Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Category: Other
SOUNDING BOARD
Gregory Ong
By Fr. Joaquin G. Bernas, S.J.
Inquirer
Last updated 08:38am (Mla time) 05/28/2007
MANILA, Philippines -- The case of Justice Gregory
Ong is a law professor’s dream material for class
discussion and analysis. Ong has been extended an
appointment to the Supreme Court by the President,
but his qualification for the post is being challenged
on the ground that he is not a natural-born Filipino
citizen. What’s the score? As I see it, Justice Ong’s
claim to natural-born citizenship is not without
foundation. Let me outline the story.
From the documents I have seen and from what I
know of Philippine jurisprudence, Ong’s Filipino
citizenship can be traced way back to his great-
grandmother, Maria Santos of Bulacan.
Maria Santos was a Filipina through and through. In
1904, she bore a son by a Chinese national, Chan
Kin. The child came to be known as Juan Santos,
taking the family name of the mother.
Since Chan Kin was Chinese, Juan was not born a
Filipino (unless the parents were not married). But in
1906, when Juan was 2 years old, the father died. By
Philippine jurisprudence (Talaroc vs Uy) Maria Santos
regained her Filipino citizenship (on the assumption
that she had married Chan Kin and thereby lost her
Filipino citizenship by marrying an alien). Her minor
son, Juan, followed her citizenship. But Juan did not
seem to have known that he had become a Filipino
citizen and was therefore registered as an alien.
Juan later married Sy Siok Hian. The couple bore
several children, one of whom was Dy Giok Santos,
born 1933, the mother of Gregory Ong. But on the
belief that he was Chinese, Juan mistakenly
registered his children as Chinese.
In 1958, however, Juan filed a petition for
cancellation of his and his children’s registration as
aliens. The petition was granted in the same year.
However, the petition of Juan did not include the
eldest daughter, Dy Giok Santos, Gregory’s mother,
because she was then already married to Eugenio
Onghanseng, a Chinese national. However, in my
judgment, being a legitimate daughter of a Filipino,
Dy Giok Santos, like her sisters, was a Filipino when
she married Eugenio in 1950 even if she was then
still incorrectly registered as Chinese. But by her
marriage to Eugenio she lost her Philippine
citizenship. Thus Gregory Ong was born in 1953 to
an alien father and to a woman who had lost her
Philippine citizenship by marriage. Under such
circumstance can he nevertheless be a natural-born
Filipino now?
In all fairness and under our Constitution, without
going into the other qualifications of Gregory Ong, it
is my belief that he is deemed a natural-born Filipino
citizen. How do I arrive at this conclusion?
I begin with the 1935 Constitution under which
Gregory was born and which says that Filipino
citizens include “those whose mothers are citizens of
the Philippines and, upon reaching the age of
majority, elect Philippine citizenship.” Does this
provision mean that the child must be born while the
mother is still Filipino, or is it enough that the mother
was Filipino at the time of marriage? If we read this
provision as meaning that the child must be born at
the time when the mother is still Filipino, the
constitutional provision would have no meaning
because under our citizenship law, then in effect, a
woman lost her Filipino citizenship upon marriage to
an alien if she thereby acquired the citizenship of her
husband. For the provision to have a meaning, it
must be read as referring to children born of mothers
who were Filipinos at the time of marriage. This, in
fact, is the meaning followed in Co vs House
Electoral Tribunal. Thus, Gregory Ong had the right
to elect Philippine citizenship upon reaching the age
of majority because his mother was Filipino at the
time of marriage. Did Gregory avail of the right to
elect Filipino citizenship?
Gregory did not elect and could not have elected
Philippine citizenship when he reached majority
because by then he was already a Filipino citizen.
How so? In 1964, when Gregory was 11 years old,
his father was naturalized and, as a minor, he
automatically followed the citizenship of his father.
The situation thus placed him on all fours with the
case of Co vs House Electoral Tribunal which said:
“To expect the respondent to have formally or in
writing elected citizenship when he came of age is to
ask for the unnatural and unnecessary. The reason is
obvious. He was already a citizen.” Or, as the House
Electoral Tribunal said in Co vs House Electoral
Tribunal, since the Revised Naturalization Act made
him a Filipino citizen when his father was naturalized,
“it was the law itself that had already elected
Philippine citizenship for protestee by declaring him
as such.”
Thus, not only was Gregory a citizen by virtue of the
naturalization of his father but also by the perfection,
upon reaching the age of majority, of the inchoate
citizenship he had received from his mother through
the provision of the 1935 Constitution. But did that
thereby make him a natural-born citizen of the
Philippines?
The answer to this last question is found in the 1987
Constitution which says: “Those who elect Philippine
citizenship in accordance with [the 1935
Constitutional provision] shall be deemed natural-
born citizens.” The purpose of this provision, as
shown in the deliberations of the 1986 Constitutional
Commission, was to equalize the situation of all those
descended from a Filipino mother. What is important
is that the child descended from a Filipino mother.
Finally, can we go back and examine the citizenship
of the forebears of Gregory all the way to Maria
Santos? Again I quote Co vs House Electoral
Tribunal: “The Court cannot go into the collateral
procedure of stripping [forebears] of citizenship after
[their] death and at this very late date just so we can
go after the [descendant].”
PHILIPPINE JURISPRUDENCE - FULL TEXT
The Lawphil Project - Arellano Law Foundation
G.R. No. 180643 March 25, 2007
ASSOCIATE JUSTICE PRESBITERO J. VELASCO,
JR. SEPARATE CONCURRING OPINION ON G.R.
1

NO. 180643
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643
Agenda for March 25, 2007
G.R. No. 180643 (Romulo L. Neri, in his capacity as
Chairman of the Commission on Higher Education
and as former Director General of the National
Economic & Development Authority (NEDA) v.
Senate Committee on Accountability of Public
Officers and Investigations, et al.)
S E PARATE CONCURRING OPINI
ON
VELASCO, JR., J.:
This case turns on the privileged nature of what the
petitioner, as then NEDA Director-General, discussed
with the President regarding the scuttled ZTE-NBN
contract juxtaposed with the authority of respondents
Senate committees to look, in aid of legislation, into
what was discussed.
On September 26, 2007, petitioner, on invitation of
the respondents, testified on the ZTE-NBN contract
and the bribe dangled in connection thereto. When
queried on what he discussed with the President after
he divulged the bribe offer, petitioner declined to
disclose details of their conversations which he
deemed privileged. Anticipating to be asked on the
same subject and on order of the President invoking
executive privilege, petitioner sent regrets on his
inability to appear in the November 20, 2007 hearing.
Respondents then asked the petitioner to explain why
he should not be cited for contempt. Explain
petitioner did, with a request that he be furnished in
advance with questionnaires should respondents
desire to touch on new matters. The contempt threat,
which would eventually be carried out with the
issuance of an arrest order, is cast against a
backdrop that saw petitioner staying for 11 straight
hours with the investigation committees and
answering all their questions, save those he deemed
covered by executive privilege.
Congressional investigations to elicit information in
aid of legislation are valid exercise of legislative
power, just as the claim of executive privilege is a
valid exercise of executive power. In the Philippine
setting, the term "executive privilege" means the
power of the President to withhold certain types
information from the courts, the Congress, and
ultimately the public.1 Apart from diplomatic and
military secrets and the identity of government
informers, another type of information covered by
executive privilege relates to information about
internal deliberations comprising the process by
which government decisions are reached or policies
formulated.2 U.S. v. Nixon explains the basis for the
privilege in the following wise:
The expectation of a President to the confidentiality
of his conversation and correspondences, like the
claim of confidentiality of judicial deliberations x x x
has all the values to which we accord deference for
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
the privacy of all citizens. x x x A President and those
who assist him must be free to explore alternatives in
the process of shaping policies and making decisions
and to do so in a way many would be unwilling to
express privately. These are the considerations
justifying a presumptive privilege for Presidential
communications.3
Authorities are agreed that executive privilege is
rooted on the doctrine of separation of powers, a
basic postulate that forbids one branch of
government to exercise powers belonging to another
co-equal branch; or for one branch to interfere with
the other's performance of its constitutionally-
assigned functions. It is partly in recognition of the
doctrine that "presidential conversations,
correspondences, or discussions during closed-door
Cabinet meetings which, like internal-deliberations of
the Supreme Court x x x or executive sessions of
either house of Congress x x x cannot be pried open
by a co-equal branch of government."4 And as the
Court aptly observed in Gudani v. Senga,5 the fact
that the executive branch is an equal branch to the
legislative creates a "wrinkle" to any basic rule that
persons summoned to testify before Congress must
do so.
So, was the eventual issuance of the assailed citation
and arrest order justified when the duly subpoenaed
petitioner declined to appear before the respondents'
hearing through a claim of executive privilege "By
Order of the President"? I turn to the extent and limits
of the legislative power of inquiry in aid of legislation.
What was once an implicit authority of Congress and
its committees to conduct hearings in aid of
legislation with the concomitant power necessary
and proper for its effective discharge6 is now explicit
in the 1987 Constitution.7 And this power of inquiry
carries with it the authority to exact information on
matters which Congress is competent to legislate,
subject only to constitutional restrictions.8 The Court,
in Arnault v. Nazareno,9 acknowledged that once an
inquiry is established to be within the jurisdiction of a
legislative body to make, the investigation committee
has the power to require the witness to answer any
question pertinent to the subject of the inquiry and
punish a recalcitrant or unwilling witness for
contempt. But Bengson v. Senate Blue Ribbon
Committee10 made it abundantly clear that the power
of Congress to conduct inquiries in aid of legislation
is not "absolute or unlimited."
Section 21, Article VI of the Constitution providing:
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.
establishes what we tagged in Senate v. Ermita
(Ermita) as "crucial safeguards" that circumscribe the
legislative power of inquiry. The provision thus
requires the inquiry to: (1) properly be in aid of
legislation, else, the investigating committee acts
beyond its power; without a valid legislative purpose,
a congressional committee is without authority to use
the compulsory process otherwise available in the
conduct inquiry in aid of legislation;11 (2) be done in
accordance with duly published rules of procedure,
irresistibly implying the constitutional infirmity of an
2

inquiry conducted without or in violation of such
published rules; and (3) respect the rights of persons
invited or subpoenaed to testify, such as their right
against self-incrimination and to be treated in
accordance with the norms individuals of good will
observe.
The Communications between Petitioner
and the President are Covered by Executive
Privilege;
the Privilege was Properly Claimed by and for
Petitioner
Executive Secretary Ermita, in line with Ermita, duly
invoked, by order of the President, executive
privilege, noting, in a letter12 to the Chairperson of
the Blue Ribbon Committee that the following
questions:
(1) Whether the President followed up the (NBN)
project?
(2) Were you dictated to prioritize the ZTE? and
(3) Whether the President said to go ahead and
approve the project after being told about the alleged
bribe?
previously addressed to petitioner Neri, but left
unanswered, "[fall] under conversations and
correspondence between the President and public
officials which are considered executive privilege."
And explaining in some detail the confidential nature
of the conversations, Sec. Ermita's letter further said:
The context in which executive privilege is being
invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic
relations with the People's Republic of China. Given
the confidential nature in which these information
were conveyed to the President, [Sec. Neri] cannot
provide the Committee any further details of these
conversations without disclosing the very thing the
privilege is designed to protect.
The information the petitioner sought to keep
undisclosed regarding the ZTE-NBN project dealt
with high-level presidential communications with a
subordinate over a matter involving a foreign power.
Allowing such information to be extracted in an open-
ended Senate committee investigation after an 11-
hour grilling Neri was subjected to is tantamount to
allowing a substantial, and unreasonable, incursion
into the President's recognized right to confidentiality
and to candidly interact with her advisers, a right
falling under the aegis of executive privilege. The
concept and assertion of executive privilege are after
all intended, following the Ermita precedent, to
protect a basic interest of the President, that is, the
necessity that she receives candid and unfettered
advice from his subordinates and that the latter be
able to communicate freely and openly with her and
with each other.
Respondents, in their Comment and during the oral
arguments, stressed, and correctly so, that executive
privilege cannot validly be invoked to conceal a
crime, the point apparently being that the President
knew of, or worse, was a player in the alleged ZTE-
NBN bribery drama. It ought to be pointed out,
however, that it is a bit presumptuous to suppose that
what President and the petitioner discussed was
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
about a crime. And would not executive privilege be
reduced into a meaningless concept if, to preempt its
application, any congressional committee raises, if
convenient, the crime angle?
In Ermita, the Court, citing US case law,13 outlined
the steps to follow in claiming executive privilege.
Foremost of these are: (1) it must be clearly asserted,
which petitioner did, and by the Government to which
the privilege belongs; (2) there must be a formal
claim of privilege, lodged by the head of the
department having control over the matter; and 3) the
statement of the claim must be specific and the claim
must state the reasons for withholding the
information. Save for some broad statements about
the need to protect military, diplomatic, and national
security secrets, all the requirements respecting the
proper manner of making the claim have satisfactorily
been met. As we explained in Ermita, the Senate
cannot require the executive to state the reasons for
the claim with such particularity as to veritably
compel disclosure of the information which the
privilege is designed to protect in the first place.
It may be stated at this juncture that respondents
committees have certain obligations to comply with
before they can exact faithful compliance from a
summoned official claiming executive privilege over
the matter subject of inquiry. Again, Ermita has laid
out the requirements to be met under that given
scenario. They are, to me, not mere suggestions but
mandatory prescriptions envisaged as they are to
protect the rights of persons appearing or affected by
the congressional inquiries. These requirements are:
First, the invitation or subpoena shall indicate the
possible questions to be asked; second, such
invitation or subpoena shall state the proposed
statute which prompted the need for the inquiry; and
third, that the official concerned must be given
reasonable time to apprise the President or the
Executive Secretary of the possible need for invoking
executive privilege. For the purpose of the first
requirement, it would be sufficient if the person
invited or subpoenaed is, at least, reasonably
apprised and guided by the particular topics to be
covered as to enable him to properly prepare. The
questions need not be couched in precise details or
listed down to exclude all others.
Annex "B" of the Petition, or the subpoena ad
testificandum dated November 13, 2007 addressed
to the petitioner literally makes no reference to any
intended legislation. It did not also accord him with a
fair notice of the questions likely to be asked. As it
were, the subpoena contained nothing more than a
command for the petitioner to appear before the Blue
Ribbon Committee at a stated date, then and there to
"testify on what [he] know[s] relative to the subject
matter under inquiry." And lest it be overlooked, it is
not clear from Annex "B" what matters relating to a
proposed bill, if there be any, cannot be addressed
without information as to the specifics of the
conversation between the President and the
petitioner.
In net effect, the subpoena thus issued is legally
defective, issued as it were in breach of what to me
are mandatory requirements. Accordingly, the non-
compliance with the subpoena is, under the
premises, justifiable. Similarly, respondent
committees are precluded from imposing sanctions
against the person, petitioner in this instance, thus
3

subpoenaed should the latter opt not to comply with
the subpoena.
Grave Abuse of Discretion tainted the issuance of the
Order of Arrest
The perceived obstructive defiance of the subpoena
(Annex "B", Petition) triggered the issuance of the
assailed contempt and arrest order. It behooves the
Court to now strike the said order down, not only
because its existence is the by-product of or
traceable to, a legally infirm subpoena, but also
because the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation does not authorize the
arrest of unwilling or reluctant witness not before it.
Surely, respondents cannot look to Sec. 18 of the
rules of procedure governing legislative inquiries as
the arrest-enabling provision since it only speaks of
contempt in the first place. Sec. 18 reads:
Sec. 18. Contempt. The Committee, by a majority
vote of all its members, may punish for contempt any
witness before it who disobeys any order of the
Committee or refuses to be sworn or to testify or to
answer a proper question by the Committee or any of
its members xxx Such witness may be ordered by the
Committee to be detained in such place at it may
designate under the custody of the Sergeant-at-Arms
until he agrees to produce the required documents or
to be sworn or to testify, or otherwise purge himself of
that contempt.
I may even go further. Internal rules of procedure
cannot plausibly be the source of the power to issue
an arrest order and, as has been the practice, for the
security unit of the Senate to enforce the order. There
must, I submit, be a law for the purpose and where
the security unit is given the enforcing authority. The
power to issue an order of arrest power is such an
awesome, overreaching prerogative that the
Constitution, no less, even sets strict conditions
before a warrant of arrest will issue against a
suspected criminal.14
The Court is very much aware that Sec. 3(c) of the
Rules of the Senate empowers the Senate President
to "sign x x x orders of arrest." It cannot be
overemphasized, however, that the order for the
petitioner's arrest was a joint committee action which
naturally ought to be governed by the Rules of
Procedure Governing Inquiries in Aid of Legislation,
not the Rules of the Senate. It would be a sad
commentary if Senate committees can choose to
ignore or apply their very own rules when convenient,
given that violation of these rules would be an
offense against due process.15
But conceding for the nonce the authority of the
respondents to order an arrest, as an incident to its
contempt power, to be effected by their own organic
security complement, the assailed order would still be
invalid, the same not having been approved by the
required majority vote of the respective members of
each of the three investigating committees.
Respondents veritably admitted the deficiency in
votes when they failed to document or otherwise
prove despite a commitment to do so during the oral
arguments the due approval of the order of citation
and arrest. And unable to comply with a promised
undertaking, they offer the lame excuse that the
matter of approval of the citation and arrest order is a
non-issue.
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Philippine jurisprudence remains unclear on what
Congress may do should a witness refuse to obey a
subpoena. Fr. Bernas has stated the observation,
however, that there is American jurisprudence which
recognizes the power of Congress to punish for
contempt one who refuses to comply with a
subpoena issued by a congressional investigating
body, albeit the practice seems to be that the
Congress asks a court to directly order compliance
with a subpoena.16
Conclusion
In sum, petitioner had not acted in a manner to
warrant contempt, arrest and detention. Far from it.
He appeared before respondents committees in the
hearing of September 26, 2007 which, to repeat,
lasted for 11 hours where he answered all the
questions not requiring, in response, divulging
confidential matters. Proper procedures were
followed in claiming executive privilege, as outlined in
Ermita. In due time, he replied to the show-cause
order the respondents issued.
Considering the circumstances, as discussed, under
which it was issued, the assailed January 30, 2008
order should be struck down as having been issued
in grave abuse of discretion.
I, therefore, vote to grant the petition.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
1 Senate v. Ermita, G.R. No. 169777, April 20, 2006,
488 SCRA 1.
2 Id.
3 418 U.S. 683 (1974); cited in Almonte v. Vasquez,
G.R. No. 95367, May 23, 1995, 244 SCRA 286.
4 Chavez v. Public Estates Authority, G.R. No.
133250, July 9, 2002, 384 SCRA 152, 188-189.
5 G.R. No. 170165, August 15, 2006, 498 SCRA 671.
6 Sabio v. Gordon, G.R. No. 174340, October 17,
2006, 504 SCRA 704; citing McGrain v. Daugherty,
273 U.S. 135, 47 S. Ct.
7 Art. VI, Sec. 21.
8 Briggs v. MacKellar, 2 Abb. Pr. 30 (N.Y.) 1864),
cited in Sabio v. Gordon, supra.
9 87 Phil. 29 (1950).
10 G.R. No. 89914, November 20, 1991; 203 SCRA
767, citing Arnault.
11 Bengson v. Senate Blue Ribbon Committee,
supra.
12 Sec. Ermita's letter dated Nov. 15, 2007 to Sen.
Alan Peter Cayetano, Annex "C," Petition.
4

13 U.S. v. Reynolds, 345 U.S 1, 73 S. Ct. 528.
14 Art. III, Sec. 2 of the Constitution provides that no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched or the
persons and things to be seized.
15 Bernas, The 1987 Constitution of the Philippines:
A Commentary (2003), p. 740
16 J.G. Bernas, "Sounding Board: Shielding the
President." Philippine Daily Inquirer, February 11,
2008.
The Lawphil Project - Arellano Law Foundation
Sounding Board
Banana planters vs City of Davao
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 02:20:00 01/26/2009
THE City of Davao passed an ordinance prohibiting
aerial spraying in all plantations within the province
and criminally penalizing violation of the ordinance.
Obviously it was a health measure. The ordinance
was to take effect three months after approval. The
banana planters challenged the constitutionality of
the ordinance mainly on two basic grounds: (1) they
claimed the ordinance was oppressive and
confiscatory and (2) it violated equal protection of
law.
The argument of oppressiveness was based on a
number of factual arguments: (1) the impossibility of
switching to other forms of spraying within three
months and the enormous cost it would take to
accomplish the switch; (2) the harm to the health of
workers who would do the manual spraying; (3) and
the lack of scientific proof that aerial spraying was
harmful to health.
As to equal protection, the ordinance was challenged
on the argument that it prohibited all forms of aerial
spraying.
The Court of Appeals based in Cagayan de Oro City,
by a vote of 4 to 1, upheld the contention of the
planters that the ordinance was unconstitutional. I am
sure, however, that the CA’s decision will not be the
end of the story. As the feisty editor of SunStar Davao
said, it will be a long haul.
I believe that when the case goes to the Supreme
Court , it will give the Court the opportunity to
elaborate on how the due process and equal
protection clauses of the Constitution operate.
The case in essence is a conflict between the right to
property and the right to life. The accepted
jurisprudence is that in the hierarchy of rights life
normally prevails over property. This principle will
certainly play a role in any review of the Court of
Appeals decision.
Strangely, while the challengers of the ordinance
expressed concern about the health of farm workers
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
doing manual spraying, no similar concern was
expressed about the health of the other people in the
vicinity.
On the battle about the impossibility of carrying out
the switch from aerial spraying within the three-month
period set by the ordinance, the challengers set out a
parade of experts.
Contrary assessments were also presented by the
City of Davao, but the Court of Appeals belittled the
effort of the City saying that it “betrays its lack of
technical understanding on the intricacies of the
engineering works required for the efficient operation
of banana plantations, and exposes its indifference to
the corporeal rights [sic] of banana planters to protect
and enhance their investments.”
Will the Supreme Court accept this conclusion or will
it send the matter back for further factual evaluation?
It is also interesting that the Court of Appeals itself
did not find itself satisfied with the evidence on
whether the sprays being used were safe or not. It
said: “We are skeptical of the foregoing claims on the
seemingly fool proof safety of pesticides or
fungicides, both as chemical substances and in terms
of human exposure to the same, since petitioners-
appellant already admitted that the pesticides or
fungicides they used would prejudice the health of
their workers if manually sprayed. The admission
would sensibly mean that exposure to such
substances, even in the diluted form, poses danger to
the human health.”
The CA continued: “Our opinion is not necessarily a
categorical indictment against the degree of safety in
the usage of these substances. However, without
preponderant and actual empirical proof of the
testimonies of petitioners-appellants’ witnesses, no
conclusion can be reached as to whether or not the
use of pesticides or fungicides is safe.”
On the other hand, the court also said that the
respondents “did not prove that the aerial spraying of
substances is the proximate cause of the various
ailments (itchiness and irritation of skin, contraction
and tightening of chest, minimal tuberculosis,
recurring stomachaches, nausea and lost appetite)
they allegedly suffer.”
On the basis of these two uncertainties the court
decided to favor the planters. This raises the issue
whether in a conflicting situation like this where the
court is uncertain as to who is wrong and who is right
a court should substitute its judgment for that of the
legislator.
Apparently the legislator had made its judgment on
the basis of evidence it had found and on labels on
the solutions saying, as the editor of SunStar Davao
enumerates:
“Harmful if absorbed through the skin, may cause
nose, throat, eyes and skin irritation.”
“Do not breathe dust of spray mist.”
“This pesticide is toxic to fish. Drift and runoff from
treated areas may be hazardous to aquatic
organisms in neighboring areas.”
5

“During aerial application, human flaggers must be in
enclosed cabs.”
What of the lack of equal protection? The argument is
that the ordinance prohibits the use of all sprays
without distinction. Here again I am sure that the
Supreme Court will have the opportunity to explain
how the equal protection clause operates. But first,
does the ordinance prohibit all forms of spray
solutions or only those currently being used in the
plantations? In making allowable classifications,
jurisprudence uses two possible approaches: the
strict scrutiny approach and the liberal or rational
approach. The strict scrutiny approach is used to
measure classifications based on race, national
origin, religion, alienage, denial of the right to vote,
interstate migration, access to courts and other rights
recognized as fundamental.
The liberal or rational approach is used in economic
matters: briefly, if the legislator finds a rational basis
for making the classification, even if not conclusive,
the court will accept it as valid. Did the Court of
Appeals use the strict scrutiny approach?
In conclusion, I agree with the editor of SunStar
Davao that the dispute will be a long haul.
Sounding Board
‘A balanced and healthful ecology’
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 02:18:00 02/02/2009
A PROVISION in the 1987 Constitution, which once
some saw as unnecessary, has been gradually
gaining attention. Section 16 of Article II says: “The
State shall protect and advance the right of the
people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.” In tandem
with it is Section 15, which says: “The State shall
protect and promote the right to health of the people
and instill health consciousness among them.”
Section 16 is unusual among those found in Article II
in that, whereas almost all the other provisions in the
Article are not self-executing but need implementing
legislation to make them effective, Section 16 has
been recognized by the Supreme Court as self-
executing like the provisions in the Bill of Rights. As
early as 1993 the Supreme Court already recognized
it, in conjunction with the right to health, as anchoring
the right of a group of minors to challenge logging
practices in the country. The minors, speaking for
themselves and for “generations yet unborn” under
the concept of “inter-generational justice,” asked the
Court to order a stop to the harmful effects flowing
from deforestation.
The Court upheld their right to raise the challenge as
flowing from their “right to a balanced and healthful
ecology” and “the correlative duty to refrain from
impairing the environment.”
Not long after that the Court upheld the right of the
Laguna Lake Development Authority to be
responsible for the ecological protection of Laguna
Lake against the claimed authority of the local
governments around the lake. The Supreme Court
linked Section 16 with the Universal Declaration of
Human Rights and the Alma Conference Declaration
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
of 1978.
Along a similar vein, in 2007 the Supreme Court
upheld the validity of an ordinance of the City of
Manila requiring the oil companies to close and
transfer the Pandacan Terminals to another location
within a specified period.
The latest on this subject came out only last
December. In Metropolitan Manila Development
Authority v. Residents of Manila Bay, the Supreme
Court ordered various agencies of government to
clean up Manila Bay.
All these have come about because of the desire of
the state as enunciated in the Constitution to ensure
for the people a healthy environment. This
constitutional policy, even if already self-executing,
has been injected with an element of urgency through
various laws.
The latest development on the subject is an
ordinance promulgated by the City of Davao ordering
a stop to aerial spraying of fungicides in the
plantations of Davao. I wrote about this last week
saying that this is unfinished business. The ordinance
was brought to court and one of the issues was
whether conclusive evidence existed to prove that
aerial spraying was the cause of ailments reported as
affecting some people in the area. The Court of
Appeals found no conclusive evidence and saw this
as one of the reasons why the ordinance should be
invalidated. (Another reason was the alleged
impossibility and enormous cost of switching to a
different method of speeding fungicides.)
About the issue of lack of evidence, Fr. Jett Villarin,
S.J., president of Xavier University in Cagayan de
Oro and a scientist whose area of expertise is
environmental matters, made some interesting
observations in a letter he sent me. He says:
“Environmental laws and regulations must abide by
the precautionary principle. This principle simply
holds that uncertainty in the science should not be an
obstacle or excuse to postpone mitigating action. It is
a conservative principle which in the case of scientific
uncertainty places the burden of proof on the polluter,
not on the affected, i.e. the polluter has the
responsibility to prove that what is being spewed into
the environment is not harmful. [The Court of Appeals
had said that the planters had failed to do this.]
Corollary, it is not the responsibility of the affected to
prove that the effluent is poisonous. In view of
scientific uncertainty, the presumption is that the
chemical is harmful.
“Aerial spraying is better deployed in advanced
countries where there is mechanized agriculture and
land buffers are maintained. In the Philippines and
other developing countries, communities live close to
the plants and the land they till.
“The degree of harm depends on the lifetime, human
exposure and concentration levels of the chemical.
These will depend on the state of the atmosphere.
Greater control of the dispersion of chemicals is
possible in stable atmospheres. Tropical
atmospheres are frequently unstable and less
predictable. You only need to ask a fisherman who
knows how locally unpredictable amihan can be
these days.
6

