 78 53 88 75 77 62 76 68.05
MRP- Duque, Antonio S. 75 77 78 86 76 72 64 75 73.9
297.
298. Duque, Castulo 75 80 73 83 66 67 65 66 70.65
299. Ebbah, Percival B. 70 80 85 76 66 63 76 75 73.95
300. Edisa, Sulpicio 65 77 75 89 75 62 75 65 72
301. Edradan, Rosa C. 70 75 84 84 71 59 69 86 73.4
MRP- Enage, Jacinto N. 66 70 88 93 72 67 65 75 73.2
302.
MRP- Encarnacion, Alfonso 75 86 73 81 63 77 69 75 72.65
303. B.
304. Encarnacion, Cesar 65 78 58 68 66 64 75 78 67.1
305. Estoista, Agustin A. 78 76 74 86 58 67 70 76 71.7
MRP- Fabros, Jose B. 66 75 80 82 80 71 67 70 73.05
306.
MRP- Fajardo, Balbino P. 77 69 82 83 65 60 75 75 73.9
307.
308. Fajardo, Genaro P. 70 79 77 79 79 50 73 75 72.5
309. Evangelista, Felicidad 75 75 72 87 63 63 77 70 72.15
P.
310. Familara, Raymundo Z. 68 75 87 83 64 65 68 65 71.85
311. Fariñas, Dionisio 70 78 89 66 65 75 70 50 72.75
312. Favila, Hilario B. 71 84 74 70 75 67 73 59 72.2
MRP- Feliciano, Alberto I. 71 69 70 85 69 81 72 70 72.25
313.
MRP- Fernando, Lope F. 73 77 86 79 70 76 64 50 73
314.
MRP- Flores, Dionisio S. 78 72 77 83 67 60 68 73 72.05
315.
MRP- Fortich, Benjamin B. 70 82 70 70 78 65 64 75 70.35
316.
MRP- Fuente, Jose S. de la 76 88 72 74 60 71 79 79 73.55
317.
318. Fohmantes, Nazario S. 72 79 71 77 68 61 76 60 70.9
MRP- Fuggan, Lorenzo B. 76 81 74 69 71 71 73 60 72.85
319.
320. Gabuya, Jesus S. 70 83 82 83 70 63 75 65 73.75
321. Galang, Victor N. 69 83 84 76 70 57 71 60 71.95
322. Gaerlan, Manuel L. 73 87 77 90 67 61 72 75 73.15
323. Galem, Nestor R. 72 79 86 78 60 61 75 70 73.05
324. Gallardo, Jose Pe B. 75 88 75 75 63 70 70 65 71.85
MRP- Gallos, Cirilo B. 70 78 84 91 80 51 65 70 72.85
325.
326. Galindo, Eulalio D. 70 89 87 65 78 71 62 62 73.4
327. Galman, Patrocinio G. 72 72 80 85 71 56 70 53 71.15
328. Gamalinda, Carlos S. 76 79 81 86 67 63 69 55 72.55
329. Gamboa, Antonio G. 71 67 70 72 76 60 75 68 70.95
330. Gannod, Jose A. 69 80 75 81 68 62 73 68 71.25
MRP- Garcia, Matias N. 67 78 74 90 79 59 76 65 72.8
331.
MRP- Ganete, Carmelo 75 87 77 82 74 57 68 81 73.3
332.
333. Gilbang, Gaudioso R. 75 67 80 82 67 57 64 70 70.5
334. Gofredo, Claro C. 68 78 72 86 78 52 70 76 70.9
335. Gomez, Jose S. 71 76 71 81 76 63 69 62 70.85
MRP- Gosiaoco, Lorenzo V. 68 93 85 78 64 69 70 54 72.35
336.
MRP- Gonzales, Rafael C. 77 75 71 89 55 70 70 60 70.05
337.
MRP- Gracia, Eulalia L. de 66 68 90 84 77 59 69 65 73.3
338.
339. Grageda, Jose M. A. 70 85 72 67 70 60 73 73 70.75
340. Guzman, Juan de 75 86 69 84 64 79 75 76 73.6
MRP- Guzman, Mateo de 76 79 79 73 72 69 68 80 73.9
341.
342. Guzman, Salvador B. 71 61 74 72 61 66 78 75 70.75
343. Guzman, Salvador T. 75 84 64 81 74 61 78 58 71.75
de
344. Habelito, Geronimo E. 71 76 71 87 73 60 67 55 69.65
345. Hedriana, Naterno G. 75 68 84 76 66 58 76 60 72.9
346. Hernandez, Quintin B. 67 75 72 81 72 72 66 76 70.6
1952
347. Homeres, Agustin R. 73 84 65 86 70 77 63 76 70.7
348. Ines, Leonilo F. 65 88 71 88 77 73 61 70 70.55
349. Jamer, Alipio S. 68 75 83 89 80 61 65 50 72
MRP- Ibasco, Jr., Emiliano M. 75 65 68 85 76 70 83 54 73.8
350.
MRP- Jardinico, Jr., Emilio 73 86 72 78 82 67 67 64 72.8
351.
MRP- Jaen, Justiniano F. 76 75 78 84 71 66 70 77 73.85
352.
353. Jaring, Antonio S. 72 77 79 70 72 57 71 50 70.75
MRP- Javier, Aquilino M. 75 84 79 78 77 61 66 66 73.05
354.
355. Jomuad, Francisco 75 75 72 88 78 58 76 43 72.4
MRP- Jose, Nestor L. 78 61 64 73 68 76 64 80 69.7
356.
357. La Q, Jose M. 75 71 75 72 70 67 81 59 73.5
358. Leon, Brigido C. de 67 75 78 91 78 51 72 80 72.55
359. Leones, Constante B. 68 81 79 84 73 60 77 60 73
360. Liboro, Horacio T. 72 69 80 87 73 62 70 61 72.4
361. Llanera, Cesar L. 77 81 80 78 64 59 75 63 73
362. Lomontod, Jose P. 75 76 69 70 73 76 74 75 73.2
363. Luna, Lucito 70 75 69 83 59 53 74 75 68.4
MRP- Luz, Lauro L. 76 90 78 88 64 58 75 77 73.95
364.
MRP- Macasaet, Tomas S. 73 81 72 83 66 75 72 70 72.5
365.
366. Magbiray, Godofredo 80 67 84 76 70 62 65 68 73.05
V.
367. Majarais, Rodolfo P. 70 62 64 82 88 75 71 79 72.85
MRP- Makabenta, Eduardo 75 90 77 83 59 71 72 78 73.3
368.
MRP- Malapit, Justiniano S. 74 83 74 89 58 60 72 76 71.1
369.
370. Maloles, Iluminado M. 70 87 73 76 77 50 76 76 72.3
371. Maniquis, Daniel R. 75 80 73 91 69 71 65 70 72.1
372. Maraña, Arsenio 65 79 60 72 73 51 75 86 67.9
373. Marasigan, Napoleon 75 71 83 75 69 62 69 70 72.75
MRP- Marco, Jaime P. 75 67 74 76 64 75 75 57 71.9
374.
MRP- Martir, Osmundo P. 70 86 76 78 72 71 75 53 72.95
375.
MRP- Masancay, Amando E. 73 87 75 77 72 50 78 80 73.2
376.
MRP- Mati-ong, Ignacio T. 62 87 72 79 73 76 69 77 71.3
377.
378. Mara, Guillermo L. 70 78 78 89 75 67 66 65 72.35
MRP- Mercado, Felipe A. 73 77 82 82 78 52 69 85 73.9
379.
MRP- Miculob, Eugenio P. 70 82 73 86 77 52 79 65 72.8
380.
381. Mison, Rafael M. Jr., 79 78 73 75 71 68 69 53 71.95
MRP- Monponbanua, Antonio 79 79 68 88 64 78 69 83 73.1
382. D.
MRP- Montero, Leodegario 72 89 69 89 70 68 70 75 72.15
383. C.
384. Morada, Servillano S. 75 76 67 71 65 66 75 76 70.9
385. Mocorro, Generoso 78 84 78 84 60 73 68 70 73
MRP- Mosquera, Estanislao 75 78 75 85 72 55 77 66 73.15
386. L.
387. Motus, Rodentor P. 80 78 70 94 72 75 70 57 73.75
388. Macario, Pedro R. 70 67 74 86 78 63 72 66 72.15
MRP- Nadela, Geredion T. 72 64 64 81 73 50 75 75 69.15
389.
MRP- Nazareno, Romeo P. 67 70 71 76 76 79 75 57 72.05
390.
391. Nieto, Benedicto S. 69 79 77 77 72 62 76 76 72.9
MRP- Noguera, Raymundo 71 86 81 80 73 56 72 70 73.15
392.
MRP- Nodado, Domiciano R. 70 70 69 73 57 37 64 72 63.6
393.
394. Nono, Pacifico G. 67 77 78 67 75 59 71 76 71.35
MRP- Nuval, Manuel R. 78 72 67 90 72 68 78 67 73.65
395.
396. Ocampo, Augusto 75 90 77 72 69 55 65 67 60.7
397. Oliveros, Amado A. 72 75 68 72 84 50 75 79 71.9
398. Opiña, Jr., Pedro 76 77 74 67 73 66 68 70 71.85
MRP- Olaviar, Jose O. 70 62 85 81 74 50 68 79 71.8
399.
MRP- Olandesca, Per O. 70 91 76 87 72 66 70 79 73.45
400.
401. Orden, Apolonio J. 72 65 84 86 66 50 72 68 71.45
402. Ortiz, Melencio T. 71 75 78 81 66 67 70 78 72.1
MRP- Pablo, Fedelino S. 72 64 76 86 72 61 76 75 72.95
403.
404. Pacifico, Vicente V. 76 79 69 80 76 52 72 80 71.95
MRP- Paderna, Perfecto D. 75 69 72 75 78 58 75 70 72.6
405.
406. Padlan, Crispin M. 71 66 76 79 68 67 74 66 71.65
407. Padilla, Jose C. 70 65 67 82 78 75 78 75 73.3
408. Padilla, Jr., Estanislao 71 88 78 86 59 75 78 50 72.95
E.
MRP- Palma, Bartolome 67 81 80 82 71 75 69 75 73.25
409.
MRP- Papa, Angel A. 75 72 85 85 77 59 63 71 73.45
410.
MRP- Parayno, Mario V. 71 88 74 89 69 66 76 73 73.65
411.
412. Pariña, Santos L. 70 87 85 77 64 67 63 76 71.85
MRP- Pasion, Anastacio 63 80 68 81 82 79 76 58 72.55
413.
414. Pastrana, Rizal R. 69 76 71 76 68 63 77 83 71.65
MRP- Paulin, Jose O. 70 66 80 87 75 50 65 80 70.9
415.
MRP- Pelaez, Jr., Vicente C. 79 87 73 83 69 71 68 65 73.2
416.
417. Peña, Jesus 75 75 75 62 75 70 60 66 70.4
418. Perez, Toribio R. 71 64 81 92 69 58 67 70 71.25
419. Pestaño, Melquiades 77 81 74 87 59 68 76 75 73.2
MRP- Pido, Serafin C. 77 81 72 82 69 71 60 75 71.15
420.
421. Pinlac, Filemon 67 76 74 86 65 79 65 72 70.55
422. Poblete, Celso B. 72 79 82 76 66 64 74 50 72.15
MRP- Piza, Luz 68 70 75 87 74 67 64 75 70.8
423.
424. Puzon, Eduardo S. 72 80 81 69 72 53 67 70 71.05
425. Quetulio, Josefina D. 75 90 60 93 64 78 76 83 72.9
MRP- Quipanes, Melchor V. 69 88 79 82 65 62 71 66 71.55
426.
MRP- Quietson, Bayani R. 73 75 76 77 70 81 71 53 72.85
427.
428. Racho, Macario D. 68 75 81 82 78 53 66 54 70.55
429. Ramirez, Sabas P. 71 80 73 87 62 62 75 80 71.65
MRP- Raffiñan, Jose A. 80 83 79 79 62 72 68 65 73.25
430.
MRP- Ramos, Patricio S. 75 87 76 75 72 72 61 75 72.25
431.
MRP- Ramos-Balmori, 78 84 76 90 48 75 80 65 73.45
432. Manuela
MRP- Raro, Celso 75 81 76 67 75 77 55 77 71.4
433.
MRP- Rayos, Victor S. 75 86 79 91 71 67 67 70 73.9
434.
435. Revilla, Mariano S. 75 78 81 90 70 54 69 81 73.35
436. Reyes, Abdon L. 72 64 81 78 76 73 69 53 72.85
437. Reyes, Domingo B. 72 87 78 83 72 75 62 70 72.7
438. Reyes, Francisco M. 75 85 84 68 75 71 68 50 73.9
439. Reyes, Lozano M. 80 57 78 79 78 65 64 79 73.35
MRP- Reyes, Oscar R. 75 75 82 82 76 64 68 60 73.65
440.
441. Rigonan, Cesar V. 71 85 65 86 75 70 76 70 72.7
442. Rivera, Honorio 71 56 70 90 71 65 75 71 71.2
MRP- Rivero, Buenaventura 72 88 72 94 68 73 66 80 72.6
443. A.
MRP- Robles, Enrique 75 77 75 77 82 64 69 70 73.7
444.
445. Rodriguez, Orestes 76 75 76 63 69 77 65 78 72.25
Arellano
446. Roldan, Jose V. 67 80 79 83 73 71 75 70 73.9
447. Rosario, Adelaida R. 80 75 65 70 68 72 80 70 73.15
del
448. Rosario, Restituto F. 75 75 79 90 68 65 66 63 72.1
del
MRP- Sabelino, Conrado S. 71 81 69 75 77 71 75 70 72.95
449.
450. San Juan, Damaso 77 86 72 89 59 76 65 72 71.6
451. Sañiel, Felix L. 72 93 76 80 67 75 66 62 72.1
452. Samaniego, Jesus B. 75 80 76 72 60 67 68 70 70.6
MRP- Sandoval, Emmanuel 75 83 70 83 77 67 77 60 73.95
453. M.
MRP- Sanidad, Emmanuel Q. 71 75 81 90 62 64 76 68 72.95
454.
455. Santiago, Jr., Cristobal 75 76 84 93 63 65 59 70 71.8
456. Santillan, Juanito Ll. 76 89 83 83 63 58 65 52 71.25
MRP- Santos, Rodolfo C. 75 75 78 82 73 76 66 70 73.7
457.
MRP- Santos, Ruperto M. 67 54 69 76 63 64 71 60 66.75
458.
MRP- Santos, Aquilino C. 72 71 73 79 73 79 71 85 73.8
459.
MRP- Santos, Rufino A. 75 81 79 85 74 72 66 54 73.3
460.
461. Suanding, Bantas 75 67 67 92 79 59 76 76 73.1
MRP- Sulit, Feliz M. 76 79 76 78 72 75 68 67 73.5
462.
463. Songco, Felicisimo G. 70 68 82 84 60 69 76 65 73.35
464. Soriano, Aniceto S. 64 79 77 80 80 53 70 65 70.7
465. Suarez, Pablo D. 73 85 70 87 76 70 64 70 71.9
MRP- Sybico, Jesus L. 79 70 70 72 75 75 72 60 73.05
466.
467. Tabaque, Benjamin R. 69 68 77 79 74 68 72 60 71.85
MRP- Tan Kiang, Clarita 81 79 72 80 62 75 73 80 73.95
468.
MRP- Tando, Amado T. 71 82 78 83 71 61 71 60 72
469.
470. Tasico, Severo E. 71 69 75 89 70 75 67 63 71.65
471. Tiburcio, Ismael P. 73 82 72 93 76 57 68 54 71.15
MRP- Tiongson, Federico T. 70 70 76 84 77 75 75 50 73.45
472.
MRP- Tolentino, Jesus C. 75 89 63 84 85 73 73 50 73.4
473.
474. Torrijas, Alfredo A. 77 66 67 83 68 75 71 63 71.3
MRP- Tobias, Artemio M. 69 58 74 81 71 55 65 57 67.55
475.
MRP- Trillana, Jr., Apolonio 76 86 76 86 70 68 75 50 73.8
476.
MRP- Trinidad, Manuel O. 66 91 83 75 63 66 67 65 70.8
477.
478. Trinidad, Pedro O. 66 78 78 85 78 51 64 75 70.8
MRP- Udarbe, Flavio J. 80 82 77 82 67 56 68 75 72.6
479.
480. Umali, Osmundo C. 68 75 81 80 71 69 68 60 71.7
481. Umayam, Juanito C. 77 75 87 85 56 56 66 60 71
MRP- Usita, Gelacio U. 75 72 75 74 73 76 71 70 73.55
482.
483. Valino, Francisco M. 72 81 80 84 62 78 71 75 73.7
484. Varela, Dominador M. 67 75 81 86 72 57 81 70 73.85
485. Vega, Macairog L. de 78 62 79 87 70 70 71 65 73.8
MRP- Velasco, Emmanuel D. 71 80 74 85 60 66 76 76 71.85
486.
487. Velez, Maria E. 73 70 89 80 56 50 72 67 71.05
MRP- Venal, Artemio V. 78 91 58 67 76 55 75 73 73.65
488.
489. Venus, Conrado B. 69 81 74 85 62 66 72 77 77.05
MRP- Verzosa, Federico B. 75 79 72 88 76 68 74 59 73.7
490.
MRP- Villafuerte, Eduardo V. 75 83 70 76 64 64 75 65 71.2
491.
MRP- Villanueva, Cecilio C. 75 85 79 88 66 77 67 70 73.95
492.
493. Villar, Custodio R. 73 69 70 88 76 66 69 50 70.75
MRP- Villaseñor, Leonidas F. 80 85 67 77 62 75 76 73 73.15
494.
495. Viterbo, Jose H. 80 77 65 93 70 65 65 65 70.65
496. Yaranon, Pedro 70 77 76 85 72 50 75 75 71.85
MRP- Yasay, Mariano R. 75 75 72 76 63 77 70 60 71.1
497.
MRP- Ygay, Venancio M. 73 80 83 84 62 59 72 77 72.65
498.
499. Yulo, Jr., Teodoro 73 82 78 75 60 81 75 75 73.95
500. Zamora, Alberto 70 65 76 79 62 77 69 82 71.3
501. Rigonan, Felipe C. 70 79 69 89 76 62 71 64 71.2

A list of those who petitioned for the consolidation of their grades in subjects passed in
previous examinations, showing the years in which they took the examinations together
with their grades and averages, and those who had filed motions for reconsideration
which were denied, indicated by the initials MRD, follows:

PETITIONERS UNDER REPUBLIC ACT NO. 72

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.

Av.
1. Amao, Sulpicio M.
1946 68 67 76 76 73 73 49 50 66.5
1950 59 80 67 77 62 80 71 57 67.4
2. Baldo, Olegario Ga.
1951 65 76 58 55 59 63 75 72 64.9
1952 65 68 75 84 72 59 73 57 69.75
1953 57 74 68 68 76 52 71 76 66.7
3. Blanco, Jose B.
MRD-1949 75 75 70 75 77 76 60 90 72.15
1951 64 71 58 65 68 70 75 71 66.95
4. Condeno, Mateo
1950 71 80 62 75 75 81 55 92 69.3
1951 70 60 61 65 77 64 67 81 67.85
5. Ducusin, Agapito B.
MRD-1949 69 70 76 73 76 71 55 60 68.65
1950 60 71 55 67 67 75 56 89 68.1
6. Garcia, Manuel N.
MRD-1949 60 70 82 79 70 69 60 80 69.25
1950 57 65 51 69 54 85 56 84 60.3
7. Luna, Lucito A.
1946 63 53 69 76 75 76 57 69 66.55
1952 70 75 69 83 59 53 74 75 68.4
8. Maraña, Arsenio s.
1949 72 68 68 75 75 72 60 75 69.35
1952 65 79 60 72 73 51 75 86 67.9
9. Montano, Manuel M.
1951 61 60 58 60 70 63 75 64 64.8
1952 70 77 65 79 66 52 70 50 66.4
1953 78 64 66 68 81 50 71 78 70.65
10. Peña, Jesus S.
1950 25 75 45 75 45 52 46 71 46.2
1951 70 77 65 79 66 52 70 50 66.4
1952 75 75 75 62 75 70 60 66 70.4
11. Placido, Sr., Isidro
1950 68 78 70 75 69 70 58 69 67.75
1951 65 62 75 60 73 57 75 71 66.8
12. Rementizo, Filemon S.
1949 65 75 72 75 60 75 55 85 66.65
1951 68 57 48 60 91 66 55 75 64.05
1952 68 53 68 67 58 56 75 64 65.7
13. Amao, Sulpicio M.
1952 67 80 51 69 69 77 73 53 66.35
1953 65 67 78 74 75 62 69 80 70.9
14. Rodulfa, Juan T.
1951 67 60 70 65 68 56 75 66 67.75
1952 70 71 67 78 67 75 71 70 70.1
15. Sanchez, Juan J.
1948 39 69 82 75 76 72 55 50 63.5
MRD-1949 67 56 69 75 72 77 60 75 68
1951 70 59 55 60 68 57 78 67 65.8
16. Santos, Constantino
1952 62 76 54 82 72 77 66 65 66.65
1953 73 71 70 65 78 64 65 78 70.4
17. Santos, Salvador H.
1951 60 64 55 70 68 52 70 75 62.85
1952 75 64 70 81 76 55 61 75 69.1
1953 70 71 79 65 72 54 66 80 70
18. Sevilla, Macario C.
MRD-1948 50 64 76 66 66 69 60 52 63.1
MRD-1949 47 66 78 64 71 86 65 85 68
1950 35 65 40 75 63 57 27 49 45
MRD-1951 68 59 72 55 69 65 75 75 69.3
1953 70 73 74 70 81 56 69 71 71.05
Finally, with regards to the examinations of 1953, while some candidates--85 in all--presented
motions for reconsideration of their grades, others invoked the provisions of Republic Act No.
972. A list of those candidates separating those who filed mere motions for reconsideration (56)
from those who invoked the aforesaid Republic act, is as follows:

1953 PETITIONERS FOR RECONSIDERATION

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.

Av.
1. Acenas, Calixto R. 73 70 68 62 82 51 67 77 73.45
2. Alcantara, Pedro N. 67 70 75 85 87 54 71 80 72.8
3. Alejandro, Exequiel 67 72 71 75 80 76 75 77 73.4
4. Andres, Gregorio M. 70 73 86 58 79 50 71 78 72.7
5. Arnaiz, Antonio E. 66 80 76 58 79 68 77 81 73.4
6. Asis, Floriano U. de 66 78 75 81 77 55 73 69 71.25
7. Bacaiso, Celestino M. 71 65 76 68 76 50 75 70 70.95
8. Bala, Florencio F. 64 82 47 70 82 58 75 82 67
9. Baldo, Olegario A. 57 74 68 68 76 52 71 76 66.7
10. Barrios, Benjamin O. 65 71 76 75 80 62 83 73 73.95
11. Buhay, Eduardo L. 73 76 71 91 76 61 74 78 73.35
12. Burgos, Dominador C. 72 80 89 61 66 37 69 68 70.05
13. Cariño, Eldo J. 79 81 60 75 74 74 76 74 73
14. Casar, Dimapuro 67 73 84 79 77 61 71 74 73.35
15. Castañeda, Gregorio 70 73 80 71 75 70 73 78 73.95
16. Estrellado, Benjamin R. 67 79 64 73 82 62 71 74 70.2
17. Fabunan, Edilberto C. 70 72 68 69 77 60 76 74 71.1
18. Feril, Domingo B. 75 71 84 65 70 60 65 70 71.6
19. Fernandez, Alejandro G. 65 75 87 80 81 63 61 80 72.8
20. Gapus, Rosita S. (Miss) 76 80 86 77 64 74 66 69 73.9
21. Garcia, Rafael B. 70 86 70 75 73 63 73 75 71.65
22. Gracia, Miguel L. de 73 68 75 59 80 51 72 71 71
23. Gungon, Armando G. 68 76 76 84 77 57 77 83 73.6
24. Gutierrez, Antonio S. 68 77 66 70 72 59 71 74 69.1
25. Ilejay, Abraham I. 77 70 76 77 81 62 70 68 73.7
26. Leon, Benjamin La. De 66 66 75 70 77 55 71 82 70.35
27. Lugtu, Felipe L. 62 70 78 65 78 56 69 81 69.9
28. Lukman, Abdul-Hamid 76 64 67 69 73 59 73 75 70.45
29. Maloles, Jr., Benjamin G. 77 76 68 68 71 51 75 78 70.85
30. Maloles, Julius G. 77 71 60 71 79 62 68 72 69.75
31. Mandi, Santiago P. 65 76 70 61 79 68 75 72 71.1
32. Margete, Rufino C. 70 76 66 75 85 73 71 75 72.75
33. Melocoton, Nestorio B. 70 81 73 78 83 52 72 75 72.35
34. Molina, Manuel C. 75 78 70 61 75 63 66 85 70.95
35. Muñoz, Mariano A. 75 80 86 67 74 57 68 76 73.75
36. Navarro, Buenaventura 80 75 65 75 83 55 73 79 73
M.
37. Nodado, Domiciano R. 60 67 67 50 70 50 56 75 61.7
38. Papas, Sisenando B. 65 62 71 61 70 56 66 67 66
39. Pagulayan-Sy, Fernando 63 75 71 62 83 67 70 72 70.4
40. Padula, Benjamin C. 70 77 54 62 74 78 75 68 69.05
41. Pasno, Enrique M. 78 72 66 54 71 58 72 78 69.85
42. Peña, Jr., Narciso 70 95 81 78 67 66 67 73 72.55
43. Peralta, Rodolfo P. 70 70 52 81 68 63 59 69 63.7
44. Pigar, Leopoldo R. 76 75 78 61 72 72 71 79 73.75
45. Publico, Paciano L. 68 69 76 76 70 59 74 67 70.6
46. Radaza, Leovigildo 75 78 76 61 77 50 71 86 72.2
47. Ramos, Bernardo M. 64 62 75 93 81 52 66 80 70.1
48. Rabaino, Andres D. 68 72 75 73 78 55 69 76 70.65
49. Ravanera, Oscar N. 70 77 80 71 82 62 69 78 73.6
50. Renovilla, Jose M. 65 75 80 68 79 52 62 78 69.5
51. Sabaot, Solomon B. 69 73 80 69 82 69 69 79 73.85
52. Sumaway, Ricardo S. 66 76 69 76 74 56 72 68 69.1
53. Torrefiel, Sofronio O. 70 77 74 75 73 50 68 72 69.55
54. Vera, Federico V. de 60 61 47 77 69 50 67 77 60.9
55. Viray, Venancio Bustos 65 67 67 52 73 64 71 65 67.15
56. Ylaya, Angela P. (Miss) 63 70 56 75 68 54 70 77 64.5

PETITIONERS UNDER REPUBLIC ACT NO. 972

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.

Av.

1. Ala, Narciso 70 71 73 59 73 74 81 77 73.5

2. Alcantara, Pedro N. 67 70 75 85 87 54 71 80 72.8
3. Arellano, Antonio L. 74 66 73 60 78 63 78 72 72.9
4. Buhay, Eduardo L. 73 76 71 91 76 61 74 78 73.35
5. Calautit, Celestino R. 71 78 84 75 75 61 68 72 73.2
6. Casuncad, Sulvio P. 61 73 82 69 81 68 71 84 73.05
 7. Enriquez, Pelagio y 84 69 76 75 82 50 58 79 72.05
Concepcion
8. Estonina, Severino 80 74 64 89 81 56 68 82 72.4
9. Fernandez, Alejandro Q. 65 75 87 80 81 63 61 80 72.8
10. Fernandez, Luis N. 70 75 77 75 78 67 72 73 73.35
11. Figueroa, Alfredo A. 70 75 87 78 75 50 68 68 72.3
12. Formilleza, Pedro 65 75 89 68 83 51 70 75 73.25
13. Garcia, Manuel M. 69 68 83 83 73 62 62 70 71
14. Grospe, Vicente E. 68 75 78 66 79 61 69 82 71.6
15. Galema, Nestor R. (1952) 72 79 86 78 60 61 75 70 73.05
16. Jacobo, Rafael F. 76 76 75 74 76 50 72 76 72.3
17. Macalindong, Reinerio L. 67 77 79 79 74 72 68 77 72.75
18. Mangubat, Antonio M. 70 70 78 61 80 74 62 70 71.45
19. Montano, Manuel M. 78 64 66 68 81 50 71 78 70.65
20. Plomantes, Marcos 73 67 74 58 68 70 76 71 71.6
21. Ramos, Eugenio R. 70 80 76 67 72 69 72 79 72.6
22. Reyes, Juan R. 71 73 77 76 81 59 72 74 73.2
23. Reyes, Santiago R. 65 78 83 60 76 75 70 70 72.9
24. Rivera, Eulogio J. 65 67 78 74 75 62 69 80 70.9
25. Santos, Constantino P. 73 71 70 65 78 64 65 78 70.4
26. Santos, Salvador H. 70 71 79 65 72 54 66 80 70
27. Sevilla, Macario C. 70 73 74 70 81 56 69 71 71.05
28. Villavicencio, Jose A. 78 75 70 67 69 77 64 77 73.2
29. Viray, Ruperto G. 76 73 76 73 80 58 68 83 73.25

There are the unsuccessful candidates totaling 604 directly affected by this resolution. Adding
490 candidates who have not presented any petition, they reach a total of 1,094.

The Enactment of Republic Act No. 972

As will be observed from Annex I, this Court reduced to 72 per cent the passing general
average in the bar examination of august and November of 1946; 69 per cent in 1947; 70 per
cent in 1948; 74 per cent in 1949; maintaining the prescribed 75 per cent since 1950, but raising
to 75 per cent those who obtained 74 per cent since 1950. This caused the introduction in 1951,
in the Senate of the Philippines of Bill No. 12 which was intended to amend Sections 5, 9, 12,
14 and 16 of Rule 127 of the Rules of Court, concerning the admission of attorneys-at-law to the
practice of the profession. The amendments embrace many interesting matters, but those
referring to sections 14 and 16 immediately concern us. The proposed amendment is as follows:

SEC. 14. Passing average. — In order that a candidate may be deemed to have passed
the examinations successfully, he must have obtained a general average of 70 per cent
without falling below 50 per cent in any subject. In determining the average, the
 foregoing subjects shall be given the following relative weights: Civil Law, 20 per cent;
Land Registration and Mortgages, 5 per cent; Mercantile Law, 15 per cent; Criminal Law,
10 per cent; Political Law, 10 per cent; International Law, 5 per cent; Remedial Law, 20
per cent; Legal Ethics and Practical Exercises, 5 per cent; Social Legislation, 5 per cent;
Taxation, 5 per cent. Unsuccessful candidates shall not be required to take another
examination in any subject in which they have obtained a rating of 70 per cent or higher
and such rating shall be taken into account in determining their general average in any
subsequent examinations: Provided, however, That if the candidate fails to get a general
average of 70 per cent in his third examination, he shall lose the benefit of having
already passed some subjects and shall be required to the examination in all the
subjects.

SEC. 16. Admission and oath of successful applicants. — Any applicant who has
obtained a general average of 70 per cent in all subjects without falling below 50 per
cent in any examination held after the 4th day of July, 1946, or who has been otherwise
found to be entitled to admission to the bar, shall be allowed to take and subscribe
before the Supreme Court the corresponding oath of office. (Arts. 4 and 5, 8, No. 12).

With the bill was an Explanatory Note, the portion pertinent to the matter before us being:

It seems to be unfair that unsuccessful candidates at bar examinations should be

compelled to repeat even those subjects which they have previously passed. This is not
the case in any other government examination. The Rules of Court have therefore been
amended in this measure to give a candidate due credit for any subject which he has
previously passed with a rating of 75 per cent or higher."

Senate Bill No. 12 having been approved by Congress on May 3, 1951, the President requested
the comments of this Tribunal before acting on the same. The comment was signed by seven
Justices while three chose to refrain from making any and one took no part. With regards to the
matter that interests us, the Court said:

The next amendment is of section 14 of Rule 127. One part of this amendment provides
that if a bar candidate obtains 70 per cent or higher in any subject, although failing to
pass the examination, he need not be examined in said subject in his next examination.
This is a sort of passing the Bar Examination on the installment plan, one or two or three
subjects at a time. The trouble with this proposed system is that although it makes it
easier and more convenient for the candidate because he may in an examination
prepare himself on only one or two subjects so as to insure passing them, by the time
that he has passed the last required subjects, which may be several years away from
the time that he reviewed and passed the firs subjects, he shall have forgotten the
principles and theories contained in those subjects and remembers only those of the one
or two subjects that he had last reviewed and passed. This is highly possible because
there is nothing in the law which requires a candidate to continue taking the Bar
examinations every year in succession. The only condition imposed is that a candidate,
on this plan, must pass the examination in no more that three installments; but there is
no limitation as to the time or number of years intervening between each examination
taken. This would defeat the object and the requirements of the law and the Court in
admitting persons to the practice of law. When a person is so admitted, it is to be
presumed and presupposed that he possesses the knowledge and proficiency in the law
and the knowledge of all law subjects required in bar examinations, so as presently to be
able to practice the legal profession and adequately render the legal service required by
prospective clients. But this would not hold true of the candidates who may have
obtained a passing grade on any five subjects eight years ago, another three subjects
one year later, and the last two subjects the present year. We believe that the present
system of requiring a candidate to obtain a passing general average with no grade in
any subject below 50 per cent is more desirable and satisfactory. It requires one to be all
around, and prepared in all required legal subjects at the time of admission to the
practice of law.

xxx xxx xxx

We now come to the last amendment, that of section 16 of Rule 127. This amendment
provides that any application who has obtained a general average of 70 per cent in all
subjects without failing below 50 per cent in any subject in any examination held after
the 4th day of July, 1946, shall be allowed to take and subscribe the corresponding oath
of office. In other words, Bar candidates who obtained not less than 70 per cent in any
examination since the year 1946 without failing below 50 per cent in any subject, despite
their non-admission to the Bar by the Supreme Court because they failed to obtain a
passing general average in any of those years, will be admitted to the Bar. This provision
is not only prospective but retroactive in its effects.

We have already stated in our comment on the next preceding amendment that we are
not exactly in favor of reducing the passing general average from 75 per cent to 70 per
cent to govern even in the future. As to the validity of making such reduction retroactive,
we have serious legal doubts. We should not lose sight of the fact that after every bar
examinations, the Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general average grade, but also
rejecting and denying the petitions for reconsideration of those who have failed. The
present amendment would have the effect of repudiating, reversing and revoking the
Supreme Court's resolution denying and rejecting the petitions of those who may have
obtained an average of 70 per cent or more but less than the general passing average
fixed for that year. It is clear that this question involves legal implications, and this phase
of the amendment if finally enacted into law might have to go thru a legal test. As one
member of the Court remarked during the discussion, when a court renders a decision or
promulgate a resolution or order on the basis of and in accordance with a certain law or
rule then in force, the subsequent amendment or even repeal of said law or rule may not
affect the final decision, order, or resolution already promulgated, in the sense of
revoking or rendering it void and of no effect.

Another aspect of this question to be considered is the fact that members of the bar are
officers of the courts, including the Supreme Court. When a Bar candidate is admitted to
the Bar, the Supreme Court impliedly regards him as a person fit, competent and
qualified to be its officer. Conversely, when it refused and denied admission to the Bar to
a candidate who in any year since 1946 may have obtained a general average of 70 per
cent but less than that required for that year in order to pass, the Supreme Court equally
and impliedly considered and declared that he was not prepared, ready, competent and
qualified to be its officer. The present amendment giving retroactivity to the reduction of
the passing general average runs counter to all these acts and resolutions of the
Supreme Court and practically and in effect says that a candidate not accepted, and
even rejected by the Court to be its officer because he was unprepared, undeserving
 and unqualified, nevertheless and in spite of all, must be admitted and allowed by this
Court to serve as its officer. We repeat, that this is another important aspect of the
question to be carefully and seriously considered.

The President vetoed the bill on June 16, 1951, stating the following:

I am fully in accord with the avowed objection of the bill, namely, to elevate the standard
of the legal profession and maintain it on a high level. This is not achieved, however, by
admitting to practice precisely a special class who have failed in the bar examination,
Moreover, the bill contains provisions to which I find serious fundamental objections.

Section 5 provides that any applicant who has obtained a general average of 70 per cent
in all subjects without failing below 50 per cent in any subject in any examination held
after the 4th day of July, 1946, shall be allowed to take and subscribed the
corresponding oath of office. This provision constitutes class legislation, benefiting as it
does specifically one group of persons, namely, the unsuccessful candidates in the
1946, 1947, 1948, 1949 and 1950 bar examinations.

The same provision undertakes to revoke or set aside final resolutions of the Supreme
Court made in accordance with the law then in force. It should be noted that after every
bar examination the Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general average but also
rejecting and denying the petitions for reconsideration of those who have failed. The
provision under consideration would have the effect of revoking the Supreme Court's
resolution denying and rejecting the petitions of those who may have failed to obtain the
passing average fixed for that year. Said provision also sets a bad precedent in that the
Government would be morally obliged to grant a similar privilege to those who have
failed in the examinations for admission to other professions such as medicine,
engineering, architecture and certified public accountancy.

Consequently, the bill was returned to the Congress of the Philippines, but it was not repassed
by 2/3 vote of each House as prescribed by section 20, article VI of the Constitution. Instead Bill
No. 371 was presented in the Senate. It reads as follows:

AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM 1946 UP
TO AND INCLUDING 1953

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

Congress assembled:

SECTION 1. Notwithstanding the provisions of section 14, Rule 127 of the Rules of
Court, any bar candidate who obtained a general average of 70 per cent in any bar
examinations after July 4, 1946 up to the August 1951 Bar examinations; 71 per cent in
the 1952 bar examinations; 72 per cent in the 1953 bar examinations; 73 per cent in the
1954 bar examinations; 74 per cent in 1955 bar examinations without a candidate
obtaining a grade below 50 per cent in any subject, shall be allowed to take and
subscribe the corresponding oath of office as member of the Philippine Bar; Provided,
however, That 75 per cent passing general average shall be restored in all succeeding
examinations; and Provided, finally, That for the purpose of this Act, any exact one-half
 or more of a fraction, shall be considered as one and included as part of the next whole
number.

SEC. 2. Any bar candidate who obtained a grade of 75 per cent in any subject in any bar
examination after July 4, 1945 shall be deemed to have passed in such subject or
subjects and such grade or grades shall be included in computing the passing general
average that said candidate may obtain in any subsequent examinations that he may
take.

SEC. 3. This bill shall take effect upon its approval.

With the following explanatory note:

This is a revised Bar bill to meet the objections of the President and to afford another
opportunity to those who feel themselves discriminated by the Supreme Court from 1946
to 1951 when those who would otherwise have passed the bar examination but were
arbitrarily not so considered by altering its previous decisions of the passing mark. The
Supreme Court has been altering the passing mark from 69 in 1947 to 74 in 1951. In
order to cure the apparent arbitrary fixing of passing grades and to give satisfaction to all
parties concerned, it is proposed in this bill a gradual increase in the general averages
for passing the bar examinations as follows; For 1946 to 1951 bar examinations, 70 per
cent; for 1952 bar examination, 71 per cent; for 1953 bar examination, 72 per cent; for
1954 bar examination, 73 percent; and for 1955 bar examination, 74 per cent. Thus in
1956 the passing mark will be restored with the condition that the candidate shall not
obtain in any subject a grade of below 50 per cent. The reason for relaxing the standard
75 per cent passing grade, is the tremendous handicap which students during the years
immediately after the Japanese occupation has to overcome such as the insufficiency of
reading materials and the inadequacy of the preparation of students who took up law
soon after the liberation. It is believed that by 1956 the preparation of our students as
well as the available reading materials will be under normal conditions, if not improved
from those years preceding the last world war.

In this will we eliminated altogether the idea of having our Supreme Court assumed the
supervision as well as the administration of the study of law which was objected to by
the President in the Bar Bill of 1951.

The President in vetoing the Bar Bill last year stated among his objections that the bill
would admit to the practice of law "a special class who failed in the bar examination". He
considered the bill a class legislation. This contention, however, is not, in good
conscience, correct because Congress is merely supplementing what the Supreme
Court have already established as precedent by making as low as 69 per cent the
passing mark of those who took the Bar examination in 1947. These bar candidates for
who this bill should be enacted, considered themselves as having passed the bar
examination on the strength of the established precedent of our Supreme Court and
were fully aware of the insurmountable difficulties and handicaps which they were
unavoidably placed. We believe that such precedent cannot or could not have been
altered, constitutionally, by the Supreme Court, without giving due consideration to the
rights already accrued or vested in the bar candidates who took the examination when
the precedent was not yet altered, or in effect, was still enforced and without being
inconsistent with the principles of their previous resolutions.
 If this bill would be enacted, it shall be considered as a simple curative act or corrective
statute which Congress has the power to enact. The requirement of a "valid
classification" as against class legislation, is very expressed in the following American
Jurisprudence:

A valid classification must include all who naturally belong to the class, all who possess
a common disability, attribute, or classification, and there must be a "natural" and
substantial differentiation between those included in the class and those it leaves
untouched. When a class is accepted by the Court as "natural" it cannot be again split
and then have the dissevered factions of the original unit designated with different rules
established for each. (Fountain Park Co. vs. Rensier, 199 Ind. 95, N. E. 465 (1926).

Another case penned by Justice Cardozo: "Time with its tides brings new conditions
which must be cared for by new laws. Sometimes the new conditions affect the
members of a class. If so, the correcting statute must apply to all alike. Sometimes the
condition affect only a few. If so, the correcting statute may be as narrow as the
mischief. The constitution does not prohibit special laws inflexibly and always. It permits
them when there are special evils with which the general laws are incompetent to cope.
The special public purpose will sustain the special form. . . . The problem in the last
analysis is one of legislative policy, with a wide margin of discretion conceded to the
lawmakers. Only in the case of plain abuse will there be revision by the court. (In
Williams vs. Mayor and City Council of Baltimore, 286 U. S. 36, 77 L. Ed. 1015, 53 Sup.
Ct. 431). (1932)

This bill has all the earmarks of a corrective statute which always retroacts to the extent
of the care of correction only as in this case from 1946 when the Supreme Court first
deviated from the rule of 75 per cent in the Rules of Court.

For the foregoing purposes the approval of this bill is earnestly recommended.

(Sgd.) PABLO ANGELES DAVID

Senator

Without much debate, the revised bill was passed by Congress as above transcribed. The
President again asked the comments of this Court, which endorsed the following:

Respectfully returned to the Honorable, the Acting Executive Secretary, Manila, with the
information that, with respect to Senate Bill No. 371, the members of the Court are
taking the same views they expressed on Senate Bill No. 12 passed by Congress in
May, 1951, contained in the first indorsement of the undersigned dated June 5, 1951, to
the Assistant Executive Secretary.

(Sgd.) RICARDO PARAS

The President allowed the period within which the bill should be signed to pass without vetoing
it, by virtue of which it became a law on June 21, 1953 (Sec. 20, Art. VI, Constitution) numbered
972 (many times erroneously cited as No. 974).
It may be mentioned in passing that 1953 was an election year, and that both the President and
the author of the Bill were candidates for re-election, together, however, they lost in the polls.

Separate Opinions

LABRADOR, J., concurring and dissenting:

The right to admit members to the Bar is, and has always been, the exclusive privilege of this
Court, because lawyers are members of the Court and only this Court should be allowed to
determine admission thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is exercise. This power should
be distinguished from the power to promulgate rules which regulate admission. It is only this
power (to promulgate amendments to the rules) that is given in the Constitution to the
Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the
holding of examination, the qualifications of applicants, the passing grades, etc. are within the
scope of the legislative power. But the power to determine when a candidate has made or has
not made the required grade is judicial, and lies completely with this Court.

I hold that the act under consideration is an exercise of the judicial function, and lies beyond the
scope of the congressional prerogative of amending the rules. To say that candidates who
obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955
should be considered as having passed the examination, is to mean exercise of the privilege
and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different
years with grades lower than the passing mark. No reasoning is necessary to show that it is an
arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as
discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to
have the privilege of a lower passing grade, while those taking earlier or later are not?

I vote that the act in toto be declared unconstitutional, because it is not embraced within the
rule-making power of Congress, because it is an undue interference with the power of this Court
to admit members thereof, and because it is discriminatory.

PARAS, C.J., dissenting:

Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to
have passed his examinations successfully, he must have obtained a general average of 75 per
cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has
always been adhered to, with certain exception presently to be specified.

With reference to the bar examinations given in August, 1946, the original list of successful
candidates included only those who obtained a general average of 75 per cent or more. Upon
motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73
per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of
November, 1946 the list first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but, upon motion for
reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent
by resolution of March 31, 1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but below 75 per cent were
included. After the original list of 1947 successful bar candidates had been released, and on
motion for reconsideration, all candidates with a general average of 69 per cent were allowed to
pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948,
in addition to the original list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of
whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28,
1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and
for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an
amendment of section 14 of Rule 127.

Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages
mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents
set by this Court in 1947 and 1948, but said motions were uniformly denied.

In the year 1951, the Congress, after public hearings where law deans and professors,
practising attorneys, presidents of bar associations, and law graduates appeared and argued
lengthily pro or con, approved a bill providing, among others, for the reduction of the passing
general average from 75 per cent to 70 per cent, retroactive to any bar examination held after
July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of
Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress
passed another bill similar to the previous bill vetoed by the President, with the important
difference that in the later bill the provisions in the first bill regarding (1) the supervision and
regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and
Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the
examination, and (4) the equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No.
972, by the President by merely not signing it within the required period; and in doing so the
President gave due respect to the will of the Congress which, speaking for the people, chose to
repass the bill first vetoed by him.

Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent
in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar
examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations;
and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in
any subject, shall be allowed to pass. Said Act also provides that any bar candidate who
obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be
deemed to have passed in such subject or subjects and such grade or grades shall be included
in computing the passing in any subsequent examinations.

Numerous candidates who had taken the bar examinations previous to the approval of Republic
Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or
separate petitions, praying that they be admitted to the practice of law under and by virtue of
said Act, upon the allegation that they have obtained the general averages prescribed therein.
In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized representatives of bar associations,
were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing
being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in
so far as it affects past bar examinations and the matter" involved "a new question of public
interest."

All discussions in support of the proposition that the power to regulate the admission to the
practice of law is inherently judicial, are immaterial, because the subject is now governed by the
Constitution which in Article VII, section 13, provides as follows:

The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not diminish, increase or
modify substantive right. The existing laws on pleading, practice, and procedure are
hereby repealed as statutes and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to
repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.

Under this constitutional provision, while the Supreme Court has the power to promulgate rules
concerning the admission to the practice of law, the Congress has the power to repeal, alter or
supplement said rules. Little intelligence is necessary to see that the power of the Supreme
Court and the Congress to regulate the admission to the practice of law is concurrent.

The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar
examinations held prior to its approval, is unconstitutional, because it sets aside the final
resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners,
thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view
is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the
finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods
after which they become executory and unalterable. Resolutions on bar matters, specially on
motions for reconsiderations filed by flunkers in any give year, are subject to revision by this
Court at any time, regardless of the period within which the motion were filed, and this has been
the practice heretofore. The obvious reason is that bar examinations and admission to the
practice of law may be deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no
judicial function involved, in the subject and constitutional sense of the word, because bar
examinations and the admission to the practice of law, unlike justiciable cases, do not affect
opposing litigants. It is no more than the function of other examining boards. In the second
place, retroactive laws are not prohibited by the Constitution, except only when they would
be ex post facto, would impair obligations and contracts or vested rights or would deny due
process and equal protection of the law. Republic Act No. 972 certainly is not an ex post
facto enactment, does not impair any obligation and contract or vested rights, and denies to no
one the right to due process and equal protection of the law. On the other hand, it is a mere
curative statute intended to correct certain obvious inequalities arising from the adoption by this
Court of different passing general averages in certain years.

Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against,
because we no longer have any record of those who might have failed before the war, apart
from the circumstance that 75 per cent had always been the passing mark during said period. It
may also be that there are no pre-war bar candidates similarly situated as those benefited by
Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be
determined by the legislative body. It is proper to recall that the Congress held public hearings,
and we can fairly suppose that the classification adopted in the Act reflects good legislative
judgment derived from the facts and circumstances then brought out.

As regards the alleged interference in or encroachment upon the judgment of this Court by the
Legislative Department, it is sufficient to state that, if there is any interference at all, it is one
expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited
by the Constitution is essentially aimed at protecting rights of litigants that have already been
vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating
appearances of separation and equality among the three branches of the Government. Republic
Act No. 972 has not produced a case involving two parties and decided by the Court in favor of
one and against the other. Needless to say, the statute will not affect the previous resolutions
passing bar candidates who had obtained the general average prescribed by section 14 of Rule
127. A law would be objectionable and unconstitutional if, for instance, it would provide that
those who have been admitted to the bar after July 4, 1946, whose general average is below 80
per cent, will not be allowed to practice law, because said statute would then destroy a right
already acquired under previous resolutions of this Court, namely, the bar admission of those
whose general averages were from 75 to 79 per cent.

Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power
conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by
reducing the passing average to 70 per cent, effective several years before the date of the
resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who
obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a
general average of 70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the
examinations held in August 1947 and August 1948, said section (fixing the general average at
75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the
Supreme Court and the Congress have concurrent power to regulate the admission to the
practice of law, that the latter may validly pass a retroactive rule fixing the passing general
average.

Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or
capricious, since this Court had already adopted as passing averages 69 per cent for the 1947
bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire
into the wisdom of the law, since this is a matter that is addressed to the judgment of the
legislators. This Court in many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on that ground.

To say that the admission of the bar candidates benefited under Republic Act 972 is against
public interest, is to assume that the matter of whether said Act is beneficial or harmful to the
general public was not considered by the Congress. As already stated, the Congress held public
hearings, and we are bound to assume that the legislators, loyal, as do the members of this
Court, to their oath of office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the Congress, representing the people
who elected them, should be more qualified to make an appraisal. I am inclined to accept
Republic Act No. 972 as an expression of the will of the people through their duly elected
representatives.
I would, however, not go to the extent of admitting that the Congress, in the exercise of its
concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to
the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court
may not do so. We are thus left in the situation, incidental to a democracy, where we can and
should only hope that the right men are put in the right places in our Government.

Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given
effect in its entirety.

Separate Opinions

LABRADOR, J., concurring and dissenting:

The right to admit members to the Bar is, and has always been, the exclusive privilege of this
Court, because lawyers are members of the Court and only this Court should be allowed to
determine admission thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is exercise. This power should
be distinguished from the power to promulgate rules which regulate admission. It is only this
power (to promulgate amendments to the rules) that is given in the Constitution to the
Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the
holding of examination, the qualifications of applicants, the passing grades, etc. are within the
scope of the legislative power. But the power to determine when a candidate has made or has
not made the required grade is judicial, and lies completely with this Court.

I hold that the act under consideration is an exercise of the judicial function, and lies beyond the
scope of the congressional prerogative of amending the rules. To say that candidates who
obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955
should be considered as having passed the examination, is to mean exercise of the privilege
and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different
years with grades lower than the passing mark. No reasoning is necessary to show that it is an
arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as
discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to
have the privilege of a lower passing grade, while those taking earlier or later are not?

I vote that the act in toto be declared unconstitutional, because it is not embraced within the
rule-making power of Congress, because it is an undue interference with the power of this Court
to admit members thereof, and because it is discriminatory.

PARAS, C.J., dissenting:

Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to
have passed his examinations successfully, he must have obtained a general average of 75 per
cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has
always been adhered to, with certain exception presently to be specified.
With reference to the bar examinations given in August, 1946, the original list of successful
candidates included only those who obtained a general average of 75 per cent or more. Upon
motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73
per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of
November, 1946 the list first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but, upon motion for
reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent
by resolution of March 31, 1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but below 75 per cent were
included. After the original list of 1947 successful bar candidates had been released, and on
motion for reconsideration, all candidates with a general average of 69 per cent were allowed to
pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948,
in addition to the original list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of
whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28,
1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and
for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an
amendment of section 14 of Rule 127.

Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages
mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents
set by this Court in 1947 and 1948, but said motions were uniformly denied.

In the year 1951, the Congress, after public hearings where law deans and professors,
practising attorneys, presidents of bar associations, and law graduates appeared and argued
lengthily pro or con, approved a bill providing, among others, for the reduction of the passing
general average from 75 per cent to 70 per cent, retroactive to any bar examination held after
July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of
Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress
passed another bill similar to the previous bill vetoed by the President, with the important
difference that in the later bill the provisions in the first bill regarding (1) the supervision and
regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and
Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the
examination, and (4) the equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No.
972, by the President by merely not signing it within the required period; and in doing so the
President gave due respect to the will of the Congress which, speaking for the people, chose to
repass the bill first vetoed by him.

Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent
in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar
examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations;
and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in
any subject, shall be allowed to pass. Said Act also provides that any bar candidate who
obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be
deemed to have passed in such subject or subjects and such grade or grades shall be included
in computing the passing in any subsequent examinations.

Numerous candidates who had taken the bar examinations previous to the approval of Republic
Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or
separate petitions, praying that they be admitted to the practice of law under and by virtue of
said Act, upon the allegation that they have obtained the general averages prescribed therein.
In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized representatives of bar associations,
were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing
being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in
so far as it affects past bar examinations and the matter" involved "a new question of public
interest."

All discussions in support of the proposition that the power to regulate the admission to the
practice of law is inherently judicial, are immaterial, because the subject is now governed by the
Constitution which in Article VII, section 13, provides as follows:

The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not diminish, increase or
modify substantive right. The existing laws on pleading, practice, and procedure are
hereby repealed as statutes and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to
repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.

Under this constitutional provision, while the Supreme Court has the power to promulgate rules
concerning the admission to the practice of law, the Congress has the power to repeal, alter or
supplement said rules. Little intelligence is necessary to see that the power of the Supreme
Court and the Congress to regulate the admission to the practice of law is concurrent.

The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar
examinations held prior to its approval, is unconstitutional, because it sets aside the final
resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners,
thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view
is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the
finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods
after which they become executory and unalterable. Resolutions on bar matters, specially on
motions for reconsiderations filed by flunkers in any give year, are subject to revision by this
Court at any time, regardless of the period within which the motion were filed, and this has been
the practice heretofore. The obvious reason is that bar examinations and admission to the
practice of law may be deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no
judicial function involved, in the subject and constitutional sense of the word, because bar
examinations and the admission to the practice of law, unlike justiciable cases, do not affect
opposing litigants. It is no more than the function of other examining boards. In the second
place, retroactive laws are not prohibited by the Constitution, except only when they would
be ex post facto, would impair obligations and contracts or vested rights or would deny due
process and equal protection of the law. Republic Act No. 972 certainly is not an ex post
facto enactment, does not impair any obligation and contract or vested rights, and denies to no
one the right to due process and equal protection of the law. On the other hand, it is a mere
curative statute intended to correct certain obvious inequalities arising from the adoption by this
Court of different passing general averages in certain years.
Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against,
because we no longer have any record of those who might have failed before the war, apart
from the circumstance that 75 per cent had always been the passing mark during said period. It
may also be that there are no pre-war bar candidates similarly situated as those benefited by
Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be
determined by the legislative body. It is proper to recall that the Congress held public hearings,
and we can fairly suppose that the classification adopted in the Act reflects good legislative
judgment derived from the facts and circumstances then brought out.

As regards the alleged interference in or encroachment upon the judgment of this Court by the
Legislative Department, it is sufficient to state that, if there is any interference at all, it is one
expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited
by the Constitution is essentially aimed at protecting rights of litigants that have already been
vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating
appearances of separation and equality among the three branches of the Government. Republic
Act No. 972 has not produced a case involving two parties and decided by the Court in favor of
one and against the other. Needless to say, the statute will not affect the previous resolutions
passing bar candidates who had obtained the general average prescribed by section 14 of Rule
127. A law would be objectionable and unconstitutional if, for instance, it would provide that
those who have been admitted to the bar after July 4, 1946, whose general average is below 80
per cent, will not be allowed to practice law, because said statute would then destroy a right
already acquired under previous resolutions of this Court, namely, the bar admission of those
whose general averages were from 75 to 79 per cent.

Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power
conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by
reducing the passing average to 70 per cent, effective several years before the date of the
resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who
obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a
general average of 70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the
examinations held in August 1947 and August 1948, said section (fixing the general average at
75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the
Supreme Court and the Congress have concurrent power to regulate the admission to the
practice of law, that the latter may validly pass a retroactive rule fixing the passing general
average.

Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or
capricious, since this Court had already adopted as passing averages 69 per cent for the 1947
bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire
into the wisdom of the law, since this is a matter that is addressed to the judgment of the
legislators. This Court in many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on that ground.

To say that the admission of the bar candidates benefited under Republic Act 972 is against
public interest, is to assume that the matter of whether said Act is beneficial or harmful to the
general public was not considered by the Congress. As already stated, the Congress held public
hearings, and we are bound to assume that the legislators, loyal, as do the members of this
Court, to their oath of office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the Congress, representing the people
who elected them, should be more qualified to make an appraisal. I am inclined to accept
Republic Act No. 972 as an expression of the will of the people through their duly elected
representatives.

I would, however, not go to the extent of admitting that the Congress, in the exercise of its
concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to
the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court
may not do so. We are thus left in the situation, incidental to a democracy, where we can and
should only hope that the right men are put in the right places in our Government.

Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given
effect in its entirety.

Footnotes

1
Designed as Chairman of the Committee of Bar Examiners vice Mr. Justice Roman
Ozaeta, resigned.

2
In 1946 and 1947, the members of the Supreme Court were Hon. Manuel V. Moran,
Chief Justice, Ho. Ricardo Paras, Hon. Felicisimo Feria, Hon. Guillermo F. Pablo, Hon.
Gregorio Perfecto, Ho. Carlos Hilado, Hon. Cesar Bengzon, Hon. Manuel C. Briones,
Hon. Jose Hontiveros, Hon. Sabino Padilla, and Hon. Pedro Tuason, Associate Justices.
In 1948, Justices Marcelino R. Montemayor and Alex. Reyes took the place of Justice
Hilado, resigned, and Hontiveros, retired. Justice Roman Ozaeta was returned to the
Court and Justice Sabino Padilla was appointed Secretary of Justice. In June, 1949,
Justice Padilla was returned to the Tribunal, as Justice Briones resigned. In October,
1950, Justices Fernando Jugo and Felix Bautista Angelo were appointed to the Court, as
Justice Perfecto Jugo and Felix Bautista Angelo were appointed to the Court, as Justice
Perfecto had died, and Justice Ozaeta had resigned. In 1951, Chief Justice Manuel V.
Moran resigned and Justice Ricardo Paras was appointed Chief Justice. In 1953, Justice
Felicisimo R. Feria retired.

Case 2: Carino v. Commission on Human Rights, G.R. No. 96681, 02 December 1991
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 96681 December 2, 1991

HON. ISIDRO CARIÑO, in his capacity as Secretary of the Department of Education, Culture &
Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of
Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA
IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and
APOLINARIO ESBER, respondents.

NARVASA, J.:

The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the
Solicitor General, may be formulated as follows: where the relief sought from the Commission
on Human Rights by a party in a case consists of the review and reversal or modification of a
decision or order issued by a court of justice or government agency or official exercising quasi-
judicial functions, may the Commission take cognizance of the case and grant that relief? Stated
otherwise, where a particular subject-matter is placed by law within the jurisdiction of a court or
other government agency or official for purposes of trial and adjudgment, may the Commission
on Human Rights take cognizance of the same subject-matter for the same purposes of hearing
and adjudication?

The facts narrated in the petition are not denied by the respondents and are hence taken as
substantially correct for purposes of ruling on the legal questions posed in the present action.
These facts, 1 together with others involved in related cases recently resolved by this Court 2 or
otherwise undisputed on the record, are hereunder set forth.

1. On September 17, 1990, a Monday and a class day, some 800 public school teachers,
among them members of the Manila Public School Teachers Association (MPSTA) and Alliance
of Concerned Teachers (ACT) undertook what they described as "mass concerted actions" to
"dramatize and highlight" their plight resulting from the alleged failure of the public authorities to
act upon grievances that had time and again been brought to the latter's attention. According to
them they had decided to undertake said "mass concerted actions" after the protest rally staged
at the DECS premises on September 14, 1990 without disrupting classes as a last call for the
government to negotiate the granting of demands had elicited no response from the Secretary
of Education. The "mass actions" consisted in staying away from their classes, converging at
the Liwasang Bonifacio, gathering in peaceable assemblies, etc. Through their representatives,
the teachers participating in the mass actions were served with an order of the Secretary of
Education to return to work in 24 hours or face dismissal, and a memorandum directing the
DECS officials concerned to initiate dismissal proceedings against those who did not comply
and to hire their replacements. Those directives notwithstanding, the mass actions continued
into the week, with more teachers

GUTIERREZ, JR., J., concurring:

I concur in the result. The teachers are not to be blamed for exhausting all means to overcome
the Secretary's arbitrary act of not reinstating them.

PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa

I wish to add however that the Commission on Human Rights should concern itself in this case
and in many other similar cases:

(1) not only with the human rights of striking teachers but also the human rights of
students and their parents;

(2) not only with the human rights of the accused but also the human rights of the victims
and the latter's families;

(3) not only with the human rights of those who rise against the government but also
those who defend the same;

(4) not only the human rights of striking laborers but also those who as a consequence
of strikes may be laid off because of financial repercussions.

The defense of human rights is not a monopoly of a government agency (such as the
Commission on Human Rights) nor the monopoly of a group of lawyers defending so-called
"human rights' but the responsibility of ALL AGENCIES (governmental or private) and of ALL
LAWYERS, JUDGES, and JUSTICES.

Finally, the Commission should realize that while there are "human rights", there are also
corresponding "human obligations."

PADILLA, J., dissenting:

I vote to dismiss the petition for the same reasons stated in my earlier separate opinion filed in
this case.
# Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the result. The teachers are not to be blamed for exhausting all means to overcome
the Secretary's arbitrary act of not reinstating them.

PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa

I wish to add however that the Commission on Human Rights should concern itself in this case
and in many other similar cases:

(1) not only with the human rights of striking teachers but also the human rights of
students and their parents;

(2) not only with the human rights of the accused but also the human rights of the victims
and the latter's families;

(3) not only with the human rights of those who rise against the government but also
those who defend the same;

(4) not only the human rights of striking laborers but also those who as a consequence
of strikes may be laid off because of financial repercussions.

The defense of human rights is not a monopoly of a government agency (such as the
Commission on Human Rights) nor the monopoly of a group of lawyers defending so-called
"human rights' but the responsibility of ALL AGENCIES (governmental or private) and of ALL
LAWYERS, JUDGES, and JUSTICES.

Finally, the Commission should realize that while there are "human rights", there are also
corresponding "human obligations."

PADILLA, J., dissenting:

I vote to dismiss the petition for the same reasons stated in my earlier separate opinion filed in
this case.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-25716 July 28, 1966

FERNANDO LOPEZ, petitioner,

vs.
GERARDO ROXAS and PRESIDENTIAL ELECTORAL TRIBUNAL, respondents.

Vicente Francisco for petitioner.

Sycip and Salazar for respondents.

CONCEPCION, C.J.:

Petitioner Fernando Lopez and respondent Gerardo Roxas were the main contenders for the
Office of Vice-President of the Philippines in the general elections held on November 9, 1965.
By Resolution No. 2, approved on December 17, 1965, the two Houses of Congress, in joint
session assembled as the board charged with the duty to canvass the votes then cast for
President and Vice President of the Philippines, proclaimed petitioner Fernando Lopez elected
to the latter office with 3,531,550 votes, or a plurality of 26,724 votes over his closest opponent,
respondent Gerardo M. Roxas, in whose favor 3,504,826 votes had been tallied, according to
said resolution. On January 5, 1966, respondent filed, with the Presidential Electoral Tribunal,
Election Protest No. 2, contesting the election of petitioner herein as Vice-President of the
Philippines, upon the ground that it was not he, but said respondent, who had obtained the
largest number of votes for said office.

On February 22, 1966, petitioner Lopez instituted in the Supreme Court the present original
action, for prohibition with preliminary injunction, against respondent Roxas, to prevent the
Presidential Electoral Tribunal from hearing and deciding the aforementioned election contest,
upon the ground that Republic Act No. 1793, creating said Tribunal, is "unconstitutional," and
that, "all proceedings taken by it are a nullity."

Petitioner's contention is predicated upon the ground, that Congress may not, by law, authorize
an election contest for President and Vice-President, the Constitution being silent thereon; that
such contest tends to nullify the constitutional authority of Congress to proclaim the candidates
elected for President and Vice-President; that the recount of votes by the Presidential Electoral
Tribunal, as an incident of an election contest, is inconsistent with the exclusive power of
Congress to canvass the election returns for the President and the Vice-President; that no
amendment to the Constitution providing for an election protest involving the office of President
and Vice-President has been adopted, despite the constitutional amendment governing election
contests for Members of Congress; that the tenure of the President and the Vice-President is
fixed by the Constitution and cannot be abridged by an Act of Congress, like Republic Act No.
1793; that said Act has the effect of amending the Constitution, in that it permits the Presidential
Electoral Tribunal to review the congressional proclamation of the president-elect and the vice-
president-elect; that the constitutional convention had rejected the original plan to include in the
Constitution a provision authorizing election contest affecting the president-elect and the vice-
president-elect before an electoral commission; that the people understood the Constitution to
authorize election contests only for Members of Congress, not for President and Vice-President,
and, in interpreting the Constitution, the people's intent is paramount; that it is illegal for Justices
of the Supreme Court to sit as members of the Presidential Electoral Tribunal, since the
decisions thereof are appealable to the Supreme Court on questions of law; that the Presidential
Electoral Tribunal is a court inferior to the Supreme Court; and that Congress cannot by
legislation appoint in effect the members of the Presidential Electoral Tribunal.

Pursuant to the Constitution, "the Judicial power shall be vested in one Supreme Court and in
such inferior courts as may be established by law.1

This provision vests in the judicial branch of the government, not merely some specified
or limited judicial power, but "the" judicial power under our political system, and, accordingly, the
entirety or "all" of said power, except, only, so much as the Constitution confers upon some
other agency, such as the power to "judge all contests relating to the election, returns and
qualifications" of members of the Senate and those of the House of Representatives which is
vested by the fundamental law solely in the Senate Electoral Tribunal and the House Electoral
Tribunal, respectively.2

Judicial power is the authority to settle justiciable controversies or disputes involving rights that
are enforceable and demandable before the courts of justice or the redress of wrongs for
violations of such rights.3 The proper exercise of said authority requires legislative action: (1)
defining such enforceable and demandable rights and/or prescribing remedies for violations
thereof; and (2) determining the court with jurisdiction to hear and decide said controversies or
disputes, in the first instance and/or on appeal. For this reason, the Constitution ordains that
"Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various
courts," subject to the limitations set forth in the fundamental law.4

Prior to the approval of Republic Act No. 1793, a defeated candidate for president or vice-
president, who believe that he was the candidate who obtained the largest number of votes for
either office, despite the proclamation by Congress of another candidate as the president-elect
or vice-president-elect, had no legal right to demand by election protest a recount of the votes
cast for the office concerned, to establish his right thereto. As a consequence, controversies or
disputes on this matter were not justiciable.5

Section 1 of Republic Act No. 1793, which provides that:

 There shall be an independent Presidential Electoral Tribunal ... which shall be the sole
judge of all contests relating to the election, returns, and qualifications of the president-
elect and the vice-president-elect of the Philippines.

has the effect of giving said defeated candidate the legal right to contest judicially the election of
the President-elect or Vice-President-elect and to demand a recount of the votes cast for the
office involved in the litigation as well as to secure a judgment declaring that he6 is the one
elected president or vice-president, as the case may be,7 and that, as such, he is entitled to
assume the duties attached to said office. And by providing, further, that the Presidential
Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the
Supreme Court," said legislation has conferred upon such Court an additional original
jurisdiction of an exclusive character.8

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon
the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the
enactment may be likened to the fact that courts of first instance perform the functions of such
ordinary courts of first instance,9 those of court of land registration, 10those of probate
courts, 11 and those of courts of juvenile and domestic relations. 12 It is, also, comparable to the
situation obtaining when the municipal court of a provincial capital exercises its authority,
pursuant to law, over a limited number of cases which were previously within the exclusive
jurisdiction of courts of first instance. 13

In all of these instances, the court (court of first instance or municipal court) is only one,
although the functions may be distinct and, even, separate. Thus the powers of a court of first
instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well as
distinct and separate from, those of the same court acting as a court of land registration or
a probate court, or as a court of juvenile and domestic relations. So too, the authority of the
municipal court of a provincial capital, when acting as such municipal court, is, territorially more
limited than that of the same court when hearing the aforementioned cases which are primary
within the jurisdiction of courts of first instance. In other words, there is only one court, although
it may perform the functions pertaining to several types of courts, each having some
characteristics different from those of the others.

Indeed, the Supreme Court, 14 the Court of Appeals 15 and courts of first instance, 16 are vested
with original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are
booth trial courts and appellate courts, without detracting from the fact that there is only one
Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority to
discharged said dual functions. A court of first instance, when performing the functions of a
probate court or a court of land registration, or a court of juvenile and domestic relations,
although with powers less broad than those of a court of first instance, hearing ordinary actions,
is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential Electoral
Tribunal is not inferior to the Supreme Court, since it is the same Court although
the functions peculiar to said Tribunal are more limited in scope than those of the Supreme
Court in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793,
does not entail an assumption by Congress of the power of appointment vested by the
Constitution in the President. It merely connotes the imposition of additional duties upon the
Members of the Supreme Court. 17

Moreover, the power to be the "judge ... of ... contests relating to the election, returns, and
qualifications" of any public officer is essentially judicial. As such — under the very principle of
separation of powers invoked by petitioner herein — it belongs exclusively to
the judicial department, except only insofar as the Constitution provides otherwise. This is
precisely the reason why said organic law ordains that "the Senate and the House of
Representatives shall each have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their respective Members" (Article
VI, Section 11, of the Constitution). In other words, the purpose of this provision was
to exclude the power to decide such contests relating to Members of Congress — which by
nature is judicial 18 — from the operation of the general grant of judicial power 19 to "the
Supreme Court and such inferior courts as may be established by law.

Instead of indicating that Congress may not enact Republic Act No. 1793, the aforementioned
provision of the Constitution, establishing said Electoral Tribunals for Members of Congress
only, proves the exact opposite, namely: that the Constitution intended to vest Congress with
discretion 20 to determine by law whether or not the election of a president-elect or that of a vice-
president-elect may be contested and, if Congress should decide in the affirmative, which court
of justice shall have jurisdiction to hear the contest. It is, even, debatable whether such
jurisdiction may be conferred, by statute, to a board, commission or tribunal composed partly of
Members of Congress and Members of the Supreme Court because of its possible
inconsistency with the constitutional grant of the judicial power to "the Supreme Court and ...
such inferior courts as may be established by law," for said board, commission or tribunal would
be neither "the Supreme Court, 21 nor, certainly, "such inferior courts as, may be established by
law."

It follows, therefore, not only that Republic Act No. 1793 is not inconsistent with the Constitution
or with the principle of separation of powers underlying the same, but, also, that it is in
harmony with the aforementioned grant of "the judicial power" to said courts. Indeed, when
Claro M. Recto, Chairman of the Constitutional Convention, proposed that the original move
therein to include in the fundamental law a provision creating an Electoral Commission 22 to
hear election contests against the President-elect and the Vice-President-elect, be given up, he
expressed the view that the elimination of said provision would have the effect of leaving in the
hands of the legislative department the power to decide what entity or body would "look into the
protests for the positions of President and Vice-President." 23 Twenty-two (22) years later, or on
May 3, 1957 then Senator Recto reiterated this view, when, in the course of the debates on the
Bill which later became Republic Act No. 1793, he stated:

... Mr. President, as far as I can remember, the intention of the constitutional convention
was to leave this matter to ordinary legislation.

Such was, also, the impression of Dr. Jose M. Aruego, another prominent Member of the
Convention, who says 24that

Election protests for the Presidency and the Vice-Presidendency were left to be judged
in a manner and by a body decided by the National Assembly. (Emphasis ours.)

No less than one of the main counsel for petitioner herein, himself, another delegate to the
Constitutional Convention, evidently shared this view as late as September 30, 1965, for the
introduction to his 1965 edition of "the Revised Election Code" states that "he will always be
remembered for ... his famous bill creating the Presidential Electoral Tribunal ...". Indeed as a
member of the Senate, on January 3, 1950, he Introduced Senate Bill No. 1 seeking to create a
Presidential Electoral Tribunal "to try, hear and decide protests contesting the election of the
President and the Vice-President of the Philippines", which shall be composed of three Justices
of the Supreme Court, including the Chief Justice, and four Senators and four Members of the
House of Representatives.

Then, again, the records of the Convention show, that in voting eventually to eliminate, from the
draft of the Constitution, the provision establishing a Presidential Electoral Commission, the
delegates were influenced by the fact that there was no similar provision in the Federal
Constitution of the United States. Having followed the pattern thereof, it must be assumed,
therefore, in the absence of any indicium to the contrary,25 that the Convention had adhered,
also, to the interpretation given to this feature of said Federal Constitution, as may be deduced
from the fact that, by an act of Congress of the United States, approved on January 29, 1877,
an Electoral Commission was created to hear and decide certain issues concerning the election
of the President of said nation held in 1876. It is, also worthy of notice that pursuant to said Act,
nothing therein "shall be held to impair or affect any right now existing under the Constitution
and laws to question, by proceedings in the judicial courts of the United States, the right or title
of the person who shall be declared elected, or who shall claim to be President or Vice-
President of the United States, if any such right exists". 26 Thus the absence of a provision in
said Federal Constitution governing protests against the election of the President and the Vice-
President had been construed to be without prejudice to the right of the defeated candidate to
file a protest before the courts of justice of the United States, if the laws thereof permitted it. In
other words, the Federal Congress was deemed clothed with authority to determine, by ordinary
legislation, whether or not protests against the election of said officers may properly be
entertained by the judicial department.

Needless to say, the power of congress to declare who, among the candidates for President
and/or Vice-President, has obtained the largest number of votes, is entirely different in nature
from and not inconsistent with the jurisdiction vested in the Presidential Electoral Tribunal by
Republic Act No. 1793. Congress merely acts as a national board of canvassers, charged with
the ministerial and executive duty 27 to make said declaration, on the basis of the election
returns duly certified by provincial and city boards of canvassers. 28 Upon the other hand, the
Presidential Electoral Tribunal has the judicial power to determine whether or not said duly
certified election returns have been irregularly made or tampered with, or reflect the true result
of the elections in the areas covered by each, and, if not, to recount the ballots cast, and,
incidentally thereto, pass upon the validity of each ballot or determine whether the same shall
be counted, and, in the affirmative, in whose favor, which Congress has power to do.

It is, likewise, patent that the aforementioned authority of the Presidential Electoral Tribunal to
determine whether or not the protestant has a better right than the President and/or the Vice-
President declared elected by Congress would not abridge the constitutional tenure. If the
evidence introduced in the election protest shows that the person really elected president or
vice-president is the protestant, not the person declared elected by Congress, then the latter
had legally no constitutional tenure whatsoever, and, hence, he can claim no abridgement
thereof.1äwphï1.ñët

It is similarly obvious that, in imposing upon the Supreme Court the additional duty of performing
the functions of a Presidential Electoral Tribunal, Congress has not, through Republic Act No.
1793, encroached upon the appointing power of the Executive. The imposition of new duties
constitutes, neither the creation of an office, nor the appointment of an officer. 29
In view of a resolution of this Court dated July 8, 1966, upholding the validity of Republic Act No.
1793, upon the ground that it merely vests additional jurisdiction in the Supreme Court,
petitioner has filed a motion dated July 13, 1966, praying this Court "to clarify whether or not"
this "election contest should as a consequence ... be docketed with, and the records thereof
transferred, to this Supreme Court, and all pleadings, papers and processes relative thereto
should thence forth be filed with it". The motion is, evidently, based upon the premise that the
Supreme Court is different and distinct from the Presidential Electoral Tribunal, which is
erroneous, as well as contrary to the ruling made in said resolution.

Wherefore, the petition herein is hereby dismissed and the writs therein prayed for denied
accordingly. The aforesaid motion is, moreover, denied. With costs against the petitioner. It is so
ordered.

Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, J.P. Bengzon, Zaldivar, Sanchez and Castro,
JJ., concur.

Footnotes

1
Article VIII, Section 1, of the Constitution.

2
Article VI, Section 11, of the Constitution.

3
Black, Constitutional Law, 2nd ed. p. 82; Ruperto vs. Torres, G.R. No. L-3785, February
27, 1957, citing 34 C.J. 1183-1184; Wheeling & Elm Grove Railroad Co., Appt. vs. Town
of Philadelphia, et al., 4 LRA (NS) pp. 321, 328-329.

4
Article VIII, Section 2.

5
Thus in Channie Tan vs. Republic, G.R. No. L-14159, April 18, 1960, in which this Court
ruled that an action for judicial declaration of citizenship was held not to be a justiciable
controversy, because there is nolegislation authorizing the institution of such proceeding.
Tan Yu Chin vs. Republic, G.R. No. L-15775, April 29, 1961; Tan vs. Republic, G.R. No.
L-16108, October 31, 1961; Santiago vs. Commissioner, G.R. No. L-14653, January 31,
1963; Reyes vs. Republic, G.R. No. L-17642, November 27, 1964; Dy Poco vs.
Commissioner of Immigration, et al., 13, March 31, 1966. See, also, Mabanag vs.
Vito, 78 Phil. 1, in which it was held that "political questions are not within the province of
the judiciary, except to the extent that power to deal with such questions has
been conferred upon the courts by express constitutional or statutory provision."

6
Not the candidate proclaimed elected by Congress.

7
If the evidence so establishes it.

8
See, for instance, Sec. 2. Act 496 (Land Registration Act), Sec. 14, Act 1956
(Insolvency jaw), and Sec. 8, CA 473 (Revised Naturalization Law), which confer upon
courts of first instance additional original jurisdiction.

9
The Courts Of First Instance function not only as Courts of General Jurisdiction, i.e.,
competent to decide all cases, civil and criminal, within their own jurisdiction (12 CJS 20-
21, I Moran xxxiii; Rep. Act 296. Secs. 39, 44) but also as Courts of Special Jurisdiction,
empowered to decide certain specified matters, such as probate, admiralty,
naturalization, bankruptcy, cadastral and land registration cases.

10
The powers and functions of the Court of Land Registration, established by virtue of
Act 496, Sec. 2, were subsequently conferred "upon the Courts of First Instance and
judges thereof," by authority of Sec. 10, Act 2347.

11
Aside from performing the functions of a probate court (Sec. 44, par. [e], Republic Act
296, as amended), courts of first instance also act as admiralty courts (Sec. 44[d],
Republic Act 296), bankruptcy courts (Act 1956), and as courts of juvenile and domestic
relations (Republic Act No. 1401, Sec. 1).

12
Except in Manila. Republic Act No. 409, Sec. 38-A, as amended by Republic Act No.
1401.

13
See Sec. 88, Republic Act 296, as amended, pursuant to which "municipal judges may,
with the approval of the Secretary of Justice, be assigned by the respective district judge
in each case to hear and determine cadastral or land registration cases covering lots
where there is no controversy or opposition, or contested lots the value of which does
not exceed ten thousand pesos, x x x ." Also, said municipal and city judges, "in the
absence of the District Judge from the province, may exercise within the
province like interlocutory jurisdiction as the Court of First Instance, which shall be held
to include the hearing of all motions for the appointment of a receiver, for temporary
injunctions, and for all other orders of the court which are not final in their character and
do not involve a decision of the case on its merits, and the hearing of petitions for a writ
of habeas corpus." Sec. 87, Republic Act 296 confers upon municipal judges in the
capitals of provinces and sub-provinces and judges of city courts like jurisdiction as the
Court of First Instance to try parties charged with an offense committed within their
respective jurisdictions, in which the penalty provided by law does not exceed prision
correccional or imprisonment for not more than six years or fine not exceeding six
thousand pesos or both, and in the absence of the district judge, like jurisdiction within
the province as the Court of First Instance to hear application for bail.

14
In addition to the original and the appellate jurisdictions conferred upon the Supreme
Court by the Constitution (Art. VIII, Sec. 2), Republic Act 296, Sec. 17 vests it
with concurrent jurisdiction with courts of first instance.

15
Sections 29 and 30, Republic Act 296, as amended.

16
Sections 44 and 45, Republic Act 296, as amended.

17
The imposition by the legislature to a constitutional body of additional duties not
inconsistent with those already prescribed by the Constitution is a practice recognized in
many jurisdiction. See, 42 Am. Jur. Public Officers, Secs. 31, 9, pp. 902, 1949; State vs.
Caldwell, 23 So. 2d 855, Terrell, J., Supreme Court of Florida; Rouse vs. Johnson, 28
S.W. (2d) 745, 70 A.L.R. 1077, CA Kentucky (1930). Even this Court has recognized the
authority of the Legislature to add to, but not to diminish, the jurisdiction of the Supreme
Court. In re Guariña, 24 Phil. 37; United States vs. Limsiongco, 41 Phil. 94, 2 PAL. 309.
18
"The Constitution makes each house of Congress the judge as to the elections and
returns of its members. This would appear on its face to be essentially judicial function.
In fact, in England and in some of the British dominions, it is assigned to the courts. This
was not the case, however, at the time of the adoption of our Constitution and we
followed the plan then existing in that country whereby the House of Commons passed
on election contests." American Constitutional System — Mathews — p. 98.

"There are certain matters which each house determines for itself, and in respect
to which its decision is conclusive. x x x it decides upon the election and
qualifications of its own members. x x x In determining questions concerning
contested seat the house will exercise judicial power, but generally in accordance
with a course of practice which has sprung from precedents in similar cases, and
no other authority is at liberty to interfere." Cooley, Thomas M., A Treatise on the
Constitutional Limitations, Vol. 1, pp. 270-271, 1927 ed.

"Determining of existing facts and resultant and controverted rights and duties, is
a judicial function." 23 W & P 147 (1965 Pocket Part)

"After primary election has been held and results have been ascertained,
question regarding qualifications of candidates becomes one which relates to his
eligibility to hold office to which he aspires and one which requires the exercise of
"judicial functions" to decide x x x ". State ex rel. Tanner vs. Duncan, 10 So. 2d
507, 511, 23 W & P. 148 (1965 Pocket Part)

19
Made in Section 1 of Art. VIII of the Constitution.

20
Which is denied thereto in connection with election contests affecting its own
members.

In which Members of Congress may not — under the principle of separation of powers
21

— sit.

22
Consisting of members of the legislative department and members of the Supreme
Court.

23
The journal of the Convention shows that the following statements were made on the
floor thereof:

"The Acting President. — Is there any objection to this proposition? (Silence).

The Chair does not hear any. Approved.

"Delegate Saguin. — For an information. It seems that this Constitution does not
contain any provision with respect to the entity or body which will look into the
protests for the positions of President and Vice-President.

"President Recto. — Neither does the American constitution contain a provision

over the subject.

"Delegate Saguin. — But, then, who will decide these protests ?

 "President Recto. — I suppose that the National Assembly will decide that."
(Emphasis ours.)

24
In his work on "The Framing of the Philippine Constitution" Vol. I, p. 410, printed in
1937.

25
And none has been brought to our attention.

26
Emphasis ours.

27
Just like that of any municipal, city or provincial board of canvassers.

28
Article VII, Section 2, Constitution of the Philippines.

29
"Imposition of new duties upon an officer already elected or appointed does not
constitute the creation of an office or the appointment of an officer. When new duties are
thus attached to an office, a reappointment of the officer need not be made." (42 Am.
Jur., Public Officers, Sec. 90, p. 949).

"In the United States, except for such offices as are created by Constitution, the
creation of public offices is primarily a legislative function. In so far as the
legislative power in this respect is not restricted by constitutional provisions, it is
supreme, and the legislature may decide for itself what offices are suitable,
necessary, or convenient. When in the exigencies of government it is necessary
to create and define new duties, the legislative department has the discretion to
determine whether additional offices shall be created or these duties shall be
attached to and become ex officio duties of existing offices." (42 Am. Jur., Public
Officers, Sec. 31, p. 902; 40 ALR 1052, 1057.)

x x x the legislature may impose additional powers and duties on

both constitutional and statutory officers so long as such duties are not
inconsistent with their duties imposed by the constitution. x x x the legislature
may make an existing officer the member of another and different board by
enlarging his duties." (State vs. Caldwell, 23 So. 2d 855, Terrell, Supreme Court
of Florida.)

"That the Legislature may annex additional duties to a constitutional office, or

confer powers upon a constitutional officer other than those expressly prescribed
by the Constitution, unless inhibited from so doing by that instrument,
is everywhere recognized and practiced in this and other jurisdictions, x x x ."
(Rouse vs. Johnson, 28 S.W. [2d] 745, 70 ALR. 1077, C.A. Kentucky [1930].)

x x x Congress may create an office, it cannot appoint the officer x x x . It cannot

be doubted, x x x that Congress may increase the power and duties of an
existing office without thereby rendering it necessary that the incumbent should
be again nominated and appointed. (Shoemaker vs. United States, 37 Law ed.
170, 185.)
Case 4: Francisco v House of Representatives

G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO,
INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-
ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX
WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN,
MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA
CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-
HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA
CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO
RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS,
RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR
PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR.,
JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO,
GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT,
ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO,
DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA,
GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL
ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO,
MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA,
JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND
RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON
C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE
HOUSE OF REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON
MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG,
ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE,
WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY
SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO,
JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA,
JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX
VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

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

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.

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

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED

BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS
CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING
PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents.

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF
THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN
S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN
B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND
IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES
WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT
CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents.

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

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.

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

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner,

vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF
THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE
HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.

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

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND
THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.

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

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO

G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

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

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.

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

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.

MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY
ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE
LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L.
JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND
INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON,
AS SENATE PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent
branches of government of the nature, scope and extent of their respective constitutional
powers where the Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.

There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions – whether the filing of the second impeachment complaint against
Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year
bar provided in the Constitution, and whether the resolution thereof is a political question – has
resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a
political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative,
executive or judicial branches of government by no means prescribes for absolute autonomy in
the discharge by each of that part of the governmental power assigned to it by the sovereign
people.

At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches must be
given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

 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.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office, on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from office as provided by law, but
not by impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either
to affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between
these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II RULE V

INITIATING IMPEACHMENT BAR AGAINST INITIATION OF

IMPEACHMENT
Section 2. Mode of Initiating PROCEEDINGS AGAINST THE
Impeachment. – Impeachment SAME OFFICIAL
shall be initiated only by a verified
complaint for impeachment filed by Section 16. – Impeachment
any Member of the House of Proceedings Deemed Initiated. –
Representatives or by any citizen In cases where a Member of the
upon a resolution of endorsement House files a verified complaint
by any Member thereof or by a of impeachment or a citizen files
verified complaint or resolution of a verified complaint that is
impeachment filed by at least one- endorsed by a Member of the
third (1/3) of all the Members of House through a resolution of
the House. endorsement against an
impeachable officer,
impeachment proceedings
against such official are deemed
initiated on the day the
Committee on Justice finds that
the verified complaint and/or
resolution against such official,
as the case may be, is sufficient
in substance, or on the date the
House votes to overturn or affirm
the finding of the said Committee
that the verified complaint and/or
resolution, as the case may be, is
not sufficient in substance.

In cases where a verified

complaint or a resolution of
impeachment is filed or
endorsed, as the case may be,
by at least one-third (1/3) of the
Members of the
House, impeachment
proceedings are deemed initiated
at the time of the filing of such
verified complaint or resolution of
impeachment with the Secretary
 General.

RULE V Section 17. Bar Against Initiation

Of Impeachment Proceedings. –
BAR AGAINST IMPEACHMENT Within a period of one (1) year
from the date impeachment
Section 14. Scope of Bar. – No proceedings are deemed initiated
impeachment proceedings shall be as provided in Section 16 hereof,
initiated against the same official no impeachment proceedings, as
more than once within the period such, can be initiated against the
of one (1) year. same official. (Italics in the
original; emphasis and
underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures
by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)." 3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo
B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on
Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution
which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being
insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to
the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by
Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella
(Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This
second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House
of Representatives.13

Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in
the House Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5)
of the Constitution, to return the second impeachment complaint and/or strike it off the records
of the House of Representatives, and to promulgate rules which are consistent with the
Constitution; and (3) this Court permanently enjoin respondent House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers,
alleging that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice
or, in the event that the Senate has accepted the same, from proceeding with the impeachment
trial.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a
writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
he has locus standi to bring petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his
petition for Injunction that the second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House
of Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul
M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors
and agents to desist from conducting any proceedings or to act on the impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing
of the second impeachment complaint involves paramount public interest and pray that Sections
16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III
of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens,
citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray
for the issuance of a writ prohibiting respondents House of Representatives and the Senate
from conducting further proceedings on the second impeachment complaint and that this Court
declare as unconstitutional the second impeachment complaint and the acts of respondent
House of Representatives in interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as
an official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of
the Chief Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that
as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays
in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction"
that the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance, prays
in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and
(3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the
resolution of endorsement and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the
impeachment trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to the
Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of
the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of
the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion
was put forth that the second impeachment complaint be formally transmitted to the Senate, but
it was not carried because the House of Representatives adjourned for lack of quorum, 19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives
and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at
10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this
Court called on petitioners and respondents to maintain the status quo, enjoining all the parties
and others acting for and in their behalf to refrain from committing acts that would render the
petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose
C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin
the House of Representatives, which is an independent and co-equal branch of government
under the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a
Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as
the impeachment court to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of
the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments
on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain
exclusively to the proceedings in the House of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put
Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the
petitions as the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang

Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World
War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.

The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3,
2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke
it; on what issues and at what time; and whether it should be exercised by this Court at
this time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of
the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise
of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining.
These matters shall now be discussed in seriatim.

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.

This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:

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. (Emphasis
supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:

x x x In 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 and
among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said instrument. The Constitution sets
forth in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels,for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living
 constitution. In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence
for a period of more than one and a half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of article VIII of our
Constitution.

The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is
the power of judicial review under the Constitution. Even then, this power of judicial
review is limited to actual cases and controversies to be exercised after full opportunity
of argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon questions of wisdom, justice
or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.24 (Italics in the original; emphasis and underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial
power itself, which is "the power of the court to settle actual controversies involving rights which
are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence
for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the
supreme law of the land, the constitution itself is first mentioned; and not the laws of the
United States generally, but those only which shall be made in pursuance of the
constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a law
repugnant to the constitution is void; and that courts, as well as other departments, are
bound by that instrument.28(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral

component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure coordination in the workings
of the various departments of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.32 (Emphasis and underscoring
supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial
review is the chief, indeed the only, medium of participation – or instrument of intervention – of
the judiciary in that balancing operation."34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored
in the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:

xxx
The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of 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 or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance that
in a number of cases against the government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ of habeas corpus, that is,
the authority of courts to order the release of political detainees, and other matters
related to the operation and effect of martial law failed because the government set up
the defense of political question. And the Supreme Court said: "Well, since it is political,
we have no authority to pass upon it." The Committee on the Judiciary feels that this was
not a proper solution of the questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies and offices
of the government as well as those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original; emphasis and underscoring
supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
 We look to the language of the document itself in our search for its meaning. We do not
of course stop there, but that is where we begin. It is to be assumed that the words in
which constitutional provisions are couched express the objective sought to be attained.
They are to be given their ordinary meaning except where technical terms are employed
in which case the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain that it should
ever be present in the people's consciousness, its language as much as possible should
be understood in the sense they have in common use. What it says according to the text
of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what they
say. Thus these are the cases where the need for construction is reduced to a
minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame

Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in constitutional construction
is to ascertain and thereafter assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also be safely assumed that the
people in ratifying the Constitution were guided mainly by the explanation offered by the
framers.41 (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated a

provision of our Constitution merely for the benefit of one person without considering that
it could also affect others.When they adopted subsection 2, they permitted, if not willed,
that said provision should function to the full extent of its substance and its terms, not by
itself alone, but in conjunction with all other provisions of that great
document.43 (Emphasis and underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
 It is a well-established rule in constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the
whole purpose of the Constitution and one section is not to be allowed to defeat another,
if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make
the words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings
are powerless to vary the terms of the Constitution when the meaning is clear. Debates
in the constitutional convention "are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the mass of our fellow citizens
whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face." The proper
interpretation therefore depends more on how it was understood by the people adopting
it than in the framers's understanding thereof.46 (Emphasis and underscoring supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49

In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system
of checks and balances, under which impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in fashioning relief.51 Respondents likewise
point to deliberations on the US Constitution to show the intent to isolate judicial power of review
in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution
and American authorities cannot be credited to support the proposition that the Senate's "sole
power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial review to check
and restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the
case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the
U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court
and lower courts, as expressly provided for in the Constitution, is not just a power but also
a duty, and it was given an expanded definition to include the power to correct any grave abuse
of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution
with respect to the power of the House of Representatives over impeachment proceedings.
While the U.S. Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to impeach, and the one
year bar on the impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this
Court to exercise judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively, recognizing full well the
perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v. Carr,57"judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support
of the argument that the impeachment power is beyond the scope of judicial review, are not in
point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the
House of Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the
House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the
legislative power is vested exclusively in Congress, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before such member-
elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review
over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned to
it by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest possible opportunity; and (4)
the issue of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies
to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
 unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not
have standing since only the Chief Justice has sustained and will sustain direct personal
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this
Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in
cases involving paramount public interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to determine whether or not the other branches
of the government have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them.72 Amicus curiae Dean Raul
Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that, when the real party in interest is unable
to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant
petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties can maintain an
action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or by
 official action taken, but by concerned citizens, taxpayers or voters who actually sue in
the public interest. Hence the question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party
who would be benefited or injured by the judgment, or the 'party entitled to the avails of
the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional
acts of the House of Representatives, none of the petitioners before us asserts a violation of the
personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit;
and members of the bar and of the legal profession – which were supposedly violated by the
alleged unconstitutional acts of the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves
the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of
personal interest.

In the case of a taxpayer, he is 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
there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he would sustain a direct injury as a result of the enforcement of the questioned statute
or contract. It is not sufficient that he has merely a general interest common to all members of
the public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing
trial of the Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.83
While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the
issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court
to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle, binding on all members
of the class whether or not they were before the court.89 Where it clearly appears that not all
interests can be sufficiently represented as shown by the divergent issues raised in the
numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionallyallege standing as citizens and taxpayers, however, their petition will
stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are
instructive: (1) the character of the funds or other assets involved in the case; (2) the presence
of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being raised.90 Applying these determinants,
this Court is satisfied that the issues raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public.91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the matter
is totally eliminated. A party must, at the very least, still plead the existence of such interest, it
not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to
allege any interest in the case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they
raise the same issues and the same standing, and no objection on the part of petitioners
Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for
Leave of Court to Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to
join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,
alleging that "they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for intervention had been
complied with.

Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
raise the additional issue of whether or not the second impeachment complaint against the
Chief Justice is valid and based on any of the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et

al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in
the matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against
which the herein petitions are directed. For this reason, and to fully ventilate all substantial
issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier
stated, allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of public

moneys, nowhere in their Petition do said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional protection against abuses of
legislative power," or that there is a misapplication of such funds by respondent
COMELEC, or that public money is being deflected to any improper purpose. Neither do
petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected to
any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to
clothe him with standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture." 96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged
in an appropriate legal proceeding.

The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second impeachment complaint had been filed
with the House of Representatives and the 2001 Rules have already been already promulgated
and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be
no urgent need for this Court to render a decision at this time, it being the final arbiter on
questions of constitutionality anyway. He thus recommends that all remedies in the House and
Senate should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves when
the Articles of Impeachment are presented on a motion to transmit to the same to the Senate.
The dean maintains that even assuming that the Articles are transmitted to the Senate, the
Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of
Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.

Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither
the House of Representatives nor the Senate is clothed with the power to rule with
definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or
otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I,
Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power
to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, 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.99(Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason,
this Court vacillated on its stance of taking cognizance of cases which involved political
questions. In some cases, this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies.101 Even in
the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of
whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a
political question, it being a question decided by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment
that the judiciary is the weakest among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the judiciary has nothing with which to
enforce its decisions or commands except the power of reason and appeal to conscience which,
after all, reflects the will of God, and is the most powerful of all other powers without exception.
x x x And so, with the body's indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of 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 or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance that
in a number of cases against the government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ of habeas corpus, that is,
the authority of courts to order the release of political detainees, and other matters
related to the operation and effect of martial law failed because the government set up
the defense of political question. And the Supreme Court said: "Well, since it is political,
we have no authority to pass upon it." The Committee on the Judiciary feels that this was
not a proper solution of the questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. I am sure the members of the Bar are
familiar with this situation. But for the benefit of the Members of the Commission who are
not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973
on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law
was announced on September 22, although the proclamation was dated September 21.
The obvious reason for the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September 21. So that when martial
law was announced on September 22, the media hardly published anything about it. In
fact, the media could not publish any story not only because our main writers were
already incarcerated, but also because those who succeeded them in their jobs were
under mortal threat of being the object of wrath of the ruling party. The 1971
Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had
not finished the Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial law, some delegates to
that 1971 Constitutional Convention, dozens of them, were picked up. One of them was
our very own colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacañang. In 17 days, they finished
what the delegates to the 1971 Constitutional Convention had been unable to
accomplish for about 14 months. The draft of the 1973 Constitution was presented to the
President around December 1, 1972, whereupon the President issued a decree calling a
plebiscite which suspended the operation of some provisions in the martial law decree
which prohibited discussions, much less public discussions of certain matters of public
concern. The purpose was presumably to allow a free discussion on the draft of the
Constitution on which a plebiscite was to be held sometime in January 1973. If I may use
a word famous by our colleague, Commissioner Ople, during the interregnum, however,
the draft of the Constitution was analyzed and criticized with such a telling effect that
Malacañang felt the danger of its approval. So, the President suspended indefinitely the
holding of the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the questions to be submitted
in the referendum were not announced until the eve of its scheduled beginning, under
the supposed supervision not of the Commission on Elections, but of what was then
designated as "citizens assemblies or barangays." Thus the barangays came into
existence. The questions to be propounded were released with proposed answers
thereto, suggesting that it was unnecessary to hold a plebiscite because the answers
given in the referendum should be regarded as the votes cast in the plebiscite.
Thereupon, a motion was filed with the Supreme Court praying that the holding of the
referendum be suspended. When the motion was being heard before the Supreme
Court, the Minister of Justice delivered to the Court a proclamation of the President
declaring that the new Constitution was already in force because the overwhelming
majority of the votes cast in the referendum favored the Constitution. Immediately after
the departure of the Minister of Justice, I proceeded to the session room where the case
was being heard. I then informed the Court and the parties the presidential proclamation
declaring that the 1973 Constitution had been ratified by the people and is now in force.
 A number of other cases were filed to declare the presidential proclamation null and
void. The main defense put up by the government was that the issue was a political
question and that the court had no jurisdiction to entertain the case.

xxx

The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members
of the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference

between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the case.
This is not the only major case in which the plea of "political question" was set up. There
have been a number of other cases in the past.

x x x The defense of the political question was rejected because the issue was clearly
justiciable.

xxx

x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There
are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a
decided case, a husband complained that his wife was unwilling to perform her duties as
a wife. The Court said: "We can tell your wife what her duties as such are and that she is
bound to comply with them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by law, but they are so
personal that to enforce them by actual compulsion would be highly derogatory to
human dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important
function. The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme within
its own sphere and independent of the others. Because of that supremacy power to
determine whether a given law is valid or not is vested in courts of justice.
 Briefly stated, courts of justice determine the limits of power of the agencies and offices
of the government as well as those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an
initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis
supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not
vested in the Supreme Court alone but also in other lower courts as may be created by
law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political
questions with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where
there is a question as to whether the government had authority or had abused its
authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political
question. Therefore, the court has the duty to decide.

xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme
Court according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political question
doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

 MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting
to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with
the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial power. But
the Gentleman will notice it says, "judicial power includes" and the reason being that the
definition that we might make may not cover all possible areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from the political
question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions
are beyond the pale of judicial power.104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although said provision by
no means does away with the applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case of Baker
v. Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question.112(Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion. These
standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.

In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits
on powers or functions conferred upon political bodies. If there are, then our courts are duty-
bound to examine whether the branch or instrumentality of the government properly acted within
such limits. This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section
3(4), Article XI of the Constitution.
 III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the
12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of
the Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI
of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require
this Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In
fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional

question and decide a law to be unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the record also presents some other
ground upon which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a decision
upon such question will be unavoidable.116 [Emphasis and underscoring supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into such a
question are first satisfied. Thus, there must be an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination, the constitutional question
must have been opportunely raised by the proper party, and the resolution of the
 question is unavoidably necessary to the decision of the case itself.118 [Emphasis
supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome
of this controversy could possibly be made to rest. In determining whether one, some or all of
the remaining substantial issues should be passed upon, this Court is guided by the related
cannon of adjudication that "the court should not form a rule of constitutional law broader than is
required by the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling
for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers;
(c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an
assault on the independence of the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of
this Court that the issue of the constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in general,
which would thus be broader than is required by the facts of these consolidated cases. This
opinion is further strengthened by the fact that said petitioners have raised other grounds in
support of their petition which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted
provision of the Constitution. Thus, as provided therein, the investigation must be "in aid
of legislation in accordance with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries shall be respected." It follows
then that the right rights of persons under the Bill of Rights must be respected, including
the right to due process and the right not be compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by Representatives Gilberto
Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of
Section 3 (4), Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at

least one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a
Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the
application of the afore-mentioned section in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the Members of the House." With the
exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are
alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point to
the "Verification" of the Resolution of Endorsement which states that:

"We are the proponents/sponsors of the Resolution of Endorsement of the

abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for
said second impeachment complaint to automatically become the Articles of Impeachment and
for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely
endorsed, by at least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment complaint should
have been calendared and referred to the House Committee on Justice under Section 3(2),
Article XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by
the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions
would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but
the efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination
of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute
the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the
House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

Judicial Restraint

Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of
impeachment. Again, this Court reiterates that the power of judicial review includes the power of
review over justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses because Members of
the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to
take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas,
"jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it,
it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office,
the public has laid on [a member of the judiciary] their confidence that [he] is mentally and
morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him]
to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or
power and to be equipped with a moral fiber strong enough to resist the temptations lurking in
[his] office."130
The duty to exercise the power of adjudication regardless of interest had already been settled in
the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all
of them were interested parties to said case as respondents therein. This would have reduced
the Tribunal's membership to only its three Justices-Members whose disqualification was not
sought, leaving them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator
sitting in the Tribunal by any of his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully discharge if shorn of
the participation of its entire membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal be not prevented
from discharging a duty which it alone has the power to perform, the performance of
which is in the highest public interest as evidenced by its being expressly imposed by no
less than the fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election contest that
would involve all Senators—elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the
Constitution provides no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose disqualification may be
sought. Litigants in such situations must simply place their trust and hopes of vindication
in the fairness and sense of justice of the Members of the Tribunal. Justices and
Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial judgment. What
we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of Senators and that no
amendment of its Rules can confer on the three Justices-Members alone the power of
valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them,
is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And
if that judge is the one designated by the Constitution to exercise the jurisdiction of his
court, as is the case with the Justices of this Court, the deprivation of his or their judicial
power is equivalent to the deprivation of the judicial power of the court itself. It affects the
very heart of judicial independence. The proposed mass disqualification, if sanctioned
 and ordered, would leave the Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire membership of
Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions 'is legitimate only in
the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by
the record, if there is also present some other ground upon which the case may be
disposed of. This rule has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from
the highest court of a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can be sustained on an
independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails
to show that he is injured by its operation. Among the many applications of this rule,
none is more striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first
 ascertain whether a construction of the statute is fairly possible by which the question
may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the following
categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of the
case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the
statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano
echoes this argument by alleging that failure of this Court to enforce its Resolution against
Congress would result in the diminution of its judicial authority and erode public confidence and
faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court
to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon
their constitutional duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded
as settled until the Supreme Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also political consequences.
Those political consequences may follow even where the Court fails to grant the
petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently,
failure to act explicitly, one way or the other, itself constitutes a decision for the
respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there
were not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the
pre-existing constitutional order was disrupted which paved the way for the establishment of the
martial law regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches
of the government would behave in a lawless manner and not do their duty under the law to
uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any
of the branches of government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine
in People v. Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If [public
officers], under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting under its authority.
Under this system, [public officers] are guided by the Rule of Law, and ought "to protect
and enforce it without fear or favor," resist encroachments by governments, political
parties, or even the interference of their own personal beliefs.142

Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16

and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of
our present Constitution, contending that the term "initiate" does not mean "to file;" that Section
3 (1) is clear in that it is the House of Representatives, as a collective body, which has the
exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to
file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be
accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of
the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any
member; or (3) by at least 1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate Justices had not been initiated as
the House of Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions held on November
5, 2003 at which he added that the act of "initiating" included the act of taking initial action on
the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article
XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The beginning or the initiation
is the filing of the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives
Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the
Justice Committee votes in favor of impeachment or when the House reverses a
contrary vote of the Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The language is recognition
that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a
time after actual initiation. (Emphasis and underscoring supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of
the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its
records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many proposals
and, I think, these would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment proceedings starting
with initiation, action of the Speaker committee action, calendaring of report, voting on
the report, transmittal referral to the Senate, trial and judgment by the Senate.

xxx
 MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment
on the floor. The procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment is the one approved by the
body.

As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the resolution. It
is not the body which initiates it. It only approves or disapproves the resolution. So, on
that score, probably the Committee on Style could help in rearranging these words
because we have to be very technical about this. I have been bringing with me The
Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with
me. The proceedings on the case of Richard Nixon are with me. I have submitted my
proposal, but the Committee has already decided. Nevertheless, I just want to indicate
this on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or
to override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned
on line 25 in the case of the direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of the
House of Representatives of the United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in
deleting the phrase "to initiate impeachment proceedings" as contained in the text of the
provision of Section 3 (3) was to settle and make it understood once and for all that the initiation
of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of
the House in a resolution of impeachment does not initiate the impeachment proceedings which
was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article
XI of the Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used
in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object
in the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that the House, by a vote
of one-third of all its members, can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No other body can do it. However,
before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin
word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the Senate but in the House and consists
of several steps: (1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects
or upholds the complaint, the resolution must be forwarded to the House for further processing;
and (4) there is the processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a contrary resolution by a
vote of one-third of all the members. If at least one third of all the Members upholds the
complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point
that the House "initiates an impeachment case." It is at this point that an impeachable public
official is successfully impeached. That is, he or she is successfully charged with an
impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is
initiated or begins, when a verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal
to delete the line on the ground that the vote of the House does not initiate impeachment
proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not
found in the present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action.
By his explanation, this interpretation is founded on the common understanding of the meaning
of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people,
both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary
meaning into ordinary words and not abstruse meaning, they ratify words as they understand it
and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the
exclusive power to initiate all cases of impeachment," This is a misreading of said provision and
is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."

From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of
the impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement
of the impeachment complaint to the House Committee on Justice or, by the filing by at least
one-third of the members of the House of Representatives with the Secretary General of the
House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed against the same
official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment

proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice
that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning
from filing and referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know more about the real meaning because
of the latter's balanced perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission – Chief
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the
records of the deliberations and proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary to
either affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
 (5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have
the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and the
result which is sought to be attained. It is only within these limitations that all matters of method
are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia,
Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic
as he stressed that in the Philippine setting there is even more reason for courts to inquire into
the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of power if we
assume jurisdiction over he case at bar. Even in the United States, the principle of
separation of power is no longer an impregnable impediment against the interposition of
judicial power on cases involving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view
the issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the
rules of its proceedings." It appears that in pursuance of this authority the House had,
prior to that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be
noted by the clerk and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in determining the
presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort
to for determining the presence of a quorum, nor what matters the Speaker or clerk may
of their own volition place upon the journal. Neither do the advantages or disadvantages,
the wisdom or folly, of such a rule present any matters for judicial consideration. With the
courts the question is only one of power. The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules ignore constitutional restraints
or violate fundamental rights, and there should be a reasonable relation between the
mode or method of proceedings established by the rule and the result which is sought to
be attained. But within these limitations all matters of method are open to the
determination of the House, and it is no impeachment of the rule to say that some other
way would be better, more accurate, or even more just. It is no objection to the validity of
a rule that a different one has been prescribed and in force for a length of time. The
power to make rules is not one which once exercised is exhausted. It is a continuous
power, always subject to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by the
Court and it was found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable
relationship with the result sought to be attained. By examining Rule XV, the Court did
not allow its jurisdiction to be defeated by the mere invocation of the principle of
separation of powers.154

xxx

In the Philippine setting, there is a more compelling reason for courts to categorically
reject the political question defense when its interposition will cover up abuse of power.
For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts
"x x x to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government." This power is new and was not granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the US Constitution or any foreign state
constitution. The CONCOM granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were shielded
from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent
former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the
checking powers of the judiciary vis-à-vis the Executive and the Legislative departments
of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere power
which it can decline to exercise. Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of a branch or instrumentality of
government or any of its officials done with grave abuse of discretion amounting to lack
or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking
powers of this Court against the other branches of government despite their more
democratic character, the President and the legislators being elected by the people.156

xxx
 The provision defining judicial power as including the 'duty of the courts of justice. . . 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'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was
dictated by our experience under martial law which taught us that a stronger and more
independent judiciary is needed to abort abuses in government. x x x

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court
from passivity to activism. This transformation, dictated by our distinct experience as
nation, is not merely evolutionary but revolutionary.Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially determining what
it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is
mandated to approach constitutional violations not by finding out what it should not do
but what it must do. The Court must discharge this solemn duty by not resuscitating a
past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of
our power to review violations of the rules of the House. We will not be true to our trust
as the last bulwark against government abuses if we refuse to exercise this new power
or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the
judicial sword that has increasingly emboldened other branches of government to
denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial power is
distinctly Filipino and its interpretation should not be depreciated by undue reliance on
inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own
history should provide us the light and not the experience of foreigners.157 (Italics in the
original emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or
(2) once the House itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment complaint
and referral to the House Committee on Justice, the initial action taken thereon, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in
the foregoing manner, another may not be filed against the same official within a one year
period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally exhausting experience.
Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe
to be the correct position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets
armed with their familiar slogans and chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe and denominations of faith – offered
suggestions for a return to a state of normalcy in the official relations of the governmental
branches affected to obviate any perceived resulting instability upon areas of national life.

Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-
interference was made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full
of all the requisite conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a
genuine constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in
fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only
the main issue of whether the impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go
about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative of their own powers to
bring about ultimately the beneficent effects of having founded and ordered our society upon the
rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is
that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations
or speculations could be made to it, so long as it rendered judgment according to the law and
the facts. Why can it not now be trusted to wield judicial power in these petitions just because it
is the highest ranking magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official act as tested by
the limits set by the Constitution? Of course, there are rules on the inhibition of any member of
the judiciary from taking part in a case in specified instances. But to disqualify this entire
institution now from the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of
its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual's rights irrespective of his station in
life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has
resorted to no other than the Constitution in search for a solution to what many feared would
ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to
have found answers in our bedrock of legal principles, it is equally important that it went through
this crucible of a democratic process, if only to discover that it can resolve differences without
the use of force and aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario
G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on
October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

Bellosillo and Tinga, JJ., see separate opinion.

Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.

Case 5: In Re Vallarta and Valenzuela

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

A.M. No. 98-5-01-SC November 9, 1998

In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24,
Cabananatuan City, respectively.

NARVASA, C.J.:

The question presented for resolution in the administrative matter at bar is whether, during the
period of the ban on appointments imposed by Section 15, Article VII of the, Constitution, the
President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9
of Article VIII. A corollary question is whether he can make appointments to the judiciary during
the period of the ban in the interest of public service.

Resolution of the issues is needful; it will preclude a recurrence of any conflict in the matter of
nominations and appointments to the Judiciary — as that here involved — between the Chief
Executive, on the one hand, and on the other, the Supreme Court and the Juducial and Bar
Council over which the Court exercises general supervision and wields specific powers
including the assignment to it of other functions and duties in addition to its principal one of
recommending appointees to the Judiciary, and the determination of its Members emoluments.1

I. The Relevant Facts

The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the relevant facts
and is for that reason hereunder reproduced in full.

Referred to the Court En Banc by the Chief Justice are the appointments signed
by His Excellency the President under date of March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively. The
appointments were received at the Chief Justice's chambers on May 12, 1998.
The referral was made in view of the serious constitutional issue concerning said
appointments arising from the pertinent antecedents.

The issue was first ventilated at the meeting of the Judicial and Bar Council on
March 9, 1998. The meeting had been called, according to the Chief Justice
as Ex Officio Chairman, to discuss the question raised by some sectors about the
"constitutionality of ** appointments" to the Court of Appeals, specifically, in light
of the forthcoming presidential elections. Attention was drawn to Section 15,
Article VII of the Constitution reading as follows:

Sec. 15. Two months immediately before the next presidential

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

On the other hand, appointments to fill vacancies in the Supreme Court during
the period mentioned in the provision just quoted could seemingly be justified by
another provision of the same Constitution Section 4 (1) of Article VIII which
states:

Sec. 4 (1) The Supreme Court shall be composed of a Chief

Justice and fourteen Associate Justices. ** **. Any vacancy shall
be filled within ninety days from the occurrence thereof.

Also pertinent although not specifically discussed is Section 9 of the same Article
VIII which provides that for the lower courts, the President shall issue the
appointments — from a list of at least three nominees prepared by the Council
for every vacancy — within ninety days from the submission of the list.

The view was then expressed by Senior Associate Justice Florenz D. Regalado,
Consultant of the Council, who had been a member of the Committee of the
Executive Department and of the Committee on the Judicial Department of the
1986 Constitutional Commission, that on the basis of the commission's records,
the election ban had no application to appointments to the Court of Appeals.
Without any extended discussion or any prior research and study on the part of
the other Members of the JBC, this hypothesis was accepted, and was then
submitted to the President for consideration, together with the Council's
nominations for eight (8) vacancies in the Court of Appeals.

On April 6, 1998 the Chief Justice received an official communication from the
Executive Secretary transmitting the appointments of eight (8) Associate Justices
of the Court of Appeals all of which had been duly signed on March 11, 1998 by
His Excellency the President. In view of the fact that all the appointments had
been sign on March 11, 1998 — the day immediately before the commencement
of the ban on appointments imposed by Section 15, Article VII of the Constitution
— who impliedly but no less clearly indicated that the President's Office did not
agree with the hypothesis that appointments to the Judiciary were not covered by
said ban, the Chief Justice resolved to defer consideration of nominations for the
vacancy in the Supreme Court created by the retirement of Associate Justice
Ricardo J. Francisco, specially considering that the Court had scheduled
sessions in Baquio City in April, 1998, that the legislature's representatives to the
JBC were occupied with the forthcoming elections, and that a member of the
Council was going on a trip out of the country.

On May 4, 1998, the Chief Justice received a letter from the President,
addressed to the JBC, requesting transmission of the "list of final nominees" for
the vacancy "no later than Wednesday, May 6, 1998" in view of the duty imposed
on him by the Constitution "to fill up the vacancy ** within ninety (90) days from
February 13, 1998, the date the present vacancy occurred.
On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief
Justice for "guidance" respecting the expressed desire of the "regular members"
of the JBC to hold a meeting immediately to fill up the vacancy in the Court in line
with the President's letter of May 4. The Chief Justice advised Secretary Bello to
await the reply that he was drafting to the President's communication, a copy of
which he would give the Secreatary the following day.

On May 6, 1998 the Chief Justice sent his reply to the President. He began by
stating that no sessions had been scheduled for the Council until after the May
elections for the reason that apparently the President's Office did not share the
view posited by the JBC that Section 15, Article VII of the Constitution had no
application to JBC-recommendend appointments — the appointments to the
Court of Appeals having been all uniformly dated March 11, 1998, before the
commencement of the prohibition in said provision — thus giving rise to the
"need to undertake further study of the matter," prescinding from "the-desire to
avoid any constitutional isssue regarding the appointment to the mentioned
vacancy" and the further fact that "certain senior members of the Court of
Appeals ** (had) asked the Council to reopen the question of their exclusion on
account of age from such (final) list." He closed with the assurance that the JBC
expected to deliberate on the nominations "forthwith upon the completion of the
coming elections." The letter was delivered to Malacañang at about 5 o'clock in
the afternoon of May 6, 1998 and a copy given to the Office of Justice Secretary
Bello shortly before that hour.

