G.R. No.

119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner,

vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the
mischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to the
House of Representatives be "a registered voter in the district in which he shall be elected, and a resident
thereof for a period of not less than one year immediately preceding the election." 2 The mischief which
this provision reproduced verbatim from the 1973 Constitution seeks to prevent is the possibility of a
"stranger or newcomer unacquainted with the conditions and needs of a community and not identified
with the latter, from an elective office to serve that community." 3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8: 4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED

IMMEDIATELY PRECEDING THE ELECTION: __________ Years
and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the
First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and
Disqualification" 5 with the Commission on Elections alleging that petitioner did not meet the constitutional
requirement for residency. In his petition, private respondent contended that Mrs. Marcos lacked the
Constitution's one year residency requirement for candidates for the House of Representatives on the
evidence of declarations made by her in Voter Registration Record 94-No. 3349772 6and in her Certificate
of Candidacy. He prayed that "an order be issued declaring (petitioner) disqualified and canceling the
certificate of candidacy." 7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the
entry "seven" months to "since childhood" in item no. 8 of the amended certificate. 8 On the same day,
the Provincial Election Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on

the ground that it is filed out of time, the deadline for the filing of the same having
already lapsed on March 20, 1995. The Corrected/Amended Certificate of Candidacy
should have been filed on or before the March 20, 1995 deadline. 9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's
Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed
with the head office on the same day. In said Answer, petitioner averred that the entry of the word
"seven" in her original Certificate of Candidacy was the result of an "honest
misinterpretation" 10 which she sought to rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as her
domicile or residence. 11 Impugning respondent's motive in filing the petition seeking her disqualification,
she noted that:

When respondent (petitioner herein) announced that she was intending to register as
a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner
immediately opposed her intended registration by writing a letter stating that "she is
not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent had
registered as a voter in Tolosa following completion of her six month actual residence
therein, petitioner filed a petition with the COMELEC to transfer the town of Tolosa
from the First District to the Second District and pursued such a move up to the
Supreme Court, his purpose being to remove respondent as petitioner's opponent in
the congressional election in the First District. He also filed a bill, along with other
Leyte Congressmen, seeking the creation of another legislative district to remove the
town of Tolosa out of the First District, to achieve his purpose. However, such bill did
not pass the Senate. Having failed on such moves, petitioner now filed the instant
petition for the same objective, as it is obvious that he is afraid to submit along with
respondent for the judgment and verdict of the electorate of the First District of Leyte
in an honest, orderly, peaceful, free and clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2
to 1, 13 came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-
009 meritorious; 2) striking off petitioner's Corrected/Amended Certificate of Candidacy of March 31,
1995; and 3) canceling her original Certificate of Candidacy. 14 Dealing with two primary issues, namely,
the validity of amending the original Certificate of Candidacy after the lapse of the deadline for filing
certificates of candidacy, and petitioner's compliance with the one year residency requirement, the
Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word
"Seven" (months) was a result of an "honest misinterpretation or honest mistake" on
her part and, therefore, an amendment should subsequently be allowed. She averred
that she thought that what was asked was her "actual and physical" presence in
Tolosa and not residence of origin or domicile in the First Legislative District, to which
she could have responded "since childhood." In an accompanying affidavit, she
stated that her domicile is Tacloban City, a component of the First District, to which
she always intended to return whenever absent and which she has never
abandoned. Furthermore, in her memorandum, she tried to discredit petitioner's
theory of disqualification by alleging that she has been a resident of the First
Legislative District of Leyte since childhood, although she only became a resident of
the Municipality of Tolosa for seven months. She asserts that she has always been a
resident of Tacloban City, a component of the First District, before coming to the
Municipality of Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa,
respondent announced that she would be registering in Tacloban City so that she
can be a candidate for the District. However, this intention was rebuffed when
petitioner wrote the Election Officer of Tacloban not to allow respondent since she is
a resident of Tolosa and not Tacloban. She never disputed this claim and instead
implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest

mistake." Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on
the basis of her Answer, she was quite aware of "residence of origin" which she
interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her
Certificate of Candidacy. Her explanation that she thought what was asked was her
actual and physical presence in Tolosa is not easy to believe because there is none
in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of
Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be
elected immediately preceding the election." Thus, the explanation of respondent
fails to be persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation,

therefore, is devoid of merit.

To further buttress respondent's contention that an amendment may be made, she

cited the case of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on
the case of Alialy is misplaced. The case only applies to the "inconsequential
deviations which cannot affect the result of the election, or deviations from provisions
intended primarily to secure timely and orderly conduct of elections." The Supreme
Court in that case considered the amendment only as a matter of form. But in the
instant case, the amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years of residence in the
place where respondent seeks to be elected is a substantial matter which determines
her qualification as a candidacy, specially those intended to suppress, accurate
material representation in the original certificate which adversely affects the filer. To
admit the amended certificate is to condone the evils brought by the shifting minds of
manipulating candidate, of the detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her
residency in order to prolong it by claiming it was "since childhood" is to allow an
untruthfulness to be committed before this Commission. The arithmetical accuracy of
the 7 months residency the respondent indicated in her certificate of candidacy can
be gleaned from her entry in her Voter's Registration Record accomplished on
January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for
6 months at the time of the said registration (Annex A, Petition). Said accuracy is
further buttressed by her letter to the election officer of San Juan, Metro Manila,
dated August 24, 1994, requesting for the cancellation of her registration in the
Permanent List of Voters thereat so that she can be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different documents show the
respondent's consistent conviction that she has transferred her residence to Olot,
Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the
last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the respondent's
contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be

admitted by this Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that
respondent has not complied with the one year residency requirement of the
Constitution.
In election cases, the term "residence" has always been considered as synonymous
with "domicile" which imports not only the intention to reside in a fixed place but also
personal presence in-that place, coupled with conduct indicative of such intention.
Domicile denotes a fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs. Eliseo
Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's
case, when she returned to the Philippines in 1991, the residence she chose was not
Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is pointed to
Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District
since childhood is nothing more than to give her a color of qualification where she is
otherwise constitutionally disqualified. It cannot hold ground in the face of the facts
admitted by the respondent in her affidavit. Except for the time that she studied and
worked for some years after graduation in Tacloban City, she continuously lived in
Manila. In 1959, after her husband was elected Senator, she lived and resided in San
Juan, Metro Manila where she was a registered voter. In 1965, she lived in San
Miguel, Manila where she was again a registered voter. In 1978, she served as
member of the Batasang Pambansa as the representative of the City of Manila and
later on served as the Governor of Metro Manila. She could not have served these
positions if she had not been a resident of the City of Manila. Furthermore, when she
filed her certificate of candidacy for the office of the President in 1992, she claimed to
be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994,
respondent wrote a letter with the election officer of San Juan, Metro Manila
requesting for the cancellation of her registration in the permanent list of voters that
she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts
manifest that she could not have been a resident of Tacloban City since childhood up
to the time she filed her certificate of candidacy because she became a resident of
many places, including Metro Manila. This debunks her claim that prior to her
residence in Tolosa, Leyte, she was a resident of the First Legislative District of
Leyte since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her
domicile. She registered as a voter in different places and on several occasions
declared that she was a resident of Manila. Although she spent her school days in
Tacloban, she is considered to have abandoned such place when she chose to stay
and reside in other different places. In the case of Romualdez vs. RTC(226 SCRA
408) the Court explained how one acquires a new domicile by choice. There must
concur: (1) residence or bodily presence in the new locality; (2) intention to remain
there; and (3) intention to abandon the old domicile. In other words there must
basically be animus manendi with animus non revertendi. When respondent chose to
stay in Ilocos and later on in Manila, coupled with her intention to stay there by
registering as a voter there and expressly declaring that she is a resident of that
place, she is deemed to have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct
indicative of such intention. Respondent's statements to the effect that she has
always intended to return to Tacloban, without the accompanying conduct to prove
that intention, is not conclusive of her choice of residence. Respondent has not
presented any evidence to show that her conduct, one year prior the election,
showed intention to reside in Tacloban. Worse, what was evident was that prior to
her residence in Tolosa, she had been a resident of Manila.
 It is evident from these circumstances that she was not a resident of the First District
of Leyte "since childhood."

To further support the assertion that she could have not been a resident of the First
District of Leyte for more than one year, petitioner correctly pointed out that on
January 28, 1995 respondent registered as a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she
resided in the municipality of Tolosa for a period of six months. This may be
inconsequential as argued by the respondent since it refers only to her residence in
Tolosa, Leyte. But her failure to prove that she was a resident of the First District of
Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she
had been a resident of the district for six months only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied
petitioner's Motion for Reconsideration 16 of the April 24, 1995 Resolution declaring her not qualified to
run for the position of Member of the House of Representatives for the First Legislative District of
Leyte. 17 The Resolution tersely stated:

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to

DENY it, no new substantial matters having been raised therein to warrant re-
examination of the resolution granting the petition for disqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the
results of the canvass show that she obtained the highest number of votes in the congressional
elections in the First District of Leyte. On the same day, however, the COMELEC reversed itself and
issued a second Resolution directing that the proclamation of petitioner be suspended in the event
that she obtains the highest number of votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming
winner of the elections for the congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner
alleged that the canvass showed that she obtained a total of 70,471 votes compared to the 36,833
votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the
Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of the
First District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner
comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may
be classified into two general areas:

I. The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of
Leyte for a period of one year at the time of the May 9, 1995 elections.

II. The Jurisdictional Issue

a) Prior to the elections

 Whether or not the COMELEC properly exercised its jurisdiction in disqualifying
petitioner outside the period mandated by the Omnibus Election Code for
disqualification cases under Article 78 of the said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive

jurisdiction over the question of petitioner's qualifications after the May 8, 1995
elections.

I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the
application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC
seems to be in agreement with the general proposition that for the purposes of election law,
residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake
the concept of domicile for actual residence, a conception not intended for the purpose of
determining a candidate's qualifications for election to the House of Representatives as required by
the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an
elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place of habitual residence." In Ong
vs. Republic 20 this court took the concept of domicile to mean an individual's "permanent home", "a place
to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and
circumstances in the sense that they disclose intent." 21 Based on the foregoing, domicile includes the
twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the
intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain
place. It is the physical presence of a person in a given area, community or country. The essential
distinction between residence and domicile in law is that residence involves the intent to leave when
the purpose for which the resident has taken up his abode ends. One may seek a place for purposes
such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is residence. 22 It is thus, quite perfectly
normal for an individual to have different residences in various places. However, a person can only have
a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another
domicile of choice. In Uytengsu vs. Republic, 23 we laid this distinction quite clearly:

There is a difference between domicile and residence. "Residence" is used to

indicate a place of abode, whether permanent or temporary; "domicile" denotes a
fixed permanent residence to which, when absent, one has the intention of returning.
A man may have a residence in one place and a domicile in another. Residence is
not domicile, but domicile is residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for the same purpose at any time,
but he may have numerous places of residence. His place of residence is generally
his place of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of
political laws. As these concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election purposes is used synonymously with
domicile.

In Nuval vs. Guray, 24 the Court held that "the term residence. . . is synonymous with domicile which
imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with
conduct indicative of such intention." 25 Larena vs. Teves 26 reiterated the same doctrine in a case
involving the qualifications of the respondent therein to the post of Municipal President of Dumaguete,
Negros Oriental. Faypon vs. Quirino, 27 held that the absence from residence to pursue studies or practice
a profession or registration as a voter other than in the place where one is elected does not constitute
loss of residence. 28 So settled is the concept (of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an individual from his permanent
residence without the intention to abandon it does not result in a loss or change of domicile.

The deliberations of the 1987 Constitution on the residence qualification for certain elective positions
have placed beyond doubt the principle that when the Constitution speaks of "residence" in election
law, it actually means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional
Convention, there was an attempt to require residence in the place not less than one
year immediately preceding the day of the elections. So my question is: What is the
Committee's concept of residence of a candidate for the legislature? Is it actual
residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National
Assembly are concerned, the proposed section merely provides, among others, "and
a resident thereof", that is, in the district for a period of not less than one year
preceding the day of the election. This was in effect lifted from the 1973 Constitution,
the interpretation given to it was domicile. 29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner
Nolledo has raised the same point that "resident" has been interpreted at times as a
matter of intention rather than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go
back to actual residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that
a provision in the Constitution in the Article on Suffrage says that Filipinos living
abroad may vote as enacted by law. So, we have to stick to the original concept that
it should be by domicile and not physical residence. 30

In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court concluded that the framers
of the 1987 Constitution obviously adhered to the definition given to the term residence in election law,
regarding it as having the same meaning as domicile. 32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the
residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance
is the questioned entry in petitioner's Certificate of Candidacy stating her residence in the First
Legislative District of Leyte as seven (7) months?

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in
determining whether or not and individual has satisfied the constitution's residency qualification
requirement. The said statement becomes material only when there is or appears to be a deliberate
attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It
would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a
certificate of candidacy which would lead to his or her disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word
"seven" in the space provided for the residency qualification requirement. The circumstances leading
to her filing the questioned entry obviously resulted in the subsequent confusion which prompted
petitioner to write down the period of her actual stay in Tolosa, Leyte instead of her period of
residence in the First district, which was "since childhood" in the space provided. These
circumstances and events are amply detailed in the COMELEC's Second Division's questioned
resolution, albeit with a different interpretation. For instance, when herein petitioner announced that
she would be registering in Tacloban City to make her eligible to run in the First District, private
respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not
Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is
Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close
look at said certificate would reveal the possible source of the confusion: the entry for residence
(Item No. 7) is followed immediately by the entry for residence in the constituency where a candidate
seeks election thus:

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO

BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years
and Seven Months.

Having been forced by private respondent to register in her place of actual residence in Leyte
instead of petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay
in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 the first
requiring actual residence and the second requiring domicile coupled with the circumstances
surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified. This honest mistake should not, however, be
allowed to negate the fact of residence in the First District if such fact were established by means
more convincing than a mere entry on a piece of paper.

We now proceed to the matter of petitioner's domicile.

In support of its asseveration that petitioner's domicile could not possibly be in the First District of
Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains
that "except for the time when (petitioner) studied and worked for some years after graduation in
Tacloban City, she continuously lived in Manila." The Resolution additionally cites certain facts as
indicative of the fact that petitioner's domicile ought to be any place where she lived in the last few
decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in
San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election of
her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In
1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro
Manila. "She could not, have served these positions if she had not been a resident of Metro Manila,"
the COMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has
lived and maintained residences in different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence from legal residence or domicile to
pursue a profession, to study or to do other things of a temporary or semi-permanent nature does
not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been
a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of settled jurisprudence in which
this Court carefully made distinctions between (actual) residence and domicile for election law
purposes. In Larena vs. Teves, 33 supra, we stressed:

[T]his court is of the opinion and so holds that a person who has his own house
wherein he lives with his family in a municipality without having ever had the intention
of abandoning it, and without having lived either alone or with his family in another
municipality, has his residence in the former municipality, notwithstanding his having
registered as an elector in the other municipality in question and having been a
candidate for various insular and provincial positions, stating every time that he is a
resident of the latter municipality.

More significantly, in Faypon vs. Quirino, 34 We explained that:

A citizen may leave the place of his birth to look for "greener pastures," as the saying
goes, to improve his lot, and that, of course includes study in other places, practice of
his avocation, or engaging in business. When an election is to be held, the citizen
who left his birthplace to improve his lot may desire to return to his native town to
cast his ballot but for professional or business reasons, or for any other reason, he
may not absent himself from his professional or business activities; so there he
registers himself as voter as he has the qualifications to be one and is not willing to
give up or lose the opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration, the animus revertendi to
his home, to his domicile or residence of origin has not forsaken him. This may be
the explanation why the registration of a voter in a place other than his residence of
origin has not been deemed sufficient to constitute abandonment or loss of such
residence. It finds justification in the natural desire and longing of every person to
return to his place of birth. This strong feeling of attachment to the place of one's
birth must be overcome by positive proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition
that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the
COMELEC was obviously referring to petitioner's various places of (actual) residence, not her
domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the
deliberations of the constitutional commission but also the provisions of the Omnibus Election Code
(B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's
domicile, which we lift verbatim from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, she established her
domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy
 in Tacloban from 1938 to 1949 when she graduated from high school. She pursued
her college studies in St. Paul's College, now Divine Word University in Tacloban,
where she earned her degree in Education. Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her
cousin, the late speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he
was still a congressman of Ilocos Norte and registered there as a voter. When her
husband was elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965, when her
husband was elected President of the Republic of the Philippines, she lived with him
in Malacanang Palace and registered as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and
kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In
1992, respondent ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a resident and registered
voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that
petitioner held various residences for different purposes during the last four decades. None of these
purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte.
Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her
parents. She grew up in Tacloban, reached her adulthood there and eventually established
residence in different parts of the country for various reasons. Even during her husband's
presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to her
domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other
important personal milestones in her home province, instituting well-publicized projects for the
benefit of her province and hometown, and establishing a political power base where her siblings
and close relatives held positions of power either through the ballot or by appointment, always with
either her influence or consent. These well-publicized ties to her domicile of origin are part of the
history and lore of the quarter century of Marcos power in our country. Either they were entirely
ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest
of the country always knew: the fact of petitioner's domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin
because she did not live there until she was eight years old. He avers that after leaving the place in
1952, she "abandoned her residency (sic) therein for many years and . . . (could not) re-establish her
domicile in said place by merely expressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new
one is gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte
was her domicile of origin by operation of law. This domicile was not established only when her
father brought his family back to Leyte contrary to private respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must
demonstrate: 37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing
a new one; and
 3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be
deemed to continue. Only with evidence showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a change of residence requires an actual and
deliberate abandonment, and one cannot have two legal residences at the same time. 38 In the case
at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness
required to convince this court that an abandonment of domicile of origin in favor of a domicile of choice
indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioner's former
domicile with an intent to supplant the former domicile with one of her own choosing (domicilium
voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation
of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a
clearly established distinction between the Civil Code concepts of "domicile" and "residence." 39 The
presumption that the wife automatically gains the husband's domicile by operation of law upon marriage
cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil
Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific
area explains:

In the Civil Code, there is an obvious difference between domicile and residence.
Both terms imply relations between a person and a place; but in residence, the
relation is one of fact while in domicile it is legal or juridical, independent of the
necessity of physical presence. 40

Article 110 of the Civil Code provides:

Art. 110. The husband shall fix the residence of the family. But the court may
exempt the wife from living with the husband if he should live abroad unless in the
service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they
affect the female spouse upon marriage yields nothing which would suggest that the female spouse
automatically loses her domicile of origin in favor of the husband's choice of residence upon
marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los
Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando
el marido transende su residencia a ultramar o' a pais extranjero.