“If I were a banana plant manager, I would seriously
weigh the marginal cost of mitigating the impact of
aerial spraying or the total cost of adopting another
technology alongside the externality costs of possible
medical, rehabilitation, and legal class action in the
future. If three months are not enough to change
systems, I would negotiate for a protracted
withdrawal schedule. Time, like air, can dilute costs.
“If I were a banana farmer, I would try to convince my
amo that people are better than planes. People can
say thank you. Planes can only fly.
“As a priest, I hope that our judges and our
agriculturists see that heaven might be an aerial
place and that God’s bottom line might be different
from theirs.”
Of course, the last two paragraphs are neither
science nor law. But they can be of greater
significance than either science or law, or bananas.
Sounding Board
More on Davao ecology
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 02:08:00 02/09/2009
RECENTLY I received a letter-comment on what I
have written about the Davao aerial spraying
controversy. Since it was not sent as a letter to the
editor, I do not feel at liberty to disclose its
authorship. Nevertheless, I feel free to comment on
some of the points raised.
In one of my columns I wrote that the issue in the
controversy was basically “a conflict between the
right to property and the right to life.” The letter writer
characterized this as unfair and even bordering on
bad faith, stacking the cards before the members of
the high court.
I doubt that the members of the high court will see
the characterization as stacking the cards because I
am sure that the members of the high court do not
have a narrow view of the meaning of the right to life.
The right to life is not just about keeping body and
soul together. It includes the right to a good and
healthy life. This is the whole point of Article II,
Section 16 when it says: “The State shall protect and
advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and
harmony of nature.”
One need not worry that talking about a conflict
between the right to property and the right to life will
warp the minds of magistrates. Magistrates are called
magistrates because they are familiar with
developments in jurisprudence, including
environmental law. I would be unfair to them if I were
to assume that they have not heard about
developments in jurisprudence.
Some of the most eloquent statements on
environmental protection have come from
magistrates. To cite only two examples, the
International Court of Justice said in the Danube Dam
Case: “The protection of the environment is a ... vital
part of contemporary human rights doctrine, for it is a
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
sine qua non for numerous human rights such as the
right to health, and the right to life itself.” Speaking of
environmental protection, US Supreme Court Justice
William Douglas wrote: “A quiet place where yards
are wide, people few, and motor vehicles restricted
are legitimate guidelines in a land use addressed to
family needs ... The police power is not confined to
eliminating filth, stench, and unhealthy places. It is
ample to lay out zones where family values, youth
values, and the blessings of quiet seclusion, and
clean air make the area a sanctuary for people.”
So much about magistrates.
The letter to me also says: “Aerial spraying has been
practiced in the pioneering banana plantations in
Davao City for more than four decades now.
Perhaps, the most eloquent evidence for us is that
there have been no outbreaks or preponderant
incidences of illnesses caused by aerial spraying
over the years.”
But the point is: Must the City of Davao wait for
“outbreaks and preponderant incidences” before it
can be allowed to act? The whole point of the
precautionary principle is that police power must act
before harm happens. The Rio Declaration of 1992,
one of the growing number of examples of “soft law”
on environmental protection, already says: “In order
to protect the environment, the precautionary
approach shall be widely applied by States according
to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental
degradation.”
Is there already a basis for precaution in the situation
of the Davao banana farms? I can only answer this
question with what the Court of Appeals said after its
examination of the evidence presented. The Court
said: “We are skeptical of the foregoing claims on the
seemingly foolproof safety of pesticides or fungicides,
both as chemical substances and in terms of human
exposure to the same, since petitioners-appellant
already admitted that the pesticides or fungicides
they used would prejudice the health of their workers
if manually sprayed.
The admission would sensibly mean that exposure to
such substances, even in the diluted form, poses
danger to the human health.”
Unfortunately four magistrates of the Court of
Appeals do not seem to accept the validity of the
precautionary principle. Hence they are willing to wait
for “outbreaks and preponderant incidences” to
happen.
The letter also faults me for saying that the planters
seem to be concerned only with their workers and not
with the larger community. I based this observation
on my examination of the evidence summarized in
the Court of Appeals decision.
Apparently my reading of the evidence summarized
by the Court of Appeals does not reflect the factual
situation as to intention. As my letter writer says to
me, “A closer reading of our court submissions shows
that to be utterly false. We are equally concerned not
only with the health of our own workers but also the
residents in communities near our plantations and the
7

environment. One’s life is no more important than the
other. Clearly, all our contentions are meant for the
protection of public health in general and the
preservation of the environment that we all share.”
It is not my intention to question the love of neighbor
practiced by planters. I only wish they would express
their love differently.
http://opinion.inquirer.net/inquireropinion/columns/vie
w/20090209-188187/More-on-Davao-ecology
*Sounding Board : Three emergency situations *
* From: "pong" <pong944@xxxxxxxx>
* Date: Mon, 27 Feb 2006 17:00:38 -0800
First posted 04:56am (Mla time) Feb 27, 2006
By Fr. Joaquin G. Bernas, S.J.
Inquirer
*Editor's Note: Published on page A15 of the
February 27, 2006 issue of the
Philippine Daily Inquirer *
IN 2002 NATIONAL SECURITY ADVISER ROILO
Golez set alarm bells ringing when
he came out of a Malacañang conference,
announcing that President
Macapagal-Arroyo was ready to declare a state of
emergency in General
Santos. The announcement conjured up visions of
arbitrary arrests and
indefinite detention. Then, as now, we had not yet
recovered from the
martial law trauma. Hence the alarm bells had to be
doused immediately.
Golez himself clarified that a state of emergency is a
"generic term" which
enables the government to choose from a menu of
options.
Last Friday, when Malacañang first hinted at a
possible declaration of a
national state of emergency, alarm bells erupted. It
again conjured up
visions of arbitrary arrests and indefinite detention.
And a glib Malacañang
spokesperson did not help to assuage fears. Neither
did the excessive zeal
of some minions of the law. The excessive zeal only
continues to threaten
public safety.
What is a state of emergency all about and what
additional powers, if any,
does it give the executive arm?
There are in the Constitution three situations in which
government is called
upon to deal with emergency; but in none of the texts
is emergency defined.
In fact, in the most severe of these situations, dealt
with by Article VII,
Section 18, the word emergency is not even
mentioned. It is simply
described.
Article VII, Section 18 speaks of "lawless violence,
invasion or rebellion"
which challenge "public safety." These are situations
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
which threaten law and
order and national security. They are situations which
call for immediate
action. Clearly they are emergency situations. And it
is the President who
is authorized to make the initial assessment whether
these situations exist.
Moreover, having verified their existence, she is
authorized by the
Constitution to deal with them through a platter of
graduated powers.
The most important is the power to impose martial
law which broadens the
police power of the President. Less in severity is the
power to suspend the
privilege of the writ of habeas corpus which
authorizes the executive to
limit physical liberty. The mildest is the power to call
on the Armed Forces
to come to the aid of the police in the prevention or
suppression of lawless
violence or rebellion. It is this last which President
Arroyo used when she
issued Proclamation 1017. And to all appearances,
her minions are reading it
as a declaration of war.
Does calling on the Armed Forces give the President
additional executive
powers? In substance, no; but it does give her more
vigor in the enforcement
of law and order which is her daily duty anyway. In
the exercise of her law
enforcement power, she can make use of all the legal
instruments available
for law enforcement and within the limits prescribed
by the Constitution.
Calling on the Armed Forces does not authorize her
to cross constitutional
demarcation lines. But the danger of abuse is
significantly enhanced. Now
the iron fist is more and more showing behind the
mask.
Another provision on emergency is Article VI, Section
23(2) which says: "In
times of war or other national emergency, the
Congress may, by law,
authorize the President, for a limited period and
subject to such
restrictions as it may prescribe, to exercise powers
necessary and proper to
carry out a declared national policy."
Here, war is certainly considered a national
emergency situation but it is
not the only emergency situation envisioned. The
provision also covers
emergency situations mentioned by Article VII,
Section 18 as well as
situations created by epidemics, typhoons,
earthquakes or other natural
calamities. But Congress must first agree that a
national emergency exists,
and the extent and the duration of the powers
conferred on the President are
determined by Congress.
The third emergency situation is found in Article XII,
Section 17 which
says: "In times of national emergency, when the
8

public interest so requires,
the State may, during the emergency and under
reasonable terms prescribed by
it, temporarily take over or direct the operation of any
privately owned
public utility or business affected with public interest."
In trying to understand this provision, which among
other things leaves
"national emergency" undefined, it is important to
recall its provenance. It
was born during the martial law regime. You don't find
a similar provision
in the 1935 Constitution. Moreover, the only time it
was used was during
martial law. In fact, this provision got into the 1973
Constitution,
inspired by Marcos' Letter of Instruction (LOI) No. 2,
dated 22 September
1972. This LOI instructed the Secretary of National
Defense to take over
"the management, control and operation of the
Manila Electric Company, the
Philippine Long Distance Telephone Company, the
National Waterworks and
Sewerage Authority, the Philippine National Railways,
the Philippine Air
Lines, Air Manila (and) Filipinas Orient Airways ... for
the successful
prosecution by the Government of its effort to
contain, solve and end the
present national emergency." It was done in the
exercise of martial law
powers and it was among the executive acts which
the Constitutional
Convention wanted ratified through Section 3(2),
Article XVII of the 1973
Constitution.
In my view, therefore, Article XII, Section 17
embodies a martial law power
of the President. It is noteworthy, however, that in
referring to Article
XII, Section 17, Ms Arroyo, in 1017, simply used it as
a springboard for
declaring a national state of emergency; she did not
attempt to exercise the
power embodied in the provision. In fact, she omitted
citing the power that
the provision embodies. But it is a veiled threat which
PNP chief Arturo
Lomibao has unveiled.
========================================
====
G.R. NO. 174153 – RAUL L. LAMBINO AND
ENRICO B. AUMENTADO TOGETHER WITH
6,327,952 REGISTERED VOTERS, petitioners,
versus THE COMMISSION ON ELECTIONS,
respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES
(TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL
RIVERA, RUELO BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC.,
petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
WORKERS ORGANIZATION (PTGWO) AND
VICTORINO F. BALAIS, petitioners-intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE
B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T.
TOLOSA, JR., SUSAN V. OPLE AND CARLOS P.
MEDINA, JR., oppositors-intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-
intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-
intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO,
HEAD, ECUMENICAL BISHOPS FROUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN’S
PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS,LEONARDO SAN JOSE, JOJO
PINEDA, DR. DARBY SANTIAGO, AND DR.
REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA,
ANA THERESA HONTIVEROS-BARAQUEL,
oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), CONRADO F.ESTRELLA, TOMAS C.
TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS AND AMADO GAT INCION,
oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P.
PIMENTEL, JR. AND SENATORS SERGIO R.
OSMENA III, JAMBY A.S. MADRIGAL, LUISA P.
EJERCIRO-ESTRADA, JINGGOY ESTRADA,
ALFREDO S. LIM, AND PANFILO M. LACSON,
oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG
MASANG PILIPINO, oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU
CITY AND CEBU CHAPTER, oppositors-intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA
TANYA KARINA A. LAT, ANTONIO L. SALVADOR
AND RANDALL C. TABAYOYONG, oppostors-
intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED
BY ITS PRESIDENT, MANUEL VILLAR, JR.,
oppositor-intervenor;
G.R. NO. 174299 – MAR-LEN ABIGAIL BINAY,
SOFRONIO UNTALAN, JR. AND RENE A. Q.
SAGUISAG, petitioners, versus COMMISSION ON
ELECTIONS, REPRESENTED BY CHAIRMAN
BENJAMIN S. ABALOS, SR. AND
COMMISSIONERS RESSURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR. ROMEO A.
BRAWNER, RENE V. SARMIENTO AND JOHN DOE
AND PETER DOE, respondents.
9

Promulgat
ed: October
25, 2006
x--------------------------------------------------------------------
---------------------x
CONCURRING OPINION
SANDOVAL–GUTIERREZ, J.:
Vox populi vox Dei -- the voice of the people is the
voice of God. Caution should be exercised in
choosing one’s battlecry, lest it does more harm than
good to one’s cause. In its original context, the
complete version of this Latin phrase means exactly
the opposite of what it is frequently taken to mean. It
originated from a holy man, the monk Alcuin, who
advised Charlemagne, “nec audiendi qui solent
dicere vox populi vox Dei quum tumultuositas vulgi
semper insaniae proxima sit,” meaning, “And those
people should not be listened to who keep on saying,
‘The voice of the people is the voice of God,’ since
the riotousness of the crowd is always very close to
madness.”[1] Perhaps, it is by providence that the
true meaning of the Latin phrase is revealed upon
petitioners and their allies – that they may reflect
upon the sincerity and authenticity of their “people’s
initiative.”
History has been a witness to countless iniquities
committed in the name of God. Wars were waged,
despotism tolerated and oppressions justified – all
these transpired as man boasted of God’s
imprimatur. Today, petitioners and their allies hum
the same rallying call, convincing this Court that the
people’s initiative is the “voice of the people”
and, therefore, the “voice of God.” After a thorough
consideration of the petitions, I have come to realize
that man, with his ingenuity and arrogance, has
perfected the craft of imitating the voice of God. It is
against this kind of genius that the Court must guard
itself.
The facts of the case are undisputed.
In 1996, the Movement for People’s Initiative sought
to exercise the power of initiative under Section 2,
Article XVII of the Constitution which reads:
Section 2. Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum
of the total number of registered voters, of which
every legislative district must be represented by at
least three per centum of the registered voters
therein. No amendment under this section shall be
authorized within five years following the ratification
of this Constitution nor oftener than once every five
years thereafter,
The Congress shall provide for the implementation of
the exercise of this right.
The exercise was thwarted by a petition for
prohibition filed with this Court by Senator Miriam
Defensor Santiago, et al., entitled “Miriam Defensor
Santiago, Alexander Padilla and Maria Isabel Ongpin,
petitioners, v. Commission on Elections (COMELEC),
Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa,
in their capacities as founding members of the
People’s Initiative for Reforms, Modernization and
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Action (PIRMA), respondents.”[2] The case was
docketed as G.R. No. 127325. On March 19, 1997,
this Court rendered its Decision in favor of
petitioners, holding that Republic Act No. 6735 (R.A.
No. 6735), An Act Providing for a System of Initiative
and Referendum and Appropriating Funds Therefor,
is “incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on
amendments to the Constitution is concerned.” A
majority of eight (8) Justices fully concurred with this
ruling, while five (5) subscribed to the opposite view.
One (1) opined that there is no need to rule on the
adequacy of R.A. No. 6735.
On motion for reconsideration, two (2) of the eight (8)
Justices reconsidered their positions. One (1) filed an
inhibition and the other one (1) joined the minority
opinion. As a consequence, of the thirteen (13)
Justices who participated in the deliberation, six (6)
voted in favor of the majority opinion, while the other
six (6) voted in favor of the minority opinion.[3]
A few months thereafter, or on September 23, 1997,
the Court dismissed a similar case, entitled People’s
Initiative for Reform, Modernization and Action
(PIRMA) v. Commission on Elections[4] on the
ground that the COMELEC did not commit grave
abuse of discretion when it dismissed PIRMA’s
Petition for Initiative to Propose Amendments to the
Constitution “it appearing that that it only complied
with the dispositions in the Decision of the Court in
G.R. no. 127325 (Santiago v. COMELEC)
promulgated on March 19, 1997, and its Resolution
of June 10, 1997.” Seven (7) Justices voted that
there was no need to re-examine its ruling, as
regards the issue of the sufficiency of R.A. No. 6735.
Another Justice concurred, but on the different
premise that the case at bar is not the proper vehicle
for such re-examination. Five (5) Justice opined
otherwise.
This time, another group known as Sigaw ng
Bayan, in coordination with the Union of Local
Authorities of the Philippines (ULAP), have gathered
signatures in support of the proposed amendments to
the Constitution, which entail a change in the form of
government from bicameral-presidential to
unicameral-parliamentary, thus:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article
VI shall be amended to read as follows:
Section 1. (1) The legislative and executive powers
shall be vested in a unicameral Parliament which
shall be composed of as many members as may be
provided by law, to be apportioned among the
provinces, representative districts, and cities in
accordance with the number of their respective
inhabitants, with at least three hundred thousand
inhabitants per district, and on the basis of a uniform
and progressive ratio. Each district shall comprise,
as far as practicable, contiguous, compact and
adjacent territory, and each province must have at
least one member.
(2) Each Member of Parliament shall be a natural-
born citizen of the Philippines, at least twenty-five
years old on the day of the election, a resident of his
district for at least one year prior thereto, and shall be
elected by the qualified voters of his district for a term
of five years without limitation as to the number
thereof, except those under the party-list system
10

which shall be provided for by law and whose number
shall be equal to twenty per centum of the total
membership coming from the parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the
1987 Constitution are hereby amended to read, as
follows:
Section 1. There shall be a President who shall be
the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance of
the Cabinet. The Prime Minister shall be elected by a
majority of all the Members of Parliament from
among themselves. He shall be responsible to the
Parliament for the program of government.
C. For the purpose of insuring an orderly
transition from the bicameral-Presidential to a
unicameral-Parliamentary form of government, there
shall be a new Article XVIII, entitled “Transitory
Provisions,” which shall read, as follows:
Section 1. (1) The incumbent President and Vice
President shall serve until the expiration of their term
at noon on the thirtieth day of June 2010 and shall
continue to exercise their powers under the 1987
Constitution unless impeached by a vote of two thirds
of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation
or removal from office of the incumbent President,
the incumbent Vice President shall succeed as
President. In case of death, permanent disability,
resignation or removal from office of both the
incumbent President and Vice President, the interim
Prime Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII as
amended.
Section 2. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article
VI of the 1987 Constitution which shall hereby be
amended and Sections 18 and 24 which shall be
deleted, all other Sections of Article VI are hereby
retained and renumbered sequentially as Section 2,
ad seriatium up to 26, unless they are inconsistent
with the Parliamentary system of government, in
which case, they shall be amended to conform with a
unicameral parliamentary form of government;
provided, however, that any and all references
therein to “Congress,” “Senate,” “House of
Representatives” and “Houses of Congress” shall be
changed to read “Parliament;” that any and all
references therein to “Member(s) of Congress,”
“Senator(s)” or “Member(s) of Parliament” and any
and all references to the “President” and/or “Acting
President” shall be changed to read “Prime Minister.”
Section 3. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the
1987 Constitution which are hereby be amended and
Sections 7, 8, 9, 10, 11 and 12 which are hereby
deleted, all other Sections of Article VII shall be
retained and renumbered sequentially as Section 2,
ad seriatim up to 14, unless they shall be inconsistent
with Section 1 hereof, in which case they shall be
deemed amended so as to conform to a unicameral
Parliamentary System of government; provided,
however, that any and all references therein to
“Congress,” “Senate,” “House of Representatives”
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
and “Houses of Congress” shall be changed to read
“Parliament;” that any and all references therein to
“Member(s) of Congress,” “Senator(s)” or “Member(s)
of the House of Representatives” shall be changed to
read as “Member(s) of Parliament” and any and all
references to the “President” and/or “Acting
President” shall be changed to read “Prime Minister.”
Section 4. (1) There shall exist, upon the ratification
of these amendments, an interim Parliament which
shall continue until the Members of the regular
Parliament shall have been elected and shall have
qualified. It shall be composed of the incumbent
Members of the Senate and the House of
Representatives and the incumbent Members of the
Cabinet who are heads of executive departments.
(2) The incumbent Vice President shall automatically
be a Member of Parliament until noon of the thirtieth
day of June 2010. He shall also be a member of the
cabinet and shall head a ministry. He shall initially
convene the interim Parliament and shall preside
over its sessions for the election of the interim Prime
Minister and until the Speaker shall have been
elected by a majority vote of all the members of the
interim Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall
be Members of Parliament until noon of the thirtieth
day of June 2010.
(4) Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to
propose amendments to, or revisions of, this
Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the
Chief Executive, shall nominate, from among the
members of the interim Parliament, an interim Prime
Minister, who shall be elected by a majority vote of
the members thereof. The interim Prime Minister
shall oversee the various ministries and shall perform
such powers and responsibilities as may be
delegated to him by the incumbent President.”
(2) The interim Parliament shall provide for the
election of the members of Parliament which shall be
synchronized and held simultaneously with the
election of all local government officials. The duty
elected Prime Minister shall continue to exercise and
perform the powers, duties and responsibilities of the
interim Prime Minister until the expiration of the term
of the incumbent President and Vice President.
Sigaw ng Bayan prepared signature sheets, and
written on its upper right hand portion is the abstract
of the proposed amendments, quoted as follows:
Abstract: Do you approve of the amendment of Article
VI and VII of the 1987 Constitution, changing the
form of government from the present bicameral-
presidential to a unicameral-parliamentary system of
government, in order to achieve greater efficiency,
simplicity and economy in government; and providing
an Article XVIII as Transitory Provisions for the
orderly shift from one system to another?
11

On August 25, 2006, Raul L. Lambino and Enrico B.
Aumentado, herein petitioners, filed with the
COMELEC a Petition for Initiative to
Amend the Constitution.[5] Five (5) days
thereafter, they filed an Amended
Petition alleging that they are filing the petition in their
own behalf and together with some 6.3 million
registered voters who have affixed their signatures on
the signature sheets attached thereto. They claimed
that the signatures of registered voters appearing on
the signature sheets, constituting at least twelve per
cent (12%) of all registered voters in the country,
wherein each legislative district is represented by at
least three per cent (3%) of all the registered voters,
were verified by their respective city or municipal
election officers.
Several organizations opposed the petition. [6]
In a Resolution dated August 31, 2006, the
COMELEC denied due course to the petition, citing
as basis this Court’s ruling in Santiago, permanently
enjoining it “from entertaining or taking cognizance of
any petition for initiative on amendments to the
Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of
the system.”
Hence, the present petition for certiorari and
mandamus praying that this Court set aside the
COMELEC Resolution and direct the latter to
comply with Section 4, Article XVII of the Constitution,
which provides:
Sec. 4 x x x
Any amendment under Section 2 hereof shall be valid
when ratified by a majority of the votes cast in a
plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the certification
by the Commission on Elections of the sufficiency of
the petition.
I vote to dismiss the petition of Lambino, et al. in
G.R. No. 174153 and grant the petition of Mar-len
Abigail Binay, et al. in G.R. No. 174299. Here,
petitioners pray that the COMELEC Chairman and
Commissioners be required to show why they should
not be punished for contempt[7] of court for
disregarding the permanent injunction issued by this
Court in Santiago.
I court judges who would not adhere to its rulings, this
Respondent COMELEC did not act with grave abuse
of discretion
Without necessarily brushing aside the other
important issues, I believe the resolution of the
present petition hinges on this singular issue -- did
the COMELEC commit grave abuse of discretion
when it denied Lambino, et al.’s petition for initiative
to amend the Constitution on the basis of this Court’s
Decision in Santiago v. COMELEC?
In other words, regardless of how the other remaining
issues are resolved, still, the ultimate yardstick is the
attendance of “grave abuse of discretion” on the part
of the COMELEC.
Jurisprudence teaches that an act of a court or
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
tribunal may only be considered as committed in
grave abuse of discretion when the same was
performed in a capricious or whimsical exercise of
judgment. The abuse of discretion must be so patent
and gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and
despotic manner by reason of passion or personal
hostility.[8]
The Resolution of respondent COMELEC denying
due course to the petition for initiative on the basis of
a case (Santiago) decided by this Court cannot, in
any way, be characterized as “capricious or
whimsical,” “patent and gross,” or “arbitrary and
despotic.” On the contrary, it was the most prudent
course to take. It must be stressed that in Santiago,
this Court permanently enjoins respondent
COMELEC “from entertaining or taking cognizance of
any petition for initiative on amendments to the
Constitution until a sufficient law shall have been
validly enacted.” It being a fact that Congress has
not enacted a sufficient law, respondent COMELEC
has no alternative but to adhere to Santiago.
Otherwise, it is vulnerable to a citation for contempt.
As succinctly stated by Chief Justice Artemio V.
Panganiban (then Associate Justice) in his Separate
Opinion in the subsequent case of PIRMA vs.
COMELEC:[9]
x x x I cannot fault the Comelec for complying with
the ruling even if it, too, disagreed with said
decision’s ratio decidendi. Respondent Comelec was
directly enjoined by the highest Court of the land. It
had no choice but to obey. Its obedience cannot
constitute grave abuse of discretion. Refusal to act
on the PIRMA petition was the only recourse open to
the Comelec. Any other mode of action would have
constituted defiance of the Court and would have
been struck down as grave abuse of discretion and
contumacious disregard of this Court’s supremacy as
the final arbiter of justiciable controversies.
It need not be emphasized that in our judicial
hierarchy, this Court reigns supreme. All courts,
tribunals and administrative bodies exercising quasi-
judicial functions are obliged to conform to its
pronouncements. It has the last word on what the
law is; it is the final arbiter of any justifiable
controversy. In other words, there is only one
Supreme Court from whose decisions all other courts
should take their bearings.[10] As a warning to lower
Court, in People v. Santos,[11] held:
Now, if a judge of a lower Court feels, in the
fulfillment of his mission of deciding cases, that the
application of a doctrine promulgated by this
Superiority is against his way of reasoning, or against
his conscience, he may state his opinion on the
matter, but rather than disposing of the case in
accordance with his personal views he must first
think that it is his duty to apply the law as interpreted
by the Highest Court of the Land, and that any
deviation from a principle laid down by the latter
would unavoidably cause, as a sequel, unnecessary
inconveniences, delays and expenses to the litigants.
And if despite of what is here said, a Judge still
believes that he cannot follow Our rulings, then he
has no other alternative than to place himself in the
position that he could properly avoid the duty of
12

having to render judgment on the case concerned
(Art. 9, C.C.), and he has only one legal way to do
that.
Clearly, respondent COMELEC did not gravely abuse
its discretion in dismissing the petition of Lambino, et
al. for it merely followed this Court’s ruling in
Santiago.
Significantly, in PIRMA vs. COMELEC,[12] a
unanimous Court implicitly recognized that its ruling
in Santiago is the established doctrine and that the
COMELEC did not commit grave abuse of discretion
in invoking it, thus:
The Court ruled, first, by a unanimous vote, that no
grave abuse of discretion could be attributed to the
public respondent COMELEC in dismissing the
petition filed by PIRMA therein, it appearing that it
only complied with the dispositions of this Court in
G.R. No. 127325 promulgated on March 19, 1997,
and its resolution on June 10, 1997.
Indeed, I cannot characterize as a “grave abuse of
discretion” the COMELEC’s obedience and respect
to the pronouncement of this Court in Santiago.
II
The doctrine of stare decisis bars the re-examination
of Santiago
It cannot be denied that in Santiago, a majority of the
members of this Court or eight (8) Justices (as
against five (5) Justices) concurred in declaring R.A.
No. 6735 an insufficient law. When the motion for
reconsideration was denied via an equally-divided
Court or a 6-6 vote, it does not mean that the
Decision was overturned. It only shows that the
opposite view fails to muster enough votes to modify
or reverse the majority ruling. Therefore, the original
Decision was upheld.[13] In Ortigas and Company
Limited Partnership vs. Velasco,[14] this Court ruled
that the denial of a motion or reconsideration
signifies that the ground relied upon have been
found, upon due deliberation, to be without merit, as
not being of sufficient weight to warrant a
modification of the judgment or final order.
With Santiago being the only impediment to the
instant petition for initiative, petitioners persistently
stress that the doctrine of stare decisis does not bar
its re-examination.
I am not convinced.
The maxim stare decisis et non quieta movere
translates “stand by the decisions and disturb not
what is settled.”[15] As used in our jurisprudence, it
means that “once this Court has laid down a principle
of law as applicable to a certain state of facts, it
would adhere to that principle and apply it to all future
cases in which the facts are substantially the same
as in the earlier controversy.”[16]
There is considerable literature about whether this
doctrine of stare decisis is a good or bad one, but the
doctrine is usually justified by arguments which focus
on the desirability of stability and certainty in the law
and also by notions of justice and fairness. Justice
Benjamin Cardozo in his treatise, The Nature of the
Judicial Process stated:
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
It will not do to decide the same question one way
between one set of litigants and the opposite way
between another. ‘If a group of cases involves the
same point, the parties expect the same decision. It
would be a gross injustice to decide alternate cases
on opposite principles. If a case was decided against
me yesterday when I was a defendant, I shall look for
the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and
wrong in my breast; it would be an infringement,
material and moral, of my rights." Adherence to
precedent must then be the rule rather than the
exception if litigants are to have faith in the even-
handed administration of justice in the courts.[17]
That the doctrine of stare decisis is related to justice
and fairness may be appreciated by considering the
observation of American philosopher William K.
Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there
are two similar individuals in similar circumstances
and one of them is treated better or worse than the
other. In this case, the cry of injustice rightly goes up
against the responsible agent or group; and unless
that agent or group can establish that there is some
relevant dissimilarity after all between the individuals
concerned and their circumstances, he or they will be
guilty as charged.[18]
Although the doctrine of stare decisis does not
prevent re-examining and, if need be, overruling prior
decisions, “It is x x x a fundamental jurisprudential
policy that prior applicable precedent usually must be
followed even though the case, if considered anew,
might be decided differently by the current justices.
This policy x x x ‘is based on the assumption
that certainty, predictability and stability in the law are
the major objectives of the legal system; i.e., that
parties should be able to regulate their conduct and
enter into relationships with reasonable assurance of
the governing rules of law.[19] Accordingly, a party
urging overruling a precedent faces a rightly onerous
task, the difficulty of which is roughly proportional to a
number of factors, including the age of the precedent,
the nature and extent of public and private reliance
on it, and its consistency or inconsistency with other
related rules of law. Here, petitioners failed to
discharge their task.
Santiago v. COMELEC was decided by this Court on
March 19, 1997 or more than nine (9) years ago.
During that span of time, the Filipino people,
specifically the law practitioners, law professors, law
students, the entire judiciary and litigants have
recognized this Court’s Decision as a precedent. In
fact, the Santiago doctrine was applied by this Court
in the subsequent case of PIRMA. Even the
legislature has relied on said Decision, thus, several
bills have been introduced in both Houses of
Congress to cure the deficiency. I cannot fathom
why it should be overturned or set aside merely on
the basis of the petition of Lambino, et al. Indeed,
this Court’s conclusion in Santiago that R.A. No.
6735 is incomplete, inadequate or wanting in
essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned
remains a precedent and must be upheld.
III
The proposed constitutional changes constitute
13

