G.R. No.

208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ

REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET
AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON
SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as
SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S.
BELMONTE, JR. in his capacity as SPEAKER OF THE HOUSE, Respondents.

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

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and
HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE
OF REPRESENTATIVES, Respondents.

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

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board

Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which
assail the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the
Court shall heretofore discuss the systems conceptual underpinnings before detailing the particulars
of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger
 with morsels coming from the generosity of their well-fed master.4 This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor of
their districts.5 While the advent of refrigeration has made the actual pork barrel obsolete, it
persists in reference to political bills that "bring home the bacon" to a legislators district and
constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring
money to a representative's district.7Some scholars on the subject further use it to refer to
legislative control of local appropriations.8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary
funds of Members of the Legislature,9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds
appropriated therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 312 provides that the sums
appropriated for certain public works projects13 "shall be distributed x x x subject to
the approval of a joint committee elected by the Senate and the House of
Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and
Communications."14 Also, in the area of fund realignment, the same section provides
that the said secretary, "with the approval of said joint committee, or of the authorized
members thereof, may, for the purposes of said distribution, transfer unexpended
portions of any item of appropriation under this Act to any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation

broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary
of Commerce and Communications to legislators. "For the first time, the law carried a
list of projects selected by Members of Congress, they being the representatives of
the people, either on their own account or by consultation with local officials or civil
leaders."16 During this period, the pork barrel process commenced with local
government councils, civil groups, and individuals appealing to Congressmen or
Senators for projects. Petitions that were accommodated formed part of a legislators
allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions
to the bill until it was signed into law by the President the Public Works Act.17 In the
1960s, however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972
after Martial Law was declared, an era when "one man controlled the
 legislature,"19 the reprieve was only temporary. By 1982, the Batasang Pambansa
had already introduced a new item in the General Appropriations Act (GAA) called
the" Support for Local Development Projects" (SLDP) under the article on "National
Aid to Local Government Units". Based on reports,20 it was under the SLDP that the
practice of giving lump-sum allocations to individual legislators began, with each
assemblyman receiving 500,000.00. Thereafter, assemblymen would communicate
their project preferences to the Ministry of Budget and Management for approval.
Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal
treasurers in the assemblymans locality. It has been further reported that
"Congressional Pork Barrel" projects under the SLDP also began to cover not only
public works projects, or so- called "hard projects", but also "soft projects",21 or non-
public works projects such as those which would fall under the categories of, among
others, education, health and livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with
lump-sum appropriations of 480 Million and 240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has
been documented23 that the clamor raised by the Senators and the Luzon legislators
for a similar funding, prompted the creation of the "Countrywide Development Fund"
(CDF) which was integrated into the 1990 GAA24 with an initial funding of 2.3 Billion
to cover "small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of
the President, to be released directly to the implementing agencies but "subject to
the submission of the required list of projects and activities."Although the GAAs from
1990 to 1992 were silent as to the amounts of allocations of the individual legislators,
as well as their participation in the identification of projects, it has been reported26 that
by 1992, Representatives were receiving 12.5 Million each in CDF funds, while
Senators were receiving 18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or infrastructure projects such
as roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF
funds was to be made upon the submission of the list of projects and activities
identified by, among others, individual legislators. For the first time, the 1993 CDF
Article included an allocation for the Vice-President.29 As such, Representatives were
allocated 12.5 Million each in CDF funds, Senators, 18 Million each, and the Vice-
President, 20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition,
however, the Department of Budget and Management (DBM) was directed to submit
 reports to the Senate Committee on Finance and the House Committee on
Appropriations on the releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in
consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker of the House
of Representatives and the Chairman of the Committee on Appropriations, in the
case of the House of Representatives; while the list for the remaining 50% was to be
submitted within six (6) months thereafter. The same article also stated that the
project list, which would be published by the DBM,35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."

The following year, or in 1998,36 the foregoing provisions regarding the required lists
and endorsements were reproduced, except that the publication of the project list
was no longer required as the list itself sufficed for the release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that
time. Other forms of "Congressional Pork Barrel" were reportedly fashioned and
inserted into the GAA (called "Congressional Insertions" or "CIs") in order to
perpetuate the ad ministrations political agenda.37 It has been articulated that since
CIs "formed part and parcel of the budgets of executive departments, they were not
easily identifiable and were thus harder to monitor." Nonetheless, the lawmakers
themselves as well as the finance and budget officials of the implementing agencies,
as well as the DBM, purportedly knew about the insertions.38 Examples of these CIs
are the Department of Education (DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the El Nio Fund, and the Poverty
Alleviation Fund.39 The allocations for the School Building Fund, particularly, shall
be made upon prior consult ation with the representative of the legislative district
concerned.40 Similarly, the legislators had the power to direct how, where and when
these appropriations were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate
forms of CIs, namely, the "Food Security Program Fund,"43 the "Lingap Para Sa
Mahihirap Program Fund,"44and the "Rural/Urban Development Infrastructure
Program Fund,"45 all of which contained a special provision requiring "prior
consultation" with the Member s of Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with
the sole condition that no amount shall be used to fund personal services and other
personnel benefits.47 The succeeding PDAF provisions remained the same in view of
the re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

 The 200249 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing
agency or local government unit concerned, without further qualifications. The
following year, 2003,50 the same single provision was present, with simply an
expansion of purpose and express authority to realign. Nevertheless, the provisions
in the 2003 budgets of the Department of Public Works and Highways51 (DPWH) and
the DepEd52 required prior consultation with Members of Congress on the aspects of
implementation delegation and project list submission, respectively. In 2004, the
2003 GAA was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority
programs and projects under the ten point agenda of the national government and
shall be released directly to the implementing agencies." It also introduced the
program menu concept,55 which is essentially a list of general programs and
implementing agencies from which a particular PDAF project may be subsequently
chosen by the identifying authority. The 2005 GAA was re-enacted56 in 2006 and
hence, operated on the same bases. In similar regard, the program menu concept
was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the
specific amounts allocated for the individual legislators, as well as their participation
in the proposal and identification of PDAF projects to be funded. In contrast to the
PDAF Articles, however, the provisions under the DepEd School Building Program
and the DPWH budget, similar to its predecessors, explicitly required prior
consultation with the concerned Member of Congress61anent certain aspects of
project implementation.

Significantly, it was during this era that provisions which allowed formal participation
of non-governmental organizations (NGO) in the implementation of government
projects were introduced. In the Supplemental Budget for 2006, with respect to the
appropriation for school buildings, NGOs were, by law, encouraged to participate.
For such purpose, the law stated that "the amount of at least 250 Million of the
500 Million allotted for the construction and completion of school buildings shall be
made available to NGOs including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School" program, with
capability and proven track records in the construction of public school buildings x x
x."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs
under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity68(the implementing
agency) may enter into a memorandum of agreement with an NGO, provided that "an
appropriation law or ordinance earmarks an amount to be specifically contracted out
to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the
201170 PDAF Article included an express statement on lump-sum amounts allocated
for individual legislators and the Vice-President: Representatives were given 70
Million each, broken down into 40 Million for "hard projects" and 30 Million for "soft
 projects"; while 200 Million was given to each Senator as well as the Vice-
President, with a 100 Million allocation each for "hard" and "soft projects." Likewise,
a provision on realignment of funds was included, but with the qualification that it
may be allowed only once. The same provision also allowed the Secretaries of
Education, Health, Social Welfare and Development, Interior and Local Government,
Environment and Natural Resources, Energy, and Public Works and Highways to
realign PDAF Funds, with the further conditions that: (a) realignment is within the
same implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the
original scope of work, and (c) the request for realignment is with the concurrence of
the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects
and/or designation of beneficiaries shall conform to the priority list, standard or
design prepared by each implementing agency (priority list requirement) x x x."
However, as practiced, it would still be the individual legislator who would choose
and identify the project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in

the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which
was pegged at 200 Million in the 2011 GAA, had been deleted. In addition, the
2013 PDAF Article now allowed LGUs to be identified as implementing agencies if
they have the technical capability to implement the projects.77 Legislators were also
allowed to identify programs/projects, except for assistance to indigent patients and
scholarships, outside of his legislative district provided that he secures the written
concurrence of the legislator of the intended outside-district, endorsed by the
Speaker of the House.78 Finally, any realignment of PDAF funds, modification and
revision of project identification, as well as requests for release of funds, were all
required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
matter have, however, shown that the terms usage has expanded to include certain funds of
the President such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 880 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos)
on March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special
fund to help intensify, strengthen, and consolidate government efforts relating to the
exploration, exploitation, and development of indigenous energy resources vital to economic
growth.82 Due to the energy-related activities of the government in the Malampaya natural
gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power Project",83 the special
fund created under PD 910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of
PD 1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR).
PD 1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31, 1985,86 amending
Section 1287 of the former law. As it stands, the Presidential Social Fund has been described
 as a special funding facility managed and administered by the Presidential Management
Staff through which the President provides direct assistance to priority programs and projects
not funded under the regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no
small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork
Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an
anonymous source, "blew the lid on the huge sums of government money that regularly went
into the pockets of legislators in the form of kickbacks."91 He said that "the kickbacks were
SOP (standard operating procedure) among legislators and ranged from a low 19 percent to
a high 52 percent of the cost of each project, which could be anything from dredging, rip
rapping, sphalting, concreting, and construction of school buildings."92 "Other sources of
kickbacks that Candazo identified were public funds intended for medicines and textbooks. A
few days later, the tale of the money trail became the banner story of the Philippine Daily
Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted pig."93 "The
publication of the stories, including those about congressional initiative allocations of certain
lawmakers, including 3.6 Billion for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a
common exercise of unscrupulous Members of Congress," the petition was dismissed.95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some 10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."96 The investigation was spawned by
sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation "JLN"
standing for Janet Lim Napoles (Napoles) had swindled billions of pesos from the public
coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade. While
the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles private accounts.97 Thus, after its
investigation on the Napoles controversy, criminal complaints were filed before the Office of
the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation99covering the use of legislators' PDAF from 2007 to 2009, or during the
last three (3) years of the Arroyo administration. The purpose of the audit was to determine
the propriety of releases of funds under PDAF and the Various Infrastructures including
Local Projects (VILP)100 by the DBM, the application of these funds and the implementation of
projects by the appropriate implementing agencies and several government-owned-and-
controlled corporations (GOCCs).101 The total releases covered by the audit amounted to
8.374 Billion in PDAF and 32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made
 nationwide during the audit period.102 Accordingly, the Co As findings contained in its Report
No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:103

Amounts released for projects identified by a considerable number of legislators

significantly exceeded their respective allocations.

Amounts were released for projects outside of legislative districts of sponsoring

members of the Lower House.

Total VILP releases for the period exceeded the total amount appropriated under
the 2007 to 2009 GAAs.

Infrastructure projects were constructed on private lots without these having been
turned over to the government.

Significant amounts were released to implementing agencies without the latters

endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.

Implementation of most livelihood projects was not undertaken by the

implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.

The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.

Selection of the NGOs were not compliant with law and regulations.

Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy

two (772) projects amount to 6.156 Billion were either found questionable, or
submitted questionable/spurious documents, or failed to liquidate in whole or in part
their utilization of the Funds.

Procurement by the NGOs, as well as some implementing agencies, of goods and

services reportedly used in the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least 900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."104 According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds.105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the "Pork
Barrel System" be declared unconstitutional. To recount, the relevant procedural
antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice
Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara
Petition), seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition
be issued permanently restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in
their respective capacities as the incumbent Senate President and Speaker of the House of
Representatives, from further taking any steps to enact legislation appropriating funds for the "Pork
Barrel System," in whatever form and by whatever name it may be called, and from approving further
releases pursuant thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an
Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65
of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently
embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the
Executives lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential
Social Fund,107 be declared unconstitutional and null and void for being acts constituting grave abuse
of discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr.,
Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective capacities as the
incumbent Executive Secretary, Secretary of the Department of Budget and Management (DBM),
and National Treasurer, or their agents, for them to immediately cease any expenditure under the
aforesaid funds. Further, they pray that the Court order the foregoing respondents to release to the
CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF
and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the
recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the Executives
lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and
the recipient entities or individuals, and all pertinent data thereto."108 Also, they pray for the "inclusion
in budgetary deliberations with the Congress of all presently off-budget, lump-sum, discretionary
funds including, but not limited to, proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition

dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional,
and a cease and desist order be issued restraining President Benigno Simeon S. Aquino III
(President Aquino) and Secretary Abad from releasing such funds to Members of Congress and,
instead, allow their release to fund priority projects identified and approved by the Local
Development Councils in consultation with the executive departments, such as the DPWH, the
Department of Tourism, the Department of Health, the Department of Transportation, and
Communication and the National Economic Development Authority.111 The Nepomuceno Petition was
docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b)
requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or any
of the persons acting under their authority from releasing (1) the remaining PDAF allocated to
Members of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase "for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910
but not for the purpose of "financing energy resource development and exploitation programs and
projects of the government under the same provision; and (d) setting the consolidated cases for
Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting
with respect to educational and medical assistance purposes, of the Courts September 10, 2013
TRO, and that the consolidated petitions be dismissed for lack of merit.113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to
the Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b)
on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c)
on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the
issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor
General) was directed to bring with him during the Oral Arguments representative/s from the DBM
and Congress who would be able to competently and completely answer questions related to,
among others, the budgeting process and its implementation. Further, the CoA Chairperson was
appointed as amicus curiae and thereby requested to appear before the Court during the Oral
Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the
parties to submit their respective memoranda within a period of seven (7) days, or until October 17,
2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues
for the Courts resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to
judicial review; (c) petitioners have legal standing to sue; and (d) the Courts Decision dated August
19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution
Association v. Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987,
entitled "Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management"115 (LAMP)
bar the re-litigatio n of the issue of constitutionality of the "Pork Barrel System" under the principles
of res judicata and stare decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto
are unconstitutional considering that they violate the principles of/constitutional provisions on (a)
separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance the
priority infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential
Social Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the Court
shall also tackle certain ancillary issues as prompted by the present cases.

The Courts Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry,117 namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have
the standing to question the validity of the subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity ; and (d) the issue of constitutionality must be the very lis
mota of the case.118 Of these requisites, case law states that the first two are the most
important119and, therefore, shall be discussed forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or controversy.120 This
is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial
power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable x x x." Jurisprudence provides that an actual case or
controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute.121 In other words, "there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence."122 Related to the requirement of an actual
case or controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when the
act being challenged has had a direct adverse effect on the individual challenging it. It is a
prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action."123 "Withal, courts will decline to pass
upon constitutional issues through advisory opinions, bereft as they are of authority to resolve
hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable controversy in
these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the
parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated
cases are ripe for adjudication since the challenged funds and the provisions allowing for their
utilization such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869,
as amended by PD 1993, for the Presidential Social Fund are currently existing and operational;
hence, there exists an immediate or threatened injury to petitioners as a result of the unconstitutional
use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered
moot and academic by the reforms undertaken by respondents. A case becomes moot when there is
no more actual controversy between the parties or no useful purpose can be served in passing upon
the merits.125 Differing from this description, the Court observes that respondents proposed line-item
budgeting scheme would not terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article
which, being a distinct subject matter, remains legally effective and existing. Neither will the
Presidents declaration that he had already "abolished the PDAF" render the issues on PDAF moot
precisely because the Executive branch of government has no constitutional authority to nullify or
annul its legal existence. By constitutional design, the annulment or nullification of a law may be
done either by Congress, through the passage of a repealing law, or by the Court, through a
declaration of unconstitutionality. Instructive on this point is the following exchange between
Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral
Arguments:126

Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct? Solicitor
General Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act,
correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the
PDAF, the President has a duty to execute the laws but in the face of the outrage over PDAF, the
President was saying, "I am not sure that I will continue the release of the soft projects," and that
started, Your Honor. Now, whether or not that (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the
power to stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of
Book 6 of the Revised Administrative Code128 x x x. So at most the President can suspend, now if the
President believes that the PDAF is unconstitutional, can he just refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the
PDAF because of the CoA Report, because of the reported irregularities and this Court can take
judicial notice, even outside, outside of the COA Report, you have the report of the whistle-blowers,
the President was just exercising precisely the duty .

xxxx

Justice Carpio: Yes, and that is correct. Youve seen the CoA Report, there are anomalies, you stop
and investigate, and prosecute, he has done that. But, does that mean that PDAF has been
repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law
to repeal it, or this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic principle is not a magical formula that can automatically dissuade the Court in resolving a
case." The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.129

The applicability of the first exception is clear from the fundamental posture of petitioners they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability and
local autonomy.

The applicability of the second exception is also apparent from the nature of the interests involved

the constitutionality of the very system within which significant amounts of public funds have been
and continue to be utilized and expended undoubtedly presents a situation of exceptional character
as well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a
time when the systems flaws have never before been magnified. To the Courts mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the governments
own recognition that reforms are needed "to address the reported abuses of the
PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the importance of the
matter. It is also by this finding that the Court finds petitioners claims as not merely theorized,
speculative or hypothetical. Of note is the weight accorded by the Court to the findings made by the
CoA which is the constitutionally-mandated audit arm of the government. In Delos Santos v. CoA,131 a
recent case wherein the Court upheld the CoAs disallowance of irregularly disbursed PDAF funds, it
was emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It is
tasked to be vigilant and conscientious in safeguarding the proper use of the government's, and
ultimately the people's, property. The exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system inherent in our form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities, especially
one which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of
separation of powers but also for their presumed expertise in the laws they are entrusted to enforce.
Findings of administrative agencies are accorded not only respect but also finality when the decision
and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of
discretion. It is only when the CoA has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition
questioning its rulings. x x x. (Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in
these cases, the Court deems the findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a
definitive ruling on the systems constitutionality. As disclosed during the Oral Arguments, the CoA
Chairperson estimates that thousands of notices of disallowances will be issued by her office in
connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic Mario
Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their way to the
courts.132 Accordingly, there is a compelling need to formulate controlling principles relative to the
issues raised herein in order to guide the bench, the bar, and the public, not just for the expeditious
resolution of the anticipated disallowance cases, but more importantly, so that the government may
be guided on how public funds should be utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence.133 The
relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget
for 2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout the
course of history, lends a semblance of truth to petitioners claim that "the same dog will just
resurface wearing a different collar."135 In Sanlakas v. Executive Secretary,136 the government had
already backtracked on a previous course of action yet the Court used the "capable of repetition but
evading review" exception in order "to prevent similar questions from re- emerging."137 The situation
similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which
certain public funds are spent, if not resolved at this most opportune time, are capable of repetition
and hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question doctrine
which, under the classic formulation of Baker v. Carr,139applies when there is found, among others, "a
textually demonstrable constitutional commitment of the issue to a coordinate political department,"
"a lack of judicially discoverable and manageable standards for resolving it" or "the impossibility of
deciding without an initial policy determination of a kind clearly for non- judicial discretion." Cast
against this light, respondents submit that the "the political branches are in the best position not only
to perform budget-related reforms but also to do them in response to the specific demands of their
constituents" and, as such, "urge the Court not to impose a solution at this stage."140

The Court must deny respondents submission.

Suffice it to state that the issues raised before the Court do not present political but legal questions
which are within its province to resolve. A political question refers to "those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure."141 The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent
upon the wisdom of the political branches of government but rather a legal one which the
Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the system
along constitutional lines is a task that the political branches of government are incapable of
rendering precisely because it is an exercise of judicial power. More importantly, the present
Constitution has not only vested the Judiciary the right to exercise judicial power but essentially
makes it a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any
clearer: "The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. It includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government." In Estrada v. Desierto,142 the expanded concept of
judicial power under the 1987 Constitution and its effect on the political question doctrine was
explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision,
however, courts are given a greater prerogative to determine what it can do to prevent grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. Clearly, the new provision did not just grant the Court power of doing nothing. x x x
(Emphases supplied)

It must also be borne in mind that when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality nullify
or invalidate an act of the legislature or the executive, but only asserts the solemn and sacred
obligation assigned to it by the Constitution."144 To a great extent, the Court is laudably cognizant of
the reforms undertaken by its co-equal branches of government. But it is by constitutional force that
the Court must faithfully perform its duty. Ultimately, it is the Courts avowed intention that a
resolution of these cases would not arrest or in any manner impede the endeavors of the two other
branches but, in fact, help ensure that the pillars of change are erected on firm constitutional
grounds. After all, it is in the best interest of the people that each great branch of government, within
its own sphere, contributes its share towards achieving a holistic and genuine solution to the
problems of society. For all these reasons, the Court cannot heed respondents plea for judicial
restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions. Unless a
person is injuriously affected in any of his constitutional rights by the operation of statute or
ordinance, he has no standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National Treasury ."146 Clearly,
as taxpayers, they possess the requisite standing to question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been and continue to be utilized. It is undeniable that
petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the
Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim that public
funds are illegally disbursed or that public money is being deflected to any improper purpose, or that
public funds are wasted through the enforcement of an invalid or unconstitutional law,147 as in these
cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the
issues they have raised may be classified as matters "of transcendental importance, of overreaching
significance to society, or of paramount public interest."148 The CoA Chairpersons statement during
the Oral Arguments that the present controversy involves "not merely a systems failure" but a
"complete breakdown of controls"149 amplifies, in addition to the matters above-discussed, the
seriousness of the issues involved herein. Indeed, of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute.150 All told, petitioners have sufficient locus standi to file the instant
cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply,
stare decisis which means "follow past precedents and do not disturb what has been settled") are
general procedural law principles which both deal with the effects of previous but factually similar
dispositions to subsequent cases. For the cases at bar, the Court examines the applicability of these
principles in relation to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if,
between the first and second actions, there exists an identity of parties, of subject matter, and of
causes of action.151 This required identity is not, however, attendant hereto since Philconsa and
LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF
Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork Barrel
System." Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality
and, thus, hardly a judgment on the merits in that petitioners therein failed to present any
"convincing proof x x x showing that, indeed, there were direct releases of funds to the Members of
Congress, who actually spend them according to their sole discretion" or "pertinent evidentiary
support to demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a
common exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to
review or reverse the standing pronouncements in the said case." Hence, for the foregoing reasons,
the res judicata principle, insofar as the Philconsa and LAMP cases are concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched
under Article 8152 of the Civil Code, evokes the general rule that, for the sake of certainty, a
conclusion reached in one case should be doctrinally applied to those that follow if the facts are
substantially the same, even though the parties may be different. It proceeds from the first principle
of justice that, absent any powerful countervailing considerations, like cases ought to be decided
alike. Thus, where the same questions relating to the same event have been put forward by the
parties similarly situated as in a previous case litigated and decided by a competent court, the rule of
stare decisis is a bar to any attempt to re-litigate the same issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e.,
the 1994 CDF Article, was resolved by the Court. To properly understand its context, petitioners
posturing was that "the power given to the Members of Congress to propose and identify projects
and activities to be funded by the CDF is an encroachment by the legislature on executive power,
since said power in an appropriation act is in implementation of the law" and that "the proposal and
identification of the projects do not involve the making of laws or the repeal and amendment thereof,
the only function given to the Congress by the Constitution."154 In deference to the foregoing
submissions, the Court reached the following main conclusions: one, under the Constitution, the
power of appropriation, or the "power of the purse," belongs to Congress; two, the power of
appropriation carries with it the power to specify the project or activity to be funded under the
appropriation law and it can be detailed and as broad as Congress wants it to be; and, three, the
proposals and identifications made by Members of Congress are merely recommendatory. At once,
it is apparent that the Philconsa resolution was a limited response to a separation of powers
problem, specifically on the propriety of conferring post-enactment identification authority to
Members of Congress. On the contrary, the present cases call for a more holistic examination of (a)
the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the
entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained
within a particular CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The complexity of the issues and
the broader legal analyses herein warranted may be, therefore, considered as a powerful
countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As may
be deduced from the main conclusions of the case, Philconsas fundamental premise in allowing
Members of Congress to propose and identify of projects would be that the said identification
authority is but an aspect of the power of appropriation which has been constitutionally lodged in
Congress. From this premise, the contradictions may be easily seen. If the authority to identify
projects is an aspect of appropriation and the power of appropriation is a form of legislative power
thereby lodged in Congress, then it follows that: (a) it is Congress which should exercise such
authority, and not its individual Members; (b) such authority must be exercised within the prescribed
procedure of law passage and, hence, should not be exercised after the GAA has already been
passed; and (c) such authority, as embodied in the GAA, has the force of law and, hence, cannot be
merely recommendatory. Justice Vitugs Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded; to give that authority, however, to
the individual members of Congress in whatever guise, I am afraid, would be constitutionally
impermissible." As the Court now largely benefits from hindsight and current findings on the matter,
among others, the CoA Report, the Court must partially abandon its previous ruling in Philconsa
insofar as it validated the post-enactment identification authority of Members of Congress on the
guise that the same was merely recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground that such mechanism is "imaginative
as it is innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List
v. Purisima155(Abakada) has effectively overturned Philconsas allowance of post-enactment legislator
participation in view of the separation of powers principle. These constitutional inconsistencies and
the Abakada rule will be discussed in greater detail in the ensuing section of this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and,
hence, has not set any controlling doctrine susceptible of current application to the substantive
issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define the
terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are
essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and
Executive branches of government to accumulate lump-sum public funds in their offices with
unchecked discretionary powers to determine its distribution as political largesse."156 They assert that
the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through
the appropriations process to an individual officer; (b) the officer is given sole and broad discretion in
determining how the funds will be used or expended; (c) the guidelines on how to spend or use the
funds in the appropriation are either vague, overbroad or inexistent; and (d) projects funded are
intended to benefit a definite constituency in a particular part of the country and to help the political
careers of the disbursing official by yielding rich patronage benefits.157 They further state that the
Pork Barrel System is comprised of two (2) kinds of discretionary public funds: first, the
Congressional (or Legislative) Pork Barrel, currently known as the PDAF;158 and, second, the
Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and the
Presidential Social Fund under PD 1869, as amended by PD 1993.159