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which
means wherever (the husband) wishes to establish residence. This part of the article clearly
contemplates only actual residence because it refers to a positive act of fixing a family home or
residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido
translade su residencia" in the same provision which means, "when the husband shall transfer his
residence," referring to another positive act of relocating the family to another home or place of
actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to
another not only once, but as often as the husband may deem fit to move his family, a circumstance
more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the intention of the law to
strengthen and unify the family, recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for the sake of family unity, be
reconciled only by allowing the husband to fix a single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS
AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article
109 which obliges the husband and wife to live together, thus:

Art. 109. The husband and wife are obligated to live together, observe mutual
respect and fidelity and render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together. This
takes into account the situations where the couple has many residences (as in the case of the
petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should
necessarily be with him in order that they may "live together." Hence, it is illogical to conclude that
Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation
where the wife is left in the domicile while the husband, for professional or other reasons, stays in
one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile Whether the word "residence" as used with reference to
particular matters is synonymous with "domicile" is a question of some difficulty, and
the ultimate decision must be made from a consideration of the purpose and intent
with which the word is used. Sometimes they are used synonymously, at other times
they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a
person in a place. A person can have two or more residences, such as a country
residence and a city residence. Residence is acquired by living in place; on the other
hand, domicile can exist without actually living in the place. The important thing for
domicile is that, once residence has been established in one place, there be an
intention to stay there permanently, even if residence is also established in some
other
place. 41

In fact, even the matter of a common residence between the husband and the wife during the
marriage is not an iron-clad principle; In cases applying the Civil Code on the question of a common
matrimonial residence, our jurisprudence has recognized certain situations 42 where the spouses
could not be compelled to live with each other such that the wife is either allowed to maintain a residence
different from that of her husband or, for obviously practical reasons, revert to her original domicile (apart
from being allowed to opt for a new one). In De la Vina vs. Villareal 43 this Court held that "[a] married
woman may acquire a residence or domicile separate from that of her husband during the existence of
the marriage where the husband has given cause for divorce." 44 Note that the Court allowed the wife
either to obtain new residence or to choose a new domicile in such an event. In instances where the wife
actually opts, .under the Civil Code, to live separately from her husband either by taking new residence or
reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her
husband on pain of contempt. In Arroyo vs. Vasques de Arroyo45 the Court held that:

Upon examination of the authorities, we are convinced that it is not within the
province of the courts of this country to attempt to compel one of the spouses to
 cohabit with, and render conjugal rights to, the other. Of course where the property
rights of one of the pair are invaded, an action for restitution of such rights can be
maintained. But we are disinclined to sanction the doctrine that an order, enforcible
(sic) by process of contempt, may be entered to compel the restitution of the purely
personal right of consortium. At best such an order can be effective for no other
purpose than to compel the spouses to live under the same roof; and he experience
of those countries where the courts of justice have assumed to compel the
cohabitation of married people shows that the policy of the practice is extremely
questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for
the restitution of conjugal rights at the instance of either husband or wife; and if the
facts were found to warrant it, that court would make a mandatory decree,
enforceable by process of contempt in case of disobedience, requiring the delinquent
party to live with the other and render conjugal rights. Yet this practice was
sometimes criticized even by the judges who felt bound to enforce such orders, and
in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in
the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed
his regret that the English law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence, equivalent to the decree for the
restitution of conjugal rights in England, could be obtained by the injured spouse, but
could not be enforced by imprisonment. Accordingly, in obedience to the growing
sentiment against the practice, the Matrimonial Causes Act (1884) abolished the
remedy of imprisonment; though a decree for the restitution of conjugal rights can still
be procured, and in case of disobedience may serve in appropriate cases as the
basis of an order for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we
can discover, has ever attempted to make a preemptory order requiring one of the
spouses to live with the other; and that was in a case where a wife was ordered to
follow and live with her husband, who had changed his domicile to the City of New
Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code.
It was decided many years ago, and the doctrine evidently has not been fruitful even
in the State of Louisiana. In other states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have

affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return
to the marital domicile, and in the alternative, upon her failure to do so, to make a
particular disposition of certain money and effects then in her possession and to
deliver to her husband, as administrator of the ganancial property, all income, rents,
and interest which might accrue to her from the property which she had brought to
the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the
return of the wife to the marital domicile was sanctioned by any other penalty than
the consequences that would be visited upon her in respect to the use and control of
her property; and it does not appear that her disobedience to that order would
necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was
obliged by virtue of Article 110 of the Civil Code to follow her husband's actual place of
residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of
residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which
of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed
any of these places as the conjugal residence, what petitioner gained upon marriage was actual
residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been
incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference between the intentions of the Civil
Code and the Family Code drafters, the term residence has been supplanted by the term domicile in
an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article
110. The provision recognizes revolutionary changes in the concept of women's rights in the
intervening years by making the choice of domicile a product of mutual agreement between the
spouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under
the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil
Code is concerned-affecting the rights and obligations of husband and wife the term residence
should only be interpreted to mean "actual residence." The inescapable conclusion derived from this
unambiguous civil law delineation therefore, is that when petitioner married the former President in
1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage
and only acquired a right to choose a new one after her husband died, petitioner's acts following her
return to the country clearly indicate that she not only impliedly but expressly chose her domicile of
origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally
expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's
permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make
them livable for the Marcos family to have a home in our homeland." 47 Furthermore, petitioner
obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act
which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She
could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been
previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of Metro
Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from
our discussion pointing out specific situations where the female spouse either reverts to her domicile of
origin or chooses a new one during the subsistence of the marriage, it would be highly illogical for us to
assume that she cannot regain her original domicile upon the death of her husband absent a positive act
of selecting a new one where situations exist within the subsistence of the marriage itself where the wife
gains a domicile different from her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this
point, we are persuaded that the facts established by the parties weigh heavily in favor of a
conclusion supporting petitioner's claim of legal residence or domicile in the First District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the
assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the election in
violation of Section 78 of the Omnibus Election Code. 48 Moreover, petitioner contends that it is the
House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the
election of members of the House of Representatives in accordance with Article VI Sec. 17 of the
Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is
generally construed to be merely directory, 49 "so that non-compliance with them does not invalidate the
judgment on the theory that if the statute had intended such result it would have clearly indicated
it." 50 The difference between a mandatory and a directory provision is often made on grounds of
necessity. Adopting the same view held by several American authorities, this court in Marcelino
vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on

grounds of expediency, the reason being that less injury results to the general public
by disregarding than enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a

limitation of thirty (30) days within which a decree may be entered without the
consent of counsel, it was held that "the statutory provisions which may be thus
departed from with impunity, without affecting the validity of statutory proceedings,
are usually those which relate to the mode or time of doing that which is essential to
effect the aim and purpose of the Legislature or some incident of the essential act."
Thus, in said case, the statute under examination was construed merely to be
directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a
decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in
the fact that our courts and other quasi-judicial bodies would then refuse to render judgments merely
on the ground of having failed to reach a decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P.
881, 52 it is evident that the respondent Commission does not lose jurisdiction to hear and decide a
pending disqualification case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the
issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's
jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of
members of Congress begins only after a candidate has become a member of the House of
Representatives. 53 Petitioner not being a member of the House of Representatives, it is obvious that the
HRET at this point has no jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to
ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in
a case. Obviously a distinction was made on such a ground here. Surely, many established
principles of law, even of election laws were flouted for the sake perpetuating power during the pre-
EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA
ourselves bending established principles of principles of law to deny an individual what he or she
justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the
past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications
to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's
questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE.
Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of Leyte.

SO ORDERED.
G.R. No. 170338 December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC
ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL
REFORMS, respondents.

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

G.R. No. 179275 December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE
PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.

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

MAJ. LINDSAY REX SAGGE, petitioner-in-intervention

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

AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON,

PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors

DECISION

NACHURA, J.:

More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly
between the President of the Philippines and a high-ranking official of the Commission on Elections
(COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a
controversy that placed the legitimacy of the present administration on the line, and resulted in the
near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci"
tapes, allegedly contained the Presidents instructions to COMELEC Commissioner Virgilio
Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings
were to become the subject of heated legislative hearings conducted separately by committees of
both Houses of Congress.1

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G.
Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional
investigation jointly conducted by the Committees on Public Information, Public Order and Safety,
National Defense and Security, Information and Communications Technology, and Suffrage and
Electoral Reforms (respondent House Committees). During the inquiry, several versions of the
wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI)
Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel
Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the
supposed three-hour taped conversation. After prolonged and impassioned debate by the committee
members on the admissibility and authenticity of the recordings, the tapes were eventually played in
the chambers of the House.2

On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely.
Nevertheless, they decided to prepare committee reports based on the said recordings and the
testimonies of the resource persons.3

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a
Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of
Preliminary Injunction4docketed as G.R. No. 170338. He prayed that the respondent House
Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped
conversations in their committee reports and for any other purpose. He further implored that the said
recordings and any reference thereto be ordered stricken off the records of the inquiry, and the
respondent House Committees directed to desist from further using the recordings in any of the
House proceedings.5

Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly
stopped.

After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a
privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson
promised to provide the public "the whole unvarnished truth the whats, whens, wheres, whos
and whys" of the alleged wiretap, and sought an inquiry into the perceived willingness of
telecommunications providers to participate in nefarious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to the Senate
Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had
previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping equipment
and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties.7

In the Senates plenary session the following day, a lengthy debate ensued when Senator Richard
Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 42008 if the body
were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-
Santiago delivered a privilege speech, articulating her considered view that the Constitution
absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci"
tapes. However, she recommended a legislative investigation into the role of the Intelligence Service
of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal
wiretapping of public officials.9

On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the
Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction,10 docketed as G.R. No. 179275,
seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main
that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the
Constitution.11

As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the
"Hello Garci" tapes on September 7,12 1713 and October 1,14 2007.

Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino,

Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F.
Trillanes filed their Comment16 on the petition on September 25, 2007.
The Court subsequently heard the case on oral argument.17

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource
persons summoned by the Senate to appear and testify at its hearings, moved to intervene as
petitioner in G.R. No. 179275.18

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275.19

It may be noted that while both petitions involve the "Hello Garci" recordings, they have different
objectivesthe first is poised at preventing the playing of the tapes in the House and their
subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the
conduct of the Senate inquiry on the wiretapped conversation.

The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275.

-I-

Before delving into the merits of the case, the Court shall first resolve the issue on the parties
standing, argued at length in their pleadings.

In Tolentino v. COMELEC,20 we explained that "[l]egal standing or locus standi refers to a personal
and substantial interest in a case such that the party has sustained or will sustain direct injury
because of the challenged governmental act x x x," thus,

generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.21

The gist of the question of standing is whether a party has "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional
questions."22

However, considering that locus standi is a mere procedural technicality, the Court, in recent cases,
has relaxed the stringent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and rulings."24 The
fairly recent Chavez v. Gonzales25 even permitted a non-member of the broadcast media, who failed
to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary
of Justice and the National Telecommunications Commission. The majority, in the said case, echoed
the current policy that "this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact
on public interest, in keeping with the Courts duty under the 1987 Constitution to determine whether
or not other branches of government have kept themselves within the limits of the Constitution and
the laws, and that they have not abused the discretion given to them."26

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that
he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the
members of the respondent committees as one of the voices in the recordings.27 Obviously,
therefore, petitioner Garcillano stands to be directly injured by the House committees actions and
charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition.

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are
concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any
attempt to use the "Hello Garci" tapes will further divide the country. They wish to see the legal and
proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are
worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation.28

Intervenor Sagge alleges violation of his right to due process considering that he is summoned to
attend the Senate hearings without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of
the intended legislation which underpins the investigation. He further intervenes as a taxpayer
bewailing the useless and wasteful expenditure of public funds involved in the conduct of the
questioned hearings.29

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that
intervenor Sagge asserts his constitutional right to due process,30 they satisfy the requisite personal
stake in the outcome of the controversy by merely being citizens of the Republic.

Following the Courts ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient
petitioners Ranadas and Agcaoilis and intervenor Sagges allegation that the continuous conduct by
the Senate of the questioned legislative inquiry will necessarily involve the expenditure of public
funds.32 It should be noted that in Francisco, rights personal to then Chief Justice Hilario G. Davide,
Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this case, they invariably invoked the
vindication of their own rightsas taxpayers, members of Congress, citizens, individually or in a class
suit, and members of the bar and of the legal professionwhich were also supposedly violated by the
therein assailed unconstitutional acts.33

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor
Sagge advance constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. The issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, and should be resolved for the
guidance of all.34

Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases
climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners
Ranada and Agcaoili and intervenor Sagge.

- II -

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed
in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies.35 By actual cases, we mean existing
conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise
the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not
extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.36 Neither will the Court
determine a moot question in a case in which no practical relief can be granted. A case becomes
moot when its purpose has become stale.37 It is unnecessary to indulge in academic discussion of a
case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in
the nature of things, cannot be enforced.38

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance
of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings
and from including the same in their committee report. He likewise prays that the said tapes be
stricken off the records of the House proceedings. But the Court notes that the recordings were
already played in the House and heard by its members.39 There is also the widely publicized fact that
the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in
plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished.41

- III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to
continue with the conduct of the questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he 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 requisite of publication of the rules is
intended to satisfy the basic requirements of due process.42 Publication is indeed imperative, for it
will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or
rule of which he had no notice whatsoever, not even a constructive one.43 What constitutes
publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after
15 days following the completion of their publication either in the Official Gazette, or in a newspaper
of general circulation in the Philippines."44

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006.45 With respect to the present Senate of
the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007,
no effort was undertaken for the publication of these rules when they first opened their session.

Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on
Accountability of Public Officers and Investigations,46 we said:

Fourth, we find merit in the argument of the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in
accordance with the "duly published rules of procedure." We quote the OSGs
explanation:

The phrase "duly published rules of procedure" requires the Senate of every
Congress to publish its rules of procedure governing inquiries in aid of legislation
because every Senate is distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the Senates membership, the
composition of the Senate also changes by the end of each term. Each Senate may
thus enact a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation conducted by
the 14th Senate, are therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the
following rationalization:

The present Senate under the 1987 Constitution is no longer a continuing legislative body.
The present Senate has twenty-four members, twelve of whom are elected every three years
for a term of six years each. Thus, the term of twelve Senators expires every three years,
leaving less than a majority of Senators to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a
quorum to do business." Applying the same reasoning in Arnault v. Nazareno, the Senate
under the 1987 Constitution is not a continuing body because less than majority of the
Senators continue into the next Congress. The consequence is that the Rules of
Proceduremust be republished by the Senate after every expiry of the term of twelve
Senators.47

The subject was explained with greater lucidity in our Resolution48 (On the Motion for
Reconsideration) in the same case, viz.:

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing," as it is not
dissolved as an entity with each national election or change in the composition of its
members. However, in the conduct of its day-to-day business the Senate of each Congress
acts separately and independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the
next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of
one (1) Congress, but may be taken by the succeeding Congress as if present for
the first time.

Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be bound by the
acts and deliberations of the Senate of which they had no part. If the Senate is a continuing
body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course,
continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the
Senates main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
 SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented
at least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall
remain in force until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into account the new composition of
the Senate after an election and the possibility of the amendment or revision of the Rules at
the start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be
valid from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation." The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot
be presumed that the Rules (on legislative inquiries) would continue into the next Congress.
The Senate of the next Congress may easily adopt different rules for its legislative inquiries
which come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress
or otherwise make the published rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or repealed to sufficiently put public on
notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.

Respondents justify their non-observance of the constitutionally mandated publication by arguing

that the rules have never been amended since 1995 and, despite that, they are published in booklet
form available to anyone for free, and accessible to the public at the Senates internet web page.49

The Court does not agree. The absence of any amendment to the rules cannot justify the Senates
defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The
organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of procedure, and does not make any
distinction whether or not these rules have undergone amendments or revision. The constitutional
mandate to publish the said rules prevails over any custom, practice or tradition followed by the
Senate.

Justice Carpios response to the same argument raised by the respondents is illuminating:
 The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the Taada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of general circulation. The Rules
of Procedure even provide that the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation," precluding any other form of publication.
Publication in accordance with Taada is mandatory to comply with the due process
requirement because the Rules of Procedure put a persons liberty at risk. A person who
violates the Rules of Procedure could be arrested and detained by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792,50 otherwise known as the
Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all
the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as
the functional equivalent of a written document only for evidentiary purposes.51 In other words, the
law merely recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents.52 It does not make the internet a medium for publishing
laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases.
The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have
caused the publication of the rules, because it can do so only "in accordance with its duly published
rules of procedure."

Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we
take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought
to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be undertaken by the respondent Senate
Committees, because no published rules governed it, in clear contravention of the Constitution.

With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in
the consolidated petitions.

WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275
is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the
Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on
the "Hello Garci" tapes.

SO ORDERED.
 JOSELITO R. MENDOZA, G.R. No. 188308
Petitioner,
Present:
*
PUNO, C.J.,
**
QUISUMBING,
CARPIO,
CORONA,
CARPIO MORALES,
- versus - CHICO-NAZARIO,
***
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
****
DEL CASTILLO, and
ABAD, JJ.

COMMISSION ON ELECTIONS and

ROBERTO M. PAGDANGANAN, Promulgated:
Respondents.
October 15, 2009
x ---------------------------------------------------------------------------------------- x

DECISION

BRION, J.:

The present case involves a clash between the power under the Philippine
Constitution of the respondent Commission on Elections (COMELEC) in the
handling of a provincial election contest, and the claimed due process rights of a
party to the contest. The petitioner Joselito R. Mendoza (the petitioner) essentially
asserts in his petition for certiorari[1]that the COMELEC conducted proceedings in
the election contest for the gubernatorial position of the Province of Bulacan,
between him and the respondent Roberto M. Pagdanganan (the respondent), without
due regard to his fundamental due process rights. The COMELEC, on the other hand,
claims that its decision-making deliberations are internal, confidential and do not
require notice to and the participation of the contending parties.

THE ANTECEDENTS
The petitioner and the respondent vied for the position of Governor of
the Province of Bulacan in the May 14, 2007 elections. The petitioner was
proclaimed winning candidate and assumed the office of Governor.

The respondent seasonably filed an election protest with the COMELEC,

which was raffled to the Second Division and docketed as EPC No. 2007-
44. Revision of ballots involving the protested and counter-protested precincts in
Angat, Bocaue, Calumpit, Doa Remedios Trinidad, Guiginto, Malolos,
Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and San
Jose del Monte soon followed. The revision was conducted at the COMELECs office
in Intramuros. After revision, the parties presented their other evidence, leading to
the parties formal offer of their respective evidence.