It would appear, however, that the Justice Secretary and the regular members of
the Council had already taken action without awaiting the Chief Justice's
promised response to the President's letter of May 4, 1998. On that day, May 6,
1998, they met at some undisclosed place, deliberated, and came to an
agreement on a resolution which they caused to be reduced to writing and
thereafter signed. In that two-page Resolution they drew attention to Section 4
(1), Article VIII of the Constitution (omitting any mention of Section 15, Article VII)
as well as to the President's letter of May 4 in which he "emphatically requested
that the required list of final nominees be submitted to him;" and pointing out that
the "Council would be remiss in its duties" should it fail to submit said
nominations, closed with an appeal that the Chief Justice convene the Council for
the purpose "on May 7, 1998, at 2:00 o'clock in the afternoon." This Resolution
they transmitted to the Chief Justice together with their letter, also dated May 6,
in which they emphasized that "we are pressed for time" again drawing attention
to Section 4 (1). Article VIII of the Constitution (and again omitting any reference
to Section 15, Article VII). They ended their letter with the following intriguing
paragraph:

Should the Chief Justice be not disposed to call for the meeting
aforesaid, the undersigned members constituting the majority will
be constrained to convene the Council for the purpose of
complying with its Constitutional mandate:

It seems evident, as just intimated, that the resolution and the covering letter
were deliberated on, prepared and signed hours before delivery of the Chief
Justice's letter to the President and the Justice Secretary.
Since the Members of the Council appeared determined to hold a meeting
regardless of the Chief Justice's wishes, the latter convoked the Council to a
meeting at 3 o'clock in the afternoon of May 7, 1998. Present at the meeting were
the Chief Justice, Secretary Bello, ex officio member and the regular members of
the Council: Justice Regino Hermosisima. Atty. Teresita Cruz Sison, Judge
Cesar C. Peralejo. Also present, on invitation of the Chief Justice, were Justices
Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S.
Puno, Jose C. Vitug, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M.
Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The Chief Justice
reviewed the events leading to the session, and after discussion, the body
agreed to give the President time to answer the Chief Justice's letter of May 6,
1998.

On May 7, 1998, the Chief Justice received a letter from his Excellency the
President in reply to his letter of May 6 (which the President said had been
"received early this morning"). The President expressed the view that "the
election-ban provision (Article VII, Sec. 15) ** applies only to executive
appointments or appointments in the executive branch of government," the whole
article being "entitled 'EXECUTIVE DEPARTMENT."' He also observed that
further proof of his theory "is the fact that appointments to the judiciary have
special, specific provisions applicable to them" (citing Article VIII, Sec, 4 (1) and
Article VIII, Section 9. In view thereof, he "firmly and respectfully
reiterate(d) ** (his) request for the Judicial and Bar Council to transmit ** the final
list of nominees for the lone Supreme Court vacancy."

The Chief Justice replied to the letter the following day, May 8, 1998. Since the
Chief Justice's letter explains the issue quite, plainly, it is here quoted in full.

Thank you for your letter of May 7, 1998, responding to my own

communication of May 6, 1998 which, I would like to say reflects
the collective sentiments of my colleagues in the Supreme Court.
Knowing how busy you are, I will deal straightaway with the points
set out in your letter.

The dating of the latest appointments to the Court of Appeals was

adverted to merely to explain how we in the Court and the JBC
came to have the impression that you did not share the view
expressed in the JBC minutes of March 9, 1998 that there is no
election ban with regard to the JBC appointments. Be this as it
may, the Court feels that there is a serious question concerning
the matter in light of the seemingly inconsistent provision of the
Constitution. The first of these is Section 15, Article VII, which
reads:

Sec. 15. Two months immediately before the next presidential

elections and up to the end of his term, a President or Acting
President shall not make appointments, except temporary
appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.
The second is Section 4 (1) of Article VIII which states:

Sec. 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. ** ** Any vacancy shall be filled within ninety days from the
occurrence thereof.

As you can see, Your Excellency, Section 15 of Article VII imposes a direct
prohibition on the President: he "shall not make appointments" within the period
mentioned, and since there is no specification of which appointments are
proscribed, the same may be considered as applying to all appointments of any
kind and nature. This is the general rule then, the only exception being only as
regards "executive positions" as to which "temporary appointments may be made
within the interdicted period "when continued vacancies therein will prejudice
public service or endanger public safety." As the exception makes reference only
to "executive" positions, it would seem that "judicial" positions are covered by the
general rule.

On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the
Supreme Court "shall be filled within ninety days from the occurrence thereof."
Unlike Section 15 Article VII, the duty of filling the vacancy is not specifically
imposed on the President; hence, it may be inferred that it is a duty shared by the
Judicial and Bar Council and the President.

Now, in view of the general prohibition in the first-quoted provision, how is the
requirement of filling in the Court within ninety days to be construed? One
interpretation that immediately suggests itself is that Section 4 (1), Article VIII is a
general provision while Section 15, Article VII is a particular one; that is to say,
normally, when there are no presidential elections — which after all, occur only
every six years — Section 4 (1), Article VIII shall apply: vacancies in the
Supreme Court shall be filled within 90 days; but when (as now) there are
presidential elections, the prohibition in Section 15, Article VII comes into play:
the President shall not make any appointments. The reason for said prohibition,
according to Fr. J. Bernas, S.J., an authority on Constitutional Law and himself a
member of the Constitutional Commission, is "(i)n order not to tie the hands of
the incoming President through midnight appointments." Another interpretation is
that put forth in the Minutes of the JBC meeting of March 9, 1998.

I must emphasize that the validity of any appointment to the Supreme Court at
this time hinges on the correct interpretation of the foregoing sections of the
Constitution. On account of the importance of the question, I consulted the Court
about it but, as I stated in my letter of May 6, 1998, "it declined to take any
position, since obviously there had not been enough time to delivarate on the
same ** (although it) did agree that further study wass necessary **.

Since the question has actually come up, and its importance cannot be gainsaid,
and it is the Court that is empowered under the Constitution to make an
authoritative interpretation of its (provisions) or of those of any other law. I
believe that the Court may now perhaps consider the issue ripe for determination
and come to grips with it, to avoid any possible polemics concerning the matter.
However the Court resolves the issue, no serious prejudice will be done. Should
the Court rule that the President is indeed prohibited to make appointments in a
presidential election year, then any appointment Attempted within the proscribed
period would be void anyway. If the Court should adjudge that the ban has no
application to appointments to the Supreme Court, the JBC may submit
nominations and the President may make the appointment forthwith upon such
adjudgment.

The matter is a delicate one, quite obviously, and must thus be dealt with with
utmost circumspection, to avoid any question regarding the validity of an
appointment to the Court at this time, or any accusation of "midnight"
appointments or rash hasty action on the part of the JBC or the President

In view thereof, and upon the advice and consent of the Members of the Court, I
am requesting the regular Members of the Judicial Bar Council to defer action on
the matter until further device by the Court. I earnestly make the same request of
you, Your Excellency. I assure you, however that as befits a matter in which the
Chief Executive has evinced much interest, my colleagues and I will give it
preferential and expeditious attention and consideration. To this end, I intend to
convene the Court by next week, at the latest.

On May 8, 1998, again on the insistence of the regular Members of the JBC,
another meeting was held at which were present the Chief Justice, the Secretary
of Justice and the three regular, Members above mentioned, as well as Justices
Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S.
Puno, Jose C. Vitug, Santiago M. Kapunan, Vicente V. Mendoza, Artemio V.
Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P.
Purisima. The meeting closed with a resolution that "the constitutional
provisions ** (in question) be referred to the Supreme Court En Bancfor
appropriate action, together with the request that the Supreme Court consider
that the ninety-day period stated in Section 4 (1), Article VIII be suspended or
interrupted in view of the peculiar circumstances. **.

On May 12, 1998, the Chief Justice received from Malacañang the appointments
of two (2) Judges of the Regional Trial Court mentioned above. This places on
the Chief Justice the obligation of acting thereon: i.e., transmitting the
appointments to the appointees so that they might take their oaths and assume
the duties of their office. The trouble is that in doing so, the Chief Justice runs the
risk of acting in a manner inconsistent with the Constitution, for these
appointments appear prima facie, at least, to be expressly prohibited by Section
15, Article VII of the Charter. This circumstance, and the referral of the
constitutional question to the Court in virtue of the Resolution of May 8,
1998, supra operate to raise a justiciable issue before the Court, an issue of
sufficient importance to warrant consideration and adjudication on the merits.

Accordingly, the Court Resolved to (1) CONSIDER the case at bar an

administrative matter and cause it to be appropriately docketed: (2) to DIRECT
the Clerk of Court to immediately serve copies of this Resolution on (a) the Office
of the President, (b) the Office of the Solicitor General. (c) Hon. Mateo A.
Valenzuela, and (d) Hon. Placido B. Vallarta (at their addresses recorded in the
Judicial and Bar Council); and (3) to REQUIRE the Office of the President, the
 Office of the Solicitor General, Hon. Mateo A. Valenzuela, and Hon. Placido B.
Vallarta to file their comments on this Resolution within fifteen (15) days from
notice thereof.

The Court further Resolved that (1) pending the foregoing proceedings and the
deliberation by the Court on the matter, and until further orders, no action be
taken on the appointments of Hon. Valenzuela and Hon. Vallarta which in the
meantime shall be held in abeyance and not given any effect and said
appointees shall refrain from taking their oath of office; and that (2) exercising its
power of supervision over the Judicial and Bar Council, said Council and its ex
officio and regular Members herein mentioned be INSTRUCTED, as they are
herby INSTRUCTED, to defer all action on the matter of nominations to fill up the
lone vacancy in the Supreme Court or any other vacancy until further orders.

SO ORDERED.

II The Relevant Pleadings

In compliance with the foregoing Resolution, the following pleadings and other documents were
filed; to wit:

1) the manifestation dated May 28, 1998 of Hon. Mateo

A.Valenzuela in compliance with the Resolution of May 14, 1998;

2) the letter dated June 1, 1998 of Hon. Placido B. Vallarta in

compliance with the same Resolution;

3) the "Comments" of Hon. Valenzuela dated May 25, 1998;

4) his "Addendum to Comments" dated June 8, 1998;

5) his "Explanation" dated June 8, 1998;

6) the letter of Hon. Vallarta dated June 8, 1998;

7) his letter dated June 16, 1998;

8) the "Explanation" of Hon.Valenzuela dated July 17, 1998: and

9) the "Comment" of the Office of the Solicitor General dated

August 5, 1998.

A. Valenzuela's Assumption of Duty

as Judge on May 14, 1998

In his Manifestation dated May 28, 1998, Judge Valenzuela alleged inter alia :
 ** that on May 14, 1998, he took his Oath of Office as Judge, RTC Branch 62,
Bago City, before Hon. Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod
City, pursuant to the Appointment dated March 30, 1998, (and) he also, reported
for duty as such before said RTC Branch 62, Bago City ** (and that he did so)
"faultless!y," ** without knowledge of the on-going deliberations on the matter.

At that time, the originals of the appointments of Messrs. Valenzuela and Vallarta, dated March
30, 1998 — addressed to them "Thru: the Chief Justice, Supreme Court of the Philippines,
Manila, and which had been sent to and received by the Chief Justice on May 12, 19982 —
were still in the latter's Office, and had not been transmitted to them precisely because of the
serious issue concerning the validily of their appointments. Indeed, one of the directives in the
Resolution of May 14, 1998 was that "pending ** deliberatibn by the Court on the matter, and
until further orders, no action be taken on the appointments ** which in the meantime shall be
held in abeyance and not given any effect **." For this reason, by Resolution dated June 23,
1998, the Court required Valenzuela to EXPLAIN by what authority he had taken his oath on
May 14, 1998 as Judge of Branch 62 of the RTC at Bago City. In his "Explanation" dated July
17, 1998. Valenzuela stated that he did so because on May 7, 1998 he "received from
Malacañang copy of his appointment **" which contained the following direction: "By virtue
hereof, you may qualify and enter upon the performance of the duties of the office **."

The Court then deliberated on the pleadings and documents above mentioned, in relation to the
facts and circumstances on record and thereafter Resolved to promulgate the following opinion.

III. The Relevant Constitutional Provisions

The provisons of the Constitution material to the inquiry at bar read as follows:3

Sec. 15, Article VII:

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

Sec. 4 (1), Article VIII :

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

Sec. 9, Article VIII :

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

For the lower courts, the President shall issue the appointments within ninety
days from the submission of the list.
IV. The Court's View

The Court's view is that during the period stated in Section 15. Article VII of the Constitution —
"(t)wo months immediatey before the next presidential elections and up to the end his term" —
the President is neither required to make appointments to the courts nor allowed to do so; and
that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill
vacancies in the courts within the time frames provided therein unless prohibited by Section 15
of Article VII. It is not noteworthy that the prohibition on appointments comes into effect only
once every six years.

V Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the
original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum
wanted to increase the number of Justices to fifteen. He also wished to ensure that that number
would not be reduced for any appreciable length of time (even only temporarily), and to this end
proposed that any vacancy. "must be filled within two months from the date that the vacancy
occurs." His proposal to have a 15-member Court was not initially adopted. Persisting however
in his desire to make certain that the size of the Court would not be decreased for any
substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent
the Court's membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME
SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later
agreed to suggestions to make the period three, instead of two, months. As thus amended, the
proposal was approved.4 As it turned out; however, the Commission ultimately agreed on a
fifteen-member Court.5 Thus it was that the section fixing the composition of the Supreme Court
came to include a command to fill up any vacancy therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that any "vacany shall be filled
within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition Section 15, Article VII, which is couched in stronger negative language — that "a
President or Acting President shall not make appointments. . ."

The Commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a
Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph:
WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of
nominees by the Judicial and Bar Council to the President).6 Davide stated that his purpose was
to provide a "uniform rule" for lower courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the President in view of the possibility that
the President might reject the list submitted to him and the JBC thus need more time to submit a
new one.7

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

VI. Analysis of Provisions

Now, it appears that Section 15, Article VI is directed against two types of appointments: (1)
those made for buying votes and (2) those made for partisan considerations. The first refers to
those appointments made within the two months preceding a Presidential election and are
similar to those which are declared elections offenses in the Omnibus Election Code, viz.:8

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. — (1) Any person who gives, offer or promises
money or anything of value gives or promises any office or employment,
franchise or grant, public or private, or makes or offers to make an expenditure,
directly or indirectly, or cause an expenditure to be made to any person,
association, corporation, entity, or community in order to induce anyone or the
public in general to vote for or against any candidate or withhold his vote in the
election, or to vote for or against any aspirant for the nomination or choice of a
candidate in a convention or similar selection process of a political party.

xxx xxx xxx

(g) Appointment of new employees, creation of new position, promotion, or giving

salary increases. — During the period of forty-five days before a regular election
and thirty days before a regular election and thirty days before a special election,
(1) any head, official or appointing officer of a government office, agency or
instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether
provisional, temporary, or casual, or creates and fills any new position, except
upon prior authority of the Commission. The Commission shall not grant the
authority sought unless, it is satisfied that the position to be filled is essential to
the proper functioning of the office or agency concerned, and that the position
shall not be filled in a manner that mayinfluence the election.

The second type of appointments prohibited by Section 15, Article VII consist of the so-called
"midnight" appointments. In Aytona v. Castillo,9 it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated
in his bid for reelection, became no more than a "caretaker" administrator whose duty was to
"prepare for the transfer of authority to the incoming President." Said the Court:

The filling up of vacancies in important positions, if few, and so spaced as to

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

As indicated, the Court recognized that there may well be appointments to important positions
which have to be made even after the proclamations of a new President. Such appointments, so
long as they are "few and so spaced as to afford some assurance of deliberate action and
careful consideration of the need for the appointment and the appointee's qualifications,"10 can
be made by the outgoing President. Accordingly, several appointments made by President
Garcia, which were shown to have been well considered, were upheld.11

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

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

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

To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should
prevail over Section 15 of Article VII, because they may be considered later expressions of the
people when they adopted the Constitution, it suffices to point out that the Constitution must be
construed in its entirely as one, single instrument.

To be sure, instances may be conceived of the imperative need for an appointment, during the
period of the ban, not only in the executive but also in the Supreme Court. This may be the case
should the membership of the Court be so reduced that it will have no quorum, or should the
voting on a particularly important question requiring expeditious resolution be evenly divided.
Such a case, however, is covered by neither Section 15 of Article VII nor Sections 4 (1) and 9 of
Article VIII.12

VII. A Last Word

A final word, concerning Valenzuela's oath-taking and "reporting for duty" as Presiding Judge of
RTC Branch 62, Bago City, on May 14, 1998.13 Standing practice is for the originals of all
apointments to the Judiciary — from the highest to the lowest court — to be sent by the Office of
the President to the Office of the Chief Justice, the appointments being addressed to the
appointee's "Thru: the Chief Justice, Supreme Court Manila." It is the Clerk of Court of the
Supreme Court in the Chief Justice's behalf, who thereafter advises the individual appointee's of
their appointments and also of the date of commencement of the pre-requisite orientation
seminar to be conducted by the Philippine Judicial Academy for new Judges. The rationale of
this procedure is salutary and readily precieved. The procedure ensures the authenticity of the
appointments, enables the Court, particularly the Office of the Court Administrator, to enter in
the appropriate records all appointments to the Judiciary as well as other relevant data such as
the dates of qualification, the completion by the appointee's of their pre-requisite orientation
seminars, their assumption of duty, etc.

The procedure also precludes the possibility, however remote of Judges acting on spurious or
otherwise defective appointments. It is obviously not advisable, to say the least, for a Judge to
take his oath of office and enter upon the performance of his duties on the basis alone of a
document purporting to be a copy of his appointment coming from Malacañang, the authenticity
of which has not been verified from the latter or the Office of the Court Administrator; or
otherwise to begin performing his duties as Judge without the Court Administrator knowing of
that fact. The undesirability of such a situation is illustrated by the case of Judge Valenzuela
who acted, with no little impatience or rashness, on a mere copy of his supposed appointment
without having received any formal notice from this Court and without verifying the authenticity
of the appointment or the propriety of taking oath on the basis thereof. Had he bothered to
inquire about his appointment from the Court Administrator's Office, he would havebeen
informed of the question concerning it and the Court's injunction.

VIII. Conclusion

The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the
Office of the Chief Justice on May 14, 998) were unquestionably made during the period of the
ban. Consequently, they come within the operation of the first prohibition relating to
appointments which are considered to be for the purpose of buying votes or influencing the
election. While the filling of vacancies in the judiciary is undoubtedly in the public interest, there
is no showing in this case of any compelling reason to justify the making of the appointments
during the period of the ban. On the other hand, as already discussed, there is a strong public
policy for the prohibition against appointments made within the period of the ban.

In view of the foregoing considerations, the Court Resolved to DECLARE VOID the
appointments signed by His Excellency the President under date of March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively and to order them,
forthwith on being served with notice of this decision, to forthwith CEASE AND DESIST from
discharging the office of Judge of the Courts to which they were respectively appointed on
March 30, 1998. This without prejudice to their being considered anew by the Judicial and Bar
Council for re-nomination to the same positons.

IT IS SO ORDERED.

Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza Panganiban,
Quisumbing, Purisima and Pardo, JJ., concur.

Mendoza, J., is on leave.

Footnotes

1 Section 8, Article VIII, Constitution.

2 N.B. The letter of the JBC dated March 3, 1998, containing the nominations of
Judge Valenzuela and two (2) others to RTC Branch 62, Bago City, together with
nominations of other persons to four (4) other courts, was received by the Office
 of the President on March 20, 1998. The JBC's nominations of Judge Vallarta
and three others to RTC Branch 24, Cabanatuan City, and of others to MeTC
Branch 56, Malabon, are contained in its letter dated February 24, 1998, also
received on March 20, 1998 at Malacañang. Of those thus nominated, only
Messrs. Valenzuela and Vallarta were appointed by the President.

3 Emphasis supplied.

4 RECORD OF THE CONSTITUTIONAL COMMISSION (hereafter cited as

RECORD) pp. 479-482 (Session of July 14, 1986).

5 RECORD, pp. 632-634 (Session of Oct. 8, 1986).

6 1 RECORD, pp. 489-490 (Session of July 14, 1986).

7 Id. at p. 445.

8 Emphasis supplied.

9 114 Phil. vii (1962).

10 Id at x-xi.

11 See Merrera v. Liwag, 18 Phil. 1038 (1963); Jorge v. Mayor, 119 Phil. 595
(1964); Quimsing v. Tajanglangit, 119 Phil. 729 (1964).

12 See Sec. 9, second paragraph, of R.A. No. 296 (The Judiciary Act of 1948), in
relation to SEC. 47 of B.P. No. 129 (The Judiciary Reorganization Act of
1980): cf: Rilloranza v. Vargas, 80 Phil. 297 (1948).

13 See footnote 2, supra.

Case 6: De Castro v JBC

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 191002 April 20, 2010

ARTURO M. DE CASTRO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -
ARROYO, Respondents.

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

G.R. No. 191032

JAIME N. SORIANO, Petitioner,

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

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

G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

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

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

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

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO

APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,

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

G.R. No. 191149

JOHN G. PERALTA, Petitioner,

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

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

G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B.
INTING (IBPGovernor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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

G.R. No. 191420

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

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

RESOLUTION

BERSAMIN, J.:

On March 17, 2010, the Court promulgated its decision, holding:

WHEREFORE, the Court:

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

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

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

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

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

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

SO ORDERED.

Motions for Reconsideration

Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting
(G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors
Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S.
Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V.
Tan, Jr.; the Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano;
Mitchell John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.), filed
their respective motions for reconsideration. Also filing a motion for reconsideration was Senator
Aquilino Q. Pimentel, Jr., whose belated intervention was allowed.

We summarize the arguments and submissions of the various motions for reconsideration, in
the aforegiven order:

Soriano

1. The Court has not squarely ruled upon or addressed the issue of whether or not the
power to designate the Chief Justice belonged to the Supreme Court en banc.

2. The Mendoza petition should have been dismissed, because it sought a mere
declaratory judgment and did not involve a justiciable controversy.

3. All Justices of the Court should participate in the next deliberations. The mere fact that
the Chief Justice sits as ex officio head of the JBC should not prevail over the more
compelling state interest for him to participate as a Member of the Court.

Tolentino and Inting

1. A plain reading of Section 15, Article VII does not lead to an interpretation that
exempts judicial appointments from the express ban on midnight appointments.

2. In excluding the Judiciary from the ban, the Court has made distinctions and has
created exemptions when none exists.

3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because
it limits an executive, not a judicial, power.

4. Resort to the deliberations of the Constitutional Commission is superfluous, and is

powerless to vary the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice Regalado.
Thereby, the Court has raised the Constitution to the level of a venerated text whose
intent can only be divined by its framers as to be outside the realm of understanding by
the sovereign people that ratified it.

6. Valenzuela should not be reversed.

7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question
the illegal composition of the JBC.

Philippine Bar Association

1. The Court’s strained interpretation of the Constitution violates the basic principle that
the Court should not formulate a rule of constitutional law broader than what is required
by the precise facts of the case.

2. Considering that Section 15, Article VII is clear and straightforward, the only duty of
the Court is to apply it. The provision expressly and clearly provides a general limitation
on the appointing power of the President in prohibiting the appointment of any person to
any position in the Government without any qualification and distinction.

3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against
midnight appointments.

4. The Constitution has installed two constitutional safeguards:- the prohibition against
midnight appointments, and the creation of the JBC. It is not within the authority of the
Court to prefer one over the other, for the Court’s duty is to apply the safeguards as they
are, not as the Court likes them to be.

5. The Court has erred in failing to apply the basic principles of statutory construction in
interpreting the Constitution.

6. The Court has erred in relying heavily on the title, chapter or section headings, despite
precedents on statutory construction holding that such headings carried very little
weight.

7. The Constitution has provided a general rule on midnight appointments, and the only
exception is that on temporary appointments to executive positions.

8. The Court has erred in directing the JBC to resume the proceedings for the
nomination of the candidates to fill the vacancy to be created by the compulsory
retirement of Chief Justice Puno with a view to submitting the list of nominees for Chief
Justice to President Arroyo on or before May 17, 2010. The Constitution grants the Court
only the power of supervision over the JBC; hence, the Court cannot tell the JBC what to
do, how to do it, or when to do it, especially in the absence of a real and justiciable case
assailing any specific action or inaction of the JBC.

9. The Court has engaged in rendering an advisory opinion and has indulged in
speculations.
10. The constitutional ban on appointments being already in effect, the Court’s directing
the JBC to comply with the decision constitutes a culpable violation of the Constitution
and the commission of an election offense.

11. The Court cannot reverse on the basis of a secondary authority a doctrine
unanimously formulated by the Court en banc.

12. The practice has been for the most senior Justice to act as Chief Justice whenever
the incumbent is indisposed. Thus, the appointment of the successor Chief Justice is not
urgently necessary.

13. The principal purpose for the ban on midnight appointments is to arrest any attempt
to prolong the outgoing President’s powers by means of proxies. The attempt of the
incumbent President to appoint the next Chief Justice is undeniably intended to
perpetuate her power beyond her term of office.

IBP-Davao del Sur, et al.

1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to
appointments to the Judiciary. Hence, no cogent reason exists to warrant the reversal of
the Valenzuela pronouncement.

2. Section 16, Article VII of the Constitution provides for presidential appointments to the
Constitutional Commissions and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments are vested in him in this
Constitution" is enough proof that the limitation on the appointing power of the President
extends to appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16
of Article VII apply to all presidential appointments in the Executive and Judicial
Branches of the Government.

3. There is no evidence that the framers of the Constitution abhorred the idea of an
Acting Chief Justice in all cases.

Lim

1. There is no justiciable controversy that warrants the Court’s exercise of judicial

review.

2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy
in the Court and to other appointments to the Judiciary.

3. The creation of the JBC does not justify the removal of the safeguard under Section
15 of Article VII against midnight appointments in the Judiciary.

Corvera

1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on
midnight appointments is based on an interpretation beyond the plain and unequivocal
language of the Constitution.
2. The intent of the ban on midnight appointments is to cover appointments in both the
Executive and Judicial Departments. The application of the principle of verba legis
(ordinary meaning) would have obviated dwelling on the organization and arrangement
of the provisions of the Constitution. If there is any ambiguity in Section 15, Article VII,
the intent behind the provision, which is to prevent political partisanship in all branches
of the Government, should have controlled.

3. A plain reading is preferred to a contorted and strained interpretation based on

compartmentalization and physical arrangement, especially considering that the
Constitution must be interpreted as a whole.

4. Resort to the deliberations or to the personal interpretation of the framers of the

Constitution should yield to the plain and unequivocal language of the Constitution.

5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and
in accord with the Constitution.

BAYAN, et al.

1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition
did not present a justiciable controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice was not yet vacant and that
the JBC itself has yet to decide whether or not to submit a list of nominees to the
President.

2. The collective wisdom of Valenzuela Court is more important and compelling than the
opinion of Justice Regalado.

3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the
Court has violated the principle of ut magis valeat quam pereat (which mandates that the
Constitution should be interpreted as a whole, such that any conflicting provisions are to
be harmonized as to fully give effect to all). There is no conflict between the provisions;
they complement each other.

4. The form and structure of the Constitution’s titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear and plain language
of Section 15, Article VII precludes interpretation.

Tan, Jr.

1. The factual antecedents do not present an actual case or controversy. The clash of
legal rights and interests in the present case are merely anticipated. Even if it is
anticipated with certainty, no actual vacancy in the position of the Chief Justice has yet
occurred.

2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the
Judiciary runs in conflict with long standing principles and doctrines of statutory
construction. The provision admits only one exception, temporary appointments in the
Executive Department. Thus, the Court should not distinguish, because the law itself
makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution clearly
intended the ban on midnight appointments to cover the members of the Judiciary.
Hence, giving more weight to the opinion of Justice Regalado to reverse the en banc
decision in Valenzuela was unwarranted.

4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day
mandate to fill any vacancy lasts until August 15, 2010, or a month and a half after the
end of the ban. The next President has roughly the same time of 45 days as the
incumbent President (i.e., 44 days) within which to scrutinize and study the qualifications
of the next Chief Justice. Thus, the JBC has more than enough opportunity to examine
the nominees without haste and political uncertainty.1avvphi1

5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article
VIII is suspended.

6. There is no basis to direct the JBC to submit the list of nominees on or before May 17,
2010. The directive to the JBC sanctions a culpable violation of the Constitution and
constitutes an election offense.

7. There is no pressing necessity for the appointment of a Chief Justice, because the
Court sits en banc, even when it acts as the sole judge of all contests relative to the
election, returns and qualifications of the President and Vice-President. Fourteen other
Members of the Court can validly comprise the Presidential Electoral Tribunal.

WTLOP

1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees
for Chief Justice to the President on or before May 17, 2010, and to continue its
proceedings for the nomination of the candidates, because it granted a relief not prayed
for; imposed on the JBC a deadline not provided by law or the Constitution; exercised
control instead of mere supervision over the JBC; and lacked sufficient votes to reverse
Valenzuela.

2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of
statutory construction to the effect that the literal meaning of the law must be applied
when it is clear and unambiguous; and that we should not distinguish where the law
does not distinguish.

3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary
Act of 1948 already provides that the power and duties of the office devolve on the most
senior Associate Justice in case of a vacancy in the office of the Chief Justice.

Ubano

1. The language of Section 15, Article VII, being clear and unequivocal, needs no
interpretation

2. The Constitution must be construed in its entirety, not by resort to the organization
and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the
pertinent records of the Constitutional Commission are clear and unambiguous.

4. The Court has erred in ordering the JBC to submit the list of nominees to the
President by May 17, 2010 at the latest, because no specific law requires the JBC to
submit the list of nominees even before the vacancy has occurred.

Boiser

1. Under Section 15, Article VII, the only exemption from the ban on midnight
appointments is the temporary appointment to an executive position. The limitation is in
keeping with the clear intent of the framers of the Constitution to place a restriction on
the power of the outgoing Chief Executive to make appointments.

2. To exempt the appointment of the next Chief Justice from the ban on midnight
appointments makes the appointee beholden to the outgoing Chief Executive, and
compromises the independence of the Chief Justice by having the outgoing President be
continually influential.

3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the
principle of stare decisis.

Bello, et al.

1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing
President is prohibited from making within the prescribed period. Plain textual reading
and the records of the Constitutional Commission support the view that the ban on
midnight appointments extends to judicial appointments.

2. Supervision of the JBC by the Court involves oversight. The subordinate subject to
oversight must first act not in accord with prescribed rules before the act can be redone
to conform to the prescribed rules.

3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition
did not present a justiciable controversy.

Pimentel

1. Any constitutional interpretative changes must be reasonable, rational, and

conformable to the general intent of the Constitution as a limitation to the powers of
Government and as a bastion for the protection of the rights of the people. Thus, in
harmonizing seemingly conflicting provisions of the Constitution, the interpretation
should always be one that protects the citizenry from an ever expanding grant of
authority to its representatives.

2. The decision expands the constitutional powers of the President in a manner totally
repugnant to republican constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
 Comments

The Office of the Solicitor General (OSG) and the JBC separately represent in their respective
comments, thus:

OSG

1. The JBC may be compelled to submit to the President a short list of its nominees for
the position of Chief Justice.

2. The incumbent President has the power to appoint the next Chief Justice.

3. Section 15, Article VII does not apply to the Judiciary.

4. The principles of constitutional construction favor the exemption of the Judiciary from
the ban on midnight appointments.1awph!1

5. The Court has the duty to consider and resolve all issues raised by the parties as well
as other related matters.

JBC

1. The consolidated petitions should have been dismissed for prematurity, because the
JBC has not yet decided at the time the petitions were filed whether the incumbent
President has the power to appoint the new Chief Justice, and because the JBC, having
yet to interview the candidates, has not submitted a short list to the President.

2. The statement in the decision that there is a doubt on whether a JBC short list is
necessary for the President to appoint a Chief Justice should be struck down as bereft of
constitutional and legal basis. The statement undermines the independence of the JBC.

3. The JBC will abide by the final decision of the Court, but in accord with its
constitutional mandate and its implementing rules and regulations.

For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if
the OSG and the JBC were the only ones the Court has required to do so. He states that the
motions for reconsideration were directed at the administrative matter he initiated and which the
Court resolved. His comment asserts:

1. The grounds of the motions for reconsideration were already resolved by the decision
and the separate opinion.

2. The administrative matter he brought invoked the Court’s power of supervision over
the JBC as provided by Section 8(1), Article VIII of the Constitution, as distinguished
from the Court’s adjudicatory power under Section 1, Article VIII. In the former, the
requisites for judicial review are not required, which was why Valenzuela was docketed
as an administrative matter. Considering that the JBC itself has yet to take a position on
when to submit the short list to the proper appointing authority, it has effectively solicited
the exercise by the Court of its power of supervision over the JBC.
 3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend
the Constitution.

4. The portions of the deliberations of the Constitutional Commission quoted in the

dissent of Justice Carpio Morales, as well as in some of the motions for reconsideration
do not refer to either Section 15, Article VII or Section 4(1), Article VIII, but to Section 13,
Article VII (on nepotism).

Ruling

We deny the motions for reconsideration for lack of merit, for all the matters being thereby
raised and argued, not being new, have all been resolved by the decision of March 17, 2010.

Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and
emphasis.

First: Most of the movants contend that the principle of stare decisis is controlling, and
accordingly insist that the Court has erred in disobeying or abandoning Valenzuela.1

The contention has no basis.

Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to
adhere to precedent and not to unsettle things that are settled. It simply means that a principle
underlying the decision in one case is deemed of imperative authority, controlling the decisions
of like cases in the same court and in lower courts within the same jurisdiction, unless and until
the decision in question is reversed or overruled by a court of competent authority. The
decisions relied upon as precedents are commonly those of appellate courts, because the
decisions of the trial courts may be appealed to higher courts and for that reason are probably
not the best evidence of the rules of law laid down. 2

Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.3 In a hierarchical judicial system like ours, the decisions of
the higher courts bind the lower courts, but the courts of co-ordinate authority do not bind each
other. The one highest court does not bind itself, being invested with the innate authority to rule
according to its best lights.4

The Court, as the highest court of the land, may be guided but is not controlled by precedent.
Thus, the Court, especially with a new membership, is not obliged to follow blindly a particular
decision that it determines, after re-examination, to call for a rectification.5 The adherence to
precedents is strict and rigid in a common-law setting like the United Kingdom, where judges
make law as binding as an Act of Parliament.6 But ours is not a common-law system; hence,
judicial precedents are not always strictly and rigidly followed. A judicial pronouncement in an
earlier decision may be followed as a precedent in a subsequent case only when its reasoning
and justification are relevant, and the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of the precedent is for the sake of
convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or
reversed, and that its wisdom should guide, if not control, the Court in this case is, therefore,
devoid of rationality and foundation. They seem to conveniently forget that the Constitution itself
recognizes the innate authority of the Court en banc to modify or reverse a doctrine or principle
of law laid down in any decision rendered en banc or in division.7

Second: Some intervenors are grossly misleading the public by their insistence that the
Constitutional Commission extended to the Judiciary the ban on presidential appointments
during the period stated in Section 15, Article VII.

The deliberations that the dissent of Justice Carpio Morales quoted from the records of the
Constitutional Commission did not concern either Section 15, Article VII or Section 4(1), Article
VIII, but only Section 13, Article VII, a provision on nepotism. The records of the Constitutional
Commission show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and
justices related to the President within the fourth civil degree of consanguinity or affinity among
the persons whom the President might not appoint during his or her tenure. In the end, however,
Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in Section 13, Article
VII "(t)o avoid any further complication,"8 such that the final version of the second paragraph of
Section 13, Article VII even completely omits any reference to the Judiciary, to wit:

Section 13. xxx

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen
or heads of bureaus or offices, including government-owned or controlled corporations and their
subsidiaries.

Last: The movants take the majority to task for holding that Section 15, Article VII does not
apply to appointments in the Judiciary. They aver that the Court either ignored or refused to
apply many principles of statutory construction.

The movants gravely err in their posture, and are themselves apparently contravening their
avowed reliance on the principles of statutory construction.

For one, the movants, disregarding the absence from Section 15, Article VII of the express
extension of the ban on appointments to the Judiciary, insist that the ban applied to the
Judiciary under the principle of verba legis. That is self-contradiction at its worst.

Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section
9, both of Article VIII, the express applicability of the ban under Section 15, Article VII during the
period provided therein, despite the silence of said provisions thereon. Yet, construction cannot
supply the omission, for doing so would generally constitute an encroachment upon the field of
the Constitutional Commission. Rather, Section 4(1) and Section 9 should be left as they are,
given that their meaning is clear and explicit, and no words can be interpolated in
them.9Interpolation of words is unnecessary, because the law is more than likely to fail to
express the legislative intent with the interpolation. In other words, the addition of new words
may alter the thought intended to be conveyed. And, even where the meaning of the law is clear
and sensible, either with or without the omitted word or words, interpolation is improper,
because the primary source of the legislative intent is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:

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

We cannot permit the meaning of the Constitution to be stretched to any unintended point in
order to suit the purposes of any quarter.

Final Word

It has been insinuated as part of the polemics attendant to the controversy we are resolving that
because all the Members of the present Court were appointed by the incumbent President, a
majority of them are now granting to her the authority to appoint the successor of the retiring
Chief Justice.

The insinuation is misguided and utterly unfair.

The Members of the Court vote on the sole basis of their conscience and the merits of the
issues. Any claim to the contrary proceeds from malice and condescension. Neither the
outgoing President nor the present Members of the Court had arranged the current situation to
happen and to evolve as it has. None of the Members of the Court could have prevented the
Members composing the Court when she assumed the Presidency about a decade ago from
retiring during her prolonged term and tenure, for their retirements were mandatory. Yet, she is
now left with an imperative duty under the Constitution to fill up the vacancies created by such
inexorable retirements within 90 days from their occurrence. Her official duty she must comply
with. So must we ours who are tasked by the Constitution to settle the controversy.

ACCORDINGLY, the motions for reconsideration are denied with finality.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice
 CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 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.

REYNATO S. PUNO
Chief Justice

Footnotes

1
In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of
Branch 24, Cabanatuan City, respectively, A.M. No. 98-5-01-SC, November 9, 1998,
298 SCRA 408.

2
Price & Bitner, Effective Legal Research, Little, Brown & Co., New York (1962), § 9.7.

3
Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA 247

4
E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.

5
Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September 5, 1996,
261 SCRA 464.
 6
See Calabresi, A Common Law for the Age of Statutes, Harvard University Press, p. 4
(1982) and endnote 12 of the page, which essentially recounts that the strict application
of the doctrine of stare decisis is true only in a common-law jurisdiction like England
(citing Wise, The Doctrine of Stare Decisis, 21 Wayne Law Review, 1043, 1046-1047
(1975). Calabresi recalls that the English House of Lords decided in 1898 (London
Tramways Co. v. London County Council, A.C. 375) that they could not alter precedents
laid down by the House of Lords acting as the supreme court in previous cases, but that
such precedents could only be altered by an Act of Parliament, for to do otherwise would
mean that the courts would usurp legislative function; he mentions that in 1966, Lord
Chancellor Gardiner announced in a Practice Statement a kind of general memorandum
from the court that while: "Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the law," they "nevertheless
recognize that too rigid adherence to precedent may lead to injustice in a particular case
and also unduly restrict the proper development of the law. They propose, therefore, to
modify their present practice and, while treating former decisions of this House as
normally binding, to depart from a previous decision when it appears right to do so."
(Calabresi cites Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare
Decisis Falls, 80 Harvard Law Review, 797 (1967).

7
Section 4 (2), Article VIII, provides:

xxx

(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case,
without the concurrence of at least three of such Members. When the required
number is not obtained, the case shall be decided en banc; Provided, that no
doctrine or principle of law laid down by the court in a decision rendered en banc
or in division may be modified or reversed except by the court sitting en banc.

8
Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44. pp.
542-543.

9
Smith v. State, 66 Md. 215, 7 Atl. 49.

10
State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO MORALES, J.:

No compelling reason exists for the Court to deny a reconsideration of the assailed Decision.
The various motions for reconsideration raise hollering substantial arguments and legitimately
nagging questions which the Court must meet head on.

If this Court is to deserve or preserve its revered place not just in the hierarchy but also in
history, passion for reason demands the issuance of an extended and extensive resolution that
confronts the ramifications and repercussions of its assailed Decision. Only then can it offer an
illumination that any self-respecting student of the law clamors and any adherent of the law
deserves. Otherwise, it takes the risk of reeking of an objectionable air of supreme judicial
arrogance.

It is thus imperative to settle the following issues and concerns:

Whether the incumbent President is constitutionally proscribed from appointing the successor of
Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00
noon of June 30, 2010

1. In interpreting the subject constitutional provisions, the Decision disregarded

established canons of statutory construction. Without explaining the inapplicability of
each of the relevant rules, the Decision immediately placed premium on the
arrangement and ordering of provisions, one of the weakest tools of construction, to
arrive at its conclusion.

2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not firmly
rest on ConCom deliberations, yet it did not offer to cite a material ConCom deliberation.
It instead opted to rely on the memory of Justice Florenz Regalado which incidentally
mentioned only the "Court of Appeals." The Decision’s conclusion must rest on the
strength of its own favorable Concom deliberation, none of which to date has been cited.

3. Instead of choosing which constitutional provision carves out an exception from the
other provision, the most legally feasible interpretation (in the limited cases of temporary
physical or legal impossibility of compliance, as expounded in my Dissenting Opinion) is
to consider the appointments ban or other substantial obstacle as a temporary
impossibility which excuses or releases the constitutional obligation of the Office of the
President for the duration of the ban or obstacle.

In view of the temporary nature of the circumstance causing the impossibility of performance,
the outgoing President is released from non-fulfillment of the obligation to appoint, and the duty
devolves upon the new President. The delay in the fulfillment of the obligation becomes
excusable, since the law cannot exact compliance with what is impossible. The 90-day period
within which to appoint a member of the Court is thus suspended and the period could only start
or resume to run when the temporary obstacle disappears (i.e., after the period of the
appointments ban; when there is already a quorum in the JBC; or when there is already at least
three applicants).

Whether the Judicial and Bar Council is obliged to submit to the President the shortlist of
nominees for the position of Chief Justice (or Justice of this Court) on or before the occurrence
of the vacancy.
 1. The ruling in the Decision that obligates the JBC to submit the shortlist to the
President on or before the occurrence of the vacancy in the Court runs counter to the
Concom deliberations which explain that the 90-day period is allotted for both the
nomination by the JBC and the appointment by the President. In the move to increase
the period to 90 days, Commissioner Romulo stated that "[t]he sense of the Committee
is that 60 days is awfully short and that the [Judicial and Bar] Council, as well as the
President, may have difficulties with that."

2. To require the JBC to submit to the President a shortlist of nominees on or before the
occurrence of vacancy in the Court leads to preposterous results. It bears reiterating that
the requirement is absurd when, inter alia, the vacancy is occasioned by the death of a
member of the Court, in which case the JBC could never anticipate the death of a
Justice, and could never submit a list to the President on or before the occurrence of
vacancy.

3. The express allowance in the Constitution of a 90-day period of vacancy in the

membership of the Court rebuts any public policy argument on avoiding a vacuum of
even a single day without a duly appointed Chief Justice. Moreover, as pointed out in my
Dissenting Opinion, the practice of having an acting Chief Justice in the interregnum is
provided for by law, confirmed by tradition, and settled by jurisprudence to be an internal
matter.

The Resolution of the majority, in denying the present Motions for Reconsideration, failed to
rebut the foregoing crucial matters.

I, therefore, maintain my dissent and vote to GRANT the Motions for Reconsideration of the
Decision of March 17, 2010 insofar as it holds that the incumbent President is not
constitutionally proscribed from appointing the successor of Chief Justice Reynato S. Puno
upon his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010 and that
the Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for
the position of Chief Justice on or before May 17, 2010.

CONCHITA CARPIO MORALES

Associate Justice

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

BRION, J.:

The Motions for Reconsideration

After sifting through the motions for reconsideration, I found that the arguments are largely the
same arguments that we have passed upon, in one form or another, in the various petitions.
Essentially, the issues boil down to justiciability; the conflict of constitutional provisions; the
merits of the cited constitutional deliberations; and the status and effect of the
Valenzuela1 ruling. Even the motion for reconsideration of the Philippine Bar Association (G.R.
No. 191420), whose petition I did not expressly touch upon in my Separate Opinion, basically
dwells on these issues.

I have addressed most, if not all, of these issues and I submit my Separate Opinion2 as my
basic response to the motions for reconsideration, supplemented by the discussions below.

As I reflected in my Separate Opinion (which three other Justices joined),3 the election
appointment ban under Article VII, Section 15 of the Constitution should not apply to the
appointment of Members of the Supreme Court whose period for appointment is separately
provided for under Article VIII, Section 4(1). I shared this conclusion with the Court’s Decision
although our reasons differed on some points.

I diverged fully from the Decision on the question of whether we should maintain or reverse our
ruling in Valenzuela. I maintained that it is still good law; no reason exists to touch the ruling as
its main focus – the application of the election ban on the appointment of lower court judges
under Article VIII, Section 9 of the Constitution – is not even an issue in the present case and
was discussed only because the petitions incorrectly cited the ruling as authority on the issue of
the Chief Justice’s appointment. The Decision proposed to reverse Valenzuela but only secured
the support of five (5) votes, while my Separate Opinion in support of Valenzuela had four (4)
votes. Thus, on the whole, the Decision did not prevail in reversing Valenzuela, as it only had
five (5) votes in a field of 12 participating Members of the Court. Valenzuela should therefore
remain, as of the filing of this Opinion, as a valid precedent.

Acting on the present motions for reconsideration, I join the majority in denying the motions with
respect to the Chief Justice issue, although we differ in some respects on the reasons
supporting the denial. I dissent from the conclusion that the Valenzuela ruling should be
reversed. My divergence from the majority’s reasons and conclusions compels me to write this
Concurring and Dissenting Opinion.

The Basic Requisites / Justiciability

One marked difference between the Decision and my Separate Opinion is our approach on the
basic requisites/justiciability issues. The Decision apparently glossed over this aspect of the
case, while I fully explained why the De Castro4 and Peralta5 petitions should be dismissed
outright. In my view, these petitions violated the most basic requirements of their chosen
medium for review – a petition for certiorari and mandamus under Rule 65 of the Rules of Court.

The petitions commonly failed to allege that the Judicial and Bar Council (JBC) performs judicial
or quasi-judicial functions, an allegation that the petitions could not really make, since the JBC
does not really undertake these functions and, for this reason, cannot be the subject of a
petition for certiorari; hence, the petitions should be dismissed outright. They likewise failed to
facially show any failure or refusal by the JBC to undertake a constitutional duty to justify the
issuance of a writ of mandamus; they invoked judicial notice that we could not give because
there was, and is, no JBC refusal to act.6 Thus, the mandamus aspects of these petitions should
have also been dismissed outright. The ponencia, unfortunately, failed to fully discuss these
legal infirmities.
The motions for reconsideration lay major emphasis on the alleged lack of an actual case or
controversy that made the Chief Justice’s appointment a justiciable issue. They claim that the
Court cannot exercise the power of judicial review where there is no clash of legal rights and
interests or where this clash is merely anticipated, although the anticipated event shall come
with certainty.7

What the movants apparently forgot, focused as they were on their respective petitions, is that
the present case is not a single-petition case that rises or falls on the strength of that single
petition. The present case involves various petitions and interventions,8 not necessarily pulling
towards the same direction, although each one is focused on the issue of whether the election
appointment ban under Article VII, Section 15 of the Constitution should apply to the
appointment of the next Chief Justice of the Supreme Court.

Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano (G.R. No. 191032)
and Mendoza (A.M. No. 10-2-5-SC). The first two are petitions for prohibition under Section 2 of
Rule 65 of the Rules of Court.9 While they commonly share this medium of review, they differ in
their supporting reasons. The Mendoza petition, on the other hand, is totally different – it is a
petition presented as an administrative matter (A.M.) in the manner that the Valenzuela case
was an A.M. case. As I pointed out in the Separate Opinion, the Court uses the A.M. docket
designation on matters relating to its exercise of supervision over all courts and their
personnel.10 I failed to note then, but I make of record now, that court rules and regulations – the
outputs in the Court’s rulemaking function – are also docketed as A.M. cases.

That an actual case or controversy involving a clash of rights and interests exists is immediately
and patently obvious in the Tolentino and Soriano petitions. At the time the petitions were filed,
the JBC had started its six-phase nomination process that would culminate in the submission of
a list of nominees to the President of the Philippines for appointive action. Tolentino and Soriano
– lawyers and citizens with interest in the strict observance of the election ban – sought to
prohibit the JBC from continuing with this process. The JBC had started to act, without any
prodding from the Court, because of its duty to start the nomination process but was hampered
by the petitions filed and the legal questions raised that only the Supreme Court can settle with
finality.11 Thus, a clash of interests based on law existed between the petitioners and the JBC.
To state the obvious, a decision in favor of Tolentino or Soriano would result in a writ of
prohibition that would direct the JBC not to proceed with the nomination process.

The Mendoza petition cited the effect of a complete election ban on judicial appointments (in
view of the already high level of vacancies and the backlog of cases) as basis, and submitted
the question as an administrative matter that the Court, in the exercise of its supervisory
authority over the Judiciary and the JBC itself, should act upon. At the same time, it cited the
"public discourse and controversy" now taking place because of the application of the election
ban on the appointment of the Chief Justice, pointing in this regard to the very same reasons
mentioned in Valenzuela about the need to resolve the issue and avoid the recurrence of
conflict between the Executive and the Judiciary, and the need to "avoid polemics concerning
the matter."12

I recognized in the Separate Opinion that, unlike in Valenzuela where an outright defiance of the
election ban took place, no such obvious triggering event transpired in the Mendoza
petition.13 Rather, the Mendoza petition looked to the supervisory power of the Court over
judicial personnel and over the JBC as basis to secure a resolution of the election ban issue.
The JBC, at that time, had indicated its intent to look up to the Court’s supervisory power and
role as the final interpreter of the Constitution to guide it in responding to the challenges it
confronts.14 To me, this was "a point no less critical, from the point of view of supervision, than
the appointment of the two judges during the election ban period in Valenzuela."15

In making this conclusion, I pointed out in my Separate Opinion the unavoidable surrounding
realities evident from the confluence of events, namely: (1) an election to be held on May 10,
2010; (2) the retirement of the Chief Justice on May 17, 2010; (3) the lapse of the terms of the
elective officials from the President to the congressmen on June 30, 2010; (4) the delay before
the Congress can organize and send its JBC representatives; and (5) the expiration of the term
of a non-elective JBC member in July 2010.16 All these – juxtaposed with the Court’s
supervision over the JBC, the latter’s need for guidance, and the existence of an actual
controversy on the same issues bedeviling the JBC – in my view, were sufficient to save the
Mendoza petition from being a mere request for opinion or a petition for declaratory relief that
falls under the jurisdiction of the lower court. This recognition is beyond the level of what this
Court can do in handling a moot and academic case – usually, one that no longer presents a
judiciable controversy but one that can still be ruled upon at the discretion of the court when the
constitutional issue is of paramount public interest and controlling principles are needed to guide
the bench, the bar and the public.17

To be sure, this approach in recognizing when a petition is actionable is novel. An overriding

reason for this approach can be traced to the nature of the petition, as it rests on the Court’s
supervisory authority and relates to the exercise of the Court’s administrative rather than its
judicial functions (other than these two functions, the Court also has its rulemaking function
under Article VIII, Section 5(5) of the Constitution). Strictly speaking, the Mendoza petition calls
for directions from the Court in the exercise of its power of supervision over the JBC,18 not on
the basis of the power of judicial review.19 In this sense, it does not need the actual clash of
interests of the type that a judicial adjudication requires. All that must be shown is the active
need for supervision to justify the Court’s intervention as supervising authority.

Under these circumstances, the Court’s recognition of the Mendoza petition was not an undue
stretch of its constitutional powers. If the recognition is unusual at all, it is so only because of its
novelty; to my knowledge, this is the first time ever in Philippine jurisprudence that the
supervisory authority of the Court over an attached agency has been highlighted in this manner.
Novelty, per se, however, is not a ground for objection nor a mark of infirmity for as long as the
novel move is founded in law. In this case, as in the case of the writ of amparo and habeas data
that were then novel and avowedly activist in character, sufficient legal basis exists to actively
invoke the Court’s supervisory authority – granted under the Constitution, no less – as basis for
action.

To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5) provide that "A
Judicial and Bar Council is hereby created under the supervision of the Supreme Court… It may
exercise such other functions and duties as the Supreme Court may assign to it." Supervision,
as a legal concept, more often than not, is defined in relation with the concept of control.20 In
Social Justice Society v. Atienza,21 we defined "supervision" as follows:

[Supervision] means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate
officer ha[s] done in the performance of his duties and to substitute the judgment of the former
for that of the latter.

Under this definition, the Court cannot dictate on the JBC the results of its assigned task, i.e.,
who to recommend or what standards to use to determine who to recommend. It cannot even
direct the JBC on how and when to do its duty, but it can, under its power of supervision, direct
the JBC to "take such action or step as prescribed by law to make them perform their duties," if
the duties are not being performed because of JBC’s fault or inaction, or because of extraneous
factors affecting performance. Note in this regard that, constitutionally, the Court can also
assign the JBC other functions and duties – a power that suggests authority beyond what is
purely supervisory.

Where the JBC itself is at a loss on how to proceed in light of disputed constitutional provisions
that require interpretation,22 the Court is not legally out of line – as the final authority on the
interpretation of the Constitution and as the entity constitutionally-tasked to supervise the JBC –
in exercising its oversight function by clarifying the interpretation of the disputed constitutional
provision to guide the JBC. In doing this, the Court is not simply rendering a general legal
advisory; it is providing concrete and specific legal guidance to the JBC in the exercise of its
supervisory authority, after the latter has asked for assistance in this regard. That the Court
does this while concretely resolving actual controversies (the Tolentino and Soriano petitions)
on the same issue immeasurably strengthens the intrinsic correctness of the Court’s action.

It may be asked: why does the Court have to recognize the Mendoza petition when it can
resolve the conflict between Article VII, Section 15 and Article VIII, Section 4(1) through the
Tolentino and Soriano petitions?

The answer is fairly simple and can be read between the lines of the above explanation on the
relationship between the Court and the JBC. First, administrative is different from judicial
function and providing guidance to the JBC can only be appropriate in the discharge of the
Court’s administrative function. Second, the resolution of the Tolentino and Soriano petitions will
lead to rulings directly related to the underlying facts of these petitions, without clear guidelines
to the JBC on the proper parameters to observe vis-à-vis the constitutional dispute along the
lines the JBC needs. In fact, concrete guidelines addressed to the JBC in the resolution of the
Tolentino/Soriano petitions may even lead to accusations that the Court’s resolution is broader
than is required by the facts of the petitions. The Mendoza petition, because it pertains directly
to the performance of the JBC’s duty and the Court’s supervisory authority, allows the issuance
of precise guidelines that will enable the JBC to fully and seasonably comply with its
constitutional mandate.

I hasten to add that the JBC’s constitutional task is not as simple as some people think it to be.
The process of preparing and submitting a list of nominees is an arduous and time-consuming
task that cannot be done overnight. It is a six-step process lined with standards requiring the
JBC to attract the best available candidates, to examine and investigate them, to exhibit
transparency in all its actions while ensuring that these actions conform to constitutional and
statutory standards (such as the election ban on appointments), to submit the required list of
nominees on time, and to ensure as well that all these acts are politically neutral. On the time
element, the JBC list for the Supreme Court has to be submitted on or before the vacancy
occurs given the 90-day deadline that the appointing President is given in making the
appointment. The list will be submitted, not to the President as an outgoing President, nor to the
election winner as an incoming President, but to the President of the Philippines whoever he or
she may be. If the incumbent President does not act on the JBC list within the time left in her
term, the same list shall be available to the new President for him to act upon. In all these, the
Supreme Court bears the burden of overseeing that the JBC’s duty is done, unerringly and with
utmost dispatch; the Court cannot undertake this supervision in a manner consistent with the
Constitution’s expectation from the JBC unless it adopts a pro-active stance within the limits of
its supervisory authority.

The Disputed Provisions

The movants present their arguments on the main issue at several levels. Some argue that the
disputed constitutional provisions – Article VII, Section 15 and Article VIII, Section 4(1) – are
clear and speak for themselves on what the Constitution covers in banning appointments during
the election period.23 One even posits that there is no conflict because both provisions can be
given effect without one detracting against the full effectiveness of the other,24 although the
effect is to deny the sitting President the option to appoint in favor of a deferment for the
incoming President’s action. Still others, repeating their original arguments, appeal to the
principles of interpretation and latin maxims to prove their point.25

In my discussions in the Separate Opinion, I stated upfront my views on how the disputed
provisions interact with each other. Read singly and in isolation, they appear clear (this reading
applies the "plain meaning rule" that Tolentino advocates in his motion for reconsideration, as
explained below). Arrayed side by side with each other and considered in relation with the other
provisions of the Constitution, particularly its structure and underlying intents, the conflict
however becomes obvious and unavoidable.

Section 15 on its face disallows any appointment in clear negative terms ("shall not make")
without specifying the appointments covered by the prohibition.26 From this literal and isolated
reading springs the argument that no exception is provided (except that found in Section 15
itself) so that even the Judiciary is covered by the ban on appointments.

On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy
in the Court shall be filled within 90 days from its occurrence.27 In the way of Section 15, Section
4(1) is also clear and categorical and provides no exception; the appointment refers solely to the
Members of the Supreme Court and does not mention any period that would interrupt, hold or
postpone the 90-day requirement.

From this perspective, the view that no conflict exists cannot be seriously made, unless with the
mindset that one provision controls and the other should yield. Many of the petitions in fact
advocate this kind of reading, some of them openly stating that the power of appointment should
be reserved for the incoming President.28 The question, however, is whether – from the
viewpoint of strict law and devoid of the emotionalism and political partisanship that permeate
the present Philippine political environment – this kind of mindset can really be adopted in
reading and applying the Constitution.

In my view, this kind of mindset and the conclusion it inevitably leads to cannot be adopted; the
provisions of the Constitution cannot be read in isolation from what the whole contains. To be
exact, the Constitution must be read and understood as a whole, reconciling and harmonizing
apparently conflicting provisions so that all of them can be given full force and effect, 29 unless
the Constitution itself expressly states otherwise.30
Not to be forgotten in reading and understanding the Constitution are the many established
underlying constitutional principles that we have to observe and respect if we are to be true to
the Constitution. These principles – among them the principles of checks and balances and
separation of powers – are not always expressly stated in the Constitution, but no one who
believes in and who has studied the Constitution can deny that they are there and deserve
utmost attention, respect, and even priority consideration.

In establishing the structures of government, the ideal that the Constitution seeks to achieve is
one of balance among the three great departments of government – the Executive, the
Legislative and the Judiciary, with each department undertaking its constitutionally-assigned
task as a check against the exercise of power by the others, while all three departments move
forward in working for the progress of the nation. Thus, the Legislature makes the laws and is
supreme in this regard, in the way that the Executive is supreme in enforcing and administering
the law, while the Judiciary interprets both the Constitution and the law. Any provision in each of
the Articles on these three departments31 that intrudes into the other must be closely examined
if the provision affects and upsets the desired balance.

Under the division of powers, the President as Chief Executive is given the prerogative of
making appointments, subject only to the legal qualification standards, to the checks provided
by the Legislature’s Commission on Appointments (when applicable) and by the JBC for
appointments in the Judiciary, and to the Constitution’s own limitations. Conflict comes in when
the Constitution laid down Article VII, Section 15 limiting the President’s appointing power during
the election period. This limitation of power would have been all-encompassing and would, thus,
have extended to all government positions the President can fill, had the Constitution not
inserted a provision, also on appointments, in the Article on the Judiciary with respect to
appointments to the Supreme Court. This conflict gives rise to the questions: which provision
should prevail, or should both be given effect? Or should both provisions yield to a higher
concern – the need to maintain the integrity of our elections?

A holistic reading of the Constitution – a must in constitutional interpretation – dictates as a

general rule that the tasks assigned to each department and their limitations should be given full
effect to fulfill the constitutional purposes under the check and balance principle, unless the
Constitution itself expressly indicates its preference for one task, concern or standard over the
others,32 or unless this Court, in its role as interpreter of the Constitution, has spoken on the
appropriate interpretation that should be made.33

In considering the interests of the Executive and the Judiciary, a holistic approach starts from
the premise that the constitutional scheme is to grant the President the power of appointment,
subject to the limitation provided under Article VII, Section 15. At the same time, the Judiciary is
assured, without qualifications under Article VIII, Section 4(1), of the immediate appointment of
Members of the Supreme Court, i.e., within 90 days from the occurrence of the vacancy. If both
provisions would be allowed to take effect, as I believe they should, the limitation on the
appointment power of the President under Article VII, Section 15 should itself be limited by the
appointment of Members of the Court pursuant to Article VIII, Section 4(1), so that the provision
applicable to the Judiciary can be given full effect without detriment to the President’s appointing
authority. This harmonization will result in restoring to the President the full authority to appoint
Members of the Supreme Court pursuant to the combined operation of Article VII, Section 15
and Article VIII, Section 4(1).
Viewed in this light, there is essentially no conflict, in terms of the authority to appoint, between
the Executive and Judiciary; the President would effectively be allowed to exercise the
Executive’s traditional presidential power of appointment while respecting the Judiciary’s own
prerogative. In other words, the President retains full powers to appoint Members of the Court
during the election period, and the Judiciary is assured of a full membership within the time
frame given.

Interestingly, the objection to the full application of Article VIII, Section 4(1) comes, not from the
current President, but mainly from petitioners echoing the present presidential candidates, one
of whom shall soon be the incoming President. They do not, of course, cite reasons of power
and the loss of the opportunity to appoint the Chief Justice; many of the petitioners/intervenors
oppose the full application of Article VIII, Section 4(1) based on the need to maintain the
integrity of the elections through the avoidance of a "midnight appointment."

This "integrity" reason is a given in a democracy and can hardly be opposed on the theoretical
plane, as the integrity of the elections must indeed prevail in a true democracy. The statement,
however, begs a lot of questions, among them the question of whether the appointment of a full
Court under the terms of Article VIII, Section 4(1) will adversely affect or enhance the integrity of
the elections.

In my Separate Opinion, I concluded that the appointment of a Member of the Court even during
the election period per se implies no adverse effect on the integrity of the election; a full Court is
ideal during this period in light of the Court’s unique role during elections. I maintain this view
and fully concur in this regard with the majority.

During the election period, the court is not only the interpreter of the Constitution and the
election laws; other than the Commission on Elections and the lower courts to a limited extent,
the Court is likewise the highest impartial recourse available to decisively address any problem
or dispute arising from the election. It is the leader and the highest court in the Judiciary, the
only one of the three departments of government directly unaffected by the election. The Court
is likewise the entity entrusted by the Constitution, no less, with the gravest election-related
responsibilities. In particular, it is the sole judge of all contests in the election of the President
and the Vice-President, with leadership and participation as well in the election tribunals that
directly address Senate and House of Representatives electoral disputes. With this grant of
responsibilities, the Constitution itself has spoken on the trust it reposes on the Court on
election matters. This reposed trust, to my mind, renders academic any question of whether an
appointment during the election period will adversely affect the integrity of the elections – it will
not, as the maintenance of a full Court in fact contributes to the enforcement of the constitutional
scheme to foster a free and orderly election.

In reading the motions for reconsideration against the backdrop of the partisan political noise of
the coming elections, one cannot avoid hearing echoes from some of the arguments that the
objection is related, more than anything else, to their lack of trust in an appointment to be made
by the incumbent President who will soon be bowing out of office. They label the incumbent
President’s act as a "midnight appointment" – a term that has acquired a pejorative meaning in
contemporary society.

As I intimated in my Separate Opinion, the imputation of distrust can be made against any
appointing authority, whether outgoing or incoming. The incoming President himself will be
before this Court if an election contest arises; any President, past or future, would also naturally
wish favorable outcomes in legal problems that the Court would resolve. These possibilities and
the potential for continuing influence in the Court, however, cannot be active considerations in
resolving the election ban issue as they are, in their present form and presentation, all
speculative. If past record is to be the measure, the record of past Chief Justices and of this
Court speaks for itself with respect to the Justices’ relationship with, and deferral to, the
appointing authority in their decisions.

What should not be forgotten in examining the records of the Court, from the prism of problems
an electoral exercise may bring, is the Court’s unique and proven capacity to intervene and
diffuse situations that are potentially explosive for the nation. EDSA II particularly comes to mind
in this regard (although it was an event that was not rooted in election problems) as it is a
perfect example of the potential for damage to the nation that the Court can address and has
addressed. When acting in this role, a vacancy in the Court is not only a vote less, but a
significant contribution less in the Court’s deliberations and capacity for action, especially if the
missing voice is the voice of the Chief Justice.

Be it remembered that if any EDSA-type situation arises in the coming elections, it will be
compounded by the lack of leaders because of the lapse of the President’s term by June 30,
2010; by a possible failure of succession if for some reason the election of the new leadership
becomes problematic; and by the similar absence of congressional leadership because
Congress has not yet convened to organize itself.34 In this scenario, only the Judiciary of the
three great departments of government stands unaffected by the election and should at least
therefore be complete to enable it to discharge its constitutional role to its fullest potential and
capacity. To state the obvious, leaving the Judiciary without any permanent leader in this
scenario may immeasurably complicate the problem, as all three departments of government
will then be leaderless.

To stress what I mentioned on this point in my Separate Opinion, the absence of a Chief Justice
will make a lot of difference in the effectiveness of the Court as he or she heads the Judiciary,
sits as Chair of the JBC and of the Presidential Electoral Tribunal, presides over impeachment
proceedings, and provides the moral suasion and leadership that only the permanent mantle of
the Chief Justice can bestow. EDSA II is just one of the many lessons from the past when the
weightiest of issues were tackled and promptly resolved by the Court. Unseen by the general
public in all these was the leadership that was there to ensure that the Court would act as one,
in the spirit of harmony and stability although divergent in their individual views, as the Justices
individually make their contributions to the collegial result. To some, this leadership may only be
symbolic, as the Court has fully functioned in the past even with an incomplete membership or
under an Acting Chief Justice. But as I said before, an incomplete Court "is not a whole
Supreme Court; it will only be a Court with 14 members who would act and vote on all matters
before it." To fully recall what I have said on this matter:

The importance of the presence of one Member of the Court can and should never be
underestimated, particularly on issues that may gravely affect the nation. Many a case has been
won or lost on the basis of one vote. On an issue of the constitutionality of a law, treaty or
statute, a tie vote – which is possible in a 14 member court – means that the constitutionality is
upheld. This was our lesson in Isagani Cruz v. DENR Secretary.

More than the vote, Court deliberation is the core of the decision-making process and one voice
is less is not only a vote less but a contributed opinion, an observation, or a cautionary word
less for the Court. One voice can be a big difference if the missing voice is that of the Chief
Justice.

Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the
Court of a permanent sitting Chief Justice cannot be equaled. He is the first among equals – a
primus inter pares – who sets the tone for the Court and the Judiciary, and who is looked up to
on all matters, whether administrative or judicial. To the world outside the Judiciary, he is the
personification of the Court and the whole Judiciary. And this is not surprising since, as Chief
Justice, he not only chairs the Court en banc, but chairs as well the Presidential Electoral
Tribunal that sits in judgment over election disputes affecting the President and the Vice-
President. Outside of his immediate Court duties, he sits as Chair of the Judicial and Bar
Council, the Philippine Judicial Academy and, by constitutional command, presides over the
impeachment of the President. To be sure, the Acting Chief Justice may be the ablest, but he is
not the Chief Justice without the mantle and permanent title of the Office, and even his
presence as Acting Chief Justice leaves the Court with one member less. Sadly, this member is
the Chief Justice; even with an Acting Chief Justice, the Judiciary and the Court remains
headless. 35

Given these views, I see no point in re-discussing the finer points of technical interpretation and
their supporting latin maxims that I have addressed in my Separate Opinion and now feel need
no further elaboration; maxims can be found to serve a pleader’s every need and in any case
are the last interpretative tools in constitutional interpretation. Nor do I see any point in
discussing arguments based on the intent of the framers of the Constitution now cited by the
parties in the contexts that would serve their own ends. As may be evident in these discussions,
other than the texts of the disputed provisions, I prefer to examine their purposes and the
consequences of their application, understood within the context of democratic values. Past
precedents are equally invaluable for the lead, order, and stability they contribute, but only if
they are in point, certain, and still alive to current realities, while the history of provisions,
including the intents behind them, are primarily important to ascertain the purposes the
provisions serve.

From these perspectives and without denigrating the framers’ historical contributions, I say that
it is the Constitution that now primarily speaks to us in this case and what we hear are its direct
words, not merely the recorded isolated debates reflecting the personal intents of the
constitutional commissioners as cited by the parties to fit their respective theories. The voice
speaking the words of the Constitution is our best guide, as these words will unalterably be
there for us to read in the context of their purposes and the nation’s needs and circumstances.
This Concurring and Dissenting Opinion hears and listens to that voice.

The Valenzuela Decision

The ponencia’s ruling reversing Valenzuela, in my view, is out of place in the present case,
since at issue here is the appointment of the Chief Justice during the period of the election ban,
not the appointment of lower court judges that Valenzuela resolved. To be perfectly clear, the
conflict in the constitutional provisions is not confined to Article VII, Section 15 and Article VIII,
Section 4(1) with respect to the appointment of Members of the Supreme Court; even before the
Valenzuela ruling, the conflict already existed between Article VII, Section 15 and Article VIII,
Section 9 – the provision on the appointment of the justices and judges of courts lower than the
Supreme Court. After this Court’s ruling in Valenzuela, no amount of hairsplitting can result in
the conclusion that Article VII, Section 15 applied the election ban over the whole Judiciary,
including the Supreme Court, as the facts and the fallo of Valenzuela plainly spoke of the
objectionable appointment of two Regional Trial Court judges. To reiterate, Valenzuela only
resolved the conflict between Article VII, Section 15 and appointments to the Judiciary under
Article VIII, Section 9.

If Valenzuela did prominently figure at all in the present case, the prominence can be attributed
to the petitioners’ mistaken reading that this case is primary authority for the dictum that Article
VII, Section 15 completely bans all appointments to the Judiciary, including appointments to the
Supreme Court, during the election period up to the end of the incumbent President’s term.

In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence, cannot be cited for
its primary precedential value. This legal situation still holds true as Valenzuela was not
doctrinally reversed as its proposed reversal was supported only by five (5) out of the 12
participating Members of the Court. In other words, this ruling on how Article VII, Section 15 is to
be interpreted in relation with Article VIII, Section 9, should continue to stand unless otherwise
expressly reversed by this Court.

But separately from the mistaken use of an obiter ruling as primary authority, I believe that I
should sound the alarm bell about the Valenzuela ruling in light of a recent vacancy in the
position of Presiding Justice of the Sandiganbayan resulting from Presiding Justice Norberto
Geraldez’s death soon after we issued the decision in the present case. Reversing the
Valenzuela ruling now, in the absence of a properly filed case addressing an appointment at this
time to the Sandiganbayan or to any other vacancy in the lower courts, will be an irregular ruling
of the first magnitude by this Court, as it will effectively be a shortcut that lifts the election ban on
appointments to the lower courts without the benefit of a case whose facts and arguments
would directly confront the continued validity of the Valenzuela ruling. This is especially so after
we have placed the Court on notice that a reversal of Valenzuela is uncalled for because its
ruling is not the litigated issue in this case.

In any case, let me repeat what I stressed in my Separate Opinion about Valenzuela which rests
on the reasoning that the evils Section 15 seeks to remedy – vote buying, midnight
appointments and partisan reasons to influence the elections – exist, thus justifying an election
appointment ban. In particular, the "midnight appointment" justification, while fully applicable to
the more numerous vacancies at the lower echelons of the Judiciary (with an alleged current
lower court vacancy level of 537 or a 24.5% vacancy rate), should not apply to the Supreme
Court which has only a total of 15 positions that are not even vacated at the same time. The
most number of vacancies for any one year occurred only last year (2009) when seven (7)
positions were vacated by retirement, but this vacancy rate is not expected to be replicated at
any time within the next decade. Thus "midnight appointments" to the extent that they were
understood in Aytona36 will not occur in the vacancies of this Court as nominations to its
vacancies are all processed through the JBC under the public’s close scrutiny. As already
discussed above, the institutional integrity of the Court is hardly an issue. If at all, only
objections personal to the individual Members of the Court or against the individual applicants
can be made, but these are matters addressed in the first place by the JBC before nominees
are submitted. There, too, are specific reasons, likewise discussed above, explaining why the
election ban should not apply to the Supreme Court. These exempting reasons, of course, have
yet to be shown to apply to the lower courts. Thus, on the whole, the reasons justifying the
election ban in Valenzuela still obtain in so far as the lower courts are concerned, and have yet
to be proven otherwise in a properly filed case. Until then, Valenzuela, except to the extent that
it mentioned Section 4(1), should remain an authoritative ruling of this Court.
 CONCLUSION

In light of these considerations, a writ of prohibition cannot issue to prevent the JBC from
performing its principal function, under the Constitution, of recommending nominees for the
position of Chief Justice. Thus, I vote to deny with finality the Tolentino and Soriano motions for
reconsideration.

The other motions for reconsideration in so far as they challenge the conclusion that the
President can appoint the Chief Justice even during the election period are likewise denied with
finality for lack of merit, but are granted in so far as they support the continued validity of the
ruling of this Court in In Re: Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.

My opinion on the Mendoza petition stands.

ARTURO D. BRION
Associate Justice

Footnotes

1
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves the
constitutional validity of the appointment of two (2) RTC Judges on March 30, 1998 – a
date that falls within the supposed ban under Section 15, Article VII of the Constitution.
We nullified the appointments.

2
G.R. No. 191002 and companion cases, promulgated on March 17, 2010.

3
Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral Mendoza.

4
G.R. No. 191002, Petition for Certiorari and Mandamus.

5
G.R. No. 191149, Petition for Certiorari and Mandamus.

6
The JBC reiterates its position in its Comment (dated April 12, 2010) on the motions for
reconsideration that it is still acting on the preparation of the list of nominees and is set
to interview the nominees.

7
See, for instance, the motion for reconsideration of intervenor Alfonso Tan, Jr.

8
The docketed petitions were seven; the petitions-in-intervention were ten.

9
A prohibition petition seeks to stop the proceedings of a tribunal, corporation, board,
officer or person exercising judicial, quasi-judicial or ministerial functions if any of its act
is without or in excess of jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction.

10
Separate Opinion, p. 16.
11
The JBC position states:

xxxx

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

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

12
Mendoza Petition, pp. 5-6.

13
Separate Opinion, pp. 16-17.

14
Supra note 11.

15
Id. at 17.

16
Separate Opinion, pp. 19-22:

A first reality is that the JBC cannot, on its own due to lack of the proper
authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary
and it has no authority to interpret constitutional provisions, even those affecting
its principal function; the authority to undertake constitutional interpretation
belongs to the courts alone.

A second reality is that the disputed constitutional provisions do not stand alone
and cannot be read independently of one another; the Constitution and its
various provisions have to be read and interpreted as one seamless whole,
giving sufficient emphasis to every aspect in accordance with the hierarchy of our
constitutional values. The disputed provisions should be read together and, as
reflections of the will of the people, should be given effect to the extent that they
should be reconciled.

The third reality, closely related to the second, is that in resolving the coverage of
the election ban vis-à-vis the appointment of the Chief Justice and the Members
of the Court, provisions of the Constitution other than the disputed provisions
must be taken into account. In considering when and how to act, the JBC has to
consider that:

1. The President has a term of six years which begins at noon of June
30 following the election, which implies that the outgoing President
 remains President up to that time. (Section 4, Article VII). The President
assumes office at the beginning of his or her term, with provision for the
situations where the President fails to qualify or is unavailable at the
beginning of his term (Section 7, Article VII).

2. The Senators and the Congressmen begin their respective terms also
at midday of June 30(Sections 4 and 7, Article VI). The Congress
convenes on the 4th Monday of July for its regular session, but the
President may call a special session at any time. (Section 15, Article VI)

3. The Valenzuela case cited as authority for the position that the election
ban provision applies to the whole Judiciary, only decided the issue with
respect to lower court judges, specifically, those covered by Section 9,
Article VIII of the Constitution. Any reference to the filling up of vacancies
in the Supreme Court pursuant to Section 4(1), Article VIII constitutes
obiter dictum as this issue was not directly in issue and was not ruled
upon.

These provisions and interpretation of the Valenzuela ruling – when read

together with disputed provisions, related with one another, and considered with
the May 17, 2010 retirement of the current Chief Justice – bring into focus certain
unavoidable realities, as follows:

1. If the election ban would apply fully to the Supreme Court, the
incumbent President cannot appoint a Member of the Court beginning
March 10, 2010, all the way up to June 30, 2010.

2. The retirement of the incumbent Chief Justice – May 17, 2010 – falls
within the period of the election ban. (In an extreme example where the
retirement of a Member of the Court falls on or very close to the day the
election ban starts, the Office of the Solicitor General calculates in its
Comment that the whole 90 days given to the President to make
appointment would be covered by the election ban.)

3. Beginning May 17, 2010, the Chief Justice position would be vacant,
giving rise to the question of whether an Acting Chief Justice can act in
his place. While this is essentially a Supreme Court concern, the Chief
Justice is the ex officio Chair of the JBC; hence it must be concerned and
be properly guided.

4. The appointment of the new Chief Justice has to be made within 90

days from the time the vacancy occurs, which translates to a deadline of
August 15, 2010.

5. The deadline for the appointment is fixed (as it is not reckoned from the
date of submission of the JBC list, as in the lower courts) which means
that the JBC ideally will have to make its list available at the start of the
90-day period so that its process will not eat up the 90-day period granted
the President.
 6. After noon of June 30, 2010, the JBC representation from Congress
would be vacant; the current representatives’ mandates to act for their
principals extend only to the end of their present terms; thus, the JBC
shall be operating at that point at less than its full membership.

7. Congress will not convene until the 4th Monday of July, 2010, but
would still need to organize before the two Houses of Congress can send
their representatives to the JBC – a process may extend well into August,
2010.

8. By July 5, 2010, one regular member of the JBC would vacate his post.
Filling up this vacancy requires a presidential appointment and the
concurrence of the Commission on Appointments.

9. Last but not the least, the prohibition in Section 15, Article VII is that "a
President or Acting President shall not make appointments." This
prohibition is expressly addressed to the President and covers the act of
appointment; the prohibition is not against the JBC in the performance of
its function of "recommending appointees to the Judiciary" – an act that is
one step away from the act of making appointments.

17
The Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel Ancestral Domain, G.R. Nos. 183591, 183791, 183752, 183893, 183951
and 183962, October 14, 2008.

18
By virtue of its power of administrative supervision, the Supreme Court oversees the
judges’ and court personnel’s compliance with the laws, rules and regulations. It may
take the proper administrative action against them if they commit any violation. See
Ampong v. CSC, G.R. No. 107910, August 26, 2008, 563 SCRA 293. The Constitution
separately provides for the Supreme Court’s supervision over the JBC. See Article VIII,
Section 8 of the CONSTITUTION.

19
Judicial Review is the power of the courts to test the validity of executive and
legislative acts for their conformity with the Constitution, Garcia v. Executive Secretary,
G.R. No. 157584, April 2, 2009.

20
Control is the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter. It is distinguished from supervision in that the
latter means overseeing, or the power or authority of an officer to see that subordinate
officers perform their duties, and if the latter fail or neglect to fulfill them, then the former
may take such action or steps as prescribed by law to make them perform these duties.
Nachura, J., Outline Reviewer in Political Law, 2006 ed., p. 276.

21
G.R. No. 156052, February 13, 2008, 545 SCRA 92.

22
Supra notes 11 and 14.
23
Philippine Bar Association (PBA), Women Trial Lawyers Organization of the
Philippines (WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving
Corvera and Alfonso V. Tan, Jr.

24
See PBA’s Motion for Reconsideration.

25
See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z. Tolentino,
Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.

26
CONSTITUTION, Article VII, Section 15:

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

27
CONSTITUTION, Article VIII, Section 4(1):

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

xxxx

28
See Petition on Intervention of WTLOP, as cited in the decision in the above-
captioned cases; see also: PBA’s motion for reconsideration.

29
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415
SCRA 44, citing Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1994);
Peralta v. Commission on Elections, G.R. No. 47771, March 11, 1978, 82 SCRA 30
(1978); Ang-Angco v. Castillo, G.R. No. 17169, November 30, 1963, 9 SCRA 619
(1963).

30
Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310 SCRA
614, citing Chiongbian v. De Leon, 82 Phil 771 (1949).

31
Article VI for the Legislature, Article VII for the Executive, and Article VIII for the
Judiciary.

32
See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49; where the
court resolved the clash between the power of the President to extend ad interim
appointments and the power of the Commission on Appointments to confirm presidential
appointments.

33
Ibid.

34
Supra note 13.
35
Separate Opinion, p. 32.
Case 7: Republic V Sereno

G.R. No. 237428, May 11, 2018 - REPUBLIC OF THE PHILIPPINES, REPRESENTED
BY SOLICITOR GENERAL JOSE C. CALIDA, Petitioner, v. MARIA LOURDES P. A.
SERENO, Respondent.

RESOLUTION

JARDELEZA, J.:

On some positions cowardice asks the question. is it

safe? Expediency asks the question, is it politic?

Vanity asks the question, is it popular? But

conscience asks the question, is it right? And there

comes a time when one must take a position that is

neither safe, nor politic, nor popular but he must

take it because conscience tells him it is right. -

Martin Luther King1

Respondent Chief Justice Maria Lourdes P. A. Sereno (respondent) in her Ad

Cautelam Respectful Motion for Inhibition (Motion) seeks to prevent me from
participating in this special civil action for quo warranto. She invokes the New Code
of Judicial Conduct, which enjoins judges to disqualify themselves from participating
in a matter in which it may appear, to a reasonable observer, that they are unable
to decide a matter impartially, and where the judge has actual bias or prejudice
concerning a party. She further invokes the due process clause of the Constitution.

Determining whether a sitting justice of the Supreme Court should recuse in a case
is an exercise fraught with constitutional difficulty. This is due in no small measure
to the absence of a clear litmus test by which a jurist's partiality is measured.
Walking the tightrope between a judge's duty to decide and inhibition being a
matter of conscience, the Court has made largely ad hoc decisions that turn on the
factual subtleties of each case. This has prevented the development of a bright line
rule on inhibition. In the Philippines, this tightrope walk between judicial
accountability and judicial independence is made more problematic by the very
paucity of formal mechanisms that institutionalize the reconciliation of these two
concepts.2 This gap in the law is complicated by the history, practice and tradition
of the Court respecting recusal from within its ranks: the individual justices of the
Court decide for themselves whether to inhibit from a case, and whether to explain
their decision or remain silent. Finally, because the Court itself abides by the
Justice's judgment, and because there is no appeal, a Justice's decision on the
matter of his recusal is final.

Fully conscious of these sensitivities, I have thus endeavored to: (I) provide, in the
interest of transparency and fuller context, the specific charges made against me,
as set forth in respondent's Motion, as well as other relevant events which led up to
these charges, including my testimony before the Committee on Justice of the
House of Representatives (House Committee on Justice); (II) survey the relevant
rules and statutes on inhibitions and recusals; (III) study applicable jurisprudence,
both local and American, on the subject, including where they seemingly implicate
issues of due process; and (IV) consider the practice of the Court with respect to
the inhibition and recusal of its own members. I submit this Resolution to show how
I have decided, in good conscience, to participate in this case.

The Motion cites three charges that allegedly evidence my bias or prejudice against
respondent, namely that: (1) I have stated that she committed treason; (2) I
described her actions during my nomination to the Court as "inhumane" and "not
those of a normal person;" and (3) my negative characterization of her persists to
this day.

In the interest of full disclosure and to enable the reader to appreciate the context
of these charges, I quote respondents' allegation in full.

The first charge cites my statement before the House Committee on

Justice that respondent committed "treason:"

On 11 December 2017, Justice Jardeleza testified before the Committee on Justice
of the House of Representatives in relation to the charge that the Chief Justice
allegedly. "manipulated the shortlist of the Judicial and Bar Council (JBC) to exclude
then Solicitor General Francis H. Jardeleza, for personal and political reasons,
thereby disgracing then Sol. Gen. Jardeleza and curtailing the President's power to
appoint him. There is reasonable basis to conclude from Justice Jardeleza's
testimony, that he harboured ill feelings towards the Chief Justice as a consequence
of the latter's challenge to his integrity during the nomination process for the
Associate Justice position (vice Hon. Justice Roberto A. Abad) in 2014. Justice
Jardeleza apparently asserted that the Chief Justice has committed "treason", to
wit:
[JUSTICE] JARDELEZA. x x x

So, ngayon mabalik po tayo. Ano po ang paratang sa akin? Ang paratang po at dito
nakasaad sa supplemental comment ng Chief Justice. Sinabi na po ni Attorney
Capacite, ito pong supplemental comment and reply pirmado ni Attorney Capacite,
hindi po ito verified. Subalit iyong part two po nito, naka-all caps, it's page 13,
statement of the Chief Justice on the integrity objection. Ang first sentence po,
basahin ko, "This portion is solely attributable to the Chief Justice." Ano pong
sinasaad nito? Na iyong diskarte ko na pumanig ako na huwag isama, ako ay to
quote her words, "disloyal to the republic." Iyong disloyalty to the republic, if you
check the Pilipino-English dictionary ay naghudas sa ating Inang Bayan.
Napakabigat po.

Direct quote again, iyong diskarte ko na iyon ay is an act of treason. Treason. Sa

madaling salita po sa Tagalog ako po ay traydor sa Inang Bayan. x x x

xxxx

So, sa punto na iyon ay ibabalik ko po ang tanong. Hindi ko po ikaila na may

diskarte itong American lawyers, may diskarte ang Foreign Affairs, may diskarte rin
kami. Eh bakit naman kung nasa kabilang panig ako disloyal sa bayan natin? This is
a difference of opinion. And, in fact, on an executive matter, so iyong po ang unang
tanong. Ako ay pinaratangan na disloyal o anghudas sa bayan natin, Eh sa
pananaw ko po it is the Chief Justice who acted disloyally, naghudas sa bayan
natin. Bakit? Eh bakit niya gagamitin itong classified, top secret or secret
document? Para sa anong gamit? Hindi siya kasama sa arbitration. Ang ginamit
niya du'ng [sic] dokumento ay illegally secured document. So binabalik ko po sa
kanya ang paratang na disloyal to the government. At noong panahon na iyon hindi
pa tapos ang kaso. That was a continuing case. Nagkadesisyon lang po kasi 2016
na. So, sino po ang disloyal sa bansa natin. Sa palagay kop o hindi ako, hindi ang
Office of the President, hindi si Chief PLC.

xxxx

[JUSTICE] JARDELEZA. (Continuing) ... largest island in the Spratlys." Salita niya
yun, hindi ko salita yun. Ayun nga ang pinag-aawayan. Ang statement na Itu Aba is
the largest island in the Spratlys ay taliwas, contradictory sa posisyon ng gobyerno
na ang itu Aba ay rock lang. So ngayon, ang paratang sa akin na ang ginawa ko,
ang diskarte ko ay treason, maitanong ko po sa inyo sino ngayon [sic] ang
committed an act of treason sa pananalita nya na Itu Aba is an island? Bagkus, ang
posisyon ng gobyerno Itu Aba is a rock. At saka sinabi niya ito na Itu Aba is an
island not once but twice. Sinabi niya ulit, inulit niya pa sa paragraph 68, "It must
be emphasized that the categorical legal position that characterizes Itu Aba is an
island ... as an island," inulit pa. So, ngayon binabalik ko iyung paratang, sino sa
amin ang nagcommit ng act of treason? Hindi po ako. Hirap na hirap iyung team na
mabigyan ng pruweba na iyung Itu Aba ay rock at hindi island. Bakit po? Bagk us
kasi kahit na hindi ... kahit na minensiyon (mention) natin, ang mga hukom ng
tribunal ay, at a certain point, ay kusang nagbigay ng order na Pilipinas, isama mo
sa diskusyon mo iyung dalawampu, 20 features kung ano ito, island or rock. Kahit
hindi natin minensiyon, and arbitral tribunal mismo nagsabi isama ninyo, kasama
doon ang Itu Aba. So napilitan tayo na idiscuss na itong Itu Aba up front and
center. Now, itanong ninyo sa amin. itanong ninyo sa akin, hanggang sa
madesisyunan ba kampante kami na mananalo tayo sa issue na ito? Hindi po. lyun
ang biggest nightmare natin because kapag na-declare ang itu Aba na island,
magkakaroon ng 200 miles. But, as they say, the rest is history. Mabuti na lang,
mabuti na lang nanalo tayo.

Magbalik ako, habang pending pa ito, habang pending pa iyung kaso, eh, bakit
naman tawagin akong traydor sa Inang Bayan? binabalik ko sa Chief Justice. Sa
palagay ko you were the one who committed treason. While the case was pending,
walang pakundangan na ginamit mo ang isang dokumento na top secret, classified
secret, nilagay mo sa publiko ang isang pangyayari na mayroong disagreement sa
legal team. At saka contrary sa pinaghihirapan ng Pilipinas na iyan ay rock, eh,
dalawang beses mo sinabi in writing iyun po ay island. So sa palagay ko po, kapag
kayo ang hukom dito ay kung hindi po iyun treason, hindi ko na alam. And I am not
asking for anything that she did not do unto me. Alam ko po iyung treason may
view na there can be no treason without war. At binabalik ko sa Punong Mahistrado.
eh, wala naming digmaan noong 2014, ti nawag mo akong traydor, tinawag mo ang
diskarte ko ay treason so ibabalik ko sa iyo. So, ang ibig sabihin sa mind ni Chief
Justice, ang treason can be committed even kung walang digmaan.

So Honorable Members of the House, I will leave that to you, kayo po ang hukom
dito. Ang sinasabi ko ay pananaw ko, iyung sinasabi ko na ang Chief Justice ang
nag-commit ng acts of disloyalty and acts of treason against the Republic is not a
plain opinion. Iyun po ay bati sa... batay sa facts. Number one, ginamit niya,
pinalabas niya sa publiko ang classified document; number two, tinawag niya na
island iyung feature na hirap na hirap ang gobyerno naming i-pruweba na rock.

Maraming salamat po.

xxxx

REP. HERNANDEZ. Thank you, Mr. Chairman.

Let me just clarify it, Justice Jardeleza, are you saying that you are accusing the
Chief Justice of committing treason? Can you just clarify that?

[JUSTICE] JARDELEZA. Ayaw ko po na maakusahan ni Congressman Marcoleta na

ano iyun, ewan, ewan. (Laughter). So, ang straight po na sagot, iyun na
po.Because sa pananaw ko, eh, bakit mo... bakit mo ilantad ang classified
document? Ano ang pakialam ng hudikatura? O? Alam mo, ang pinag-aawayan ay
ang kahulugan ng island. The category of Itu Aba making it an island is a
conclusion based on facts. So, kung ang posisiyon ng gobyerno ay that is a rock,
iyung tano na magsabi, "Ay, hindi, island yan," again, if that is not treason, I do not
know what is treason.3
The second charge involves my characterization of respondent's actions relevant to
my nomination as a "personal slight,"4 "inhumane" and "not those of a normal
person." As evidence, respondent quotes the following portions of my testimony
before the House Committee on Justice, to wit:
REP. G.F. GARCIA. And so, she did not conduct herself as would have been
expected of a chief justice, head of a separate branch of government? Would that
be a fair statement[?]

[JUSTICE] JARDELEZA. I think that is a fair statement, Mr. Chairman.

REP. G.F. GARCIA. And yet as Chief Justice and assumed to be knowledgeable
about the law, it would have struck her or at least, it could have crossed her mind
that precisely attacking your integrity on the grounds of your legal strategy on the
West Philippine Sea would not hold water if we are to question integrity per se
because integrity would now delve on morality, on...what else...well, precisely
morality, in this case, this purely involved a professional position or a professional
judgment, do you think the Chief Justice could not have foreseen that?

[JUSTICE] JARDELEZA. Mr. Chairman, hindi ko po talaga alam. Ang katotohanan po

hanggang sa ngayon...kasi wala...wala po kaming history, wala kaming...sabi ko
nga tinuturing naming siya na pamilya ko, na kaibigan, wala akong maisip na away
propesyunal or personal. So, hanggang ngayon hindi ko talaga po maintindihan
bakit nagawa niya iyun...nagawa sa akin iyung isang bagay na napakatindi.
Napakatindi po iyun, mahirap. So, I am sorry, up to now, I cannot understand why
that was done to me.

xxxx

REP. G.F. GARCIA. So, we are left to conclude that the Chief Justice's opposition to
your good self was purely out of an...what cannot be comprehended,
incomprehensible quirk of her personality?

[JUSTICE] JARDELEA. Because I cannot understand because I cannot get into her
mind, as I cannot understand, I can only say. Mr. Chairman. talagang. in my
view, what was done to me was inhuman.

REP. G.F. GARCIA. That no decent humane and human person much less a Chief
justice of a country would do?

[JUSTICE] JARDELEZA. Mr. Chairman, that...that...you know, when dealing with a

fellow human being, we should afford each other some measure of decency. Kung
ayaw po sa akin, kasi alam ko nan1an may nagsasabi, "Ay, hindi ikaw ang manok
ni Chief Justice." Eh, Mr. Chairman, lahat...iyung karamihan ng mga abugado dito,
iyung maluklok sa Korte Suprema, siguro iyun ang isa sa mga pinaka-minimithi. Sa
kadulu-dulo ng isang career ng isang tao, minsan man lang maka-apply ka. Masabi
mo sa mga apo mo, Aba, nag-apply ako. na-nominate ako. Eh, iyun lang naman
ako eh, bakit...and I was...I was minding my own business, I came from the private
sector, akala ko tapos na iyung mga anak ko puwede na akong tumulong. So,
littled did I know that I will get into all of these. As I said to the UP graduates, ito
po iyung ginawa sa akin were the most difficult two months of my life. Hindi ko
alam kung bakit ginawa but iyung...iyung ordeal na you would go through two
months hindi moa lam kung ano mangyayari. Bagkus, Mr. Chairman, one week to
go nagpaalam na ako sa Executive Secretary at saka kay CPLC then Ben, sinabi ko
naintindihan ninyo ba ang ginawa ko? Kinalaban ko iyung Chief Justice. Kung hindi
ako manalo sa Supreme Court, I will not be an effective SolGen. At saka hindi lang
iyun, eh, wala na ho, ang term na ginamit ni Justice Brion it is a...is a career killer.
Ang term na ginamit ko sa UP College of Law, it was a neardeath
experience sapagkat mabuti na lang sinuportahan ako ng Supreme Court. Kung
hindi po, I will live the rest of my life tagged na tao, abogadong walang integridad.
Integrity is a requirement before you can become a member of the Board of
Directors of a publicly-listed company. Under the fit and proper rule of the Central
Bank, integrity is a requirement. So, ano po ang mangyayari kung... kung hindi ako
nagdulog sa Supreme Court, ay, talagang wala na ho akong professional life, para
na ring naitsupuwera. So, I can agree po with...with you.

REP. G.F. GARCIA.In other words, iyung nangyari po sa inyo, sinabi po ninyo those
were the worst two months of your life kung saan kunuwestiyon (question) ang
integridad ninyo on the basis of what was purely a professional legal strategy and
belatedly nagdagdag pa ng dalawa na allegations which were totally
unsubstantiated. Ibig sabihin po, eh, talagang the Chief Justice was out to discredit
you, was out to destroy your reputation, was out to kill you career-wise, is this a
normal act of a Chief Justice and would you say that the Chief Justice in this
instance committed a great and grave injustice to yourself po?

MR. JARDELEZA. I believe po that that is not the act of a normal person.5
The third charge asserts that my negative assessment of respondent's character is
the very issue raised in the present petition, and that this negative characterization
persists to this day. She cites a portion of my testimony before the Committee on
Justice as illustrative:
It appears that Justice Jardeleza's apparent bias or prejudice against the Chief
Justice continues until present. With due respect, this is evident from the following
testimony:

REP. J.C.Y. BELMONTE. (Continuing)... nag-oath taking po kayo. Sir, as justice,

congratulations po and dapat lang talaga; you deserved it. Pero that's an aside,
noong nagoath po kayo, kanino po kayo nag-oath?

[JUSTICE] JARDELEZA.Ganito po and kuwento, Mr. Chairman. I think I went to

Malacanang almost four-five o'clock na. Noong nandoon na po ako sa Malacanang, I
asked Secretary Ochoa, "Puwede mag-oath before President Aquino?" then ang
sagot ay "Sige titingnan natin kung ma-schedule, kung maka-schedule pa tayo."
So, nagantay po ako doon. After a while, sabi, Baka masikip. Then, one of the
aides, one of the political aides of Secretary Ochoa said, "Alam mo, mabuti siguro
kung doon ka mag-oath before the CJ para naman anon a, to repair things." Eh
talaga pong nag-o-object ako. Sabi ko, "Puwede ba si President? Siya naman ang
nagnombra sa akin eh?" Kaya lang I don't know how many minutes passed, hindi
... sabi, "Hindi ka pa rin mapagbigyan. The schedule is full."

Ang hindi alam nu'ng lahat eh mahirap na iyon masingitan, nag-oath na ako sa
notary, I think mga bandang two o'clock para just in case may mangyari may oath
na ako, so may hawak-hawak na akong oath. After a while, wala pa rin, hindi pa rin
maano. And then, well, to my eternal regret pumayag ako. And why do I say to my
eternal regret because, katulad ni Justice Brion, the next morning I think and he is
here, I sought out Justice Brion to apologize because there were several people first
who said, "Eh mali naman ang ginawa mo. People went out on a limb for you to
help you, eh ba't doon ka naman nag-take oath?" So, iyon po ang katotohanan. I
had to apologize to Justice Brion why I allowed ... I took my oath before the Cj. And
again binalikan ko si Secretary Ochoa, "paki-arrange naman na mag-take oath ako
kay Pangulong Aquino." Kaya pag mabisita mo ako, ang picture ko po, I'm taking
my oath before President Aquino.

REP. J.C.Y. BELMONTE. I'm...thank you very much for that, Justice. I'm sorry I had
to ask that question.

[JUSTICE' JARDELEZA. It's all right but what I'm trying to say is iyong ginawa po sa
akin hindi makatao. Hindi po iyon nabura noong ako ay nagte-take oath and she
was smiling and everything is okay. Of course, everything was not okay and up to
today everything is not okay.6
B

In the interest of full transparency and to provide a more complete context, I shall
also narrate the relevant events which preceded my testimony before the House
Committee on Justice:

5. In June 2014, respondent attempted to block my nomination to the Court on

the ground that I lacked integrity, as shown by my handling of the West
Philippine Sea arbitration case which the Philippines filed before the
Petmanent Court of Arbitration at The Hague. I was then Solicitor General
and led the Philippine legal team that worked on the crafting of the
arbitration case. I would later be appointed the Philippine Agent for purposes
of the arbitration.

In public filings made in Jardeleza v. Sereno,7 respondent accused me of

committing "treason," being a "traitor," and being disloyal to the country
through my alleged "deliberate refusal to promote the remedies available to
the Philippines, and deliberately weakening the country's arguments."8 She
also faulted me for allegedly demonstrating "weakness of character" when I
 was supposedly "not willing to protect the interest" of the Republic, even
inferring that I "may have been listening to extraneous factors or may have
been promised something", thereby imputing that I may have compromised
national interests because of personal agenda.9

On August 19, 2014, the Court ordered my inclusion in the JBC shortlist.
President Benigno S. Aquino III appointed me to the Court the following day.

6. On June 29, 2015, a little over a year before the final award on the West
Philippine Sea arbitration case was issued,10 I gave the commencement
address at the occasion of the graduation of the University of the Philippines
College of Law Class of 2015. In my address, I spoke about the value of hard
work and integrity in one's success and shared my harrowing experience in
aspiring for a seat in the Court. I ecalled then how painful it was to spend a
whole lifetime building a reputation worthy of my parents and my family,
only for my integrity to be disparaged at the peak of a legal career. I told the
graduates that in life, when faced with a shark or a bully, they should stand
their ground and push back. Admittedly, I referred to respondent's viciously
false accusations as those consistent of a "bully" and a "shark."11 My address
reads, in pertinent part:

xxxx

My third story is about my near death experience.

When I became Solicitor General in 2012, I thought I had reached the

pinnacle of my career. Former United States Solicitor General Rex Lee
described the position as "probably the creamiest lawyering job in the
country." But, as former United States Supreme Court Justice Potter Stewart
said. while the Solicitor General's office provides "the best lawyer's jobs," a
seat on the Supreme Court may be "the best job in American law." Thus,
after two and a half years as Solicitor General, I aspired for a seat in our
Supreme Court.

And then, Wham! The Chief Justice and the Senior Associate Justice of the
Supreme Court objected to my nomination, on grounds that I lack integrity in
my handling of the West Philippine Sea arbitration. Wow. It came as a
complete surprise; I did not know what hit me. This was the start of the most
difficult two months of my life, and that of [my wife], and of my children.

You will read most about what happened in Jardeleza v. Sereno. What the
case will not tell you, though, is how much pain the vicious untruths thrown
my way caused me and my family.

You spend a whole lifetime building a reputation worthy of your parents. My

father finished law in a school in Iloilo, and he passed the bar on the second
try. He practiced solo until he had to take a government job for its steady
income. This was when my siblings and I were entering high school. My
mother was a pharmacist and a college teacher who taught piano in the
evenings to supplement her income. They both worked very hard and saved.
They borrowed to build a house and paid the debt in twenty years. All of one
thousand pesos per year. They never owned a car in their lifetime. They only
dreamt to send all of us to UP, which they did.

You also spend a whole lifetime building a reputation worthy of your

family. [My wife] and I have raised our three children in the same way our
own parents reared us: education is the great equalizer, work hard, and the
only legacy we can bequeath them is a good name. We come from humble
beginnings. and we live a modest life. Name and reputation are most
important for us.

Thus, when my integrity was attacked, I knew I had to fight back, if only to
clear my name.

I had a most difficult defense because, first, as a lawyer, I had to keep the
confidences of my client, the Republic of the Philippines. Under our code of
ethics, we carry the secrets of the client to the grave. These secrets include
litigation strategy and tactics. You do not telegraph these to the adversary.
That would be treason. Second, I could not even confirm or deny the
existence of a leaked memorandun1 purporting to show the judgment calls
being debated in the highest levels of the Executive Department of
Government. As you can imagine, there are laws and administrative orders
prohibiting public officers charged with the custody of confidential and secret
documents from revealing their contents.12 My accusers violated these laws
with impunity. Criminal wrongdoing was piled upon brazen disregard for the
safekeeping of state secrets. Laws were broken when persons who had
custody of official documents leaked them to persons not members of the
legal team, and when the latter recklessly placed them in the public domain.
Read again Jardeleza v. Sereno. Read carefully between the lines.

Fortunately for me, the Supreme Court decided to allow my name to be

placed in nomination, and the President appointed me to the Court.

I was so close to professional death, an inglorious end to a career I worked

so hard to nurture. It is an experience I would not wish on anybody, not even
to those who made those vile accusations against me.

xxxx

"Don't back down from the sharks." "Face down the bullies." These are
among the life lessons given by Naval Admiral William H. McRaven to the
graduates of the University of Texas, in his commencement address last May
2014. According to Admiral McRaven: "There are a lot of sharks in the world.
If you hope to complete the swim, you will have to deal with them." You see,
 part of basic Navy SEAL training involves swimming in the shark infested
waters off Clemente Island in San Diego. His advice? When a shark circles
your position, you must stand your ground. Do not swim away. If it attacks,
you must summon all your strength and punch that shark in the snout.

Admiral McCraven, with the bravado of a true Navy SEAL, assumes that the
sharks and bullies will swim away when you punch them. I do not know
about that. Sharks and bullies can be mindlessly brutal. And relentless. I
cannot guarantee that you will triumph over the bullies and the sharks when
they circle you. Like I told you, in my case, I almost perished. To this day, I
am still searching for answers as to why that had to be done to me and to
my family. I still don't have the answers, but I knew then what I had to do. I
stood my ground. I pushed back.

In life, when faced with a shark or a bully, my advice to you: push back. Use
all your might, use your UP Law training. Push back for your parents. For
yourself. For your spouse. For your children. For your loved ones. For your
class. For your block mates.

Class of 2015, as you push back the bully, as you punch the shark, use all
your might and pray that you punched hard enough. It worked for me.

xxxx

7. On July 12, 2016, the Arbitral Tribunal in The Hague promulgated its ruling,
which was an astounding decision in favor of the Philippines. With this, I was
free at last to talk about the arbitration and, more importantly for me, the
treatment of Itu Aba.

The first opportunity presented itself within three months from the date of
the issuance of the arbitral decision. On October 21, 2016, I was invited to
deliver the keynote speech before the Integrated Bar of the Philippines (IBP)
- Western Visayas Regional Convention, which had for its theme, "Ensuring a
legal system based on respect for the Rul e of Law."

In my remarks, I shared the complete story behind the Itu Aba issue13 There,
I recounted how the Philippine legal team, composed of lawyers from
different offices within the Executive Department, and in coordination with
our international legal team, unanimously and purposively embarked on a
low-risk strategy involving the question of which features to include in the
Philippine submission. Specifically, only features that (in our estimation and
based on evidence known or avai lable to us) could, at worst, be declared
only as rocks were included in our January 2013 submission to the Arbitral
Tribunal. Relatedly, the team made a deliberate decision not to include Itu
Aba, the largest feature in the Spratly Islands, as it was reputed to have
sources of potable water which, arguably, could qualify it as an island, to the
detriment of the entire Philippine case.
 In brief, the risk posed by including Itu Aba was this: if declared by the
arbitral tribunal to be an island, Itu Aba would generate a 200 Nautical Mile
(NM) Exclusive Economic Zone (EEZ) that would cover large parts of the
Philippine EEZ in the west, including Reed Bank and extending almost up to
Palawan. This was a risk none of the members of the Philippine legal team
was willing to take.

Towards the end of the year, however, foreign counsel recommended the
amendment of the Philippine statement of claim, with the addition of other
features, among them, Itu Aba. Considering the gravity and sensitivity of the
proposal, we asked counsel to visit Manila to personally discuss the matter
with the rest of the Philippine legal team. In a meeting held in Malacanan in
January 2014, the advantages and disadvantages of the proposal were
discussed. In the end, the team unanimously affirmed the low-risk strategy
initially agreed upon and decided against amending the Philippine submission
to include Itu Aba.

Despite this, foreign counsel again proposed, during the preparation of the
Philippine Memorial, to include therein fourteen (14)
paragraphs mentioning Itu Aba. These additional paragraphs would argue
that although Itu Aba is the largest high-tide feature in the Spratly Islands, it
is still incapable of sustaining human habitation or economic life of its own,
and thus cannot be held to be an island. After reminding counsel that the
matter has already been decided in the January 2014 Manila meeting, I
proposed that the recommendation be placed in a formal
memorandum14 addressed to the Secretary of Foreign Affairs and myself, for
purposes of elevating the matter to then President Aquino for his decision.
After discussion, President Aquino decided to go with the foreign counsel's
recommendation and the additional paragraphs mentioning Itu Aba were
included in the Memorial.15

Respondent would later on use this same confidential Memorandum to block

my nomination and impugn my integrity before the JBC. I emphasize that
neither respondent nor her informant, Senior Associate Justice Antonio T.
Carpio, were part of the Philippine legal team. They did not participate in the
discussions that led to the initial adoption of the low-risk strategy, nor in the
decision not to amend the Philippine submission. In fact, I did not furnish
respondent or Justice Carpio a copy of this confidential Memorandum in view
of its highly sensitive content.

8. On December 11, 2017, I appeared and testified before the House

Committee on Justice.

II

This part shall cover my survey of the relevant rules on inhibition or

disqualification of judges.
 First, there is Section 5, Canon 3 of the New Code of Judicial Conduct, cited
by respondent, which provides as follows:

Sec. 5. Judges shall disqualify themselves from participating in any

proceedings in which they are unable to decide the matter impartially or in
which it may appear to a reasonable observer that they are unable to decide
a matter impartially. Such proceedings include, but are not limited to
instances where:

a) The judge has actual bias or prejudice concerning a party or personal

knowledge of disputed evidentiary facts concerning the proceedings;

b) The judge previously served as a lawyer or was a material witness in the

matter in controversy;

c) The judge, or a member of his or her family, has an economic interest in

the outcome of the matter in controversy;

d) The judge served as executor, administrator, guardian, trustee or lawyer

in the case or matter in controversy, or a former associate of the judge
served as counsel during their association, or the judge or lawyer was a
material witness therein;

e) The judge's ruling in a lower court is the subject of review;

f) The judge is related by consanguinity or affinity to a party litigant within

the sixth civil degree or to counsel within the fourth civil degree; or

g) The judge knows that his or her spouse or child has a financial interest, as
heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in
controversy or in a party to the proceeding, or any other interest that could
be substantially affected by the outcome of the proceedings.

A.M. No. 03-05-01-SC, or the Adoption of the New Code of the Philippine Judiciary,
was promulgated on May 15, 2004. It was touted as the Philippines' acceptance and
implementation of the Bangalore Draft of the Code of Judicial Conduct which was, in
turn, intended to be the Universal Declaration of Judicial Standards applicable in all
judiciaries of member countries.16 Somewhat similarly with the New Code of Judicial
Conduct, Bangalore Draft Value 2.5 provides:
2.5 A judge shall disqualify himself or herself from participating in any proceedings
in which the judge is unable to decide the matter impartially or in which it may
appear to a reasonable observer that the judge is unable to decide the matter
impartially. Such proceedings include, but are not limited to, instances where:

2.5.1 the judge has actual bias or prejudice concerning a party or personal
knowledge of disputed evidentiary facts concerning the proceedings;
2.5.2 the judge previously served as a lawyer or was a material witness in the
matter in controversy; or

2.5.3 the judge or a member of the judge's family, has an economic interest in the
outcome of the matter in controversy: Provided that disqualification of a judge shall
not be required if no other tribunal can be constituted to deal with the case or,
because of urgent circumstances, failure to act could lead to a serious miscarriage
of justice.
Rule 137 of the Rules of Court also enumerates grounds for either the
disqualification or inhibition of a judge, to wit:
Sec. 1. Disqualification of judges. - No judge or judicial officer shall sit in any case
in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree, computed
according to the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has been presided in any
inferior court when his ruling or decision is the subject of review, without the
written consent of all parties in interest, signed by them and entered upon the
record.

A judge may in the exercise of his sound discretion, disqualify himself from sitting
in a case, for just or valid reasons other than those mentioned above.17
Finally, Rule 8 of A.M. No. 10-4-20-SC, or the Internal Rules of the Supreme
Court,18 also provides the following grounds for inhibition:
Sec. 1. Grounds for inhibition. - A Member of the Court shall inhibit himself or
herself from participating in the resolution of the case for any of these and similar
reasons:

(a) the Member of the Court was the ponente of the decision or participated in the
proceedings in the appellate or trial court;

(b) the Member of the Court was counsel, partner or member of law firm that is or
was the counsel in the case subject to Section 3(c) of this rule;

(c) the Member of the Court or his or her spouse, parent or child is pecuniarily
interested in the case;

(d) the Member of the Court is related to either party in the case within the sixth
degree of consanguinity or affinity, or to an attorney or any member of a law firm
who is counsel of record in the case within the fourth degree of consanguinity or
affinity;

(e) the Member of the Court was executor, administrator, guardian or trustee in the
case; and

(f) the Member of the Court was an official or is the spouse of an official or former
official of a government agency or private entity that is a party to the case and the
Justice or his or her spouse has reviewed or acted on any matter relating to the
case.

A Member of the Court may in the exercise of his or her sound discretion, inhibit
himself or herself for a just or valid reason other than any of those mentioned
above.

The inhibiting Member must state the precise reason for the inhibition.
In comparison, the applicable United States federal statute on the inhibition of
justices and judges, which is broadly governed by Section 455 of the Ethical
Standard Act of 1988, provides that:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a

lawyer with whom he previously practiced law served during such association as a
lawyer concerning the matter, or the judge or such lawyer has been a material
witness concerning it;

(3) Where he has served in governmental employment and in such capacity

participated as counsel, adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of
them, or the spouse of such a person:

(i) Is a party to the proceeding or an officer, director or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected
by the outcome of the proceeding;

(iv) Is, to the judge's knowledge, likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial
interests, and make a reasonable effort to inform himself about the personal
financial interests of his spouse and minor children residing in his household.
Relatedly, and upon study of the foregoing rules, there seems to me an established
dichotomy between grounds calling for mandatory disqualifications and voluntary
inhibitions.

Grounds calling for the mandatory disqualification of judges from sitting in, and
deciding, cases are those set forth in paragraphs (b) to (g), Section 5Canon 3 of
the New Code of Judicial Conduct, the first paragraph of Section 1, Rule 137 of the
Rules of Court, and the first paragraph of Section 1, Rule 8 of the Internal Rules of
the Supreme Court. These provisions similarly provide for objectively verifiable
bases upon which to support a judge's disqualification. On the other hand, the
second paragraphs of both Section 1, Rule 137 of the Rules of Court and Rule 8 of
the Internal Rules similarly provide that a judge may, in the exercise of his
discretion, inhibit himself or herself for a just or valid reason other than any of
those calling for mandatory disqualification. To me, the decision of whether to
participate in a case is left to the judge's sound discretion because it acknowledges
the possibility of other grounds for inhibition which, by nature, may not be
objectively verifiable, as compared to the previous grounds so listed.

While paragraph (a), Section 5, Canon 3 of the New Code of Judicial Conduct can
arguably be construed to call for the mandatory disqualification of a judge due to
the use of the word "shall," it is my view that a careful (and reconciliatory) reading
of this Section would show that it is more akin to the grounds provided under the
second paragraph of Section 1, Rule 137 of the Rules of Court and the penultimate
paragraph of Section 1, Rule 8 of the Internal Rules. Unlike the prophylactic
grounds enumerated in the first paragraphs of the aforementioned sections of the
Rules, which include verifiable relations of consanguinity or affinity and pecuniary
interests, bias and prejudice do not submit themselves to mathematically precise
determination and are therefore included in the grounds that are to be decided
based on the challenged judge's discretion.

III

The dichotomy between mandatory and voluntary inhibitions, I find, has been
validated by jurisprudence, at least insofar as to the manner by which such
disqualification or inhibition shall be made. This Court has consistently pronounced
that the first paragraphs of Section 1, Rule 137 of the Rules of Court and Section 1,
Rule 8 of the Internal Rules of the Supreme Court, by virtue of their objective
verifiability, warrant prompt compulsory disqualification, regardless of the will of
the judge.19 However, when the prayer for inhibition is triggered by grounds that
are not objectively verifiable, such as bias or prejudice, the Court generally leaves
the inhibition discretionary, and submits it to the sole discernment of the judge
sought to be inhibited.20

Furthermore, I find from my review of Philippine jurisprudence that cases involving

the recusal of judges and justices below the level of this Court have generally been
approached following this methodology: First, the Court decides whether the facts
trigger the application of mandatory disqualification or discretionary inhibition;
Second, if the grounds raised on the motion call for mandatory disqualification, the
Court involves itself and ensures disqualification of the challenged judge; If,
however, it finds that the grounds raised are discretionary, the Court leaves the
decision of inhibition to the best judgment and careful self-examination of the judge
concerned, save for instances where grave abuse of discretion is shown.

Unfortunately, the Court has not laid down a clear litmus test by which a case
of voluntary recusal by lower court judges and justices should be decided. As it
stands, it seems to me that the body of law on discretionary recusal turns on eight
(8) identifiable, but not internally consistent, principles: (1) partiality of a judge or
justice is not presumed;21 (2) bare allegations of partiality are not sufficient;22 (3)
clear and convincing extrinsic evidence is required to prove partiality;23 (4)
voluntary inhibition applies only to conduct or statements made from extrajudicial
sources, i.e., not in the court proceedings in question;24 (5) the judge must do a
careful self-examination before deciding;25 (6) the judge or justice has a duty to
decide and to sit;26 (7) judges and justices must act "like Caesar's wife - above
suspicion";27 and (8) the judge's or justice's decision must affirm the public's faith
in the judiciary, for "any act which would give the appearance of impropriety
becomes, of itself, reprehensible."28

Demonstrably, court decisions on recusal use one or more of these principles to

anive at conclusions that are widely varied and which decidedly turn on the peculiar
facts of each case. My review of jurisprudence produced two cases, Pimentel v.
Salanga29 and People v. Ong,30 which to me illustrate the stark unpredictability of
applications of these eight principles in theorem vis-a-vis praxis.

In Pimentel, the judge was being inhibited by the litigant by virtue of an earlier
extraneous administrative case filed by the litigant against the same sitting judge.
There, the Court held that "[i]t ill behooves this Court to tar and feather a judge as
biased or prejudiced, simply because counsel for a party litigant happens to
complain against him." It thereafter laid the following guideposts for voluntary
inhibition:
But when suggestion is made of record that he might be induced to act in favor of
one party or with bias or prejudice against a litigant arising out of circumstance
reasonabl y capable of inciting such a state of mind, he should conduct a careful
self-examination. He should exercise his discretion in a way that the people's faith
in the courts of justice is not impaired. A salutary norm is that he reflects on the
probability that a losing party might nurture at the back of his mind the thought
that the judge had unmeritoriously tilted the scales of justice against him.31
In the end, the Court in Pimentel upheld the judge's refusal to inhibit, thus:
As applied here, respondent judge has not as yet crossed the line that divides
partiality and impartiality. He has not thus far stepped to one side of the fulcrum.
No act or conduct of his would show arbitrariness or prejudice. Therefore, we are
not to assume what respondent judge, not otherwise legally disqualified, will do in a
case before him.
The case of Ong, on the other hand, involved the move for the disqualification of
Justice Gregory S. Ong, then an associate justice and chairperson of the Fourth
Division of the Sandiganbayan, from presiding over the trial and sitting in judgment
in ten consolidated cases against former First Lady Imelda R. Marcos. It was
alleged, as grounds for his inhibition, that he made, on separate occasions, remarks
that were allegedly prejudicial and revealing of his predisposition to dismiss the
cases.32 Justice Ong denied the motion to inhibit him. Upon appeal to the Court, we
held that his remark as imputed should have been sufficient ground for Justice Ong
to voluntarily inhibit himself, for "judges must be like Caesar's wife - above
suspicion." This, despite the pronouncement by the Court in the same decision that
two important requirements were not met: first, petitioner was unable to adduce
clear and convincing evidence as required, and second, the potentially prejudicial
remark, apart from being contested, triggered only voluntary inhibition which,
pursuant to other cases that preceded and succeeded it, should have been left to
the conclusive assessment of the judge concerned.