Considering petitioners submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner
by which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its
members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into committees,
are able to effectively control certain aspects of the funds utilization through various post-enactment
measures and/or practices. In particular, petitioners consider the PDAF, as it appears under the
2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows
individual legislators to wield a collective power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For reasons
earlier stated,161 the Court shall delimit the use of such term to refer only to the Malampaya Funds
and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues of
these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral
Commission,162 it means that the "Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government."163 To the legislative branch of government, through Congress,164belongs the power to
make laws; to the executive branch of government, through the President,165 belongs the power to
enforce laws; and to the judicial branch of government, through the Court,166 belongs the power to
interpret laws. Because the three great powers have been, by constitutional design, ordained in this
respect, "each department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere."167 Thus, "the legislature has no authority to
execute or construe the law, the executive has no authority to make or construe the law, and the
judiciary has no power to make or execute the law."168 The principle of separation of powers and its
concepts of autonomy and independence stem from the notion that the powers of government must
be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would
avoid any single branch from lording its power over the other branches or the citizenry.169 To achieve
this purpose, the divided power must be wielded by co-equal branches of government that are
equally capable of independent action in exercising their respective mandates. Lack of
independence would result in the inability of one branch of government to check the arbitrary or self-
interest assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may
interfere impermissibly with the others performance of its constitutionally assigned function";171 and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly
is entrusted to another."172 In other words, there is a violation of the principle when there is
impermissible (a) interference with and/or (b) assumption of another departments functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function
both constitutionally assigned and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget
execution "covers the various operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the "regulation and release of funds"
as well as all "other related activities" that comprise the budget execution cycle.174 This is rooted in
the principle that the allocation of power in the three principal branches of government is a grant of
all powers inherent in them.175 Thus, unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives which go into the implementation
of the national budget as provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members,
should not cross over the field of implementing the national budget since, as earlier stated, the same
is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress
enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter,
Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act
precisely following the process established by the Constitution, which specifies that no money may
be paid from the Treasury except in accordance with an appropriation made by law." Upon approval
and passage of the GAA, Congress law -making role necessarily comes to an end and from there
the Executives role of implementing the national budget begins. So as not to blur the constitutional
boundaries between them, Congress must "not concern it self with details for implementation by the
Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
"from the moment the law becomes effective, any provision of law that empowers Congress or any
of its members to play any role in the implementation or enforcement of the law violates the principle
of separation of powers and is thus unconstitutional."177 It must be clarified, however, that since the
restriction only pertains to "any role in the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress role must be confined to mere
oversight. Any post-enactment-measure allowing legislator participation beyond oversight is bereft of
any constitutional basis and hence, tantamount to impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation. In 1wphi1

particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel among others, the 2013
PDAF Article "wrecks the assignment of responsibilities between the political branches" as it is
designed to allow individual legislators to interfere "way past the time it should have ceased" or,
particularly, "after the GAA is passed."179 They state that the findings and recommendations in the
CoA Report provide "an illustration of how absolute and definitive the power of legislators wield over
project implementation in complete violation of the constitutional principle of separation of
powers."180 Further, they point out that the Court in the Philconsa case only allowed the CDF to exist
on the condition that individual legislators limited their role to recommending projects and not if they
actually dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been violated
since the President maintains "ultimate authority to control the execution of the GAA and that he
"retains the final discretion to reject" the legislators proposals.182 They maintain that the Court, in
Philconsa, "upheld the constitutionality of the power of members of Congress to propose and identify
projects so long as such proposal and identification are recommendatory."183 As such, they claim that
"everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and
hence, remains constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork
Barrel would be the authority of legislators to participate in the post-enactment phases of project
implementation.

At its core, legislators may it be through project lists,185 prior consultations186 or program menus187
have been consistently accorded post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be construed from the import of
Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate,
Special Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles,
allows individual legislators to identify PDAF projects for as long as the identified project falls under a
general program listed in the said menu. Relatedly, Special Provision 2 provides that the
implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more
detailed priority list, standard or design prepared and submitted by implementing agencies from
which the legislator may make his choice. The same provision further authorizes legislators to
identify PDAF projects outside his district for as long as the representative of the district concerned
concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be
identified by legislators"188 and thereunder provides the allocation limit for the total amount of projects
identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any
modification and revision of the project identification "shall be submitted to the House Committee on
Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it cannot be
seriously doubted that legislators have been accorded post-enactment authority to identify PDAF
projects.

Aside from the area of project identification, legislators have also been accorded post-enactment
authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
authority of legislators to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for release of funds shall be
supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by
House Committee on Appropriations and the Senate Committee on Finance, as the case may be";
while their statutory authority to participate in the area of fund realignment is contained in: first ,
paragraph 2, Special Provision 4189 which explicitly state s, among others, that "any realignment of
funds shall be submitted to the House Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the implementing agency, as the case may be ;
and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public
Works and Highways, Social Welfare and Development and Trade and Industry190 x x x to approve
realignment from one project/scope to another within the allotment received from this Fund, subject
to among others (iii) the request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in as Guingona, Jr. puts it "the various operational aspects of
budgeting," including "the evaluation of work and financial plans for individual activities" and the
"regulation and release of funds" in violation of the separation of powers principle. The fundamental
rule, as categorically articulated in Abakada, cannot be overstated from the moment the law
becomes effective, any provision of law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates the principle of separation of powers
and is thus unconstitutional.191 That the said authority is treated as merely recommendatory in nature
does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore abandon its
ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the
same is merely recommendatory and, as such, respondents reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
position that the identification authority of legislators is only of recommendatory import. Quite the
contrary, respondents through the statements of the Solicitor General during the Oral Arguments
have admitted that the identification of the legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to
the entire budget execution process:192

Justice Bernabe: Now, without the individual legislators identification of the project, can the PDAF of
the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx
Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was implemented
without the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor, because to implement, there is a need for a SARO
and the NCA. And the SARO and the NCA are triggered by an identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a
question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the
sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot
avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense,
Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all
other provisions of law which similarly allow legislators to wield any form of post-enactment authority
in the implementation or enforcement of the budget, unrelated to congressional oversight, as
violative of the separation of powers principle and thus unconstitutional. Corollary thereto, informal
practices, through which legislators have effectively intruded into the proper phases of budget
execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of
jurisdiction and, hence, accorded the same unconstitutional treatment. That such informal practices
do exist and have, in fact, been constantly observed throughout the years has not been substantially
disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno)
during the Oral Arguments of these cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if
we enforces the initial thought that I have, after I had seen the extent of this research made by my
staff, that neither the Executive nor Congress frontally faced the question of constitutional
compatibility of how they were engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of Congress has also been using is
surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013
PDAF provisions did was to codify in one section all the past practice that had been done since
1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions.
x x x (Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal
measures written into the law or informal practices institutionalized in government agencies, else the
Executive department be deprived of what the Constitution has vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.
As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised
by the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of
the 1987 Constitution states that such power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.195 Based on this provision, it is clear that only
Congress, acting as a bicameral body, and the people, through the process of initiative and
referendum, may constitutionally wield legislative power and no other. This premise embodies the
principle of non-delegability of legislative power, and the only recognized exceptions thereto would
be: (a) delegated legislative power to local governments which, by immemorial practice, are allowed
to legislate on purely local matters;196 and (b) constitutionally-grafted exceptions such as the authority
of the President to, by law, exercise powers necessary and proper to carry out a declared national
policy in times of war or other national emergency,197or fix within specified limits, and subject to such
limitations and restrictions as Congress may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.198

Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-
making authority to implementing agencies for the limited purpose of either filling up the details of
the law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into
actual operation (contingent rule-making).199The conceptual treatment and limitations of delegated
rule-making were explained in the case of People v. Maceren200 as follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondelegation of legislative powers. Administrative
regulations or "subordinate legislation" calculated to promote the public interest are necessary
because of "the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory requirements or to embrace matters not
covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-delegability
since said legislators are effectively allowed to individually exercise the power of appropriation,
which as settled in Philconsa is lodged in Congress.201 That the power to appropriate must be
exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." To understand what constitutes an act of appropriation, the Court, in
Bengzon v. Secretary of Justice and Insular Auditor202 (Bengzon), held that the power of
appropriation involves (a) the setting apart by law of a certain sum from the public revenue for (b) a
specified purpose. Essentially, under the 2013 PDAF Article, individual legislators are given a
personal lump-sum fund from which they are able to dictate (a) how much from such fund would go
to (b) a specific project or beneficiary that they themselves also determine. As these two (2) acts
comprise the exercise of the power of appropriation as described in Bengzon, and given that the
2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said
legislators have been conferred the power to legislate which the Constitution does not, however,
allow. Thus, keeping with the principle of non-delegability of legislative power, the Court hereby
declares the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which
contain the similar legislative identification feature as herein discussed, as unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and distinct
does not mean that they are absolutely unrestrained and independent of each other. The
Constitution has also provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.203

A prime example of a constitutional check and balance would be the Presidents power to veto an
item written into an appropriation, revenue or tariff bill submitted to him by Congress for approval
through a process known as "bill presentment." The Presidents item-veto power is found in Section
27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise
his power of item-veto, forms part of the "single, finely wrought and exhaustively considered,
procedures" for law-passage as specified under the Constitution.204 As stated in Abakada, the final
step in the law-making process is the "submission of the bill to the President for approval. Once
approved, it takes effect as law after the required publication."205

Elaborating on the Presidents item-veto power and its relevance as a check on the legislature, the
Court, in Bengzon, explained that:206

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is
essentially a legislative act. The questions presented to the mind of the Chief Executive are precisely
the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.

The Constitution is a limitation upon the power of the legislative department of the government, but
in this respect it is a grant of power to the executive department. The Legislature has the affirmative
power to enact laws; the Chief Executive has the negative power by the constitutional exercise of
which he may defeat the will of the Legislature. It follows that the Chief Executive must find his
authority in the Constitution. But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The courts will indulge every
intendment in favor of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases supplied)

The justification for the Presidents item-veto power rests on a variety of policy goals such as to
prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the
executive branchs role in the budgetary process.208 In Immigration and Naturalization Service v.
Chadha, the US Supreme Court characterized the Presidents item-power as "a salutary check upon
the legislative body, calculated to guard the community against the effects of factions, precipitancy,
or of any impulse unfriendly to the public good, which may happen to influence a majority of that
body"; phrased differently, it is meant to "increase the chances in favor of the community against the
passing of bad laws, through haste, inadvertence, or design."209

For the President to exercise his item-veto power, it necessarily follows that there exists a proper
"item" which may be the object of the veto. An item, as defined in the field of appropriations, pertains
to "the particulars, the details, the distinct and severable parts of the appropriation or of the bill." In
the case of Bengzon v. Secretary of Justice of the Philippine Islands,210 the US Supreme Court
characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill.
(Emphases supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President may be
able to exercise his power of item veto, must contain "specific appropriations of money" and not only
"general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by
singular correspondence meaning an allocation of a specified singular amount for a specified
singular purpose, otherwise known as a "line-item."211 This treatment not only allows the item to be
consistent with its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation, the existing Calamity
Fund, Contingent Fund and the Intelligence Fund, being appropriations which state a specified
amount for a specific purpose, would then be considered as "line- item" appropriations which are
rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that each percentage or
value must be allocated for its own corresponding purpose for such component to be considered as
a proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may even
have several related purposes that are by accounting and budgeting practice considered as one
purpose, e.g., MOOE (maintenance and other operating expenses), in which case the related
purposes shall be deemed sufficiently specific for the exercise of the Presidents item veto power.
Finally, special purpose funds and discretionary funds would equally square with the constitutional
mechanism of item-veto for as long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section 25(4), Article VI of the 1987
Constitution requires that the "special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as certified by the National Treasurer,
or t o be raised by a corresponding revenue proposal therein." Meanwhile, with respect to
discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall
be disbursed only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for a
singular lump-sum amount to be tapped as a source of funding for multiple purposes. Since such
appropriation type necessitates the further determination of both the actual amount to be expended
and the actual purpose of the appropriation which must still be chosen from the multiple purposes
stated in the law, it cannot be said that the appropriation law already indicates a "specific
appropriation of money and hence, without a proper line-item which the President may veto. As a
practical result, the President would then be faced with the predicament of either vetoing the entire
appropriation if he finds some of its purposes wasteful or undesirable, or approving the entire
appropriation so as not to hinder some of its legitimate purposes. Finally, it may not be amiss to
state that such arrangement also raises non-delegability issues considering that the implementing
authority would still have to determine, again, both the actual amount to be expended and the actual
purpose of the appropriation. Since the foregoing determinations constitute the integral aspects of
the power to appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislators identification of the projects after the passage of the GAA denies the
President the chance to veto that item later on."212 Accordingly, they submit that the "item veto power
of the President mandates that appropriations bills adopt line-item budgeting" and that "Congress
cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the
President useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process which
is intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations
are essential to financially address situations which are barely foreseen when a GAA is enacted.
They argue that the decision of the Congress to create some lump-sum appropriations is
constitutionally allowed and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of 24.79 Billion only appears as a collective allocation
limit since the said amount would be further divided among individual legislators who would then
receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate
PDAF funds based on their own discretion. As these intermediate appropriations are made by
legislators only after the GAA is passed and hence, outside of the law, it necessarily means that the
actual items of PDAF appropriation would not have been written into the General Appropriations Bill
and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a budget" which subverts the
prescribed procedure of presentment and consequently impairs the Presidents power of item veto.
As petitioners aptly point out, the above-described system forces the President to decide between
(a) accepting the entire 24.79 Billion PDAF allocation without knowing the specific projects of the
legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of 24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials, construction of roads,
flood control, etc. This setup connotes that the appropriation law leaves the actual amounts and
purposes of the appropriation for further determination and, therefore, does not readily indicate a
discernible item which may be subject to the Presidents power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that would
aid in more stringently auditing the utilization of said Funds."216 Accordingly, she recommends the
adoption of a "line by line budget or amount per proposed program, activity or project, and per
implementing agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting
system provides for a greater degree of flexibility to account for future contingencies cannot be an
excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is
that unconstitutional means do not justify even commendable ends.218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork Barrel
operate defies public accountability as it renders Congress incapable of checking itself or its
Members. In particular, they point out that the Congressional Pork Barrel "gives each legislator a
direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them "from
fiscalizers" into "financially-interested partners."219 They also claim that the system has an effect on
re- election as "the PDAF excels in self-perpetuation of elective officials." Finally, they add that the
"PDAF impairs the power of impeachment" as such "funds are indeed quite useful, to well,
accelerate the decisions of senators."220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
office is a public trust," is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the peoples trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the Constitution which are designed to exact
accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds may
be checked is the power of congressional oversight. As mentioned in Abakada,222 congressional
oversight may be performed either through: (a) scrutiny based primarily on Congress power of
appropriation and the budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation;223 or (b) investigation and monitoring of the
implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of Congressional
Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact
that individual legislators are given post-enactment roles in the implementation of the budget makes
it difficult for them to become disinterested "observers" when scrutinizing, investigating or monitoring
the implementation of the appropriation law. To a certain extent, the conduct of oversight would be
tainted as said legislators, who are vested with post-enactment authority, would, in effect, be
checking on activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter before any office of the Government for
his pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis
supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation a matter
before another office of government renders them susceptible to taking undue advantage of their
own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or the
individual legislators control of his PDAF per se would allow him to perpetuate himself in office.
Indeed, while the Congressional Pork Barrel and a legislators use thereof may be linked to this area
of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed based
on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the formers post-enactment participation, may
affect the process of impeachment, this matter largely borders on the domain of politics and does not
strictly concern the Pork Barrel Systems intrinsic constitutionality. As such, it is an improper subject
of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14,
Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and
other forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members of
political dynasties to accumulate funds to perpetuate themselves in power, in contravention of
Section 26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to
the qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of
itself, provide a judicially enforceable constitutional right but merely specifies guideline for legislative
or executive action.226 Therefore, since there appears to be no standing law which crystallizes the
policy on political dynasties for enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative since
it has not been properly demonstrated how the Pork Barrel System would be able to propagate
political dynasties.

5. Local Autonomy.

The States policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and
3, Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.
 ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of
1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National Government to the local government
units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and peoples organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to
empower local government units (LGUs) to develop and ultimately, become self-sustaining and
effective contributors to the national economy. As explained by the Court in Philippine Gamefowl
Commission v. Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development
of our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and more important,
imbue them with a deepened sense of involvement in public affairs as members of the body politic.
This objective could be blunted by undue interference by the national government in purely local
affairs which are best resolved by the officials and inhabitants of such political units. The decision we
reach today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are national
officers, to substitute their judgments in utilizing public funds for local development.230 The Court
agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project."231 Drawing strength from this pronouncement,
previous legislators justified its existence by stating that "the relatively small projects implemented
under the Congressional Pork Barrel complement and link the national development goals to the
countryside and grassroots as well as to depressed areas which are overlooked by central agencies
which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the
"abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork
Barrel was originally established for a worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes
that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the district the legislator represents. In
this regard, the allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration. As a result, a district
representative of a highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively "underdeveloped" compared to
the former. To add, what rouses graver scrutiny is that even Senators and Party-List
Representatives and in some years, even the Vice-President who do not represent any locality,
receive funding from the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrels original intent which is "to make equal the unequal." Ultimately, the
PDAF and CDF had become personal funds under the effective control of each legislator and given
unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in setting the direction of economic and
social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially geared
towards managing local affairs,235 their programs, policies and resolutions should not be overridden
nor duplicated by individual legislators, who are national officers that have no law-making authority
except only when acting as a body. The undermining effect on local autonomy caused by the post-
enactment authority conferred to the latter was succinctly put by petitioners in the following wise:236

With PDAF, a Congressman can simply bypass the local development council and initiate projects
on his own, and even take sole credit for its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of
Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as
invalid appropriations laws since they do not have the "primary and specific" purpose of authorizing
the release of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is
not an appropriation law since the "primary and specific purpose of PD 910 is the creation of an
Energy Development Board and Section 8 thereof only created a Special Fund incidental
thereto.237 In similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid
appropriations law since the allocation of the Presidential Social Fund is merely incidental to the
"primary and specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of
PAGCOR.238 In view of the foregoing, petitioners suppose that such funds are being used without any
valid law allowing for their proper appropriation in violation of Section 29(1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the Treasury except in pursuance of
an appropriation made by law."239

The Court disagrees.

"An appropriation made by law under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable240 amount of
money and (b) allocates the same for a particular public purpose. These two minimum designations
of amount and purpose stem from the very definition of the word "appropriation," which means "to
allot, assign, set apart or apply to a particular use or purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate exists. As the Constitution "does not provide or
prescribe any particular form of words or religious recitals in which an authorization or appropriation
by Congress shall be made, except that it be made by law," an appropriation law may according
to Philconsa be "detailed and as broad as Congress wants it to be" for as long as the intent to
appropriate may be gleaned from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except that it
be "made by law," such as precisely the authorization or appropriation under the questioned
presidential decrees. In other words, in terms of time horizons, an appropriation may be made
impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as by
enactment of laws by the present Congress), just as said appropriation may be made in general as
well as in specific terms. The Congressional authorization may be embodied in annual laws, such as
a general appropriations act or in special provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the questioned decrees. An
appropriation measure is sufficient if the legislative intention clearly and certainly appears from the
language employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the
present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the designated
purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or
purpose. An appropriation in the sense of the constitution means the setting apart a portion of the
public funds for a public purpose. No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be
the "primary and specific" purpose of the law in order for a valid appropriation law to exist. To
reiterate, if a legal provision designates a determinate or determinable amount of money and
allocates the same for a particular public purpose, then the legislative intent to appropriate becomes
apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made by law"
under contemplation of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery
bonus, production bonus; all money collected from concessionaires, representing unspent work
obligations, fines and penalties under the Petroleum Act of 1949; as well as the government share
representing royalties, rentals, production share on service contracts and similar payments on the
exploration, development and exploitation of energy resources, shall form part of a Special Fund to
be used to finance energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President. (Emphases
supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. After deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of the Corporation
from this Franchise, or 60% if the aggregate gross earnings be less than 150,000,000.00 shall be
set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis--vis the above-mentioned principles, it may then be concluded that (a)
Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of
the Energy Development Board from any and all sources" (a determinable amount) "to be used to
finance energy resource development and exploitation programs and projects of the government and
for such other purposes as may be hereafter directed by the President" (a specified public purpose),
and (b) Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting
five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the
aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings be less than
150,000,000.00" (also a determinable amount) "to finance the priority infrastructure development
projects and x x x the restoration of damaged or destroyed facilities due to calamities, as may be
directed and authorized by the Office of the President of the Philippines" (also a specified public
purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a
legal appropriation under the said constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a system of intermediate appropriations.
These intermediate appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur outside the law. As such,
the Court observes that the real appropriation made under the 2013 PDAF Article is not the 24.79
Billion allocated for the entire PDAF, but rather the post-enactment determinations made by the
individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013
PDAF Article does not constitute an "appropriation made by law" since it, in its truest sense, only
authorizes individual legislators to appropriate in violation of the non-delegability principle as afore-
discussed.

2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis
to the same section and thus, construe the phrase "and for such other purposes as may be hereafter
directed by the President" to refer only to other purposes related "to energy resource development
and exploitation programs and projects of the government."244

The Court agrees with petitioners submissions.

While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive245 either for the purpose
of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual operation, referred to as contingent rule-
making.246 There are two (2) fundamental tests to ensure that the legislative guidelines for delegated
rule-making are indeed adequate. The first test is called the "completeness test." Case law states
that a law is complete when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test is called the "sufficient standard
test." Jurisprudence holds that a law lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegates authority and prevent
the delegation from running riot.247 To be sufficient, the standard must specify the limits of the
delegates authority, announce the legislative policy, and identify the conditions under which it is to
be implemented.248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an
undue delegation of legislative power insofar as it does not lay down a sufficient standard to
adequately determine the limits of the Presidents authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use
the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally
appropriate public funds beyond the purview of the law. That the subject phrase may be confined
only to "energy resource development and exploitation programs and projects of the government"
under the principle of ejusdem generis, meaning that the general word or phrase is to be construed
to include or be restricted to things akin to, resembling, or of the same kind or class as those
specifically mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource
development and exploitation programs and projects of the government" states a singular and
general class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also exhausts the
class it represents, namely energy development programs of the government;250 and, third, the
Executive department has, in fact, used the Malampaya Funds for non-energy related purposes
under the subject phrase, thereby contradicting respondents own position that it is limited only to
"energy resource development and exploitation programs and projects of the government."251 Thus,
while Section 8 of PD 910 may have passed the completeness test since the policy of energy
development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken
down as unconstitutional as it lies independently unfettered by any sufficient standard of the
delegating law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it
allows for the use of the Malampaya Funds "to finance energy resource development and
exploitation programs and projects of the government," remains legally effective and subsisting.
Truth be told, the declared unconstitutionality of the aforementioned phrase is but an assurance that
the Malampaya Funds would be used as it should be used only in accordance with the avowed
purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD
1869 has already been amended by PD 1993 which thus moots the parties submissions on the
same.252 Nevertheless, since the amendatory provision may be readily examined under the current
parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social
Fund may be used "to first, finance the priority infrastructure development projects and second, to
finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines." The Court finds that while the second
indicated purpose adequately curtails the authority of the President to spend the Presidential Social
Fund only for restoration purposes which arise from calamities, the first indicated purpose, however,
gives him carte blanche authority to use the same fund for any infrastructure project he may so
determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure
development projects" and hence, leaves the President without any guideline to construe the same.
To note, the delimitation of a project as one of "infrastructure" is too broad of a classification since
the said term could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as
well as economic and residential development."253 In fine, the phrase "to finance the priority
infrastructure development projects" must be stricken down as unconstitutional since similar to the
above-assailed provision under Section 8 of PD 910 it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of
PD 1869, as amended by PD 1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional as the Court did
so in the context of its pronouncements made in this Decision petitioners equally pray that the
Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003
to 2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the
Executives lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds
and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
and the recipient entities or individuals, and all pertinent data thereto"255 (Presidential Pork Use
Report). Petitioners prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987
Constitution which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
The Court denies petitioners submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a
writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is,
whether the information sought by the petitioner is within the ambit of the constitutional guarantee.
(Emphases supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to
information does not include the right to compel the preparation of "lists, abstracts, summaries and
the like." In the same case, it was stressed that it is essential that the "applicant has a well -defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required." Hence, without the foregoing substantiations, the Court cannot grant a
particular request for information. The pertinent portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access
to official records," the Constitution does not accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and the like in their desire to acquire information on
matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions,
the Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right"
to be furnished by the Executive Secretary and/or the DBM of their requested PDAF Use
Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latters duty to furnish them with the
documents requested. While petitioners pray that said information be equally released to the CoA, it
must be pointed out that the CoA has not been impleaded as a party to these cases nor has it filed
any petition before the Court to be allowed access to or to compel the release of any official
document relevant to the conduct of its audit investigations. While the Court recognizes that the
information requested is a matter of significant public concern, however, if only to ensure that the
parameters of disclosure are properly foisted and so as not to unduly hamper the equally important
interests of the government, it is constrained to deny petitioners prayer on this score, without
prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.