The COMELEC approved the parties formal offer of evidence and then
required the parties to submit their respective memoranda. The parties complied with
the COMELECs order. The case was thereafter submitted for resolution.

On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes,

including those involved in the provincial election contest, to the Senate Electoral
Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III against
Juan Miguel Zubiri. In light of this development, the petitioner moved to suspend
further proceedings. .

The COMELECs Second Division denied the petitioners motion in its Order of April
29, 2009, ruling that the COMELEC has plenary powers to find alternative methods
to facilitate the resolution of the election protest; thus, it concluded that it would
continue the proceedings after proper coordination with the SET. The petitioner
moved to reconsider this Order, but the COMELECs Second Division denied the
motion in its Order of May 26, 2009. These inter-related Resolutions led to the
COMELECs continued action specifically, the appreciation of ballots on the
provincial election contest at the SET offices.
 Allegedly alarmed by information on COMELEC action on the provincial
election contest within the SET premises without notice to him and without his
participation, the petitioners counsel wrote the SET Secretary, Atty. Irene Guevarra,
a letter dated June 10, 2009 to confirm the veracity of the reported conduct of
proceedings.[2] The SET Secretary responded on June 17, 2009 as follows:

x x x please be informed that the conduct of proceedings in

COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the
Tribunal Premises was authorized by then Acting Chairman of the
Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of
Commissioner Lucenito N. Tagle.

Basis of such grant is Section 3, Comelec Resolution No. 2812

dated 17 October 1995, stating that (t)he Tribunals, the Commission and
the Courts shall coordinate and make arrangement with each other so as
not to delay or interrupt the revision of ballots being conducted. The
synchronization of revision of ballots shall be such that the expeditious
disposition of the respective protest case shall be the primary
concern. While the said provision speaks only of revision, it has been the
practice of the Tribunal to allow the conduct of other proceedings in local
election protest cases within its premises as may be requested. [emphasis
supplied][3]

THE PETITION

The SET Secretarys response triggered the filing of the present petition raising
the following ISSUES

A. WHETHER OR NOT THE COMELEC VIOLATED DUE

PROCESS BY CONDUCTING PROCEEDINGS WITHOUT
GIVING DUE NOTICE TO THE PETITIONER.

B. WHETHER OR NOT THE COMELEC GRAVELY ABUSED

ITS DISCRETION TANTAMOUNT TO AN EXCESS OF
JURISDICTION IN APPRECIATING BALLOTS WHICH ARE
NOT IN ITS OFFICIAL CUSTODY AND ARE OUTSIDE ITS OWN
PREMISES, AUTHORITY AND CONTROL.
 The petitioner argues that the election protest involves his election as
Governor; thus, its subject matter involves him and the people of
the Province of Bulacan who elected him. On this basis, he claims entitlement to
notice and participation in all matters that involve or are related to the election
protest. He further asserts that he had the legitimate expectation that no further
proceedings would be held or conducted in the case after its submission for decision.

Citing the commentaries of Father Joaquin Bernas,[4] the petitioner argues that
the proceedings before the COMELEC in election protests are judicial in nature and
character. Thus, the strictures of judicial due process specifically, (a) opportunity to
be heard and (b) that judgment be rendered only after lawful hearing apply. Notices
in judicial dispute, he claims, are not really just a matter of courtesy; they are
elementary fundamental element of due process, they are part and parcel of a right
of a party to be heard. He further cites Justice Isagani A. Cruz,[5] who wrote:
x x x Every litigant is entitled to his day in court. He has a right to
be notified of every incident of the proceeding and to be present at every
stage thereof so that he may be heard by himself and counsel for the
protection of his interest.

The petitioner claims that without notice to him of the proceedings, the due process
element of the right to have judgment only after lawful hearing is absent. There is
no way, he claims, that a judicial proceeding held without notice to the parties could
be described as a lawful hearing, especially a proceeding which has as its subject
matter the sovereign will of an entire province.

He was therefore denied his day in court, he claims, when the COMELEC conducted
the examination and appreciation of ballots. The proceedings should be stopped and
declared null and void; its future results, too, should be nullified, as nothing derived
from the anomalous and unconstitutional clandestine and unilateral proceedings
should ever be part of any decision that the COMELEC may subsequently
render. The poisonous fruits (derived from the proceedings) should have no part and
should not be admitted for any purpose and/or in any judicial proceeding.

Other than his due process concern, the petitioner takes issue with the COMELECs
appreciation of ballots even when the ballots and other election materials were no
longer in its official custody and were outside its premises, authority and control. He
asserts that an important element of due process is that the judicial body should have
jurisdiction over the property that is the subject matter of the proceedings. In this
case, the COMELEC has transferred possession, custody and jurisdiction over the
ballots to the SET, a tribunal separate and independent from the COMELEC and
over which the COMELEC exercises no authority or jurisdiction. For the
COMELEC to still conduct proceedings on property, materials and evidence no
longer in its custody violates the principle of separation of powers.

The petitioner also points out that the COMELECs unilateral appreciation of the
ballots in the SET premises deviates from the Commissions usual and time honored
practice and procedure of conducting proceedings within its premises and while it
has custody over the ballots. There is no precedent, according to the petitioner, for
this deviation, nor is there any compelling reason to make the present case an
exception. Citing Cabagnot v. Commission on Elections (G.R. No. 124383, August
9, 1996) which involves a transfer or change of venue of the revision of ballots, the
petitioner alleges that this Court has been very emphatic in denouncing the
COMELEC for its departure from its own rules and usual practice;
while Cabagnot involves the issue of change of venue, the petitioner finds parallel
applicability in the present case which also involves a deviation from COMELEC
rules and usual practice. The petitioner adds that the act of the Second Division is
effectively an arrogation of the authority to promulgate rules of procedure a power
that solely belongs to the COMELEC en banc.

After a preliminary finding of a genuine due process issue, we issued a Status Quo
Order on July 14, 2009.

THE RESPONDENTS COMMENTS

In his Comment to the Petition with Extremely Urgent Motion to Lift/Dissolve Status
Quo Ante Order, the private respondent asserts that the petition contains deliberate
falsehoods and misleading allegations that led the Court to grant the injunctive relief
the petitioner had asked. He asserts that the proceeding the petitioner stated in his
petition was actually the COMELECs decision-making process, i.e., the appreciation
of ballots, which is a procedure internal to the Members of the Second Division of
the COMELEC and their staff members; no revision of ballots took place as revision
had long been finished. What was therefore undertaken within the SETs premises
was unilateral COMELEC action that is exclusive to the COMELEC and an internal
matter that is confidential in nature. In this light, no due process violation ever arose.

The private respondent also asserts that the petitioner cannot claim that he was not
notified of and denied participation in the revision proceedings, as the petitioner
himself is fully aware that the revision of the ballots was completed as early as July
28, 2008 and the petitioner was present and actively participated in the entire
proceedings, all the way to the filing of the required memoranda. Thus, the
petitioners right to due process was duly satisfied.

The private respondent implores us to commence contempt proceedings against the

petitioner who, the respondent claims, has not been forthright in his submissions and
was not guided by the highest standards of truthfulness, fair play and nobility in his
conduct as a party and in his relations with the opposing party, the other counsel and
the Court.

Lastly, the private respondent posits that the present petition was filed out of time
i.e., beyond the reglementary period provided under Rule 64. All these reasons, the
private respondent argues, constitute sufficient basis for the lifting of the status
quo order and the dismissal of the petition.

Public respondent COMELEC, for its part, claims that the petition is without basis
in fact and in law and ought to be dismissed outright. Given the possibility of
simultaneous election contests involving national and local officials, it has
institutionalized an order of preference in the custody and revision of ballots in
contested ballot boxes. The established order of preference is not without exception,
as the expeditious disposition of protest cases is a primary concern. Additionally, the
order of preference does not prevent the COMELEC from proceeding with pending
protest cases, particularly those already submitted for decision. It claims that it has
wide latitude to employ means to effectively perform its duty in safeguarding the
sanctity of the elections and the integrity of the ballot.

The COMELEC further argues that in the absence of a specific rule on whether it
can conduct appreciation of ballots outside its premises or official custody, the
issue boils down to one of discretion the authority of the COMELEC to control as it
deems fit the processes or incidents of a pending election protest. Under Section 4
of the COMELEC Rules of Procedure, the COMELEC may use all auxiliary writs,
processes and other means to carry into effect its powers or jurisdiction; if the
procedure to be followed in the exercise of such power or jurisdiction is not
specifically provided for by law or the Rules of Procedure, any suitable process or
proceeding not prohibited by law or by its rules may be adopted.

The COMELEC lastly submits that while due process requires giving the parties an
opportunity to intervene in all stages of the proceedings, the COMELEC in the
present case is not actually conducting further proceedings requiring notice to the
parties; there is no revision or correction of the ballots, as the election protest had
already been submitted for resolution. When the COMELEC coordinated with the
SET, it was simply for purposes of resolving the submitted provincial election
contest before it; the parties do not take part in this aspect of the case which
necessarily requires utmost secrecy. On the whole, the petitioner was afforded every
opportunity to present his case. To now hold the election protest hostage until the
conclusion of the protest pending before the SET defeats the COMELECs mandate
of ensuring free, orderly and honest election.

THE COURTS RULING

We review the present petition on the basis of the combined application of

Rules 64 and 65 of the Rules of Court. While COMELEC jurisdiction over the
Bulacan election contest is not disputed, the legality of subsequent COMELEC
action is assailed for having been undertaken with grave abuse of discretion
amounting to lack or excess of jurisdiction. Thus, our standard of review is grave
abuse of discretion, a term that defies exact definition, but generally refers to
capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.[6] Mere abuse of discretion is not
enough; the abuse must be grave to merit our positive action.[7]
After due consideration, we find the petition devoid of merit.

The petition is anchored on the alleged conduct of proceedings in the election protest
following the completed revision of ballots at the SET premises without notice to
and without the participation of the petitioner. Significantly, the conduct of
proceedings is confirmed by the SET Secretary in the letter we quoted above.[8] As
the issues raised show the petitioners focus is not really on the COMELEC Orders
denying the suspension of proceedings when the ballot boxes and other election
materials pertinent to the election contest were transferred to the SET; the focus is
on what the COMELEC did after to the issuance of the Resolutions. We read the
petition in this context as these COMELEC Orders are now unassailable as the
period to challenge them has long passed.[9]

The substantive issue we are primarily called upon to resolve is whether there
were proceedings within the SET premises, entitling the petitioner to notice and
participation, which were denied to him; in other words, the issue is whether the
petitioners right to due process has been violated. A finding of due process violation,
because of the inherent arbitrariness it carries, necessarily amounts to grave abuse
of discretion.

As a preliminary matter, we note that the petitioner has claimed that COMELEC
exercises judicial power in its action over provincial election contests and has argued
its due process position from this view. We take this opportunity to clarify that
judicial power in our country is vested in one Supreme Court and in such lower
courts as may be established by law.[10] This exclusive grant of authority to the
Judiciary is reinforced under the second paragraph of Section 1, Article VIII of the
Constitution which further states that Judicial power includes the duty of the courts
of justice to settle actual controversies involving rights which are legally
demandable and enforceable.. ., thus constitutionally locating the situs of the
exercise of judicial power in the courts.

In contrast with the above definitions, Section 2, Article IX(C) of the

Constitution lists the COMELECs powers and functions, among others, as follows:
(1) Enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating

to the elections, returns and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all contests
involving elective municipal officials decided by trial courts of general
 jurisdiction, or involving elective barangay officials by trial courts of
limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election

contests involving elective municipal and barangay officials shall be final,
executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and location of
polling places, appointment of election officials and inspectors, and
registration of voters.
Under these terms, the COMELEC under our governmental structure is a
constitutional administrative agency and its powers are essentially executive in
nature (i.e., to enforce and administer election laws),[11] quasi-judicial (to exercise
original jurisdiction over election contests of regional, provincial and city officials
and appellate jurisdiction over election contests of other lower ranking officials),
and quasi-legislative (rulemaking on all questions affecting elections and the
promulgation of its rules of procedure).

Historically, the COMELEC has always been an administrative agency whose

powers have been increased from the 1935 Constitution to the present one, to reflect
the countrys awareness of the need to provide greater regulation and protection to
our electoral processes to ensure their integrity. In the 1935 Constitution, the powers
and functions of the COMELEC were defined as follows:

SECTION 2. The Commission on Elections shall have exclusive

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

These evolved into the following powers and functions under the 1973 Constitution:
 (1) Enforce and administer all laws relative to the conduct of
elections.

(2) Be the sole judge of all contests relating to the elections, returns,
and qualifications of all members of the National Assembly and elective
provincial and city officials.

(3) Decide, save those involving the right to vote, administrative

questions affecting elections, including the determination of the number
and location of polling places, the appointment of election officials and
inspectors, and the registration of voters.

These powers have been enhanced in scope and details under the 1987 Constitution,
but retained all the while the character of an administrative agency.

The COMELECs adjudicative function is quasi-judicial since it is a

constitutional body, other than a court, vested with authority to decide election
contests, and in the course of the exercise of its jurisdiction, to hold hearings and
exercise discretion of a judicial nature;[12] it receives evidence, ascertain the facts
from these submissions, determine the law and the legal rights of the parties, and on
the basis of all these decides on the merits of the case and renders
judgment.[13] Despite the exercise of discretion that is essentially judicial in
character, particularly with respect to election contests, COMELEC is not a tribunal
within the judicial branch of government and is not a court exercising judicial power
in the constitutional sense;[14] hence, its adjudicative function, exercised as it is in
the course of administration and enforcement, is quasi-judicial.

As will be seen on close examination, the 1973 Constitution used the unique
wording that the COMELEC shall be the sole judge of all contests, thus giving the
appearance that judicial power had been conferred. This phraseology, however, was
changed in the 1987 Constitution to give the COMELEC exclusive jurisdiction over
all contests, thus removing any vestige of exercising its adjudicatory power as a
court and correctly aligning it with what it is a quasi-judicial body.[15] Consistent
with the characterization of its adjudicatory power as quasi-judicial, the judicial
review of COMELEC en banc decisions (together with the review of Civil Service
Commission decisions) is via the prerogative writ of certiorari, not through an
appeal, as the traditional mode of review of quasi-judicial decisions of administrative
tribunals in the exercise the Courts supervisory authority.This means that the Court
will not supplant the decision of the COMELEC as a quasi-judicial body except
where a grave abuse of discretion or any other jurisdictional error exists.

The appropriate due process standards that apply to the COMELEC, as an

administrative or quasi-judicial tribunal, are those outlined in the seminal case
of Ang Tibay v. Court of Industrial Relations,[16] quoted below:

(1) The first of these rights is the right to a hearing, which includes
the right of the party interested or affected to present his own case and
submit evidence in support thereof. xxx

(2) Not only must the party be given an opportunity to present his
case and to adduce evidence tending to establish the rights which he
asserts but the tribunal must consider the evidence presented.

(3) While the duty to deliberate does not impose the obligation to
decide right, it does imply a necessity which cannot be disregarded,
namely, that of having something to support its decision. A decision with
absolutely nothing to support it is a nullity, a place when directly attached.

(4) Not only must there be some evidence to support a finding or

conclusion, but the evidence must be "substantial. "Substantial evidence
is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."

(5) The decision must be rendered on the evidence presented at the

hearing, or at least contained in the record and disclosed to the parties
affected.

(6) The Court of Industrial Relations or any of its judges, therefore,

must act on its or his own independent consideration of the law and facts
of the controversy, and not simply accept the views of a subordinate in
arriving at a decision.

(7) The Court of Industrial Relations should, in all controversial

questions, render its decision in such a manner that the parties to the
proceeding can know the various issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the
authority conferred upon it.
These are now commonly referred to as cardinal primary rights in administrative
proceedings.

The first of the enumerated rights pertain to the substantive rights of a party
at hearing stage of the proceedings. The essence of this aspect of due process, we
have consistently held, is simply the opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain ones side or an opportunity
to seek a reconsideration of the action or ruling complained of.[17] A formal or trial-
type hearing is not at all times and in all instances essential; in the case of
COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a
hearing and these serve as the standards in the determination of the presence or
denial of due process.

The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are
reinforcements of the right to a hearing and are the inviolable rights applicable at
the deliberative stage, as the decision-maker decides on the evidence presented
during the hearing. These standards set forth the guiding considerations in
deliberating on the case and are the material and substantial components of decision-
making. Briefly, the tribunal must consider the totality of the evidence presented
which must all be found in the records of the case (i.e., those presented or submitted
by the parties); the conclusion, reached by the decision-maker himself and not by a
subordinate, must be based on substantial evidence.[18]

Finally, the last requirement, relating to the form and substance of the decision of a
quasi-judicial body, further complements the hearing and decision-making due
process rights and is similar in substance to the constitutional requirement that a
decision of a court must state distinctly the facts and the law upon which it is
based.[19] As a component of the rule of fairness that underlies due process, this is
the duty to give reason to enable the affected person to understand how the rule of
fairness has been administered in his case, to expose the reason to public scrutiny
and criticism, and to ensure that the decision will be thought through by the decision-
maker.
 In the present case, the petitioner invokes both the due process component
rights at the hearing and deliberative stages and alleges that these component rights
have all been violated. We discuss all these allegations below.

The Right to Notice and to be Heard.

a. At the Hearing and Revision of Ballots.

Based on the pleadings filed, we see no factual and legal basis for the
petitioner to complain of denial of his hearing stage rights. In the first place, he does
not dispute that he fully participated in the proceedings of the election protest until
the case was deemed submitted for resolution; he had representation at the revision
of the ballots, duly presented his evidence, and summed up his case through a
memorandum. These various phases of the proceedings constitute the hearing proper
of the election contest and the COMELEC has more than satisfied the opportunity
to be heard that the Ang Tibay hearing stage rights require. In these proceedings, the
petitioner stood head-to-head with the respondent in an adversarial contest where
both sides were given their respective rights to speak, make their presentations, and
controvert each others submission, subject only to established COMELEC rules of
procedures. Under these undisputed facts, both parties had their day in court, so to
speak, and neither one can complain of any denial of notice or of the right to be
heard.

b. At the Proceedings at the SET.

A critical question to be answered in passing upon due process questions at

this stage of the election contest is the nature of the so-called proceedings after the
ballots and other materials pertinent to the provincial election contest were
transferred to the SET.