Although both cases involved discretionary inhibition, in Pimentel, the Court

considered the judge's decision notto recuse to be conclusive upon itself. In Ong,
however, the Court effectively reviewed the decision of the challenged justice not to
inhibit from the case, and ultimately reversed it and directed his recusal.

To compare, in American jurisprudence, the issue of recusal is governed by Section

455 of the Ethical Standard Act of 1988, which prescribes that a judge must
disqualify himself whenever his impartiality "might reasonably be questioned." In
applying Section 455, the U.S. Supreme Court has consistently employed the
uniform "test of reasonableness" in examining a judge's actual bias or prejudice or
an appearance thereof, pursuant to the statutory shift33 from a harder evaluative
trigger Gudge's opinion) to Section 455's softer question of reasonability
(appearance of partiality).34

Considering how similar Section 5, Canon 3 of our New Code of Judicial Conduct is
to Section 455 of the U.S. Federal Ethical Standard Act of 1988, I find it useful to
examine how the United States Supreme Court and lower federal courts have
interpreted Section 455.

In 1994, the American Supreme Court in Liteky et al. v. United States35 ruled that
Section 455 disqualifications applied exclusively to extrajudicial sources, thus
settling divergent interpretations made by federal circuit courts of appeals. In the
process, the U.S. Supreme Court explained the origins, meaning and boundaries of
the words "bias and prejudice" and "impartiality" as used under Section 455.

Speaking through Associate Justice Antonin Scalia, the Court explained that not all
unfavourable disposition towards an individual is properly described in the
pejorative terms "bias" or "prejudice" as to merit recusal.36Laying down three tests,
Justice Scalia wrote that for a conduct or utterance to be of the nature as to give
rise to the propriety of inhibition, apart from being extrajudicial, they must be: (1)
undeserved, or one that (2) rests upon the knowledge that the subject ought not to
possess,37 or one that is (3) excessive in degree.38 The U.S. Supreme Court opined
that unless an extrajudicial conduct or utterance is any or all of these three
characterizations, it is not a bias or prejudice that may be reasonably perceived to
warrant the judge's inhibition. Elucidating on the term "extrajudicial source" and
the pejorative characterization of the term "personal bias or prejudice," the Court
held:
In our view, the proper (though unexpressed) rationale for Grinnell, and the basis
of the modern "extrajudicial source" doctrine, is not the statutory term "personal"
for several reasons. First and foremost, that explanation is simply not the semantic
success it pretends tc be. Bias and prejudice seem to us not divided into the
"personal" kind, which is offensive, and the official kind, which is perfectly all right.
As generally used, these are pejorative terms, describing dispositions that are
never appropriate. It is common to speak of "personal bias" or "personal prejudice"
without meaning the adjective to do anything except emphasize the idiosyncratic
nature of bias and prejudice, and certainly without implying that there is some
other "non-personal," benign category of those mental states. In a similar vein, one
speaks of an individual's "personal preference," without implying that he could also
have a "non-personal preference." Secondly, interpreting the term "personal" to
create a complete dichotomy between courtacquired and extrinsically acquired bias
produces results so intolerable as to be absurd. Imagine, for example, a lengthy
trial in which the presiding judge for the first time learns of an obscure religious
sect and acquires a passionate hatred for all its adherents. This would be "official"
rather than "personal" bias and would provide no basis for the judge's recusing
himself.

It seems to us that the origin of the "extrajudicial source" doctrine, and the key to
understanding its flexible scope (or the so-called "exceptions" to it), is simply the
pejorative connotation of the words "bias or prejudice." Not all unfavorable
disposition towards an individual (or his case) is properly described by those terms.
One would not say, for example, that world opinion is biased or prejudiced against
Adolf Hitler. The words connote a favorable or unfavorable disposition or opinion
that is somehow wrongful or inappropriate, either because it is undeserved, or
because it rests upon knowledge that the subject ought not to possess (for
example, a criminal juror who has been biased or prejudiced by receipt of
inadmissible evidence concerning the defendant's prior criminal activities), or
because it is excessive in degree (for example, a criminal juror who is so inflamed
by properly admitted evidence of a defendant's prior criminal activities that he will
vote guilty regardless of the facts). The "extrajudicial source" doctrine is one
application of this pejorativeness requirement to the terms "bias" and "prejudice"
as hey are used in §§ 144 and 455(b)(l) with specific reference to the work of
judges.

The judge who presides at a trial may, upon completion of the evidence, be
exceedingly ill disposed towards the defendant, who has been shown to be a
thoroughly reprehensible person. But the judge is not thereby recusable for bias or
prejudice, since his knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are indeed sometimes
(as in a bench trial) necessary to completion of the judge's task. As Judge Jerome
Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean
child-like innocence. If the judge did not form judgments of the actors in those
court-house dramas called trials, he could never render decisions." In re J. P.
Linahan, Inc., 138 F.2d 650, 654 (CA2 1943). Also not subject to deprecatory
characterization as "bias" or "prejudice" are opinions held by judges as a result of
what they learned in earlier proceedings. It has long been regarded as normal and
proper for a judge to sit in the same case upon its remand, and to sit in successive
trials involving the same defendant.39
Stated differently, Liteky drew the narrowly sharp distinction in extrajudicial
sources, discriminating against those extrajudicial sources that do not necessarily
trigger a question of recusal, and those extrajudicial sources that are wholly
pejorative or "wrongful or inappropriate" as to become a valid impetus for
disqualification.

In 2000, in Microsoft v. United States,40 Chief Justice William H. Rehnquist would

interpret the words "in which his (judge's) impartially might reasonably be
questioned," as used by Section 455, to refer to the "perspective of a reasonable
observer who is informed of all the surrounding facts and circumstances."41

Justice Scalia, in his Memorandum explaining his non-recusal in the 2004 case
of Cheney v. United States, District Court for the District of Columbia,42 would add
that "the decision whether a judge's impartiality can reasonably be questioned is to
be made in light of the facts as they existed, and not as they were sunnised or
reported."

The Ninth Circuit Court of Appeals, in United States v. Holland,43 explained the
concept of the reasonable third-party observer in the following wise:
First, under section 455(a), the judge must apply the "objective" standard
articulated in Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194. That standard requires
recusal if a reasonable third-party observer would perceive that there is a
significant risk.. that the judge will be influenced by the threat and resolve the case
on a basis other than the merits. The reasonable third-party observer is not a
"partly informed man-in-the-street," but rather someone who "understand[s] all the
relevant facts" and has examined the record and law. LoCascio v. United States.
473 F.3d 493, 496 (2d Cir.2007); see also Clemens, 428 F.3d at 1178 ("The
reasonable person in this context means a wellinformed, thoughtful observer, as
opposed to a hypersensitive or unduly suspicious person." (internal quotation marks
and citation omitted)); but see In re Nettles, 394 F.3d 1001, 1002 (7th Cir.2005)
("We must bear in mind that these outside observers are less inclined to credit
judges' impartiality and mental discipline than the judiciary itself will be." (internal
quotation marks and citation omitted)). The "objective" standard is a check to avoid
even the "appearance of partiality," Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194, and
ensure that the judge's decision is reasonable to an informed observer.44
B

Beyond the specific prescriptions of statutes or court rules regulating the

disqualification or recusal of judges for cause, which I have covered above, there
lies the overarching due process guarantee of the Constitution. This guarantee has
given rise to, among others, the stricture that due process of law requires a hearing
before an impartial and disinterested tribunal, and that every litigant is entitled to
nothing less than the cold neutrality of an impartial judge.45
As the Court has recognized in Mateo Jr. v. Villaluz,46 there may be, in addition to
the causes for disqualification identified by Section 1, Rule 137 of the Rules of
Court, other causes that could conceivably erode the trait of objectivity, as to call
for inhibition as a matter of constitutional law.47 These causes, however, would be
rare, and the specific issue in each case would be whether the acts of the judge
complained of would negate the degree of objectivity required by the
Cohstitution.48 Thus, the rule would be that where a claim for the disqualification of
a judge can be resolved under the narrower grounds provided for in the Rules of
Court, the Court will not lightly tread on constitutional grounds. Plainly, not all
grounds for disqualification or recusal implicate the great due process clause of the
Constitution.

In Mateo, Jr., the Court held that a trial judge before whom a witness executed an
extrajudicial statement, which the witness later recanted for having been made
under duress, cannot be expected to rule fairly on the question on whether the
witness executed his statement freely, for indeed to admit that there was
government intimidation would be hardly flattering to the judge.

I read the same judicial attitude of severely limiting the applicability of the due
process clause to the matter of judicial disqualification to obtain in the United
States. The leading case is Caperton v. A. T. Massey Coal Co.49where the U.S.
Supreme Court reiterated that a fair trial in a fair tribunal is a basic requirement of
due process. It recognized, however, that most matters relating to judicial
disqualification do not rise to a constitutional level. Consequently, the U.S. Supreme
Court has limited the application of the due process clause, with respect to judicial
disqualification, to only two instances.

The first involves judges with a financial interest in the outcome of the case,
although the interest was less than what would have been considered personal or
direct at common law. In Tumey v. Ohio,50 involving the case of a village mayor
with authority to sit as judge to try those accused of violating a liquor ban and
receive a salary supplement each time he convicts and levies a fine on an offender
(and none in cases of acquittal), the U.S. Supreme Court held this procedure to
violate the due process clause.

The second instance involved cases where a judge was challenged because of a
conflict arising from his participation in an earlier proceeding. In In re
Murchison,51 a judge examined witnesses to determine whether criminal charges
would be brought against them. Both witnesses appeared before the judge. The
first witness answered questions, which the judge found untruthful and
consequently charged him with perjury. The second witness, who declined to
answer, was charged by the judge with contempt. The same judge thereafter
proceeded to try and convict both witnesses. The Court set aside their convictions
on grounds of conflict of interest, stating that "no man can be a judge in his own
case," and "no man is permitted to try cases where he has an interest in the
outcome."52
There stood jurisprudence until 2009 when the U.S. Supreme Court crafted
a third instance, though one (it was quick to caution) available only under
"extraordinarily extreme facts." In Caperton,53 a West Virginia jury found
respondent coal company guilty of fraud and awarded petitioner $50Million in
damages. West Virginia then held judicial elections. Knowing that the State
Supreme Court of Appeals would be considering the appeal, respondent's chairman
supported Benjamin, against the incumbent justice seeking reelection, with
$3Million in contributions, an amount exceeding the total spent by all other
supporters. Benjamin would go on to win the election by fewer than 50,000 votes.
When petitioner moved to disqualify now Justice Benjamin under the due process
clause and the State's Code of Judicial Conduct, the latter refused to recuse himself
and still participated in making judgment on the appeal. The U.S. Supreme Court
ultimately vacated the judgment of the State Supreme Court of Appeals and held
that Justice Benjamin's participation in the case violated the due process clause of
the Constitution: "Just as no man is allowed to be a judge in his own cause, similar
fears of bias can arise when-without the consent of the other parties-a man
chooses the judge in his own case." It went on to hold that respondent chairman's
significant and disproportionate influence offers a possible temptation to the
average judge to lead him not to hold the balance nice, clear and true, and that
"[o]n these extreme facts, the probability of actual bias rises to an unconstitutional
level."54

IV

While the Internal Rules of the Supreme Court enumerate grounds for inhibition, it
does not specify how the Court should treat a Member's inhibition beyond stating
that the inhibiting member must state, typically in abbreviated language, the
precise reason for the inhibition. The practice of the Court in this respect, on the
other hand, is mixed as it is instructive. This part shall deal with the practice of the
Court with respect to the recusal of its own members.

In Estrada v. Desierto,55 then Associate Justice Artemio Panganiban offered to

inhibit himself (despite absence of proof of any of the grounds for inhibition) so as
not to give any person excuse to cast doubt on the integrity of the proceeding. The
Court accepted the inhibition. Justice Panganiban then wrote an extended opinion
on the subject, discussing at length the distinction between mandatory and
voluntary inhibition.

In contrast, in Veterans Federation Party v. Comelec,56 the Court denied (then

already Chief) Justice Panganiban's offer to inhibit on grounds that he had been
general counsel of one of the respondents. The Court considered, among others,
the fact that the case involved important constitutional questions which should, as
much as possible, be decided by a complete Court.57

In Commission of Internal Revenue v. Court of Appeals,58 Justice Santiago M.

Kapunan denied by way of a resolution a motion for his inhibition. The Court En
Banc upheld Justice Kapunan's decision, declaring thus:
On the motion to disqualify Justice Kapunan from participating in this case, the
Court took note o( the old doctrine that when a Justice of the Court of Appeals or
the Supreme Court is challenged "the magistrate sits with the court and the
question is decided by it as a body." It will be observed. however, that the basis of
the challenge there was that the Justice had previously acted as the fiscal in an
earlier proceeding in the case, a ground for compulsory inhibition, and that the
matter was dealt with under Article 8 of the Code of Civil Procedure the provisions
of which differ from those under the first paragraph of Rule 137 of the Rules of
Court.

xxxx

In the present case. the so-called grounds relied upon for the disqualification of
Justice Kapunan, i.e., his having served under Atty. Estelito Mendoza when the
latter was the Solicitor General, and their having had business relations in
connection with the operation of a small restaurant, even if true, could not
constitute compulsory grounds for Justice Kapunan's recusation. It is for him alone,
therefore, to determine his qualification.59
I have compared the above Philippine experience with the practice in the U.S.
Supreme Court, which does not have formal rules governing recusal by its
Members. In the US, individual Members of the Court have expressed their views
on recusal as contained in extended Memoranda explaining their non-recusal in
specific cases. Chief Justice John G. Roberts, Jr. has also expressed this view on
recusal at the level of the Supreme Court.

Prior to the 1974 amendment to Section 455, Laird v. Tatum60 was the guiding
decision on the question of recusal. The case involved a group of anti-war activists
who brought a challenge to the constitutionality of the U.S. Army's domestic
surveillance program, then perceived as the Nixon administration's attempt at
monitoring the activities of American dissidents. Then Associate Justice Rehnquist
was being disqualified due to his leadership position as an Assistant Attorney
General in the Justice Department's office of Legal Counsel to the White House at
the time the surveillance program was instituted.61 Breaking the U.S. Supreme
Court's perceived ritual of silence to explain his non-recusal,62 Justice Rehnquist
denied the motion to recuse based in part on a reading of the governing
disqualification statute,63 as well as on his consistent observations that "a federal
judge has a duty to sit where not disqualified which is equally as strong as the duty
to not sit where disqualified."64 He explained:
I think that the policy in favor of the "equal duty" concept is even stronger in the
case of a Justice of the Supreme Court of the United States. There is no way of
substituting Justices on this Court as on judge may be substituted for another in
the district courts. There is no higher court of appeal which may review an equally
divided decision of this Court and thereby establish the law for our jurisdiction.

xxxx

While it can seldom be predicted with confidence at the time that a Justice
addresses himself to the issue of disqualification whether or not the Court in a
particular case will be closely divided, the disqualification of one Justice of this
Court raises the possibility of an affirmance of the judgment below by an equally
divided Court. The consequence attending such a result is, of course, that the
principle of law presented by the case is left unsettled. The undesirability of such a
disposition is obviously not a reason for refusing to disqualify oneself where in fact
one deems himself disqualified, but I believe it is a reason for not "bending over
backwards" in order to deem one's self disqualified.65
In 2000, (at the time, already Chief) Justice Rehnquist was again asked to inhibit
from participating, this time in the case of Microsoft v. United States66 on the
ground that Microsoft had retained the services of the law finn for which Chief
Justice Rehnquist's son was a partner. In a Memorandum explaining his non-
recusal, Chief Justice Renhquist said:
Finally, it is important to note the negative impact that the unnecessary
disqualification of even one Justice may have upon our Court. Here-unlike the
situation in a District Court or a Court of Appeals-there is no way to replace a
recused Justice. Not only is the Court deprived of the participation of one of its nine
members, but the even number of those remaining creates a risk of affirmance of a
lower court decision by an equally divided court.
In 2004, Justice Scalia refused to inhibit from the case of Cheney v. United States
District Court for District of Columbia.67 One of the parties to the case sought to
inhibit Justice Scalia because he previously rode on the same government aircraft
and joined a duck hunting trip ith Vice President Richard Cheney, a respondent to
the case. In his Memorandum explaining his non-recusal, Justice Scalia said:
Let me respond, at the outset, to Sierra Club's suggestion that I should "resolve
any doubts in favor of recusal." Motion to Recuse 8. That might be sound advice if I
were sitting on a Court of Appeals. But see In re Aguinda, 241 F. 3d 194, 201 (CA2
2000). There, my place would be taken by another judge, and the case would
proceed normally. On the Supreme Court, however, the consequence is different:
The court proceeds with eight justices, raising the possibility that, by reason of a tie
vote, it will find itself unable to resolve the significant legal issue presented by the
case. x x x Moreover, granting the motion is (insofar as the outcome of the
particular case is concerned) effectively the same as casting a vote against the
petitioner. The petitioner needs five votes to overturn the judgment below, and it
makes no difference whether the needed fifth vote is missing because it has been
cast for the other side, or because it has not been cast at all.68
In more recent high-profile cases, issues of non-recusal were settled with the
challenged Justices refusing to recuse without an extended explanation for such
choice. This silent non-recusal is perhaps best illustrated by the denial of the
motions to disqualify Justices Clarence Thomas and Elena Kagan from participating
in the cases posing legal challenges to the constitutionality of the Patient Protection
and Affordable Care Act (PPACA) of 201069 of then President Barrack Obama.
Justice Thomas's impartiality was questioned by vittue of the fact that his wife,
Virginia Thomas, was actively engaged with a conservative policy group that
challenged the constitutionality of the Obama health care law.70 and herself a highly
visible voice in a nationwide campaign against the Obama administration and its
health-care reform law.71 Justice Kagan, for her part, was sought to be disqualified
from participating in the case on the ground that she was Solicitor General when
the Obama administration was building the defense for the health care law's
legality.72 In the end, both Justices Thomas and Kagan refused to recuse from the
case, and neither issued a written official explanation for the same.

It is generally held that the Thomas and Kagan non-recusals led Chief Justice
Roberts to discuss the American Supreme Court practice on recusals in his 2011
Year-End Report:
Congress has directed that federal judicial officers must disqualify themselves from
hearing cases in specified circumstances. As in the case of financial reporting and
gift requirements, the limits of Congress's power to require recusal have never
been tested. The Justices follow the same general principles respecting recusal as
other federal judges, but the application of those principles can differ due to the
unique circumstances of the Supreme Court. The governing statute, which i s set
out in Title 28, Section 455, of the United States Code, states, as a general
principle, that a judge shall recuse in any case in which the judge's impartiality
might reasonably be questioned. That objective standard focuses the recusal
inquiry on the perspective of a reasonable person who is knowledgeable about the
legal process and fan1iliar with the relevant facts. Section 455 also identifies a
number of more specific circumstances when a judge must recuse. All of the federal
courts follow essentially the same process in resolving recusal questions. In the
lower courts, individual judges decide for themselves whether recusal is warranted,
sometimes in response to a formal written motion from a party, and sometimes at
the judge's own initiative. In applying the Section 455 standard, the judge may
consult precedent, consider treatises and scholarly publications, and seek advice
from other sources, including judicial colleagues and the Judicial Conference's
Committee on Codes of Conduct. A trial judge's decision not to recuse is reviewable
by a court of appeals, and a court of appeals judge's decision not to recuse is
reviewabl e by the Supreme Court. A court normally does not sit in judgment of one
of its own members' recusal decision in the course of deciding a case. The process
within the Supreme Court is similar. Like lower court judges, the individual Justices
decide for themselves whether recusal is warranted under Section 455. They may
consider recusal in response to a request from a party in a pending case, or on their
own initiative. They may also examine precedent and scholarly publications, seek
advice from the Court's Legal Office, consult colleagues, and even seek counsel
from the Committee on Codes of Conduct. There is only one major difference in the
recusal process: There is no higher court to review a Justice's decision not to recuse
in a particular case. This is a consequence of the Constitution's command that there
be only one supreme Court. The Justices serve on the Nation's court of last resort.
As in the case of the lower courts, the Supreme Court does not sit in judgment of
one of its own Members decision whether to recuse in the course of deciding a case.
Indeed, if the Supreme Court reviewed those decisions, it would create an
undesirable situation in which the Court could affect the outcome of a case by
selecting who among its Members may participate. Although a Justice's process for
considering recusal is similar to that of the lower court judges, the Justice must
consider an important factor that is not present in the lower courts. Lower court
judges can freely substitute for one another. If an appeals court or district court
judge withdraws from a case, there is another federal judge who can serve in that
recused judge's place. But the Supreme Court consists of nine Members who always
sit together, and if a Justice withdraws from a case, the Court must sit without its
full membership. A Justice accordingl y cannot withdraw from a case as a matter of
convenience or simply to avoid controversy. Rather, each Justice has an obligation
to the Court to be sure of the need to recuse before deciding to withdraw from a
case.73
This acknowledgment of a heightened, if not heavier, sense of responsibility when it
comes to recusals within its ranks echoes the sentiment earlier articulated by the
Court in its 1993 Statement of Recusal Policy regarding cases when a covered
relative-lawyer "has participated in the case at an earlier stage of the litigation," or
when [he] is "a partner in a finn appearing before [the Court.]" There, the U.S.
Supreme Court, in carefully delineating the specific instances wherein recusal by its
members on the above grounds wou ld be warranted, explained:
Even one unnecessary recusal impairs the functioning of the Court. x x x In this
Court, where the absence of one Justice cannot be made up by another, needless
recusal deprives litigants of the nine Justices to which they are entitled, produces
the possibility of an even division on the merits of the case, and has a distorting
effect upon the certiorari process. requiring the petitioner to obtain (under our
current practice) four votes out of eight instead of four votes out of nine. x x x
Conclusion

In wrestling with the present issue of recusal, I have taken to heart the process
suggested by Chief Justice Roberts and exerted my utmost to identify and explain
the legal reasoning behind my decision on this very divisive issue.74 Marrying the
best insights from our laws and experience and those from our American
counterparts, I have resolved to participate in this case.

First, I resolved to sit in this case by tilting the balance in favor of giving full weight
to the value of a judge's duty to sit and decide a case. I am convinced that the
grave importance of this case, its far-reaching doctrinal value and its permanent
implications to the Court as an institution and an equal branch of Government call
for no less than a decision made by a full court. Consistent with Veterans
Federation Party, a decision handed down by any less than that would, in my view,
only fall short of affirming the public's faith in our country's administration of
justice.75

Second, and after careful reflection, I have come to the view that questions of
inhibition should, as a principle, be solely addressed to, and answered by, the good
judgment and conscience of the individual Justice/s concerned. To permit otherwise
would only contribute to the arguably attractive temptation of "strategizing
recusals."76 As in this case, respondent should not be allowed to affect (or worse,
impair) the ability of the Court to decide significant legal issues with its full
membership through the simple expedient of fashioning a colorable ground for
inhibition on the part of one (or some) of its members.

Third, on analysis, my acts complained of, under all the circumstances, do not
negate the degree of objectivity required of me by the due process clause of the
Constitution as to disqualify me. Far from it, I am convinced that respondent's
factual bases, when measured against the three tests in Liteky, all fail to prove my
alleged bias and prejudice against her. My conduct and utterances of which she
complains were not undeserved, as they were not done or said by me to merely vex
her reputation. They were all founded on fact. They were also only done and said in
self-defense, as measures to restore whatever I could salvage or restore of my
name, in the face of respondent 's unprovoked assaults on my integrity. This is the
reason why I have endeavored to include in this Resolution a full narration of the
facts that led to her attacks on me, and my acts and words done subsequent to the
issuance by the Arbitral Tribunal in The Hague of its ruling, which release allowed
me to air my full side.

Specifically, my act of calling her "treasonous" was merely in reference to the

lexical equivalent of the label she rerself used to pertain to me and my actions. In
fact, I find that the use of said term was not undeserved as it was merely
semantically descriptive, and was merited, even necessary, in the instance that I
employed it. As I earlier recounted, respondent recklessly placed into the public
domain sensitive issues of legal strategy77 and characterized Itu Aba in her public
filings as an island,78 contrary to national interest, in general, and the Republic's
official submission before the UNCLOS arbitral tribunal, in particular. My use of the
word "inhumane" to depict her manner and means of objecting to my nomination
was also not undeserved, as it was, in fact, how I personally perceived such an
affront. Such perception is personal, the effect of which is not measured by the
doer of the act, but by its receiver. Furthermore, the suggestion that my
characterizations of respondent persists to this day cannot be conceived as
undeserved, for it is wholly an opinion, based on facts, one which she and maybe
those sympathetic to her are completely free to disagree with.

My conduct and utterances were also not based on evidence or information illegally
received, as all the facts upon which I anchored my actions were culled from my
personal experience and knowledge. All the bases for my actions, whether it be the
"treasonous" description attributed to her, or the "inhumane" depiction of her
actions, or the negative characterization of herself, are borne of my personal
knowledge, and not obtained through other means. Finally, I do not believe my
conduct or utterances were excessive, as they were not made with blind fury, but
only with righteous indignation and merely as a means to the vindication of a right.

Finally, and maybe most importantly, my actions and words complained of are
wholly extraneous and immaterial to the facts and issues raised in this Quo
Warranto petition which specifically relates to respondent's alleged deficient
submissions of her Statement of Assets, Liabilities and Net Worth (SALN). That I
cannot be impartial and decide this case on the merits based on the facts and
evidence on record cannot be presumed simply on account of my unpleasant
"history" with respondent.

This Resolution is intended to serve as a record upon which all wellinformed and
reasonable observers who care to know the facts can make their own judgment on
whether my acts and words rise to the level of a disqualifying bias or prejudice. To
borrow from Chief Justice Rehnquist, I imagine that other reasonable observers
may arrive at a legal conclusion contrary to mine, and that there may be sound
arguments79 that plausibly lean towards my recusal. Perhaps if I were preoccupied
with avoiding controversy and would like to act in favor of simple convenience,80 I
may as well recuse. My conscience, aided by my self-examination and analysis of
the pertinent laws and the facts of the present case, nevertheless impels me
otherwise.

Every judgment of conscience has been said to be obligatory, in that "he who acts
against his conscience always sins."81 Judgment on the soundness of my decision
will ultimately be for the public to decide. I am nevertheless comforted by the fact
that I have resolved this matter with as much transparency and judiciousness as
my conscience dictates and now leave people to decide in accordance with their
own conscience, as "every man should leave me to mine."82

In my Commencement Address to the U.P. College of Law in 2014, I described the

two months that started with respondent's attack on my integrity, the JBC's
rejection of my nomination, my decision to take on a sitting Chief Justice
in Jardeleza v Sereno, the Court's last-minute decision to allow my nomination, and
finally my appointment by President Aquino, as the most painful and difficult time
of my life, as well as of my wife and children. My family and I had to live those two
terrible months with the label "traitor" tarred and feathered on my being. In my
address, I described our painful experience as one "I would not wish on anybody,
not even to those who made these vile accusations against me."

Today, four years later, respondent and her family have had to face up to more
months of attacks on her integrity. Perhaps, because my family and I have endured
such a harrowing experience, I fervently hope that reasonably informed persons
would believe that I would be among the last to taint another human being's name
out of sheer spite.

WHEREFORE, the foregoing premises considered, the Ad Cautelam Respectful

Motion for Inhibition of Hon. Associate Justice Francis H. Jardeleza filed by
Respondent Maria Lourdes P.A. Sereno is hereby DENIED.

SO ORDERED.

Endnotes:

1
A PROPER SENSE OF PRIORITIES, February 6, 1968, Washington, D.C. Taken
from http://www.aavw.org/special_features/speeches_speech_king04.html, last
accessed May 8, 2018.

2
See Establishing a Legal Framework for the Development of a Mechanism for the
Judicial Responsibility of an Incumbent Supreme Court Justice: Judicial
Independence and Judicial Accountability in Light of Recent Jurisprudence and Legal
Developments by Maria Luisa Isabel L. Rosales, Ateneo Law Journal, Vol. 56.
pp.558-640.

3
Ad Cautelam Respectful Motion for Inhibition (Motion), pp. 2-5; emphasis and
underscoring retained.

4
Motion, p. 6.

5
Motion. pp. 6-8; emphasis and underscoring retained.

6
Motion, p. 9; emphasis and underscoring retained.

7
G.R. No. 213181, August 19, 2014, J. Leonen's dissent, citing Judicial and Bar
Council Supplementary Reply, pp. 1-7, pp. 170-176 of the Records.

8
Id.

9
Id., more fully, the pertinent portion of the dissent read "She was asked whether
the integrity objection would hold considering that there was no proof that the
Petitioner obtained money for his actuation in the West Philippine Sea case. She
explained her point of view that one's capacity and willingness to uphold the
Constitution determines in tegrity. An objection to integrity does not necessarily
require proof of unlawful receipt of money in exchange for a decision or an action.
She stressed that one does not have integrity when one is not willing to protect the
interest of one's client to the utmost, especially in this case when the client
happens to be the Republic. She said that through his actuations, Petitioner has
demonstrated weakness of character. She inferred that he may have been listening
to extraneous factors or may have been promised something. She also said she had
seen many instances where national interests had been compromised because of
personal agendas. She cited her experiences as the Director of the Institute of
International Legal Studies in the University of the Philippines, when she observed
the actuations of certain government officials. She saw how the country's ability to
protect Scarborough Shoal was compromised by a foreign affairs official in
exchange for a possible United Nations position. She also observed how public
officials were willing to see the country lose its defense in the two international
arbitration cases brought against it by the companies Fraport and Philippine
International Air Terminals Co., Inc., all for something other than duty to the
Republic."

10
Said final award was issued by the Permanent Court of Arbitration at The Hague
on July 12, 2016.

11
See Tarra Quismundo's "Jardeleza lashes out at 2 SC colleagues", Philippine Daily
Inquirer, July 1, 2015; "Sereno: It's not helpful to comment on Jardeleza
attack", Philippine Daily Inquirer, July 3, 2015.

12
See Memorandum Circular No. 78, Promulgating Rules Governing Security of
Classified Matter in Government Offices, August 14, 1964. See also Memorandum
Circular No. 196, amending MC No. 78, July 19, 1968; Letter of Inst ruction No.
1420. Prohibiting disclosure to unauthorized persons, the media or general public,
top secret, secret, confidential or restricted matters; Executive Order No. 608,
Establishing a National Security Clearance System for Government Personnel with
Access to Classified Matters and For Other Purposes, March 30, 2007; Republic Act
No. 6713, Code of Conduct and Ethical Standards for Public Officials and
Employees; Civil Service Commission Resolution No. 1101502, Revised Rules on
Administrative Cases in the Civil Service (RRACCS), November 18, 2011.

13
With the full transcript of the Keynote Address attached hereto as "Annex A."

14
In this Memorandum, lead counsel for the Republic, Paul Reichler, argued that
ignoring the issue of Itu Aba would damage the Philippines's credibility before the
Tribunal and undermine the entire case. Executive Secretary Paquito Ochoa Jr, then
Chief Presidential Legal Counsel (now Associate Justice of the Court) Alfredo
Benjamin Caguioa, and I, for our part, crafted our own memorandum where we
argued that the legal and political risks of "mentioning" Itu Aba were no different
from the risks of amending the submission to "include" Itu Aba.

15
As fate and the vagaries of litigation would have it, the Arbitral Tribunal itself
later on directed the Philippines to make submissions on the status of more than
twenty features in the Spratly Islands, including Itu Aba, and made the
determination of their status part of the proceeding.

16
The Bangalore Draft was deliberated upon and approved at the Round Table
Meeting of Chief Justices by the Judicial Group on Strengthening Judicial Integrity at
the Peace Palace, The Hague, on November 25-26, 2002. For further analysis of the
history of the Bangalore draft as the precursor of the Philippine New Code of
Judicial Conduct, see Commentary on the Bangalore Principles of Judicial Conduct,
by the United Nations Office on Drugs and Crime, September 2007.

17
Rule 137, in turn, had its origins in Section 8 of Act 190, or the 1901 Code of
Civil Procedure. In People v. Lopez (G.R. No. L-1243, April 14, 1947), the Court
interpreted the determination of the question of a Justice's disqualification and
competency under Section 8 of said Act to lie on the Justice's power alone, with the
intervention of the Court as merely advisory in nature. Later on, the Supreme Court
promulgated the Rules of Court where Rule 126, covering the rule on
disqualification of judges, which appears to have merely reproduced Section 8 and
Section 608 of the Code of Civil Procedure (Vargas v. Rilloraza, G.R. No. L-1612,
February 26, 1948; People v. Lopez, G.R. No. L-1243, April 14, 1947).

18
Published on May 7, 2010 in the Manila Bulletin; as amended in the Resolutions
dated July 6, 2010, August 3, 2010, January 17, 2012, July 31, 2012, September
18, 2012, March 12, 2013, June 18, 2013 and September 10, 2013.

Santos v. Lacurom, A.M. No. RTJ-04-1823 (Resolution), August 28, 2006, 531
19

PHIL 239-253; Ong v. Spouses Basco, G.R. No. 167899, August 6, 2008, 583 PHIL
248-256); Chin v. Court of Appeals, G.R. No. 144618, August 15, 2003, 409 SCRA
206, 212.

20
There have been a few cases wherein the Court has seen fit to intervene
effectively reverse the Justice's offer/decision on the question of recusal
(See People v. Ong, G.R. Nos. 162130-39, May 5, 2006, and Veterans Federation
Party v. COMELEC, G.R. Nos. 136781, 136786 and 136795, October 6, 2000).

21
See Pimentel v. Salanga, G.R. No. 27934, September 18, 1967, 21 SCRA
160; People v. Court of Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-
160; Saylo v. Rojo, A.M. No. MTJ-99-1225, April 12, 2000, 386 PHIL 446-
452; Soriano v. Angeles, G.R. No. 109920, August 31, 2000, 393 PHIL 769-
784; Gohu v. Spouses Gohu, G.R. No. 128230, October 13, 2000, 397 PHIL 126-
136; Gochan v. Gochan, G.R. No. 143089, February 27, 2003, 446 PHIL 433-
461; Talag v. Reyes, A.M. No. RTJ-04-1852, OCA-IPI No. 03-1759-RTJ, June 3,
2004, 474 PHIL 481-491; Planas v. Reyes, A.M. No. RTJ-05-1905, OCA-IPI No. 03-
1712-RTJ, February 23, 2005, 492 PHIL 288-302; Republic v. Evangelista, G.R. No.
156015, August 11, 2005, 504 PHIL 115-125.

22
See People v. Kho; Go v. Court of Appeals, G.R. No. 106087, April 7, 1993, 221
SCRA 397; Abad v. Belen, A.M. No. RTJ-92-813, January 30, 1995, 240 SCRA
733; People v. Tabarno, G.R. No. 101338, March 20, 1995, 242 SCRA 456; People
v. Court of Appeals and Pacificador, G.R. No. 129120, July 2, 1999, 309 SCRA
705; People v. Court of Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-
160; Gohu v. Spouses Gohu, G.R. No. 128230, October 13, 2000, 397 PHIL 126-
136; Pagoda Philippines, Inc. v. Universal Canning, Inc., G.R. No. 160966, October
11, 2005, 509 PHIL 339-347; Spouses Abrajano v. Heirs of Salas, Jr., G.R. No.
158895, February 16, 2006, 517 PHIL 663-676; Kilosbayan Foundation v. Janolo,
Jr., G.R. No. 180543, July 27, 2010, 640 PHIL 33-61; Aguinaldo v. Aquino III, G.R.
No. 224302, February 21, 2017.

Supra note 20; See also Aleria v. Velez, G.R. No. 127400, November 16,
23

1998; Gahol v. Riodique, G.R. No. L-40415, June 27, 1975, 65 SCRA 505; Dimo
Realty & Development Inc. v. Dimaculangan, G.R. No. 130991, March 11,
2004; Castillo v. Juan, G.R. Nos. 1-39516-17, January 28, 1975, 159 PHIL 143-
149; Cruz v. Iturralde, A.M. No. RTJ-03-1775, April 30, 2003. 450 PHIL 77-
88; Dimo Realty and Development Inc. v. Dimaculangan, G.R. No. 130991, March
11, 2004, 469 PHIL 373-385; Planas v. Reyes, A.M. No. RTJ-05-1905, OCA-IPI No.
03-1712-RTJ, February 23, 2005, 492 PHIL 288-302; Spouses Abrajano v. Heirs of
Salas, Jr., G.R. No. 158895, February 16, 2006, 517 PHIL 663-676; Villamar, Jr. v.
Manalastas, G.R. No. 171247, July 22, 2015; Castro v. Mangrobang, A.M. No. RTJ-
16-2455, Resolution, April 11, 2016.

Supra note 20 and 21; Webb v. People, G.R. No. 127262, July 24, 1997, 276
24

SCRA 243, 253-254, citing People v. Massarella, 400 N.E. 2d, 436; Aleria, Jr. v.
Velez, G.R. No. 127400, November 16, 1998, 359 PHIL 141-150; People v. Court of
Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-160; De Vera v. Dames II,
A.M. No. RTJ-99-1455, July 13, 1999, 369 PHIL 470-486; Seveses v. Court of
Appeals, G.R. No. 102675, October 13, 1999, 375 PHIL 64-74; Viewmaster
Construction Corp. v. Roxas, G.R. No. 133576, July 13, 2000, 390 PHIL 872-
884; Soriano v. Angeles, G.R. No. 109920, August 31, 2000, 393 PHIL 769-
784; Estrada v. Desierto, G.R. Nos. 146710-15, 146738, March 2, 2001, 406 PHIL
1-142; Gochan v. Gochan, G.R. No. 143089, February 27, 2003, 446 PHIL 433-
461; Cruz v. Iturralde, A.M. No. RTJ-03-1775, April 30, 2003, 450 PHIL 77-88; Chin
v. Court of Appeals, G.R. No. 144618, August 15, 2003, 456 PHIL 440-
453; Spouses Hizon v. Spouses Mangahas, G.R. No. 152328, March 23, 2004, 469
PHIL 1076-1076; Tan v. Estoconing, A.M. Nos. MTJ-04-1554 & MTJ-04-1562, June
29, 2005, 500 PHIL 392-407; Republic v. Evangelista, G.R. No. 156015, August 11,
2005, 504 PHIL 115-125; Republic v. Gingoyon, G.R. No. 166429, December 19,
2005, 514 PHIL 657-782; Spouses Duma v. Espinas, G.R. No. 141962, January 25,
2006, 515 PHIL 685-701; Deutsche Bank Manila v. Spouses Chua Yok See, G.R. No.
165606, February 6, 2006. 517 PHIL 212-235; People v. Ong, G.R. Nos. 162130-
39, May 5, 2006, 523 PHIL 347-359; Pasricha v. Don Luis Dison Realty, Inc., G.R.
No. 136409, March 14, 2008, 572 PHIL 52-71; Reyes v. Paderanga, A.M. No. RTJ-
06-1973, March 14, 2008, 572 PHIL 27-44; Heirs of Juaban v. Bancale, G.R. No.
156011, July 3, 2008, 579 PHIL 285-297; Law Firm of Tungol & Tibayan v. Court of
Appeals, G.R. No. 169298, July 9, 2008. 579 PHIL 717-730; Ong v. Spouses Basco,
G.R. No. 167899, August 6, 2008, 583 PHIL 248-256; Dipatuan v. Mangotara, A.M.
No. RTJ-09-2190, April 23, 2010, 633 PHIL 67-79; Kilosbayan Foundation v. Janolo,
Jr., G.R. No. 180543, July 27, 2010, 640 PHIL 33-61; City Government of Butuan v.
Consolidated Broadcasting System, Inc., G.R. No. 157315, December 1, 2010, 651
PHIL 37-56; Melendres v. Presidential Anti Graft Commission, G.R. No. 163859,
August 15, 2012, 692 PHIL 546-565; Sison-Barias v. Rubia, A.M. No. RTJ-14-2388,
June 10, 2014, 736 PHIL 81-123; Jimenez, Jr. v. People, G.R. Nos. 209195,
209215, September 17, 2014; Umali, Jr. v. Hernandez, IPI No. 15-35-SB-J,
February 23, 2016; Aranjuez v. Magno, A.C. No. 10526, July 19, 2017.

Gacayan v. Pamintuan, A.M. No. RTJ-99-1483, September 17, 1999, 314 SCRA
25

682; Mateo, Jr. v. Villaluz, G.R. Nos. L-34756-59, March 31, 1973, 151-A PHIL 21-
34; Bautista v. Rebueno, G.R. No. L-46117, February 22, 1978, 171 PHIL 472-
480; Paderanga v. Azura, G.R. No. L-69640-45, April 30, 1985, 220 PHIL 644-
647; Intestate Estate of the Late Borromeo v. Borromeo, G.R. No. L-41171, L-
55000. L-62895, L-63818, L-65995, July 23, 1987, 236 PHIL 184-212; Gutang v.
Court of Appeals, G.R. No. 124760, July 8, 1998, 354 PHIL 77-90; Garcia v.
Burgos, G.R. No. 124130, June 29, 1998, 353 PHIL 740-775; Republic v. Gingoyon,
G.R. No. 166429, December 19, 2005, 514 PHIL 657-782; Castro v. Mangrobang,
A.M. No. RTJ-16-2455, April 11, 2016.

26
See People v. Ong and Webb v. People; People v. Kho, G.R. No. 139381, April
20, 2001, 409 PHIL 326-337; Chin v. Court of Appeals, G.R. No. 144618, August
15, 2003, 456 PHIL 440-453; Pagoda Philippines, Inc. v. Universal Canning, Inc.,
G.R. No. 160966, October 11, 2005, 509 PHIL 339-347.

27
People v. Ong, supra note 19; Palang v. Zosa, G.R. No. L-38229, August 30,
1974, 157 PHIL 761-764; Villapando v. Quitain, G.R. No. L-41333, L-41738, L-
41739, L-41740, L-41741, January 20, 1977, 166 PHIL 26-33; Bautista v. Rebueno,
G.R. No. L-46117, February 22, 1978, 171 PHIL 472-480; Rosauro v. Villanueva,
Jr., A.M. No. RTJ-99-1433, June 26, 2000, 389 PHIL 699-707.

Supra note 20; Aguas v. Court of Appeals, G.R. No. 1 20107, January 20, 1998,
28

348 PHIL 417-427; People v. Ong, G.R. Nos. 162130-39, May 5, 2006, 523 PHIL
347-359; Calayag v. Sulpicio Lines, Inc., G.R. No. 221864, September 14, 2016.

29
Supra note 21.

30
Supra note 20.

31
Emphasis supplied.

32
Supra note 20.

33
After the 1974 amendment.

34
James Sample, Supreme Court Recusal from Marbury to the Modern Day, 26
Geo. J. Legal Ethics 95 (2013); citing Debra Lyn Bassett, Judicial Disqualification in
the Federal Courts, 87 Iowa L. Rev. 1213, 1225 (2002) at 603.

35
510 U.S. 540 (1994).

36
Id. at 550.

37
"For example, a criminal juror who has been biased or prejudiced by receipt of
inadmissible evidence concern ing the defendant's prior criminal activities."

38
"For example, a criminal juror who is so inflamed by properly admitted evidence
of defendant's prior criminal activities that he will vote guilty regardless of the
facts."

Supra note 34, pp. 549-551. See also Shawn P. Flaherty, Liteky v. United States:
39

The Entrenchment of an Extrajudicial Source Factor in the Recusal of federal Judges

under 28 U.S.C. 455 (a). 15 N. III. U. L. Rev. 411 (1995); Jeremy S.
Brumbelow, Liteky v. United States: The Extrajudicial Source Doctrine and Its
Implications for Judicial Disqualification, 48 Ark. L. Rev. 1059 (1995).

40
Nos. 00-139 and 00-261. Decided September 26, 2000; In this case, Justice
William Rehnquist's inhibition was being sought by virtue of the fact that Microsoft
retained the services of the law firm for which Justice Rehnquist's son was a
partner. In refusing to inhibit himself despite imputations of actual and apparent
bias, Rehnquist opined that for a reasonable observation to be one that determines
his recusal, such observation must be informed of all the facts and circumstances of
the imputed bias, otherwise, such misappreciation of the facts cannot hold sway.
Rehnquist additionally noted the negative impact of the unnecessary disqualification
of even one irreplaceable Justice may have on the Supreme Court.

41
Id.

42
No. 03-475. Decided March 18, 2004; Justice Scalia was being asked to inhibit by
virtue of one duck hunting trip during which he rode the same government aircraft
with then Vice Present Richard Cheney. Scalia rejected the suggestion of recusal by
pounding on the misperception of the public through the pervasive inaccuracies of
facts as told by the media, echoing Rehnquist in saying that a "blast of largely
inaccurate and uninformed opinion cannot determine the recusal question". He
cautioned against the danger of erroneously considering just any perception of bias,
even an unapprised one, as reasonble perception of bias that calls for recusal.

43
519 F.3d 909, 914 (2007).

44
Id. Emphasis supplied. See Joey Kavanagh, "Judicial Impartiality in Recent Civil
Rights Victories: An Analysis of the Disqualification of Judge Shira Scheindlin
in Floyd v. New York City," American University Journal of Gender Social Policy and
Law 23, No. 1 (2014); 197-229.

45
Gutierrez v. Santos, L-15824, May 30, 1961, 2 SCRA 249.

46
G.R. Nos. L-34756-59, March 31, 1973, 50 SCRA 18.

47
Id. at 24.

48
Id. at 28.

49
556 U.S. 886 (2009).

50
273 U.S. 510 (1927).

51
349 U.S. 133 (1955).

52
Id. at 136.

53
556 U.S. 886 (2009).

54
See sharp dissent from Chief Justice Roberts, joined by Justices Scalia, Thomas
and Alito, criticizing the "probability of bias" analysis used by the Court. "Until
today, we have recognized exactly two situations in which the Federal Due Process
Clause requires disqualification of a judge: when the judge has a financial interest
in the outcome of the case, land when the judge is trying a defendant for certain
criminal contempts. Vaguer notions of bias or the appearance of bias were never a
basis for disqualification, either at common law or under our constitutional
precedents. Those issues were instead addressed by legislation or court rules." See
also Lynne H. Rambo, High Court Pretense, Lower Court Candor: Judicial
Impartiality after Caperton v. Massey Coal Co., 13 Cardozo Pub. L. Pol'y & Ethics J.
441 (2015); Raymond J. McKoski, Judicial Disqualification after Caperton v. A.T.
Massey Coal Company: What's Due Process Got to Do With It, 63 Baylor L. Rev.
368 (2011).

55
G.R. No. L-146710-15; G.R. No. 146738, March 2, 2001.

56
Supra note 20.
57
Chief Justice Panganiban would go on to write the opinion for the Court in this
case.

58
G.R. No. 119322, February 6, 1997.

59
Id.

60
Memorandum of Mr. Justice Rehnquist, October 10, 1972, 409 U.S. 824-25.

61
Jeffrey W. Stempel, Rehnquist, Recusal and Reform, 53 Brook.L.Rev., 589, 602
(1987).

62
Robert Nagel, Partiality and Disclosure in the Supreme Court Opinions, 7 Nw.J.L.
& Soc. Pol'y.116 (2012).

63
Supra note 34; Before its amendment two years after Laird, the disqualification
statute required only that a justice disqual ify himself when "he has a substa ntial
interest, has been of counsel, is or has been a material witness, or is so related ...
as to render it improper, in his opinion, for him to sit..."

Supra note 60; citing Edwards v. United States, 334 F.2d 360, 362 (CA5
64

1964); Tynan v. United States, 1 26 U.S.App.D.C. 206, 376 F.2d. 761(1967); In re

Union Leader Corporation, 292 F.2d 381 (CAl 1961); iWolfson v. Palmieri 396 F.2d
121 (CA2 1968); Simmons v. United States, 302 F 2d. 71 (CA3 1962); United
States v. Hoffa, 382 F.2d 856 (CA6 1967); Tucker v. Tucker, 186 F.2d 79 (CA7
1950); Walker v. Bishop, 408 2d 1378 (CA 1969).

65
Id.

66
Supra note 41.

67
Supra note 42.

68
Id. See also Monroe H. Freedman, Duck-Blind Justice: Justice Scalia's
Memorandum in the Cheney Case, 18 Geo. J. Legal Ethics 229 (2004); David
Feldman, Duck Hunting, Deliberating, and Disqualification: Cheney v. U.S. District
Court and the Flaws of 28 U.S.C. Sec 455(A), 15 B.U. Pub. Int. L.J. 319 (2006);
Luke Mcfarland, Is Anyone Listening - The Duty to Sit Still Matters Because the
Justices Say it Does, 24 Geo. J. Legal Ethics 677 (2011).

Florida ex ref. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235,
69

1241 (11th Cir. 2011), cert. granted sub nom. Nat'l Fed'n of Indep. Bus. v.
Sebelius, 132 S. Ct. 603(2011), cert. granted, 132 S. Ct. 604 (2011), and cert.
granted in part, 132 S. Ct. 604 (2011).

70
Carrie Johnson, Health Care Rulings Reignite Judicial Bias Debate, NPR.
December 16, 2010.
71
Jeffrey Toobin, Partners; Will Clarence and Virginia Thomas Succeed in Killing
Obama's Health-Care Plan? The New Yorker, August 29, 2011, at p. 40.

72
Robert Barnes, Recusals Could Force Newest Justice to Miss Many Cases,
Washington Post, October 4, 2010 at A15; further stating "Elena Kagan begins
hearing cases as the Supreme Court's 112th Justice Monday morning. But anyone
who wants to see her in action needs to be sharp. x x x Her chair will be empty
when the Court returns next Tuesday and she'll put in a half-day the next day.
Kagan's old job as solicitor general - the "tenth justice" - is initiall y making it hard
to do her new job as the ninth justice"; See Suzanne Levy, Your Honor, Please Ex
plain: Why Congress Can, and Should, Require Justices to Publish Reasons for Their
Recusal Decisions, 16 U. Pa. J. Const. L. 1161 (2014).

73
Published on December 31, 2011; James Sample, Supreme Court Recusal from
Marbury to the Modern Day, 26 Geo. 1. Legal Ethics 95 (2013).

74
As Lincoln Caplan, in "The Tenth Justice" (1987) posited, since the mea ning of
the Constitution is neither fixed nor self-explanatory, it has been vital that legal
reasoning be marked by its own integrity.

75
Supra note 20.

76
U.S. Supreme Court Statement of Recusal Policy. See also Jurado & Co. v.
Hongkong and Shanghai Banking Corporation (G.R. No. L-1061, October 10, 1902)
where the Court rejected a construction which would allow questions of inhibitions
of its members to be decided by it, to the exclusion of the challenged member/s, as
it would "put it in the power of a party to stop all proceedings in the cause by
challenging [a sufficient number] of the justices."

77
Supra note 7, in the Judicial and Bar Council Supplementary Reply, pp. 14-17,
pp. 183-186 of the Records.

78
Id. at 17-18, 186-187 of the Records.

79
See Gutang v. Court Appeals, G .R. No. 124760, July 8, 1998; Orola v. Alovera,
G.R. No. 111074, July 14, 2000; Luque v. Kayanan, G.R. No. L-26826, August 29,
1969.

80
Supra note 74.

81
Saint Thomas Aquinas, III Quodlibet, p. 27.

82
St. Thomas More's Letter to His Daughter Margaret, 17 April 1534. St. Thomas
More: Selected Letters, Ed. Elizabeth Rogers, Yale University Press, 1961 , Letter
#54, pp. 215-223. Taken
from https://www.thomasmorestudies.org/docs/More%20to%20Margaret%2017%
20Apr%201534.pdf, last accessed May 9, 2018.
 "INTEGRITY, ITU ABA, AND THE RULE OF LAW IN THE WEST PHILIPPINE SEA
ARBITRATION"

A Keynote Speech
By
Supreme Court Associate Justice Francis H. Jardeleza1
IBP Western Visayas Regional Convention
Theme: "Ensuring a legal system based on respect for the rule of law"
October 21, 2016, Iloilo City

Ladies and Gentlemen of the IBP Western Visayas Region, thank you for inviting me
to be your keynote speaker. It warms my heart to speak before friends in Iloilo, the
place where I was born and raised. Here was where I spent my formative years and
where I made life-long friends. I am very grateful for your kind invitation to be with
you today.

Your EVP and Governor for Western Visayas, Atty. Ade, asked me to share my
insights on your convention theme, "Ensuring a legal system based on respect for
the rule of law." As lawyers, we are all sworn. to act in ways designed to advance
respect for the Rule of Law. Each of you, I am sure, may have your own personal
experiences as to how, in your own small ways, you were able to contribute to the
ideal of a legal system based on the Rule of Law. Every experience will carry with it
its own lessons, each one as important as those of the person sitting next to you. It
is, I believe, in the sharing of, and learning from, these experiences that we help
move our profession just that bit nearer to our common aspiration, that of a legal
system based on respect for the rule of law.

Today, I would like to share with you a personal story about integrity and keeping
faith with the rule of law.

As you know, when I aspired for a seat in the Supreme Court, my application was
blocked by the Chief Justice and Senior Associate Justice of the Supreme Court, on
the ground that I lacked integrity, specifically in relation to my handling of the
Republic's West Philippine Sea arbitration against China.

What was this integrity issue all about? Essentially, the Chief Justice and Senior
Associate Justice disagreed with a decision on legal strategy that I made in the case
we filed against China. I actually have a whole lecture to explain what the
Philippines' case against China was about. Since we do not have the time for it now,
I will just try to give you the basics.

In the arbitration case we filed against China, we had four principal submissions or
what we know as causes of action under our Rules on Civil Procedure. One of the
submissions related to the status of certain features in the West Philippine Sea.
Under the United Nations Convention on the Law of the Seas (or UNCLOS), there
are three kinds of land features: an island, a rock, or a low tide elevation.
An island is defined under the UNCLOS as a naturally-formed area of land,
surrounded by water, and is above water at high tide. A good example would be
Luzon Island.

See page 2

(Figure 1)

At the other extreme is the feature called a low tide elevation. It is, by definition,
not visible at high tide. It includes submerged reefs. A good example would be Subi
Reef before China introduced improvements to convert it into an artificial island.
(See fig. 2).

See page 2

(Figure 2)

In between these two categories are features called rocks. They are reefs mainly
below water, but have rocky promontories that protrude at high tide. What
distinguishes them from islands is that they "cannot sustain human habitation or
economic life of its own." A good example would be Scarborough Shoal (See fig. 3).

See page 3

(Figure 3)

Why is it important to ascertain the status of a feature? It is important because, in

simple terms, status determines right to the adjacent sea. An island would, for
example, be entitled to a 12 NM territorial sea and a 200 NM exclusive economic
zone. A rock, on the other hand, would be entitled to a 12 NM territorial sea. A low
tide elevation would not be entitled to anything.

Now, there are more than six hundred features in the West Philippine Sea. Given
the challenges posed by the above definitions, our submission was part of what I
call a low-risk strategy, purposely designed to protect our interests in (1)
Scarborough Shoal, a traditional fishing ground for Filipino fishermen, and (2) Reed
Bank, a potentially oil and gas rich area beyond Palawan. Our submissions were
limited to eight2 features, occupied either by us or by China. These features, we
submitted, were either low-tide elevations (like Subi Reef) entitled to nothing, or at
most, rocks (like Scarborough Shoal) entitled to no more than a 12 NM territorial
sea.

I called it a low-risk strategy because it presented what the team thought was an
"acceptable" worst case scenario, that is, any or all of the features we included in
the suit would be declared rocks entitled to a 12 NM territorial sea. Otherwise
stated, we were confident that none of the features we identified would conceivably
be declared an island (as defined under UNCLOS) capable of generating a 200 NM
EEZ. More importantly, none of the features we identified would be capable of
generating a 200 NM to overlap with our EEZ and put Reed Bank at risk. This was
how matters stood as of January 23, 2013, the date we filed our submission.

Towards the end of 2013, however, and a few months before the Philippine
Memorial was due, our foreign counsel Paul Reichler from Foley Hoag
recommended3 that we amend our submissions to include Ayungin Shoal, Pagasa
plus four other Philippine-occupied features, and Itu Aba, a feature located just
outside our EEZ and occupied by Taiwan. These additional features, we would
argue, are either low tide elevations or rocks not capable of sustaining human
habitation or economic life on its own.

Although our foreign lawyers conceded that there was a risk that the tribunal would
conclude that Itu Aba was significant enough a feature to warrant an entitlement of
up to 200 NM EEZ, they argued that as a practical matter, the Philippines would not
be worse off because competing claims would still remain. That is, even if Itu Aba
was declared an island, Philippine-occupied Pagasa, which is only slightly smaller,
would, by parity of reasoning, likely also be declared an island itself entitled to a
200 NM EEZ which would overlap with the EEZ to be generated by Itu Aba.4

Considering the gravity of the proposal, we asked Mr. Reichler and his team to visit
Manila in January 2014 to discuss the matter further. The Philippine legal team,
which I headed and reported directly to then Executive Secretary Paquito Ochoa,
readily agreed to amend our claim to include Ayungin Shoal, which we asserted to
be a low-tide elevation. At that time, China was already increasing its interference
with Philippine resupply missions to our military personnel in the area. Amending
our claim to include Ayungin did not add any risk to our original low-risk strategy as
the projected worst case would only be, similar to our earlier claims, that it would
be declared a rock entitled to no more than a 12NM territorial sea.

Amending to include Itu Aba was, however, an entirely different matter.

The members of the Philippine team (composed of then Chief Presidential Legal
Counsel, now Supreme Court Associate Justice, Benjamin Caguioa, then
Undersecretary for Special Concerns Mike Musngi, then Foreign Affairs Secretary
Albert del Rosario, then Cabinet Secretary Rene Almendras, myself, and lawyers
from the OSG, DOJ and DOE) were unanimous in deciding against amending our
submissions to include Itu Aba and the four other features occupied by the
Philippines. We explained to Mr. Reichler that doing so would deviate tram the low-
risk strategy that permeated the filing of the arbitration, and that the risk posed by
the inclusion of Itu Aba was not acceptable.

Why? Here are photos of Itu Aba (See fig. 4).

See page 5
(Figure 4)

At approximately 43 square miles, it is the largest feature in the Spratly Islands and
has been occupied by Taiwan since 1946. It reportedly has two wells, garrisoned by
military and coast guard personnel, and is partially covered by scrub grass and
trees. A military supply ship services the feature twice a year, and a civilian
merchant brings general goods every 20 days. Our case being one of first
impression, we did not know how the tribunal would rule on the status of Itu Aba.
Unlike the case of Scarborough Shoal, none of the members of the Philippine legal
team were willing to risk the chances of Itu Aba possibly being declared an island
and end up with a worst case scenario like this (See fig. 5).

See page 6

(Figure 5)

If Itu Aba was declared an island, it would be capable of generating a 200 NM EEZ
that would cover large parts of our EEZ, including Reed Bank and extending almost
up to Palawan. We thus politely informed our foreign counsel, who accepted our
judgment call as client.

Towards the end of March 2014, Undersecretary Musngi and I, together with our
staffs, and lawyers from the DFA, went to Washington, D.C. to supervise the
preparation of the Memorial which was due for filing at the end of the month. It was
then that Reichler and his team proposed to include 14 paragraphs into the
Memorial which would mention that Itu Aba, even as it is largest high tide feature in
the Spratly Islands, is incapable of sustaining human habitation or economic life of
its own.

Undersecretary Musngi and I immediately reminded Mr. Reichler and his team
about the Manila decision not to amend our submissions. We argued that the
additional paragraphs would bring about the same legal and political risks that
prompted the decision not to amend in the first place. Since the DFA lawyers
supported the inclusion of the 14 paragraphs, I proposed that Reichler, et al. put
their recommendation in a memorandum addressed to me and Secretary del
Rosario so that we can take the matter up with President Aquino for his decision.

Paul Reichler released their memo5 over that weekend in time for my arrival in
Manila with Undersecretary Musngi and the rest of the Philippine delegation. There,
they asserted that ignoring the issue of Itu Aba, the largest and most significant
feature in the Spratly Islands, would not only damage the Philippines' credibility
before the Tribunal but also undermine the entire case.

Secretary Ochoa, CPLC Caguioa, and I thereafter submitted our own memo6 to
President Aquino where we argued against the inclusion of the additional 14
paragraphs and submitted that if the Tribunal iso minded, it would, on its own,
instruct us to include (whether in the oral arguments or in further written
submissions) consideration of the status of Itu Aba in the arbitration. That same
day, the three of us were summoned by President Aquino to discuss the conflicting
positions. After discussion, President Aquino decided to defer to the advice of our
foreign counsel. The matter thus decided, I forthwith communicated the President's
instructions to our lawyers. Our Memorial was filed on March 30, 2014, including
the 14 paragraphs mentioning Itu Aba.

Little did I realize that my actions concerning the mention of Itu Aba in the
Memorial would later be used to impugn my integrity and block my nomination to
the Court. The charge against me centered on a memorandum relating to a
judgment call made at the highest level of government. A copy of the confidential
Foley Hoag memo was leaked to the Chief Justice and to the Senior Associate
Justice (both of whom, by the way, had nothing to do with, and were not
accountable for, the conduct of the arbitration) who thereafter used the same
Memo against me.

At the time my nomination was being blocked, however, the arbitration case was
still pending. While I knew the truth, I could not, as a professional, disclose
intimate case details and matters of strategy as part of my defense. In the one-
sided proceedings before the JBC, I was painted, by individuals who were not part
of our arbitration team, as being disloyal to our country, and thereby lacking the
integrity to be a member of the Supreme Court.

You spend a whole lifetime building a reputation worthy of your parents and of your
family. When my integrity was attacked, I knew I had to fight back, if only to clear
my name. But, at that time, as agent of the Republic of the Philippines to the
arbitration, I had a duty to keep the confidences of my client. I was sworn to keep
sensitive secrets about our litigation strategy and tactics affecting the arbitration.
One does not telegraph them to the opponent. Considering its sensitive nature, I
could neither deny or confirm the existence of the leaked. Foley Hoag
memorandum, much less discuss its content. To do so will reveal the reasons for
the positions taken by the government, to the possible prejudice of our success in
the arbitration. Thus, at that time, I was constrained to put up a defense purely on
due process grounds and hope that the rule of law would prevail.

Of course, I was not alone in the handling of the country's arbitration case against
China. The Philippine team was composed of many Filipino patriots, who labored
long and hard on the West Philippine Sea arbitration. Many of us were lawyers, who
believed that the Rule of Law applies to, and protects all of us under international
law. Each of us acted according to the best of our abilities and our conscience. In
refusing to include Itu Aba in our claim, did we in fact do the right thing? For my
part, I can assure you that I acted only with the best of intentions. Did I act with
integrity? I would like to believe so, even if in the end the President chose to go
another way.

As fate and the vagaries of litigation would have it, it was the Arbitral Tribunal itself
that directed the Philippines to make submissions on the status of more than 20
features in the Spratly Islands, including Itu Aba, and to make the determination of
their status part of the proceeding. The rest, as they say, is history. On this specific
point, the arbitral tribunal unanimously decided that Itu Aba, like Pagasa, was a
rock that does not generate an entitlement beyond a 12 NM territorial sea. Thus,
the Reed Bank is securely within our EEZ.

This astounding win for the Philippines, and for President Aquino, merits a story by
itself about the role of the Rule of Law under international law. The promulgation of
the decision also allowed me to talk, publicly and for the first time, about the
integrity issue raised against me in the JBC during my nomination to the Supreme
Court. I have chosen to break my silence about this issue in my home town, before
you, because it is here in Iloilo where the foundations of the integrity I have tried to
embrace under a life in the law were first nurtured. I will be dishonest if I say that
we knew that we will win, or that the result would be a win as big as this. We did
not. The team had many agreements and a few disagreements. But we all worked
as a band of patriots, under the leadership of President Aquino, blessed to play a
role in the making of history. Along the way, I was just unfortunate that my
integrity was questioned.

The meaning of the Rule of Law became so personal to me in a way I never

imagined. I was so close to professional death, an inglorious end to a career I
worked so hard to nurture. It is an experience I would not wish on anybody.
Fortunately for me, however; the Rule of Law prevailed. The Supreme Court
decided to allow my name to be placed in nomination, and President Benigno S.
Aquino III appointed me to the Court.

I am so glad I did not lose heart. Against all odds, and with only my abiding belief
in the Rule of Law, I kept my faith by resorting to the Supreme Court as court of
last resort. My falling back on the Rule of Law allowed me to keep the confidences
of my client, the Republic, in the West Philippine Sea arbitration, and at the same
time, it allowed me a case to be vindicated in the Supreme Court. I tell you these
stories because I want to share with you, from real life experience, how we can
deal with opportunities and challenges and act in ways to ensure a legal system
based on the Rule of Law. I realize that this might not be the case for everyone. I
hope though that by sharing with you my story you would be encouraged to
continue keeping your faith in the Rule of Law.

Thank you all very much for your time.

Case 8: Angara v Electoral Commission

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.
 DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no
matter how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is
significant and of first impression. We are asked to decide whether the Commission on
Elections (COMELEC) has the competence to limit expressions made by the citizens — who are
not candidates — during elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and
letter3 issued on February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing
the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten
feet (10') in size. They were posted on the front walls of the cathedral within public view. The
first tarpaulin contains the message "IBASURA RH Law" referring to the Reproductive Health
Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the present
case.4 This tarpaulin contains the heading "Conscience Vote" and lists candidates as either
"(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The
electoral candidates were classified according to their vote on the adoption of Republic Act No.
10354, otherwise known as the RH Law.6Those who voted for the passing of the law were
classified by petitioners as comprising "Team Patay," while those who voted against it form
"Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
 Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid
for by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates
for the 2013 elections, but not of politicians who helped in the passage of the RH Law but were
not candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer
of Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most
Rev. Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within
three (3) days from receipt for being oversized. COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop
be given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2)
pending this opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate
removal of the tarpaulin; otherwise, it will be constrained to file an election offense against
petitioners. The letter of COMELEC Law Department was silenton the remedies available to
petitioners. The letter provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had
already given you notice on February 22, 2013 as regards the election propaganda material
posted on the church vicinity promoting for or against the candidates and party-list groups with
the following names and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution
No. 9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent
division of the said tarpaulin into two), as the lawful size for election propaganda material is only
two feet (2’) by three feet (3’), please order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained to file an election offense case against
you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for
preliminary injunction and temporary restraining order.14 They question respondents’ notice
dated February 22, 2013 and letter issued on February 27, 2013. They pray that: (1) the petition
be given due course; (2) a temporary restraining order (TRO) and/or a writ of preliminary
injunction be issued restraining respondents from further proceeding in enforcing their orders for
the removal of the Team Patay tarpaulin; and (3) after notice and hearing, a decision be
rendered declaring the questioned orders of respondents as unconstitutional and void, and
permanently restraining respondents from enforcing them or any other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order
enjoining respondents from enforcing the assailed notice and letter, and set oral arguments on
March 19, 2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari
and prohibition under Rule 65 of the Rules of Court filed before this court is not the proper
remedy to question the notice and letter of respondents; and (2) the tarpaulin is an election
propaganda subject to regulation by COMELEC pursuant to its mandate under Article IX-C,
Section 4 of the Constitution. Hence, respondents claim that the issuances ordering its removal
for being oversized are valid and constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening
holidays.19

The issues, which also served as guide for the oral arguments, are:20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER

MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65
PETITION[;]
 A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE

NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES
WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE
CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE

"POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT
PETITIONER IS NOT A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY
TO REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER

MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;]
[AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES

THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not
final orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise
of its adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the ouster of
jurisdiction.22 As a special civil action, there must also be a showing that there be no plain,
speedy, and adequate remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions
affecting elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is limited to final decisions, orders, rulings and
judgments of the COMELEC En Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings
and decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial
powers." This decision must be a final decision or resolution of the Comelec en banc, not of a
division, certainly not an interlocutory order of a division.The Supreme Court has no power to
review viacertiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided
exceptions to this general rule. Repolwas another election protest case, involving the mayoralty
elections in Pagsanghan, Samar.36 This time, the case was brought to this court because the
COMELEC First Division issued a status quo ante order against the Regional Trial Court
executing its decision pending appeal.37 This court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
COMELEC Division.38However, consistent with ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves
the principle of social justice or the protection of labor, when the decision or resolution sought to
be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

 3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued
by the COMELEC Division was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed
before this court a petition for certiorari against an interlocutory order of the COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed
the main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions
to the general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of
the mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case
that he engaged in vote buying in the 1995 elections.46No motion for reconsideration was filed
before the COMELEC En Banc. This court, however, took cognizance of this case applying one
of the exceptions in ABS-CBN: The assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC
denying her motion for reconsideration to dismiss the election protest petition for lack of form
and substance.49 This court clarified the general rule and refused to take cognizance of the
review of the COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled
that these exceptions did not apply.50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning
candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed
to assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the
implementation of its regulatory powers. When it issued the notice and letter, the COMELEC
was allegedly enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech
and the "chilling effect" caused by respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February
27, 2013 ordering the removal of the tarpaulin.53 It is their position that these infringe on their
fundamental right to freedom of expression and violate the principle of separation of church and
state and, thus, are unconstitutional.54

The jurisdiction of this court over the subject matter is determined from the allegations in the
petition. Subject matter jurisdiction is defined as the authority "to hear and determine cases of
the general class to which the proceedings in question belong and is conferred by the sovereign
authority which organizes the court and defines its powers."55Definitely, the subject matter in this
case is different from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move
people to action. It is concerned with the sovereign right to change the contours of power
whether through the election of representatives in a republican government or the revision of the
basic text of the Constitution. The zeal with which we protect this kind of speech does not
depend on our evaluation of the cogency of the message. Neither do we assess whether we
should protect speech based on the motives of COMELEC. We evaluate restrictions on freedom
of expression from their effects. We protect both speech and medium because the quality of this
freedom in practice will define the quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of
repetition. Under the conditions in which it was issued and in view of the novelty of this case,it
could result in a "chilling effect" that would affect other citizens who want their voices heard on
issues during the elections. Other citizens who wish to express their views regarding the
election and other related issues may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is
also the procedural platform for raising grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this
court’s expanded exercise of certiorari as provided by the Constitution as follows:

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 ornot 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.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the
COMELEC had any jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter
on free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of
the word "affecting" in this provision cannot be interpreted to mean that COMELEC has the
exclusive power to decide any and allquestions that arise during elections. COMELEC’s
constitutional competencies during elections should not operate to divest this court of its own
jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for
certiorari and prohibition. This should be read alongside the expanded jurisdiction of the court in
Article VIII, Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of

discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within
this court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or
any act tainted with unconstitutionality on the part of any government branch or instrumentality.
This includes actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to
protect the people against government’s infringement of their fundamental rights. This
constitutional mandate out weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of
concurrent jurisdiction is sufficient ground for the dismissal of their petition.57 They add that
observation of the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions to the general rule on
hierarchy of courts, none of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature
and importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court."62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms
that the policy is not to be ignored without serious consequences. The strictness of the policy is
designed to shield the Court from having to deal with causes that are also well within the
competence of the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to it. The Court may
act on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when
absolutely necessary or when serious and important reasons exist to justify an exception to the
policy.64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of
certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform
the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and
should not be burdened with the task of dealing with causes in the first instance. Its original
jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefore. Hence, that jurisdiction
should generally be exercised relative to actions or proceedings before the Court of Appeals, or
before constitutional or other tribunals, bodies or agencies whose acts for some reason or
another are not controllable by the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either
of these courts that the specific action for the writ’s procurement must be presented. This is and
should continue to be the policy in this regard, a policy that courts and lawyers must strictly
observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure
that every level of the judiciary performs its designated roles in an effective and efficient
manner. Trial courts do not only determine the facts from the evaluation of the evidence
presented before them. They are likewise competent to determine issues of law which may
include the validity of an ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially organized into regions
and then into branches. Their writs generally reach within those territorial boundaries.
Necessarily, they mostly perform the all-important task of inferring the facts from the evidence
as these are physically presented before them. In many instances, the facts occur within their
territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a determination of
the constitutionality of such action. The consequences, of course, would be national in scope.
There are, however, some cases where resort to courts at their level would not be practical
considering their decisions could still be appealed before the higher courts, such as the Court of
Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination
of facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has
original jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a
nationwide scope. It is competent to determine facts and, ideally, should act on constitutional
issues thatmay not necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating
— in the light of new circumstances or in the light of some confusions of bench or bar —
existing precedents. Rather than a court of first instance or as a repetition of the actions of the
Court of Appeals, this court promulgates these doctrinal devices in order that it truly performs
that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full
discretionary power to take cognizance and assume jurisdiction [over] special civil actions for
certiorari . . .filed directly with it for exceptionally compelling reasons69 or if warranted by the
nature of the issues clearly and specifically raised in the petition."70 As correctly pointed out by
petitioners,71 we have provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality
that must be addressed at the most immediate time. A direct resort to this court includes
availing of the remedies of certiorari and prohibition toassail the constitutionality of actions of
both legislative and executive branches of the government.72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to
freedom of expression in the present case, but also of others in future similar cases. The case
before this court involves an active effort on the part of the electorate to reform the political
landscape. This has become a rare occasion when private citizens actively engage the public in
political discourse. To quote an eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a
whole way of life. The theory grew out of an age that was awakened and invigorated by the idea
of new society in which man's mind was free, his fate determined by his own powers of reason,
and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put
forward as a prescription for attaining a creative, progressive, exciting and intellectually robust
community. It contemplates a mode of life that, through encouraging toleration, skepticism,
reason and initiative, will allow man to realize his full potentialities.It spurns the alternative of a
society that is tyrannical, conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may
provide, as public participation in nation-building isa fundamental principle in our Constitution.
As such, their right to engage in free expression of ideas must be given immediate protection by
this court.

A second exception is when the issuesinvolved are of transcendental importance.74 In these

cases, the imminence and clarity of the threat to fundamental constitutional rights outweigh the
necessity for prudence. The doctrine relating to constitutional issues of transcendental
importance prevents courts from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech
and freedom of expression which warrants invocation of relief from this court. The principles laid
down in this decision will likely influence the discourse of freedom of speech in the future,
especially in the context of elections. The right to suffrage not only includes the right to vote for
one’s chosen candidate, but also the right to vocalize that choice to the public in general, in the
hope of influencing their votes. It may be said that in an election year, the right to vote
necessarily includes the right to free speech and expression. The protection of these
fundamental constitutional rights, therefore, allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression,
no jurisprudence yet exists that will guide the lower courts on this matter. In Government of the
United States v. Purganan,76 this court took cognizance of the case as a matter of first
impression that may guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings
constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide
lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of
whether the right of suffrage includes the right of freedom of expression. This is a question
which this court has yet to provide substantial answers to, through jurisprudence. Thus, direct
resort to this court is allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this
court held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a
thorough deliberation by a collegiate body and with the concurrence of the majority of those who
participated in its discussion.79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with
finality on whether COMELEC committed grave abuse of discretion or performed acts contrary
to the Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the
2013 election period. Although the elections have already been concluded, future cases may be
filed that necessitate urgency in its resolution. Exigency in certain situations would qualify as an
exception for direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional
body. In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the
chaos that would ensue if the Court of First Instance ofeach and every province were [to]
arrogate itself the power to disregard, suspend, or contradict any order of the Commission on
Elections: that constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies
with the lower courts, any ruling on their part would not have been binding for other citizens
whom respondents may place in the same situation. Besides, thiscourt affords great respect to
the Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this
court would be in the best interest of respondents, in order that their actions may be guided
accordingly in the future.

Seventh, 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.

In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other
sufficient remedies in the course of law alone is sufficient ground to allow direct resort to this
court.

Eighth, the petition includes questionsthat 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 found to be patent nullities, or the appeal was consideredas clearly an inappropriate
remedy."82 In the past, questions similar to these which this court ruled on immediately despite
the doctrine of hierarchy of courts included citizens’ right to bear arms,83 government contracts
involving modernization of voters’ registration lists,84 and the status and existence of a public
office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this
court is permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case
falls under the recognized exceptions and, as such, may be resolved by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate
opinion in Osmeña v. COMELEC86 to support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the
"State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of
the Constitution to be all that adversarial or irreconcilably inconsistent with the right of free
expression. In any event, the latter, being one of general application, must yield to the specific
demands of the Constitution. The freedom of expression concededly holds, it is true, a vantage
point in hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not
without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and
the "weak" in our society but it is to me a genuine attempt on the part of Congress and the
Commission on Elections to ensure that all candidates are given an equal chance to media
coverage and thereby be equally perceived as giving real life to the candidates’ right of free
expression rather than being viewed as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be best in giving life to the
Constitutional mandate, is not for the Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and
weak, on their equal opportunities for media coverage of candidates and their right to freedom
of expression. This case concerns the right of petitioners, who are non-candidates, to post the
tarpaulin in their private property, asan exercise of their right of free expression. Despite the
invocation of the political question doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a
political question:

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,
withdiscretionary power to act.89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law
should be. In political forums, particularly the legislature, the creation of the textof the law is
based on a general discussion of factual circumstances, broadly construed in order to allow for
general application by the executive branch. Thus, the creation of the law is not limited by
particular and specific facts that affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.

The complementary nature of the political and judicial branches of government is essential in
order to ensure that the rights of the general public are upheld at all times. In order to preserve
this balance, branches of government must afford due respectand deference for the duties and
functions constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule.
Prudence dictates that we are careful not to veto political acts unless we can craft doctrine
narrowly tailored to the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no
political question. It can be acted upon by this court through the expanded jurisdiction granted to
this court through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of

different agencies and departments of the executive or those of the legislature. The political
question doctrine is used as a defense when the petition asks this court to nullify certain acts
that are exclusively within the domain of their respective competencies, as provided by the
Constitution or the law. In such situation, presumptively, this court should act with deference. It
will decline to void an act unless the exercise of that power was so capricious and arbitrary so
as to amount to grave abuse of discretion.

The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the official whose action is being questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of
carefully and narrowly tailored constitutional doctrines. This trend was followed in cases such as
Daza v. Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the
1987 Constitution involving the removal of petitioners from the Commission on Appointments. In
times past, this would have involved a quint essentially political question as it related to the
dominance of political parties in Congress. However, in these cases, this court exercised its
power of judicial review noting that the requirement of interpreting the constitutional provision
involved the legality and not the wisdom of a manner by which a constitutional duty or power
was exercised. This approach was again reiterated in Defensor Santiago v. Guingona, Jr.94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible
existence ofa political question did not bar an examination of whether the exercise of discretion
was done with grave abuse of discretion. In that case, this court ruled on the question of
whether there was grave abuse of discretion in the President’s use of his power to call out the
armed forces to prevent and suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the
political legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may
avert catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas
v. Executive Secretary Oscar Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the
issue involved concerns the validity of such discretionary powers or whether said powers are
within the limits prescribed by the Constitution, We will not decline to exercise our power of
judicial review. And such review does not constitute a modification or correction of the act of the
President, nor does it constitute interference with the functions of the President. 98

The concept of judicial power in relation to the concept of the political question was discussed
most extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat
the question of the validity of the second impeachment complaint that was filed against former
Chief Justice Hilario Davide was a political question beyond the ambit of this court. Former
Chief Justice Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the
new Constitution which expanded the definition of judicial power as including "the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." As well observed by retired Justice Isagani Cruz, this expanded definition of
judicial power considerably constricted the scope of political question. He opined that the
language luminously suggests that this duty (and power) is available even against the executive
and legislative departments including the President and the Congress, in the exercise of their
discretionary powers.100 (Emphasis in the original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied
in the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court,under previous constitutions, would have normally left
to the political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases." (Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive.
The reason is that, even if we were to assume that the issue presented before us was political in
nature, we would still not be precluded from resolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even the political question.x x x (Emphasis
and italics supplied.)

....
In our jurisdiction, the determination of whether an issue involves a truly political and non-
justiciable question lies in the answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or instrumentality of the government
properly acted within such limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence,
the existence of constitutionally imposed limits justifies subjecting the official actions of the body
to the scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any
instance that this right may be abridged demands judicial scrutiny. It does not fall squarely into
any doubt that a political question brings.

I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative

remedies. Respondents insist that petitioners should have first brought the matter to the
COMELEC En Banc or any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that
"there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law."103 They add that the proper venue to assail the validity of the assailed issuances was in
the course of an administrative hearing to be conducted by COMELEC.104 In the event that an
election offense is filed against petitioners for posting the tarpaulin, they claim that petitioners
should resort to the remedies prescribed in Rule 34 of the COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a
court may come into the picture."106

Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the
filing of the election offense against petitioners is already an actionable infringement of this right.
The impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested
in their pleadings prolongs the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative remedies yields in order to protect this
fundamental right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the
current controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and
judicial action may be validly resorted to immediately: (a) when there is a violation of due
process; (b) when the issue involved is purely a legal question; (c) when the administrative
action is patently illegal amounting to lack or excess of jurisdiction; (d) when there is estoppel on
the part ofthe administrative agency concerned; (e) when there is irreparable injury; (f) when the
respondent is a department secretary whose acts as analter ego of the President bear the
implied and assumed approval of the latter; (g) when to require exhaustion of administrative
remedies would be unreasonable; (h) when it would amount to a nullification of a claim; (i) when
the subject matter is a private land in land case proceedings; (j) whenthe rule does not provide a
plain, speedy and adequate remedy; or (k) when there are circumstances indicating the urgency
of judicial intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle
of separation of church and state. This is a purely legal question. Second, the circumstances of
the present case indicate the urgency of judicial intervention considering the issue then on the
RH Law as well as the upcoming elections. Thus, to require the exhaustion of administrative
remedies in this case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the
elections by calling attention to issues they want debated by the publicin the manner they feel
would be effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they
had the power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates
and political parties. Petitioners are not candidates. Neither do theybelong to any political party.
COMELEC does not have the authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections.114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for
the creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned
the provision prohibiting journalists from covering plebiscite issues on the day before and on
plebiscite day.117 Sanidad argued that the prohibition was a violation of the "constitutional
guarantees of the freedom of expression and of the press. . . ."118 We held that the "evil sought
to be prevented by this provision is the possibility that a franchise holder may favor or give any
undue advantage to a candidate in terms of advertising space or radio or television
time."119 This court found that "[m]edia practitioners exercising their freedom of expression
during plebiscite periods are neither the franchise holders nor the candidates[,]"120 thus, their
right to expression during this period may not be regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this
provision only affects candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions
"parties" and "candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and
party-list groups to erect common poster areas for their candidates in not more than ten (10)
public places such as plazas, markets, barangay centers and the like, wherein candidates can
post, display or exhibit election propaganda: Provided, That the size ofthe poster areas shall not
exceed twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with no
political parties may likewise be authorized to erect common poster areas in not more than ten
(10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with the consent of the
owner thereof, and in public places or property which shall be allocated equitably and impartially
among the candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing
the Fair Election Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster
areas and those enumerated under Section 7 (g) of these Rules and the like is prohibited.
Persons posting the same shall be liable together with the candidates and other persons who
caused the posting. It will be presumed that the candidates and parties caused the posting of
campaign materials outside the common poster areas if they do not remove the same within
three (3) days from notice which shall be issued by the Election Officer of the city or municipality
where the unlawful election propaganda are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political
parties, and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and
local elective positions subject to the limitation on authorized expenses of candidates and
political parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar
wording. These provisions show that election propaganda refers to matter done by or on behalf
of and in coordination with candidates and political parties. Some level of coordination with the
candidates and political parties for whom the election propaganda are released would ensure
that these candidates and political parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On
the other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power
under the Constitution, to some extent, set a limit on the right to free speech during election
period.127

National Press Club involved the prohibition on the sale and donation of space and time for
political advertisements, limiting political advertisements to COMELEC-designated space and
time. This case was brought by representatives of mass media and two candidates for office in
the 1992 elections. They argued that the prohibition on the sale and donation of space and time
for political advertisements is tantamount to censorship, which necessarily infringes on the
freedom of speech of the candidates.128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club.
However, this case does not apply as most of the petitioners were electoral candidates, unlike
petitioners in the instant case. Moreover, the subject matter of National Press Club, Section
11(b) of Republic Act No. 6646,129 only refers to a particular kind of media such as newspapers,
radio broadcasting, or television.130 Justice Feliciano emphasized that the provision did not
infringe upon the right of reporters or broadcasters to air their commentaries and opinions
regarding the candidates, their qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their commentary on the issues involving
the plebiscite, National Press Clubdoes not involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the
2013 national elections because of the COMELEC notice and letter. It was not merelya
regulation on the campaigns of candidates vying for public office. Thus, National Press
Clubdoes not apply to this case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election
Code, defines an"election campaign" as follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office which
shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons

for the purpose of soliciting votes and/or undertaking any campaign for or against a
candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or

against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or

oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of
aspirants for nomination for candidacy to a public office by a political party, aggroupment, or
coalition of parties shall not be considered as election campaign or partisan election activity.
Public expressions or opinions or discussions of probable issues in a forthcoming electionor on
attributes of or criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any election campaign or
partisan political activity contemplated under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and
political parties themselves. The focus of the definition is that the act must be "designed to
promote the election or defeat of a particular candidate or candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners
invoke their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate
their fundamental right to freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to
their regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution.
Thus, the assailed notice and letter ordering itsremoval for being oversized are valid and
constitutional.131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for redress
of grievances.132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays.135 What was
questioned was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s
public meeting.136 Nevertheless, this court recognized the constitutional right to freedom of
speech, to peaceful assembly and to petition for redress of grievances, albeit not
absolute,137 and the petition for mandamus to compel respondent Mayor to issue the permit was
granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc
Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining
order to stop ABS-CBN from conducting exit surveys.139 The right to freedom of expression was
similarly upheld in this case and, consequently, the assailed resolution was nullified and set
aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against
the abridgment of speech should not mean an absolute prohibition against regulation. The
primary and incidental burden on speech must be weighed against a compelling state interest
clearly allowed in the Constitution. The test depends on the relevant theory of speech implicit in
the kind of society framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition
to the freedom of speech and of the press provided in the US Constitution. The word
"expression" was added in the 1987 Constitution by Commissioner Brocka for having a wider
scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2,
line 29, it says: "No law shall be passed abridging the freedom of speech." I would like to
recommend to the Committee the change of the word "speech" to EXPRESSION; or if not, add
the words AND EXPRESSION after the word "speech," because it is more expansive, it has a
wider scope, and it would refer to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears
none; the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom
of speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to
freedom itself as "[t]he right to think is the beginning of freedom, and speech must be protected
from the government because speech is the beginning of thought."142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when

"(1) a speaker, seeking to signal others, uses conventional actions because he orshe
reasonably believes that such actions will be taken by the audience in the manner intended; and
(2) the audience so takes the actions."144 "[I]n communicative action[,] the hearer may respond
to the claims by . . . either accepting the speech act’s claims or opposing them with criticism or
requests for justification."145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech

sometimes referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’
elements are combined in the same course of conduct,’ the ‘communicative element’ of the
conduct may be ‘sufficient to bring into play the [right to freedom of expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner of
communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members
of the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute
the flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion,
Justice Cruz discussed how the salute is a symbolic manner of communication and a valid form
of expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights
that guarantees to the individual the liberty to utter what is in his mind also guarantees to him
the liberty not to utter what is not in his mind. The salute is a symbolic manner of communication
that conveys its messageas clearly as the written or spoken word. As a valid form of expression,
it cannot be compelled any more than it can be prohibited in the face of valid religious objections
like those raised in this petition. To impose it on the petitioners is to deny them the right not to
speak when their religion bids them to be silent. This coercion of conscience has no place in the
free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion
of unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners,
no less than the impatience of those who disagree with them, are protected by the Constitution.
The State cannot make the individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal
utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification
of the motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the
classification "is without legal and factual basis and is exercised as impermissible restraint of
artistic expression."153 This court recognized that "[m]otion pictures are important both as a
medium for the communication of ideas and the expression of the artistic impulse."154 It adds
that "every writer,actor, or producer, no matter what medium of expression he may use, should
be freed from the censor."155 This court found that "[the Board’s] perception of what constitutes
obscenity appears to be unduly restrictive."156 However, the petition was dismissed solely on the
ground that there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the
expression.

it. Between the candidates and the electorate, the latter have the better incentive to demand
discussion of the more important issues. Between the candidates and the electorate, the former
have better incentives to avoid difficult political standpoints and instead focus on appearances
and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part
of expression protected under Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic
right to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to
criticize government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open,
[and] ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory
may be considered broad, but it definitely "includes [a] collective decision making with the
participation of all who will beaffected by the decision."160 It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.161 To ensure order in
running the state’s affairs, sovereign powers were delegated and individuals would be elected or
nominated in key government positions to represent the people. On this note, the theory on
deliberative democracy may evolve to the right of the people to make government accountable.
Necessarily, this includes the right of the people to criticize acts made pursuant to governmental
functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances
and proposed remedies."162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the
principle that "debate on public issues should be uninhibited, robust,and wide open . . .
[including even] unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by
[the] free trade in ideas:"165

When men have realized that time has upset many fighting faiths, they may come to believe
even more than they believe the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas - that the best test of truth is the power of the
thought to get itself accepted in the competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop
their own conclusions."167 A free, open, and dynamic market place of ideas is constantly
shaping new ones. This promotes both stability and change where recurring points may
crystallize and weak ones may develop. Of course, free speech is more than the right to
approve existing political beliefs and economic arrangements as it includes, "[t]o paraphrase
Justice Holmes, [the] freedom for the thought that we hate, no less than for the thought that
agrees with us."168 In fact, free speech may "best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to
anger."169 It is in this context that we should guard against any curtailment of the people’s right
to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means
of assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also
political rights essential to man's enjoyment of his life, to his happiness and to his full and
complete fulfillment.Thru these freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights
so that he can appeal to the appropriate governmental officers or agencies for redress and
protection as well as for the imposition of the lawful sanctions on erring public officers and
employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for
deliberation, and for the formation of identity and community spirit[,] [and] are largely immune
from [any] governmental interference."173 They also "provide a buffer between individuals and
the state - a free space for the development of individual personality, distinct group identity, and
dissident ideas - and a potential source of opposition to the state."174 Free speech must be
protected as the vehicle to find those who have similar and shared values and ideals, to join
together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two
potentially vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or
plundered by despotic federal officials"176 and the minorities who may be oppressed by
"dominant factions of the electorate [that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance in a republic not only to guard the
society against the oppression of its rulers, but to guard one part of the society against the
injustice of the other part."178 We should strive to ensure that free speech is protected especially
in light of any potential oppression against those who find themselves in the fringes on public
issues.

Lastly, free speech must be protected under the safety valve theory.179 This provides that
"nonviolent manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to
burst . . . resulting in the ‘banking up of a menacing flood of sullen anger behind the walls of
restriction’"181 has been used to describe the effect of repressing nonviolent outlets.182 In order
to avoid this situation and prevent people from resorting to violence, there is a need for peaceful
methods in making passionate dissent. This includes "free expression and political
participation"183 in that they can "vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature alerting other citizens of their
concerns[,]"184 and conduct peaceful rallies and other similar acts.185 Free speech must, thus, be
protected as a peaceful means of achieving one’s goal, considering the possibility that
repression of nonviolent dissent may spill over to violent means just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1.
Definitions . . .

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or
a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate
or candidates to a public office. In broadcast media, political advertisements may take the form
of spots, appearances on TV shows and radio programs, live or taped announcements, teasers,
and other forms of advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social networks, blogging sites, and
micro-blogging sites, in return for consideration, or otherwise capable of pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions,
views and beliefs about issues and candidates."188 They argue that the tarpaulin was their
statement of approval and appreciation of the named public officials’ act of voting against the
RH Law, and their criticism toward those who voted in its favor.189It was "part of their advocacy
campaign against the RH Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their]
freedom of expression should be declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly ranked in our scheme
of constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine
Blooming Mills, this court discussed the preferred position occupied by freedom of expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless
attempt to limit the power of government and ceases to be an efficacious shield against the
tyranny of officials, of majorities, ofthe influential and powerful, and of oligarchs - political,
economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and political
institutions; and such priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage." 196 A
similar idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s
concurring and dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that
genuine democracy thrives only where the power and right of the people toelect the men to
whom they would entrust the privilege to run the affairs of the state exist. In the language of the
declaration of principles of our Constitution, "The Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from them" (Section 1, Article II).
Translating this declaration into actuality, the Philippines is a republic because and solely
because the people in it can be governed only by officials whom they themselves have placed in
office by their votes. And in it is on this cornerstone that I hold it tobe self-evident that when the
freedoms of speech, press and peaceful assembly and redress of grievances are being
exercised in relation to suffrage or asa means to enjoy the inalienable right of the qualified
citizen to vote, they are absolute and timeless. If our democracy and republicanism are to be
worthwhile, the conduct of public affairs by our officials must be allowed to suffer incessant and
unabating scrutiny, favorable or unfavorable, everyday and at all times. Every holder of power in
our government must be ready to undergo exposure any moment of the day or night, from
January to December every year, as it is only in this way that he can rightfully gain the
confidence of the people. I have no patience for those who would regard public dissection of the
establishment as an attribute to be indulged by the people only at certain periods of time. I
consider the freedoms of speech, press and peaceful assembly and redress of grievances,
when exercised in the name of suffrage, as the very means by which the right itself to vote can
only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or
time.198 (Emphasis supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some
types of speech may be subject to regulation:

Some types of speech may be subjected to some regulation by the State under its pervasive
police power, in order that it may not be injurious to the equal right of others or those of the
community or society. The difference in treatment is expected because the relevant interests of
one type of speech, e.g., political speech, may vary from those of another, e.g., obscene
speech. Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe
permissible scope of restrictions on various categories of speech. We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are
not entitled to constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been
defined as speech that does "no more than propose a commercial transaction."202 The
expression resulting from the content of the tarpaulin is, however, definitely political speech. In
Justice Brion’s dissenting opinion, he discussed that "[t]he content of the tarpaulin, as well as
the timing of its posting, makes it subject of the regulations in RA 9006 and Comelec Resolution
No. 9615."203 He adds that "[w]hile indeed the RH issue, by itself,is not an electoralmatter, the
slant that the petitioners gave the issue converted the non-election issue into a live election one
hence, Team Buhay and Team Patay and the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for
or posted "in return for consideration" by any candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the
facts of this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or
a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate
or candidates to a public office. In broadcast media, political advertisements may take the form
of spots, appearances on TV shows and radio programs, live or taped announcements, teasers,
and other forms of advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to, social networks, blogging sites, and
micro-blogging sites, in return for consideration, or otherwise capable of pecuniary estimation.
(Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office, and
shall include any of the following:

....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be
considered acts of election campaigning or partisan politicalactivity unless expressed by
government officials in the Executive Department, the Legislative Department, the Judiciary, the
Constitutional Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in
Republic Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion
of public affairs. We acknowledged that free speech includes the right to criticize the conduct of
public men:

The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of official dom. Men in
public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be
exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of
grievances, allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v.
People,208 this court noted every citizen’s privilege to criticize his or her government, provided it
is "specific and therefore constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This
court explained that it is the poster’s anonymous character that is being penalized.212 The
ponente adds that he would "dislike very muchto see this decision made the vehicle for the
suppression of public opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their
views. According to this court, "[i]ts value may lie in the fact that there may be something worth
hearing from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be
changed for the better and ideas that may be deliberated on to attain that purpose. Necessarily,
it also makes the government accountable for acts that violate constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits
mass media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216This court mentioned how "discussion of public issues and
debate on the qualifications of candidates in an election are essential to the proper functioning
of the government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes in the context
of elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known
what the people need to know,219 while the meaningful exercise of one’s right of suffrage
includes the right of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public
issues, and the freedom of expression especially in relation to information that ensures the
meaningful exercise of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and
wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp
attacks on government and public officials. Too many restrictions will deny to people the robust,
uninhibited, and wide open debate, the generating of interest essential if our elections will truly
be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost
respect when what may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage.221(Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other
rights and even government protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech
are still subjectto some restrictions. The degree of restriction may depend on whether the
regulation is content-based or content-neutral.223 Content-based regulations can either be based
on the viewpoint of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation.
The order was made simply because petitioners failed to comply with the maximum size
limitation for lawful election propaganda.224

On the other hand, petitioners argue that the present size regulation is content-based as it
applies only to political speech and not to other forms of speech such as commercial
speech.225 "[A]ssuming arguendo that the size restriction sought to be applied . . . is a mere
time, place, and manner regulation, it’s still unconstitutional for lack of a clear and reasonable
nexus with a constitutionally sanctioned objective."226

The regulation may reasonably be considered as either content-neutral or content-

based.227 Regardless, the disposition of this case will be the same. Generally, compared with
other forms of speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver
opinions that shape both their choices. It does not cover, for instance, commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-
candidates will be adjudged as "election paraphernalia." There are no existing bright lines to
categorize speech as election-related and those that are not. This is especially true when
citizens will want to use their resources to be able to raise public issues that should be tackled
by the candidates as what has happened in this case. COMELEC’s discretion to limit speech in
this case is fundamentally unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is
not easily divorced from the size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the
clear and present danger rule as measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if
justified by a compelling reason, and the restrictions imposedare neither overbroad nor
vague.229 (Citations omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is
no compelling and substantial state interest endangered by the posting of the tarpaulinas to
justify curtailment of the right of freedom of expression. There is no reason for the state to
minimize the right of non-candidate petitioners to post the tarpaulin in their private property. The
size of the tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234The ordinance in this case was construed to grant the Mayor discretion
only to determine the public places that may be used for the procession ormeeting, but not the
power to refuse the issuance of a permit for such procession or meeting.235 This court explained
that free speech and peaceful assembly are "not absolute for it may be so regulated that it shall
not beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of
the community or society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution
that prohibited the passing of animal-drawn vehicles along certain roads at specific
hours.238 This court similarly discussed police power in that the assailed rules carry outthe
legislative policy that "aims to promote safe transit upon and avoid obstructions on national
roads, in the interest and convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark
the public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is
with this backdrop that the state is justified in imposing restrictions on incidental matters as time,
place, and manner of the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit
applicants must follow which include informing the licensing authority ahead of time as regards
the date, public place, and time of the assembly.242 This would afford the public official time to
inform applicants if there would be valid objections, provided that the clear and present danger
test is the standard used for his decision and the applicants are given the opportunity to be
heard.243 This ruling was practically codified in Batas Pambansa No. 880, otherwise known as
the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa
No. 880 does not prohibit assemblies but simply regulates their time, place, and manner.245 In
2010, this court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor
Atienza committed grave abuse of discretion when he modified the rally permit by changing the
venue from Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity
to be heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not
easily divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is
relayed but not the content of what is conveyed."248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not
pass the three requirements for evaluating such restraints on freedom of speech.249 "When the
speech restraints take the form of a content-neutral regulation, only a substantial governmental
interest is required for its validity,"250 and it is subject only to the intermediate approach.251

This intermediate approach is based on the test that we have prescribed in several cases.252 A
content-neutral government regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident restriction on alleged [freedom of speech
& expression] is no greater than is essential to the furtherance of that interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates.
On the second requirement, not only must the governmental interest be important or substantial,
it must also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We have
held, for example, that "the welfare of children and the State’s mandate to protect and care for
them, as parens patriae,254 constitute a substantial and compelling government interest in
regulating . . . utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public
information campaigns among candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to
ensure equality of public information campaigns among candidates, as allowing posters with
different sizes gives candidates and their supporters the incentive to post larger posters[,] [and]
[t]his places candidates with more money and/or with deep-pocket supporters at an undue
advantage against candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a
private citizen] to freely express his choice and exercise his right of free speech."258 In any case,
faced with both rights to freedom of speech and equality, a prudent course would be to "try to
resolve the tension in a way that protects the right of participation."259

Second, the pertinent election lawsrelated to private property only require that the private
property owner’s consent be obtained when posting election propaganda in the property.260 This
is consistent with the fundamental right against deprivation of property without due process of
law.261 The present facts do not involve such posting of election propaganda absent consent
from the property owner. Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective

measures to minimize election spending. Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
This does not qualify as a compelling and substantial government interest to justify regulation of
the preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three
feet (3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution
implements the Fair Election Act that provides for the same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State
in guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of
tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive in
imposing the restriction, but more so at the effects of such restriction, if implemented. The
restriction must not be narrowly tailored to achieve the purpose. It must be demonstrable. It
must allow alternative avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the
maximum sizeof the tarpaulin would render ineffective petitioners’ message and violate their
right to exercise freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when
exercised to make more meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the
electorate. Given the stature of petitioners and their message, there are indicators that this will
cause a "chilling effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of Marshall
McLuhan, "the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has
earlier asserted that "the materials on which words were written down have often counted for
more than the words themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form
of tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality
are really paid for by the candidate or political party. This skirts the constitutional value that
provides for equal opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the
situation that confronts us. In such cases, it will simply be a matter for investigation and proof of
fraud on the part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected.
It is true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s
real levels of expenditures. However, labelling all expressions of private parties that tend to
have an effect on the debate in the elections as election paraphernalia would be too broad a
remedy that can stifle genuine speech like in this case. Instead, to address this evil, better and
more effective enforcement will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will
spend their own resources in order to lend support for the campaigns. This may be without
agreement between the speaker and the candidate or his or her political party. In lieu of
donating funds to the campaign, they will instead use their resources directly in a way that the
candidate or political party would have doneso. This may effectively skirt the constitutional and
statutory limits of campaign spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties
will carry in their election posters or media ads. The message of petitioner, taken as a whole, is
an advocacy of a social issue that it deeply believes. Through rhetorical devices, it
communicates the desire of Diocese that the positions of those who run for a political position
on this social issue be determinative of how the public will vote. It primarily advocates a stand
on a social issue; only secondarily — even almost incidentally — will cause the election or non-
election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs
such devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may
target any individual or group in society, private and government alike. It seeks to effectively
communicate a greater purpose, often used for "political and social criticism"269 "because it tears
down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty lampooned and spoofed."270 Northrop Frye,
wellknown in this literary field, claimed that satire had two defining features: "one is wit or humor
founded on fantasy or a sense of the grotesque and absurd, the other is an object of
attack."271 Thus, satire frequently uses exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor
could the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of
the candidates in his list was to cause death intentionally. The tarpaulin caricatures political
parties and parodies the intention of those in the list. Furthermore, the list of "Team Patay" is
juxtaposed with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and
contain no sophisticated literary allusion to any social objective. Thus, they usually simply exhort
the public to vote for a person with a brief description of the attributes of the candidate. For
example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa
Makati."

This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human institution no matter how endowed with
the secular ability to decide legal controversies with finality entails that we are not the keepers of
all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest
dissent. Tolerance has always been a libertarian virtue whose version is embedded in our Billof
Rights. There are occasional heretics of yesterday that have become our visionaries.
Heterodoxies have always given us pause. The unforgiving but insistent nuance that the
majority surely and comfortably disregards provides us with the checks upon reality that may
soon evolve into creative solutions to grave social problems. This is the utilitarian version. It
could also be that it is just part of human necessity to evolve through being able to express or
communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value.
Among these are the provisions that acknowledge the idea of equality. In shaping doctrine
construing these constitutional values, this court needs to exercise extraordinary prudence and
produce narrowly tailored guidance fit to the facts as given so as not to unwittingly cause the
undesired effect of diluting freedoms as exercised in reality and, thus, render them meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that
separate at the point of giving priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly
subsidizing, unpopular or dissenting voices often systematically subdued within society’s
ideological ladder.274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that may drown out the
messages of others. This is especially true in a developing or emerging economy that is part of
the majoritarian world like ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always
been a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering
freedoms exercised within such limitation as merely "protect[ing] the already established
machinery of discrimination."275 In his view, any improvement "in the normal course of events"
within an unequal society, without subversion, only strengthens existing interests of those in
power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression may
become meaningless if not taken in a real context. This tendency to tackle rights in the abstract
compromises liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life:
to be able to determine what to do and what not to do, what to suffer and what not. But the
subject of this autonomy is never the contingent, private individual as that which he actually is or
happens to be; it is rather the individual as a human being who is capable of being free with the
others. And the problem of making possible such a harmony between every individual liberty
and the other is not that of finding a compromise between competitors, or between freedom and
law, between general and individual interest, common and private welfare in an established
society, but of creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to be created even
for the freest of the existing societies.277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and
deliberated by the people — "implies a necessary condition, namely, that the people must be
capable of deliberating and choosing on the basis of knowledge, that they must have access to
authentic information, and that, on this basis, their evaluation must be the result of autonomous
thought."278 He submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace of ideas’ is
organized and delimited by those who determine the national and the individual interest."279 A
slant toward left manifests from his belief that "there is a ‘natural right’ of resistance for
oppressed and overpowered minorities to use extralegal means if the legal ones have proved to
be inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance of libertarian
society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent
protections of expressive liberty,"281 especially by political egalitarians. Considerations such as
"expressive, deliberative, and informational interests,"282 costs or the price of expression, and
background facts, when taken together, produce bases for a system of stringent protections for
expressive liberties.283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis
proposed that "public discussion is a political duty."284 Cass Sustein placed political speech on
the upper tier of his twotier model for freedom of expression, thus, warranting stringent
protection.285 He defined political speech as "both intended and received as a contribution to
public deliberation about some issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince
"favorable conditions for realizing the expressive interest will include some assurance of the
resources required for expression and some guarantee that efforts to express views on matters
of common concern will not be drowned out by the speech of betterendowed citizens."288 Justice
Brandeis’ solution is to "remedy the harms of speech with more speech."289 This view moves
away from playing down the danger as merely exaggerated, toward "tak[ing] the costs seriously
and embrac[ing] expression as the preferred strategy for addressing them."290 However, in
some cases, the idea of more speech may not be enough. Professor Laurence Tribe observed
the need for context and "the specification of substantive values before [equality] has full
meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus, more speech can only mean more speech
from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section
11(b) ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or
giving free of charge print space or air time for campaign or other political purposes, except to
the Commission on Elections."294 This court explained that this provision only regulates the time
and manner of advertising in order to ensure media equality among candidates.295 This court
grounded this measure on constitutional provisions mandating political equality:296 Article IX-C,
Section 4

Section 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect
and enhance the right of all the people to human dignity, reducesocial, 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. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with
the libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional
validity or invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than
affirmative language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the
Constitution protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private
order to their own devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom
of speech includes "not only the right to express one’s views, but also other cognate rights
relevant to the free communication [of] ideas, not excluding the right to be informed on matters
of public concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of
voters and candidates, education, means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter’s resistance to pressure — the utmost
ventilation of opinion of men and issues, through assembly, association and organizations, both
by the candidate and the voter, becomes a sine qua non for elections to truly reflect the will of
the electorate.302 (Emphasis supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:

the concept that the government may restrict the speech of some elements in our society in
order to enhance the relative voice of the others is wholly foreign to the First Amendment which
was designed to "secure the widest possible dissemination of information from diverse and
antagonistic sources" and "to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still
the best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US
Supreme Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions
(even if content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative
voice of others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not
use the equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person
can speak, which takes out of his exclusive judgment the decision of when enough is enough,
deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts
the sum of public information and runs counter to our ‘profound national commitment that
debate on public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result
than on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is
not necessarily to argue that the sky’s the limit [because in] any campaign there are saturation
levels and a point where spending no longer pays off in votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional
respect for human potentiality and the effect of speech. It valorizes the ability of human beings
to express and their necessity to relate. On the other hand, a complete guarantee must also
take into consideration the effects it will have in a deliberative democracy. Skewed distribution
of resources as well as the cultural hegemony of the majority may have the effect of drowning
out the speech and the messages of those in the minority. In a sense, social inequality does
have its effect on the exercise and effect of the guarantee of free speech. Those who have more
will have better access to media that reaches a wider audience than those who have less.
Those who espouse the more popular ideas will have better reception than the subversive and
the dissenters of society.To be really heard and understood, the marginalized view normally
undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or
her expression. This view, thus, restricts laws or regulation that allows public officials to make
judgments of the value of such viewpoint or message content. This should still be the principal
approach.

However, the requirements of the Constitution regarding equality in opportunity must provide
limits to some expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or
the members of their political parties or their political parties may be regulated as to time, place,
and manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club
v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not
candidates or who do not speak as members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are
not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation (a) should be provided by
law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of
all candidates to be heard and considering the primacy of the guarantee of free expression, and
(d) demonstrably the least restrictive means to achieve that object. The regulation must only be
with respect to the time, place, and manner of the rendition of the message. In no situation may
the speech be prohibited or censored onthe basis of its content. For this purpose, it will
notmatter whether the speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be
arbitrary. At certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to the abridgement
of speech with political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations
relating to election propaganda by applying such regulations to private individuals.314 Certainly,
any provision or regulation can be circumvented. But we are not confronted with this possibility.
Respondents agree that the tarpaulin in question belongs to petitioners. Respondents have also
agreed, during the oral arguments, that petitioners were neither commissioned nor paid by any
candidate or political party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
property of petitioners. Their right to use their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be
posted is "so broad that it encompasses even the citizen’s private property."317 Consequently, it
violates Article III, Section 1 of the Constitution which provides thatno person shall be deprived
of his property without due process of law. This court explained:

Property is more than the mere thing which a person owns, it includes the right to acquire, use,
and dispose of it; and the Constitution, in the 14th Amendment, protects these essential
attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the
right to acquire, use, and dispose of it. The Constitution protects these essential attributes of
property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383.
Property consists of the free use, enjoyment, and disposal of a person’s acquisitions without
control or diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley
245 US 60 [1917])318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is
joined by a "liberty" interest, the burden of justification on the part of the Government must be
exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or
display of election propaganda in any place, whether public or private, except inthe common
poster areas sanctioned by COMELEC. This means that a private person cannot post his own
crudely prepared personal poster on his own front dooror on a post in his yard. While the
COMELEC will certainly never require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or regulation, may do.319 Respondents
ordered petitioners, who are private citizens, to remove the tarpaulin from their own property.
The absurdity of the situation is in itself an indication of the unconstitutionality of COMELEC’s
interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s
infringement upon petitioners’ property rights as in the present case also reaches out to
infringement on their fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote
justifies the intrusion into petitioners’ property rights. Election laws and regulations must be
reasonable. It must also acknowledge a private individual’s right to exercise property rights.
Otherwise, the due process clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of
election propaganda in private property without the consent of the owners of such private
property. COMELEC has incorrectly implemented these regulations. Consistent with our ruling
in Adiong, we find that the act of respondents in seeking to restrain petitioners from posting the
tarpaulin in their own private property is an impermissible encroachments on the right to
property.

V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned
notice and letter violated the right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second
is the free exercise and enjoyment of religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other
religious make such act immune from any secular regulation.324 The religious also have a
secular existence. They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts
to religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to
its Catholic dogma, faith, and moral teachings. . . ."325

The difficulty that often presents itself in these cases stems from the reality that every act can
be motivated by moral, ethical, and religious considerations. In terms of their effect on the
corporeal world, these acts range from belief, to expressions of these faiths, to religious
ceremonies, and then to acts of a secular character that may, from the point of view of others
who do not share the same faith or may not subscribe to any religion, may not have any
religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of

Schools of Cebu326 in claiming that the court "emphatically" held that the adherents ofa
particular religion shall be the ones to determine whether a particular matter shall be considered
ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s Witnesses from
participating in the flag ceremony "out of respect for their religious beliefs, [no matter how]
"bizarre" those beliefsmay seem to others."328 This court found a balance between the assertion
of a religious practice and the compelling necessities of a secular command. It was an early
attempt at accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government
policies that take religion specifically intoaccount not to promote the government’s favored form
of religion, but to allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or
institution’s religion. As Justice Brennan explained, the "government [may] take religion into
account . . . to exempt, when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby be infringed, or to
create without state involvement an atmosphere in which voluntary religious exercise may
flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional
when: (1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3)
it does not foster an excessive entanglement with religion.331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any
religious doctrine of the Catholic church."332 That the position of the Catholic church appears to
coincide with the message of the tarpaulin regarding the RH Law does not, by itself, bring the
expression within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to
candidates classified under "Team Patay" and "Team Buhay" according to their respective votes
on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic
faithful, the church doctrines relied upon by petitioners are not binding upon this court. The
position of the Catholic religion in the Philippines as regards the RH Law does not suffice to
qualify the posting by one of its members of a tarpaulin as religious speech solely on such
basis. The enumeration of candidates on the face of the tarpaulin precludes any doubtas to its
nature as speech with political consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations

Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil
courts as enumerated in the Austriacase such as "proceedings for excommunication,
ordinations of religious ministers, administration of sacraments and other activities withattached
religious significance."334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in
this case. However, it was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce
spending among candidates and their registered political parties. It is not to regulate or limit the
speech of the electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and
party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a
single issue — and a complex piece of legislation at that — can easily be interpreted as
anattempt to stereo type the candidates and party-list organizations. Not all may agree to the
way their thoughts were expressed, as in fact there are other Catholic dioceses that chose not
to follow the example of petitioners.

Some may have thought that there should be more room to consider being more broad-minded
and non-judgmental. Some may have expected that the authors would give more space to
practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental
liberties. It is not a detailed code that prescribes good conduct. It provides space for all to be
guided by their conscience, not only in the act that they do to others but also in judgment of the
acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority.
This can often be expressed by dominant institutions, even religious ones. That they made their
point dramatically and in a large way does not necessarily mean that their statements are true,
or that they have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention,
cause debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners
of their ecclesiastical duty, but their parishioner’s actions will have very real secular
consequences. Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate
that tends to rouse the public to debate contemporary issues. This is not speechby candidates
or political parties to entice votes. It is a portion of the electorate telling candidates the
conditions for their election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is
protected as a fundamental and primordial right by our Constitution. The expression in the
medium chosen by petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously
issued is hereby made permanent. The act of the COMELEC in issuing the assailed notice
dated February 22, 2013 and letter dated February 27, 2013 is declared unconstitutional.

SO ORDERED.

MARVIC M.V.F. LEONEN

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 CASTRO ARTURO D. BRION*

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO MARTN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

No Part
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

Case 10: Carpio – Morales v Court of Appeals

EN BANC
[ G.R. Nos. 217126-27, November 10, 2015 ]
 CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN, PETITIONER,
VS. COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY, JR.,
RESPONDENTS.

DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and immemorially
acknowledged so to be[.]"[1]

The Case

Before the Court is a petition for certiorari and prohibition[2] filed on March 25, 2015 by petitioner
Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the Office
of the Solicitor General (OSG), assailing: (a) the Resolution[3] dated March 16, 2015 of public
respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private
respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the implementation of the Joint Order[4] dated March 10, 20,15
of the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City Government of
Makati, for six (6) months without pay; and (b) the Resolution[5] dated March 20, 2015 of the CA,
ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt[6] in CA-G.R. SP No.
139504.