revisions and not mere amendments
Article XVII of the 1987 Constitution lays down the
means for its amendment and revision. Thus:
Section 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-
fourths of all its members; or
(2) A Constitutional Convention.
Section 2. Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum
of the total number of registered votes, of which
every legislative district must be represented by at
least three per centum of the registered voters
therein. x x x. (Emphasis supplied)
At the outset, it must be underscored that initiative
and referendum, as means by which the people can
directly propose changes to the Constitution, were
not provided for in the 1935 and 1973 Constitutions.
Thus, under these two (2) Constitutions, there was no
demand to draw the distinction between an
amendment and a revision, both being governed by a
uniform process. This is not so under our present
Constitution. The distinction between an amendment
and a revision becomes crucial because only
amendments are allowed under the system of
people’s initiative. Revisions are within the exclusive
domain of Congress, upon a vote of three-fourths of
all its members, or of a Constitutional Convention.
The deliberations of the 1986 Constitutional
Commission is explicit that Section 2, Article XVII
covers only amendments, thus:
The sponsor, Commissioner Suarez, is recognized.
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members
of the Commission that pursuant to the mandate
given us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies
the proposed provision governing initiative. This is
now covered by Section 2 of the complete committee
report. With the permission of the Members, may I
quote Section 2:
The people may, after five
years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru
initiative upon petition of at least ten percent of the
registered voters.
This completes the blanks
appearing in the original Committee Report No. 7.
This proposal was suggested on the theory that this
matter of initiative which came about because of the
extraordinary developments this year, has to be
separated from the traditional modes of amending the
Constitution as embodied in Section 1. The
committee members felt that this system of initiative
should be limited to amendments to the Constitution
and should not extend to the revision of the entire
Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Revision.
xxx xxx xxx
MR. MAAMBONG: Madam President, will the
distinguished proponent of the amendment yield to a
few questions?
MR. DAVIDE: With pleasure, Madam
President.
MR. MAAMBONG: My first question, Commissioner
Davide’s proposed amendment on line I refers to
“amendments.” Does it not cover the word “revision”
as defined by Commissioner Padilla when he made
the distinction between the words “amendments” and
“revision?”
MR. DAVIDE: No, it does not, because
“amendments” and “revision” should be covered by
Section 1. So insofar as initiative is concerned, it can
only relate to “amendments” not “revision”
MR. MAAMBONG: Thank you.[20]
Considering that the initiative on the Constitution only
permits amendments, it is imperative to examine
whether petitioners’ proposed changes partake of the
nature of amendments, not revisions.
The petition for initiative filed with the COMELEC by
Lambino, et al. sought to amend the following
provisions of the 1987 Constitution: Sections 1, 2, 3,
4, 5, 6, and 7 of Article VI (The Legislative
Department); Sections 1, 2, 3 and 4 of Article VII
(The Executive Department). It further includes
Article XVIII (Transitory Provisions) for the purpose of
insuring an orderly transition from the bicameral-
presidential to a unicameral-parliamentary form of
government.
Succinctly, the proposals envision a change in the
form of government, from bicameral-presidential to
unicameral-parliamentary; conversion of the present
Congress of the Philippines to an Interim National
Assembly; change in the terms of Members of
Parliament; and the election of a Prime Minister who
shall be vested with executive power.
Petitioners contend that the proposed changes are in
the nature of amendments, hence, within the
coverage of a “people’s initiative.”
I disagree.
The noted constitutionalist, Father Joaquin G.
Bernas, S.J., who was also a member of the 1986
Constitutional Commission, characterized an
amendment and a revision to the Constitution as
follows:
An amendment envisages an alteration of one or a
few specific and separable provisions. The guiding
original intention of an amendment is to improve
specific parts or to add new provisions deemed
necessary to meet new conditions or to suppress
specific portions that may have become obsolete or
that are judged to be dangerous. In revision
however, the guiding original intention and plan
contemplates a re-examination of the entire
document, or of provisions of the document which
have over-all implications for the document to
determine how and to what extent they should be
14

altered.[21]
Obviously, both "revision" and amendment" connote
change; any distinction between the two must be
based upon the degree of change contemplated. In
Kelly v. Laing,[22] the Supreme Court of Michigan
made the following comparison of the two terms:
"Revision" and "amendment" have the common
characteristics of working changes in the charter, and
are sometimes used in exactly the same sense but
there is an essential difference between them.
"Revision" implies a reexamination of the whole law
and a redraft without obligation to maintain the form,
scheme, or structure of the old. As applied to
fundamental law, such as a constitution or charter, it
suggests a convention to examine the whole subject
and to prepare and submit a new instrument whether
the desired changes from the old are few or many.
Amendment implies continuance of the general plan
and purpose of the law, with corrections to better
accomplish its purpose. Basically, revision suggests
fundamental change, while amendment is a
correction of detail.
Although there are some authorities which indicate
that a change in a city's form of government may be
accomplished by a process of "amendment," the
cases which so hold seem to involve statutes which
only distinguish between amendment and totally new
charters.[23] However, as in Maine law, where the
statute authorizing the changes distinguishes
between "charter amendment" and "charter revision,"
it has been held that "(a) change in the form of
government of a home rule city may be made only by
revision of the city charter, not by its amendment."[24]
In summary, it would seem that any major change in
governmental form and scheme would probably be
interpreted as a “revision” and should be achieved
through the more thorough process of deliberation.
Although, at first glance, petitioners’ proposed
changes appear to cover isolated and specific
provisions only, however, upon careful scrutiny, it
becomes clear that the proposed changes will alter
the very structure of our government and create
multifarious ramifications. In other words, the
proposed changes will have a “domino effect” or,
more appropriately, “ripple effect” on other provisions
of the Constitution.
At this juncture, it must be emphasized that the
power reserved to the people to effect changes in the
Constitution includes the power to amend any
section in such a manner that the proposed change,
if approved, would “be complete within itself, relate to
one subject and not substantially affect any other
section or article of the Constitution or require further
amendments to the Constitution to accomplish its
purpose.”[25] This is clearly not the case here.
Firstly, a shift from a presidential to a parliamentary
form of government affects the well-enshrined
doctrine of separation of powers of government,
embodied in our Constitution, by providing for an
Executive, Legislative and Judiciary Branches. In a
Parliamentary form of government, the Executive
Branch is to a certain degree, dependent on the
direct or indirect support of the Parliament, as
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Lizanilla J. Amarga (0928-507-6166)
expressed through a “vote of confidence.” To my
mind, this doctrine of separation of powers is so
interwoven in the fabric of our Constitution, that any
change affecting such doctrine must necessarily be a
revision.
In McFadden vs. Jordan,[26] the California Supreme
Court ruled as follows:
It is thus clear that that a revision of the Constitution
may be accomplished only through ratification by the
people of a revised constitution proposed by a
convention called for that purpose x x x.
Consequently, if the scope of the proposed initiative
measure now before us is so broad that if such
measure became law a substantial revision of our
present state Constitution would be effected, then the
measure may not properly be submitted to the
electorate until and unless it is first agreed upon by a
constitutional convention. x x x.
Secondly, the shift from a bicameral to a unicameral
form of government is not a mere amendment, but is
in actuality a revision, as set forth in Adams v.
Gunter[27]:
The proposal here to amend Section I of Article III of
the 1968 Constitution to provide for a Unicameral
Legislature affects not only many other provisions of
the Constitution but provides for a change in the form
of the legislative branch of government, which has
been in existence in the United States Congress and
in all of the states of the nation, except one, since the
earliest days. It would be difficult to visualize a more
revolutionary change. The concept of a House and a
Senate is basic in the American form of government.
It would not only radically change the whole pattern
of the government in this state and tear apart the
whole fabric of the Constitution, but would even affect
the physical facilities necessary to carry on
government.
Thirdly, the proposed changes, on their face,
signify revisions rather than amendments, especially,
with the inclusion of the following “omnibus
provision”:
C. For the purpose of insuring an orderly transition
from the bicameral-Presidential to a unicameral-
Parliamnetary form of government, there shall be a
new Article XVIII, entitled “Transitory Provisions”
which shall read, as follows:
Section 3. Upon the expiration of the term of the
incumbent President and Vice-President, with the
exceptions of Section 1,2,3 and 4 of Article VII of the
1987 Constitution which are hereby amended x x x
x x x and all other Sections of Article VII shall be
retained and numbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent
with Section 1 hereof, in which case they shall be
deemed amended so as to conform to a unicameral
Parliamentary system of government x x x xxx
.xxx xxx xxx
Section 4. (1) x x x
(3) Within forty-five days from ratification of these
amendments, the Interim Parliament shall convene to
propose amendments to, or revisions of, this
15

Constitution, consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
The above provisions will necessarily result in a
“ripple effect” on the other provisions of the
Constitution to make them conform to the qualities of
unicameral-parliamentary form of government. With
one sweeping stroke, these proposed provisions
automatically revise some provisions of the
Constitution. In McFadden, the same practice was
considered by the Court to be in the nature of
substantial revision, necessitating a constitutional
convention. I quote the pertinent portion of its ruling,
thus:
There is in the measure itself, no attempt to
enumerate the various and many articles and
sections of our present Constitution which would be
affected, replaced or repealed. It purports only to
add one new article but its framers found it necessary
to include the omnibus provision (subdivision (7) of
section XII) that “If any section, subsection, sentence,
clause or phrase of the constitution is in conflict with
any of the provisions of this article, such section,
subsection, sentence, clause, or phrase is to the
extent of such conflict hereby repealed. x x x
Consequently, if the scope of the proposed intitiative
measure now before us is so broad that if such
measure become law a substantial revision of our
present state Constitution would be be effected, then
the measure may not properly be submitted to the
electorate until and unless it is first agreed upon by a
constitutional convention.[28]
Undoubtedly, the changes proposed by the
petitioners are not mere amendments which will only
affect the Articles or Sections sought to be changed.
Rather, they are in the nature of revisions which will
affect considerable portions of the Constitution
resulting in the alteration of our form of government.
The proposed changes cannot be taken in isolation
since these are connected or “interlocked” with the
other provisions of our Constitution. Accordingly, it
has been held that: “If the changes attempted are so
sweeping that it is necessary to include the
provisions interlocking them, then it is plain that the
plan would constitute a recasting of the whole
Constitution and this, we think, it was intended to be
accomplished only by a convention under Section 2
which has not yet been disturbed.”[29]
I therefore conclude that since the proposed changes
partake of the nature of a revision of the Constitution,
then they cannot be the subject of an initiative. On
this matter, Father Bernas expressed this insight:
But why limit initiative and referendum to simple
amendments? The answer, which one can easily
glean from the rather long deliberation on initiative
and referendum in the 1986 Constitutional
Commission, is practicality. In other words, who is to
formulate the revision or how is it to be formulated?
Revision, as concretely being proposed now, is
nothing less than a rebuilding of the Philippine
constitutional structure. Who were involved in
formulating the structure? What debates ensued?
What records are there for future use in interpreting
the provisions which may be found to be unclear?
In a deliberative body like Congress or a
Constitutional Convention, decisions are reached
after much purifying debate. And while the
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Lizanilla J. Amarga (0928-507-6166)
deliberations proceed, the public has the opportunity
to get involved. It is only after the work of an
authorized body has been completed that it is
presented to the electorate for final judgment.
Careful debate is important because the electorate
tends to accept what is presented to it even sight
unseen.[30]
IV
R.A. No. 6735 is insufficient to implement the
People’s initiative
Section 2, Article XVII of the 1987 Constitution reads:
Section 2. Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum
of the total number of registered voters, of which
every legislative district must be represented by at
least three per centum of the registered voters
therein. No amendment under this section shall be
authorized within five years following the ratification
of this Constitution nor oftener than once every five
years thereafter,
The Congress shall provide for the implementation of
the exercise of this right.
On its face, Section 2 is not a self-executory
provision. This means that an enabling law is
imperative for its implementation. Thus, Congress
enacted R.A. No. 6735 in order to breathe life into
this constitutional provision. However, as previously
narrated, this Court struck the law in Santiago for
being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on
amendments to the Constitution is concerned.
The passage of time has done nothing to
change the applicability of R.A. No. 6735. Congress
neither amended it nor passed a new law to supply
its deficiencies.
Notwithstanding so, this Court is being
persuaded to take a 360-degree turn, enumerating
three (3) justifications why R.A. No. 6735 must be
considered a sufficient law, thus:
1) The text of R.A. No. 6735 is replete with
references to the right of people to initiate changes to
the Constitution;
2) The legislative history of R.A. No. 6735 reveals the
clear intent of the lawmakers to use it as instrument
to implement the people’s initiative; and
3) The sponsorship speeches by the authors of R.A.
No. 6735 demonstrate the legislative intent to use it
as instrument to implement people’s initiative.
I regret to say that the foregoing justifications are
wanting.
A thorough reading of R.A. No. 6735 leads to the
conclusion that it covers only initiatives on national
and local legislation. Its references to initiatives on
the Constitution are few, isolated and misplaced.
16

Unlike in the initiatives on national and local
legislation, where R.A. No. 6735 provides a detailed,
logical, and exhaustive enumeration on their
implementation,[31] however, as regards initiative on
the Constitution, the law merely:
(a) mentions the word “Constitution” in Section
2;[32]
(b) defines “initiative on the Constitution” and
includes it in the enumeration of the three systems of
initiative in Section 3;[33]
(c) speaks of “plebiscite” as the process by which
the proposition in an initiative on the Constitution may
be approved or rejected by the people;[34]
(d) reiterates the constitutional requirements as to
the number of voters who should sign the petition;[35]
and
(e) provides the date for the effectivity of the
approved proposition.[36]
In other words, R.A. No. 6735 does not specify the
procedure how initiative on the Constitution may be
accomplished. This is not the enabling law
contemplated by the Constitution. As pointed out by
oppositor-intervenor Alternative Law Groups Inc.,
since the promulgation of the Decision in Santiago,
various bills have been introduced in both Houses of
Congress providing for a complete and adequate
process for people’s initiative, such as:
· Names, signatures and addresses of
petitioners who shall be registered voters;
· A statement of the provision of the Constitution
or any part thereof sought to be amended and the
proposed amendment;
· The manner of initiation - in a congressional
district through a petition by any individual, group,
political party or coalition with members in the
congressional district;
· The language used: the petition should be
printed in English and translated in the local
language;
· Signature stations to be provided for;
· Provisions pertaining to the need and manner
of posting, that is, after the signatures shall have
been verified by the Commission, the verified
signatures shall be posted for at least thirty days in
the respective municipal and city halls where the
signatures were obtained;
· Provisions pertaining to protests allowed any
protest as to the authenticity of the signatures to be
filed with the COMELEC and decided within sixty (60)
days from the filing of said protest.
None of the above necessary details is provided by
R.A. No. 6735, thus, demonstrating its
incompleteness and inadequacy.
V therein “as representatives” of those 6.3 million
Petitioners are not Proper Parties to
File the Petition for Initiative
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
vi
The Petition for Initiative Filed with the COMELEC
Does not Comply with Section 2, Article XVII of the
Constitution and R.A. No. 6735
I shall discuss the above issues together since they
are interrelated and inseparable. The determination
of whether petitioners are proper parties to file the
petition for initiative in behalf of the alleged 6.3 million
voters will require an examination of whether they
have complied with the provisions of Section 2,
Article XVII of the Constitution.
To reiterate, Section 2, Article XVII of the Constitution
provides:
Section 2. Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum
of the total number of registered voters, of which
every legislative district must be represented by at
least three per centum of the registered voters
therein. No amendment under this section shall be
authorized within five years following the ratification
of this Constitution nor oftener than once every five
years thereafter.
The Congress shall provide for the implementation of
the exercise of this right. (Underscoring supplied)
The mandate of the above constitutional provisions is
definite and categorical. For a people’s initiative to
prosper, the following requisites must be present:
1. It is “the people” themselves who must
“directly propose” “amendments” to the Constitution;
2. The proposed amendments must be
contained in “a petition of at least twelve per centum
of the total number of registered voters;” and
3. The required minimum of 12% of the
total number of registered voters “must be
represented by at least three per centum of the
registered voters” of “every legislative district.”
In this case, however, the above requisites are not
present.
The petition for initiative was filed with the COMELEC
by petitioners Lambino and Aumentado, two
registered voters. As shown in the
“Verification/Certification with Affidavit of Non-Forum
Shopping” contained in their petition, they alleged
under oath that they have caused the preparation of
the petition in their personal capacity as registered
voters “and as representatives” of the supposed 6.3
million registered voters. This goes to show that the
questioned petition was not initiated directly by the
6.3 million people who allegedly comprised at least
12% of the total number of registered voters, as
required by Section 2. Moreover, nowhere in the
petition itself could be found the signatures of the 6.3
million registered voters. Only the signatures of
petitioners Lambino and Aumentado were affixed
people. Certainly, that is not the petition for people’s
initiative contemplated by the Constitution.
Petitioners Lambino and Aumentado have no
authority whatsoever to file the petition “as
17

representatives” of the alleged 6.3 million registered
voters. Such act of representation is constitutionally
proscribed. To repeat, Section 2 strictly requires that
amendments to the Constitution shall be “directly
proposed by the people through initiative upon a
petition of at least twelve per centum of the total
number of registered voters.” Obviously, the phrase
“directly proposed by the people” excludes any
person acting as representative or agent of the 12%
of the total number of registered voters. The
Constitution has bestowed upon the people the right
to directly propose amendments to the Constitution.
Such right cannot be usurped by anyone under the
guise of being the people’s representative. Simply
put, Section 2 does not recognize acts of
representation. For it is only “the people”
(comprising the minimum of 12% of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of
the registered voters therein) who are the proper
parties to initiate a petition proposing amendments to
the Constitution. Verily, the petition filed with the
COMELEC by herein petitioners Lambino and
Aumentado is not a people’s initiative. Necessarily, it
must fail.
Cororarilly, the plea that this Court should “hear” and
“heed” “the people’s voice” is baseless and
misleading. There is no people’s voice to be heard
and heeded as this petition for initiative is not truly
theirs, but only of petitioners Lambino and
Aumentado and their allies.
VII
The issues at bar are not political questions.
Lambino and Aumentado, petitioners in G.R.
No. 174153, vehemently argue that: (1) “[t]he validity
of the exercise of the right of the sovereign people to
amend the Constitution and their will, as expressed
by the fact that over six million registered voters
indicated their support of the Petition for initiative is a
purely political question;” and (2) “[t]he power to
propose amendments to the Constitution is a right
explicitly bestowed upon the sovereign people.
Hence, the determination by the people to exercise
their right to propose amendments under the system
of initiative is a sovereign act and falls squarely within
the ambit of a political question.”
The “political question doctrine” was first
enunciated by the US Supreme Court in Luther v.
Borden.[37] Faced with the difficult question of
whether the Supreme Court was the appropriate
institution to define the substantive content of
republicanism, the US Supreme Court, speaking thru
Mr. Justice Roger B. Taney, concluded that “the
sovereignty in every State resides in the people, as to
how and whether they exercised it, was under the
circumstances of the case, a political question to be
settled by the political power.” In other words, the
responsibility of settling certain constitutional
questions was left to the legislative and executive
branches of the government.
The Luther case arose from the so-called “Dorr
Rebellion” in the State of Rhode Island. Due to
increased migration brought about by the Industrial
Revolution, the urban population of Rhode Island
increased. However, under the 1663 Royal Charter
which served as the State Constitution, voting rights
were largely limited to residents of the rural districts.
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
This severe mal-apportionment of suffrage rights led
to the “Dorr Rebellion.” Despairing of obtaining
remedies for their disenfranchisement from the state
government, suffrage reformers invoked their rights
under the American Declaration of Independence to
“alter or abolish” the government and to institute a
new one. The reformers proceeded to call for and
hold an extralegal constitutional convention, drafted a
new State Constitution, submitted the document for
popular ratification, and held elections under it. The
State government, however, refused to cede power,
leading to an anomalous situation in that for a few
months in 1842, there were two opposing state
governments contending for legitimacy and
possession of state of offices.
The Rhode Island militia, under the authority of
martial law, entered and searched the house of
Martin Luther, a Dorr supporter. He brought suit
against Luther Borden, a militiaman. Before the US
Supreme Court, Luther’s counsel argued that since
the State’s archaic Constitution prevented a fair and
peaceful address of grievances through democratic
processes, the people of Rhode Island had instead
chosen to exercise their inherent right in popular
sovereignty of replacing what they saw as an
oppressive government. The US Supreme Court
deemed the controversy as non-justiciable and
inappropriate for judicial resolution.
In Colgrove v. Green,[38] Mr. Justice Felix
Frankfurter, coined the phrase “political thicket” to
describe situations where Federal courts should not
intervene in political questions which they have
neither the competence nor the commission to
decide. In Colgrove, the US Supreme Court, with a
narrow 4-3 vote branded the apportionment of
legislative districts in Illinois “as a political question
and that the invalidation of the districts might, in
requiring statewide elections, create an evil greater
than that sought to be remedied.”
While this Court has adopted the use of
Frankfurter’s “political thicket,” nonetheless, it has
sought to come up with a definition of the term
“political question.” Thus, in Vera v. Avelino,[39] this
Court ruled that properly, political questions are
“those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity
or in regard to which full discretionary authority has
been delegated to the legislative or executive branch
of the government.” In Tañada and Macapagal v.
Cuenco,[40] the Court held that the term political
question connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. It is
concerned with issues dependent upon the wisdom,
not legality, of a particular measure.
In Aquino v. Enrile,[41] this Court adopted the
following guidelines laid down in Baker v. Carr[42] in
determining whether a question before it is political,
rather than judicial in nature, to wit:
1) there is a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or
2) there is a lack of judicially discoverable and
manageable standards for resolving it; or
3) there is the sheer impossibility of deciding the
matter without an initial policy determination of a kind
18

clearly for non-judicial discretion; or
4) there is the sheer impossibility of the Court’s
undertaking an independent resolution without
expressing lack of respect due the coordinate
branches of government; or
5) there is an unusual need for unquestioning
adherence to a political decision already made; or
6) there exists the potentiality of embarrassment
arising from multifarious pronouncements by various
departments on one question.
None of the foregoing standards is present in the
issues raised before this Court. Accordingly, the
issues are justiciable. What is at stake here is the
legality and not the wisdom of the act complained of.
Moreover, even assuming arguendo that the issues
raised before this Court are political in nature, it is not
precluded from resolving them under its expanded
jurisdiction conferred upon it by Section 1, Article VIII
of the Constitution, following Daza v. Singson.[43] As
pointed out in Marcos v. Manglapus,[44] the present
Constitution limits resort to the political question
doctrine and broadens the scope of judicial power
which the Court, under previous charters, would have
normally and ordinarily left to the political
departments to decide.
CONCLUSION
In fine, considering the political scenario in our
country today, it is my view that the so-called people’s
initiative to amend our Constitution from bicameral-
presidential to unicameral-parliamentary is actually
not an initiative of the people, but an initiative of
some of our politicians. It has not been shown by
petitioners, during the oral arguments in this case,
that the 6.3 million registered voters who affixed their
signatures understood what they signed. In fact,
petitioners admitted that the Constitutional provisions
sought to be amended and the proposed
amendments were not explained to all those
registered voters. Indeed, there will be no means of
knowing, to the point of judicial certainty, whether
they really understood what petitioners and their
group asked them to sign.
Let us not repeat the mistake committed by this Court
in Javellana v. The Executive Secretary.[45] The
Court then ruled that “This being the vote of the
majority, there is no further judicial obstacle to the
new Constitution being considered in force and
effect,” although it had notice that the Constitution
proposed by the 1971 Constitutional Convention was
not validly ratified by the people in accordance with
the 1935 Constitution. The Court concluded, among
others, that the viva voce voting in the Citizens’
Assemblies “was and is null and void ab initio.” That
was during martial law when perhaps majority of the
justices were scared of the dictator. Luckily at
present, we are not under a martial law regime.
There is, therefore, no reason why this Court should
allow itself to be used as a legitimizing authority by
the so-called people’s initiative for those who want to
perpetuate themselves in power.
At this point, I can say without fear that there is
nothing wrong with our present government structure.
Consequent1y, we must not change it. America has
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
a presidential type of government. Yet, it thrives
ideally and has become a super power. It is then
safe to conclude that what we should change are
some of the people running the government, NOT the
SYSTEM.
According to petitioners, the proposed amendment
would effect a more efficient, more economical and
more responsive government.
Is there hope that a new breed of politicians, more
qualified and capable, may be elected as members
and leaders of the unicameral-parliament? Or will the
present members of the Lower House continue to
hold their respective positions with limitless terms?
Will the new government be more responsive to the
needs of the poor and the marginalized? Will it be
able to provide homes for the homeless, food for the
hungry, jobs for the jobless and protection for the
weak?
This is a defining moment in our history. The issue
posed before us is crucial with transcendental
significance. And history will judge us on how we
resolve this issue – shall we allow the revision of our
Constitution, of which we are duty bound to guard
and revere, on the basis of a doubtful people’s
initiative?
Amending the Constitution involving a change of
government system or structure is a herculean task
affecting the entire Filipino people and the future
generations. Let us, therefore, entrust this duty to
more knowledgeable people elected as members of a
Constitutional Convention.
Yes, the voice of the people is the voice of God. But
under the circumstances in this case, the voice of
God is not audible.
WHEREFORE, I vote to DISMISS the petition in G.R.
No. 174153 and to GRANT the petition in G.R. No.
174299.
[2] G.R. No. 127325, March 19, 1997, 270 SCRA
106.
[3] Resolution dated June 10, 1997, G.R. No.
127325.
[4] G.R. No. 129754, September 23, 1997.
Joining PIRMA as petitioners were its founding
members, spouses Alberto Pedrosa and Carmen
Pedrosa.
[5] Entitled “In the Matter of Proposing
Amendments to the 1987 Constitution through a
People’s Initiative: A Shift from a Bicameral
Presidential to a Unicameral Parliamentary
Government by Amending Articles VI and VII; and
Providing Transitory Provisions for the Orderly Shift
from the Presidential to the Parliamentary System.”
[6] Among them ONEVOICE, Inc., Christian
S. Monsod, Rene B. Azurin, Manuel L. Quezon III,
Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P.
Medina, Jr., Alternative Law Groups, Inc., Senate
Minority Leader Aquilino Q. Pimentel, Jr., and
Senators Sergio Osmeña III, Jamby A.S. Madrigal,
Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-
19