In the petition, the petitioner alleged that there were strange

proceedings[20] which were unilateral, clandestine and surreptitious within the
premises of the SET, on documents, ballots and election materials whose possession
and custody have been transferred to the SET, and the petitioner was NEVER
OFFICIALLY NOTIFIED of the strange on-goings at the SET.[21] Attached to the
petition was the letter of the Secretary of the SET confirming the conduct of
proceedings in the provincial election contest, and citing as basis the authority of
Acting SET Chairman, Justice Antonio T. Carpio, upon the formal request of the
Office of Commissioner Lucenito N. Tagle, and citing Section 3, COMELEC
Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among
the COMELEC, the SET and the courts so as not to delay or interrupt the revision
of ballots being conducted. While the SET letter made the reservation that While the
said provision speaks only of revision, it has been the practice of the Tribunal to
allow the conduct of other proceedings in local election protest cases within its
premises as may be requested, no mention whatsoever was made of the kind of
proceedings taking place.

It was at this point that this Court intervened, in response to the petitioners
prayer for the issuance of temporary injunctive relief, through the issuance of a
Status Quo Order with a non-extendible directive for the respondents to file their
comments on the petition; for indeed, any further revision of ballots or other
adversarial proceedings after the case has been submitted for resolution, would not
only be strange and unusual but would indicate a gross violation of due process
rights.

After consideration of the respondents Comments and the petitioners petition

and Reply, we hold that the contested proceedings at the SET (contested
proceedings) are no longer part of the adversarial aspects of the election contest that
would require notice of hearing and the participation of the parties. As the
COMELEC stated in its Comment and without any contrary or disputing claim in
the petitioners Reply:[22]

However, contrary to the claim of petitioner, public respondent in the

appreciation of the contested ballots in EPC No. 2007-44 simultaneously
with the SET in SET Case No. 001-07 is not conducting further
proceedings requiring notice to the parties. There is no revision or
correction of the ballots because EPC No. 2007-04 was already submitted
for resolution. Public respondent, in coordinating with the SET, is simply
resolving the submitted protest case before it. The parties necessarily take
no part in said deliberation, which require utmost secrecy.Needless to
state, the actual decision-making process is supposed to be conducted only
 by the designated members of the Second Division of the public
respondent in strict confidentiality.

In other words, what took place at the SET were the internal deliberations of the
COMELEC, as a quasi-judicial body, in the course of appreciating the evidence
presented and deciding the provincial election contest on the merits. These
deliberations are no different from judicial deliberations which are considered
confidential and privileged.[23] We find it significant that the private respondents
Comment fully supported the COMELECs position and disavowed any participation
in the contested proceeding the petitioner complained about. The petitioner, on the
other hand, has not shown that the private respondent was ever present in any
proceeding at the SET relating to the provincial election contest.

To conclude, the rights to notice and to be heard are not material

considerations in the COMELECs handling of the Bulacan provincial election
contest after the transfer of the ballot boxes to the SET; no proceedings at the
instance of one party or of COMELEC has been conducted at the SET that would
require notice and hearing because of the possibility of prejudice to the other
party. The COMELEC is under no legal obligation to notify either party of the steps
it is taking in the course of deliberating on the merits of the provincial election
contest. In the context of our standard of review for the petition, we see no grave
abuse of discretion amounting to lack or excess of jurisdiction committed by the
COMELEC in its deliberation on the Bulacan election contest and the appreciation
of ballots this deliberation entailed.

Alleged Violations of
Deliberation Stage Rights.

On the basis of the above conclusion, we see no point in discussing any

alleged violation of the deliberative stage rights. First, no illegal proceeding ever
took place that would bear the poisonous fruits that the petitioner fears. Secondly, in
the absence of the results of the COMELEC deliberations through its decision on the
election protest, no basis exists to apply the Ang Tibay deliberative stage rights; there
is nothing for us to test under the standards of the due process deliberative stages
rights before the COMELEC renders its decision. Expressed in terms of our standard
of review, we have as yet no basis to determine the existence of any grave abuse of
discretion.

Conduct of COMELEC
Deliberations at the SET Premises

We turn to the issue of the propriety of the COMELECs consideration of the

provincial election contest (specifically its appreciation of the contested ballots) at
the SET premises and while the same ballots are also under consideration by the
SET for another election contest legitimately within the SETs own jurisdiction.

We state at the outset that the COMELEC did not lose jurisdiction over the
provincial election contest, as the petitioner seems to imply, because of the
transmittal of the provincial ballot boxes and other election materials to the SET. The
Constitution conferred upon the COMELEC jurisdiction over election protests
involving provincial officials. The COMELEC in this case has lawfully acquired
jurisdiction over the subject matter, i.e., the provincial election contest, as well as
over the parties. After its jurisdiction attached, this jurisdiction cannot be ousted by
subsequent events such as the temporary transfer of evidence and material records
of the proceedings to another tribunal exercising its own jurisdiction over another
election contest pursuant to the Constitution. This is the rule of adherence of
jurisdiction.[24]

Thus, the jurisdiction of the COMELEC over provincial election contest exists
side by side with the jurisdiction of the Senate Electoral Tribunal, with each tribunal
being supreme in their respective areas of concern (the Senate election contests for
the SET, and the regional, provincial and city election contests for the COMELEC),
and with neither one being higher than the other in terms of precedence so that the
jurisdiction of one must yield to the other.

But while no precedence in jurisdiction exists, the COMELEC, vowing to the

reality that only a single ballot exists in an election for national and local officials,
saw it fit to lay down the rule on the order of preference in the custody and revision
of ballots and other documents contained in the ballot boxes. The order, in terms of
the adjudicatory tribunal and as provided in COMELEC Resolution No. 2812, runs:
 1. Presidential Electoral Tribunal;
2. Senate Electoral Tribunal;
3. House of Representatives Electoral Tribunal;
4. Commission on Elections; and
5. Regional Trial Courts.

This order of preference dictated that the ballot boxes and other election materials
in Bulacans provincial election contest, had to be transferred to the SET when the
latter needed these materials for its revision of ballots. The transfer to the SET,
however, did not mean that the Bulacan provincial election contest at that time
already submitted for decision had to be suspended as the COMELEC held in its
Orders of 29 April 2009 and 26 May 2009 in EPC No. 2007-44.[25] This is
particularly true in Bulacans case as no revision had to be undertaken, the revision
having been already terminated.

With the COMELEC retaining its jurisdiction over the Bulacan provincial election
contest, the legal effect of the physical transfer of the ballots and other election
materials to the SET for purposes of its own revision becomes a non-issue, given the
arrangement between the COMELEC and the SET, pursuant to COMELEC
Resolution No. 2812, to coordinate and make arrangements with each other so as not
to delay or interrupt the revision of ballots being conducted, all for the purpose of
the expeditious disposition of their respective protest cases. The SET itself honored
this arrangement as shown by the letter of the SET Secretary that the COMELEC
could conduct proceedings within the Tribunal premises as authorized by the Acting
Chairman of the Tribunal, Justice Antonio T. Carpio.[26] This arrangement
recognized the COMELECs effective authority over the Bulacan ballots and other
election materials, although these were temporarily located at the SET
premises. This arrangement, too, together with the side by side and non-conflicting
existence of the COMELEC and SET jurisdictions, negate the validity of the
petitioners argument that the COMELEC transgressed the rule on separation of
powers when it acted on the Bulacan provincial election contest while the ballot
boxes were at the SET premises. Rather than negate, this arrangement reinforced the
separate but co-existing nature of these tribunals respective jurisdictions.

As the petitioner argues and the COMELEC candidly admits, there is no specific
rule which allows the COMELEC to conduct an appreciation of ballots outside its
premises and of those which are outside its own custody. [27] But while this is true,
there is likewise nothing to prohibit the COMELEC from undertaking the
appreciation of ballot side by side with the SETs own revision of ballots for the
senatorial votes, in light especially of the COMELECs general authority to adopt
means to effect its powers and jurisdiction under its Rules of Procedure. Section 4
of these Rules states:

Sec. 4. Means to Effect Jurisdiction. - All auxiliary writs, processes and

other means necessary to carry into effect its powers or jurisdiction may
be employed by the Commission; and if the procedure to be followed in
the exercise of such power or jurisdiction is not specifically provided for
by law or these rules, any suitable process or proceeding may be adopted.

This rule is by no means unusual and unique to the COMELEC as the courts have
the benefit of this same type of rule under Section 6, Rule 136 of the Rules of
Court. The courts own rule provides:

Means to Carry Jurisdiction into Effect. When by law jurisdiction

is conferred o n a court or judicial officer, all auxiliary writs, writs,
processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed in
the exercise of such jurisdiction is not specifically pointed out by law or
by these rules, any suitable process or mode of proceeding may be adopted
which appears conformable to the spirit of said law or rules.

Incidentally, the COMELEC authority to promulgate the above rule enjoys

constitutional moorings; in the grant to the COMELEC of its jurisdiction, the
Constitution provided it with the accompanying authority to promulgate its own
rules concerning pleadings and practice before it or before any of its offices,
provided that these rules shall not diminish, increase or modify substantive
rights.[28] The Constitution additionally requires that the rules of procedure that the
COMELEC will promulgate must expedite the disposition of election cases,
including pre-proclamation controversies.[29] This constitutional standard is
authority, no less, that the COMELEC can cite in defending its action. For
ultimately, the appreciation of the Bulacan ballots that the COMELEC undertook
side by side with the SETs own revision of ballots, constitutes an exercise of
discretion made under the authority of the above-cited COMELEC rule of procedure.
 On the basis of the standards set by Section 4 of the COMELEC Rules of
Procedure, and of the Constitution itself in the handling of election cases, we
rule that the COMELEC action is a valid exercise of discretion as it is a suitable
and reasonable process within the exercise of its jurisdiction over provincial
election contests, aimed at expediting the disposition of this case, and with no
adverse, prejudicial or discriminatory effects on the parties to the contest that
would render the rule unreasonable.

Since the COMELEC action, taken by its Second Division, is authorized

under the COMELEC Rules of Procedure, the Second Division cannot in any sense
be said to be intruding into the COMELEC en banc rule-making prerogative when
the Second Division chose to undertake ballot appreciation within the SET premises
side by side with the SET revision of ballots. To be exact, the Second Division never
laid down any new rule; it merely acted pursuant to a rule that the COMELEC en
banc itself had previously enacted.

In light of these conclusions, we need not discuss the other issues raised.

WHEREFORE, premises considered, we DISMISS the petition for

certiorari for lack of merit. We accordingly LIFT the STATUS QUO ORDER we
issued, effective immediately.

SO ORDERED.
G.R. No. 183626 October 4, 2010

SURIGAO DEL NORTE ELECTRIC COOPERATIVE, INC. (SURNECO), Petitioner,

vs.
ENERGY REGULATORY COMMISSION, Respondent.

DECISION

NACHURA, J.:

Assailed in this petition for review on certiorari1 under Rule 45 of the Rules of Court are the Decision
dated April 17, 20082 and the Resolution dated June 25, 20083 of the Court of Appeals (CA) in CA-
G.R. SP No. 99781.

The antecedent facts and proceedings follow

Petitioner Surigao Del Norte Electric Cooperative, Inc. (SURNECO) is a rural electric cooperative
organized and existing by virtue of Presidential Decree No. 269.

On February 8, 1996, the Association of Mindanao Rural Electric Cooperatives, as representative of

SURNECO and of the other 33 rural electric cooperatives in Mindanao, filed a petition before the
then Energy Regulatory Board (ERB) for the approval of the formula for automatic cost adjustment
and adoption of the National Power Corporation (NPC) restructured rate adjustment to comply with
Republic Act (R.A.) No. 7832.4 The case was docketed as ERB Case No. 96-49, and later
consolidated with identical petitions of other associations of electric cooperatives in the Philippines.

The relevant provisions of R.A. No. 7832 for compliance are Sections 10 and 14, which provide

Sec. 10. Rationalization of System Losses by Phasing Out Pilferage Losses as a Component
Thereof. There is hereby established a cap on the recoverable rate of system losses as follows:

xxxx

(b) For rural electric cooperatives:

(i) Twenty-two percent (22%) at the end of the first year following the effectivity of this
Act;

(ii) Twenty percent (20%) at the end of the second year following the effectivity of this
Act;

(iii) Eighteen percent (18%) at the end of the third year following the effectivity of this
Act;

(iv) Sixteen percent (16%) at the end of the fourth year following the effectivity of this
Act; and

(v) Fourteen percent (14%) at the end of the fifth year following the effectivity of this
Act.
 Provided, that the ERB is hereby authorized to determine at the end of the fifth year following
the effectivity of this Act, and as often as is necessary, taking into account the viability of
rural electric cooperatives and the interest of consumers, whether the caps herein or
theretofore established shall be reduced further which shall, in no case, be lower than nine
percent (9%) and accordingly fix the date of the effectivity of the new caps.

xxxx

Sec. 14. Rules and Regulations. The ERB shall, within thirty (30) working days after the conduct of
hearings which must commence within thirty (30) working days upon the effectivity of this Act, issue
the rules and regulation as may be necessary to ensure the efficient and effective implementation of
the provisions of this Act, to include but not limited to, the development of methodologies for
computing the amount of electricity illegally used and the amount of payment or deposit
contemplated in Section 7 hereof as a result of the presence of the prima facie evidence discovered.

Corollary thereto, Sections 4 and 5 of Rule IX of the Implementing Rules and Regulations (IRR) of
R.A. No. 7832 provide

Section 4. Caps on System Loss allowed to Rural Electric Cooperatives. The maximum rate of
system loss that the cooperative can pass on to its customers shall be as follows:

a. Twenty-two percent (22%) effective on February 1996 billing.

b. Twenty percent (20%) effective on February 1997 billing.

c. Eighteen percent (18%) effective on February 1998 billing.

d. Sixteen percent (16%) effective on February 1999 billing.

e. Fourteen percent (14%) effective on February 2000 billing.

Section 5. Automatic Cost Adjustment Formula. Each and every cooperative shall file with the
ERB, on or before September 30, 1995, an application for approval of an amended Purchased
Power Adjustment Clause that would reflect the new system loss cap to be included in its schedule
of rates.

The automatic cost adjustment of every electric cooperative shall be guided by the following formula:

Purchased Power Adjustment Clause

A
(PPA) =
B (C + D)

Where:

A = Cost of electricity purchased and generated for the previous month

B = Total Kwh purchased and generated for the previous month

 C = The actual system loss but not to exceed the maximum recoverable rate of system loss
in Kwh plus actual company use in kwhrs but not to exceed 1% of total kwhrs purchased and
generated

D = kwh consumed by subsidized consumers

E = Applicable base cost of power equal to the amount incorporated into their basic rate per
kwh.

In an Order5 dated February 19, 1997, the ERB granted SURNECO and other rural electric
cooperatives provisional authority to use and implement the Purchased Power Adjustment (PPA)
formula pursuant to the mandatory provisions of R.A. No. 7832 and its IRR, with a directive to submit
relevant and pertinent documents for the Boards review, verification, and confirmation.

In the meantime, the passage of R.A. No. 91366 led to the creation of the Energy Regulatory
Commission (ERC), replacing and succeeding the ERB. All pending cases before the ERB were
transferred to the ERC. ERB Case No. 96-49 was re-docketed as ERC Case No. 2001-343.

In the Order dated June 17, 2003, the ERC clarified ERBs earlier policy regarding the PPA formula
to be used by the electric cooperatives, viz.

After a careful evaluation of the records, the Commission noted that the PPA formula which was
approved by the ERB was silent on whether the calculation of the cost of electricity purchased and
generated in the formula should be "gross" or "net" of the discounts.

Let it be noted that the power cost is said to be at "gross" if the discounts are not passed-on to the
end-users whereas it is said to be at "net" if the said discounts are passed-on to the end-users.

To attain uniformity in the implementation of the PPA formula, the Commission has resolved that:

1. In the confirmation of past PPAs, the power cost shall still be based on "gross," and

2. In the confirmation of future PPAs, the power cost shall be based on "net."

The electric cooperatives filed their respective motions for clarification and/or reconsideration.
Hence, the ERC issued an Order7 dated January 14, 2005, stating that the PPA was a cost-recovery
mechanism, not a revenue-generating scheme, so that the distribution utilities or the electric
cooperatives must recover from their customers only the actual cost of purchased power. The ERC
thus adopted a new PPA policy, to wit

A. The computation and confirmation of the PPA prior to the Commissions Order dated June
17, 2003 shall be based on the approved PPA Formula;

B. The computation and confirmation of the PPA after the Commissions Order dated June
17, 2003 shall be based on the power cost "net" of discount; and

C. If the approved PPA Formula is silent on the terms of discount, the computation and
confirmation of the PPA shall be based on the power cost at "gross," subject to the
submission of proofs that said discounts are being extended to the end-users.8
Thereafter, the ERC continued its review, verification, and confirmation of the electric cooperatives
implementation of the PPA formula based on the available data and information submitted by the
latter.

On March 19, 2007, the ERC issued its assailed Order,9 mandating that the discounts earned by
SURNECO from its power supplier should be deducted from the computation of the power cost,
disposing in this wise

WHEREFORE, the foregoing premises considered, the Commission hereby confirms the Purchased
Power Adjustment (PPA) of Surigao del Norte Electric Cooperative, Inc. (SURNECO) for the period
February 1996 to July 2004 which resulted to an over-recovery amounting to EIGHTEEN MILLION
ONE HUNDRED EIGHTY EIGHT THOUSAND SEVEN HUNDRED NINETY FOUR PESOS
(PhP18,188,794.00) equivalent to PhP0.0500/kwh. In this connection, SURNECO is hereby directed
to refund the amount of PhP0.0500/kwh to its Main Island consumers starting the next billing cycle
from receipt of this Order until such time that the full amount shall have been refunded.

The Commission likewise confirms the PPA of SURNECO for its Hikdop Island consumers for the
period February 1996 to July 2004 which resulted to an under-recovery amounting to TWO MILLION
FOUR HUNDRED SEVENTY EIGHT THOUSAND FORTY FIVE PESOS (PhP2,478,045.00).
SURNECO is hereby authorized to collect from its Hikdop Island consumers the amount of
PhP0.0100/kwh starting the next billing cycle from receipt of this Order until such time that the full
amount shall have been collected.

Accordingly, SURNECO is directed to:

a) Reflect the PPA refund/collection as a separate item in the bill using the phrase "Previous
Years Adjustment on Power Cost";

b) Submit, within ten (10) days from its initial implementation of the refund/collection, a sworn
statement indicating its compliance with the aforecited directive; and

c) Accomplish and submit a report in accordance with the attached prescribed format, on or
before the 30th day of January of the succeeding year and every year thereafter until the
amount shall have been fully refunded/collected.