Pursuant to the Resolution[7] dated April 6, 2015, the CA issued a writ of preliminary
injunction[8] (WPI) in CA-G.R. SP No. 139453 which further enjoined the implementation of the
preventive suspension order, prompting the Ombudsman to file a supplemental petition[9] on
April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit[10] was filed by Atty. Renato L. Bondal and Nicolas
"Ching" Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public
officers and employees of the City Government of Makati (Binay, Jr., et al), accusing them of
Plunder[11] and violation of Republic Act No. (RA) 3019,[12] otherwise known as "The Anti-Graft
and Corrupt Practices Act," in connection with the five (5) phases of the procurement and
construction of the Makati City Hall Parking Building (Makati Parking Building). [13]

On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators[14] to

conduct a fact-finding investigation, submit an investigation report, and file the necessary
complaint, if warranted (1st Special Panel).[15]Pursuant to the Ombudsman's directive, on March
5, 2015, the 1st Special Panel filed a complaint[16] (OMB Complaint) against Binay, Jr., et al,
charging them with six (6) administrative cases[17] for Grave Misconduct, Serious Dishonesty,
and Conduct Prejudicial to the Best Interest of the Service, and six (6) criminal cases[18] for
violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification of Public
Documents (OMB Cases).[19]

As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities
attending the following procurement and construction phases of the Makati Parking Building
project, committed during his previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)[20]

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award[21] for Phase III of the Makati
Parking Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently,
executed the corresponding contract[22]on September 28, 2010,[23] without the required
publication and the lack of architectural design,[24] and approved the release of funds therefor in
the following amounts as follows: (1) P130,518,394.80 on December 15, 2010;[25](2)
P134,470,659.64 on January 19, 2011;[26] (3) P92,775,202.27 on February 25, 2011;[27] (4)
P57,148,625.51 on March 28, 2011;[28] (5) P40,908,750.61 on May 3, 2011;[29] and (6)
P106,672,761.90 on July 7, 2011;[30]

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award[31] for Phase IV of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract[32] on August 18, 2011,[33] without the required publication and the lack of architectural
design,[34] and approved the release of funds therefor in the following amounts as follows: (1)
P182,325,538.97 on October 4, 2O11;[35] (2) P173,132,606.91 on October 28,2011;[36] (3)
P80,408,735.20 on December 12, 2011;[37] (4) P62,878,291.81 on February 10, 2012;[38] and (5)
P59,639,167.90 on October 1, 2012;[39]

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award[40] for Phase V of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding
contract[41] on September 13, 2012,[42] without the required publication and the lack of
architectural design,[43] and approved the release of the funds therefor in the amounts of
P32,398,220.05[44] and P30,582,629.30[45] on December 20, 2012; and

Binay, Jr.'s Second Term (2013 to 2016)[46]

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining
balance of the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking
Building project in the amount of P27,443,629.97;[47] and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract[48] with MANA Architecture & Interior Design Co. (MANA) for the design and
architectural services covering the Makati Parking Building project in the amount of
P429,011.48.[49]

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2nd Special
Panel).[50] Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders[51] for
each of the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.[52]

Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the
recommendation of the 2ndSpecial Panel, issued on March 10, 2015, the subject preventive
suspension order, placing Binay, Jr., et al. under preventive suspension for not more than six (6)
months without pay, during the pendency of the OMB Cases.[53] The Ombudsman ruled that the
requisites for the preventive suspension of a public officer are present,[54] finding that: (a) the
evidence of Binay, Jr., et al.'s guilt was strong given that (1) the losing bidders and members of
the Bids and Awards Committee of Makati City had attested to the irregularities attending the
Makati Parking Building project; (2) the documents on record negated the publication of bids;
and (3) the disbursement vouchers, checks, and official receipts showed the release of funds;
and (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious
Dishonesty, and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if
proven to be true, warrant removal from public service under the Revised Rules on
Administrative Cases in the Civil Service (RRACCS), and (3) Binay, Jr., et al.'s respective
positions give them access to public records and allow them to influence possible witnesses;
hence, their continued stay in office may prejudice the investigation relative to the OMB Cases
filed against them.[55] Consequently, the Ombudsman directed the Department of Interior and
Local Government (DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to
immediately implement the preventive suspension order against Binay, Jr., et al., upon receipt
of the same.[56]

On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City
Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s staff.[57]

The Proceedings Before the CA

On even date,[58] Binay, Jr. filed a petition for certiorari[59] before the CA, docketed as CA-G.R.
SP No. 139453, seeking the nullification of the preventive suspension order, and praying for the
issuance of a TRO and/or WPI to enjoin its implementation.[60] Primarily, Binay, Jr. argued that
he could not be held administratively liable for any anomalous activity attending any of the five
(5) phases of the Makati Parking Building project since: (a) Phases I and II were undertaken
before he was elected Mayor of Makati in 2010; and (b) Phases III to V transpired during his first
term and that his re-election as City Mayor of Makati for a second term effectively condoned his
administrative liability therefor, if any, thus rendering the administrative cases against him moot
and academic.[61]In any event, Binay, Jr. claimed that the Ombudsman's preventive suspension
order failed to show that the evidence of guilt presented against him is strong, maintaining that
he did not participate in any of the purported irregularities.[62] In support of his prayer for
injunctive relief, Binay, Jr. argued that he has a clear and unmistakable right to hold public
office, having won by landslide vote in the 2010 and 2013 elections, and that, in view of the
condonation doctrine, as well as the lack of evidence to sustain the charges against him, his
suspension from office would undeservedly deprive the electorate of the services of the person
they have conscientiously chosen and voted into office.[63]

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the
preventive suspension order through the DILG National Capital Region - Regional Director,
Renato L. Brion, CESO III (Director Brion), who posted a copy thereof on the wall of the Makati
City Hall after failing to personally serve the same on Binay, Jr. as the points of entry to the
Makati City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C.
Evangelista administered the oath of office on Makati City Vice Mayor Romulo V. Peña, Jr.
(Peña, Jr.) who thereupon assumed office as Acting Mayor.[64]

At noon of the same day, the CA issued a Resolution[65] (dated March 16, 2015), granting Binay,
Jr.'s prayer for a TRO,[66] notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor
earlier that day.[67] Citing the case of Governor Garcia, Jr. v. CA,[68] the CA found that it was
more prudent on its part to issue a TRO in view of the extreme urgency of the matter and
seriousness of the issues raised, considering that if it were established that the acts subject of
the administrative cases against Binay, Jr. were all committed during his prior term, then,
applying the condonation doctrine, Binay, Jr.'s re-election meant that he can no longer be
administratively charged.[69] The CA then directed the Ombudsman to comment on Binay, Jr.'s
petition for certiorari.[70]

On March 17, 2015, the Ombudsman manifested[71] that the TRO did not state what act was
being restrained and that since the preventive suspension order had already been served and
implemented, there was no longer any act to restrain.[72]
On the same day, Binay, Jr. filed a petition for contempt,[73] docketed as CA-G.R. SP No.
139504, accusing Secretary Roxas, Director Brion, the officials of the Philippine National Police,
and Pena, Jr. of deliberately refusing to obey the CA, thereby allegedly impeding, obstructing, or
degrading the administration of justice.[74] The Ombudsman and Department of Justice
Secretary Leila M. De Lima were subsequently impleaded as additional respondents upon
Binay, Jr.'s filing of the amended and supplemental petition for contempt[75] (petition for
contempt) on March 19, 2015.[76] Among others, Binay, Jr. accused the Ombudsman and other
respondents therein for willfully and maliciously ignoring the TRO issued by the CA against the
preventive suspension order.[77]

In a Resolution[78] dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s
petition for contempt, directed the Ombudsman to file her comment thereto.[79] The cases were
set for hearing of oral arguments on March 30 and 31, 2015.[80]

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the
Ombudsman filed the present petition before this Court, assailing the CA's March 16, 2015
Resolution, which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the
March 20, 2015 Resolution directing her to file a comment on Binay, Jr.'s petition for contempt
in CA-G.R. SP No. 139504.[81] The Ombudsman claims that: (a) the CA had no jurisdiction to
grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA 6770,[82] or "The Ombudsman Act of
1989," which states that no injunctive writ could be issued to delay the Ombudsman's
investigation unless there is prima facie evidence that the subject matter thereof is outside the
latter's jurisdiction;[83] and (b) the CA's directive for the Ombudsman to comment on Binay, Jr.'s
petition for contempt is illegal and improper, considering that the Ombudsman is an
impeachable officer, and therefore, cannot be subjected to contempt proceedings.[84]

In his comment[85] filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial power to review acts of any branch or
instrumentality of government, including the Office of the Ombudsman, in case of grave abuse
of discretion amounting to lack or excess of jurisdiction, which he asserts was committed in this
case when said office issued the preventive suspension order against him.[86] Binay, Jr. posits
that it was incumbent upon the Ombudsman to1 have been apprised of the condonation
doctrine as this would have weighed heavily in determining whether there was strong evidence
to warrant the issuance of the preventive suspension order.[87] In this relation, Binay, Jr.
maintains that the CA correctly enjoined the implementation of the preventive suspension order
given his clear and unmistakable right to public office, and that it is clear that he could not be
held administratively liable for any of the charges against him since his subsequent re-election
in 2013 operated as a condonation of any administrative offenses he may have committed
during his previous term.[88] As regards the CA's order for the Ombudsman to comment on his
petition for contempt, Binay, Jr. submits that while the Ombudsman is indeed an impeachable
officer and, hence, cannot be removed from office except by way of impeachment, an action for
contempt imposes the penalty of fine and imprisonment, without necessarily resulting in removal
from office. Thus, the fact that the Ombudsman is an impeachable officer should not deprive the
CA of its inherent power to punish contempt.[89]

Meanwhile, the CA issued a Resolution[90] dated April 6, 2015, after the oral arguments before it
were held,[91]granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of
 the preventive suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible
right to the final relief prayed for, namely, the nullification of the preventive suspension order, in
view of the condonation doctrine, citing Aguinaldo v. Santos.[92] Particularly, it found that the
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-
election in 2013 as City Mayor of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building project from 2007 to 2013. [93] In this
regard, the CA added that, although there were acts which were apparently committed by Binay,
Jr. beyond his first term — namely, the alleged payments on July 3, July 4, and July 24,
2013,[94] corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,[95] and Mayor
Garcia v. Mojica[96]wherein the condonation doctrine was still applied by the Court although the
payments were made after the official's re-election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election.[97] To this, the CA added that
there was no concrete evidence of Binay, Jr.'s participation for the alleged payments made on
July 3, 4, and 24, 2013.[98]

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition[99] before this Court, arguing that the condonation
doctrine is irrelevant to the determination of whether the evidence of guilt is strong for purposes
of issuing preventive suspension orders. The Ombudsman also maintained that a reliance on
the condonation doctrine is a matter of defense, which should have been raised by Binay, Jr.
before it during the administrative proceedings, and that, at any rate, there is no condonation
because Binay, Jr. committed acts subject of the OMB Complaint after his re-election in
2013.[100]

On April 14 and 21, 2015,[101] the Court conducted hearings for the oral arguments of the
parties. Thereafter, they were required to file their respective memoranda.[102] In compliance
thereto, the Ombudsman filed her Memorandum[103] on May 20, 2015, while Binay, Jr. submitted
his Memorandum the following day.[104]

Pursuant to a Resolution[105] dated June 16, 2015, the Court directed the parties to comment on
each other's memoranda, and the OSG to comment on the Ombudsman's Memorandum, all
within ten (10) days from receipt of the notice.

On July 15, 2015, both parties filed their respective comments to each other's
memoranda.[106] Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of
Comment,[107] simply stating that it was mutually agreed upon that the Office of the Ombudsman
would file its Memorandum, consistent with its desire to state its "institutional position."[108] In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded, among
others, that this Court abandon the condonation doctrine.[109] In view of the foregoing, the case
was deemed submitted for resolution.

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted
before this Court, the main issues to be resolved in seriatim are as follows:

VI. Whether or not the present petition, and not motions for reconsideration of the assailed CA
issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the Ombudsman's
plain, speedy, and adequate remedy;
VII. Whether or not the CA has subject matter jurisdiction over the main petition for certiorari in
CA-G.R. SP No. 139453;
VIII. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining
the implementation of a preventive suspension order issued by the Ombudsman;
IX. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the
WPI in CA-G.R. SP No. 139453 enjoining the implementation of the preventive suspension
order against Binay, Jr. based on the condonation doctrine; and
X. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s petition
for contempt in CA- G.R. SP No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.

I.

A common requirement to both a petition for certiorari and a petition for prohibition taken under
Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy,
and adequate remedy in the ordinary course of law. Sections 1 and 2 thereof provide:

Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.

xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any other plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts r with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and justice may require.

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court
prior to resorting to the extraordinary remedy of certiorari or prohibition since a motion for
reconsideration may still be considered as a plain, speedy, and adequate remedy in the ordinary
course of law. The rationale for the pre-requisite is to grant an opportunity for the lower court or
agency to correct any actual or perceived error attributed to it by the re-examination of the legal
and factual circumstances of the case.[110]

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the
propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly
relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower
court or agency, x x x."[111]

In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a
petition for prohibition.[112] These are: (a) where the order is a patent nullity, as where the court a
quo has no jurisdiction; (b) where the questions raised in the certiorariproceedings have been
duly raised and passed upon by the lower court, or are the same as those raised and passed
upon in the lower court; (c) where there is an urgent necessity for the resolution of the question
and any further delay would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was deprived of due process and there is
extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable; (g) where the proceedings in the
lower court are a nullity for lack of due process; (h) where the proceedings were ex parte or in
which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of
law or where public interest is involved.[113]

In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first
time, the question on the authority of the CA - and of this Court, for that matter - to enjoin the
implementation of a preventive suspension order issued by the Office of the Ombudsman is put
to the fore. This case tests the constitutional and statutory limits of the fundamental powers of
key government institutions - namely, the Office of the Ombudsman, the Legislature, and the
Judiciary - and hence, involves an issue of transcendental public importance that demands no
less than a careful but expeditious resolution. Also raised is the equally important issue on the
propriety of the continuous application of the condonation doctrine as invoked by a public officer
who desires exculpation from administrative liability. As such, the Ombudsman's direct resort
to certiorari and prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No.
139504 before the CA, is justified.

II.

Albeit raised for the first time by the Ombudsman in her Memorandum,[114] it is nonetheless
proper to resolve the issue on the CA's lack of subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453, in view of the well-established rule that a court's
jurisdiction over the subject matter may be raised at any stage of the proceedings. The rationale
is that subject matter jurisdiction is conferred by law, and the lack of it affects the very authority
of the court to take cognizance of and to render judgment on the action.[115] Hence, it should be
preliminarily determined if the CA indeed had subject matter jurisdiction over the main CA-G.R.
SP No. 139453 petition, as the same determines the validity of all subsequent proceedings
relative thereto. It is noteworthy to point out that Binay, Jr. was given the opportunity by this
Court to be heard on this issue,[116] as he, in fact, duly submitted his opposition through his
comment to the Ombudsman's Memorandum.[117] That being said, the Court perceives no
reasonable objection against ruling on this issue.

The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main
petition, and her corollary prayer for its dismissal, is based on her interpretation of Section 14,
RA 6770, or the Ombudsman Act,[118]which reads in full:
Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office
of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court[119]) from issuing a writ of injunction to delay an investigation being conducted by
the Office of the Ombudsman. Generally speaking, "[injunction is a judicial writ, process or
proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the
main action or merely a provisional remedy for and as an incident in the main
action."[120]Considering the textual qualifier "to delay," which connotes a suspension of an action
while the main case remains pending, the "writ of injunction" mentioned in this paragraph could
only refer to injunctions of the provisional kind, consistent with the nature of a provisional
injunctive relief.

The exception to the no injunction policy is when there is prima facie evidence that the subject
matter of the investigation is outside the office's jurisdiction. The Office of the Ombudsman has
disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies, with the exception only of impeachable officers,
Members of Congress, and the Judiciary.[121] Nonetheless, the Ombudsman retains the power to
investigate any serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if
warranted.[122] Note that the Ombudsman has concurrent jurisdiction over certain administrative
cases which are within the jurisdiction of the regular courts or administrative agencies, but has
primary jurisdiction to investigate any act or omission of a public officer or employee who is
under the jurisdiction of the Sandiganbayan.[123]

On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or
application for remedy may be heard against the decision or findings of the Ombudsman, with
the exception of the Supreme Court on pure questions of law. This paragraph, which the
Ombudsman particularly relies on in arguing that the CA had no jurisdiction over the main CA-
G.R. SP No. 139453 petition, as it is supposedly this Court which has the sole jurisdiction to
conduct a judicial review of its decisions or findings, is vague for two (2) reasons: (1) it is
unclear what the phrase "application for remedy" or the word "findings" refers to; and (2) it does
not specify what procedural remedy is solely allowable to this Court, save that the same be
taken only against a pure question of law. The task then, is to apply the relevant principles of
statutory construction to resolve the ambiguity.

"The underlying principle of all construction is that the intent of the legislature should be sought
in the words employed to express it, and that when found[,] it should be made to govern, x x x. If
the words of the law seem to be of doubtful import, it may then perhaps become necessary to
look beyond them in order to ascertain what was in the legislative mind at the time the law was
enacted; what the circumstances were, under which the action was taken; what evil, if any, was
meant to be redressed; x x x [a]nd where the law has contemporaneously been put into
operation, and in doing so a construction has necessarily been put upon it, this construction,
especially if followed for some considerable period, is entitled to great respect, as being very
probably a true expression of the legislative purpose, and is not lightly to be overruled, although
it is not conclusive."[124]

As an aid to construction, courts may avail themselves of the actual proceedings of the
legislative body in interpreting a statute of doubtful meaning. In case of doubt as to what a
provision of a statute means, the meaning put to the provision during the legislative
deliberations may be adopted,[125] albeit not controlling in the interpretation of the law.[126]

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on
the matter of judicial review of her office's decisions or findings, is supposedly clear from the
following Senate deliberations:[127]

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition
for" delete the word "review" and in lieu thereof, insert the word CERTIORARI. So that, review
or appeal from the decision of the Ombudsman would only be taken not on a petition for review,
but on certiorari.

The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to
reverse the decision under review?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts
of the Ombudsman would be almost conclusive if supported by substantial evidence. Second,
we would not unnecessarily clog the docket of the Supreme Court. So, it in effect will be a very
strict appeal procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive
remedies available to a respondent, the respondent himself has the right to exhaust the
administrative remedies available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme
Court only on certiorari?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f no certiorari available, is the respondent given the
right to exhaust his administrative remedies first before the Ombudsman can take the
appropriate action?
Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law
principle that before one can go to court, he must exhaust all administrative remedies xxx
available to him before he goes and seeks judicial review.

xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of
appeal from one of a petition for review to a petition for certiorari?

Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the
effect that the finding of facts of the Ombudsman is conclusive if supported by substantial
evidence.

Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I
concur, that in an appeal by certiorari, the appeal is more difficult. Because in certiorari it is a
matter of discretion on the part of the court, whether to give due course to the petition or dismiss
it outright. Is that not correct, Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari, the issue is limited to whether or not the
Ombudsman here has acted without jurisdiction and has committed a grave abuse of discretion
amounting to lack of jurisdiction. Is that not the consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to
make it harder to have a judicial review, but should be limited only to cases that I have
enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a
petition for review and a petition for certiorari; because before, under the 1935 Constitution
appeal from any order, ruling or decision of the COMELEC shall be by means of review. But
under the Constitution it is now by certiorari and the Supreme Court said that by this change,
the court exercising judicial review will not inquire into the facts, into the evidence, because we
will not go deeply by way of review into the evidence on record but its authority will be limited to
a determination of whether the administrative agency acted without, or in excess of, jurisdiction,
or committed a grave abuse of discretion. So, I assume that that is the purpose of this
amendment, Mr. President.

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated,
Mr. President.

xxxx

The President. It is evident that there must be some final authority to render decisions. Should it
be the Ombudsman or should it be the Supreme Court?
Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and
has to be the Supreme Court to make the final determination.

The President. Then if that is so, we have to modify Section 17.

Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation
to introduce an appropriate change during the period of Individual Amendments.

xxxx

The President. All right. Is there any objection to the amendment inserting the
word CERTIORARI instead of "review"? [Silence] Hearing none, the same is approved.[128]

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the
provision debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the
exchange begins with the suggestion of Senator Angara to delete the word "review" that comes
after the phrase "petition for review" and, in its stead, insert the word "certiorari" so that the
"review or appeal from the decision of the Ombudsman would not only be taken on a petition for
review, but on certiorari" The ensuing exchange between Senators Gonzales and Angara then
dwells on the purpose of changing the method of review from one of a petition for review to a
petition for certiorari - that is, to make "the appeal x x x more difficult." Ultimately, the
amendment to the change in wording, from "petition for review" to "petition for certiorari" was
approved.

Noticeably, these references to a "petition for review" and the proposed "petition for certiorari"
are nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that
this provision, particularly its second paragraph, does not indicate what specific procedural
remedy one should take in assailing a decision or finding of the Ombudsman; it only reveals that
the remedy be taken to this Court based on pure questions of law. More so, it was even
commented upon during the oral arguments of this case[129] that there was no debate or
clarification made on the current formulation of the second paragraph of Section 14, RA 6770
per the available excerpts of the Senate deliberations. In any case, at least for the above-cited
deliberations, the Court finds no adequate support to sustain the Ombudsman's entreaty that
the CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.

On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually
reflects the approval of Senator Angara's suggested amendment, i.e., that the Ombudsman's
decision or finding may be assailed in a petition for certiorari to this Court (fourth paragraph),
and further, his comment on the conclusive nature of the factual findings of the Ombudsman, if
supported by substantial evidence (third paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman
must be filed within five (5) days after receipt of written notice and shall be entertained only on
any of the following grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant.
The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That
only one motion for reconsideration shall be entertained.
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are
conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand,
suspension of not more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten
(10) days from receipt of the written notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the ' Ombudsman as the interest
of justice may require. (Emphasis and underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition
for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-
known that under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed
by Rule 65 of the said Rules. However, it should be discerned that the Ombudsman Act was
passed way back in 1989[130] and, hence, before the advent of the 1997 Rules of Civil
Procedure.[131] At that time, the governing 1964 Rules of Court,[132] consistent with Section 27,
RA 6770, referred to the appeal taken thereunder as a petition for certiorari, thus possibly
explaining the remedy's textual denomination, at least in the provision's final approved version:

RULE 45
Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari, from a
judgment of the Court of Appeals, by filing with the Supreme Court a petition for certiorari, within
fifteen (15) days from notice of judgment or of the denial of his motion for reconsideration filed in
due time, and paying at the same time, to the clerk of said court the corresponding docketing
fee. The petition shall not be acted upon without proof of service of a copy thereof to the Court
of Appeals. (Emphasis supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the
meaning of the provision.

To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any
appeal or application for remedy against the decision or findings of the Ombudsman, except the
Supreme Court, on pure question of law." ;

As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of
remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal against any
decision or finding of the Ombudsman, and (b) "any application of remedy" (subject to the
exception below) against the same. To clarify, the phrase "application for remedy," being a
generally worded provision, and being separated from the term "appeal" by the disjunctive
"or",[133] refers to any remedy (whether taken mainly or provisionally), except an appeal,
following the maxim generalia verba sunt generaliter intelligenda: general words are to be
understood in a general sense.[134] By the same principle, the word "findings," which is also
separated from the word "decision" by the disjunctive "or", would therefore refer to any finding
made by the Ombudsman (whether final or provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the
specific procedural vehicle is not explicit from its text, it is fairly deducible that the second
paragraph of Section 14, RA 6770 excepts, as the only allowable remedy against "the decision
or findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy taken
to the Supreme Court on "pure questions of law," whether under the 1964 Rules of Court or the
1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters
involved, the assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the judgment sought
to be reviewed, together with twelve (12) copies of the record on appeal, if any, and of the
petitioner's brief as filed in the Court of Appeals. A verified statement of the date when notice of
judgment and denial of the motion for reconsideration, if any, were received shall accompany
the petition.

Only questions of law may be raised in the petition and must be distinctly set forth. If no record
on appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon
admission of the petition, shall demand from the Court of Appeals the elevation of the whole
record of the case. (Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45
Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an
application for a writ of preliminary injunction or other provisional remedies and shall raise only
questions of law, which must be distinctly set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the same action or proceeding at any time during
its pendency. (Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a
suggestion that defies traditional norms of procedure. It is basic procedural law that a Rule 65
petition is based on errors of jurisdiction, and not errors of judgment to which the classifications
of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact and law, relate to. In
fact, there is no procedural rule, whether in the old or new Rules, which grounds a Rule 65
petition on pure questions of law. Indeed, it is also a statutory construction principle that the
lawmaking body cannot be said to have intended the establishment of conflicting and hostile
systems on the same subject. Such a result would render legislation a useless and idle
ceremony, and subject the laws to uncertainty and unintelligibility.[135] There should then be no
confusion that the second paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to this
Court, and no other. In sum, the appropriate construction of this Ombudsman Act provision is
that all remedies against issuances of the Office of the Ombudsman are prohibited, except the
above-stated Rule 45 remedy to the Court on pure questions of law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal -which is within the sphere of the rules of
procedure promulgated by this Court - can only be taken against final decisions or orders of
lower courts,[136] and not against "findings" of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure; hence, it cannot alter the scope of a
Rule 45 appeal so as to apply to interlocutory "findings" issued by the Ombudsman. More
significantly, by confining the remedy to a Rule 45 appeal, the provision takes away the remedy
of certiorari, grounded on errors of jurisdiction, in denigration of the judicial power
constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770 also
increased this Court's appellate jurisdiction, without a showing, however, that it gave its consent
to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA
6770 (as above-cited), which was invalidated in the case of Fabian v. Desiertoni[137] (Fabian).[138]

In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as
unconstitutional since it had the effect of increasing the appellate jurisdiction of the Court
without its advice and concurrence in violation of Section 30, Article VI of the 1987
Constitution.[139] Moreover, this provision was found to be inconsistent with Section 1, Rule 45 of
the present 1997 Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-judicial
agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the
Court of Appeals. In Ruivivar v. Office of the Ombudsman,[140] the Court's ratiocinations and
ruling in Fabian were recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of
R.A. No. 6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of
Procedure of the Office of the Ombudsman) on the availability of appeal before the Supreme
Court to assail a decision or order of the Ombudsman in administrative cases. In Fabian, we
invalidated Section 27 of R.A. No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other
rules implementing the Act) insofar as it provided for appeal by certiorari under Rule 45 from the
decisions or orders of the Ombudsman in administrative cases. We held that Section 27 of R.A.
No. 6770 had the effect, not only of increasing the appellate jurisdiction of this Court without its
advice and concurrence in violation of Section 30, Article VI of the Constitution; it was also
inconsistent with Section 1, Rule 45 of the Rules of Court which provides that a petition for
review on certiorari shall apply only to a review of "judgments or final orders of the Court of
Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other courts
authorized by law." We pointedly said:
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be
struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals
from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from
decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken
to the CA under the provisions of Rule 43.[141] (Emphasis supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or
findings" of the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of
Section 27, RA 6770[142] - attempts to effectively increase the Supreme Court's appellate
jurisdiction without its advice and concurrence,[143] it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing,[144] Fabian should squarely apply since the above-stated Ombudsman Act provisions
are in part materia in that they "cover the same specific or particular subject matter,"[145] that is,
the manner of judicial review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the
existence of the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition,
including all subsequent proceedings relative thereto, as the Ombudsman herself has
developed, the Court deems it proper to resolve this issue ex mero motu (on its own motion[146]).
This procedure, as was similarly adopted in Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by
a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we
shall explain.

Since the constitution is intended for the observance of the judiciary and other departments of
the government and the judges are sworn to support its provisions, the courts are not at liberty
to overlook or disregard its commands or countenance evasions thereof. When it is clear , that a
statute transgresses the authority vested in a legislative body, it is the duty of the courts to
declare that the constitution, and not the statute, governs in a case before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in
the pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude
a court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks
jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine
whether or not it has jurisdiction, it necessarily follows that it may inquire into the
constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily
rejected unless the jurisdiction of the court below or that of the appellate court is involved in
which case it may be raised at any time or on the court's own motion. The Court ex mero
motu may take cognizance of lack of jurisdiction at any point in the case where that fact is
developed. The court has a clearly recognized right to determine its own jurisdiction in any
proceeding.[147] (Emphasis supplied)

D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr.
before the CA in order to nullify the preventive suspension order issued by the Ombudsman, an
interlocutory order,[148] hence, unappealable.[149]
In several cases decided after Fabian, the Court has ruled that Rule 65 petitions
for certiorari against unappelable issuances[150] of the Ombudsman should be filed before the
CA, and not directly before this Court:

In Office of the Ombudsman v. Capulong[151] (March 12, 2014), wherein a preventive

suspension order issued by the Office of the Ombudsman was - similar to this case - assailed
through a Rule 65 petition for certiorari filed by the public officer before the CA, the Court held
that "[t]here being a finding of grave abuse of discretion on the part of the Ombudsman, it was
certainly imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule
65."[152]

In Dagan v. Office of the Ombudsman[153] (November 19, 2013), involving a Rule 65 petition for
certiorari assailing a final and unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that "petitioner employed the correct mode of review in
this case, i.e., a special civil action for certiorari before the Court of Appeals."[154] In this relation,
it stated that while "a special civil action for Certiorari is within the concurrent original jurisdiction
of the Supreme Court and the Court of Appeals, such petition should be initially filed with the
Court of Appeals in observance of the doctrine of hierarchy of courts." Further, the Court
upheld Barata v. Abalos, Jr.[155](June 6, 2001), wherein it was ruled that the remedy against final
and unappealable orders of the Office of the Ombudsman in an administrative case was a Rule
65 petition to the CA. The same verdict was reached in Ruivivar[156] (September 16, 2008).

Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes that the CA has subject matter jurisdiction over
the main CA-G.R. SP No. 139453 petition. That being said, the Court now examines the
objections of the Ombudsman, this time against the CA's authority to issue the assailed TRO
and WPI against the implementation of the preventive suspension order, incidental to that main
case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has
no jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive
suspension orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in
conjunction with her office's independence under the 1987 Constitution. She advances the idea
that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it from
judicial intervention,"[157] particularly, "from injunctive reliefs traditionally obtainable from the
courts,"[158]claiming that said writs may work "just as effectively as direct harassment or political
pressure would."[159]

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas[,] and Mindanao. A separate Deputy for the military establishment may likewise
be appointed. (Emphasis supplied)
In Gonzales III v. Office of the President[160] (Gonzales III), the Court traced the historical
underpinnings of the Office of the Ombudsman:

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the ( 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree
(PD) No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the
Ombudsman to be known as Tanodbayan. It was tasked principally to investigate, on complaint
or motu proprio, any administrative act of any administrative agency, including any government-
owned or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979,
the powers previously vested in the Special Prosecutor were transferred to the Tanodbayan
himself. He was given the exclusive authority to conduct preliminary investigation of all cases
cognizable by the Sandiganbayan, file the corresponding information, and control the
prosecution of these cases.

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II
and the standard of accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive
and effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest lives.[161] (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's mandate, and in
correlation, the impetus behind its independence:

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is
envisioned to be the "protector of the people" against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action bureau. This constitutional vision
of a Philippine Ombudsman practically intends to make the Ombudsman an authority to directly
check and guard against the ills, abuses and excesses , of the bureaucracy. Pursuant to
Section 13 (8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it
to further realize the vision of the Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of the
Government and its subdivisions, instrumentalities, and agencies, including Members of the
Cabinet, local government, government-owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by impeachment or over Members of Congress,
and the Judiciary.
As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its
actions, although not squarely falling under the broad powers granted [to] it by the Constitution
and by RA No. 6770, if these actions are reasonably in line with its official function and
consistent with the law and the Constitution.

The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit
to insulate the Office of the Ombudsman from the pressures and influence of officialdom and
partisan politics and from fear of external reprisal by making it an "independent" office, x x x.

xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies." It has powers, both constitutional and statutory, that are commensurate ,
with its daunting task of enforcing accountability of public officers.[162] (Emphasis and
underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the Ombudsman's
independence vis-a-vis the independence of the other constitutional bodies. Pertinently, the
Court observed:

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics - they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy.
In general terms, the framers of the Constitution intended that these 'independent' bodies be
insulated from political pressure to the extent that the absence of 'independence' would result in
the impairment of their core functions"[163];

(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only [of] the express mandate of the Constitution, but especially as
regards the Supreme Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based";[164] and

(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for
independence. In the deliberations of the 1973 Constitution, the delegates amended the 1935
Constitution by providing for a constitutionally-created Civil Service Commission, instead of one
created by law, on the premise that the effectivity of this body is dependent on its freedom from
the tentacles of politics. In a similar manner, the deliberations of the 1987 Constitution on the
Commission on Audit highlighted the developments in the past Constitutions geared towards
insulating the Commission on Audit from political pressure."[165]

At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office
of the Ombudsman, as well as that of the foregoing independent bodies, meant freedom from
control or supervision of the Executive Department:
[T]he independent constitutional commissions have been consistently intended by the framers
to be independent from executive control or supervision or any form of political influence. At
least insofar as these bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we
emphasized that the Constitutional Commissions, which have been characterized under the
Constitution as "independent," are not under the control of the President, even if they discharge
functions that are executive in nature. The Court declared as unconstitutional the President's act
of temporarily appointing the respondent in that case as Acting Chairman of the [Commission on
Elections] "however well-meaning" it might have been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that
the tenure of the commissioners of the independent Commission on Human Rights could not be
placed under the discretionary power of the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior
- but is similar in degree and kind - to the independence similarly guaranteed by the Constitution
to the Constitutional Commissions since all these offices fill the political interstices of a
republican democracy that are crucial to its existence and proper functioning.[166] (Emphases
and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a]
Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process," partially
unconstitutional insofar as it subjected the Deputy Ombudsman to the disciplinary authority of
the President for violating the principle of independence. Meanwhile, the validity of Section 8
(2), RA 6770 was maintained insofar as the Office of the Special Prosecutor was concerned
since said office was not considered to be constitutionally within the Office of the Ombudsman
and is, hence, not entitled to the independence the latter enjoys under the Constitution.[167]

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's
independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law,
unless the Constitution itself allows, or an amendment thereto is made;

Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom
to use or dispose of [its] funds for purposes germane to [its] functions;[168] hence, its budget
cannot be strategically decreased by officials of the political branches of government so as to
impair said functions; and

Third: insulation from executive supervision and control, which means that those within the
ranks of the office can only be disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the Ombudsman
from political harassment and pressure, so as to free it from the "insidious tentacles of
politics."[169]
That being the case, the concept of Ombudsman independence cannot be invoked as basis to
insulate the Ombudsman from judicial power constitutionally vested unto the courts. Courts are
apolitical bodies, which are ordained to act as impartial tribunals and apply even justice to all.
Hence, the Ombudsman's notion that it can be exempt from an incident of judicial power - that
is, a provisional writ of injunction against a preventive suspension order - clearly strays from the
concept's rationale of insulating the office from political harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.

The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it

remains that the first paragraph of Section 14, RA 6770 textually prohibits courts from extending
provisional injunctive relief to delay any investigation conducted by her office. Despite the usage
of the general phrase "[n]o writ of injunction shall be issued by any court," the Ombudsman
herself concedes that the prohibition does not cover the Supreme Court.[170] As support, she
cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I
would just like to inquire for the record whether below the Supreme Court, it is understood that
there is no injunction policy against the Ombudsman by lower courts. Or, is it necessary to have
a special paragraph for that?

Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction
against the Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this being one of the highest
constitutional bodies, is to subject this only to certiorari to the Supreme Court. I think an
injunction from the Supreme Court is, of course, in order but no lower courts should be allowed
to interfere. We had a very bad experience with even, let us say, the Forestry Code where no
injunction is supposed to be issued against the Department of Natural Resources. Injunctions
are issued right and left by RTC judges all over the country.

The President. Why do we not make an express provision to that effect?

Senator Angara. We would welcome that, Mr. President.

The President. No [writs of injunction] from the trial courts other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same is approved.[171]

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987
Constitution, acts of the Ombudsman, including interlocutory orders, are subject to the Supreme
Court's power of judicial review As a corollary, the Supreme Court may issue ancillary mjunctive
writs or provisional remedies in the exercise of its power of judicial review over matters
pertaining to ongoing investigations by the Office of the Ombudsman. Respecting the CA,
however, the Ombudsman begs to differ.[172]
With these submissions, it is therefore apt to examine the validity of the first paragraph of
Section 14, RA 6770 insofar as it prohibits all courts, except this Court, from issuing provisional
writs of injunction to enjoin an Ombudsman investigation. That the constitutionality of this
provision is the lis mota of this case has not been seriously disputed. In fact, the issue anent its
constitutionality was properly raised and presented during the course of these
proceedings.[173] More importantly, its resolution is clearly necessary to the complete disposition
of this case.[174]

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),[175] the
"Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative[,] and the judicial departments of the government."[176] The
constitutional demarcation of the three fundamental powers of government is more commonly
known as the principle of separation of powers. In the landmark case of Belgica v. Ochoa, Jr.
(Belgica),[177] the Court held that "there is a violation of the separation of powers principle when
one branch of government unduly encroaches on the domain of another."[178] In particular, "there
is a violation of the principle when there is impermissible (a) interference with and/or (b)
assumption of another department's functions."[179]

Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme
Court and all such lower courts:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress. Thus, through the passage of Batas Pambansa
Bilang (BP) 129,[180] known as "The Judiciary Reorganization Act of 1980," the Court of
Appeals,[181] the Regional Trial Courts,[182] and the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts[183] were established. Later, through the passage of
RA 1125,[184] and Presidential Decree No. (PD) 1486,[185] the Court of Tax Appeals, and the
Sandiganbayan were respectively established.

In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, except that it may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5[186] of the same Article:

Section 2. The Congress shall have the power to define, prescribe, ' and apportion the
jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5 hereof.

xxxx

Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject
matter of an action. In The Diocese of Bacolod v. Commission on Elections,[187] subject matter
jurisdiction was defined as "the authority 'to hear and determine cases of the general class to
which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of
this Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and
the trial courts, through the passage of BP 129, as amended.

In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition
for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

2. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but
also concurrent with the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and
the Supreme Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In view of
the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine of hierarchy
of courts should be followed. In People v. Cuaresma,[188] the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of

the writs an absolute, unrestrained freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals.[189]

When a court has subject matter jurisdiction over a particular case, as conferred unto it by law,
said court may then exercise its jurisdiction acquired over that case, which is called judicial
power.

Judicial power, as vested in the Supreme Court and all other courts established by law, has
been defined as the "totality of powers a court exercises when it assumes jurisdiction and hears
and decides a case."[190] Under Section 1, Article VIII of the 1987 Constitution, it includes "the
duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government."

In Oposa v. Factoran, Jr.[191] the Court explained the expanded scope of judicial power under
the 1987 Constitution:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents
a broadening of f judicial power to enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because they are tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is
a very elastic phrase that can expand or contract according to the disposition of the judiciary.[192]

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has
acquired over a particular case conforms to the limits and parameters of the rules of procedure
duly promulgated by this Court. In other words, procedure is the framework within which judicial
power is exercised. In Manila Railroad Co. v. Attorney-General,[193] the Court elucidated that
"[t]he power or authority of the court over the subject matter existed and was fixed before
procedure in a given cause began. Procedure does not alter or change that power or authority;
it simply directs the manner in which it shall be fully and justly exercised. To be sure, in certain
cases, if that power is not exercised in conformity with the provisions of the procedural law,
purely, the court attempting to exercise it loses the power to exercise it legally. This does not
mean that it loses jurisdiction of the subject matter."[194]

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court. (Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice[195] (Echegaray), the Court traced the evolution of its rule-
making authority, which, under the 1935[196] and 1973 Constitutions,[197] had been priorly
subjected to a power-sharing scheme with Congress.[198] As it now stands, the 1987
Constitution textually altered the old provisions by deleting the concurrent power of Congress to
amend the rules, thus solidifying in one body the Court's rule-making powers, in line with the
Framers' vision of institutionalizing a "[s]tronger and more independent judiciary."[199]

The records of the deliberations of the Constitutional Commission would show[200] that the
Framers debated on whether or not the Court's rule-making powers should be shared with
Congress. There was an initial suggestion to insert the sentence "The National Assembly may
repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme
Court", right after the phrase "Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance to the underprivileged" in the
enumeration of powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino
proposed to delete the former sentence and, instead, after the word "[underprivileged," place a
comma (,) to be followed by "the phrase with the concurrence of the National Assembly."
Eventually, a compromise formulation was reached wherein (a) the Committee members agreed
to Commissioner Aquino's proposal to delete the phrase "the National Assembly may repeal,
alter, or supplement the said rules with the advice and concurrence of the Supreme Court" and
(b) in turn, Commissioner Aquino agreed to withdraw his proposal to add "the phrase with the
concurrence of the National Assembly." The changes were approved, thereby leading to the
present lack of textual reference to any form of Congressional participation in Section 5 (5),
Article VIII, supra. The prevailing consideration was that "both bodies, the Supreme Court and
the Legislature, have their inherent powers."[201]

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules
concerning pleading, practice, and procedure. As pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first time was given the
power to promulgate rules concerning the protection and enforcement of constitutional rights.
The Court was also r granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away
the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and
procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no
longer shared by this Court with Congress, more so with the Executive.[202] (Emphasis and
underscoring supplied)

Under its rule-making authority, the Court has periodically passed various rules of procedure,
among others, the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural
remedies needed for the reasonable exercise of every court's judicial power, the provisional
remedies of temporary restraining orders and writs of preliminary injunction were thus provided.

A temporary restraining order and a writ of preliminary injunction both constitute temporary
measures availed of during the pendency of the action. They are, by nature, ancillary because
they are mere incidents in and are dependent upon the result of the main action. It is well-
settled that the sole object of a temporary restraining order or a writ of preliminary injunction,
whether prohibitory or mandatory, is to preserve the status quo[203]until the merits of the case
can be heard. They are usually granted when it is made to appear that there is a substantial
controversy between the parties and one of them is committing an act or threatening the
immediate commission of an act that will cause irreparable injury or destroy the status quo of
the controversy before a full hearing can be had on the merits of the case. In other words, they
are preservative remedies for the protection of substantive rights or interests, and, hence, not a
cause of action in itself, but merely adjunct to a main suit.[204] In a sense, they are regulatory
processes meant to prevent a case from being mooted by the interim acts of the parties.

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a
TRO and a WPI. A preliminary injunction is defined under Section 1,[205] Rule 58, while Section
3[206] of the same Rule enumerates the grounds for its issuance. Meanwhile, under Section
5[207] thereof, a TRO may be issued as a precursor to the issuance of a writ of preliminary
injunction under certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent
power to issue all auxiliary writs, processes, and other means necessary to carry its acquired
jurisdiction into effect under Section 6, Rule 135 of the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, f processes and other means necessary to carry it into
effect may be employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by law[208] or by these rules, any
suitable process or mode of proceeding may be adopted which appears comfortable to the spirit
of the said law or rules.

In City of Manila v. Grecia-Cuerdo,[209] which is a case involving "[t]he supervisory power or

jurisdiction of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate
jurisdiction"[210] over "decisions, orders or resolutions of the RTCs in local tax cases originally
decided or resolved by them in the exercise of their original or appellate jurisdiction,"[211] the
Court ruled that said power "should coexist with, and be a complement to, its appellate
jurisdiction to review, by appeal, the final orders and decisions of the RTC, in order to have
complete supervision over the acts of the latter:"[212]

A grant of appellate jurisdiction implies that there is included in it the power necessary to
exercise it effectively, to make all orders that ; will preserve the subject of the action, and to give
effect to the final determination of the appeal. It carries with it the power to protect that
jurisdiction and to make the decisions of the court thereunder effective. The court, in aid of its
appellate jurisdiction, has authority to control all auxiliary and incidental matters necessary to
the efficient and proper exercise of that jurisdiction. For this purpose, it may, when necessary,
prohibit or restrain the performance of any act which might interfere with the proper exercise of
its rightful jurisdiction in cases pending before it.[213] (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court endowed with subject matter
jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are
necessary to enable it to act effectively within such jurisdiction. These should be regarded as
powers which are inherent in its jurisdiction and the court must possess them in order to enforce
its rules of practice and to suppress any abuses of its process and to t defeat any attempted
thwarting of such process.

xxxx

Indeed, courts possess certain inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers
are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or are
essential to the existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable to the execution of
their granted powers; and include the power to maintain the court's jurisdiction and render it
effective in behalf of the litigants.[214] (Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched
constitutional principle, articulated way back in the 1936 case of Angara, that "where a general
power is conferred or duty enjoined, every particular power necessary for the exercise of the
one or the performance of the other is also conferred."[215]

In the United States, the "inherent powers doctrine refers to the principle, by which the courts
deal with diverse matters over which they are thought to have intrinsic authority like procedural
[rule-making] and general judicial housekeeping. To justify the invocation or exercise of inherent
powers, a court must show that the powers are reasonably necessary to achieve the specific
purpose for which the exercise is sought. Inherent powers enable the judiciary to accomplish its
constitutionally mandated functions."[216]
In Smothers v. Lewis[217] (Smothers), a case involving the constitutionality of a statute which
prohibited courts from enjoining the enforcement of a revocation order of an alcohol beverage
license pending appeal,[218] the Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably
necessary for the administration of justice within the scope of their jurisdiction. x x x [W]e said
while considering the rule making power and the judicial power to be one and the same that ". .
. the grant of judicial power [rule making power] to the courts by the constitution carries with it,
as a necessary incident, the right to make that power effective in the administration of justice."
(Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an

exercise of the court's inherent power, and to this end, stated that any attempt on the part of
Congress to interfere with the same was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28
Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once having
obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of
power, inherent power to do all things reasonably necessary to the administration of justice in
the case before it. In the exercise of this power, a court, when necessary in order to protect or
preserve the subject matter of the litigation, to protect its jurisdiction and to make its judgment
effective, may grant or issue a temporary injunction in aid of or ancillary to the principal action.

The control over this inherent judicial power, in this particular instance the injunction, is
exclusively within the constitutional realm of the courts. As such, it is not within the purview of
the legislature to grant or deny the power nor is it within the purview of the legislature to shape
or fashion circumstances under which this inherently judicial power may be or may not be
granted or denied.

This Court has historically recognized constitutional limitations upon the power of the legislature
to interfere with or to inhibit the performance of constitutionally granted and inherently provided
judicial functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of
a cause of action, has, as incidental to its general jurisdiction, inherent power to do all things
reasonably necessary f to the administration of justice in the case before it. . ." This includes the
inherent power to issue injunctions. (Emphases supplied)

Smothers also pointed out that the legislature's authority to provide a right to appeal in the
statute does not necessarily mean that it could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the right
to encroach upon the constitutionally granted powers of the judiciary. Once the administrative
action has ended and the right to appeal arises the legislature is void of any right to control a
subsequent appellate judicial proceeding. The judicial rules have come into play and have
preempted the field.[219] (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress passed the first
paragraph of Section 14, RA 6770 and, in so doing, took away from the courts their power to
issue a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it
encroached upon this Court's constitutional rule-making authority. Clearly, these issuances,
which are, by nature, provisional reliefs and auxiliary writs created under the provisions of the
Rules of Court, are matters of procedure which belong exclusively within the province of this
Court. Rule 58 of the Rules of Court did not create, define, and regulate a right but merely
prescribed the means of implementing an existing right[220] since it only provided for temporary
reliefs to preserve the applicant's right in esse which is threatened to be violated during the
course of a pending litigation. In the case of Fabian,[221] it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with procedure.

Notably, there have been similar attempts on the part of Congress, in the exercise of its
legislative power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The
National Power Corporation from Payment of Filing/ Docket Fees;[222] (b) Re: Petition for
Recognition of the Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees;[223] and (c) Baguio Market Vendors Multi-Purpose Cooperative
(BAMARVEMPCO) v. Cabato-Cortes[224] While these cases involved legislative enactments
exempting government owned and controlled corporations and cooperatives from paying filing
fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
nonetheless, ruled that the prerogative to amend, repeal or even establish new rules of
procedure[225] solely belongs to the Court, to the exclusion of the legislative and executive
branches of government. On this score, the Court described its authority to promulgate rules on
pleading, practice, and procedure as exclusive and "[o]ne of the safeguards of [its] institutional
independence."[226]

That Congress has been vested with the authority to define, prescribe, and apportion the
jurisdiction of the various courts under Section 2, Article VIII supra, as well as to create statutory
courts under Section 1, Article VIII supra, does not result in an abnegation of the Court's own
power to promulgate rules of pleading, practice, and procedure under Section 5 (5), Article VIII
supra. Albeit operatively interrelated, these powers are nonetheless institutionally separate and
distinct, each to be preserved under its own sphere of authority. When Congress creates a court
and delimits its jurisdiction, the procedure for which its jurisdiction is exercised is fixed by the
Court through the rules it promulgates. The first paragraph of Section 14, RA 6770 is not a
jurisdiction-vesting provision, as the Ombudsman misconceives,[227] because it does not define,
prescribe, and apportion the subject matter jurisdiction of courts to act on certiorari cases;
the certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of BP
129 which were not shown to have been repealed. Instead, through this provision, Congress
interfered with a provisional remedy that was created by this Court under its duly promulgated
rules of procedure, which utility is both integral and inherent to every court's exercise of judicial
power. Without the Court's consent to the proscription, as may be manifested by an adoption of
the same as part of the rules of procedure through an administrative circular issued therefor,
there thus, stands to be a violation of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting provisional
injunctions, such as in the first paragraph of Section 14, RA 6770, does not only undermine the
constitutional allocation of powers; it also practically dilutes a court's ability to carry out its
functions. This is so since a particular case can easily be mooted by supervening events if no
provisional injunctive relief is extended while the court is hearing the same. Accordingly, the
court's acquired jurisdiction, through which it exercises its judicial power, is rendered nugatory.
Indeed, the force of judicial power, especially under the present Constitution, cannot be
enervated due to a court's inability to regulate what occurs during a proceeding's course. As
earlier intimated, when jurisdiction over the subject matter is accorded by law and has been
acquired by a court, its exercise thereof should be undipped. To give true meaning to the judicial
power contemplated by the Framers of our Constitution, the Court's duly promulgated rules of
procedure should therefore remain unabridged, this, even by statute. Truth be told, the policy
against provisional injunctive writs in whatever variant should only subsist under rules of
procedure duly promulgated by the Court given its sole prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay)
mirrors the foregoing observations:

JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?

ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under
the rubric of what is called provisional remedies, our resident expert because Justice Peralta is
not here so Justice Bersamin for a while. So provisional remedy you have injunction, x x x.

xxxx

JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the
Constitution, if you have a copy of the Constitution, can you please read that provision? Section
5, Article VIII the Judiciary subparagraph 5, would you kindly read that provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts..."

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

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.

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

ACTING SOLICITOR GENERAL HILBAY:

That is true.

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

ACTING SOLICITOR GENERAL HILBAY:

Correct.

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

ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that
was created by Congress. In the absence of jurisdiction... (interrupted)

JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special
agrarian court it has all procedures with it but it does not attach particularly to that particular
court, is that not correct?

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

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

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx[228] (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010,[229] the Court instructed that "[i]t is
through the Constitution that the fundamental powers of government are established, limited
and defined, and by which these powers are distributed among the several departments. The
Constitution is the basic and paramount law to which all other laws must conform and to which
all persons, including the highest officials of the land, must defer." It would then follow that laws
that do not conform to the Constitution shall be stricken down for being unconstitutional.[230]

However, despite the ostensible breach of the separation of powers principle, the Court is not
oblivious to the policy considerations behind the first paragraph of Section 14, RA 6770, as well
as other statutory provisions of similar import. Thus, pending deliberation on whether or not to
adopt the same, the Court, under its sole prerogative and authority over all matters of
procedure, deems it proper to declare as ineffective the prohibition against courts other than the
Supreme Court from issuing provisional injunctive writs to enjoin investigations conducted by
the Office of the Ombudsman, until it is adopted as part of the rules of procedure through an
administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first paragraph
of Section 14, RA 6770) without the Court's consent thereto, it remains that the CA had the
authority to issue the questioned injunctive writs enjoining the implementation of the preventive
suspension order against Binay, Jr. At the risk of belaboring the point, these issuances were
merely ancillary to the exercise of the CA's certiorari jurisdiction conferred to it under Section 9
(1), Chapter I of BP 129, as amended, and which it had already acquired over the main CA-G.R.
SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction
in issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order
is a persisting objection to the validity of said injunctive writs. For its proper analysis, the Court
first provides the context of the assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive suspension order.

By nature, a preventive suspension order is not a penalty but only a preventive measure.
In Quimbo v. Acting Ombudsman Gervacio,[231] the Court explained the distinction, stating
that its purpose is to prevent the official to be suspended from using his position and the powers
and prerogatives of his office to influence potential witnesses or tamper with records which may
be vital in the prosecution of the case against him:

Jurisprudential law establishes a clear-cut distinction between suspension as preventive

measure and suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative

investigation. The purpose of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence potential witnesses or tamper
with records which may be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is found guilty of acts
warranting his suspension or removal, then he is suspended, removed or dismissed. This is the
penalty.

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule
XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive
Order No. 292) and other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)
Not being a penalty, the period within which one is under preventive suspension is not
considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV
provides:
Section 25. The period within which a public officer or employee charged is placed under
preventive suspension shall not be considered part of the actual penalty of suspension imposed
upon the employee found guilty.[232](Emphases supplied)
The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA
6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend
any officer or employee under his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the
charges would warrant removal from the service; or (c) the respondent's continued stay in office
may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition
of the respondent, in which case the period of such delay shall not be counted in computing the
period of suspension herein provided. (Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance
of an order of preventive suspension pending an investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty;

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against him.[233]

B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the
Ombudsman's non-compliance with the requisites provided in Section 24, RA 6770 was not the
basis for the issuance of the assailed injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was
based on the case of Governor Garcia, Jr. v. CA[234] (Governor Garcia, Jr.), wherein the Court
emphasized that "if it were established in the CA that the acts subject of the administrative
complaint were indeed committed during petitioner [Garcia's] prior term, then, following settled
jurisprudence, he can no longer be administratively charged."[235] Thus, the Court, contemplating
the application of the condonation doctrine, among others, cautioned, in the said case, that "it
would have been more prudent for [the appellate court] to have, at the very least, on account of
the extreme urgency of the matter and the seriousness of the issues raised in
the certiorari petition, issued a TRO x x x"[236] during the pendency of the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was
based on the condonation doctrine, citing the case of Aguinaldo v. Santos[237] The CA held that
Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the nullification of the
preventive suspension order, finding that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati
condoned any administrative liability arising from anomalous activities relative to the Makati
Parking Building project from 2007 to 2013.[238] Moreover, the CA observed that although there
were acts which were apparently committed by Binay, Jr. beyond his first term , i.e., the alleged
payments on July 3, 4, and 24, 2013,[239] corresponding to the services of Hillmarc's and MANA
- still, Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima v.
Guingona, Jr.,[240] and Mayor Garcia v. Mojica,[241] wherein the condonation dobtrine was applied
by the Court although the payments were made after the official's election, reasoning that the
payments were merely effected pursuant to contracts executed before said re-election.[242]

The Ombudsman contends that it was inappropriate for the CA to have considered the
condonation doctrine since it was a matter of defense which should have been raised and
passed upon by her office during the administrative disciplinary proceedings.[243] However, the
Court agrees with the CA that it was not precluded from considering the same given that it was
material to the propriety of according provisional injunctive relief in conformity with the ruling
in Governor Garcia, Jr., which was the subsisting jurisprudence at that time. Thus, since
condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,[244] the CA
did not err in passing upon the same. Note that although Binay, Jr. secondarily argued that the
evidence of guilt against him was not strong in his petition in CA-G.R. SP No. 139453,[245] it
appears that the CA found that the application of the condonation doctrine was already sufficient
to enjoin the implementation of the preventive suspension order. Again, there is nothing
aberrant with this since, as remarked in the same case of Governor Garcia, Jr., if it was
established that the acts subject of the administrative complaint were indeed committed during
Binay, Jr.'s prior term, then, following the condonation doctrine, he can no longer be
administratively charged. In other words, with condonation having been invoked by Binay, Jr. as
an exculpatory affirmative defense at the onset, the CA deemed it unnecessary to determine if
the evidence of guilt against him was strong, at least for the purpose of issuing the subject
injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs herein laid down, the
Court now proceeds to determine if the CA gravely abused its discretion in applying the
condonation doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or implied
forgiveness of an offense, [especially] by treating the offender as if there had been no
offense."[246]

The condonation doctrine - which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon - is not based on statutory law. It is a jurisprudential
creation that originated from the 1959 case of Pascual v. Hon. Provincial Board of Nueva
Ecija,[247] (Pascual), which was therefore decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija,
sometime in November 1951, and was later re-elected to the same position in 1955. During his
second term, or on October 6, 1956, the Acting Provincial Governor filed administrative
charges before the Provincial Board of Nueva Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a criminal complaint in Criminal Case No. 3556 on
December 18 and 20, 1954. In defense, Arturo Pascual argued that he cannot be made liable
for the acts charged against him since they were committed during his previous term of office,
and therefore, invalid grounds for disciplining him during his second term. The Provincial Board,
as well as the Court of First Instance of Nueva Ecija, later decided against Arturo Pascual, and
when the case reached this Court on appeal, it recognized that the controversy posed a novel
issue - that is, whether or not an elective official may be disciplined for a wrongful act committed
by him during his immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and "found that cases on the matter are conflicting due in part, probably, to
differences in statutes and constitutional provisions, and also, in part, to a divergence of views
with respect to the question of whether the subsequent election or appointment condones the
prior misconduct."[248] Without going into the variables of these conflicting views and cases, it
proceeded to state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove one
from office because of misconduct during a prior term, to which we fully
subscribe.[249] (Emphasis and underscoring supplied)

The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation,
which, in the words of Pascual, theorizes that an official's re-election denies the right to remove
him from office due to a misconduct during a prior term. In fact, as pointed out during the oral
arguments of this case, at least seventeen (17) states in the US have abandoned the
condonation doctrine.[250] The Ombudsman aptly cites several rulings of various US State
courts, as well as literature published on the matter, to demonstrate the fact that the doctrine is
not uniformly applied across all state jurisdictions. Indeed, the treatment is nuanced:

(1) For one, it has been widely recognized that the propriety of removing a public officer from his
current term or office for misconduct which he allegedly committed in a prior term of office is
governed by the language of the statute or constitutional provision applicable to the facts of a
particular case (see In Re Removal of Member of Council Coppola).[251] As an example, a Texas
statute, on the one hand, expressly allows removal only for an act committed during a present
term: "no officer shall be prosecuted or removed from office for any act he may have committed
prior to his election to office" (see State ex rel. Rowlings v. Loomis).[252] On the other hand, the
Supreme Court of Oklahoma allows removal from office for "acts of commission, omission, or
neglect committed, done or omitted during a previous or preceding term of office" (see State v.
Bailey)[253] Meanwhile, in some states where the removal statute is silent or unclear, the case's
resolution was contingent upon the interpretation of the phrase "in office." On one end, the
Supreme Court of Ohio strictly construed a removal statute containing the phrase "misfeasance
of malfeasance in office" and thereby declared that, in the absence of clear legislative language
making, the word "office" must be limited to the single term during which the offense charged
against the public officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga
County)[254] Similarly, the Common Pleas Court of Allegheny County, Pennsylvania decided that
the phrase "in office" in its state constitution was a time limitation with regard to the grounds of
removal, so that an officer could not be removed for misbehaviour which occurred; prior to the
taking of the office (see Commonwealth v. Rudman)[255] The opposite was construed in the
Supreme Court of Louisiana which took the view that an officer's inability to hold an office
resulted from the commission of certain offenses, and at once rendered him unfit to continue in
office, adding the fact that the officer had been re-elected did not condone or purge the offense
(see State ex rel. Billon v. Bourgeois).[256] Also, in the Supreme Court of New York, Apellate
Division, Fourth Department, the court construed the words "in office" to refer not to a particular
term of office but to an entire tenure; it stated that the whole purpose of the legislature in
enacting the statute in question could easily be lost sight of, and the intent of the law-making
body be thwarted, if an unworthy official could not be removed during one term for misconduct
for a previous one (Newman v. Strobel).[257]

(2) For another, condonation depended on whether or not the public officer was a successor in
the same office for which he has been administratively charged. The "own-successor theory,"
which is recognized in numerous States as an exception to condonation doctrine, is premised
on the idea that each term of a re-elected incumbent is not taken as separate and distinct, but
rather, regarded as one continuous term of office. Thus, infractions committed in a previous
term are grounds for removal because a re-elected incumbent has no prior term to speak
of[258] (see Attorney-General v. Tufts;[259] State v. Welsh;[260] Hawkins v. Common Council of
Grand Rapids;[261] Territory v. Sanches;[262] and Tibbs v. City of Atlanta).[263]

(3) Furthermore, some State courts took into consideration the continuing nature of an offense
in cases where the condonation doctrine was invoked. In State ex rel. Douglas v.
Megaarden,[264] the public officer charged with malversation of public funds was denied the
defense of condonation by the Supreme Court of Minnesota, observing that "the large sums of
money illegally collected during the previous years are still retained by him." In State ex rel.
Beck v. Harvey[265] the Supreme Court of Kansas ruled that "there is no necessity" of applying
the condonation doctrine since "the misconduct continued in the present term of office[;] [thus]
there was a duty upon defendant to restore this money on demand of the county
commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,[266] the Supreme Court of
Kansas held that "insofar as nondelivery and excessive prices are concerned, x x x there
remains a continuing duty on the part of the defendant to make restitution to the country x x x,
this duty extends into the present term, and neglect to discharge it constitutes misconduct."

Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there
is a "weight of authority" in the US on the condonation doctrine. In fact, without any cogent
exegesis to show that Pascual had accounted for the numerous factors relevant to the debate
on condonation, an outright adoption of the doctrine in this jurisdiction would not have been
proper.

At any rate, these US cases are only of persuasive value in the process of this Court's decision-
making. "[They] are not relied upon as precedents, but as guides of
interpretation."[267] Therefore, the ultimate analysis is on whether or not the condonation
doctrine, as espoused in Pascual, and carried over in numerous cases after, can be held up
against prevailing legal norms. Note that the doctrine of stare decisis does not preclude this
Court from revisiting existing doctrine. As adjudged in the case of Belgica, the stare decisis rule
should not operate when there are powerful countervailing considerations against its
application.[268] In other words, stare decisis becomes an intractable rule only when
circumstances exist to preclude reversal of standing precedent.[269] As the Ombudsman correctly
points out, jurisprudence, after all, is not a rigid, atemporal abstraction; it is an organic creature
that develops and devolves along with the society within which it thrives.[270] In the words of a
recent US Supreme Court Decision, "[w]hat we can decide, we can undecide."[271]

In this case, the Court agrees with the Ombudsman that since the time Pascual was decided,
the legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the
1935 Constitution, which dated provisions do not reflect the experience of the Filipino People
under the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of
course, the sheer impact of the condonation doctrine on public accountability, calls
for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer
was elected for each term is separate and distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish cause
for removaland this is especially true where the constitution provides that the penalty in
proceedings for removal shall not extend beyond the removal from office, and disqualification
from holding office for the term for which the officer was elected or appointed. (67 C.J.S. p. 248,
citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex
rel. Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher County vs.
Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43
S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.[272]

Second, an elective official's re-election serves as a condonation of previous misconduct,

thereby cutting the right to remove him therefor; and

[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to
the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs.
Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.[273] (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and
character of candidates, of their right to elect officers:

As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA
(NS) 553 —
The Court should never remove a public officer for acts done prior to his present term of office.
To do otherwise would be to deprive the people of their right to elect their officers. When the
people have elected a man to office, it must be assumed that they did this with knowledge of his
life and character, and that they disregarded or forgave his faults or misconduct, if he had been
guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule
the will of the people.[274] (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova[275] (May 17, 1966) - wherein the Court first applied the condonation
doctrine, thereby quoting the above-stated passages from Pascual in verbatim.

(2) Insco v. Sanchez, et al.[276] (December 18, 1967) - wherein the Court clarified that the
condonation doctrine does not apply to a criminal case. It was explained that a criminal case is
different from an administrative case in that the former involves the People of the Philippines as
a community, and is a public wrong to the State at large; whereas, in the latter, only the
populace of the constituency he serves is affected. In addition, the Court noted that it is only the
President who may pardon a criminal offense.

(3) Aguinaldo v. Santos[277] (Aguinaldo; August 21, 1992) - a case decided under the 1987
Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his re-election merely supervened the pendency of, the
proceedings.

(4) Salalima v. Guinsona, Jr.[278] (Salalima; May 22, 1996) -wherein the Court reinforced the
condonation doctrine by stating that the same is justified by "sound public policy." According to
the Court, condonation prevented the elective official from being "hounded" by administrative
cases filed by his "political enemies" during a new term, for which he has to defend himself "to
the detriment of public service." Also, the Court mentioned that the administrative liability
condoned by re-election covered the execution of the contract and the incidents related
therewith.[279]

(5) Mayor Garcia v. Mojica[280] (Mayor Garcia; September 10, 1999) - wherein the benefit of the
doctrine was extended to then Cebu City Mayor Alvin B. Garcia who was administratively
charged for his involvement in an anomalous contract for the supply of asphalt for Cebu City,
executed only four (4) days before the upcoming elections. The Court ruled that notwithstanding
the timing of the contract's execution, the electorate is presumed to have known the petitioner's
background and character, including his past misconduct; hence, his subsequent re-election
was deemed a condonation of his prior transgressions. More importantly, the Court held that the
determinative time element in applying the condonation doctrine should be the time when the
contract was perfected; this meant that as long as the contract was entered into during a prior
term, acts which were done to implement the same, even if done during a succeeding term, do
not negate the application of the condonation doctrine in favor of the elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman[281] (Salumbides, Jr.; April 23, 2010) - wherein
the Court explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The
condonation rule was applied even if the administrative complaint was not filed before the
reelection of the public official, and even if the alleged misconduct occurred four days before the
elections, respectively. Salalima did not distinguish as to the date of filing of the administrative
complaint, as long as the alleged misconduct was committed during the prior term, the precise
timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave
rise to the public official's culpability was committed prior to the date of reelection. [282](Emphasis
supplied)

The Court, citing Civil Service Commission v. Sojor,[283] also clarified that the condonation
doctrine would not apply to appointive officials since, as to them, there is no sovereign will to
disenfranchise.

(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked
that it would have been prudent for the appellate court therein to have issued a temporary
restraining order against the implementation of a preventive suspension order issued by the
Ombudsman in view of the condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia,
and Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015
Resolutions directing the issuance of the assailed injunctive writs - would show that the basis for
condonation under the prevailing constitutional and statutory framework was never accounted
for. What remains apparent from the text of these cases is that the basis for condonation, as
jurisprudential doctrine, was - and still remains - the above-cited postulates of Pascual, which
was lifted from rulings of US courts where condonation was amply supported by their own state
laws. With respect to its applicability to administrative cases, the core premise of condonation -
that is, an elective official's re-election cuts qff the right to remove him for an administrative
offense committed during a prior term - was adopted hook, line, and sinker in our jurisprudence
largely because the legality of that doctrine was never tested against existing legal norms. As in
the US, the propriety of condonation is - as it should be -dependent on the legal foundation of
the adjudicating jurisdiction. Hence, the Court undertakes an examination of our current laws in
order to determine if there is legal basis for the continued application of the doctrine of
condonation.

The foundation of our entire legal system is the Constitution. It is the supreme law of the
land;[284] thus, the unbending rule is that every statute should be read in light of the
Constitution.[285] Likewise, the Constitution is a framework of a workable government; hence, its
interpretation must take into account the complexities, realities, and politics attendant to the
operation of the political branches of government.[286]

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided
within the context of the 1935 Constitution which was silent with respect to public accountability,
or of the nature of public office being a public trust. The provision in the 1935 Constitution that
comes closest in dealing with public office is Section 2, Article II which states that "[t]he defense
of the State is a prime duty of government, and in the fulfillment of this duty all citizens may be
required by law to render personal military or civil service."[287] Perhaps owing to the 1935
Constitution's silence on public accountability, and considering the dearth of jurisprudential
rulings on the matter, as well as the variance in the policy considerations, there was no glaring
objection confronting the Pascual Court in adopting the condonation doctrine that originated
from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent
a significant change. The new charter introduced an entire article on accountability of public
officers, found in Article XIII. Section 1 thereof positively recognized, acknowledged, and
declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and employees shall
serve with the highest degree of responsibility, integrity, loyalty and efficiency, and shall remain
accountable to the people."

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted
the 1987 Constitution, which sets forth in the Declaration of Principles and State Policies in
Article II that "[t]he State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."[288] Learning how unbridled power
could corrupt public servants under the regime of a dictator, the Framers put primacy on the
integrity of the public service by declaring it as a constitutional principle and a State policy. More
significantly, the 1987 Constitution strengthened and solidified what has been first proclaimed in
the 1973 Constitution by commanding public officers to be accountable to the people at all
times:

Section 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency
and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of the
Constitution which embodies the parameters of the people's trust. The notion of a public trust
connotes accountability x x x.[289] (Emphasis supplied)

The same mandate is found in the Revised Administrative Code under the section of the Civil
Service Commission,[290] and also, in the Code of Conduct and Ethical Standards for Public
Officials and Employees.[291]

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an
elective local official from office are stated in Section 60 of Republic Act No. 7160,[292] otherwise
known as the "Local Government Code of 1991" (LGC), which was approved on October 10
1991, and took effect on January 1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined,
suspended, or removed from office on any of the r following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least
prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan,
and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order
of the proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from
office as a result of an administrative case shall be disqualified from running for any elective
local position:

Section 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:

xxxx

(b) Those removed from office as a result of an administrative case;

x x x x (Emphasis supplied)

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

b. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement
benefits, perpetual disqualification from holding public office, and bar from taking the civil
service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he
meets the qualifications required for the office. Note, however, that the provision only pertains to
the duration of the penalty and its effect on the official's candidacy. Nothing therein states that
the administrative liability therefor is extinguished by the fact of re-election:

Section 66. Form and Notice of Decision. - x x x.

xxxx

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period
of six (6) months for every administrative offense, nor shall said penalty be a bar to the
candidacy of the respondent so suspended as long as he meets the qualifications required for
the office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this
Court to the conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term
of office, or even another elective post. Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the
notion that an official elected for a different term is fully absolved of any administrative liability
arising from an offense done during a prior term. In this jurisdiction, liability arising from
administrative offenses may be condoned bv the President in light of Section 19, Article VII of
the 1987 Constitution which was interpreted in Llamas v. Orbos[293] to apply to administrative
offenses:

The Constitution does not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment cases. By the same token, if
executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of
the Constitution. Following petitioner's proposed interpretation, cases of impeachment are
automatically excluded inasmuch as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason why the President
cannot grant executive clemency in administrative cases. It is Our considered view that if the
President can grant reprieves, commutations and pardons, and remit fines and forfeitures in
criminal cases, with much more reason can she grant executive clemency in administrative
cases, which are clearly less serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to hold him
administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC
precludes condonation since in the first place, an elective local official who is meted with the
penalty of removal could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes a penalty of perpetual disqualification from holding public office as an accessory to the
penalty of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US State jurisdictions
wherein the doctrine of condonation of administrative liability was supported by either a
constitutional or statutory provision stating, in effect, that an officer cannot be removed by a
misconduct committed during a previous term,[294] or that the disqualification to hold the office
does not extend beyond the term in which the official's delinquency occurred.[295] In one
case,[296] the absence of a provision against the re-election of an officer removed - unlike
Section 40 (b) of the LGC-was the justification behind condonation. In another case,[297] it was
deemed that condonation through re-election was a policy under their constitution - which
adoption in this jurisdiction runs counter to our present Constitution's requirements on public
accountability. There was even one case where the doctrine of condonation was not adjudicated
upon but only invoked by a party as a ground;[298] while in another case, which was not reported
in full in the official series, the crux of the disposition was that the evidence of a prior irregularity
in no way pertained to the charge at issue and therefore, was deemed to be
incompetent.[299] Hence, owing to either their variance or inapplicability, none of these cases can
be used as basis for the continued adoption of the condonation doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of
suspension beyond the unexpired portion of the elective local official's prior term, and likewise
allows said official to still run for re-election This treatment is similar to People ex rel Bagshaw v.
Thompson[300] and Montgomery v. Novell[301] both cited in Pascual,wherein it was ruled that an
officer cannot be suspended for a misconduct committed during a prior term. However, as
previously stated, nothing in Section 66 (b) states that the elective local official's administrative
liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually
supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts
would be depriving the electorate of their right to elect their officers if condonation were not to
be sanctioned. In political law, election pertains to the process by which a particular
constituency chooses an individual to hold a public office. In this jurisdiction, there is, again, no
legal basis to conclude that election automatically implies condonation. Neither is there any
legal basis to say that every democratic and republican state has an inherent regime of
condonation. If condonation of an elective official's administrative liability would perhaps, be
allowed in this jurisdiction, then the same should have been provided by law under our
governing legal mechanisms. May it be at the time of Pascual or at present, by no means has it
been shown that such a law, whether in a constitutional or statutory provision, exists. Therefore,
inferring from this manifest absence, it cannot be said that the electorate's will has been
abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are
assumed to have done so with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule.[302]Besides, it is contrary to human
experience that the electorate would have full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that most corrupt acts by public officers are
shrouded in secrecy, and concealed from the public. Misconduct committed by an elective
official is easily covered up, and is almost always unknown to the electorate when they cast
their votes.[303] At a conceptual level, condonation presupposes that the condoner has actual
knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton[304] decided by the New Jersey
Supreme Court:
Many of the cases holding that re-election of a public official prevents his removal for acts done
in a preceding term of office are reasoned out on the theory of condonation. We cannot
subscribe to that theory because condonation, implying as it does forgiveness, connotes
knowledge and in the absence of knowledge there can be no condonation. One cannot forgive
something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in
this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of
US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by - the
current legal regime. In consequence, it is high time for this Court to abandon the condonation
doctrine that originated from Pascual, and affirmed in the cases following the same, such
as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by
the CA.

It should, however, be clarified that this Court's abandonment of the condonation doctrine
should be prospective in application for the reason that judicial decisions applying or interpreting
the laws or the Constitution, until reversed, shall form part of the legal system of the
Philippines.[305] Unto this Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. As explained in De Castro v.
Judicial Bar Council.[306]

Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.[307]

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as "good law" prior to its abandonment. Consequently, the people's reliance
thereupon should be respected. The landmark case on this matter is People v.
Jabinal,[308] wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the old
doctrine and acted on the faith thereof.

Later, in Spouses Benzonan v. CA,[309] it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions
form part of the law of the land, they are also subject to Article 4 of the Civil Code which
provides that "laws shall have no retroactive effect unless the contrary is provided." This is
expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not
backward. The rationale against retroactivity is easy to perceive. The retroactive application of a
law usually divests rights that have already become vested or impairs the obligations of contract
and hence, is unconstitutional.[310]

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and
rectify its ensuing course. Thus, while it is truly perplexing to think that a doctrine which is
barren of legal anchorage was able to endure in our jurisprudence for a considerable length of
time, this Court, under a new membership, takes up the cudgels and now abandons the
condonation doctrine.
E. Consequence of ruling.

As for this section of the Decision, the issue to be resolved is whether or not the CA committed
grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed
injunctive writs.

It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction.The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.[311] It has also been held that "grave abuse
of discretion arises when a lower court or tribunal patently violates the Constitution, the law or
existing jurisprudence."[312]

As earlier established, records disclose that the CA's resolutions directing the issuance of the
assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. To
recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was based on
the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the
subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia,and again, Governor
Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at
that time, unwittingly remained "good law," it cannot be concluded that the CA committed a
grave abuse of discretion based on its legal attribution above. Accordingly, the WPI against the
Ombudsman's preventive suspension order was correctly issued.

With this, the ensuing course of action should have been for the CA to resolve the main petition
for certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the
Ombudsman, on October 9, 2015, had already found Binay, Jr. administratively liable and
imposed upon him the penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative charges against him, the
said CA petition appears to have been mooted.[313] As initially intimated, the preventive
suspension order is only an ancillary issuance that, at its core, serves the purpose of assisting
the Office of the Ombudsman in its investigation. It therefore has no more purpose - and
perforce, dissolves - upon the termination of the office's process of investigation in the instant
administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding
the validity of the preventive suspension order subject of this case does not preclude any of its
foregoing determinations, particularly, its abandonment of the condonation doctrine. As
explained in Belgica, '"the moot and academic principle' is not a magical formula that can
automatically dissuade the Court in resolving a case. The Court will decide cases, otherwise
moot, if: first, there is a grave violation of the Constitution; second, the exceptional character of
the situation and the paramount public interest is involved; third, when the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review."[314] All of these scenarios obtain
in this case:

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it
were not to abandon the condonation doctrine now that its infirmities have become apparent. As
extensively discussed, the continued application of the condonation doctrine is simply
impermissible under the auspices of the present Constitution which explicitly mandates that
public office is a public trust and that public officials shall be accountable to the people at all
times.

Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a
defense of elective officials to escape administrative liability. It is the first time that the legal
intricacies of this doctrine have been brought to light; thus, this is a situation of exceptional
character which this Court must ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the multitude of elective local
officials throughout the years, it is indubitable that paramount public interest is involved.

Third, the issue on the validity of the condonation doctrine clearly requires the formulation of
controlling principles to guide the bench, the bar, and the public. The issue does not only involve
an in-depth exegesis of administrative law principles, but also puts to the forefront of legal
discourse the potency of the accountability provisions of the 1987 Constitution. The Court owes
it to the bench, the bar, and the public to explain how this controversial doctrine came about,
and now, its reasons for abandoning the same in view of its relevance on the parameters of
public office.

And fourth, the defense of condonation has been consistently invoked by elective local officials
against the administrative charges filed against them. To provide a sample size, the
Ombudsman has informed the Court that "for the period of July 2013 to December 2014 alone,
85 cases from the Luzon Office and 24 cases from the Central Office were dismissed on the
ground of condonation. Thus, in just one and a half years, over a hundred cases of alleged
misconduct - involving infractions such as dishonesty, oppression, gross neglect of duty and
grave misconduct - were placed beyond the reach of the Ombudsman's investigatory and
prosecutorial powers."[315]Evidently, this fortifies the finding that the case is capable of repetition
and must therefore, not evade review.

In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to
uphold and defend the Constitution, revoke it notwithstanding supervening events that render
the subject of discussion moot.

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the
final issue on whether or not the CA's Resolution[316] dated March 20, 2015 directing the
Ombudsman to comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is
improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot
be the subject of a charge for indirect contempt[317] because this action is criminal in nature and
the penalty therefor would result in her effective removal from office.[318] However, a reading of
the aforesaid March 20, 2015 Resolution does not show that she has already been subjected to
contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding the directive
for the Ombudsman to comment, the CA has not necessarily given due course to Binay, Jr.'s
contempt petition:
Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita
Carpio Morales, in her capacity as the Ombudsman, and the Department of Interior and Local
Government] are hereby DIRECTED to file Comment on the Petition/Amended and
Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an inextendible period of
three (3) days from receipt hereof. (Emphasis and underscoring supplied)

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she
may properly raise her objections to the contempt proceedings by virtue of her being an
impeachable officer, the CA, in the exercise of its sound judicial discretion, may still opt not to
give due course to Binay, Jr.'s contempt petition and accordingly, dismiss the same. Sjmply put,
absent any indication that the contempt petition has been given due course by the CA, it would
then be premature for this Court to rule on the issue. The submission of the Ombudsman on this
score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the
Court resolves as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is

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

(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in

effect;

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the
Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding Binay,
Jr. administratively liable in the six (6) administrative complamts, docketed as OMB-C-A-15-
0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and
OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA
is DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with
utmost dispatch.

SO ORDERED.

Sereno, C.J. Carpio, Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez,
Reyes, and Leonen, JJ., concur.
Velasco, Jr., Peralta, and Jardeleza, JJ., no part.
Brion, J., no part/ on leave.
Mendoza, J., on leave.
Bersamin, J., please see my concurring & dissenting opinion.
 NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on November 10, 2015 a Decision/Resolution, copy attached herewith,
was rendered by the Supreme Court in the above-entitled case, the original of which was
received by this Office on November 13, 2015 at 10:03 a.m.

Very truly yours,

(SGD)
FELIPA G. BORLONGAN-ANAMA
Clerk of Court

Duncano v Sandiganbayan

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 191894 July 15, 2015

DANILO A. DUNCANO, Petitioner,

vs.
HON. SANDIGANBAYAN (2nd DIVISION), and HON. OFFICE OF THE SPECIAL
PROSECUTOR, Respondents.

DECISION

PERALTA, J.:

This petition for certiorari under Rule 65 of the Rules of Court (Rules) with prayer for issuance of
preliminary injunction and/or temporary restraining order seeks to reverse and set aside the
August 18, 2009 Resolution1 and February 8, 2010 Order2 of respondent Sandiganbayan
Second Division in Criminal Case No. SB-09-CRM-0080, which denied petitioner's Motion to
Dismiss on the ground of la9k of jurisdiction.

The facts are plain and undisputed.

Petitioner Danilo A. Duncano is, at the time material to the case, the Regional Director of the
Bureau of Internal Revenue (BIR) with Salary Grade 26 as classified under Republic Act (R.A.)
No. 6758.3 On March 24, 2009,4 the Office of the Special Prosecutor (OSP), Office of the
Ombudsman, filed a criminal case against him for violation of Section 8, in relation to Section 11
of R.A. No. 6713,5 allegedly committed as follows:
That on or about April 15, 2003, or sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, accused DANILODUNCANO y
ACIDO, a high ranking public officer, being the Regional Director of Revenue Region No. 7, of
the Bureau of Internal Revenue, Quezon City, and as such is under an obligation to accomplish
and submit declarations under oath of his assets, liabilities and net worth and financial and
business interests, did then and there, wilfully, unlawfully and criminally fail to disclose in his
Sworn Statement of Assets and Liabilities and Networth (SALN) for the year 2002, his financial
and business interests/connection in Documail Provides Corporation and Don Plus Trading of
which he and his family are the registered owners thereof, and the 1993 Nissan Patrol motor
vehicle registered in the name of his son VINCENT LOUIS P. DUNCANO which are part of his
assets, to the damage and prejudice of public interest.

CONTRARY TO LAW.6

Prior to his arraignment, petitioner filed a Motion to Dismiss With Prayer to Defer the Issuance
of Warrant of Arrest7before respondent Sandiganbayan Second Division. As the OSP alleged,
he admitted that he is a Regional Director with Salary Grade 26. Citing Inding v.
Sandiganbayan8 and Serana v. Sandiganbayan, et al.,9 he asserted that under Presidential
Decree (P.D.) No. 1606, as amended by Section 4 (A) (1) of R.A No. 8249,10 the
Sandiganbayan has no jurisdiction to try and hear the case because he is an official of the
executive branch occupying the position of a Regional Director but with a compensation that is
classified as below Salary Grade 27.

In its Opposition,11 the OSP argued that a reading of Section 4 (A) (1) (a) to (g) of the subject
law would clearly show that the qualification as to Salary Grade 27 and higher applies only to
officials of the executive branch other than the Regional Director and those specifically
enumerated. This is so since the term "Regional Director" and "higher" are separated by the
conjunction "and," which signifies that these two positions are different, apart and distinct, words
but are conjoined together "relating one to the other" to give effect to the purpose of the law.
The fact that the position of Regional Director was specifically mentioned without indication as
to its salary grade signifies the lawmakers’ intention that officials occupying such position,
regardless of salary grade, fall within the original and exclusive jurisdiction of the
Sandiganbayan. This issue, it is claimed, was already resolved in Inding. Finally, the OSP
contended that the filing of the motion to dismiss is premature considering that the
Sandiganbayan has yet to acquire jurisdiction over the person of the accused.

Still not to be outdone, petitioner invoked the applicability of Cuyco v. Sandiganbayan12 and
Organo v. Sandiganbayan13 in his rejoinder.

On August 18, 2009, the Sandiganbayan Second Division promulgated its Resolution,
disposing: WHEREFORE, in the light of the foregoing, the Court hereby DENIES the instant
Motion to Dismiss for being devoid of merit. Let a Warrant of Arrest be therefore issued against
the accused.

SO ORDERED.14

The respondent court ruled that the position of Regional Director is one of those exceptions
where the Sandiganbayan has jurisdiction even if such position is not Salary Grade 27. It was
opined that Section 4 (A) (1) of R.A No. 8249 unequivocally provides that respondent court has
jurisdiction over officials of the executive branch of the government occupying the position of
regional director and higher, otherwise classified as Salary Grade 27 and higher, of R.A. No.
6758, including those officials who are expressly enumerated in subparagraphs (a) to (g). In
support of the ruling, this Court’s pronouncements in Indingand Binay v. Sandiganbayan15 were
cited.

Petitioner filed a Motion for Reconsideration, but it was denied;16 Hence, this petition.

Instead of issuing a temporary restraining order or writ of preliminary injunction, the Court
required respondents to file a comment on the petition without necessarily giving due course
thereto.17 Upon compliance of the OSP, a Rejoinder (supposedly a Reply) was filed by
petitioner.

At the heart of the controversy is the determination of whether, according to P.D. No. 1606, as
amended by Section 4 (A) (1) of R.A No. 8249, only Regional Directors with Salary Grade of 27
and higher, as classified under R.A. No. 6758, fall within the exclusive jurisdiction of the
Sandiganbayan. Arguing that he is not included among the public officials specifically
enumerated in Section 4 (A) (1) (a) to (g) of the law and heavily relying as well on Cuyco,
petitioner insists that respondent court lacks jurisdiction over him, who is merely a Regional
Director with Salary Grade 26. On the contrary, the OSP maintains that a Regional Director,
irrespective of salary grade, falls within the exclusive original jurisdiction of the Sandiganbayan.
We find merit in the petition.

The creation of the Sandiganbayan was mandated by Section 5, Article XIII of the 1973
Constitution.18 By virtue of the powers vested in him by the Constitution and pursuant to
Proclamation No. 1081, dated September 21, 1972, former President Ferdinand E. Marcos
issued P.D. No. 1486.19 The decree was later amended by P.D. No. 1606,20Section 20 of Batas
Pambansa Blg. 129,21 P.D. No. 1860,22 and P.D. No. 1861.23

With the advent of the 1987 Constitution, the special court was retained as provided for in
Section 4, Article XI thereof.24 Aside from Executive Order Nos. 1425 and 14-a,26 and R.A.
7080,27 which expanded the jurisdiction of the Sandiganbayan, P.D. No. 1606 was further
modified by R.A. No. 7975,28 R.A. No. 8249,29 and just this year, R.A. No. 10660.30

For the purpose of this case, the relevant provision is Section 4 of R.A. No. 8249, which states:
SEC. 4. Section 4 of the same decree is hereby further amended to read as follows:

"SEC. 4. Jurisdiction.– The Sandiganbayan shall exercise exclusive original jurisdiction in all
cases involving:

"A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim capacity, at the time of
the commission of the offense:

"(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade ‘27’ and higher, of the Compensation and Position Classification
Act of 1989 (Republic Act No. 6758), specifically including:
 "(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan,
and provincial treasurers, assessors, engineers, and other provincial department heads;

"(b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department heads;

"(c) Officials of the diplomatic service occupying the position of consul and higher;

"(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

"(e) Officers of the Philippine National Police while occupying the position of provincial
director and those holding the rank of senior superintendent or higher;

"(f) City and provincial prosecutors and their assistants, and officials and prosecutors in
the Office of the Ombudsman and special prosecutor;

"(g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions or foundations.

"(2) Members of Congress and officials thereof classified as Grade ‘27’ and up under the
Compensation and Position Classification Act of 1989;

"(3) Members of the judiciary without prejudice to the provisions of the Constitution;

"(4) Chairmen and members of Constitutional Commission, without prejudice to the

provisions of the Constitution; and

"(5) All other national and local officials classified as Grade ‘27’ and higher under the
Compensation and Position Classification Act of 1989.

"B. Other offenses or felonies whether simple or complexed with other crimes committed by the
public officials and employees mentioned in subsection a of this section in relation to their office.

"C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2,
14 and 14-A, issued in 1986.

x x x"

Based on the afore-quoted, those that fall within the original jurisdiction of the Sandiganbayan
are: (1) officials of the executive branch with Salary Grade 27 or higher, and (2) officials
specifically enumerated in Section 4 (A) (1) (a) to (g), regardless of their salary grades. 31 While
the first part of Section 4 (A) covers only officials of the executive branch with Salary Grade 27
and higher, its second part specifically includes other executive officials whose positions may
not be of Salary Grade 27 and higher but who are by express provision of law placed under the
jurisdiction of the Sandiganbayan.32

That the phrase "otherwise classified as Grade ‘27’ and higher" qualifies "regional director and
higher" is apparent from the Sponsorship Speech of Senator Raul S. Roco on Senate Bill Nos.
1353and 844, which eventually became R.A. Nos. 7975 and 8249, respectively:
As proposed by the Committee, the Sandiganbayan shall exercise original jurisdiction over the
cases assigned to it only in instances where one or more of the principal accused are officials
occupying the positions of regional director and higher or are otherwise classified as Grade 27
and higher by the Compensation and Position Classification Act of 1989, whether in a
permanent, acting or interim capacity at the time of the commission of the offense. The
jurisdiction, therefore, refers to a certain grade upwards, which shall remain with the
Sandiganbayan.33 (Emphasis supplied)

To speed up trial in the Sandiganbayan, Republic Act No. 7975 was enacted for that Court to
concentrate on the "larger fish" and leave the "small fry" to the lower courts. This law became
effective on May 6, 1995 and it provided a two-pronged solution to the clogging of the dockets of
that court, to wit:

It divested the Sandiganbayan of jurisdiction over public officials whose salary grades were at
Grade "26" or lower, devolving thereby these cases to the lower courts, and retaining the
jurisdiction of the Sandiganbayan only over public officials whose salary grades were at Grade
"27" or higher and over other specific public officials holding important positions in government
regardless of salary grade; x x x34 (Emphasis supplied)

The legislative intent is to allow the Sandiganbayan to devote its time and expertise to big-time
cases involving the so-called "big fishes" in the government rather than those accused who are
of limited means who stand trial for "petty crimes," the so-called "small fry," which, in turn, helps
the court decongest its dockets.35

Yet, those that are classified as Salary Grade 26 and below may still fall within the jurisdiction of
the Sandiganbayan, provided that they hold the positions enumerated by the law.36 In this
category, it is the position held, not the salary grade, which determines the jurisdiction of the
Sandiganbayan.37 The specific inclusion constitutes an exception to the general qualification
relating to "officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade ‘27’ and higher, of the Compensation and Position
Classification Act of 1989."38 As ruled in Inding:

Following this disquisition, the paragraph of Section 4 which provides that if the accused is
occupying a position lower than SG 27, the proper trial court has jurisdiction, can only be
properly interpreted as applying to those cases where the principal accused is occupying a
position lower than SG 27 and not among those specifically included in the enumeration in
Section 4 a. (1) (a) to (g). Stated otherwise, except for those officials specifically included in
Section 4 a. (1) (a) to (g), regardless of their salary grades, over whom the Sandiganbayan has
jurisdiction, all other public officials below SG 27 shall be under the jurisdiction of the proper trial
courts "where none of the principal accused are occupying positions corresponding to SG 27 or
higher." By this construction, the entire Section 4 is given effect. The cardinal rule, after all, in
statutory construction is that the particular words, clauses and phrases should not be studied as
detached and isolated expressions, but the whole and every part of the statute must be
considered in fixing the meaning of any of its parts and in order to produce a harmonious whole.
And courts should adopt a construction that will give effect to every part of a statute, if at all
possible. Ut magis valeat quam pereat or that construction is to be sought which gives effect to
the whole of the statute – its every word.39

Thus, to cite a few, We have held that a member of the Sangguniang Panlungsod,40 a
department manager of the Philippine Health Insurance Corporation (Philhealth),41 a student
regent of the University of the Philippines,42 and a Head of the Legal Department and Chief of
the Documentation with corresponding ranks of Vice-Presidents and Assistant Vice-President of
the Armed Forces of the Philippines Retirement and Separation Benefits System (AFP-
RSBS)43 fall within the jurisdiction of the Sandiganbayan.

Petitioner is not an executive official with Salary Grade 27 or higher. Neither does he hold any
position particularly enumerated in Section 4 (A) (1) (a) to (g). As he correctly argues, his case
is, in fact, on all fours with Cuyco.1avvphi1Therein, the accused was the Regional Director of
the Land Transportation Office, Region IX, Zamboanga City, but at the time of the commission
of the crime in 1992, his position was classified as Director II with Salary Grade 26.44It was
opined: Petitioner contends that at the time of the commission of the offense in 1992, he was
occupying the position of Director II, Salary Grade 26, hence, jurisdiction over the cases falls
with the Regional Trial Court.

We sustain petitioner's contention.

The Sandiganbayan has no jurisdiction over violations of Section 3(a) and (e), Republic Act No.
3019, as amended, unless committed by public officials and employees occupying positions of
regional director and higher with Salary Grade "27" or higher, under the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758) in relation to their office.

In ruling in favor of its jurisdiction, even though petitioner admittedly occupied the position of
Director II with Salary Grade "26" under the Compensation and Position Classification Act of
1989 (Republic Act No. 6758), the Sandiganbayan incurred in serious error of jurisdiction, and
acted with grave abuse of discretion amounting to lack of jurisdiction in suspending petitioner
from office, entitling petitioner to the reliefs prayed for.45

In the same way, a certification issued by the OIC – Assistant Chief, Personnel Division of the
BIR shows that, although petitioner is a Regional Director of the BIR, his position is classified as
Director II with Salary Grade 26.46

There is no merit in the OSP’s allegation that the petition was prematurely filed on the ground
that respondent court has not yet acquired jurisdiction over the person of petitioner. Records
disclose that when a warrant of arrest was issued by respondent court, petitioner voluntarily
surrendered and posted a cash bond on September 17, 2009.Also, he was arraigned on April
14, 2010,prior to the filing of the petition on April 30, 2010.

WHEREFORE, the foregoing considered, the instant petition for certiorari is GRANTED. The
August 18, 2009 Resolution and February 8, 2010 Order of the Sandiganbayan Second
Division, which denied petitioner's Motion to Dismiss on the ground of lack of jurisdiction, are
REVERSED AND SET ASIDE.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:
 PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO* MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ**

Associate Justice

ATTESTATION

I attest 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's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the, Constitution and the Division Chairperson's
Attestation, 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's Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*
Designated Acting Member in lieu of Associate Justice Francis H. Jardeleza, per
Special Order No. 2095 dated July I, 2015.

**
Designated Acting Member in lieu of Associate Justice Bienvenido L. Reyes, per
Special Order No. 2084 dated June 29, 2015.

1
Penned by Associate Justice Teresita V. Diaz-Baldos, with Associate Justices Edilberto
G. Sandoval and Samuel R. Martires concurring; rollo, pp. 28-34.

2
Id. at 35-38.

3
Otherwise known as the Compensation and Position Classification Act of 1989.

4
Rollo, p. 39.
5
Otherwise known as the Code of Conduct and Ethical Standards for Public Officials
and Employees.

6
Rollo, pp. 39-40.

7
Id. at 42-46.

8
478 Phil. 506 (2004).

9
566 Phil. 224 (2008).

10
An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending for the
Purpose Presidential Decree No. 1606, As Amended, Providing Funds Therefor, and For
Other Purposes.

11
Rollo, pp. 47-60.

12
381 Phil. 906 (2000).

13
372 Phil. 816 (1999).

14
Rollo, p. 33.

15
374 Phil. 413 (1999).

16
Rollo, pp. 35-38, 61-70.

17
Id. at 73.

18
SEC. 5.The Batasang Pambansa shall create a special court, to be known as
Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft
and corrupt practices and such other offenses committed by public officers and
employees including those in government-owned or controlled corporations, in relation to
their office as may be determined by law.

19
Entitled Creating A Special Court To Be Known As "Sandiganbayan" And For Other
Purposes,Effective on June 11, 1978.

20
Entitled Revising Presidential Decree No. 1486 Creating A Special Court To Be
Known As "Sandiganbayan" And For Other Purposes, Effective on December 10,1978.

21
The Judiciary Reorganization Act of 1980 (August 14, 1981) provided: Sec. 20.
Jurisdiction in criminal cases. – Regional Trial Courts shall exercise exclusive original
jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal
or body, except those now falling under the exclusive and concurrent jurisdiction of the
Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter.
(See Lacson v. Executive Secretary, 361 Phil. 251, 264 [1999] and Maj. Gen. Garcia v.
Sandiganbayan, 499 Phil. 589, 607 [2005])
22
Entitled Amending The Pertinent Provisions Of Presidential Decree No. 1606 And
Batas Pambansa Blg. 129 Relative To The Jurisdiction Of The Sandiganbayan And For
Other Purposes, Effective on January 14, 1983.

23
Entitled Amending The Pertinent Provisions Of Presidential Decree No. 1606 And
Batas Pambansa Blg. 129 Relative To The Jurisdiction Of The Sandiganbayan And For
Other Purposes, Effective on March 23, 1983.

24
Section 4. The present anti-graft court known as the Sandiganbayan shall continue to
function and exercise its jurisdiction as now or hereafter may be provided by law.

25
Entitled Defining The Jurisdiction Over Cases Involving The Ill-Gotten Wealth Of
Former President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, Members Of Their
Immediate Family, Close Relatives, Subordinates, Close And/Or Business Associates,
Dummies, Agents And Nominees, Effective on May 7, 1986.

26
Effective on August 18, 1986.

27
Entitled An Act Defining And Penalizing The Crime Of Plunder, Approved on July 12,
1991.

28
Entitled An Act To Strengthen The Functional And Structural Organization Of The
Sandiganbayan, Amending For That Purpose Presidential Decree No. 1606, As
Amended, Approved on March 30, 1995 and took effect on May 16, 1995 (See Lacson v.
Executive Secretary, 361 Phil. 251, 264 [1999]).

29
Entitled An Act Further Defining The Jurisdiction Of The Sandiganbayan, Amending
For The Purpose Presidential Decree No. 1606, As Amended, Providing Funds Therefor,
And For Other Purposes, Approved on February 5, 1997.

30
Entitled An Act Strengthening Further the Functional and Structural Organization of
the Sandiganbayan, Further Amending Presidential Decree No. 1606, As Amended, and
Appropriating Funds Therefor, Approved on April 16, 2015.

31
See Inding v. Sandiganbayan, supra note 8, at 520-521.

32
Geduspan v. People, 491 Phil. 375, 380 (2005), as cited in Lazarte, Jr. v.
Sandiganbayan (First Division), et al., 600 Phil. 475, 497 (2009); Serana v.
Sandiganbayan, et al., 566 Phil. 224, 249 (2008); and Alzaga v. Sandiganbayan (2nd
Division), 536 Phil. 726, 731 (2006).

33
RECORD OF THE SENATE, Vol. IV, No. 60, February 8, 1995, p. 701.

34
RECORD OF THE SENATE, Vol. I, No. 24, September 25, 1996, p. 799.

35
See RECORD OF THE SENATE, Vol. IV, No. 60, February 8, 1995, pp. 700-701.

36
People v. Sandiganbayan (Third Div.) et al., 613 Phil. 407 (2009).
37
Alzaga v. Sandiganbayan (2nd Division), supra note 32.

38
See Inding v. Sandiganbayan, supra note 8, at 520.

39
Id. at 526-527.

40
People v. Sandiganbayan (Third Div.) et al., 645 Phil. 53 (2010); People v.
Sandiganbayan (Third Div.) et al., supra note 36; and Inding v. Sandiganbayan, supra
note 8.

41
Geduspan v. People, supra note 32.

42
Serana v. Sandiganbayan, et al., supra note 32.

43
Alzaga v. Sandiganbayan (2nd Division), supra note 32, citing People v.
Sandiganbayan, 456 Phil. 136 (2003) and Ramiscal, Jr. v. Hon. Sandiganbayan, 487
Phil. 384 (2004).

44
See Geduspan v. People, supra note 32, at 379.

45
Cuyco v. Sandiganbayan, supra note 12, at 910.

46
Rollo, p. 71.
Firestone Ceramics v Court of Appeals 1127245

EN BANC

[G.R. No. 127022. June 28, 2000.]

FIRESTONE CERAMICS, INC., BOOMTOWN DEVELOPMENT CORPORATION, Spouses

CYNTHIA D. CHING and CHING TIONG KENG, Spouses CARMEN SOCO and
LORENZO ONG ENG CHONG, Spouses SOLEDAD B. YU and YU SY CHIA and LETICIA
NOCOM CHAN, Petitioners, v. COURT OF APPEALS, LORENZO J. GANA, PATROCINIO
E. MARGOLLES, ALICE E. SOTTO, VIRGINIA E. VILLONGCO, EDGARDO C.
ESPINOSA, LUCIA E. LAPERAL, NORMA C. ESPINOSA, TERESITA E. CASAL, PELTAN
DEVELOPMENT, INC., REGIONAL TRIAL COURT (formerly CFI of Rizal) and the
REGISTER OF DEEDS OF LAS PIÑAS, METRO MANILA, Respondents.

ALEJANDRO B. REY, petitioner-intervenor.

[G.R. No. 127245. June 28, 2000.]

 REPUBLIC OF THE PHILIPPINES, represented by the DIRECTOR, LAND
MANAGEMENT BUREAU, Petitioner, v. HON. COURT OF APPEALS, LORENZO J.
GANA, PATROCINIO E. MARGOLLES, ALICE E. SOTTO, VIRGINIA E. VILLONGCO,
EDGARDO C. ESPINOSA, LUCIA A. LAPERAL, NORMA C. ESPINOSA, TERESITA E.
CASAL, PELTAN DEVELOPMENT INC., THE REGIONAL TRIAL COURT (formerly CFI)
of RIZAL, and THE REGISTER OF DEEDS OF LAS PIÑAS, Respondents.

RESOLUTION

PURISIMA, J.:

This resolves petitioners’ Motions to Refer to the Court En Banc these consolidated
cases, which the Third Division decided on September 2, 1999. The motions for
reconsideration seasonably filed by the petitioners, Republic of the Philippines and
Firestone Ceramics, Inc., Et Al., are pending.

Under Supreme Court Circular No. 2-89, dated February 7, 1989, as amended by
the Resolution of November 18, 1993:chanrobles virtuallawlibrary

. . ., the following are considered en banc cases:chanrob1es virtual 1aw library

1. Cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, executive order, or presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question;

2. Criminal cases in which the appealed decision imposes the death penalty;

3. Cases raising novel questions of law;

4. Cases affecting ambassadors, other public ministers and consuls;

5. Cases involving decisions, resolutions or orders of the Civil Service Commission,

Commission on Elections, and Commission on Audit;

6. Cases where the penalty to be imposed is the dismissal of a judge, officer or

employee of the judiciary, disbarment of a lawyer, or either the suspension of any
of them for a period of more than one (1) year or a fine exceeding P10,000.00 or
both;

7. Cases where a doctrine or principle laid down by the court en banc or in division
may be modified or reversed;

8. Cases assigned to a division which in the opinion of at least three (3) members
thereof merit the attention of the court en banc and are acceptable to a majority of
the actual membership of the court en banc; and
9. All other cases as the court en banc by a majority of its actual membership may
deem of sufficient importance to merit its attention.

The cases at bar involve a vast tract of land with an area of around ninety-nine (99)
hectares presumptively belonging to the Republic of the Philippines, which land had
been adjudicated to private individuals by a court alleged to be without jurisdiction.
Since the validity of the said decision and the original certificate of title as well as
transfer certificates of title issued pursuant thereto hinges on the classification of
subject area at the time it was so adjudicated, determination of the validity of the
disposition thereof is in order.

The assailed decision does not indicate the classification of the land in question,
when the herein private respondents obtained their decree of registration
thereover.

In Limketkai Sons Milling, Inc. v. Court of Appeals, the Court conceded that it is not
infallible. Should any error of judgment be perceived, it does not blindly adhere to
such error, and the parties adversely affected thereby are not precluded from
seeking relief therefrom, by way of a motion for reconsideration. In this jurisdiction,
rectification of an error, more than anything else, is of paramount importance.

Here, there was submitted to the Court en consulta, petitioners’ Motions to Refer to
the Court En Banc these consolidated cases for the consideration of the Court. A
pleading, entitled "FOR THE CONSIDERATION OF THE COURT EN BANC, EN
CONSULTA," was presented but when the same was first brought to its attention on
March 7, 2000, the Court opined that since the Third Division had not yet acted on
subject motions to refer the cases to the Banc, it was then premature for the Court
to resolve the consulta. However, the Court succinctly cautioned that the action of
the Third Division on the matter would just be tentative.

On March 8, 2000, the Third Division voted 4-1 to deny petitioners’ motion to
transfer these cases to the Banc. Thus, on March 14, 2000, the Court deliberated
on the consulta and thereafter, voted 9-5 to accept the cases for the Banc to pass
upon in view of the finding that the cases above entitled are of sufficient
importance to merit its attention. Evidently, the action of the Court under the
premises is a legitimate and valid exercise of its RESIDUAL POWER within the
contemplation of paragraph 9 of the Resolution En Banc of November 18, 1993,
which reads: "All other cases as the court en banc by a majority of its actual
membership may deem of sufficient importance to merit its attention." (Emphasis
supplied)

Untenable is the contention of Justice Panganiban that the Chief Justice and the
eight (8) Associate Justices who voted to treat these consolidated cases as En Banc
cases, have not given any cogent or compelling reason for such action. Considering
that paragraph 9 of the Resolution of this Court dated November 18, 1993, has
been cited to support the majority opinion, it is decisively clear that these
consolidated cases have been found to be of sufficient importance to merit the
attention and disposition of the entire Court en banc and therefore, the prayer of
the Republic of the Philippines and the private petitioners for the Court en banc to
hear and resolve their pending motions for reconsideration, is meritorious. The
aforesaid finding by the Court constitutes a reason cogent and compelling enough
to warrant the majority ruling that the Court En Banc has to act upon and decide
petitioners’ motions for reconsideration.

It bears stressing that where, as in the present cases, the Court En Banc entertains
a case for its resolution and disposition, it does so without implying that the
Division of origin is incapable of rendering objective and fair justice. The action of
the Court simply means that the nature of the cases calls for en banc attention and
consideration. Neither can it be concluded that the Court has taken undue
advantage of sheer voting strength. It was merely guided by the well-studied
finding and sustainable opinion of the majority of its actual membership — that,
indeed, subject cases are of sufficient importance meriting the action and decision
of the whole Court. It is, of course, beyond cavil that all the members of this
highest Court of the land are always imbued with the noblest of intentions in
interpreting and applying the germane provisions of law, jurisprudence, rules and
Resolutions of the Court — to the end that public interest be duly safeguarded and
rule of law be observed.

Reliance by Justice Panganiban on the ruling of the Court in the Sumilao case is
misplaced. The said case is not on all fours with these cases. In the Sumilao case,
before it was brought to the Banc en consulta, the motion for reconsideration of the
decision therein rendered had been voted upon by the Second Division with a vote
of 2-2. The Court ruled that the stalemate resulting from the said voting constituted
a denial of the motion for reconsideration.chanrobles.com : virtual law library

In the two consolidated cases under consideration, however, the Motions for
Reconsideration of the petitioners, Republic of the Philippines and Firestone
Ceramics, Inc., Et Al., are pending and unresolved.

Taking into account the importance of these cases and the issues raised, let alone
the enormous value of the area in litigation, which is claimed as government
property, there is merit in the prayer of petitioners that their pending motions for
reconsideration should be resolved by the Court En Banc.

WHEREFORE, these consolidated cases are considered and treated as en banc

cases; and petitioners’ motions for reconsideration are hereby set for oral argument
on July 18, 2000, at 11:00 a.m. Let corresponding notices issue.

SO ORDERED.chanroblesvirtuallawlibrary

Davide, Jr., C.J., Bellosillo, Kapunan, Mendoza, Buena, Ynares-Santiago and De

Leon, Jr., JJ., concur.

Melo, J., joined the dissents and in lieu of the close vote, urge that this action be
not repeated and that it be reviewed again.
Vitug, J., joined the dissenting justices.

Separate Opinions

PUNO, J., dissenting:chanrob1es virtual 1aw library

In the session last March 21, 2000, information was given that a majority of the
members of the Third Division intends to hear the Motion for Reconsideration filed
by the Republic and then report its result to the Court en banc. I sincerely believe
that the result of the said oral arguments will be a vital factor to consider before the
court en banc should finally decide to assume jurisdiction over the case at bar. The
issue for resolution in the said Motion for Reconsideration concerns res judicata.
This is an issue that does not strictly involve a question of law for beyond doubt its
resolution will rest on some amorphous questions of fact. Until and unless these
questions of fact are sharpened and given shape in the intended oral arguments, I
am of the opinion and so vote that the Court en banc should defer its action to
assume jurisdiction over the case at bar.chanrob1es virtua1 1aw 1ibrary

GONZAGA-REYES, J., dissenting:chanrob1es virtual 1aw library

With due respect, I am constrained to dissent from the acceptance by the Court en
banc of the referral of the motions for reconsideration in the cases at bar. The
justification for the referral is stated thus:jgc:chanrobles.com.ph

"These cases involve a vast tract of land around ninety-nine (99) hectares
presumptively belonging to the Republic of the Philippines, which land had been
adjudicated to private individuals under a decision allegedly rendered by a court
without jurisdiction. Since the validity of the said decision and of the original
certificate of title as well as transfer certificates of title issued pursuant thereto is
contingent on the character or classification of subject area at the time it was so
adjudicated to private persons, the determination of the same is essential. The
decision sought to be reconsidered does not clearly reflect or indicate the correct
character of the land involved at the time the private respondents obtained a
degree of registration thereover. Thus, should it be established that indeed the land
in question was still within the forest zone and inalienable at the time of its
disposition to private parties, reversal of this Court’s decision is in order.

In Lemketkai Sons Milling, Inc. v. Court of Appeals, 1 this Court has acknowledged
that it is not infallible and that, if upon examination an error in judgment is
perceived, the Court is not obliged to blindly adhere to such decision and the
parties are not precluded from seeking relief by way of a motion for
reconsideration. In this jurisdiction, rectification of an error, more than anything
else, is paramount."cralaw virtua1aw library

The fact alone that the property involved covers an area of 99 hectares does not
provide a cogent reason to elevate the cases to the Court en banc. Nowhere in the
extent guidelines for referral to the Court en banc is the value of the property
subject of the case relevant to determine whether the division should refer a matter
to the Court en banc. Moreover, the validity of OCT No. 4216, which petitioner
Republic raised as a principal issue in the instant petition, had already been long
settled by final judgments of this Court in three (3) cases. 2

It was also submitted that the cases are of sufficient importance to be "reexamined
and reviewed" by the Court en banc pursuant to S. C. Circular No. 2-89 dated
February 7, 1989 as amended by the Resolution of November 18, 1993, which
considers the following, among others, as en banc cases:chanrob1es virtual 1aw
library

x x x

"9. All other cases as the Court en banc by a majority of its actual membership may
deem of sufficient importance to merit its attention."cralaw virtua1aw library

It is believed that the acceptance by the court en banc of the referral on the
proposal of one member of the division is not called for on the following
grounds:chanrob1es virtual 1aw library

(1) The motion for reconsideration from the decision unanimously adopted by the
3rd Division on September 2, 1999 is still pending. If there is any error to be
rectified in the said decision, the matter should be left to the sound judgment of the
members of the division which promulgated the decision unless there is a
demonstrated incapacity or disqualification on the part of its members to render a
fair and just resolution of the motion for reconsideration.

(2) The court en banc is not an appellate court to which a decision or resolution
may be appealed:chanrob1es virtua1 1aw 1ibrary

Article VIII, Section 4, of the 1987 Constitution provides:jgc:chanrobles.com.ph

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

(2) All cases involving the constitutionality of a treaty, international or executive

agreement, or law which shall be heard by the Supreme Court en banc, and all
other cases which under the Rules of Court are required to be heard en banc,
including those involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of majority of the members who
actually took part in the deliberations on the issues in the case and voted thereon.

(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of majority of the Members who actually took part in the deliberations
on the issues in the case and voted thereon, and in no case without the
concurrence of at least three of such Members. When the required number is not
obtained, the case shall be decided en banc; Provided, that no doctrine or principle
of law laid down by the court in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc."cralaw virtua1aw library

It is implicit in the paragraph immediately preceding that decisions or resolutions of

a division of the court, when concurred in by a majority of its members who
actually took part in the deliberations on the issues in a case and voted thereon is a
decision or resolution of the Supreme Court itself. The Supreme Court sitting en
banc is not an appellate court vis a vis its Divisions, and it exercises no appellate
jurisdiction over the latter. Each division of the Court is considered not a body
inferior to the Court en banc, and sits veritably as the Court en banc itself. The only
constraint is that any doctrine or principle of law laid down by the Court, either
rendered en banc or in division, may be overturned or reversed only by the Court
sitting en banc.

(3) Circular No. 2-89 of the Court en banc laid down the following Guidelines and
Rules on the referral to the Court en banc of cases assigned to a
Division:jgc:chanrobles.com.ph

"1. The Supreme Court sits either en banc or in Divisions of three, five or seven
Members (Sec. 4[1]. Article VIII, 1987 Constitution). At present the Court has three
Divisions of five Members each.

2. A decision or resolution of a Division of the Court, when concurred in by a

majority of its Members who actually took part in the deliberations on the issues in
a case and voted thereon, and in no case without the concurrence of at least three
of such Members, is a decision or resolution of the Supreme Court (Section 4[3].
Article VIII, 1987 Constitution).

3. The Court en banc is not an Appellate Court to which decisions or resolutions of a

Division may be appealed.

4. At any time after a Division takes cognizance of a case and before a judgment or
resolution therein rendered becomes final and executory, the Division may refer the
case en consulta to the Court en banc which, after consideration of the reasons of
the Division for such referral, may return the case to the Division or accept the case
for decision or resolution.

4a. Paragraph [f] of the Resolution of this Court of 23 February 1984 in Bar Matter
No. 205 (formerly item 6, en banc Resolution dated 29 September 1977),
enumerating the cases considered as en banc cases, states:jgc:chanrobles.com.ph

"f. Cases assigned to a division including motions for reconsideration which in the
opinion of at least three (3) members merit the attention of the Court en banc and
are acceptable by a majority vote of the actual members of the Court en
banc."cralaw virtua1aw library

5. A resolution of the Division denying a party’s motion for referral to the Court en
banc of any Division case, shall be final and not appealable to the Court en banc.

6. When a decision or resolution is referred by a Division to the Court en banc, the

latter may, in the absence of sufficiently important reasons, decline to take
cognizance of the same, in which case, the decision or resolution shall be returned
to the referring Division.

7. No motion for reconsideration of the action of the Court en banc declining to take
cognizance of a referral by a Division, shall be entertained.

8. This Circular shall take effect on March 1, 1989." chanrob1es virtua1 1aw 1ibrary

In the Resolution of the Court en banc dated November 18, 1993, the following
were enumerated as the cases to be considered as "en banc cases"
:jgc:chanrobles.com.ph

"1. Cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, executive order, or presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question;

2. Criminal cases in which the appealed decision imposes the death penalty;

3. Cases raising novel questions of law;

4. Cases affecting ambassadors, other public ministers and consuls;

5. Cases involving decisions, resolutions or orders of the Civil Service Commission,

Commission on Elections, and Commission on Audit;

6. Cases where the penalty to be imposed is the dismissal of a judge, officer or

employee of the judiciary, disbarment of a lawyer, or either the suspension of any
of them for a period of more than one (1) year or a fine exceeding P10,000.00 or
both;

7. Cases where a doctrine or principle laid down by the court en banc or in division
may be modified or reversed;

8. Cases assigned to a division which in the opinion of at least three (3) members
thereof merit the attention of the court en banc and are acceptable to a majority of
the actual membership of the court en banc; and

9. All other cases as the court en banc by a majority of its actual membership may
deem of sufficient importance to merit its attention."cralaw virtua1aw library

Notably, the rule that "cases assigned to a division which is the opinion of at least
three (3) members thereof merit the attention of the Court en banc and are
acceptable to a majority of the actual membership of the Court en banc" has been
reiterated.

However, a new paragraph was added in the 1993 Resolution, as

follows:jgc:chanrobles.com.ph

"9. All other cases as the Court en banc by a majority of its actual membership may
deem of sufficient importance to merit its attention."cralaw virtua1aw library

The immediately foregoing paragraph may lend itself to an interpretation that any
case which the Court en banc by majority vote of its members "may deem of
sufficient importance to merit its attention" is an en banc case.

This interpretation is of doubtful validity and soundness.

To begin with, Resolution dated November 18, 1993 is essentially an amendment to

Sections 15 and 16, Rule 136 of the Rules of Court which deals with the form
("unglazed paper," margins, number of copies, etc.) of unprinted and printed
papers to be filed with this Court. This Resolution was clearly not intended to lay
down new guidelines or rules for referral to the court en banc of cases assigned to a
Division. Thus, the principle that the court en banc is not an appellate court to
which decisions or resolutions of a Division may be appealed could not have been
intended to be abrogated. Article VIII, Section 4 of the Constitution, earlier quoted,
expressly provides that "when the required number (the concurrence of at least
three members of the division) is not obtained, the case shall be decided en banc."
The obvious contemplation is that when the required vote of at least three
members is obtained, the banc’s participation is not called for.

(4) It is true that the Constitution itself recognizes the power of the Supreme Court
to require other cases to be heard en banc (Article VIII, Sec. 4 (2)). As pointed out,
the November 18, 1993 Resolution quoted earlier, could not, by reading the
issuance in proper context, have been intended to expand the enumeration of en
banc cases. A reasonable interpretation is that paragraph 9 refers to cases accepted
by the banc pursuant to existing rules, foremost of which is that the referral
requires the concurrence of at least three of the members of the division. If the
provision "all other cases as the court en banc by a majority of its actual
membership may deem of sufficient importance to merit its attention" was intended
to give the court en banc a general residual power and prerogative to cause the
elevation of any case assigned to a division, without a consulta from the division
itself, this intent should be ineluctably expressed, having in mind the essential and
traditional role of a division of the court sitting veritably as the court en banc itself.