Estrada, and Jinggoy Estrada, Representatives
Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana
Theresia Hontiveros-Baraquel, Bayan, Kilusang
Mayo Uno, Ecumenical Bishops Forum, Migrante,
Gabriela, Gabriela Women’s Party, Anakbayan,
League of Filipino Students, Leonardo San Jose, Jojo
Pineda, Drs. Darby Santiago and Reginald Pamugas,
and Attys. Pete Quirino-Quadra, Jose Anselmo I.
Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat,
Antonio L. Salvador, and Randall C. Tabayoyong.
[7] “Grounds for contempt
3. From the time the so-called People’s
Initiative (hereafter PI) now subject of Lambino v.
Comelec, was initiated, respondents did nothing to
stop what was clearly lawless, and even arguably
winked at, as it were, if not condoned and allowed,
the waste and misuse of its personnel, time, facilities
and resources on an enterprise that had no legal
basis and in fact was permanently enjoined by this
Honorable Court in 1997. Seemingly mesmerized, it
is time to disenthrall them.
3.1. For instance, undersigned counsel
happened to be in the Senate on August 29, 2006 (on
other business) when respondent Chair sought to be
stopped by the body from commenting on PI out of
prudential considerations, could not be restrained.
On contentious issues, he volunteered that Sigaw ng
Bayan would not cheat in Makati as it was the
opposition territory and that the fact that out of 43,405
signatures, only 7,186 were found authentic in one
Makati District, to him, showed the “efficiency” of
Comelec personnel. He could not appreciate 1) that
Sigaw had no choice but to get the constitutionality-
required 3% in every district, [Const., Art. VII, Sec. 2]
friendly or otherwise, including administration critics’
turfs, and 2) that falsus in 36,319 (93.30%) falsus in
omnibus, in an exercise that could never be free,
orderly, honest and credible, another constitutional
requirement. [Nothing has been heard about probing
and prosecuting the falsifiers.]
3.2. It was excessively obvious to
undersigned and other observers that respondent
Chairman, straining at the leash, was lawyering for
Sigaw ng Bayan in the Senate! It was discomfiting
that he would gloss over the seeming wholesale
falsification of 96.30% of the signatures in an
exercise with no credibility! Even had he been
asked, he should have pled to be excused from
answering as the matter could come up before the
Comelec for an official collegial position (different
from conceding that it is enjoined).
x x x
x x x x x x
4. Respondents Commissioners Borra and
Romeo A. Brawner, for their part, even issued widely-
publicized written directives to the field, [Annex C, as
to Commissioner Brawner; that as to Commissioner
Borra will follow.] while the Commission itself was
trying to be careful not to be explicit in what it was
abetting implicitly, in hypocritical defiance of the
injunction of 1997.
[8] Intestate Estate of Carmen de Luna v.
Intermediate Appellate Court, G.R. No. 72424,
February 13, 1989, 170 SCRA 246.
[9] Supra.
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
[10] Development Bank of the Philippines v. NLRC,
March 1, 1995, 242 SCRA 59; Albert v. Court of First
Instance of Manila (Branch VI), L-26364, May 29,
1968, 23 SCRA 948.
[11] 56 O.G. 3546 cited in Albert v. Court of First
Instance of Manila (Branch VI), id.
[13] Separate Opinion of Justice Ricardo J.
Francisco, G.R. No. 129754, September 23, 1997.
[14] G.R. No. 109645, March 4, 1996, 254 SCRA
234.
[15] Philippine National Bank v. Palma, G.R. No.
157279, August 9, 2005, 466 CSRA 307, citing
Moreno, Philippine Law Dictionary (1988), 3rd ed.
(citing Santiago v. Valenzuela, 78 Phil. 397, [1947]).
[16] Id., citing Dela Cruz v. Court of Appeals, G.R.
No. 126183, March 25, 1999, 305 SCRA 303, citing
Government v. Jalandoni, No. 837-R, August 30,
1947, 44 O.G. 1840.
[17] Benjamin N. Cardozo, The Nature of the
Judicial Process (New Haven and London: Yale
University Press, 1921), pp. 33-34.
[18] William K. Frankena, Ethics, 2nd ed.
(Englewood Cliffs, N.J.: Prentice Hall Inc.,) 1973, p.
49.
[19] Moradi-Shalal v. Fireman’s Fund Ins.
Companies (1988) 46 Cal.3d 287, 296.
[20] July 9, 1986. Records of the Constitutional
Commission, No. 26.
[21] Bernas, THE 1987 CONSTITUTION OF THE
PHILIPPINES: A COMMENTARY, 1996 Ed., p. 1161.
[22] 242 N. W. 891 259 Mich 212.
[23] State v. Orange [Tex. x. Civ. App.] 300 SW 2d
705, People v. Perkins 137, p. 55.
[24] City of Midland v. Arbury 38 Mich. App. 771,
197 N.W. 2d 134.
[25] Adams v. Gunter Fla, 238 So. 2d 824.
[26] 196 P.2d 787.
[27] Adams v. Gunter Fla. 238 So.2d 824.
[28] Mc Fadden v. Jordan, supra.
[29] Rivera-Cruz v. Gray, 104 So.2d 501, p. 505
(Fla. 1958).
[30] Joaquin Bernas, Sounding Board:
AMENDMENT OR REVISION, Philippine Daily
Inquirer, September 25, 2006.
[31] See Sections 8-12 for national initiative and
referendum, and sections 13-19 for local initiative and
referendum.
20

[32] Section 2. Statement of Policy. – The power of
the people under a system of initiative and
referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this
Act is hereby affirmed, recognized and guaranteed.
[33] Section 3. Definition of terms.-
xxx
a.1. Initiative on the Constitution which
refers to a petition proposing amendments to the
Constitution;
xxx
[34] See Section 3(e).
[35] Section 5 (b) – A petition for an initiative on the
1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters
as signatories, of which every legislative district must
be represented by at least three per centum (3%) of
the registered voters therein. Initiative on the
Constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.
xxx
[36] Section 9 (b) – The proposition in an initiative
on the Constitution approved by a majority of the
votes cast in the plebiscite shall become effective as
to the day of the plebiscite.
[37] 7 How (48 US) 1 (1849).
[38] 328 US 549 (1946).
[39] 77 Phil. 192 (1946).
[40] 103 Phi. 1051 (1957).
[41] G.R. No. 35546, September 17, 1974, 50
SCRA 559.
==========================
Ancestral domain vs regalian doctrine (2)
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 20:46:00 09/29/2008
Filed Under: Constitution, indigenous people,
Construction & Property
(Continued)
Last week I concluded with the question whether
ancestral domain and regalian doctrine can stand
together. I believe they can.
The 1935 Constitution said: “All agricultural, timber,
and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all
forces of potential energy and other natural resources
of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
shall be limited to citizens of the Philippines or to
corporations or associations at least sixty per centum
of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or
concession at the time of the inauguration of the
Government established under this Constitution...”
This was the regalian doctrine translated into
republican terms. It meant that anyone claiming
ownership of any portion of the natural resources
must be able to produce title granted by the Republic
or the prior sovereign.
Although this provision had the effect of perpetuating
the doctrine of the Novisima Recopilacion, its main
thrust was the nationalist objective of keeping natural
resources in the hands of Filipinos. Thus the
provision was no obstacle to the wave of lowland
Filipinos of Luzon and the Visayas from seeking
green pastures in the wide spaces of Mindanao.
Through the instrumentality of the Public Land Act
and the Torrens system large tracts of Mindanao
lands passed to the hands of lowland Filipinos who in
turn transformed them into rich productive
enterprises. Meantime, too, the national government
ate up some of the land for national development
projects. Inevitably these movements displaced
several indigenous peoples from their lands.
The 1973 Constitution adopted the same regalian
doctrine. But among its General Provisions was one
which said: “The State shall consider the customs,
traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of
State policies.” It marked the entry of “cultural
minorities” into constitutional discourse. It was a
recognition of the constitutional right of tribal Filipinos
to preserve their way of life.
The provision gave birth to some government
devices, among them the much criticized Panamin,
designed to protect the welfare of indigenous
communities. Significantly, President Marcos
promulgated PD No. 410, the Ancestral Lands
Decree, which provided a mechanism for members of
cultural communities to obtain land occupancy
certificates. The mechanism was meant to provide a
way of resolving land problems involving tribal
Filipinos.
These measures, however, were not enough to
protect natives from the incursions not only by
government but also by large corporations. The
scholarly literature on this subject is rich with details
not only about eviction of indigenous peoples from
their land but also about the reduction and
destruction of their natural environment.
The 1987 Constitution has also retained the regalian
doctrine. “All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources
are owned by the State. With the exception of
agricultural lands, all other natural resources shall not
be alienated. The exploration, development and
utilization of natural resources shall be under the full
control and supervision of the State....”
Scattered among various articles of the Constitution,
however, are provisions assuring the protection of the
rights of indigenous cultural communities. They range
21

from a general statement about recognizing and
promoting the rights of cultural communities, to
assuring them a place in the party-list system, to
applying the principles of agrarian reform when
dealing with the rights of indigenous communities to
their ancestral lands. But the most important of these
is Article XII, Section 5 which says: “The State,
subject to the provisions of this Constitution and
national development policies and programs, shall
protect the rights of indigenous cultural communities
to their ancestral lands to ensure their economic,
social, and cultural well-being. The Congress may
provide for the applicability of customary laws
governing property rights or relations in determining
the ownership and extent of ancestral domain.” This
is a constitutional recognition of the rights of tribal
Filipinos to their ancestral domains and ancestral
lands.
This guarantee eventually led to the passage of the
Indigenous Peoples Rights Act whose
constitutionality was upheld in a divided decision of
the Court eight years ago. It is in this Act that
ancestral domain and ancestral lands are defined.
Senator Flavier was the principal author of this Act.
The thrust of the law was well expressed in his
sponsorship speech:
“The Indigenous Cultural Communities, including the
Bangsa Moro, have long suffered from the
dominance and neglect of government controlled by
the majority. Massive migration of their Christian
brothers to their homeland shrunk their territory and
many of the tribal Filipinos were pushed to the
hinterlands. Resisting the intrusion, dispossessed of
their ancestral land and with the massive exploitation
of their natural resources by the elite among the
migrant population, they became marginalized. And
the government has been an indispensable party to
this insidious conspiracy against the Indigenous
Cultural Communities (ICCs). It organized and
supported the resettlement of people to their
ancestral land, which was massive during the
Commonwealth and early years of the Philippine
Republic. Pursuant to the Regalian Doctrine first
introduced to our system by Spain through the Royal
Decree of 13 February 1894 or the Maura Law, the
government passed laws to legitimize the wholesale
landgrabbing and provide for easy titling or grant of
lands to migrant homesteaders within the traditional
areas of the ICCs.”
(To be continued)
Tuesday, March 15, 2005
State Terrorism
From: SOUNDING BOARD
By: JOAQUIN G. BERNAS, SJ
We should not forget that states can perpetrate more
horrifying terror. Remember Samar, Dresden,
Hiroshima.
Our real task in the coming period is to devise a
pattern of relationships which will permit us to
maintain this position ofdisparity [US military-
economic supremacy]. . . To do so, we will have to
dispense with all sentimentality and daydreaming. . . .
We should cease to talk about vague and. . . unreal
objectives such as human rights, the raising of the
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
living standards, and democratization.
Theday is not far off when we are going to have to
deal in straight power concepts. The less we are then
hampered by idealistic slogans, the better." -- George
Kennan, Director of Policy Planning, US
StateDepartment, 1948.
Terrorism is a favorite topic especially after 9/11 when
more than 3,000 innocent lives perished in a flash in
New York. It was terrorism perpetrated by nonstate
agents. We should not forget that states can
perpetrate more horrifying terror. The other night I
watched the The Fog of War, an award-winning
documentary where former US secretary of defense
Robert McNamara was the main actor. It was a
reminder of the horrors of World War II.
Early in the documentary McNamara narrated how in
1962 the UnitedStates was within a hair-breadth
away from nuclear war where one ofthe options was
the complete annihilation of Cuba. Fortunately,
diplomacy prevented it. But we need to recall horrors
that had happened before.
Remember Dresden. In February 1945, within less
than 14 hours Dresden, a defenseless German city,
was scorched by military bombers killing about a third
of its inhabitants, possibly half-a-million innocent
lives.
Remember Tokyo and other Japanese cities.
Thousands of people perished under rain of
firebombs dropped by US bombers. This was even
beforeNagasaki and Hiroshima. When Hiroshima and
Nagasaki's time came150,000 died instantly and
thousands more by the slow, horrible death from
radiation.
The US won the war. Japan surrendered. Germany,
too, was defeated.
Military leaders of Germany and Japan were tried for
war crimes. ButRobert McNamara himself observed
that, if the United States had lost the war, American
leaders would have been tried for war crimes!
It was happening even before World War II. In 1899
Filipinos fought American soldiers equipped with
superior firepower. The death toll among Filipinos
was enormous, and some provinces had horror
stories to tell. Samar, for instance, had a General
Smith.
A historian reports the testimony of a Marine Major:
"The major said that General Smith instructed [a
soldier] to kill and burn, and said that the more he
killed and burned the better pleased he would be;
that it was no time to take prisoners, and that he was
to make Samar a howling wilderness.
"Major Waller asked General Smith to define the age
limit for killing, and he replied 'Everything over ten."
Mark Twain commented: "We have pacified some
thousands of the islanders and buried them;
destroyed their fields; burned their villages, and
turned their widows and orphans out-of-doors;
furnished heartbreak by exile to some dozens of
disagreeable patriots; subjugated the remaining 10
millions by benevolent assimilation, which is the
pious new name of the musket; we have acquired
22

property in the 300 concubines and other slaves of
our business partner, the Sultan of Sulu, and hoisted
our protecting flag over that swag. " And so, by these
Providences of God -- and the phrase is the
government's, not mine -- we are a World Power."
Is terrorism just brutal, unthinking violence? "No.
Experts agree thatthere is almost always a strategy
behind terrorist actions. Whether it takes the form of
bombings, shootings, hijackings, or assassinations,
terrorism is neither random, spontaneous, nor blind; it
is a deliberate use of violence against civilians for
political or religious ends." And states can be the
more dangerous terrorists. ###
Posted by AUPWU Manila at 8:07 AM 0 comments
Links to this post
================================
Courts and the economy
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 02:37:00 04/23/2007
Filed Under: Economy, Business & Finance
MANILA, Philippines - It is not unusual for dissatisfied
litigants to accuse the courts, particularly the
Supreme Court, of intruding into the domain of
economic policymakers. True it is that there have
been instances, even in the recent past, when the
Supreme Court could justifiably be seen as having
gone beyond the scope of its constitutional authority.
But the prevailing position of the Supreme Court now
is that it will steer clear of economic policy decisions
except in instances when there has been a clear
violation of law.
The boundaries between judicial power and political
power, however, are not always easily determinable.
For this reason the Philippine Judicial Academy, with
the assistance of the British Embassy, saw fit to
organize a roundtable discussion among jurists,
economists and academicians. A good portion of the
discussion expectedly touched on the constitutional
parameters of the subject.
In his opening statement, Chief Justice Reynato
Puno pointed out that the Constitution does not
prescribe a religion, and neither does it prescribe an
economic doctrine. These two non-prescriptions are
good points with which to start a discussion.
There is an important difference between the two
non-prescriptions. The non-prescription of religion is
total. As the non-establishment clause has been
understood to mean, the state may not favor one
religion, or prefer one religion over others, or even
support or adopt all religions indiscriminately. There
are, of course, various nuances to the non-
establishment clause but, in general, the prohibition
is total.
The non-prescription of any economic doctrine,
however, is not a prohibition but a liberation. The
state is free to adopt any economic theory. But as
with all freedoms, this freedom is not total. It is
subject to a combination of broad guidelines and firm
rules. It is in this area that problems arise.
Firm rules, such as the nationalistic 60-40 rule on the
operation of public utilities or the 60-40 rule on the
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
acquisition of land and the exploration and
development of natural resources can be applied by
the courts with some degree of facility once they
have been well understood. The courts do not have
to grapple with cost and benefit factors. They simply
have to see what the law is, verify the proportion and
apply the law. They are not at liberty not to apply it.
It is different, however, when it comes to the broad
guidelines.
The principal constitutional guidelines for the
development of the economy are found in the article
on the National Economy and Natural Resources.
The very first article contains three general guidelines
addressed to Congress and the executive. These are
(1) a more equitable distribution of opportunities,
income, and wealth; (2) a sustained increase in the
amount of goods and services produced by the
nation for the benefit of the people; and (3) an
expanding productivity as the key to raising the
quality of life for all, especially the underprivileged.
Added to these is the command that the State should
"give highest priority to the enactment of measures
that protect and enhance the right of all the people to
human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the
common good." And, of course, there is the
requirement that laws must serve the general
welfare.
These are rules and guidelines whose
implementation is the responsibility primarily of the
legislative and executive departments. Laws arise out
of these. And when laws begin to operate, inevitably
there are "winners" and "losers." Constitutional
challenges can arise either against the law itself or
against the manner in which the law is being
implemented by the executive department. It is then
that the courts find themselves burdened with the
task of deciding whether there has been a violation of
the Constitution or an actionable breach of
procedure.
But since the constitutional guidelines are just that -
guidelines - and not clear-cut commands, and the
implementing statute itself might give to the executive
department a measure of flexibility in implementation,
the courts do not have an easy handle for deciding
challenges. They can only rely on the requirements of
due process. But due process is a rule of
reasonableness and in economic matters, even
experts in the field can disagree about what is
reasonable or unreasonable.
There may be instances also when the Court might
ask whether there has been "grave abuse of
discretion amounting to lack or excess of jurisdiction"
and, therefore, enough ground to invalidate
legislative or executive action. But the Supreme
Court itself has narrowed the meaning of this type of
abuse to mean "such capricious and whimsical
exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be patent
and gross as to amount to an evasion of positive duty
or a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic
manner by reason of passion or hostility."
It is for these reasons that the Supreme Court may
23

choose to defer to the judgment and discretion of
economic policymakers, namely Congress and the
executive. The Court, after all, is also aware that all it
has is "judicial power" and there can be no exercise
of judicial power when there is no applicable law. But
when there is and it has clearly been violated, the
Court will not and should not hesitate to strike down
legislative or executive action.
================================
Of amnesty and libel
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 01:45:00 03/26/2007
Filed Under: Politics, Government, Media
MANILA, Philippines – Why write about amnesty and
libel?
The answer is simple: they have been front-page
material in the past few days.
For a while some people were suggesting that Rep.
Satur Ocampo might use as his defense the amnesty
granted by President Corazon Aquino and later by
President Fidel Ramos. But it now turns out that
Representative Ocampo did not avail of the amnesty;
not only that, he would not even want to avail of it.
Why so?
The answer lies in the hazards of amnesty as
jurisprudence has explained it. Amnesty is defined as
the grant of general pardon to a class of political
offenders. Under the Constitution, it may be granted
by the executive only with the concurrence of the
legislature. It is therefore both an executive and a
legislative act. However, unlike pardon which can be
granted only after final conviction, amnesty may be
granted either after conviction or even before the
charges are filed. It may thus be seen as more
generous than pardon.
But there is a hitch which makes people hesitate to
avail of amnesty. To avail of amnesty, one must admit
guilt. The accepted doctrine prevailing today was first
pronounced by Justice Pedro Tuason, who said: “The
writer of this decision maintained in previous
decisions, contrary to the view of the majority of the
Court, that it is rank inconsistency for one to justify an
act, or seek forgiveness for an act, which according
to him, he has not committed; that amnesty
presupposes the commission of a crime and that
when an accused says he has not committed a crime
he cannot have any use for amnesty; that where an
amnesty proclamation imposes certain conditions, as
in this case, it is incumbent upon the accused to
prove the existence of such conditions; that a petition
for amnesty is in the nature of a plea of confession
and avoidance, under which principle the pleader has
to confess the allegations against him before he can
be allowed to set out matters which, if true, would
defeat the action.”
This is now the prevailing doctrine. Quite obviously,
Ocampo has refused to admit guilt.
What about libel? First Gentleman Mike Arroyo has
been firing libel suits left and right. What are the
chances that he can win the cases he has filed? We
must look at this in the light of what jurisprudence has
in recent years accepted. The impression I have is
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
that it is very difficult to win libel cases, especially for
public officials and public figures.
Libel is usually understood as a malicious and public,
defamatory imputation against a person. To win a
libel case, malice must be shown. The general rule,
moreover, is that every defamatory imputation is
presumed to be malicious. Thus the accuser does not
have to prove malice. It is the accused who must
prove that there was no malice in the imputation. But
over the years, a new doctrine developed: if the
object of the defamatory imputation is a public officer
or a “public person,” such person must prove “actual
malice” if he is to win a libel suit. And actual malice is
defined as defamatory imputation that is made with
knowledge that it is false or with reckless disregard of
whether it is false or not.
Public officers have the burden of proving “actual
malice” against their defamers. One reason given for
shifting the burden to them is that they have the
resources to contest the accusation against them.
You would therefore think that this doctrine would
apply only to relatively high ranking officers. But our
Supreme Court has applied the doctrine even to a
lowly barangay captain!
What about “public figures”? Why include them in the
new rule if they are private persons? The answer that
has been given is this: “If a matter is a subject of
public interest, it cannot suddenly become less so
merely because a private individual is involved, or
because in some sense the individual did not
‘voluntarily’ choose to become involved. The public’s
primary interest is in the event; the public focus is on
the conduct of the participant and the content, effect,
and significance of the conduct, not the participant’s
prior anonymity or notoriety.” And again: “We honor
the commitment to robust debate on public issues . . .
by extending constitutional protection to all
discussion and communication involving matters of
public or general concern, without regard to whether
the persons involved are famous or anonymous.”
But who are public figures? Does Mike Arroyo come
under the category of a public figure? The court will
have to decide this before it begins to look into the
evidence.
Jurisprudence distinguishes between the “pervasive
public figure” and the “limited public figure.” The
pervasive public figure is one whose name has
become a household word. It is thought that such a
personality has access to media to rebut defamatory
attacks and has voluntarily thrust himself into the
public spotlight.
The limited public figure, however, is not easily
identified. One view that is followed sets down two
requirements. First, the defamatory imputation must
involve public controversy. Thus, for instance,
imputation of adultery is not a matter of public
controversy unless, perhaps, it is related to public
office.
Second, the person’s involvement in the controversy
must be voluntary.
In my view, Mike Arroyo will easily qualify as a
“pervasive public figure” and will bear the burden of
proving actual malice on the part of those he has
accused. His lawyers will be kept busy.
24

========================================
=====
A letter to the Holy Father
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 01:44:00 03/19/2007
Filed Under: Churches (organisations), Politics,
Government
MANILA, Philippines - No, I did not communicate with
the Holy Father. Rather, I have been furnished a copy
of a letter asking His Holiness to educate the
members of the hierarchy about their duty not to get
mixed up in political matters. I will not mention the
names of the purported letter-writers because I did
not bother to verify the signatures. Besides, my
interest is not in the authorship but in the content of
the letter.
The letter implicitly admits what I have always
maintained, namely that there is nothing in the
Constitution to prevent bishops and priests from
getting involved in politics. The free exercise clause
and the prohibition of religious tests for the exercise
of political rights take care of that. As to separation of
Church and State, the constitutional command is
addressed to the State and not to the church. Thus,
the writers have appealed instead to the authority of
the Pope over bishops and priests.
In other words, you might call it a form of "forum
shopping" which lawyers are not allowed to do in
secular litigation. But forum shopping is strategically
appropriate in the case of the letter- writers because
the letter is dated Jan. 10, 2007, or weeks after the
Oct. 25, 2006 and Nov. 21, 2006 Supreme Court
pronouncements junking the initiative and
referendum petition for the revision of the
Constitution. If you can't win it in one forum, try
another one! The Ginebra team would call that the
"Never Say Die!" spirit.
What did the letter say? It said that the current reform
drive involves a shift from presidential to
parliamentary, electoral and political reforms, more
autonomy leading to federalism, and economic
liberalization. All these may have been contained in
the report of the Preparatory Committee formed by
President Macapagal-Arroyo, but even the House of
Representatives simply chose to "archive" it, which is
a polite way of filing it in a circular cabinet.
In fact, however, the main drive has been for a shift
from a presidential to a parliamentary form of
government - first, through initiative and referendum
(which the Supreme Court declared to be not
constitutionally allowed); and second, through a
unilateral act of the House of Representatives (which
the House itself abandoned as absurd). The letter
wanted the Holy Father to tell the bishops not to
oppose a movement which the Court itself had
declared illegal and which the House had abandoned
in the face of opposition by the Senate. Do you really
expect the Holy Father to pay attention to such a
letter?
If you look at the draft of the House and the draft for
initiative and referendum, the only reforms included in
them are the shift from presidential to parliamentary
and some political reform leading to the extension of
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
the term of the current power holders and the
strengthening of the President.
To bolster the thrust of the letter, the writers quote
from the recent Encyclical of Benedict XVI, "Deus est
Caritas." But what they quote is supportive of the
action taken by the hierarchy: "A just society must be
the achievement of politics, not of the Church. Yet the
promotion of justice through efforts to bring openness
of mind and will to the demands of the common good
is something which concerns the Church deeply."
There you have it. What the Catholic Bishops'
Conference of the Philippines has been doing
through its pronouncements and exhortations is "to
bring about openness of mind and will" of all,
including those of the letter-writers.
The letter-writers next quote "Deus est Caritas" again
as saying that "the formation of structures is not
directly the duty of the Church . . . . The Church has
an indirect duty . . . to contribute to the purification of
reason and to the reawakening of the moral forces
without which just structures are neither established
nor prove effective in the long run." This is what the
CBCP has been doing: performing its duty to
contribute to the purification of reason and to the
reawakening of the moral forces without which just
structures are neither established nor prove effective
in the long run.
The writers also quote a passage from "The Social
Doctrine of the Church" (I am not sure which
document this is) which says that the "Church has no
particular area of competence concerning the
structures of the political community." True enough;
but, aside from the fact that quite a number of
churchmen have placed their own competence in the
social and political fields of learning in the service of
the Church, we cannot overlook the duty of the
Church "to contribute to the purification of reason and
to the reawakening of the moral forces without which
just structures are neither established nor prove
effective in the long run."
"Gaudium et Spes," the pastoral letter of Vatican II on
"The Role of the Church in the Modern World" puts it
clearly: "Christ, to be sure, gave His Church no
proper mission in the political, economic or social
order. The purpose which He set before her is a
religious one. But out of this religious mission itself
comes a function, a light and an energy which can
serve to structure and consolidate the human
community according to the divine law. As a matter of
fact, when circumstances of time and place produce
the need, she can and indeed should initiate activities
on behalf of all men, especially those designed for
the needy, such as the works of mercy and similar
undertakings." We are in those "circumstances of
time and place" which cry for action by the Church.
Do not expect Benedict XVI to revise "Gaudium et
Spes" on the basis of a forum-shopping letter.
========================================
=========
A time of testing
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 01:25:00 02/26/2007
Filed Under: Elections, Religion & Belief
25

THREE THINGS COME TOGETHER AT THIS period
of our history. We are celebrating the rebirth of
democracy as we remember Edsa; we are confronted
with the task of choosing the men and women who
will lead the nation through the next few years; we
are entering the Lenten season so dear to our
people. The three have something in common: they
all signify a period of testing.
Ash Wednesday, which ushered in Lent, was not a
holy day of obligation. But churches last Wednesday
were packed. There is something appealing about
the symbolism of the cross drawn on the forehead. It
draws people to reflect on the meaning of life and to
think of what happens after we turn to dust,
especially now when we, as a people, are being put
to the test.
Yesterday, the first Sunday of Lent, the gospel
reading was also about a period of testing. It was
about the 40 days and 40 nights our Lord spent in the
desert wilderness where He was put to the test by the
devil. It can serve as a framework for how Christians
might reflect on what is happening to us today.
The desert wilderness where Jesus was put to the
test was not a romantic place. It was a place replete
with danger. It was inhabited by wild animals. It was
the refuge of bandits and the discards of society. And
it was believed to be the abode of demons. You and I,
therefore, might be tempted to compare it with the
political situation in the Philippines 21 years after
Edsa. But that might be an exaggeration.
The important point I would emphasize, however, is
that the desert was a place of testing for Israel, and
Israel failed the test. Jesus chose it as his place of
testing, and He, unlike Israel, passed the test.
Twenty-one years ago we were tested and we did not
fail. Once again we are being tested. This year’s
election can be make or break for us. How can we
make sure that, like Jesus in the desert, we will pass
the test? Let us look at how Jesus passed his triple
test.
The first thing to notice is that, according to the
gospel narrative, Jesus had emerged from the river
Jordan filled with the Holy Spirit. He entered the
battle arena armed with the Spirit of God. What this
tells us is that, if we hope to pass our test, we too
should arm ourselves with the Spirit of God. The
struggle we are going through is not just against
human and material obstacles but also against
principalities and powers stronger than our unaided
selves.
The first temptation Our Lord confronted was a
temptation to rely on bread. Bread, of course,
assuages hunger. The temptation to bread recalls the
hunger of the Israelites in the wilderness and how
God sent down manna. The devil tempted Jesus to
perform a repeat of the same. “If you are the Son of
God, turn these stones into bread.” It was a
temptation to rely on material instruments, on wealth,
on technology, a temptation we also are prone to.
Our Lord’s answer was simple: “Not by bread alone
does man live but by every word that comes from the
mouth of God.” Wealth alone and progress and
technology will not save us unless we also obey the
word of God, unless we are faithful to His
commandments.
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
The second temptation was for Jesus to worship the
devil in exchange for power. “All these things will I
give you if you but fall down and worship.” Jesus
asks us today: What price will you pay to be able to
win power, to win an election, to regain control of
government and its resources, or to win a case in
court? Are you willing to sell your soul? Election time
is a period when the devil is out to buy souls. Our
Lord’s answer to the temptation was: “You shall
worship the Lord, your God, and Him alone shall you
serve.” Is your soul for sale? Is your candidate selling
his or her soul?
The third temptation was an attempt to force the hand
of God, a temptation to showmanship. “If you are the
Son of God, throw yourself down from here, for it is
written: He will command His angels concerning you,
to guard you, and with their hands they will support
you, lest you dash your foot against a stone.” Jesus
said to him in reply, “Scripture also says, you shall
not put the Lord, your God, to the test.”
Three times the devil tried; three times he failed. But
he has not given up. The testing continues among us.
The same temptations go on—to value bread more
than the commandments, to worship the devil in
exchange for power, to force the hand of God.
The goals of a temptation may appear admirable—
feed the hungry, bring the world under the control of
good, trust in God’s power to protect us—but we
often choose to accomplish them through means that
are not admirable.
We begin the Lenten season by being reminded that
we cannot accomplish victory on our own. We will
probably be planning to do things for Lent. But Lent is
not so much a time for doing things as much as a
time for allowing God to transform us. And in
transforming ourselves we transform the nation. As
the reading last Ash Wednesday said, “Even now,
says the Lord, return to me with your whole heart.”
And as the responsorial Psalm today says: “Be with
me, Lord, when I am in trouble.” It is only God’s
power and mercy that can extricate us from the
wilderness we are in. Let us allow God to play a lead
role in our personal and national lives.
===================================
University rankings
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 03:13:00 02/19/2007
Filed Under: Education
I UNDERSTAND THAT SOME ATENEO PARENTS,
and prospective Ateneo parents, were disturbed or
discouraged by the announcement that the Ateneo
did not sail with flying colors in the recently released
THES-QS World University Rankings. The rankings,
as a matter of fact, have been a hot topic among
university personnel in various parts of the world, and
many questions have been asked about the
methodology used. In an effort to explain the
rankings and to answer many questions, Ben Sowter,
QS head for research, and Mandy Mok, QS regional
director for Asia Pacific, met with various Philippine
university officials, both jointly and separately. This is
what we found.
26