SO ORDERED.10

SURNECO filed a motion for reconsideration, but it was denied by the ERC in its Order11 dated May
29, 2007 on the ground that the motion did not raise any new matter which was not already passed
upon by the ERC.

Aggrieved, SURNECO went to the CA via a petition for review,12 with prayer for the issuance of a
temporary restraining order and preliminary injunction, seeking the annulment of the ERC Orders
dated March 19, 2007 and May 29, 2007.

In its Decision dated April 17, 2008, the CA denied SURNECOs petition and affirmed the assailed
Orders of the ERC.

On June 25, 2008, upon motion for reconsideration13 of SURNECO, the CA issued its Resolution
denying the same.
Hence, this petition, with SURNECO ascribing error to the CA and the ERC in: (1) disallowing its use
of the multiplier scheme to compute its systems loss; (2) ordering it to deduct from the power cost or
refund to its consumers the discounts extended to it by its power supplier, NPC; and (3) ordering it to
refund alleged over-recoveries arrived at by the ERC without giving SURNECO the opportunity to be
heard.

The petition should be denied.

First. SURNECO points out that the National Electrification Administration (NEA), which used to be
the government authority charged by law with the power to fix rates of rural electric cooperatives,
entered into a loan agreement with the Asian Development Bank (ADB). The proceeds of the loan
were intended for use by qualified rural electric cooperatives, SURNECO included, in their
rehabilitation and expansion projects. The loan agreement imposed a 15% system loss cap, but
provided a Power Cost Adjustment Clause authorizing cooperatives to charge and show "system
losses in excess of 15%" as a separate item in their consumers bill. Thus, the cooperatives charged
their consumer-members "System Loss Levy" for system losses in excess of the 15% cap.

SURNECO states that, in January 1984, it was authorized by the NEA that all increases in the NPC
power cost (in case of NPC-connected cooperatives) shall be uniformly passed on to the member-
consumers using the 1.4 multiplier, which is divided into 1.3 as allowance for 23% system loss and
0.1 as provision for the corresponding increase in operating expenses to partly offset the effects of
inflation.14 Subsequently, the NEA, through NEA Memorandum No. 1-A dated March 30, 1992,
revised the aforesaid issuance as follows

Pursuant to NEA Board Resolution No. 98, Series of 1991, x x x, the revised cooperatives multiplier
will be as follows:

1.2 Rural Electric Cooperatives (RECs) with system loss of 15% and below;

1.3 RECs with system loss ranging from 16% to 22%;

1.4 RECs with system loss of 23% and above.

SURNECO posits that, per NEA Memorandum No. 1-A, the NEA had authorized it to adopt a
multiplier scheme as the method to recover system loss. It claims that this cannot be abrogated,
revoked, or superseded by any order, resolution, or issuance by the ERC prescribing a certain
formula to implement the caps of recoverable rate of system loss under R.A. No. 7832 without
violating the non-impairment clause15 of the Constitution.

We disagree. SURNECO cannot insist on using the multiplier scheme even after the imposition of
the system loss caps under Section 10 of R.A. No. 7832. The law took effect on January 17, 1995.
Perusing Section 10, and also Section 11,16 providing for the application of the caps as of the date of
the effectivity of R.A. No. 7832, readily shows that the imposition of the caps was self-executory and
did not require the issuance of any enabling set of rules or any action by the then ERB, now ERC.
Thus, the caps should have been applied as of January 17, 1995 when R.A. No. 7832 took effect.

Indeed, under NEA Memorandum No. 1-A, the use of the multiplier scheme allows the recovery of
system losses even beyond the caps mandated in R.A. No. 7832, which is intended to gradually
phase out pilferage losses as a component of the recoverable system losses by the distributing
utilities such as SURNECO. However, it is totally repugnant to and incompatible with the system loss
caps established in R.A. No. 7832, and is repealed by Section 1617 of the law. As between NEA
Memorandum No. 1-A, a mere administrative issuance, and R.A. No. 7832, a legislative enactment,
the latter must prevail.18

Second. The ERC was merely implementing the system loss caps in R.A. No. 7832 when it reviewed
and confirmed SURNECOS PPA charges, and ordered the refund of the amount collected in excess
of the allowable system loss caps through its continued use of the multiplier scheme. As the ERC
held in its March 19, 2007 Order

On January 14, 2005, the Commission issued an Order adopting a new PPA policy as follows: (a)
the computation and confirmation of the PPA prior to the Commissions Order dated June 17, 2003
shall be based on the approved PPA Formula; (b) the computation and confirmation of the PPA after
the Commissions Order dated June 17, 2003 shall be based on the power cost "net" of discount;
and (c) if the approved PPA Formula is silent in terms of discount, the computation and confirmation
of the PPA shall be based on the power cost at "gross" reduced by the amount of discounts
extended to customers, subject to the submission of proofs that said discounts are indeed being
extended to customers.

However, the Commission deemed it appropriate to clarify its PPA confirmation process particularly
on the treatment of the Prompt Payment Discount (PPD) granted to distribution utilities (DUs) by
their power suppliers, to wit:

I. The over-or-under recovery will be determined by comparing the allowable power cost with
the actual revenue billed to end-users.

II. Calculation of the DUs allowable power cost as prescribed in the PPA formula:

a. If the PPA formula explicitly provides the manner by which discounts availed from
the power supplier/s shall be treated, the allowable power cost will be computed
based on the specific provision of the formula, which may either be at "net" or
"gross"; and

b. If the PPA formula is silent in terms of discounts, the allowable power cost will be
computed at "net" of discounts availed from the power supplier/s, if there be any.

III. Calculation of DUs actual revenues/actual amount billed to end-users.

a. On actual PPA computed at net of discounts availed from power supplier/s:

a.1. If a DU bills at net of discounts availed from the power supplier/s (i.e.,
gross power cost minus discounts from power supplier/s) and the DU is not
extending discounts to end-users, the actual revenue should be equal to the
allowable power cost; and

a.2. If a DU bills at net of discounts availed from the power supplier/s (i.e.,
gross power cost minus discounts from power supplier/s) and the DU is
extending discounts to end-users, the discount extended to end-users shall
be added back to the actual revenue.

b. On actual PPA computed at gross:

 b.1. If a DU bills at gross (i.e., gross power cost not reduced by discounts
from power supplier/s) and the DU is extending discounts to end-users, the
actual revenue shall be calculated as: gross power revenue less discounts
extended to end-users. The result shall then be compared to the allowable
power cost; and

b.2. If a DU bills at gross (i.e., gross power cost not reduced by discounts
from power supplier/s) and the DU is not extending discounts to end-users,
the actual revenue shall be taken as is which shall be compared to the
allowable power cost.

IV. In the calculation of the DUs actual revenues, the amount of discounts extended
to end-users shall, in no case, be higher than the discounts availed by the DU from
its power supplier/s.

The foregoing clarification was intended to ensure that only the actual costs of purchased power are
recovered by the DUs.

In the meantime, SURNECO submitted reports on its monthly implementation of the PPA covering
the period January 1998 to July 2004 and attended the conferences conducted by the Commission
on December 11, 2003 and May 4, 2005 relative thereto.

The Commission evaluated SURNECOs monthly PPA implementation covering the period February
1996 to July 2004, which disclosed the following:

Schedule 1, Main Island

Period Covered Over Over

(Under) (Under) Recoveries
Recoveries (In kWh)
(In PhP)
February 1996 to 20,737,074 0.2077
December 1998
January 1999 to (2,548,280) (0.0097)
July 2004
TOTAL 18,188,794 0.0500

Schedule 2, Municipality of Hikdop

February 1996 to 70,235 0.3190

December 1998
PPA Plus Basic
Cha[r]ge
January 1999 to (2,548,280) (0.0097)
July 2004
TOTAL (2,478,045) (0.0100)
The over-recoveries were due to the following:

1. For the period February 1996 to December 1998, SURNECOs PPA computation included
the power cost and the corresponding kWh purchased from Hikdop end-users. The
Commission excluded those months which SURNECO did not impose variable charges to
Hikdop end-user which resulted to a total net over-recovery of PhP21,245,034.00; and

2. SURNECOs basic charge for Hikdop end-users were beyond the approved basic charge
for the period February 1996 to September 1998 resulting to a net over-recovery of
PhP128,489.00.

SURNECOs under recoveries for the period January 1999 to June 2004 were due to the following:

1. For the period August 2001 to June 2004, SURNECO erroneously deducted the Power
Act Reduction Adjustments (PARA) in the total purchased power cost of its PPA computation
resulting to an under-recovery of PhP1,377,763.00;

2. SURNECOs power cost and kWh computation includes Dummy Load resulting to an
under recovery amounting to PhP226,196.00; and

3. The new grossed-up factor scheme adopted by the Commission which provided a true-up
mechanism to allow the DUs to recover the actual costs of purchased power.19

In directing SURNECO to refund its over-recoveries based on PPA policies, which only ensured that
the PPA mechanism remains a purely cost-recovery mechanism and not a revenue-generating
scheme for the electric cooperatives, the ERC merely exercised its authority to regulate and approve
the rates imposed by the electric cooperatives on their consumers. The ERC simply performed its
mandate to protect the public interest imbued in those rates.

It is beyond cavil that the State, in the exercise of police power, can regulate the rates imposed by a
public utility such as SURNECO. As we held in Republic of the Philippines v. Manila Electric
Company20

The regulation of rates to be charged by public utilities is founded upon the police powers of the
State and statutes prescribing rules for the control and regulation of public utilities are a valid
exercise thereof. When private property is used for a public purpose and is affected with public
interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to
promote the common good. Submission to regulation may be withdrawn by the owner by
discontinuing use; but as long as use of the property is continued, the same is subject to public
regulation.

Likewise, SURNECO cannot validly assert that the caps set by R.A. No. 7832 are arbitrary, or that
they violate the non-impairment clause of the Constitution for allegedly traversing the loan
agreement between NEA and ADB. Striking down a legislative enactment, or any of its provisions,
can be done only by way of a direct action, not through a collateral attack, and more so, not for the
first time on appeal in order to avoid compliance. The challenge to the laws constitutionality should
also be raised at the earliest opportunity.21

Even assuming, merely for arguments sake, that the ERC issuances violated the NEA and ADB
covenant, the contract had to yield to the greater authority of the States exercise of police power. It
has long been settled that police power legislation, adopted by the State to promote the health,
morals, peace, education, good order, safety, and general welfare of the people prevail not only over
future contracts but even over those already in existence, for all private contracts must yield to the
superior and legitimate measures taken by the State to promote public welfare.22

SURNECO also avers that the Electric Power Industry Reform Act of 2001 (EPIRA) removed the
alleged arbitrary caps in R.A. No. 7832. We differ. The EPIRA allows the caps to remain until
replaced by the caps to be determined by the ERC, pursuant to its delegated authority under Section
4323 of R.A. No. 9136 to prescribe new system loss caps, based on technical parameters such as
load density, sales mix, cost of service, delivery voltage, and other technical considerations it may
promulgate.

Third. We also disagree with SURNECO in its insistence that the PPA confirmation policies
constituted an amendment to the IRR of R.A. No. 7832 and must, therefore, comply with the
publication requirement for the effectivity of administrative issuances.

The PPA formula provided in the IRR of R.A. No. 7832 was only a model to be used as a guide by
the electric cooperatives in proposing their own PPA formula for approval by the then ERB. Sections
4 and 5, Rule IX of the IRR directed the electric cooperatives to apply for approval of such formula
with the ERB so that the system loss caps under the law would be incorporated in their computation
of power cost adjustments. The IRR did not provide for a specific formula; therefore, there was
nothing in the IRR that was amended or could have been amended relative to the PPA formula. The
IRR left to the ERB, now the ERC, the authority to approve and oversee the implementation of the
electric cooperatives PPA formula in the exercise of its rate-making power over them. 1avvphi1

We likewise differ from SURNECOs stance that it was denied due process when the ERC issued its
questioned Orders. Administrative due process simply requires an opportunity to explain ones side
or to seek reconsideration of the action or ruling complained of.24 It means being given the
opportunity to be heard before judgment, and for this purpose, a formal trial-type hearing is not even
essential. It is enough that the parties are given a fair and reasonable chance to demonstrate their
respective positions and to present evidence in support thereof.25

Verily, the PPA confirmation necessitated a review of the electric cooperatives monthly
documentary submissions to substantiate their PPA charges. The cooperatives were duly informed
of the need for other required supporting documents and were allowed to submit them accordingly.
In fact, hearings were conducted. Moreover, the ERC conducted exit conferences with the electric
cooperatives representatives, SURNECO included, to discuss preliminary figures and to double-
check these figures for inaccuracies, if there were any. In addition, after the issuance of the ERC
Orders, the electric cooperatives were allowed to file their respective motions for reconsideration. It
cannot be gainsaid, therefore, that SURNECO was not denied due process.

Finally, the core of the issues raised is factual in character. It needs only to be reiterated that factual
findings of administrative bodies on technical matters within their area of expertise should be
accorded not only respect but even finality if they are supported by substantial evidence even if not
overwhelming or preponderant,26 more so if affirmed by the CA. Absent any grave abuse of
discretion on the part of ERC, we must sustain its findings. Hence, its assailed Orders, following the
rule of non-interference on matters addressed to the sound discretion of government agencies
entrusted with the regulation of activities coming their special technical knowledge and training, must
be upheld.27

WHEREFORE, the petition is DENIED. The Decision dated April 17, 2008 and the Resolution dated
June 25, 2008 of the Court of Appeals in CA-G.R. SP No. 99781 are AFFIRMED. Costs against
petitioner.
SO ORDERED.

SOUTHERN HEMISPHERE G.R. No. 178552

ENGAGEMENT NETWORK,
INC., on behalf of the South- Present:
South Network (SSN) for Non-
State Armed Group CORONA, C.J.,
Engagement, and ATTY. CARPIO,
SOLIMAN M. SANTOS, JR., CARPIO MORALES,
Petitioners, VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
ANTI-TERRORISM DEL CASTILLO,
COUNCIL, THE ABAD,
EXECUTIVE SECRETARY, VILLARAMA, JR.,
THE SECRETARY OF PEREZ,
JUSTICE, THE SECRETARY MENDOZA, and
OF FOREIGN AFFAIRS, SERENO, JJ.
THE SECRETARY OF
NATIONAL DEFENSE, THE
SECRETARY OF THE
INTERIOR AND LOCAL
GOVERNMENT, THE
SECRETARY OF FINANCE,
THE NATIONAL SECURITY
ADVISER, THE CHIEF OF
STAFF OF THE ARMED
FORCES OF THE
PHILIPPINES, AND THE Promulgated:
CHIEF OF THE PHILIPPINE
NATIONAL POLICE, October 5, 2010
Respondents.

x ------------------------------- G.R. No. 178554

x
KILUSANG MAYO UNO
(KMU), represented by its
Chairperson Elmer Labog,
NATIONAL FEDERATION
OF LABOR UNIONS-
KILUSANG MAYO UNO
(NAFLU-KMU), represented
by its National President
Joselito V. Ustarez and
Secretary General Antonio C.
Pascual, and CENTER FOR
TRADE UNION AND
HUMAN RIGHTS,
represented by its Executive
Director Daisy Arago,
Petitioners,

- versus -

HON. EDUARDO ERMITA,

in his capacity as Executive
Secretary, NORBERTO
GONZALES, in his capacity as
Acting Secretary of National
Defense, HON. RAUL
GONZALES, in his capacity as
Secretary of Justice, HON.
RONALDO PUNO, in his
capacity as Secretary of the
Interior and Local
Government, GEN.
HERMOGENES ESPERON,
in his capacity as AFP Chief of
Staff, and DIRECTOR
GENERAL OSCAR
CALDERON, in his capacity as
PNP Chief of Staff,
Respondents.
x ------------------------------------ G.R. No. 178581
x

BAGONG ALYANSANG
MAKABAYAN (BAYAN),
GENERAL ALLIANCE
BINDING WOMEN FOR
REFORMS, INTEGRITY,
EQUALITY, LEADERSHIP
AND ACTION (GABRIELA),
KILUSANG MAGBUBUKID
NG PILIPINAS (KMP),
MOVEMENT OF
CONCERNED CITIZENS
FOR CIVIL LIBERTIES
(MCCCL),
CONFEDERATION FOR
UNITY, RECOGNITION
AND ADVANCEMENT OF
GOVERNMENT
EMPLOYEES (COURAGE),
KALIPUNAN NG
DAMAYANG MAHIHIRAP
(KADAMAY), SOLIDARITY
OF CAVITE WORKERS,
LEAGUE OF FILIPINO
STUDENTS (LFS),
ANAKBAYAN,
PAMBANSANG LAKAS NG
KILUSANG
MAMAMALAKAYA
(PAMALAKAYA),
ALLIANCE OF
CONCERNED TEACHERS
(ACT), MIGRANTE,
HEALTH ALLIANCE FOR
DEMOCRACY (HEAD),
AGHAM, TEOFISTO
GUINGONA, JR., DR.
BIENVENIDO LUMBERA,
RENATO CONSTANTINO,
JR., SISTER MARY JOHN
MANANSAN OSB, DEAN
CONSUELO PAZ, ATTY.
JOSEFINA LICHAUCO,
COL. GERRY CUNANAN
(ret.), CARLITOS SIGUION-
REYNA, DR. CAROLINA
PAGADUAN-ARAULLO,
RENATO REYES, DANILO
RAMOS, EMERENCIANA
DE LESUS, RITA BAUA, REY
CLARO CASAMBRE,
Petitioners,

- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE
SECRETARY EDUARDO
ERMITA, DEPARTMENT OF
JUSTICE SECRETARY
RAUL GONZALES,
DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT
OF NATIONAL DEFENSE
ACTING SECRETARY
NORBERTO GONZALES,
DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT
SECRETARY RONALDO
PUNO. DEPARTMENT OF
FINANCE SECRETARY
MARGARITO TEVES,
NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE
NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF
INVESTIGATION (NBI),
THE BUREAU OF
IMMIGRATION, THE
OFFICE OF CIVIL
DEFENSE, THE
INTELLIGENCE SERVICE
OF THE ARMED FORCES
OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE
CENTER ON
TRANSNATIONAL CRIME,
THE CHIEF OF THE
PHILIPPINE NATIONAL
POLICE GEN. OSCAR
CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP G.R. No. 178890
CHIEF GEN. HERMOGENES
ESPERON,
Respondents.
x ------------------------------------
x
KARAPATAN, ALLIANCE
FOR THE ADVANCEMENT
OF PEOPLES RIGHTS,
represented herein by Dr.
Edelina de la Paz, and
representing the following
organizations: HUSTISYA,
represented by Evangeline
Hernandez and also on her own
behalf; DESAPARECIDOS,
represented by Mary Guy
Portajada and also on her own
behalf, SAMAHAN NG MGA
EX-DETAINEES LABAN SA
DETENSYON AT PARA SA
AMNESTIYA (SELDA),
represented by Donato
Continente and also on his own
behalf, ECUMENICAL
MOVEMENT FOR JUSTICE
AND PEACE (EMJP),
represented by Bishop Elmer
M. Bolocon, UCCP, and
PROMOTION OF CHURCH
PEOPLES RESPONSE,
represented by Fr. Gilbert
Sabado, OCARM,
Petitioners,

- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE
SECRETARTY EDUARDO
ERMITA, DEPARTMENT OF
JUSTICE SECRETARY
RAUL GONZALEZ,
DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT
OF NATIONAL DEFENSE
ACTING SECRETARY
NORBERTO GONZALES,
DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMENT
SECRETARY RONALDO
PUNO, DEPARTMENT OF
FINANCE SECRETARY
MARGARITO TEVES,
NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE
NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF
INVESTIGATION (NBI),
THE BUREAU OF
IMMIGRATION, THE
OFFICE OF CIVIL
DEFENSE, THE
INTELLIGENCE SERVICE
OF THE ARMED FORCES
OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE
CENTER ON
TRANSNATIONAL CRIME,
THE CHIEF OF THE
PHILIPPINE NATIONAL
POLICE GEN. OSCAR
CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP G.R. No. 179157
CHIEF GEN. HERMOGENES
ESPERON,
Respondents.
x------------------------------------ x

THE INTEGRATED BAR OF

THE PHILIPPINES (IBP),
represented by Atty. Feliciano
M. Bautista, COUNSELS FOR
THE DEFENSE
OF LIBERTY(CODAL),
SEN. MA. ANA CONSUELO
A.S. MADRIGAL and
FORMER SENATORS
SERGIO OSMEA III and
WIGBERTO E. TAADA,
Petitioners,

- versus -

EXECUTIVE SECRETARY
EDUARDO ERMITA AND
THE MEMBERS OF THE G.R. No. 179461
ANTI-TERRORISM
COUNCIL (ATC),
Respondents.