It bears clarification that the Courts denial herein should only cover petitioners plea to be furnished
with such schedule/list and report and not in any way deny them, or the general public, access to
official documents which are already existing and of public record. Subject to reasonable regulation
and absent any valid statutory prohibition, access to these documents should not be proscribed.
Thus, in Valmonte, while the Court denied the application for mandamus towards the preparation of
the list requested by petitioners therein, it nonetheless allowed access to the documents sought for
by the latter, subject, however, to the custodians reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission,
supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third
alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited to,
proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the
Executives Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally
left to the prerogative of the political branches of government. Hence, lest the Court itself overreach,
it must equally deny their prayer on this score.

3. Respondents Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Courts September 10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated
September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may continually be implemented and
disbursements thereto effected by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said
SARO had been obligated by the implementing agency concerned prior to the issuance of the
Courts September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not
yet involve the release of funds under the PDAF, as release is only triggered by the issuance of a
Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated
SARO, should remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing
agency concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO
because they cannot be considered as remaining PDAF." They conclude that this is a reasonable
interpretation of the TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Courts September 10, 2013
TRO should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of
the 2013 PDAF Article as declared herein has the consequential effect of converting the temporary
injunction into a permanent one. Hence, from the promulgation of this Decision, the release of the
remaining PDAF funds for 2013, among others, is now permanently enjoined.

The propriety of the DBMs interpretation of the concept of "release" must, nevertheless, be resolved
as it has a practical impact on the execution of the current Decision. In particular, the Court must
resolve the issue of whether or not PDAF funds covered by obligated SAROs, at the time this
Decision is promulgated, may still be disbursed following the DBMs interpretation in DBM Circular
2013-8.

On this score, the Court agrees with petitioners posturing for the fundamental reason that funds
covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific authority issued to identified agencies to incur
obligations not exceeding a given amount during a specified period for the purpose indicated. It shall
cover expenditures the release of which is subject to compliance with specific laws or regulations, or
is subject to separate approval or clearance by competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation
and not the directive to pay. Practically speaking, the SARO does not have the direct and immediate
effect of placing public funds beyond the control of the disbursing authority. In fact, a SARO may
even be withdrawn under certain circumstances which will prevent the actual release of funds. On
the other hand, the actual release of funds is brought about by the issuance of the NCA,264 which is
subsequent to the issuance of a SARO. As may be determined from the statements of the DBM
representative during the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate
or to enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to
be able to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA,
Your Honor, is the go signal for the MDS for the authorized government-disbursing banks to,
therefore, pay the payees depending on the projects or projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued
are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered
by obligated SAROs, and without any corresponding NCAs issued, must, at the time of this
Decisions promulgation, be enjoined and consequently reverted to the unappropriated surplus of the
general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed even though already obligated, else the Court
sanctions the dealing of funds coming from an unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released meaning, those merely covered by a SARO under the phrase "and for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD
910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD
1993, which were altogether declared by the Court as unconstitutional. However, these funds should
not be reverted to the general fund as afore-stated but instead, respectively remain under the
Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding special
purposes not otherwise declared as unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Courts pronouncement anent the unconstitutionality of
(a) the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel
provisions similar thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure
development projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated
as prospective in effect in view of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue v.
San Roque Power Corporation,266 the doctrine merely "reflects awareness that precisely because the
judiciary is the governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired prior to such
adjudication."267 "In the language of an American Supreme Court decision: The actual existence of a
statute, prior to such a determination of unconstitutionality, is an operative fact and may have
consequences which cannot justly be ignored."268
For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our
history. In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional
in view of the inherent defects in the rules within which it operates. To recount, insofar as it has
allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital
areas of budget execution, the system has violated the principle of separation of powers; insofar as it
has conferred unto legislators the power of appropriation by giving them personal, discretionary
funds from which they are able to fund specific projects which they themselves determine, it has
similarly violated the principle of non-delegability of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the
prescribed procedure of presentment and, in the process, denied the President the power to veto
items ; insofar as it has diluted the effectiveness of congressional oversight by giving legislators a
stake in the affairs of budget execution, an aspect of governance which they may be called to
monitor and scrutinize, the system has equally impaired public accountability ; insofar as it has
authorized legislators, who are national officers, to intervene in affairs of purely local nature, despite
the existence of capable local institutions, it has likewise subverted genuine local autonomy ; and
again, insofar as it has conferred to the President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may deem fit as well as other public funds under
the broad classification of "priority infrastructure development projects," it has once more
transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods
and mechanisms the Court has herein pointed out should never again be adopted in any system of
governance, by any name or form, by any semblance or similarity, by any influence or effect.
Disconcerting as it is to think that a system so constitutionally unsound has monumentally endured,
the Court urges the people and its co-stewards in government to look forward with the optimism of
change and the awareness of the past. At a time of great civic unrest and vociferous public debate,
the Court fervently hopes that its Decision today, while it may not purge all the wrongs of society nor
bring back what has been lost, guides this nation to the path forged by the Constitution so that no
one may heretofore detract from its cause nor stray from its course. After all, this is the Courts
bounden duty and no others.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013
PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as
the previous PDAF and CDF Articles and the various Congressional Insertions, which authorize/d
legislators whether individually or collectively organized into committees to intervene, assume or
participate in any of the various post-enactment stages of the budget execution, such as but not
limited to the areas of project identification, modification and revision of project identification, fund
release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and
CDF Articles and the various Congressional Insertions, which confer/red personal, lump-sum
allocations to legislators from which they are able to fund specific projects which they themselves
determine; (d) all informal practices of similar import and effect, which the Court similarly deems to
be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the phrases
(1) "and for such other purposes as may be hereafter directed by the President" under Section 8 of
Presidential Decree No. 910 and (2) "to finance the priority infrastructure development projects"
under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for
both failing the sufficient standard test in violation of the principle of non-delegability of legislative
power.
Accordingly, the Courts temporary injunction dated September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year
2013, as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under
the phrase "and for such other purposes as may be hereafter directed by the President" pursuant to
Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to
finance the priority infrastructure development projects" pursuant to Section 12 of Presidential
Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the time this Decision
is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by Special Allotment
Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF
funds covered by this permanent injunction shall not be disbursed/released but instead reverted to
the unappropriated surplus of the general fund, while the funds under the Malampaya Funds and the
Presidential Social Fund shall remain therein to be utilized for their respective special purposes not
otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby
DENIES petitioners prayer seeking that the Executive Secretary and/or the Department of Budget
and Management be ordered to provide the public and the Commission on Audit complete
lists/schedules or detailed reports related to the availments and utilization of the funds subject of
these cases. Petitioners access to official documents already available and of public record which
are related to these funds must, however, not be prohibited but merely subjected to the custodians
reasonable regulations or any valid statutory prohibition on the same. This denial is without prejudice
to a proper mandamus case which they or the Commission on Audit may choose to pursue through
a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases
in the budgetary deliberations of Congress as the same is a matter left to the prerogative of the
political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds
of reasonable dispatch, investigate and accordingly prosecute all government officials and/or private
individuals for possible criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

EN BANC

LUIS K. LOKIN, JR., as the

second nominee of CITIZENS BATTLE AGAINST CORRUPTION (CIBAC),

Petitioner,
-versus -

COMMISSION ON ELECTIONS and the HOUSE OF REPRESENTATIVES,

Respondents.

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

LUIS K. LOKIN, JR.,

Petitioner,

-versus -

COMMISSION ON ELECTIONS (COMELEC), EMMANUEL JOEL J. VILLANUEVA, CINCHONA C.

GONZALES and ARMI JANE R. BORJE,
Respondents.

G.R. Nos. 179431-32

G.R. No. 180443

Present:

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

Promulgated:

___________________

x-----------------------------------------------------------------------------------------x
DECISION

BERSAMIN, J.:

The principal question posed in these consolidated special civil actions for certiorari and
mandamus is whether the Commission on Elections (COMELEC) can issue implementing
rules and regulations (IRRs) that provide a ground for the substitution of a party-list nominee
not written in Republic Act (R.A.) No. 7941,[1] otherwise known as the Party-List System Act,
the law that the COMELEC thereby implements.

Common Antecedents

The Citizens Battle Against Corruption (CIBAC) was one of the organized groups duly
registered under the party-list system of representation that manifested their intent to
participate in the May 14, 2007 synchronized national and local elections. Together with its
manifestation of intent to participate,[2] CIBAC, through its president, Emmanuel Joel J.
Villanueva, submitted a list of five nominees from which its representatives would be chosen
should CIBAC obtain the required number of qualifying votes. The nominees, in the order that
their names appeared in the certificate of nomination dated March 29, 2007,[3] were: (1)
Emmanuel Joel J. Villanueva; (2) herein petitioner Luis K. Lokin, Jr.; (3) Cinchona C. Cruz-
Gonzales; (4) Sherwin Tugna; and (5) Emil L. Galang. The nominees certificates of
acceptance were attached to the certificate of nomination filed by CIBAC. The list of
nominees was later published in two newspapers of general circulation, The Philippine Star
News[4] (sic) and The Philippine Daily Inquirer.[5]

Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate of
nomination, substitution and amendment of the list of nominees dated May 7, 2007,[6]
whereby it withdrew the nominations of Lokin, Tugna and Galang and substituted Armi Jane
R. Borje as one of the nominees. The amended list of nominees of CIBAC thus included: (1)
Villanueva, (2) Cruz-Gonzales, and (3) Borje.

Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to COMELEC
Chairperson Benjamin Abalos,[7] transmitting therewith the signed petitions of more than
81% of the CIBAC members, in order to confirm the withdrawal of the nomination of Lokin,
Tugna and Galang and the substitution of Borje. In their petitions, the members of CIBAC
averred that Lokin and Tugna were not among the nominees presented and proclaimed by
CIBAC in its proclamation rally held in May 2007; and that Galang had signified his desire to
focus on his family life.

On June 26, 2007, CIBAC, supposedly through its counsel, filed with the COMELEC en banc
sitting as the National Board of Canvassers a motion seeking the proclamation of Lokin as its
second nominee.[8] The right of CIBAC to a second seat as well as the right of Lokin to be
thus proclaimed were purportedly based on Party-List Canvass Report No. 26, which showed
CIBAC to have garnered a grand total of 744,674 votes. Using all relevant formulas, the
motion asserted that CIBAC was clearly entitled to a second seat and Lokin to a
proclamation.

The motion was opposed by Villanueva and Cruz-Gonzales.

Notwithstanding Villanuevas filing of the certificate of nomination, substitution and

amendment of the list of nominees and the petitions of more than 81% of CIBAC members,
the COMELEC failed to act on the matter, prompting Villanueva to file a petition to confirm the
certificate of nomination, substitution and amendment of the list of nominees of CIBAC on
June 28, 2007.[9]

On July 6, 2007, the COMELEC issued Resolution No. 8219,[10] whereby it resolved to set the
matter pertaining to the validity of the withdrawal of the nominations of Lokin, Tugna and
Galang and the substitution of Borje for proper disposition and hearing. The case was
docketed as E.M. No. 07-054.

In the meantime, the COMELEC en banc, sitting as the National Board of Canvassers, issued
National Board of Canvassers (NBC) Resolution No. 07-60 dated July 9, 2007[11] to partially
proclaim the following parties, organizations and coalitions participating under the Party-List
System as having won in the May 14, 2007 elections, namely: Buhay Hayaan Yumabong,
Bayan Muna, CIBAC, Gabriela Women's Party, Association of Philippine Electric
Cooperatives, Advocacy for Teacher Empowerment Through Action, Cooperation and
Harmony Towards Educational Reforms, Inc., Akbayan! Citizen's Action Party, Alagad, Luzon
Farmers Party, Cooperative-Natco Network Party, Anak Pawis, Alliance of Rural Concerns
and Abono; and to defer the proclamation of the nominees of the parties, organizations and
coalitions with pending disputes until final resolution of their respective cases.

The COMELEC en banc issued another resolution, NBC Resolution No. 07-72 dated July 18,
2007,[12] proclaiming Buhay Hayaan Yumabong as entitled to 2 additional seats and Bayan
Muna, CIBAC, Gabriela Women's Party, and Association of Philippine Electric Cooperatives
to an additional seat each; and holding in abeyance the proclamation of the nominees of said
parties, organizations and coalitions with pending disputes until the final resolution of their
respective cases.

With the formal declaration that CIBAC was entitled to an additional seat, Ricardo de los
Santos, purportedly as secretary general of CIBAC, informed Roberto P. Nazareno, Secretary
General of the House of Representatives, of the promulgation of NBC Resolution No. 07-72
and requested that Lokin be formally sworn in by Speaker Jose de Venecia, Jr. to enable him
to assume office. Nazareno replied, however, that the request of Delos Santos could not be
granted because COMELEC Law Director Alioden D. Dalaig had notified him of the pendency
of E.M. 07-054.

On September 14, 2007, the COMELEC en banc resolved E.M. No. 07-054[13] thuswise:

WHEREFORE, considering the above discussion, the Commission hereby approves the
withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and Emil Galang as
second, third and fourth nominees respectively and the substitution thereby with Atty.
Cinchona C. Cruz-Gonzales as second nominee and Atty. Armi Jane R. Borje as third
nominee for the party list CIBAC. The new order of CIBAC's nominees therefore shall be:

1. Emmanuel Joel J. Villanueva

2. Cinchona C. Cruz-Gonzales

3. Armi Jane R. Borje

SO ORDERED.

The COMELEC en banc explained that the actions of Villanueva in his capacity as the
president of CIBAC were presumed to be within the scope of his authority as such; that the
president was charged by Section 1 of Article IV of the CIBAC By-Laws to oversee and direct
the corporate activities, which included the act of submitting the party's manifestation of
intent to participate in the May 14, 2007 elections as well as its certificate of nominees; that
from all indications, Villanueva as the president of CIBAC had always been provided the
leeway to act as the party's representative and that his actions had always been considered
as valid; that the act of withdrawal, although done without any written Board approval, was
accomplished with the Boards acquiescence or at least understanding; and that the intent of
the party should be given paramount consideration in the selection of the nominees.

As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second nominee
of CIBAC.[14] Cruz-Gonzales took her oath of office

as a Party-List Representative of CIBAC on September 17, 2007.[15]

Precs of the Consolidated Cases

In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel
respondent COMELEC to proclaim him as the official second nominee of CIBAC.

In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on January
12, 2007;[16] and the resolution dated September 14, 2007 issued in E.M. No. 07-054
(approving CIBACs withdrawal of the nominations of Lokin, Tugna and Galang as CIBACs
second, third and fourth nominees, respectively, and the substitution by Cruz-Gonzales and
Borje in their stead, based on the right of CIBAC to change its nominees under Section 13 of
Resolution No. 7804).[17] He alleges that Section 13 of Resolution No. 7804 expanded Section
8 of R.A. No. 7941.[18] the law that the COMELEC seeks to thereby implement.

In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate
recourse in law due to the proclamation of Cruz-Gonzales as Representative and her
assumption of that office; that Lokins proper recourse was an electoral protest filed in the
House of Representatives Electoral Tribunal (HRET); and that, therefore, the Court has no
jurisdiction over the matter being raised by Lokin.

For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition for
mandamus and a petition for certiorari, considering that both petitions ultimately seek to
have him proclaimed as the second nominee of CIBAC.

Issues

The issues are the following:

(a) Whether or not the Court has jurisdiction over the controversy;

(b) Whether or not Lokin is guilty of forum shopping;

(c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional and violates the
Party-List System Act; and

(d) Whether or not the COMELEC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in approving the withdrawal of the nominees of CIBAC and allowing the
amendment of the list of nominees of CIBAC without any basis in fact or law and after the
close of the polls, and in ruling on matters that were intra-corporate in nature.

Ruling

The petitions are granted.

The Court has jurisdiction over the case

The COMELEC posits that once the proclamation of the winning party-list organization has
been done and its nominee has assumed office, any question relating to the election, returns
and qualifications of the candidates to the House of Representatives falls under the
jurisdiction of the HRET pursuant to Section 17, Article VI of the 1987 Constitution. Thus,
Lokin should raise the question he poses herein either in an election protest or in a special
civil action for quo warranto in the HRET, not in a special civil action for certiorari in this
Court.

We do not agree.
An election protest proposes to oust the winning candidate from office. It is strictly a contest
between the defeated and the winning candidates, based on the grounds of electoral frauds
and irregularities, to determine who between them has actually obtained the majority of the
legal votes cast and is entitled to hold the office. It can only be filed by a candidate who has
duly filed a certificate of candidacy and has been voted for in the preceding elections.

A special civil action for quo warranto refers to questions of disloyalty to the State, or of
ineligibility of the winning candidate. The objective of the action is to unseat the ineligible
person from the office, but not to install the petitioner in his place. Any voter may initiate the
action, which is, strictly speaking, not a contest where the parties strive for supremacy
because the petitioner will not be seated even if the respondent may be unseated.

The controversy involving Lokin is neither an election protest nor an action for quo warranto,
for it concerns a very peculiar situation in which Lokin is seeking to be seated as the second
nominee of CIBAC. Although an election protest may properly be available to one party-list
organization seeking to unseat another party-list organization to determine which between
the defeated and the winning party-list organizations actually obtained the majority of the
legal votes, Lokins case is not one in which a nominee of a particular party-list organization
thereby wants to unseat another nominee of the same party-list organization. Neither does an
action for quo warranto lie, considering that the case does not involve the ineligibility and
disloyalty of Cruz-Gonzales to the Republic of the Philippines, or some other cause of
disqualification for her.

Lokin has correctly brought this special civil action for certiorari against the COMELEC to
seek the review of the September 14, 2007 resolution of the COMELEC in accordance with
Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the oath and assumption
of office by Cruz-Gonzales. The constitutional mandate is now implemented by Rule 64 of the
1997 Rules of Civil Procedure, which provides for the review of the judgments, final orders or
resolutions of the COMELEC and the Commission on Audit. As Rule 64 states, the mode of
review is by a petition for certiorari in accordance with Rule 65 to be filed in the Supreme
Court within a limited period of 30 days. Undoubtedly, the Court has original and exclusive
jurisdiction over Lokins petitions for certiorari and for mandamus against the COMELEC.

Petitioner is not guilty of forum shopping

Forum shopping consists of the filing of multiple suits involving the same parties for the
same cause of action, either simultaneously or successively, for the purpose of obtaining a
favorable judgment. Thus, forum shopping may arise: (a) whenever as a result of an adverse
decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari)
in another; or (b) if, after having filed a petition in the Supreme Court, a party files another
petition in the Court of Appeals, because he thereby deliberately splits appeals in the hope
that even as one case in which a particular remedy is sought is dismissed, another case
(offering a similar remedy) would still be open; or (c) where a party attempts to obtain a writ
of preliminary injunction from a court after failing to obtain the writ from another court.[19]

What is truly important to consider in determining whether forum shopping exists or not is
the vexation caused to the courts and the litigants by a party who accesses different courts
and administrative agencies to rule on the same or related causes or to grant the same or
substantially the same reliefs, in the process creating the possibility of conflicting decisions
being rendered by the different fora upon the same issue.[20]

The filing of identical petitions in different courts is prohibited, because such act constitutes
forum shopping, a malpractice that is proscribed and condemned as trifling with the courts
and as abusing their processes. Forum shopping is an improper conduct that degrades the
administration of justice.[21]

Nonetheless, the mere filing of several cases based on the same incident does not
necessarily constitute forum shopping. The test is whether the several actions filed involve
the same transactions and the same essential facts and circumstances.[22] The actions must
also raise identical causes of action, subject matter, and issues.[23] Elsewise stated, forum
shopping exists where the elements of litis pendentia are present, or where a final judgment
in one case will amount to res judicata in the other.[24]

Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him as the
second nominee of CIBAC upon the issuance of NBC Resolution No. 07-72 (announcing
CIBACs entitlement to an additional seat in the House of Representatives), and to strike down
the provision in NBC Resolution No. 07-60 and NBC Resolution No. 07-72 holding in
abeyance all proclamation of the nominees of concerned parties, organizations and
coalitions with pending disputes shall likewise be held in abeyance until final resolution of
their respective cases. He has insisted that the COMELEC had the ministerial duty to
proclaim him due to his being CIBACs second nominee; and that the COMELEC had no
authority to exercise discretion and to suspend or defer the proclamation of winning party-
list organizations with pending disputes.

On the other hand, Lokin has resorted to the petition for certiorari to assail the September 14,
2007 resolution of the COMELEC (approving the withdrawal of the nomination of Lokin,
Tugna and Galang and the substitution by Cruz-Gonzales as the second nominee and Borje
as the third nominee); and to challenge the validity of Section 13 of Resolution No. 7804, the
COMELECs basis for allowing CIBACs withdrawal of Lokins nomination.
Applying the test for forum shopping, the consecutive filing of the action for certiorari and
the action for mandamus did not violate the rule against forum shopping even if the actions
involved the same parties, because they were based on different causes of action and the
reliefs they sought were different.

Invalidity of Section 13 of Resolution No. 7804

The legislative power of the Government is vested exclusively in the Legislature in

accordance with the doctrine of separation of powers. As a general rule, the Legislature
cannot surrender or abdicate its legislative power, for doing so will be unconstitutional.
Although the power to make laws cannot be delegated by the Legislature to any other
authority, a power that is not legislative in character may be delegated.[25]

Under certain circumstances, the Legislature can delegate to executive officers and
administrative boards the authority to adopt and promulgate IRRs. To render such delegation
lawful, the Legislature must declare the policy of the law and fix the legal principles that are
to control in given cases. The Legislature should set a definite or primary standard to guide
those empowered to execute the law. For as long as the policy is laid down and a proper
standard is established by statute, there can be no unconstitutional delegation of legislative
power when the Legislature leaves to selected instrumentalities the duty of making
subordinate rules within the prescribed limits, although there is conferred upon the executive
officer or administrative board a large measure of discretion. There is a distinction between
the delegation of power to make a law and the conferment of an authority or a discretion to
be exercised under and in pursuance of the law, for the power to make laws necessarily
involves a discretion as to what it shall be.[26]

The authority to make IRRs in order to carry out an express legislative purpose, or to effect
the operation and enforcement of a law is not a power exclusively legislative in character, but
is rather administrative in nature. The rules and regulations adopted and promulgated must
not, however, subvert or be contrary to existing statutes. The function of promulgating IRRs
may be legitimately exercised only for the purpose of carrying out the provisions of a law.
The power of administrative agencies is confined to implementing the law or putting it into
effect. Corollary to this is that administrative regulation cannot extend the law and amend a
legislative enactment. It is axiomatic that the clear letter of the law is controlling and cannot
be amended by a mere administrative rule issued for its implementation. Indeed,
administrative or executive acts shall be valid only when they are not contrary to the laws or
the Constitution.[27]
To be valid, therefore, the administrative IRRs must comply with the following requisites to
be valid:[28]

1. Its promulgation must be authorized by the Legislature;

2. It must be within the scope of the authority given by the Legislature;

3. It must be promulgated in accordance with the prescribed procedure; and

4. It must be reasonable.

The COMELEC is constitutionally mandated to enforce and administer all laws and
regulations relative to the conduct of an election, a plebiscite, an initiative, a referendum, and
a recall.[29] In addition to the powers and functions conferred upon it by the Constitution, the
COMELEC is also charged to promulgate IRRs implementing the provisions of the Omnibus
Election Code or other laws that the COMELEC enforces and administers.[30]

The COMELEC issued Resolution No. 7804 pursuant to its powers under the Constitution,
Batas Pambansa Blg. 881, and the Party-List System Act.[31] Hence, the COMELEC met the
first requisite.

The COMELEC also met the third requisite. There is no question that Resolution No. 7804
underwent the procedural necessities of publication and dissemination in accordance with
the procedure prescribed in the resolution itself.

Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on the basis
of whether the second and fourth requisites were met. It is in this respect that the challenge
of Lokin against Section 13 succeeds.
As earlier said, the delegated authority must be properly exercised. This simply means that
the resulting IRRs must not be ultra vires as to be issued beyond the limits of the authority
conferred. It is basic that an administrative agency cannot amend an act of Congress,[32] for
administrative IRRs are solely intended to carry out, not to supplant or to modify, the law. The
administrative agency issuing the IRRs may not enlarge, alter, or restrict the provisions of the
law it administers and enforces, and cannot engraft additional non-contradictory
requirements not contemplated by the Legislature.[33]

Section 8 of R.A. No. 7941 reads:

Section 8. Nomination of Party-List Representatives.-Each registered party, organization or

coalition shall submit to the COMELEC not later that forty-five (45) days before the election a
list of names, not less than five (5), from which party-list representatives shall be chosen in
case it obtains the required number of votes.

A person may be nominated in one (1) list only. Only persons who have given their consent in
writing may be named in the list. The list shall not include any candidate of any elective office
or a person who has lost his bid for an elective office in the immediately preceding election.
No change of names or alteration of the order of nominees shall be allowed after the same
shall have been submitted to the COMELEC except in cases where the nominee dies, or
withdraws in writing his nomination, becomes incapacitated in which case the name of the
substitute nominee shall be placed last in the list. Incumbent sectoral representatives in the
House of Representatives who are nominated in the party-list system shall not be considered
resigned.

The provision is daylight clear. The Legislature thereby deprived the party-list organization of
the right to change its nominees or to alter the order of nominees once the list is submitted to
the COMELEC, except when: (a) the nominee dies; (b) the nominee withdraws in writing his
nomination; or (c) the nominee becomes incapacitated. The provision must be read literally
because its language is plain and free from ambiguity, and expresses a single, definite, and
sensible meaning. Such meaning is conclusively presumed to be the meaning that the
Legislature has intended to convey. Even where the courts should be convinced that the
Legislature really intended some other meaning, and even where the literal interpretation
should defeat the very purposes of the enactment, the explicit declaration of the Legislature
is still the law, from which the courts must not depart.[34] When the law speaks in clear and
categorical language, there is no reason for interpretation or construction, but only for
application.[35] Accordingly, an administrative agency tasked to implement a statute may not
construe it by expanding its meaning where its provisions are clear and unambiguous.[36]
The legislative intent to deprive the party-list organization of the right to change the
nominees or to alter the order of the nominees was also expressed during the deliberations
of the Congress, viz:

MR. LAGMAN: And again on Section 5, on the nomination of party list representatives, I do
not see any provision here which prohibits or for that matter allows the nominating party to
change the nominees or to alter the order of prioritization of names of nominees. Is the
implication correct that at any time after submission the names could still be changed or the
listing altered?

MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished Gentleman
from Albay and perhaps a perfecting amendment may be introduced therein. The sponsoring
committee will gladly consider the same.

MR. LAGMAN: In other words, what I would like to see is that after the list is submitted to the
COMELEC officially, no more changes should be made in the names or in the order of listing.

MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a particular nominee
has been submitted to the Commission on Elections but before election day the nominee
changed his political party affiliation. The nominee is therefore no longer qualified to be
included in the party list and the political party has a perfect right to change the name of that
nominee who changed his political party affiliation.

MR. LAGMAN: Yes of course. In that particular case, the change can be effected but will be
the exception rather than the rule. Another exception most probably is the nominee dies, then
there has to be a change but any change for that matter should always be at the last part of
the list so that the prioritization made by the party will not be adversely affected.[37]

The usage of No in Section 8 No change of names or alteration of the order of nominees shall
be allowed after the same shall have been submitted to the COMELEC except in cases where
the nominee dies, or withdraws in writing his nomination, or becomes incapacitated, in which
case the name of the substitute nominee shall be placed last in the list renders Section 8 a
negative law, and is indicative of the legislative intent to make the statute mandatory.
Prohibitive or negative words can rarely, if ever, be directory, for there is but one way to obey
the command thou shall not, and that is to completely refrain from doing the forbidden
act,[38] subject to certain exceptions stated in the law itself, like in this case.

Section 8 does not unduly deprive the party-list organization of its right to choose its
nominees, but merely divests it of the right to change its nominees or to alter the order in the
list of its nominees names after submission of the list to the COMELEC.

The prohibition is not arbitrary or capricious; neither is it without reason on the part of
lawmakers. The COMELEC can rightly presume from the submission of the list that the list
reflects the true will of the party-list organization. The COMELEC will not concern itself with
whether or not the list contains the real intended nominees of the party-list organization, but
will only determine whether the nominees pass all the requirements prescribed by the law
and whether or not the nominees possess all the qualifications and none of the
disqualifications. Thereafter, the names of the nominees will be published in newspapers of
general circulation. Although the people vote for the party-list organization itself in a party-
list system of election, not for the individual nominees, they still have the right to know who
the nominees of any particular party-list organization are. The publication of the list of the
party-list nominees in newspapers of general circulation serves that right of the people,
enabling the voters to make intelligent and informed choices. In contrast, allowing the party-
list organization to change its nominees through withdrawal of their nominations, or to alter
the order of the nominations after the submission of the list of nominees circumvents the
voters demand for transparency. The lawmakers exclusion of such arbitrary withdrawal has
eliminated the possibility of such circumvention.

Exceptions in Section 8 of R.A. 7941 are exclusive

Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list
organization can substitute another person in place of the nominee whose name has been
submitted to the COMELEC, namely: (a) when the nominee dies; (b) when the nominee
withdraws in writing his nomination; and (c) when the nominee becomes incapacitated.

The enumeration is exclusive, for, necessarily, the general rule applies to all cases not falling
under any of the three exceptions.
When the statute itself enumerates the exceptions to the application of the general rule, the
exceptions are strictly but reasonably construed. The exceptions extend only as far as their
language fairly warrants, and all doubts should be resolved in favor of the general provision
rather than the exceptions. Where the general rule is established by a statute with
exceptions, none but the enacting authority can curtail the former. Not even the courts may
add to the latter by implication, and it is a rule that an express exception excludes all others,
although it is always proper in determining the applicability of the rule to inquire whether, in a
particular case, it accords with reason and justice.[39]

The appropriate and natural office of the exception is to exempt something from the scope of
the general words of a statute, which is otherwise within the scope and meaning of such
general words. Consequently, the existence of an exception in a statute clarifies the intent
that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of
strict construction; hence, any doubt will be resolved in favor of the general provision and
against the exception. Indeed, the liberal construction of a statute will seem to require in
many circumstances that the exception, by which the operation of the statute is limited or
abridged, should receive a restricted construction.

Section 13 of Resolution No. 7804 expanded

the exceptions under Section 8 of R.A. No. 7941

Section 13 of Resolution No. 7804 states:

Section 13. Substitution of nominees. A party-list nominee may be substituted only when he
dies, or his nomination is withdrawn by the party, or he becomes incapacitated to continue as
such, or he withdraws his acceptance to a nomination. In any of these cases, the name of the
substitute nominee shall be placed last in the list of nominees.

No substitution shall be allowed by reason of withdrawal after the polls.

Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the fourth
being when the nomination is withdrawn by the party.
Lokin insists that the COMELEC gravely abused its discretion in expanding to four the three
statutory grounds for substituting a nominee.

We agree with Lokin.

The COMELEC, despite its role as the implementing arm of the Government in the
enforcement and administration of all laws and regulations relative to the conduct of an
election,[40] has neither the authority nor the license to expand, extend, or add anything to
the law it seeks to implement thereby. The IRRs the COMELEC issues for that purpose should
always accord with the law to be implemented, and should not override, supplant, or modify
the law. It is basic that the IRRs should remain consistent with the law they intend to carry
out.[41]

Indeed, administrative IRRs adopted by a particular department of the Government under

legislative authority must be in harmony with the provisions of the law, and should be for the
sole purpose of carrying the laws general provisions into effect. The law itself cannot be
expanded by such IRRs, because an administrative agency cannot amend an act of
Congress.[42]

The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing to Section
8 of R.A. No. 7941,[43] because it has merely reworded and rephrased the statutory
provisions phraseology.

The explanation does not persuade.

To reword means to alter the wording of or to restate in other words; to rephrase is to phrase
anew or in a new form.[44] Both terms signify that the meaning of the original word or phrase
is not altered.

However, the COMELEC did not merely reword or rephrase the text of Section 8 of R.A. No.
7941, because it established an entirely new ground not found in the text of the provision.
The new ground granted to the party-list organization the unilateral right to withdraw its
nomination already submitted to the COMELEC, which Section 8 of R.A. No. 7941 did not
allow to be done. Neither was the grant of the unilateral right contemplated by the drafters of
the law, who precisely denied the right to withdraw the nomination (as the quoted record of
the deliberations of the House of Representatives has indicated). The grant thus conflicted
with the statutory intent to save the nominee from falling under the whim of the party-list
organization once his name has been submitted to the COMELEC, and to spare the electorate
from the capriciousness of the party-list organizations.
We further note that the new ground would not secure the object of R.A. No. 7941 of
developing and guaranteeing a full, free and open party-list electoral system. The success of
the system could only be ensured by avoiding any arbitrariness on the part of the party-list
organizations, by seeing to the transparency of the system, and by guaranteeing that the
electorate would be afforded the chance of making intelligent and informed choices of their
party-list representatives.

The insertion of the new ground was invalid. An axiom in administrative law postulates that
administrative authorities should not act arbitrarily and capriciously in the issuance of their
IRRs, but must ensure that their IRRs are reasonable and fairly adapted to secure the end in
view. If the IRRs are shown to bear no reasonable relation to the purposes for which they
were authorized to be issued, they must be held to be invalid and should be struck down.[45]

Effect of partial nullity of Section 13 of Resolution No. 7804

An IRR adopted pursuant to the law is itself law.[46] In case of conflict between the law and
the IRR, the law prevails. There can be no question that an IRR or any of its parts not adopted
pursuant to the law is no law at all and has neither the force nor the effect of law.[47] The
invalid rule, regulation, or part thereof cannot be a valid source of any right, obligation, or
power.

Considering that Section 13 of Resolution No. 7804 to the extent that it allows the party-list
organization to withdraw its nomination already submitted to the COMELEC was invalid,
CIBACs withdrawal of its nomination of Lokin and the others and its substitution of them with
new nominees were also invalid and ineffectual. It is clear enough that any substitution of
Lokin and the others could only be for any of the grounds expressly stated in Section 8 of
R.A. No. 7941. Resultantly, the COMELECs approval of CIBACs petition of withdrawal of the
nominations and its recognition of CIBACs substitution, both through its assailed September
14, 2007 resolution, should be struck down for lack of legal basis. Thereby, the COMELEC
acted without jurisdiction, having relied on the invalidly issued Section 13 of Resolution No.
7804 to support its action.

WHEREFORE, we grant the petitions for certiorari and mandamus.

We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent that it
authorizes a party-list organization to withdraw its nomination of a nominee once it has
submitted the nomination to the Commission on Elections.

Accordingly, we annul and set aside:

(a) The resolution dated September 14, 2007 issued in E. M. No. 07-054 approving Citizens
Battle Against Corruptions withdrawal of the nominations of Luis K. Lokin, Jr., Sherwin N.
Tugna, and Emil Galang as its second, third, and fourth nominees, respectively, and ordering
their substitution by Cinchona C. Cruz-Gonzales as second nominee and Armi Jane R. Borje
as third nominee; and

(b) The proclamation by the Commission on Elections of Cinchona C. Cruz-Gonzales as a

Party-List Representative representing Citizens Battle Against Corruption in the House of
Representatives.

We order the Commission on Elections to forthwith proclaim petitioner Luis K. Lokin, Jr. as a
Party-List Representative representing Citizens Battle Against Corruption in the House of
Representatives.

We make no pronouncements on costs of suit.

SO ORDERED.

G.R. No. L-32166 October 18, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
HON. MAXIMO A. MACEREN CFI, Sta. Cruz, Laguna, JOSE BUENAVENTURA, GODOFREDO
REYES, BENJAMIN REYES, NAZARIO AQUINO and CARLO DEL ROSARIO, accused-appellees.

Office of the Solicitor General for appellant.

Rustics F. de los Reyes, Jr. for appellees.

AQUINO, J.: t.hqw

This is a case involving the validity of a 1967 regulation, penalizing electro fishing in fresh water
fisheries, promulgated by the Secretary of Agriculture and Natural Resources and the Commissioner
of Fisheries under the old Fisheries Law and the law creating the Fisheries Commission.

On March 7, 1969 Jose Buenaventura, Godofredo Reyes, Benjamin Reyes, Nazario Aquino and
Carlito del Rosario were charged by a Constabulary investigator in the municipal court of Sta. Cruz,
Laguna with having violated Fisheries Administrative Order No. 84-1.

It was alleged in the complaint that the five accused in the morning of March 1, 1969 resorted to
electro fishing in the waters of Barrio San Pablo Norte, Sta. Cruz by "using their own motor banca,
equipped with motor; with a generator colored green with attached dynamo colored gray or
somewhat white; and electrocuting device locally known as sensored with a somewhat webbed
copper wire on the tip or other end of a bamboo pole with electric wire attachment which was
attached to the dynamo direct and with the use of these devices or equipments catches fish thru
electric current, which destroy any aquatic animals within its cuffed reach, to the detriment and
prejudice of the populace" (Criminal Case No. 5429).

Upon motion of the accused, the municipal court quashed the complaint. The prosecution appealed.
The Court of First Instance of Laguna affirmed the order of dismissal (Civil Case No. SC-36). The
case is now before this Court on appeal by the prosecution under Republic Act No. 5440.

The lower court held that electro fishing cannot be penalize because electric current is not an
obnoxious or poisonous substance as contemplated in section I I of the Fisheries Law and that it is
not a substance at all but a form of energy conducted or transmitted by substances. The lower court
further held that, since the law does not clearly prohibit electro fishing, the executive and judicial
departments cannot consider it unlawful.

As legal background, it should be stated that section 11 of the Fisheries Law prohibits "the use of
any obnoxious or poisonous substance" in fishing.

Section 76 of the same law punishes any person who uses an obnoxious or poisonous substance in
fishing with a fine of not more than five hundred pesos nor more than five thousand, and by
imprisonment for not less than six months nor more than five years.

It is noteworthy that the Fisheries Law does not expressly punish .electro fishing." Notwithstanding
the silence of the law, the Secretary of Agriculture and Natural Resources, upon the
recommendation of the Commissioner of Fisheries, promulgated Fisheries Administrative Order No.
84 (62 O.G. 1224), prohibiting electro fishing in all Philippine waters. The order is quoted below: + .w ph!1

SUBJECT: PROHIBITING ELECTRO FISHING IN ALL WATERS +.w ph!1

OF THE PHILIPPINES.

Pursuant to Section 4 of Act No. 4003, as amended, and Section 4 of R.A. No. 3512, the following
rules and regulations regarding the prohibition of electro fishing in all waters of the Philippines are
promulgated for the information and guidance of all concerned. +.w ph!1

SECTION 1. Definition. Words and terms used in this Order 11 construed as

follows:
 (a) Philippine waters or territorial waters of the Philippines' includes all waters of the
Philippine Archipelago, as defined in the t between the United States and Spain,
dated respectively the tenth of December, eighteen hundred ninety eight and the
seventh of November, nineteen hundred. For the purpose of this order, rivers, lakes
and other bodies of fresh waters are included.

(b) Electro Fishing. Electro fishing is the catching of fish with the use of electric
current. The equipment used are of many electrical devices which may be battery or
generator-operated and from and available source of electric current.

(c) 'Persons' includes firm, corporation, association, agent or employee.

(d) 'Fish' includes other aquatic products.

SEC. 2. Prohibition. It shall be unlawful for any person to engage in electro

fishing or to catch fish by the use of electric current in any portion of the Philippine
waters except for research, educational and scientific purposes which must be
covered by a permit issued by the Secretary of Agriculture and Natural Resources
which shall be carried at all times.

SEC. 3. Penalty. Any violation of the provisions of this Administrative Order

shall subject the offender to a fine of not exceeding five hundred pesos (P500.00) or
imprisonment of not extending six (6) months or both at the discretion of the Court.

SEC. 4. Repealing Provisions. All administrative orders or parts thereof

inconsistent with the provisions of this Administrative Order are hereby revoked.

SEC. 5. Effectivity. This Administrative Order shall take effect six (60) days
after its publication in the Office Gazette.

On June 28, 1967 the Secretary of Agriculture and Natural Resources, upon the recommendation of
the Fisheries Commission, issued Fisheries Administrative Order No. 84-1, amending section 2 of
Administrative Order No. 84, by restricting the ban against electro fishing to fresh water fisheries (63
O.G. 9963).

Thus, the phrase "in any portion of the Philippine waters" found in section 2, was changed by the
amendatory order to read as follows: "in fresh water fisheries in the Philippines, such as rivers,
lakes, swamps, dams, irrigation canals and other bodies of fresh water."

The Court of First Instance and the prosecution (p. 11 of brief) assumed that electro fishing is
punishable under section 83 of the Fisheries Law (not under section 76 thereof), which provides that
any other violation of that law "or of any rules and regulations promulgated thereunder shall subject
the offender to a fine of not more than two hundred pesos (P200), or in t for not more than six
months, or both, in the discretion of the court."

That assumption is incorrect because 3 of the aforequoted Administrative Order No. 84 imposes a
fm of not exceeding P500 on a person engaged in electro fishing, which amount the 83. It seems
that the Department of Fisheries prescribed their own penalty for swift fishing which penalty is less
than the severe penalty imposed in section 76 and which is not Identified to the at penalty imposed
in section 83.
Had Administrative Order No. 84 adopted the fighter penalty prescribed in on 83, then the crime of
electro fishing would be within the exclusive original jurisdiction of the inferior court (Sec. 44 [f],
Judiciary Law; People vs. Ragasi, L-28663, September 22,

We have discussed this pre point, not raised in the briefs, because it is obvious that the crime of
electro fishing which is punishable with a sum up to P500, falls within the concurrent original
jurisdiction of the inferior courts and the Court of First instance (People vs. Nazareno, L-40037, April
30, 1976, 70 SCRA 531 and the cases cited therein).

And since the instant case was filed in the municipal court of Sta. Cruz, Laguna, a provincial capital,
the order of d rendered by that municipal court was directly appealable to the Court, not to the Court
of First Instance of Laguna (Sec. 45 and last par. of section 87 of the Judiciary Law; Esperat vs.
Avila, L-25992, June 30, 1967, 20 SCRA 596).

It results that the Court of First Instance of Laguna had no appellate jurisdiction over the case. Its
order affirming the municipal court's order of dismissal is void for lack of motion. This appeal shall be
treated as a direct appeal from the municipal court to this Court. (See People vs. Del Rosario, 97
Phil. 67).

In this appeal, the prosecution argues that Administrative Orders Nos. 84 and 84-1 were not issued
under section 11 of the Fisheries Law which, as indicated above, punishes fishing by means of an
obnoxious or poisonous substance. This contention is not well-taken because, as already stated, the
Penal provision of Administrative Order No. 84 implies that electro fishing is penalized as a form of
fishing by means of an obnoxious or poisonous substance under section 11.

The prosecution cites as the legal sanctions for the prohibition against electro fishing in fresh water
fisheries (1) the rule-making power of the Department Secretary under section 4 of the Fisheries
Law; (2) the function of the Commissioner of Fisheries to enforce the provisions of the Fisheries Law
and the regulations Promulgated thereunder and to execute the rules and regulations consistent with
the purpose for the creation of the Fisheries Commission and for the development of fisheries (Sec.
4[c] and [h] Republic Act No. 3512; (3) the declared national policy to encourage, Promote and
conserve our fishing resources (Sec. 1, Republic Act No. 3512), and (4) section 83 of the Fisheries
Law which provides that "any other violation of" the Fisheries Law or of any rules and regulations
promulgated thereunder "shall subject the offender to a fine of not more than two hundred pesos, or
imprisonment for not more than six months, or both, in the discretion of the court."

As already pointed out above, the prosecution's reference to section 83 is out of place because the
penalty for electro fishing under Administrative order No. 84 is not the same as the penalty fixed in
section 83.

We are of the opinion that the Secretary of Agriculture and Natural Resources and the
Commissioner of Fisheries exceeded their authority in issuing Fisheries Administrative Orders Nos.
84 and 84-1 and that those orders are not warranted under the Fisheries Commission, Republic Act
No. 3512.

The reason is that the Fisheries Law does not expressly prohibit electro fishing. As electro fishing is
not banned under that law, the Secretary of Agriculture and Natural Resources and the
Commissioner of Fisheries are powerless to penalize it. In other words, Administrative Orders Nos.
84 and 84-1, in penalizing electro fishing, are devoid of any legal basis.

Had the lawmaking body intended to punish electro fishing, a penal provision to that effect could
have been easily embodied in the old Fisheries Law.
That law punishes (1) the use of obnoxious or poisonous substance, or explosive in fishing; (2)
unlawful fishing in deepsea fisheries; (3) unlawful taking of marine molusca, (4) illegal taking of
sponges; (5) failure of licensed fishermen to report the kind and quantity of fish caught, and (6) other
violations.

Nowhere in that law is electro fishing specifically punished. Administrative Order No. 84, in punishing
electro fishing, does not contemplate that such an offense fails within the category of "other
violations" because, as already shown, the penalty for electro fishing is the penalty next lower to the
penalty for fishing with the use of obnoxious or poisonous substances, fixed in section 76, and is not
the same as the penalty for "other violations" of the law and regulations fixed in section 83 of the
Fisheries Law.

The lawmaking body cannot delegate to an executive official the power to declare what acts should
constitute an offense. It can authorize the issuance of regulations and the imposition of the penalty
provided for in the law itself. (People vs. Exconde 101 Phil. 11 25, citing 11 Am. Jur. 965 on p. 11
32).

Originally, Administrative Order No. 84 punished electro fishing in all waters. Later, the ban against
electro fishing was confined to fresh water fisheries. The amendment created the impression that
electro fishing is not condemnable per se. It could be tolerated in marine waters. That circumstances
strengthens the view that the old law does not eschew all forms of electro fishing.

However, at present, there is no more doubt that electro fishing is punishable under the Fisheries
Law and that it cannot be penalized merely by executive revolution because Presidential Decree No.
704, which is a revision and consolidation of all laws and decrees affecting fishing and fisheries and
which was promulgated on May 16, 1975 (71 O.G. 4269), expressly punishes electro fishing in fresh
water and salt water areas.

That decree provides: +.wph!1

SEC. 33. Illegal fishing, dealing in illegally caught fish or fishery/aquatic products.
It shall he unlawful for any person to catch, take or gather or cause to be caught,
taken or gathered fish or fishery/aquatic products in Philippine waters with the use of
explosives, obnoxious or poisonous substance, or by the use of electricity as defined
in paragraphs (1), (m) and (d), respectively, of Section 3 hereof: ...

The decree Act No. 4003, as amended, Republic Acts Nos. 428, 3048, 3512 and 3586, Presidential
Decrees Nos. 43, 534 and 553, and all , Acts, Executive Orders, rules and regulations or parts
thereof inconsistent with it (Sec. 49, P. D. No. 704).

The inclusion in that decree of provisions defining and penalizing electro fishing is a clear recognition
of the deficiency or silence on that point of the old Fisheries Law. It is an admission that a mere
executive regulation is not legally adequate to penalize electro fishing.

Note that the definition of electro fishing, which is found in section 1 (c) of Fisheries Administrative
Order No. 84 and which is not provided for the old Fisheries Law, is now found in section 3(d) of the
decree. Note further that the decree penalty electro fishing by "imprisonment from two (2) to four (4)
years", a punishment which is more severe than the penalty of a time of not excluding P500 or
imprisonment of not more than six months or both fixed in section 3 of Fisheries Administrative
Order No. 84.
An examination of the rule-making power of executive officials and administrative agencies and, in
particular, of the Secretary of Agriculture and Natural Resources (now Secretary of Natural
Resources) under the Fisheries Law sustains the view that he ex his authority in penalizing electro
fishing by means of an administrative order.

Administrative agent are clothed with rule-making powers because the lawmaking body finds it
impracticable, if not impossible, to anticipate and provide for the multifarious and complex situations
that may be encountered in enforcing the law. All that is required is that the regulation should be
germane to the defects and purposes of the law and that it should conform to the standards that the
law prescribes (People vs. Exconde 101 Phil. 1125; Director of Forestry vs. Mu;oz, L-24796, June
28, 1968, 23 SCRA 1183, 1198; Geukeko vs. Araneta, 102 Phil. 706, 712).

The lawmaking body cannot possibly provide for all the details in the enforcement of a particular
statute (U.S. vs. Tupasi Molina, 29 Phil. 119, 125, citing U.S. vs. Grimaud 220 U.S. 506;
Interprovincial Autobus Co., Inc. vs. Coll. of Internal Revenue, 98 Phil. 290, 295-6).