The court en banc should be shielded from the importunings of litigants who
perceive themselves aggrieved by a decision of a division of the court and resort to
the convenience of an appeal to the court en banc on the plea that its case is "of
sufficient importance to merit its attention." In the Sumilao case, the majority of
the banc’s members refused to take the case where there was a two-two tie vote in
the division for the elevation of the motion for reconsideration to the court en banc.
In an earlier precedent involving the conviction of Imelda Marcos by the
Sandiganbayan, the case was considered as deserving of a full court treatment,
despite the fact that the motion for reconsideration did not garner a majority vote
in the division. The Court should establish a consistent policy on these referrals for
the stability of its policies and procedures.

The prerogative to take out a case from the division without the concurrence of a
majority of its members, should, if at all, be used only for clearly compelling
reasons; otherwise the decision of the Court en banc to take cognizance of the
matter itself would be suspect of irregularity and the precedent would be difficult to
justify before litigants who may be similarly situated.

I vote to deny the motions to refer the motions for reconsideration to the Court en
banc.

Quisumbing and Pardo, JJ., concur.

PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library

With due respect, I dissent from the majority’s Resolution.

Very briefly, these are the relevant antecedents. On September 2, 1999, the Court
through the Third Division unanimously promulgated its Decision denying the
Petitions in these cases. Thereafter, both the government and private petitioners
filed separate (1) Motions for Reconsideration and (2) Motions to Refer the Cases to
the Court en Banc.chanrob1es virtua1 1aw 1ibrary

By vote of 4-1, 1 the Third Division rejected the Motions to Refer the Cases to the
full Court because the movants had utterly failed to adduce any legal reason for
such referral. Subsequently, Justice Fidel P. Purisima, the lone dissenter, asked the
Court en banc to yank the case out of and against the will of the said Division, and
to empower the banc to resolve the pending Motions for Reconsideration. By the
instant Resolution, the majority has agreed with Justice Purisima.

With due respect, I say that the majority has not given any cogent or compelling
reason for this unprecedented action. Its Resolution, penned by Justice Purisima,
simply pontificates that "these consolidated cases are of sufficient importance to
merit the attention and disposition of the entire Court," without stating why. The
majority simply used its sheer voting strength to bulldoze the earlier 4-1 action of
the Third Division. If at all, the lame excuse given that the "subject Decision
[promulgated by the Third Division] does not clearly indicate the classification of
said land" is merely an argument why the pending Motions for Reconsideration
should be granted, not why the banc should take over this case.

I fully agree with the well-reasoned Dissent of Justice Minerva P. Gonzaga-Reyes,

the ponente of the Third Division’s unanimous Decision. I write, however, to stress
one point. In the celebrated Sumilao farmers’ case, 2 a similar motion to refer to
the full Court was turned down by the Second Division by a vote of 3-1. Arguing
that the Division’s earlier vote of 2-2 on the Motion for Reconsideration was not
decisive, Justice Jose A. R. Melo (who was then a member of the Second Division)
subsequently asked the banc to take over the case. Justice Melo argued that under
Article VIII, Section 4 (3) of the Constitution," [c]ases or matters heard by a
division shall be decided or resolved with the concurrence of a majority of the
members who actually took part in the deliberations on the issues in the case and
voted thereon, and in no case without the concurrence of at least three of such
members." Since the Motion for Reconsideration did not obtain the required three
votes in the Division, he added that the banc should thus take over and resolve the
impasse. In other words, Justice Melo presented a genuine "question of sufficient
importance" — which the Second Division was not in a position to resolve — to
justify a take-over by the banc. Yet, the full Court turned down his proposal. Only
Justice Vitug and I supported Justice Melo.

I therefore cannot understand why the banc is now taking over this case against
the wishes of the Third Division. It turned down the poor farmers’ plea and the Melo
proposal. Why then should the banc grant the not-so-poor private petitioners’
prayer here? Why then should it approve the groundless Purisima proposal? At the
very least, if it should take over this case, then it should likewise assume
jurisdiction over the farmer’s suit. After all, the vote in the Motion for
Reconsideration in that case was two in favor and two against, while in the present
case, the Third Division has not even voted on the plea for reconsideration. In other
words, there was sufficient reason for the banc to take over the Sumilao problem
because of the 2-2 vote of the Division. Here, no cogent reason whatsoever —
other than the motherhood peroration that the case was "of sufficient importance"
— is given by the majority.

Parenthetically, I should add that the Third Division is not averse to hearing the
petitioners’ Motions for Reconsideration. As a matter of fact, if the banc did not take
over this case, it would have scheduled the said Motions for oral argument. Simply
stated, the Third Division is not incapable of rendering objective and fair justice in
this case and to rule on the issue of "classification of said land."cralaw virtua1aw
library

Having taken over this case, the banc — in the name of equal justice — should also
take over the Sumilao farmers’ Petition. But having rejected their case, then it
should also turn down this one. Sauce for the poor goose should be the same sauce
for the rich gander. That is simple, equal justice for all.chanrob1es virtua1 1aw
1ibrary

Endnotes:

GONZAGA-REYES, dissenting:chanrob1es virtual 1aw library

1. 262 SCRA 464, 467.

2. Margolles v. CA, 230 SCRA 97; Peltan Development Inc., et. al. v. CA, 270 SCRA
83; Goldenrod, Inc. v. CA and Peltan Development, Inc. G.R. No. 112038, August
10, 1994.

PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library

1. JJ Jose A.R. Melo, Jose C. Vitug, Artemio V. Panganiban and Minerva P. Gonzaga-
Reyes voted to deny said Motions, while J. Fidel P. Purisima voted to grant them.

2. Fortich v. Corona, GR No. 131457, April 24, 1998, November 17, 1998 and
August 19, 1999.

Fabian v Desierto G.R. No. 127245

EN BANC

G.R. No. 129742. September 16, 1998

TERESITA G. FABIAN Petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as ombudsman;
HON. JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon; and NESTOR V.
AGUSTIN Respondents.

DECISION

REGALADO, J:

Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court from the "Joint Order"
issued by public respondents on June 18, 1997 in OMB-Adm. Case No. 0-95-0411 which granted the
motion for reconsideration of and absolved private respondents from administrative charges for inter
aliagrave misconduct committed by him as then Assistant Regional Director, Region IV-A, Department
of Public Works and Highways (DPWH).

It appears from the statement and counter-statement of facts of the parties that petitioner Teresita G.
Fabian was the major stockholder and president of PROMAT Construction Development Corporation
(PROMAT) which was engaged in the construction business. Private respondents Nestor V. Agustin was
the incumbent District Engineering District (FMED) when he allegedly committed the offenses for which
he was administratively charged in the Office in the office of the Ombudsman.

Promat participated in the bidding for government construction project including those under the FMED,
and private respondent, reportedly taking advantage of his official position, inveigled petitioner into an
amorous relationship. Their affair lasted for some time, in the course of which private respondents gifted
PROMAT with public works contracts and interceded for it in problems concerning the same in his
office.

Later, misunderstanding and unpleasant incidents developed between the parties and when petitioner tried
to terminate their relationship, private respondent refused and resisted her attempts to do so to the extent
of employing acts of harassment, intimidation and threats. She eventually filed the aforementioned
administrative case against him in a letter-complaint dated July 24, 1995.

The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act
No. 6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service
Decree), with an ancillary prayer for his preventive suspension. For purposes of this case, the charges
referred to may be subsumed under the category of oppression, misconduct, and disgraceful or immoral
conduct.

On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private
respondents guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all
benefits under the law. His resolution bore the approval of Director Napoleon Baldrias and Assistant
Ombudsman Abelardo Aportadera of their office.

Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid resolution
with modifications, by finding private respondent guilty of misconduct and meting out the penalty of
suspension without pay for one year. After private respondent moved for reconsideration, respondent
Ombudsman discovered that the former's new counsel had been his "classmate and close associate" hence
he inhibited himself. The case was transferred to respondent Deputy Ombudsman Jesus F. Guerrero who,
in the now challenged Joint Order of June 18, 1997, set aside the February 26, 1997 Order of respondent
Ombudsman and exonerated private respondents from the administrative charges.

II

In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of
1989)1 pertinently provides that -

In all administrative diciplinary cases, orders, directives or decisions of the Office of the Ombudsman
may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt
of the written notice of the order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court. (Emphasis supplied)

However, she points out that under Section 7, Rule III of Administrative Order No. 07 (Rules of
Procedure of the office of the Ombudsman),2 when a respondent is absolved of the charges in an
administrative proceeding decision of the ombudsman is final and unappealable. She accordingly submits
that the office of the ombudsman has no authority under the law to restrict, in the manner provided in its
aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the power of review of
this Court. Because of the aforecited provision in those Rules of Procedure, she claims that she found it
"necessary to take an alternative recourse under Rule 65 of the Rules of Court, because of the doubt it
creates on the availability of appeals under Rule 45 of the Rules of Court.

Respondents filed their respective comments and rejoined that the Office of the Ombudsman is
empowered by the Constitution and the law to promulgate its own rules of procedure. Section 13(8),
Article XI of the 1987 Constitution provides, among others, that the Office of the Ombudsman can
"(p)romulgate its rules of procedure and exercise such other powers or perform such functions or duties as
may be provided by law."

Republic Act No. 6770 duly implements the Constitutional mandate with these relevant provisions:

Sec. 14. Restrictions. - x x x No court shall hear any appeal or application for remedy against the decision
or findings of the Ombudsman except the Supreme Court on pure question on law.

xxx

Sec. 18. Rules of Procedure. - (1) The Office of the Ombudsman shall promulgate
its own rules of procedure for the effective exercise or performance of its powers,
functions, and duties.

xxx

Sec. 23. Formal Investigation. - (1) Administrative investigations by the Office of

the Ombudsman shall be in accordance with its rules of procedure and consistent
with the due process. x x x

xxx

Sec. 27. Effectivity and Finality of Decisions. - All provisionary orders at the Office
of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the
Ombudsman must be filed within five (5) days after receipt of written notice shall
be entertained only on any of the following grounds:

xxx

Findings of fact by the Office of the Ombudsman when supported by substantial

evidence are conclusive. Any order, directive or decision imposing the penalty of
public censure or reprimand, suspension of not more than one month salary shall
be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office

of the Ombudsman may be appealed to the Supreme Court by filing a petition
for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with
Rule 45 of the Rules of Court.
The above rules may be amended or modified by the Office of the Ombudsman as
the interest of justice may require.

Respondents consequently contend that, on the foregoing constitutional and

statutory authority, petitioner cannot assail the validity of the rules of procedure
formulated by the Office of the Ombudsman governing the conduct of proceeding
before it, including those with respect to the availabity or non-avalability of appeal
in administrative cases. Such as Section 7, Rule III of Administrative Order No.07.

Respondents also question the propriety of petitioner's proposition that, although

she definitely prefaced her petition by categorizing the same as "an appeal
by certiorari under Rule 45 of the Rules of Court," she makes the aforequoted
ambivalent statement which in effect asks that, should the remedy under Rule 45
be unavailable, her petition be treated in the alternative as an original action
for certiorari under Rule 65. The parties thereafter engage in a discussion of the
differences between a petition for review on certiorari under Rule 45 and a special
civil action of certiorari under Rule 65.

Ultimately, they also attempt to review and rationalize the decision of this Court
applying Section 27 of Republic Act No. 6770 vis--vis Section 7, Rule III of
Administrative Order No. 07. As correctly pointed out by public respondents,
Ocampo IV vs. Ombudsman, et al.3 and Young vs. Office of the Ombudsman, et
al.4 were original actions for certiorari under Rule 65. Yabut vs. Office of the
Ombudsman, et al.5 was commenced by a petition for review on certiorari under
Rule 45. Then came Cruz, Jr. vs. People, et al.,6 Olivas vs. Office of the
Ombudsman, et al., 7Olivarez vs. Sandiganbayan, et al.,8 and Jao, et al. vs.
Vasquez,9which were for certiorari, prohibition and/or mandamus under Rule 65.
Alba vs. Nitorreda, et al.10 was initiated by a pleading unlikely denominated as an
"Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary
remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano
Desierto, et al.11 which was a special civil action for certiorari.

Considering, however the view that this Court now takes of the case at bar and the
issues therein which will shortly be explained, it refrains from preemptively
resolving the controverted points raised by the parties on the nature and propriety
of application of the writ of certiorari when used as a mode of appeal or as the basis
of a special original action, and whether or not they may be resorted to
concurrently or alternatively, obvious though the answers thereto appear to be.
Besides, some seemingly obiter statements in Yabuts and Alba could bear
reexamination and clarification. Hence, we will merely observe and lay down the
rule at this juncture that Section 27 of Republic Act No. 6770 is involved only
whenever an appeal by certiorari under Rule 45 is taken from a decision in an
administrative diciplinary action. It cannot be taken into account where an original
action for certiorari under Rule 65 is resorted to as a remedy for judicial review,
such as from an incident in a criminal action.

III
After respondents' separate comments had been filed, the Court was intrigued by
the fact, which does appear to have been seriously considered before, that the
administrative liability of a public official could fall under the jurisdiction of both the
Civil Service Commission and the Office of the Ombudsman. Thus, the offenses
imputed to herein private respondent were based on both Section 19 of Republic
Act. No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the
amendment of section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all
adjudications by Civil Service Commission in administrative disciplinary cases were
made appealable to the Court of Appeals effective March 18, 1995, while those of
the Office of the Ombudsman are appealable to this Court.

It could thus be possible that in the same administrative case involving two
respondents, the proceedings against one could eventually have been elevated to
the Court of Appeals, while the other may have found its way to the Ombudsman
from which it is sought to be brought to this Court. Yet systematic and efficient
case management would dictate the consolidation of those cases in the Court of
Appeals, both for expediency and to avoid possible conflicting decisions.

Then there is the consideration that Section 30, Article VI of the 1987 Constitution
provides that "(n)o law shall be passed increasing the appellate indiction of the
Supreme Court as provided in this Constitution without its advice and consent," and
that Republic Act No. 6770, with its challenged Section 27, took effect on November
17, 1989, obviously in spite of that constitutional grounds must be raised by a party
to the case, neither of whom did so in this case, but that is not an inflexible rule, as
we shall explain.

Since the constitution is intended fort the observance of the judiciary and other
departments of the government and the judges are sworn to support its provisions,
the courts are not at liberty to overlook or disregard its commands or countenance
evasions thereof. When it is clear that a statute trangresses the authority vested in
a legislative body, it is the duty of the courts to declare that the constitution, and
not the statute, governs in a case before them for judgement.12cräläwvirtualibräry

Thus, while courts will not ordinarily pass upon constitutional questions which are
not raised in the pleadings,13 the rule has been recognized to admit of certain
exceptions. It does not preclude a court from inquiring into its own jurisdiction or
compel it to enter a judgement that it lacks jurisdiction to enter. If a statute on
which a court's jurisdiction in a proceeding depends is unconstitutional, the court
has no jurisdiction in the proceeding, and since it may determine whether or not it
has jurisdiction, it necessarily follows that it may inquire into the constitutionality of
the statute.14cräläwvirtualibräry

Constitutional question, not raised in the regular and orderly procedure in the trial
are ordinarily rejected unless the jurisdiction of the court below or that of the
appellate court is involved in which case it may be raised at any time or on the
court's own motion.15 The Court ex mero motu may take cognizance of lack of
jurisdiction at any point in the case where the fact is developed.16 The court has a
clearly recognized right to determine its own jurisdiction in any
proceeding.17cräläwvirtualibräry

The foregoing authorities notwithstanding, the Court believed that the parties
hereto should be further heard on this constitutional question. Correspondingly, the
following resolution was issued on May 14, 1998, the material parts stating as
follows:

The Court observes that the present petition, from the very allegations thereof, is
"an appeal by certiorari under Rule 45 of the Rules of Court from the 'Joint Order
(Re: Motion for Reconsideration)' issued in OMB-Adm. Case No. 0-95-0411, entitled
'Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst. Regional Director, Region IV-
A, EDSA, Quezon City,' which absolved the latter from the administrative charges
for grave misconduct, among other."

It is further averred therein that the present appeal to this Court is allowed under
Section 27 of the Ombudsman Act of 1987 (R.A. No. 6770) and, pursuant thereto,
the Office of the Ombudsman issued its Rules of Procedure, Section 7 whereof is
assailed by petitioner in this proceeding. It will be recalled that R.A. No. 6770 was
enacted on November 17, 1989, with Section 27 thereof pertinently providing that
all administrative diciplinary cases, orders, directives or decisions of the Office of
the Ombudsman may be appealed to this Court in accordance with Rule 45 of the
Rules of Court.

The Court notes, however, that neither the petition nor the two comments thereon
took into account or discussed the validity of the aforestated Section 27 of R.A. No.
8770 in light of the provisions of Section 30, Article VI of the 1987 Constitution that
"(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court
as provided in this Constitution without its advise and consent."

The Court also invites the attention of the parties to its relevant ruling in First
Lepanto Ceramics, Inc. vs. The Court of Appeals , et al. (G.R. No. 110571, October
7, 1994, 237 SCRA 519) and the provisions of its former Circular No. 1-95,as now
substantially reproduced in Rule 43 of the 1997 revision of the Rules of Civil
Procedure.

In view of the fact that the appellate jurisdiction of the Court is invoked and
involved and in this case, and the foregoing legal consideration appear to impugn
the constitutionality and validity of the grant of said appellate jurisdiction to it, the
Court deems it necessary that the parties be heard thereon and the issue be first
resolved before conducting further proceedings in this appellate review.

ACCORDINGLY, the Court Resolved to require the parties to Submit their position
and arguments on the matter subject of this resolution by filing their corresponding
pleadings within ten (10) days from notice hereof.

IV
The records do not show that the Office of the Solicitor General has complied with
such requirement, hence the Court dispenses with any submission it should have
presented. On the other hand, petitioner espouses the theory that the provision in
Section 27 of Republic Act No. 6770 which authorizes an appeal by certiorari to this
Court of the aforementioned adjudications of the Ombudsman is not violative of
Section 30, Article VI of the Constitution. She claims that what is proscribed is the
passage of law "increasing" the appellate jurisdiction of this Court "as provided in
this Constitution," and such appellate jurisdiction includes "all cases in which only
an error or question of law is involved." Since Section 5(2)(e), Article VIII of the
Constitution authorizes this Court to review, revise, reverse, modify, or affirm on
appeal or certiorari the aforesaid final judgement or orders "as the law or the Rules
of Court may provide," said Section 27 does not increase this Court may provide,"
said section 27 does not increase this Court's appellate jurisdiction since, by
providing that the mode of appeal shall be by petition for certiorari under Rule 45,
then what may be raised therein are only questions of law of which this Court
already has of which this Court already has jurisdiction.

We are not impressed by this discourse. It overlooks the fact that by jurisprudential
developments over the years, this Court has allowed appeals by certiorari under
Rule 45 in a substantial number of cases and instances even if questions of fact are
directly involved and have to be resolved by the appellate court.18Also, the very
provision cited by petitioner specifies that the appellate jurisdiction of this Court
contemplated therein is to be exercised over "final judgements and orders of lower
courts," that is, the courts composing the integrated judicial system. It does not
include the quasi-judicial bodies or agencies, hence whenever the legislature
intends that the decisions or resolutions of the quasi-judicial agency shall be
reviewable by the Supreme Court or the Court of Appeals, a specific provision to
that effect is included in the law creating that quasi-judicial agency and, for that
matter, any special statutory court. No such provision on appellate procedure is
required for the regular courts of the integrated judicial system because they are
what are referred to and already provided for in Section 5, Article VIII of the
Constitution.

Apropos to the foregoing, and as correctly observed by private respondent, the

revised Rules of Civil Procedure19 preclude appeals from quasi-judicial agencies to
the Supreme Court via a petition for review on certiorari under Rule 45. In the 1997
Rules of Civil Procedure, Section 1 Rule 45, on "Appeal by Certiorari to the Supreme
Court," explicitly states:

SECTION 1 . Filing of petition with Supreme Court. - A person desiring to appeal

by certiorari from a judgement or final order or Resolution of the Court of Appeals,
the Sandiganbayan, the Regional Trial Court or other court whenever authorized by
law, may file with the Supreme Court a verified petition for review on certiorari. The
petition shall raise only question of law which must be distinctly set forth. (Italics
ours).

This differs from the former Rule 45 of the 1964 Rules of Court which made
mention only of the Court of Appeals, and had to be adopted in statutes creating
and providing for appeals from certain administrative or quasi-judicial agencies,
whenever the purpose was to restrict the scope of the appeal to questions of law.
That intended limitation on appellate review, as we have just discussed, was not
fully subserved by recourse to the former Rule 45 but, then, at that time there was
no uniform rule on appeals from quasi-judicial agencies.

Under the present Rule 45, appeals may be brought through a petition for review
on certiorari but only from judgments and final orders of the courts enumerated in
Section 1 thereof. Appeals from judgments and final orders of quasi-judicial
agencies20 are now required to be brought to the Court of Appeals on a verified
petition for review, under the requirements and conditions in Rule 43 which was
precisely formulated and adopted to provide for a uniform rule of appellate
procedure for quasi-judicial agencies .21cräläwvirtualibräry

It is suggested, however, that the provisions of Rule 43 should apply only to

"ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman which is
a "high constitutional body." We see no reason for this distinction for, if hierarchical
rank should be a criterion, that proposition thereby disregards the fact that Rule 43
even includes the Office of the President and the Civil Service Commission,
although the latter is even an independent constitutional commission, unlike the
Office of the Ombudsman which is a constitutionally-mandated but statutorily
created body.

Regarding the misgiving that the review of the decision of the Office of the
Ombudsman by the Court of Appeals would cover questions of law, of fact or of
both, we do not perceive that as an objectionable feature. After all, factual
controversies are usually involved in administrative disciplinary actions, just like
those coming from the Civil Service, Commission, and the Court of Appeals as a
trier of fact is better prepared than this Court to resolve the same. On the other
hand, we cannot have this situation covered by Rule 45 since it now applies only to
appeals from the regular courts. Neither can we place it under Rule 65 since the
review therein is limited to jurisdictional questions.*

The submission that because this Court has taken cognizance of cases involving
Section 27 of Republic Act No. 6770, that fact may be viewed as "acquiescence" or
"acceptance" by it of the appellate jurisdiction contemplated in said Section 27, is
unfortunately too tenuous. The jurisdiction of a court is not of acquiescence as a
matter of fact but an issue of conferment as a matter of law. Besides, we have
already discussed the cases referred to, including the inaccuracies of some
statements therein, and we have pointed out the instances when Rule 45 is
involved, hence covered by Section 27 of Republic Act No. 6770 now under
discussion, and when that provision would not apply if it is a judicial review under
Rule 65.

Private respondent invokes the rule that courts generally avoid having to decide a
constitutional question, especially when the case can be decided on other grounds.
As a general proposition that is correct. Here, however, there is an actual case
susceptible of judicial determination. Also, the constitutional question, at the
instance of this Court, was raised by the proper parties, although there was even
no need for that because the Court can rule on the matter sua sponte when its
appellate jurisdiction is involved. The constitutional question was timely raised,
although it could even be raised any time likewise by reason of the jurisdictional
issue confronting the Court. Finally, the resolution of the constitutional issue here is
obviously necessary for the resolution of the present case. 22cräläwvirtualibräry

It is, however, suggested that this case could also be decided on other grounds,
short of passing upon; the constitutional question. We appreciate the ratiocination
of private respondent but regret that we must reject the same. That private
respondent could be absolved of the charge because the decision exonerating him
is final and unappealable assumes that Section 7, Rule III of Administrative Order
No. 07 is valid, but that is precisely one of the issues here. The prevailing rule that
the Court should not interfere with the discretion of the Ombudsman in prosecuting
or dismissing a complaint is not applicable in this administrative case, as earlier
explained. That two decisions rendered by this Court supposedly imply the validity
of the aforementioned Section 7 of Rule III is precisely under review here because
of some statements therein somewhat at odds with settled rules and the decisions
of this Court on the same issues, hence to invoke the same would be to beg the
question.

Taking all the foregoing circumstances in their true legal roles and effects,
therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to
this Court from decisions of the Office of the Ombudsman in administrative
disciplinary cases. It consequently violates the proscription in Section 30, Article VI
of the Constitution against a law which increases the Appellate jurisdiction of this
Court. No countervailing argument has been cogently presented to justify such
disregard of the constitutional prohibition which, as correctly explained in First
Leparto Ceramics, Inc. vs. The Court of Appeals, el al. 23 was intended to give this
Court a measure of control over cases placed under its appellate Jurisdiction.
Otherwise, the indiscriminate enactment of legislation enlarging its appellate
jurisdiction would unnecessarily burden the Court 24cräläwvirtualibräry

We perforce have to likewise reject the supposed inconsistency of the ruling in First
Lepanto Ceramics and some statements in Yabut and Alba, not only because of the
difference in the factual settings, but also because those isolated cryptic statements
in Yabut and Alba should best be clarified in the adjudication on the merits of this
case. By way of anticipation, that will have to be undertaken by the proper court of
competent jurisdiction.

Furthermore in addition to our preceding discussion on whether Section 27 of

Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and
consent, private respondent's position paper correctly yields the legislative
background of Republic Act No. 6770. On September 26, 1989, the Conference
Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new
version of what would later be Republic Act No. 6770, was approved on second
reading by the House of Representatives.25 The Senate was informed of the
approval of the final version of the Act on October 2, 1989 26 and the same was
thereafter enacted into law by President Aquino on November 17, 1989.

Submitted with said position paper is an excerpt showing that the Senate, in the
deliberations on the procedure for appeal from the Office of the Ombudsman to this
Court, was aware of the provisions of Section 30, Article III of the Constitution. It
also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor
of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction,
and that the Committee on Justice and Human Rights had not consulted this Court
on the matter, thus:

INTERPELLATION OF SENATOR SHAHANI

xxx

Thereafter, with reference to Section 22(4) which provides that the decisions of the
Office of the Ombudsman may be appealed to the Supreme Court, in reply to
Senator Shahani's query whether the Supreme Court would agree to such provision
in the light of Section 30, Article VI of the Constitution which requires its advice and
concurrence in laws increasing its appellate jurisdiction, Senator Angara informed
that the Committee has not yet consulted the Supreme Court regarding the matter.
He agreed that the provision will expand the Supreme Court's jurisdiction by
allowing appeals through petitions for review, adding that they should be appeals
on certiorari.27 There is no showing that even up to its enactment, Republic Act No.
6770 was ever referred to this Court for its advice and consent .28

VI

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770

should be struck down as unconstitutional, and in line with the regulatory
philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised
Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals under the
provisions of Rule 43.

There is an intimation in the pleadings, however, that said Section 27 refers to

appellate jurisdiction which, being substantive in nature, cannot be disregarded by
this Court under its rule-making power, especially if it results in a diminution,
increase or modification of substantive rights. Obviously, however, where the law is
procedural in essence and purpose, the foregoing consideration would not pose a
proscriptive issue against the exercise of the rule-making power of this Court. This
brings to fore the question of whether Section 27 of Republic Act No. 6770 is
substantive or procedural.

It will be noted that no definitive line can be drawn between those rules or statutes
which are procedural, hence within the scope of this Court's rule-making power,
and those which are substantive. In fact, a particular rule may be procedural in one
context and substantive in another.29 It is admitted that what is procedural and
what is substantive is frequently a question of great difficulty.30 It is not, however,
an insurmountable problem if a rational and pragmatic approach is taken within the
context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice
and procedure of the lower courts, abridges, enlarges, or modifies any substantive
right, the test is whether the rule really regulates procedure, that is, the judicial
process for enforcing rights and duties recognized by substantive law and for justly
administering remedy and redress for a disregard or infraction of them.31 If the rule
takes away a vested right, it is not procedural. If the rule creates a right such as
the right to appeal, it may be classified as a substantive matter; but if it operates
as a means o implementing an existing right then the rule deals merely with
procedure.32cräläwvirtualibräry

In the situation under consideration, a transfer by the Supreme Court, in the

exercise of its rule-making power, of pending cases involving a review of decisions
of the Office of the Ombudsman in administrative disciplinary actions to the Court
of Appeals which shall now be vested with exclusive appellate jurisdiction
thereover, relates to procedure only.33 This is so because it is not the right to
appeal of an aggrieved party which is affected by the law. That right has been
preserved. Only the procedure by which the appeal is to be made or decided has
been changed. The rationale for this is that litigant has a vested right in a particular
remedy, which may be changed by substitution without impairing vested rights,
hence he can have none in rules of procedure which relate to the
remedy.34cräläwvirtualibräry

Furthermore, it cannot be said that transfer of appellate jurisdiction to the Court of

Appeals in this case is an act of creating a new right of appeal because such power
of the Supreme Court to transfer appeals to subordinate appellate courts is purely a
procedural and not a substantive power. Neither can we consider such transfer as
impairing a vested right because the parties have still a remedy and still a
competent tribunal to administer that remedy.35cräläwvirtualibräry

Thus, it has been generally held that rules or statutes involving a transfer of cases
from one court to another, are procedural and remedial merely and that, as such,
they are applicable to actions pending at the time the statute went into effect36 or,
in the case at bar, when its invalidity was declared. Accordingly, even from the
standpoint of jurisdiction ex hypothesi the validity of the transfer of appeals in said
cases to the Court of Appeals can be sustained.

WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989),

together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure
of the Office of the Ombudsman), and any other provision of law or issuance
implementing the aforesaid Act and insofar as they provide for appeals in
administrative disciplinary cases from the Office of the Ombudsman to the Supreme
Court, are hereby declared INVALID and of no further force and effect.
The instant petition is hereby referred and transferred to the Court of Appeals for
final disposition, with said petition to be considered by the Court of Appeals pro hac
vice as a petition for review under Rule 43, without prejudice to its requiring the
parties to submit such amended or supplemental pleadings and additional
documents or records as it may deem necessary and proper.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Martinez, Quisumbing, and Purisima JJ., concur.

Secretary of National Defense v Manalo

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES,petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.

DECISION

PUNO, C.J.:

While victims of enforced disappearances are separated from the rest of the world behind secret
walls, they are not separated from the constitutional protection of their basic rights. The constitution
is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty
and security in the first petition for a writ of Amparo filed before this Court.

This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section
191 of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact
and law, the Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001,
entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National
Defense, the Chief of Staff, Armed Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order
(TRO)2 filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop
herein petitioners (therein respondents) and/or their officers and agents from depriving them of their
right to liberty and other basic rights. Therein petitioners also sought ancillary remedies, Protective
Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal
and equitable reliefs under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section
6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of the
Department of National Defense and the Chief of Staff of the AFP, their agents, representatives, or
persons acting in their stead, including but not limited to the Citizens Armed Forces Geographical
Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of therein
petitioners, or otherwise restricting, curtailing, abridging, or depriving them of their right to life, liberty,
and other basic rights as guaranteed under Article III, Section 14 of the 1987 Constitution.5

While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on
October 24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and
Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ commanding therein
respondents to make a verified return within the period provided by law and containing the specific
matter required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and all
other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after
hearing, render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just and
equitable reliefs.8

On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under
the Amparo Rule and further resolved, viz:

WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with
the CA (Court of Appeals) a verified written return within five (5) working days from service of
the writ. We REMAND the petition to the CA and designate the Division of Associate Justice
Lucas P. Bersamin to conduct the summary hearing on the petition on November 8, 2007 at
2:00 p.m. and decide the petition in accordance with the Rule on the Writ of Amparo.9

On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners
(herein respondents), the dispositive portion of which reads, viz:

ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.

The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:

1. To furnish to the petitioners and to this Court within five days from notice of this
decision all official and unofficial reports of the investigation undertaken in connection
with their case, except those already on file herein;

2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka
Rollie Castillo and Donald Caigas within five days from notice of this decision.

3. To cause to be produced to this Court all medical reports, records and charts,
reports of any treatment given or recommended and medicines prescribed, if any, to
the petitioners, to include a list of medical and (sic) personnel (military and civilian)
 who attended to them from February 14, 2006 until August 12, 2007 within five days
from notice of this decision.

The compliance with this decision shall be made under the signature and oath of respondent
AFP Chief of Staff or his duly authorized deputy, the latter's authority to be express and
made apparent on the face of the sworn compliance with this directive.

SO ORDERED.10

Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein
respondents:

Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006,
several uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the
residents of their barangay in San Idelfonso, Bulacan. Respondents were not able to attend as they
were not informed of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.11

On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso,
Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was Bestre, but his mother, Ester Manalo,
replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and forced to
the ground face down. He was kicked on the hip, ordered to stand and face up to the light, then
forcibly brought near the road. He told his mother to follow him, but three soldiers stopped her and
told her to stay.12

Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning
de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all
members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized
brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being
forcibly taken, he also saw outside of his house two barangaycouncilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and armed men.13

The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being
blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he
learned their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he
estimated was about 40 years of age or older. The leader of the team who entered his house and
abducted him was "Ganata." He was tall, thin, curly-haired and a bit old. Another one of his
abductors was "George" who was tall, thin, white-skinned and about 30 years old.14

The van drove off, then came to a stop. A person was brought inside the van and made to sit beside
Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside
him as his brother Reynaldo's. The van stopped several times until they finally arrived at a house.
Raymond and Reynaldo were each brought to a different room. With the doors of their rooms left
open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the head and
other parts of his body with the butt of their guns for about 15 minutes. After which, Reynaldo was
brought to his (Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room.
The soldiers asked him if he was a member of the New People's Army. Each time he said he was
not, he was hit with the butt of their guns. He was questioned where his comrades were, how many
soldiers he had killed, and how many NPA members he had helped. Each time he answered none,
they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him
up would salute them, call them "sir," and treat them with respect. He was in blindfolds when
interrogated by the high officials, but he saw their faces when they arrived and before the blindfold
was put on. He noticed that the uniform of the high officials was different from those of the other
soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of
combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas
corpus case filed in connection with the respondents' abduction.16 While these officials interrogated
him, Raymond was not manhandled. But once they had left, the soldier guards beat him up. When
the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only
at night, usually with left-over and rotten food.17

On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat
him up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his
forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a
burning wood. When he could no longer endure the torture and could hardly breathe, they stopped.
They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they
warned Raymond that they would come back the next day and kill him.18

The following night, Raymond attempted to escape. He waited for the guards to get drunk, then
made noise with the chains put on him to see if they were still awake. When none of them came to
check on him, he managed to free his hand from the chains and jumped through the window. He
passed through a helipad and firing range and stopped near a fishpond where he used stones to
break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo
church. He talked to some women who were doing the laundry, asked where he was and the road to
Gapan. He was told that he was in Fort Magsaysay.19 He reached the highway, but some soldiers
spotted him, forcing him to run away. The soldiers chased him and caught up with him. They brought
him to another place near the entrance of what he saw was Fort Magsaysay. He was boxed
repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him. Then a so-
called "Mam" or "Madam" suddenly called, saying that she wanted to see Raymond before he was
killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay where Reynaldo
was detained.20

For some weeks, the respondents had a respite from all the torture. Their wounds were treated.
When the wounds were almost healed, the torture resumed, particularly when respondents' guards
got drunk.21

Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by
steel bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything
there, including urinating, removing his bowels, bathing, eating and sleeping. He counted that
eighteen people22 had been detained in that bartolina, including his brother Reynaldo and himself.23

For about three and a half months, the respondents were detained in Fort Magsaysay. They were
kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The
house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their
house. They were also sometimes detained in what he only knew as the "DTU."24

At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took
their urine samples and marked them. When asked how they were feeling, they replied that they had
a hard time urinating, their stomachs were aching, and they felt other pains in their body. The next
day, two ladies in white arrived. They also examined respondents and gave them medicines,
including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents'
urine test and advised them to drink plenty of water and take their medicine. The two ladies returned
a few more times. Thereafter, medicines were sent through the "master" of the DTU, "Master" Del
Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While
there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take
care of them.25

One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several
other armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks in a big two-storey house. Hilario and Efren
stayed with them. While there, Raymond was beaten up by Hilario's men.26

From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the
Revo. They were detained in a big unfinished house inside the compound of "Kapitan" for about
three months. When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of
the house to a basketball court in the center of the compound and made to sit. Gen. Palparan was
already waiting, seated. He was about two arms' length away from respondents. He began by asking
if respondents felt well already, to which Raymond replied in the affirmative. He asked Raymond if
he knew him. Raymond lied that he did not. He then asked Raymond if he would be scared if he
were made to face Gen. Palparan. Raymond responded that he would not be because he did not
believe that Gen. Palparan was an evil man.27

Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:

Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa

akin?"

Sumagot akong, "Siyempre po, natatakot din..."

Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't
sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa
mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na
sumuko na sa gobyerno."28

Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At
about 3:00 in the morning, Hilario, Efren and the former's men - the same group that abducted them
- brought them to their parents' house. Raymond was shown to his parents while Reynaldo stayed in
the Revo because he still could not walk. In the presence of Hilario and other soldiers, Raymond
relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond's parents
acceded. Hilario threatened Raymond's parents that if they continued to join human rights rallies,
they would never see their children again. The respondents were then brought back to Sapang.29

When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with
the four "masters" who were there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw
Raymond, he called for him. He was in a big white vehicle. Raymond stood outside the vehicle as
Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he left for
him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them
strong. He also said that they should prove that they are on the side of the military and warned that
they would not be given another chance.31 During his testimony, Raymond identified Gen. Palparan
by his picture.32

One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The
medicine, named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of
this medicine and instructed to take one capsule a day. Arman checked if they were getting their
dose of the medicine. The "Alive" made them sleep each time they took it, and they felt heavy upon
waking up.33

After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman
instructed Raymond that while in Sapang, he should introduce himself as "Oscar," a military trainee
from Sariaya, Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who
abducted him from his house, and got acquainted with other military men and civilians.34

After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry
Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put
on him and he was kept in the barracks.35

The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It
was then he learned that he was in a detachment of the Rangers. There were many soldiers,
hundreds of them were training. He was also ordered to clean inside the barracks. In one of the
rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the
University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home and be with her
parents. During the day, her chains were removed and she was made to do the laundry.36

After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other
captives, Karen Empeño and Manuel Merino, arrived. Karen and Manuel were put in the room with
"Allan" whose name they later came to know as Donald Caigas, called "master" or "commander" by
his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At
times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their
chains were removed, but were put back on at night. They were threatened that if they escaped,
their families would all be killed.37

On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should
be thankful they were still alive and should continue along their "renewed life." Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were brought back to
Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond
was instructed to continue using the name "Oscar" and holding himself out as a military trainee. He
got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated in
his affidavit.38

On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a
camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed
in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there,
battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach
with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made
to clean, cook, and help in raising livestock.39

Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers
brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought
to Barangay Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin.
The soldiers said he was killed because he had a son who was a member of the NPA and he
coddled NPA members in his house.40 Another time, in another "Operation Lubog," Raymond was
brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the old man
of the house who was sick was there. They spared him and killed only his son right before
Raymond's eyes.41

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was
in charge of the house. Like in Limay, the five detainees were made to do errands and chores. They
stayed in Zambales from May 8 or 9, 2007 until June 2007.42

In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel
were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed
and experienced in the camp, viz:

Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na
inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man
kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay ng
isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito'y
sinunog. Masansang ang amoy.

Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo
mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang
hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.

Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng
kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at
binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong
isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.

Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga
bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan
nakita kong mayroong sinilaban, at napakamasangsang ang amoy.

May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa
akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.

xxx xxx xxx

Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan.
Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig
ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw

pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.

Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni
Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si
Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay
magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise
poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he
would take care of the food of their family. They were also told that they could farm a small plot
adjoining his land and sell their produce. They were no longer put in chains and were instructed to
use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as
cousins from Rizal, Laguna.44

Respondents started to plan their escape. They could see the highway from where they stayed.
They helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved
their earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could
get a cellular phone as he wanted to exchange text messages with a girl who lived nearby. A phone
was pawned to him, but he kept it first and did not use it. They earned some more until they had
saved Php1,400.00 between them.

There were four houses in the compound. Raymond and Reynaldo were housed in one of them
while their guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the
guards. Respondents' house did not have electricity. They used a lamp. There was no television, but
they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking session.
At about 1:00 a.m., Raymond turned up the volume of the radio. When none of the guards awoke
and took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind their
sleeping guards and barking dogs. They boarded a bus bound for Manila and were thus freed from
captivity.45

Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they
related to matters they witnessed together. Reynaldo added that when they were taken from their
house on February 14, 2006, he saw the faces of his abductors before he was blindfolded with his
shirt. He also named the soldiers he got acquainted with in the 18 months he was detained. When
Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told
that they were indeed members of the NPA because Raymond escaped. With a .45 caliber pistol,
Reynaldo was hit on the back and punched in the face until he could no longer bear the pain.

At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was
separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of
Kapitan, a friend of Hilario, in a mountainous area. He was instructed to use the name "Rodel" and to
represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along
Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and
made to wait in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where
Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario drove a black and red
vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove the blindfold once
outside the province. In one of their trips, they passed by Fort Magsaysay and Camp Tecson where
Reynaldo saw the sign board, "Welcome to Camp Tecson."46

Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo.
Dr. Molino specialized in forensic medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly cases where torture was
involved. He was requested by an NGO to conduct medical examinations on the respondents after
their escape. He first asked them about their ordeal, then proceeded with the physical examination.
His findings showed that the scars borne by respondents were consistent with their account of
physical injuries inflicted upon them. The examination was conducted on August 15, 2007, two days
after respondents' escape, and the results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the
examination.47
Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with
the October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:

13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly
abducted, detained, held incommunicado, disappeared or under the custody by the military.
This is a settled issue laid to rest in the habeas corpus case filed in their behalf by
petitioners' parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt.
Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito
Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes
Esperon, in his capacity as the Commanding General of the Philippine Army, and members
of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti
dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the writ... On July 4, 2006, the Court of Appeals
dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan,
then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to
establish their personal involvement in the taking of the Manalo brothers. In a Decision dated
June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence
establishing his involvement in any capacity in the disappearance of the Manalo brothers,
although it held that the remaining respondents were illegally detaining the Manalo brothers
and ordered them to release the latter.48

Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner)
Secretary of National Defense, which attested that he assumed office only on August 8, 2007 and
was thus unaware of the Manalo brothers' alleged abduction. He also claimed that:

7. The Secretary of National Defense does not engage in actual military directional
operations, neither does he undertake command directions of the AFP units in the field, nor
in any way micromanage the AFP operations. The principal responsibility of the Secretary of
National Defense is focused in providing strategic policy direction to the Department
(bureaus and agencies) including the Armed Forces of the Philippines;

8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this
case, I have directed the Chief of Staff, AFP to institute immediate action in compliance with
Section 9(d) of the Amparo Rule and to submit report of such compliance... Likewise, in a
Memorandum Directive also dated October 31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a competent court against any members of the
AFP:

(1) to verify the identity of the aggrieved party;

(2) to recover and preserve evidence related to the death or disappearance of the
person identified in the petition which may aid in the prosecution of the person or
persons responsible;

(3) to identify witnesses and obtain statements from them concerning the death or
disappearance;
 (4) to determine the cause, manner, location and time of death or disappearance as
well as any pattern or practice that may have brought about the death or
disappearance;

(5) to identify and apprehend the person or persons involved in the death or
disappearance; and

(6) to bring the suspected offenders before a competent court.49

Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the
Writ, attesting that he received the above directive of therein respondent Secretary of National
Defense and that acting on this directive, he did the following:

3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of the petitioners.

3.2. I have caused the immediate investigation and submission of the result thereof to Higher
headquarters and/or direct the immediate conduct of the investigation on the matter by the
concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to the
Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB
PA). A Copy of the Radio Message is attached as ANNEX "3" of this Affidavit.

3.3. We undertake to provide result of the investigations conducted or to be conducted by the

concerned unit relative to the circumstances of the alleged disappearance of the persons in
whose favor the Writ of Amparohas been sought for as soon as the same has been furnished
Higher headquarters.

3.4. A parallel investigation has been directed to the same units relative to another Petition
for the Writ of Amparo (G.R. No. 179994) filed at the instance of relatives of a certain
Cadapan and Empeño pending before the Supreme Court.

3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish
the surrounding circumstances of the disappearances of the petitioners and to bring those
responsible, including any military personnel if shown to have participated or had complicity
in the commission of the complained acts, to the bar of justice, when warranted by the
findings and the competent evidence that may be gathered in the process.50

Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA,
earlier filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeño and
Merino, which averred among others, viz:

10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion
detachment as detention area, I immediately went to the 24th IB detachment in Limay,
Bataan and found no untoward incidents in the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeño and Manuel Merino being held captive;

11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay,
Bataan;
 12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine
National Police, Limay, Bataan regarding the alleged detentions or deaths and were
informed that none was reported to their good office;

13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan,
Karen Empeño and Manuel Merino were detained. As per the inquiry, however, no such
beachhouse was used as a detention place found to have been used by armed men to
detain Cadapan, Empeño and Merino.51

It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen
Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for the submission of the Return and would be
subsequently submitted.52

Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez,
Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan,
Pampanga, Tarlac and a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry
Division.54

On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry
Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged
abduction of the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz;
CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA
Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to
determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular investigation was initiated not by a complaint as was the
usual procedure, but because the Commanding General saw news about the abduction of the
Manalo brothers on the television, and he was concerned about what was happening within his
territorial jurisdiction.58

Jimenez summoned all six implicated persons for the purpose of having them execute sworn
statements and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in
the morning and finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo
Lingad, took the individual sworn statements of all six persons on that day. There were no other
sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned
and investigated61 as according to Jimenez, the directive to him was only to investigate the six
persons.62

Jimenez was beside Lingad when the latter took the statements.63 The six persons were not known
to Jimenez as it was in fact his first time to meet them.64 During the entire time that he was beside
Lingad, a subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a single
question to the six persons.65

Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and
Rudy Mendoza had to come back the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified that the two signed on May 30,
2006, but the jurats of their statements indicated that they were signed on May 29, 2006.66 When the
Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He
began writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.67 He then gave his
report to the Office of the Chief of Personnel.68

As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence,
the report is herein substantially quoted:

III. BACKGROUND OF THE CASE

4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who
were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a case for Abduction in the
civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela
Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).

a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit
"B") states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church located nearby his residence, together with some
neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo
Manalo. As to the allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that those who abducted the
Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any
participation or involvement on the abduction of said victims.

b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @
KA BESTRE of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he
claims that on February 14, 2006, he was one of those working at the concrete chapel being
constructed nearby his residence. He claims further that he just came only to know about the
incident on other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan.
That subject CAA vehemently denied any participation about the incident and claimed that
they only implicated him because he is a member of the CAFGU.

c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O")
states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member
of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was very much
aware about the background of the two (2) brothers Raymond and Reynaldo as active
supporters of the CPP NPA in their Brgy. and he also knew their elder brother "KUMANDER
BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that on 14 February
2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he
learned only about the incident when he arrived home in their place. He claims further that
the only reason why they implicated him was due to the fact that his mother has filed a
criminal charge against their brother Rolando Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for that reason they implicated him in support of their
brother. Subject CAA vehemently denied any involvement on the abduction of said Manalo
brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states
that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and
he knew them since childhood. Being one of the accused, he claims that on 14 February
2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was
being informed only about the incident lately and he was not aware of any reason why the
two (2) brothers were being abducted by alleged members of the military and CAFGU. The
only reason he knows why they implicated him was because there are those people who are
angry with their family particularly victims of summary execution (killing) done by their brother
@ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their
brother @ KA BESTRE who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the abduction of the Manalo brothers.

e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states
that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a
farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims further
that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA
BESTRE is an NPA leader. Being one of the accused, he claims that on 14 February 2006,
he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan.
That he vehemently denied any participation of the alleged abduction of the two (2) brothers
and learned only about the incident when rumors reached him by his barrio mates. He claims
that his implication is merely fabricated because of his relationship to Roman and Maximo
who are his brothers.

f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G")
states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan,
the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato Detachment, San
Miguel, Bulacan. He claims that he knew very well the brothers Raymond and Reynaldo
Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged
further that they are active supporters or sympathizers of the CPP/NPA and whose elder
brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being
one of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their
concrete chapel in their place and he learned only about the incident which is the abduction
of Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo
Cunanan informed him about the matter. He claims further that he is truly innocent of the
allegation against him as being one of the abductors and he considers everything fabricated
in order to destroy his name that remains loyal to his service to the government as a CAA
member.

IV. DISCUSSION

5. Based on the foregoing statements of respondents in this particular case, the proof of
linking them to the alleged abduction and disappearance of Raymond and Reynaldo Manalo
that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, is unsubstantiated. Their alleged involvement theretofore to that incident is
considered doubtful, hence, no basis to indict them as charged in this investigation.

Though there are previous grudges between each families (sic) in the past to quote: the
killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo,
this will not suffice to establish a fact that they were the ones who did the abduction as a
form of revenge. As it was also stated in the testimony of other accused claiming that the
 Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean,
however, that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGU's, they ought to be vigilant in protecting their village
from any intervention by the leftist group, hence inside their village, they were fully aware of
the activities of Raymond and Reynaldo Manalo in so far as their connection with the
CPP/NPA is concerned.

V. CONCLUSION

6. Premises considered surrounding this case shows that the alleged charges of abduction
committed by the above named respondents has not been established in this investigation.
Hence, it lacks merit to indict them for any administrative punishment and/or criminal liability.
It is therefore concluded that they are innocent of the charge.

VI. RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated
from the case.

8. Upon approval, this case can be dropped and closed.69

In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing
evidence and assail the December 26, 2007 Decision on the following grounds, viz:

I.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND

GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.

II.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING

RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL
REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR
CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN
WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka
ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE
COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE A LIST OF
MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM
FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70

The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that
resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced
Disappearances sponsored by the Court on July 16-17, 2007. The Summit was "envisioned to
provide a broad and fact-based perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and social spectrum, as well
as all the stakeholders in the justice system"72 participated in mapping out ways to resolve the crisis.

On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of
extralegal killing and enforced disappearances."73 It was an exercise for the first time of the Court's
expanded power to promulgate rules to protect our people's constitutional rights, which made its
maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law
regime.74 As the Amparo Rule was intended to address the intractable problem of "extralegal killings"
and "enforced disappearances," its coverage, in its present form, is confined to these two instances
or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings."75 On the other hand, "enforced disappearances"
are "attended by the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation of liberty which places such persons
outside the protection of law."76

The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837,
de Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S. appealed to many Mexican jurists.78 One of
them, Manuel Crescencio Rejón, drafted a constitutional provision for his native state,
Yucatan,79 which granted judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz:

The federal courts shall protect any inhabitant of the Republic in the exercise and
preservation of those rights granted to him by this Constitution and by laws enacted pursuant
hereto, against attacks by the Legislative and Executive powers of the federal or state
governments, limiting themselves to granting protection in the specific case in litigation,
making no general declaration concerning the statute or regulation that motivated the
violation.80

Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing,
the judge determines that a constitutional right of the petitioner is being violated, he orders the
official, or the official's superiors, to cease the violation and to take the necessary measures to
restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the limitations on judicial power characteristic
of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by
protecting individual rights in particular cases, but prevents them from using this power to make law
for the entire nation.82

The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various
forms, in response to the particular needs of each country.83 It became, in the words of a justice of
the Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the
world's legal heritage that institution which, as a shield of human dignity, her own painful history
conceived."84 What began as a protection against acts or omissions of public authorities in violation
of constitutional rights later evolved for several purposes: (1) Amparo libertad for the protection of
personal freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial
review of the constitutionality of statutes; (3) Amparo casacion for the judicial review of the
constitutionality and legality of a judicial decision; (4) Amparo administrativo for the judicial review of
administrative actions; and (5) Amparo agrario for the protection of peasants' rights derived from the
agrarian reform process.85

In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to
protect against human rights abuses especially committed in countries under military juntas. In
general, these countries adopted an all-encompassing writ to protect the whole gamut of
constitutional rights, including socio-economic rights.86 Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some
constitutional guarantees or fundamental rights.87

In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo,
several of the above Amparo protections are guaranteed by our charter. The second paragraph of
Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial
power "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 Clause
accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo
casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas
corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring of the U.S.
common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v.
Madison.89

While constitutional rights can be protected under the Grave Abuse Clause through remedies of
injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under
Rule 102,90 these remedies may not be adequate to address the pestering problem of extralegal
killings and enforced disappearances. However, with the swiftness required to resolve a petition for a
writ of Amparo through summary proceedings and the availability of appropriate interim and
permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions
- borne out of the Latin American and Philippine experience of human rights abuses - offers a better
remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides
rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require full and
exhaustive proceedings.91

The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in
the commission of these offenses; it is curative in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run,
the goal of both the preventive and curative roles is to deter the further commission of extralegal
killings and enforced disappearances.

In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the
respondents of their right to liberty and other basic rights on August 23, 2007,93 prior to the
promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody
Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the
Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have
their petition treated as an Amparo petition as it would be more effective and suitable to the
circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in
disputing the Decision of the Court of Appeals states, viz:

The Court of Appeals seriously and grievously erred in believing and giving full faith and
credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and
self-serving affidavit/testimony of herein respondent Raymond Manalo.94

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause
of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof
required.

Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:

Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.
(emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:

Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish
their claims by substantial evidence.

xxx xxx xxx

Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.95

After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that
respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on
August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless
candid details of respondents' harrowing experience and tenacious will to escape, captured through
his different senses and etched in his memory. A few examples are the following: "Sumilip ako sa
isang haligi ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang
tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis
ang bakas."98 "Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang
mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell phone; sabi
ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar."100

We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's
affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently identified by the
petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond
recalled that the six armed men who barged into his house through the rear door were
military men based on their attire of fatigue pants and army boots, and the CAFGU
auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la
Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts
during the abduction. Raymond was sure that three of the six military men were Ganata, who
headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents
of their long captivity, as narrated by the petitioners, validated their assertion of the
participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU
auxiliaries.

We are convinced, too, that the reason for the abduction was the suspicion that the
petitioners were either members or sympathizers of the NPA, considering that the abductors
were looking for Ka Bestre, who turned out to be Rolando, the brother of petitioners.

The efforts exerted by the Military Command to look into the abduction were, at best, merely
superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on
the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due
to the fact that the Provost Marshall could delve only into the participation of military
personnel, but even then the Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily investigated...

Gen. Palparan's participation in the abduction was also established. At the very least, he was
aware of the petitioners' captivity at the hands of men in uniform assigned to his command.
In fact, he or any other officer tendered no controversion to the firm claim of Raymond that
he (Gen. Palparan) met them in person in a safehouse in Bulacan and told them what he
wanted them and their parents to do or not to be doing. Gen. Palparan's direct and personal
role in the abduction might not have been shown but his knowledge of the dire situation of
the petitioners during their long captivity at the hands of military personnel under his
command bespoke of his indubitable command policy that unavoidably encouraged and not
merely tolerated the abduction of civilians without due process of law and without probable
cause.

In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices
Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal
Hilario had anything to do with the abduction or the detention. Hilario's involvement could
not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive
the van in which the petitioners were boarded and ferried following the abduction, did not
testify. (See the decision of the habeas proceedings at rollo, p. 52)

However, in this case, Raymond attested that Hilario drove the white L-300 van in which the
petitioners were brought away from their houses on February 14, 2006. Raymond also
attested that Hilario participated in subsequent incidents during the captivity of the
petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a
Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they
were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and
then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the
Revo, to an unfinished house inside the compound of Kapitan where they were kept for more
or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to
 face with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to
the house of the petitioners' parents, where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario
warned the parents that they would not again see their sons should they join any rallies to
denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four
Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan
conversed on the occasion when Gen. Palparan required Raymond to take the medicines for
his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that
Hilario had a direct hand in their torture.

It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other military
personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly
established.

xxx xxx xxx

As to the CAFGU auxiliaries, the habeas Court found them personally involved in the
abduction. We also do, for, indeed, the evidence of their participation is overwhelming.101

We reject the claim of petitioners that respondent Raymond Manalo's statements were not
corroborated by other independent and credible pieces of evidence.102 Raymond's affidavit and
testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and
medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the
physical injuries inflicted on respondents,103 also corroborate respondents' accounts of the torture
they endured while in detention. Respondent Raymond Manalo's familiarity with the facilities in Fort
Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be
the "Division Training Unit,"104 firms up respondents' story that they were detained for some time in
said military facility.

In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the
Commission considered similar evidence, among others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz
was kidnapped and tortured in early November 1989. The Commission's findings of fact were mostly
based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding
her ordeal.106 These statements were supported by her recognition of portions of the route they took
when she was being driven out of the military installation where she was detained.107 She was also
examined by a medical doctor whose findings showed that the 111 circular second degree burns on
her back and abrasions on her cheek coincided with her account of cigarette burning and torture she
suffered while in detention.108

With the secret nature of an enforced disappearance and the torture perpetrated on the victim during
detention, it logically holds that much of the information and evidence of the ordeal will come from
the victims themselves, and the veracity of their account will depend on their credibility and
candidness in their written and/or oral statements. Their statements can be corroborated by other
evidence such as physical evidence left by the torture they suffered or landmarks they can identify in
the places where they were detained. Where powerful military officers are implicated, the hesitation
of witnesses to surface and testify against them comes as no surprise.

We now come to the right of the respondents to the privilege of the writ of Amparo. There is no
quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has
now passed as they have escaped from captivity and surfaced. But while respondents admit that
they are no longer in detention and are physically free, they assert that they are not "free in every
sense of the word"109 as their "movements continue to be restricted for fear that people they have
named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and
have not been held accountable in any way. These people are directly connected to the Armed
Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty
and security."110 (emphasis supplied) Respondents claim that they are under threat of being once
again abducted, kept captive or even killed, which constitute a direct violation of their right to
security of person.111

Elaborating on the "right to security, in general," respondents point out that this right is "often
associated with liberty;" it is also seen as an "expansion of rights based on the prohibition against
torture and cruel and unusual punishment." Conceding that there is no right to security expressly
mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from
torture and from incommunicado detention and solitary detention places112 fall under the general
coverage of the right to security of person under the writ of Amparo." They submit that the Court
ought to give an expansive recognition of the right to security of person in view of the State Policy
under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of every
human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation
of the right to security of person, respondents cite the teaching in Moncupa v. Enrile113 that "the
right to liberty may be made more meaningful only if there is no undue restraint by the State on the
exercise of that liberty"114 such as a requirement to "report under unreasonable restrictions that
amounted to a deprivation of liberty"115 or being put under "monitoring and surveillance."116

In sum, respondents assert that their cause of action consists in the threat to their right to life and
liberty, and a violation of their right to security.

Let us put this right to security under the lens to determine if it has indeed been violated as
respondents assert. The right to security or the right to security of person finds a textual hook
in Article III, Section 2 of the 1987 Constitution which provides, viz:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge...

At the core of this guarantee is the immunity of one's person, including the extensions of his/her
person - houses, papers, and effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more importantly, protects the privacy and
sanctity of the person himself.117 The purpose of this provision was enunciated by the Court
in People v. CFI of Rizal, Branch IX, Quezon City, viz: 118

The purpose of the constitutional guarantee against unreasonable searches and seizures is
to prevent violations of private security in person and property and unlawful invasion of the
security of the home by officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858;
Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the
dignity and happiness and to the peace and security of every individual, whether it be
of home or of persons and correspondence. (Tañada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right
against unreasonable searches and seizures must be deemed absolute as nothing is
closer to a man's soul than the serenity of his privacy and the assurance of his
 personal security. Any interference allowable can only be for the best causes and
reasons.119 (emphases supplied)

While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 -
upon which the enjoyment of all other rights is preconditioned - the right to security of person is a
guarantee of the secure quality of this life, viz: "The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it
is a life lived with the assurance that the government he established and consented to, will protect
the security of his person and property. The ideal of security in life and property... pervades the
whole history of man. It touches every aspect of man's existence."122 In a broad sense, the right to
security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs,
his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life
while existing, and it is invaded not only by a deprivation of life but also of those things which are
necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the
individual."123

A closer look at the right to security of person would yield various permutations of the exercise of this
right.

First, the right to security of person is "freedom from fear." In its "whereas" clauses,
the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars
postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual
international human right.124 It is the "right to security of person" as the word "security" itself means
"freedom from fear."125 Article 3 of the UDHR provides, viz:

Everyone has the right to life, liberty and security of person.126 (emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil
and Political Rights (ICCPR) also provides for the right to security of person, viz:

1. Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law. (emphasis supplied)

The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the
rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from
being baseless to well-founded as people react differently. The degree of fear can vary from one
person to another with the variation of the prolificacy of their imagination, strength of character or
past experience with the stimulus. Thus, in the Amparo context, it is more correct to say that the
"right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with
violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision.127

Second, the right to security of person is a guarantee of bodily and psychological integrity or
security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body
cannot be searched or invaded without a search warrant.128 Physical injuries inflicted in the context
of extralegal killings and enforced disappearances constitute more than a search or invasion of the
body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the
degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law,
physical injuries constitute a crime against persons because they are an affront to the bodily integrity
or security of a person.129

Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to
vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it
constitutes an invasion of both bodily and psychological integrity as the dignity of the human person
includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:

(2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free
will shall be used against him (any person under investigation for the commission of an
offense). Secret detention places, solitary, incommunicado or other similar forms of detention
are prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not
involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the
sense of "freedom from threat" as afore-discussed.

Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation
for the commission of an offense. Victims of enforced disappearances who are not even under such
investigation should all the more be protected from these degradations.

An overture to an interpretation of the right to security of person as a right against torture was made
by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this
case, the claimant, who was lawfully detained, alleged that the state authorities had physically
abused him in prison, thereby violating his right to security of person. Article 5(1) of the European
Convention on Human Rights provides, viz: "Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law ..." (emphases supplied) Article 3, on the other hand, provides that "(n)o
one shall be subjected to torture or to inhuman or degrading treatment or punishment." Although the
application failed on the facts as the alleged ill-treatment was found baseless, the ECHR relied
heavily on the concept of security in holding, viz:

...the applicant did not bring his allegations to the attention of domestic authorities at the time
when they could reasonably have been expected to take measures in order to ensure
his security and to investigate the circumstances in question.

xxx xxx xxx

... the authorities failed to ensure his security in custody or to comply with the procedural
obligation under Art.3 to conduct an effective investigation into his allegations.131 (emphasis
supplied)

The U.N. Committee on the Elimination of Discrimination against Women has also made a statement
that the protection of the bodily integrity of women may also be related to the right to security and
liberty, viz:

...gender-based violence which impairs or nullifies the enjoyment by women of human rights
and fundamental freedoms under general international law or under specific human rights
conventions is discrimination within the meaning of article 1 of the Convention (on the
 Elimination of All Forms of Discrimination Against Women). These rights and freedoms
include . . . the right to liberty and security of person.132

Third, the right to security of person is a guarantee of protection of one's rights by the
government. In the context of the writ of Amparo, this right is built into the guarantees of the right
to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of
person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III,
Section 2. The right to security of person in this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution.133 As
the government is the chief guarantor of order and security, the Constitutional guarantee of the rights
to life, liberty and security of person is rendered ineffective if government does not afford protection
to these rights especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection to victims of extralegal
killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders
to the bar of justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case,134viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government.135

This third sense of the right to security of person as a guarantee of government protection has been
interpreted by the United Nations' Human Rights Committee136 in not a few cases involving Article
9137 of the ICCPR. While the right to security of person appears in conjunction with the right to liberty
under Article 9, the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily be a deprivation of
liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,138 a case
involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social
views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz:

The first sentence of article 9 does not stand as a separate paragraph. Its location as a part
of paragraph one could lead to the view that the right to security arises only in the context of
arrest and detention. The travaux préparatoires indicate that the discussions of the first
sentence did indeed focus on matters dealt with in the other provisions of article 9. The
Universal Declaration of Human Rights, in article 3, refers to the right to life, the right
to liberty and the right to security of the person. These elements have been dealt with
in separate clauses in the Covenant. Although in the Covenant the only reference to
the right of security of person is to be found in article 9, there is no evidence that it
was intended to narrow the concept of the right to security only to situations of formal
deprivation of liberty. At the same time, States parties have undertaken to guarantee
the rights enshrined in the Covenant. It cannot be the case that, as a matter of law,
States can ignore known threats to the life of persons under their jurisdiction, just
because that he or she is not arrested or otherwise detained. States parties are under
an obligation to take reasonable and appropriate measures to protect them. An
interpretation of article 9 which would allow a State party to ignore threats to the
personal security of non-detained persons within its jurisdiction would render totally
ineffective the guarantees of the Covenant.139(emphasis supplied)

The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and
prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements
following his release from detention. In a catena of cases, the ruling of the Committee was of a
similar import: Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation and
persecution of opponents of the ruling party in that state; Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a supporter of democratic reform in Zaire; Dias v.
Angola,143 involving the murder of the complainant's partner and the harassment he
(complainant) suffered because of his investigation of the murder; and Chongwe v.
Zambia,144 involving an assassination attempt on the chairman of an opposition alliance.

Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not
only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the
State to afford protection of the right to liberty.145 The ECHR interpreted the "right to security of
person" under Article 5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had been arrested by
state authorities and had not been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant suggested that this was a
violation of her son's right to security of person. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the very
purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed
control over that individual it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take
effective measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been taken
into custody and has not been seen since.147 (emphasis supplied)

Applying the foregoing concept of the right to security of person to the case at bar, we now
determine whether there is a continuing violation of respondents' right to security.

First, the violation of the right to security as freedom from threat to respondents' life, liberty
and security.

While respondents were detained, they were threatened that if they escaped, their families, including
them, would be killed. In Raymond's narration, he was tortured and poured with gasoline after he
was caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam,"
who wanted to see him before he was killed, spared him.

This time, respondents have finally escaped. The condition of the threat to be killed has come to
pass. It should be stressed that they are now free from captivity not because they were released by
virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the
end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay,
Bataan, respondents' captors even told them that they were still deciding whether they should be
executed. Respondent Raymond Manalo attested in his affidavit, viz:

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw

pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.148

The possibility of respondents being executed stared them in the eye while they were in detention.
With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced
and implicated specific officers in the military not only in their own abduction and torture, but also in
those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeño, and
Manuel Merino, among others.

Understandably, since their escape, respondents have been under concealment and protection by
private citizens because of the threat to their life, liberty and security. The threat vitiates their free will
as they are forced to limit their movements or activities.149 Precisely because respondents are being
shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to their life, liberty and security.
Nonetheless, the circumstances of respondents' abduction, detention, torture and escape
reasonably support a conclusion that there is an apparent threat that they will again be abducted,
tortured, and this time, even executed. These constitute threats to their liberty, security, and life,
actionable through a petition for a writ of Amparo.

Next, the violation of the right to security as protection by the government. Apart from the
failure of military elements to provide protection to respondents by themselves perpetrating the
abduction, detention, and torture, they also miserably failed in conducting an effective investigation
of respondents' abduction as revealed by the testimony and investigation report of petitioners' own
witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.

The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He
merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians
whom he met in the investigation for the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but he did not propound a single question to
ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test
the alibis given by the six implicated persons nor for the family or neighbors of the respondents.

In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive
dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the
AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court
against any members of the AFP, which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and
securing statements from them; determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons involved in the death or
disappearance; and bringing of the suspected offenders before a competent court.150 Petitioner AFP
Chief of Staff also submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he immediately caused
to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of
the alleged disappearance and the recent reappearance of the respondents, and undertook to
provide results of the investigations to respondents.151 To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the investigation which they now seek through
the instant petition for a writ of Amparo.

Under these circumstances, there is substantial evidence to warrant the conclusion that there is a
violation of respondents' right to security as a guarantee of protection by the government.

In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective investigation and protection on
the part of the military.

Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.
First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file with the court.

Second, that petitioners confirm in writing the present places of official assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas.

Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records
and charts, and reports of any treatment given or recommended and medicines prescribed, if
any, to the Manalo brothers, to include a list of medical personnel (military and civilian) who
attended to them from February 14, 2006 until August 12, 2007.

With respect to the first and second reliefs, petitioners argue that the production order sought by
respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites
for the issuance of a search warrant must be complied with prior to the grant of the production order,
namely: (1) the application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there exists probable
cause with one specific offense; and (4) the probable cause must be personally determined by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce.152 In the case at bar, however, petitioners point out that other than the bare, self-serving
and vague allegations made by respondent Raymond Manalo in his unverified declaration and
affidavit, the documents respondents seek to be produced are only mentioned generally by name,
with no other supporting details. They also argue that the relevancy of the documents to be
produced must be apparent, but this is not true in the present case as the involvement of petitioners
in the abduction has not been shown.

Petitioners' arguments do not hold water. The production order under the Amparo Rule should not
be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand of the people such
as respondents.

Instead, the Amparo production order may be likened to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order.

Upon motion of any party showing good cause therefor, the court in which an action
is pending may (a) order any party to produce and permit the inspection and copying
or photographing, by or on behalf of the moving party, of any designated documents,
papers, books of accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control...

In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of
Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the
books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the
subpoena on the ground that it violated the search and seizure clause. The Court struck down the
argument and held that the subpoena pertained to a civil procedure that "cannot be identified or
confused with unreasonable searches prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the
investigations conducted or to be conducted by the concerned unit relative to the circumstances of
the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as
soon as the same has been furnished Higher headquarters."

With respect to the second and third reliefs, petitioners assert that the disclosure of the present
places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the
submission of a list of medical personnel, is irrelevant, improper, immaterial, and unnecessary in the
resolution of the petition for a writ of Amparo. They add that it will unnecessarily compromise and
jeopardize the exercise of official functions and duties of military officers and even unwittingly and
unnecessarily expose them to threat of personal injury or even death.

On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind their
abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of
territorial jurisdiction. Such disclosure would also help ensure that these military officers can be
served with notices and court processes in relation to any investigation and action for violation of the
respondents' rights. The list of medical personnel is also relevant in securing information to create
the medical history of respondents and make appropriate medical interventions, when applicable
and necessary.

In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed
out from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that
gives voice to preys of silent guns and prisoners behind secret walls.

WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of
Appeals dated December 26, 2007 is affirmed.

SO ORDERED.

REYNATO S. PUNO
Chief Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice
 PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

Echegaray v Secretary of Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 132601 January 19, 1999

LEO ECHEGARAY, petitioner,

vs.
SECRETARY OF JUSTICE, ET AL., respondents.

RESOLUTION

PUNO, J.:
For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this
Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental
Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that:

6. The Decision in this case having become final and executory, its execution enters the
exclusive ambit of authority of the executive authority. The issuance of the TRO may
be construed as trenching on that sphere of executive authority;
7. The issuance of the temporary restraining order . . . creates dangerous precedent as
there will never be an end to litigation because there is always a possibility that
Congress may repeal a law.
8. Congress had earlier deliberated extensively on the death penalty bill. To be certain,
whatever question may now be raised on the Death Penalty Law before the present
Congress within the 6-month period given by this Honorable Court had in all
probability been fully debated upon . . .
9. Under the time honored maxim lex futuro, judex praeterito, the law looks forward
while the judge looks at the past, . . . the Honorable Court in issuing the TRO has
transcended its power of judicial review.
10. At this moment, certain circumstances/supervening events transpired to the effect
that the repeal or modification of the law imposing death penalty has become nil, to
wit:

d. The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.
e. The resolution of Congressman Golez, et al., that they are against the repeal
of the law;
f. The fact that Senator Roco's resolution to repeal the law only bears his
signature and that of Senator Pimentel.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a
copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution
expressing the sense of the House of Representative to reject any move to review Republic Act No.
7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and
the Executive Department of the position of the House of Representative on this matter, and urging
the President to exhaust all means under the law to immediately implement the death penalty law."
The Resolution was concurred in by one hundred thirteen (113) congressman.

In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of
judicial power and duty and does not trench on executive powers nor on congressional prerogatives;
(2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not
lose jurisdiction to address incidental matters involved or arising from the petition; (4) public
respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that
the law on capital punishment will not be repealed or modified until Congress convenes and
considers all the various resolutions and bills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not
incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic
review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601,
where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and
regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999
merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and
Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to
intervene in the case at bar, let alone the fact that the interest of the State is properly represented by
the Solicitor General.

We shall now resolve the basic issues raised by the public respondents.

First. We do not agree with the sweeping submission of the public respondents that this Court lost its
jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner.
Obviously, public respondents are invoking the rule that final judgments can no longer be altered in
accord with the principle that "it is just as important that there should be a place to end as there
should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its
final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of
this Court that became final. These metes and bounds are clearly spelled out in the Entry of
Judgment in this case, viz:

ENTRY OF JUDGMENT

This is to certify that on October 12, 1998 a decision rendered in the above-entitled
case was filed in this Office, the dispositive part of which reads as follows:

WHEREFORE, the petition is DENIED insofar as petitioner seeks to

declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19 of the
Rules and Regulations to Implement Republic Act No. 8177 are
concerned, which are hereby declared INVALID because (a) Section
17 contravenes Article 83 of the Revised Penal Code, as amended by
Section 25 of Republic Act No. 7659; and (b) Section 19 fails to
provide for review and approval of the Lethal Injection Manual by the
Secretary of Justice, and unjustifiably makes the manual confidential,
hence unavailable to interested parties including the accused/convict
and counsel. Respondents are hereby enjoined from enforcing and
implementing Republic Act No. 8177 until the aforesaid Sections 17
and 19 of the Rules and Regulations to Implement Republic Act No.
8177 are appropriately amended, revised and/or corrected in
accordance with this Decision.

SO ORDERED.

and that the same has, on November 6, 1988 become final and executory and is
hereby recorded in the Book of Entries of Judgment.

Manila, Philippine.

Clerk
of
Court

By:
(SGD)
TERES
 ITA G.
DIMAI
SIP

Acting
Chief

Judicial
Record
s Office

The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable
Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the
Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On
October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has
caused the publication of the said Amended Rules and Regulations as required by the
Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable
mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules
and Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced
and implemented until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177
are amended. It is also daylight clear that this Decision was not altered a whit by this Court. Contrary
to the submission of the Solicitor General, the rule on finality of judgment cannot divest this Court of
its jurisdiction to execute and enforce the same judgment. Retired Justice Camilo Quiason
synthesized the well established jurisprudence on this issue as
follows: 2

xxx xxx xxx

the finality of a judgment does not mean that the Court has lost all its powers nor the
case. By the finality of the judgment, what the court loses is its jurisdiction to amend,
modify or alter the same. Even after the judgment has become final the court retains
its jurisdiction to execute and enforce it. 3 There is a difference between the
jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify
or alter the same. The former continues even after the judgment has become final for
the purpose of enforcement of judgment; the latter terminates when the judgment
becomes final. 4 . . . For after the judgment has become final facts and circumstances
may transpire which can render the execution unjust or impossible.5

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed
out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of
Prisons v. Judge of First Instance, 6 viz:

This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same cannot change or alter its
judgment, as its jurisdiction has terminated . . . When in cases of appeal or review
the cause has been returned thereto for execution, in the event that the judgment
has been affirmed, it performs a ministerial duty in issuing the proper order. But it
does not follow from this cessation of functions on the part of the court with reference
to the ending of the cause that the judicial authority terminates by having then
passed completely to the Executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
 absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out of the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible that assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the (court)
has performed its ministerial duty of ordering the execution . . . and its part is ended,
if however a circumstance arises that ought to delay the execution, and there is an
imperative duty to investigate the emergency and to order a postponement. Then the
question arises as to whom the application for postponing the execution ought to be
addressed while the circumstances is under investigation and so to who has
jurisdiction to make the investigation.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be
the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one
Supreme Court and in such lower courts as may be established by law. To be sure, the important
part of a litigation, whether civil or criminal, is the process of execution of decisions where
supervening events may change the circumstance of the parties and compel courts to intervene and
adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening
contingencies that courts have been conceded the inherent and necessary power of control of its
processes and orders to make them conformable to law and justice. 8 For this purpose, Section 6 of
Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary
writs, processes and other means necessary to carry it into effect may be employed by such court or
officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted
which appears conformable to the spirit of said law or rules." It bears repeating that what the Court
restrained temporarily is the execution of its own Decision to give it reasonable time to check its
fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to
popular misimpression, did not restrain the effectivity of a law enacted by Congress. 1âwphi1.nêt

The more disquieting dimension of the submission of the public respondents that this Court has no
jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the
judiciary. Since the implant of republicanism in our soil, our courts have been conceded the
jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court
promulgated rules concerning pleading, practice and procedure which, among others, spelled out
the rules on execution of judgments. These rules are all predicated on the assumption that courts
have the inherent, necessary and incidental power to control and supervise the process of execution
of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases.
Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate
rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance
its independence, for in the words of Justice Isagani Cruz "without independence and integrity,
courts will lose that popular trust so essential to the maintenance of their vigor as champions of
justice." 9 Hence, our Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning
pleading, practice and procedure was granted but it appeared to be co-existent with legislative
power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section
13, Article VIII provides:

Sec.13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice and procedure in all courts, and the admission to the practice of
law. Said rules shall be uniform for all courts of the same grade and shall not
diminish, increase, or modify substantive rights. The existing laws on pleading,
practice and procedure are hereby repealed as statutes, and are declared Rules of
Court, subject to the power of the Supreme Court to alter and modify the same. The
Congress have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re
Cunanan 10Congress in the exercise of its power to amend rules of the Supreme Court regarding
admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a
passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and
71% in the 1952 bar examinations. This Court struck down the law as unconstitutional. In
his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a legislation; it is a judgment
— a judgment promulgated by this Court during the aforecited years affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for justifiable
reasons, it is no less certain that only this Court, and not the legislative nor executive department,
that may do so. Any attempt on the part of these department would be a clear usurpation of its
function, as is the case with the law in question." 12The venerable jurist further ruled: "It is obvious,
therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this
Court, and the law passed by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court
qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and
procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the
Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:

xxx xxx xxx

Sec.5. The Supreme Court shall have the following powers.

xxx xxx xxx

(5) Promulgate rules concerning pleading, practice,

and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which,
however, may be repealed, altered, or supplemented
by the Batasang Pambansa. Such rules shall provide
a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of
 the same grade, and shall not diminish, increase, or
modify substantive rights.

Well worth noting is that the 1973 Constitution further strengthened the independence of the
judiciary by giving to it the additional power to promulgate rules governing the integration of the
Bar. 13

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:

xxx xxx xxx

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning the protection and

enforcement of constitutional rights, pleading, practice
and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the
Supreme Court.

The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court
was also granted for the first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen
the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has
no jurisdiction to control the process of execution of its decisions, a power conceded to it and which
it has exercised since time immemorial.

To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to
control and supervise the implementation of its decision in the case at bar. As aforestated, our
Decision became final and executory on November 6, 1998. The records reveal that after November
6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of
this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable
Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the
Warrant of Execution dated November 17, 1998 bearing the designated execution day of death
convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the
execution date fixed by such trial court to the public when requested." The relevant portions of the
Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide
the appropriate relief" state:
 xxx xxx xxx

5. Instead of filing a comment on Judge Ponferrada's Manifestation

however, herein respondent is submitting the instant Manifestation
and Motion (a) to stress, inter alia, that the non-disclosure of the date
of execution deprives herein respondent of vital information
necessary for the exercise of his statutory powers, as well as renders
nugatory the constitutional guarantee that recognizes the people's
right to information of public concern, and (b) to ask this Honorable
Court to provide the appropriate relief.

6. The non-disclosure of the date of execution deprives herein

respondent of vital information necessary for the exercise of his
power of supervision and control over the Bureau of Corrections
pursuant to Section 39, Chapter 8, Book IV of the Administrative
Code of 1987, in relation to Title III, Book IV of such Administrative
Code, insofar as the enforcement of Republic Act No. 8177 and the
Amended Rules and Regulations to Implement Republic Act No.
8177 is concerned and for the discharge of the mandate of seeing to
it that laws and rules relative to the execution of sentence are
faithfully observed.

7. On the other hand, the willful omission to reveal the information

about the precise day of execution limits the exercise by the
President of executive clemency powers pursuant to Section 19,
Article VII (Executive Department) of the 1987 Philippine Constitution
and Article 81 of the Revised Penal Code, as amended, which
provides that the death sentence shall be carried out "without
prejudice to the exercise by the President of his executive powers at
all times." (Emphasis supplied) For instance, the President cannot
grant reprieve, i.e., postpone the execution of a sentence to a day
certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a
precise date to reckon with. The exercise of such clemency power, at
this time, might even work to the prejudice of the convict and defeat
the purpose of the Constitution and the applicable statute as when
the date at execution set by the President would be earlier than that
designated by the court.

8. Moreover, the deliberate non-disclosure of information about the

date of execution to herein respondent and the public violates Section
7, Article III (Bill of Rights) and Section 28, Article II (Declaration of
Principles and State Policies) of the 1987 Philippine Constitution
which read:

Sec. 7. The right of the people to information on matters of public

concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development shall, be afforded the citizen, subject to such
limitations as may beprovided by law.
 Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all
transactions involving public interest.

9. The "right to information" provision is self-executing. It supplies

"the rules by means of which the right to information may be enjoyed
(Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by
guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of the
Constitution without need for any ancillary act of the Legislature (Id.,
at p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared State policy
of full public disclosure of all transactions involving public interest
(Constitution, Art. II, Sec. 28). However, it cannot be overemphasized
that whatever limitation may be prescribed by the Legislature, the
right and the duty under Art. III, Sec. 7 have become operative and
enforceable by virtue of the adoption of the New Charter." (Decision
of the Supreme Court En Banc in Legaspi v. Civil Service
Commission, 150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner
Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his
client's right to due process and the public's right to information. The Solicitor General, as counsel for
public respondents, did not oppose petitioner's motion on the ground that this Court has no more
jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by
the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998.
There was not a whimper of protest from the public respondents and they are now estopped from
contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court
does not depend on the convenience of litigants.

II

Second. We likewise reject the public respondents' contention that the "decision in this case having
become final and executory, its execution enters the exclusive ambit of authority of the executive
department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an
executive function." 14 Public respondents cite as their authority for this proposition, Section 19,
Article VII of the Constitution which reads:

Except in cases of impeachment, or as otherwise provided in this Constitution, the

President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures after conviction by final judgment. He shall also have the power to grant
amnesty with the concurrence of a majority of all the members of the Congress.

The text and tone of this provision will not yield to the interpretation suggested by the public
respondents. The provision is simply the source of power of the President to grant reprieves,
commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also
provides the authority for the President to grant amnesty with the concurrence of a majority of all the
members of the Congress. The provision, however, cannot be interpreted as denying the power of
courts to control the enforcement of their decisions after their finality. In truth, an accused who has
been convicted by final judgment still possesses collateral rights and these rights can be claimed in
the appropriate courts. For instance, a death convict who become insane after his final conviction
cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally
assumed that due process of law will prevent the government from executing the death sentence
upon a person who is insane at the time of execution." 16 The suspension of such a death sentence is
undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve
though its effects is the same — the temporary suspension of the execution of the death convict. In
the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing
the penalty of death to life imprisonment. The effect of such an amendment is like that of
commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its
plenary power to amend laws be considered as a violation of the power of the President to commute
final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save
the life of a death convict do not exclude each other for the simple reason that there is no higher
right than the right to life. Indeed, in various States in the United States, laws have even been
enacted expressly granting courts the power to suspend execution of convicts and their
constitutionality has been upheld over arguments that they infringe upon the power of the President
to grant reprieves. For the public respondents therefore to contend that only the Executive can
protect the right to life of an accused after his final conviction is to violate the principle of co-equal
and coordinate powers of the three branches of our government.

III

Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its
proper perspective as it has been grievously distorted especially by those who make a living by
vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at
about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4,
the first working day of 1999; (b) that members of Congress had either sought for his executive
clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator
Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital
punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President
Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of
the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment,
and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding
review of the same law.

When the Very Urgent Motion was filed, the Court was already in its traditional recess and would
only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the
Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent
Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be
executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's
allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere
speculations or not. To the Court's majority, there were good reasons why the Court should not
immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that
petitioner's allegations were made in a pleading under oath and were widely publicized in the print
and broadcast media. It was also of judicial notice that the 11th Congress is a new Congress and
has no less than one hundred thirty (130) new members whose views on capital punishment are still
unexpressed. The present Congress is therefore different from the Congress that enacted the Death
Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's
minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify
petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was
impossible as Congress was not in session. Given these constraints, the Court's majority did not
rush to judgment but took an extremely cautious stance by temporarily restraining the execution of
petitioner. The suspension was temporary — "until June 15, 1999, coeval with the constitutional
duration of the present regular session of Congress, unless it sooner becomes certain that no repeal
or modification of the law is going to be made." The extreme caution taken by the Court was
compelled, among others, by the fear that any error of the Court in not stopping the execution of the
petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the
Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt
it needed the certainty that the legislature will not petitioner as alleged by his counsel. It was
believed that law and equitable considerations demand no less before allowing the State to take the
life of one its citizens.

The temporary restraining order of this Court has produced its desired result, i.e., the crystallization
of the issue whether Congress is disposed to review capital punishment. The public respondents,
thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that
Congress will repeal or amend the death penalty law. He names these supervening events as
follows:

xxx xxx xxx

d. The public pronouncement of President Estrada that he will veto any law imposing
the death penalty involving heinous crimes.
e. The resolution of Congressman Golez, et al., that they are against the repeal of the
law;
f. The fact that Senator Roco's resolution to repeal the law only bears his signature and
that of Senator Pimentel. 18

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House
Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of
the House of Representatives to reject any move to review R.A. No. 7659 which provided for the
reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of
the position of the House of Representative on this matter and urging the President to exhaust all
means under the law to immediately implement the death penalty law." The Golez resolution was
signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended
up 3 o'clock in the morning, the House of Representative with minor, the House of Representative
with minor amendments formally adopted the Golez resolution by an overwhelming vote. House
Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review
Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify
the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these
developments, the Court's TRO should now be lifted as it has served its legal and humanitarian
purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital
punishment had been the subject of endless discussion and will probably never be settled so long as
men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked,
the debate on the legal and moral predicates of capital punishment has been regrettably blurred by
emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and
righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of
epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse
of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty
of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice
Brennan reminds us ". . . it is the very purpose of the Constitution — and particularly the Bill of
Rights — to declare certain values transcendent, beyond the reach of temporary political
majorities." 20 Man has yet to invent a better hatchery of justice than the courts. It is a hatchery where
justice will bloom only when we can prevent the roots of reason to be blown away by the winds of
rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is
the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass
their litmus test only when they can be fair to him who is momentarily the most hated by society. 21

IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration
and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining
Order issued in its Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial
Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in
accordance with applicable provisions of law and the Rules of Court, without further delay.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima and
Pardo, JJ., concur.

Vitug and Panganiban, JJ., Please see Separate Opinion.

Buena and Gonzaga-Reyes, JJ., took no part.

Separate Opinions

VITUG, J., separate opinion;

Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it
prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of
my brethren on the Court, who hold similarly, have consistently expressed this stand in the
affirmance by the Court of death sentences imposed by Regional Trial Courts.

In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a
temporary restraining order ("TRO") because, among other things, of what had been stated to be
indications that Congress would re-examine the death penalty law. It was principally out of respect
and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly
minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.

The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment
convicting the accused or recall the imposition of the death penalty.

The doctrine has almost invariably been that after a decision becomes final and executory, nothing
else is further done except to see to its compliance since for the Court to adopt otherwise would be
to put no end to litigations The rule notwithstanding, the Court retains control over the case until the
full satisfaction of the final judgment conformably with established legal processes. Hence, the Court
has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry
out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and
executory judgments admits of settled exceptions. Concededly, the Court may, for instance,
suspend the execution of a final judgment when it becomes imperative in the higher interest of
justice or when supervening events warrant it.1 Certainly, this extraordinary relief cannot be denied
any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement
in Director of Prisons vs. Judge of First Instance of Cavite,2 should be instructive. Thus —

This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same has elapsed, the court can not
change or after its judgment, as its jurisdiction has terminated, functus est officio suo,
according to the classical phrase. When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having then passed
completely to the executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that, notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible the assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the Court of
First Instance has performed its ministerial duty of ordering the execution, functus est
officio suo, and its part is ended, if however a circumstance arises that ought to delay
the execution, there is an imperative duty to investigate the emergency and to order
a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the
President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or
modify the law that could benefit the convicted accused are not essentially preclusive of one another
nor constitutionally incompatible and may each be exercised within their respective spheres and
confines. Thus, the stay of execution issued by the Court would not prevent either the President from
exercising his pardoning power or Congress from enacting a measure that may be advantageous to
the adjudged offender.

The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999,
"coeval with the duration of the present regular session of Congress," if it "sooner becomes certain
that no repeal or modification of the law is going to be made." The "Urgent Motion for
Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain
circumstances/supervening events (have) transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any
chance for a timely3 re-examination by Congress of the death penalty law, then I can appreciate why
the majority of the Justices on the Court feel rightly bound even now to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most
thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for
the need to have a second look at the conditions sine qua non prescribed by the Constitution in the
imposition of the death penalty. In People vs. Masalihit,4 in urging, with all due respect, Congress to
consider a prompt re-examination of the death penalty law, I have said:

The determination of when to prescribe the death penalty lies, in the initial instance,
with the law-making authority, the Congress of the Philippines, subject to the
conditions that the Constitution itself has set forth; viz: (1) That there must
be compelling reasons to justify the imposition of the death penalty; and (2) That the
capital offense must involve a heinous crime. It appears that the fundamental law did
not contemplate a simple 'reimposition' of the death penalty to offenses theretofore
alreadyprovided in the Revised Penal Code or, let alone, just because of it. The term
'compelling reasons' would indicate to me that there must first be a marked change in
the milieu from that which has prevailed at the time of adoption of the 1987
Constitution, on the one hand, to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand, that would make it distinctively
inexorable to allow the re-imposition of the death penalty. Most importantly, the
circumstances that would characterize the 'heinous nature' of the crime and make it
so exceptionally offensive as to warrant the death penalty must be spelled out with
great clarity in the law, albeit without necessarily precluding the Court from exercising
its power of judicial review given the circumstances of each case. To venture, in the
case of murder, the crime would become 'heinous' within the Constitutional concept,
when, to exemplify, the victim is unnecessarily subjected to a painful and
excruciating death or, in the crime of rape, when the offended party is callously
humiliated or even brutally killed by the accused. The indiscriminate imposition of the
death penalty could somehow constrain courts to apply, perhaps without consciously
meaning to, stringent standards for conviction, not too unlikely beyond what might
normally be required in criminal cases, that can, in fact, result in undue exculpation of
offenders to the great prejudice of victims and society.

Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met
as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the
majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the
Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each
time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone
else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion;

I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the
disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned
disquisition. I write only to explain my vote in the context of the larger issue of the death penalty.
Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during
its current session which ends on June 15, 1999 and that, in any event, the President will veto any
such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my
objections to the imposition of the death penalty transcend the TRO and permeate its juridical
essence.

I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts
thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and
"compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly
stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the
Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of
my Dissent promulgated on February 7, 1997.

Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and
enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is
unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA
8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in
which RA 7659 ( the Death Penalty Law) is to implemented.

Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the
Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority
vote, be implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration.

G.R. No. 117472 February 7, 1997

PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.

Supplemental Motion for Reconsideration

SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic
Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original
Motion for Reconsideration filed by his previous counsel,3 this transcendental issue was nor brought
up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of
death.4

The Constitution Abolished Death Penalty

Sec. 19, Article III of the 1987 Constitution provides:

Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced toreclusion perpetua. (Emphasis supplied)
The second and third sentences of the above provision are new and had not been written in the
1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death
penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and
reduced "any death penalty already imposed" toreclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces
imposed capital sentences to the lesser penalty of imprisonment).

This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction toreclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed,6 "(t)he
majority voted for the constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the non-imposition of the death penalty, what he had in mind was the total
abolition and removal from the statute books of the death penalty. This became the intent of the
frames of the Constitution when they approved the provision and made it a part of the Bill of Rights."
With such abolition as a premise, restoration thereof becomes an exception to a constitutional
mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly
construed against the State and liberally in favor of the people.8 In this light, RA 7659 enjoys no
presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to reimpose it on condition that it (Congress)9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward"10): the authority of
Congress to "provide for it" is not absolute. Rather, it is strictly limited:

3. by "compelling reasons" that may arise after the Constitution became effective; and
4. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of
"compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-
making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress,
by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the
death penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating
a new article therein; 13 and (3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more sever
sanction, either collectively for all the offenses or individually for each of them.
Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.

The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted
it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave
abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III,
Sec. 19? The answer, I respectfully submit, is YES.

Heinous Crimes

To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY
to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress.
As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death
as an applicable penalty. It did not give a standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient definition or

characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be
"heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be determined. Calling the crimes
"grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the
description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood
as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation, much less
prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the
Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating
circumstances. 16

In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery,17 no new crimes were introduced by RA 7659. The offenses punished by death
under said law were already to punishable by the Revised Penal Code 18 and by special laws.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to
a question of Sen. Ernesto Maceda, wryly said: 19
 So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.

By merely reimposing capital punishment on the very same crimes which were already penalized
with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our
criminal laws and 2) make its restoration possible only under and subject to stringent conditions is
evident not only from the language of the Constitution but also from the charter debates on this
matter.

The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous,
he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape
victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not
just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I
believe that the available information shows that, when deliberating on "heinousness", the
Constitutional Commission did not have in mind the offenses already existing and already penalized
with death. I also believe that the heinousness clause requires that:

4. the crimes should be entirely new offenses, the elements of which have an inherent
quality, degree or level of perversity, depravity or viciousness unheard of until then;
or
5. even existing crimes, provided some new element or essential ingredient like
"organized" or "brutal" is added to show their utter perversity, odiousness or
malevolence; or
6. the means or method by which the crime, whether new or old, is carried out evinces
a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to
demonstrate its heinousness. 21

For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs
Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that
paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It should be remembered that every word or
phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed
aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot
be done wholesale but must shown for each and every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, in the words of Comm.
Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that
the conditions and the situation (during the deliberations of the Constitutional Commission) might
change for very specific reasons" requiring the return of the constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo
Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these
compelling reasons: 23

MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.

MR. LAGMAN. So the compelling reason which the distinguished sponsor would like
to justify or serve as an anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation. The Gentleman claims
that is one the compelling reasons. But before we dissent this particular "compelling
reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.) Justice, Mr. Speaker.

MR. LAGMAN. Justice.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice was
not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstances after 1987.

MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
punished and that the penalty imposed be commensurate with the offense
committed.

MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it refers
to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be meted out for those who have
committed heinous crimes.

xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order"
and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify
the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent.
Statistics from the Philippine National Police show that the crime volume and crime rate particularly
on those legislated capital offenses did not worsen but in fact declined between 1987, the date when
the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following
debate 24 also between Representatives Garcia and Lagman:

MR. LAGMAN. Very good, Mr. Speaker.

Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of
the crime of murder in 1987?

MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN. So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman
inform us the volume of murder in 1988?

MR. GARCIA (P.). It was 10,521, Mr. Speaker.

MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988.

Correspondingly, the crime rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker?

MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by
the PC.

MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the
death penalty? May we know from the distinguished Gentleman the volume of
robbery in 1987?

MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it.

MR. LAGMAN. No, Mr. Speaker, I am asking the question.

MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent.

MR. LAGMAN. This was the year immediately after the abolition of the death penalty.
Could the Gentleman tell us the volume of robbery cases in 1988?

MR. GARCIA (P.). It was 16,926, Mr. Speaker.

MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the
volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to
16,926 or a crime rate of 29 percent. Would the Gentleman confirm
that, Mr. Speaker?

MR. GARCIA (P.). This is what the statistics say, I understand we are reading now
from the same document.
 MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate
of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would
the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document
and I would not want to say that the Gentleman is misreading the document that I
have here.

MR. LAGMAN. But would the Gentleman confirm that?

MR. GARCIA (P.). The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of
persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25

Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 — this was the year when the death penalty was
abolished — the persons arrested in drug-related cases were 3,062, and the figure
dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It
still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.

But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any
conclusiveness the relationship between the prescription of the death penalty for certain offenses
and the commission or non-commission thereof. This is a theory that can be debated on and on, 27 in
the same manner that another proposition — that the real deterrent to crime is the certainty of
immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and
inconvenience to the victim, his heirs or his witnesses — can be argued indefinitely. 28 This debate
can last till the academics grow weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling
reasons" limits of its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee in favor of the accused — be zealously
protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor
of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is
not just crimes — but capital crimes!
So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that
"(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary
right of the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by
the 1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence,
the Constitution values the dignity of every human person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the mother and the unborn
from the moment of conception 34 and establishes the people's rights to health, a balanced ecology
and education. 35

This Constitutional explosion of concern for man more than property for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its
perceived enemies.

Indeed, volumes have been written about individual rights to free speech. assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life, the
other rights cease in their enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row
Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:

7. Since the reimposition of the death penalty, 186 persons 37 have been sentenced to
death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995,
the number rose to 90; an average of seven (7) convicts per month; double the
monthly average of capital sentences imposed the prior year. From January to June
1996, the number of death penalty convicts reached 72, an average of 12 convicts
per month, almost double the monthly average of capital sentences imposed in 1995.
8. Of the 165 convicts polled, approximately twenty one percent (21%) earn between
P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent
(4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while approximately two percent (2%) earn
subsistence wages with another five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how much they earn in a month.
9. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the
government-mandated minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only
one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on
a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.
10. In terms of occupation, approximately twenty one percent (21%) are agricultural
workers or workers in animal husbandry; of these thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the transport and construction
industry, with thirty one (31) construction workers or workers in allied fields
(carpentry, painting, welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers.
Eighteen percent (18%) are in clerical, sales and service industries, with fourteen
 (14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve
(12) service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk) About four percent (4%) are government workers,
with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives comprise only three percent
(3%), nine percent (9%) are unemployed.
11. None of the DRC's use English as their medium of communication. About forty four
percent (44%), or slightly less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak
and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand Niponggo.
12. Approximately twelve percent (12%) graduated from college, about forty seven
percent (47%) finished varying levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts,
finished varying levels of high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational education; nine (9) convicts did not
study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently
demonstrates that RA 7659 has militated against the poor and the powerless in society — those who
cannot afford the legal services necessary in capital crimes, where extensive preparation,
investigation, research and presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in
the proceedings in the trial court and even before this Court until the Free legal Assistance Group
belatedly brought it up in the Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated,
intimidating and damning. The net effect of having a death penalty that is imposed more often than
not upon the impecunious is to engender in the minds of the latter, a sense — unfounded, to be
sure, but unhealthy nevertheless — of the unequal balance of the scales of justice.

Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-
economic profile of the DRCs, the law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far
as the disadvantaged are concerned, the law would still be complex and written in a strange and
incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and
employment opportunities, are consequently confined to living, working and subsisting in less-than-
ideal environments, amidst less-than-genteel neighbors similarly situated as themselves, and are
therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death penalty neither improves nor worsens
their lot substantially. Or, to be more precise, such law may even be said to help improve their
situation (at least in theory) by posing a much stronger deterrent to the commission of heinous
crimes.

However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think, simply that
everyone ultimately wants to better himself and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and
constitutional firmament.

Epilogue

In sum, I respectfully submit that:

(1) The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.

(2) The Charter effectively granted a new right: the constitution right against the death penalty, which
is really a species of the right to life.

(3) Any law reviving the capital penalty must be strictly construed against the State and liberally in
favor of the accused because such a stature denigrates the Constitution, impinges on a basic right
and tends to deny equal justice to the underprivileged.

(4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-
treated or brushed aside.

(5) Congressional power death is severely limited by two concurrent requirements:

c. First, Congress must provide a set of attendant circumstances which the prosecution
must prove beyond reasonable doubt, apart from the elements of the crime and itself.
Congress must explain why and how these circumstances define or characterize the
crime as "heinous".
d. Second, Congress has also the duty of laying out clear and specific reasons which
arose after the effectivity of the Constitution compelling the enactment of the law. It
bears repeating that these requirements are inseparable. They must both be present
in view of the specific constitutional mandate — "for compelling reasons involving
heinous crimes." The compelling reason must flow from the heinous nature of the
offense.

(6) In every law reviving the capital penalty, the heinousness and compelling reasons must be set
out for each and every crime, and not just for all crimes generally and collectively.

"Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the
death penalty, it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to
Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the
extreme of executing the offender except in cases of absolute necessity: in other words, when it
would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-
existent."
Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death
penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and
above even the state which man created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous
crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically non-existent.

In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe
death against well-defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental
Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by
deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion
perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.

Separate Opinions
VITUG, J., separate opinion;

Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it
prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of
my brethren on the Court, who hold similarly, have consistently expressed this stand in the
affirmance by the Court of death sentences imposed by Regional Trial Courts.

In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a
temporary restraining order ("TRO") because, among other things, of what had been stated to be
indications that Congress would re-examine the death penalty law. It was principally out of respect
and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly
minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.

The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment
convicting the accused or recall the imposition of the death penalty.

The doctrine has almost invariably been that after a decision becomes final and executory, nothing
else is further done except to see to its compliance since for the Court to adopt otherwise would be
to put no end to litigations The rule notwithstanding, the Court retains control over the case until the
full satisfaction of the final judgment conformably with established legal processes. Hence, the Court
has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry
out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and
executory judgments admits of settled exceptions. Concededly, the Court may, for instance,
suspend the execution of a final judgment when it becomes imperative in the higher interest of
justice or when supervening events warrant it.1 Certainly, this extraordinary relief cannot be denied
any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement
in Director of Prisons vs. Judge of First Instance of Cavite,2 should be instructive. Thus —
 This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same has elapsed, the court can not
change or after its judgment, as its jurisdiction has terminated, functus est officio suo,
according to the classical phrase. When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having then passed
completely to the executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that, notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible the assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the Court of
First Instance has performed its ministerial duty of ordering the execution, functus est
officio suo, and its part is ended, if however a circumstance arises that ought to delay
the execution, there is an imperative duty to investigate the emergency and to order
a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the
President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or
modify the law that could benefit the convicted accused are not essentially preclusive of one another
nor constitutionally incompatible and may each be exercised within their respective spheres and
confines. Thus, the stay of execution issued by the Court would not prevent either the President from
exercising his pardoning power or Congress from enacting a measure that may be advantageous to
the adjudged offender.

The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999,
"coeval with the duration of the present regular session of Congress," if it "sooner becomes certain
that no repeal or modification of the law is going to be made." The "Urgent Motion for
Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain
circumstances/supervening events (have) transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any
chance for a timely3 re-examination by Congress of the death penalty law, then I can appreciate why
the majority of the Justices on the Court feel rightly bound even now to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most
thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for
the need to have a second look at the conditions sine qua non prescribed by the Constitution in the
imposition of the death penalty. In People vs. Masalihit,4 in urging, with all due respect, Congress to
consider a prompt re-examination of the death penalty law, I have said:

The determination of when to prescribe the death penalty lies, in the initial instance,
with the law-making authority, the Congress of the Philippines, subject to the
conditions that the Constitution itself has set forth; viz: (1) That there must
be compelling reasons to justify the imposition of the death penalty; and (2) That the
capital offense must involve a heinous crime. It appears that the fundamental law did
not contemplate a simple 'reimposition' of the death penalty to offenses theretofore
alreadyprovided in the Revised Penal Code or, let alone, just because of it. The term
'compelling reasons' would indicate to me that there must first be a marked change in
the milieu from that which has prevailed at the time of adoption of the 1987
Constitution, on the one hand, to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand, that would make it distinctively
inexorable to allow the re-imposition of the death penalty. Most importantly, the
circumstances that would characterize the 'heinous nature' of the crime and make it
so exceptionally offensive as to warrant the death penalty must be spelled out with
great clarity in the law, albeit without necessarily precluding the Court from exercising
its power of judicial review given the circumstances of each case. To venture, in the
case of murder, the crime would become 'heinous' within the Constitutional concept,
when, to exemplify, the victim is unnecessarily subjected to a painful and
excruciating death or, in the crime of rape, when the offended party is callously
humiliated or even brutally killed by the accused. The indiscriminate imposition of the
death penalty could somehow constrain courts to apply, perhaps without consciously
meaning to, stringent standards for conviction, not too unlikely beyond what might
normally be required in criminal cases, that can, in fact, result in undue exculpation of
offenders to the great prejudice of victims and society.

Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met
as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the
majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the
Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each
time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone
else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion;

I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the
disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned
disquisition. I write only to explain my vote in the context of the larger issue of the death penalty.

Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during
its current session which ends on June 15, 1999 and that, in any event, the President will veto any
such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my
objections to the imposition of the death penalty transcend the TRO and permeate its juridical
essence.
I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts
thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and
"compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly
stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the
Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of
my Dissent promulgated on February 7, 1997.

Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and
enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is
unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA
8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in
which RA 7659 ( the Death Penalty Law) is to implemented.

Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the
Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority
vote, be implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration.

G.R. No. 117472 February 7, 1997

PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.

Supplemental Motion for Reconsideration

SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic
Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original
Motion for Reconsideration filed by his previous counsel,3 this transcendental issue was nor brought
up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of
death.4

The Constitution Abolished Death Penalty

Sec. 19, Article III of the 1987 Constitution provides:

Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced toreclusion perpetua. (Emphasis supplied)

The second and third sentences of the above provision are new and had not been written in the
1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death
penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and
reduced "any death penalty already imposed" toreclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces
imposed capital sentences to the lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction toreclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed,6 "(t)he
majority voted for the constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the non-imposition of the death penalty, what he had in mind was the total
abolition and removal from the statute books of the death penalty. This became the intent of the
frames of the Constitution when they approved the provision and made it a part of the Bill of Rights."
With such abolition as a premise, restoration thereof becomes an exception to a constitutional
mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly
construed against the State and liberally in favor of the people.8 In this light, RA 7659 enjoys no
presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to reimpose it on condition that it (Congress)9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward"10): the authority of
Congress to "provide for it" is not absolute. Rather, it is strictly limited:

3. by "compelling reasons" that may arise after the Constitution became effective; and
4. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of
"compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-
making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress,
by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA

7659 11 to "provide for it" (the death penalty) (1) by amending certain provisions of the Revised Penal
Code; 12 (2) by incorporating a new article therein; 13 and (3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more sever
sanction, either collectively for all the offenses or individually for each of them.

Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.
The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted
it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave
abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III,
Sec. 19? The answer, I respectfully submit, is YES.

Heinous Crimes

To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY
to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress.
As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death
as an applicable penalty. It did not give a standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient definition or

characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be
"heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be determined. Calling the crimes
"grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the
description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood
as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation, much less
prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the
Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating
circumstances. 16

In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery,17 no new crimes were introduced by RA 7659. The offenses punished by death
under said law were already to punishable by the Revised Penal Code 18 and by special laws.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to
a question of Sen. Ernesto Maceda, wryly said: 19

So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.
By merely reimposing capital punishment on the very same crimes which were already penalized
with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our
criminal laws and 2) make its restoration possible only under and subject to stringent conditions is
evident not only from the language of the Constitution but also from the charter debates on this
matter.

The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous,
he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape
victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not
just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I
believe that the available information shows that, when deliberating on "heinousness", the
Constitutional Commission did not have in mind the offenses already existing and already penalized
with death. I also believe that the heinousness clause requires that:

3. the crimes should be entirely new offenses, the elements of which have an inherent
quality, degree or level of perversity, depravity or viciousness unheard of until then;
or
4. even existing crimes, provided some new element or essential ingredient like
"organized" or "brutal" is added to show their utter perversity, odiousness or
malevolence; or

3) the means or method by which the crime, whether new or old, is carried out
evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity,
viciousness as to demonstrate its heinousness. 21

For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs
Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that
paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It should be remembered that every word or
phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed
aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot
be done wholesale but must shown for each and every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, in the words of Comm.
Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that
the conditions and the situation (during the deliberations of the Constitutional Commission) might
change for very specific reasons" requiring the return of the constitutionally-abhorred penalty.

In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo
Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these
compelling reasons: 23
 MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.

MR. LAGMAN. So the compelling reason which the distinguished sponsor would like
to justify or serve as an anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation. The Gentleman claims
that is one the compelling reasons. But before we dissent this particular "compelling
reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.) Justice, Mr. Speaker.

MR. LAGMAN. Justice.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice was
not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstances after 1987.

MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
punished and that the penalty imposed be commensurate with the offense
committed.

MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it refers
to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be meted out for those who have
committed heinous crimes.

xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order"
and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify
the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent.
Statistics from the Philippine National Police show that the crime volume and crime rate particularly
on those legislated capital offenses did not worsen but in fact declined between 1987, the date when
the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following
debate 24 also between Representatives Garcia and Lagman:

MR. LAGMAN. Very good, Mr. Speaker.

Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of
the crime of murder in 1987?

MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN. So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman
inform us the volume of murder in 1988?

MR. GARCIA (P.). It was 10,521, Mr. Speaker.

MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988.

Correspondingly, the crime rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker?

MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by
the PC.

MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the
death penalty? May we know from the distinguished Gentleman the volume of
robbery in 1987?

MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it.

MR. LAGMAN. No, Mr. Speaker, I am asking the question.

MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent.

MR. LAGMAN. This was the year immediately after the abolition of the death penalty.
Could the Gentleman tell us the volume of robbery cases in 1988?

MR. GARCIA (P.). It was 16,926, Mr. Speaker.

MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the
volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to
16,926 or a crime rate of 29 percent. Would the Gentleman confirm
that, Mr. Speaker?

MR. GARCIA (P.). This is what the statistics say, I understand we are reading now
from the same document.

MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate
of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would
the Gentleman confirm that, Mr. Speaker?
 MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document
and I would not want to say that the Gentleman is misreading the document that I
have here.

MR. LAGMAN. But would the Gentleman confirm that?

MR. GARCIA (P.). The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of
persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25

Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 — this was the year when the death penalty was abolished — the persons
arrested in drug-related cases were 3,062, and the figure dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It
still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.

But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any
conclusiveness the relationship between the prescription of the death penalty for certain offenses
and the commission or non-commission thereof. This is a theory that can be debated on and on, 27 in
the same manner that another proposition — that the real deterrent to crime is the certainty of
immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and
inconvenience to the victim, his heirs or his witnesses — can be argued indefinitely. 28 This debate
can last till the academics grow weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling
reasons" limits of its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee in favor of the accused — be zealously
protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor
of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is
not just crimes — but capital crimes!

So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that
"(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary
right of the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by
the 1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence,
the Constitution values the dignity of every human person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the mother and the unborn
from the moment of conception 34 and establishes the people's rights to health, a balanced ecology
and education. 35

This Constitutional explosion of concern for man more than property for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its
perceived enemies.

Indeed, volumes have been written about individual rights to free speech. assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life, the
other rights cease in their enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row
Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:

7. Since the reimposition of the death penalty, 186 persons 37 have been sentenced to
death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995,
the number rose to 90; an average of seven (7) convicts per month; double the
monthly average of capital sentences imposed the prior year. From January to June
1996, the number of death penalty convicts reached 72, an average of 12 convicts
per month, almost double the monthly average of capital sentences imposed in 1995.
8. Of the 165 convicts polled, approximately twenty one percent (21%) earn between
P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent
(4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while approximately two percent (2%) earn
subsistence wages with another five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how much they earn in a month.
9. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the
government-mandated minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only
one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on
a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.
10. In terms of occupation, approximately twenty one percent (21%) are agricultural
workers or workers in animal husbandry; of these thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the transport and construction
industry, with thirty one (31) construction workers or workers in allied fields
(carpentry, painting, welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers.
Eighteen percent (18%) are in clerical, sales and service industries, with fourteen
(14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve
(12) service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk) About four percent (4%) are government workers,
 with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives comprise only three percent
(3%), nine percent (9%) are unemployed.
11. None of the DRC's use English as their medium of communication. About forty four
percent (44%), or slightly less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak
and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand Niponggo.
12. Approximately twelve percent (12%) graduated from college, about forty seven
percent (47%) finished varying levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts,
finished varying levels of high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational education; nine (9) convicts did not
study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently
demonstrates that RA 7659 has militated against the poor and the powerless in society — those who
cannot afford the legal services necessary in capital crimes, where extensive preparation,
investigation, research and presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in
the proceedings in the trial court and even before this Court until the Free legal Assistance Group
belatedly brought it up in the Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated,
intimidating and damning. The net effect of having a death penalty that is imposed more often than
not upon the impecunious is to engender in the minds of the latter, a sense — unfounded, to be
sure, but unhealthy nevertheless — of the unequal balance of the scales of justice.

Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-
economic profile of the DRCs, the law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far
as the disadvantaged are concerned, the law would still be complex and written in a strange and
incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and
employment opportunities, are consequently confined to living, working and subsisting in less-than-
ideal environments, amidst less-than-genteel neighbors similarly situated as themselves, and are
therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death penalty neither improves nor worsens
their lot substantially. Or, to be more precise, such law may even be said to help improve their
situation (at least in theory) by posing a much stronger deterrent to the commission of heinous
crimes.

However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think, simply that
everyone ultimately wants to better himself and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and
constitutional firmament.

Epilogue

In sum, I respectfully submit that:

6. The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.
7. The Charter effectively granted a new right: the constitution right against the death penalty,
which is really a species of the right to life.
8. Any law reviving the capital penalty must be strictly construed against the State and liberally
in favor of the accused because such a stature denigrates the Constitution, impinges on a
basic right and tends to deny equal justice to the underprivileged.
9. Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-
treated or brushed aside.
10. Congressional power death is severely limited by two concurrent requirements:

b. First, Congress must provide a set of attendant circumstances which the prosecution
must prove beyond reasonable doubt, apart from the elements of the crime and itself.
Congress must explain why and how these circumstances define or characterize the
crime as "heinous".

Second, Congress has also the duty of laying out clear and specific reasons which arose after the
effectivity of the Constitution compelling the enactment of the law. It bears repeating that these
requirements are inseparable. They must both be present in view of the specific constitutional
mandate — "for compelling reasons involving heinous crimes." The compelling reason must flow
from the heinous nature of the offense.

2. In every law reviving the capital penalty, the heinousness and compelling reasons must be
set out for each and every crime, and not just for all crimes generally and collectively.

"Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the
death penalty, it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to
Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the
extreme of executing the offender except in cases of absolute necessity: in other words, when it
would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-
existent."

Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death
penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and
above even the state which man created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous
crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically non-existent.
In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe
death against well-defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental
Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by
deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion
perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.

Footnotes
1 Stoll v. Gottlieb, 305 US 165, 172; 59 S. Ct. 134, 138; 83 L. ed. 104 [1938].

2 Philippine Courts and their Jurisdiction, p. 13, 1998 ed.

3 Citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 100 Phil. 230; American
Insurance Co. v. US Lines Co., 63 SCRA 325; Republic v. Reyes, 71 SCRA 426;
Luzon Stevedoring Corp. v. Reyes, 71 SCRA 655; Agricultural and Industrial
Marketing Inc. v. CA, 118 SCRA 49; Vasco v. CA, 81 SCRA 712; Mindanao Portland
Cement Corp. v. Laquihan, 120 SCRA 930.

4 Ibid., at pp. 12-14, citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 63
O.G. 358; Cabaya v. Hon. R. Mendoza, 113 SCRA 400; Bueno Industrial and
Development Corp. v. Encaje, 104 SCRA 388.

5 Ibid., pp. 14-15 citing Molina v. dela Riva, 8 Phil. 569; Behn Meyer & Co. v.
McMicking, 11 Phil. 276; Warmer Barnes & Co. v. Jaucian, 13 Phil. 4; Espiritu v.
Crossfield, 14 Phil. 588; Mata v. Lichauco, 36 Phil. 809; De la Costa v. Cleofas, 67
Phil. 686; Omar v. Jose, 77 Phil. 703; City of Butuan v. Ortiz, 113 Phil. 636; De los
Santos v. Rodriguez, 22 SCRA 551; City of Cebu v. Mendoza, 66 SCRA 174.

6 29 Phil. 267 (1915), p. 270.

7 Sec. 1, Article VIII of the 1987 Constitution.

8 Sec. 5(f), Rule 135.

9 Philippine Political Law, p. 225, 1993 ed.

10 94 Phil. 534 (1954), pp. 550-555.

11 R.A. No. 372.

12 94 Phil. 550, p. 551.

13 See In re Integration of the Bar of the Philippines, January 9, 1973, 49 SCRA 22.

14 See pp. 3-4 of Urgent Motion for Reconsideration.

15 See Art. 79 of the Revised Penal Code.

16 Modern Constitutional Law, Vol. 1, p. 409, 1969 ed., citing Caritativo v. California,
357 US 549, 21 L ed. 2d 1531, 78 S. Ct. 1263 [1958].

17 December 30 and 31, 1998 were declared holidays. January 1, 1999 was an
official holiday. January 2 was a Saturday and January 3 was a Sunday.

18 Urgent Motion for Reconsideration of Public respondents, p. 8.

19 Darrow, Crime: Its Cause and Treatment, p. 166 (1922).

20 Eisler, A Justice For All, p. 268.

21 "Where personal liberty is involved, a democratic society employs a different

arithmetic and insists that it is less important to reach an unshakable decision than to
do justice." Pollack, Proposals to Curtail Habeas Corpus for State Prisoners:
Collateral Attack on the Great Writ. 66 Yale LJ 50, 65 (1956).

VITUG, J., separate opinion;

1 Candelana vs. Cañizares, 4 SCRA 738; Philippine Veterans Bank vs. Intermediate
Appellate Court, 178 SCRA 545, Lipana vs. Development Bank of Rizal, 154 SCRA
257; Lee vs. De Guzman, 187 SCRA 276, Bachrach Corporation vs. Court of
Appeals, G.R. No. 128349, 25 September 1998.