The ranking of the different universities is based on
four key themes: Graduate Employability,
International Commitment, Teaching Quality, and
Research Quality. What did we find?
First, the good news—for both students and parents.
Among the Philippine universities, the Ateneo ranked
highest in Graduate Employability. This was drawn
from Recruiter Review based on the responses of
recruiters in the QS database and media and
university referrals. The other criteria are simple
inputs of quantitative data that QS was able to gather
either directly from the universities, from the website,
or from previous year’s data.
The highest rank in Recruiter Review means that
from the point of view of the world outside, Ateneo
graduates are the most sought-after in terms of
employment.
Not so encouraging are the results of Peer Review,
worth 40 percent. But how does Peer Review work?
The score for Peer Review was determined by the
responses of active academics. Each academic was
asked to select the 30 best universities in their
subject area (Arts and Humanities, Engineering and
IT, Life Sciences and Biomedicine, Natural Sciences,
Social Sciences) in their chosen region (North
America, Europe, Asia, etc.). There were equal
weights given to the five subject areas.
The Peer Review, which has the biggest weight,
provides some real challenges that must be
understood and overcome. One of these is the
absence of Ateneo from the ranking in the Arts and
Humanities, an area traditionally identified as a
strong point of Ateneo. This suggests that Ateneo will
have to work to be better known by colleagues
abroad. However, there are also questions about the
accuracy of the survey. Only about 1 percent of those
surveyed returned the questionnaire, yet this
accounts for 40 percent of the score.
The Ateneo also ranked low in the area of student-
faculty ratio. But there is serious question about the
comparability and accuracy of the data used and how
they were sourced.
There is more good news, however. In the area of
International Faculty and International Students, the
Ateneo ranked highest, thus placing the Ateneo on
top in internationalization. But this comes as no
surprise considering that Ateneo has been a pioneer
in providing students with a global perspective
through its Junior Term Abroad in 39 institutions in 11
countries (Australia, China, Japan, Singapore, South
Korea, Taiwan, France, Spain, Germany, Norway,
and the United States), and through its China and
Europe study tours.
Indeed, the rankings pose questions that need further
study and introspection. One question that has
already been repeatedly raised even by other top
universities is how seriously these rankings should be
taken, although they have been used for recruitment
purposes and bragging rights. While they provide
some measure of comparison, how do they relate to
the mission and goals of the university? To what
extent should measures be taken to improve the
rankings and at what cost?
Clearly, the survey hardly delves into what Ateneo
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
does best: the total formation of students. There is
nothing in the instrument that shows how a university
deliberately puts systems in place so that its students
may become nurturing persons, life-long learners and
heroic leaders, and that there have been positive
outcomes reflected in its graduates. This formation
for leadership is what makes Ateneo the highly
regarded university that it has been for almost 150
years.
In an earlier article of Ateneo president Fr.
Bienvenido F. Nebres, S.J., he points out: “Rankings
in the Times survey are important because they
measure how the world perceives us. But just as a
person has to take what people think of them in the
context of their own values and priorities, we, too,
have to reflect on these perceptions and measures
within our own view of our vision and mission. Thus,
while we will work on strengthening our research and
publications in ISI journals … we need to do this in a
way that does not move us away from our
vision/mission and our traditional strengths:
leadership formation and contribution to national
development. These have to continue to be our
priorities as a Jesuit university committed to the
service of faith and the promotion of justice; and as a
university in a Philippines whose greatest challenge
is overcoming poverty and national development.”
P.S. To my colleagues in the law school: Law did not
seem to figure in the survey at all. But secure as we
are of our place in the Philippine legal firmament, I
am sure there is a lot more we can do.
====================
The dismissal epidemic
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 03:03:00 02/12/2007
Filed Under: Local authorities, Government
MANILA, Philippines -- The dismissals and
suspensions of local elective officials seem to be
reaching the level of an epidemic. And, of all things, I
am being blamed by some because long, long ago
the Ombudsman was my student. But those were the
days before the 1987 Constitution, and Republic Act
6770 (the Ombudsman Act) and RA 7160 (the Local
Government Code). Besides, it is not unusual for a
disciple to surpass the master. At any rate, what
seems to be the score?
One cry being raised against the Ombudsman is that,
according to the Constitution, the power of the
Ombudsman is merely investigatory and
recommendatory. Copious quotations from the
“Record of the 1986 Constitutional Commission” are
cited in defense of that proposition. Indeed, it was for
this reason that the Ombudsman was referred to by
the late Commissioner “Soc” Rodrigo as a “toothless
tiger.” But, as I recall, it was in response to that
criticism that the Constitutional Commission decided
to give to the Ombudsman the power to “perform
such functions or duties as may be provided by law.”
As Commissioner Christian Monsod put it during the
deliberations of the 1986 Constitutional Commission,
“With respect to the argument that he is a toothless
animal, we would like to say that we are promoting
the concept in its form at the present, but we are also
saying that he can exercise such powers and
functions as may be provided by law in accordance
27

with the direction of the thinking of Commissioner
Rodrigo. We do not think that at this time we should
prescribe this, but we leave it up to Congress at
some future time if it feels that it may need to
designate what powers the Ombudsman would need
in order that he be more effective. This is not
foreclosed.”
Thus it was that the Ombudsman Act of 1989
expanded the powers of the Ombudsman. Sec. 21 of
the Act gives to the Ombudsman disciplinary
authority over elective and administrative officials,
and Sec. 25 gives the Ombudsman the power to
suspend or dismiss such officials. Are these
constitutional?
This issue has been taken up by the Supreme Court
in a number of cases involving administrative
officials, and the power has been upheld in those
cases. As early as 1995, the Court already
recognized that the powers enumerated in the
Constitution are not exclusive; and that the framers of
the Constitution had given Congress the leeway to
prescribe, by subsequent legislation, additional
powers to the Ombudsman.
But is the power of the Ombudsman to remove public
officials still applicable to elective officials? I believe
that this has to be looked into very carefully. When
Congress grants a power to an official, it does not
mean that the power can never be taken away. There
is no such thing as an irrepealable law. Any law may
be repealed by subsequent law either expressly or
impliedly.
Has the power to dismiss elective officials given by
the Ombudsman Act of 1989 been repealed?
The powers given by the 1989 Ombudsman Act to
the Ombudsman by Sec. 25 include the power to
impose penalties ranging from suspension to
dismissal. In 1991, however, in the implementation of
the guarantee of local autonomy for local
governments, Congress passed the Local
Government Code. Sec. 60 enumerates grounds for
disciplinary action against elective officials. The last
paragraph of Sec. 60 says: “An elective local official
may be removed from office on grounds enumerated
above by order of the proper court.” What effect does
this have on the older provision found in the
Ombudsman Act? Can the two provisions live
together?
I have not found any Supreme Court case involving
an attempted removal of an elective official by the
Ombudsman. But in 1996, the Court already ruled
that even “the Office of the President is without any
power to remove elective officials, since such power
is exclusively vested in the proper courts as
expressly provided in the last paragraph of Sec. 60
[of the Local Government Code].” Again in 2002,
although obiter, the Court said: “It is beyond cavil,
therefore, that the power to remove erring elective
local officials from service is lodged exclusively with
the courts . . . The law on suspension or removal of
elective officials must be strictly construed and
applied, and the authority on whom such power of
suspension or removal is vested must exercise it with
utmost good faith, for what is involved is not just an
ordinary public official but one chosen by the people
through the exercise of their constitutional right of
suffrage.”
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Although obiter, it is significant because the
conclusion was drawn from the “Congressional
Record” on the debates about the Local Government
Code. The important point made is that the power to
remove elective officials has been made exclusively
judicial. The Ombudsman does not belong to the
judiciary.
There is, moreover, another limitation on the power of
the Ombudsman pointed out by the Court even in
those cases where the Ombudsman has jurisdiction.
The law says that where the penalty imposed is
censure or reprimand, or suspension of not more
than one month, or a fine not equivalent to one-
month salary, the decision is final and unappealable.
All other penalties imposed by the Ombudsman are
not final and unappealable and are not immediately
executory. And execution must await decision on the
appealed case. This limitation has been affirmed in at
least two 2006 decisions.
I trust that the Court decisions so far cited should be
enough for those responsible for the epidemic to
arrest its spread.
========================================
An afternoon at Holy Angel University
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 21:54:00 02/04/2007
Filed Under: Education, University
MANILA, Philippines--HOW IMPORTANT are private
schools to the life and progress of the nation? I am
not referring to what are sometimes called "elite
schools," which are generally affordable only to the
relatively wealthy. I am rather referring to colleges
and universities (especially in the provinces)--schools
which are within the reach of the middle class or even
poorer Filipinos.
The incoming president of the Holy Angel University,
Dr. Arlyn Sicangco-Villanueva, DBA, who was
installed as the institution's eighth president,
answered my question in an eloquently convincing
and warm manner.
But first, what was I doing in Holy Angel U? The
simple but fortuitous answer is: its new president
happens to be the spouse of my boss, Dean Cesar
Villanueva of the Ateneo Law School and the mother
of one of the coeds in my Constitutional Law class.
Hence, I merited an invitation.
But I also discovered another link with Holy Angel U. I
found out that the co-founders of the university were
Don Juan Nepomuceno, patriarch of the
Nepomucenos who are an Ateneo family; and Fr.
Pedro Santos, who later became Bishop Pedro
Santos and co-founder and important benefactor of
the Ateneo de Naga where I finished high school. I
was told that the facades of Ateneo de Naga and
Holy Angel U are similar due to the fact that Bishop
Santos engaged the same architect for both. (The
bishop was residing next door to the Ateneo de Naga
when I was in high school. We used to throw stones
at the bishop's dogs which roamed the Ateneo
campus. But an elderly Jesuit did us better. After
downing one of the bishop's dogs with a hunting rifle,
he said, "Sorry, I did not see the episcopal red cap on
28

the dog's head." So much about episcopal dogs.)
The bishop had the foresight to see the need for
quality but affordable schools, a need now
emphasized in the current Constitution. Holy Angel U
grew out of that foresight. It was started as "an
academy envisioned to offer quality but affordable
Catholic education to boys and girls of what was then
the municipality of Angeles." Seventy-five years later,
the new president could say in her inaugural speech
that the seed planted years before had "grown into a
giant tree, with a student population of 15,000 and a
strong work force of 800, the biggest school in the
region and the biggest employer in the city."
Number and size, of course, are not everything. What
is more important is meaning. What has the school
meant for Angeles City and its environs? We answer
this question in the context of a nation which, unlike
our Asian neighbors, does not financially support
private schools; and not only that, it even taxes them
and imposes restrictions on their capacity for growth.
Holy Angel U, like other similarly situated schools,
has to rely only on the tuition and fees that students
can afford to pay and on the generosity of
benefactors who appreciate the importance of the
mission of schools. And as the new president put it,
"In all those years [that I studied in and served the
school], I shared in the lives of countless young men
and women, mostly Kapampangans, who sought the
Filipino dream, not of fabulous fortune or fame, but
rather of a decent life, with a good job and a
wonderful family, with time to worship God and enjoy
with relatives and friends, the blessings bestowed,
the small crises allowed, and the few surprises given
during this brief moment we call 'life on earth.'"
And what has Holy Angel U achieved? President
Villanueva summed it up neatly: "The Holy Angel
diploma is a respected credential, whether it be
among the manufacturing and production companies
for its engineers, in the top auditing firms for its
accountants, banking institutions for its finance and
management graduates, educational institutions for
its teachers, hotel and service industries for its HRM
graduates, IT companies for its computer technology,
and soon in hospitals for its nursing graduates. But
more importantly, the Holy Angel diploma is displayed
proudly by owners and proprietors of many small and
medium businesses, of entrepreneurs whose daily
toils contribute to the prosperity of our country, for
Holy Angel has always been a school that offers good
education to the poor and emerging middle class."
Holy Angel, like many in the area, suffered from the
Pinatubo eruption. But it rebounded with energy and
enthusiasm and has since won autonomous status
from the government, Level 3 accreditation from
Paascu for almost all its programs, and recognition
as a Center of Excellence. Holy Angel U takes
particular pride in its Kapampangan Center, whose
mission is to preserve and enhance the
Kapampangan culture.
It is common knowledge that the nation is undergoing
a severe crisis in education. Rescue efforts are being
made both by the government and by the private
sector. In the midst of all this, it is good to know that
there are schools like Holy Angel throughout the
country, striving in the face of adversity to deliver
quality but affordable education to Filipinos whom
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
public education has not served. We wish Dr. Arlyn
Sicangco-Villanueva, and other private school
presidents similarly situated, all success in their
efforts to provide oases of learning for millions of
Filipinos.
================================
Watching Saddam die
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 01:50:00 01/29/2007
Filed Under: Laws, Belief (Faith), Punishment
MANILA, Philippines--The execution of Saddam
Hussein should bring us to reflect anew on the place
of death penalty in our legal system. President
Macapagal-Arroyo has vowed that, during her watch,
no one will be executed. But the death penalty law is
still in our books.
As Judge Munir Haddad told BBC, the execution of
Saddam was not a pretty sight. The man was defiant
to the end, but those around behaved like beasts
themselves. Video shots, stolen with a cell phone
camera, recorded an angry exchange between
onlookers hurling insults at the prisoner and the
prisoner himself turning around to mock his
tormentors.
The event took place in a compound known to
Americans as Camp Justice, in the Baghdad suburb
of Khadimiya where Saddam himself had authorized
the execution of many dissidents. The man was in a
white shirt and black suit and overcoat, and he was
surrounded by men in black ski masks. He had a
Koran in his hands.
This is how Judge Haddad described what happened
after the sentence was read:
“One of the guards present asked Saddam Hussein
whether he was afraid of dying. Saddam’s reply was
that ‘I spent my whole life fighting the infidels and the
intruders,’ and another guard asked him: ‘Why did
you destroy Iraq and destroy us? You starved us and
you allowed the Americans to occupy us.’ His reply
was, ‘I destroyed the invaders and the Persians, and
I destroyed the enemies of Iraq ... and I turned Iraq
from poverty into wealth.’ He said: ‘This is my end ...
this is the end of my life. But I started my life as a
fighter and as a political militant—so death does not
frighten me.’”
After his handcuffs were removed, he was brought to
the top of the gallows, his hands tied behind his back
and his feet shackled. According to Judge Haddad
his last words were: “God is great!” “Down with the
Americans!” “Down with the invaders!” “We’re going
to heaven and our enemies will rot in hell!”
The trap door swallowed him before he could finish
his last sentence: “There is no God but Allah, and I
testify that Mohammad is the messenger of God.
There is no God but Allah and I testify that
Mohammad ...”
Judge Haddad concluded: “He was killed instantly
and I witnessed the impact of the rope, and it was a
horrible sight.”
Of course, we try to humanize executions. Death by
29

lethal injection is supposed to be a painless transition
to the afterlife. But the heinousness of it is not just in
the manner of carrying out the sentence but in the
very assault on the human dignity of the person.
In the coming months, our legislators will almost
certainly be faced with the challenge of reviewing our
law on the subject and with the question of whether
the death penalty should be totally removed from our
books. Those of them who favor the abolition of the
death penalty will be looking for arguments. Of
course, there are “secular” reasons for rejecting the
death penalty. But I hope that legislators who oppose
the death penalty will not be embarrassed to borrow
arguments from the teaching of the Christian faith on
the value of human life. Even the “secular” reasons
are ultimately rooted in our religious belief, in the
inalienable dignity of the human person.
Valuable guidance can be found in the moral
teachings of the Church on the subject. The
Catechism of the Catholic Church teaches that the
only time Church teaching permits the use of the
death penalty is when the “execution of the offender
is an absolute necessity,” because it is “the only
possible way of defending human lives against the
unjust aggressor.” The teaching goes on to add that
such situations are “practically nonexistent.”
I cannot think of a possible situation which would
make the death penalty the only recourse against
aggressors in the Philippines.
Was the execution of Saddam perhaps an example of
a situation where the death penalty was an absolute
necessity as the only way of defending human lives
against unjust aggressors? It might be argued that in
the situation of Iraq, it was perfectly possible for a
group of insurgents to free Saddam and then restore
him to power, especially after a withdrawal of US
forces from the country. This possibility, however, has
not prevented world leaders, including the Catholic
Church, from judging that the execution was a tragic
cause for sadness.
It is clear that the execution of Saddam has not put
an end to the ongoing violence and killings in Iraq.
The aftermath of the execution, together with other
events in Iraq, has forced the authorities behind the
occupying forces to look for alternative ways of
solving the Iraq problem. There is a growing
recognition that the continuing disorder in Iraq is the
product largely of the manner in which the belligerent
occupation is being conducted. Among the issues
now being looked into are those that touch on the
teaching of the 1907 Hague Regulations and of the
1949 Geneva Convention, and the apparent
departures from these by the belligerent occupants.
It is hard to see the execution of Saddam as the path
to peace. Nor will executions solve our criminal
problems here. As Vatican put it: “The killing of the
guilty is not the way to rebuild justice and reconcile
society, rather there is a risk of nourishing the spirit of
revenge and inciting fresh violence.”
--------------------------------
Davide’s ad interim appointment
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 01:06:00 01/22/2007
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Filed Under: Politics
THERE REALLY IS NOTHING UNUSUAL ABOUT ad
interim appointments. And there should be nothing
unusual about the ad interim appointment of former
Chief Justice Hilario Davide as ambassador to the
United Nations. But, I guess, what is significant is that
Davide presided at the impeachment trial of
President Joseph Estrada and administered the oath
of office on Gloria Macapagal-Arroyo as successor to
President Estrada. These facts make him memorable
in the mind of Estrada’s son who is a member of the
Commission on Appointments. But let us just look at
the legalities of the matter.
First, what are ad interim appointments?
There are certain important government offices, an
appointment to which normally needs confirmation by
the Commission on Appointments. But the
Commission on Appointments operates only when
Congress is in session. The Constitution therefore
has provided for situations when vacancies must be
filled while Congress is in recess.
When the Constitutional Commission of 1986 was
deliberating on the appointment power of the
President, the original proposal on the subject did not
contain a provision for appointments during
congressional recess. But when it was remembered
that the 1935 Constitution had such provision, an
addition was introduced. It now reads: “The President
shall have the power to make appointments during
the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective
only until disapproval by the Commission on
Appointments or until the next adjournment of the
Congress.” This is the power which the President
exercised when she appointed and swore in former
Chief Justice Davide as ambassador to the United
Nations.
What is the nature of such an appointment?
Jurisprudence is now very clear on the subject. In
terms of legitimacy, it is as good as an appointment
confirmed by the Commission on Appointments. As
the Supreme Court put it in a 1948 decision: “An ad
interim appointment is one made in pursuance of
paragraph (4), Section 10, Article VII of the [1935]
Constitution, which provides that the ‘President shall
have the power to make appointments during the
recess of the Congress, but such appointments shall
be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the
Congress.’ It is an appointment permanent in nature,
and the circumstance that it is subject to confirmation
by the Commission on Appointments does not alter
its permanent character.”
The current Supreme Court confirmed this in 2002
saying: “The Constitution imposes no condition on
the effectivity of an ad interim appointment, and thus
an ad interim appointment takes effect immediately.
The appointee can at once assume office and
exercise, as a de jure officer, all the powers
pertaining to the office.”
I understand that the appointment of Davide will be
challenged or has now been challenged in the United
Nations itself. I believe that such a challenge is an
exercise in futility and can only embarrass the
challenger. I do not anticipate that anything will come
30

out of that challenge. International authorities accept
the legality of decisions of de jure local authorities
within their jurisdiction under what is known in law as
the “act of state doctrine.”
There are only two ways in which an ad interim
appointment may be terminated. First, it is terminated
when Congress bypasses it, that is, when Congress
adjourns without any action on the subject by the
Commission on Appointments. But then, if so
bypassed, the President can renew the ad interim
appointment. There is no constitutional limit on the
number of renewals.
Second, it is terminated when disapproved by the
commission. Disapproval is the definitive signal that
the appointment should end and not be renewed.
What are the chances of a disapproval of Davide’s
appointment? It seems to me that, the fact that the
appointment has been sitting there without
unfavorable action may be an indication that the
majority of the commission does not intend to
disapprove it. But why is it not being approved? What
does it take to approve it?
In the answer to this question, we see how politicians
behave. The law on the subject is that the
commission, by constitutional command, acts by a
majority vote. This means that a majority vote of
“Yes” or a majority vote of “No” should end the
suspense. The Senate president presides over a
body of 12 senators and 12 representatives. If the
body does not vote to disapprove and neither votes
to approve, it can only mean that the body wants to
approve but does not wish to displease a commission
member or some other influential person. So no
action is taken and meanwhile the officer stays in
office. Would you call that a win-win situation? Alas,
the beauty of politics!
---------------------------------------
Court packing
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 02:40:00 01/15/2007
Filed Under: Judiciary (system of justice)
THERE is now one vacancy in the Supreme Court
resulting from the appointment of Justice Reynato
Puno as Chief Justice. There will be another vacancy
in May upon the retirement of another justice. Once
the President has filled these vacancies, the Court, in
terms of numbers, will be dominated by President
Gloria Macapagal-Arroyo’s appointees. I emphasize
“in terms of numbers” because dominance in
numbers does not necessarily mean dominance over
thought. Being appointed should not necessarily
mean being enslaved.
I recall the case of the late Justice Cecilia Muñoz
Palma. At the time when she was being considered
for appointment to the Supreme Court -- she was
then in the Court of Appeals -- she visited me in my
office, which was then in the Ateneo Law School
along Padre Faura Street in Manila, and she told me
that one qualifying question she was being asked
was whether she was loyal. Well, she gave a proper
answer and she was appointed. But she never
surrendered her independence. Her Supreme Court
opinions attest to that.
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
I have never attended a hearing conducted by the
Judicial and Bar Council (JBC) where prospective
appointees to the judiciary are interviewed. Nor do I
know how sharp and probing are the questions the
JBC members ask. But the issue of personal or
partisan loyalty, which is distinct from ideological
position, is something that is very much a valid area
for inquiry. The Court must be insulated from
dominance by extraneous forces. And it is the solemn
duty of the JBC to do everything needed to make
sure that the Supreme Court, as its title signifies,
remain supreme.
It might be good to recall a moment in the history of
the Federal Supreme Court of the United States
when it was threatened by executive dominance.
President Roosevelt’s quarrel with the Supreme
Court, however, was not about partisan politics but
about social philosophy. Roosevelt’s animosity
toward the Supreme Court arose early during his first
term, when his New Deal of social and economic
reform could not pass muster before a Supreme
Court dominated by conservative old men. Six
justices were then aged 70 or over and the youngest
was 61. Under the US Constitution there was, even
as now, no retirement age.
To neutralize the power of the old men, Roosevelt
drafted a bill to reorganize the judiciary. The bill called
for all justices over 70 to retire and, should they fail to
do so, the President would be authorized to appoint
another justice to sit in tandem with each justice older
than 70. For the Supreme Court, it would have meant
that the President could appoint six new justices.
The proposal was doomed from the beginning. It was
opposed by both political foes and friends, and by
conservatives and liberals alike. The draft bill died.
Biographers of Roosevelt agree that his court
packing scheme robbed him of much of the political
capital he had won in landslide election victories. It
also weakened his war against poverty. But
eventually the Court’s social philosophy underwent
change. In the end, too, the final winner was the
American people. With the emphatic rejection of the
court packing scheme, no similar plan has ever been
presented again.
Roosevelt sought to achieve his court packing
scheme through Congress. I have never heard of
anything like it being presented to the Philippine
Congress. But there was a time when the President
could pack the Supreme Court at will. Under the 1973
Constitution, the President alone decided who should
go to the Supreme Court. So, too, under the
Revolutionary Government which took over after the
ouster of President Ferdinand Marcos. President
Corazon Aquino could appoint whomsoever she
pleased.
When the time came for the drafting of a new
Constitution in 1986, there was debate about whether
appointments to the judiciary should go through the
Commission on Appointments as under the 1935
Constitution. It was the revered former Chief Justice
Roberto Concepcion who proposed the alternative
that we now have. Appointments to the judiciary can
only be made from a list of at least three nominees
presented to the President by a Judicial and Bar
Council.
31

Now it is being asked how effective the JBC is or can
be in assuring the nation that the recommendees for
appointment are the council’s independent choices
and not those of the President.
Consider the composition of the JBC. It is chaired ex
officio by the Chief Justice. Other ex officio members
are the justice secretary and a representative of
Congress. Four other members are appointed by the
President with confirmation by the Commission on
Appointments: a representative of the Integrated Bar
of the Philippines, a law professor, a retired Supreme
Court justice and a representative of the private
sector. Significantly, the council operates under the
supervision of the Supreme Court.
It is said that the proof of the pudding is in the eating.
How would you rate how the appointing process has
performed so far? How will it continue to perform?
------------------------------------------
The Smith case, once more
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 01:09:00 01/08/2007
Filed Under: Government, Judiciary (system of
justice)
YES, WE MUST HONOR THE TREATIES WE have
entered into. Pacta sunt servanda states a
fundamental obligation of any civilized nation.
Frankly, however, I do not understand how our
government reads the treaty.
But it must also be admitted that the matter is
complicated by the fact that the Smith case is not an
ordinary criminal case; it is one which also involves
foreign relations. And foreign relations are primarily
under the direction of the President. Hence there is a
need to make the delicate and difficult balance
between law and order on the one hand, and foreign
relations on the other. What the government and the
Court of Appeals did was to attempt to strike a
balance but with results that are far from felicitous.
Let us begin with the complications arising from the
treaty itself. A key provision says: “In the event
Philippine judicial proceedings are not completed
within one year, the United States shall be relieved of
any obligations under this paragraph.” Our
government has taken the position that the “judicial
proceedings” referred to by this provision did not end
with the conviction of Smith but carries into the period
of appeal. Hence, the proceedings are not yet over.
But what do you make of the sentence that
immediately follows, which says: “The one-year
period will not include the time necessary to appeal.”
What is the consequence of our government’s
position? Again we must look to the text of the treaty.
It says: “. . . the United States shall be relieved of any
obligation under this paragraph . . .” And what, pray,
is the obligation of which the United States has been
relieved? Again we go to the text: to “make such
personnel available to [Philippine] authorities in time
for any investigative or judicial proceedings relating to
the offense with which the person has been charged.”
In simple terms, since our government has agreed
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
that “judicial proceedings” were not terminated within
one year, our government in effect agrees that the
United States no longer has any obligation to
produce Smith.
It so happened, however, that Smith was in the
custody of Philippine authorities. Should the
government allow the bird in hand to fly back to the
bush? That the government did, and dramatically. In
a supreme act of generosity, our government spirited
Smith out of the Makati City Jail and surrendered him
to the US Embassy. In other words, the government
is equivalently saying to the United States, “He is
your baby; you have no obligation to give him back to
us. You can send him to Okinawa for all we care.” As
Alice in Wonderland would put it, things have gotten
“curioser and curioser.”
Our government made it conveniently easy for the
United States. The American government did not
have to resort to what it did in the Alvarez-Machain
extradition case. In that case, Mexico refused to
extradite Dr. Alvarez-Machain to the United States;
but the latter managed to have the person kidnapped
and brought to the United States where he was
arrested. In our case, Smith did not have to be
kidnapped! He was surrendered on a silver platter.
Other curious things have been happening about this
case. Recall that the President’s legal adviser said
that she had nothing to do with the transfer of Smith.
The good adviser seems to have forgotten a basic
principle which every first year law student has to
recite, namely that the acts of department heads in
the ordinary performance of their functions are
presumed to be the acts of the President unless she
expressly reprobates them. The adviser’s
announcement makes one wonder who really is
running the Philippine show. But the President
eventually came out to contradict her adviser and say
that the transfer was her call after all. Still we must
ask: Who is really calling the shots?
Comes now the Court of Appeals. Its decision is
being described as Solomonic. The Court ruled that
Judge Benjamin Pozon ordered correctly that Smith
be confined temporarily in the Makati jail. But Pozon
himself had said that he would honor whatever
agreement the Philippine government and the United
States might reach on the place of Smith’s
confinement as provided for in the Visiting Forces
Agreement. But the Court of Appeals did Pozon one
better: the Court found nothing wrong in the fact that
the government spirited Smith away in the dead of
night without waiting for the decision of the Court of
Appeals which had been sought by the government
itself. The Court did not seem to care that the
executive department had thumbed its nose at the
judiciary.
Note that earlier Malacañang had said that the
government would wait for the Court’s decision.
Again, one might ask: Who is really calling the shots?
Comes now the executive director of the Presidential
Commission on the RP-US Visiting Forces
Agreement (VFACom). He accuses the government,
not implausibly, of taking the law into its own hands.
In reaction, the government not only threatens to fire
him but also to disband the VFACom. It is the Charles
Lamb principle at work: Burn the house to roast a pig!
32