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondeleption of legislative, powers. Administrative
regulations or "subordinate legislation calculated to promote the public interest are necessary
because of "the growing complexity of modem life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law" Calalang vs. Williams, 70 Phil. 726;
People vs. Rosenthal and Osme;a, 68 Phil. 328).

Administrative regulations adopted under legislative authority by a particular department must be in

harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its
general provisions. By such regulations, of course, the law itself cannot be extended. (U.S. vs.
Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos vs.
Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the d of Administrators, L-25619, June 30,
1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA
660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350).

The rule-making power must be confined to details for regulating the mode or proceeding to carry
into effect the law as it his been enacted. The power cannot be extended to amending or expanding
the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the
statute cannot be sanctioned. (University of Santo Tomas vs. Board of Tax A 93 Phil. 376, 382,
citing 12 C.J. 845-46. As to invalid regulations, see of Internal Revenue vs. Villaflor 69 Phil. 319,
Wise & Co. vs. Meer, 78 Phil. 655, 676; Del March vs. Phil. Veterans Administrative, L-27299, June
27, 1973, 51 SCRA 340, 349).

There is no question that the Secretary of Agriculture and Natural Resources has rule-making
powers. Section 4 of the Fisheries law provides that the Secretary "shall from time to time issue
instructions, orders, and regulations consistent" with that law, "as may be and proper to carry into
effect the provisions thereof." That power is now vested in the Secretary of Natural Resources by on
7 of the Revised Fisheries law, Presidential December No. 704.

Section 4(h) of Republic Act No. 3512 empower the Co of Fisheries "to prepare and execute upon
the approval of the Secretary of Agriculture and Natural Resources, forms instructions, rules and
regulations consistent with the purpose" of that enactment "and for the development of fisheries."

Section 79(B) of the Revised Administrative Code provides that "the Department Head shall have
the power to promulgate, whenever he may see fit do so, all rules, regulates, orders, memorandums,
and other instructions, not contrary to law, to regulate the proper working and harmonious and
efficient administration of each and all of the offices and dependencies of his Department, and for
the strict enforcement and proper execution of the laws relative to matters under the jurisdiction of
said Department; but none of said rules or orders shall prescribe penalties for the violation thereof,
except as expressly authorized by law."

Administrative regulations issued by a Department Head in conformity with law have the force of law
(Valerie vs. Secretary of culture and Natural Resources, 117 Phil. 729, 733; Antique Sawmills, Inc.
vs. Zayco, L- 20051, May 30, 1966, 17 SCRA 316). As he exercises the rule-making power by
delegation of the lawmaking body, it is a requisite that he should not transcend the bound
demarcated by the statute for the exercise of that power; otherwise, he would be improperly
exercising legislative power in his own right and not as a surrogate of the lawmaking body.

Article 7 of the Civil Code embodies the basic principle that administrative or executive acts, orders
and regulations shall be valid only when they are not contrary to the laws or the Constitution."

As noted by Justice Fernando, "except for constitutional officials who can trace their competence to
act to the fundamental law itself, a public office must be in the statute relied upon a grant of power
before he can exercise it." "department zeal may not be permitted to outrun the authority conferred
by statute." (Radio Communications of the Philippines, Inc. vs. Santiago, L-29236, August 21, 1974,
58 SCRA 493, 496-8).

"Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon
the administrative agency by law, partake of the nature of a statute, and compliance therewith may
be enforced by a penal sanction provided in the law. This is so because statutes are usually
couched in general terms, after expressing the policy, purposes, objectives, remedies and sanctions
intended by the legislature. The details and the manner of carrying out the law are oftentimes left to
the administrative agency entrusted with its enforcement. In this sense, it has been said that rules
and regulations are the product of a delegated power to create new or additional legal provisions
that have the effect of law." The rule or regulation should be within the scope of the statutory
authority granted by the legislature to the administrative agency. (Davis, Administrative Law, p. 194,
197, cited in Victories Milling Co., Inc. vs. Social Security Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to implement said law,
the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of
the basic law (People vs. Lim, 108 Phil. 1091).

This Court in its decision in the Lim case, supra, promulgated on July 26, 1960, called the attention
of technical men in the executive departments, who draft rules and regulations, to the importance
and necessity of closely following the legal provisions which they intend to implement so as to avoid
any possible misunderstanding or confusion.

The rule is that the violation of a regulation prescribed by an executive officer of the government in
conformity with and based upon a statute authorizing such regulation constitutes an offense and
renders the offender liable to punishment in accordance with the provisions of the law (U.S. vs.
Tupasi Molina, 29 Phil. 119, 124).

In other words, a violation or infringement of a rule or regulation validly issued can constitute a crime
punishable as provided in the authorizing statute and by virtue of the latter (People vs. Exconde 101
Phil. 1125, 1132).
It has been held that "to declare what shall constitute a crime and how it shall be punished is a
power vested exclusively in the legislature, and it may not be delegated to any other body or agency"
(1 Am. Jur. 2nd, sec. 127, p. 938; Texas Co. vs. Montgomery, 73 F. Supp. 527).

In the instant case the regulation penalizing electro fishing is not strictly in accordance with the
Fisheries Law, under which the regulation was issued, because the law itself does not expressly
punish electro fishing.

The instant case is similar to People vs. Santos, 63 Phil. 300. The Santos case involves section 28
of Fish and Game Administrative Order No. 2 issued by the Secretary of Agriculture and Natural
Resources pursuant to the aforementioned section 4 of the Fisheries Law.

Section 28 contains the proviso that a fishing boat not licensed under the Fisheries Law and under
the said administrative order may fish within three kilometers of the shoreline of islands and
reservations over which jurisdiction is exercised by naval and military reservations authorities of the
United States only upon receiving written permission therefor, which permission may be granted by
the Secretary upon recommendation of the military or naval authorities concerned. A violation of the
proviso may be proceeded against under section 45 of the Federal Penal Code.

Augusto A. Santos was prosecuted under that provision in the Court of First Instance of Cavite for
having caused his two fishing boats to fish, loiter and anchor without permission from the Secretary
within three kilometers from the shoreline of Corrigidor Island.

This Court held that the Fisheries Law does not prohibit boats not subject to license from fishing
within three kilometers of the shoreline of islands and reservations over which jurisdiction is
exercised by naval and military authorities of the United States, without permission from the
Secretary of Agriculture and Natural Resources upon recommendation of the military and naval
authorities concerned.

As the said law does not penalize the act mentioned in section 28 of the administrative order, the
promulgation of that provision by the Secretary "is equivalent to legislating on the matter, a power
which has not been and cannot be delegated to him, it being expressly reserved" to the lawmaking
body. "Such an act constitutes not only an excess of the regulatory power conferred upon the
Secretary but also an exercise of a legislative power which he does not have, and therefore" the said
provision "is null and void and without effect". Hence, the charge against Santos was dismiss.

A penal statute is strictly construed. While an administrative agency has the right to make ranks and
regulations to carry into effect a law already enacted, that power should not be confused with the
power to enact a criminal statute. An administrative agency can have only the administrative or
policing powers expressly or by necessary implication conferred upon it. (Glustrom vs. State, 206
Ga. 734, 58 Second 2d 534; See 2 Am. Jr. 2nd 129-130).

Where the legislature has delegated to executive or administrative officers and boards authority to
promulgate rules to carry out an express legislative purpose, the rules of administrative officers and
boards, which have the effect of extending, or which conflict with the authority granting statute, do
not represent a valid precise of the rule-making power but constitute an attempt by an administrative
body to legislate (State vs. Miles, Wash. 2nd 322, 105 Pac. 2nd 51).

In a prosecution for a violation of an administrative order, it must clearly appear that the order is one
which falls within the scope of the authority conferred upon the administrative body, and the order
will be scrutinized with special care. (State vs. Miles supra).
The Miles case involved a statute which authorized the State Game Commission "to adopt,
promulgate, amend and/or repeal, and enforce reasonable rules and regulations governing and/or
prohibiting the taking of the various classes of game.

Under that statute, the Game Commission promulgated a rule that "it shall be unlawful to offer, pay
or receive any reward, prize or compensation for the hunting, pursuing, taking, killing or displaying of
any game animal, game bird or game fish or any part thereof."

Beryl S. Miles, the owner of a sporting goods store, regularly offered a ten-down cash prize to the
person displaying the largest deer in his store during the open for hunting such game animals. For
that act, he was charged with a violation of the rule Promulgated by the State Game Commission.

It was held that there was no statute penalizing the display of game. What the statute penalized was
the taking of game. If the lawmaking body desired to prohibit the display of game, it could have
readily said so. It was not lawful for the administrative board to extend or modify the statute. Hence,
the indictment against Miles was quashed. The Miles case is similar to this case.

WHEREFORE, the lower court's decision of June 9, 1970 is set aside for lack of appellate
jurisdiction and the order of dismissal rendered by the municipal court of Sta. Cruz, Laguna in
Criminal Case No. 5429 is affirmed. Costs de oficio.

SO ORDERED.

EN BANC

G.R. No. 166715 August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S.

ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN
R. SANDOVAL, petitioners,

vs.

HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.

PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON.
ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents.

DECISION

CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and enforcing
Republic Act (RA) 93352 (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to
encourage BIR and BOC officials and employees to exceed their revenue targets by providing
a system of rewards and sanctions through the creation of a Rewards and Incentives Fund
(Fund) and a Revenue Performance Evaluation Board (Board).3 It covers all officials and
employees of the BIR and the BOC with at least six months of service, regardless of
employment status.4

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue
targets for the year, as determined by the Development Budget and Coordinating Committee
(DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the BOC
in proportion to their contribution in the excess collection of the targeted amount of tax
revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of
Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and
Management (DBM) or his/her Undersecretary, the Director General of the National Economic
Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the
BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their recognized
organization.6

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation,
distribution and release of the Fund; (2) set criteria and procedures for removing from the
service officials and employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a
system for performance evaluation; (5) perform other functions, including the issuance of
rules and regulations and (6) submit an annual report to Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and regulations of RA 9335,8 to be approved by
a Joint Congressional Oversight Committee created for such purpose.9

Petitioners, invoking their right as taxpayers filed this petition challenging the
constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing a
system of rewards and incentives, the law "transform[s] the officials and employees of the
BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in
consideration of such rewards. Thus, the system of rewards and incentives invites corruption
and undermines the constitutionally mandated duty of these officials and employees to serve
the people with utmost responsibility, integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and incentives only to
officials and employees of the BIR and the BOC violates the constitutional guarantee of equal
protection. There is no valid basis for classification or distinction as to why such a system
should not apply to officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets
to the President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of
RA 9335 provides that BIR and BOC officials may be dismissed from the service if their
revenue collections fall short of the target by at least 7.5%, the law does not, however, fix the
revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to
the President without sufficient standards. It will therefore be easy for the President to fix an
unrealistic and unattainable target in order to dismiss BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground
that it violates the doctrine of separation of powers. While the legislative function is deemed
accomplished and completed upon the enactment and approval of the law, the creation of the
congressional oversight committee permits legislative participation in the implementation
and enforcement of the law.

In their comment, respondents, through the Office of the Solicitor General, question the
petition for being premature as there is no actual case or controversy yet. Petitioners have
not asserted any right or claim that will necessitate the exercise of this Courts jurisdiction.
Nevertheless, respondents acknowledge that public policy requires the resolution of the
constitutional issues involved in this case. They assert that the allegation that the reward
system will breed mercenaries is mere speculation and does not suffice to invalidate the law.
Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR
and the BOC because the functions they perform are distinct from those of the other
government agencies and instrumentalities. Moreover, the law provides a sufficient standard
that will guide the executive in the implementation of its provisions. Lastly, the creation of the
congressional oversight committee under the law enhances, rather than violates, separation
of powers. It ensures the fulfillment of the legislative policy and serves as a check to any
over-accumulation of power on the part of the executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that
petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335,
except as shall hereafter be discussed.
Actual Case And Ripeness

An actual case or controversy involves a conflict of legal rights, an assertion of opposite

legal claims susceptible of judicial adjudication.10 A closely related requirement is ripeness,
that is, the question must be ripe for adjudication. And a constitutional question is ripe for
adjudication when the governmental act being challenged has a direct adverse effect on the
individual challenging it.11 Thus, to be ripe for judicial adjudication, the petitioner must show
a personal stake in the outcome of the case or an injury to himself that can be redressed by a
favorable decision of the Court.12

In this case, aside from the general claim that the dispute has ripened into a judicial
controversy by the mere enactment of the law even without any further overt act,13
petitioners fail either to assert any specific and concrete legal claim or to demonstrate any
direct adverse effect of the law on them. They are unable to show a personal stake in the
outcome of this case or an injury to themselves. On this account, their petition is
procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues
raised by petitioners. The grave nature of their allegations tends to cast a cloud on the
presumption of constitutionality in favor of the law. And where an action of the legislative
branch is alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute.14

Accountability of

Public Officers

Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism, and justice, and lead modest lives.

Public office is a public trust. It must be discharged by its holder not for his own personal
gain but for the benefit of the public for whom he holds it in trust. By demanding
accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and
justice, all government officials and employees have the duty to be responsive to the needs
of the people they are called upon to serve.

Public officers enjoy the presumption of regularity in the performance of their duties. This
presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335
operates on the basis thereof and reinforces it by providing a system of rewards and
sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC
to exceed their revenue targets and optimize their revenue-generation capability and
collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be
overturned by mere conjecture or denied in advance (as petitioners would have the Court do)
specially in this case where it is an underlying principle to advance a declared public policy.

Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and
employees into "bounty hunters and mercenaries" is not only without any factual and legal
basis; it is also purely speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its
nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful
and equivocal one.16 To invalidate RA 9335 based on petitioners baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also of the executive which
approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for
exemplary and exceptional performance. A system of incentives for exceeding the set
expectations of a public office is not anathema to the concept of public accountability. In fact,
it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public
service of deserving government personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to
officers of the customs as well as other parties an amount not exceeding one-half of the net
proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v.
United States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal
and industry in detecting fraudulent attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when,
as a consequence of their zeal in the enforcement of tax and customs laws, they exceed their
revenue targets. In addition, RA 9335 establishes safeguards to ensure that the reward will
not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the
product of the irregular performance of official duties. One of these precautionary measures
is embodied in Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The
officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who
are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise
extraordinary diligence in the performance of their duties shall be held liable for any loss or
injury suffered by any business establishment or taxpayer as a result of such violation,
negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the same conditions
and among persons similarly situated; it is equality among equals, not similarity of treatment
of persons who are classified based on substantial differences in relation to the object to be
accomplished.19 When things or persons are different in fact or circumstance, they may be
treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20 this Court
declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid
the constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object to which it is directed or by
the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it
be reasonable, which means that the classification should be based on substantial
distinctions which make for real differences, that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must apply equally to
each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion.
It is not necessary that the classification be based on scientific or marked differences of
things or in their relation. Neither is it necessary that the classification be made with
mathematical nicety. Hence, legislative classification may in many cases properly rest on
narrow distinctions, for the equal protection guaranty does not preclude the legislature from
recognizing degrees of evil or harm, and legislation is addressed to evils as they may
appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has
a reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its
expressed public policy is the optimization of the revenue-generation capability and
collection of the BIR and the BOC.23 Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in
the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR
and the BOC because they have the common distinct primary function of generating
revenues for the national government through the collection of taxes, customs duties, fees
and charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal
Revenue, who shall be appointed by the President upon the recommendation of the Secretary
[of the DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and
duties;

(3) Prevent and prosecute tax evasions and all other illegal economic activities;

(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law.24

xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and
subject to the management and control of the Commissioner of Customs, who shall be
appointed by the President upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs laws;

(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports
of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and
aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its
jurisdiction;

(8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law.25

xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special
function of being the instrumentalities through which the State exercises one of its great
inherent functions taxation. Indubitably, such substantial distinction is germane and
intimately related to the purpose of the law. Hence, the classification and treatment accorded
to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection.

Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness test
and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to
be executed, carried out or implemented by the delegate.26 It lays down a sufficient standard
when it provides adequate guidelines or limitations in the law to map out the boundaries of
the delegates authority and prevent the delegation from running riot.27 To be sufficient, the
standard must specify the limits of the delegates authority, announce the legislative policy
and identify the conditions under which it is to be implemented.28
RA 9335 adequately states the policy and standards to guide the President in fixing revenue
targets and the implementing agencies in carrying out the provisions of the law. Section 2
spells out the policy of the law:

SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions through the creation of a Rewards
and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for
the purpose of encouraging their officials and employees to exceed their revenue targets.

Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the
President to fix revenue targets:

SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred
to as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in
excess of their respective revenue targets of the year, as determined by the Development
Budget and Coordinating Committee (DBCC), in the following percentages:

Excess of Collection of the Excess the Revenue Targets

Percent (%) of the Excess Collection to Accrue to the Fund

30% or below

15%

More than 30%

15% of the first 30% plus 20% of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year
when the revenue collection target was exceeded and shall be released on the same fiscal
year.

Revenue targets shall refer to the original estimated revenue collection expected of the BIR
and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of
Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit
to the DBCC the distribution of the agencies revenue targets as allocated among its revenue
districts in the case of the BIR, and the collection districts in the case of the BOC.

xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected
respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and
stated in the BESF submitted by the President to Congress.30 Thus, the determination of
revenue targets does not rest solely on the President as it also undergoes the scrutiny of the
DBCC.

On the other hand, Section 7 specifies the limits of the Boards authority and identifies the
conditions under which officials and employees whose revenue collection falls short of the
target by at least 7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the
following powers and functions:

xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent (7.5%),
with due consideration of all relevant factors affecting the level of collection as provided in
the rules and regulations promulgated under this Act, subject to civil service laws, rules and
regulations and compliance with substantive and procedural due process: Provided, That the
following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, as has no historical record of collection performance that can be used as basis for
evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle of
the period under consideration unless the transfer was due to nonperformance of revenue
targets or potential nonperformance of revenue targets: Provided, however, That when the
district or area of responsibility covered by revenue or customs officials or employees has
suffered from economic difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination shall be considered only
after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding
paragraph: Provided, That such decision shall be immediately executory: Provided, further,
That the application of the criteria for the separation of an official or employee from service
under this Act shall be without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;

xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the
BIR and the BOC. The guarantee of security of tenure only means that an employee cannot be
dismissed from the service for causes other than those provided by law and only after due
process is accorded the employee.31 In the case of RA 9335, it lays down a reasonable
yardstick for removal (when the revenue collection falls short of the target by at least 7.5%)
with due consideration of all relevant factors affecting the level of collection. This standard is
analogous to inefficiency and incompetence in the performance of official duties, a ground
for disciplinary action under civil service laws.32 The action for removal is also subject to
civil service laws, rules and regulations and compliance with substantive and procedural due
process.

At any rate, this Court has recognized the following as sufficient standards: "public interest,"
"justice and equity," "public convenience and welfare" and "simplicity, economy and
welfare."33 In this case, the declared policy of optimization of the revenue-generation
capability and collection of the BIR and the BOC is infused with public interest.

Separation Of Powers
Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint
Congressional Oversight Committee composed of seven Members from the Senate and
seven Members from the House of Representatives. The Members from the Senate shall be
appointed by the Senate President, with at least two senators representing the minority. The
Members from the House of Representatives shall be appointed by the Speaker with at least
two members representing the minority. After the Oversight Committee will have approved
the implementing rules and regulations (IRR) it shall thereafter become functus officio and
therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of
approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA,
BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became
functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the
executive function of implementing and enforcing the law may be considered moot and
academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue
of the constitutionality of the Joint Congressional Oversight Committee created under RA
9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of
congressional oversight in Macalintal v. Commission on Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress to
enhance its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a)
to monitor bureaucratic compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (d) to assess executive conformity
with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power itself
and integral to the checks and balances inherent in a democratic system of government. x x x
xxxxxx

Over the years, Congress has invoked its oversight power with increased frequency to check
the perceived "exponential accumulation of power" by the executive branch. By the
beginning of the 20th century, Congress has delegated an enormous amount of legislative
authority to the executive branch and the administrative agencies. Congress, thus, uses its
oversight power to make sure that the administrative agencies perform their functions within
the authority delegated to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be
divided into three categories, namely: scrutiny, investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to administrative

operations. Its primary purpose is to determine economy and efficiency of the operation of
government activities. In the exercise of legislative scrutiny, Congress may request
information and report from the other branches of government. It can give recommendations
or pass resolutions for consideration of the agency involved.

xxx xxx xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are
readily available, congressional investigation involves a more intense digging of facts. The
power of Congress to conduct investigation is recognized by the 1987 Constitution under
section 21, Article VI, xxx xxx xxx
c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is
thru legislative supervision. "Supervision" connotes a continuing and informed awareness
on the part of a congressional committee regarding executive operations in a given
administrative area. While both congressional scrutiny and investigation involve inquiry into
past executive branch actions in order to influence future executive branch performance,
congressional supervision allows Congress to scrutinize the exercise of delegated law-
making authority, and permits Congress to retain part of that delegated authority.

Congress exercises supervision over the executive agencies through its veto power. It
typically utilizes veto provisions when granting the President or an executive agency the
power to promulgate regulations with the force of law. These provisions require the President
or an agency to present the proposed regulations to Congress, which retains a "right" to
approve or disapprove any regulation before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will become a law after the expiration of a certain
period of time, only if Congress does not affirmatively disapprove of the regulation in the
meantime. Less frequently, the statute provides that a proposed regulation will become law if
Congress affirmatively approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of power
between the legislative and the executive branches of government as it offers lawmakers a
way to delegate vast power to the executive branch or to independent agencies while
retaining the option to cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement promotes
democratic accountability as it provides legislative check on the activities of unelected
administrative agencies. One proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply embedded
in our law and practice. It suffices to say that the complexities of modern government have
often led Congress-whether by actual or perceived necessity- to legislate by declaring broad
policy goals and general statutory standards, leaving the choice of policy options to the
discretion of an executive officer. Congress articulates legislative aims, but leaves their
implementation to the judgment of parties who may or may not have participated in or agreed
with the development of those aims. Consequently, absent safeguards, in many instances the
reverse of our constitutional scheme could be effected: Congress proposes, the Executive
disposes. One safeguard, of course, is the legislative power to enact new legislation or to
change existing law. But without some means of overseeing post enactment activities of the
executive branch, Congress would be unable to determine whether its policies have been
implemented in accordance with legislative intent and thus whether legislative intervention is
appropriate.
Its opponents, however, criticize the legislative veto as undue encroachment upon the
executive prerogatives. They urge that any post-enactment measures undertaken by the
legislative branch should be limited to scrutiny and investigation; any measure beyond that
would undermine the separation of powers guaranteed by the Constitution. They contend
that legislative veto constitutes an impermissible evasion of the Presidents veto authority
and intrusion into the powers vested in the executive or judicial branches of government.
Proponents counter that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too much power. They
submit that reporting requirements and congressional committee investigations allow
Congress to scrutinize only the exercise of delegated law-making authority. They do not
allow Congress to review executive proposals before they take effect and they do not afford
the opportunity for ongoing and binding expressions of congressional intent. In contrast,
legislative veto permits Congress to participate prospectively in the approval or disapproval
of "subordinate law" or those enacted by the executive branch pursuant to a delegation of
authority by Congress. They further argue that legislative veto "is a necessary response by
Congress to the accretion of policy control by forces outside its chambers." In an era of
delegated authority, they point out that legislative veto "is the most efficient means Congress
has yet devised to retain control over the evolution and implementation of its policy as
declared by statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a resolution vetoing the
suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to
invalidate the decision of the executive branch to allow a particular deportable alien to remain
in the United States. The immigration judge reopened the deportation proceedings to
implement the House order and the alien was ordered deported. The Board of Immigration
Appeals dismissed the aliens appeal, holding that it had no power to declare
unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit
held that the House was without constitutional authority to order the aliens deportation and
that 244(c)(2) violated the constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied
away from the issue of separation of powers and instead held that the provision violates the
presentment clause and bicameralism. It held that the one-house veto was essentially
legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of
the Constitution requiring the passage by a majority of both Houses and presentment to the
President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower
court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of
1978 and the Federal Trade Commission Improvement Act of 1980. Following this
precedence, lower courts invalidated statutes containing legislative veto provisions although
some of these provisions required the approval of both Houses of Congress and thus met the
bicameralism requirement of Article I. Indeed, some of these veto provisions were not even
exercised.35 (emphasis supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight
and considering the nature and powers of a constitutional body like the Commission on
Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting
Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only
to monitor and evaluate the implementation of the said law but also to review, revise, amend
and approve the IRR promulgated by the Commission on Elections. The Court held that these
functions infringed on the constitutional independence of the Commission on Elections.36

With this backdrop, it is clear that congressional oversight is not unconstitutional per se,
meaning, it neither necessarily constitutes an encroachment on the executive power to
implement laws nor undermines the constitutional separation of powers. Rather, it is integral
to the checks and balances inherent in a democratic system of government. It may in fact
even enhance the separation of powers as it prevents the over-accumulation of power in the
executive branch.