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

BAGONG ALYANSANG
MAKABAYAN-SOUTHERN
TAGALOG (BAYAN-ST),
GABRIELA-ST,
KATIPUNAN NG MGA
SAMAHYANG
MAGSASAKA-TIMOG
KATAGALUGAN
(KASAMA-TK),
MOVEMENT OF
CONCERNED CITIZENS
FOR CIVIL LIBERTIES
(MCCCL), PEOPLES
MARTYRS, ANAKBAYAN-
ST, PAMALAKAYA-ST,
CONFEDERATION FOR
UNITY, RECOGNITION
AND ADVANCEMENT OF
GOVERNMENT
EMPLOYEES (COURAGE-
ST), PAGKAKAISAT
UGNAYAN NG MGA
MAGBUBUKID SA LAGUNA
(PUMALAG), SAMAHAN NG
MGA MAMAMAYAN SA
TABING RILES (SMTR-ST),
LEAGUE OF FILIPINO
STUDENTS (LFS), BAYAN
MUNA-ST, KONGRESO NG
MGA MAGBUBUKID PARA
SA REPORMANG
AGRARYO KOMPRA,
BIGKIS AT LAKAS NG MGA
KATUTUBO SA TIMOG
KATAGALUGAN
(BALATIK), SAMAHAN AT
UGNAYAN NG MGA
MAGSASAKANG
KABABAIHAN SA TIMOG
KATAGALUGAN
(SUMAMAKA-TK),
STARTER, LOSOS RURAL
POOR ORGANIZATION
FOR PROGRESS &
EQUALITY, CHRISTIAN
NIO LAJARA, TEODORO
REYES, FRANCESCA B.
TOLENTINO, JANNETTE E.
BARRIENTOS, OSCAR T.
LAPIDA, JR., DELFIN DE
CLARO, SALLY P.
ASTRERA, ARNEL SEGUNE
BELTRAN,
Petitioners,

- versus -

GLORIA MACAPAGAL-
ARROYO, in her capacity as
President and Commander-in-
Chief, EXECUTIVE
SECRETARY EDUARDO
ERMITA, DEPARTMENT OF
JUSTICE SECRETARY
RAUL GONZALEZ,
DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERTO
ROMULO, DEPARTMENT
OF NATIONAL DEFENSE
ACTING SECRETARY
NORBERTO GONZALES,
DEPARTMENT OF
INTERIOR AND LOCAL
GOVERNMEN T
SECRETARY RONALDO
PUNO, DEPARTMENT OF
FINCANCE SECRETARY
MARGARITO TEVES,
NATIONAL SECURITY
ADVISER NORBERTO
GONZALES, THE
NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(NICA), THE NATIONAL
BUREAU OF
INVESTIGATION (NBI),
 THE BUREAU OF
IMMIGRATION, THE
OFFICE OF CIVIL
DEFENSE, THE
INTELLIGENCE SERVICE
OF THE ARMED FORCES
OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL
(AMLC), THE PHILIPPINE
CENTER ON
TRANSNATIONAL CRIME,
THE CHIEF OF THE
PHILIPPINE NATIONAL
POLICE GEN. OSCAR
CALDERON, THE PNP,
including its intelligence and
investigative elements, AFP
CHIEF GEN. HERMOGENES
ESPERON,
Respondents.

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

DECISION

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act
No. 9372 (RA 9372), An Act to Secure the State and Protect our People from
Terrorism, otherwise known as the Human Security Act of 2007,[1] signed into law
on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization, and Atty.
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-
Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human
Rights (CTUHR), represented by their respective officers[3] who are also bringing
the action in their capacity as citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan
(BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality,
Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP),
Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for
Unity, Recognition and Advancement of Government Employees (COURAGE),
Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers
(ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented
by their respective officers,[4] and joined by concerned citizens and taxpayers
Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister
Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired
Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo,
Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro
Casambre filed a petition for certiorari and prohibition docketed as G.R. No.
178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa
Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church Peoples Response (PCPR), which were represented by their
respective officers[5] who are also bringing action on their own behalf, filed a petition
for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
Defense of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio
Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition
docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional

chapters and organizations mostly based in the Southern Tagalog Region,[7] and
individuals[8]followed suit by filing on September 19, 2007 a petition for certiorari
and prohibition docketed as G.R. No. 179461 that replicates the allegations raised
in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism

Council[9] composed of, at the time of the filing of the petitions, Executive Secretary
Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice
Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense
Secretary and National Security Adviser Norberto Gonzales, Interior and Local
Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as
members. All the petitions, except that of the IBP, also impleaded Armed Forces of
the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President

Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council
like the National Intelligence Coordinating Agency, National Bureau of
Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service
of the AFP, Anti-MoneyLaundering Center, Philippine Center on Transnational
Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is
no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying that
 judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law
and justice may require. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity

how respondents acted without or in excess of their respective jurisdictions, or with
grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting

requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the
case.[10]

In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult
constitutional questions.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule
on locus standi, thus:

Locus standi or legal standing has been defined as a personal and

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

[A] party who assails the constitutionality of a statute must have a direct
and personal interest. It must show not only that the law or any
governmental act is invalid, but also that it sustained or is in immediate
danger of sustaining some direct injury as a result of its enforcement,
and not merely that it suffers thereby in some indefinite way. It must show
that it has been or is about to be denied some right or privilege to which it
is lawfully entitled or that it is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it

must show that (1) it has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, (2)
the injury is fairly traceable to the challenged action, and (3) the injury is
likely to be redressed by a favorable action. (emphasis and underscoring
supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected

communist fronts by the government, especially the military; whereas individual
petitioners invariably invoke the transcendental importance doctrine and their status
as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public importance dispenses

with the requirement that petitioner has experienced or is in actual danger of
suffering direct and personal injury, cases involving the constitutionality
of penal legislation belong to an altogether different genus of constitutional
litigation. Compelling State and societal interests in the proscription of harmful
conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus
standi.

Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners

in G.R. No. 178890, allege that they have been subjected to close security
surveillance by state security forces, their members followed by suspicious persons
and vehicles with dark windshields, and their offices monitored by men with military
build. They likewise claim that they have been branded as enemies of the [S]tate.[14]

Even conceding such gratuitous allegations, the Office of the Solicitor General
(OSG) correctly points out that petitioners have yet to show
any connection between the purported surveillance and the implementation
of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,

Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-
organizations in G.R. No. 178581, would like the Court to take judicial notice of
respondents alleged action of tagging them as militant organizations fronting for the
Communist Party of the Philippines (CPP) and its armed wing, the National Peoples
Army (NPA). The tagging, according to petitioners, is tantamount to the effects of
proscription without following the procedure under the law.[15] The petition
of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged tagging of petitioners.

Generally speaking, matters of judicial notice have three material

requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settledand not
doubtful or uncertain; and (3) it must be known to be within the limits
of the jurisdiction of the court. The principal guide in determining what
facts may be assumed to be judicially known is that of notoriety. Hence,
it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. Moreover, a judicially noticed fact
must be one not subject to a reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial
court; or (2) capable of accurate and ready determination by resorting
to sources whose accuracy cannot reasonably be questionable.

Things of common knowledge, of which courts take judicial matters

coming to the knowledge of men generally in the course of the ordinary
experiences of life, or they may be matters which are generally accepted
by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may
be found in encyclopedias, dictionaries or other publications, are
 judicially noticed, provided, they are of such universal notoriety and so
generally understood that they may be regarded as forming part of the
common knowledge of every person. As the common knowledge of man
ranges far and wide, a wide variety of particular facts have been judicially
noticed as being matters of common knowledge. But a court cannot take
judicial notice of any fact which, in part, is dependent on the existence
or non-existence of a fact of which the court has no constructive
knowledge.[16] (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial

notice. Petitioners apprehension is insufficient to substantiate their plea. That no
specific charge or proscription under RA 9372 has been filed against them, three
years after its effectivity, belies any claim of imminence of their perceived threat
emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554,
who merely harp as well on their supposed link to the CPP and NPA. They fail to
particularize how the implementation of specific provisions of RA 9372 would result
in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization,

the United States of America[17] (US) and the European Union[18] (EU) have both
classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist
organizations. The Court takes note of the joint statement of Executive Secretary
Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration
would adopt the US and EU classification of the CPP and NPA as terrorist
organizations.[19] Such statement notwithstanding,there is yet to be filed before the
courts an application to declare the CPP and NPA organizations as domestic
terrorist or outlawed organizations under RA 9372.Again, RA 9372 has been in
effect for three years now. From July 2007 up to the present, petitioner-organizations
have conducted their activities fully and freely without any threat of, much less an
actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list

Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and
Luzviminda Ilagan,[20]urged the government to resume peace negotiations with the
NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist
organizations. Considering the policy statement of the Aquino Administration[21] of
resuming peace talks with the NDF, the government is not imminently disposed to
ask for the judicial proscription of the CPP-NPA consortium and its allied
organizations.

More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.[22] Of recent development is the filing of
the firstcase for proscription under Section 17[23] of RA 9372 by the Department of
Justice before the Basilan Regional Trial Court against the Abu
Sayyaf Group.[24] Petitioner-organizations do not in the least allege any link to
the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution

under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in
2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of
Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and
Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges
were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes,
Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front
organizations for the Communist movement were petitioner-organizations KMU,
BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and
COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for petitioners. For
one, those charges were filed in 2006, prior to the enactment of RA 9372, and
dismissed by this Court. For another, rebellion is defined and punished under the
Revised Penal Code. Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to
prospective charges under RA 9372. It cannot be overemphasized that three years
after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on
their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA
9372 directing it to render assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice
to clothe the IBP or any of its members with standing.[27] The IBP failed to
sufficiently demonstrate how its mandate under the assailed statute revolts against
its constitutional rights and duties. Moreover, both the IBP and CODAL have not
pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the
subject of political surveillance, also lacks locus standi. Prescinding from the
veracity, let alone legal basis, of the claim of political surveillance, the Court finds
that she has not shown even the slightest threat of being charged under RA
9372. Similarly lacking in locus standi are former Senator Wigberto
Taada and Senator Sergio Osmea III, who cite their being respectively a human
rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman

Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are
of transcendental importance, which must be settled early and are of far-reaching
implications, without mention of any specific provision of RA 9372 under which
they have been charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants with locus
standi. Petitioners must show an actual, or immediate danger of sustaining, direct
injury as a result of the laws enforcement. To rule otherwise would be to corrupt the
settled doctrine of locus standi, as every worthy cause is an interest shared by the
general public.

Neither can locus standi be conferred upon individual petitioners

as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of
the spending or taxing power of Congress,[28] whereas citizen standing must rest on
direct and personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens has
alleged any direct and personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a

public right, do not establish locus standi. Evidence of a direct and personal interest
is key.

Petitioners fail to present an actual case

or controversy

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.

Section 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.[30] (emphasis and
underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court ruled that the power of
judicial review is limited to actual cases or controversies to be exercised after full
opportunity of argument by the parties. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.[32]
Information Technology Foundation of the Philippines v. COMELEC[33] cannot be
more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to

satisfy scholarly interest, however intellectually challenging. The
controversy must be justiciabledefinite and concrete, touching on the
legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of
a legal right, on the one hand, and a denial thereof on the other
hand; that is, it must concern a real and not merely a theoretical
question or issue. There ought to be an actual and substantial
controversyadmitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts. (Emphasis and underscoring
supplied)

Thus, a petition to declare unconstitutional a law converting

the Municipality of Makati into a Highly Urbanized City was held to be premature
as it was tacked on uncertain, contingent events.[34] Similarly, a petition that fails to
allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission on

Elections[36] for failure to cite any specific affirmative action of the Commission on
Elections to implement the assailed resolution. It refused, in Abbas v. Commission
on Elections,[37] to rule on the religious freedom claim of the therein petitioners based
merely on a perceived potential conflict between the provisions of the Muslim Code
and those of the national law, there being no actual controversy between real
litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory

grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived
threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient facts to enable the Court
to intelligently adjudicate the issues.[38]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project,[39] allowed the pre-enforcement review of a criminal statute, challenged on
vagueness grounds,since plaintiffs faced a credible threat of prosecution and should
not be required to await and undergo a criminal prosecution as the sole means of
seeking relief.[40] The plaintiffs therein filed an action before a federal court to assail
the constitutionality of the material support statute, 18 U.S.C. 2339B (a)
(1),[41] proscribing the provision of material support to organizations declared by the
Secretary of State as foreign terrorist organizations. They claimed that
they intended to provide support for the humanitarian and political activities of two
such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an

anticipatory petition clearly shows that the challenged prohibition forbids the
conduct or activity that a petitioner seeks to do, as there would then be a
justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that
the challenged provisions of RA 9372 forbid constitutionally
protected conduct or activitythat they seek to do. No demonstrable threat has been
established, much less a real and existing one.

Petitioners obscure allegations of sporadic surveillance and supposedly being

tagged as communist fronts in no way approximate a credible threat of
prosecution. From these allegations, the Court is being lured to render an advisory
opinion, which is not its function.[43]

Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory
actions characterized by double contingency, where both the activity the petitioners
intend to undertake and the anticipated reaction to it of a public official are merely
theorized, lie beyond judicial review for lack of ripeness.[44]
The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such
possibility is not peculiar to RA 9372 since the exercise of any power granted by law
may be abused.[45] Allegations of abuse must be anchored on real events before
courts may step in to settleactual controversies involving rights which are legally
demandable and enforceable.

A facial invalidation of a statute is allowed only

in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism[46] under RA 9372 in that terms like widespread
and extraordinary fear and panic among the populace and coerce the government
to give in to an unlawful demand are nebulous, leaving law enforcement agencies
with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only
to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to

outline the schools of thought on whether the void-for-vagueness and overbreadth
doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting

the application of the two doctrines to free speech cases. They particularly
cite Romualdez v. Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section

5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically vague and
impermissibly broad. The Court stated that the overbreadth and the vagueness
doctrines have special application only to free-speech cases, and are not appropriate
for testing the validity of penal statutes.[50] It added that, at any rate, the challenged
provision, under which the therein petitioner was charged, is not vague.[51]

While in the subsequent case of Romualdez v. Commission on Elections,[52] the Court

stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless
proceeded to conduct a vagueness analysis, and concluded that the therein subject
election offense[53] under the Voters Registration Act of 1996, with which the therein
petitioners were charged, is couched in precise language.[54]

The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice Vicente
V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law
(Republic Act No. 7080) clear and free from ambiguity respecting the definition of
the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a facial invalidation as opposed to an as-applied challenge. He basically
postulated that allegations that a penal statute is vague and overbroad do not justify
a facial review of its validity. The pertinent portion of the Concurring Opinion of
Justice Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which
is overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
 The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited
context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid." As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are

analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, whilestatutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be
made without concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its

deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
 results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is
charged.[56] (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of

the overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of due process
of law) or a speech regulation (under a claim of abridgement of the freedom of
speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate
on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning
and differ as to its application. It is repugnant to the Constitution in two respects: (1)
it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.[57] The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.[58]

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from
that behavior, even though some of it is protected.[59]

A facial challenge is likewise different from an as-applied challenge.

Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.[60]

Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount
a facial challenge against a criminal statute on either vagueness or overbreadth
grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to
avert the chilling effect on protected speech, the exercise of which should not at all
times be abridged.[62] As reflected earlier, this rationale is inapplicable to plain penal
statutes that generally bear an in terrorem effect in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts formerly
considered innocent and lawful, so long as it refrains from diminishing or dissuading
the exercise of constitutionally protected rights.[63]

The Court reiterated that there are critical limitations by which a criminal statute
may be challenged and underscored that an on-its-face invalidation of penal statutes
x x x may not be allowed.[64]

[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially
challenged. Under no case may ordinary penal statutes be subjected to
a facial challenge. The rationale is obvious. If a facial challenge to a penal
statute is permitted, the prosecution of crimes may be hampered. No
prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would
effectively go against the grain of the doctrinal requirement of an existing
and concrete controversy before judicial power may be appropriately
exercised. A facial challenge against a penal statute is, at best, amorphous
and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the
 allowance of a facial challenge to attack penal statutes, such a test will
impair the States ability to deal with crime. If warranted, there would be
nothing that can hinder an accused from defeating the States power to
prosecute on a mere showing that, as applied to third parties, the penal
statute is vague or overbroad, notwithstanding that the law is clear as
applied to him.[65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost
always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts
as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily,
a particular litigant claims that a statute is unconstitutional as applied to him
or her; if the litigant prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis,
those rules give way; challenges are permitted to raise the rights of third
parties; and the court invalidates the entire statute "on its face," not
merely "as applied for" so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern
with the "chilling;" deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an overbroad
laws "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.[66] (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least
two cases,[67] observed that the US Supreme Court has not recognized an overbreadth
doctrine outside the limited context of the First Amendment,[68] and that claims of
facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words.[69] In Virginia v. Hicks,[70] it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or regulation that
is not specifically addressed to speech or speech-related conduct. Attacks on overly
broad statutes are justified by the transcendent value to all society of constitutionally
protected expression.[71]

Since a penal statute may only be assailed for being

vague as applied to petitioners, a limited vagueness
analysis of the definition of terrorism in RA 9372 is
legally impermissible absent an actual or imminent
charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the therein
petitioner, finding, however, that there was no basis to review the law on its face and
in its entirety.[72] It stressed that statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular defendant.[73]

American jurisprudence[74] instructs that vagueness challenges that do not involve

the First Amendment must be examined in light of the specific facts of the case at
hand and not with regard to the statute's facial validity.