2 29 Phil 267.

3 At least for Mr. Echegaray.

4 G.R. No 124329, 14 December 1998.

PANGANIBAN, J., separate opinion;

* I have further explained my unflinching position on this matter in my recent

book Battles in the Supreme Court, particularly on page 58 to 84.

Separate opinion;

1 It is called "Supplemental" because there was a (main) Motion for Reconsideration

filed by the previous counsel of the accused, which this Court already denied.

2 The Anti Death Penalty Task Force of the Free Legal Assistance Group — Pablito
V. Sanidad, Jose Manuel I. Diokno, Arno V. Sanidad, Efren Moncupa, Eduardo R.
Abaya and Ma. Victoria I. Diokno — filed its Notice of Appearance dated August 22,
1996 only on August 23, 1996, after the Per Curiam Decision of this Court was
promulgated on June 25, 1996.

3 Atty. Julian R. Vitug, Jr.

4 The bulk of jurisprudence precludes raising an issue for the first time only on
appeal. See, for instance, Manila Bay Club Corporation vs. Court of Appeals, 249
SCRA 303, October 13, 1995; Manila Bay Club Corporation vs. Court of Appeals,
245 SCRA 715, July 11, 1995; Securities and Exchange Commission vs. Court of
Appeals, 246 SCRA 738, July 21, 1995. However, the Court resolved to tackle the
question of constitutionality of Republic Act No. 7659 in this case, anticipating that
the same question would be raised anyway in many other subsequent instances. The
Court resolved to determine and dispose of the issue once and for all, at the first
opportunity. To let the issue pass unresolved just because it was raised after the
promulgation of the decision affirming conviction may result in grave injustice.

5 In People vs. Muñoz, 170 SCRA 107, February 9, 1989, the Court, prior to the
enactment and effectivity of RA 7659, ruled by a vote of 9-6 (J. Cruz, ponente, C.J.
Fernan, JJ., Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino and
Medialdea, concurring) that the death penalty was not abolished but only prohibited
from imposed. But see also the persuasive Dissenting Opinion of Mme. Justice
Ameurfina Melencio-Herrera (joined by JJ. Narvasa, Paras, Sarmiento, Cortes and
Regalado) who contended that the Constitution totally abolished the death penalty
and removed it form the statute books. People vs. Muñoz reversed the earlier
"abolition" doctrine uniformly held in People vs. Gavarra, 155 SCRA 327, October 30,
1987, (per C.J. Yap); People vs. Masangkay, 155 SCRA 113, October 27, 1987, (per
J. Melencio-Herrera) and People vs. Atencio, 156 SCRA 242, December 10, 1987
(per C.J. Narvasa). It is time that these cases are revisited by this Court.

6 This quote is taken from I Record of the Constitutional Commission, p. 676 (July
17, 1986) as follows:

Fr. Bernas:

xxx xxx xxx

My recollection on this is that there was a division in the Committee not on whether
the death penalty should be abolished or not, but rather on whether the abolition
should be done by the Constitution — in which case it cannot be restored by the
legislature — or left to the legislature. The majority voted for the constitutional
abolition of the death penalty. And the reason is that capital punishment is inhuman
for the convict and his family who are traumatized by the waiting, even if it is never
carried out. There is no evidence that death penalty deterred deadly criminals,
hence, life should not be destroyed just in the hope that other lives might be saved.
Assuming mastery over the life of another man is just too presumptuous for any man.
The fact that the death penalty as an institution has been there from time immemorial
should not deter us from reviewing it. Human life is more valuable than an institution
intended precisely to serve human life. So basically, this is the summary of the
reason which were presented in support of the constitutional abolition of the death
penalty (emphasis supplied)

7 Dissenting Opinion in People vs. Muñoz, supra, p. 129.

8 Thus in People vs. Burgos, 144 SCRA 1, September 4, 1986, we held that a
statute which allows an exception to a constitutional right (against warrantless
arrests) should be strictly construed.

9 In his scholarly Memorandum, Fr. Joaquin G. Bernas, S.J. as amicus curiae in

People vs. Pedro V. Malabago (G.R. No. 115686, December 2, 1996), vigorously
argues that RA 7659 has validly restored the death penalty which may now be
imposed provided that the prosecution proves, and the court is convinced, that (a)
the accused is guilty of a crime designated by RA 7659 as capital, (b) whose
commission is accompanied by aggravating circumstances as defined by Arts. 14
and 15 of the Revised Penal Code, (c) the accompanying aggravating circumstance
must be one which can be characterized by the court as making the crime "heinous",
and (d) that the execution of the offender is demanded by "compelling reasons"
related to the offense. In other words, according to him, it is the courts — not
Congress — that have responsibility of determining the heinousness of a crime and
the compelling reason for its imposition upon a particular offender, depending on the
facts of each case. I cannot however subscribe to this view. The Constitution clearly
identifies Congress as the sovereign entity which is given the onus of fulfilling these
two constitutional limitations.

10 People vs. Muñoz, supra, p. 121.

11 Which became effective on December 31, 1993, per People vs. Burgos, 234
SCRA 555, 569, July 29, 1994; People vs. Godoy, 250 SCRA 676, December 6,
1995; People vs. Albert, 251 SCRA 136, December 11, 1995.

12 Art. 114 — Treason; Art. 123 — Qualified Piracy; Art. 246 — Parricide;
Art. 248 — Murder; Art. 255 — Infanticide; Art. 267 — Kidnapping and Serious Illegal
Detention; Art. 294 — Robbery with violence against or intimidation of persons; Art.
320 — Destructive Arson; Art. 335 — Rape.

13 Art. 221-A on Qualified Bribery.

14 Sec. 2, RA 7080 — Plunder; Secs. 3, 4, 5, 7, 8 and 9 of Article II of

RA 6425 — Prohibited Drugs; Secs. 14, 14-A and 15 of Article III of said RA 6425 —
Carnapping.

15 A preamble is not an essential part of a statute. (Agpalo, Statutory Construction,

Second Edition 1990; Martin, Statutory Construction, Sixth Edition, 1984). The
function of the preamble is to supply reasons and explanation and not to confer
power or determine rights. Hence it cannot be given the effect of enlarging the scope
or effect of a statute. (C. Dallas Sands, Statutes and Statutory Construction, Fourth
Edition, Volume LA, § 20.03).

16 Under Sec. 11, RA 7659, it appears that death is the mandatory penalty for rape,
regardless of the presence or absence of aggravating or mitigating circumstances,
"(w)hen by reason or on the occasion of the rape, a homicide is committed," or when
it is "committed with any of the attendant circumstances enumerated" in said section.

17 While in plunder and qualified bribery are "new" capital offenses, RA 7659
nonetheless fails to justify why they are considered heinous. In addition, the specific
compelling reasons for the prescribed penalty of death are note laid out by the
statute.

18 In the case of rape, RA 7659 provided certain attendant circumstances which the
prosecution must prove before courts can impose the extreme penalty. Just the
same however, the law did not explain why said circumstances would make the
crimes heinous. Neither did it set forth the complelling reasons therefor.

19 Record of the Senate, First Regular Session, January 18 to March 11, 1993,
Volume III, No. 48, January 25, 1993, p. 122.

20 I Record of the Constitutional Commission, July 18, 1986, pp. 742-743:

MR. SUAREZ The Gentleman advisedly used the words 'heinous crimes', whatever
is the pronunciation. Will the Gentleman give examples of 'heinous crimes'? For
example, would the head of an organized syndicate in dope distribution or dope
smuggling fall within the qualification of a heinous offender such as to preclude the
application of the principle of abolition of death penalty?

MR. MONSOD Yes, Madam President. That is one of the possible crimes that would
qualify for a heinous crime. Another would be organized murder. In other words,
yesterday there were many arguments for and against, and they all had merit. But in
the contemporary society, we recognize the sacredness of human life and — I think it
was Honorable Laurel who said this yesterday — it is only God who gives and takes
life. However, the voice of the people is also the voice of God, and we cannot
presume to have the wisdom of the ages. Therefore, it is entirely possible in the
future that circumstances may arise which we should not preclude today. We know
that this is very difficult question. The fact that the arguments yesterday were quite
impassioned and meritorious merely tell us that this is far from a well-settled issue. At
least in my personal opinion, we would like the death penalty to be abolished.
However, in the future we should allow the National Assembly in its wisdom and as
representatives of the people, to still impose the death penalty for the common good,
in specific cases.

MR. SUAREZ. Thank you.

I would like to pursue some more the Gentleman's definition of 'heinous crimes'.
Would the brutal murder of a rape victim be considered as falling within that
classification?

MR. MONSOD. Madam President, yes, particularly, if it is a person in authority. He

would, therefore, add as an aggravating circumstance to the crime the abuse of this
position authority.

MR. SUAREZ. Thank you.

21 Some examples of this may be taken by Congress from Richmond vs. Lewis, 506
US 40, like "gratuitous violence" or "needless mutilation" of the victim.

22 Paragraph 3 & 4 of the preamble reads:

 WHEREAS, due to the alarming upsurge of such crimes which has resulted
not only in the loss of human lives and wanton destruction of property but has
also affected the nation's efforts towards sustainable economic development
and prosperity while at the same time has undermined the people's faith in
the Government and the latter's ability to maintain peace and order in the
country.

WHEREAS, the Congress, in the interest of justice, public order and the rule of law,
and the need to rationalize and harmonize the penal sanctions for heinous crimes,
finds compelling reasons to impose the death penalty for said crimes;

23 Record of the House of Representatives, First Regular Session, 1992-1993,

Volume IV, February 10, 1993, p. 674, emphasis supplied.

24 Record of the House of Representatives, First Regular Session, 1992-1993, Vol.

III, November 10, 1992, p. 448; emphasis supplied.

25 Record of the Senate, First Regular Session, January 18 to March 11, 1993,
Volume III, No. 50, January 27, 1993, pp. 176-177.

26 See "Sponsorship Remarks" of Rep. Manuel Sanchez, Record of the House of

Representatives, November 9, 1992, pp. 40-42.

27 Witness, for instance, this interesting exchange between Commissioners Joaquin

Bernas and Napoleon Rama (I Record of the Constitutional Commission, p. 678):

FR. BERNAS. When some experts appeared before us and we asked them if there
was evidence to show that the death penalty had deterred the commission of deadly
crimes, none of them was able to say that there was evidence, conclusive evidence,
for that.

MR. RAMA. I am curious. Who are experts then — social scientist or penologists or
what?

FR. BERNAS. Penologists.

MR. RAMA. Of course we are aware that there is also another school of thought
here, another set of experts, who would swear that the death penalty discourages
crimes or criminality. Of course. Commissioner Bernas knows that never in our
history has there been a higher incidence of crime. I say that criminality was at its
zenith during the last decade.

FR. BERNAS. Correct, in spite of the existence of the death penalty.

MR. RAMA. Yes, but not necessarily in spite of the existence of the death penalty. At
any rate, does the sponsor think that in removing the death penalty, it would not
affect, one way or another, the crime rate of the country?

FR. BERNAS. The position taken by the majority of those who voted in favor of this
provision is that means other than the death penalty should be used for the
prevention of crime.
28 Cf. Report to the United Nations Committee on Crime Prosecution and Control,
United Nations Social Affairs Division, Crime Prevention and Criminal Justice
Branch, Vienna, 1988, p. 110.

29 Former Chief Justice Enriquez M. Freehand, in his book, The Bill of Rights,
(Second Edition, 1972, p. 4.) states: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a bill of rights. Precisely a
constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. . . ." In the
context of the role of a bill of right the vast powers of government are clearly to be
exercise within the limits set by the constitution, particularly the bill of rights. In
Ermita-Malate Hotel and Motel Operators vs. City Mayor of Manila, (L-24693, July
31, 1967), it was held that the exercise of police power, insofar as it may affect the
life, liberty or property of any person is subject to judicial inquiry. The guarantee in
Sec. 1 of Article III of the Constitution embraces life, liberty and property. In the
words of Justice Roberto Concepcion in People vs. Hernandez, (99 Phil 515, 551-2
[1956]), ". . . individual freedom is too basic, too transcendental and vital in a
republican state, like ours, to be denied upon mere general principle and abstract
consideration of public safety. Indeed, the preservation of liberty is such a major
preoccupation of our political system that, not satisfied with guaranteeing its
enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of
our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14),
(15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects
of freedom. . . ." These guarantees are preserved in the 1987 Constitution, according
to Fr. Bernas.

30 See, for instance People vs. Sinatao, 249 SCRA 554, 571, October 25, 1995, and
People vs. Pidia, 249 SCRA 687, 702-703, November 10, 1995.

31 Art. III, Sec. 1.

32 Art. III, Sec. 11.

33 Art. II, Sec. 12 (2).

34 Art. II, Sec. 12.

35 Art. II, Secs. 15, 16 & 17.

36 For details, see Annex A of the Memorandum for the Accused-Appellant dated
September 26, 1996 filed by the Free Legal Assistance Group in People vs.
Malabago, G.R. No. 115686, December 2, 1996.

37 The FLAG-submitted Profile states that have been sentenced to death by trial
courts since the effectivity of RA 7659. The Philippine Star issue of December 9,
1996, page 17, however reports that, quoting Sen. Ernesto Herrera, the total number
of death row inmates has gone up to 267, as of November, 1996, of whom, more
than one half (139) are rape convicts. Some major dailies (Philippine Daily Inquirer,
Philippine Star, Manila Standard) in their February 3, 1997 issue up the death row
figure to 300, as of the end of January 1997, with 450 as the probable number at the
end of 1997.
38 The preamble of the Constitution is theistic. It declares the "sovereign Filipino
people's imploration of the "aid of Almighty God".

39 Cetechism of the Catholic Churh, p. 512, Word and Life Publications:

2266. Preserving the common good of society requires rendering the

aggressor unable to inflict harm. For this reason the traditional teaching of
the Church has acknowledged as well-founded the right and duty of
legitimate public authority to punish malefactors by means of penalties
commensurate with the gravity of the crime, not excluding, in cases of
extreme gravity, the death penalty. For analogous reasons those holding
authority have the right to repel by armed force aggressors against the
community in their charge.

40 Evangelium Vitae, items no. 55 and 56 states:

55. This should not cause surprise: to kill a human being, in whom the image
of God is present, is a particularly serious sin. Only God is the master of life!
Yet from the beginning, faced with the many and often tragic cases which
occur in the life of individuals and society, Christian reflection has sought a
fuller and deeper understanding of what God's commandment prohibits and
prescribes. There are, in fact situations in which values proposed by God's
Law seem to involve a genuine paradox. This happens for example in the
case of legitimate defence, in which the right to protect one's own life and the
duty not to harm someone else's life are difficult to reconcile in practice.
Certainly, the intrinsic value of life and the duty to love oneself no less than
others are the basis of a true right to self-defence. The demanding
commandment of love of neighbor, set forth in the Old Testament and
confirmed by Jesus, itself presupposes love of oneself as the basis of
comparison: "You shall love your neighbor as yourself" (Mk. 12:31).
Consequently, no one can renounce the right to self-defence out of lack of
love for life or for self. This can only be done in virtue of a heroic love which
deepens and transfigures the love of self into a radical self-offering,
according to the spirit of the Gospel Beatitudes (cf. Mt. 5:38-40). The sublime
example of this self-offering is the Lord Jesus himself.

Moreover, "legitimate defence can be not only a right but a grave duty for
someone responsible for another's life, the common good of the family or of
the State." Unfortunately it happens that the need to render the aggresor
incapable of causing harm sometimes involves taking his life. In this case,
the fatal outcome is attributable to the aggressor incapable whose action
brought it about, even though he may not be morally responsible because of
a lack of the use of reason.

56. This is context in which to place the problem of the death penalty. On this
matter there is a growing tendency, both in the Church and in civil society, to
demand that it be applied in a very limited way or even that it be abolished
completely. The problem must be viewed in the context of a system of penal
justice even more in line with dignity and thus, in the end, with God's plan for
man and society. The primary purpose of the punishment which society
inflicts is "to redress the disorder caused by the offence." Public authority
must redress the violation of personal and social rights by imposing on the
offender to regain the exercise of his or her freedom. In this way authority
also fulfills the purpose of defending public order and ensuring people's
safety, while at the same time offering the offender an incentive and help to
change his or her behavior and be rehabilitated.

It is clear that, for these purposes to be achieved, the nature and extent of
the punishment must be carefully evaluated and decided upon, and ought not
go to the extreme of executing the offender except in cases of absolute
necessity: in other words, when it would not be possible other wise to defend
society. Today however, as a result of steady improvements in the
organization of the penal system, such cases are very rare, if not partically
non-existent.1âw phi1.nêt

In any event, the principle, set forth in the new Catechism of the Catholic
Church remains valid: "If bloodless means are sufficient to defend human
lives against an aggressor and to protect public order and the safety of
persons, public authority must limit itself to such means, because they better
correspond to the concrete conditions of the common good and are more in
conformity to the dignity of the human person."
Oil and Natural Gas Commission v Court of Appeals

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 114323 July 23, 1998

OIL AND NATURAL GAS COMMISSION, petitioner,

vs.

COURT OF APPEALS and PACIFIC CEMENT COMPANY, INC., respondents.

MARTINEZ, J.:

This proceeding involves the enforcement of a foreign judgment rendered by the Civil Judge of
Dehra Dun, India in favor of the petitioner, OIL AND NATURAL GAS COMMISSION and against the
private respondent, PACIFIC CEMENT COMPANY, INCORPORATED.

The petitioner is a foreign corporation owned and controlled by the Government of India while the
private respondent is a private corporation duly organized and existing under the laws of the
Philippines. The present conflict between the petitioner and the private respondent has its roots in a
contract entered into by and between both parties on February 26, 1983 whereby the private
respondent undertook to supply the petitioner FOUR THOUSAND THREE HUNDRED (4,300) metric
tons of oil well cement. In consideration therefor, the petitioner bound itself to pay the private
respondent the amount of FOUR HUNDRED SEVENTY-SEVEN THOUSAND THREE HUNDRED
U.S. DOLLARS ($477,300.00) by opening an irrevocable, divisible, and confirmed letter of credit in
favor of the latter. The oil well cement was loaded on board the ship MV SURUTANA NAVA at the
port of Surigao City, Philippines for delivery at Bombay and Calcutta, India. However, due to a
dispute between the shipowner and the private respondent, the cargo was held up in Bangkok and
did not reach its point destination. Notwithstanding the fact that the private respondent had already
received payment and despite several demands made by the petitioner, the private respondent
failed to deliver the oil well cement. Thereafter, negotiations ensued between the parties and they
agreed that the private respondent will replace the entire 4,300 metric tons of oil well cement with
Class "G" cement cost free at the petitioner's designated port. However, upon inspection, the Class
"G" cement did not conform to the petitioner's specifications. The petitioner then informed the private
respondent that it was referring its claim to an arbitrator pursuant to Clause 16 of their contract which
stipulates:

Except where otherwise provided in the supply order/contract all questions and
disputes, relating to the meaning of the specification designs, drawings and
instructions herein before mentioned and as to quality of workmanship of the items
 ordered or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification,
instruction or these conditions or otherwise concerning the materials or the execution
or failure to execute the same during stipulated/extended period or after the
completion/abandonment thereof shall be referred to the sole arbitration of the
persons appointed by Member of the Commission at the time of dispute. It will be no
objection to any such appointment that the arbitrator so appointed is a Commission
employer (sic) that he had to deal with the matter to which the supply or contract
relates and that in the course of his duties as Commission's employee he had
expressed views on all or any of the matter in dispute or difference.

The arbitrator to whom the matter is originally referred being transferred or vacating
his office or being unable to act for any reason the Member of the Commission shall
appoint another person to act as arbitrator in accordance with the terms of the
contract/supply order. Such person shall be entitled to proceed with reference from
the stage at which it was left by his predecessor. Subject as aforesaid the provisions
of the Arbitration Act, 1940, or any Statutory modification or re-enactment there of
and the rules made there under and for the time being in force shall apply to the
arbitration proceedings under this clause.

The arbitrator may with the consent of parties enlarge the time, from time to time, to
make and publish the award.

The venue for arbitration shall be at Dehra dun. 1*

On July 23, 1988, the chosen arbitrator, one Shri N.N. Malhotra, resolved the dispute in petitioner's
favor setting forth the arbitral award as follows:

NOW THEREFORE after considering all facts of the case, the evidence, oral and
documentarys adduced by the claimant and carefully examining the various written
statements, submissions, letters, telexes, etc. sent by the respondent, and the oral
arguments addressed by the counsel for the claimants, I, N.N. Malhotra, Sole
Arbitrator, appointed under clause 16 of the supply order dated 26.2.1983, according
to which the parties, i.e. M/S Oil and Natural Gas Commission and the Pacific
Cement Co., Inc. can refer the dispute to the sole arbitration under the provision of
the Arbitration Act. 1940, do hereby award and direct as follows: —

The Respondent will pay the following to the claimant: —

1. Amount received by the Respondent

against the letter of credit No. 11/19

dated 28.2.1983 US $ 477,300.00

2. Re-imbursement of expenditure incurred

by the claimant on the inspection team's

visit to Philippines in August 1985 US $ 3,881.00

 3. L.C. Establishment charges incurred

by the claimant US $ 1,252.82

4. Loss of interest suffered by claimant

from 21.6.83 to 23.7.88 US $ 417,169.95

Total amount of award US $ 899,603.77

In addition to the above, the respondent would also be liable to pay to the claimant
the interest at the rate of 6% on the above amount, with effect from 24.7.1988 up to
the actual date of payment by the Respondent in full settlement of the claim as
awarded or the date of the decree, whichever is earlier.

I determine the cost at Rs. 70,000/- equivalent to US $5,000 towards the expenses
on Arbitration, legal expenses, stamps duly incurred by the claimant. The cost will be
shared by the parties in equal proportion.

Pronounced at Dehra Dun to-day, the 23rd of July 1988. 2

To enable the petitioner to execute the above award in its favor, it filed a Petition before the
Court of the Civil Judge in Dehra Dun. India (hereinafter referred to as the foreign court for
brevity), praying that the decision of the arbitrator be made "the Rule of Court" in India. The
foreign court issued notices to the private respondent for filing objections to the petition. The
private respondent complied and sent its objections dated January 16, 1989. Subsequently,
the said court directed the private respondent to pay the filing fees in order that the latter's
objections could be given consideration. Instead of paying the required filing fees, the private
respondent sent the following communication addressed to the Civil judge of Dehra Dun:

The Civil Judge

Dehra Dun (U.P.) India

Re: Misc. Case No. 5 of 1989

M/S Pacific Cement Co.,

Inc. vs. ONGC Case

Sir:

1. We received your letter dated 28 April 1989 only

last 18 May 1989.

2. Please inform us how much is the court fee to be

paid. Your letter did not mention the amount to be
paid.
 3. Kindly give us 15 days from receipt of your letter
advising us how much to pay to comply with the
same.

Thank you for your kind consideration.

Pacific Cement Co., Inc.

By:

Jose Cortes, Jr.

President 3

Without responding to the above communication, the foreign court refused to admit the private
respondent's objections for failure to pay the required filing fees, and thereafter issued an Order on
February 7, 1990, to wit:

ORDER

Since objections filed by defendant have been rejected through Misc. Suit No. 5 on
7.2.90, therefore, award should be made Rule of the Court.

ORDER

Award dated 23.7.88, Paper No. 3/B-1 is made Rule of the Court. On the basis of
conditions of award decree is passed. Award Paper No. 3/B-1 shall be a part of the
decree. The plaintiff shall also be entitled to get from defendant (US$ 899,603.77
(US$ Eight Lakhs ninety nine thousand six hundred and three point seventy seven
only) along with 9% interest per annum till the last date of realisation. 4

Despite notice sent to the private respondent of the foregoing order and several demands by the
petitioner for compliance therewith, the private respondent refused to pay the amount adjudged by
the foreign court as owing to the petitioner. Accordingly, the petitioner filed a complaint with Branch
30 of the Regional Trial Court (RTC) of Surigao City for the enforcement of the aforementioned
judgment of the foreign court. The private respondent moved to dismiss the complaint on the
following grounds: (1) plaintiffs lack of legal capacity to sue; (2) lack of cause of action; and (3)
plaintiffs claim or demand has been waived, abandoned, or otherwise extinguished. The petitioner
filed its opposition to the said motion to dismiss, and the private respondent, its rejoinder thereto. On
January 3, 1992, the RTC issued an order upholding the petitioner's legal capacity to sue, albeit
dismissing the complaint for lack of a valid cause of action. The RTC held that the rule prohibiting
foreign corporations transacting business in the Philippines without a license from maintaining a suit
in Philippine courts admits of an exception, that is, when the foreign corporation is suing on an
isolated transaction as in this case. 5 Anent the issue of the sufficiency of the petitioner's cause of
action, however, the RTC found the referral of the dispute between the parties to the arbitrator under
Clause 16 of their contract erroneous. According to the RTC,

[a] perusal of the shove-quoted clause (Clause 16) readily shows that the matter
covered by its terms is limited to "ALL QUESTIONS AND DISPUTES, RELATING TO
THE MEANING OF THE SPECIFICATION, DESIGNS, DRAWINGS AND
INSTRUCTIONS HEREIN BEFORE MENTIONED and as to the QUALITY OF
 WORKMANSHIP OF THE ITEMS ORDERED or as to any other questions, claim,
right or thing whatsoever, but qualified to "IN ANY WAY ARISING OR RELATING TO
THE SUPPLY ORDER/CONTRACT, DESIGN, DRAWING, SPECIFICATION, etc.,"
repeating the enumeration in the opening sentence of the clause.

The court is inclined to go along with the observation of the defendant that the
breach, consisting of the non-delivery of the purchased materials, should have been
properly litigated before a court of law, pursuant to Clause No. 15 of the
Contract/Supply Order, herein quoted, to wit:

"JURISDICTION

All questions, disputes and differences, arising under out of or in

connection with this supply order, shall be subject to the EXCLUSIVE
JURISDICTION OF THE COURT, within the local limits of whose
jurisdiction and the place from which this supply order is situated."6

The RTC characterized the erroneous submission of the dispute to the arbitrator as a
"mistake of law or fact amounting to want of jurisdiction". Consequently, the proceedings had
before the arbitrator were null and void and the foreign court had therefore, adopted no legal
award which could be the source of an enforceable right. 7

The petitioner then appealed to the respondent Court of Appeals which affirmed the dismissal of the
complaint. In its decision, the appellate court concurred with the RTC's ruling that the arbitrator did
not have jurisdiction over the dispute between the parties, thus, the foreign court could not validly
adopt the arbitrator's award. In addition, the appellate court observed that the full text of the
judgment of the foreign court contains the dispositive portion only and indicates no findings of fact
and law as basis for the award. Hence, the said judgment cannot be enforced by any Philippine
court as it would violate the constitutional provision that no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it is based. 8 The
appellate court ruled further that the dismissal of the private respondent's objections for non-
payment of the required legal fees, without the foreign court first replying to the private respondent's
query as to the amount of legal fees to be paid, constituted want of notice or violation of due
process. Lastly, it pointed out that the arbitration proceeding was defective because the arbitrator
was appointed solely by the petitioner, and the fact that the arbitrator was a former employee of the
latter gives rise to a presumed bias on his part in favor of the petitioner. 9

A subsequent motion for reconsideration by the petitioner of the appellate court's decision was
denied, thus, this petition for review on certiorari citing the following as grounds in support thereof:

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

LOWER COURT'S ORDER OF DISMISSAL SINCE:

A. THE NON-DELIVERY OF THE CARGO WAS A MATTER PROPERLY

COGNIZABLE BY THE PROVISIONS OF CLAUSE 16 OF THE CONTRACT;

B. THE JUDGMENT OF THE CIVIL COURT OF DEHRADUN, INDIA WAS AN

AFFIRMATION OF THE FACTUAL AND LEGAL FINDINGS OF THE ARBITRATOR
AND THEREFORE ENFORCEABLE IN THIS JURISDICTION;

C. EVIDENCE MUST BE RECEIVED TO REPEL THE EFFECT OF A

PRESUMPTIVE RIGHT UNDER A FOREIGN JUDGMENT. 10
The threshold issue is whether or not the arbitrator had jurisdiction over the dispute between the
petitioner and the private respondent under Clause 16 of the contract. To reiterate, Clause 16
provides as follows:

Except where otherwise provided in the supply order/contract all questions and
disputes, relating to the meaning of the specification designs, drawings and
instructions herein before mentioned and as to quality of workmanship of the items
ordered or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification,
instruction or these conditions or otherwise concerning the materials or the execution
or failure to execute the same during stipulated/extended period or after the
completion/abandonment thereof shall be referred to the sole arbitration of the
persons appointed by Member of the Commission at the time of dispute. It will be no
objection to any such appointment that the arbitrator so appointed is a Commission
employer (sic) that he had to deal with the matter to which the supply or contract
relates and that in the course of his duties as Commission's employee he had
expressed views on all or any of the matter in dispute or difference. 11

The dispute between the parties had its origin in the non-delivery of the 4,300 metric tons of oil well
cement to the petitioner. The primary question that may be posed, therefore, is whether or not the
non-delivery of the said cargo is a proper subject for arbitration under the above-quoted Clause 16.
The petitioner contends that the same was a matter within the purview of Clause 16, particularly the
phrase, ". . . or as to any other questions, claim, right or thing whatsoever, in any way arising or
relating to the supply order/contract, design, drawing, specification, instruction . . .". 12 It is argued
that the foregoing phrase allows considerable latitude so as to include non-delivery of the cargo
which was a "claim, right or thing relating to the supply order/contract". The contention is bereft of
merit. First of all, the petitioner has misquoted the said phrase, shrewdly inserting a comma between
the words "supply order/contract" and "design" where none actually exists. An accurate reproduction
of the phrase reads, ". . . or as to any other question, claim, right or thing whatsoever, in any way
arising out of or relating to the supply order/contract design, drawing, specification, instruction or
these conditions . . .". The absence of a comma between the words "supply order/contract" and
"design" indicates that the former cannot be taken separately but should be viewed in conjunction
with the words "design, drawing, specification, instruction or these conditions". It is thus clear that to
fall within the purview of this phrase, the "claim, right or thing whatsoever" must arise out of or relate
to the design, drawing, specification, or instruction of the supply order/contract. The petitioner also
insists that the non-delivery of the cargo is not only covered by the foregoing phrase but also by the
phrase, ". . . or otherwise concerning the materials or the execution or failure to execute the
same during the stipulated/extended period or after completion/abandonment thereof . . .".

The doctrine of noscitur a sociis, although a rule in the construction of statutes, is equally applicable
in the ascertainment of the meaning and scope of vague contractual stipulations, such as the
aforementioned phrase. According to the maxim noscitur a sociis, where a particular word or phrase
is ambiguous in itself or is equally susceptible of various meanings, its correct construction may be
made clear and specific by considering the company of the words in which it is found or with which it
is associated, or stated differently, its obscurity or doubt may be reviewed by reference to associated
words. 13 A close examination of Clause 16 reveals that it covers three matters which may be
submitted to arbitration namely,

(1) all questions and disputes, relating to the meaning of the specification designs, drawings and
instructions herein before mentioned and as to quality of workmanship of the items ordered; or
(2) any other question, claim, right or thing whatsoever, in any way arising out of or relating to the
supply order/contract design, drawing, specification, instruction or these conditions; or

(3) otherwise concerning the materials or the execution or failure to execute the same during
stipulated/extended period or after the completion/abandonment thereof.

The first and second categories unmistakably refer to questions and disputes relating to the design,
drawing, instructions, specifications or quality of the materials of the supply/order contract. In the
third category, the clause, "execution or failure to execute the same", may be read as "execution or
failure to execute the supply order/contract". But in accordance with the doctrine of noscitur a sociis,
this reference to the supply order/contract must be construed in the light of the preceding words with
which it is associated, meaning to say, as being limited only to the design, drawing, instructions,
specifications or quality of the materials of the supply order/contract. The non-delivery of the oil well
cement is definitely not in the nature of a dispute arising from the failure to execute the supply
order/contract design, drawing, instructions, specifications or quality of the materials. That Clause 16
should pertain only to matters involving the technical aspects of the contract is but a logical inference
considering that the underlying purpose of a referral to arbitration is for such technical matters to be
deliberated upon by a person possessed with the required skill and expertise which may be
otherwise absent in the regular courts.

This Court agrees with the appellate court in its ruling that the non-delivery of the oil well cement is a
matter properly cognizable by the regular courts as stipulated by the parties in Clause 15 of their
contract:

All questions, disputes and differences, arising under out of or in connection with this
supply order, shall be subject to the exclusive jurisdiction of the court, within the local
limits of whose jurisdiction and the place from which this supply order is situated. 14

The following fundamental principles in the interpretation of contracts and other instruments
served as our guide in arriving at the foregoing conclusion:

Art. 1373. If some stipulation of any contract should admit of several meanings, it
shall be understood as bearing that import which is most adequate to render it
effectual. 15

Art. 1374. The various stipulations of a contract shall be interpreted together,

attributing the doubtful ones that sense which may result from all of them taken
jointly. 16

Sec. 11. Instrument construed so as to give effect to all provisions. In the

construction of an instrument, where there are several provisions or particulars, such
a construction is, if possible, to be adopted as will give effect to all. 17

Thus, this Court has held that as in statutes, the provisions of a contract should not be read in
isolation from the rest of the instrument but, on the contrary, interpreted in the light of the other
related provisions. 18The whole and every part of a contract must be considered in fixing the meaning
of any of its harmonious whole. Equally applicable is the canon of construction that in interpreting a
statute (or a contract as in this case), care should be taken that every part thereof be given effect, on
the theory that it was enacted as an integrated measure and not as a hodge-podge of conflicting
provisions. The rule is that a construction that would render a provision inoperative should be
avoided; instead, apparently inconsistent provisions should be reconciled whenever possible as
parts of a coordinated and harmonious whole. 19
The petitioner's interpretation that Clause 16 is of such latitude as to contemplate even the non-
delivery of the oil well cement would in effect render Clause 15 a mere superfluity. A perusal of
Clause 16 shows that the parties did not intend arbitration to be the sole means of settling disputes.
This is manifest from Clause 16 itself which is prefixed with the proviso, "Except where otherwise
provided in the supply order/contract . . .", thus indicating that the jurisdiction of the arbitrator is not
all encompassing, and admits of exceptions as may be provided elsewhere in the supply
order/contract. We believe that the correct interpretation to give effect to both stipulations in the
contract is for Clause 16 to be confined to all claims or disputes arising from or relating to the design,
drawing, instructions, specifications or quality of the materials of the supply order/contract, and for
Clause 15 to cover all other claims or disputes.

The petitioner then asseverates that granting, for the sake of argument, that the non-delivery of the
oil well cement is not a proper subject for arbitration, the failure of the replacement cement to
conform to the specifications of the contract is a matter clearly falling within the ambit of Clause 16.
In this contention, we find merit. When the 4,300 metric tons of oil well cement were not delivered to
the petitioner, an agreement was forged between the latter and the private respondent that Class "G"
cement would be delivered to the petitioner as replacement. Upon inspection, however, the
replacement cement was rejected as it did not conform to the specifications of the contract. Only
after this latter circumstance was the matter brought before the arbitrator. Undoubtedly, what was
referred to arbitration was no longer the mere non-delivery of the cargo at the first instance but also
the failure of the replacement cargo to conform to the specifications of the contract, a matter clearly
within the coverage of Clause 16.

The private respondent posits that it was under no legal obligation to make replacement and that it
undertook the latter only "in the spirit of liberality and to foster good business relationship". 20 Hence,
the undertaking to deliver the replacement cement and its subsequent failure to conform to
specifications are not anymore subject of the supply order/contract or any of the provisions thereof.
We disagree.

As per Clause 7 of the supply order/contract, the private respondent undertook to deliver the 4,300
metric tons of oil well cement at "BOMBAY (INDIA) 2181 MT and CALCUTTA 2119 MT". 21 The
failure of the private respondent to deliver the cargo to the designated places remains undisputed.
Likewise, the fact that the petitioner had already paid for the cost of the cement is not contested by
the private respondent. The private respondent claims, however, that it never benefited from the
transaction as it was not able to recover the cargo that was unloaded at the port of Bangkok. 22 First
of all, whether or not the private respondent was able to recover the cargo is immaterial to its
subsisting duty to make good its promise to deliver the cargo at the stipulated place of delivery.
Secondly, we find it difficult to believe this representation. In its Memorandum filed before this Court,
the private respondent asserted that the Civil Court of Bangkok had already ruled that the non-
delivery of the cargo was due solely to the fault of the carrier. 23 It is, therefore, but logical to assume
that the necessary consequence of this finding is the eventual recovery by the private respondent of
the cargo or the value thereof. What inspires credulity is not that the replacement was done in the
spirit of liberality but that it was undertaken precisely because of the private respondent's recognition
of its duty to do so under the supply order/contract, Clause 16 of which remains in force and effect
until the full execution thereof.

We now go to the issue of whether or not the judgment of the foreign court is enforceable in this
jurisdiction in view of the private respondent's allegation that it is bereft of any statement of facts and
law upon which the award in favor of the petitioner was based. The pertinent portion of the judgment
of the foreign court reads:

ORDER
 Award dated 23.7.88, Paper No. 3/B-1 is made Rule of the Court. On the basis of
conditions of award decree is passed. Award Paper No. 3/B-1 shall be a part of the
decree. The plaintiff shall also be entitled to get from defendant (US$ 899,603.77
(US$ Eight Lakhs ninety nine thousand six hundred and three point seventy seven
only) along with 9% interest per annum till the last date of realisation. 24

As specified in the order of the Civil Judge of Dehra Dun, "Award Paper No. 3/B-1 shall be a part of
the decree". This is a categorical declaration that the foreign court adopted the findings of facts and
law of the arbitrator as contained in the latter's Award Paper. Award Paper No. 3/B-1, contains an
exhaustive discussion of the respective claims and defenses of the parties, and the arbitrator's
evaluation of the same. Inasmuch as the foregoing is deemed to have been incorporated into the
foreign court's judgment the appellate court was in error when it described the latter to be a
"simplistic decision containing literally, only the dispositive portion". 25

The constitutional mandate that no decision shall be rendered by any court without expressing
therein dearly and distinctly the facts and the law on which it is based does not preclude the validity
of "memorandum decisions" which adopt by reference the findings of fact and conclusions of law
contained in the decisions of inferior tribunals. In Francisco v. Permskul, 26 this Court held that the
following memorandum decision of the Regional Trial Court of Makati did not transgress the
requirements of Section 14, Article VIII of the Constitution:

MEMORANDUM DECISION

After a careful perusal, evaluation and study of the records of this case, this Court
hereby adopts by reference the findings of fact and conclusions of law contained in
the decision of the Metropolitan Trial Court of Makati, Metro Manila, Branch 63 and
finds that there is no cogent reason to disturb the same.

WHEREFORE, judgment appealed from is hereby affirmed in toto. 27 (Emphasis

supplied.)

This Court had occasion to make a similar pronouncement in the earlier case of Romero v.
Court of Appeals, 28 where the assailed decision of the Court of Appeals adopted the findings
and disposition of the Court of Agrarian Relations in this wise:

We have, therefore, carefully reviewed the evidence and made a re-assessment of

the same, and We are persuaded, nay compelled, to affirm the correctness of the
trial court's factual findings and the soundness of its conclusion. For judicial
convenience and expediency, therefore, We hereby adopt by way of reference, the
findings of facts and conclusions of the court a quo spread in its decision, as integral
part of this Our decision. 29 (Emphasis supplied)

Hence, even in this jurisdiction, incorporation by reference is allowed if only to avoid the
cumbersome reproduction of the decision of the lower courts, or portions thereof, in the
decision of the higher court. 30 This is particularly true when the decision sought to be
incorporated is a lengthy and thorough discussion of the facts and conclusions arrived at, as
in this case, where Award Paper No. 3/B-1 consists of eighteen (18) single spaced pages.

Furthermore, the recognition to be accorded a foreign judgment is not necessarily affected by the
fact that the procedure in the courts of the country in which such judgment was rendered differs from
that of the courts of the country in which the judgment is relied on. 31 This Court has held that matters
of remedy and procedure are governed by the lex fori or the internal law of the forum. 32 Thus, if
under the procedural rules of the Civil Court of Dehra Dun, India, a valid judgment may be rendered
by adopting the arbitrator's findings, then the same must be accorded respect. In the same vein, if
the procedure in the foreign court mandates that an Order of the Court becomes final and executory
upon failure to pay the necessary docket fees, then the courts in this jurisdiction cannot invalidate
the order of the foreign court simply because our rules provide otherwise.

The private respondent claims that its right to due process had been blatantly violated, first by
reason of the fact that the foreign court never answered its queries as to the amount of docket fees
to be paid then refused to admit its objections for failure to pay the same, and second, because of
the presumed bias on the part of the arbitrator who was a former employee of the petitioner.

Time and again this Court has held that the essence of due process is to be found in the reasonable
opportunity to be heard and submit any evidence one may have in support of one's defense 33 or
stated otherwise, what is repugnant to due process is the denial of opportunity to be heard. 34 Thus,
there is no violation of due process even if no hearing was conducted, where the party was given a
chance to explain his side of the controversy and he waived his right to do so. 35

In the instant case, the private respondent does not deny the fact that it was notified by the foreign
court to file its objections to the petition, and subsequently, to pay legal fees in order for its
objections to be given consideration. Instead of paying the legal fees, however, the private
respondent sent a communication to the foreign court inquiring about the correct amount of fees to
be paid. On the pretext that it was yet awaiting the foreign court's reply, almost a year passed
without the private respondent paying the legal fees. Thus, on February 2, 1990, the foreign court
rejected the objections of the private respondent and proceeded to adjudicate upon the petitioner's
claims. We cannot subscribe to the private respondent's claim that the foreign court violated its right
to due process when it failed to reply to its queries nor when the latter rejected its objections for a
clearly meritorious ground. The private respondent was afforded sufficient opportunity to be heard. It
was not incumbent upon the foreign court to reply to the private respondent's written communication.
On the contrary, a genuine concern for its cause should have prompted the private respondent to
ascertain with all due diligence the correct amount of legal fees to be paid. The private respondent
did not act with prudence and diligence thus its plea that they were not accorded the right to
procedural due process cannot elicit either approval or sympathy from this Court. 36

The private respondent bewails the presumed bias on the part of the arbitrator who was a former
employee of the petitioner. This point deserves scant consideration in view of the following
stipulation in the contract:

. . . . It will be no objection any such appointment that the arbitrator so appointed is a

Commission employer (sic) that he had to deal with the matter to which the supply or
contract relates and that in the course of his duties as Commission's employee he
had expressed views on all or any of the matter in dispute or difference. 37 (Emphasis
supplied.)

Finally, we reiterate hereunder our pronouncement in the case of Northwest Orient Airlines, Inc. v.
Court of Appeals 38 that:

A foreign judgment is presumed to be valid and binding in the country from which it
comes, until the contrary is shown. It is also proper to presume the regularity of the
proceedings and the giving of due notice therein.

Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in

personam of a tribunal of a foreign country having jurisdiction to pronounce the same
 is presumptive evidence of a right as between the parties and their successors-in-
interest by a subsequent title. The judgment may, however, be assailed by evidence
of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
law or fact. Also, under Section 3 of Rule 131, a court, whether of the Philippines or
elsewhere, enjoys the presumption that it was acting in the lawful exercise of
jurisdiction and has regularly performed its official duty. 39

Consequently, the party attacking a foreign judgment, the private respondent herein, had the
burden of overcoming the presumption of its validity which it failed to do in the instant case.

The foreign judgment being valid, there is nothing else left to be done than to order its enforcement,
despite the fact that the petitioner merely prays for the remand of the case to the RTC for further
proceedings. As this Court has ruled on the validity and enforceability of the said foreign judgment in
this jurisdiction, further proceedings in the RTC for the reception of evidence to prove otherwise are
no longer necessary.

WHEREFORE, the instant petition is GRANTED, and the assailed decision of the Court of Appeals
sustaining the trial court's dismissal of the OIL AND NATURAL GAS COMMISSION's complaint in
Civil Case No. 4006 before Branch 30 of the RTC of Surigao City is REVERSED, and another in its
stead is hereby rendered ORDERING private respondent PACIFIC CEMENT COMPANY, INC. to
pay to petitioner the amounts adjudged in the foreign judgment subject of said case.

SO ORDERED.

Tanada v Cuenco
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10520 February 28, 1957

LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, petitioners,

vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA
CAYETANO, MANUEL SERAPIO, PLACIDO REYES, and FERNANDO HIPOLITO in his capacity
as cashier and disbursing officer,respondents.

Tañada, Teehankee and Macapagal for petitioners.

Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr. for
respondents.

CONCEPCION, J.:

Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and President of the
Citizens Party, whereas petitioner Diosdado Macapagal, a member of the House of Representatives
of the Philippines, was one of the official candidates of the Liberal Party for the Senate, at the
General elections held in November, 1955, in which Pacita Madrigal Warns, Lorenzo Sumulong,
Quintin Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso
Rosales, were proclaimed elected. Subsequently, the elections of this Senators-elect-who eventually
assumed their respective seats in the Senate-was contested by petitioner Macapagal, together with
Camilo Osias, Geronima Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and William
Chiongbian-who had, also, run for the Senate, in said election-in Senate Electoral Case No. 4, now
pending before the Senate Electoral Tribunal. .

The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias, on
behalf of the Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano
Primicias, as members of the Senate Electoral Tribunal. Upon nomination of petitioner Senator
Tañada, on behalf of the Citizens Party, said petitioner was next chosen by the Senate as member
of said Tribunal. Then, upon nomination of Senator Primicias on behalf of the Committee on Rules of
the Senate, and over the objections of Senators Tañada and Sumulong, the Senate choose
respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the same
Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz and Catalina
Cayetano, as technical assistant and private secretary, respectively, to Senator Cuenco, as
supposed member of the Senate Electoral Tribunal, upon his recommendation of said respondent;
and (2) Manuel Serapio and Placido Reyes, as technical assistant and private secretary,
respectively to Senator Delgado, as supposed member of said Electoral Tribunal, and upon his
recommendation.

Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado Macapagal instituted the
case at bar against Senators Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, as well as Fernando Hipolito, in his capacity as Cashier and
Disbursing Officer of the Senate Electoral Tribunal. Petitioners allege that on February 22, 1956, as
well as at present, the Senate consists of 23 Senators who belong to the Nacionalista Party, and one
(1) Senator-namely, petitioner, Lorenzo M. Tañada-belonging to the Citizens Party; that the
Committee on Rules for the Senate, in nominating Senators Cuenco and Delgado, and the Senate,
in choosing these respondents, as members of the Senate Electoral Tribunal, had "acted absolutely
without power or color of authority and in clear violation .. of Article VI, Section 11 of the
Constitution"; that "in assuming membership in the Senate Electoral Tribunal, by taking the
corresponding oath of office therefor", said respondents had "acted absolutely without color of
appointment or authority and are unlawfully, and in violation of the Constitution, usurping, intruding
into and exercising the powers of members of the Senate Electoral Tribunal"; that, consequently, the
appointments of respondents, Cruz, Cayetano, Serapio and Reyes, as technical assistants and
private secretaries to Senators Cuenco and Delgado-who caused said appointments to be made-as
members of the Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and
Delgado "are threatening and are about to take cognizance of Electoral Case No. 4 of the Senate
Electoral Tribunal, as alleged members thereof, in nullification of the rights of petitioner Lorenzo M.
Tañada, both as a Senator belonging to the Citizens Party and as representative of the Citizens
Party in the Senate Electoral Tribunal, and in deprivation of the constitutional rights of petitioner
Diosdado Macapagal and his co-protestants to have their election protest tried and decided-by an
Electoral Tribunal composed of not more than three (3) senators chosen by the Senate upon
nomination of the party having the largest number of votes in the Senate and not more than the (3)
Senators upon nomination of the Party having the second largest number of votes therein, together,
three (3) Justice of the Supreme Court to be designated by the Chief Justice, instead of by an
Electoral Tribunal packed with five members belonging to the Nacionalista Party, which is the rival
party of the Liberal Party, to which the Petitioner Diosdado Macapagal and his co-protestants in
Electoral Case No. 4 belong, the said five (5) Nacionalista Senators having been nominated and
chosen in the manner alleged.. hereinabove.".

Petitioners pray that:.

"1. Upon petitioners' filing of bond in such amount as may be determined by this Honorable Court, a
writ of preliminary injunction be immediately issued directed to respondents Mariano J. Cuenco,
Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes,
restraining them from continuing to usurp, intrude into and/ or hold or exercise the said public offices
respectively being occupied by them in the Senate Electoral Tribunal, and to respondent Fernando
Hipolito restraining him from paying the salaries of respondent Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, pending this action.

"2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco Francisco A.
Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes from the
aforementioned public offices in the Senate Electoral Tribunal and that they be altogether excluded
therefrom and making the Preliminary injunction permanent, with costs against the respondents.".

Respondents have admitted the main allegations of fact in the petition, except insofar as it questions
the legality, and validity of the election of respondents Senators Cuenco and Delgado, as members
of the Senate Electoral Tribunal, and of the appointment of respondent Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes as technical assistants and private secretaries to said
respondents Senators. Respondents, likewise, allege, by way of special and affirmative defenses,
that: (a) this Court is without power, authority of jurisdiction to direct or control the action of the
Senate in choosing the members of the Electoral Tribunal; and (b) that the petition states no cause
of action, because "petitioner Tañada has exhausted his right to nominate after he nominated
himself and refused to nominate two (2) more Senators", because said petitioner is in estoppel, and
because the present action is not the proper remedy. .

I. Respondents assail our jurisdiction to entertain the petition, upon the ground that the power to
choose six (6) Senators as members of the Senate Electoral Tribunal has been expressly conferred
by the Constitution upon the Senate, despite the fact that the draft submitted to the constitutional
convention gave to the respective political parties the right to elect their respective representatives in
the Electoral Commission provided for in the original Constitution of the Philippines, and that the only
remedy available to petitioners herein "is not in the judicial forum", but "to bring the matter to the bar
of public opinion.".

We cannot agree with the conclusion drawn by respondents from the foregoing facts. To begin with,
unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino (77 Phil., 192)-relied
upon by the respondents this is not an action against the Senate, and it does not seek to compel the
latter, either directly or indirectly, to allow the petitioners to perform their duties as members of said
House. Although the Constitution provides that the Senate shall choose six (6) Senators to be
members of the Senate Electoral Tribunal, the latter is part neither of Congress nor of the Senate.
(Angara vs. Electoral Commission, 63 Phil., 139, Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off.
Gaz., 462.).

Secondly, although the Senate has, under the Constitution, the exclusive power to choose the
Senators who shall form part of the Senate Electoral Tribunal, the fundamental law has prescribed
the manner in which the authority shall be exercised. As the author of a very enlightening study on
judicial self-limitation has aptly put it:.

"The courts are called upon to say, on the one hand, by whom certain powers shall be exercised,
and on the other hand, to determine whether the powers possessed have been validly exercised. In
performing the latter function, they do not encroach upon the powers of a coordinate branch of the,
government, since the determination of the validity of an act is not the same, thing as the
performance of the act. In the one case we are seeking to ascertain upon whom devolves the duty of
the particular service. In the other case we are merely seeking to determine whether the Constitution
has been violated by anything done or attented by either an executive official or the legislative."
(Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis
supplied,).

The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes their own pretense.
This Court exercised its jurisdiction over said case and decided the same on the merits thereof,
despite the fact that it involved an inquiry into the powers of the Senate and its President over the
Senate Electoral Tribunal and the personnel thereof. .

Again, under the Constitution, "the legislative power" is vested exclusively in the Congress of the
Philippines. Yet, this does not detract from the power of the courts to pass upon the constitutionality
of acts of Congress 1 And, since judicial power includes the authority to inquire into the legality of
statutes enacted by the two Houses of Congress, and approved by the Executive, there can be no
reason why the validity of an act of one of said Houses, like that of any other branch of the
Government, may not be determined in the proper actions. Thus, in the exercise of the so-called
"judicial supremacy", this Court declared that a resolution of the defunct National Assembly could not
bar the exercise of the powers of the former Electoral Commission under the original Constitution. 2
(Angara vs. Electoral Commission, supra), and annulled certain acts of the Executive 3 as
incompatible with the fundamental law.

In fact, whenever the conflicting claims of the parties to a litigation cannot properly be settled without
inquiring into the validity of an act of Congress or of either House thereof, the courts have, not only
jurisdiction to pass upon said issue, but, also, the duty to do so, which cannot be evaded without
violating the fundamental law and paving the way to its eventual destruction. 4.

Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco (88 Phil.,
654), likewise, invoked by respondents, in point. In the Mabanag case, it was held that the courts
could not review the finding of the Senate to the effect that the members thereof who had been
suspended by said House should not be considered in determining whether the votes cast therein, in
favor of a resolution proposing an amendment to the Constitution, sufficed to satisfy the
requirements of the latter, such question being a political one. The weight of this decision, as a
precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83 Phil., 17), in
which this Court proceeded to determine the number essential to constitute a quorum in the Senate.
Besides, the case at bar does not hinge on the number of votes needed for a particular act of said
body. The issue before us is whether the Senate-after acknowledging that the Citizens Party is the
party, having the second largest number of votes in the Senate, to which party the Constitution gives
the right to nominate three (3) Senators for the Senate electoral Tribunal-could validly choose
therefor two (2) Nacionalista Senators, upon nomination by the floor leader of the Nacionalista Party
in the Senate, Senator Primicias claiming to act on behalf of the Committee on Rules for the Senate.

The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing its
representation in the Commission on Appointments. This was decided in the negative, upon the
authority of Alejandrino vs. Quezon (supra) and Vera vs. Avelino (supra), the main purpose of the
petition being "to force upon the Senate the reinstatement of Senator Magalona in the Commission
on Appointments," one-half (1/2) of the members of which is to be elected by each House on the
basis of proportional representation of the political parties therein. Hence, the issue depended
mainly on the determination of the political alignment of the members of the Senate at the time of
said reorganization and of the necessity or advisability of effecting said reorganization, which is a
political question. We are not called upon, in the case at bar, to pass upon an identical or similar
question, it being conceded, impliedly, but clearly, that the Citizens Party is the party with the second
largest number of votes in the Senate. The issue, therefore, is whether a right vested by the
Constitution in the Citizens Party may validly be exercised, either by the Nacionalista Party, or by the
Committee on Rules for the Senate, over the objection of said Citizens Party.

xxx xxx xxx

The only ground upon which respondents' objection to the jurisdiction of this Court and their theory
to the effect that the proper remedy for petitioners herein is, not the present action, but an appeal to
public opinion, could possibly be entertained is, therefore, whether the case at bar raises merely a
political question, not one justiciable in nature.

In this connection, respondents assert in their answer that "the remedy of petitioners is not in the
judicial forum, but, to use petitioner, Tañada's own words, to bring the matter to the bar of public
opinion' (p. 81, Discussion on the Creation of the Senate Electoral Tribunal, February 21, 1956)."
This allegation may give the impression that said petitioner had declared, on the floor of the Senate,
that his only relief against the acts complained of in the petition is to take up the issue before the
people- which is not a fact. During the discussions in the Senate, in the course of the organization of
the Senate Electoral Tribunal, on February 21, 1956, Senator Tañada was asked what remedies he
would suggest if he nominated two (2) Nacionialista Senators and the latter declined the,
nomination. Senator Tañada replied:.

"There are two remedies that occur to my mind right now, Mr. Senator; one is the remedy open to all
of us that if we feel aggrieved and there is no recourse in the court of justice, we can appeal to public
opinion. Another remedy is an action in the Supreme Court. Of course, as Senator Rodriguez, our
President here, has said one day; "If you take this matter to the Supreme Court, you will lose,
because until now the Supreme Court has always ruled against any action that would constitute
interference in the business of anybody pertaining to the Senate. The theory of separation of powers
will be upheld by the Supreme Court." But that learned opinion of Senator Rodriguez, our President,
notwithstanding, I may take the case to the Supreme Court if my right herein is not respected. I may
lose, Mr. President, but who has not lost in the Supreme Court? I may lose because of the theory of
the separation of powers, but that does not mean, Mr. President, that what has been done here is
pursuant to the provision of the Constitution." (Congressional Record, Vol. III, p. 339; emphasis
supplied.).

This statement did not refer to the nomination, by Senator Primicias, and the election, by the Senate,
of Senators Cuenco and Delgado as members of said Tribunal. Indeed, said nomination and election
took place the day after the aforementioned statement of Senator Tañada was made. At any rate,
the latter announced that he might "take the case to the Supreme Court if my right here is not
respected.".

As already adverted to, the objection to our jurisdiction hinges on the question whether the issue
before us is political or not. In this connection, Willoughby lucidly states:.

"Elsewhere in this treatise the well-known and well-established principle is considered that it is not
within the province of the courts to pass judgment upon the policy of legislative or executive action.
Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in
which those powers are exercised is not subject to judicial review. The courts, therefore, concern
themselves only with the question as to the existence and extent of these discretionary powers.

"As distinguished from the judicial, the legislative and executive departments are spoken of as the
political departments of government because in very many cases their action is necessarily dictated
by considerations of public or political policy. These considerations of public or political policy of
course will not permit the legislature to violate constitutional provisions, or the executive to exercise
authority not granted him by the Constitution or by, statute, but, within these limits, they do permit
the departments, separately or together, to recognize that a certain set of facts exists or that a given
status exists, and these determinations, together with the consequences that flow therefrom, may
not be traversed in the courts." (Willoughby on the Constitution of the United States, Vol. 3, p. 1326;
emphasis supplied.).

To the same effect is the language used in Corpus Juris Secundum, from which we quote:.

"It is well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred upon the courts by express
constitutional or statutory provisions.

"It is not easy, however, to define the phrase `political question', nor to determine what matters, fall
within its scope. It is frequently used to designate all questions that lie outside the scope of the
judicial 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." (16 C.J.S., 413; see, also Geauga Lake Improvement Ass'n.
vs. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs, Elizalde, 112 F. 2d 29, 72 App. D. C., 108;
emphasis supplied.).

Thus, it has been repeatedly held that the question whether certain amendments to the Constitution
are invalid for non-compliance with the procedure therein prescribed, is not a political one and may
be settled by the Courts. 5 .

In the case of In re McConaughy (119 N.W. 408), the nature of political question was considered
carefully. The Court said:.
"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 x x x.

" .. 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, 51 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 a 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 question, but because they are matters which the people have
by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated
to him, free from judicial control, so long as he observes the laws and acts within the limits of the
power conferred. His discretionary acts cannot be controllable, not primarily because they are of a
political nature, but because the Constitution and laws have placed the particular matter under his
control. But every officer under a constitutional government must act according to law and subject
him to the restraining and controlling power of the people, acting through the 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
men'-words which Webster said were the greatest contained in any written constitutional document."
(pp. 411, 417; emphasis supplied.).

In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. 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.

Such is not the nature of the question for determination in the present case. Here, we are called
upon to decide whether the election of Senators Cuenco and Delgado, by the Senate, as members
of the Senate Electoral Tribunal, upon nomination by Senator Primicias-a member and spokesman
of the party having the largest number of votes in the Senate-on behalf of its Committee on Rules,
contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be
chosen "upon nomination .. of the party having the second largest number of votes" in the Senate,
and hence, is null and void. This is not a political question. The Senate is not clothed with "full
discretionary authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its
power thereon is subject to constitutional limitations which are claimed to be mandatory in nature. It
is clearly within the legitimate prove of the judicial department to pass upon the validity the
proceedings in connection therewith.

".. whether an election of public officers has been in accordance with law is for the judiciary.
Moreover, where the legislative department has by statute prescribed election procedure in a given
situation, the judiciary may determine whether a particular election has been in conformity with such
statute, and, particularly, whether such statute has been applied in a way to deny or transgress on
the constitutional or statutory rights .." (16 C.J.S., 439; emphasis supplied.).

It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and
determine the principal issue raised by the parties herein.

II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the Electoral
Tribunal, valid and lawful?.

Section 11 of Article VI of the Constitution, reads:.

"The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or of the House of Representatives, as the case may be, who shall be
chosen by each House, three upon nomination of the party having the largest number of votes and
three of the party having the second largest number of votes therein. The Senior Justice in each
Electoral Tribunal shall be its Chairman." (Emphasis supplied.).

It appears that on February 22, 1956, as well as at present, the Senate of the Philippines consists of
twenty three (23) members of the Nacionalista Party and one (1) member of the Citizens Party,
namely, Senator Tañada, who is, also, the president of said party. In the session of the Senate held
on February 21, 1956, Senator Sabido moved that Senator Tañada, "the President of the Citizens
Party, be given the privilege to nominate .. three (3) members" of the Senate Electoral Tribunal
(Congressional Record for the Senate, Vol. III, pp. 328-329), referring to those who, according to the
provision above-quoted, should be nominated by "the party having the second largest number of
votes" in the Senate. Senator Tañada objected formally to this motion upon the-ground: (a) that the
right to nominate said members of the Senate Electoral Tribunal belongs, not to the Nacionalista
Party of which Senator Sabido and the other Senators are members-but to the Citizens Party, as the
one having the second largest number of votes in the Senate, so that, being devoid of authority to
nominate the aforementioned members of said Tribunal, the Nacionalista Party cannot give it to the
Citizens Party, which, already, has such authority, pursuant to the Constitution; and (b) that Senator
Sabido's motion would compel Senator Tañada to nominate three (3) Senators to said Tribunal,
although as representative of the minority party in the Senate he has "the right to nominate one, two
or three to the Electoral Tribunal," in his discretion. Senator Tañada further stated that he reserved
the right to determine how many he would nominate, after hearing the reasons of Senator Sabido in
support of his motion. After some discussion, in which Senators Primicias, Cea, Lim, Sumulong,
Zulueta, and Rodrigo took part, the Senate adjourned until the next morning, February 22, 1956
(Do., do, pp. 329, 330, 332-333, 336, 338, 339, 343).

Then, said issues were debated upon more extensively, with Senator Sumulong, not only seconding
the opposition of Senator Tañada, but, also, maintaining that "Senator Tañada should nominate only
one" member of the Senate, namely, himself, he being the only Senator who belongs to the minority
party in said House (Do., do., pp. 360-364, 369). Thus, a new issue was raised - whether or not one
who does not belong to said party may be nominated by its spokesman, Senator Tañada - on which
Senators Paredes, Pelaez, Rosales and Laurel, as well as the other Senators already mentioned,
expressed their views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375). Although the deliberations of
the Senate consumed the whole morning and afternoon of February 22, 1956, a satisfactory solution
of the question before the Senate appeared to be remote. So, at 7:40 p.m., the meeting was
suspended, on motion of Senator Laurel, with a view to seeking a compromise formula (Do., do., pp.
377). When session was resumed at 8:10 p.m., Senator Sabido withdrew his motion above referred
to. Thereupon, Senator Primicias, on behalf of the Nacionalista Party, nominated, and the Senate
elected, Senators Laurel, Lopez and Primicias, as members of the Senate Electoral Tribunal.
Subsequently, Senator Tañada stated:.

"On behalf of the Citizens Party, the minority party in this Body, I nominate the only Citizens Party
member in this Body, and that is Senator Lorenzo M. Tañada.".

Without an objection, this nomination was approved by the House. Then, Senator Primicias stood up
and said:.

"Now, Mr. President, in order to comply with the provision in the Constitution, the Committee on
Rules of the Senate-and I am now making this proposal not on behalf of the Nacionalista Party but
on behalf of the Committee on Rules of the Senate-I nominate two other members to complete the
membership of the Tribunal: Senators Delgado and Cuenco.".

What took place thereafter appears in the following quotations from the Congressional Record for
the Senate.

"SENATOR TAÑADA. Mr. President.

"EL PRESIDENTE INTERINO. Caballero de Quezon.

"SENATOR TAÑADA. I would like to record my opposition to the nominations of the last two named
gentlemen, Senators Delgado and Cuenco, not because I don't believe that they do not deserve to
be appointed to the tribunal but because of my sincere and firm conviction that these additional
nominations are not sanctioned by the Constitution. The Constitution only permits the Nacionalista
Party or the party having the largest number of votes to nominate three.

"SENATOR SUMULONG. Mr. President.

"EL PRESIDENTE INTERINO. Caballero de Rizal.

"SENATOR SUMULONG. For the reasons that I have stated a few moments ago when I took the
floor, I also wish to record my objection to the last nominations, to the nomination of two additional
NP's to the Electoral Tribunal.

"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores: Si.) Los que
esten conformes con la nominacion hecha por el Presidente del Comite de Reglamentos a favor de
los Senadores Delgado y Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios
Senadores: Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada." (Congressional Record
for the Senate, Vol. III, p. 377; emphasis supplied.).

Petitioners maintain that said nomination and election of Senators Cuenco and Delgado-who belong
to the Nacionalista Party-as members of the Senate Electoral Tribunal, are null and void and have
been made without power or color of authority, for, after the nomination by said party, and the
election by the Senate, of Senators Laurel, Lopez and Primicias, as members of said Tribunal, the
other Senators, who shall be members thereof, must necessarily be nominated by the party having
the second largest number of votes in the Senate, and such party is, admittedly, the Citizens Party,
to which Senator Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that "each Electoral
Tribunal shall be compose of nine (9) members," six (6) of whom "shall be members of the Senate or
of the House of Representatives, as the case may be", is mandatory; that when-after the nomination
of three (3) Senators by the majority party, and their election by the Senate, as members of the
Senate Electoral Tribunal-Senator Tañada nominated himself only, on behalf of the minority party,
he thereby "waived his right to no two more Senators;" that, when Senator Primicias nominated
Senators Cuenco and Delgado, and these respondents were chosen by the Senate, as members of
the Senate Electoral Tribunal, Said Senator Primicias and the Senate merely complied with the
aforementioned provision of the fundamental law, relative to the number of members of the Senate
Electoral Tribunal; and, that, accordingly, Senators Cuenco and Delgado are de jure members of
said body, and the appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes is valid and lawful.

At the outset, it will be recalled that the proceedings the organization of the Senate Electoral Tribunal
began with a motion of Senator Sabido to the effect that "the distinguished gentleman from Quezon,
the President of the Citizens Party, be given the privilege to nominate the three Members" of said
Tribunal. Senator Primicias inquired why the movant had used the word "privilege". Senator Sabido
explained that the present composition of the Senate had created a condition or situation which was
not anticipated by the framers of our Constitution; that although Senator Tañada formed part of the
Nacionalista Party before the end of 1955, he subsequently parted ways with" said party; and that
Senator Tañada "is the distinguished president of the Citizens Party," which "approximates the
situation desired by the framers of the Constitution" (Congressional Record for the Senate Vol. III,
pp. 329-330). Then Senator Lim intervened, stating:.

"At present Senator Tañada is considered as forming the only minority or the one that has the
second largest number of votes in the existing Senate, is not that right? And if this is so, he should
be given this as a matter of right, not as a matter of privilege. .. I don't believe that we should be
allowed to grant this authority to Senator Tañada only as a privilege but we must grant it as a matter
of right." (Id., id., p. 32; emphasis supplied.).

Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party Senator, has the
right and not a mere privilege to nominate," adding that:.

".. the question is whether we have a party here having the second largest number of votes, and it is
clear in my mind that there is such a party, and that is the Citizens Party to which the gentleman
from Quezon belongs. .. We have to bear in mind, .. that when Senator Tañada was included in the
Nacionalista Party ticket in 1953, it was by virtue of a coalition or an alliance between the Citizens
Party and the Nacionalista Party at that time, and I maintain that when Senator Tañada as head of
the Citizens Party entered into a coalition with the Nacionalista Party, he did not thereby become a
Nacionalista because that was a mere coalition, not a fusion. When the Citizens Party entered into a
mere coalition, that party did not lose its personality as a party separate and distinct from the,
Nacionalista Party. And we should also remember that the certificate of candidacy filed by Senator
Tañada in the 1953 election was one to the effect that he belonged to the Citizens Party .." (Id., id.,
p. 360; emphasis supplied.).

The debate was closed by Senator Laurel, who remarked, referring to Senator Tañada:.

"..there is no doubt that he does not belong to the majority in the first place, and that, therefore, he
belongs to the minority. And whether we like it or not, that is the reality of the actual situation-that he
is not a Nacionalista now, that he is the head and the representative of the Citizens Party. I think that
on equitable ground and from the point of view of public opinion, his situation .. approximates or
approaches what is within the spirit of that Constitution. .. and from the point of view of the spirit of
the Constitution it would be a good thing if we grant the opportunity to Senator Tañada to help us in
the organization of this Electoral Tribunal (Id., id., p. 376; emphasis supplied.).

The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his motion to grant
Senator Tañada the "privilege" to nominate, and said petitioner actually nominated himself "on
behalf of the Citizens Party, the minority party in this Body"-not only without any, objection
whatsoever, but, also, with the approval of the Senate-leave no room for doubt that the Senate-leave
no room for doubt that the Senate has regarded the Citizens Party, represented by Senator Tañada,
as the party having the second largest number of votes in said House.

Referring, now, to the contention of respondents herein, their main argument in support of the
mandatory character of the constitutional provision relative to the number of members of the Senate
Electoral Tribunal is that the word "shall", therein used, is imperative in nature and that this is borne
out by an opinion of the Secretary of Justice dated February 1, 1939, pertinent parts of which are
quoted at the footnote. 6.

Regardless of the respect due its author, as a distinguished citizen and public official, said opinion
has little, if any, weight in the solution of the question before this Court, for the practical construction
of a Constitution is of little, if any, unless it has been uniform .." 6a Again, "as a general rule, it is only
in cases of substantial doubt and ambiguity that the doctrine of contemporaneous or practical
construction has any application". As a consequence, "where the meaning of a constitutional
provision is clear, a contemporaneous or practical executive interpretation thereof is entitled to no
weight, and will not be allowed to distort or in any way change its natural meaning." The reason is
that "the application of the doctrine of contemporaneous construction is more restricted as applied to
the interpretation of constitutional provisions than when applied to statutory provisions", and that,
"except as to matters committed by the Constitution, itself to the discretion of some other
department, contemporary or practical construction is not necessarily binding upon the courts, even
in a doubtful case." Hence, "if in the judgment of the court, such construction is erroneous and its
further application is not made imperative by any paramount considerations of public policy, it may
he rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b.

The aforemention opinion of the Secretary of Justice is not backed up by a, "uniform" application of
the view therein adopted, so essential to give thereto the weight accorded by the rules on
contemporaneous constructions. Moreover, said opinion tends to change the natural meaning of
section 11 of Article VI of the Constitution, which is clear. What is more, there is not the slightest
doubt in our mind that the purpose and spirit of said provisions do not warrant said change and that
the rejection of the latter is demanded by paramount considerations of public policy. .

The flaw in the position taken in said opinion and by respondent herein is that, while, it relies upon
the compulsory nature of the word "shall", as regards the number of members of the Electoral
Tribunals, it ignores the fact that the same term is used with respect to the method prescribed for
their election, and that both form part of a single sentence and must be considered, therefore, as
integral portions of one and the same thought. Indeed, respondents have not even tried to show and
we cannot conceive-why "shall" must be deemed mandatory insofar as the number of members of
each Electoral Tribunal, and should be considered directory as regards the procedure for their
selection. More important still, the history of section 11 of Article VI of the Constitution and the
records of the Convention, refute respondents' pretense, and back up the theory of petitioners
herein.

Commenting on the frame of mind of the delegates to the Constitutional Convention, when they
faced the task of providing for the adjudication of contests relating to the election, returns and
qualifications of members of the Legislative Department, Dr. Jose M. Aruego, a member of said
Convention, says:.

"The experience of the Filipino people under the provisions of the organic laws which left to the
lawmaking body the determination of the elections, returns, and qualifications of its members was
not altogether satisfactory. There were many complaints against the lack of political justice in this
determination; for in a great number of cases, party interests controlled and dictated the decisions.
The undue delay in the dispatch of election contests for legislative seats, the irregularities that
characterized the proceedings in some of them, and the very apparent injection of partisanship in the
determination of a great number of the cases were decried by a great number of the people as well
as by the organs of public opinion.

"The faith of the people in the uprightness of the lawmaking body in the performance of this function
assigned to it in the organic laws was by no means great. In fact so blatant was the lack of political
justice in the decisions that there was, gradually built up a camp of thought in the Philippines inclined
to leave to the courts the determination of election contests, following the practice in some countries,
like England and Canada.

"Such were the conditions of things at the time of the meeting of the convention." (The Framing of
the Philippine Constitution by Aruego, Vol. 1, pp. 257-258; emphasis supplied.).

This view is shared by distinguished members of the Senate. Thus, in its session of February 22,
1956, Senator Sumulong declared:.

".. when you leave it to either House to decide election protests involving its own members, that is
virtually placing the majority party in a position to dictate the decision in those election cases,
because each House will be composed of a majority and a minority, and when you make each
House the judge of every election protest involving any member of that House, you place the
majority in a position to dominate and dictate the decision in the case and result was, there were so
many abuses, there were so main injustices: committed by the majority at the expense and to the
prejudice of the minority protestants. Statements have been made here that justice was done even
under the old system, like that case involving Senator Mabanag, when he almost became a victim of
the majority when he had an election case, and it was only through the intervention of President
Quezon that he was saved from becoming the victim of majority injustices.

"It is true that justice had sometimes prevailed under the old system, but the record will show that
those cases were few and they were the rare exceptions. The overwhelming majority of election
protests decided under the old system was that the majority being then in a position to dictate the,
decision in the election protest, was tempted to commit as it did commit many abuses and
injustices." (Congressional Record for the Senate, Vol. 111, p. 361; emphasis supplied.).

Senator Paredes, a veteran legislator and former Speaker of the House of Representatives, said:.

".. what was intended in the creation of the electoral tribunal was to create a sort of collegiate court
composed of nine members: Three of them belonging to the party having the largest number of
votes, and three from the party having the second largest number votes so that these members may
represent the party, and the members of said party who will sit before the electoral tribunal as
protestees. For when it comes to a party, Mr. President, there ground to believe that decisions will
be made along party lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis
supplied.).
Senator Laurel, who played an important role in the framing of our Constitution, expressed himself
as follows:.

"Now, with reference to the protests or contests, relating to the election, the returns and the
qualifications of the members of the legislative bodies, I heard it said here correctly that there was a
time when that was given to the corresponding chamber of the legislative department. So the
election, returns and qualifications of the members, of the Congress or legislative body was
entrusted to that body itself as the exclusive body to determine the election, returns and
qualifications of its members. There was some doubt also expressed as to whether that should
continue or not, and the greatest argument in favor of the retention of that provision was the fact that
was, among other things, the system obtaining in the United States under the Federal Constitution of
the United States, and there was no reason why that power or that right vested in the legislative
body should not be retained. But it was thought that would make the determination of this contest, of
this election protest, purely political as has been observed in the past." (Congressional Record for
the Senate, Vol. III, p. 376; emphasis supplied.).

It is interesting to note that not one of the members of the Senate contested the accuracy of the
views thus expressed.

Referring particularly to the philosophy underlying the constitutional provision quoted above, Dr.
Aruego states:.

"The defense of the Electoral Commission was based primarily upon the hope and belief that the
abolition of Party line because of the equal representation in this body of the majority and the
minority parties of the National Assembly and the intervention of some members of the Supreme
Court who, under the proposed constitutional provision, would also be members of the same, would
insure greater political justice in the determination of election contests for seats in the National
Assembly than there would be if the power had been lodged in the lawmaking body itself. Delegate
Francisco summarized the arguments for the creation of the Electoral Commission in the following
words:.

"I understand that from the time that this question is placed in the hands of members not only of the
majority party but also of the minority party, there is already a condition, a factor which would make
protests decided in a non-partisan manner. We know from experience that many times in the many
protests tried in the House or in the Senate, it was impossible to prevent the factor of party from
getting in. From the moment that it is required that not only the majority but also the minority should
intervene in these questions, we have already enough guarantee that there would be no tyranny on
the part of the majority.

`But there is another more detail which is the one which satisfies me most, and that is the
intervention of three justices. So that with this intervention of three justices if there would be any
question as to the justice applied by the majority or the minority, if there would be any fundamental
disagreement, or if there would be nothing but questions purely of party in which the members of the
majority as well as those of the minority should wish to take lightly a protest because the protestant
belongs to one of said parties, we have in this case, as a check upon the two parties, the actuations
of the three justices. In the last analysis, what is really applied in the determination of electoral cases
brought before the tribunals of justice or before the House of Representatives or the Senate? Well, it
is nothing more than the law and the doctrine of the Supreme Court. If that is the case, there will be
greater skill in the application of the laws and in the application of doctrines to electoral matters
having as we shall have three justices who will act impartially in these electoral questions.
`I wish to call the attention of my distinguished colleagues to the fact that in electoral protests it is
impossible to set aside party interests. Hence, the best guarantee, I repeat, for the administration of
justice to the parties, for the fact that the laws will not be applied rightfully or incorrectly as well as for
the fact that the doctrines of the Supreme Court will be applied rightfully, the best guarantee which
we shall have, I repeat, is the intervention of the three justices. And with the formation of the
Electoral Commission, I say again, the protestants as well as the protestees could remain tranquil in
the certainty that they will receive the justice that they really deserve. If we eliminate from this
precept the intervention of the party of the minority and that of the three justices, then we shall be
placing protests exclusively in the hands of the party in power. And I understand, gentlemen, that in
practice that has not given good results. Many have criticized, many have complained against, the
tyranny of the majority in electoral cases .. I repeat that the best guarantee the fact that these
questions will be judged not only by three members of the majority but also by three members of the
minority, with the additional guarantee of the impartial judgment of three justices of the Supreme
Court." (The Framing of the Philippine Constitution by Aruego, Vol. I, pp. 261-263; emphasis
supplied.).

The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara vs. Electoral
Commission (63 Phil., 139), he asserted:.

"The members of the Constitutional Convention who framed our fundamental law were in their
majority-men mature in years and experience. To be sure, many of them were familiar with the
history and political development of other countries of the world. When, therefore they deemed it
wise to create an Electoral Commission as a constitutional organ and invested with the exclusive
function of passing upon and determining the election, returns and qualifications of the members of
the National Assembly, they must have done so not only in the light of their own experience but also
having in view the experience of other enlightened peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its
creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the Constitution, the creation of the Electoral
Commission is the expression of the wisdom `ultimate justice of the people'. (Abraham Lincoln, First
Inaugural Address, March 4, 1861.).

"From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer
in its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge
and appreciation of contemporary constitutional precedents, however, as the long felt need of
determining legislative contests devoid of partisan considerations which prompted the people acting
through their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and minority parties
are equally represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme Court,"
(Pp. 174-175.) 7.

As a matter of fact, during the deliberations of the convention, Delegates Conejero and Roxas said:.

"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomite de
Siete.

"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto. "El Sr. CONEJERO.
Tal como esta el draft., dando tres miembrosala mayoria, y otros t?-es a la minyoryia y atros a la
Corte Suprerma, no cree su Senoria que este equivale pricticamente a dejar el asunto a los
miembros del Tribunal Supremo?.

"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido en esa forma, tanto
los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Saprema
consideration la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente
para dar el triunbo.

"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos hacer que tanto los de
la mayoria como los de la minoria prescindieran del partidisrno?.

"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs. Electoral
Commission, supra, pp. 168-169; emphasis supplied.).

It is clear from the foregoing that the main objective of the framers of our Constitution in providing for
the establishment, first, of an Electoral Commission, 8 and then 9 of one Electoral Tribunal for each
House of Congress, was to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body. To achieve this purpose, two devices were
resorted to, namely: (a) the party having the largest number of votes, and the party having the
second largest number of votes, in the National Assembly or in each House of Congress, were given
the same number of representatives in the Electoral Commission or Tribunal, so that they may
realize that partisan considerations could not control the adjudication of said cases, and thus be
induced to act with greater impartiality; and (b) the Supreme Court was given in said body the same
number of representatives as each one of said political parties, so that the influence of the former
may be decisive and endow said Commission or Tribunal with judicial temper.

This is obvious from the very language of the constitutional provision under consideration. In fact,
Senator Sabido-who had moved to grant to Senator Tañada the privilege" to make the nominations
on behalf of party having the second largest number of votes in the Senate-agrees with it. As
Senator Sumulong inquired:.

"..I suppose Your Honor will agree with me that the framers of the Constitution precisely thought of
creating this Electoral Tribunal so as to prevent the majority from ever having a preponderant
majority in the Tribunal." (Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.).

Senator Sabido replied:.

"That is so, .." (Id., p. 330.).

Upon further interpretation, Senator Sabido said:.

".. the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a
balance between the two parties and make the members of the Supreme Court the controlling power
so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal situation."
(Congressional Record for the Senate, Vol. III, p. 349; emphasis supplied.).

Senator Sumulong opined along the same line. His words were: .

"..The intention is that when the three from the majority and the three from the minority become
members of the Tribunal it is hoped that they will become aware of their judicial functions, not to
protect the protestants or the protegees. It is hoped that they will act as judges because to decide
election cases is a judicial function. But the framers of, the Constitution besides being learned were
men of experience. They knew that even Senators like us are not angels, that we are human beings,
that if we should be chosen to go to the Electoral Tribunal no one can say that we will entirely be
free from partisan influence to favor our party, so that in, case that hope that the three from the
majority and the three from the minority who will act as Judges should result in disappointment, in
case they do not act as judges but they go there and vote along party liner, still there is the
guarantee that they will offset each other and the result will be that the deciding vote will reside in
the hands of the three Justices who have no partisan motives to favor either the protestees or the
protestants. In other words, the whole idea is to prevent the majority from controlling and dictating
the decisions of the Tribunal and to make sure that the decisive vote will be wielded by the
Congressmen or Senators who are members the Tribunal but will be wielded by the Justices who, by
virtue of their judicial offices, will have no partisan motives to serve, either protestants, or protestees.
That is my understanding of the intention of the framers of the Constitution when they decided to
create the Electoral Tribunal.

xxx xxx x x x.

"My idea is that the intention of the framers of the constitution in creating the Electoral Tribunal is to
insure impartially and independence in its decision, and that is sought to be done by never allowing
the majority party to control the Tribunal, and secondly by seeing to it that the decisive vote in the
Tribunal will be left in the hands of persons who have no partisan interest or motive to favor either
protestant or protestee." (Congressional Record for the Senate, Vol. III, pp. 362-363, 365-366;
emphasis supplied.).

So important in the "balance of powers" between the two political parties in the Electoral Tribunals,
that several members of the Senate questioned the right of the party having the second largest
number of votes in the Senate and, hence, of Senator Tañada, as representative of the Citizens
Party-to nominate for the Senate Electoral Tribunal any Senator not belonging to said party.
Senators Lim, Sabido, Cea and Paredes maintained that the spirit of the Constitution would be
violated if the nominees to the Electoral Tribunals did not belong to the parties respectively making
the nominations. 10.

It is not necessary, for the purpose of this decision, to determine whether the parties having the
largest, and the second largest, number of votes in each House may nominate, to the Electoral
Tribunals, those members of Congress who do not belong to the party nominating them. It is patent,
however, that the most vital feature of the Electoral Tribunals is the equal representation of said
parties therein, and the resulting equilibrium to be maintained by the Justices of the Supreme Court
as members of said Tribunals. In the words of the members of the present Senate, said feature
reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to which the Senate Electoral
Tribunal should be organized (Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351,
355, 358, 362-3, 364, 370, 376).

Now then, it is well settled that "the purpose of all rules or maxims as to the construction or
interpretation of statutes is to discover the true intention of the law" (82 C. J. S., 526) and that.

"As a general rule of statutory construction, the spirit or intention of a statute prevails over the letter
thereof, and whatever is within the spirit of statute is within the statute although it is not within the
letter, while that which is within the letter, but not within the spirit of a statute, is not within the
statute; but, where the law is free and clear from ambiguity, the letter of it is not to be disregarded on
the pretext of pursuing its spirit." (82 C. J. S., 613.).
"There is no universal rule or absolute test by which directory provisions in a statute may in all
circumstances be distinguished from those which are mandatory. However, in the determination of
this question, as of every other question of statutory construction, the prime object is to ascertain the
legislative intent. The legislative intent must be obtained front all the surrounding circumstances, and
the determination does not depend on the form of the statute. Consideration must be given to the
entire statute, its nature, its object, and the consequences which would result from construing it one
way or the other, and the statute must be construed in connection with other related statutes. Words
of permissive character may be given a mandatory significance in order to effect the legislative
intent, and, when the terms of a statute are such that they cannot be made effective to the extent of
giving each and all of them some reasonable operation, without construing the statute as mandatory,
such construction should be given; .. On the other hand, the language of a statute, however
mandatory in form, may be deemed directory whenever legislative purpose can best be carried out
by such construction, and the legislative intent does not require a mandatory construction; but the
construction of mandatory words as directory should not be lightly adopted and never where it would
in fact make a new law instead of that passed by the legislature. .. Whether a statute is mandatory or
directory depends on whether the thing directed to be done is of the essence of the thing required, or
is a mere matter of form, and what is a matter of essence can often be determined only by judicial
construction. Accordingly, when a particular provision of a statute relates to some immaterial matter,
as to which compliance with the statute is a matter of convenience rather than substance, or where
the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of
business, it is generally regarded as directory, unless followed by words of absolute prohibition; and
a statute is regarded as directory were no substantial rights depend on it, no injury can result from
ignoring it, and the purpose of the legislative can be accomplished in a manner other than that
prescribed, with substantially the same result. On the other hand, a provision relating to the essence
of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation
of a statute, which directs acts or proceedings to be done in a certain way shows that the legislature
intended a compliance with such provision to be essential to the validity of the act or proceeding, or
when same antecedent and pre-requisite conditions must exist prior to the exercise of power, or
must be performed before certain other powers can be exercise, the statute must be regarded as
mandatory. (Id., pp. 869-874.) (See also, Words and Phrases, Vol. 26, pp. 463-467; emphasis
supplied.).

What has been said above, relative to the conditions antecedent to, and concomitant with, the
adoption of section 11 of Article VI of the Constitution, reveals clearly that its framers intended to
prevent the majority party from controlling the Electoral Tribunals, and that the structure thereof is
founded upon the equilibrium between the majority and the minority parties therein, with the Justices
of the Supreme Court, who are members of said Tribunals, holding the resulting balance of power.
The procedure prescribed in said provision for the selection of members of the Electoral Tribunals is
vital to the role they are called upon to play. it constitutes the essence of said Tribunals. Hence,
compliance with said procedure is mandatory, and acts performed in violation thereof are null and
void. 11.

It is true that the application of the foregoing criterion would limit the membership of the Senate
Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9), members; but, it is conceded
that the present composition of the Senate was not foreseen by the framers of our Constitution
(Congressional Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the
spirit of the law prevails over its letter, and the solution herein adopted maintains the spirit of the
Constitution, for partisan considerations can not be decisive in a tribunal consisting of three (3)
Justices of the Supreme Court, three (3) members nominated by the majority party and either one
(1) or two (2) members nominated by the party having the second largest number of votes in the
House concerned.
Upon the other hand, what would be the result of respondents' contention if upheld? Owing to the
fact that the Citizens Party 12 has only one member in the Upper House, Senator Tañada felt he
should nominate, for the Senate Electoral Tribunal, only said member of the Citizens Party. The
same is, thus, numerically handicapped, vis-a-vis the majority party, in said Tribunal. Obviously,
Senator Tañada did not nominate other two Senators, because, otherwise, he would worsen the
already disadvantageous position, therein, of the Citizens Party. Indeed, by the aforementioned
nomination and election of Senators Cuenco and Delgado, if the same were sanctioned, the
Nacionalista Party would have five (5) members in the Senate Electoral Tribunal, as against one (1)
member of the Citizens Party and three members of the Supreme Court. With the absolute majority
thereby attained by the majority party in said Tribunal, the philosophy underlying the same would be
entirely upset. The equilibrium between the political parties therein would be destroyed. What is
worst, the decisive moderating role of the Justices of the Supreme Court would be wiped out, and, in
lieu thereof, the door would be thrown wide open for the predominance of political considerations in
the determination of election protests pending before said Tribunal, which is precisely what the
fathers of our Constitution earnestly strove to forestall. 13.

This does not imply that the honesty, integrity or impartiality of Senators Cuenco and Delgado are
being questioned. As a matter of fact, when Senator Tañada objected to their nomination, he
explicitly made of record that his opposition was based, not upon their character, but upon the
principle involved. When the election of members of Congress to the Electoral Tribunal is made
dependent upon the nomination of the political parties above referred to, the Constitution thereby
indicates its reliance upon the method of selection thus established, regardless of the individual
qualities of those chosen therefor. Considering the wealth of experience of the delegatesto the
Convention, as lawyers of great note, as veteran politicians and as leaders in other fields of
endeavor, they could not, and did not, ignore the fact that the Constitution must limit itself to giving
general patterns or norms of action. In connection, particularly, with the composition of the Electoral
Tribunals, they believed that, even the most well meaning individuals often find it difficult to shake off
the bias and prejudice created by political antagonisms and to resist the demands of political
exigencies, the pressure of which is bound to increase in proportion to the degree of predominance
of the party from which it comes. As above stated, this was confirmed by distinguished members of
the present Senate. (See pp. 25-28, 33, 34, supra.).

In connection with the argument of the former Secretary of Justice to the effect that when "there is
no minority party represented in the Assembly, the necessity for such a check by the minority
disappears", the following observations of the petitioners herein are worthy of notice:.

" Under the interpretation espoused by the respondents, the very frauds or terrorism committed by a
party would establish the legal basis for the final destruction of minority parties in the Congress at
least. Let us suppose, for example, that in the Senate, the 15 or 16 senators with unexpired terms
belong to the party A. In the senatorial elections to fill the remaining 8 seats, all the 8 candidates of
party A are proclaimed elected through alleged fraud and/or terrorism. (The ouster of not less than 3
senators-elect in the elections held since liberation attests to the reality of election frauds and
terrorism in our country.) There being no senator or only one senator belonging to the minority, who
would sit in judgment on the election candidates of the minority parties? According to the contention
of the respondents, it would be a Senate Electoral Tribunal made up of three Supreme Court
Justices and 5 or 6 members of the same party A accused of fraud and terrorism. Most respectfully,
we pray this Honorable Court to reject an interpretation that would make of a democratic constitution
the very instrument by which a corrupt and ruthless party could entrench itself in power the
legislature and thus destroy democracy in the Philippines.

xxx xxx x x x.
".. When there are no electoral protests filed by the Minority party, or when the only electoral protests
filed are by candidates of the majority against members-elect of the same majority party, there might
be no objection to the statement. But if electoral protests are filed by candidates of the minority
party, it is at this point that a need for a check on the majority party is greatest, and contrary to the
observation made in the above-quoted opinion, such a cheek is a function that cannot be
successfully exercised by the 3 Justices of the Supreme Court, for the obvious and simple reason
that they could easily be outvoted by the 6 members of the majority party in the Tribunal.

xxx xxx x x x.

"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it, did not appear that
there were minority party candidates who were adversely affected by the ruling of the Secretary of
Justice and who could have brought a test case to court." (Emphasis supplied.).

The defenses of waiver and estoppel set up against petitioner Tañada are untenable. Although "an
individual may waive constitutional provisions intended for his benefit", particularly those meant for
the protection of his property, and, sometimes, even those tending "to secure his personal liberty",
the power to waive does not exist when "public policy or public morals" are involved. (11 Am. Jur.
765; I Cooley's Constitutional Limitations, pp. 368-371). The procedure outlined in the Constitution
for the organization, of the Electoral Tribunals was adopted in response to the demands of the
common weal, and it has been held that where a statute is founded on public policy, those to whom
it applies should not be permitted to waive its provisions" (82 C. J. S., 874). Besides, there can be no
waiver without an intent to such effect, which Senator Tañada did not have. Again, the alleged
waiver or exhaustion of his rights does not justify the exercise thereof by a person or party, other
than that to which it is vested exclusively by the Constitution.

The rule estoppel is that "whenever a party has, by his declaration, act or omissions, intentionally
and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot,
in a litigation arising out of such declaration, act or omission, be permitted to falsify it" (Rule 69, sec.
68 [a], Rules of Court). In the case at bar, petitioner Senator Tañada did not lead the Senate to
believe that Senator Primicias could nominate Senators Cuenco and Delgado. On the contrary, said
petitioner repeatedly asserted that his was the exclusive right to make the nomination. He, likewise,
specifically contested said nomination of Senators Cuenco and Delgado. Again, the rule on estoppel
applies to questions of fact, not of law, about the truth of which the other party is ignorant (see
Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature of the
situation that confronted Senator Tañada and the other members of the Senate. Lastly, the case of
Zandueta vs. De la Costa (66 Phil., 615), cited by respondents, is not in point. Judge Zandueta
assumed office by virtue of an appointment, the legality of which he later on assailed. In the case at
bar, the nomination and election of Senator Tañada as member of the Senate Electoral Tribunal was
separate, distinct and independent from the nomination and election of Senators Cuenco and
Delgado.

In view of the foregoing, we hold that the Senate may not elect, as members of the Senate Electoral
Tribunal, those Senators who have not been nominated by the political parties specified in the
Constitution; that the party having the largest number of votes in the Senate may nominate not more
than three (3) members thereof to said Electoral Tribunal; that the party having the second largest
number of votes in the Senate has the exclusive right to nominate the other three (3) Senators who
shall sit as members in the Electoral Tribunal; that neither these three (3) Senators, nor any of them,
may be nominated by a person or party other than the one having the second largest number of
votes in the Senate or its representative therein; that the Committee on Rules for the Senate has no
standing to validly make such nomination and that the nomination of Senators Cuenco and Delgado
by Senator Primicias, and the election of said respondents by the Senate, as members of said
Tribunal, are null and void ab initio.

As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, we
are not prepared to hold, however, that their appointments were null and void. Although
recommended by Senators Cuenco and Delgado, who are not lawful members of the Senate
Electoral Tribunal, they were appointed by its Chairman, presumably, with the consent of the
majority of the de jure members of said body 14 or, pursuant to the Rules thereof. At any rate, as
held in Suanes vs. Chief Accountant (supra), the election of its personnel is an internal matter falling
within the jurisdiction and control of said body, and there is every reason to believe that it will,
hereafter take appropriate measures, in relation to the four (4) respondents abovementioned,
conformably with the spirit of the Constitution and of, the decision in the case at bar.

Wherefore, judgment is hereby rendered declaring that, respondents Senators Mariano Jesus
Cuenco and Francisco A. Delgado have not been duly elected as Members of the Senate Electoral
Tribunal, that they are not entitled to act as such and that they should be, as they are hereby,
enjoined from exercising the powers and duties of Members of said Electoral Tribunal and from
acting in such capacity in connection with Senate Electoral Case No. 4 thereof. With the qualification
stated above, the petition is dismissed, as regards respondents Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes. Without special pronouncement as to costs. It is so ordered.

Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Reyes, J.B.L., and Felix, JJ., concur.

Paras, C.J., dissenting:.

In 1939, Section (4) of Article VI of the Philippine Constitution provided that "There shall be an
Electoral Commission composed of three Justices of the Supreme Court designated by the Chief
Justice, and of six members chosen by the National Assembly, three of whom shall be nominated by
the party having the largest number of votes, and three by the party having the second largest
number of votes therein." As all the members of the National Assembly then belonged to the
Nacionalista Party and a belief arose that it was impossible to comply with the constitutional
requirement that three members of the Electoral Commission should be nominated by the party
having the second largest number of votes, the opinion of the Secretary of Justice was sought on the
proper interpretation of the constitutional provision involved. Secretary of Justice Jose A. Santos
accordingly rendered the following opinion:.

"Sir:.

"I have the honor to acknowledge the receipt of your letter of January 24, 1939, thru the office of His
Excellency, the President, in which you request my opinion as `to the proper interpretation of the
following provision of Section (4) of Article VI of the Philippine Constitution':.

`There shall be an Electoral Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six members chosen by the National Assembly, three of
whom shall be nominated by the party having the largest number of votes, and three by the party
having the second largest number of votes therein.'.
"You state that `as all the members of the present National Assembly belong to the Nacionalista
Party, it is impossible to comply with the last part of the provision which requires that three members
shall be nominated by the party having the second largest number of votes in the Assembly.'.

"The main features of the constitutional provision in question are: (1) that there shall be an Electoral
Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and
of six members chosen by the National Assembly; and that (2) of the six members to be chosen by
the National Assembly, three shall be nominated by the party having the largest number of votes and
three by the party having the second largest number of votes.

"Examining the history of the constitutional provision, I find that in the first two drafts it was provided
that the Electoral Commission shall be composed of `three members elected by the members of the
party having the largest number of vote three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court ..(Aruego, The Framing of the Phil.
Const., pp. 260-261). But as finally adopted by the Convention, the Constitution explicitly states that
there shall be `six members chosen by the National Assembly, three of whom shall be nominated by
the party having the largest number of votes, an and three by the party having the second largest
number of votes' (Aruego, The Framing of the Phil. Const., pp. 271-272).

"From the foregoing changes in the phraseology of the provision, it is evident that the intention of the
framers of our Constitution was that there should invariably be six members from the National
Assembly. It was also intended to create a non-partisan body to decide any partisan contest that
may be brought before the Commission. The primary object was to avoid decision based chiefly if
not exclusively on partisan considerations.

"The procedure or manner of nomination cannot possibly affect the constitutional mandate that the
Assembly is entitled to six members in the Electoral Commission. When for lack of a minority
representation in the Assembly the power to nominate three minority members cannot be exercised,
it logically follows that the only party the Assembly may nominate three others, otherwise the explicit
mandate of the Constitution that there shall be six members from the National Assembly would be
nullified.

"In other words, fluctuations in the total membership of the Commission were not and could not have
been intended. We cannot say that the Commission should have nine members during one
legislative term and six members during the next. Constitutional provisions must always have a
consistent application. The membership of the Commission is intended to be fixed and not variable
and is not dependent upon the existence or non-existence of one or more parties in the Assembly.

"`A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform
interpretation, so they shall not be taken to mean one thing at one time and another thing at another
time, even though the circumstances may have so changed as to make a different rule after
desirable (11 Am. Jur. 659).

"It is undisputed of course that the primary purpose of the Convention in giving representation to the
minority party in the Electoral Commission was to safeguard the rights of the minority party and to
protect their interests, especially when the election of any member of the minority party is protested.
The basic philosophy behind the constitutional provision was to enable the minority party to act as a
check on the majority in the Electoral Commission, with the members of the Supreme Court as the
balancing factor. Inasmuch, however, as there is no minority party represented in the Assembly, the
necessity for such a check by the minority party disappears. It is a function that is expected to be
exercised by the three Justices of the Supreme Court.
"To summarize, considering the plain terms of the constitutional provision in question, the changes
that it has undergone since it was first introduced until finally adopted by the convertion, as well as,
the considerations that must have inspired the Constitutional Convention in adopting it as it is, I have
come to the conclusion that the Electoral Commission should be composed of nine members, three
from the Supreme Court and six chosen by the National Assembly to be nominated by the party in
power, there being no other party entitled to such nomination.".

Pursuant to the foregoing opinion of February 1, 1939, the Electoral Commission was formally
organized, with six members of the National Assembly all belonging to the same party and three
Justices of the Supreme Court. Constitutional amendments were introduced and duly adopted in
1940, and the Electoral Commission was replaced by an Electoral Tribunal for each house of
Congress. It is now provided that "Each Electoral Tribunal shall be composed of nine Members,
three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or of the House of Representatives, as the case may
be, who shall be chosen by each house, three upon nomination of the party having the largest
number of votes and three of the party having the second largest number of votes therein. The
senior Justice in each Electoral Tribunal shall be its Chairman." (Article VI, Section 11, of the
Constitution.).

If there was any doubt on the matter, the same was removed by the amendment of 1940 the framers
of which may be assumed to have been fully aware of the one-party composition of the former
National Assembly which gave rise to the abovequoted opinion of the Secretary of Justice. When
instead of wording the amendment in such a form as to nullify said opinion, Section 11 of Article VI
of the Constitution not only did not substantially depart from the original constitutional provision but
also positively and expressly ordains that "Each Electoral Tribunal shall be composed of nine
Members," the intent has become clear and mandatory that at all times the Electoral Tribunal shall
have nine Members regardless of whether or not two parties make up each house of Congress.

It is very significant that while the party having the second largest number of votes is allowed to
nominate three Members of the Senate or of the House of Representatives, it is not required that the
nominees should belong to the same party. Considering further that the six Members are chosen by
each house, and not by the party or parties, the conclusion is inescapable that party affiliation is
neither controlling nor necessary.

Under the theory of the petitioners, even if there were sufficient Members belonging to the party
having the second largest of votes, the latter may nominate less than three or none at all; and the
Chief Justice may similarly designate less than three Justices. If not absurd, would frustrate the
purpose of having an ideal number in the composition of the Electoral Tribunal and guarding against
the possibility of deadlocks. It would not be accurate to argue that the Members of the Electoral
Tribunal other than the Justices of the Supreme Court would naturally vote along purely partisan
lines, checked or fiscalized only by the votes of the Justices; otherwise membership in the Tribunal
may well be limited to the Justices of the Supreme Court and so others who are not Members of the
Senate or of the House of Representatives. Upon the other hand, he framers of the Constitution-not
insensitive to some such argument-still had reposed their faith and confidence in the independence,
integrity and uprightness of the Members of each House who are to sit in the Electoral Tribunals and
thereby expected them, as does everybody, to decide jointly with the Justices of the Supreme Court
election contests exclusively upon their merits.

In view of the failure or unwillingness of Senator Lorenzo M. Tañada of the Citizens Party, the party
having the second largest number of votes in the Senate, to nominate two other Members of the
Electoral Tribunal, the Senate was justified, in obedience to the constitutional mandate, to choose-as
it did-said two Members.
I vote to dismiss the petition.

Endencia, J., concurs.

LABRADOR, J., dissenting:.

I dissent and herewith proceed to explain my reasons therefor.

The constitutional provision, in pursuance of which Senators Cuenco and Delgado were elected by
the Senate members of the Senate Electoral Tribunal is as follows:.

"The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or of the House of Representatives, as the case may be, who shall be
chosen by each House, three upon nomination of the party having the largest number of votes and
three of the party having the second largest number of votes therein. The Senior Justice in each
Electoral Tribunal shall be its Chairman." (Section II, Article VI of the Constitution.).

I hold that the above provision, just as any other constitutional provision, is mandatory in character
and that this character is true not only of the provision that nine members shall compose the tribunal
but also that which defines the manner in which the members shall be chosen. Such a holding is in
accord with well-settled rules of statutory construction.

"As a general proposition, there is greater likelihood that constitutional provisions will be given
mandatory effect than is true of any other class of organic law. Indeed, such a construction accords
with the generally acknowledged import of constitutional fiat; that its character is such as to require
absolute compliance in all cases without exception. And the very principles of our institutions,
involving as they do concepts of constitutional supremacy, are such as to form reasonable grounds
for a presumption that the framers of a constitution intended that just such efficacy be given to it .."
(Sec. 5807, Sutherland Statutory Construction, Vol. 3, p.84.).

The majority helds that as Senator Tañada, the only member of the Senate who does not belong to
the Nacionalista Party, has refused to exercise the constitutional privilege afforded him to nominate
the two other members the Senate may not elect said two other members. And the reason given for
this ruling is the presumed intention of the constitutional provision to safeguard the interests of the
minority. This holding is subject to the following fundamental objections. In the first Place, it renders
nugatory the provision which fixes the membership of the Senate Electoral Tribunal at nine, a
provision which is admittedly a mandatory provision. In the second place, it denies to the Senate the
power that the constitutional provision expressly grants it, i. e., that of electing the members of the
Electoral Tribunal so in effect this right or prerogative is lodged, as a consequence of the refusal of
the minority member to nominate, in the hands of said member of the minority, contrary to the
constitutional provision. In the third place, it would make the supposedly procedural provision, the
process of nomination lodged in the minority party in the Senate, superior to and paramount over the
power of election, which is in the whole Senate itself. So by the ruling of the majority, a procedural
provision overrides a substantive one and renders nugatory the other more important mandatory
provision that the Electoral Tribunal shall be composed of nine members. In the fourth place, the
majority decision has by interpretation inserted a provision in the Constitution, which the
Constitutional Convention alone had the power to introduce, namely, a proviso to the effect that if the
minority fails or refuses to exercise its privilege to nominate all the three members, the membership
of the Electoral Tribunal shall thereby be correspondingly reduced. This arrogation of power by us is
not justified by any rule of law or reason.

I consider the opinion of the Senate that the refusal of Senator Tañada to nominate the two other
members must be construed as a waiver of a mere privilege, more in consonance not only with the
constitutional provision as a whole, but with the dictates of reason. The above principle (of waiver)
furnishes the remedy by which two parts of the constitutional provision, that which fixes membership
at nine and that which outlines the procedure in which said membership of nine may be elected, can
be reconciled. Well known is the legal principle that provisions which in their application may nullify
each other should be reconciled to make them both effective, if the reconciliation can be effected by
the application of other legal principles. The reconciliation is brought about in this case by the
principle of waiver.

While I agree with the majority that it is the duty of this Court to step in, when a constitutional
mandate is ignored, to enforce said mandate even as against the other coordinate departments, this
is not the occasion for it to do so, for to say the least it does not clearly appear that the form and
manner in which the Senate exercised its expressly recognized power to elect its members to the
Senate Electoral Tribunal has been clearly violative of the constitutional mandate.

_Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä_.

1 Casanovas vs. Hord, 8 Phil., 125; Omo vs. Insular Gov't., 11 Phil., 67; Weigall vs. Shuster, 11
Phil., 340; Barrameda vs. Moir, 25 Phil., 44; Hamilton vs. McGirr, 30 Phil., 563; Compania Gral. de
Tabacos vs. Board of Public Utility Commissioners, 34 Phil., 136; Central Capiz vs. Ramirez, 40
Phil., 883; Concepcion vs. Paredes, 42 Phil 599; McDaniel vs. Apacible, 42 Phil., 749; U. S. vs. Ang
Tan Ho, 43 Phil., 1; People vs. Pomar, 46 Phil., 440. Agcaoili vs. Saguitan, 48 Phil., 676; Gov't. vs.
Springer, 50 Phil., 259; Gov't. us. Agoncillo, 50 Phil., 348; Gov't. vs. El Hogar Filipino, 50 Phil, 399;
Manila Electric vs. Pasay Transp., 57 Phil., 600; Angara vs. Electoral Commission, supra; People vs.
Vera, 65 Phil., 56; Vargas vs. Rilloraza, 45 Off. Gaz., 3847; Endencia vs. David, 49 Off. Gaz., A822;
Rutter vs. Esteban, 49 Off. Gaz., 1807; Comm. investment vs. Garcia, 49 Off. Gaz., 1801; Marbury
vs. Madison, 1 Cranch 137; Ex Parte Garland, 4 Wall. 333; Hepburn vs. Griswold, 8 Wall. 603; Knox
vs. Lee, 12 Wall. 457; Civil Rights Cases [U. S. vs. M. Stanley; U. S. vs. M. Ryan, U. S. vs. S.
Nichols; U. S. vs. Singleton; Robinson vs. and Charleston Railroad Co.], 109 U. S. 3 Pollock vs.
Farmers' Loan and Trust Co. 157 U. S. 429, 158 U. S. 601; Fairbanks vs. U. S., 181 U. S. 286.

2 Which, insofar as pertinent to the issues in the case at bar, is substantially identical to each of the
Electoral Tribunals under the Constitution as amended.

3 Araneta vs. Dinglasan, Barredo vs. Commission on Elections, and Rodriguez vs. Teasurer of the
Philippines, 84 Phil., 368, 45 Off. Gaz., 4411, 4457; Nacionalista Party vs. Bautista, 85 Phil., 101, 47
Off. Gaz., 2356; Lacson vs. Romero, 84 Phil., 740, 47 Off. Gaz., 1778; De los Santos vs. Mallare, 87
Phil., 289, 48 Off. Gaz., 1787; Lacson vs. Roque, 92 Phil., 456, 49 Off. Gaz., 93; Jover Ledesma vs.
Borra, 93 Phil., 506, 49 Off. Gaz., 2765; Ramos vs. Avelino, 97 Phil., 844, 51 Off. Gaz., 5607.

_Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä_ 4 "From the very nature of the

American system of government with Constitutions prescribing the jurisdiction and powers of each of
the three branches of government, it has devolved on the judiciary to determine whether the acts of
the other two departments are in harmony with the fundamental law. All the departments are of the
government are unquestionably entitled and compelled to judge of the Constitution for themselves;
but, in doing so, they act under the obligations imposed in the instrument, and in the order of time
pointed out by it. When the, judiciary has once spoken, if the acts of the other two departments are
held to be unauthorized or despotic, in violation of the Constitution or the vested rights of the citizen,
they cease to be operative or binding.

xxx xxx x x x.

"Since the Constitution is intended for the observance of the judiciary as well as the other
departments of government and the judges are sworn to support its provisions, the court are not at
liberty to overlook or disregard its commands. It is their duty in authorized proceedings to give effect
to the existing Constitution and to obey all constitutional provisions irrespective of their opinion as to
the wisdom of such provisions.

"In accordance with principles which are basic, the rule is fixed that the duty in a proper case to
declare a law unconstitutional cannot be declined and must be performed in accordance with the
deliberate judgment of the tribunal before which the validity of the enactment is directly drawn into
question. When it is clear that a statute transgresses the authority vested in the legislature by the
Constitution, it is the duty of the courts to declare the act unconstitutional cause they cannot shrink
from it without violating their oaths of office. This duty of the courts to maintain the Constitution as
the fundamental law of the state is imperative and unceasing; and, as Chief Justice Marshal said,
whenever a statute is in violation of the fundamental law, the courts must so adjudge and thereby
give effect to the Constitution. Any other course would lead to the destruction of the Constitution.
Since the question as to the constitutionality of a statute is a judicial matter, the courts will not
decline the exercise of jurisdiction upon the suggestion that action might be taken by political
agencies in disregard of the judgment of the judicial tribunals." (11 Am. Jur., pp. 712-713, 713-715;
emphasis supplied).

5 Rich vs. Board of Canvassers, 59 N. W. 183; State vs. McBride, 29 Am. Dec. 636; Collier vs.
Frierson, 24 Ala. 100; State vs. Swift, 69 Ind. 505; State vs. Timme, 11 N.W. 785; Prohibition and
Amendment Cases, 24 Kan. 700; Kadderly vs. Portland, 74 Pac. 710; Koehler vs. Hill, 14 N. W. 738;
State vs. Brockhart, 84 S. W. 1064; University vs. Melver, 72 N. C. 76; Westinghausen vs. People, 6
N.W. 641; State vs. Powell, 27 South, 927; Bott vs. Wurtz, 43 Atl. 744; Rice vs. Palmer, 96 S. W.
396; State vs. Tooker, 37 Pac. 840.

6 "The procedure or manner of nomination cannot possibly affect the, constitutional mandate that the
Assembly is entitled to six in the Electoral Commission. When for lack of a minority representation in
the Assembly the power to nominate three minority members cannot be exercised, it logically follows
that the only party in the Assembly may nominate three others, otherwise the explicit mandate of the
Constitution that there shall be six members from the National Assembly would be nullified.

"In other words, fluctuations in the total membership of the Commission were not and could have
been intended; We cannot say that the Commission should have nine members during one
legislative term and six members during the next. Constitutional provisions must always have a
consistent application. The membership of the Commission is intended to be fixed and not variable
and is not dependent upon the existence or non-existence of one or more parties in the Assembly.

`A cardinal rule in dealing with Constitutions is that they should receive a consistent and uniform
interpretation, so they shall not be taken to mean one thing at one time and another thing at another
time, even though the circumstance may have so changed as to make a different rule seem
desirable (11 Am. Jur. 659).'.

"It is undisputed of course that the primary purpose of the Convention in giving representation to the
minority party in the Electoral Commission was to safeguard the rights of the minority party and to
protect their interests, especially when the election of any member of the minority party is protected.
The basic philosophy behind the constitutional provision was to enable the minority party to act as a
check on the majority of the Electoral Commission, with the members of the Supreme Court as the
balancing factor. Inasmuch, however, as there is no minority party represented in the Assembly, the
necessity for such a check by the minority party disappears. It is a function that is expected to be
exercised by the three Justices of the Supreme Court.

"To summarize, considering the plain terms of the constitutional provision in question, the changes
that it has undergone since it was first introduced until finally adopted by the Convention, as well as
the considerations that must have inspired the Constitutional Convention in adopting it as it is, I have
come to the conclusion that the Electoral Commission should be composed of nine members, three
from the Supreme Court and six chosen by the National Assembly to be nominated by the party in
power, there being no other party entitled to such nomination." Annex A to the Answers pp. 2-3.

6a Since 1939, when said opinion was rendered, the question therein raised has not been taken up
or discussed, until the events leading to the case at bar (in February 1956).

6b "Thus, in Suanes vs. Chief Accountant (supra)-in which the respondents maintained that the
Electoral Commission formed part of the National Assembly, citing in support thereof the principle of
contemporaneous and practical construction-this Court deemed it unnecessary to refute the same in
order to adopt the opposite view.

7 Senator Laurel reiterated this view on the floor of the Senate, on February 22. 1956, in the
following language:.

"And hence this provision that we find in the Constitution, three to represent, in the manner
prescribed in the Constitution, the party that received the highest number of votes, meaning the
majority party which is the Nacionalista Party now, and three to represent the party receiving the
next highest number of votes therein, meaning the minority party, the party receiving the next
highest number of votes. But there was a great deal of opinion that it would be better if this political
organization, so far as the legislative department is concerned, could be tempered by a sort of a
judicial reflection which could be done by drafting three, as to each Electoral Tribunal, from the
Supreme Court. And that, I think, was the reason because a great majority of the delegates to the
constitutional convention accepted that principle. That is why we have nine members in each
electoral tribunal, in the House and in the Senate. And one reason that I remember then and I am
speaking from memory, Mr. President, was that it is likely that the three members representing a
party would naturally favor the protestants or protestees, and so on. So it would be better that even
on that hypothesis or on that supposition it would be better, in case they annul each other because
three votes in favor or three votes against, depending on the party of the protestants or the
protestees, that the Supreme Court decide the case because then it would be a judicial decision in
reality. Another reason is founded on the theory that the Justices of the Supreme Court are
supposed to be beyond influence, although that may not be true. But having reached the highest
judicial position of the land, these persons would likely act impartially." (Congressional Record for
the Senate Vol. III, p. 376.).

8 When the legislative power was vested in a unicameral body, known as the National Assembly.

9 Upon the substitution of the National Assembly by a bicameral Congress, consisting of the Senate
and the House of Representatives.

10 Senator Lim said:.

"But in the spirit, Your Honor can see very well that those three should belong to the party having the
second largest number of votes, precisely, as Your Honor said, to maintain equilibrium because
partisan considerations naturally enter into the mind and heart of a senator belonging to a particular
party. Although grammatically, I agree with Your Honor, Your Honor can see that the spirit of the
provision of the Constitution is clear that the three must come from the party having the highest
number of votes and the other three nominated must belong to the party having the second highest
number of votes. Your Honor can see the point. If we allow Your Honor to back up your argument
that equilibrium should be maintained, because partisan considerations enter when one is with the
majority party, and that no party should prevail, Your Honor should also have to consider that the
spirit of the Constitution is precisely to obviate that to the extent that the only three can be nominated
from the party having the largest number of votes and three from the party having the second largest
number of votes." (Congressional Record of the Senate, Vol. Ill, p, 337; emphasis supplied.).

_Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä_.

The statement of Senator Sabido was:.

".. the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a
balance between the two parties and make the members of the Supreme Court the controlling power
so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal situation.".

xxx xxx x x x.

".. I said that the ideal composition in the contemplation of the framers of the Constitution is that
those participating in the electoral tribunal shall belong to the members of the party who are before
the electoral tribunal either as protestants or protestees, in order to insure impartiality in the
proceeding and justice in the decision that may be finally rendered." (Congressional Record for the
Senate, Vol. III, pp. 349, 352; emphasis supplied.).

_Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä__Ä_.

Senator Cea declared:.

".. the original purpose of the Constitution is to nominate only members of the two major parties in
the Senate in the Electoral Tribunal." (Congressional Record for the Senate, Vol. III, p. 350;
emphasis supplied.).

The words of Senator Paredes were:.

".. what was intended in the creation of the electoral tribunal was to create a sort of collegiate court
composed of nine members three of them belonging to the party having largest number of votes,
and three from, the party having the second largest number of votes so that these members my
represent the party, and the members of said party who will sit before the electoral tribunal as
protestees. For when it comes to a party, Mr. President, there is ground to believe that decisions will
be made along party lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis
supplied.).

11 The need of adopting this view is demanded, not only by the factors already adverted to, but,
also, by the fact that constitutional provisions, unlike statutory enactments, are presumed to be
mandatory, "unless the contrary is unmistakably manifest." The pertinent rule of statutory
construction is set forth in the American Jurisprudence as follows:.
"In the interpretation of Constitutions, questions frequently arise as to whether particular sections are
mandatory or directory. The courts usually hesitate to declare that a constitutional provision is
directory merely in view of the tendency of the legislature to disregard provisions which are not said
to be mandatory. Accordingly, it is the general rule to regard constitutional provisions as mandatory,
and not to leave any direction to the will of a legislature to obey or to disregard them. This
presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the
provisions are intended to be merely directory. The analogous rules distinguishing mandatory and
directory statutes are of little value in this connection and are rarely applied in passing upon the
provisions of a Constitution.