However, to forestall the danger of congressional encroachment "beyond the legislative

sphere," the Constitution imposes two basic and related constraints on Congress.37 It may
not vest itself, any of its committees or its members with either executive or judicial power.38
And, when it exercises its legislative power, it must follow the "single, finely wrought and
exhaustively considered, procedures" specified under the Constitution,39 including the
procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny
and investigation. In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation40 and

(2) investigation and monitoring41 of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. Legislative vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency

to present the proposed implementing rules and regulations of a law to Congress which, by
itself or through a committee formed by it, retains a "right" or "power" to approve or
disapprove such regulations before they take effect. As such, a legislative veto in the form of
a congressional oversight committee is in the form of an inward-turning delegation designed
to attach a congressional leash (other than through scrutiny and investigation) to an agency
to which Congress has by law initially delegated broad powers.43 It radically changes the
design or structure of the Constitutions diagram of power as it entrusts to Congress a direct
role in enforcing, applying or implementing its own laws.44

Congress has two options when enacting legislation to define national policy within the
broad horizons of its legislative competence.45 It can itself formulate the details or it can
assign to the executive branch the responsibility for making necessary managerial decisions
in conformity with those standards.46 In the latter case, the law must be complete in all its
essential terms and conditions when it leaves the hands of the legislature.47 Thus, what is
left for the executive branch or the concerned administrative agency when it formulates rules
and regulations implementing the law is to fill up details (supplementary rule-making) or
ascertain facts necessary to bring the law into actual operation (contingent rule-making).48

Administrative regulations enacted by administrative agencies to implement and interpret the

law which they are entrusted to enforce have the force of law and are entitled to respect.49
Such rules and regulations partake of the nature of a statute50 and are just as binding as if
they have been written in the statute itself. As such, they have the force and effect of law and
enjoy the presumption of constitutionality and legality until they are set aside with finality in
an appropriate case by a competent court.51 Congress, in the guise of assuming the role of
an overseer, may not pass upon their legality by subjecting them to its stamp of approval
without disturbing the calculated balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based on a determination of whether
or not they conformed with the provisions of RA 9335, Congress arrogated judicial power
unto itself, a power exclusively vested in this Court by the Constitution.

Considered Opinion of

Mr. Justice Dante O. Tinga

Moreover, the requirement that the implementing rules of a law be subjected to approval by
Congress as a condition for their effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment.52
Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum. (emphasis supplied)

Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in
Congress which consists of two chambers, the Senate and the House of Representatives. A
valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be
exercised neither solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative
veto and a congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented
to the President. If he approves the same, he shall sign it, otherwise, he shall veto it and
return the same with his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after such reconsideration,
two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall likewise be reconsidered,
and if approved by two-thirds of all the Members of that House, it shall become a law. In all
such cases, the votes of each House shall be determined by yeas or nays, and the names of
the members voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within thirty days after the
date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis
supplied)

Every bill passed by Congress must be presented to the President for approval or veto. In the
absence of presentment to the President, no bill passed by Congress can become a law. In
this sense, law-making under the Constitution is a joint act of the Legislature and of the
Executive. Assuming that legislative veto is a valid legislative act with the force of law, it
cannot take effect without such presentment even if approved by both chambers of
Congress.

In sum, two steps are required before a bill becomes a law. First, it must be approved by both
Houses of Congress.54 Second, it must be presented to and approved by the President.55 As
summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the
procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for
some measures that must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its
referral by the Senate President or the Speaker to the proper committee for study.

The bill may be "killed" in the committee or it may be recommended for approval, with or
without amendments, sometimes after public hearings are first held thereon. If there are other
bills of the same nature or purpose, they may all be consolidated into one bill under common
authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the
bill is read in its entirety, scrutinized, debated upon and amended when desired. The second
reading is the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the members
merely register their votes and explain them if they are allowed by the rules. No further
debate is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo
the three readings. If there are differences between the versions approved by the two
chambers, a conference committee58 representing both Houses will draft a compromise
measure that if ratified by the Senate and the House of Representatives will then be
submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter
authenticated with the signatures of the Senate President, the Speaker, and the Secretaries of
their respective chambers59

The Presidents role in law-making.

The final step is submission to the President for approval. Once approved, it takes effect as
law after the required publication.60

Where Congress delegates the formulation of rules to implement the law it has enacted
pursuant to sufficient standards established in the said law, the law must be complete in all
its essential terms and conditions when it leaves the hands of the legislature. And it may be
deemed to have left the hands of the legislature when it becomes effective because it is only
upon effectivity of the statute that legal rights and obligations become available to those
entitled by the language of the statute. Subject to the indispensable requisite of publication
under the due process clause,61 the determination as to when a law takes effect is wholly the
prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed
and the executive branch acquires the duties and powers to execute the said law. Before that
point, the role of the executive branch, particularly of the President, is limited to approving or
vetoing the law.63

From the moment the law becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus unconstitutional. Under this
principle, a provision that requires Congress or its members to approve the implementing
rules of a law after it has already taken effect shall be unconstitutional, as is a provision that
allows Congress or its members to overturn any directive or ruling made by the members of
the executive branch charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional.

While there may be similar provisions of other laws that may be invalidated for failure to pass
this standard, the Court refrains from invalidating them wholesale but will do so at the proper
time when an appropriate case assailing those provisions is brought before us.64

The next question to be resolved is: what is the effect of the unconstitutionality of Section 12
of RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional?
No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such declaration of invalidity
shall remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:

The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself if it had supposed that it could
not constitutionally enact the other. Enough must remain to make a complete, intelligible and
valid statute, which carries out the legislative intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually
dependent and connected, as conditions, considerations, inducements, or compensations for
each other, as to warrant a belief that the legislature intended them as a whole, the nullity of
one part will vitiate the rest. In making the parts of the statute dependent, conditional, or
connected with one another, the legislature intended the statute to be carried out as a whole
and would not have enacted it if one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent, conditional, or connected must fall
with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and
detach any invalid provision from the other provisions so that the latter may continue in force
and effect. The valid portions can stand independently of the invalid section. Without Section
12, the remaining provisions still constitute a complete, intelligible and valid law which
carries out the legislative intent to optimize the revenue-generation capability and collection
of the BIR and the BOC by providing for a system of rewards and sanctions through the
Rewards and Incentives Fund and a Revenue Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full if their purpose
is to enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335
were published on May 30, 2006 in two newspapers of general circulation66 and became
effective 15 days thereafter.67 Until and unless the contrary is shown, the IRR are presumed
valid and effective even without the approval of the Joint Congressional Oversight
Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a

Joint Congressional Oversight Committee to approve the implementing rules and regulations
of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13
of RA 9335, the rest of the provisions remain in force and effect.

SO ORDERED.

G.R. No. 88211 September 15, 1989

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

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

CORTES, J.:

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

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

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

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

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

The Petition

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

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

The Issue

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

According to the petitioners, the resolution of the case would depend on the resolution of the
following issues:

1. Does the President have the power to bar the return of former President Marcos
and family to the Philippines?

a. Is this a political question?

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

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

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with in

making such finding?

(2) Has there been prior notice to petitioners?

 (3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based,
been made known to petitioners so that they may controvert the
same?

c. Is the President's determination that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public
safety, or public health a political question?

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

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

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

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.

xxx xxx xxx

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

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

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

The Universal Declaration of Human Rights provides:

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

(2) Everyone has the right to leave any country, including his own, and to return to
his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the
Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his residence.

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

3) The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

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

As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of abode.
Petitioners invoke these constitutional rights in vacuo without reference to attendant
circumstances.

Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the Philippines
and reside here at this time in the face of the determination by the President that
such return and residence will endanger national security and public safety.

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

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

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable question
which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to the
Philippines and reestablish their residence here even if their return and residence
here will endanger national security and public safety? this is still a justiciable
question which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E.

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

Respondents argue for the primacy of the right of the State to national security over individual rights.
In support thereof, they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.

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

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

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

It must be emphasized that the individual right involved is not the right to travel from the Philippines
to other countries or within the Philippines. These are what the right to travel would normally
connote. Essentially, the right involved is the right to return to one's country, a totally distinct right
under international law, independent from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the
right to freedom of movement and abode within the territory of a state, the right to leave a country,
and the right to enter one's country as separate and distinct rights. The Declaration speaks of the
"right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately
from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On
the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose
his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art.
12(2)] which rights may be restricted by such laws as "are necessary to protect national security,
public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to
return to one's country in the same context as those pertaining to the liberty of abode and the right to
travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered
view that the right to return may be considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof
[Art. 12 (4).]

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

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

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

Executive Power

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

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

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

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

Article II is the most loosely drawn chapter of the Constitution. To those who think
that a constitution ought to settle everything beforehand it should be a nightmare; by
the same token, to those who think that constitution makers ought to leave
considerable leeway for the future play of political forces, it should be a vision
realized.

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

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

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

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of

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

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

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

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the President cannot be said to be
limited only to the specific powers enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the
Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the
Philippines and the Legislature may vote the shares of stock held by the Government to elect
directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court,
in upholding the power of the Governor-General to do so, said:

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

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

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

xxx xxx xxx

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

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to
serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life,
liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the protection
of life, liberty and property, and the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing implementing action for
these plans, or from another point of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and adhere to them.

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

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

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

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

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

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

The Extent of Review

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

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

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

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

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

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

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

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

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

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

The President has determined that the destabilization caused by the return of the Marcoses would
wipe away the gains achieved during the past few years and lead to total economic collapse. Given
what is within our individual and common knowledge of the state of the economy, we cannot argue
with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or
with grave abuse of discretion in determining that the return of former President Marcos and his
family at the present time and under present circumstances poses a serious threat to national
interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.

SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer
groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow
up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo
E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and
well-written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract
theories of law. History and time-honored principles of constitutional law have conceded to the
Executive Branch certain powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
"emergency." whatever they may be called, the fact is that these powers exist, as they must if the
governance function of the Executive Branch is to be carried out effectively and efficiently. It is in this
context that the power of the President to allow or disallow the Marcoses to return to the Philippines
should be viewed. By reason of its impact on national peace and order in these admittedly critical
times, said question cannot be withdrawn from the competence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and
present danger to public order and safety. One needs only to recall the series of destabilizing actions
attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel
incident which occurred barely five (5) months after the People's Power Revolution. Around 10,000
Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as
acting president of the Philippines. The public disorder and peril to life and limb of the citizens
engendered by this event subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.
Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in
Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier
rebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the
15th Air Force Strike wing commander and his deputy hostage. Troops on board several vehicles
attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince
their incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the military led
by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt to wrest
control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms
and ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the
group members were, however, captured in Antipolo, Rizal. The same group was involved in an
unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different Metro
Manila areas for the projected link-up of Marcos military loyalist troops with the group of Honasan.
The pseudo "people power" movement was neutralized thru checkpoints set up by the authorities
along major road arteries where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon
as an opportunity by other enemies of the State, such as the Communist Party of the Philippines and
the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against
the government. Certainly, the state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid
justification for disallowing the requested return. I refer to the public pulse. It must be remembered
that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly
welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time,
effort and money to put an end to an evidently untenable claim to power of a dictator. The removal of
the Marcoses from the Philippines was a moral victory for the Filipino people; and the installation of
the present administration, a realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to
sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away on
purely compassionate considerations. Neither could public peace, order and safety be sacrificed for
an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily
exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of government." (Ex Parte Milligan,
4 Wall. 2; 18 L. Ed. 281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-
evident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their
meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away
by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of
freedom for both unloved and despised persons on one hand and the rest who are not so
stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We
are interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself
smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights
and not of power. Mr. Marcos is insensate and would not live if separated from the machines which
have taken over the functions of his kidneys and other organs. To treat him at this point as one with
full panoply of power against whom the forces of Government should be marshalled is totally
unrealistic. The Government has the power to arrest and punish him. But does it have the power to
deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

 Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111,
Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security
and public safety which is hauntingly familiar because it was pleaded so often by petitioner
Ferdinand E. Marcos to justify his acts under martial law. There is, however, no showing of the
existence of a law prescribing the limits of the power to impair and the occasions for its exercise.
And except for citing breaches of law and order, the more serious of which were totally unrelated to
Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any
grave exigency which permits the use of untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They contend that the decision to ban former President Marcos, and his
family on grounds of national security and public safety is vested by the Constitution in the President
alone. The determination should not be questioned before this Court. The President's finding of
danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been
conferred on the courts by express constitutional or statutory provisions. It is not so
easy, however, to define the phrase political question, nor to determine what matters
fall within its scope. It is frequently used to designate all questions that he outside the
scope of the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language
of Corpus Juris Secundum (supra), it refers to 'those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr.,
who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S.
Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v.
Carr are:
 It is apparent that several formulations which vary slightly according to the settings in
which the questions arise may describe a political question, which identifies it as
essentially a function of the separation of powers. Prominent on the surface of any
case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision
already made; or potentiality of embarrassment from multifarious pronouncements by
various departments on one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of
plenary or inherent power against a civil right which claim is not found in a specific provision is
dangerous. Neither should we validate a roving commission allowing public officials to strike where
they please and to override everything which to them represents evil. The entire Government is
bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national
security or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need
to suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of
Mr. Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would
compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the
enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist."
The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies
and that the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances
to do so constitute the strongest indication that the hard core "loyalists" who would follow Marcos
right or wrong are so few in number that they could not possibly destabilize the government, much
less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the
best of Filipino customs and traditions to allow a dying person to return to his home and breath his
last in his native surroundings. Out of the 103 Congressmen who passed the House resolution
urging permission for his return, there are those who dislike Mr. Marcos intensely or who suffered
under his regime. There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that
such a return would deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the
respondents' contention that national security and public safety would be endangered by a grant of
the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which stand in
the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that the right to travel, and
this obviously includes the right to travel out of or back into the Philippines, cannot be impaired
except in the interest of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another
or from the Philippines to a foreign country or from a foreign country to the Philippines. The laws
cited by the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro
probation, and parole are all inapplicable insofar as the return of Mr. Marcos and family is
concerned. There is absolutely no showing how any of these statutes and regulations could serve as
a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply
be applying the Constitution, in the preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate. Significantly, the President herself has
stated that the Court has the last word when it comes to constitutional liberties and that she would
abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the
political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538
[1983]).

Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency,
utility or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his
authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest
and detention of "enemies of the State" without charges being filed against them, the dissolution of
Congress and the exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking
over or closure of newspaper offices, radio and television stations and other forms of media, the
proposals to amend the Constitution, etc. was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political question doctrine so often
invoked by then President Marcos to justify his acts is now being used against him and his family.
Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound
by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of
said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.

This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to
the President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed
the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of
issues, momentousness of consequences or a fear that it was extravagantly extending judicial power
in the cases where it refused to examine and strike down an exercise of authoritarian power.
Parenthetically, at least two of the respondents and their counsel were among the most vigorous
critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to the question doctrine. We are
compelled to decide what would have been non-justiceable under our decisions interpreting earlier
fundamental charters.

This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a plebiscite
may decide. Definitely, the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice.
The vital information essential to an objective determination is usually highly classified and it cannot
be rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil.
87, 93 [19051), the Court was faced with a similar situation. It posed a rhetorical question. If after
investigating conditions in the Archipelago or any part thereof, the President finds that public safety
requires the suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,
Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us
a closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents
present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales,
Jr. v. Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether
or not the president acted arbitrarily in suspending the writ when, in the truth words of
Montenegro, with its very limited machinery fit] cannot be in better position [than the
Executive Branch] to ascertain or evaluate the conditions prevailing in the
 Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the facts. This was
the method which had to be used in Lansang. This Court relied heavily on classified
information supplied by the military. Accordingly, an incongruous situation obtained.
For this Court, relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the Executive Branch
supplied information to support its position and this Court was in no situation to
disprove them. It was a case of the defendant judging the suit. After all is said and
done, the attempt by its Court to determine whether or not the President acted
arbitrarily in suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude and
refrain from giving the seal of approval to the act of the Executive Branch. For it is
possible that the suspension of the writ lacks popular support because of one reason
or another. But when this Court declares that the suspension is not arbitrary
(because it cannot do otherwise upon the facts given to it by the Executive Branch) it
in effect participates in the decision-making process. It assumes a task which it is not
equipped to handle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The
majority of the Court has taken judicial notice of the Communist rebellion, the separatist movement,
the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these
incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are led by
people who have always opposed him. If we use the problems of Government as excuses for
denying a person's right to come home, we will never run out of justifying reasons. These problems
or others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to
ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we forced to
fall back upon judicial notice of the implications of a Marcos return to his home to buttress a
conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present
danger to national security and public safety will arise if Mr. Marcos and his family are allowed to
return to the Philippines. It was only after the present petition was filed that the alleged danger to
national security and public safety conveniently surfaced in the respondents' pleadings. Secondly,
President Aquino herself limits the reason for the ban Marcos policy to (1) national welfare and
interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability.
(See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of
national security and public safety. The President has been quoted as stating that the vast majority
of Filipinos support her position. (The Journal, front page, January 24,1989) We cannot validate their
stance simply because it is a popular one. Supreme Court decisions do not have to be popular as
long as they follow the Constitution and the law. The President's original position "that it is not in the
interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times,
front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that
"considerations of the highest national good dictate that we preserve the substantial economic and
political gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos
despite his failing health. (Daily Globe, front page, February 15, 1989). "Interest of the nation
national good," and "preserving economic and political gains," cannot be equated with national
security or public order. They are too generic and sweeping to serve as grounds for the denial of a
constitutional right. The Bill of Rights commands that the right to travel may not be impaired except
on the stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional command cannot
be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it
does on injustice, ignorance, poverty, and other aspects at under-development, the Communist
rebellion is the clearest and most present danger to national security and constitutional freedoms.
Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos
himself was forced to flee the country because of "peoples' power." Yet, there is no move to arrest
and exile the leaders of student groups, teachers' organizations, pea ant and labor federations,
transport workers, and government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to see how Mr. Marcos could be a
greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a
dying Marcos come home is too speculative and unsubstantial a ground for denying a constitutional
right. It is not shown how extremists from the right and the left who loathe each other could find a
rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which
alone sustains the claim of danger to national security is fraught with perilous implications. Any
difficult problem or any troublesome person can be substituted for the Marcos threat as the
catalysing factor. The alleged confluence of NPAs, secessionists, radical elements, renegade
soldiers, etc., would still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is denied.
Tomorrow, a newspaper may be closed. Public assemblies may be prohibited. Human rights may be
violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga was
curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply
regret that the Court's decision to use the political question doctrine in a situation where it does not
apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed and
that the military is on top of the situation. Where then is the clear danger to national security? The
Court has taken judicial notice of something which even the military denies. There would be severe
strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can be
successfully contained by the military. I must stress that no reference was made to a clear and
present danger to national security as would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the President to
fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant
serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang
Pambansa failed or was unable to act adequately on any matter for any reason that in his judgment
required immediate action. When the Bill of Rights provides that a right may not be impaired except
in the interest of national security, public safety, or public health and further requires that a law must
provide when such specifically defined interests are prejudiced or require protection, the inaction of
Congress does not give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us
from ruling against an unconstitutional assertion of power by Philippine officials. Let the United
States apply its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may
hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act
on his claim to a basic right which is legally demandable and enforceable. For his own good, it might
be preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it
to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and
nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow
international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around
in the Philippines. If at all, the right to come home must be more preferred than any other aspect of
the right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators
Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national
security" during that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit
that we now have a freedom loving and humane regime. I regret that the Court's decision in this
case sets back the gains that our country has achieved in terms of human rights, especially human
rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former
dictators who were barred by their successors from returning to their respective countries. There is
no showing that the countries involved have constitutions which guarantee the liberty of abode and
the freedom to travel and that despite such constitutional protections, the courts have validated the
"ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as President
Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to
sow discord and to divide the nation. Opposition to the government no matter how odious or
disgusting is, however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless
to defend itself against a threat to national security? Does the President have to suspend the
privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drastic
measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of those
powers because the Bill of Rights says so. There is no law prescribing exile in a foreign land as the
penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live and
die in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be beneath contempt and undeserving
of the very liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we
resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to
leave Hawaii (which may depend on the action we take today), the respondents have acted with
grave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i.e. that it had
not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and
three representatives from the military appeared for the respondents, together with former Senator
Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead
or alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without
any single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the
Court after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of
the Constitutional Commission, which was precisely to limit rather than expand presidential powers,
as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it
was true that the President had been granted the totality of executive power, "it is difficult to see why
our forefathers bothered to add several specific items, including some trifling ones, . . . I cannot
accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as
an allocation to the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that
Marcos is perhaps the most detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am not swayed by what Justice
Cardozo called the "hooting throng" that may make us see things through the prisms of prejudice. I
bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts
and the applicable law and not of wounds that still fester and scars that have not healed. And not
even of fear, for fear is a phantom. That phantom did not rise when the people stood fast at EDSA
against the threat of total massacre in defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor
of Constitutional Law. These principles have not changed simply because I am now on the Court or
a new administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of
abode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals,
including the patriot and the homesick and the prodigal son returning, and tyrants and charlatans
and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also
called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to
the Philippines may be resolved by answering two simple questions: Does he have the right to return
to his own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return
to his own country except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they
can rely on is sheer speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once
espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the members
of his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos or
any member of his family die, the body should not be taken out of the municipality of confinement
and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the
right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine
Government to bar such return in the interest of national security and public safety. In this context,
the issue is clearly justiciable involving, as it does, colliding assertions of individual right and
governmental power. Issues of this nature more than explain why the 1986 Constitutional
Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the
1987 Constitution, the new provision on the power of Judicial Review, viz:

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.
Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to
travel comprises the right to travel within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do
not agree. It is my view that, with or without restricting legislation, the interest of national security,
public safety or public health can justify and even require restrictions on the right to travel, and that
the clause "as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution
merely declares a constitutional leave or permission for Congress to enact laws that may restrict the
right to travel in the interest of national security, public safety or public health. I do not, therefore,
accept the petitioners' submission that, in the absence of enabling legislation, the Philippine
Government is powerless to restrict travel even when such restriction is demanded by national
security, public safety or public health, The power of the State, in particular cases, to restrict travel of
its citizens finds abundant support in the police power of the state wich may be exercised to
preserve and maintain government as well as promote the general welfare of the greatest number of
people.

And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence to
offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the
respondents shown to the Court sufficient factual bases and data which would justify their reliance
on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr.
Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained
and expressed by the respondents, including those conveyed through the military, do not, with all
due respect, escalate to proportions of national security or public safety. They appear to be more
speculative than real, obsessive rather than factual. Moreover, such apprehensions even if
translated into realities, would be "under control," as admitted to the Court by said military
authorities, given the resources and facilities at the command of government. But, above all, the
Filipino people themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in
short, should not accept respondents' general apprehensions, concerns and perceptions at face
value, in the light of a countervailing and even irresistible, specific, clear, demandable, and
enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting
the generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of
the Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the
Universal Declaration of Human Rights which provides that everyone has the right to leave any
country, including his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2
of the International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or
"arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to protect an individual
against unexpected, irresponsible or excessive encroachment on his rights by the state based on
national traditions or a particular sense of justice which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have
raised the argument of "national security" and "public safety," it is the duty of this Court to
unquestioningly yield thereto, thus casting the controversy to the realm of a political question. I do
not agree. I believe that it is one case where the human and constitutional light invoked by one party
is so specific, substantial and clear that it cannot be overshadowed, much less, nullified by simplistic
generalities; worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to me, is its
clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in
1983 and, at the same time, credibly denythe right of Mr. Marcos, also a Filipino, to return to the
Philippines in 1989. I still have not found a satisfactory answer to that question. Instead, it has
become clearer by the day that the drama today is the same drama in 1983 with the only difference
that the actors are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this
country;

2. respondents have not shown any "hard evidence" or convincing proof why his
right as a Filipino to return should be denied him. All we have are general
conclusions of "national security" and "public safety" in avoidance of a specific
demandable and enforceable constitutional and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today,
requires of all members of the Court, in what appears to be an extended political
contest, the "cold neutrality of an impartial judge." It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir
trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on
the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds
of judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "The
right to return to one's country," pitted against "the right of travel and freedom of abode", and their
supposed distinctions under international law, as if such distinctions, under international law in truth
and in fact exist. There is only one right involved here, whether under municipal or international law:
the light of travel, whether within one's own country, or to another, and the right to return thereto.
The Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex non
distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power
to deny a citizen his right to travel (back to the country or to another)? It is a question that, in
essence, involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of
the power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what
is traditionally considered as within the scope of "executive power." Corollarily, the
powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than that, having sworn
to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from being an allocation
of power is also a social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers of the
Government exercising the powers delegated by the people forget and the servants
of the people become rulers, the Constitution reminds everyone that "sovereignty
 resides in the people and all government authority emanates from them." [Art. II, Sec.
1.]6

And finally:

To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his
duty to do anything not forbidden by the Constitution or the laws that the needs of the
nation demanded [See Corwin, supra, at 153]. It is a power borne by the President's
duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an
allowance of discretionary power is unavoidable in any government and is best
lodged in the President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them
by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According
to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy
of a big of rights. Precisely a constitution exists to assure that in the discharge of the governmental
functions, the dignity that is the birthright of every human being is duly safeguarded. To be true to its
primordial aim a constitution must lay down the boundaries beyond which he's forbidden territory for
state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude
of powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of
public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere
inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception, that is,
by Presidential action, to the right of travel or liberty of abode and of changing the same other than
what it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the
Charter could have specifically declared so. As it is, the lone deterrents to the right in question are:
(1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a third exception,
that is, by Presidential initiative, it could have so averred. It would also have made the Constitution,
as far as limits to the said right are concerned, come full circle: Limits by legislative, judicial, and
executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public
safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary
in the interest of national security, public safety, or public health. 13 Arguably, the provision enabled
the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such
practices as "hamletting", forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power.
And, as it so appears, the right may be impaired only "within the limits provided by law .15 The
President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and
foreign affairs; 17the Bill of Rights precisely, a form of check against excesses of officialdom is, in this
case, a formidable barrier against Presidential action. (Even on matters of State security, this
Constitution prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is:
Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the national security ,
public safety, or public health?" What appears in the records are vehement insistences that Marcos
does pose a threat to the national good and yet, at the same time, we have persistent claims, made
by the military top brass during the lengthy closed-door hearing on July 25, 1989, that "this
Government will not fall" should the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive.
The Court itself must be content that the threat is not only clear, but more so, present.18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we
say "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so
confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos. Morality is
the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of
possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures
contradict contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power
as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule.
It also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and
internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial law decisions
of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent with
the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly
and unabatedly criticized the dictator, his associates, and his military machinery. He would pay
dearly for it; he was arrested and detained, without judicial warrant or decision, for seven months
and seven days. He was held incommunicado a greater part of the time, in the military stockade of
Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and
confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate
health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On
August 14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen
Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for
"inciting to sedition" and "rumor mongering " 24 in the midst of the distribution of Ang Demokrasya Sa
Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule, published by him
and former Congressman Concordia, authored by President Macapagal and translated into Tagalog
by Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than
two dozens of criminal complaints filed by the several military officers named in the "condemned"
book as having violated the human rights of dissenters, and for other crimes, in the office of the
Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them free from house arrest and
these political offenses. I am for Marcos' return not because I have a score to settle with him. Ditto's
death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership inflict
it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement
and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights.
It is his constitutional right, a right that can not be abridged by personal hatred, fear, founded or
unfounded, and by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the
other foot, let no more of human rights violations be repeated against any one, friend or foe. In a
democratic framework, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the
present Constitution and existing laws, does not have it. Mandamus, I submit, lies.