For more than 125 years, the US Supreme Court has evaluated defendants claims
that criminal statutes are unconstitutionally vague, developing a doctrine hailed as
among the most important guarantees of liberty under law.[75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process
clause has been utilized in examining the constitutionality of criminal statutes. In at
least three cases,[76] the Court brought the doctrine into play in analyzing an
ordinance penalizing the non-payment of municipal tax on fishponds, the crime of
illegal recruitment punishable under Article 132(b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the
petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed
penal statute, unlike in the present case.

There is no merit in the claim that RA 9372

regulates speech so as to permit a facial
analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA
9372, the following elements may be culled: (1) the offender commits an act
punishable under any of the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws; (2) the commission of the predicate crime
sows and creates a condition of widespread and extraordinary fear and panic among
the populace; and (3) the offender is actuated by the desire to coerce the government
to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of unlawful demand in the definition of
terrorism[77] must necessarily be transmitted through some form of expression
protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not
speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying
phrases in the other elements of the crime, including the coercion of the government
to accede to an unlawful demand. Given the presence of the first element, any
attempt at singling out or highlighting the communicative component of the
prohibition cannot recategorize the unprotected conduct into a protected speech.

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly

focuses on just one particle of an element of the crime. Almost every commission of
a crime entails some mincing of words on the part of the offender like in declaring
to launch overt criminal acts against a victim, in haggling on the amount of ransom
or conditions, or in negotiating a deceitful transaction. An analogy in
one U.S. case[78] illustrated that the fact that the prohibition on discrimination in
hiring on the basis of race will require an employer to take down a sign reading
White Applicants Only hardly means that the law should be analyzed as one
regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor the
essence of the whole act as conduct and not speech. This holds true a fortiori in the
present case where the expression figures only as an inevitable incident of making
the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been
deemed an abridgement of freedom of speech or press to make a course of
conduct illegal merely because the conduct was, in part,
initiated, evidenced, or carried out by means of language, either spoken,
written, or printed. Such an expansive interpretation of the constitutional
guaranties of speech and press would make it practically impossible ever to
enforce laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society.[79] (italics and
underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct.[80] Since speech is not involved here, the
Court cannot heed the call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of
the therein subject penal statute as applied to the therein petitioners inasmuch as they
were actually charged with the pertinent crimes challenged on vagueness
grounds. The Court in said cases, however, found no basis to review the assailed
penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since the therein
plaintiffs faced a credible threat of prosecution and should not be required to await
and undergo a criminal prosecution as the sole means of seeking relief.

As earlier reflected, petitioners have established neither an actual charge nor a

credible threat of prosecution under RA 9372. Even a limited vagueness analysis
of the assailed definition of terrorism is thus legally impermissible. The Court
reminds litigants that judicial power neither contemplates speculative counseling on
a statutes future effect on hypothetical scenarios nor allows the courts to be used as
an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

THE HERITAGE HOTEL G.R. No. 178296

MANILA, acting through its owner,
GRAND PLAZA HOTEL Present:
CORPORATION,
Petitioner, CARPIO, J.,
Chairperson,
- versus - NACHURA,
LEONARDO-DE CASTRO,*
NATIONAL UNION OF ABAD, and
WORKERS IN THE HOTEL, MENDOZA, JJ.
RESTAURANT AND ALLIED
INDUSTRIES-HERITAGE HOTEL
MANILA SUPERVISORS Promulgated:
CHAPTER (NUWHRAIN-HHMSC),
Respondent. January 12, 2011
x----------------------------------------------------------------------------------x

DECISION

NACHURA, J.:
Before the Court is a petition for review on certiorari of the Decision[1] of the Court
of Appeals (CA) dated May 30, 2005 and Resolution dated June 4, 2007. The
assailed Decision affirmed the dismissal of a petition for cancellation of union
registration filed by petitioner, Grand Plaza Hotel Corporation, owner of Heritage
Hotel Manila, against respondent, National Union of Workers in the Hotel,
Restaurant and Allied Industries-Heritage Hotel Manila Supervisors
Chapter (NUWHRAIN-HHMSC), a labor organization of the supervisory
employees of Heritage Hotel Manila.
The case stemmed from the following antecedents:

On October 11, 1995, respondent filed with the Department of Labor and
Employment-National Capital Region (DOLE-NCR) a petition for certification
election.[2] The Med-Arbiter granted the petition on February 14, 1996 and ordered
the holding of a certification election.[3] On appeal, the DOLE Secretary, in a
Resolution dated August 15, 1996, affirmed the Med-Arbiters order and remanded
the case to the Med-Arbiter for the holding of a preelection conference on February
26, 1997. Petitioner filed a motion for reconsideration, but it was denied on
September 23, 1996.

The preelection conference was not held as initially scheduled; it was held a year
later, or on February 20, 1998. Petitioner moved to archive or to dismiss the petition
due to alleged repeated non-appearance of respondent. The latter agreed to suspend
proceedings until further notice. The preelection conference resumed on January 29,
2000.

Subsequently, petitioner discovered that respondent had failed to submit to the

Bureau of Labor Relations (BLR) its annual financial report for several years and
the list of its members since it filed its registration papers in 1995. Consequently, on
May 19, 2000, petitioner filed a Petition for Cancellation of Registration of
respondent, on the ground of the non-submission of the said documents. Petitioner
prayed that respondents Certificate of Creation of Local/Chapter be cancelled and
its name be deleted from the list of legitimate labor organizations. It further
requested the suspension of the certification election proceedings.[4]
On June 1, 2000, petitioner reiterated its request by filing a Motion to Dismiss or
Suspend the [Certification Election] Proceedings,[5] arguing that the dismissal or
suspension of the proceedings is warranted, considering that the legitimacy of
respondent is seriously being challenged in the petition for cancellation of
registration. Petitioner maintained that the resolution of the issue of whether
respondent is a legitimate labor organization is crucial to the issue of whether it may
exercise rights of a legitimate labor organization, which include the right to be
certified as the bargaining agent of the covered employees.

Nevertheless, the certification election pushed through on June 23, 2000.

Respondent emerged as the winner.[6]

On June 28, 2000, petitioner filed a Protest with Motion to Defer Certification
of Election Results and Winner,[7] stating that the certification election held on June
23, 2000 was an exercise in futility because, once respondents registration is
cancelled, it would no longer be entitled to be certified as the exclusive bargaining
agent of the supervisory employees. Petitioner also claimed that some of respondents
members were not qualified to join the union because they were either confidential
employees or managerial employees. It then prayed that the certification of the
election results and winner be deferred until the petition for cancellation shall have
been resolved, and that respondents members who held confidential or managerial
positions be excluded from the supervisors bargaining unit.
Meanwhile, respondent filed its Answer[8] to the petition for the cancellation of its
registration. It averred that the petition was filed primarily to delay the conduct of
the certification election, the respondents certification as the exclusive bargaining
representative of the supervisory employees, and the commencement of bargaining
negotiations. Respondent prayed for the dismissal of the petition for the following
reasons: (a) petitioner is estopped from questioning respondents status as a
legitimate labor organization as it had already recognized respondent as such during
the preelection conferences; (b) petitioner is not the party-in-interest, as the union
members are the ones who would be disadvantaged by the non-submission of
financial reports; (c) it has already complied with the reportorial requirements,
having submitted its financial statements for 1996, 1997, 1998, and 1999, its updated
list of officers, and its list of members for the years 1995, 1996, 1997, 1998, and
1999; (d) the petition is already moot and academic, considering that the certification
election had already been held, and the members had manifested their will to be
represented by respondent.

Citing National Union of Bank Employees v. Minister of Labor, et al.[9] and Samahan
ng Manggagawa sa Pacific Plastic v. Hon. Laguesma,[10] the Med-Arbiter held that
the pendency of a petition for cancellation of registration is not a bar to the holding
of a certification election. Thus, in an Order[11] dated January 26, 2001, the Med-
Arbiter dismissed petitioners protest, and certified respondent as the sole and
exclusive bargaining agent of all supervisory employees.

Petitioner subsequently appealed the said Order to the DOLE Secretary.[12] The
appeal was later dismissed by DOLE Secretary Patricia A. Sto. Tomas (DOLE
Secretary Sto. Tomas) in the Resolution of August 21, 2002.[13] Petitioner moved for
reconsideration, but the motion was also denied.[14]

In the meantime, Regional Director Alex E. Maraan (Regional Director Maraan) of

DOLE-NCR finally resolved the petition for cancellation of registration. While
finding that respondent had indeed failed to file financial reports and the list of its
members for several years, he, nonetheless, denied the petition, ratiocinating that
freedom of association and the employees right to self-organization are more
substantive considerations. He took into account the fact that respondent won the
certification election and that it had already been certified as the exclusive
bargaining agent of the supervisory employees. In view of the foregoing, Regional
Director Maraanwhile emphasizing that the non-compliance with the law is not
viewed with favorconsidered the belated submission of the annual financial reports
and the list of members as sufficient compliance thereof and considered them as
having been submitted on time. The dispositive portion of the decision [15] dated
December 29, 2001 reads:

WHEREFORE, premises considered, the instant petition to delist

the National Union of Workers in the Hotel, Restaurant and Allied
Industries-Heritage Hotel Manila Supervisors Chapter from the roll of
legitimate labor organizations is hereby DENIED.

SO ORDERED.[16]

Aggrieved, petitioner appealed the decision to the BLR.[17] BLR Director Hans Leo
Cacdac inhibited himself from the case because he had been a former counsel of
respondent.

In view of Director Cacdacs inhibition, DOLE Secretary Sto. Tomas took

cognizance of the appeal. In a resolution[18] dated February 21, 2003, she dismissed
the appeal, holding that the constitutionally guaranteed freedom of association and
right of workers to self-organization outweighed respondents noncompliance with
the statutory requirements to maintain its status as a legitimate labor organization.
Petitioner filed a motion for reconsideration,[19] but the motion was likewise
denied in a resolution[20] dated May 30, 2003. DOLE Secretary Sto. Tomas admitted
that it was the BLR which had jurisdiction over the appeal, but she pointed out that
the BLR Director had voluntarily inhibited himself from the case because he used to
appear as counsel for respondent. In order to maintain the integrity of the decision
and of the BLR, she therefore accepted the motion to inhibit and took cognizance of
the appeal.

Petitioner filed a petition for certiorari with the CA, raising the issue of whether the
DOLE Secretary acted with grave abuse of discretion in taking cognizance of the
appeal and affirming the dismissal of its petition for cancellation of respondents
registration.

In a Decision dated May 30, 2005, the CA denied the petition. The CA opined that
the DOLE Secretary may legally assume jurisdiction over an appeal from the
decision of the Regional Director in the event that the Director of the BLR inhibits
himself from the case. According to the CA, in the absence of the BLR Director,
there is no person more competent to resolve the appeal than the DOLE Secretary.
The CA brushed aside the allegation of bias and partiality on the part of the DOLE
Secretary, considering that such allegation was not supported by any evidence.
The CA also found that the DOLE Secretary did not commit grave abuse of
discretion when she affirmed the dismissal of the petition for cancellation of
respondents registration as a labor organization. Echoing the DOLE Secretary, the
CA held that the requirements of registration of labor organizations are an exercise
of the overriding police power of the State, designed for the protection of workers
against potential abuse by the union that recruits them. These requirements, the CA
opined, should not be exploited to work against the workers constitutionally
protected right to self-organization.
Petitioner filed a motion for reconsideration, invoking this Courts ruling in Abbott
Labs. Phils., Inc. v. Abbott Labs. Employees Union,[21] which categorically declared
that the DOLE Secretary has no authority to review the decision of the Regional
Director in a petition for cancellation of union registration, and Section 4,[22] Rule
VIII, Book V of the Omnibus Rules Implementing the Labor Code.
In its Resolution[23] dated June 4, 2007, the CA denied petitioners motion, stating
that the BLR Directors inhibition from the case was a peculiarity not present in
the Abbottcase, and that such inhibition justified the assumption of jurisdiction by
the DOLE Secretary.
In this petition, petitioner argues that:

I.

The Court of Appeals seriously erred in ruling that the Labor Secretary
properly assumed jurisdiction over Petitioners appeal of the Regional
Directors Decision in the Cancellation Petition x x x.

A. Jurisdiction is conferred only by law. The Labor Secretary had

no jurisdiction to review the decision of the Regional Director
in a petition for cancellation. Such jurisdiction is conferred by
law to the BLR.

B. The unilateral inhibition by the BLR Director cannot justify the

Labor Secretarys exercise of jurisdiction over the Appeal.

C. The Labor Secretarys assumption of jurisdiction over the

Appeal without notice violated Petitioners right to due process.

II.

The Court of Appeals gravely erred in affirming the dismissal of the

Cancellation Petition despite the mandatory and unequivocal provisions
of the Labor Code and its Implementing Rules.[24]

The petition has no merit.

Jurisdiction to review the decision of the Regional Director lies with the BLR. This
is clearly provided in the Implementing Rules of the Labor Code and enunciated by
the Court in Abbott. But as pointed out by the CA, the present case involves a
peculiar circumstance that was not present or covered by the ruling in Abbott. In this
case, the BLR Director inhibited himself from the case because he was a former
counsel of respondent. Who, then, shall resolve the case in his place?
 In Abbott, the appeal from the Regional Directors decision was directly filed
with the Office of the DOLE Secretary, and we ruled that the latter has no appellate
jurisdiction. In the instant case, the appeal was filed by petitioner with the BLR,
which, undisputedly, acquired jurisdiction over the case. Once jurisdiction is
acquired by the court, it remains with it until the full termination of the case.[25]

Thus, jurisdiction remained with the BLR despite the BLR Directors
inhibition. When the DOLE Secretary resolved the appeal, she merely stepped into
the shoes of the BLR Director and performed a function that the latter could not
himself perform. She did so pursuant to her power of supervision and control over
the BLR.[26]

Expounding on the extent of the power of control, the Court, in Araneta, et al. v.
Hon. M. Gatmaitan, et al.,[27] pronounced that, if a certain power or authority is
vested by law upon the Department Secretary, then such power or authority may be
exercised directly by the President, who exercises supervision and control over the
departments. This principle was incorporated in the Administrative Code of 1987,
which defines supervision and control as including the authority to act directly
whenever a specific function is entrusted by law or regulation to a
subordinate.[28] Applying the foregoing to the present case, it is clear that the DOLE
Secretary, as the person exercising the power of supervision and control over the
BLR, has the authority to directly exercise the quasi-judicial function entrusted by
law to the BLR Director.
It is true that the power of control and supervision does not give the Department
Secretary unbridled authority to take over the functions of his or her
subordinate. Such authority is subject to certain guidelines which are stated in Book
IV, Chapter 8, Section 39(1)(a) of the Administrative Code of 1987.[29] However, in
the present case, the DOLE Secretarys act of taking over the function of the BLR
Director was warranted and necessitated by the latters inhibition from the case and
the objective to maintain the integrity of the decision, as well as the Bureau itself.[30]
Petitioner insists that the BLR Directors subordinates should have resolved the
appeal, citing the provision under the Administrative Code of 1987 which states, in
case of the absence or disability of the head of a bureau or office, his duties shall be
performed by the assistant head.[31] The provision clearly does not apply considering
that the BLR Director was neither absent nor suffering from any disability; he
remained as head of the BLR. Thus, to dispel any suspicion of bias, the DOLE
Secretary opted to resolve the appeal herself.

Petitioner was not denied the right to due process when it was not notified in advance
of the BLR Directors inhibition and the DOLE Secretarys assumption of the case.
Well-settled is the rule that the essence of due process is simply an opportunity to
be heard, or, as applied to administrative proceedings, an opportunity to explain ones
side or an opportunity to seek a reconsideration of the action or ruling complained
of.[32] Petitioner had the opportunity to question the BLR Directors inhibition and
the DOLE Secretarys taking cognizance of the case when it filed a motion for
reconsideration of the latters decision. It would be well to state that a critical
component of due process is a hearing before an impartial and disinterested tribunal,
for all the elements of due process, like notice and hearing, would be meaningless if
the ultimate decision would come from a partial and biased judge.[33] It was precisely
to ensure a fair trial that moved the BLR Director to inhibit himself from the case
and the DOLE Secretary to take over his function.
Petitioner also insists that respondents registration as a legitimate labor union should
be cancelled. Petitioner posits that once it is determined that a ground enumerated in
Article 239 of the Labor Code is present, cancellation of registration should follow;
it becomes the ministerial duty of the Regional Director to cancel the registration of
the labor organization, hence, the use of the word shall. Petitioner points out that the
Regional Director has admitted in its decision that respondent failed to submit the
required documents for a number of years; therefore, cancellation of its registration
should have followed as a matter of course.

We are not persuaded.

Articles 238 and 239 of the Labor Code read:

ART. 238. CANCELLATION OF REGISTRATION; APPEAL
The certificate of registration of any legitimate labor organization,
whether national or local, shall be canceled by the Bureau if it has reason
to believe, after due hearing, that the said labor organization no longer
meets one or more of the requirements herein prescribed.[34]

ART. 239. GROUNDS FOR CANCELLATION OF UNION

REGISTRATION.
 The following shall constitute grounds for cancellation of union
registration:

xxxx
(d) Failure to submit the annual financial report to the Bureau within thirty
(30) days after the closing of every fiscal year and misrepresentation, false
entries or fraud in the preparation of the financial report itself;

xxxx
(i) Failure to submit list of individual members to the Bureau once a year
or whenever required by the Bureau.[35]

These provisions give the Regional Director ample discretion in dealing with a
petition for cancellation of a unions registration, particularly, determining whether
the union still meets the requirements prescribed by law. It is sufficient to give the
Regional Director license to treat the late filing of required documents as sufficient
compliance with the requirements of the law. After all, the law requires the labor
organization to submit the annual financial report and list of members in order to
verify if it is still viable and financially sustainable as an organization so as to protect
the employer and employees from fraudulent or fly-by-night unions. With the
submission of the required documents by respondent, the purpose of the law has
been achieved, though belatedly.