The whole affair would be funny if it were not painful
for the people concerned. Holmes did say that hard
cases make bad laws. But it would not have been a
hard case if the treaty had been in less sloppy shape.
The root of the comedic affair is the ambiguities in the
treaty itself. The Executive Homer nodded in
negotiating the treaty and the Senate Homer likewise
nodded in ratifying it and the government just decided
to muscle its way through. Marvelous! Meanwhile, the
Court of Appeals simply pleaded that the judiciary,
without money or guns, is the least dangerous
branch.
===========================
Constitutional Convention in 2007?
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 03:32:00 01/01/2007
Filed Under: Politics, Constitution
Published on page A13 of the January 1, 2007 issue
of the Philippine Daily Inquirer.
THE MOVEMENT TOWARD CHARTER CHANGE
refuses to die. But what Charter change needs is not
speed but careful deliberation in an atmosphere of
mutual respect. If we have to face it, the crucial
questions to ask are: What changes must be made?
How do we achieve the changes? And when should
they be made? All three questions are intimately
linked with each other.
Changes can be achieved through initiative and
referendum, or through Congress as a constituent
assembly, or through a constitutional convention.
Initiative and referendum is very limited in its
usefulness. It can be used only for simple changes of
individual provisions which do not affect other
provisions.
Theoretically, Congress as a constituent assembly or
a constitutional convention has the authority to
formulate and propose minor and major changes. But
there are important differences between the two
which must be considered when deciding which
method to choose. In terms of cost, a constituent
assembly is less expensive than a constitutional
convention. Supporting a constitutional convention
would be equivalent to supporting a second and,
perhaps, larger legislative body. However, Congress,
aside from not having been elected for the purpose of
revising the Constitution, consists of people who
currently hold political power and might be less
inclined to make changes that can diminish their
power.
A constitutional convention, on the other hand,
consists of members chosen by the sovereign people
precisely for the purpose of reviewing an existing
constitution. The constitutional convention law which
will prescribe the manner of electing or appointing the
delegates and the qualifications needed for
membership can set parameters which can assure, to
the extent humanly possible, that the delegates will
act with independence and unselfish concern for the
welfare of the nation. Indeed, delegates might
already harbor in their hearts the ambition to hold
office under a new constitution, but their relation to
public office is more remote than what the present
members of Congress already have.
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Considering these differences between Congress as
a constituent assembly and a constitutional
convention, I would suggest that if the intent is a
radical change in the constitutional structure, such as
a shift to a unicameral parliamentary form of
government, the task of evaluating or formulating
such a change should be entrusted to a study by a
constitutional convention. Minor changes, and even
important changes, but which do not involve a radical
change in the structure of government, can be sought
through Congress as a constituent assembly. But
these latter kind of changes do not have to be done
in one fell swoop. They can be attended to gradually
over the years.
Concretely, what are the changes being bruited about
these days? The most radical of them is the shift to a
unicameral parliamentary form of government. It is
being said that separation of powers and checks and
balances under a presidential system have become
outmoded. But the fact that the Senate has stood up
to the blandishments of the executive is proof that
separation of powers and checks and balances are
alive. So has the fact that the Supreme Court has
held its ground against the political departments.
It is also being said that separation of powers results
in unwanted gridlocks. But separation of powers was
never meant to be principally an instrument for
efficiency; it has mainly been meant for the
prevention of tyranny. That function is still being
performed, to the dismay of those who want more
power. As for efficiency, the principal instrument for
governmental efficiency is the administrative process.
Most of the serious problems we have now can be
alleviated or solved by wise and well-implemented
administrative process.
Is a parliamentary system really the solution? The
best proof so far that it is not is the way the current
House of Representatives, the principal advocate of a
parliamentary system, has shamelessly behaved. We
are not politically prepared for a parliamentary
system that clearly exhibits authoritarian tendencies.
Is there really an urgent need to review the
nationalistic economic policies of the Constitution? If
there is, this is something that can be done more
economically by Congress as a constituent assembly.
But even now we have learned to deal with them by
ordinary legislation. Moreover, there is so much that
the administrative process can do for the economy
even without altering the Constitution. The bigger
obstacle it seems is not the Constitution but the
bureaucracy. But the bureaucracy and the red tape it
weaves are largely a problem for the administrative
process.
Are the Cha-cha advocates saying that constitutional
reform will solve the corruption problem? But
corruption is preeminently an administrative problem.
It is not solved by changing constitutional rules but by
implementing laws in a more vigorous exercise of
political will. We will not find solutions in constitutional
reform if we do not have the political will to implement
administrative and criminal laws—or, even just the
simple traffic laws.
Should we then embark on a constitutional
convention?
We must face the reality that a large segment of the
33

population, rightly or wrongly, has been conditioned
to expect constitutional reform soon. This cannot be
ignored. It can, however, be dealt with through the
constitutional provision which authorizes Congress to
present the question to the people themselves in a
plebiscite for the purpose. The Constitution says:
“The Congress may ... by a majority vote, submit to
the electorate the question of calling such a
[constitutional] convention.” This can coincide with
the May 2007 elections.
===============================
An invitation to involvement
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 22:18:00 12/24/2006
Filed Under: People, Politics, Customs & Traditions
Published on page A13 of the December 25, 2006
issue of the Philippine Daily Inquirer
“His future coming was proclaimed by all the
prophets. The virgin mother bore Him in her womb
with love beyond all telling. John the Baptist was His
herald and made Him known when at last He came.
In His love, Christ has filled us with joy as we prepare
to celebrate His birth, so that when He comes He
may find us watching in prayer, our hearts filled with
wonder and praise.”
—From the Advent Preface
BUT CHRISTMAS COMES TO US THIS YEAR
colored with messages of darkness. Where are the
hearts filled with wonder and praise? Open the daily
papers or watch television news, and you grow more
and more aware of threatening darkness. Bad news
has become daily fare. Reports of almost daily
assassinations carry dire foreboding of a bloody
election year. Famine and destruction abound. We
feel the suffering in Palestine, Africa, Sri Lanka and
Iraq. Like the Apostles in the time of Jesus, we might
want to see at Christmas not a helpless infant but a
conquering hero ready to rule, to smite, to heal and to
triumph over injustice and violence or even just to
miraculously transform hardened hearts. But such a
conquering hero did not come even with the first
Christmas.
The movie “The Nativity Story” is now showing in
local theaters. It tells the story of a first Christmas
surrounded by darkness. Jesus came among a
people suffering under Roman occupation. He came
among a people ruled by an insecure Herod fearful of
prophecies that could strip him of power. The reality
then was not the sentimental and idyllic scenes
portrayed in Christmas cards. The reality was of a
ruler hungry for power, sending his minions to hunt
out the baby that might replace him; and Joseph and
Mary in flight to live a life of homeless refugees. And
the life of the child ended in crucifixion.
The life story of the Savior born in Christmas Day
tells us that He did not come to be a conquering hero.
What then? As the writer Sally Cunneen puts it, “Still,
incredible as it may seem, the appearance of God’s
son as a vulnerable human baby bringing light to out
darkness suggests that the Creator wants human
help in the ongoing work of creation. Just as Yahweh
asked Moses to lead his people out of Egypt, and
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Mary to cooperate in the birth of his Son, we are
being asked today to accept this shared
responsibility.”
In this call for shared responsibility, He leads the way.
For that reason, He was born in history. Luke is
careful to situate his arrival in a concrete historical
moment of uncertainty.
“In those days a decree went out from Caesar
Augustus that the whole world should be enrolled.
“This was the first enrollment, when Quirinius was
governor of Syria.
“So all went to be enrolled, each to his own town.
“And Joseph too went up from Galilee from the town
of Nazareth to Judea, to the city of David that is
called Bethlehem, because he was of the house and
family of David, to be enrolled with Mary, his
betrothed, who was with child.
“While they were there, the time came for her to have
her child, and she gave birth to her firstborn son. She
wrapped him in swaddling clothes and laid him in a
manger, because there was no room for them in the
inn.”
The call to us to be involved in the ongoing work of
creation comes at a concrete moment in our history—
during the presidency of Gloria Macapagal-Arroyo,
during the Senate presidency of Manny Villar and the
Speakership of Jose de Venecia, as a new chief
justice begins his term, as war rages in Mindanao
and terrorism threatens the nation—and also at a
time when the wealthy are enjoying more wealth and
the poor are becoming poorer.
We usually look at Christmas as vacation season, a
season of disengagement. But when we look at the
first Christmas, we see it telling us not to disengage
but to engage. Christ thrust Himself into the history of
Roman occupation, into a world of hunger and
sickness, into a world of hatred and violence, into a
world of injustice and poverty. He was not an
escapist. “And the Word was made flesh, and dwelt
among us.”
Christmas is not a season of escape; it is a season to
begin or renew engagement. It is an invitation from
God who became human to look at our human
condition through the lens of God, and to be involved
in it. We are invited to look with new eyes at people
we tend to ignore: the street children begging at
street intersections, the beggars huddled under
overpasses ignored by speeding motorists, the
scavengers in garbage dumps and the obscure
victims of injustice and oppression. These are people
we tend to remember only in time of calamities.
“The Word was made flesh and dwelt among us,”
John tells in his prologue during Christmas Day
Mass.
What is the God-message through the Word spoken
to us? It is this: Receive Him; be with Him. But more
than that: imitate Him and be involved.
===============================
]The Lance Corporal Smith case
34

By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 02:58:00 12/18/2006
Filed Under: Judiciary (system of justice), Diplomacy
Published on page A15 of the December 18, 2006
issue of the Philippine Daily Inquirer
LANCE CPL. DANIEL SMITH, CONVICTED OF rape
by Judge Benjamin Pozon, is being pulled in opposite
directions.
The US Embassy, for which our secretary of justice is
now lawyering, wants him in the custody of the US
government. Their argument is this: Since the case is
still on appeal, the judicial proceedings have not yet
been terminated, and by the terms of the Visiting
Forces Agreement, he should be under US custody.
Judge Pozon, for his part, holds that the judicial
proceedings referred to by the VFA ended with the
judgment of conviction, after which the place of
detention should be a matter for agreement between
the US and RP governments. Ambassador Kristie
Kenney, it seems, agrees; she signed an agreement
to that effect. Judge Pozon, however, contends that
Justice Secretary Raul Gonzalez was the wrong
person to enter into such an agreement.
Who is right? Let me share with you my two bits on
the matter.
It is always good to begin with the text of the law itself
which, in this case, is the treaty. Incidentally, I
disagree with those who say that the VFA is not a
treaty because it was not concurred in by the US
Senate. Our Constitution only requires that, for
purposes of foreign military presence in the
Philippines, the agreement must be “recognized as a
treaty by the other contracting party.” The US
government recognizes the VFA as a treaty. It is not
for the Philippines to say what the American
authorities should recognize as a treaty.
The answer to the controversy, therefore, must be
sought in Sec. 6 and Sec. 10 of Article V of the VFA.
Sec. 6 says: “United States military authorities shall,
upon formal notification by the Philippine authorities
and without delay, make such personnel available to
those authorities in time for any investigative or
judicial proceedings relating to the offense with which
the person has been charged. In extraordinary cases,
the Philippine Government shall present its position
to the United States Government regarding custody,
which the United States Government shall take into
full account. In the event Philippine judicial
proceedings are not completed within one year, the
United States shall be relieved of any obligations
under this paragraph. The one-year period will not
include the time necessary to appeal. Also, the one-
year period will not include any time during which
scheduled trial procedures are delayed because
United States authorities, after timely notification by
Philippine authorities to arrange for the presence of
the accused, fail to do so.”
Under this section, initial custody must belong to the
United States, unless in “extraordinary
circumstances,” the Philippines should ask for
custody. The Philippines did not ask for custody
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
during trial; hence Smith stayed in the US Embassy.
But when does US custody last? Sec. 6 also says
that if “the Philippine judicial proceedings are not
completed within one year” the United States shall be
relieved of the responsibility to make the accused
available for “investigative or judicial proceedings.”
The contention of the US government is that “judicial
proceedings” include the period of appeal and, since
the case is on appeal, the proceedings are not yet
terminated. Therefore, Smith should still be enjoying
the comforts of the US Embassy. Moreover, if the
appeal is not terminated within the prescribed one-
year period, the United States is relieved of the
obligation to produce Smith.
Note that the one-year period ended—if I am not
mistaken—yesterday, Dec. 17. If Smith is returned to
US custody, will the United States be free to ship
Smith to Okinawa? Is this what the Filipinos who
negotiated the treaty and the Senate, which
concurred in the treaty, meant? But Sec. 6 itself says
that the “one-year period shall not include the time
necessary to appeal”; neither will it include delay in
trial procedures attributable to the United States.
When you put together all the above specifications,
the implication is that the “one-year period,” after
which the Philippines loses the right to hold custody
of the accused, applies only during the “trial period.” I
am sure that those who negotiated the treaty knew
that while trials can be speeded up, appeals can take
forever. The appeal is now with the Court of Appeals
and may eventually go to the Supreme Court.
It is for this reason that Judge Pozon holds that the
applicability of Sec. 6 ended with the conviction and
sentencing and that the applicable provision now is
Sec. 10. And what does Section 10 say? “The
confinement or detention by Philippine authorities of
United States personnel shall be carried out in
facilities agreed on by appropriate Philippine and
United States authorities. United States personnel
serving sentences in the Philippines shall have the
right to visits and material assistance.”
There are two sentences here. The first sentence is
about the agreed place of detention. The second
sentence tells us what this detention is, that is,
detention while “serving sentence.” Smith has started
serving sentence. Hence, the Philippines and the
United States have to agree where he should be
detained.
Judge Pozon agrees that the place of detention
should be a subject of agreement. But he questions
the authority of the secretary of justice to enter into
this agreement which partakes of the nature of an
“executive agreement.” The judge must be thinking of
the list of those who, under the Vienna Convention on
Treaties, have the power to represent a State in
agreements. Article 7 of the Vienna Convention on
Treaties does not include the secretary of justice
among those who have ex officio authority to enter
into agreements.
This is crucial because a waiver of custody can mean
a waiver of sovereignty.
--------------------------
Saving face, eggs on face
By Fr. Joaquin G. Bernas, S.J.
35

Inquirer
First Posted 02:22:00 12/11/2006
Filed Under: Constitution, Government
Published on page A15 of the December 11, 2006
issue of the Philippine Daily Inquirer
IT COULD ONLY BE THAT JOSE DE VENECIA and
his army saw the futility of their cause both legally
and politically. The House Con-ass resolution was
dead in the water. A face-saving devise had to be
sought. He thought an ultimatum to the Senate would
do. He got eggs instead.
But why was their cause hopeless in this liturgical
Season of Hope?
Simple. Let us look at the matter soberly. Never mind
that there may have been hysterical reaction all
around. Begin with what the House of
Representatives did in the dead of night. The House
amended its own rules dispensing with the
requirement that proposals for constitutional
amendment should go through the wringer of three
readings. It was a rejection of rationality.
Three readings, as denizens of Congress know,
means that a proposal’s title is read on first reading
and assigned to a committee for study. The
committee report is next discussed on second
reading where every provision is debated upon and
voted on. On third reading a clean copy of everything
that has been approved on second reading is
presented for final approval. No more debates take
place on third reading. That is how rational beings
behave.
What the House approved was to short-circuit
everything into one reading. Committee study would
be dispensed with and instead plenary debate would
take place immediately on ready-made proposals.
Definitely this would shorten the process and
facilitate railroading.
I agree that the House can amend its own rules. The
Supreme Court does it with its rules. The Judicial and
Bar Council does it. In every case the issue is not so
much legality as propriety or fairness or even
morality. But it is important to note that, whether
legal, improper, or immoral, what are amended are
just the rules of the House, nothing more. Hence,
because only the internal operation of the House is
involved, the House may legally—even if immorally—
dispense with the requirement of three readings.
This, after all, is a rule made by the House itself for
the constituent process, even if three readings are
required by the Constitution for the legislative
process.
What became obvious, however, was that, by
amending its internal rules, the House planned to
dispense with the participation of the Senate. That, to
my mind, would have been an unwarranted long jump
fit for a spot in Doha. Dispensing with the
participation of the Senate would involve a change
not just of the House rules but also of the
constitutional provision on Charter change.
The Constitution gives the authority to propose
amendments to Congress. Congress has two
houses. Both must take part in the process. I am sure
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
that the bright lawyers of the House knew this. But
they did it just the same with full knowledge and
consent. In my book, that would be mortal sin. But
they did not seem to care because they expected
absolution from the almighty Palace and were hoping
for one from the Supreme Court.
Will a mere invitation from the House addressed to
individual senators make the exercise a joint
enterprise of House and Senate? Again I am sure
that the bright lights in the House knew in their sober
moments that it will not. What is needed is a
resolution of the majority of the Senate indicating the
desire to participate. The claim that refusal to
participate would mean a waiver of Senate
prerogative is hogwash. And I am sure the bright
lights of the House knew this.
Let us suppose, however, that the Senate resolves to
participate. Must the two houses be in joint session? I
have always maintained that there is nothing in the
Constitution which commands them to be in joint
session or prohibits them from being in joint session.
They can be in one place in joint session or they can
do their thing where they are as they are. But joint
session or not, what the Constitution commands is at
least “joint action.” Both must agree to participate in a
constituent process. Without one or the other, there is
no constituent assembly; just as without one or the
other, there is no Congress.
The issue of whether there should be joint or
separate voting is distinct from the issue of whether
there should be joint action or not. It is only after both
chambers have decided to act as a constituent
assembly that they can debate about whether they
should vote jointly or separately. What I seem to be
hearing is that the House wants to dispense with the
participation of the Senate and effectively also
exclude them from the vote. It’s a double-barreled
shotgun! Are the bright lights serious or speaking
tongue-in-cheek?
What is my take on the issue of joint or separate
voting? I have expressed my view on this in earlier
columns. My view is that separate voting is of the
essence to a bicameral Congress. The structure of
Congress demands it. Separate voting therefore is
the rule. This can be dispensed with only if there is a
specific constitutional provision prescribing joint
voting, as the Constitution does in the matter of
martial law declaration by the President.
I appeal to the House for rationality. If you are
thinking that the Supreme Court will support whatever
Gloria Macapagal-Arroyo and De Venecia want,
please do not insult the members of the Supreme
Court. Do not think that the new Chief Justice will
sacrifice his reputation on the altar of GMA. Justices
who have nothing or little to lose might, but not the
Chief. He said recently something about apples and
oranges. As the scholastics would put it, verbum sap
sat (a word to the wise is enough).
======================================
The JBC on the dock
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 01:59:00 12/04/2006
Filed Under: Judiciary (system of justice), People
36

Published on page A15 of the December 4, 2006
issue of the Philippine Daily Inquirer
THE JBC, OF COURSE, IS THE JUDICIAL AND Bar
Council, recently rebuffed by five senior Supreme
Court justices nominated for consideration as chief
justice.
But first let us talk about the beginnings and the
reason for the existence of the JBC. It will be recalled
that, under the 1935 Constitution, all appointees to
executive offices and to the judiciary had to get
confirmation by the Commission on Appointments of
Congress; the only officers not covered were “inferior
officers” exempted by Congress. But all judges and
justices had to go through the process.
Under the 1973 Constitution, there was no extrinsic
check on the President’s appointing power. Lucky
him!
The JBC was designed by the 1987 Constitution for
appointments to the judiciary. The institution was
fathered by former Chief Justice Roberto
Concepcion, who saw the JBC as a way of insulating
appointments to the judiciary from politics. During the
deliberations of the 1986 Constitutional Commission,
horror stories were told about individual experiences
of commissioners before the former Commission on
Appointments. These experiences were probably
exceptions to the rule, but the stories were enough to
convince a majority of the commissioners to vote for
the creation of a JBC. But what is the anatomy of
what was created?
The JBC consists of seven members with the Chief
Justice acting as ex officio chair, and the secretary of
justice and a member of Congress as ex-officio
members, together with a representative of the
Integrated Bar, a retired Supreme Court justice, a
practicing lawyer and a representative of the private
sector. The latter four are appointed by the President
with confirmation by the Commission on
Appointments.
The primary responsibility of the JBC is to screen
persons being considered for appointment to the
judiciary and to give to the President a list of at least
three nominees for every vacant position in the
judiciary. The President can choose only from among
those in the list. But there is nothing in the
Constitution which prevents the President from
rejecting those in a first list and from asking for a
fresh list et sic ad infinitum until the expectations of
the President are met.
There is a JBC created rule which requires
prospective appointees to appear for interview. I am
not sure when this rule started. But it was only this
year that the JBC required prospective appointees to
the position of chief justice to appear for public
interview. Five justices being considered for
nomination declined to appear. What next?
The first thing I would note is that the five justices did
not apply for the position. Rather, the JBC on its own
considered them as included in the list being
considered for submission to the President. Should
they then be compelled to appear? Or should their
non-appearance be construed as a rejection of the
position?
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Secondly, the five are incumbent holders of very
public positions. Their legal thoughts, whether in
majority opinions or dissents, are required to be
published. Their biases can also be perceived from
their writings. I would assume that the members of
the JBC can easily familiarize themselves with these.
As the secretary of justice put it, what more can you
legitimately get out of them in 30 minutes of
controlled interviews? I believe in the dictum entia
non sunt multiplicanda sine necessitate. Don’t clutter
the world with useless things. I don’t think interviews
will yield much, if at all.
Thirdly, the fact that applicants to lower positions or
applicants from outside are required to appear does
not violate the equal protection clause because the
incumbent justices are dissimilarly situated from
others. Distinctions are allowed where there are real
differences. I might even say that the fact that only
five justices are automatically listed by the JBC
discriminates against the other incumbent justices.
Seniority in the judiciary is not a substantial
distinction.
I am all for transparency. But it is not as if the
professional qualifications of the five justices are
shrouded in opacity. True, it may be that there are
grounds for disqualification that are not public. It may
be that substantial and relevant objections have been
brought to the attention of the JBC. In such cases,
the JBC should make these objections public and ask
the nominees to make a public answer, if they care to
answer. If they have an answer or if they do not care
to answer, then the JBC should be in a position to
weigh the importance or lack of importance of the
objections.
To disqualify the five justices for the sole reason that
they declined to appear in a hearing held to
determine their suitability for a position for which they
had not applied would, to my mind, smack of
petulance.
True, there are rules. But these are JBC-made rules.
Like the Rules of the House and the Rules of the
Senate and the Rules of Court, they can be
dispensed with by the authors if fairness and wisdom
demand it. I believe that there are valid reasons for
not applying the rule to incumbent justices.
This brings me to my view of the JBC vis-à-vis
appointments to the Supreme Court. When this
matter was deliberated upon by the 1986
Constitutional Commission, I voted in favor. On
hindsight, I would now reconsider. For purposes of
screening appointments to the Supreme Court, I find
the JBC too narrow in composition and too vulnerable
to manipulation. Briefly, for all the defects of a
Commission on Appointments, I would like a return to
the 1935 rule for purposes of appointments to the
Supreme Court.
Who says I am against amending the Constitution?
===================================
Enough already ‘muna’
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 02:58:00 11/27/2006
Filed Under: Politics, Constitution, Elections
37

Published on page A15 of the November 27, 2006
issue of the Philippine Daily Inquirer
PARDON THE BAD IDIOM, BUT IT IS A PITHY way
of expressing a very valid sentiment.
The sight of the highest leaders of the land
announcing a make-or-break final push for the
revision of the current Constitution is tragic. It is not
that the current Constitution is perfect and beyond
improvement or even revision. There is no such thing
as a perfect constitution. It is just that a constitution
deserves more careful consideration than just a
make-or-break rush job to catch a deadline borne out
of self-interest.
Let’s face it. The national leaders advocating Charter
change were rebuffed by the Supreme Court in their
effort to sneak in a sloppily drafted and handled
revision through initiative and referendum. Some of
them have not yet fully given up on this and have
seen a ray of sunlight in the decision of the Supreme
Court—that Republic Act 6735 is sufficient after all. (I
myself have held that RA 6735 is sufficient.) But
since the Court has said that revision is not a proper
subject for initiative and that what the advocates of
initiative were proposing is a revision, the sufficiency
or insufficiency of RA 6735 has become irrelevant for
Sigaw ng Bayan and company.
Speaker Jose de Venecia sees this and so he has
come up with his final-push campaign. Charter
change will now be through a constituent assembly.
But under what circumstances?
First, it will be a race toward the start of the campaign
for the 2007 elections. True, it may be possible for a
small group of legislative experts to slap together a
draft for a new Constitution. But the product will not
be just that, a draft. It will still have to be submitted
for debate within a constituent assembly consisting of
people whose attention may well be focused on the
coming elections and not on Charter change.
Second, the constituent assembly that is envisioned
will most certainly encounter a constitutional
obstacle. The constituent assembly envisioned by the
Constitution is Congress. Congress consists of two
houses which means, if it is to be Congress, the
Senate and House must both agree to act as a
constituent assembly. The Senate, to say the least, is
reluctant to act now. If the Senate as a body does not
decide to join, then you don’t have a legitimate
constituent assembly. This will be a matter for the
Court to decide and it is unlikely for the Court to
arrive at a decision before the De Venecia deadline.
Thirdly, even if the Senate decides to join, there will
be a big battle about the manner of voting, that is,
whether jointly or separately. It is not likely that the
Senate will agree to a joint voting. Hence, this will
again have to go to the Supreme Court.
I doubt that a solution desired by the advocates or
even by the President will be achieved by “packing”
the Court with “friendly” appointees. Aside from the
fact that apparently “friendly” appointees can turn out
to be staunchly independent after all, the very idea of
packing the Court with “friends” will be seen as an
attempt to convert the Court into a personal tool or
fiefdom. Justices are likely to find this highly
offensive.
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
Finally, who will orchestrate this final push? It will be
orchestrated and supported by legislators who have
manifested their interest in changes that will benefit
their own position. They are hardly the ideal authors
to whom the nation should entrust the crafting of a
fundamental document that will govern the nation for
years to come.
What then? Elections are due in roughly six months.
We will then elect members of the House of
Representatives and 12 senators. The voters have
been exposed to the debates about the need or lack
of need to revise the current Constitution. Voters
know that there can be no revision of the
Constitution, whether through a constituent assembly
or a constitutional convention, without the initial
approval of Congress. If Congress decides not to act
as a constituent assembly, it is still Congress that
decides whether to call a constitutional convention or
not. Let those who will run for Congress in the
coming elections manifest to the people what their
sentiments are about revising the Constitution.
There is an alternative which Congress, whether this
Congress or the next, can do for the people. Let the
people decide whether there should be a
constitutional convention instead of Congress acting
as a constituent assembly. The Constitution says that
Congress, by a majority vote of all its members, may
submit to the electorate the question of calling a
constitutional convention.
Some people who have vigorously supported
initiative and referendum or even a constituent
assembly also accuse critics of the initiative
movement of being opposed to change. It is pointless
to try to disabuse such thinking. The fact of the
matter, however, is that there has been no time for
debate on the changes being advocated. Rather,
those who oppose initiative now or even a constituent
assembly have trained their guns not against change
as such but against the process being employed.
Should a rational and honest process get started,
there will be plenty of time for rational debate about
what changes to make. There may even be much
agreement.
=====================================
The fault is in RA 7941
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 00:48:00 04/16/2007
Filed Under: Elections, Laws
MANILA, Philippines - I join the clamor for the release
of the names nominated for the party-list system. I
am not sure, however, if "barking" at the Commission
on Elections alone would be an adequate approach
to the problem. The clamor should be addressed also
to the party-list organizations themselves and, if this
fails, to the judiciary.
Why do I say that barking at the Comelec alone may
not work? My reason is: While Sec. 7 of RA 7941
(The Party-List System Act) commands the Comelec
to publish a certified list of parties and organizations
which have applied for participation in the party-list
system, it also categorically tells the Comelec: "The
names of the party-list nominees shall not be shown
on the certified list."
38