EN BANC

G.R. No. 17122 February 27, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
ANG TANG HO, defendant-appellant.

Williams & Ferrier for appellant.

Acting Attorney-General Tuason for appellee.

JOHNS, J.:
At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act
penalizing the monopoly and holding of, and speculation in, palay, rice, and corn under extraordinary
circumstances, regulating the distribution and sale thereof, and authorizing the Governor-General,
with the consent of the Council of State, to issue the necessary rules and regulations therefor, and
making an appropriation for this purpose," the material provisions of which are as follows:

Section 1. The Governor-General is hereby authorized, whenever, for any cause, conditions
arise resulting in an extraordinary rise in the price of palay, rice or corn, to issue and
promulgate, with the consent of the Council of State, temporary rules and emergency
measures for carrying out the purpose of this Act, to wit:

(a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn.

(b) To establish and maintain a government control of the distribution or sale of the
commodities referred to or have such distribution or sale made by the Government itself.

(c) To fix, from time to time the quantities of palay rice, or corn that a company or individual
may acquire, and the maximum sale price that the industrial or merchant may demand.

(d) . . .

SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other manner obstruct the
production or milling of palay, rice or corn for the purpose of raising the prices thereof; to
corner or hoard said products as defined in section three of this Act; . . .

Section 3 defines what shall constitute a monopoly or hoarding of palay, rice or corn within the
meaning of this Act, but does not specify the price of rice or define any basic for fixing the price.

SEC. 4. The violations of any of the provisions of this Act or of the regulations, orders and
decrees promulgated in accordance therewith shall be punished by a fine of not more than
five thousands pesos, or by imprisonment for not more than two years, or both, in the
discretion of the court: Provided, That in the case of companies or corporations the manager
or administrator shall be criminally liable.

SEC. 7. At any time that the Governor-General, with the consent of the Council of State,
shall consider that the public interest requires the application of the provisions of this Act, he
shall so declare by proclamation, and any provisions of other laws inconsistent herewith shall
from then on be temporarily suspended.

Upon the cessation of the reasons for which such proclamation was issued, the Governor-
General, with the consent of the Council of State, shall declare the application of this Act to
have likewise terminated, and all laws temporarily suspended by virtue of the same shall
again take effect, but such termination shall not prevent the prosecution of any proceedings
or cause begun prior to such termination, nor the filing of any proceedings for an offense
committed during the period covered by the Governor-General's proclamation.

August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should be
sold.

August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the
sale of rice at an excessive price as follows:
 The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the
Governor-General of the Philippines, dated the 1st of August, 1919, in relation with the
provisions of sections 1, 2 and 4 of Act No. 2868, committed as follows:

That on or about the 6th day of August, 1919, in the city of Manila, Philippine Islands, the
said Ang Tang Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of
rice at the price of eighty centavos (P.80), which is a price greater than that fixed by
Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August,
1919, under the authority of section 1 of Act No. 2868. Contrary to law.

Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to pay
a fine of P500, from which he appealed to this court, claiming that the lower court erred in finding
Executive Order No. 53 of 1919, to be of any force and effect, in finding the accused guilty of the
offense charged, and in imposing the sentence.

The official records show that the Act was to take effect on its approval; that it was approved July 30,
1919; that the Governor-General issued his proclamation on the 1st of August, 1919; and that the
law was first published on the 13th of August, 1919; and that the proclamation itself was first
published on the 20th of August, 1919.

The question here involves an analysis and construction of Act No. 2868, in so far as it authorizes
the Governor-General to fix the price at which rice should be sold. It will be noted that section 1
authorizes the Governor-General, with the consent of the Council of State, for any cause resulting in
an extraordinary rise in the price of palay, rice or corn, to issue and promulgate temporary rules and
emergency measures for carrying out the purposes of the Act. By its very terms, the promulgation of
temporary rules and emergency measures is left to the discretion of the Governor-General. The
Legislature does not undertake to specify or define under what conditions or for what reasons the
Governor-General shall issue the proclamation, but says that it may be issued "for any cause," and
leaves the question as to what is "any cause" to the discretion of the Governor-General. The Act also
says: "For any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or
corn." The Legislature does not specify or define what is "an extraordinary rise." That is also left to
the discretion of the Governor-General. The Act also says that the Governor-General, "with the
consent of the Council of State," is authorized to issue and promulgate "temporary rules and
emergency measures for carrying out the purposes of this Act." It does not specify or define what is
a temporary rule or an emergency measure, or how long such temporary rules or emergency
measures shall remain in force and effect, or when they shall take effect. That is to say, the
Legislature itself has not in any manner specified or defined any basis for the order, but has left it to
the sole judgement and discretion of the Governor-General to say what is or what is not "a cause,"
and what is or what is not "an extraordinary rise in the price of rice," and as to what is a temporary
rule or an emergency measure for the carrying out the purposes of the Act. Under this state of facts,
if the law is valid and the Governor-General issues a proclamation fixing the minimum price at which
rice should be sold, any dealer who, with or without notice, sells rice at a higher price, is a criminal.
There may not have been any cause, and the price may not have been extraordinary, and there may
not have been an emergency, but, if the Governor-General found the existence of such facts and
issued a proclamation, and rice is sold at any higher price, the seller commits a crime.

By the organic law of the Philippine Islands and the Constitution of the United States all powers are
vested in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of
the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no
authority to execute or construe the law, the Executive has no authority to make or construe the law,
and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the
power of each branch is supreme within its own jurisdiction, and it is for the Judiciary only to say
when any Act of the Legislature is or is not constitutional. Assuming, without deciding, that the
Legislature itself has the power to fix the price at which rice is to be sold, can it delegate that power
to another, and, if so, was that power legally delegated by Act No. 2868? In other words, does the
Act delegate legislative power to the Governor-General? By the Organic Law, all Legislative power is
vested in the Legislature, and the power conferred upon the Legislature to make laws cannot be
delegated to the Governor-General, or any one else. The Legislature cannot delegate the legislative
power to enact any law. If Act no 2868 is a law unto itself and within itself, and it does nothing more
than to authorize the Governor-General to make rules and regulations to carry the law into effect,
then the Legislature itself created the law. There is no delegation of power and it is valid. On the
other hand, if the Act within itself does not define crime, and is not a law, and some legislative act
remains to be done to make it a law or a crime, the doing of which is vested in the Governor-
General, then the Act is a delegation of legislative power, is unconstitutional and void.

The Supreme Court of the United States in what is known as the Granger Cases (94 U.S., 183-187;
24 L. ed., 94), first laid down the rule:

Railroad companies are engaged in a public employment affecting the public interest and,
under the decision in Munn vs. Ill., ante, 77, are subject to legislative control as to their rates
of fare and freight unless protected by their charters.

The Illinois statute of Mar. 23, 1874, to establish reasonable maximum rates of charges for
the transportation of freights and passengers on the different railroads of the State is not void
as being repugnant to the Constitution of the United States or to that of the State.

It was there for the first time held in substance that a railroad was a public utility, and that, being a
public utility, the State had power to establish reasonable maximum freight and passenger rates.
This was followed by the State of Minnesota in enacting a similar law, providing for, and
empowering, a railroad commission to hear and determine what was a just and reasonable rate. The
constitutionality of this law was attacked and upheld by the Supreme Court of Minnesota in a learned
and exhaustive opinion by Justice Mitchell, in the case of State vs. Chicago, Milwaukee & St. Paul
ry. Co. (38 Minn., 281), in which the court held:

Regulations of railway tariffs Conclusiveness of commission's tariffs. Under Laws 1887,

c. 10, sec. 8, the determination of the railroad and warehouse commission as to what are
equal and reasonable fares and rates for the transportation of persons and property by a
railway company is conclusive, and, in proceedings by mandamus to compel compliance
with the tariff of rates recommended and published by them, no issue can be raised or
inquiry had on that question.

Same constitution Delegation of power to commission. The authority thus given to

the commission to determine, in the exercise of their discretion and judgement, what are
equal and reasonable rates, is not a delegation of legislative power.

It will be noted that the law creating the railroad commission expressly provides

That all charges by any common carrier for the transportation of passengers and property
shall be equal and reasonable.

With that as a basis for the law, power is then given to the railroad commission to investigate all the
facts, to hear and determine what is a just and reasonable rate. Even then that law does not make
the violation of the order of the commission a crime. The only remedy is a civil proceeding. It was
there held
 That the legislative itself has the power to regulate railroad charges is now too well settled to
require either argument or citation of authority.

The difference between the power to say what the law shall be, and the power to adopt rules
and regulations, or to investigate and determine the facts, in order to carry into effect a law
already passed, is apparent. The true distinction is between the delegation of power to make
the law, which necessarily involves a discretion as to what it shall be, and the conferring an
authority or discretion to be exercised under and in pursuance of the law.

The legislature enacts that all freights rates and passenger fares should be just and
reasonable. It had the undoubted power to fix these rates at whatever it deemed equal and
reasonable.

They have not delegated to the commission any authority or discretion as to what the law
shall be, which would not be allowable, but have merely conferred upon it an authority
and discretion, to be exercised in the execution of the law, and under and in pursuance of it,
which is entirely permissible. The legislature itself has passed upon the expediency of the
law, and what is shall be. The commission is intrusted with no authority or discretion upon
these questions. It can neither make nor unmake a single provision of law. It is merely
charged with the administration of the law, and with no other power.

The delegation of legislative power was before the Supreme Court of Wisconsin in
Dowling vs. Lancoshire Ins. Co. (92 Wis., 63). The opinion says:

"The true distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done; to
the latter no valid objection can be made."

The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy should
contain, so that it could be put in use as a uniform policy required to take the place of all others,
without the determination of the insurance commissioner in respect to maters involving the exercise
of a legislative discretion that could not be delegated, and without which the act could not possibly
be put in use as an act in confirmity to which all fire insurance policies were required to be issued.

The result of all the cases on this subject is that a law must be complete, in all its terms and
provisions, when it leaves the legislative branch of the government, and nothing must be left to the
judgement of the electors or other appointee or delegate of the legislature, so that, in form and
substance, it is a law in all its details in presenti, but which may be left to take effect in futuro, if
necessary, upon the ascertainment of any prescribed fact or event.

The delegation of legislative power was before the Supreme Court in United States vs. Grimaud
(220 U.S., 506; 55 L. ed., 563), where it was held that the rules and regulations of the Secretary of
Agriculture as to a trespass on government land in a forest reserve were valid constitutional. The Act
there provided that the Secretary of Agriculture ". . . may make such rules and regulations and
establish such service as will insure the object of such reservations; namely, to regulate their
occupancy and use, and to preserve the forests thereon from destruction; and any violation of the
provisions of this act or such rules and regulations shall be punished, . . ."

The brief of the United States Solicitor-General says:

 In refusing permits to use a forest reservation for stock grazing, except upon stated terms or
in stated ways, the Secretary of Agriculture merely assert and enforces the proprietary right
of the United States over land which it owns. The regulation of the Secretary, therefore, is
not an exercise of legislative, or even of administrative, power; but is an ordinary and
legitimate refusal of the landowner's authorized agent to allow person having no right in the
land to use it as they will. The right of proprietary control is altogether different from
governmental authority.

The opinion says:

From the beginning of the government, various acts have been passed conferring upon
executive officers power to make rules and regulations, not for the government of their
departments, but for administering the laws which did govern. None of these statutes could
confer legislative power. But when Congress had legislated power. But when Congress had
legislated and indicated its will, it could give to those who were to act under such general
provisions "power to fill up the details" by the establishment of administrative rules and
regulations, the violation of which could be punished by fine or imprisonment fixed by
Congress, or by penalties fixed by Congress, or measured by the injury done.

That "Congress cannot delegate legislative power is a principle universally recognized as

vital to the integrity and maintenance of the system of government ordained by the
Constitution."

If, after the passage of the act and the promulgation of the rule, the defendants drove and
grazed their sheep upon the reserve, in violation of the regulations, they were making an
unlawful use of the government's property. In doing so they thereby made themselves liable
to the penalty imposed by Congress.

The subjects as to which the Secretary can regulate are defined. The lands are set apart as a forest
reserve. He is required to make provisions to protect them from depredations and from harmful uses.
He is authorized 'to regulate the occupancy and use and to preserve the forests from destruction.' A
violation of reasonable rules regulating the use and occupancy of the property is made a crime, not
by the Secretary, but by Congress."

The above are leading cases in the United States on the question of delegating legislative power. It
will be noted that in the "Granger Cases," it was held that a railroad company was a public
corporation, and that a railroad was a public utility, and that, for such reasons, the legislature had the
power to fix and determine just and reasonable rates for freight and passengers.

The Minnesota case held that, so long as the rates were just and reasonable, the legislature could
delegate the power to ascertain the facts and determine from the facts what were just and
reasonable rates,. and that in vesting the commission with such power was not a delegation of
legislative power.

The Wisconsin case was a civil action founded upon a "Wisconsin standard policy of fire insurance,"
and the court held that "the act, . . . wholly fails to provide definitely and clearly what the standard
policy should contain, so that it could be put in use as a uniform policy required to take the place of
all others, without the determination of the insurance commissioner in respect to matters involving
the exercise of a legislative discretion that could not be delegated."

The case of the United States Supreme Court, supra dealt with rules and regulations which were
promulgated by the Secretary of Agriculture for Government land in the forest reserve.
These decisions hold that the legislative only can enact a law, and that it cannot delegate it
legislative authority.

The line of cleavage between what is and what is not a delegation of legislative power is pointed out
and clearly defined. As the Supreme Court of Wisconsin says:

That no part of the legislative power can be delegated by the legislature to any other
department of the government, executive or judicial, is a fundamental principle in
constitutional law, essential to the integrity and maintenance of the system of government
established by the constitution.

Where an act is clothed with all the forms of law, and is complete in and of itself, it may be
provided that it shall become operative only upon some certain act or event, or, in like
manner, that its operation shall be suspended.

The legislature cannot delegate its power to make a law, but it can make a law to delegate a
power to determine some fact or state of things upon which the law makes, or intends to
make, its own action to depend.

The Village of Little Chute enacted an ordinance which provides:

All saloons in said village shall be closed at 11 o'clock P.M. each day and remain closed until
5 o'clock on the following morning, unless by special permission of the president.

Construing it in 136 Wis., 526; 128 A. S. R., 1100,1 the Supreme Court of that State says:

We regard the ordinance as void for two reasons; First, because it attempts to confer
arbitrary power upon an executive officer, and allows him, in executing the ordinance, to
make unjust and groundless discriminations among persons similarly situated; second,
because the power to regulate saloons is a law-making power vested in the village board,
which cannot be delegated. A legislative body cannot delegate to a mere administrative
officer power to make a law, but it can make a law with provisions that it shall go into effect
or be suspended in its operations upon the ascertainment of a fact or state of facts by an
administrative officer or board. In the present case the ordinance by its terms gives power to
the president to decide arbitrary, and in the exercise of his own discretion, when a saloon
shall close. This is an attempt to vest legislative discretion in him, and cannot be sustained.

The legal principle involved there is squarely in point here.

It must be conceded that, after the passage of act No. 2868, and before any rules and regulations
were promulgated by the Governor-General, a dealer in rice could sell it at any price, even at a peso
per "ganta," and that he would not commit a crime, because there would be no law fixing the price of
rice, and the sale of it at any price would not be a crime. That is to say, in the absence of a
proclamation, it was not a crime to sell rice at any price. Hence, it must follow that, if the defendant
committed a crime, it was because the Governor-General issued the proclamation. There was no act
of the Legislature making it a crime to sell rice at any price, and without the proclamation, the sale of
it at any price was to a crime.

The Executive order2 provides:

 (5) The maximum selling price of palay, rice or corn is hereby fixed, for the time being as
follows:

In Manila

Palay at P6.75 per sack of 57 kilos, or 29 centavos per ganta.

Rice at P15 per sack of 57 kilos, or 63 centavos per ganta.

Corn at P8 per sack of 57 kilos, or 34 centavos per ganta.

In the provinces producing palay, rice and corn, the maximum price shall be the Manila price
less the cost of transportation from the source of supply and necessary handling expenses to
the place of sale, to be determined by the provincial treasurers or their deputies.

In provinces, obtaining their supplies from Manila or other producing provinces, the
maximum price shall be the authorized price at the place of supply or the Manila price as the
case may be, plus the transportation cost, from the place of supply and the necessary
handling expenses, to the place of sale, to be determined by the provincial treasurers or their
deputies.

(6) Provincial treasurers and their deputies are hereby directed to communicate with, and
execute all instructions emanating from the Director of Commerce and Industry, for the most
effective and proper enforcement of the above regulations in their respective localities.

The law says that the Governor-General may fix "the maximum sale price that the industrial or
merchant may demand." The law is a general law and not a local or special law.

The proclamation undertakes to fix one price for rice in Manila and other and different prices in other
and different provinces in the Philippine Islands, and delegates the power to determine the other and
different prices to provincial treasurers and their deputies. Here, then, you would have a delegation
of legislative power to the Governor-General, and a delegation by him of that power to provincial
treasurers and their deputies, who "are hereby directed to communicate with, and execute all
instructions emanating from the Director of Commerce and Industry, for the most effective and
proper enforcement of the above regulations in their respective localities." The issuance of the
proclamation by the Governor-General was the exercise of the delegation of a delegated power, and
was even a sub delegation of that power.

Assuming that it is valid, Act No. 2868 is a general law and does not authorize the Governor-General
to fix one price of rice in Manila and another price in Iloilo. It only purports to authorize him to fix the
price of rice in the Philippine Islands under a law, which is General and uniform, and not local or
special. Under the terms of the law, the price of rice fixed in the proclamation must be the same all
over the Islands. There cannot be one price at Manila and another at Iloilo. Again, it is a mater of
common knowledge, and of which this court will take judicial notice, that there are many kinds of rice
with different and corresponding market values, and that there is a wide range in the price, which
varies with the grade and quality. Act No. 2868 makes no distinction in price for the grade or quality
of the rice, and the proclamation, upon which the defendant was tried and convicted, fixes the selling
price of rice in Manila "at P15 per sack of 57 kilos, or 63 centavos per ganta," and is uniform as to
all grades of rice, and says nothing about grade or quality. Again, it will be noted that the law is
confined to palay, rice and corn. They are products of the Philippine Islands. Hemp, tobacco,
coconut, chickens, eggs, and many other things are also products. Any law which single out palay,
rice or corn from the numerous other products of the Islands is not general or uniform, but is a local
or special law. If such a law is valid, then by the same principle, the Governor-General could be
authorized by proclamation to fix the price of meat, eggs, chickens, coconut, hemp, and tobacco, or
any other product of the Islands. In the very nature of things, all of that class of laws should be
general and uniform. Otherwise, there would be an unjust discrimination of property rights, which,
under the law, must be equal and inform. Act No. 2868 is nothing more than a floating law, which, in
the discretion and by a proclamation of the Governor-General, makes it a floating crime to sell rice at
a price in excess of the proclamation, without regard to grade or quality.

When Act No. 2868 is analyzed, it is the violation of the proclamation of the Governor-General which
constitutes the crime. Without that proclamation, it was no crime to sell rice at any price. In other
words, the Legislature left it to the sole discretion of the Governor-General to say what was and what
was not "any cause" for enforcing the act, and what was and what was not "an extraordinary rise in
the price of palay, rice or corn," and under certain undefined conditions to fix the price at which rice
should be sold, without regard to grade or quality, also to say whether a proclamation should be
issued, if so, when, and whether or not the law should be enforced, how long it should be enforced,
and when the law should be suspended. The Legislature did not specify or define what was "any
cause," or what was "an extraordinary rise in the price of rice, palay or corn," Neither did it specify or
define the conditions upon which the proclamation should be issued. In the absence of the
proclamation no crime was committed. The alleged sale was made a crime, if at all, because the
Governor-General issued the proclamation. The act or proclamation does not say anything about the
different grades or qualities of rice, and the defendant is charged with the sale "of one ganta of rice
at the price of eighty centavos (P0.80) which is a price greater than that fixed by Executive order No.
53."

We are clearly of the opinion and hold that Act No. 2868, in so far as it undertakes to authorized the
Governor-General in his discretion to issue a proclamation, fixing the price of rice, and to make the
sale of rice in violation of the price of rice, and to make the sale of rice in violation of the
proclamation a crime, is unconstitutional and void.

It may be urged that there was an extraordinary rise in the price of rice and profiteering, which
worked a severe hardship on the poorer classes, and that an emergency existed, but the question
here presented is the constitutionality of a particular portion of a statute, and none of such matters is
an argument for, or against, its constitutionality.

The Constitution is something solid, permanent an substantial. Its stability protects the life, liberty
and property rights of the rich and the poor alike, and that protection ought not to change with the
wind or any emergency condition. The fundamental question involved in this case is the right of the
people of the Philippine Islands to be and live under a republican form of government. We make the
broad statement that no state or nation, living under republican form of government, under the terms
and conditions specified in Act No. 2868, has ever enacted a law delegating the power to any one, to
fix the price at which rice should be sold. That power can never be delegated under a republican
form of government.

In the fixing of the price at which the defendant should sell his rice, the law was not dealing with
government property. It was dealing with private property and private rights, which are sacred under
the Constitution. If this law should be sustained, upon the same principle and for the same reason,
the Legislature could authorize the Governor-General to fix the price of every product or commodity
in the Philippine Islands, and empower him to make it a crime to sell any product at any other or
different price.

It may be said that this was a war measure, and that for such reason the provision of the
Constitution should be suspended. But the Stubborn fact remains that at all times the judicial power
was in full force and effect, and that while that power was in force and effect, such a provision of the
Constitution could not be, and was not, suspended even in times of war. It may be claimed that
during the war, the United States Government undertook to, and did, fix the price at which wheat and
flour should be bought and sold, and that is true. There, the United States had declared war, and at
the time was at war with other nations, and it was a war measure, but it is also true that in doing so,
and as a part of the same act, the United States commandeered all the wheat and flour, and took
possession of it, either actual or constructive, and the government itself became the owner of the
wheat and flour, and fixed the price to be paid for it. That is not this case. Here the rice sold was the
personal and private property of the defendant, who sold it to one of his customers. The government
had not bought and did not claim to own the rice, or have any interest in it, and at the time of the
alleged sale, it was the personal, private property of the defendant. It may be that the law was
passed in the interest of the public, but the members of this court have taken on solemn oath to
uphold and defend the Constitution, and it ought not to be construed to meet the changing winds or
emergency conditions. Again, we say that no state or nation under a republican form of government
ever enacted a law authorizing any executive, under the conditions states, to fix the price at which a
price person would sell his own rice, and make the broad statement that no decision of any court, on
principle or by analogy, will ever be found which sustains the constitutionality of the particular portion
of Act No. 2868 here in question. By the terms of the Organic Act, subject only to constitutional
limitations, the power to legislate and enact laws is vested exclusively in the Legislative, which is
elected by a direct vote of the people of the Philippine Islands. As to the question here involved, the
authority of the Governor-General to fix the maximum price at which palay, rice and corn may be
sold in the manner power in violation of the organic law.