"So strong is the inclination in favor of giving obligatory force to the terms of the organic law that it
has even been said that neither by the courts nor by any other department of the government may
any provision of the Constitution be regarded as merely directory, but that each and everyone of its
provisions should be treated as imperative and mandatory, without reference to the rules and
distinguishing between the directory and the mandatory statutes." (II Am. Jur. 686-687; emphasis
supplied.).

12 Which admittedly, has the second largest number of votes in the Senate.

13 In Angara vs. Electoral Commission (supra, 169) Senator, then Justice, Laurel, speaking for this
Court, recalled that:.

"In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by
reducing the representation of the minority party and the Supreme Court in the Electoral
Commission to two members each, so as to accord more representation to the majority party. The
Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46), thus
maintaining the non-partisan character of the commission."(emphasis supplied.).

Needless to say, what the Constitutional Convention thus precluded from being done by direct action
or grant of authority in the Charter of our Republic should not receive judicial sanction, when done by
resolution of one House of Congress, a mere creature of said charter.

14 Namely, the other two (2) Justices of the Supreme Court and Senators Laurel, Lopez and
Primicias, or a total of six (6) members of the Tribunal.
Film Development Council v Colon Heritage Realty Corporation

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 203754 June 16, 2015

FILM DEVELOPMENT COUNCIL OF THE PHILIPPINES, Petitioner,

vs.
COLON HERITAGE REALTY CORPORATION, operator of Oriente Group Theaters,
represented by ISIDORO A. CANIZARES, Respondent.

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

FILM DEVELOPMENT COUNCIL OF THE PHILIPPINES, Petitioner,

vs.
CITY OF CEBU and SM PRIME HOLDINGS, INC., Respondents.

DECISION

VELASCO, JR., J.:

The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts
with the Constitution. In the discharge of their defined functions, the three departments of
government have no choice but to yield obedience to the commands of the Constitution. Whatever
limits it imposes must be observed.1
 The Case

Once again, We are called upon to resolve a clash between the Inherent taxing power of the
legislature and the constitutionally-delegated power to tax of local governments in these
consolidated Petitions for Review on Certiorari under Rule 45 of the Rules of Court seeking the
reversal of the Decision dated September 25, 2012 of the Regional Trial Court (RTC), Branch 5 in
Cebu City, in Civil Case No. CEB-35601, entitled Colon Heritage Realty Corp., represented by
Isidoro Canizares v. Film Development Council of the' Philippines, and Decision dated October 24,
2012 of the RTC, Branch 14 in Cebu City, in Civil Case No. CEB-35529, entitled City of Cebu v. Film
Development Council of the Philippines, collectively declaring Sections 13 and 14 of Republic Act
No. (RA) 9167 invalid and unconstitutional.

The Facts

The facts are simple and undisputed.

Sometime in 1993, respondent City of Cebu, in its exercise of its power to impose amusement taxes
under Section 140 of the Local Government Code2 (LGC) anchored on the constitutional policy on
local autonomy,3 passed City Ordinance No. LXIX otherwise known as the "Revised Omnibus Tax
Ordinance of the City of Cebu (tax ordinance)." Central to the case at bar are Sections 42 and 43,
Chapter XI thereof which require proprietors, lessees or operators of theatres, cinemas, concert
halls, circuses, boxing stadia, and other places of amusement, to pay an amusement tax equivalent
to thirty percent (30%) of the gross receipts of admission fees to the Office of the City Treasurer of
Cebu City. Said provisions read:

CHAPTER XI - Amusement Tax

Section 42. Rate of Tax. - There shall be paid to the Office of the City Treasurer by the proprietors,
lessees, or operators of theaters, cinemas, concert halls, circuses, boxing stadia and other places of
amusement, an amusement tax at the rate of thirty percent (30%) of the gross receipts from
admission fees.4

Section 43. Manner of Payment. - In the case of theaters or cinemas, the tax shall first be deducted
and withheld by their proprietors, lessees, or operators and paid to the city treasurer before the
gross receipts are divided between said proprietor, lessees, operators, and the distributors of the
cinematographic films.

Almost a decade later, or on June 7, 2002, Congress passed RA 9167,5 creating the Film
Development Council qf the Philippines (FDCP) and abolishing the Film Development Foundation of
the Philippines, Inc. and the Film Rating Board. Secs. 13 and 14 of RA 9167 provided for the tax
treatment of certain graded films as follows:

Section 13. Privileges of Graded Films. - Films which have obtained an "A" or "B" grading from the
Council pursuant to Sections 11 and 12 of this Act shall be entitled to the following privileges:

a. Amusement tax reward. - A grade "A" or "B" film shall entitle its producer to an incentive
equivalent to the amusement tax imposed and collected on the graded films by cities and
municipalities in Metro Manila and other highly urbanized and independent component cities in the
Philippines pursuant to Sections 140 to 151 of Republic Act No. 7160 at the following rates:

1. For grade "A" films - 100% of the amusement tax collected on such film; and
 2. For grade "B" films - 65% of the amusement tax collected on such films. The
remaining thirty-five (35%) shall accrue to the funds of the Council.

Section 14. Amusement Tax Deduction and Remittance. - All revenue from the amusement tax on
the graded film which may otherwise accrue to the cities and municipalities in Metropolitan Manila
and highly urbanized and independent component cities in the Philippines pursuant to Section 140 of
Republic Act. No. 7160 during the period the graded film is exhibited, shall be deducted and withheld
by the proprietors, operators or lessees of theaters or cinemas and remitted within thirty (30) days
from the termination of the exhibition to the Council which shall reward the corresponding
amusement tax to the producers of the graded film within fifteen (15) days from receipt thereof.

Proprietors, operators and lessees of theaters or cinemas who fail to remit the amusement tax
proceeds within the prescribed period shall be liable to a surcharge equivalent to five percent (5%) of
the amount due for each month of delinquency which shall be paid to the Council. (emphasis added)

According to petitioner, from the time RA 9167 took effect up to the present, all the cities and
municipalities in Metro Manila, as well as urbanized and independent component cities, with the sole
exception of Cebu City, have complied with the mandate of said law.

Accordingly, petitioner, through the Office of the Solicitor General, sent on January 2009 demand
letters for unpaid amusement tax reward (with 5% surcharge for each month of delinquency) due to
the producers of the Grade "A" or "B" films to the following cinema proprietors and operators in Cebu
City:

Amusement
Tax Reward Number
Cinema (with 5% of CEB
Period Covered
Proprietor/Operator surcharge for Graded
each moth of Films
delinquency)
SM Prime Holdings Inc. 76,836,807.08 89 Sept. 11, 2003 - Nov. 4, 2008
Ayala Center Cinemas 43,435,718.23 70 May 14, 2003 - Nov. 4, 2008
Colon Heritage Realty 8,071,267.00 50 Aug. 11, 2004-Nov. 4, 2008
Corp.
Eden Theater 428,938.25 4 May 5, 2005 - Sept. 2, 2008
Cinema Theater 3,100,354.80 22 Feb. 18, 2004-Oct. 7, 2008
Visaya Cineplex Corp. 17,582,521.89 86 June 25, 2005 - Oct. 21, 2008
Ultra Vistarama Cinema 68,821.60 2 July 2 - 22, 2008
Cebu Central Realty Corp. 9,853,559.69 48 Jan. 1, 2004 - Oct. 21, 2008

In said letters, the proprietors and cinema operators, including private respondent Colon Heritage
Realty Corp. (Colon Heritage), operator of the Oriente theater, were given ten (10) days from receipt
thereof to pay the aforestated amounts to FDCP. The demand, however, fell on deaf ears.
Meanwhile, on March 25, 2009, petitioner received a letter from Regal Entertainment, Inc., inquiring
on the status of its receivables for tax rebates in Cebu cinemas for all their A and B rate films along
with those which it co-produced with GMA films. This was followed by a letter from

Star Cinema ABS-CBN Film Productions, Inc., requesting the immediate remittance of its
amusement tax rewards for its graded films for the years 2004-2008.

Because of the persistent refusal of the proprietors and cinema operators to remit the said amounts
as FDCP demanded, on one hand, and Cebu City's assertion of a claim on the amounts in question,
the city finally filed on May 18, 2009 before the RTC, Branch 14 a petition for declaratory relief with
application for a writ of preliminary injunction, docketed as Civil Case No. CEB-35529 (City of Cebu
v. FDCP). In said petition, Cebu City sought the declaration of Secs. 13 and 14 of RA 9167 as invalid
and unconstitutional.

Similarly, Colon Heritage filed before the RTC, Branch 5 Civil Case No. CEB-35601 (Colon Heritage
v. FDCP), seeking to declare Sec. 14 of RA 9167 as unconstitutional.

On May 25, 2010, the RTC, Branch 14 issued a temporary restraining order (TRO) restraining and
enjoining FDCP, et al. from, inter alia:

(a) Collecting amusement tax incentive award in the City of Cebu and from imposing
surcharges thereon;

(b) Demanding from the owners, proprietors, and lessees of theaters and cinemas located
and operated within Cebu City, payment of said amusement tax incentive award which
should have been deducted, withheld, and remitted to FDCP, etc. by the owners, etc., or
being operated within Cebu City and imposing surcharges on the unpaid amount; and

(c) Filing any suit due to or arising from the failure of the owners, etc., of theaters or cinemas
within Cebu City, to deduct, withhold, and remit the incentive to FDCP.

Meanwhile, on August 13, 2010, SM Prime Holdings, Inc. moved for leave to file and admit attached
comment-in-intervention and was later granted.6

Rulings of the Trial Courts

In City of Cebu v. FDCP, the RTC, Branch 14 issued the challenged Decision7 declaring Secs. 13
and 14 of RA 9167 unconstitutional, disposing as follows:

WHEREFORE, in view of all the disquisitions, judgment is rendered in favor of petitioner City of
Cebu against respondent Film Development Council of the Philippines, as follows:

1. Declaring Sections 13 and 14 of the (sic) Republic Act No. 9167 otherwise known as an
Act Creating the Film Development Council of the Philippines, Defining its Powers and
Functions, Appropriating Funds Therefor and for other purposes, as violative of Section 5
Article X of the 1997 (sic) Philippine Constitution; Consequently

2. Declaring that defendant Film Development Council of the Philippines (FDCP) cannot
collect under Sections 13 and 14 of R.A. 9167 as of the finality of the decision in G.R. Nos.
203754 and 204418;
 3. Declaring that Intervenor SM Cinema Corporation has the obligation to remit the
amusement taxes, withheld on graded cinema films to respondent FDCP under Sections 13
and 14 of R.A. 9167 for taxes due prior to the finality of the decision in G.R. Nos. 203754 and
204418;

4. Declaring that after the finality of the decision in G.R. Nos. 203 754 and 204418, all
amusement taxes withheld and those which may be collected by Intervenor SM on graded
films shown in SM Cinemas in Cebu City shall be remitted to petitioner Cebu City pursuant to
City Ordinance LXIX, Chapter XI, Section 42.

As to the sum of PhP 76,836,807.08 remitted by the Intervenor SM to petitioner City of Cebu, said
amount shall be remitted by the City of Cebu to petitioner FDCP within thirty (30) days from finality of
this decision in G.R. Nos. 203754 and 204418 without interests and surcharges.

SO ORDERED.

According to the court, what RA 9167 seeks to accomplish is the segregation of the amusement
taxes raised and collected by Cebu City and its subsequent transfer to FDCP. The court concluded
that this arrangement cannot be classified as a tax exemption but is a confiscatory measure where
the national government extracts money from the local government's coffers and transfers it to
FDCP, a private agency, which in turn, will award the money to private persons, the film producers,
for having produced graded films.

The court further held that Secs. 13 and 14 of RA 9167 are contrary to the basic policy in local
autonomy that all taxes, fees, and charges imposed by the LGUs shall accrue exclusively to them,
as articulated in A1iicle X,. Sec. 5 of the 1987 Constitution. This edict, according to the court, is a
limitation upon the rule-making power of Congress when it provides guidelines and limitations on the
local government unit's (LGU's) power of taxation. Therefore, when Congress passed this
"limitation," if went beyond its legislative authority, rendering the questioned provisions
unconstitutional.

By the same token, in Colon Heritage v. FDCP, the RTC, Branch 5, in its Decision of September 25,
2012, also ruled against the constitutionality of said Secs. 13 and 14 of RA 9167 for the following
reasons: (a) while Congress, through the enactment of RA 9167, may have amended Secs.
140(a)8 and 1519 of the LGC, in the exercise of its plenary power to amend laws, such power must be
exercised within constitutional parameters; (b) the assailed provision violates the constitutional
directive that taxes should accrue exclusively to the LGU concerned; (c) the Constitution, through its
Art. X, Sec. 5,10 directly conferred LGUs with authority to levy taxes-the power is no longer delegated
by the legislature; (d) In CIR v. SM Prime Holdings,11 the Court ruled that amusement tax on
cinema/theater operators or proprietors remain with the LGU, amusement tax, being, by nature, a
local tax. The fallo of the questioned judgment reads:

WHEREFORE, in view of all the foregoing, Judgment is hereby rendered in favor of petitioner, as
follows:

(1) Declaring Republic Act No. 9167 as invalid and unconstitutional;

(2) The obligation to remit amusement taxes for the graded films to respondent is ordered
extinguished;

(3) Directing respondent to refund all the amounts paid by petitioner, by way of amusement
tax, plus the legal rate of interest thereof, until the whole amount is paid in full.
Notify parties and counsels of this order.

SO ORDERED.

The Issue

Undeterred by two defeats, petitioner has come directly to this Court, presenting the singular issue:
whether or not the RTC (Branches 5 and 14) gravely erred in declaring Secs. 13 and 14 of RA 9167
invalid for being unconstitutional.

Anent Sec. 13,12 FDCP concedes that the amusement taxes assessed in RA 9167 are to be given to
the producers of graded films who are private persons. Nevertheless, according to FDCP, this
particular tax arrangement is not a violation of the rule on the use of public funds for RA 9167 was
enacted for a public purpose, that is, the promotion and support of the "development and growth of
the local film industry as a medium for the upliftment of aesthetic, cultural, and social values for the
better understanding and appreciation of the Filipino identity" as well as the "encouragement of the
production of quality films that will promote the growth and development' of the local film
industry."13 Moreover, FDCP suggests that "even if the resultant effect would be a certain loss of
revenue, [LGUs] do not feel deprived nor bitter for they realize that the benefits for the film industry,
the fortification of our values system, and the cultural boost for the nation as a whole, far outweigh
the pecuniary cost they would shoulder by backing this law."14 Finally, in support of its stance, FDCP
invites attention to the following words of former Associate Justice Isagani A. Cruz: "[t]he mere fact
that the tax will be directly enjoyed by a private individual does not make it invalid so long as some
link to the public welfare is established."15

As regards Sec. 1416 of RA 9167, FDCP is of the position that Sec. 5, Article X of the Constitution
does not change the doctrine that municipal corporations only possess delegated, not inherent,
powers of taxation and that the power to tax is still primarily vested in the Congress. Thus, wielding
its power to impose limitations on this delegated power, Congress further restricted the LGU's power
to impose amusement taxes via Secs. 13 and 14 of RA 9167-an express and real intention of
Congress to further contain the LGU's delegated taxing power. It, therefore, cannot be construed as
an undue limitation since it is well within the power of Congress to make such restriction.
Furthermore, the LGC is a mere statute which Congress can amend, which it in fact did when it
enacted RA 916417 and, later, the questioned law, RA 9167.18

This, according to FDCP, evinces the overriding intent of Congress to remove from the LGU' s
delegated taxing power all revenues from amusement taxes on grade "A" or "B" films which would
otherwise accrue to the cities and municipalities in Metropolitan Manila and highly urbanized and
independent component cities in the Philippines pursuant to Secs. 140 and 151 of the LGC.

In fine, it is petitioner's posture that the inclusion in RA 9167 of the questioned provisions was a valid
exercise of the legislature's power to amend laws and an assertion of its constitutional authority to
set limitations on the LGU' s authority to tax.

The Court's Ruling

We find no reason to disturb the assailed rulings.

Local fiscal autonomy and the constitutionally-delegated power to tax

The power of taxation, being an essential and inherent attribute of sovereignty, belongs, as a matter
of right, to every independent government, and needs no express conferment by the people before it
can be exercised. It is purely legislative and, thus, cannot be delegated to the executive and judicial
branches of government without running afoul to the theory of separation of powers. It, however, can
be delegated to municipal corporations, consistent with the principle that legislative powers may be
delegated to local governments in respect of matters of local concern.19 The authority of provinces,
cities, and municipalities to create their own sources of revenue and to levy taxes, therefore, is not
inherent and may be exercised only to the extent that such power might be delegated to them either
by the basic law or by statute.20 Under the regime of the 1935 Constitution, there was no
constitutional provision on the delegation of the power to tax to municipal corporations. They only
derived such under a limited statutory authority, outside of which, it was deemed withheld.21 Local
governments, thus, had very restricted taxing powers which they derive from numerous tax laws.
This highly-centralized government structure was later seen to have arrested the growth and efficient
operations of LG Us, paving the way for the adoption of a more decentralized system which granted
LGUs local autonomy, both administrative and fiscal autonomy.22

Material to the case at bar is the concept and scope of local fiscal autonomy. In Pimentel v.
Aguirre,23 fiscal autonomy was defined as "the power [of LGUs] to create their own sources of
revenue in addition to their equitable share in the national taxes released by the national
government, as well as the power to allocate their resources in accordance with their own priorities.
It extends to the preparation of their budgets, and local officials in tum have to work within the
constraints thereof."

With the adoption of the 1973 Constitution,24 and later the 1987 Constitution, municipal corporations
were granted fiscal autonomy via a general delegation of the power to tax.25 Section 5, Article XI of
the 1973 Constitution gave LGUs the "power to create its own sources of revenue and to levy taxes,
subject to such limitations as may be provided by law.'' This authority was further strengthened in the
1987 Constitution, through the inclusion in Section 5, Article X thereof of the condition that " [s]uch
taxes, fees, and charges shall accrue exclusively to local governments."26

Accordingly, under the present Constitution, where there is neither a grant nor a prohibition by
statute, the tax power of municipal corporations must be deemed to exist although Congress may
provide statutory limitations and guidelines.27 The basic rationale for the current rule on local fiscal
autonomy is the strengthening of LGUs and the safeguarding of their viability and self-sufficiency
through a direct grant of general and broad tax powers. Nevertheless, the fundamental law did not
intend the delegation to be absolute and unconditional. The legislature must still see to it that (a) the
taxpayer will not be over-burdened or saddled with multiple and unreasonable impositions; (b) each
LGU will have its fair share of available resources; ( c) the resources of the national government will
not be unduly disturbed; and ( d) local taxation will be fair, uniform, and just.28

In conformity to the dictate of the fundamental law for the legislature to "enact a local government
code which shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization,"29 consistent with the basic policy of local autonomy,
Congress enacted the LGC, Book II of which governs local taxation and fiscal matters and sets forth
the guidelines and limitations for the exercise of this power. In Pelizloy Realty Corporation v. The
Province of Benguet,30 the Court alluded to the fundamental principles governing the taxing powers
of LGUs as laid out in Section 130 of the LGC, to wit:

1. Taxation shall be uniform in each LGU.

2. Taxes, fees, charges and other impositions shall:

 a. be equitable and based as far as practicable on the taxpayer's ability to pay;

b. be levied and collected only for public purposes;

c. not be unjust, excessive, oppressive, or confiscatory;

d. not be contrary to law, public policy, national economic policy, or in the restraint of
trade.

3. The collection of local taxes, fees, charges and other impositions shall in no case be let to
any private person.

4. The revenue collected pursuant to the provisions of the LGC shall inure solely to the
benefit of, and be subject to the disposition by, the LGU levying the tax, fee, charge or other
imposition unless otherwise specifically provided by the LGC.

5. Each LGU shall, as far as practicable, evolve a progressive system of taxation.

It is in the application of the adverted fourth rule, that is-all revenue collected pursuant to the
provisions of the LGC shall inure solely to the benefit of, and be subject to the disposition by, the
LGU levying the tax, fee, charge or other imposition unless otherwise specifically provided by the
LGC-upon which the present controversy grew.

RA 9167 violates local fiscal autonomy

It is beyond cavil that the City of Cebu had the authority to issue its City Ordinance No. LXIX and
impose an amusement tax on cinemas pursuant to Sec. 140 in relation to Sec. 151 of the LGC. Sec.
140 states, among other things, that a "province may levy an amusement tax to be collected from
the proprietors, lessees, or operators of theaters, cinemas, concert halls, circuses, boxing stadia,
and other places of amusement at a rate of not more than thirty percent (30%) of the gross receipts
from admission fees." By operation of said Sec. 151,31 extending to them the authority of provinces
and municipalities to levy certain taxes, fees, and charges, cities, such as respondent city
government, may therefore validly levy amusement taxes subject to the parameters set forth under
the law. Based on this authority, the City of Cebu passed, in 1993, its Revised Omnibus Tax
Ordinance,32 Chapter XI, Secs. 42 and 43 of which reads:

CHAPTER XI - Amusement Tax

Section 42. Rate of Tax. - There shall be paid to the Office of the City Treasurer by the proprietors,
lessees, or operators of theaters, cinemas, concert halls, circuses, boxing stadia and other places of
amusement, an amusement tax at the rate of thirty percent (30%) of the gross receipts from
admission fees.33

Section 43. Manner of Payment. - In the case of theaters or cinemas, the tax shall first be deducted
and withheld by their proprietors, lessees, or operators and paid to the city treasurer before the
gross receipts are divided between said proprietor, lessees, operators, and the distributors of the
cinematographic films.

Then, after almost a decade of cities reaping benefits from this imposition, Congress, through RA
9167, amending Section 140 of the LGC,34 among others, transferred this income from the cities and
municipalities in Metropolitan Manila and highly urbanized and independent component cities, such
as respondent City of Cebu, to petitioner FDCP, which proceeds will ultimately be rewarded to the
producers of graded films. We reproduce anew Secs. 13 and 14 of RA 9167, thus:

Section 13. Privileges of Graded Films. - Films which have obtained an "A" or "B" grading from the
Council pursuant to Sections 11 and 12 of this Act shall be entitled to the following privileges: a.
Amusement tax reward. - A grade "A" or "B" film shall entitle its producer to an incentive equivalent
to the amusement tax imposed and collected on the graded films by cities and municipalities in
Metro Manila and other highly urbanized and independent component cities in the Philippines
pursuant to Sections 140 to 151 of Republic Act No. 7160 at the following rates:

1. For grade "A" films - 100% of the amusement tax collected on such film; and

2. For grade "B" films - 65% of the amusement tax collected on such films. The remaining
thirty-five (35%) shall accrue to the funds of the Council.

Section 14. Amusement Tax Deduction and Remittance. -All revenue from the amusement tax on
the graded film which may otherwise accrue to the cities and municipalities in Metropolitan Manila
and highly urbanized and independent component cities in the Philippines pursuant to Section 140 of
Republic Act. No. 7160 during the period the graded film is exhibited, shall be deducted and withheld
by the proprietors, operators or lessees of theaters or cinemas and remitted within thirty (30) days
from the termination of the exhibition to the Council which shall reward the corresponding
amusement tax to the producers of the graded film within fifteen (15) days from receipt thereof.

Proprietors, operators and lessees of theaters or cinemas who fail to remit the amusement tax
proceeds within the prescribed period shall be liable to a surcharge equivalent to five percent (5%) of
the amount due for each month of delinquency which shall be paid to the Council.

Considering the amendment, the present rule is that ALL amusement taxes levied by covered cities
and municipalities shall be 2iven by proprietors, operators or lessees of theatres and cinemas to
FDCP, which shall then reward said amount to the producers of graded films in this wise:

1. For grade "A" films, ALL amusement taxes collected by ALL covered LGUs on said films
shall be given to the producer thereof. The LGU, therefore, is entitled to NOTHING from its
own imposition.

2. For grade "B" films, SIXTY FIVE PERCENT (65%) of ALL amusement taxes derived by
ALL covered LGUs on said film shall be given to the producer thereof. In this case, however,
the LGU is still NOT entitled to any portion of the imposition, in view of Sec. 16 of RA 9167
which provides that the remaining 35% may be expended for the Council's operational
expenses. Thus: Section 16. Funding. - The Executive Secretary shall immediately include in
the Office of the President's program the implementation of this Act, the funding of which
shall be included in the annual General Appropriations Act.

To augment the operational expenses of the Council, the Council may:

a. Utilize the remaining thirty-five (35%) percent of the amusement tax collected during the period of
grade "B" film is exhibited, as provided under Sections 13 and 14 hereof x x x.

For petitioner, the amendment is a valid legislative manifestation of the intention to remove from the
grasp of the taxing power of the covered LGUs all revenues from amusement taxes on grade "A" or
"B" films which would otherwise accrue to them. An evaluation of the provisions in question,
however, compels Us to disagree.

RA 9167, Sec. 14 states:

Section 14. Amusement Tax Deduction and Remittance. - All revenue from the amusement tax on
the graded film which may otherwise accrue to the cities and municipalities in Metropolitan Manila
and highly urbanized and independent component cities in the Philippines pursuant to Section 140 of
Republic Act. No. 7160 during the period the graded film is exhibited, shall be deducted and withheld
by the proprietors, operators or lessees of theaters or cinemas and remitted within thirty (30) days
from the termination of the exhibition to the Council which shall reward the corresponding
amusement tax to the producers of the graded film within fifteen (15) days from receipt thereof.

A reading of the challenged provision reveals that the power to impose amusement taxes was NOT
removed from the covered LGUs, unlike what Congress did for the taxes enumerated in Sec. 133,
Article X of the LGC,35 which lays down the common limitations on the taxing powers of LGUs. Thus:

Section 133. Common Limitations on the Taxing Powers of Local Government Units. -Unless
otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and
barangays shall not extend to the levy of the following:

(a) Income tax, except when levied on banks and other financial institutions;

(b) Documentary stamp tax;

(c) Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis causa, except
as otherwise provided herein;

(d) Customs duties, registration fees of vessel and wharfage on wharves, tonnage dues, and
all other kinds of customs fees, charges and dues except wharfage on wharves constructed
and maintained by the local government unit concerned;

(e) Taxes, fees, and charges and other impositions upon goods carried into or out of, or
passing through, the territorial jurisdictions of local government units in the guise of charges
for wharfage, tolls for bridges or otherwise, or other taxes, fees, or charges in any form
whatsoever upon such goods or merchandise;

(f) Taxes, fees or charges on agricultural and aquatic products when sold by marginal
farmers or fishermen;

(g) Taxes on business enterprises certified to by the Board of Investments as pioneer or non-
pioneer for a period of six (6) and four (4) years, respectively from the date of registration;

(h) Excise taxes on articles enumerated under the national Internal Revenue Code, as
amended, and taxes, fees or charges on petroleum products;

(i) Percentage or value-added tax (VAT) on sales, barters or exchanges or similar

transactions on goods or services except as otherwise provided herein;
 (j) Taxes on the gross receipts of transportation contractors and persons engaged in the
transportation of passengers or freight by hire and common carriers by air, land or water,
except as provided in this Code;

(k) Taxes on premiums paid by way or reinsurance or retrocession;

(l) Taxes, fees or charges for the registration of motor vehicles and for the issuance of all
kinds of licenses or permits for the driving thereof, except tricycles;

(m) Taxes, fees, or other charges on Philippine products actually exported, except as
otherwise provided herein;

(n) Taxes, fees, or charges, on Countryside and Barangay Business Enterprises and
cooperatives duly registered under R.A. No. 6810 and Republic Act Numbered Sixty-nine
hundred thirty-eight (R.A. No. 6938) otherwise known as the "Cooperative Code of the
Philippines" respectively; and

(o) Taxes, fees or charges of any kind on the National Government, its agencies and
instrumentalities, and local government units. (emphasis ours)

From the above, the difference between Sec. 133 and the questioned amendment of Sec. 140 of the
LGC by RA 9167 is readily revealed. In Sec. · 133, what Congress did was to prohibit the levy by
LGUs of the enumerated taxes. For RA 9167, however, the covered LGUs were deprived of the
income which they will otherwise be collecting should they impose amusement taxes, or, in
petitioner's own words, "Section 14 of [RA 9167] can be viewed as an express and real intention on
the part of Congress to remove from the LGU's delegated taxing power, all revenues from the
amusement taxes on graded films which would otherwise accrue to [them] pursuant to Section 140
of the [LGC]."36

In other words, per RA 9167, covered LGUs still have the power to levy amusement taxes, albeit at
the end of the day, they will derive no revenue therefrom. The same, however, cannot be said for
FDCP and the producers of graded films since the amounts thus levied by the LGUs which should
rightfully accrue to them, they being the taxing authority-will be going to their coffers. As a matter of
fact, it is only through the exercise by the LGU of said power that the funds to be used for the
amusement tax reward can be raised. Without said imposition, the producers of graded films will
receive nothing from the owners, proprietors and lessees of cinemas operating within the territory of
the covered LGU.

Taking the resulting scheme into consideration, it is apparent that what Congress did in this instance
was not to exclude the authority to levy amusement taxes from the taxing power of the covered
LGUs, but to earmark, if not altogether confiscate, the income to be received by the LGU from the
taxpayers in favor of and for transmittal to FDCP, instead of the taxing authority. This, to Our mind, is
in clear contravention of the constitutional command that taxes levied by LGUs shall accrue
exclusively to said LGU and is repugnant to the power of LGUs to apportion their resources in line
with their priorities.

It is a basic precept that the inherent legislative powers of Congress, broad as they may be, are
limited and confined within the four walls of the Constitution.37 Accordingly, whenever the legislature
exercises its power to enact, amend, and repeal laws, it should do so without going beyond the
parameters wrought by the organic law.
In the case at bar, through the application and enforcement of Sec. 14 of RA 9167, the income from
the amusement taxes levied by the covered LGUs did not and will under no circumstance accrue to
them, not even partially, despite being the taxing authority therefor. Congress, therefore, clearly
overstepped its plenary legislative power, the amendment being violative of the fundamental law's
guarantee on local autonomy, as echoed in Sec. 130(d) of the LGC, thus: Section 130. Fundamental
Principles. - The following fundamental principles shall govern the exercise of the taxing and other
revenue-raising powers of local government units:

xxxx

(d) The revenue collected pursuant to the provisions of this Code shall inure solely to the benefit of,
and be subject to the disposition by, the local government unit levying the tax, fee, charge or other
imposition unless otherwise specifically provided herein x x x.

Moreover, in Pimentel,38 the Court elucidated that local fiscal autonomy includes the power of LGUs
to allocate their resources in accordance with their own priorities. By earmarking the income on
amusement taxes imposed by the LGUs in favor of FDCP and the producers of graded films, the
legislature appropriated and distributed the LGUs' funds-as though it were legally within its control-
under the guise of setting a limitation on the LGUs' exercise of their delegated taxing power. This,
undoubtedly, is a usurpation of the latter's exclusive prerogative to apportion their funds, an
impermissible intrusion into the LGUs' constitutionally-protected domain which puts to naught the
guarantee of fiscal autonomy to municipal corporations enshrined in our basic law.

Grant of amusement tax reward incentive:

not a tax exemption

It was argued that subject Sec. 13 is a grant by Congress of an exemption from amusement taxes in
favor of producers of graded films. Without question, this Court has previously upheld the power of
Congress to grant exemptions over the power of LGUs to impose taxes.39 This amusement tax
reward, however, is not, as the lower court posited, a tax exemption. Exempting a person or entity
from tax is to relieve or to excuse that person or entity from the burden of the imposition. Here,
however, it cannot be said that an exemption from amusement taxes was granted by Congress to
the producers of graded films. Take note that the burden of paying the amusement tax in question is
on the proprietors, lessors, and operators of the theaters and cinemas that showed the graded films.
Thus, per City Ordinance No. LXIX: CHAPTER XI - Amusement Tax

Section 42. Rate of Tax. - There shall be paid to the Office of the City Treasurer by the proprietors,
lessees, or operators of theaters, cinemas, concert halls,, circuses, boxing stadia and other places of
amusement, an amusement tax at the rate of thirty percent (30%) of the gross receipts from
admission fees.

Section 43. Manner of Payment. - In the case of theaters or cinemas, the tax shall first be deducted
and withheld by their proprietors, lessees, or operators and paid to the city treasurer before the
gross receipts are divided between said proprietor, lessees, operators, and the distributors of the
cinematographic films.

Similarly, the LGC provides as follows:

Section 140. Amusement Tax. –

 (a) The province may levy an amusement tax to be collected from the proprietors, lessees, or
operators of theaters, cinemas, concert halls, circuses, boxing stadia, and other places of
amusement at a rate of not more than thirty percent (30%) of the gross receipts from
admission fees.

(b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by their
proprietors, lessees, or operators and paid to the provincial treasurer before the gross
receipts are divided between said proprietors, lessees, or operators and the distributors of
the cinematographic films.

Simply put, both the burden and incidence of the amusement tax are borne by the proprietors,
lessors, and operators, not by the producers of the graded films. The transfer of the amount to the
film producers is actually a monetary reward given to them for having produced a graded film, the
funding for which was taken by the national government from the coffers of the covered LGUs.
Without a doubt, this is not an exemption from payment of tax.

Declaration by the RTC, Branch 5 of the

entire RA 9167 as unconstitutional

Noticeably, the RTC, Branch 5, in its September 25, 2012 Decision in Colon Heritage v. FDCP, ruled
against the constitutionality of the entire law, not just the assailed Sec. 14. The fallo of the judgment
reads:

WHEREFORE, in view of all the foregoing, Judgment is hereby rendered in favor of petitioner, as
follows:

(1) Declaring Republic Act No. 9167 as invalid and unconstitutional;

(2) The obligation to remit amusement taxes for the graded films to respondent is ordered
extinguished;

(3) Directing respondent to refund all the amounts paid by petitioner, by way of amusement
tax, plus the legal rate of interest thereof, until the whole amount is paid in full.

In this regard, it is well to emphasize that if it appears that the rest of the law is free from the taint of
unconstitutionality, then it should remain in force and effect if said law contains a separability clause.
A separability clause is a legislative expression of intent that the nullity of one provision shall not
invalidate the other provisions of the act. Such a clause is not, however, controlling and the courts, in
spite of it, may invalidate the whole statute where what is left, after the void part, is not complete and
workable.40

In this case, not only does RA 9167 have a separability clause, contained in Section 23 thereof
which reads:

Section 23. Separability Clause. -If, for any reason, any provision of this Act, or any part thereof, is
declared invalid or unconstitutional, all other sections or provisions not affected thereby shall remain
in force and effect.

it is also true that the constitutionality of the entire law was not put m question in any of the said
cases.
Moreover, a perusal of RA 9167 easily reveals that even with the removal of Secs. 13 and 14 of the
law, the remaining provisions can survive as they mandate other matters like a cinema evaluation
system, an incentive and reward system, and local and international film festivals and activities that
"will promote the growth and development of the local film industry and promote its participation in
both domestic and foreign markets," and to "enhance the skills and expertise of Filipino talents."41

Where a part of a statute is void as repugnant to the Constitution, while another part is valid, the
valid portion, if separable from the invalid, may stand-and be enforced. The exception to this is when
the parts of a statute are so mutually dependent and connected, as conditions, considerations,
inducements, or compensations for each other, as to warrant a belief that the legislature intended
them as a whole, in which case, the nullity of one part will vitiate the rest.42

Here, the constitutionality of the rest of the provisions of RA 9167 was never put in question. Too,
nowhere in the assailed judgment of the RTC was it explicated why the entire law was being
declared as unconstitutional.

It is a basic tenet that courts cannot go beyond the issues in a case,43 which the RTC, Branch 5 did
when it declared RA 9167 unconstitutional. This being the case, and in view of the elementary rule
that every statute is presumed valid,44 the declaration by the R TC, Branch 5 of the entirety of RA
9167 as unconstitutional, is improper.

Amounts paid by Colon Heritage

need not be returned

Having ruled that the questioned provisions are unconstitutional, the RTC, Branch 5, in Colon
Heritage v. FDCP, ordered the return of all amounts paid by respondent Colon Heritage to FDCP by
way of amusement tax. Thus:

WHEREFORE, in view of all the foregoing, Judgment is hereby rendered in favor of petitioner, as
follows:

(1) Declaring Republic Act No. 9167 as invalid and unconstitutional;

(2) The obligation to remit amusement taxes for the graded films to respondent is ordered
extinguished;

(3) Directing respondent to refund all the amounts paid by petitioner, by way of amusement
tax, plus the legal rate of interest thereof, until the whole amount is paid in full.

As regards the refund, the Court cannot subscribe to this position.

It is a well-settled rule that an unconstitutional act is not a law; it . confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all.
Applying this principle, the logical conclusion would be to order the return of all the amounts remitted
to FDCP and given to the producers of graded films, by all of the covered cities, which actually
amounts to hundreds of millions, if not billions. In fact, just for Cebu City, the aggregate deficiency
claimed by FDCP is ONE HUNDRED FIFTY NINE MILLION THREE HUNDRED SEVENTY SEVEN
THOUSAND NINE HUNDRED EIGHTY-EIGHT PESOS AND FIFTY FOUR CENTAVOS
(₱159,377,988.54). Again, this amount represents the unpaid amounts to FDCP by eight cinema
operators or proprietors in only one covered city.
An exception to the above rule, however, is the doctrine of operative fact, which applies as a matter
of equity and fair play. This doctrine nullifies the effects of an unconstitutional law or an executive act
by recognizing that the existence of a statute prior to a determination of unconstitutionality is an
operative fact and may have consequences that cannot always be ignored. It applies when a
declaration of unconstitutionality will impose an undue burden on those who have relied on the
invalid law.45

In Hacienda Luisita v. PARC, the Court elucidated the meaning and scope of the operative fact
doctrine, viz:

The "operative fact" doctrine is embodied in De Agbayani v. Court of Appeals, wherein it is stated
that a legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid
and must be complied with, thus:

xxx xxx xxx

This doctrine was reiterated in the more recent case of City of Makati v. Civil Service Commission,
wherein we ruled that:

Moreover, we certainly cannot nullify the City Government's order of suspension, as we have no
reason to do so, much less retroactively apply such nullification to deprive private respondent of a
compelling and valid reason for not filing the leave application. For as we have held, a void act
though in law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions
done in reliance thereof. Consequently, the existence of a statute or executive order prior to its being
adjudged void is an operative fact to which legal consequences are attached. It would indeed be
ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a
formal leave application.

The applicability of the operative fact doctrine to executive acts was further explicated by this Court
in Rieta v. People, thus:

Petitioner contends that his arrest by virtue of Arrest . Search and Seizure Order (ASSO) No. 4754
was invalid, as the law upon which it was predicated-General Order No. 60, issued by then President
Ferdinand E. Marcos - was subsequently declared by the Court, in Tanada v. Tuvera, 33 to have no
force and effect. Thus, he asserts, any evidence obtained pursuant thereto is inadmissible in
evidence.

We do not agree. In Tanada, the Court addressed the possible effects of its declaration of the
invalidity of various presidential issuances. Discussing therein how such a declaration might affect
1a\^/phi 1

acts done on a presumption of their validity, the Court said:

" ... In similar situations in the past this Court had taken the pragmatic and realistic course set forth in
Chicot County Drainage District vs. Baxter Bank to wit:

'The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. . . . It is quite clear, however, that such
broad statements as to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to [the determination of its invalidity], is an
operative fact and may have consequences which cannot justly be ignored. The past cannot always
be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have
to be considered in various aspects – with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations deemed to
have finality and acted upon accordingly, of public policy in the light of the nature both of the statute
and of its previous application, demand examination. These questions are among the most difficult
of those which have engaged the attention of courts, state and federal, and it is manifest from
numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity
cannot be justified.'

xxx xxx xxx

"Similarly, the implementation/ enforcement of presidential decrees prior to their publication in the
Official Gazette is 'an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."

The Chicot doctrine cited in Tanada advocates that, prior to the nullification of a statute, there is an
imperative necessity of taking into account its actual existence as an operative fact negating the
acceptance of "a principle of absolute retroactive invalidity." Whatever was done while the legislative
or the executive act was in operation should be duly recognized and presumed to be valid in all
respects. The ASSO that was issued in 1979 under General Order No. 60 - long before our Deeision
n Taiiada and the arrest of petitioner - is an operative fact that can no longer be disturbed or simply
ignored. (citations omitted; emphasis in the original.)

Bearing in mind that PARC Resolution No. 89-12-2-an executive act-was declared invalid in the
instant case, the operative fact doctrine is clearly applicable.46

Here, to order FDCP and the producers of graded films which may have already received the
amusement tax incentive reward pursuant to the questioned provisions of RA 9167, to return the
amounts received to the respective taxing authorities would certainly impose a heavy, and possibly
crippling, financial burden upon them who merely, and presumably in good faith, complied with the
legislative fiat subject of this case. For these reasons, We are of the considered view that the
application of the doctrine of operative facts in the case at bar is proper so as not to penalize FDCP
for having complied with the legislative command in RA 9167, and the producers of graded films who
have already received their tax cut prior to this Decision for having produced top-quality films.

With respect to the amounts retained by the cinema proprietors due to petitioner FDCP, said
proprietors are required under the law to remit the same to petitioner. Obeisance to the rule of law
must always be protected and preserved at all times and the unjustified refusal of said proprietors
cannot be tolerated. The operative fact doctrine equally applies to the non-remittance by said
proprietors since the law produced legal effects prior to the declaration of the nullity of Secs. 13 and
14 in these instant petitions. It can be surmised, however, that the proprietors were at a loss whether
or not to remit said amounts to FDCP considering the position of the City of Cebu for them to remit
the amusement taxes directly to the local government. For this reason, the proprietors shall not be
liable for surcharges.

In view of the declaration of nullity of unconstitutionality of Secs. 13 and 14 of RA 9167, all

amusement taxes remitted to petitioner FDCP prior to the date of the finality of this decision shall
remain legal and valid under the operative fact doctrine. Amusement taxes due to petitioner but
unremitted up to the finality of this decision shall be remitted to petitioner within thirty (30) days from
date of finality. Thereafter, amusement taxes previously covered by RA 9167 shall be remitted to the
local governments.
WHEREFORE, premises considered, the consolidated petitions are hereby PARTIALLY GRANTED.
The questioned Decision of the RTC, Branch 5 of Cebu City in Civil Case No. CEB-35601 dated
September 25, 2012 and that of the R TC, Branch 14, Cebu City in Civil Case No. CEB-35529 dated
October 24, 2012, collectively declaring Sections 13 and 14 of Republic Act No. 9167 invalid and
unconstitutional, are hereby AFFIRMED with MODIFICATION.

As modified, the decisions of the lower courts shall read:

1. Civil Case No. CEB-35601 entitled Colon Heritage Realty Corp. v. Film Development Council of
the Philippines:

WHEREFORE, in view of all the foregoing, Judgment is hereby rendered in favor of Colon Heritage
Realty Corp. and against the Film Development council of the Philippines, as follows: 1. Declaring
Sections 13 and 14 of Republic Act No. 9167 otherwise known as an Act Creating the Film
Development Council of the Philippines, Defining its Powers and Functions, Appropriating Funds
therefor arid for other purposes, as invalid and unconstitutional;

2. Declaring that the Film Development Council of the Philippines cannot collect under
Sections 13 and 14 of R.A. 9167 as of the finality of the decision in G.R. Nos. 203754 and
204418;

3. Declaring that Colon Heritage Realty Corp. has the obligation to remit the amusement
taxes withheld on graded cinema films to FDCP under Sections 13 and 14 of R.A. 9167 for
taxes due prior to the finality of this Decision, without surcharges;

4. Declaring that upon the finality of this decision, all amusement taxes withheld and those
which may be collected by Colon Heritage Realty Corp. on graded films shown in its cinemas
in Cebu City shall be remitted to Cebu City pursuant to City Ordinance LXIX, Chapter XI,
Section 42.

2. Civil Case No. CEB-35529 entitled City of Cebu v. Film Development Council of the Philippines:

WHEREFORE, in view of all the disquisitions, judgment is rendered in favor of the City of Cebu
against the Film development Council of the Philippines, as follows:

1. Declaring Sections 13 and 14 of Republic Act No. 9167 otherwise known as an Act
Creating the Film Development Council of the Philippines, Defining its Powers and
Functions, Appropriating Funds therefor and for other purposes, void and unconstitutional;

2. Declaring that the Film Development Council of the Philippines cannot collect under
Sections 13 and 14 of R.A. 9167 as of the finality of this Decision;

3. Declaring that Intervenor SM Cinema Corporation has the obligation to remit the
amusement taxes, withheld on graded cinema films to respondent FDCP under Sections 13
and 14 of R.A. 9167 for taxes due prior to the finality of this Decision, without surcharges;

4. Declaring that after the finality of this Decision, all amusement taxes withheld and those
which may be collected by Intervenor SM on graded films shown in SM Cinemas in Cebu
City shall be remitted to petitioner Cebu City pursuant to City Ordinance LXIX, Chapter XI,
Section 42.
As to the sum of PhP 76,836,807.08 remitted by the Intervenor SM to petitioner City of Cebu, said
amount shall be remitted by the City of Cebu to petitioner FDCP within thirty (30) days from finality of
this decision in G.R. Nos. 203754 and 204418 without interests and surcharges. Since Sections 13
and 14 of Republic Act No. 9167 were declared void and unconstitutional, all remittances of
amusement taxes pursuant to said Sections 13 and 14 of said law prior to the date of finality of this
Decision shall remain valid and legal. Cinema proprietors who failed to remit said amusement taxes
to petitioner FDCP prior to the date of finality of this Decision are obliged to remit the same, without
surcharges, to petitioner FDCP under the doctrine of operative fact.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

ANTONIO T. CARPIO TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

(On Official Leave)

ARTURO D. BRION
DIOSDADO M. PERALTA*
Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

(On Official Leave)

ESTELA M. PERLAS-BERNABE
MARVIC M.V.F. LEONEN*
Associate Justice
Associate Justice

(No Part)
FRANCIS H. JARDELEZA**
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the cases were assigned to the writer of
the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

Footnotes

* On official leave.

** No part.

1
Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency (PDEA), G.R. No. 157870, November 3, 2008, 570 SCRA 410.

2
Section 140. Amusement Tax.* - (a) The province may levy an amusement' tax to be
collected from the proprietors, lessees, or operators of theaters, cinemas, concert halls,
circuses, boxing stadia, and other places of amusement at a rate of not more than thirty
percent (30%) of the gross receipts from admission fees.

(b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by
their proprietors, lessees, or operators and paid to the provincial treasurer before the
gross receipts are divided between said proprietors, lessees, or operators and the
distributors of the cinematographic films.

(c) The holding of operas, concerts, dramas, recitals, painting and art exhibitions,
flower shows, musical programs, literary and oratorical presentations, except pop,
rock, or similar concerts shall be exempt from the payment of the tax hereon
imposed.

(d) The sangguniang panlalawigan may prescribe the time, manner, terms and
conditions for the payment of tax. In case of fraud or failure to pay the tax, the
sangguniang panlalawigan may impose such surcharges, interest and penalties as it
may deem appropriate.

(e) The proceeds from the amusement tax shall be shared equally by the province
and the municipality where such amusement places are located. [RA 7160]

* Section 140 of RA 7160 was later amended by RA 9640 [An Act Amending Section
140 (A) of Republic Act No. 7160, Otherwise Known as "The Local Government
Code of 1991 "]. RA 9640 lapsed into law on May 21, 2009. Presently, Sec. 140
reads:

SEC. 140. Amusement Tax. -(a) The province may levy an amusement tax to be
collected from the proprietors, lessees, or operators of theaters, cinemas, concert
halls, circuses, boxing stadia, and other places of amusement at a rate of not more
than ten percent (10%) of the gross receipts from the admissions fees

(b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by
their proprietors, lessees, or operators and paid to the provincial treasurer before the
gross receipts are divided between said proprietors, lessees, or operators and the
distributors of the cinematographic films.
 (c) The holding of operas, concerts, dramas, recitals, paintings, and art exhibitions,
flower shows, musical programs, literary and oratorical presentations, except pop,
rock, or similar concerts shall be exempt from the payment of the tax herein imposed.

(d) The sangguniang panlalawigan may prescribe the time, manner, terms and
conditions for the payment of tax. In case of fraud or failure to pay the tax, the
sangguniang panlalawigan may impose such surcharges, interest and penalties as it
may deem appropriate.

(e) The proceeds from the amusement tax shall be shared equally by the province
and the municipality where such amusement places are located.

3
Section 5, Article X of the 19&7 Constitution. Each local government unit shall have the
power to create its own sources of revenues and to levy taxes, 'fees, and charges subject to
such guidelines and limitations as the Congress may provide, consistent with the basic policy
of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.

4
The rate was later reduced to 10% pursuant to an amendatory ordinance.

5
An Act Creating the Film Development Council of the Philippines, Defining Its Powers and
Functions, Appropriating Funds Therefor, and for Other Purposes.

6
In its October 21, 2010 Order.

7
Dated October 24, 2012, by Presiding Judge Raphael B. Ysrastorza, Sr.

8
SEC. 140. Amusement Tax. -(a) The province may levy an amusement tax to be collected
from the proprietors; lessees, or operators of theaters, cinemas, concert halls, circuses,
boxing stadia, and other places of amusement at a rate of not more than thirty percent (30%)
of the gross receipts from admission fees.

9
SEC. 151. Scope of Taxing Powers. - Except as otherwise provided in this Code, the city,
may levy the taxes, fees, and charges which the province or municipality may impose:
Provided, however, That the taxes, fees and charges levied and collected by highly
urbanized and independent component cities shall accrue to them and distributed in
accordance with the provisions of this Code. The rates of taxes that the city may levy may
exceed the maximum rates allowed for the province or municipality by not more than fifty
percent (50%) except the rates of professional and amusement taxes.

10
Section 5. Each local government unit shall have the power to create its own sources of
revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as
the Congress may provide, consistent with the basic policy of local autonomy. Such taxes,
fees and charges shall accrue exclusively to the local governments.

G.R. No. 183505, February 26, 2010, 613 SCRA 774. Penned by Associate Justice
11

Mariano C. Del Castillo. There, the Court held:

The repeal of the Local Tax Code by the LGC of 1991 is not ·a legal basis for the
imposition of VAT on the gross receipts of cinema/theater operators or proprietors
derived from admission tickets. The removal of the prohibition under the Local Tax
 Code did nor grant nor restore to the national government the power to impose
amusement tax on cinema/theater operators or proprietors. Neither did it expand the
coverage of VAT. Since the imposition of a tax is a burden 9n the taxpayer, it cannot
be presumed nor can it be extended by implication. A law will not be construed as
imposing a tax unless it does so clearly, expressly, and unambiguously. As it is, the
power to impose amusement tax on cinema/theater operators or proprietors remains
with the local government.

12
Section 13. Privileges of Graded Films. - Films which have obtained an "A" or "8" grading
from the Council pursuant to Sections 11 and 12 of this Act shall be entitled to the following
privileges:

a. Amusement tax reward. - A grade "A" or "8" film shall entitle its producer to an
incentive equivalent to the amusement tax imposed and collected on the graded films
by cities and municipalities in Metro Manila and other highly urbanized and
independent component cities in the Philippines pursuant to Sections 140 and 151 of
Republic Act No. 7160 at the following rates:

1. For grade "A" films - I 00% of the amusement tax collected on such films; and

2. For grade "8" films. -65% of the amusement tax collected on such films. The
remaining thirty-five (35%) shall accrue to the funds of the Council.

13
Rollo (G.R. No. 204418), pp. 43, 44.

14
Id. at 44, 45.

15
Id. at 45; citing Cruz, Isagani A., Constitutional Law (2007).

16
Section 14. Amusement Tax Deduction and Remittances. - All revenue from the
amusement tax on the graded film which may otherwise accrue to the cities and
municipalities in Metropolitan Manila and highly urbanized and independent component cities
in the Philippines pursuant to Section 140 of Republic Act. No. 7160 during the period the
graded film is exhibited, shall be deducted and withheld by the proprietors, operators or
lessees of theaters or cinemas and remitted within thirty (30) days from the termination of the
exhibition to the Council which shall reward the corresponding amusement tax to the
producers of the graded film within fifteen (15) days from receipt thereof.

Proprietors, operators and lessees of theaters or cinemas who fail to remit the
amusement tax proceeds within the prescribed period shall be liable to a surcharge
equivalent to five percent (5%) of the amount due for each month of delinquency
which shall be paid to the Council.

An Act Amending Section 140 (A) of Republic Act No. 7160, Otherwise Known As "The
17

Local Government Code Of 1991." RA 9640 lapsed into law on May 21, 2009. With the
amendment, Sec. 140 now reads as follows:

SEC. 140. Amusement Tax. -(a) The province may levy an amusement tax to be
collected from the proprietors, lessees, or operators of theaters, cinemas, concert
halls, circuses, boxing stadia, and other places of amusement at a rate of not more
than ten percent (10%) of the gross receipts from the admissions fees.
 (b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by
their proprietors, lessees, or operators and paid to the provincial treasurer before the
gross receipts are divided between said proprietors, lessees, or operators and the
distributors of the cinematographic films.

(c) The holding of operas, concerts, dramas, recitals, paintings, and art exhibitions,
flower shows, musical programs, literary and oratorical presentations, except pop,
rock, or similar concerts shall be exempt from the payment of the tax herein imposed.

(d) The sangguniang panlalawigan may prescribe' the time, manner, terms and
conditions for the payment of tax. In case of fraud or failure to pay the tax, the
sangguniang panlalawigan may impose such surcharges, interest and penalties as it
may deem appropriate.

(e) The proceeds from the amusement tax shall be shared equally by the province
and the municipality where such amusement places are located.

Section 22. Repealing Clause. - Executive Order No. 811 is hereby repealed. Executive
18

Order 1051 and Section 140 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, are hereby amended accordingly.

All other laws, decrees, orders issuances, rules and regulations which are
inconsistent with the provisions of this Act are hereby repealed, amended or modified
accordingly.

Pepsi-Cola Bottling Company of the Philippines, Inc. v. Municipality of Tanauan, Leyte, The
19

Municipal Mayor, et al., No. L-31156, February 27, 1976, 69 SCRA 460.

Manila Electric Company v. Province of Laguna, G.R. No. 131359, May 5, 1999, 306
20

SCRA 750.

21
Id.

22
The Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

23
G.R. No. 132988, July 19, 2000, 336 SCRA 201.

It was also during this time that then President Ferdinand E. Marcos issued Presidential
24

Decree No. 231 dated July I, 1973, enacting a local tax code for provinces, cities,
municipalities, and barrios, which codified the various tax laws and echoed the constitutional
policy on local autonomy.

25
See Manila Electric Company v. Province of Laguna, supra note 20.

26
Each local government unit shall have the power to create its own sources of revenues and
to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress
may provide, consistent with the basic policy of local autonomy. Such taxes, fees and
charges shall accrue exclusively to the local governments. [Section 5, Article X, 1987
Constitution]; see Napocor v. City of Cabanatuan, G.R. No. 149110, April 9, 2003, 40 I
SCRA 259 [Taxation assumes even greater significance with the ratification of the 1987
Constitution. Thenceforth, the power to tax is no longer vested exclusively on Congress;
local legislative bodies are now given direct authority to levy taxes, fees and other charges x
x x. This paradigm shift results from the realization that genuine development can be
achieved only by strengthening local autonomy and promoting decentralization of
governance. For a long time, the country's highly centralized government structure has bred
a culture of dependence among local government leaders upon the national leadership. It
has also "dampened the spirit of initiative, innovation and imaginative resilience in matters of
local development on the part of local government leaders.]; the 1987 Constitution
enunciates the policy that the territorial and political subdivisions shall enjoy local autonomy.
In obedience to that mandate of the fundamental law, the LGC expresses that the territorial
and political subdivisions of the State shall enjoy genuine and meaningful local autonomy in
order to enable them to attain their fullest development as self-reliant communities and make
them more effective partners in the attainment of national goals, and that it is a basic aim of
the State to provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government units shall be given
more powers, authority, responsibilities and resources. (LTO v. City of Butuan, G.R. No.
131512, January 20, 2000)

27
See The City Government of Quezon City, et al. v. Bayan Telecommunications, Inc., G.R.
No. 162015, March 6, 2006, 484 SCRA 169 [The Court has taken stock of the fact that by
virtue of Section 5, Article X of the 1987 Constitution, local governments are empowered to
levy taxes.]

28
See Manila Electric Company v. Province of Laguna, supra note 20.

29
See Article X, Section 3 of the 1987 Constitution [Section 3. The Congress shall enact a
local government code which shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and operation of the
local units.]; See also Napocor v. City of Cabanatuan, G.R. No. 149110, April 9, 2003, 401
SCRA 259 [Considered as the most revolutionary piece of legislation on local autonomy, the
LGC effectively deals with the fiscal constraints faced by LGUs. 1t widens the tax base of
LGUs to include taxes which were prohibited by previous laws such as the imposition of
taxes on forest products, forest concessionaires, mineral products, mining operations, and
the like. The LGC likewise provides enough flexibility to impose tax rates in accordance with
their needs and capabilities. It does not prescribe graduated fixed rates but merely specifies
the minimum and maximum tax rates and leaves the determination of the actual rates to the
respective sanggunian.]

G.R. No. 183137, April 10, 2013, 695 SCRA 491, penned by Associate Justice Marvic
30

M.V.F. Leonen.

31
Section 151. Scope of Taxing Powers. - Except as otherwise provided in this Code, the
city, may levy the taxes, fees, and charges which the province or municipality may impose:
Provided, however, That the taxes, fees and charges levied and collected by highly
urbanized and independent component cities shall accrue to them and distributed in
accordance with the provisions of this Code.
 The rates of taxes that the city may levy may exceed the maximum rates allowed for
the province or municipality by not more than fifty percent (50%) except the rates of
professional and amusement taxes. [Local Government Code of 1991]

32
City Ordinance No. LXIX."

33
The rate was later reduced to 10% pursuant to an amendatory ordinance.

Section 22. Repealing Clause. - Executive Order No. 811 is hereby repealed. Executive
34

Order 1051 and Section 140 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, are hereby amended accordingly. [RA 9167]

See Pelizloy Realty Corporation v. The Province of Benguet, supra note 30, where the
35

Court recognized the power of Congress to remove from the taxing power of LG Us the
authority to levy certain taxes.

36
Rollo (G.R. No. 203754), p. 218.

37
See Social Justice Society (SJS) v. Dangerous Drugs Board, supra note 1; citing
Government v. Springer, 50 Phil. 259 (1927). [As early as 1927, in Government v. Springer,
the Court has defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the Government,
like the boundaries of the ocean, are unlimited. In constitutional governments,
however, as well as governments acting under delegated authority, the powers of
each of the departments x x x are limited and confined within the four walls of the
constitution or the charter, and each department can only exercise such powers as
are necessarily implied from the given powers. The Constitution is the shore of
legislative authority against which the waves of legislative enactment may dash, but
over which it cannot leap.]

38
Supra note 23.

39
See The City Government of Quezon City, et al. v. Bayan Telecommunications, Inc., supra
note 27 [For sure, in Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of
Davao, this Court has upheld the power of Congress to grant exemptions over. the power of
local government units to impose taxes. There, the Court wrote:,

Indeed, the grant of taxing powers to local government units under the Constitution
and the LGC does not affect the power of Congress to grant exemptions to certain
persons, pursuant to a declared national policy. The legal effect of the constitutional
grant to local governments simply means that in interpreting statutory provisions on
municipal taxing powers, doubts must be resolved in favor of municipal corporations.]

Ruben E. Agpalo, Statutory Construction, 1 1990, cited in Associate Justice Kapunan's

40

concurring and dissenting opinion in Tatad v. Secretary, G.R. No. 124360, December 3,
1997.

41
Sec. 3 of RA 9167.

42
Ruben E. Agpalo, Statutory Construction, supra note 40.
 Bolaos v. Bernarte, G.R. No. 180997, November 17, 2010, 635 SCRA 264; See also
43

Trenas v. People, G.R. No. 195002, January 25, 2012.

See Farinas v. The Executive Secretary, 463 Phil. 179, 197 (2003); cited in Lawyers
44

against Monopoly and Poverty v. Secretary, G:R. No. 164987, April 24, 2012.

Claudio S. Yap v. Thenamaris Ship's Management and Intermare Maritime Agencies, Inc.,
45

G.R. No. 179532. May 30, 2011, 649 SCRA 369.

46
Resolution dated November 22, 2011, G.R. No. 171101.

Ocampo v Enriquez
 EN BANC

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, v. 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, v. 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, v. 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, v. 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, v. 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, v. 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, v. 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, Respondent.

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 Malacañan 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: ChanRoblesVirt ualawli bra ry

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 c hanro blesvi rt uallawl ibra ry

On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the following directives to the
Philippine Army (PA) Commanding General: ChanRobles Vi rtua lawlib rary

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

6. 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:

chanRoble svirtual Lawlib ra ry [x] Vigil - Provide vigil

[x] Bugler/Drummer
[x] Firing Party
[x] Military Host/Pallbearers
[x] Escort and Transportation
[x] Arrival/Departure Honors

7. His remains lie in state at Ilocos Norte

8. Interment will take place at the Libingan ng mga Bayani, Ft. Bonifacio, Taguig City. Date:
TBAL.

9. Provide all necessary military honors accorded for a President

10. 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
chanRoble svirtual Lawlib ra ry

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 chanro bleslaw

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,13as 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,
chanRoble svirtual Lawlib ra ry

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 cralawlawli bra ry

(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.20chanrob leslaw

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 Ascralaw red

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,27locus 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.33chanrob leslaw

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.39 chanro bles law

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 chan robles law

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 2,4711,48 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.

Tañada v. Angara58 already ruled that the provisions in Article II of the Constitution are not self-executing.
Thus: ChanRoblesVi rtua lawlib rary

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 chan roblesv irt uallawl ibrary

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 chanrob leslaw

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 chan roble slaw

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 chanrob leslaw

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 c hanro bles law

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 chanrobles law

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 chanro bles law

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 chanrob leslaw

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: ChanRobles Vi rtu alawlib rary
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 chanro blesvi rt uallawli bra ry

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: ChanRobles Vi rtualaw lib rary

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:

chanRoble svirtual Lawlib ra ry 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 chanrob leslaw

On the part of the Executive Branch, it issued a number of administrative and executive orders. Notable of
which are the following:

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

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

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

17. 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)

18. A.O. No. 157 dated August 21, 2006 (Creating an Independent Commission to Address Media and
Activist Killings)

19. 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 chan roble slaw
 20. 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)

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

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

23. 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)

24. 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)

25. 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)

26. 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:

17. 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)

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

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

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

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

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

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

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

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

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

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

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

29. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act of 2012)

30. Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of 2012)

31. Republic Act No. 10368 (Human Rights Victims Reparation And Recognition Act of 2013)
 32. 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.101cha nro bleslaw

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 chanrobles law

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 chan roble slaw
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.129chanrobles law

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 chanro bleslaw

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 chanrobles law

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:

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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."

14. 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:

chanRoble svirtual Lawlib ra ry (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.143cha nrob leslaw

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 chanro bles law

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
chanRoble svirtual Lawlib ra ry

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 cha nro blesvi rtua llawli bra ry

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 chan robles law

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: ChanRobles Vi rtualaw lib rary

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
chanRoble svirtual Lawlib ra ry

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:

chanRoble svirtual Lawlib ra ry (i) Medal of Honor;163 cha nrob leslaw

(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:

chanRoble svirtual Lawlib ra ry (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
chanRoble svirtual Lawlib ra ry

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
chanRoble svirtual Lawlib ra ry

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:

chanRoble svirtual Lawlib ra ry (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 chan roble slaw

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:

11. Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos (P20,000.00), 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 cha nrob leslaw

12. Precedence in employment in government agencies or government-owned or controlled corporation,

if the job qualifications or requirements are met;

13. Priority in the approval of the awardee's housing application under existing housing programs of the
government;

14. 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;

15. Privilege of obtaining loans in an aggregate amount not exceeding Five Hundred Thousand Pesos
(P500,000.00) 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;

16. 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;

17. 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;

18. Free medical and dental services and consultation in hospital and clinics anywhere in the country;

19. 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 cralawlawlib rary
 20. 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
chan robles law

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: ChanRoblesVirt ualawli bra ry

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
chanRoble svirtual Lawlib ra ry

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
chanro bleslaw

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 militarymemorials, 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 chanrobles law

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.

Endnotes:

*
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).

Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral
22

Domain (GRP), et al., supra.

23
Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519-520.

Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Acestral
24

Domain (GRP), et al., supra note 21.

25
Tañada v. Cuenco, 100 Phil. 1101 (1957); Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at
cralaw red

526.
26
Id.; id.

27
Black's Law Dictionary, 941 (1991 6th ed.).

Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 527.
28

Id. at 527, citing La Bugal-B'Laan, Inc. v. Sec. Ramos, 465 Phil. 860, 890 (2004).
29

Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 528.
30

31
Rene A.V. Saguisag, Sr. and Rene A.Q. Saguisag, Jr.

Prof David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 762 (2006).

32

Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000).

33

34
Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110.

The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015, 747 SCRA 1, 46.
35

36
258 Phil 479 (1989).

37
REP. TEDDY BRAWNER BAGUILAT JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP.
EMMANUEL A. BILLONES.

BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 648 (2000).
38

Biraogo v. The Philippine Truth Commission, 651 Phil. 374, 439 (2010).
39

Maglalang v. Philippine Amusement and Gaming Corp., 723 Phil. 546, 556 (2013).
40

Id.
41

Id. at 557.
42

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 non-
exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and
adequate remedy; (k) when strong public interest is involved; and, (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
Tañada 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).

Philippine Constitution Association v. Enriquez, G.R. No. 113105, 113174, 113766, and 113888, August
62

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
chanRoble svirtual Lawlib ra ry

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 cralawlawli bra ry

(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. Tañada III, Edcel C. Lagman, Rene L.
Relampagos, Joseph Emilio A. Abaya, Walden F. Bello, Kaka J. Bag-ao, Teodoro A. Casiño, 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:

chanRoble svirtual Lawlib ra ry (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.

Remman Enterprises, Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al., 726 Phil.
84

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
chanRoble svirtual Lawlib ra ry

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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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.

VI. Treatment of victims

92

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.

Id.
96

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.

E.O. No. 58 issued on August 16, 1954 (See Arula v. Brig. Gen. Espino, etc., et al., 138 Phil. 570, 589-
104

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.

Proclamation No. 618 dated October 13, 1969, as amended by Proclamation No. 1272 dated June 4,
112

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.

http://server.pvao.mil.ph/PDF/shrines/usafipnl.pdf, last accessed on September 19, 2016.

128

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).

P.D. No. 105 is an issuance of Marcos, acting as the AFP Commander-in-Chief and by virtue of his powers
135

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: ChanRoblesVirtualawl ibra ry

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.

Id.
142

143
10 U.S.C.A. § 4723.

144
36 C.F.R. § 12.2.

Id.
145

Id.
146

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: ChanRoble sVirtualawli bra ry

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: ChanRobles Vi rtualaw lib rary

5. Direct flight of the remains of the late Pres. Marcos from Honolulu to Laoag.

6. 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.

7. That the remains will not be paraded to the other provinces.

8. 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 Doña Josefa Edralin Marcos; (4) that on September 9, Doña 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).

Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771 & 181527,
157

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
chanRoble svirtual Lawlib ra ry

eligible person, even though the individual is:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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
chanRoble svirtual Lawlib ra ry

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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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:

chanRoble svirtual Lawlib ra ry (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").

Emphasis supplied.
185

Almario, et al. v. Executive Secretary, et al., supra note 46, at 163.

186

Vol. IV Record, September 19, 1986, pp. 829-831; See also Bernas, Joaquin G., S.J., The Intent of the
187

1986 Constitution Writers. 1995. pp. 116-117.

DISSENTING OPINION

SERENO, C.J.:

The whole thesis of respondents on the substantive issues lies in the absence of an express prohibition
against the burial of former President Marcos; hence, they argue that this Court cannot characterize the
current President's decision to have him buried at the Libingan ng mga Bayani (LMB) as one made in grave
abuse of discretion.
Nothing can be more wrong, and no view more diminishing of the Judiciary's mandated role under the 1987
Constitution.

If the absence of an express prohibition were to be the primary or sole determinant of the merits of this
case, then even the processing clerk of the administrative office supervising the LMB could decide this
matter by simply ticking off the appropriate box in a Yes or No question that asks: "Is there an express
statute that prohibits a President from burying a former bemedalled soldier or president in the Libingan ng
Mga Bayani? If yes, bury. If no, do not bury."

To the contrary, the case can only be decided by deeply and holistically analyzing the extent and
implications of the legal phenomenon called the power to exercise presidential discretion, and how it should
be measured in this case.

In light of allegations that the decision to bury the late President will run counter to the Constitution,
statutory standards and judicial pronouncements, this Court must take a step back in history to understand
what the Constitution that it is defending stands for; whether it is in danger of being violated in spirit or in
letter; and whether this danger is of such kind and degree that the exercise of presidential discretion should
be restrained. This Court must also compare the statutory standards that have been raised and determine
whether the course of action proposed by the President would run counter to those standards. This Court
must also examine the doctrines and language employed in many of its decisions if it is to guard against
heresy directed at the spirit of the Constitution that could undermine not just one doctrine, but perhaps the
moral legitimacy of the Court itself.

This is how consequential any statement coming from the Court on this issue could be.

The Court's bounden duty is not only to preserve the Constitution, but also itself.

It has been posited that the Court should not meddle in a political maneuver that the President is compelled
to make. Whether it is a maneuver that is animated by the need to maintain credibility in the eyes of
important supporters, or whether it is necessary to advance unity in this country, is not a motivation that
the President should be accountable for.

Likewise, it has been proposed that this Court should look beyond the past and shift its focus to today's
political reality - that the present decision maker is the most powerful and the most popular politician in the
republic; that for him to undertake the reforms he has promised requires that he be able to deliver on his
promises; that the key to unity in this day and age is to forgive the past and give former President Marcos
the honors due the office that he held and the bemedalled soldiering he rendered; and that in any event, the
state has enacted many measures not only to compensate Martial Law victims but also to advance the cause
of human rights.

At the initial stage of any discussion in this Court, these kinds of arguments are usually met with skepticism
by its Members under the express unction of the Constitution as interpreted in the post-Marcos
decisions.1 For the relevant judicial powers provisions of the 1987 Constitution impels the Court to relegate
the political question argument, and any semblance of such argument - deference, political wisdom, etc. to a
status of non-importance, especially if it fails to satisfy the threshold test. Simply put, that test is whether
indeed the question is one addressed to purely political exercises internal to the workings of the
legislature;2 or whether, on the part of the President, there are no legal standards against which his
particular action can be evaluated.3 Indeed, the Court has, in questions of grave national importance,
generally exercised judicial review when the allegations of grave abuse of discretion are sufficiently serious.

For the implications of this case goes to the very fulcrum of the powers of Government: the Court must do
what is right by correctly balancing the interests that are present before it and thus preserve the stability of
Philippine democracy.

If the Court unduly shies away from addressing the principal question of whether a decision to bury the
former President would contradict the anti Martial Law and human rights underpinnings and direction of the
1987 Constitution, it would, wittingly or unwittingly, weaken itself by diminishing its role as the protector of
the constitutional liberties of our people. It would dissipate its own moral strength and progressively be
weakened, unable to promptly speak against actions that mimic the authoritarian past, or issue judicial writs
to protect the people from the excesses of government.

This Court must, perforce, painstakingly go through the process of examining whether any claim put forth
herein by the parties genuinely undermines the intellectual and moral fiber of the Constitution. And, by
instinct, the Court must defend the Constitution and itself.

The 1987 Constitution is the embodiment of the Filipino nations' enduring values, which this
Court must zealously protect.

Countless times, this Court has said in so many words that the 1987 Constitution embodies the Filipinos'
enduring values.4 The protection of those values has consequently become the duty of the Court. That this is
the legal standard by which to measure whether it has properly comported itself in its constitutional role has
been declared in various fashions by the Court itself.

See, for example, how this Court articulated its duty to protect the
environment,5 women,6 children,7 labor,8 the indigenous people,9 and consistently, those who have been or
are in danger of being deprived of their human rights.10 chanro bleslaw

Note the power that the Constitution vests in the Court to actively promulgate rules for the protection of
human rights, and how the Court in turn described this duty when it promulgated the writs of kalikasan,
habeas data, and amparo.11 chanrobleslaw

Any conclusion in this case that betrays a lack of enthusiasm on the part of this Court to protect the
cherished values of the Constitution would be a judicial calamity. That the Judiciary is designed to be
passive relative to the "active" nature of the political departments is a given. But when called upon to
discharge its relatively passive role, the post-1986 Supreme Court has shown zealousness in the protection
of constitutional rights, a zealousness that has been its hallmark from then up to now. It cannot, in the year
2016, be reticent in asserting this brand of protective activism.

Not everything legally required is written in black and white; the Judges' role is to discern within
the penumbra.

As early as 1950, the Civil Code, a creation of the Legislature, has instructed the Judiciary on how to
proceed in situations where there is no applicable law or where there is ambiguity in the legislation that
seems to apply to the case at hand. The code provides: ChanRobles Virtualawl ibra ry

Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the laws.

Article 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail.
I do not believe that this Court is bereft of sufficient guides that can aid in the exercise of its role of
protecting and advancing constitutional rights. It must with a magnifying lens examine whether clear intent,
historical references, and express mandates can be found in the 1987

Constitution and whether these are relevant to this case. We must pick them out and examine them. The ill-
gotten wealth statutes, the remedial human rights legislation - all describe the burden of a nation that must
recover from the financial and moral plunder inflicted upon this nation by Marcos, his family and his cronies.
We must get our bearings from these guideposts and find out if they instruct us on what must be done with
respect to his proposed burial beyond the express and implied condemnation of the wrongs he has
committed against the country. The pronouncements of this Court and those of the Sandiganbayan, the
legal pleadings and administrative propositions submitted by the Philippine government to international and
local tribunals from 1987 to the present a full 29 years from these we must infer an indication of the
treatment that should be given to the proposed action of the Government.

That constitutional and statutory interpretation is the bread and butter of adjudication is beyond cavil. From
the oldest cases in the Philippine Reports to its latest decision,12 this Court has been in the business of filling
in gaps, interpreting difficult texts, so that "right and justice will prevail." That this is the entire reason for
the existence of the Judiciary is self-evident. The end of "judging" is not to do what an administrative clerk
can very well do; it is to ensure that "right and justice" will prevail.

Indeed, that judges must interpret statutes as well as declare the existence and protection of individual
rights so that "justice and right" might prevail has been the essence of an independent Judiciary. This has
been so from the time that the necessity for such independence was first recognized by the 1215 Magna
Carta signed by King John; that no man, not even the highest ruler of the land and King John believed in his
divine right to rule - can exercise power in such a way that denies the fundamental liberty of any man.
And the modern Judiciary has progressed considerably from that time. The Philippine Judiciary will thus be
measured by the universal standard of whether it has discharged its power of review, so that "right and
justice will prevail."

There was a time when this Court hid under the "political question" doctrine and evaded constitutional and
moral responsibility for the long period of suppression of the people's basic rights. Rightly so, that same
Court, after the repudiation by our people of the Marcos regime in 1986, likewise repudiated the acts of the
majority of the Court during Martial Law.

This Court cannot afford to retrogress and make the same mistakes as those made by its predecessor courts
during Martial Law. To do so would possibly merit the same kind of condemnation that former President
Marcos reaped in the fullness of time.

Is the preference for the protection of human rights encoded in the legal DNA of the
Constitution?

There is no question that the importance given to human rights is encoded in the very building blocks of the
Philippine Constitution. For the Constitution to make sense, the Supreme Court has to recognize that it is
programmed to reject government actions that are contrary to the respect for human rights, and to uphold
those that do.

The recognition of the hallowed place given to the protection of human rights has been tirelessly repeated
by all the Justices who ever walked the halls of Padre Faura. Not one has said that it was unimportant; or
that it should be sacrificed at the altar of something else - not economic progress, not even peace not even
by those who saw when, why, and how Martial Law began and progressed.

Former Chief Justice Reynato Puno has said: ChanRoblesVirt ualawli bra ry

The sole purpose of government is to promote, protect and preserve these [human] rights. And when
govermnent not only defaults in its duty but itself violates the very rights it was established to protect, it
forfeits its authority to demand obedience of the governed and could be replaced with one to which the
people consent. The Filipino people exercised this highest of rights in the EDSA Revolution of February
1986.13
Chief Justice Puno unequivocably repudiated the "ends-justifies-means" mantra of Martial Law when he
catapulted the rights that Marcos trampled upon to the highest pinnacle of government priorities, and when
as Chief Justice he made as his tenure's flagship the promulgation of the extraordinary and novel human
rights writs of amparo and habeas data.

If it is true that when the Government itself violates the very rights it was established to protect, that
violation forfeits its right to govern, then it becomes necessary for this Court to reject any governmental
attempt that encourages the degradation of those rights. For this Court guards not only against clear and
direct violations of the Constitution, but also against actions that lead this country and its rulers to a slippery
slope that threatens to hurl its people to the abyss of helpless unprotectedness.

Contrary to the thesis of my esteemed colleague Justice Diosdado Peralta, the constitutional provisions
guaranteeing the protection of human rights are not inert, coming to life only when there is a specific law
that would make these rights accessible in specific cases. Each right that is sought to be protected by the
Constitution acts as a prohibition against the Government's derogation of those rights. Not all of the rights
guaranteed by the Constitution direct the commission of positive acts. Yet these rights can, under the right
circumstances, be invoked either singly or collectively to bar public officers from performing certain acts that
denigrate those rights.

Summary of the arguments on the substantive issues

Credit must be given to the Solicitor General for immediately agreeing that the Constitution, decisions of this
Court, human right statutes and the ill-gotten wealth laws and proceedings - in their totality - condemn the
Martial Law regime of the late President Marcos, his family and his cronies.14 Nevertheless, he posits that all
of these are in the past; human rights victims are to be compensated, anyway; and the recovery of ill-
gotten wealth would continue, including the pursuit of criminal cases against the Marcos family and their
cronies. In other words, while he admits that it would be most difficult to make former President Marcos out
as a hero, considering the latter's martial rule and recorded plunder, nevertheless, Marcos was a bemedalled
war soldier, and that, in addition, his being a former President who was never dishonorably discharged as a
soldier - this fact alone - entitles him to be interred at the LMB. To the Solicitor General, it is non
sequitur for human rights victims to claim that the burial of Marcos at a cemetery called Libingan ng mga
Bayani will entomb him as a hero and negate the plethora of legal pronouncements that he is not.

The candid admission made by the Solicitor General has made the job of this Court much easier. For the
substantive issue now boils down to whether, in fact and in law, the proposed burial of the late President
Marcos at the LMB

(1) will derogate from the state's duty to protect and promote human rights
under the Constitution, domestic statutes, and international law·

(2) will violate Presidential Decree No. 105, and Republic Act Nos. 10066,
10086 and 289;

(3) is an unconstitutional devotion of public property to a private purpose;

(4) is an illegal use of public funds;

(5) cannot be sourced from the residual powers of the President or his
powers to reserve lands for public purposes;

(6) cannot find legal mooring in AFP Regulation G 161-375;

(7) is in violation of the clause on faithful execution of the laws

and thus the proposed burial is unconstitutional and illegal, and the presidential discretion sought to be
exercised is being committed in grave abuse of discretion.

On the procedural points, this Opinion fully agrees with the Dissenting Opinion of Justice Alfredo Benjamin
S. Caguioa, Jr., but will nevertheless, attempt to augment what has been so ably discussed by Justice
Caguioa on the political question defense.

On the substantive points, I fully agree with Justice Caguioa, whose Dissenting Opinion had first been
proposed as the main decision. I had prepared this Opinion to elucidate my independent understanding of
some of the issues he has covered.

DISCUSSION

I.

THE COURT HAS THE AUTHORITY TO RESOLVE THIS CONTROVERSY UNDER THE EXPANDED
CONCEPT OF JUDICIAL REVIEW IN THE 1987 CONSTITUTION.

Respondents contend that the issue in this case is a matter within the discretion of the Executive and must
consequently be considered beyond our power of judicial review.

As will be further discussed, this Court cannot refuse to review an issue simply because it is alleged to be a
political question. That train has departed a long time ago. Prevailing jurisprudence is a generation apart
from the former usefulness of the political question doctrine as a bar to judicial review. The reason for that
departure - Philippine Martial Law experience.

A. With the advent of the 1987 Constitution, respondents can no longer utilize the traditional
political question doctrine to impede the power of judicial review.

The 1987 Constitution has expanded the concept of judicial review15 by expressly providing in Section 1,
Article VIII, as follows: ChanRobles Vi rtua lawlib rary

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 above provision delineates judicial power and engraves, for the first time, the so-
called expanded certiorari jurisdiction of the Supreme Court.16 chanrobles law

The first part of the provision represents the traditional concept of judicial power involving the settlement of
conflicting rights as conferred by law. The second part represents the expansion of judicial power to enable
the courts of justice to review what was before forbidden territory; that is, the discretion of the political
departments of the govemment.17 chanro bles law

As worded, the new provision vests in the judiciary, particularly in the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature, as well as to declare their acts
invalid for lack or excess of jurisdiction, should they be tainted with grave abuse of discretion.18 c hanro bleslaw

The deliberations of the 1986 Constitutional Commission provide the nature and rationale of this expansion
of judicial power. In his Sponsorship Speech, former Chief Justice and Constitutional Commissioner Roberto
R. Concepcion stated: ChanRoblesVi rtua lawlib rary

The first section starts with a sentence copied from former Constitutions. It says: ChanRoblesVi rt ualawlib rary

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of 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 or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law.
As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the
deposed regime was marred considerably by the circumstance that in a number of cases against
the government, which then had no legal defense at all, the solicitor general set up the defense
of political questions and got away with it. As a consequence, certain principles concerning particularly
the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the government set up the
defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to
pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions
involved. It did not merely request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime....

xxxx

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the govermnent
as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or
not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute a
political question.19 (Emphasis supplied)
The expansion of judicial power resulted in constricting the reach of the political question doctrine.20Marcos
v. Manglapus21 was the first case that squarely dealt with the issue of the scope of judicial power vis-a-
vis the political question doctrine under the 1987 Constitution. In that case, the Court explained:ChanRob les Virtualawl ibra ry

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide.

xxxx

x x x When political questions are involved, the Constitution limits the determination to whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official
whose action is being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter
alone to decide.22
The prerogative of the Court to review cases in order to determine the existence of grave abuse of discretion
was further clarified in Estrada v. Desierto:23
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it
expanded the power of judicial review of this court not only to settle actual controversies involving rights
which are legally demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed
against the exercise of its jurisdiction. With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the
new provision did not just grant the Court power of doing nothing.24 (Citations omitted and Emphasis
supplied)
Notably, the present Constitution has not only vested the judiciary with the right to exercise judicial power,
but made it a duty to proceed therewith - a duty that cannot be abandoned "by the mere specter of this
creature called the political question doctrine."25 This duty must be exercised "to correct errors of
cra lawred

jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial
or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the
latter does not exercise judicial, quasi-judicial or ministerial functions."26
chanrob leslaw

Chief Justice Concepcion had emphatically explained to the 1986 Constitutional Commission that the
Supreme Court, which he had been a part of, used the political question theory to avoid reviewing acts of
the President during Martial Law, and thus enabled the violation of the rights of the people. In his words: ChanRoblesVirtualawli bra ry

It [referring to the refusal of the Supreme Court to review] did not merely request an encroachment upon
the rights of the people, but it, in effect, encouraged further violations thereof during the martial law
regime.27
The question I now pose to my colleagues in the Majority: "Are we not, by refusing to pass upon the
question of the effects of the Marcos burial at the LMB, encouraging authoritarianism, plunder, and the
violation of human rights, by signaling that what Marcos and his Martial Rule represents is not anathema?"

B. In the exercise of its expanded judicial power, the Court has decided issues that were
traditionally considered political questions.

Following the effectivity of the present Constitution, only a select number of issues continue to be
recognized by the Court as truly political and thus beyond its power of review. These issues include the
executive's determination by the executive of sovereign or diplomatic immunity,28 its espousal of the claims
of its nationals against a foreign government,29 and the electorate's expression of confidence in an
incumbent official.30
chan roble slaw

Apart from these matters, all other acts of government have been the subject of the
expanded certiorari jurisdiction of the Court under Article VIII, Section II of the Constitution. As
demonstrated in the following cases, the Court has reviewed the acts of the President, the Senate, the
House of Representatives, and even of independent bodies such as the electoral tribunals and the
Commission on Elections, even for acts that were traditionally considered political.

Acts of the President

The Court in Marcos v. Manglapus31 ascertained the validity of the President's determination that the return
of the Marcoses posed a serious threat to the national interest and welfare, as well as the validity of the
prohibition on their return. As previously stated, the political question doctrine was first invoked and then
rejected by the Court in that case in view of its expanded power of judicial review under the 1987
Constitution.

The Court then reviewed the constitutionality of a presidential veto in Gonzales v. Macaraig, Jr.32 It ruled
that "the political question doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to this Court."

The expanded power of judicial review was likewise utilized to examine the grant by the President of
clemency in administrative cases;33 and the President's power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion.34 The Court even tackled the legitimacy of the Arroyo
administration in Estrada v. Desierto.35 Although it resolved the question as a constitutional issue, the Court
clarified that it would not defer its resolution based merely on the political question doctrine.

In David v. Macapagal-Arroyo,36 it was the validity of then President Arroyo's declaration of national
emergency that was assailed before the Court. Significantly, it reviewed the issue even while it recognized
that the matter was solely vested in the wisdom of the executive: ChanRoble sVi rt ualawlib ra ry

While the Court considered the President's "calling-out" power as a discretionary power solely vested in his
wisdom, it stressed that this does not prevent an examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. This ruling is mainly a result of the Court's reliance on Section 1, Article VIII of 1987 Constitution
which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the
political departments. Under the new definition of judicial power, the courts are authorized not only "to
settle actual controversies involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."37 (Citations omitted)
In Biraogo v. Philippine Truth Commission of 2010,38 even the President's creation of a Truth Commission
was reviewed by the Court. As will be further explained, the fact that the commission was created
to implement a campaign promise did not prevent the Court from examining the issue.

Acts of the Legislature

The Court has likewise exercised its expanded power of judicial review in relation to actions of Congress and
its related bodies. In Daza v. Singson,39 it reviewed the manner or legality of the organization of the
Commission on Appointments by the House of Representatives. While the review was premised on the fact
that the question involved was legal and not political, the Court nevertheless held that "even if we were to
assume that the issue presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question."

In later cases, the Court rejected the political question doctrine and proceeded to look into the following
political acts of the legislature: (a) the decision of the House of Representatives to allow the dominant
political party to change its representative in the House Electoral Tribunal;40 (b) the decision of the Senate
Blue Ribbon Committee to require the petitioners to testify and produce evidence at its inquiry;41 (c) the
propriety of permitting logging in the country;42 (d) the validity of the filing of a second impeachment
complaint with the House ofRepresentatives;43(d) the validity of an investigation conducted in aid of
legislation by certain Senate committees;44 and (e) the decision of the House of Representatives Committee
on Justice to take cognizance of two impeachment complaints.45 chan robles law

We also exercised our constitutional duty "to determine whether or not there had been a grave abuse of
discretion amounting to lack or excess of jurisdiction"46 on the part of the Senate when it ratified the WTO
Agreement and the three Annexes thereof in Tañada v. Angara.47 The Court firmly emphasized in that case
that "it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any
officer, agency, instrumentality, or department of the govemment."48 chanroble slaw

Latest Jurisprudence

The most recent jurisprudence in this area remains in line with the notion of expanded certiorari jurisdiction.
The Court has been consistent in its rejection of the political question doctrine as a bar to its expanded
power of review.
In 2013, the constitutionality of the pork barrel system was resolved in Belgica v. Ochoa.49 While the Court
clarified that the issue involved legal questions, it nonetheless rejected the invocation of the political
question doctrine and upheld the expanded judicial powers of the Court.

In 2014, Araullo v. Aquino III50 delved into the constitutionality of the Disbursement Acceleration Program of
the executive department, again emphasizing the Court's expanded power of review.

In 2015, the Court in The Diocese of Bacolod v. Commission on Elections51 rejected the application of the
political question doctrine. It ruled that the right of the non-candidate petitioners to post the subject
tarpaulin in their private property was an exercise of their right to free expression. In rejecting the
COMELEC's political question defense, it held that "the concept of a political question.... never precludes
judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective
right."52
chan robles law

A few months after Diocese of Bacolod, the policy of the Judicial and Bar Council (JBC) requiring judges of
first-level courts to render five years of service before they could qualify as applicants to second-level courts
was assailed as unconstitutional in Villanueva v. Judicial and Bar Council.53 The Court resolved the issue by
stating "since the formulation of guidelines and criteria, including the policy that the petitioner now assails,
is necessary and incidental to the exercise of the JBC's constitutional mandate, a determination must be
made on whether the JBC has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing and enforcing the said policy."54 chan rob leslaw

Early this year, the Court in Saguisag v. Ochoa, Jr.,55 determined the constitutionality of the Enhanced
Defense Cooperation Agreement between the Republic of the Philippines and the United States of America.
The Court affirmed therein its expanded jurisdiction: C hanRobles Vi rt ualawlib ra ry

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power
has been extended to the determination of whether in matters traditionally considered to be within the
sphere of appreciation of another branch of government, an exercise of discretion has been attended with
grave abuse. The expansion of this power has made the political question doctrine "no longer the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review."56 (Citations omitted)
Notably, while there were instances when the Court deferred from interfering with an issue involving a
political question, it did so not because political questions were involved but because of a finding that there
was no grave abuse of discretion.57 Otherwise stated, the Court still exercised its expanded judicial power,
but found no reason to annul the questioned acts. It held in Defensor-Santiago v. Guingona, Jr.,58 "the all-
embracing and plenary power and duty of the Court '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' is restricted only by the definition and confines of the term 'grave abuse of discretion.'"

It is evident from this long line of cases that the Court can no longer refuse to adjudicate cases on the basis
of the "political question doctrine." Whenever issues of a political nature are raised before it, it is the duty of
the Court to meet the questions head-on for as long as grave abuse of discretion or constitutionality is
seriously involved.

C. The assertion that the burial is intended to implement an election campaign promise does not
render the matter non-justiciable.

In view of the above rulings of this Court, it is evident that we must resolve the present controversy,
notwithstanding the allegation that the decision of the President to allow the burial is purely political in
character. That the order was supposedly founded on an "election campaign promise" does not transform
the matter into a political issue that is beyond our power to review.

In fact, in Biraogo v. Philippine Truth Commission of 2010,59 the Court reviewed the validity of the creation
of the Truth Commission, despite its recognition that the act was meant to implement a campaign promise
made by then President Benigno Aquino III: ChanRoblesVi rt ualawlib ra ry

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections,
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption
with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and
of his ability to carry out this noble objective, catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission).60
Even under those circumstances, however, the Court still decided the controversy and ultimately declared
the creation of the Truth Commission unconstitutional. While I maintain my dissenting view because
unknowable standards were imposed in that case, I believe that the Court correctly took cognizance of the
dispute, notwithstanding the fact that a campaign promise was involved. There is no reason for the Court to
deviate from that course in the present case.

Having established the duty of the Court to review the assailed acts, it is now necessary to examine whether
the decision of the President to allow the burial of former President Marcos at the LMB is consistent with the
Constitution and the laws.

II.

THE PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND IN VIOLATION OF HIS DUTY
TO FAITHFULLY EXECUTE THE LAWS WHEN HE ORDERED THE BURIAL OF MARCOS IN
THE LIBINGAN NG MGA BAYANI.

The 1987 Constitution mandates the president to ensure that laws are faithfully executed.61 This duty of
faithful execution circumscribes all the actions of the President as the Chief Executive. It also limits every
exercise of his discretion. As this Court declared in Almario v. Executive Secretary: ChanRoblesVirtu alawlibra ry

Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to keep it
from straying. In its classic formulation, "discretion is not unconfined and vagrant" but "canalized within
banks that keep it from overflowing." The President's power must be exercised in accordance with existing
laws. Section 17, Article VII of the Constitution prescribes faithful execution of the laws by the President: ChanRobles Vi rtua lawlib rary

Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.
The President's discretion in the conferment of the Order of National Artists should be exercised in
accordance with the duty to faithfully execute the relevant laws. The faithful execution clause is best
construed as an obligation imposed on the President, not a separate grant of power. It simply
underscores the rule of law and, corollarily, the cardinal principle that the President is not above
the laws but is obliged to obey and execute them. This is precisely why the law provides that
"[a]dministrative or executive acts, orders and regulations shall be valid only when they are not contrary to
the laws or the Constitution."62 (Citations omitted and Emphasis supplied)
In fulfilling this duty, the President is not only obligated to enforce the express terms of the Constitution or
the statutes; he is likewise bound to implement any right, duty, or obligation inferable from these primary
sources.63 This rule finds support in Cunningham v. Neagle,64 in which the United States Supreme Court
suggested that the duty of the President to faithfully execute the law is not limited to the
enforcement of the express terms of acts of Congress or of treaties, that duty extends to "all
rights, duties and obligations growing out of the Constitution itself, our international relations,
and all the protection implied by the nature of the government under the Constitution."65 chanroble slaw

As a consequence of these principles, any act of the President that contravenes the law, its policies, or any
right or duty inferable therefrom must be considered grave abuse of discretion.66 By the same token, a
refusal to execute the laws when necessary must be invalidated in the absence of any statutory
justification.67
chan roble slaw

As will be demonstrated, the directive of President Duterte to allow the burial of Marcos at the LMB
contravenes the constitution, laws, policies, and jurisprudence. Moreover, the basis for the directive was an
invalid regulation issued by the Armed Forces of the Philippines (AFP) in excess of its statutory authority.
Considering that the order was made in contravention of law, it cannot be justified by mere reference to the
President's residual powers. Such act is tainted with grave abuse of discretion.

A. Statutes and jurisprudence establish a clear policy to condemn the acts of Marcos and what he
represents, which effectively prohibits the incumbent President from honoring him through a
burial in the Libingan ng mga Bayani.

It is the duty of the Court to give effect not only to the letter of the law, but more importantly to the spirit
and the policy that animate it. In Alonzo v. Intermediate Appellate Court,68 the Court explained: ChanRob les Virtualawl ibra ry
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice
are inseparable, and we must keep them so. x x x
The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read
according to its spirit or intent. For what is within the spirit is within the statute although it is not within the
letter thereof; and that which is within the letter but not within the spirit is not within the statute. Stated
differently, a thing which is within the intent of the lawmaker is as much within the statute as within the
letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of
the lawmakers.69
To carry out this duty, the Court must examine not only the subject law itself, but the entire body of related
laws including the Constitution, domestic statutes, administrative issuances and jurisprudence. It is only by
taking a holistic view of the matter that the Court can ensure that its reading of the law is consistent with
the spirit thereof. In Social Weather Stations, Inc. v. COMELEC,70 we explained the importance of taking a
holistic view when interpreting the law: ChanRobles Virtualawl ibra ry

Third, the assumption that there is, in all cases, a universal plain language is erroneous. In reality,
universality and uniformity of meaning is a rarity. A contrary belief wrongly assumes that language is static.

The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider
context and the interplay of the historical, the contemporary, and even the envisioned. Judicial
interpretation entails the convergence of social realities and social ideals. The latter are meant to be effected
by the legal apparatus, chief of which is the bedrock of the prevailing legal order: the Constitution. Indeed,
the word in the vernacular that describes the Constitution - saligan - demonstrates this imperative of
constitutional primacy.

Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we consider not an
abstruse provision but a stipulation that is part of the whole, i.e., the statute of which it is a part, that is
aimed at realizing the ideal of fair elections. We consider not a cloistered provision but a norm that should
have a present authoritative effect to achieve the ideals of those who currently read, depend on, and
demand fealty from the Constitution.71
In this case, we are being asked to decide whether the President may validly order the burial of Former
President Marcos in the LMB. The resolution of this question requires more than an examination of the text
of AFP Regulations 161-375. More than finding a textual anchor, we are compelled by this issue to scrutinize
the implications of the President's order and determine if it conflicts with the text, the policy, and the spirit
of the law.

At its core, the present dispute turns on whether the state, through the President and the AFP,
may legally honor Former President Marcos and his family. For that is the essence of the
proposed burial at the LMB regardless of whether Marcos is to be buried as a hero, as a soldier or
as a former president. A clear understanding of our Constitution, laws, jurisprudence, and our
international obligations must lead to the conclusion that the grant of any such honors for the
late dictator is prohibited.

Setting aside the validity of AFP Regulations 161-375 for the moment, their blind application to the present
case would be an egregious mistake. Considering that various laws and jurisprudence reveal the clear policy
of the state to denounce both former President Marcos and the Martial Law regime, it would be
inappropriate, if not absurd, for the state to honor his memory.

1. Marcos is perpetuated as a plunderer and a perpetrator of human rights violations in our organic and
statutory laws.

As soon as the EDSA Revolution succeeded in 1986, the revolutionary government - installed by the direct
exercise of the power of the Filipino people72 - declared its objective to immediately recover the ill-gotten
wealth amassed by Marcos, his family, and his cronies. The importance of this endeavor is evident in the
fact that it was specifically identified in the 1986 Provisional Constitution as part of the mandate of the
people. Article II, Section 1 of that Constitution states: ChanRoblesVirtualawlib ra ry

SECTION 1. Until a legislature is elected and convened under a New Constitution, the President shall
continue to exercise legislative power.

The President shall give priority to measures to achieve the mandate of the people to:
xxxx

d) Recover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect
the interest of the people through orders of sequestration or freezing of assets of accounts;
Pursuant to this mandate, then President Corazon Aquino issued three executive orders focused entirely on
the recovery of the ill-gotten wealth taken by Marccs and his supporters:
chanRoble svirtual Lawlib ra ry

a) Executive Order No. 173 created the Presidential Commission on Good

Government (PCGG) tasked to, among others, assist the President in the
"recovery of all ill-gotten wealth accumulated by former President
Marcos, his immediate family, relatives, subordinates and close
associates x x x by taking undue advantage of their public office and/or
using their powers, authority, influence, connections or relationship."74

b) Executive Order No. 275 authorized the freezing and sequestration of

assets pertaining to Marcos, his relatives, associates, dummies, agents
or nominees, which had been "acquired by them directly or indirectly,
through or as a result of the improper or illegal use of funds or
properties owned by the Government of the Philippines;"76 or "by taking
undue advantage of their office, authority, influence, connections or
relationship."77

c) Executive Order No. 1478 empowered the PCGG to file and prosecute all
cases it had investigated pursuant to Executive Order Nos. 1 and 2.

All three executive orders affirmed that Marcos, his relatives and supporters had acquired assets and
properties through the improper or illegal use of government funds or properties by taking undue advantage
of their office, authority, influence, or connections. These acts were proclaimed to have caused "grave
damage and prejudice to the Filipino people and the Republic of the Philippines."79 chan roble slaw

The gravity of the offenses committed by former President Marcos and his supporters even prompted the
Court to describe the mandate of the PCGG as the recovery of "the tremendous wealth plundered from the
people by the past regime in the most execrable thievery perpetrated in all history."80 The importance of this
mandate was further underscored by the sovereign Filipino people when they ratified the 1987 Constitution,
including the following provision: ChanRobles Vi rtua lawlib rary

ARTICLE XVIII
Transitory Provisions

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.
Apart from being declared a plunderer, Marcos has likewise been pronounced by the legislature as a
perpetrator of human rights violations. In Republic Act No. (R.A.) 10368, the state recognized the following
facts:
chanRoble svirtual Lawlib ra ry

a) Human rights violations were committed during the Martial Law period
"from September 21, 1972 to February 25, 1986 by persons acting in an
official capacity and/or agents of the State;"81 and

b) A number of these human rights violations occurred because of decrees,

 declarations or issuances made by Marcos;82 and by "acts of force,
intimidation or deceit"83 done by him, his spouse, Imelda Marcos, and
their immediate relatives by consanguinity or affinity, associates, cronies
and subordinates.84

Because of the human rights violations perpetrated by Marcos and his associates, the legislature has
decreed that victims are entitled to both monetary85 and non-monetary86 reparations to be principally
sourced from the funds transferred to the Philippine government by virtue of the Order of the Swiss Federal
Supreme Court.87 Those funds were earlier declared part of the ill-gotten wealth of the Marcos family and
forfeited in favor of the Philippine government.

The statements in the above laws were clear indictments by both the revolutionary government
and the legislature against the massive plunder and the countless abuses committed by Marcos
and his cronies during his tenure as President. These laws not only condemn him as a thief; they
equally recognize his criminal liability for the atrocities inflicted on innumerable victims while he
was in power.

2. Decisions of this Court have denounced the abuses committed by Marcos during the Martial Law
dictatorship.

Apart from earning the condemnation of the legislature, Marcos and the Martial Law regime have likewise
received harsh criticism from this Court. In dozens of decisions, it denounced the abuses he had committed;
the pernicious effects of his dictatorship; and the grave damage inflicted upon the nation by his corruption,
thievery, and contempt for human rights. Foremost among these denunciations are found in are four cases
ordering the forfeiture of the ill-gotten wealth he amassed with the assistance of his relatives and cronies.

In Republic v. Sandiganbayan,88 the Court forfeited a total of USD

658 million in favor of the government. These funds, contained in Swiss deposit accounts in the name of
certain foundations, were declared ill-gotten, as they were manifestly out of proportion to the known lawful
income of the Marcos family. The Court used the same reasoning in Marcos, Jr. v. Republic89 to justify the
forfeiture of the assets of Arelma, S.A., valued at USD 3,369,975 in 1983.

On the other hand, in Republic v. Estate of Hans Menzi90 and in Yuchengco v. Sandiganbayan,91 the Court
scrutinized the beneficial ownership of certain shares of Bulletin Publishing Corporation and Philippine
Telecommunications Investment Corporation, respectively. The Court concluded in the two cases that the
shares, although registered in the names of cronies and nominees of Marcos, were part of the ill-gotten
wealth of the dictator and were subject to forfeiture.

It must be emphasized that in the preceding cases, the Court noted the grand schemes employed by Marcos
and his supporters to unlawfully amass wealth and to conceal their transgressions. In Yuchengco, it
declared:ChanRob les Vi rtualawl ib rary

In PCGG v. Peña, this Court, describing the rule of Marcos as a "well-entrenched plundering regime" of
twenty years, noted the "magnitude of the past regime's 'organized pillage' and the ingenuity of the
plunderers and pillagers with the assistance of the experts and best legal minds available in the market."
The evidence presented in this case reveals one more instance of this grand scheme. This Court - guardian
of the high standards and noble traditions of the legal profession - has thus before it an opportunity to
undo[,] even if only to a certain extent, the damage that has been done.92 (citations omitted)
In addition to the plunder of the public coffers, Marcos was harshly condemned by this Court for the human
rights abuses committed during the Martial Law period.93 In Mijares v. Ranada, et al.,94 it stated:
ChanRoblesVirtualawl ibra ry

Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bitter
crop. While the restoration of freedom and the fundamental structures and processes of democracy have
been much lauded, according to a significant number, the changes, however, have not sufficiently healed
the colossal damage wrought under the oppressive conditions of the martial law period. The cries of
justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in
the hearts of the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended
through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not
merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of
reparations due within the confines of the restored rule of law.
The petitioners in this case are prominent victims of human rights violations who, deprived of the
opportunity to directly confront the man who once held absolute rule over this country, have
chosen to do battle instead with the earthly representative, his estate.95 (Emphasis supplied)
Marcos himself was severely criticized for abuses he had personally committed while in power. For
instance, he was found to have unlawfully exercised his authority for personal gain in the following cases:
(a) Tabuena v. Sandiganbayan,96 in which he ordered the general manager of the Manila International
Airport Authority to directly remit to the Office of the President the amount owed by the agency to the
Philippine National Construction Corporation; (b) Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto,97 in which Marcos made a marginal note prohibiting the foreclosure of the mortgaged
assets of Mindanao Coconut Oil Mills and waiving the liabilities of the corporation and its owners to the
National Investment and Development Corporation; and (c) Republic v. Tuvera,98 in which Marcos himself
granted a Timber License Agreement to a company owned by the son of his longtime aide, in violation of the
Forestry Reform Code and Forestry Administrative Order No. 11.

Marcos was likewise deemed personally responsible for the corruption of the judicial process in Galman v.
Sandiganbayan.99 Affirming the findings of a commission created to receive evidence on the case, the Court
stated:ChanRoblesVirtualawl ibra ry

The Court adopts and approves the Report and its findings and holds on the basis thereof and of the
evidence received and appreciated by the Commission and duly supported by the facts of public record and
knowledge set forth above and hereinafter, that the then President (code named Olympus) had stage
managed in and from Malacanang Palace "a scripted and pre-determined manner of handling and
disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman
case and the Justices who tried and decided the same acted under the compulsion of some
pressure which proved to be beyond their capacity to resist", and which not only prevented the
prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise
presented, but also pre-determined the final outcome of the case of total absolution of the twenty-six
respondents accused of all criminal and civil liability.

xxxx

The record shows suffocatingly that from beginning to end, the then President used, or more precisely,
misused the overwhelming resources of the government and his authoritarian powers to corrupt
and make a mockery of the judicial process in the Aquino-Galman murder cases. x x x

Indeed, the secret Malacañang conference at which the authoritarian President called together the Presiding
Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by
Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close
monitoring of the entire proceedings to assure the predetermined ignominious final outcome are without
parallel and precedent in our annals and jurisprudence.100 (Emphasis supplied)
Because of the abuses committed, the Court condemned the Marcos years as a "dark chapter in our
history,"101 a period of "national trauma"102 dominated by a "well-entrenched plundering regime,"103 which
brought about "colossal damage wrought under the oppressive conditions of the Martial Law period."104 The
attempt by the dictator to return to the country after the EDSA Revolution was even described by the Court
as "the case of a dictator forced out of office and into exile after causing twenty years of political, economic
and social havoc in the country."105 chanrob leslaw

The foregoing pronouncements are considered part of the legal system of the Philippines106 and must be
considered binding, since they are integral parts of final and immutable judgments. It may be presumed
that the Court made the above declarations only after a judicious consideration of the evidence and the
applicable law. Consequently, those declarations cannot be questioned, reversed, or disregarded without
running afoul of the doctrine of immutability of judgment. This doctrine of finality of judgments applies even
to the highest court of the land.107 chan robles law

The claim that judgment has not been rendered against Marcos for the plunder and the atrocities committed
under his regime is belied by the declarations of this very Court. In his Separate Opinion in Olaguer v.
Military Commission No. 34,108 former Chief Justice Claudio Teehankee wrote of our nation's history during
the Martial Law regime, and it would be well to recall his words: ChanRobles Vi rtua lawlib rary

It was a long and horrible nightmare when our people's rights, freedoms and liberties were sacrificed at the
altar of "national security" even though it involved nothing more than the President-dictator's perpetuation
in office and the security of his relatives and some officials in high positions and their protection from public
accountability of their acts of venality and deception in government, many of which were of public
knowledge.

xxxx

The treacherous assassination on August 21, 1983 of the martyred Benigno S. Aquino, Jr., within minutes of
his arrival at the Manila International Airport, although ringed with 2,000 soldiers, shocked and outraged the
conscience of the nation. After three years of exile following almost eight years of detention since martial
law, Aquino, although facing the military commission's predetermined death sentence, supra, yet refused
proper travel documents, was returning home "to strive for genuine national reconciliation founded on
justice." The late Senator Jose W. Diokno who passed away this year was among the first victims of the
martial law coup d'etat to be locked up with Senator Aquino. In March, 1973, all of their personal effects,
including their eyeglasses were ominously returned to their homes. Their wives' visitation privileges were
suspended and they lost all contact for over a month. It turned out that Aquino had smuggled out of his cell
a written statement critical of the martial law regime. In swift retribution, both of them were flown out
blindfolded to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in dark boarded
cells with hardly any ventilation. When their persons were produced before the Court on habeas
corpus proceedings, they were a pitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was
to be released in September, 1974 after almost two years of detention. No charges of any kind were ever
filed against him. His only fault was that he was a possible rival for the presidency.

Horacia Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the
Development Academy of the Philippines, was among the hard-working government functionaries who had
been radicalized and gave up their government positions. Morales went underground on the night he was
supposed to receive his TOYM award, declaring that "(F)or almost ten years, I have been an official in the
reactionary government, serviced the Marcos dictatorship and all that it stands for, serving a ruling system
that has brought so much suffering and misery to the broad masses of the Filipino people. (I) refuse to take
any more part of this. I have had enough of this regime's tyranny and treachery, greed and brutality,
exploitation and oppression of the people," and "(I)n rejecting my position and part in the reactionary
government, I am glad to be finally free of being a servant of foreign and local vested interest. I am happy
to be fighting side by side with the people." He was apprehended in 1982 and was charged with the capital
crime of subversion, until he was freed in March, 1986 after President Corazon C. Aquino's assumption of
office, together with other political prisoners and detainees and prisoners of conscience in fulfillment of her
campaign pledge.

Countless others forfeited their lives and stand as witnesses to the tyranny and repression of the past
regime. Driven by their dreams to free our motherland from poverty, oppression, iniquity and injustice,
many of our youthful leaders were to make the supreme sacrifice. To mention a few: U.P. Collegian editor
Abraham Sarmiento, Jr., worthy son of an illustrious member of the Court pricked the conscience of many as
he asked on the front page of the college paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos
kung hindi tayo kikilos? Kung hindi ngayon, kailan pa? He was locked up in the military camp and released
only when he was near death from a severe attack of asthma, to which he succumbed. Another TOYM
awardee, Edgar Jopson, an outstanding honor student at the Ateneo University, instinctively pinpointed the
gut issue in 1971 he pressed for a "non-partisan Constitutional Convention;" and demanded that the then
president-soon-to-turn dictator "put down in writing" that he was not going to manipulate the Constitution
to remove his disqualification to run for a third term or perpetuate himself in office and was called down as
"son of a grocer." When as he feared, martial law was declared, Jopson went underground to continue the
struggle and was to be waylaid and killed at the age of 34 by 21 military troops as the reported head of the
rebel movement in Mindanao. Another activist honor student leader, Emmanuel Yap, son of another eminent
member of the Court, was to disappear on Valentine's Day in 1976 at the young age of 24, reportedly picked
up by military agents in front of Channel 7 in Quezon City, and never to be seen again.

One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor of the province of
Antique at 28, a Harvard-trained lawyer, was mercilessly gunned down with impunity in broad daylight at 10
a.m. in front of the provincial capitol building by six mad-dog killers who riddled his body with 24 bullets
fired from M-16 armalite rifles (the standard heavy automatic weapon of our military). He was just taking a
breather and stretching his legs from the tedious but tense proceedings of the canvassing of the returns of
the presidential snap election in the capitol building. This was to be the last straw and the bloodless EDSA
revolt was soon to unfold. The Court in Javier vs. Comelec, through Mr. Justice Cruz, said these meager
words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak
against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and
fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him.
Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return
of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of
shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the
enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark
enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier
made that dawn draw nearer because he was, like Saul and Jonathan, swifter than eagles and stronger than
lions.109 (Citations omitted)
The pronouncements of the Court on this matter must be respected and considered conclusive. Hence, while
Marcos may have evaded a criminal proceeding by choosing to go on exile after the EDSA Revolution, the
atrocities committed against the Filipino people during his regime must be remembered. Our declarations on
this matter cannot be disregarded or forgotten, as Chief Justice Teehankee reminded us in Olaguer: ChanRobles Virtualawl ibra ry

The greatest threat to freedom is the shortness of human memory. We must note here the
unforgettable and noble sacrifices of the countless brave and patriotic men and women who feel
as martyrs and victims during the long dark years of the deposed regime. In vacating the death
sentence imposed on the petitioners who survived the holocaust, we render them simple justice and we
redeem and honor the memory of those who selflessly offered their lives for the restoration of truth,
decency, justice and freedom in our beloved land.110 (Emphasis supplied)
3. The President may not contradict or render ineffective the denunciations, or the policies and principles
enunciated in the foregoing statutes and jurisprudence.

It is the obligation of the President to give effect to the pronouncements of the Legislature and the Judiciary
as part of his duty to faithfully execute the laws. At the very least, the President cannot authorize an act
that runs counter to the letter and the spirit of the law.

In this case, the foregoing statutes and jurisprudence condemning Marcos and his regime effectively prohibit
the incumbent President from granting him any form of tribute or honor. The President's discretion in this
matter is not unfettered. Contrary to the assertions of respondents, the President cannot arbitrarily
and whimsically decide that the acts attributed to Marcos during Martial Law are irrelevant,
solely because "he possessed the title to the presidency until his eventual ouster from office."111 chanrobles law

Indeed, it would be the height of absurdity for the Executive branch to insist on paying tribute to
an individual who has been condemned by the two other branches of government as a dictator, a
plunderer, and a human rights violator. Whether Marcos is to be buried in the LMB as a hero,
soldier, or former President is of little difference. The most important fact is that the burial would
accord him honor. For the Court to pretend otherwise is to sustain a delusion, as this controversy
would not have arisen if not for this reality.

A state of affairs that would allow Marcos to reap any accolade or tribute from the state using public funds
and property would obviously contradict the laws and judicial findings described above. Clearly, there is
more than sufficient basis to reject the proposed burial.

B. The AFP does not have the power to determine which persons are qualified for interment in
the Libingan.

The argument of respondents that the burial is permitted under AFP Regulations 161-375 is unavailing, as
the AFP does not have the authority to select which persons are qualified to be buried in the LMB. For this
reason, the enumeration contained in AFP Regulations 161-375 must be deemed invalid.

In Proclamation No. 208,112 then President Marcos reserved a certain parcel of land in Taguig the proposed
site of the LMB for "national shrine purposes." This parcel of land was placed "under the administration" of
the National Shrines Commission (NSC). The NSC was later transferred to the Department of National
Defense (from the Department of Education) and then abolished through the Integrated Reorganization
Plan. The functions of the former NSC were then transferred to the National Historical Institute (NHI).

On 26 January 1977, Presidential Decree No. (P.D.) 1076113 created the Philippine Veterans Affairs Office
(PVAO) under the Department of National Defense. The PVAO was tasked to, among others, "administer,
maintain and develop military memorials and battle monuments proclaimed as national shrines." P.D. 1076
also abo1ished the NHI and transferred its functions to the PVAO. The transferred functions pertained to
military memorials, including the authority to "administer" the LMB.

The authority of the PVAO to administer, maintain and develop the LMB pertains purely to the management
and care of the cemetery. Its power does not extend to the determination of which persons are entitled to
be buried there. This authority pertains to Congress, because the power to deal with public
property, including the right to specify the purposes for which the property may be used, is
legislative in character.114 Accordingly, the provision in AFP Regulations 161-375 enumerating the
persons qualified to be interred in the LMB cannot bind this Court.

At any rate, the AFP Regulations cannot be considered in isolation. As part of the legal system,
administrative issuances must be interpreted and implemented in a manner consistent with statutes,
jurisprudence, and other rules.115 In the same manner, the purported discretion of the President to
determine the persons who may be interred in the LMB must be considered limited by statutes and judicial
decisions.116
c hanro bles law

Since the proposed interment of Marcos in the LMB runs counter to law as explained in the preceding
section, AFP Regulations 161-375 must be interpreted to mean that Marcos is specifically disqualified from
being buried in that cemetery. Only by adhering to this interpretation can the Court ensure that the issuance
is in harmony with other existing laws. Consequently, we cannot choose to implement AFP Regulations 161-
375 exclusively while disregarding the statutes and jurisprudence referred to above.

C. The burial cannot be justified by mere reference to the President's residual powers; it is not
unfettered, and such power can only be exercised in conformity with the entire Constitution.

During the oral arguments, respondents attempted to justify the decision of the President to allow the burial
primarily on the basis of his residual power.117 Citing Marcos v. Manglapus118 and Sanlakas v. Executive
Secretary,119 they argued that the President is vested with powers other than those enumerated in the
Constitution and statutes, and that these powers are implicit in the duty to safeguard and protect the
general welfare.120 chan robles law

It must be emphasized that the statement in Marcos v. Manglapus acknowledging the "President's
residual power to protect the general welfare of the people" was not unconditional. The Court, in
fact, explicitly stated that only acts "not forbidden" by the Constitution or the laws were
permitted under this concept: ChanRobles Vi rtua lawlib rary

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of the President, as steward
of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbidden by the Constitution or the laws that the needs of the
nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and
defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that
the laws are faithfully executed [see Hyman,The American President, where the author advances the view
that an allowance of discretionary power is unavoidable in any government and is best lodged in the
President].121 (Emphasis supplied)
The Court in that case also reiterated the underlying principles that must guide the exercise of presidential
functions and powers, residual or otherwise: ChanRoble sVirtualawli bra ry

Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are essentially
ideals to guide governmental action. But such does not mean that they are empty words. Thus, in the
exercise of presidential functions, in drawing a plan of government, and in directing implementing action for
these plans, or from another point of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and adhere to them.122 (Emphasis supplied)
Clearly, the residual power of the President cannot be used to justify acts that are contrary to the
Constitution and the laws. To allow him to exercise his powers in disregard of the law would be to grant him
unbridled authority in the guise of inherent power. Clearly, that could not have been the extent of the
residual powers contemplated by the Court in Marcos v. Manglapus.