Under our system of law, this command is presumed
to be valid and it effectively ties the hands of the
Comelec. The Comelec, of course, may challenge
the validity of this provision. But I have the
impression that for reasons about which everyone is
free to speculate, the Comelec is content to have its
hands tied. Hence, don't expect help from the as-yet-
unredeemed Comelec.
However, is there logic in this prohibition imposed on
the Comelec by RA 7941? To my mind, none. It is not
the object of the electoral exercise to place parties
and organizations in the House of Representatives.
As RA 7941 says, a party and organization merely
submits "a manifestation of its desire to participate in
the party-list system." The object of the electoral
exercise is to place in Congress people, meaning,
party-list representatives. Of what use is knowing
what groups may participate in the party-list elections
if the voters do not know what kind of people they
seek to place in Congress?
The significance of the vote cast for a party is not that
it is a vote for an organization but that it is a vote for
the nominees of the parties or organizations. The
system, after all, is intended, in the language of
Section 2 of RA 7941, to ìenable Filipino citizens
belonging to marginalized and under-represented
sectors, organizations and parties, and who lack well-
defined political constituencies . . . to become
members of the House of Representatives.î
This is in keeping with the desire of the Constitution
that the party-list system serve as a vehicle for giving
voice to the traditionally voiceless. The voters,
therefore, should be enabled to assess whether the
nominees can contribute to the formulation and
enactment of appropriate legislation that will benefit
the underprivileged and not just the nominees
themselves or the ruling elite.
Is it possible that a party-list organization may, as a
matter of fact, become a vehicle for the elite? Yes,
because while Sec. 6 of RA 7941 empowers the
Comelec to scrutinize the qualities of the parties or
organizations for purposes of qualifying or
disqualifying them, no duty is imposed on the
Comelec to scrutinize the qualities of the nominees.
Scrutinizing them is the prerogative of voters.
Moreover, the party-list organizations are not only
free to choose whom to nominate but they also
determine the ranking of their nominees. Winners are
proclaimed by the Comelec in the order of party-list
ranking. Sec. 13 says, "Party-list representatives
shall be proclaimed by the Comelec based on the list
of names submitted by the respective parties,
organizations, or coalitions to the Comelec according
to their ranking in said list." The top ranking nominees
can very well be self-interested persons or agents of
the existing power elite. For this reason, there is
evidence now of elitist efforts to buy top seats in
party-list nominations.
But, as I said, the hands of the Comelec are
effectively (and to the Comelec's apparent
satisfaction) tied by RA 7941. Is there a way of
unbinding the ties? I believe there is, even if
circuitously.
Parties and organizations, upon their registration for
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
participation in the electoral system, clothe
themselves with a public character. They no longer
are simply private organizations. What they do, what
they are and what they stand for become matters of
public interest subject to public scrutiny. They are
subject to the Constitution's demands for
transparency. And they are not bound by the secrecy
rule of RA 7941. The secrecy rule is addressed only
to the Comelec.
The Constitution's demand for transparency is
superior to the non-disclosure command of RA 7941.
Where can we find the constitutional demands for
transparency? To begin with, there is Sec. 28 of the
Constitution's Declaration of Principles: "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."
More important, however, is Sec. 7 of the Bill of
Rights: "The right of the people to information on
matters of public concern shall be recognized."
Knowing who the candidates are is a matter of
highest public concern.
How can this right be enforced? By mandamus filed
in court against the Comelec and against party-list
organizations hiding behind the Comelec. Through
these provisions, as explained in existing
jurisprudence, a court can compel the Comelec and
the secretive organizations to reveal the names of
their nominees. Jus standi is not a problem.
Jurisprudence has held that the right to be informed
belongs to every citizen by the simple fact of being a
citizen.
=========================
Churchmen and politics (Part I)
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 00:09:00 03/05/2007
Filed Under: Elections, Politics, Churches
(organisations)
MANILA, Philippines-AS THE ELECTION PERIOD
HEATS UP, VOICES will once again be heard from
the pulpit, and the charge of violation of separation of
Church and State is bound to follow. It should be
remembered, however, that the “non-establishment
clause” of the Constitution, like the other provisions of
the Bill of Rights, is a command addressed to the
State. Thus only the State can violate it. As far as the
churches are concerned, they can be beneficiaries of
the State’s violation of the non-establishment clause
but they cannot be the violators. Thus when
politicians decry a violation by the Church and
churchmen of the Church and State separation
principle, what they are really doing is violating not
only free exercise but also freedom of speech and
expression.
The key provision on free exercise is found, like the
provision on non-establishment, in Article III, Sec. 5.
“No law shall be made . . . prohibiting the free
exercise thereof.” Not content with that, Sec. 5 adds
two other clauses: “The free exercise and enjoyment
of religious profession and worship, without
discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of
39

civil or political rights.”
A violation of the free exercise clause by the State
can come in the form of either prohibition or
compulsion. Philippine cases on free exercise of
religion are relatively few but not uninteresting. Let
me just focus on the prohibition of religious test for
the exercise of civil or political rights.
This prohibition is a corollary of the guarantee of
religious liberty. The purpose of this provision is to
render government powerless “to restore the
historically and constitutionally discredited policy of
probing religious beliefs by test oaths or limiting
public offices to persons who have or, perhaps more
properly, profess to have a belief in some particular
kind of religious concept.”
When the religious test that is imposed by law is
overt and clear, the constitutional problem it presents
is easy to resolve. For instance, if belief in the
existence of God should be required as a
qualification for public office, the violation would be
clear. But there can be subtler ways of violation.
Not too long ago, the Supreme Court was asked to
prohibit Jaime Cardinal Sin, Mike Velarde and other
religious leaders from giving directions to their
adherents on how to vote. The case was dismissed
on technical grounds. But the substantive question
remains alive, although no one of substance is
pushing it.
One person who expressed in very strong language
his opposition to religious involvement in politics was
Barry Goldwater. The occasion was when the Moral
Majority leader Jerry Falwell criticized the nomination
of Sandra Day O’Connor to the Supreme Court.
Goldwater said: “The great decisions of government
cannot be dictated by the concerns of religious
factions . . . We have succeeded for 205 years in
keeping the affairs of the state from the
uncompromising idealism of religious groups, and we
mustn’t stop now!”
Eloquent the words may be, but the second sentence
could not have been more inaccurate historically. If
you measure it against history, whether American or
Philippine, the statement is false. Churches have
influenced American politics from the days of Thomas
Jefferson down to the prophetic preaching of Martin
Luther King and the pastoral letters of the American
bishops. Likewise, in the Philippines, religion has
been involved in politics from the days of Fathers
Gomez, Burgos and Zamora down to the pastoral
letters on social justice and on the conduct of
elections. I do not see this involvement coming to an
end. Depending on circumstances, it can even
intensify. Thus it is legitimate to ask how religion fits
into the Philippine political culture.
The issue can be broken down into several
questions: (1) In their sermons and homilies, should
religious leaders limit themselves to teaching general
moral ideas, or should they draw specific political
conclusions? (2) Should they oppose or support
particular political parties or candidates? (3) Should
they refrain from running for public office? (4) Should
they engage in movements (e.g., lobbying and
demonstrations) that put pressure on political
officials? (5) Should they advocate specific policy
conclusions or should they limit themselves to
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
general recommendations? (6) When engaging in
debate on public issues, should they use religious
arguments or only secular arguments?
These are some of the questions that come up when
one analyzes the objections to religious involvement
in politics. The questions invite discussion, and I shall
attempt to present my own thinking on the subject.
First of all, it is not enough to say the Constitution
guarantees the freedom of expression of the clergy.
The issue transcends mere constitutionality. Neither
is it enough to assert that through the centuries
Judaism and Christianity have firmly held that
religious duty includes active involvement in politics
and that the Scripture indicates that God cares about
justice and public morality. I too firmly believe that the
pursuit of justice and morality is a religious obligation
for all believers. Moreover, I also believe that, when it
comes to contests for the formation of public policy,
individuals cannot effectively deal with the vastness
and complexity of issues. There is therefore need for
organized action. But whether engaging in individual
or in organized action, the questions I have
enumerated need to be dealt with.
(To be continued)
Churchmen and politics (Part 2)
By Fr. Joaquin G. Bernas, S.J.
Inquirer
First Posted 03:44:00 03/12/2007
Filed Under: Politics, Churches (organisations)
MANILA, Philippines-FOR ME, THE SIMPLEST
AMONG THE QUEStions is whether a member of the
clergy, particularly one who runs a parish or a
diocese, should run for public office. Constitutionally,
the prevailing view is that there is no constitutional
obstacle for a cleric running for office. As to the
obstacle arising from Canon Law prescription, it is not
insurmountable. What remains, therefore, is a
question of prudence or propriety. My view on this is
that combining public office and religious ministry can
strain Church-State relations and community unity. I
would therefore follow the principle that one must
choose between being fully a church minister or a
public official. Combining the two can be both
religiously and politically unhealthy.
Another important question touches on the substance
of preaching by the clergy and religious. By
preaching I do not simply refer to sermons and
homilies in church. I include any public or semi-public
pronouncements.
Should the clergy and churches limit themselves to
teaching general moral ideas, or may they advocate
as conclusions specific political actions? Certainly no
one will deny the clergy the right to preach about
morality. That is their task and they would be remiss
in their duties if they habitually avoid moral issues.
Thus, no one should deny them the right to discuss
publicly whether abortion is moral or immoral, or that
the rich should or should not help the poor, or that
employers should or should not pay workers a living
wage, or that homosexual acts are or are not sinful,
or that wars are or are not morally wrong. This is all
part of ordinary religious preaching.
It is a different matter, however, when out of general
40

moral teachings, specific public positions are
advocatedósuch as impeachment, Charter change,
or even the closure of videoke bars. Of course, there
are specific conclusions that flow naturally from
general positions. For instance, if a priest believes
that consensual sexual acts of homosexuals done in
the privacy of their bedrooms are not harmful to the
public, the natural conclusion will be that they should
not be criminalized. But specific practical conclusions
do not always come out naturally. The fact that an act
is clearly sinful does not lead to the easy conclusion
that it should be penalized. If it were, our prisons
would be more crowded than they already are.
Why is it that people sometimes do not want their
religious leaders to tell them what specific actions
they should take or what political conclusions they
should make? I believe that it is all part and parcel of
being a citizen of a democracy. ìI have my own mind.
Donít insult me. Let me draw my own conclusion!î
This is a perfectly legitimate attitude. To avoid
alienating people who have such an attitude, a cleric
must carefully and respectfully present his
conclusions. If the practical conclusions are
presented as the product of oneís own study and are
presented for people to agree or disagree with, then
no one should feel insulted or offended.
Another objection to specific pronouncements by
clerics is that their competence and their access to
needed facts for drawing conclusions are limited.
Rarely is their expertise related to economics, law,
sociology, or politics, etc. But specific conclusions
about the morality of economic or political decisions
can depend very much on the dynamics and nuances
of these specialized fields. If the cleric has
competence in these fields, then his conclusion can
be more persuasive. But it is also good to remember
that the people whose task it is to make important
decisions that impact on the lives of people, e.g.,
lawmakers, do not always have the needed expertise
on what they may be talking about. Some lawmakers
easily talk through their hat. But this is no reason for
a cleric to be reckless.
While a cleric, however, should not be reckless in his
statements, neither should he be inordinately
pusillanimous. There are political and economic
decisions that have great moral significance. These
should be faced, with prudence, yes, but not with
cowardly avoidance of conflict. Risks are part of the
apostolic mission.
Clerics do make mistakes, out of carelessness
perhaps, or through excess of zeal or even for more
foolish reasons. But in my own estimate, mistakes
and all, a courageous stand of clerics and churches
do more good than harm. The courage of the
churches in the Philippines has made significant
contributions to improving our economic and political
life
=======================================
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
G.R. No. 111230 September 30, 1994
ENRIQUE T. GARCIA, ET AL., petitioners,
vs.
COMMISSION ON ELECTIONS and
SANGGUNIANG BAYAN OF MORONG, BATAAN,
respondents.
Alfonzo M. Cruz Law Offices for petitioners.
PUNO, J.:
The 1987 Constitution is borne of the conviction that
people power can be trusted to check excesses of
government. One of the means by which people
power can be exercised is thru initiatives where local
ordinances and resolutions can be enacted or
repealed. An effort to trivialize the effectiveness of
people's initiatives ought to be rejected.
In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1
the Sangguniang Bayan ng Morong, Bataan agreed
to the inclusion of the municipality of Morong as part
of the Subic Special Economic Zone in accord with
Republic Act
No. 7227.
On May 24, 1993, petitioners filed a petition 2 with
the Sangguniang Bayan of Morong to annul
Pambayang Kapasyahan Blg. 10, Serye 1993. The
petition states:
I. Bawiin, nulipikahin at pawalang-bisa ang
Pambayang Kapasyahan Blg. 10, Serye 1993 ng
Sangguniang Bayan para sa pag-anib ng Morong sa
SSEZ na walang kondisyon.
II. Palitan ito ng isang Pambayang Kapasiyahan na
aanib lamang ang Morong sa SSEZ kung ang mga
sumusunod na kondisyones ay ipagkakaloob,
ipatutupad at isasagawa para sa kapakanan at
interes ng Morong at Bataan:
(A). Ibalik sa Bataan ang "Virgin Forests" isang
bundok na hindi nagagalw at punong-puno ng
malalaking punong-kahoy at iba'-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito
sa Bataan.
(K). Isama ang mga lupain ng Bataan na nakapaloob
sa SBMA sa pagkukuenta ng salaping
ipinagkakaloob ng pamahalaang national o "Internal
Revenue Allotment" (IRA) sa Morong, Hermosa at sa
Lalawigan.
(D). Payagang magtatag rin ng sariling "special
economic zones" ang bawat bayan ng Morong,
Hermosa at Dinalupihan.
(E). Ibase sa laki ng kanya-kanyang lupa ang
pamamahagi ng kikitain ng SBMA.
(G). Ibase rin ang alokasyon ng pagbibigay ng
trabaho sa laki ng nasabing mga lupa.
(H). Pabayaang bukas ang pinto ng SBMA na nasa
Morong ng 24 na oras at bukod dito sa magbukas pa
ng pinto sa hangganan naman ng Morong at
Hermosa upang magkaroon ng pagkakataong
41

umunlad rin ang mga nasabing bayan, pati na rin ng
iba pang bayan ng Bataan.
(I). Tapusin ang pagkokonkreto ng mga daang
Morong-Tala-Orani at Morong-Tasig-Dinalupihan para
sa kabutihan ng mga taga-Bataan at tuloy
makatulong sa pangangalaga ng mga kabundukan.
(J). Magkaroon ng sapat na representasyon sa
pamunuan ng SBMA ang Morong, Hermosa at
Bataan.
The municipality of Morong did not take any action on
the petition within thirty (30) days after its submission.
Petitioners then resorted to their power of initiative
under the Local Government Code of 1991. 3 They
started to solicit the required number of signatures 4
to cause the repeal of said resolution. Unknown to
the petitioners, however, the Honorable Edilberto M.
de Leon, Vice Mayor and Presiding Officer of the
Sangguniang Bayan ng Morong, wrote a letter dated
June 11, 1993 to the Executive Director of COMELEC
requesting the denial of " . . . the petition for a local
initiative and/or referendum because the exercise will
just promote divisiveness, counter productive and
futility." 5 We quote the letter, viz:
The Executive Director
COMELEC
Intramuros, Metro Manila
S i r:
In view of the petition filed by a group of proponents
headed by Gov. Enrique T. Garcia, relative to the
conduct of a local initiative and/or referendum for the
annulment of Pambayang Kapasyahan Blg. 10,
Serye 1993, may we respectfully request to deny the
petition referred thereto considering the issues raised
by the proponents were favorably acted upon and
endorsed to Congress and other government
agencies by the Sangguniang Bayan of Morong.
For your information and guidance, we are
enumerating hereunder the issues raised by the
petitioners with the corresponding actions undertaken
by the Sangguniang Bayan of Morong, to wit:
ISSUES RAISED BY PROPONENTS
I. Pawalang-bisa ang Pambayang Kapasyahan Blg.
10, Serye ng taong 1993.
II. Palitan ito ng isang Kapasyahang Pag-anib sa
SSEZ kung:
a) Ibabalik sa Morong ang pag-aaring Grande Island,
kabundukan at Naval Reservation;
b) Ibase sa aring Lupa ng LGU ang kikitain at
mapapasok na manggagawa nila sa SSEZ;
c) Isama ang nasabing lupa sa pagkukuwenta ng
"IRA" ng Morong, Hermosa at Dinalupihan;
d) Makapagtatag ng sariling "economic zones" ang
Morong, Hermosa at Dinalupihan;
e) Pabayaan bukas ang pinto ng Morong patungong
SSEZ at magbukas ng dalawang (2) pinto pa;
(f) Konkretohin ang daang Morong papunta sa Orani
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
at Dinalupihan;
g) Pumili ng SBMA Chairman na taga-ibang lugar.
ACTIONS UNDERTAKEN BY THE SB OF MORONG
1. By virtue of R.A. 7227, otherwise known as the
Bases Conversion Development Act of 1992, all
actions of LGU's correlating on the above issues are
merely recommendatory in nature when such
provisions were already embodied in the statute.
2. Corollary to the notion, the Sangguniang Bayan of
Morong passed and approved Pambayang
Kapasyahan Blg. 18, Serye 1993, requesting
Congress of the Philippines to amend certain
provisions of R.A. 7227, wherein it reasserted its
position embodied in Pambayan Kapasyahan Blg. 08
and Blg. 12, Serye ng taong 1992, (Attached and
marked as Annex "A:) which tackled the same issues
raised by the petitioners particularly items a), b), c),
e), and g).
3. Item d) is already acted upon by BCDA Chairman
Arsenio Bartolome III in its letter to His Excellency
President Fidel V. Ramos, dated May 7, 1993
(Attached and marked as Annex "B") with clarifying
letter from BCDA Vice-Chairman Rogelio L. Singson
regarding lands on Mabayo and Minanga dated June
3, 1993 that only lands inside the perimeter fence are
envisioned to be part of SBMA.
4. Item f), President Ramos in his marginal note over
the letter request of Morong, Bataan Mayor
Bienvenido L. Vicedo, the Sangguniang Bayan and
Congressman Payumo, when the Resolution of
Concurrence to SBMA was submitted last April 6,
1993, order the priority implementation of completion
of Morong-Dinalupihan (Tasik-Road) Project,
including the Morong-Poblacion-Mabayo Road to
DPWH. (Attached and marked as Annex "C").
Based on the foregoing facts, the Sangguniang
Bayan of Morong had accommodated the clamor of
the petitioners in accordance with its limited powers
over the issues. However, the Sangguniang Bayan of
Morong cannot afford to wait for amendments by
Congress of R.A. 7227 that will perhaps drag for
several months or years, thereby delaying the
development of Morong, Bataan.
Henceforth, we respectfully reiterate our request to
deny the petition for a local initiative and/or
referendum because the exercise will just promote
divisiveness, counter productive and futility.
Thank you and more power.
Very truly yours,
(SGD.) EDILBERTO M. DE LEON
Mun. Vice Mayor/Presiding Officer
In its session of July 6, 1993, the COMELEC en banc
resolved to deny the petition for local initiative on the
ground that its subject is "merely a resolution
(pambayang kapasyahan) and not an ordinance." 6
On July 13, 1993, the COMELEC en banc further
resolved to direct Provincial Election Supervisor, Atty.
Benjamin N. Casiano, to hold action on the
authentication of signatures being gathered by
petitioners. 7
42

These COMELEC resolutions are sought to be set
aside in the petition at bench. The petition makes the
following submissions:
5. This is a petition for certiorari and mandamus.
5.01 For certiorari, conformably to Sec. 7, Art. IX of
the Constitution, to set aside Comelec Resolution
Nos. 93-1676 and 93-1623 (Annexes "E" and "H")
insofar as it disallowed the initiation of a local
initiative to annul PAMBAYANG KAPASYAHAN BLG.
10, SERYE 1993 including the gathering and
authentication of the required number of signatures in
support thereof.
5.01.1 As an administrative agency, respondent
Comelec is bound to observe due process in the
conduct of its proceedings. Here, the subject
resolutions, Annexes "E" and "H", were issued ex
parte and without affording petitioners and the other
proponents of the initiative the opportunity to be
heard thereon. More importantly, these resolutions
and/or directives were issued with grave abuse of
discretion. A Sangguniang Bayan resolution being an
act of the aforementioned local legislative assembly
is undoubtedly a proper subject of initiative. (Sec. 32,
Art. VI, Constitution)
5.02 For mandamus, pursuant to Sec. 3, Rule 65,
Rules of Court, to command the respondent Comelec
to schedule forthwith the continuation of the signing
of the petition, and should the required number of
signatures be obtained, set a date for the initiative
within forty-five (45) days thereof.
5.02.1 Respondent Comelec's authority in the matter
of local initiative is merely ministerial. It is duty-bound
to supervise the gathering of signatures in support of
the petition and to set the date of the initiative once
the required number of signatures are obtained.
If the required number of signatures is obtained, the
Comelec shall then set a date for the initiative during
which the proposition shall be submitted to the
registered voters in the local government unit
concerned for their approval within sixty (60) days
from the date of certification by the Comelec, as
provided in subsection (g) hereof, in case of
provinces and cities, forty-five (45) days in case of
municipalities, and thirty (30) days in case of
barangays. The initiative shall then be held on the
date set, after which the results thereof shall be
certified and proclaimed by the Comelec. (Sec. 22,
par. (h) R.A. 7160.
Respondent COMELEC opposed the petition.
Through the Solicitor General, it contends that under
the Local Government Code of 1991, a resolution
cannot be the subject of a local initiative. The same
stance is assumed by the respondent Sangguniang
Bayan of Morong. 8
We grant the petition.
The case at bench is of transcendental significance
because it involves an issue of first impression
delineating the extent of the all important original
power of the people to legislate. Father Bernas
explains that "in republican systems, there are
generally two kinds of legislative power, original and
derivative. Original legislative power is possessed by
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the sovereign people. Derivative legislative power is
that which has been delegated by the sovereign
people to legislative bodies and is subordinate to the
original power of the people." 9
Our constitutional odyssey shows that up until 1987,
our people have not directly exercised legislative
power, both the constituent power to amend or revise
the Constitution or the power to enact ordinary laws.
Section 1, Article VI of the 1935 Constitution
delegated legislative power to Congress, thus "the
legislative power shall be vested in a Congress of the
Philippines, which shall consist of a Senate and a
House of Representatives." Similarly, section 1,
Article VIII of the 1973 Constitution, as amended,
provided that "the Legislative power shall be vested
in a Batasang Pambansa." 10
Implicit in the set up was the trust of the people in
Congress to enact laws for their benefit. So total was
their trust that the people did not reserve for
themselves the same power to make or repeal laws.
The omission was to prove unfortunate. In the 70's
and until the EDSA revolution, the legislature failed
the expectations of the people especially when
former President Marcos wielded lawmaking powers
under Amendment No. 6 of the 1973 Constitution.
Laws which could have bridled the nation's downslide
from democracy to authoritarianism to anarchy never
saw the light of day.
In February 1986, the people took a direct hand in
the determination of their destiny. They toppled down
the government of former President Marcos in a
historic bloodless revolution. The Constitution was
rewritten to embody the lessons of their sad
experience. One of the lessons is the folly of
completely surrendering the power to make laws to
the legislature. The result, in the perceptive words of
Father Bernas, is that the new Constitution became
"less trusting of public officials than the American
Constitution." 11
For the first time in 1987, the system of people's
initiative was thus installed in our fundamental law. To
be sure, it was a late awakening. As early as 1898,
the state of South Dakota has adopted initiative and
referendum in its constitution 12 and many states
have followed suit. 13 In any event, the framers of
our 1987 Constitution realized the value of initiative
and referendum as an ultimate weapon of the people
to negate government malfeasance and misfeasance
and they put in place an overarching system. Thus,
thru an initiative, the people were given the power to
amend the Constitution itself. Sec. 2 of Art. XVII
provides: "Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum
of the total number of registered voters, of which
every legislative district must be represented by at
least three per centum of the registered voters
therein." Likewise, thru an initiative, the people were
also endowed with the power to enact or reject any
act or law by congress or local legislative body.
Sections 1 and 32 of Article VI provide:
Sec. 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a
Senate and a House of Representatives except to the
extent reserved to the people by the provisions on
initiative and referendum.
43

xxx xxx xxx
Sec. 32. The Congress shall, as early as possible,
provide for a system of initiative and referendum, and
the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject
any act or law or part thereof passed by the
Congress or local legislative body after the
registration of a petition therefor signed by at least
ten per centum of the total number of registered
voters, of which every legislative district must be
represented by at least three per centum of the
registered voters thereto.
The COMELEC was also empowered to enforce and
administer all laws and regulations relative to the
conduct of an initiative and referendum. 14
Worthwhile noting is the scope of coverage of an
initiative or referendum as delineated by section 32
Art. VI of the Constitution, supra any act or law
passed by Congress or local legislative body.
In due time, Congress respondent to the mandate of
the Constitution. It enacted laws to put into operation
the constitutionalized concept of initiative and
referendum. On August 4, 1989, it approved Republic
Act No. 6735 entitled "An Act Providing for a System
of Initiative and Referendum and Appropriating Funds
Therefor." Liberally borrowed from American laws, 15
R.A. No. 6735, among others, spelled out the
requirements 16 for the exercise of the power of
initiative and referendum, the conduct of national
initiative and referendum; 17 procedure of local
initiative and referendum; 18 and their limitations. 19
Then came Republic Act No. 7160, otherwise known
as The Local Government Code of 1991. Chapter 2,
Title XI, Book I of the Code governed the conduct of
local initiative and referendum.
In light of this legal backdrop, the essential issue to
be resolved in the case at bench is whether
Pambayang Kapasyahan Blg. 10, serye 1993 of the
Sangguniang Bayan of Morong, Bataan is the proper
subject of an initiative. Respondents take the
negative stance as they contend that under the Local
Government Code of 1991 only an ordinance can be
the subject of initiative. They rely on section 120,
Chapter 2, Title XI, Book I of the Local Government
Code of 1991 which provides: "Local Initiative
Defined. Local initiative is the legal process whereby
the registered voters of a local government unit may
directly propose, enact, or amend any ordinance."
We reject respondents' narrow and literal reading of
the above provision for it will collide with the
Constitution and will subvert the intent of the
lawmakers in enacting the provisions of the Local
Government Code of 1991 on initiative and
referendum.
The Constitution clearly includes not only ordinances
but resolutions as appropriate subjects of a local
initiative. Section 32 of Article VI provides in luminous
language: "The Congress shall, as early as possible,
provide for a system of initiative and referendum, and
the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject
any act or law or part thereof passed by the
Congress, or local legislative body . . ." An act
includes a resolution. Black 20 defines an act as "an
expression of will or purpose . . . it may denote
something done . . . as a legislature, including not
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merely physical acts, but also decrees, edicts, laws,
judgments, resolves, awards, and determinations . . .
." It is basic that a law should be construed in
harmony with and not in violation of the constitution.
21 In line with this postulate, we held in In Re
Guarina that "if there is doubt or uncertainty as to the
meaning of the legislative, if the words or provisions
are obscure, or if the enactment is fairly susceptible
of two or more constructions, that interpretation will
be adopted which will avoid the effect of
unconstitutionality, even though it may be necessary,
for this purpose, to disregard the more usual or
apparent import of the language used." 22
The constitutional command to include acts (i.e.,
resolutions) as appropriate subjects of initiative was
implemented by Congress when it enacted Republic
Act No. 6735 entitled "An Act Providing for a System
of Initiative and Referendum and Appropriating Funds
Therefor." Thus, its section 3(a) expressly includes
resolutions as subjects of initiatives on local
legislations, viz:
Sec. 3. Definition of Terms For purposes of this Act,
the following terms shall mean;
(a) "Initiative" is the power of the people to propose
amendments to the Constitution or to propose and
enact legislations through an election called for the
purpose.
There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a
petition proposing amendments to the Constitution.
a.2. Initiative on statutes which refers to a petition
proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a
petition proposing to enact a regional, provincial, city,
municipal, or barangay law, resolution, or ordinance.
(Emphasis ours)
Similarly, its section 16 states: "Limitations Upon
Local Legislative Bodies Any proposition on
ordinance or resolution approved through the system
of initiative and referendum as herein provided shall
not be repealed, modified or amended, by the local
legislative body concerned within six (6) months from
the date therefrom . . . ." On January 16, 1991, the
COMELEC also promulgated its Resolution No. 2300
entitled "In Re Rules and Regulations Governing the
Conduct of Initiative on the Constitution, and Initiative
and Referendum, on National and Local Laws." It
likewise recognized resolutions as proper subjects of
initiatives. Section 5, Article I of its Rules states:
"Scope of power of initiative The power of initiative
may be exercised to amend the Constitution, or to
enact a national legislation, a regional, provincial,
city, municipal or barangay law, resolution or
ordinance."
There can hardly be any doubt that when Congress
enacted Republic Act No. 6735 it intend resolutions to
be proper subjects of local initiatives. The debates
confirm this intent. We quote some of the
interpellations when the Conference Committee
Report on the disagreeing provisions between
Senate Bill No. 17 and House Bill No. 21505 were
being considered in the House of Representatives,
viz:
44