We cannot ascribe abuse of discretion to the Regional Director and the DOLE
Secretary in denying the petition for cancellation of respondents registration. The
union members and, in fact, all the employees belonging to the appropriate
bargaining unit should not be deprived of a bargaining agent, merely because of the
negligence of the union officers who were responsible for the submission of the
documents to the BLR.

Labor authorities should, indeed, act with circumspection in treating petitions for
cancellation of union registration, lest they be accused of interfering with union
activities. In resolving the petition, consideration must be taken of the fundamental
rights guaranteed by Article XIII, Section 3 of the Constitution, i.e., the rights of all
workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities. Labor authorities should bear in mind that registration confers
upon a union the status of legitimacy and the concomitant right and privileges
granted by law to a legitimate labor organization, particularly the right to participate
in or ask for certification election in a bargaining unit.[36] Thus, the cancellation of a
certificate of registration is the equivalent of snuffing out the life of a labor
organization. For without such registration, it loses - as a rule - its rights under the
Labor Code.[37]

It is worth mentioning that the Labor Codes provisions on cancellation of union

registration and on reportorial requirements have been recently amended by
Republic Act (R.A.) No. 9481, An Act Strengthening the Workers Constitutional
Right to Self-Organization, Amending for the Purpose Presidential Decree No. 442,
As Amended, Otherwise Known as the Labor Code of the Philippines, which lapsed
into law on May 25, 2007 and became effective on June 14, 2007. The amendment
sought to strengthen the workers right to self-organization and enhance
the Philippines compliance with its international obligations as embodied in the
International Labour Organization (ILO) Convention No. 87,[38]pertaining to the
non-dissolution of workers organizations by administrative authority.[39] Thus, R.A.
No. 9481 amended Article 239 to read:
ART. 239. Grounds for Cancellation of Union Registration.The following
may constitute grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws or amendments
thereto, the minutes of ratification, and the list of members who took part
in the ratification;

(b) Misrepresentation, false statements or fraud in connection with the

election of officers, minutes of the election of officers, and the list of
voters;

(c) Voluntary dissolution by the members.

R.A. No. 9481 also inserted in the Labor Code Article 242-A, which provides:

ART. 242-A. Reportorial Requirements.The following are documents

required to be submitted to the Bureau by the legitimate labor organization
concerned:

(a) Its constitution and by-laws, or amendments thereto, the minutes of

ratification, and the list of members who took part in the ratification of the
 constitution and by-laws within thirty (30) days from adoption or
ratification of the constitution and by-laws or amendments thereto;

(b) Its list of officers, minutes of the election of officers, and list of voters
within thirty (30) days from election;

(c) Its annual financial report within thirty (30) days after the close
of every fiscal year; and

(d) Its list of members at least once a year or whenever required by the
Bureau.

Failure to comply with the above requirements shall not be a ground

for cancellation of union registration but shall subject the erring
officers or members to suspension, expulsion from membership, or
any appropriate penalty.

ILO Convention No. 87, which we have ratified in 1953, provides that workers and
employers organizations shall not be liable to be dissolved or suspended by
administrative authority. The ILO has expressed the opinion that the cancellation of
union registration by the registrar of labor unions, which in our case is the BLR, is
tantamount to dissolution of the organization by administrative authority when such
measure would give rise to the loss of legal personality of the union or loss of
advantages necessary for it to carry out its activities, which is true in our jurisdiction.
Although the ILO has allowed such measure to be taken, provided that judicial
safeguards are in place, i.e., the right to appeal to a judicial body, it has nonetheless
reminded its members that dissolution of a union, and cancellation of registration for
that matter, involve serious consequences for occupational representation. It has,
therefore, deemed it preferable if such actions were to be taken only as a last resort
and after exhausting other possibilities with less serious effects on the
organization.[40]
The aforesaid amendments and the ILOs opinion on this matter serve to fortify our
ruling in this case. We therefore quote with approval the DOLE Secretarys rationale
for denying the petition, thus:

It is undisputed that appellee failed to submit its annual financial

reports and list of individual members in accordance with Article 239 of
the Labor Code. However, the existence of this ground should not
necessarily lead to the cancellation of union registration. Article 239
recognizes the regulatory authority of the State to exact compliance with
reporting requirements. Yet there is more at stake in this case than merely
monitoring union activities and requiring periodic documentation thereof.

The more substantive considerations involve the constitutionally

guaranteed freedom of association and right of workers to self-
organization. Also involved is the public policy to promote free trade
unionism and collective bargaining as instruments of industrial peace and
democracy. An overly stringent interpretation of the statute governing
cancellation of union registration without regard to surrounding
circumstances cannot be allowed. Otherwise, it would lead to an
unconstitutional application of the statute and emasculation of public
policy objectives. Worse, it can render nugatory the protection to labor
and social justice clauses that pervades the Constitution and the Labor
Code.

Moreover, submission of the required documents is the duty of the officers

of the union. It would be unreasonable for this Office to order the
cancellation of the union and penalize the entire union membership on the
basis of the negligence of its officers. In National Union of Bank
Employees vs. Minister of Labor, L-53406, 14 December 1981, 110
SCRA 296, the Supreme Court ruled:
As aptly ruled by respondent Bureau of Labor Relations
Director Noriel: The rights of workers to self-organization
finds general and specific constitutional guarantees. x x x
Such constitutional guarantees should not be lightly taken
much less nullified. A healthy respect for the freedom of
association demands that acts imputable to officers or
members be not easily visited with capital punishments
against the association itself.
At any rate, we note that on 19 May 2000, appellee had submitted its
financial statement for the years 1996-1999. With this submission,
appellee has substantially complied with its duty to submit its financial
report for the said period. To rule differently would be to preclude the
union, after having failed to meet its periodic obligations promptly, from
taking appropriate measures to correct its omissions. For the record, we
do not view with favor appellees late submission. Punctuality on the part
of the union and its officers could have prevented this petition.[41]
WHEREFORE, premises considered, the Court of Appeals Decision dated May 30,
2005 and Resolution dated June 4, 2007 are AFFIRMED.

SO ORDERED.

G.R. No. 122846 January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.

DECISION

Tinga, J.:

With another city ordinance of Manila also principally involving the tourist district as subject, the
Court is confronted anew with the incessant clash between government power and individual liberty
in tandem with the archetypal tension between law and morality.

In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the
operation of motels and inns, among other establishments, within the Ermita-Malate area. The
petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments
from offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated
stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty,
due process and equal protection of law. The same parameters apply to the present petition.

This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of
the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila
City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time
Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension
Houses, and Similar Establishments in the City of Manila" (the Ordinance).

I.

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.4 The
Ordinance is reproduced in full, hereunder:

SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect
the best interest, health and welfare, and the morality of its constituents in general and the youth in
particular.

SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in
hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other
similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension
houses and similar establishments in the City of Manila.

SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room
rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a
day or any other term that may be concocted by owners or managers of said establishments but
would mean the same or would bear the same meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance
shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or
imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the
discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or
the persons in charge of the operation thereof shall be liable: Provided, further, That in case of
subsequent conviction for the same offense, the business license of the guilty party shall
automatically be cancelled.

SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to
this measure or any portion hereof are hereby deemed repealed.

SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.

Enacted by the city Council of Manila at its regular session today, November 10, 1992.

Approved by His Honor, the Mayor on December 3, 1992.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint
for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order
( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein
respondent City of Manila (the City) represented by Mayor Lim.6 MTDC prayed that the Ordinance,
insofar as it includes motels and inns as among its prohibited establishments, be declared invalid
and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate,
Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates for stays of only three hours.

On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and
Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit
attached complaint-in-intervention7 on the ground that the Ordinance directly affects their business
interests as operators of drive-in-hotels and motels in Manila.8 The three companies are components
of the Anito Group of Companies which owns and operates several hotels and motels in Metro
Manila.9

On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the
Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On
the same date, MTDC moved to withdraw as plaintiff.11

On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on
January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.13 The City
filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police
power.14
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from
the enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his
Comment arguing that the Ordinance is constitutional.

During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision
without trial as the case involved a purely legal question.16 On October 20, 1993, the RTC rendered
a decision declaring the Ordinance null and void. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby
declared null and void.

Accordingly, the preliminary injunction heretofor issued is hereby made permanent.

SO ORDERED.17

The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and
jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution
encouraging private enterprises and the incentive to needed investment, as well as the right to
operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance
sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the
RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where the
legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be effected
through an inter-province ban on the transport of carabaos and carabeef.

The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was
docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated
the petition as a petition for certiorari and referred the petition to the Court of Appeals.21

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power
pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other
local government units, the power:

[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses and other similar establishments, including
tourist guides and transports.22

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section
18(kk) of the Revised Manila Charter, thus:

"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity and the promotion of the morality, peace, good order, comfort,
convenience and general welfare of the city and its inhabitants, and such others as be necessary to
carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties
for the violation of ordinances which shall not exceed two hundred pesos fine or six months
imprisonment, or both such fine and imprisonment for a single offense.23

Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy
and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable
and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.24First, it held that the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of establishments that admit individuals for
short time stays. Second, the virtually limitless reach of police power is only constrained by having a
lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied
since it aims to curb immoral activities. There is a lawful method since the establishments are still
allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor
of Manila, liberty is regulated by law.

TC, WLC and STDC come to this Court via petition for review on certiorari.25 In their petition and
Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an invalid exercise of police power.

II.

We must address the threshold issue of petitioners standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal protection rights of their clients are also
being interfered with. Thus, the crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights.

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to
and harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers,26 sparing as it
does unnecessary interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the
Constitution.27The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition.28 In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing.29 In a similar vein, the United States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing requirements of injury, causation, and redressability
in Allen v. Wright.30

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.31

For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote
that: "We have recognized the right of litigants to bring actions on behalf of third parties, provided
three important criteria are satisfied: the litigant must have suffered an injury-in-fact, thus giving him
or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a
close relation to the third party; and there must exist some hindrance to the third party's ability to
protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are
likewise injured by the Ordinance. They rely on the patronage of their customers for their continued
viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in
constitutional litigation of such special interest groups in our nation such as the American Civil
Liberties Union in the United States may also be construed as a hindrance for customers to bring
suit.34
American jurisprudence is replete with examples where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme
Court held that physicians had standing to challenge a reproductive health statute that would
penalize them as accessories as well as to plead the constitutional protections available to their
patients. The Court held that:

"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless
those rights are considered in a suit involving those who have this kind of confidential relation to
them."36

An even more analogous example may be found in Craig v. Boren,37 wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal protection
claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under
the age of 21 and to females under the age of 18. The United States High Court explained that the
vendors had standing "by acting as advocates of the rights of third parties who seek access to their
market or function."38

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights.39 In this case, the petitioners
claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can
see that based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.

III.

To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc.,
v. Hon. City Mayor of Manila.40Ermita-Malate concerned the City ordinance requiring patrons to fill up
a prescribed form stating personal information such as name, gender, nationality, age, address and
occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance
was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose
similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and
similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance
in Ermita-Malate was sustained by the Court.

The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular illicit activity in transient lodging
establishments. This could be described as the middle case, wherein there is no wholesale ban on
motels and hotels but the services offered by these establishments have been severely restricted. At
its core, this is another case about the extent to which the State can intrude into and regulate the
lives of its citizens.

The test of a valid ordinance is well established. A long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.41

The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions
and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police
power as conferred on local government units by the Local Government Code through such
implements as the general welfare clause.

A.

Police power, while incapable of an exact definition, has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient
and flexible response as the conditions warrant.42 Police power is based upon the concept of
necessity of the State and its corresponding right to protect itself and its people.43 Police power has
been used as justification for numerous and varied actions by the State. These range from the
regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of
police power is best demonstrated by the fact that in its hundred or so years of presence in our
nations legal system, its use has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability
of these ends do not sanctify any and all means for their achievement. Those means must align with
the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of
Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political
majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or equal
protection questions, the courts are naturally inhibited by a due deference to the co-equal branches
of government as they exercise their political functions. But when we are compelled to nullify
executive or legislative actions, yet another form of caution emerges. If the Court were animated by
the same passing fancies or turbulent emotions that motivate many political decisions, judicial
integrity is compromised by any perception that the judiciary is merely the third political branch of
government. We derive our respect and good standing in the annals of history by acting as judicious
and neutral arbiters of the rule of law, and there is no surer way to that end than through the
development of rigorous and sophisticated legal standards through which the courts analyze the
most fundamental and far-reaching constitutional questions of the day.

B.

The primary constitutional question that confronts us is one of due process, as guaranteed under
Section 1, Article III of the Constitution. Due process evades a precise definition.48 The purpose of
the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property
of individuals. The due process guaranty serves as a protection against arbitrary regulation or
seizure. Even corporations and partnerships are protected by the guaranty insofar as their property
is concerned.

The due process guaranty has traditionally been interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and "substantive due process." Procedural due
process refers to the procedures that the government must follow before it deprives a person of life,
liberty, or property.49 Procedural due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private sphere. Examples range from the
form of notice given to the level of formality of a hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation of
arbitrary government action, provided the proper formalities are followed. Substantive due process
completes the protection envisioned by the due process clause. It inquires whether the government
has sufficient justification for depriving a person of life, liberty, or property.50

The question of substantive due process, moreso than most other fields of law, has reflected
dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms.
Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of
analysis before it can be upheld. The vitality though of constitutional due process has not been
predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process
clause has acquired potency because of the sophisticated methodology that has emerged to
determine the proper metes and bounds for its application.

C.

The general test of the validity of an ordinance on substantive due process grounds is best tested
when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary
would defer to the legislature unless there is a discrimination against a "discrete and insular" minority
or infringement of a "fundamental right."52 Consequently, two standards of judicial review were
established: strict scrutiny for laws dealing with freedom of the mind or restricting the political
process, and the rational basis standard of review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny
was adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v.
Reed.56 While the test may have first been articulated in equal protection analysis, it has in the
United States since been applied in all substantive due process cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest.58 Under intermediate review, governmental interest is
extensively examined and the availability of less restrictive measures is considered.59 Applying strict
scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest
and on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation of
fundamental freedoms.60 Strict scrutiny is used today to test the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights as expansion from its
earlier applications to equal protection.61 The United States Supreme Court has expanded the scope
of strict scrutiny to protect fundamental rights such as suffrage,62 judicial access63 and interstate
travel.64

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only
on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the petitioners, an injury that would
warrant the application of the most deferential standard the rational basis test. Yet as earlier
stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their
patrons those persons who would be deprived of availing short time access or wash-up rates to
the lodging establishments in question.

Viewed cynically, one might say that the infringed rights of these customers were are trivial since
they seem shorn of political consequence. Concededly, these are not the sort of cherished rights
that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does
not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which the people
reflexively exercise any day without the impairing awareness of their constitutional consequence
that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated
as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what
may or what may not be done; but rather an atmosphere of freedom where the people do not feel
labored under a Big Brother presence as they interact with each other, their society and nature, in a
manner innately understood by them as inherent, without doing harm or injury to others.

D.

The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of
Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to
exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right
of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare."[65] In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the
concept of liberty.[66]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of
"liberty." It said:

While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth
and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as
essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there
can be no doubt that the meaning of "liberty" must be broad indeed.67 [Citations omitted]

It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual
behavior. The City asserts before this Court that the subject establishments "have gained notoriety
as venue of prostitution, adultery and fornications in Manila since they provide the necessary
atmosphere for clandestine entry, presence and exit and thus became the ideal haven for
prostitutes and thrill-seekers."68 Whether or not this depiction of a mise-en-scene of vice is accurate,
it cannot be denied that legitimate sexual behavior among willing married or consenting single adults
which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our
holding therein retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations
are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that
his experience is private, and the will built out of that experience personal to himself. If he surrenders
his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of himself is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen.70

We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There
are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire
families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in
their homes. In transit passengers who wish to wash up and rest between trips have a legitimate
purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of
comfortable private spaces for a span of a few hours with purposes other than having sex or using
illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights and the
means must be reasonably necessary for the accomplishment of the purpose and not unduly
oppressive of private rights.71 It must also be evident that no other alternative for the accomplishment
of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must
exist between the purposes of the measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.72

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to
judicial review when life, liberty or property is affected.73 However, this is not in any way meant to
take it away from the vastness of State police power whose exercise enjoys the presumption of
validity.74

Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates,
this Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between
places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions.
Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain
reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus
deems them all susceptible to illicit patronage and subject them without exception to the unjustified
prohibition.

The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime
home,76 and it is skeptical of those who wish to depict our capital city the Pearl of the Orient as a
modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams
of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its
problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem
confronted by the modern metropolis wherever in the world. The solution to such perceived decay is
not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive
themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of
individuals that would bring a new grandeur to Manila.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police work would be more effective in
easing the situation. So would the strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal intrusion on the businesses of the
petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit
activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele
by charging their customers a portion of the rent for motel rooms and even apartments.

IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly be
required by the legitimate demands of public interest or public welfare. The State is a leviathan that
must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned
the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day
with immorality without accommodating innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court is sworn
to protect.77 The notion that the promotion of public morality is a function of the State is as old as
Aristotle.78 The advancement of moral relativism as a school of philosophy does not de-legitimize the
role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It
is conceivable that a society with relatively little shared morality among its citizens could be
functional so long as the pursuit of sharply variant moral perspectives yields an adequate
accommodation of different interests.79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong.80 Our penal laws, for one, are founded on age-
old moral traditions, and as long as there are widely accepted distinctions between right and wrong,
they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the right-
wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to
the fullest. Our democracy is distinguished from non-free societies not with any more extensive
elaboration on our part of what is moral and immoral, but from our recognition that the individual
liberty to make the choices in our lives is innate, and protected by the State. Independent and fair-
minded judges themselves are under a moral duty to uphold the Constitution as the embodiment of
the rule of law, by reason of their expression of consent to do so when they take the oath of office,
and because they are entrusted by the people to uphold the law.81
Even as the implementation of moral norms remains an indispensable complement to governance,
that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And
while the tension may often be left to the courts to relieve, it is possible for the government to avoid
the constitutional conflict by employing more judicious, less drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and
the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774
is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs.

SO ORDERED.