To reiterate, the President is not above the laws but is, in fact, obliged to obey and execute them.123 This
obligation is even more paramount in this case because of historical considerations and the nature of the
norms involved, i.e., peremptory nonns of human rights that are enshrined both in domestic and
intetnational law.

III.

TO ALLOW MARCOS TO BE BURIED IN THE LIBINGAN NG MGA BAYANI WOULD VIOLATE

INTERNATIONAL HUMAN RIGHTS LAW AS AN INDEPENDENT SOURCE OF STATE OBLIGATIONS,
AND WOULD NEGATE THE REMEDIES PROVIDED BY REPUBLIC ACT NO. 10368.
An examination of the vast body of international human rights law establishes a duty on the part of the state
to provide the victims of human rights violations during the Marcos regime a range of effective remedies and
reparations. This obligation is founded on the state's duty to ensure respect for, and to protect and fulfill
those rights.

Allowing the proposed burial of Marcos in the LMB would be a clear violation of the foregoing international
law obligations. Consequently, the planned interment must be enjoined in light of Article II, Section II of the
Constitution, the established principle of pacta sunt servanda, and the fact that the state has already
acknowledged these duties and incorporated them in our domestic laws.

A. Under international law, the Philippines is obligated to provide effective remedies, including
holistic reparations, to human rights victims.

The obligation of the Philippines to respect, protect, and fulfill human rights has its legal basis in
international agreements and customary international law. As will be discussed, this obligation includes the
duty to provide effective remedies, which, in turn, incorporates the grant of holistic reparations to victims of
human rights violations.

1. The Philippines is bound to respect, protect, and fulfill human rights under its treaty obligations and
customary international law.

As a party to the United Nations (UN) Charter124 and the International Covenant on Civil and Political Rights
(ICCPR),125 the Philippines is bound to comply in good faith with our obligations therein pursuant to the
principle of pacta sunt servanda.126 These treaties form the normative foundation of the duty of the state to
provide effective remedies and reparations to victims of human rights violations.

The promotion, protection and fulfilment of human rights norms are obligations woven throughout the entire
UN Charter, beginning with the Preamble which "reaffirm[s] faith in fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women and of nations large and
small."127 In line with this statement, the promotion of "universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex, language, or religion"128 was
identified as one of the basic purposes of the United Nations.129 These principles became part of a concrete
obligation via Article 56 of the Charter, as states were mandated to take joint and separate action in
cooperation with the UN for the achievement of its purposes.130 chan robles law

On the other hand, the ICCPR obligates states parties to respect and ensure the human rights of all
individuals within its territory. Article 2(1) of this covenant provides: ChanRoble sVirtualawl ibra ry

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.
Interpreting this provision, the United Nations Human Rights Committee131 (UNHRC) issued General
Comment No. 31132 declaring that the obligation in Article 2(1) is owed not just to individuals as the rights
holders under the ICCPR, but to every state party therein.133 The duty to respect basic human rights is
likewise considered an erga omnes obligation in view of the importance of the rights involved.134 In other
words, it is an obligation towards the international community as a whole.135 chan robles law

Further establishing the obligation to respect human rights is the Universal Declaration of Human Rights
(UDHR) which defines and codifies human rights norms provided for in the UN Charter. Considered the most
important human rights document in the world,136 the UDHR enumerates the human rights that states are
bound to respect, including the right to life, liberty, and security of persons;137 the prohibition against
torture and arbitrary arrest or detention;138 and the right to freedom from interference with one's privacy,
family, home, or correspondence.139While not a legally binding treaty, the UDHR is generally considered a
codification of the customary international law on human rights.140 Hence, it binds all nations including the
Philippines.

The foregoing instruments clearly create rights that every state is obliged to recognize and respect. To give
effect to these entitlements, a violation of protected rights brings about the obligation on the part of the
offending state to provide a corresponding remedy.

2. The duty to respect, protect, and fulfill human rights includes the obligation to provide an effective
remedy.

The international guarantee of a remedy for human rights violations is well established141 as one of the
bedrock principles of contemporary international human rights law.142Ubi ius ibi remedium - "where there is
a right, there is a remedy."143 It is settled that gross human rights violations give rise to a right to remedy
for victims, which in turn implies a duty on the part of states to provide the same.144 This obligation is based
on the principle that failure to provide an adequate remedy for violations renders the duty to respect the
rights involved meaningless and illusory.145cha nro bleslaw

Under Treaties

International human rights law instruments, both global and regional, impose upon states the duty not
merely to offer a remedy, but also to ensure that the remedy provided is "effective." This rule is clearly
demonstrated in the provisions discussed below.

It is an accepted principle that "[e]veryone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution or by law."146 This rule is
further developed in Article 2 of the ICCPR, which provides: ChanRobles Vi rt ualawlib ra ry

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
chanRoble svirtual Lawlib ra ry

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.147
Explaining the nature of the obligations imposed by this provision, the UNHRC stated that the grant of
reparations to individual victims is a central component of this legal obligation.148 chan rob leslaw

A similar guarantee of effective remedies is included in the Convention on the Elimination of Racial
Discrimination (CERD),149 while the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention Against Torture)150 refers to an equivalent right in the form of redress
and compensation.151 This right to redress was clarified in General Comment No. 3152 of the UN Committee
Against Torture (UNCAT) as a comprehensive reparative concept, which embraces both "effective remedy"
and "reparation." Redress "entails restitution, compensation, rehabilitation, satisfaction and guarantees of
nonrepetition and refers to the full scope of measures required to redress violations under the
Convention."153 The committee also emphasized that reparative measures must take into account the
particular needs of the victims and the gravity of the violations committed against them.154 chan robles law

Even regional instruments such as the European Convention for the Protection of Human Rights and
Fundamental Freedoms,155 the American Convention on Human Rights,156 and the Protocol to the African
Charter,157 provide for effective remedies for human rights violations.

Under Customary International Law

At the same time, customary international law, as discerned from the law of state responsibility and the
progressive development of human rights treaty law, is further solidifying the legal basis of the right to
remedy of victims of human rights violations.158 cha nro bleslaw

The Articles on the Responsibility of States for Internationally Wrongful Acts codified by the International
Law Commission (ILC Articles) provides that state responsibility arising from an inte1nationally wrongful
act159 gives rise to the duty to make reparations. Under the ILC Articles, a state held liable for the breach of
an obligation may be required to perform the following acts: (1) cessation of the violation,160 (2) guarantee
of non repetition,161 and (3) full reparation for the injury caused.162 chanrob leslaw

Because of the emergence of human rights in international law,163 the duty to remedy a breach under the
ILC Articles is deemed owed not only to the injured state as traditionally imagined, but also to individuals
whose human rights have been impaired by the breach under a state's jurisdiction.164 The right to effective
remedies and just reparations for individual victims may be culled from the obligations of the state to cease
violations, guarantee non-repetition and make full reparation.165 This right is further affirmed by Article 33 of
the ILC Articles, which declares that the obligation of the state to provide reparations is "without prejudice
to any right, arising from the international responsibility of a State, which may accrue directly to any person
or entity other than a State."166 chanro bles law

To further substantiate the existence of a rule of customary international law on this matter, two
declarations approved by the UNHRC and the UN General Assembly, respectively, may be cited.

The Declaration on the Protection of All Persons from Enforced Disappearance167 issued by the UNHRC is a
body of principles concerning enforced disappearances, including a provision for the right of victims of acts
of enforced disappearance to adequate compensation and complete rehabilitation.168 chan robles law

On the other hand, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power169 offers guidelines in relation to abuse of economic and political power. Through this declaration, the
UN General Assembly recognized that millions of people suffer harm as a result of crime and abuse of
power, and that these victims are entitled to prompt redress and access to the mechanisms of justice.170 chanro bleslaw

These instruments and customary nonns of international human rights law clearly provide for the duty to
grant effective remedies to a victim of violations. More than being an essential component of other
substantive norms, they create a distinct obligation; hence, the failure to provide effective remedies is an
additional and independent violation of internationally recognized human rights.171 chan roble sla w

Defining Effective Remedies

Because an exact definition of an effective remedy is not provided by the foregoing international
instruments, it is necessary to examine the interpretations of authorized bodies, as well as the theory and
practice of international courts, in order to determine the exact scope of the obligation.172 chanrobles law

As the succeeding discussion will show, the duty to provide an "effective remedy" does not embrace a
singular concept. Rather, that duty embodies a variety of measures more aptly referred to as holistic
"reparations."

3. The obligation of the state to provide an effective remedy incorporates the duty to offer holistic
reparations.

The right to effective remedy is comprised of two dimensions: procedural and substantive.173 As explained
by the UNCAT in General Comment No. 3: ChanRoblesVirt ualawli bra ry

The obligations of States parties to provide redress under Article 14 are two-fold: procedural and
substantive. To satisfy their procedural obligations, States parties shall enact legislation and establish
complaints mechanisms, investigation bodies and institutions, including independent judicial
bodies, capable of determining the right to and awarding redress for a victim of torture and ill-treatment,
and ensure that such mechanisms and bodies are effective and accessible to all victims. At the substantive
level, States parties shall ensure that victims of torture or ill-treatment obtain full and effective redress
and reparation, including compensation and the means for as full rehabilitation as
possible.174 (Emphasis supplied)
In other words, the procedural dimension refers to the legal means by which alleged human rights violations
are addressed by an impartial authority; the substantive dimension involves prompt and effective reparation
for the harm suffered.175chanrob leslaw

The right to reparations is therefore but one side of an effective remedy, and is a crucial element in
delivering justice to victims.176 As such, the duty to provide reparations is as binding as the duty to provide
effective remedies. This principle is clearly enunciated in international instruments, to the extent that it has
achieved a non-derogable status.177 As the International Criminal Court (ICC) in Prosecutor v. Thomas
Lubanga Dyilo (Lubanga Case)178 ratiocinated: ChanRob les Vi rtualawl ib rary

The Chamber accepts that the right to reparations is a well-established and basic human right, that
is enshrined in universal and regional human rights treaties, and in other international
instruments, including the UN Basic Principles; the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power; the Guidelines on Justice in Matters involving Child Victims and Witnesses of
Crime; the Nairobi Declaration; the Cape Town Principles and Best Practices on the Recruitment of Children
into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa; and the
Paris Principles. These international instruments, as well as certain significant human rights reports, have
provided guidance to the Chamber in establishing the present principles.179 (Emphasis supplied)
Understanding Reparations

The term reparation is derived from the word repair. Thus, it is often perceived as making of amends by
providing recompense to persons who suffered loss or harm due to gross human rights violations.180 Within
the context of State responsibility, it pertains to a series of actions expressing the State's acknowledgment
and acceptance of its responsibility in consequence of the gross violations. Reparation therefore denotes all
types of redress for victims of human rights violations,181 all seeking to make them whole again to the fullest
extent possible. The Chorzow Factory case182 decided by the Permanent Court of International Justice (PCIJ)
in 1928 provides the leading definition of the concept: ChanRoble sVirt ualawli brary

Reparation must, as far as possible, wipe out all consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been committed.183
Reparation, as a means to provide redress for past violations, goes to the very heart of human protection. It
has been recognized as a "vital process in the acknowledgment of the wrong done to the victim, and a key
component in addressing the complex needs of victims in the aftermath of violations of international human
rights and humanitarian law."184 As explained by the Inter-American Commission of Human Rights (IACtHR)
in its Report on the Implementation of the Justice and Peace Law:185
The [Inter-American Court of Human Rights] considers that, beyond the established legal system, the State
has a key role and a primary responsibility to guarantee that victims of crimes against international law will
have effective access under conditions of equality to measures of reparation, consistent with the standards
of international law governing human rights. Access to reparations for victims of crimes against humanity
must never be subject exclusively to determination of the criminal liability of the perpetrators, or the prior
disposal of their personal goods, licit or illicit.186 c han robles law

xxxx

The State must play a primary, rather than a secondary, role in guaranteeing victims' access to reparations
in accordance with the standards of international law.187
UN Reparations Principles

The most important text dealing with the concept of reparations is 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 (UN Reparations Principles).188 This text is regarded as
the international standard for the provision of reparations around the world.189 chan robles law

The UN Reparations Principles was the product of the work of Theodoor Van Boven, who was appointed in
1989 by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, to
examine the possibility of developing basic principles and guidelines on remedies for gross violations.190 Van
Boven's work resulted in a landmark final report in 1993, also known as the Van Boven Principles, which
declared that human rights violations give rise to a right of reparation for victims.191 These principles
attribute the State's duty to make such reparations to its obligation to afford remedies and ensure respect
for human rights and fundamental freedoms.192 chan roble slaw

After 15 years of consideration, the UN General Assembly adopted the UN Reparations Principles on 16
December 2005193 without a vote. While these principles are argued to be soft law, they are considered
binding on states because they elucidate the basic standards applicable to reparations internationally and
domestically.194 The number of states in the UN General Assembly that accepted the resolution by consensus
likewise indicates the authoritative weight of the principles, and signifies the status of these rules as part of
emerging customary international law.195 chan roble slaw

It must be emphasized that the UN Reparations Principles is not a source of new commitments but rather a
statement of existing obligations, as it expresses the content of international law on reparations to ensure
that this is respected. This view was explicitly set out in the prefatory statement of the principles: ChanRoble sVirtualawl ibra ry

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 x x x.196
Therefore, the state obligation to provide reparations to victims of human right violations - as established in
this text - takes its normative character from existing legal obligations under international human rights law.
As declared in the Preamble197 and Parts I198 and II199 of the UN Reparations Principles, the underlying
framework of this document is grounded on the right to effective remedies enshrined in international human
rights law.
"Adequate, effective and prompt reparation for harm suffered" is, in fact, a component of the remedies
required to be accorded to victims of gross violations of international human rights law, and serious
violations of international humanitarian law.200 Elaborating on the purpose and scope of reparation, the UN
Reparations Principles provides: ChanRobles Vi rt ualawlib ra ry

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.

xxxx

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.
Holistic Approach to Reparations

Although the PCIJ in the Chorzow Factory case201 declared that the ultimate goal of reparation is restitutio in
integrum,202 or the return of the victims to a situation prior to the unlawful conduct, it is acknowledged that
human rights violations are impossible to rectify. As aptly stated by Special Rapporteur Van Boven in his
final report: ChanRob les Virtualawl ibra ry

It is obvious that gross violations of human rights and fundamental freedoms, particularly when they have
been committed on a massive scale, are by their nature irreparable. In such instances any remedy or
redress stands in no proportional relationship to the grave injury inflicted upon the victims. It is
nevertheless an imperative norm of justice that the responsibility of the perpetrators be clearly established
and that the rights of the victims be sustained to the fullest possible extent.203 (Emphasis supplied)
This view was seconded by Judge A.A. Cancado Trindade of the IACtHR in his Separate Opinion in Bulacio v.
Argentina,204 He opined "the harm cannot be erased. Instead, reparations for human rights violations only
provide the victims the means to attenuate their suffering, making it less unbearable, perhaps
bearable."205 chan robles law

These statements reflect the underlying idea that the reparations in the UN Reparations Principles are
envisioned to extend beyond the pecuniary or material dimension. Rather, holistic reparation is the key. This
conclusion is supported by Principles 19 to 23 of the UN Reparations Principles pertaining to the five forms of
full and effective reparation: ChanRobles Vi rtua lawlib rary

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:
chanRoble svirtual Lawlib ra ry

(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:
chanRoble svirtual Lawlib ra ry

(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 acknowledgement 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:
chanRoble svirtual Lawlib ra ry

(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 tor 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.
Clearly, aside from addressing the injuries suffered by victims through financial compensation, reparation
also addresses a broader set of issues, through the prevention of future human rights violations. It
addresses "democracy, good governance, and building an inclusive political community. Reparations includes
recognition, acknowledgment of violations and state responsibility. It can contribute to structural
transformation"206 while also seeking to promote peace and reconciliation.207 This holistic approach to
reparation is followed in other human rights institutions like the UNCAT, the UNHRC, the ICC, the IACtHR
and the European Court of Human Rights (ECHR).

General Comment No. 3 of the UNCAT emphasizes that "monetary compensation alone may not be sufficient
redress for a victim of torture and ill-treatment. The Committee affirms that the provision of only monetary
compensation is inadequate for a State party to comply with its obligations under article 14."208 General
Comment No. 31 of the UNHRC likewise notes that "where appropriate, reparation can involve restitution,
rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-
repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of
human rights violations."209 chanrobl eslaw

The holistic approach was likewise applied by the ICC to the Lubanga Case,210 in which it held that victims of
war crimes, crimes against humanity, and genocide have a fundamental right to receive reparations. The
trial chamber observed that reparations "go beyond the notion of punitive justice, towards a solution which
is more inclusive, encourages participation and recognizes the need to provide effective remedies for
victims."211 It then explained that reparations must be applied in a broad and flexible manner, so as to allow
it to approve the widest possible remedies for violations of the rights of the victims.212 chan roble slaw

In Blazek v. Czech Republic, the UNHRC declared that a remedy is only effective if it results in adequate
measures of reparation granted to victims. It further provided that the approach must be holistic so as to
put the needs and interests of the victim at the center of the process with the aim of restoring the latter's
dignity.213 c hanrobles law

For its part, the IACtHR made it clear that as a principle of international law, every violation of an
international obligation that results in harm creates a duty to make adequate reparation. In this respect, the
Court ruled that reparation
consists in full restitution (restitutio in integrum), which includes the re establishment of the previous
situation. If this is not feasible, as in most cases of human rights violations, the Court will determine
measures to guarantee the rights that have been violated and to redress the consequences of the violations.
Therefore, the Court has found it necessary to award different measures of reparation in order to redress
the damage fully, so that, in addition to pecuniary compensation, measures of restitution, rehabilitation and
satisfaction, and parantees of non-repetition, have special relevance to the harm caused.214
It is noteworthy that the IACtHR has constantly addressed human rights violations of a widespread nature,
which can be attributed to the authoritarian regimes and violent conflicts in Latin America during the 1970s
and early 1980s.215 Consequently, IACtHR rulings are particularly relevant to our discussion of the
authoritarian Marcos regime.

Lastly, while the ECHR has awarded "just satisfaction" partaking of a pecuniary nature in most of its
cases,216 the intention to provide a holistic approach in providing effective satisfaction can be discerned in
its Vagrancy Cases against the Belgian Government: ChanRobles Vi rtual awlib rary

[I]f the victim, after exhausting in vain the domestic remedies before complaining at Strasbourg of a
violation of his rights, were obliged to do so a second time before being able to obtain from the Court just
satisfaction, the total length of the procedure instituted by the Convention would scarcely be in keeping with
the idea of the effective protection of human rights. Such a requirement would lead to a situation
incompatible with the aim and object of the Convention.217 chan roble slaw

xxxx

Nevertheless, the provisions of Article 50 which recognise the Court's competence to grant to the injured
party a just satisfaction also cover the case where the impossibility of restitutio in integrum follows from the
very nature of the injury; indeed common sense suggests that this must be so a fortiori.218
B. The burial would contravene the duty of the Philippines to provide reparations to victims of
human rights violations during the Marcos regime.

It is evident from the foregoing discussion that the Philippines is obligated to provide holistic reparations to
victims of human rights violations during Martial Law. In fact, as discussed in the previous section, R.A.
10368 acknowledged the "moral and legal obligation [of the State] to recognize and/or provide reparation to
said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered
under the Marcos regime."219 As stated in the Explanatory Note of House Bill No. 54 - one of the progenitors
of R.A. 10368 - this recognition was one of the main features of the law: ChanRobles Virtualawl ibra ry

Among the important features of this bill are:

One, Congress recognition that those who have filed a case against the Marcoses before the US Federal
chanRoble svirtual Lawlib ra ry

District Court in Hawaii and are given favorable judgment are considered human rights violations victims.
This is called legislative cognizance.

Two, any person who has secured or can secure a favorable judgment from any court in the country arising
from a human rights violation is given a so-called conclusive presumption that he or she is a human rights
violation victim.

Three, some ten billion pesos of funds seized from bank accounts and discovered investments of the Marcos
family shall be used to compensate the victims; and cralawlawlib rary

Four, an independent Human Rights Victims Compensation Board is created attached to, but not necessarily
under the direct supervision of the CHR to ensure the proper disposition of the funds guided by this Act.

No amount of money can really be enough to compensate our living heroes and those survived by their
kinds for the democracy that our people are now enjoying. The least we can do though is pass this bill to
honor, in our small way, the sacrifices, that they have made for our country.220
The law also recognized the binding nature of the Decision of the US Federal District Court of Honolulu,
Hawaii,221 by creating a conclusive presumption that the claimants in the case against the Estate of
Ferdinand Marcos were human rights violations victims.222 In that case, compensatory and exemplary
damages were awarded to (a) the class plaintiffs who were declared to have been tortured; or (b) the heirs
and beneficiaries of those who were summarily executed, or who disappeared while in the custody of
Philippine military or paramilitary groups.223 Several petitioners in the present case were claimants therein
and are thus conclusively considered victims of human rights during the Marcos regime.

Both monetary224 and non-monetary225 forms of reparations were provided for in R.A. 10368. These
measures notwithstanding, the members of the Bicameral Conference Committee emphasized the symbolic
value of recognition in acknowledgment of the fact that material forms of reparation are not sufficient to
atone for the suffering of the victims of atrocities:
ChanRob les Virtualawl ibra ry

Sen. Guingona: Page 5, letter (d) "Monetary Compensation refers to financial consideration equivalent to."
Then, we changed "economically assessable damage" just to - We just make it "refers to financial
consideration extended to human rights violation victims."

Ang rationale dito kasi this one implies - The present definition implies that the damage - When
you're human rights victim, it can be equivalent to a material damage when actually there is no
adequate compensation when your human rights are violated. So we just make it just "financial
consideration extended to human rights violation victims as defined in this Act." Ganoon.

Rep. Lagman: Baka instead of financial consideration, maski iyong consideration, ano, eh - Ah, financial
reparation.

Sen. Guingona: Okay.

Rep. Lagman: Reparation.

Sen. Guingona: Reparation. Instead of "economically assessable" parang sinasabi mo you[r] right
has been violated but that's eqivalent to this amount.226 chanrob leslaw

xxxx

Sen. Arroyo: x x x Here, we seemed to be concerned about the physical aspects of human rights, meaning
torture and all that. But take for instance, those who were economically depressed, harassed. You mean to
say the family of Chino Roces, who lost his entire Manila Times and his family, is not really living in poverty
x x x.

Now they will not ask for compensation but they would want recognition. This is the purpose of
recognition. That is why to us that roll of honor is very important. Because to others, they just
want to be recognized.227 (Emphasis supplied)
Considering the foregoing, the intent is that not only must material reparation be provided by the state to
human rights victims, the prohibition against public acts and symbolisms that degrade the recognition of the
injury inflicted - although not expressly mentioned in the statute - are likewise included in the obligation of
the state. Therefore, while the passage of legislative measures and the provision of government
mechanisms in an effort to comply with this obligation are lauded, the State's duty does not end there.

Contrary to the implications of the ponencia, the statutes, issuances, and rules enacted by the different
branches of government to promote human rights cannot suffice for the purpose of fulfilling the state's
obligation to the human rights victims of former President Marcos. These enactments cannot erase the
violations committed against these victims, or the failure of the state to give them justice; more important,
these enactments cannot negate the further violation of their rights through the proposed burial.

It must be emphasized that the obligation owed by the Philippine government to the victims of human rights
violations during Martial Law is distinct from the general obligation to avoid further violations of human
rights. As distinct species of obligations, the general duty to prevent further human rights violations cannot
offset the right of past victims to full and holistic reparations. Their rights under international law have
already been violated; they have already disappeared, been tortured or summarily executed.228 The
government cannot choose to disregard their specific claims and assert that it has fulfilled its obligation to
them merely by enacting laws that apply in general to future violations of human rights.

As will be further discussed, victims of human rights violations during the Martial Law regime have a distinct
right to holistic reparations, including the grant thereof in symbolic form.

1. Symbolic reparation is an indispensable facet of an adequate reparations regime.

Symbolic forms of reparation are mandated by international law and are considered hallmarks of any
reparations regime.229 Within the framework of the UN Reparations Principles, satisfaction and guarantees of
nonrepetition are described as symbolic, because they involve a greater intangible element.230 On the other
hand, restitution, compensation, and rehabilitation are typically financial or material in character. As earlier
explained, a comprehensive and holistic program of reparations is expected to contain aspects of both.231 chanrobles law

Symbols as sources of meaning

The collective dimension of symbolic reparations is the source of their value.232 Symbolic reparations extend
beyond the victim and their families, and represent a demand for recognition, respect, dignity, and hope for
a safe future.233 They assist communities as a whole in dealing with the process of remembering and
commemorating the past.234 In other words, symbolic measures provide moral reparation,235 which is
considered by victims to be of equal or higher importance than material or physical reparation.

The United Nations, in its guidelines for reparation programs for postconflict states, describes the
significance of symbolic reparations in this manner: ChanRoblesVi rtua lawlib rary

As many recent reparations programmes have been proposed by truth commissions (which have broader
mandates and goals than typical judicial instances), they are becoming less like mere compensation
mechanisms and are increasingly proposing more complex reparations measures, including symbolic ones.
Individualized letters of apology signed by the highest authority in Government, sending each victim a copy
of the truth commission's report and supporting families to give a proper burial to their loved ones are some
of the individual symbolic measures that have been tried with some success in different contexts. Some of
the collective symbolic measures that have been tried are renaming public spaces, building museums and
memorials, rededicating places of detention and torture, turning them into sites of memory, establishing
days of commemoration and engaging in public acts of atonement. Like other reparations measures,
symbolic benefits are, at least in part, geared towards fostering recognition. However, in contrast to
other benefits, symbolic measures derive their great potential from the fact that they are carriers
of meaning, and therefore can help victims in particular and society in general to make sense of
the painful events of the past. Symbolic measures usually turn out to be so significant because,
by making the memory of the victims a public matter, they disburden their families from their
sense of obligation to keep the memory alive and allow them to move on. This is essential if
reparations are to provide recognition to victims not only as victims but also as citizens and as
rights holders more generally.236 (Emphasis supplied)
Restitution, compensation, and rehabilitation under the UN Reparations Principles, while necessary, are
lacking in this symbolic dimension. Monetary forms of reparation can indeed provide funds for certain
necessities and improve the future of victims, but without more, it is unlikely that they would lead to the
justice sought.

Moreover, it has been observed that human rights victims want an apology, above all else.237 They also
place a premium on obtaining recognition of the harm done to them.238 In contrast, financial reparations or
damages are considered less important than emotional or symbolic reparations, because the former fail to
squarely address a person's need for "dignity, emotional relief, participation in the social polity, or
institutional reordering."239 If given in isolation, monetary reparation may even have a trivializing effect on
suffering in certain cultural, social, and political contexts.240 chan robles law

Forms of Symbolic Reparation

Because of its peculiar nature, symbolic reparation takes various forms. An examination of the UN
Reparations Principles, as well as the decisions of international and regional courts, reveals that different
measures have been utilized to satisfy this requirement.

The following have been identified as examples of measures intended to offer satisfaction to victims of
atrocities: (a) "verification of the facts and full and public disclosure of the truth";241 (b) "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";242 (c) "public apology";243 and (d) "commemorations and
tributes to the victims."244 These methods deal with the emotional, psychological, and symbolic aspects of
the suffering of the victims,245 and are primarily concerned with the restoration of their dignity through an
acknowledgment by the state of the harm done.

Guarantees of non-repetition, on the other hand, focus on reform and restructuring initiatives pursuant to
the state's commitment to never again engage in the practices that led to human rights violations.246 The
actual steps taken by state institutions represent the guarantees of non-repetition. These steps include
"promoting mechanisms for preventing and monitoring social conflicts and their resolution"247 and "reviewing
and reforming laws contributing to or allowing gross violations of international human rights law."248 chanrob leslaw

Meanwhile, the ICC in the Lubanga Case considered the conviction and the sentence issued by the Court
itself as forms of reparation on account of their significance to the victims and the communities.249 In turn,
the IACtHR - the most progressive court in terms of granting reparations to victims of human rights
violations - has ordered the following measures as part of "other forms of reparation": (a) the construction
of monuments to commemorate the suffering of victims,250 (b) the naming of a school after them,251 (c) the
designation of a day of remembrance for them,252 (d) the conduct by the state of public ceremonies offering
apologies in honor of the fallen;253 (e) the establishment of memorial scholarships;254 and (f) human rights
courses.255chan robles law

Memorials as Symbolic Reparation

In a report on memorialization processes utilized by states transitioning from conflicts or periods of

repression, Farida Shaheed, the UN Special Rapporteur in the field of cultural rights, identified memorials as
"physical representation[s] or commemorative activities, located in public spaces, that concern specific
events regardless of the period of occurrence (wars and conflicts, mass or grave human rights violations), or
the persons involved (soldiers, combatants, victims, political leaders or activists for example)."256 chan roble slaw

In recent times, memorials have become principally focused on honoring the victims of human rights
atrocities. As Special Rapporteur Shaheed explained, memorials were utilized as a means of "ensuring
recognition for the victims, as reparation for mass or grave violations of human rights and as a guarantee of
non-recurrence,"257 as well as a way to combat injustice and promote reconciliation.258 This trend was
followed in post-conflict states, where memorials commemorating victims of human rights violations were
regularly established. The Report states: ChanRobles Virtualawl ibra ry

An exhaustive list of all truth and reconciliation commissions that have advocated the construction of
memorials is beyond the scope of this document. Nevertheless, one should mention the recommendations of
the truth and reconciliation commissions in El Salvador, Germany, Guatemala, Peru, Morocco and South
Africa and the commission of inquiry in Chad, even though not all their recommendations were
implemented.

The Commission on the Truth for El Salvador clearly called in its report for the construction of a national
monument in El Salvador bearing the names of all victims of the conflict, recognition of their good name and
the serious crimes of which they were the victims and the institution of a national holiday in memory of the
victims of conflict as a symbol of reconciliation.

Similarly, the Commission for Historical Clarification in Guatemala recommended, among other things, that
monuments and parks be constructed and the names of victims assigned to public buildings and highways in
memory of the victims. The Commission stated that "the historical memory, both individual and collective,
forms the basis of national identity."259
The reason behind the creation of memorials intended to commemorate victims of atrocities was explained
by Special Rapporteur Shaheed in relation to the duty to provide symbolic reparations: ChanRobles Virtualawl ibra ry

With the passage of time, memorials have shifted from honouring soldiers dying in the line of duty to a
victims' perspective and new visions of reconciliation. Starting in the 1980s, the creation of memorials has
become linked to the idea that ensuring public recognition of past crimes is indispensable to the victims,
essential for preventing further violence and necessary for redefining national unity. Memorialization is often
a demand of victims and society at large and the path to national reconciliation is seen to pass through not
only legal reparations, but also symbolic reparations such as memorials.260
2. The proposed burial would be the antithesis of an act of symbolic reparation.

In the present case, the dispute also involves the creation of a memorial in the form of a burial plot located
at the LMB. Instead of commemorating victims, however, the memorial proposes to honor Marcos, the
recognized perpetrator of countless human rights violations during the Martial Law regime. The
establishment of this memorial would accomplish the exact opposite of what is intended by symbolic
reparation, and would consequently violate the obligations of the Philippines under international human
rights law.

For reasons previously discussed, the burial of Marcos would be more than a simple matter of the intennent
of his remains, because it would involve his victims' right to symbolic reparations. Undoubtedly, to honor the
very perpetrator of human rights atrocities would be the direct opposite of the duty of the state to respect,
promote, and fulfil human rights.

These conclusions are supported by the opmwn of UN Special Rapporteur Pablo De Greiff in the analogous
case of another dictator, General Francisco Franco of Spain, and his burial place - the Valle de los
Caidos (Valley of the Fallen).261 The site, located in Madrid, serves as a monument and a memorial, as it is
also the burial ground of almost 34,000 other individuals. The structure, however, is still considered by
many as "an exaltation of Francoism"262 and a reminder of the forced labor of thousands of political
prisoners who were compelled to build the structure.263 c hanro ble slaw

In his Report on the promotion of truth, justice, reparation and guarantees of non-recurrence,264 Special
Rapporteur De Greiff studied the fate of symbols of Francoism in relation to the then newly enacted 2007
Law of Historical Memory.265 This law dealt with the recognition of victims of human rights violations during
the Spanish Civil War and the 40-year regime of General Franco.

Special Rapporteur De Greiff reviewed, in particular, the effects of a provision in the Law of Historical
Memory requiring the removal of all memorials related to Franco and the latter's dictatorship. In his report,
he welcomed the measures introduced to combat the exaltation of the coup d'etat, the Civil War, and the
repression by the Franco dictatorship, particularly through the removal of symbols and monuments.266 He
further noted "majority of inventoried symbols and monuments had been removed, and that the remaining
symbols and monuments either required a lengthy administrative procedure or considerable expense, or
were subject to protection rules for their historic or artistic value."267 chanro bleslaw

As part of the implementation of the Law of Historical Memory, the removal of Valle de los Caidos was
proposed because of its ties to General Franco and Francoism. However, because the structure could not be
removed without disturbing the burial grounds of other individuals,268 De Greiff made the following
recommendation with respect to the site: ChanRobles Vi rtualaw lib rary

The site can be put to good use and "reinterpreted", with suitable techniques and pedagogy, in favour of the
promotion of truth and memory, and given an educational and preventive purpose. It can hardly be
construed as a place devoted to peace and reconciliation, so long as silence is maintained about
the facts relevant to the context and origin of the site, and especially while the flower-covered
tomb of the dictator remains in the centre of the monument.269 [Emphasis supplied]
The necessity for the reinterpretation and "recontextualization" of the Valle de los Caidos highlights the fact
that far from being an ordinary burial plot, the final resting place of a dictator and perpetrator of human
rights violations is a symbol and a source of meaning. The meaning it conveys, particularly to the victims of
atrocities, cannot be underestimated. Special Rapporteur Shaheed, in her report on memorialization
processes, also expressed concerns about the monuments and sites intended to honor past oppressive
regimes: Cha nRobles Vi rtua lawlib rary

The question is how to manage an architectural legacy with strong symbolic connotations when oppressive
regimes collapse. Should a new democratic Government destroy, conserve or transform these legacies?
Answers vary from situation to situation, frequently giving rise to intense controversy, including amongst
victims. Striking examples include debates in Spain over the memorial in Valle de los caidos (the Valley of
the Fallen) where Franco is buried, in Bulgaria over the mausoleum of former communist leader Georgy
Dimitrov, which was finally destroyed, and in Germany over Hitler's bunker, now located beneath a parking
lot in the centre of Berlin, marked only by a small sign.270
Shaheed therefore concludes "the choice to conserve, transform or destroy always carries meaning
and so needs to be discussed, framed and interpreted." 271 In this undertaking, the concerns and
views of victims are given primary consideration and for good reason - they are, after all, the
persons most affected by any decision on the matter.
In this case, the victims of human rights violations have expressed their objection to the proposed
burial of Marcos in the LMB. They assert that the burial would constitute a state-sanctioned
narrative that would confer honor upon him.272This, in turn, would subject his human rights
victims to the same indignity, hurt, and damage that they have already experienced under his
regime.273 chanrobles law

These opinions must be given paramount consideration by the state in compliance with its duty to provide
symbolic reparations to victims of human rights atrocities. For the President to allow the burial in disregard
of these views would constitute a clear contravention of international human rights law and would amount to
grave abuse of discretion.

C. The burial would run counter to the duty of the state to combat impunity.

As part of their obligation to protect and ensure human rights under international law,274 states have the
duty to combat impunity and hold perpetrators of human rights violations accountable. In fact, the clear
nexus between the impunity of perpetrators of gross violations of human rights, and the failure to provide
adequate reparation to the victims275 indicate that the two obligations must go hand in hand.

In his report, Special Rapporteur Theodoor Van Boven concluded that "in many situations where impunity
has been sanctioned by the law or where de facto impunity prevails with regard to persons responsible for
gross violations of human rights, the victims are effectively barred from seeking and receiving redress and
reparation."276 His conclusion is unsurprising, given the significant role of reparations in ensuring that the
perpetrators are held responsible for their actions.

Certainly, states cannot claim to look after the interest of the victims and at the same time endorse a social
and political climate where impunity prevails. This incongruity would be tantamount to a violation of the
victims' right to effective remedy and reparations. In Van Boven's words, "it is hard to perceive that a
system of justice that cares for the rights of victims can remain at the same time indifferent and inert
towards the gross misconduct of perpetrators."277 chanro bleslaw

The UN Impunity Principles

The primary instrument providing for the duty to combat impunity is the UN Set of Principles for the
Protection and Promotion of Human Rights through Action to Combat Impunity (UN Impunity
Principles).278 Like the UN Reparations Principles, this document does not impose new obligations, but only
frames and emphasizes the existing state obligations under international human rights law. This rule is
apparent in the Preamble of the Principles, which cites the UN Charter and the UDHR as the bases for the
statement that "the duty of every State under international law to respect and to secure respect for human
rights requires that effective measures should be taken to combat impunity."279 chanroble slaw

In these Principles, the UN Human Rights Committee enumerates the acts from which impunity may arise.
Principle 1 states: ChanRoble sVirtualawl ibra ry

Impunity arises from a failure by States to meet their obligations to investigate violations; to take
appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that
those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with
effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the
inalienable right to know the truth about violations; and to take other necessary steps to prevent a
recurrence of violations.280
A reading of the UN Principles on Impunity reveals the close relationship between impunity and the concepts
of reparations and the preservation of memory.

Impunity and the Right to Reparation

The provision of effective remedies and reparations for victims has been recognized as one of the means to
combat impunity. Principles 31 and 34 provide: ChanRoble sVirt ualawli bra ry

PRINCIPLE 31. RIGHTS AND DUTIES ARISING OUT OF THE OBLIGATION TO MAKE REPARATION

Any human rights violation gives rise to a right to reparation on the part of the victim or his or her
beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to
seek redress from the perpetrator.
xxxx

PRINCIPLE 34. SCOPE OF THE RIGHT TO REPARATION

The right to reparation shall cover all injuries suffered by victims; it shall include measures of restitution,
compensation, rehabilitation, and satisfaction as provided by international law.
In particular, symbolic reparations are considered significant. In his Report281 on the Question of the
Impunity of Perpetrators of Human Rights Violations (Civil and Political),282 Special Rapporteur Louis Joinet
concluded: ChanRoble sVirt ualawli bra ry

On a collective basis, symbolic measures intended to provide moral reparation, such as formal public
recognition by the State of its responsibility, or official declarations aimed at restoring victims' dignity,
commemorative ceremonies, naming of public thoroughfares or the erection of monuments, help to
discharge the duty of remembrance. In France, for example, it took more than 50 years for the Head of
State formally to acknowledge, in 1996, the responsibility of the French State for the crimes against human
rights committed by the Vichy regime between 1940 and 1944. Mention can be made of similar statements
by President Cardoso concerning violations committed under the military dictatorship in Brazil, and more
especially of the initiative of the Spanish Government, which recently conferred the status of ex-servicemen
on the anti-Fascists and International Brigade members who fought on the Republican side during the
Spanish civil war.283
The Duty to Preserve Memory

Another facet of the fight against impunity involves the duty of a state to preserve the memory of its people.
In this regard, the UN Impunity Principles requires states to combat any measure that tends to encourage
people to forget or downplay past human rights violations. Principle 3 provides: ChanRoble sVirtualawl ibra ry

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 61fulfillment 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.
While the UN Impunity Principles sees reconciliation and justice as the primary goals, it is firm in asserting
that these goals may not be achieved by disregarding human rights atrocities that occurred in the past. In
fact, the principles emphasize that before true reconciliation can be achieved, the human rights violators
must be held accountable. This dictum is reflected in the Preamble of the instrument: ChanRobles Vi rtua lawlib rary

Aware that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied,

Equally aware that forgiveness, which may be an important element of reconciliation, implies, insofar as it is
a private act, that the victim or the victim's beneficiaries know the perpetrator of the violations and that the
latter has acknowledged his or her deeds,

xxxx

Convinced, therefore, that national and international measures must be taken for that purpose with a view
to securing jointly, in the interests of the victims of violations, observance of the right to know and, by
implication, the right to the truth, the right to justice and the right to reparation, without which there can be
no effective remedy against the pernicious effects of impunity.284
Consistent with the foregoing, the UN Impunity Principles imposes restrictions on certain rules of law like
limiting the entitlement of perpetrators to amnesties and other measures of clemency. In Principle 24, the
restrictions are imposed even when clemency measures are "intended to establish conditions conducive to a
peace agreement or to foster national reconciliation."285Joinet, in his report, emphasizes the importance of
accountability in the context of reconciliation: ChanRob les Vi rtualawl ib rary

[T]here can be no just and lasting reconciliation without an effective response to the need for justice; as a
factor of reconciliation, forgiveness, insofar as it is a private act, implies that the victim must know the
perpetrator of the violations and that the latter has been in a position to show repentance. For forgiveness
to be granted, it must first have been sought.286
In this case, the burial of Marcos in the LMB would be tantamount to a disregard of the human
rights violations perpetrated by his regime. To allow it to proceed would sanction an egregious
act of impunity and allow the government to bestow an honor that is clearly not due upon a
perpetrator of human rights violations. To allow it would be a rampant violation of the rights of
victims under international law.
In the process of mapping through the vast body of international human rights law, each turn leads to the
conclusion that the burial of Marcos in the LMB would be incompatible with the international obligations of
the Philippines. For the Court to permit the burial would be to sanction these violations and allow the state
to disregard the latter's duty to provide effective remedies to victims of human rights violations, particularly
its duty to provide symbolic reparations and to combat impunity.

Incorporation of international law principles in Philippine law

The foregoing principles of international law have been incorporated in Philippine law as part of two domestic
statutes intended for the protection of human rights.

As discussed above, R.A. 10368 was enacted pursuant to generally accepted principles of international law.
as well as the specific obligations of the Philippines under international human rights laws and
conventions.287 In accordance with these principles, the statute recognized the "heroism and sacrifices of all
Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other
gross human rights violations" and vowed to "restore the victims' honor and dignity" through the grant of
reparations to victims and/or their families.288
cha nrob leslaw

The same principles were likewise incorporated in R.A. 9851,289 a statute penalizing crimes against
international humanitarian law, genocide, and other crimes against humanity. In providing remedies for
offenses under this law, courts were specifically mandated to follow international principles relating to
reparations for victims, including restitution, compensation, and rehabilitation.290 The statute also
enumerated the sources of international law that may guide the courts in the application and interpretation
of the statute. These sources include international instruments, decisions of international courts and
tribunals, as well as writings of most highly qualified publicists and authoritative commentaries.

The obligation of the state to provide holistic reparations for victims of human rights violations is, therefore,
enshrined in both international and domestic laws. This obligation includes the responsibility to provide
victims with reparations - both financial and symbolic - in recognition of their suffering and heroism. The
grant of reparations should likewise go hand in hand with the duty of the state to combat impunity by
holding perpetrators of human rights violations accountable.

As previously discussed, the proposed burial of former President Marcos in the LMB contravenes these
principles, because it would honor the identified perpetrator of human rights violations. As such, it would
accomplish the exact opposite of what is intended to be accomplished by international and domestic
principles on reparations, i.e., to recognize and honor the sufferings of victims; and to make amends for the
physical, emotional and psychological harm they have sustained. The burial would also perpetuate a climate
of impunity, as it would effectively disregard the human rights violations perpetrated by Marcos and permit
the state to honor him despite his transgressions.

Clearly, the President cannot sanction the burial without going against domestic and international principles,
as well as his solemn oath to faithfully execute the law.

IV.

PUBLIC FUNDS AND PROPERTY CANNOT BE USED FOR THE BURIAL AS IT SERVES NO LEGITIMATE
PUBLIC PURPOSE.

On a final note, I must point out that the discretion of the President in this case is not unlimited, as argued
by respondents. Because their proposal involves public funds and property, certain rules must be complied
with.

Respondents propose the use of a portion of the LMB, a national cemetery owned by the government, for
the interment of Marcos. They likewise intend to use money from the government coffers for the preparation
and maintenance of the gravesite, as well as for military honors to be accorded to the deceased by the AFP.

Considering that public resources would be used for the interment, it is necessary for this Court to
determine if the planned expenditures are for a legitimate public purpose. The reason is simple public
property, including public funds, belongs to the people.291 Hence, it is the duty of the government to ensure
the prudent use of these resources at all times to prevent dissipation and waste.292 As a necessary corollary
to these principles, it is settled that public property and funds may only be used for public purposes.293 chan robles law
This Court has explained the nature and the meaning of the term "public purpose" in the context of public
expenditures in several cases. It has declared that the term includes not only activities that will benefit the
community as a body and are related to the traditional functions of government,294 but also those designed
to promote social justice, general welfare and the common good.295 This broad understanding of the public
purpose requirement, however, does not authorize the use of public funds and property for unmistakably
personal and political motives.296chan roble slaw

Ultimately, the validity of a public expenditure depends on the essential character of its direct object.
In Albon v. Fernando,297 the Court explained: ChanRobles Vi rtua lawlib rary

In Pascual v. Secretary of Public Works, the Court laid down the test of validity of a public expenditure: it is
the essential character of the direct object of the expenditure which must determine its validity
and not the magnitude of the interests to be affected nor the degree to which the general
advantage of the community, and thus the public welfare, may be ultimately benefited by their
promotion. Incidental advantage to the public or to the State resulting from the promotion of private
interests and the prosperity of private enterprises or business does not justify their aid by the use of public
money.298 (Citations omitted and Emphasis supplied)
Based on the foregoing standard, the validity of public expenditures must be determined based on the
nature of the particular expense involved, and the public purpose sought to be accomplished.

As will be explained in further detail, the proposed burial would promote only the private interest of
the Marcos family. Significantly, respondents have failed to prove that any sort of public purpose would be
served by the planned interment; in fact, the event would contravene the public purposes of the LMB.
Consequently, the intended public expenditure cannot be allowed.

A. The burial would contravene the public purpose of the Libingan ng mga Bayani.

The government in this case proposes to shoulder the expenses for the burial of Marcos in the LMB, a
military cemetery maintained on public property and a declared national shrine. The expenses contemplated
are comprised of the cost of a plot inside a military cemetery, the maintenance expenses for the gravesite,
and the cost of military honors and ceremonies.299 chan roble slaw

Generally, burial expenses are not borne by the government because interments are customarily private
affairs. However, as exceptions to the foregoing rule, public expenditure is allowed in the case of cemeteries
that serve certain public purposes, for instance: (a) burial grounds set aside for the indigent in the name of
social justice;300 and (b) cemeteries reserved for individuals deemed worthy of honor and reverence, i.e.,
the nation's war dead, soldiers or dignitaries, of the government.301 The LMB belongs to this second
exception.

Formerly known as the Republic Memorial Cemetery, the LMB was designated by former President Ramon M.
Magsaysay as the national cemetery for the nation's war dead in 1954. Through Executive Order No.
77,302 he ordered that the remains of the war dead interred at the Bataan Memorial Cemetery and other
places be transferred to the LMB to accord honor to dead war heroes; improve the accessibility of the burial
grounds to relatives of the deceased; and consolidate the expenses of maintenance and upkeep of military
cemeteries. He thereafter issued Proclamation No. 86,303 which renamed the cemetery to "Libingan ng mga
Bayani," because the former name was "not symbolic of the cause for which our soldiers have died, and
does not truly express the nation's esteem and reverence for her war dead."

It is therefore evident that the LMB is no ordinary cemetery, but a burial ground established on public
property to honor the nation's war dead and fallen soldiers. Further, the designation of the cemetery as a
national shrine confirms its sacred character and main purpose, that is, to serve as a symbol for the
community and to encourage remembrance of the honor and valor of great Filipinos.304 Respondents
themselves acknowledged this fact when they argued that the LMB implements a public purpose because it
is a military shrine and a military memorial.305 cha nrob leslaw

To allow the LMB to fulfill the foregoing purposes, it has been and continues to be the recipient of public
funds and property. Not only was the cemetery established on land owned by the government, public funds
are also being utilized for the cost of maintenance and other expenses. The use of these resources is
justified because of the public purpose of the site. As a necessary consequence of this principle, an
expenditure that does not further this public purpose is invalid.

Applying the foregoing standards, the proposed expenditures for the burial of Marcos in the LMB must be
considered invalid. As earlier discussed, Marcos was an ousted dictator and disgraced president.
Consequently, he is clearly not worthy of commendation from the state and no public purpose
would be served by his interment therein. In fact, his burial in the LMB would result in a
contravention of the public purpose of the site as it would no longer be a sacred symbol of honor
and valor.

B. Respondents have not explained how the burial would serve the avowed policy of national
unity and healing.

Considering that the public purpose of the LMB would not be served by the intennent, we must now examine
the other public purpose supposedly fulfilled by the proposal. According to respondents, that purpose
pertains to national unity and healing. In their Comment, they contend: ChanRoblesVi rt ualawlib ra ry

Undeniably, no cadaver has polarized this nation for the longest time other than that of the former President
Marcos. Thus, President Duterte deems that it is but high time to put an end to this issue by burying the
mortal remains of a former President, Commander-in-Chief, and soldier.

President Duterte's decision to accord respect to the remains of former President Marcos is not simply a
matter of political accommodation, or even whims. Viewed from a wider perspective, this decision should be
dovetailed to his war against corruption and dangerous drugs, and his recent dealings with the
CPP/NPA/NDF. All these are geared towards changing the national psyche and beginning the painful healing
of this country.306
chanrob leslaw

xxxx

It should likewise be emphasized that President Duterte's order to allow former President Marcos' interment
at the Libingan is based on his determination that it shall promote national healing and forgiveness, and
redound to the benefit of the Filipino people. Surely, this is an exercise of his executive prerogative beyond
the ambit of judicial review.307
It is significant to note, however, that respondents fail to explain how the burial would lead to national unity
and healing. Consequently, their statements remain meaningless assertions. To emphasize, mere reference
to an avowed public purpose cannot automatically justify the use of public funds and property. This Court
must still review the validity of the declared purpose of public expenditure, as well as the reasonable
connection between the objective and the proposed means for its attainment. Our duty to safeguard public
funds and property demands no less. To reiterate, "[p]ublic funds are the property of the people and must
be used prudently at all times with a view to prevent dissipation and waste."308 chanrob leslaw

Furthermore, as previously discussed, it is the essential character of the direct object of public expenditure
that determines its validity,309 and not the incidental advantage derived from it by the community. Hence,
assuming for the sake of argument that the burial· would bear an incidental benefit of promoting unity and
healing, this supposed benefit would not erase the reality that the interment would principally be for the
promotion of the personal interest of former President Marcos and his family.

C. The burial would promote only the private interest of the Marcos family.

It is clear from the foregoing discussion that the burial would ultimately benefit only the Marcos family. No
general advantage is derived by the public from the interment; as it stands, divisiveness instead of unity has
resulted from the plan.

The circumstances surrounding the order of the President to allow the burial likewise reveal the political
color behind the decision. In their Comment, respondents admit that the President ordered the burial to
fulfill a promise made during his presidential campaign.310 It must be pointed out, however, that the
President made that pledge not at any random location, but while campaigning in Ilocos Norte,311 a known
stronghold of the Marcos family. During the oral arguments held in this case, it was also revealed that the
preparations for the burial were prompted by a letter sent by the Marcos heirs to Secretary Lorenzana,
urging him to issue the orders required for the interment at the earliest opportunity.312 chan roble slaw

Needless to state, the private interest of the Marcos family and the personal objective of the President to
fulfill a pledge to his political allies will not justify the proposed public expenditure for the burial.

Indeed, it is completely unseemly for the Marcos family to expect the Filipino people to bear the
financial and emotional cost of burying the condemned former President even while this country
has yet to recover all the ill-gotten wealth that he, his family, and unrepentant cronies continue
to deny them.313 It is wrong for this Government and the Marcos family to refer human rights
victims to the financial reparation provided by Republic Act 10386 as recompense, which moneys
will come, not from the private wealth of the Marcos family, but from the money they illegally
acquired while in office, and on which the Philippine state spent fortunes to recover. Every
Filipino continues to suffer because of the billions of unwarranted public debt incurred by the
country under the Marcos leadership;314 and every Filipino will incur more expenses, no matter
how modest, for the proposed burial. No situation can be more ironic indeed.

EPILOGUE

Stripped to its core, this case involves an order by the President to bury a dictator - one declared to have
perpetrated human rights violations and plundered the wealth of the nation - with all the trappings of a
hero's burial. It may not be an express declaration, as respondents themselves concede that the President
does not have the power to declare any individual a hero, but it is a pronouncement of heroism
nevertheless. It is far from being an empty statement bereft of significance. As respondents themselves
recognize, the nature of the office held by the President provides him the opportunity to "profoundly
influence the public discourse x x x by the mere expediency of taking a stand on the issues of the
day."315 Clearly, the order of the President to allow the burial is, at the very least, a declaration that Marcos
is worthy of a grave at a cemetery reserved for war heroes, despite the objections of countless victims of
human rights violations during the Martial Law regime. It is an executive pronouncement that his memory
may be preserved and maintained using public funds.

Justice Isagani Cruz once stated: "liberty is not a gift of the government but the rights of the
govemed."316 Throughout his regime, Marcos trampled upon this statement by his own acts and those of his
subordinates, in a stampede wrought by the fervor to supposedly protect the nation from lawless elements.
It pitted Filipino against Filipino, masking each face in shades of black or white and sowing fear and terror
whilst reaping a harvest of public treasure. The nation was silenced. But people like petitioners persevered,
keeping in their hearts the essence of Justice Cruz's words. They fought, and the people ultimately rose and
won back the freedom we all now enjoy. The statement continues: ChanRobles Vi rtualaw lib rary

Every person is free, save only for the fetters of the law that limit but do not bind him unless he affronts the
rights of others or offends the public welfare. Liberty is not derived from the sufferance of the government
or its magnanimity or even from the Constitution itself, which merely affirms but does not grant it. Liberty is
a right that inheres in every one of us as a member of the human family.317
To forget that Marcos took this right away from the citizens of the Philippines would be the peak of
intellectual and moral complacency. As a nation of laws, we cannot tolerate anything less than the full
remembrance of a dark past from which we derive lessons that we imbue into the legal firmament. We
cannot tolerate another instance in which our rights would be run to the ground, in which we would lose
sight of the values held in our own Constitution, the symbols we hold dear, the aspirations we cherish. The
LMB is revered because of the symbolism it carries. One treatise on geography and public memory
explains:ChanRoble sVirt ualawli bra ry

Cemeteries, as one type of memorial space, create a symbolic encounter between the living and the dead in
the form of individual gravesites and the ritual activities taking place in the burial space. In contrast to
communal cemeteries, national cemeteries are state shrines that belong to the national narrative of the
people. The heroes buried there - most prominently national leaders and fallen soldiers - are privileged
members of the national pantheon.318
A grave in the LMB is a testament to the honor and valor of the person buried therein. The Marcos family
has long sought a burial for the dictator at this site for this exact reason.

The Court cannot order that a particular event be remembered in a particular way, but it can negate an act
that whimsically ignores legal truths. It can invalidate the arbitrary distillation of the nation's collective
memory into politically convenient snippets and moments of alleged glory. The Court is empowered to do
justice, and justice in this case means preventing a whitewash of the sins of Marcos against the Filipino
people.

The burial of Marcos in the earth from whence he came is his right, despite all that he did. However, his
burial in the grave of heroes on the impulse of one man would continue the desecration of other citizens'
rights, a chilling legacy of the Marcos regime that curiously survives to this very day, long after the death of
the dictator.

Respondents may deny the implications of their actions today,319 but the symbolism of the burial will outlive
even their most emphatic refutations. Long after the clarifications made by this administration have been
forgotten, the gravesite at the LMB will remain. That is the peculiar power of symbols in the public landscape
they are not only carriers of meaning, but are repositories of public memory and ultimately, history.

For the Court to pretend that the present dispute is a simple question of the entitlement of a soldier to a
military burial is to take a regrettably myopic view of the controversy. It would be to disregard historical
truths and legal principles that persist after death. As important, it would be to degrade the state's duty to
recognize the pain of countless victims of Marcos and Martial Law. Regardless of the promised national unity
that the proposed burial will bring, I cannot, in good conscience, support such an expedient and shortsighted
view of Philippine history.

WHEREFORE, I vote to GRANT the Petitions.

Endnotes:

Gloria Macapagal Arroyo v People of the Philippines

EN BANC

April 18, 2017

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; GRANTSthe 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 FUNDSAND 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-017411 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 CASTRO DIOSDADO M. PERALTA

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO JOSE CATRAL MENDOZA

Associate Justice Associate Justice

Please see concurring and

BIENVENIDO L. REYES Dissenting opinion in the main 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

SAMUEL R. MARTIREZ
ALFREDO BENJAMIN S,. 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

DISSENTING OPINION

LEONEN, J:

I maintain my dissent.

This Court's July 19, 2016 Decision 1 sets a dangerous precedent. It effectively requires new
elements to the crime of plunder that are not sustained by the text of the Anti-Plunder Law. In doing
so, this Court sets itself upon the course of encroaching on Congress' plenary power to make laws.·
It also denies the State the opportunity to adequately present its case. Likewise, it unwittingly
licenses the most cunning plunderers to prey upon public funds with impunity.

This is not what the Anti-Plunder Law intends.

Republic Act No. 7080 or the Anti-Plunder Law was adopted in the wake of the Marcos dictatorship,
when the pilferage of the country's wealth by former President Ferdinand E. Marcos, his wife Imelda,
their family and cronies bled the Philippine economy dry. 2 The terms "kleptocracy," "plunder," and
"government by thievery" populated political discourse during Marcos' rule. 3 Their ravaging is
confirmed in jurisprudence. Republic v. Sandiganbayan4professes the Marcos' regime's looting of at
least US$650 million (as of January 31, 2002) worth of government funds.

After the 1986 People Power Revolution, former Senate President Jovito Salonga lamented that
laws already in force, such as Republic Act No. 3019 - the Anti-Graft and Corrupt Practices Act -
"were clearly inadequate to cope with the magnitude of the corruption and thievery committed during
the Marcos years. "5 Thus, he filed in the Senate a bill to address large-scale larceny of public
resources - the anti-plunder bill. Then Representative Loma Yap filed a counterpart bill in the House
of Representatives. 6

The Explanatory Note to Senate Bill No. 733 stated:

The acts and/or omissions sought to be penalized. . . constitute plunder of an entire nation resulting
in material damage to the national economy[, which] does not yet exist in Philippine statute books.
Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the
depravities of the previous regime and as a deterrent to those with similar inclination to succumb to
the corrupting influence of power. 7 (Emphasis supplied)
Senate Bill No. 733 and House Bill No. 22752 were consolidated into Republic· Act No.
7080, 8 which President Corazon Aquino signed on July 12, 1991.9

II

Republic Act No. 7080, as amended by Republic Act No. 7659, defines plunder as follows:

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 or criminal acts as described in Section l(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 life imprisonment with perpetual absolute disqualification from
holding any public office. Any person who participated with said public officer in the commission of
plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances 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 stock derived from the deposit or investment thereof forfeited in favor of
the State. (Emphasis supplied)

This statutory definition may be divided into three (3) main parts.

The first part identifies the persons who may be liable for plunder and the central acts around which
plunder revolves. It penalizes "[a]ny public officer who, by himself or in connivance with members of
his family, relatives ... or other persons, amasses, accumulates or acquires ill-gotten wealth [.]"

The law only requires a showing that a person holds public office. He or she may act alone or in
conspiracy with others. ·Thus, the Anti-Plunder Law explicitly recognizes that plunder may be
committed collectively-"in connivance with" others. In doing so, it makes no distinction between the
conspirators. Glaringly absent is any mention of a so-called "main plunderer" or specific "personal
benefit" gained by any confederate to the crime.

It is also silent on the manner by which conspirators organized themselves, or otherwise went about
committing the offense. Thus, there is no need to show that plunder is centralized. All that Section 2
requires is proof that the accused acted out of a common design to amass, accumulate, or acquire
ill-gotten wealth.

The second part specifies the means through which plunder is committed, that is, "through a
combination or series of overt or criminal acts as described in Section l(d) of Republic Act No. 7080."

"Combination," as used in Section 2 of the Anti-Plunder Law, was explained in Estrada vs.
Sandiganbayan 10 to refer to "at least any two different predicate acts in any of said items" in Section
1 (d). 11 "Series" was explained as synonymous to "on several instances" 12 or a "repetition of the
same predicate act in any of the items in Section l(d) of the law." 13

The "overt or criminal acts described in Section 1 (d)" are the following:

a. Misappropriating, converting, misusing, or malversing public funds; or raiding on the public

treasury;
 b. Receiving any commission or kickbacks from a government contract or project, or by
reason of one's. office or position;

c. Fraudulently disposing government assets;

d. Obtaining any interest or participating in any business undertaking;

e. Establishing monopolies or implementing decrees that benefit particular persons or

interests; and

f. Taking undue advantage of one's official position or influence to enrich oneself at the
expense of the People and the Republic.

Like Section 2, Section 1 (d) does not speak of any "main plunderer" or any "personal benefit"
obtained. In defining "ill-gotten wealth," it merely speaks of acquisitions made through a
"combination or series" of any, some, or all of the six (6) identified schemes. Thus, for example, two
(2) instances of raiding on the public treasury suffice to sustain a finding of plunder.

As I noted in my dissent to the majority's July 19, 2016Decision: 14

Section 2 does not require plunder to be centralized, whether in terms of its planning and execution,
or in terms of its benefits. All it requires is for the offenders to act out of a common design to amass,
accumulate, or acquire ill-gotten wealth, such that the aggregate amount obtained is at least
₱50,000,000.00. 15

The third part specifies the threshold amount for plunder. It must be "in the aggregate amount or
total value of at least Fifty million pesos (₱50,000,000.00)[.]" The law speaks of an "aggregate
amount." It also uses the term, "total value," to highlight how the amount must be counted in its
whole, and not severed into parts. How this Court has replaced the statutory requirement of
"aggregate amount" or "total value" to mere "aliquot" shares 16 is bewildering.

It is not for this Court to repeal or modify statutes in the guise of merely construing them. Our power
to interpret law does not encompass the power to add to or cancel the statutorily prescribed
elements of offenses.

III

The most recent jurisprudence on plunder prior to this case is Enrile v. People. 17 Promulgated on
August 15, 2015, Enrile specifies the elements of plunder under Republic Act No. 7080, as follows:

[T]he elements of plunder are:

(1) That the offender is' a public officer who acts by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates, or other persons;

(2) That he amassed, accumulated or acquired ill-gotten wealth through a combination or

series of the following overt or criminal acts:

a. through misappropriation, conversion, misuse, or malversation of public funds or

raids on the public treasury;
 b. by receiving, directly or indirectly, any commission, gift, share, percentage,
kickback or any other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer;

c. by the illegal or fraudulent conveyance or disposition of assets belonging to the

National Government or any of its subdivisions, agencies or instrumentalities of
Government owned or -controlled corporations or their subsidiaries;

d. 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;

e. 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

f. by taking advantage of official position, authority, relationship, connection or

influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines; and,

(3) That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated
or acquired is at least ₱50,000,000.00. 18 (Emphasis in the original)

Enrile is faithful to the text of the Anti-Plunder Law. It makes no reference to a "main plunderer" or to
"personal benefit." The prosecution and the Sandiganbayan were correct to rely on this recital of
elements in the course of the proceedings that culminated in the Sandiganbayan' s assailed
September 10, 2015 Resolution.

The Office of the Ombudsman laments that this Court has effectively increased the elements
required for conviction. 19 Coming at the heels of our definitive pronouncements in Enrile, the
prosecution was caught by surprise. 20

The majority's July 19, 2016 Decision states:

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 coconspirators, who may be members of her family,
relatives by affinity or consanguinity, business associates, subordinates 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 ... 21 (Emphasis
and underscoring supplied)

The July 19, 2016 Decision proceeds to cite the 2002 Decision in Estrada v. Sandiganbayan22 (2002
Estrada case) in support of the supposed need for a specification of a "main plunderer" and of
"personal benefit":
This interpretation is supported by [Jose "Jinggoy "] 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.23 (Emphasis and underscoring in the original)

The majority's sweeping reliance 24 on the 2002 Estrada case is misplaced. It fails to account for
nuances that engendered the pronouncements made in Estrada.

The 2002 Estrada25 case referred to one (1) of five (5) cases filed against former President Joseph
Ejercito Estrada, his family, and associates. It explicitly acknowledged that the five (5) criminal
complaints were "an offshoot of the impeachment proceedings against [former President] Estrada."26

More specifically, the 2002 Estrada case involved a separate charge of plunder against Pres,ident
Estrada's son, Jose "Jinggoy" Estrada. Thus, it became necessary to state in the information that
Jinggoy Estrada engaged in a conspiracy with his father. 27 That case needed to specifically establish
the conspiracy linkage between former President Estrada·and Jinggoy Estrada:

From a reading of the Amended Information, the case at bar appears similar to a "wheel" conspiracy.
The hub is former President Estrada while the spokes are all the accused [Jose "Jinggoy" Estrada,
et al.], and the rim that encloses the spokes is the common goal in the overall conspiracy, i.e., the
amassing, accumulation and acquisition of ill-gotten wealth. 28

Notwithstanding these nuances in the 2002 Estrada case, it remains that, in a conspiracy:

[T]he act of one is the act of all the conspirators, and a conspirator may be held as a principal even if
he did not participate in the actual commission of every act constituting the offense. In conspiracy, all
those who in one way or another helped and cooperated in the consummation of the crime are
considered co-principals since the degree or charac.ter of the individual · participation of each
conspirator in the commission of the crime becomes immaterial. 29

There is no need to identify a "main conspirator" and a "coconspirator." For the accused to be found
liable as a co-principal, prosecution must only show:

[A]n overt act in furtherance of the conspiracy, either by actively participating in the actual
commission of the crime, or by lending moral assistance to his co-conspirators by being present at
the scene of the crime,. or by exerting moral ascendancy over the rest of the conspirators as to
move them to executing the conspiracy. 30
Unlike in the 2002 Estrada case, all of the accused here are charged in the same information; not in
five (5) separate informations that were explicit "offshoots of the impeachment proceedings against
former President Estrada." 31

The present case is more akin to that involved in the 2015 Enrile Decision. There, the accused
public officer, Senator Juan Ponce Enrile, along with his Chief of Staff, Jessica Lucila G. Reyes, as
well as Janet Lim Napoles, Ronald John Lim, and John Raymund de Asis were charged in the same
information with conspiring to commit plunder. Enrile never required the identification of a "main
plunderer" or the showing of any "personal benefit" obtained. It is the more appropriate benchmark
for this case.

IV

The July 19, 2016 Decision's requirement of a specification of a "main plunderer" and of "personal
benefit," which was imposed only after the prosecution presented its case before the
Sandiganbayan, makes it necessary for the prosecution to, at least, be given an opportunity to
address this novel requirement. Otherwise, the prosecution shall have been deprived of due process
to adequately ventilate its case. Thus, a favorable action on the prosecution's Motion for
Reconsideration is not a violation of petitioners' right against double jeopardy.

Section 9 of Rule 11 7 of the Revised Rules on Criminal Procedure32 identifies· three (3) elements
of double jeopardy: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy
must have been validly terminated; and, (3) a second jeopardy must be for the same offense as that
in the first.

Legal jeopardy attaches, only (a) upon a valid indictment, (b) before a competent court, (c) after
arraignment, (d) when a valid plea has been entered, and (e) when the case was dismissed or
otherwise terminated without the express consent of the accused. 33

Gorion v. Regional Trial Court of Cebu34 has held that the right against double jeopardy is not
violated when the first case was dismissed in violation of the prosecution's right to due process. Any
such acquittal is "no acquittal at all, and thus can not constitute a proper basis for a claim of former
jeopardy":35

[The dismissal] unquestionably deprived the State of a fair opportunity to present and prove its case.
Thus, its right to due process was violated. The said order is null and void and hence, cannot be
pleaded by the petitioner to bar the subsequent annulment of the dismissal order or a reopening of
the case on the ground of double jeopardy. This is the rule obtaining in this jurisdiction.36

Due process requires that both parties have a real and fair opportunity to be heard. "The State, like
the accused[,] is also entitled to due process in criminal cases."37 In Dimatulac v. Villon: 38

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused
alone. The interests of society and the offended parties [including the State] which have been
wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of
justice; and an acquittal is not necessarily a triumph of justice; for, to the society offended and the
party wronged, it could also mean injustice. Justice then must be rendered even-handedly to both
the accused, on one hand, and 'the State and offended party, on the other.39(Citation omitted)

The state must be afforded the right to prosecute, present,· and prove its case. Just as importantly,
the prosecution must be able to fully rely on expressed legal provisions, as well as on settled and
standing jurisprudential principles. It should not be caught in a bind by a sudden and retroactive
imposition of additional requirements for successful prosecution.

In Serino v. Zosa,40 the judge announced that he would first hear the civil aspect of the case before
the criminal aspect of the case. The public and private prosecutors then stepped out of the
courtroom. After trial in the civil case was finished, the criminal case was called. By then, the
prosecutors were unavailable. The judge dismissed the case for failure to prosecute. This Court held
that double jeopardy did not attach as the order of dismissal was void for having been issued without
due process.

In People v. Navarro, 41 a Joint Decision was issued acquitting the accused of light threats and
frustrated theft. However, there was no actual joint trial in these two (2) criminal cases and no
hearing in the light threats case. This Court nullified the judgment of acquittal for light threats.

In People v. Gomez, 42 the trial court issued a notice of hearing only to the assistant city prosecutor,
not to the special prosecutor actively handling the case. The assistant city prosecutor arrived for trial,
but the special prosecutor did not, as he did not know of the hearing. The records, however, were
with the special prosecutor. Not ready to appear, the assistant city prosecutor moved to postpone
the hearing. The trial court denied the motion and proceeded to dismiss the case due to alleged
delays. This Court overruled the dismissal for depriving the State of a fair opportunity to prosecute
and convict.

In People v. Pablo,43 the prosecution's last witness failed to arrive. The prosecution moved to
postpone the hearing as that witness' testimony was indispensable. The judge denied the motion.
The defense, in turn, filed a motion to consider the prosecution's case rested and to dismiss the
case. The judge granted the motion and acquitted all the accused on the same day, "without giving
the prosecution a chance to oppose the same, and without reviewing the evidence already
presented for a proper assessment as to what crime has been committed by the accused of which
they may properly be convicted thereunder[. ]"44

This Court overturned the acquittal, declaring that courts must be fair to both parties:

There are several actions which the respondent judge could and should have taken if he had wished
to deal with the case considering the gravity of the crime charged, with fairness to both parties, as is
demanded by his function of dispensing justice and equity. But he utterly failed to take such actions.

Thus, he should have first given warning that there will definitely be no further postponement after
that which he reasonably thought should be the last.45 (Emphasis supplied)

In these cases, the State was denied vital avenues for the adequate prosecution of offenses, and
was not given a fair chance to fully present and prove its case. Thus:

A purely capricious dismissal of an information, as herein involved, moreover, deprives the State of
fair opportunity to prosecute and convict. It denies the prosecution its day in court. Accordingly, it is a
dismissal without due process and, therefore, null and void. A dismissal invalid for lack of a
fundamental prerequisite, such as due process, will not constitute a proper basis for the claim of
double jeopardy.46

Here, the import of identifying the "main plunderer" and the "personal benefit" obtained was not
emphasized upon the prosecution at the onset. At the minimum, this Court's July 19, 2016 Decision
should be considered an admonition, and then applied only prospectively.
Such a consideration would be analogous to the course taken by this Court in Carpio-Morales v.
Court of Appeals.47There, this Court abandoned the condonation doctrine, but expressly made its
ruling applicable only to future cases, and not to the case at hand. Respecting the people's reliance
on "good law,"48 we stated:

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general
rule, recognized as "good law" prior to its abandonment. Consequently, the people's reliance
thereupon should be respected. The landmark case on this matter is People v. Jabinal, wherein it
was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should
be applied prospectively, and should not apply to parties who had relied on the old doctrine and
acted on the faith thereof.

Later, in Spouses Benzonan v. CA, it was further elaborated:

[P]ursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions form
part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that
"laws shall have no retroactive effect unless the contrary is provided." This is expressed in the
familiar legal maxim lexprospicit, non respicit, the law looks forward not backward. The rationale
against retroactivity is easy to perceive. The retroactive application of a law usually divests rights
that have already become vested ... and hence, is unconstitutional. 49

There is ample evidentiary basis for trial in the Sandiganbayan to proceed.

The prosecution underscores that funds were diverted to the Office of the President. 50 Citing the
April 6, 2015 51Sandiganbayan Resolution, it also emphasizes that petitioner former President Gloria
Macapagal-Arroyo's approvals for the letter-requests of petitioner Philippine Charity Sweepstakes
Office (PCSO) General Manager Rosario C. Uriarte (Uriarte) for the disburnement of additional
Corfidential and Intelligence Fund52 and for the latter's use of these funds 53 are overt acts of plunder
within the contemplation of Section 2, in relation to Section l(d) of the Anti-Plunder Law. 54

To begin with, Arroyo's appointment of Uriarte to the position of PCSO General Manager already
raises serious doubts. 55 According to the prosecution, Uriarte's appointment was made in violation of
Republic Act No. 1169,56 as amended by Batas Pambansa Blg. 42 and Presidential Decree No.
1157. Section 2 of the amended Republic Act No. 1169 states that the power to appoint the PCSO
General Manager is lodged in its Board of Directors·, not in the President of the Philippines:

Section 2. The [PCSO] general manager shall be appointed by the [PCSO] Board of Directors and
he [or she] can be removed or suspended only for cause as provided by law. He [or she] shall have
the direction and control of the Office in all matters which are not specifically· reserved for action by
the Board. Subject to the approval of the Board of Directors, he [or she] shall also appoint the
personnel of the Office, except the Auditor and the personnel of the Office of the Auditor who shall
be appointed by the Auditor General.

The purpose for the disbursement of Confidential and Intelligence Fund was not specifically
detailed.57 Letter of Instruction No. 1282 expressly provides that requests for intelligence funds must
particularly state the purposes for which these would be spent: 58
Effective immediately, all requests for the allocation or release of intelligence funds shall
indicate infull detail the specific purposes for which said funds shall be spent and shall explain the
circumstances giving rise to the necessity for the expenditure and the particular aims to be
accomplished. (Emphasis supplied) 59

According to the Sandiganbayan, Uriarte and Benigno Aguas (Aguas) made sweeping certifications
that these funds were used for anti-lottery fraud and anti-terrorist operations, thus:

In an attempt to explain and justify the use of these [Confidential and Intelligence Fund] funds,
Uriarte together with Aguas, certified that these were utilized for the following purposes:

a) Fraud and threat that affect integrity of operation.

b) Bomb threat, kidnapping, destabilization and terrorism

c) Bilateral and security relation. 60

The prosecution emphasized that the purpose61 for the disbursement not only lacked particulars, but
that the "second and third purposes were never mentioned in Uriarte's letter-requests for additional
[Confidential and Intelligence Fund] funds addressed to Arroyo." 62

Moreover, under Commission on Audit Circular 2003-002, cash advances must be on a per-project
basis and must be liquidated within one (1) month from the date the purpose of the cash advance
was accomplished. The prosecution adduced proof that the certification of petitioner PCSO Budget
and Accounts Officer Aguas that there were enough funds for cash advances63 was fraudulent, as
the Philippine Charity Sweepstakes Office had suffered significant losses from 2006 to 2009.64

The liquidation of Uriarte's cash advances, certified to by Aguas, was made on a semi-annual basis-'
without a monthly liquidation or at least a progress report on the monthly liquidation.65 The liquidation
was also questionable. For instance, in 2009, only ₱24.97 million was liquidated, despite the CIF's
cash advances totalling ₱138.42 million for the same year. 66 Aguas and Uriarte likewise submitted
what appeared to be spurious accomplishment reports, stating that the cash advances were remitted
to law enforcement agencies, which denied these remittances. 67

In addition, Aguas did not object to the charges that he falsified his certifications of fund availability,
and that the repeated release of Confidential and Intelligence Fund cash advances was riddled with
several serious irregularities.68 He later disclosed that the funds were transferred to the Office of the
President, which was under Arroyo's full control as then President of the Philippines. 69 This was
resolved by the Sandiganbayan on April 6, 2015.

According to the prosecution, "Uriarte and Valencia [i.e. PCSO Board of Directors Chairperson
Sergio O. Valencia] continued to receive [Confidential and Intelligence Fund] cash advances despite
having earlier unliquidated cash advances,"70 and Aguas could not have correctly certified that the
previous liquidations were accounted for.71 The prosecution further avers that petitioner Commission
on Audit Head of Intelligence/Confidential Fund Fraud Audit Unit Nilda B. Plaras "repeatedly issued
credit notices in favor of Uriarte and Valencia even as Aguas himself admitted that their [Confidential
and Intelligence Fund] advances remained unliquidated. Moreover, Uriarte and Valencia continued
to receive [Confidential and Intelligence Fund] advances despite having earlier unliquidated cash
advances[.]"
According to the Sandiganbayan,72 these acts violate Section 89 of Presidential Decree No. 1445,
which states:

Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific
purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it
was given has been served. No additional cash advance shall be allowed to any official or employee
unless the previous cash advance given to him is first settled or a proper accounting thereof is
made.

The prosecution also argues that before she fled the country and evaded arrest, then PCSO General
Manager Uriarte, with Arroyo's complicity,73 "received and took possession of around 90% of the
approximately ₱366 million cash advances from the PCSO's Confidential and Intelligence Fund. 74 As
payee, Uriarte drew a total of 48 checks against the Confidential and Intelligence Fund in 2008,
2009, and 2010. 75 She was able to withdraw from the Confidential and Intelligence Fund solely on
the basis of Arroyo's approval, which was not ministerial in nature,76and despite Uriarte not having
been designated as a special disbursing officer under Commission on Audit Circulars 92-385 and
03·002.77

Uriarte was designated as a special disbursing officer only on February 18, 2009,78 after several
disbursements were already made. 79 She managed to use the additional Confidential and
Intelligence Fund at least three (3) times in 2008 and in early 2009, solely through Arroyo's
approval. 80

The prosecution further highlights that Uriarte "is a fugitive from justice" and has remained at
large. 81 Jurisprudence has settled that flight is an indication of guilt.82 For, indeed, "a truly innocent
person would normally grasp the first available opportunity to defend [herself] and to assert [her]
innocence."83 The Sandiganbayan's finding of ample evidence against her is therefore bolstered by
her leaving the country and evading arrest.

The prosecution also takes exception to this Court's finding that the commingling of funds is not
illegal. 84 Section 685 of Republic Act No. 1169 states that PCSO's revenues should be remitted in
specific portions to separate funds or accounts, and not commingled together. The prosecution
assails how the accused diverted public money from the PCSO Charity Fund and Prize Fund to the
Operating Fund, and then commingled these funds to "conceal the violation of the restrictions
imposed by [Republic Act] No. 1169."86 The 2007 Annual Audit Report of the Commission on Audit
has specifically directed then PCSO officers to immediately put a halt to this practice, but it fell on
deaf ears. 87

In addition, the PCSO had been placed under the supervision and control of the Department of
Social Welfare and Development,88 and later of the Department of Health. 89 Yet, Uriarte was able to
bypass departmental approval and divert PCSO funds amounting to ₱244 1nillion to the Office of the
President,90 upon the sole approval of Arroyo. 91Later, with conflict-of interest, both Uriarte and
Valencia approved the disbursement vouchers and made the checks payable to them at the same
time. 92

According to the prosecution, Uriarte requested for additional Confidential and Intelligence Fund,
and Arroyo's unqualified approval of these requests was deliberate and willful.93 The prosecution
argues that "[w]ithout [Arroyo's] participation, [Uriarte] could not release any money because there
was then no budget for additional [Confidential and Intelligence Fund]."94 Thus, "Arroyo's unmitigated
failure to comply with the laws and rules regulating the approval of the [Confidential and Intelligence
Fund] releases betrays any claim of lack of malice on her part."95Without Arroyo or Aguas, the
conspiracy to pillage the PCSO's Confidential and Intelligence Fund would not have succeeded. 96
 VI

Plunder may be committed in connivance or conspiracy with others. The share that each accused
received is not the pivotal consideration. What is more crucial is that the total amount amassed is at
least ₱50 million. 97 In a conspiracy, the act of one is the act of all. Each conspirator is considered a
principal actor of the crime. Enrile v. People98 is on point:

The law on plunder provides that it is committed by "a public officer who acts by himself or in
connivance with ... " The term "connivance" suggests an agreement or consent to commit an
unlawful act or deed with another; to connive is to cooperate or take part secretly with another. It
implies both knowledge and assent that may either be active or passive.

Since the crime of plunder may be done in connivance or in · conspiracy with other persons, and the
Information filed clearly alleged that Enrile and Jessica Lucila Reyes conspired with one another and
with Janet Lim Napoles, Ronald John Lim and John Raymund De Asis, then it is unnecessary to
specify, as an essential element of the offense, whether the ill-gotten wealth amounting to at least
₱172,834,500.00 had been acquired by one, by two or by all of the accused. In the crime of
plunder, the amount of ill-gotten wealth acquired by each accused in a conspiracy is
immaterial for as long as the total amount amassed, acquired or accumulated is at least ₱5O
million.99

Section 2 of the Anti-Plunder Law focuses on the "aggregate amount or total value" amassed,
accumulated, or acquired, not its severed distributions among· confederates. Thus, in the present
case, it is unnecessary to specify whether the allegedly amassed amount of ₱365,997,915.00
ultimately came to the possession of one, some, or all of the accused.

Enrile also underscores that conspiracy is not the essence of plunder 100 To sufficiently charge
conspiracy as a mode of committing plunder, an information may simply state that the accused
"conspired with one another": 101

We point out that conspiracy in the present case is not charged as a crime by itself but only as the
mode or committing the crime. Thus, there is no absolute necessity of reciting its particulars in the
Information because conspiracy is not the gravamen of the offense charged.

It is enough to allege conspiracy as a mode in the commission of [plunder] in either of the following
manner: (1) by use of the word "conspire,"or its derivatives or synonyms, such as confederate,
connive, collude; or (2) by allegations of basic facts constituting the conspiracy in a manner that a
person of common understanding would know what is intended, and with such precision as the
nature of the crime charged will admit, to enable the accused to competently enter a plea to a
subsequent indictment based on the same facts. 102 (Emphasis in the original)

In this case, the accused were properly informed that they were to be answerable for the charge of
plunder "in connivance" with each other. As in Enrile, the information here ·.1ses the words,
"conniving, conspiring, and confederating":

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 A.S. 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 O. VALEN CIA, then Chairman of the Board of
Directors, MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA
J\.S. 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: ... 103

I take exception to the majority's July 19, 2016 Decision stating that the prosecution needed to
specifically allege in the information whether the conspiracy was by express agreement, by wheel
conspiracy, or by chain conspiracy. 104In Enrile, an accused's assent in a conspiracy may be active or
passive, and may be alleged simply "by use of the word 'conspire,' or its derivatives or
synonyms, such as confederate, connive, collude[.]" 105 The prosecution has faithfully complied with
these requirements.

The information is valid in all respects. Retroactively mandating additional averments for the
prosecution violates its right to due process.

VII

"Raids on the public treasury" must be understood in its plain meaning. There is no need to derive its
meaning from the other words mentioned in Section l(d)(l) of the Anti-Plunder Law. It does not
inherently entail taking for personal gain.

People v. Sandiganbayan 106 emphasized that the words in a statute must generally be understood in
their natural, plain, and ordinary meaning, unless the lawmakers have evidently assigned a technical
or special legal meaning to these words. 107 "The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory phraseology in [a natural, plain, and
ordinary] manner is always presumed." 108

Contrary to the majority's position, 109 there are no words with which the term "raids on the public
treasury," as mentioned in Section 1 (d)(l) of the Anti-Plunder Law are to be associated, thereby
justifying the application of noscitur a sociis. Misappropriation, conversion, misuse, and malversation
of public funds are items enumerated distinctly from "raids on the public treasury," they being
separated by the disjunctive "or." 110 Therefore, there is no basis for insisting upon the term "raids on
the public treasury" the concept of personal benefit.

Even if the preceding terms were to be associated with "raids on the public treasury," it does not
follow that "personal benefit" becomes its element. For example, malversation does not inherently
involve· taking for one's personal benefit. As pointed out in the prosecution's Motion for
Reconsideration, 111 malversation under Article 220 112 of the Revised Penal Code does not require
that the offender personally benefited from the crime. It only requires that he or she used the funds
for a purpose different from that for which the law appropriated them.
This finds further support in the Congress' deletion of the phrase, "knowingly benefited," from the
final text of Republic Act No. 7080. 113

This Court can also apply by analogy the principles governing the crime of theft. Like in plunder, theft
involves the UI?-lawful taking of goods belonging to another. 114 In theft, the mere act of taking-
regardless of actual gain-already consummates the crime. 115 In Valenzuela v. People: 116

Unlawful taking, which is the deprivation of one's personal property, is the element which produces
the felony in its consummated stage...

….

. . . The presumed inability of the offenders to freely dispose of [i.e. gain from] the stolen property
does not negate the fact that the owners have already been deprived of their rights to possession
upon the completion of the taking.

[T]he taking has been completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft. 117

This standard for theft takes on greater significance in plunder. Valenzuela reminds us to not lose
sight of the owners' deprivation of their property. 118 Here, public funds were taken from the
government. Theft involves larceny against individuals; plunder involves pillage of the State.
Certainly, it is much more depraved and heinous than theft:

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 193 to include it among the heinous
crimespunishable by reclusion perpetua to death. 119

Plunder is a betrayal of public trust. Thus, it cannot require an element that a much lesser crime of
the same nature does not even require. Ruling otherwise would "introduce a convenient defense for
the accused which does notreflect any legislated intent." 120

To raid means to "steal from, break into, loot, [or] plunder." 121 Etymologically, it comes from the Old
English word, "rad," which referred to the act of riding 122 or to an incursion along the border. 123 It
described the incursion into towns by malefactors on horseback (i.e. mounted military expedition
124), who fled easily as peoples of more sedentary cultures could not keep pace with them. 125 In
1863, during the American Civil War, the word, "raid," gave birth to an agent noun, "raider," 126 or a
person trained to participate in a sudden attack against the enemy. 127 In more recent times, "raider"
·has evolved to likewise refer to "a person who seizes control of a company, as by secretly buying
stock and gathering proxies." 128 The act of taking through stealth, treachery, or otherwise taking
advantage of another's weakness characterizes the word, "raid" or "raider."

The specific phrase used in the Anti-Plunder Law - "raids on the pubic treasury" - is of American
origin. It was first used during the Great Depression, when the United States Congress sought to
pass several° bills, such as an appropriation of $35 million to feed people and livestock, 129 in an
attempt to directly lift Americans from squalor. 130Then President Herbert Hoover did not see wisdom
in government intervention. He vetoed these bills, famously declaring that "[p]rosperity cannot be
restored by raids upon the public treasury." 131

In its plain meaning, and taking its history and etymological development into account, "raids on the
public treasury" refers to dipping one's hands into public funds, taking them as booty. In the context
of the Anti-Plunder Law, this may be committed by a public officer through fraud, stealth, or secrecy,
done over a period of time. 132 The Sandiganbayan's November 5, 2013 Resolution in this case is
enlightening:

[A] ''raid on the public treasury" can be said to have been achieved thr[ough] the pillaging or looting
of public coffers either through misuse,. misappropriation or conversion, without need of establishing
gain or profit to the raider. Otherwise stated. once a "raider" gets material possession of a
government asset through improper means and has free disposal of the same, the raid or pillage is
completed .... 133

There are reasonable grounds for proceeding with trial. The voluminous records and pieces of
evidence, consisting of at least 600 documentary exhibits, testimonies of at least 10 prosecution
witnesses, and case records of at least 40 folders 134 -which the Sandiganbayan carefully probed for
years 135 -point to a protracted scheme of raiding the public treasury to amass ill-gotten wealth. There
were ostensible irregularities attested to by the prosecution in the disbursement of the Philippine
Charity Sweepstakes Office funds, such as the accused's commingling of funds, 136their non-
compliance with Letter of Instruction No. 1282, 137 and the unilateral approval of disbursements. 138

VIII

Under Section 119 of Rule 23 of the Revised Rules on Criminal Procedure, an order denying a
demurrer to evidence may not be assailed through· an appeal or by certiorari before judgment. Thus,
the accused's remedy for the Sandiganbayan's denial of their demurrer is to "continue with the case
in due course and when an unfavorable verdict is handed down, to appeal in the manner authorized
by law." 139

The majority's July 19, 2016 Decision cites Nicolas v. Sandiganbayan 140 in asserting that this Court
may review the Sandiganbayan's denial of a demurrer when there is grave abuse of discretion.
Nicolas stated:

[T]he general rule prevailing is that [certiorari] does not lie to review an order denying a demurrer to
evidence, which is equivalent to a motion to dismiss, filed after the prosecution has presented its
evidence and rested its case.

Such order, being merely interlocutory, is not appealable," neither can it be the subject of a petition
for certiorari. The rule admits of exceptions, however. Action on a demurrer or on a motion to
dismiss rests on the sound exercise of judicial discretion. 141 (Emphasis supplied)

Indeed, Nicolas illustrates an instance when this Court overruled the Sandiganbayan's denial of a
demurrer for having been issued with grave abuse of discretion. 142 What sets Nicolas apart from this
case, however, is that the Sandiganbayan's grave abuse of discretion was so patent in Nicolas.
There, Economic Intelligence and Investigation Bureau Commissioner Wilfred A. Nicolas was
administratively and criminally charged for his alleged bad faith and gross neglect of duty. This Court
exonerated him in the administrative charge, finding that the records are bereft of any substantial
evidence of bad faith and gross negligence on his part. 143 Considering that the criminal case-
violation of Section 3(e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, based
on his alleged bad faith and gross negligence-required the highest burden of proof beyond
reasonable doubt, then the finding that there was no substantial evidence of his bad faith and gross
negligence binds the criminal case for the same act complained of. 144

In contrast, here, the prosecution has sufficient evidence to establish a prima facie case that
accused committed plunder or at least malversation. In ruling on a demurrer to evidence, this Court
only needs to ascertain whether there is "competent or sufficient evidence to establish a prima
facie case to sustain the indictment." 145

The prosecution should have been given the chance to present this prima facie case against the
accused. As I noted in my dissent to the majority's July 19, 2016 Decision:

First, evidence was adduced to show that there was co-mingling of PCSO's Prize Fund, Charity
Fund, and Operating Fund. In the Annual Audit Report of PCSO for 2007, the Commission on Audit
already found this practice of having a ''combo account" questionable. The prosecution further
alleged that this co-mingling was "to ensure that there is always a readily accessible fund from which
to draw [Confidential and Intelligence Fund] money."

….

Second, the prosecution demonstrated - through Former President Arroyo's handwritten notations -
that she personally approved PCSO General Manager Rosario C. Uriarte's (Uriarte) · "requests for
the allocation,' release and use of additional [Confidential and Intelligence Fund.]" The prosecution
stressed that these approvals were given despite Uriarte's generic one-page requests, which
ostensibly violated Letter of Instruction No. 1282 's requirement that, for intelligence funds to
be released, there must be a specification· of: (1) specific purposes for which the funds shall
be used; (2) circumstances that make the expense necessary; and (3) the disbursement's
particular aims. The prosecution further emphasized that Former President Arroyo's personal
approvals were necessary, as Commission on Audit Circular No. 92-385's stipulates that
confidential and intelligence funds may only be released upon approval of the President of
the Philippines. Unrefuted, these approvals are indicative of

Former President Arroyo's indispensability in the scheme to plunder.

….

Third, the prosecution demonstrated that Uriarte was enabled to withdraw from the CIF solely on the
strength of Former President Arroyo's approval and despite not having been designated as a special
disbursing officer, pursuant, to Commission on Audit Circulars 92-385 and 03-002.

….

Fourth, there were certifications on disbursement vouchers issued and submitted by Aguas, in his
capacity as PCSO Budget and Accounts Manager, which stated that: there were adequate funds for
the cash advances; that prior cash advances have been liquidated or accounted for; that the cash
advances were accompanied by supporting documents; and that the expenses incurred through
these were in order. As posited by the prosecution, these certifications facilitated the drawing of cash
advances by PCSO General Manager Uriarte and Chairperson Sergio Valencia.

….

Fifth, officers from the Philippine National Police, the Armed Forces of the Philippines, and the
National Bureau of Investigation gave testimonies to the effect that no intelligence activities were
conducted by PCSO with their cooperation, contrary to Uriarte's claims. . . The prosecution added
that no contracts, receipts, correspondences, or any other documentary evidence exist to support
expenses for PCSO 's intelligence operations. These suggest that funds allocated for the CIF were
not spent for their designated purposes, even as they appeared to have been released through cash
advances. This marks a critical juncture in the alleged scheme of the accused. The disbursed funds
were no longer in the possession and control of PCSO and, hence, susceptible to misuse or
malversation.

….

Sixth, another curious detail was noted by the prosecution: that Former President Arroyo directly
dealt with PCSO despite her having issued her own executive orders which put PCSO under the
direct control and supervision of other agencies. 147 (Emphasis in the original)

The matters established by the prosecution belie any grave abuse of discretion on the part of the
Sandiganbayan when it ruled that trial must proceed. This is especially considering that the Anti-
Plunder Law does not even require proof of every single act alleged to have been committed by the
accused. What it penalizes is the overarching scheme characterized by a series or combination of
overt or criminal acts.148 In Jose "Jinggoy" Estrada v. Sandiganbayan: 149

A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and
folly of filing multiple information’s. The Anti-Plunder Law was enacted in the aftermath of the Marcos
regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged
cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude
of the acts allegedly committed by the former President to acquire illegal wealth. They also found
that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised
Penal Code and other special laws, the acts involved different transactions, different time and
different personalities. Every transaction constituted a separate crime and required a separate case
and the over-all conspiracy fwd to be broken down into several criminal and graft charges. The
preparation of multiple Information’s was a legal nightmare but eventually, thirty-nine (39) separate
and independent cases were filed against practically the same accused before the Sandiganbayan.
Republic Act No. 7080 or the Anti-Plunder Law was enacted precisely to address this procedural
problem. 150 (Emphasis in the original, citations omitted)

Thus, as I emphasized in my Dissent to the majority's July 19, 2016 Decision:

It would be inappropriate to launch a full-scale evaluation of the evidence, lest this Court-an
appellate court, vis-a-vis the Sandiganbayan's original jurisdiction over plunder-be invited to indulge
in an exercise which is not only premature, but also one which may entirely undermine the
Sandiganbayan's competence. Nevertheless, even through a prima facie review, the prosecution
adduced evidence of a combination or series of events that appeared to be means in a coherent
scheme to effect a design to amass accumulate, or acquire ill-gotten wealth. Without meaning to
make conclusions on the guilt of the accused, specifically of petitioners, these pieces of evidence
beg, at the very least, to be addressed during trial. Thus, there was no grave abuse of discretion on
the part of the Sandiganbayan. 151

IX

Even granting that the prosecution has failed to establish as case for plunder, trial must nevertheless
proceed for malversation.

This Court has consistently held 152 that the lesser offense of malversation can be included in plunder
when the amount amassed reaches at least ₱50,000,000.00. The predicate acts of bribery and
malversation do not need to be charged under separate information’s when a person has already
been charged with plunder.
I reiterate the following from my dissent from the majority's July 19, 2016 Decision:

This Court's statements in Estrada v. Sandiganbayan are an acknowledgement of how the predicate
acts of bribery and malversation (if applicable) need not be charged under separate informations
when one has already been charged with plunder:

I reiterate the following from my dissent from the majority's July 19, 2016 Decision:

This Court's statements in Estrada v. Sandiganbayan are an acknowledgement of how the predicate
acts of bribery and malversation (if applicable) need not be charged under separate informations
when one has already been charged with plunder:

A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and
folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath or the Marcos
regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged
cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude
of the acts allegedly committed by the former President to acquire illegal wealth. They also found
that under the then existing laws such as the anti-Graft and Corrupt Practices Act, the revised Penal
Code and other special laws, the acts involved different personalities.

Every transaction constituted a separate crime and required a separate case and over-all conspiracy
had to be broken down into several criminal and graft charges. Thepreparations of multiple
informations was a legal nightmare but eventually. Thirty-nine (39) separate and independent case
were filed against practically the same accused before sandiganbayan. Republic Act No. 7080 or the
Anti-Plunder Law was enacted precisely to address this procedural problem. (Emphasis in the
original, citations omitted)

In Atty. Serapio v. sandiganbayan, the accused assailed the information for charging more than one
offense: bribery, malversation of public funds or property, and violations of Sec. 3(e) of Republic Act
No. 3019 and Section 7(d) of Republic Act No. 6713. This Court observed that "the acts alleged in
the information are not separate or independent offenses, but are predicate acts of the crime of
plunder." The Court, quoting the Sandiganbayan, clarified:

It should be stressed that the Anti-Plunder law specifically Section 1 (d) thereof does not make any
express reference to any specific provision of laws, other than R.A. No. 7080, as amended. which
coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated
therein. The said acts which form part of the combination or series of act are described in their
generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms
'misappropriation,' 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise
be penalized under other laws is incidental. The said' acts are mentioned only as predicate acts of
the crime of plunder and the allegations relative thereto are not to be taken or to be understood as
allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-
Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and
Employees.

The observation that the accused in these petitions may be made to answer for malversation was
correctly pointed out by Justice Ponferrada of the Sandiganbayan in his separate concurring and
dissenting opinion:

There is evidence, however, that certain amounts were released to accused Rosario Urimie and
Sergio Valencia and these releases were made possible by certain participatory acts of accused
Arroyo and Aguas, as discussed in the subject Resolution. Hence, there is a need for said accused
to present evidence to exculpate them from liability which need wiII warrant the denial of their
Demurrer to Evidence, as under the variance rule they maybe held liable for the lesser crimes which
are necessarily included in the offense of plunder.

Significantly, the Sandiganbayan's Resolution to the demurrers to evidence includes the finding that
the PCSO Chairperson Valencia, should still be made to answer for malversation as included in the
Information in these cases. Since the Information charges conspiracy, both petitioners in these
consolidated cases still need to answer for those charges. Thus, the demurrer to evidence should
also be properly denied. It would be premature to dismiss and acquit the petitioners. 153

The Anti-Plunder Law penalizes the most consummate larceny and economic treachery perpetrated
by repositories of public trust. The majority's Decision-which effectively makes more stringent the
1âw phi1

threshold for conviction by implying elements not supported by statutory textcripples the State's
capacity to exact accountability. In Joseph Ejercito Estrada v. Sandiganbayan: 154

Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily
methodical and economically catastrophic footing of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left
unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional
fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against the avarice and other venalities in
public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national
importance can equal the amount of interest and passion generated by petitioner's ignominious fall
from the highest office, and his eventual prosecution and trial under a virginal statute. This
continuing saga has driven a wedge of dissension among our people that may linger for a long time.
Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall
we emerge triumphant in the midst of ferment. 155 (Emphasis in supplied)

In issuing the Resolutions denying petitioners' demurrers to evidence, the Sandiganbayan acted
well-within its jurisdiction and competence. It is not for us to substitute our wisdom for that of the
court which presided over the full conduct of trial, as well as the reception and scrutiny of evidence.

The rule proscribing appeals to denials of demurrers to evidence is plain and basic. An accused's
recourse is to present evidence and to rebut the prosecution's evidence. The petitioners here failed
to establish an exceptional predicament.

This Court's overruling of the April 6, 2015 and September 10, 2015 resolutions of the
Sandiganbayan on the strength of findings of inadequacy on the part of the prosecution, but based
on standards introduced only upon the rendition of this Court's July 19, 2016 Decision, violated the
prosecution's constitutional right to due process. Both the prosecution and the accused deserve
fairness: the prosecution, that it may sufficiently establish its case in contemplation of every
appropriate legal standard; and the accused, that they may more competently dispel any case the
prosecution may have established against them.

Trial must, thus, proceed.

Accordingly, I vote to GRANT the Motion for Reconsideration. Public respondent Sandiganbayan
committed no grave abuse of discretion and acted within its competence and jurisdiction in issuing
the assailed April 6, 2015 and September 10, 2015 Resolutions.

MARVIC M.V.F. LEONEN

Associate Justice

Footnotes

1
Macapagal-Arroyov. People. G.R. No. 220598, July19, 2016
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/220598.pdf
/ > [Per J. Bersamin, En Banc].

2
See Stolen Assert Recovery Initiative of the World Bank and the United Nations Office on
Drugs and Crime, <http://star.worldbank.org/corruption-cases/node/18497 > (last visited April
17, 2017); see also University of the Philippines Alumni Obituary for Senator Jovito
Salonga, Martial law veteran, Senate President who presided at anti bases vote, dies,
<http://alum.up.edu.ph/?p=4864 > (last visited April 17, 2017), Michael Bueza, Plunder in the
Philippines, RAPPLER, June 21, 2014, <http://www.rappler.com/newsbreak/60139-plunder-
philippines-history > (last visited April 17, 2017), and Nikko Dizon.

Salonga, senator, patriot, statesman;95, INQUIRER.NET

< http://newsinfo.inquirer.net/772662/salonga-senator-patriot-statesman-95 > (last visited
April 17, 2017).

3
Mortalla, Nelson Nogot, Graft and Corruption:The Philippine Experience,
<http://www.unafei.or.jp/english/pdf/RS_No56/No56_44PA_Mortalla.pdf >502 (last visited
April 17, 2017).

4
461 Phil. 598 (2003) [Per J. Corona, En Banc].

5
Michael Bueza, Plunder in the Philippines, RAPPLER, June 21, 2014,
<http://www.rappler.com/newsbreak/60139-plunder-philippines-history > (last visited April 17,
2017).

6
Michael Bueza, Plunder in the Philippines, RAPPLER, June 21, 2014
<http://www.rappler.com/newsbreak/60139-plunder-philippines-history (last visited April 17,
2017).

8
Michael Bueza, Plunder in the Philippines, RAPPLER, June 21,
2014, http://www.rappler.com/newsbreak/60139-plunder-philippines-history (last visited April
17, 2017).

7
Estrada v. Sandiganbayan, 427 Phil. 820, 851-852 (2002) [Per J. Puno, En Banc].

8
See Michael Bueza, Plunder in the Philippines, RAPPLER, June 21, 2014,
<http://www.rappler.com/newsbreak/60139-plunder-philippines-history > (last visited April 17,
2017).

9
Republic Act No. 7080 (1991), An Act Defining and Penalizing the Crime of Plunder.
10
427 Phil. 820 (2002) [Per J. Puno, En Banc].

11
Id.at846.

12
Id.

13
Id.

Dissenting Opinion of J. Leonen in Macapagal Arroyo v. People, G.R. No. 220598, July 19,
14

2016, [Per J. Bersamin, En Banc].

15
Id. at 8.

16
Macapagal-Arroyo v. People, G.R. No. 220598, July 19, 2016
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=jurisprudence/2016/july2016/220598.pdf
> 35[Per. J. Bersamin, En Banc].

17Enrile v. People, G.R. No. 213455, August 11, 2015

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l5/august2015/213455.
pdf > [Per J. Brion, En Banc].

18
Id .at 21.

19
Rollo, pp. 4162-4171, Motion for Reconsideration.

The prosecution refers to the insertion of new elements as a"retroactive imposition "that"
20

border[s] on judicial legislation [and] is bereft of basis within the context of R[epublic] A[ct]
No. 7080. "(See Motion for Reconsideration, p. 15)

Macapagal-Arroyo v. People G.R. No. 220598, July 19, 2016

21

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/220598.pdf
> 34 [Per J. Bersamin, En Banc].

22
Estrada.v.Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].

Macapagal-Arroyo v. People, G.R. No.220598, July 19, 201634-

23

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/220598.pdf
> 34-35 [Per J. Bersamin, En Banc].

See Macapagal-Arroyo v. People. G.R. No. 220598, July 19, 2016

24

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/july2016/220598.pdf
> 31-35 [Per J. Bersamin, En Banc].

25
Estrada v. Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].

26
Id. at 839.

27
Id. at 848-853.

28
Id.at853.
29
People v. Medina, 354 Phil. 447,460 (1998) [Per J. Regalado, En Banc], citing People v.
Paredes, 133 Phil. 633,660 (1968) [Per J. Angeles, En Banc]; Valdez v. People, 255 Phil.
156,160-161 (1986) [Per J. Cortes, En Banc]; People v. Dela Cruz, 262 Phil. 838,856 (1990)
[Per J.Melencio Herrera, Second Division]; People v. Camaddo, 291 Phil. 154,160-161
(1993) [Per J. Bidin, Third Division].

30
People v. Peralta, 134 Phil. 703,723 (1968) [Per Curiam, En Banc].

31
Estrada v.Sandiganbayan, 427 Phil. 820,839 (2002) [PerJ.Puno,EnBanc].

32
RULES OF COURT, Rule 117, sec.9 provides:

Section 9. Formerconvictionoracquittalorformerjeopardy.-When a defendant shall

have been convicted or acquitted, or the case against him dismissed or otherwise
terminated without the express consent of the defendant, by acourt of competent
jurisdiction, upon a valid complaint or information or other formal charge sufficient
inform and substance to sustain a conviction, and after the defendant had pleaded to
the charge, the conviction or acquittal of the defendant-or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former complaint or
information.

33
People v. Declaro, 252 Phil. 139,143 (1989) [Per J. Cancayco, First Division].

34
Gorion v.RTC of Cebu, 287Phil. 1078 (1992) [Per J. Davide Jr.,Third Division].

35
Id. at 1085.

36
Id.

37
People v. JudgeTac-an, 446 Phil. 496,505 (2003) [Per J. Callejo, Second Division].

38
Dimatulac v.Villon, 358 Phil. 328(1998) [Per J. Davide Jr., First Division].

39
Id. at 365.

40
148-B Phil. 497 (1971) [Per J. Makalintal, En Banc].

41
159 Phil. 863 (1975) [Per J. Fernandez, Second Division].

42
126Phil.640(1967)[PerJ.Bengzon,EnBanc].

43
187Phil.190(1980)[PerJ.DeCastro,FirstDivision].

44
Id.at197-198.

45
Id.at196.

46
Peoplev.Gomez,126Phil.640,645(1967)PerJ.Bengzon,EnBanc].
 Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, November 10, 2015
47

<http://sc.judiciary.gov.ph/pdf/web/viewcr.htmI?file=/jurisprudence/20l5/november2015/2171
26-27.pdf > [Per J. Perlas-Bernabe, En Banc].

Carpio-Morales v. Court of Appeals, G.R.Nos.217126-27, November 10, 2015 [Per J.

48

Perlas Bernabe, En Banc].

49
Id. at 65-66.

50
Rollo, p. 4164, Motion for Reconsideration.

51
Id. at 4178-4179.

52
Id. at 4174-4173.

53
Id. at 4179.

54
Id. at 4179-4181.

Id. at 4177. The prosecution states: "the PCSO Board designated [Uriarte] by virtue of
55

Arroyo's 'I desire' letter/order. Obviously, Uriarte's appointment by Arroyo was a clear
departure from Section 2 of [Republic Act] No. 1169.

56
An Act Providing for Charity Sweepstakes. Horse Races, and Lotteries.

57
Id. at 4174.

58
L.O.I. No. 1282 (1983).

59
L.0.I.No.1282(1983).

60
Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July19,
2016, 16 [Per J. Bersamin, En Banc] citing the Sandiganbayan Resolution dated November
5, 2013.

61
According to Uriarte's testimony before the Senate, the main purpose for these cash
advances was for the "roll-out" of the small town lottery program. However, the
accomplishment report submitted by Aguas shows that ₱137,500,000 was spent on non-
related PCSO activities, such as" bomb threat, kidnapping, terrorism and bilateral and
security relations."All the cash advances made by Uriarte in 2010 were made in violation of
LOI 1282, and COA Circulars 2003-002 and 92-385. These were thus improper use of the
additional CIF funds amounting to raids on the PCSO coffers and were ill-gotten because
Uriarte had encashed the checks and came into possession of the monies, which she had
complete freedom to dispose of but was not able to properly account for. (Dissenting Opinion
of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July 19, 2016,
<http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf/ > 13-14 [Per J.
Bersamin, En Banc] citing the Sandiganbayan Resolution dared November 5, 2013.)

62
Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July 19,
2016, <http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf/ > 16 [Per
J. Bersamin, En Banc] citing the Sandiganbayan Resolution dated November 5, 2013.)
63
Rollo, p. 4178.

64
Id. at 4178-4182.

See Dissenting Opinion of .I. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598,
65

July 19, 2016, <http://sc.judiciary.gov.ph/jurisprudence/2016/july2016/220598_leonen.pdf/ >

15 [Per J. Bersamin, En Banc] citing the Sandiganbayan Resolution dated November 5,
2013.)

66
Rollo, p. 4174.

67
Id.at4179.

68
Id. at 4181.

69
Id.at4179.

70
Id.at4175.

See Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598,

71

July 19, 2016, 15 [Per J. Bersamin, En Banc].

72
Id.

73
Id. at 4176.

74
ld.at4175.

75
ld.at 4174.

76
Id. at4177.

77
Id. at 1652-1653.

7
8 Id. at 1653.

79
At that time, three (3) disbursements were already made based on the approval of the
requests of PCSO General Manager Uriarte. These were made on April 2, 2008, August 13,
2008, and January 19, 2009.

80
Rollo (G.R. No. 220598), p. 1653.

81
Id.at4174.

82
People v. Diaz, 443 Phil. 67, 89 (2003) [Per J. Austria-Martinez, Second Division].

83
People v. Del Mundo, 418 Phil. 740, 753 (200 I) [Per J. Ynares-Santiago, First Division].

84
Rollo, p. 4171.
85
Rep. Act No. 1169, sec. 6 provides: Section 6. Allocation of Net Receipts.- From the gross
receipts from the sale of sweepstakes tickets, whether for sweepstakes races, lotteries or
similar activities shall be deducted the printing cost of such tickets which in no case shall
exceed two percent of such gross receipts to arrive at the net receipts. The net receipts shall
be allocated as follows:

A. Fifty-five percent (55%) shall be set aside as a prize fund for the payment of
prizes, including those for the owners, jockeys of running horses, and sellers of
winning tickets.

Prizes not claimed by the public within one year from date of draw shall be
considered forfeited, and shall form part of the charity fund for disposition as stated
below. B. Thirty percent (30%) shall be set aside as contributions to the charity fund
from which the Board of Directors. in consultation with the Ministry of Human
Settlement on identified priority programs. needs. and requirements in specific
communities and with approval of the Office of the President (Prime Minister), shall
make payments or grants for health programs, including the expansion of existing
ones, medical assistance and services and/or charities of national character, such as
the Philippine National Red Cross, under such policies and subject to such rules and
regulations as the Board may from time establish and promulgate. The Board may
apply part of the contributions to the charity fund to approved investments of the
01'lice pursuant to Section I (B) hereof, but in no case shall such application to
investments, exceed ten percent (10%) of the net receipts from the sale of
sweepstakes tickets in any given year. Any prope1ty acquired by an institution or
organization with funds given to it under this Act shall not be sold -or otherwise
disposed of without the approval of the Office of the President (Prime Minister), and
that in the event of its dissolution all such property shall be transferred to and shall
automatically become the property of the Philippine Government.

C. Fifteen (15%) percent shall he set aside as contributions to the operating

expenses and capital expenditures of the Office.

D. All balances of any funds in the Philippine Charity Sweepstakes Office shall revert
to and form part of the charity fund provided for in paragraph (B), and shall be
subject to disposition as above stated.The disbursements of the allocation herein
authorized shall be subject to the usual auditing rules and regulations.

86
Rollo, p. 4172.

87
Id.

Exec. Order No. 383, sec. I provides: Section . I. The Philippine Charity Sweepstakes
88

Office shall hereby be under the supervision and control of the Department of Social Welfare
and Development.

Exec. Order No. 455, sec. I provides: Section I. The Philippine Charity Sweepstakes Office
89

shall hereby be placed under the supervision and control of the Department of Health.

Dissenting Opinion of J. Leonen in Macapagal-Arroyo v. People, G.R. No. 220598, July 19,
90

2016, [Per J. Bersamin, En Banc] citing the Sandiganbayan Resolution related November 5,
2013.
91
Rollo (G.R. No. 220598), p. 1831.

92
Id. at 4174.

93
ld .at 4177.

94
Id. at 4176.

95
ld.at4178.

96
Id. at 4181.

97
Enrile v. People, G.R. No. 213455, August 11, 2015
< http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l5/august2015/213455.
pdf > 22 [Per J. Brion, En Banc]. 98 Enrile v. People, G.R. No. 213455, August 11, 2015
< http://sc.judiciary.gov.ph/pdf/web/viewer.html?file/jurisprudence/20l5/august2015/213455.p
df > [Per J. Brion, En Banc].

99
Id. at 22:

100
Id.

101
Id.

102
Id.

103
Rollo, pp. 305-307-A.

Macapagal-Arroyo v. People, G.R. No. 220598, July 19, 2016 32- 33 [Per J. Bersamin, En
104

Banc].

105
Enrile v. People, G.R. No. 213455, August 11,
2015 http://sc.judiciary.gov.ph/pdt/web/viewer.html?file
=/jurisprudence/2015/august2015/213455.pdf 22 [Per J. Brion, En Banc].

106
People v. Sandiganbayan, 613 Phil. 407 (2009) [Per J. Peralta, Third Division].

107
Id. at 426.

108
Id.

109
Macapagal-Arroyo v. People. G.R. No. 22059&, July 19,
2016 http://sc.judiciary.gov.ph/pdt/web/viewer.html?file
=/jurisprudence/2016/july2016/213455.pdf 44- 45 [Per J. Bersamin, En Banc]. The Decision
stated: 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.

Rep. Act No. 7060, sec. l(d)(I) states that plunder is committed "through misappropriation,
110

conversion, misuse, or malversation of public funds or raids on the public treasury."

111
Rollo, p. 4169, Motion for Reconsideration.

112
REV. PEN. CODE, art. 220 provides: Article 220. Illegal Use of Public Funds or Property. -
Any public officer who shall apply any public fund or property under his administration lo any
public use other than that for which such fund or property were appropriated by law or
ordinance shall suffer the penalty of prision correccional in its minimum period or a fine
ranging from one-half to the total of the sum misapplied, if by reason of such misapplication,
any damage or embarrassment shall have resulted to the public service. In either case, the·
offender shall also suffer the penalty of temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall
be a fine from 5 to 50 per cent of the sum misapplied.

113
Record of the Senate, Vol. IV, No. 141, p. 1403 (1989).

114
REV. PEN. CODE, art. 308 provides:

Article 308. Who are liable for theft. -Theft is committed by any person who, with
intent to gain but without violence against or intimidation of persons nor force upon
things, shall take personal property of another without the latter's consent. Theft is
likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same
to the local authorities or to its owner; 2. Any person who, after having
maliciously damaged the property of another, shall remove or make use of
the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner,
shall hunt or fish upon the same or shall gather cereals, or other forest or
farm products.

115
Valenzuela v. People, 552 Phil. 381, 416 417 (2008) [Per J. Tinga, En Banc].

116
Valenzuela v. People, 552 Phil. 381 (2008) [Per J. Tinga, En Banc].

117
ld. At 417-418.

118
Id. at 418.

119
Estrada v. Sandiganbayan, 421 Phil. 290. 365 (2001) [Per J. Bellosillo, En Banc].

120
Valenzuela v. People, 552 Phil. 381, 417 (2008) [Per J. Tinga, En Banc].
 Collins Dictionary, <http://collinsdictionary.com/dictionary/english/raid > (last visited April
121

17, 2017).

ANDREAS H. JUCKER, DANIELA LANDERT, ANNINA SEILER, NICOLE STUDER-JOH,

122

MEANING IN THE HISTORY OF ENGLISH: WORDS AND TEXTS IN CONTEXT 64(2013).

Collins Dictionary, <http://collinsdictionary.com/dictionary/english/raid > (last visited April

123

17, 2017).

Online Etymology Dictionary,

124

<http://www.etymonline.com/index.php?term=raid&allowed_in_frame=0 > (last visited April

17, 2017).

The Science Show,

125

<http://web.archive.org/web/20081006030339/htpp://www.abc.net.au/rn/science/ss/stories/s
70986.htm > visited April 17, 2017).

126
Douglas Harper, Online Etymology Dictionary, <http://www.dictionary.com/browse/raider/ >
(last visited April 17, 2017).

Collins Dictionary, <http://collinsdictionary.com/dictionary/english/raid > (last visited April

127

17, 2017).

Based on the Random House Dictionary, Random House, Inc. (2017)

128

<http://collinsdictionary.com/dictionary/english/raid > (last visited April 17, 2017).

ROBERT A. CARO, THE PATH TO POWERS THE YEAR OFLYNDON JOHNSON 247
129

(1982).

Herbert Hoover, <http://www.history.com/topics/us-president/herbert-hoover > (last visited

130

April 17, 2017).

Herbert Hoover, <http://www.history.com/topics/us-president/herbert-hoover > (last visited

131

April 17, 2017).

See S.B. No. 733, as cited in Estrada' Sandiganbayan, 427 Phil. 820, 851 (2002) [Per J.
132

Puno, En Banc].

133
Rollo, pp. 450-510.

134
Id. at 4175.

I) [Per J. Bellosillo, En Banc]

155
Id. at 367.