THE SPEAKER PRO TEMPORE. The Gentleman
from Camarines Sur is recognized.
MR. ROCO. On the Conference Committee Report
on the disagreeing provisions between Senate Bill
No. 17 and the consolidated House Bill No. 21505
which refers to the system providing for the initiative
ad referendum, fundamentally, Mr. Speaker, we
consolidated the Senate and the House versions, so
both versions are totally intact in the bill. The
Senators ironically provided for local initiative and
referendum and the House of Representatives
correctly provided for initiative and referendum on the
Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the
pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer
just a few questions?
THE SPEAKER PRO TEMPORE. What does the
sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will
please proceed.
MR. ALBANO. I heard the sponsor say that the only
difference in the two bills was that in the Senate
version there was a provision for local initiative and
referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provided
purely for local initiative and referendum, whereas in
the House version, we provided purely for national
and constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that
the two provisions were incorporated.?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete
initiative and referendum both in the constitutional
amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal
resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in
consonance with the provision of the Constitution
whereby it mandates this Congress to enact the
enabling law, so that we shall have a system which
can be done every five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For
constitutional amendments to the 1987 Constitution,
it is every five years. 23
Contrary to the submission of the respondents, the
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subsequent enactment of the local Government Code
of 1991 which also dealt with local initiative did not
change the scope of its coverage. More specifically,
the Code did not limit the coverage of local initiatives
to ordinances alone. Section 120, Chapter 2, Title IX
Book I of the Code cited by respondents merely
defines the concept of local initiative as the legal
process whereby the registered voters of a local
government unit may directly propose, enact, or
amend any ordinance. It does not, however, deal with
the subjects or matters that can be taken up in a local
initiative. It is section 124 of the same Code which
does. It states:
Sec. 124. Limitations on Local Initiatives. (a) The
power of local initiative shall not be exercised more
than once a year.
(b) Initiative shall extend only to subjects or matters
which are within the legal powers of the Sanggunians
to enact.
xxx xxx xxx
This provision clearly does not limit the application of
local initiatives to ordinances, but to all "subjects or
matters which are within the legal powers of the
Sanggunians to enact," which undoubtedly includes
resolutions. This interpretation is supported by
Section 125 of the same Code which provides:
"Limitations upon Sanggunians. Any proposition or
ordinance approved through the system of initiative
and referendum as herein provided shall not be
repealed, modified or amended by the sanggunian
concerned within six (6) months from the date of the
approval thereof . . . ." Certainly, the inclusion of the
word proposition is inconsistent with respondents'
thesis that only ordinances can be the subject of local
initiatives. The principal author of the Local
Government Code of 1991, former Senator Aquilino
Pimentel, espouses the same view. In his
commentaries on the said law, he wrote, viz: 24
4. Subject Matter Of Initiative. All sorts of measures
may be the subject of direct initiative for as long as
these are within the competence of the Sanggunian
to enact. In California, for example, direct initiatives
were proposed to enact a fishing control bill, to
regulate the practice of chiropractors, to levy a
special tax to secure a new library, to grant a
franchise to a railroad company, and to prevent
discrimination in the sale of housing and similar bills.
Direct initiative on the local lever may, therefore,
cover all kinds of measures provided that these are
within the power of the local Sanggunians to enact,
subject of course to the other requisites enumerated
in the Section.
5. Form of Initiative. Regarding the form of the
measure, the section speaks only of "ordinance,"
although the measure may be contained in a
resolution. If the registered voters can propose
ordinances, why are they not allowed to propose
resolutions too? Moreover, the wording of Sec. 125,
below, which deals not only with ordinances but with
"any proposition" implies the inclusion of resolutions.
The discussion hereunder will also show support for
the conclusion that resolutions may indeed be the
subject of local initiative.
We note that respondents do not give any reason
45

why resolutions should not be the subject of a local
initiative. In truth, the reason lies in the well known
distinction between a resolution and an ordinance
i.e., that a resolution is used whenever the legislature
wishes to express an opinion which is to have only a
temporary effect while an ordinance is intended to
permanently direct and control matters applying to
persons or things in general. 25 Thus, resolutions are
not normally subject to referendum for it may destroy
the efficiency necessary to the successful
administration of the business affairs of a city. 26
In the case at bench, however, it can not be argued
that the subject matter of the resolution of the
municipality of Morong merely temporarily affects the
people of Morong for it directs a permanent rule of
conduct or government. The inclusion of Morong as
part of the Subic Special Economic Zone has far
reaching implications in the governance of its people.
This is apparent from a reading of section 12 of
Republic Act No. 7227 entitled "An Act Accelerating
the Conversion of Military Reservations Into Other
Productive Uses, Creating the Bases Conversion and
Development Authority For This Purpose, Providing
Funds Therefor and For Other Purposes." to wit:
Sec. 12. Subic Special Economic Zone. Subject to
the concurrence by resolution of the sangguniang
panlungsod of the City of Olongapo and the
sangguniang bayan of the Municipalities of Subic,
Morong and Hermosa, there is hereby created a
Special Economic and Free-port Zone consisting of
the City of Olongapo and the Municipality of Subic,
Province of Zambales, the lands occupied by the
Subic Naval Base and its contiguous extensions as
embraced, covered, and defined by the 1947 Military
Bases Agreement between the Philippines and the
United States of America as amended, and within the
territorial jurisdiction of the Municipalities of Morong
and Hermosa, Province of Bataan, hereinafter
referred to a as the Subic Special Economic Zone
whose metes and bounds shall be delineated in a
proclamation to be issued by the President of the
Philippines. Within thirty (30) days after the approval
of this Act, each local government unit shall submit its
resolution of concurrence to join the Subic Special
Economic Zone to the Office of the President.
Thereafter, the President of the Philippines shall
issue a proclamation defining the metes and bounds
of the zone as provided herein.
The abovementioned zone shall be subject to the
following policies:
(a) Within the framework and subject to the mandate
and limitations of the Constitution and the pertinent
provisions of the Local Government Code, the Subic
Special Economic Zone shall be developed into a
self-sustaining, industrial, commercial, financial and
investment center to generate employment
opportunities in and around the zone and to attract
and promote productive foreign investments;
(b) The Subic Special Economic Zone shall be
operated and managed as a separate customs
territory ensuring free flow or movement of goods and
capital within, into a exported out of the Subic Special
Economic Zone, as well as provide incentives such
as tax and duty-free importations of raw material,
capital and equipment. However, exportations or
removal of goods from the territory of the Subic
Special Economic Zone to the other parts of the
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Philippine territory shall be subject to customs duties
and taxes under the Customs and Tariff Code and
other relevant tax laws of the Philippines:
(c) The provision of existing laws, rules and
regulations to the contrary notwithstanding, no taxes,
local and national, shall be imposed within the Subic
Special Economic Zone. In lieu of paying taxes, three
percent (3%) of the of the gross income earned by all
businesses and enterprises within the Subic Special
Economic Zone shall be remitted to the National
Government one percent (1%) each to the local
government units affected by the declaration of the
zone in proportion to their population area, and other
factors. In addition, there is hereby established a
development fund of one percent (1%) of the gross
income earned by all businesses and enterprises
within the Subic Special Economic Zone to be utilized
for the development of municipalities outside the City
of Olongapo and the Municipality of Subic, and other
municipalities contiguous to the base areas.
In case of conflict between national and local laws
with respect to tax exemption privileges in the Subic
Special Economic Zone, the same shall be resolved
in favor of the latter;
(d) No exchange control policy shall be applied and
free markets for foreign exchange, gold, securities
and futures shall be allowed and maintained in the
Subic Special Economic Zone;
(e) The Central Bank, through the Monetary Board,
shall supervise and regulate the operations of banks
and other financial institutions within the Subic
Special Economic Zone;
(f) Banking and finance shall be liberalized with the
establishment of foreign currency depository units of
local commercial banks and offshore banking units of
foreign banks with minimum Central Bank regulation;
(g) Any investor within the Subic Special Economic
Zone whose continuing investment shall not be less
than Two hundred fifty thousand dollars ($250,000),
his/her spouse and dependent children under twenty-
one (21) years of age, shall be granted permanent
resident status within the Subic Special Economic
Zone. They shall have freedom of ingress and egress
to and from the Subic Special Economic Zone without
any need of special authorization from the Bureau of
Immigration and Deportation. The Subic Bay
Metropolitan Authority referred to in Section 13 of this
Act may also issue working visas renewable every
two (2) years to foreign executives and other aliens
possessing highly-technical skills which no Filipino
within the Subic Special Economic Zone possesses,
as certified by the Department of Labor and
Employment. The names of aliens granted
permanent residence status and working visas by the
Subic Bay Metropolitan Authority shall be reported to
the Bureau of Immigration and Deportation within
thirty (30) days after issuance thereof.
(h) The defense of the zone and the security of its
perimeters shall be the responsibility of the National
Government in coordination with the Subic Bay
Metropolitan Authority. The Subic Bay Metropolitan
Authority shall provide and establish its own internal
security and fire fighting forces; and
(i) Except as herein provided, the local government
46

units comprising the Subic Special Economic Zone
shall retain their basic autonomy and identity. The
cities shall be governed by their respective charters
and the municipalities shall operate and function in
accordance with Republic Act No. 7160, otherwise
known as the Local Government Code of 1991.
In relation thereto, section 14 of the same law
provides:
Sec. 14. Relationship with the Conversion Authority
and the Local Government Units.
(a) The provisions of existing laws, rules and
regulations to the contrary notwithstanding, the Subic
Authority shall exercise administrative powers, rule-
making and disbursement of funds over the Subic
Special Economic Zone in conformity with the
oversight function of the Conversion Authority.
(b) In case of conflict between the Subic Authority
and the local government units concerned on matters
affecting the Subic Special Economic zone other than
defense and security, the decision of the Subic
Authority shall prevail.
Considering the lasting changes that will be wrought
in the social, political, and economic existence of the
people of Morong by the inclusion of their
municipality in the Subic Special Economic Zone, it is
but logical to hear their voice on the matter via an
initiative. It is not material that the decision of the
municipality of Morong for the inclusion came in the
form of a resolution for what matters is its enduring
effect on the welfare of the people of Morong.
Finally, it cannot be gained that petitioners were
denied due process. They were not furnished a copy
of the letter-petition of Vice Mayor Edilberto M. de
Leon to the respondent COMELEC praying for denial
of their petition for a local initiative on Pambayang
Kapasyahan Blg. 10, Serye 1993. Worse, respondent
COMELEC granted the petition without affording
petitioners any fair opportunity to oppose it. This
procedural lapse is fatal for at stake is not an ordinary
right but the sanctity of the sovereignty of the people,
their original power to legislate through the process of
initiative. Ours is the duty to listen and the obligation
to obey the voice of the people. It could well be the
only force that could foil the mushrooming abuses in
government.
IN VIEW WHEREOF, the petition is GRANTED and
COMELEC Resolution 93-1623 dated July 6, 1993
and Resolution 93-1676 dated July 13, 1993 are
ANNULLED and SET ASIDE. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Quiason, Vitug, Kapunan and
Mendoza, JJ., concur.
Feliciano, Padilla, Bidin, JJ., are on leave.
# FOOTNOTES
9 Constitutional Structure and Powers of
Government, 1991 ed., p. 39.
10 Section 1, Article VIII of the original 1973
Constitution provides: "The Legislative power shall be
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Lizanilla J. Amarga (0928-507-6166)
vested in a National Assembly." Under Amendment
No. 6 of the same Constitution, legislative power was
shared by the President.
11 Sounding Board, Today's issue of September 6,
1994.
12 State ex rel. Wagner v. Summers, 33 SD 40, 144
NW 730.
13 Among them, California, Illinois, Iowa, Kansas,
Massachusetts, Minnesota, Nebraska, Oklahoma,
Oregon, Utah, and Washington.
14 Section 2(1) C, Art. IX of the 1987 Constitution.
15 Vol. VI, Journal of the House of Representatives,
Second Regular Session,
1988-89, February 14, 1989, p. 141 Sponsorship
Speech of then Congressman, now Senator Raul
Roco of H.B. No. 21505.
16 Sec. 5 of R.A. No. 6735.
17 Sec. 8, ibid.
20 Law Dictionary, 5th ed., p. 24.
21 Agpalo, Statutory Construction, 2nd ed., 1990 ed.,
p. 189 citing PLDT v. Collector of Internal Revenue,
90 Phil. 674; Hebron v. Reyes, 104 Phil. 175;
Primicias v. Fugoso, 80 Phil. 1.
22 24 Phil. 37, 47 [1913].
23 Journal of the House of Representatives, Vol. VIII,
June 8, 1989, p. 960; see also Vol. VII, June 7, 1990,
p. 762, sponsorship remarks of Rep. Acosta; Vol. I,
July 24, 1990, p. 92, sponsorship remarks of Rep.
Puzon.
24 The Local Government Code of 1991, The Key to
National Development,
pp. 229-230.
25 Words and Phrases, Permanent Edition, Vol. 37 A,
p. 6, citing Coney v. Texas Division of United
Daughters of the Confederacy, Tex., 164 S.W. 24, 26;
see also Allen v. Wise, 50 S.E. 2d 69, 71, 204 Ga.
415.
26 122 ALR, Annotated, p. 770 citing Hoping v.
Richmond, 170 Cal. 605, 150 p. 977.
The Lawphil Project - Arellano Law Foundation
==========================
Marriage and the Nat’l Statistics Office
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 01:05:00 12/29/2008
Filed Under: Government, Family
THE year 2008 started as a difficult year for priests
who wanted to serve their flock by being able to
solemnize marriages. Now that the year is ending,
the problem has eased, but not completely.
Last January, I wrote about some 30 priests whose
licenses to solemnize marriage had expired at the
47

end of 2007 and had decided not to renew their
license in protest against the new requirements for
renewal imposed by the National Statistics Office
(NSO).
Apparently, not satisfied with the training priests get
in seminaries, the NSO decided to require (1) proof of
attendance in a two-day orientation seminar it
conducted for solemnizing officers, (2) a “sworn
statement containing the brief history of the
religion/religious sect, and (3) the list of 200 bona fide
active members stating therein their complete
address and signed by the members.” Ah, yes, also a
certificate of live birth!
Mercifully, the requirement of attendance in a two-day
seminar was repudiated by higher authorities and
was dropped. But the requirement of a certificate of
live birth remains and it is giving my religious superior
headaches. How so?
My authorization to perform civil marriages expires at
the end of this year and I have four marriages of
former students lined up for January and more in the
next months. The experience I have gone through to
have my authorization renewed has been very funny
if not exasperating.
The municipio of my hometown burned down during
the Japanese occupation and, for that reason, there
is no record of my birth in the NSO. But, I assure you;
I was born a live baby boy!
To prove to civil authorities that I did not just fall from
the sky, I presented an original birth certificate, which
one of my sisters had found in her “baul.” Apparently
my mother had obtained it when she was about to
enroll me to start schooling in a public school. When
it was presented to satisfy the requirement of
certificate of live birth for the renewal of my authority
to solemnize marriage, it was rejected as “expired.”
That’s a new one! Apparently in this Republic your
proof of live birth has a shelf life!
When I told my older brother in the province about
this, he told my sister to dig deeper in the “baul” to
look for a sworn affidavit proving my birth and those
of my siblings. It had been obtained in 1997. My
sister found it. But it still was not good enough for the
brilliant bureaucrats.
And to think that I have been solemnizing marriages
since 1966 with nary a complaint from anyone
(except from one former student for whose ceremony
I forgot to show up)! Incidentally, I am not the only
one tossed about in this ridiculous boat. Even Bishop
Federico Escaler is having a similar difficulty for want
of proof of live birth! I am sure he did not fall from the
sky either.
The NSO requirement might look less ridiculous if
applied to priests getting their authorization for the
first time. It is absolutely insane for those who for a
long time have been routinely renewing theirs.
Has the law really made it so difficult for priests to
have their authorization renewed? The law has not
done so; but the zealous NSO has.
The requirement for the grant of license to solemnize
marriages is found in the Family Code. Article 7(2) of
the Code enumerates those who may solemnize
Xavier University – College of Law
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marriages and includes: “Any priest, rabbi, imam, or
minister of any church or religious sect duly
authorized by his church or religious sect and
registered with the civil registrar general, acting within
the limits of the authority granted him by his church or
religious sect and provided that at least one of the
contracting parties belongs to the solemnizing
officer’s church or religious sect.”
From this it can be seen that it is the head of the
church who has been authorized to determine who
among its members may solemnize marriages. What
then is the role of the civil registrar? As far as the
general authority of the priest is concerned, the
registrar’s only role is to see if the person has been
authorized by his religious head and thereafter to
issue the license as official proof that the person has
been authorized by his religious head. But as to
whether the authorized person may perform a
specific marriage, the registrar’s role is to determine if
at least one of the contracting parties belongs to the
church of the authorized officer. As to the general
limits of the power of the solemnizing officer, the
secretary of justice said in 1989, commenting on
Republic Act 6514: “the question of the extent of the
territorial jurisdiction over which a priest or other
religious personalities can perform marriage rites
would depend not upon the authority granted him by
the Office of the Civil Registrar General, but upon the
authority conferred upon him by his church or
religious organization.”
I have combed through the powers of the Civil
Registrar in the Civil Registry Law and the
responsibilities of the NSO (which implements the
Civil Registry Law), and I find no delegation
whatsoever of a power to require more than what the
Family Code requires. The duty of the NSO is to
“Register solemnizing officers authorized by their
religious leaders to officiate marriage in accordance
with the provisions of Article 7, paragraph 2 of the
Family Code.” It is a ministerial task, which leaves the
registrar no room for creativity.
In two more days it will be 2009. Will the NSO give
me enforced rest from solemnizing marriages?
====================================
Choosing Supreme Court justices
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:15:00 11/10/2008
Filed Under: Judiciary (system of justice)
MANILA, Philippines - Lawrence Tribe put it very well
when he said that “the answers we actually get when
we ask questions [about constitutional issues]
depend to some degree on who is answering them—
including who is sitting on the Supreme Court at the
time we ask.” And he quotes Justice Robert H.
Jackson as saying, “We are not final because we are
infallible, we are infallible because we are final.” But,
of course, this is only until a later Court says it was
not so final after all.
In recent months we have had decisions coming from
the Supreme Court characterized by strong prevailing
opinions and equally strong dissenting opinions. You
can almost predict with precision which justices will
take which side. The latest one, the one on the MOA-
48

AD, could have gone either way depending on which
side one swing vote would go. And people are
speculating who the swing vote was and why.
Those who have been following the direction of US
Supreme Court decisions cannot escape noticing
how sharply divided they have also been. Crucial
issues about abortion, state powers, school prayer,
right to bear arms, war powers and others have been
decided by a 5-4 vote with the outcome depending on
which side Justice Anthony Kennedy votes. Although
the votes divide along liberal or conservative
positions, at bottom they can really be for or against
the president’s ideological inclination.
Our Supreme Court has also had a history of being
linked with the preferences of the incumbent
president. It was most pronounced during the
authoritarian years when the Supreme Court, not
without good reason, was often referred to as the
Marcos Court. (I remember the late Justice Cecilia
Muñoz Palma coming to my office at the time when
she was being considered for the Supreme Court.
She asked me what I thought she should say
because she was being asked whether she was
loyal.) Thus it was that a good number of the
provisions of the 1987 Constitution were precisely
introduced to reverse decisions of the Marcos years.
My impression is that the influence of the president
was not so pronounced during the Cory years and
the Ramos years. I prefer not to say anything about
the current Supreme Court.
In the coming year the retirement of seven justices
will create an equal number of vacancies in the
Supreme Court. Will the political preferences of the
president have a role in the choice of new justices? I
say political preferences for good reason. Our
justices have not been known for dividing along
ideological lines.
The division among US Supreme Court justices is
usually along ideological preferences, and the search
for new justices is dictated by ideological alignment
for or against the president who might be liberal or
conservative. Thus, Jeffrey Toobin’s recent
fascinating book, “The Nine,” about the US Supreme
Court, concludes: “So one factor—and one factor
only—will determine the future of the Supreme Court:
the outcome of presidential elections. Presidents pick
justices to extend their legacies.” He adds: “We can
expect nothing more and nothing less than the Court
we deserve.”
Toobin’s conclusion could just as well be descriptive
of our current Supreme Court. And there is no reason
to believe that the Supreme Court of the coming year
will be any different. The President will have the
opportunity next year to choose seven men and
women of her persuasion. Yes, seven! Perhaps even
eight!
Under the 1935 Constitution the president’s choice of
justices of the Supreme Court was limited by the
need for confirmation by the Commission on
Appointments.
Under the 1973 Constitution there was no check on
the president’s appointing authority.
The 1987 Constitution did not revive the need for
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
confirmation by the Commission on Appointments in
the belief that confirmation by the Commission on
Appointments had made the process too political in a
pejorative sense. Hence was created the Judicial and
Bar Council to act as a check on the appointing
authority. Has this been an improvement?
The Judicial and Bar Council consists of the chief
justice as ex officio chairman, the secretary of justice,
a representative from Congress, together with a
professor of law, a retired member of the Supreme
Court, and a representative of the private sector as
regular members. The regular members are
appointed by the president with the consent of the
Commission on Appointments. The President can
appoint only from a list of at least three names; but
she is free to reject all of them and ask for more
names until the preferred name surfaces.
The fruit of the pudding is in the eating. You be the
judge of the justices appointed under this system.
Without a doubt, the preferences of the president are
a factor in the choice of the nominees produced by
the Judicial and Bar Council.
Of course, presidential preference is also a factor in
the choice of US Supreme Court justices. But the
major difference between the US process and the
Philippine process of choosing is that in the United
States the president’s preference is known ahead of
time. It is the president who makes the initial
nomination and the president’s nominee is subjected
to a rigorous public hearing which can result in
rejection, as in the case of Robert Bork. The
expectation of a strong opposition can cause a
nominee to withdraw, as happened in the recent case
of Harriet Miers. Nothing like these can happen in the
Judicial and Bar Council. In our system, the
president’s communicated preference can be
sandwiched and disguised by the JBC between two
foils.
Serious talk about constitutional amendment after the
2010 elections is growing in strength. If we should
have an amendatory process, I am certain that one of
the provisions which will be subjected to examination
is the manner of choosing Supreme Court justices
and other appellate justices. Until this happens, we
have to make the present system work.
=============================
Appendix B
Brilliant, Versatile and Venerable*
Brilliant, versatile and venerable. These three words
sum up my overall impression of Father Joaquin G.
Bernas, SJ. He is a Jesuit priest, lawyer, educator,
author, journalist, constitution maker, spiritual guru,
business adviser and civic leader par excellence.
One who regularly reads his incisive newspaper
columns would think that opinion writing is his main
vocation. One who hears his inspiring homilies would
easily conclude that priesthood must occupy all his
attention. Indeed, he excels in everything he does.
The same degree of excellence characterizes his
every pursuit.
Today, however, I would like to pay tribute to him as a
respected gentleman of the law. I am now on my
tenth year as a member of the Supreme Court and,
during all that time outside the hallowed halls of our
highest tribunal, no one else but he has played a
more significant role in shaping constitutional law
49

jurisprudence. His monumental treatises on the 1973
and the 1987 Constitution are the virtual political law
bibles in our country. No decision touching on the
Constitution is ever complete or correct without citing
Fr. Bernas.
No wonder he is the favorite amicus curiae of the
Court. Very rare (less than once a year on the
average) are the occasions when the Tribunal calls
on amici; but on almost all those occasions during my
incumbency, he has been invited to enlighten us in
tackling the most perplexing litigations.[1] Indeed,
during my almost a decade of being a justice, no one
else has been invited for as many times.
I have not always agreed with him,[2] but I have
always welcomed his views on all important
constitutional issues facing the Court. It is easy to
agree with him, because he backs up his views with
disciplined wisdom, untrammeled authority and
methodized logic. By the same token, it is very
difficult -- even dangerous -- to disagree with him, lest
in the process one is exposed as an unfettered
ignoramus; or, worse, as an eclectic fool.
Xavier University – College of Law
Lizanilla J. Amarga (0928-507-6166)
of a crime and the compelling reason for the
imposition of the death penalty in each particular
case. On the other hand, I believed that the
Constitution had lodged in Congress, not in the
Supreme Court, the responsibility of determining the
“compelling reasons” and the “heinous crimes” upon
which would depend the imposition of the capital
penalty. Thus, the Court merely applied the law.
========================================
============
But foremost constitutionalist, Fr. Joaquin G. Bernas
(S.J.) is firm in his belief, thus, "RA 6375 on
Referendum and Initiative has been declared dead
nine years ago and no later Supreme Court can
resuscitate it. To do so would be to exercise a
legislative power which the court does not have."
Only Congress or a Constitutional Convention can do
so. A People's Initiative can only make amendments,
not revise the constitution in its entirety from a
presidential to parliamentary form.

I firmly believe that Fr. Bernas is extremely qualified

to be a member of the Supreme Court. I recall that
several years ago, then Chief Justice Andres R.
Narvasa -- who also chaired the Judicial and Bar
Council -- informally asked the justices for
nominations to the vacancy in the Court then. Among
the many legal eagles suggested, only one was the
unanimous choice: Joaquin G. Bernas. But when
informed of the justices’ choice, he respectfully
declined.

I have never known for certain why he opted out.

However, I can say with personal conviction that his
refusal was a testament to his integrity. He did not
want to be restricted from expressing his views
publicly. He preferred the role of a sage -- a guide for
decision-makers in government, in business and in
the personal sphere -- unbound by the distance and
ethical limitations of a magistrate. And he chose to
influence people on a simpler and more personal
level.

I am certain that his appointment to the Supreme

Court would have been a shining moment in our
judicial history. But like the very humble Jesus who is
happiest when tending His sheep, he chose to
continue dedicating his life to the Lord as a personal
shepherd to His flock.

* I wrote this tribute to Fr. Joaquin G.

Bernas, SJ, at the request of the Ateneo Law Journal,
which published it in its September 2004 edition.

[1] He was an amicus curiae in People v.

Malabago, 333 Phil. 20, December 2, 1996; Manila
Prince Hotel v. GSIS, 335 Phil. 82, February 3, 1997;
Francisco v. House of Representatives, 415 SCRA
44, November 10, 2003; Tecson v. Commission on
Elections, 424 SCRA 277, March 3, 2004. His
Memorandum in Manila Prince Hotel v. GSIS was
also quoted in Army and Navy Club of Manila v. Court
of Appeals, 337 Phil. 482, April 8, 1997.

[2] For instance, in my book Leadership by

Example: The Davide Standard (1999), I specifically
related my disagreement with Fr. Bernas. As amicus
curiae in People v. Malabago (ibid.), he opined that
courts had the duty of determining the heinousness
50