This opinion is confined to the particular question here involved, which is the right of the Governor-
General, upon the terms and conditions stated in the Act, to fix the price of rice and make it a crime
to sell it at a higher price, and which holds that portions of the Act unconstitutional. It does not decide
or undertake to construe the constitutionality of any of the remaining portions of the Act.

The judgment of the lower court is reversed, and the defendant discharged. So ordered.

Araullo, C.J., Johnson, Street and Ostrand, JJ., concur.

Romualdez, J., concurs in the result.

Separate Opinions

MALCOLM, J., concurring:

I concur in the result for reasons which reach both the facts and the law. In the first place, as to the
facts, one cannot be convicted ex post facto of a violation of a law and of an executive order
issued pursuant to the law, when the alleged violation thereof occurred on August 6, 1919, while the
Act of the Legislature in question was not published until August 13, 1919, and the order was not
published until August 20, 1919. In the second place, as to the law, one cannot be convicted of a
violation of a law or of an order issued pursuant to the law when both the law and the order fail to set
up an ascertainable standard of guilt. (U.S. vs. Cohen Grocery Company [1921], 255 U.S., 81,
holding section 4 of the Federal Food Control Act of August 10, 1917, as amended, invalid.)

In order that there may not be any misunderstanding of our position, I would respectfully invite
attention to the decision of the United States Supreme Court in German Alliance Ins. Co. vs. Lewis
([1914, 233 U.S., 389), concerning the legislative regulation of the prices charged by business
affected with a public interest, and to another decision of the United States Supreme Court, that of
Marshall Field & Co. vs. Clark ([1892], 143 U.S., 649), which adopts as its own the principles laid
down in the case of Locke's Appeal ([1873], 72 Pa. St., 491), namely; "The Legislature cannot
delegate its power to make a law; but it can make a law to delegate a power to determine some fact
or state of things upon which the law makes, or intends to make, its own action depend. To deny this
would be to stop the wheels of government. There are many things upon which wise and useful
legislation must depend which cannot be known to the law-making power, and must, therefore, be a
subject of inquiry and determination outside of the halls of legislation."

Avancea and Villamor, JJ., concur.

[G.R. No. 120193. March 6, 1996]

LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA,

respondents.

DECISION

HERMOSISIMA, JR., J.:

Novel is the situation created by the decision of the Commission on Elections which declared
the winner in an election contest and awarded damages, consisting of attorneys fees, actual
expenses for xerox copies, unearned salary and other emoluments for the period, from
March, 1994 to April, 1995, en masse denominated as actual damages, notwithstanding the
fact that the electoral controversy had become moot and academic on account of the
expiration of the term of office of the Municipal Mayor of Kidapawan, North Cotabato.

Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a
temporary restraining order and writ of preliminary injunction, seeking the review of the
decision en banc[1] of the Commission on Elections (COMELEC) denying the motion for
reconsideration of the decision[2] of its First Division,[3] which reversed the decision[4] of
the Regional Trial Court[5] in the election case[6] involving the herein parties. While the
Regional Trial Court had found petitioner Luis Malaluan to be the winner of the elections for
the position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on the
contrary, found private respondent Joseph Evangelista to be the rightful winner in said
elections.

Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty
candidates in the Municipality of Kidapawan, North Cotabato, in the Synchronized National
and Local Elections held on May 11, 1992. Private respondent Joseph Evangelista was
proclaimed by the Municipal Board of Canvassers as the duly elected Mayor for having
garnered 10,498 votes as against petitioners 9,792 votes. Evangelista was, thus, said to have
a winning margin of 706 votes. But, on May 22, 1992, petitioner filed an election protest with
the Regional Trial Court contesting 64 out of the total 181 precincts of the said municipality.
The trial court declared petitioner as the duly elected municipal mayor of Kidapawan, North
Cotabato with a plurality of 154 votes. Acting without precedent, the court found private
respondent liable not only for Malaluans protest expenses but also for moral and exemplary
damages and attorneys fees. On February 3, 1994, private respondent appealed the trial court
decision to the COMELEC.

Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution
pending appeal. The motion was granted by the trial court, in an order, dated March 8, 1994,
after petitioner posted a bond in the amount of P500,000.00. By virtue of said order, petitioner
assumed the office of MunicipaJ Mayor of Kidapawan, North Cotabato, and exercised the
powers and functions of said office. Such exercise was not for long, though. In the herein
assailed decision adverse to Malaluans continued governance of the Municipality of
Kidapawan, North Cotabato, the First Division of the Commission on Elections (COMELEC)
ordered Malaluan to vacate the office, said division having found and so declared private
respondent to be the duly elected Municipal Mayor of said municipality. The COMELEC en
banc affirmed said decision.

Malaluan filed this petition before us on May 31, 1995 as a consequence.

It is significant to note that the term of office of the local officials elected in the May, 1992
elections expired on June 30, 1995. This petition, thus, has become moot and academic
insofar as it concerns petitioners right to the mayoralty seat in his municipality[7] because
expiration of the term of office contested in the election protest has the effect of rendering
the same moot and academic.[8]

When the appeal from a decision in an election case has already become moot, the case
being an election protest involving the office of mayor the term of which had expired, the
appeal is dismissible on that ground, unless the rendering of a decision on the merits would
be of practical value.[9] This rule we established in the case of Yorac vs. Magalona[10] which
we dismissed because it had been mooted by the expiration of the term of office of the
Municipal Mayor of Saravia, Negros Occidental. This was the object of contention between
the parties therein. The recent case of Atienza vs. Commission on Elections,[11] however,
squarely presented the situation that is the exception to that rule.

Comparing the scenarios in those two cases, we-explained:

Second, petitioners citation of Yorac vs. Magalona as authority for his main proposition is
grossly inappropriate and misses the point in issue. The sole question in that case centered
on an election protest involving the mayoralty post in Saravia, Negros Occidental in the
general elections of 1955, which was rendered moot and academic by the expiration of the
term of office in December, 1959 It did not involve a monetary award for damages and other
expenses incurred as a result of the election protest. In response to the petitioners
contention that the issues presented before the court were novel and important and that the
appeal should not be dismissed, the Court held - citing the same provision of the Rules of
Court upon which petitioner staunchly places reliance - that a decision on the merits in the
case would have no practical value at all, and forthwith dismissed the case for being moot.
That is not the case here. In contradistinction to Yorac, a decision on the merits in the case at
bench would clearly have the practical value of either sustaining the monetary award for
damages or relieving the private respondent from having to pay the amount thus
awarded.[12]

Indeed, this petition appears now to be moot and academic because the herein parties are
contesting an elective post to which their right to the office no longer exists. However, the
question as to damages remains ripe for adjudication. The COMELEC found petitioner liable
for attorneys fees, actual expenses for xerox copies, and unearned salary and other
emoluments from March, 1994 to April, 1995, en mUsse denominated as actual damages,
default in payment by petitioner of which shall result in the collection of said amount from the
bond posted by petitioner on the occasion of the grant of his motion for execution pending
appeal in the trial court. Petitioner naturally contests the propriety and legality of this award
upon private respondent on the ground that said damages have not been alleged and proved
during trial.

What looms large as the issue in this case is whether or not the COMELEC gravely abused its
discretion in awarding the aforecited damages in favor of private respondent.

The Omnibus Election Code provides that actual or compensatory damages may be granted
in all election contests or in quo warranto proceedings in accordance with law.[13] COMELEC
Rules of Procedure provide that in all election contests the Court may adjudicate damages
and attorneys fees as it may deem just and as established by the evidence if the aggrieved
party has included such claims in his pleadings.[14] This appears to require only that the
judicial award of damages be just and that the same be borne out by the pleadings and
evidence. The overriding requirement for a valid and proper award of damages, it must be
remembered, is that the same is in accordance with law, specifically, the provisions of the
Civil Code pertinent to damages.

Article 2199 of the Civil Code mandates that except as provided by law or by stipulation, one
is entitled to an adequate compensation only for such pecuniary loss suffered by him as he
has duly proved. Such compensation is referred to as actual or compensatory damages. The
Civil Cod.e further prescribes the proper setting for allowance of actual or compensatory
damages in the following provisions:
ART. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in
good faith is liable shall be those that are the natural and probable consequences of the
breach of the obligation, and which the parties have foreseen or could have reasonably
foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to the non-performance of the obligation.

ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which
are the natural and probable consequences of the act or omission complained of. It is not
necessary that such damages have been foreseen or could have reasonably been foreseen
by the defendant.

Considering that actual or compensatory damages are appropriate only in breaches of

obligations in cases of contracts and quasi-contracts and on the - occasion of crimes and
quasi-delicts where the defendant may be held liable for all damages the proximate cause of
which is the act or omission complained of, the monetary claim of a party in an election case
must necessarily be hinged on either a contract or a quasi-contract or a tortious act or
omission or a crime, in order to effectively recover actual or compensatory damages.[15] In
the absence of any or all of these, the claimant must be able to point out a specific provision
of law authorizing a money claim for election protest expenses against the losing party.[16]
For instance, the claimant may cite any of the following provisions of the Civil Code under
the chapter on human relations, which provisions create obligations not by contract, crime or
negligence, but directly by law:

ART. 19. Every person must in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith.

ART. 20. Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.

xxx xxx xxx

ART. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following rights
and liberties of another person shall be liable to the latter for damages:
xxx xxx xxx

(5) Freedom of suffrage;

xxx xxx xxx

In any of the cases referred to in this article, whether or not the defendants act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely
separate and distinct civil action for damages, and for other relief. x x x[17]

Claimed as part of the damages to which private respondent is allegedly entitled to, is
P169,456.00 constituting salary and other emoluments from March, 1994 to April, 1995 that
would have accrued to him had there not been an execution of the trial courts decision
pending appeal therefrom in the COMELEC.

The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a
result of an election protest, an elective official who has been proclaimed by the COMELEC
as winner in an electoral contest and who assumed office and entered into the performance
of the duties of that office, is entitled to the compensation, emoluments and allowances
legally provided for the position.[18] We ratiocinated in the case of Rodriguez vs. Tan that:

This is as it should be. This is in keeping with the ordinary course of events. This is simple
justice. The emolument must go to the person who rendered the service unless the contrary
is provided. There is no averment in the complaint that he is linked with any irregularity
vitiating his election. This is the policy and the rule that has been followed consistently in
this jurisdiction in connection with positions held by persons who had been elected thereto
but were later ousted as a result of an election protest. The right of the persons elected to
compensation during their incumbency has always been recognized. We cannot recall of any
precedent wherein the contrary rule has been upheld.[19]

In his concurring opinion in the same case, however, Justice Padilla equally stressed that,
while the general rule is that the ousted elective official is not obliged to reimburse the
emoluments of office that he had received before his ouster, he would be liable for damages
in case he would be found responsible for any unlawful or tortious acts in relation to his
proclamation. We quote the pertinent portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts
which led to and resulted in his proclamation as senator-elect, when in truth and in fact he
was not so elected, he would be answerable for damages. In that event the salary, fees and
emoluments received by or paid to him during his illegal incumbency would be a proper item
of recoverable damage.[20]

The criterion for ajustifiable award of election protest expenses and salaries and
emoluments, thus, remains to be the existence of a pertinent breach of obligations arising
from contracts or quasi-contracts, tortious acts, crimes or a specific legal provision
authorizing the money claim in the context of election cases. Absent any of these, we could
not even begin to contemplate liability for damages in election cases, except insofar as
attorneys fees are concerned, since the Civil Code enumerates the specific instances when
the same may be awarded by the court.

ART. 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other than
judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendants act or omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) In actions for indemnity under workmens compensation and employers liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorneys fees and
expenses of litigation should be recovered.[21]

Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the
basis of respondent COMELEC for awarding actual damages to private respondent in the
form of reimbursement for attorneys fees, actual expenses for xerox copies, and salary and
other emoluments that should have accrued to him from March, 1994 to April, 1995 had the
RTC not issued an order for execution pending appeal.

The First Division of the COMELEC ruled on private respondents claim for actual or
compensatory damages in this wise:

x x x under the present legal setting, it is more difficult than in the past to secure an award of
actual or compensatory damages either against the protestant or the protestee because of
the requirements of the law.

In the instant case, however, We are disposed to conclude that the election protest filed by
the protestant is clearly unfounded. As borne out by the results of the appreciation of ballots
conducted by this Commission, apparently the protest was filed in bad faith without sufficient
cause or has been filed for the sole purpose of molesting the protestee-appellant for which
he incurred expenses. The erroneous ruling of the Court which invalidated ballots which were
clearly valid added more injury to the protestee-appellant. This would have been bearable
since he was able to perfect his appeal to this Commission. The final blow, however, came
when the Court ordered the execution of judgment pending appeal which, from all
indications, did not comply with the requirements of Section 2, Rule 39 of the Rules of Court.
There was no good and special reason at all to justify the execution ofjudgment pending
appeal because the protestees winning margin was 149 votes while that of the protestant -
after the Court declared him a winner - was only a margin of 154 votes. Clearly, the order of
execution of judgment pending appeal was issued with grave abuse of discretion.

For these reasons, protestee-appellant seeks to recover the following:

1. Actual damages representing attorneys fees for the new counsel who handled the Appeal
and the Petition for Certiorari before the Court of Appeals x x x -P3 72, 5 00.00

2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P 1.50
x x x -P11,235.00

3. Actual expenses for xerox copying of ballots x x x - P3,919.20

4. Actual damages for loss of salary and other emoluments since March 1994 as per attached
Certification issued by the Municipal Account of Kidapawan x x x - P96,832.00 (up to October
1994 only)

Under Article 2208 of the New Civil Code attorneys fees and expenses of litigation can be
recovered (as actual damages) in the case of clearly unfounded civil action or proceeding.
And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed
recovery of salaries and allowances (as damages) from elected officials who were later
ousted, under the theory that persons elected has (sic) a right to compensation during their
incumbency, the instant case is different. The protestee-appellant was the one elected. He
was ousted not by final judgment but by an order of execution pending appeal which was
groundless and issued with grave abuse of discretion. Protestant-appellee occupied the
position in an illegal manner as a usurper and, not having been elected to the office, but
merely installed through a baseless court order, he certainly had no right to the salaries and
emoluments of the office.

Actual damages in the form of reimbursement for attorneys fees (P3 72,500.00), actual
expenses for xerox copies (P15,154.00), unearned salary and other emoluments from March
1994 to April 1995 or 14 months at P12,104.00 a month (P169,456.00), totalled P557,110.00. To
(sic) this amount, however, P3 00,000.00 representing that portion of attorneys fees
denominated as success fee must be deducted this being premised on a contingent event the
happening of which was uncertain from the beginning. Moral damages and exemplary
damages claimed are, of course, disallowed not falling within the purview of Section 259 of
the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual damages of
P257,110.00, the amount will be assessed, levied and collected from the bond of P500,000.00
which he put up before the Court as a condition for the issuance of the order of execution of
judgment pending appeal.[22]

Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The
COMELEC en banc, however, did not find any new matter substantial in nature, persuasive in
character or sufficiently provocative to compel reconsideration of said decision and
accordingly affirmed in toto the said decision. Hence, this petition raises, among others, the
issue now solely remaining and in need of final adjudication in view of the mootness of the
other issues anent petitioners right to the contested office the term for which has already
expired.

We have painstakingly gone over the records of this case and we can attribute to petitioner
no breach of contract or quasi-contract; or tortious act nor crime that may make him liable for
actual damages. Neither has private respondent been able to point out to a specific provision
of law authorizing a money claim for election protest expenses against the losing party. [23]

We find respondent COMELECs reasoning in awarding the damages in question to be fatally

flawed. The COMELEC found the election protest filed by the petitioner to be clearly
unfounded because its own appreciation of the contested ballots yielded results contrary to
those of the trial court. Assuming, ex gratia argumentis, that this is a reasonable observation
not without basis, it is nonetheless fallacious to conclude a malicious intention on the part of
petitioner to molest private respondent on the basis of what respondent COMELEC perceived
as an erroneous ruling of the trial court. In other words, the actuations of the trial court, after
the filing of a case before it, are its own, and any alleged error on its part does not, in the
absence of clear proof, make the suit clearly unfounded for which the complainant ought to
be penalized. Insofar as the award of protest expenses and attorneys fees are concerned,
therefore we find them to have been awarded by respondent COMELEC without basis, the
election protest not having been a clearly unfounded one under the aforementioned
circumstances.

Respondent COMELEC also found the order granting execution of judgment pending appeal
to be defective because of alleged non-compliance with the requirement that there be a good
and special reason[24] to justify execution pending appeal. We, however, find that the trial
court acted judiciously in the exercise of its prerogatives under the law in issuing the order
granting execution pending appeal. First, it should be noted that the applicability of the
provisions of the Rules of Court, relating to execution pending appeal, has ceased to be
debatable after we definitively ruled in Garcia vs. de Jesus[25] that Section 2, Rule 39 of the
Rules of Court, which allows Regional Trial Courts to order executions pending appeal upon
good reasons stated in a special order, may be made to apply by analogy or suppletorily to
election contests decided by them.[26] It is not disputed that petitioner filed a bond in the
amount of P500,000.00 as required under the Rules of Court.

It is also now a settled rule that as much recognition should be given to the value of the
decision of a judicial body as a basis for the right to assume office as that given by law to the
proclamation made by the Board of Canvassers.[27]

x x x Why should the proclamation by the board of canvassers suffice as basis of the right to
assume office, subject to future contingencies attendant to a protest, and not the decision of
a court of justice? Indeed x x x the board of canvassers is composed of persons who are less
technically prepared to make an accurate appreciation of the ballots, apart from their being
more apt to yield extraneous considerations x x x the board must act summarily, practically
raising (sic) against time, while, on the other hand, the judge has the benefit of all the
evidence the parties can offer and of admittedly better technical preparation and background,
apart from his being allowed ample time for conscientious study and mature deliberation
before rendering judgment x x x.[28]

Without evaluating the merits of the trial courts actual appreciation of the ballots contested in
the election protest, we note on the face of its decision that the trial court relied on the
findings of the National Bureau of Investigation (NBI) handwriting experts which findings
private respondent did not even bother to rebut. We thus see no reason to disregard the
presumption of regularity in the performance of official duty on the part of the trial court
judge. Capping this combination of circumstances which impel the grant of immediate
execution is the undeniable urgency involved in the political situation in the Municipality of
Kidapawan, North Cotabato. The appeal before the COMELEC would undoubtedly cause the
political vacuum in said municipality to persist, and so the trial court reasonably perceived
execution pending appeal to be warranted and justified. Anyway, the bond posted by
petitioner could cover any damages suffered by any aggrieved party. It is true that mere
posting of a bond is not enough reason to justify execution pending appeal, but the nexus of
circumstances aforechronicled considered together and in relation to one another, is the
dominant consideration for the execution pending appeal.[29]

Finally, we deem the award of salaries and other emoluments to be improper and lacking
legal sanction. Respondent COMELEC ruled that inapplicable in the instant case is the ruling
in Rodriguez vs. Tan[30] because while in that case the official ousted was the one
proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner only by
the trial court and assumed office by virtue of an order granting execution pending appeal.
Again, respondent COMELEC sweepingly concluded, in justifying the award of damages, that
since petitioner was adjudged the winner in the elections only by the trial court and assumed
the functions of the office on the strength merely of an order granting execution pending
appeal, the petitioner occupied the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one who undertakes to
act officially without any color of right,[31] the petitioner exercised the duties of an elective
office under color of election thereto.[32] It matters not that it was the trial court and not the
COMELEC that declared petitioner as the winner, because both, at different stages of the
electoral process, have the power to so proclaim winners in electoral contests. At the risk of
sounding repetitive, if only to emphasize this point, we must reiterate that the decision of a
judicial body is no less a basis than the proclamation made by the COMELEC-convened
Board of Canvassers for a winning candidates right to assume office, for both are
undisputedly legally sanctioned. We deem petitioner, therefore, to be a de facto officer who,
in good faith, has haa possession of the office and had discharged the duties pertaining
thereto[33] and is thus legally entitled to the emoluments of the office.[34]

To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in
election cases of actual and compensatory damages in accordance with law. The victorious
party in an election case cannot be indemnified for expenses which he has incurred in an
electoral contest in the absence of a wrongful act or omission or breach of obligation clearly
attributable to the losing party. Evidently, if any damage had been suffered by private
respondent due to the execution ofjudgment pending appeal, that damage may be said to be
equivalent to damnum absque injuria, which is, damage without injury, or damage or injury
inflicted without injustice, or loss or damage without violation of a legal right, or a wrong
done to a man for which the law provides no remedy.[35]

WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC
decision dated May 5, 1995 that private respondent Joseph Evangalista is the winner in the
election for mayor of the Municipality of Kidapawan, North Cotabato, that portion of the
decision is deemed moot and academic because the term of office for mayor has long
expired. That portion of the decision awarding actual damages to private respondent Joseph
Evangelista is hereby declared null and void for having been issued in grave abuse of
discretion and in excess of jurisdiction.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, and Panganiban, JJ., concur.

FIRST DIVISION

G.R. No. L-24750 May 16, 1980

DOROTEO BANAWA, JULIANA MENDOZA, CASIANO AMPONIN and GLICERIA

ABRENICA, petitioners,
vs.
PRIMITIVA MIRANO, GREGORIA MIRANO, JUANA MIRANO and MARCIANO
MIRANO, respondents.

Jose W. Diokno for petitioners.

Recto Law Office for respondents.

FERNANDEZ, J.: +.wph!1

This is a petition for review by certiorari of the decision of the Court of Appeals promulgated on April
12, 1965 1 in CA G.R. No. 23597-R, entitled "Primitive Mirano, et al., Plaintiffs-Appellees, versus,
Doroteo Banawa, et al., Defendants-Appellants", the dispositive part of which is: t.hqw

In view of the foregoing, the appealed judgment is hereby affirmed, with costs
against defendants-appellants.

The judgment of the lower court which was affirmed reads as follows: t.hqw

WHEREFORE, judgment is hereby rendered:

(a) Declaring the plaintiffs to be the owners of the two parcels of land described in
paragraph 3 of the complaint;

(b) Ordering the defendants to deliver the possession of the said parcels of land to
the plaintiffs;

(c) Declaring the deed of sale executed by Roman Biscocho, Paula Biscocho and
Maria Carmen Mendoza in favor of Doroteo Banawa and Juliana Mendoza, dated
April 4, 1940, as evidenced by Exhibit 'E' and its registration in the registry of deeds
of Batangas, to be null and void;

(d) Declaring null and void the deed of donation, dated August 7, 1956, evidenced by
Exhibit 'D' executed by the spouses Doroteo Banawa and Juliana Mendoza in favor
of the spouses Casiano Amponin and Gliceria Abrenica as well as Tax Declarations
No. 26818 in the names of the spouses Doroteo Banawa and Juliana Mendoza, and
No. 26845 in the names of the spouses Casiano Amponin and Gliceria Abrenica, and
the registration of the said deed of donation in the registry of deeds of Batangas; and

(e) Ordering the defendants to pay to the plaintiffs actual damages in the amount of
P 4,500 and attorney's fees in the amount of P500.00, and the costs of this action.

SO ORDERED. 2

The spouses Doroteo Banawa and Juliana Mendoza both died during the pendency of this case in
the Court of Appeals. They have been substituted by the petitioners Casiano Amponin and his wife
Gliceria Abrenica, legally adopted daughter of one of the deceased petitioners and donee of the
Carsuche property. 3
The petitioners filed on May 20, 1965, a motion for reconsideration of the decision of the Court of
Appeals. Said motion was denied on June 28, 1965. 4

As found by the Court of Appeals, the facts are: t.hqw

It appears that sometime in 1911, Maria Mirano a niece of appellant Juliana

Mendoza, and who was then about nine years old, was taken in by the appellants-
spouses, Doroteo Banawa and Juliana Mendoza, in the latter's house in Mahabang
Lodlod, Taal, Batangas. Appellants spouses being childless, treated and reared her
up like their own child. They hired a private tutor to teach her the rudiments of
reading, writing and arithmetic. They supported her, gave her money, clothes and
even jewelry. Maria reciprocated their care and affection by helping with the
household chores.

A few years later, the spouses opened up a store for general merchandise in barrio
Lutucan, Sariaya, Quezon, from which they derived considerable income and which
enabled them to acquire several parcels of land.

On July 31, 1949, after a lingering illness, Maria Mirano died in Taal, Batangas while
still living with the spouses. At the time of her death she left as her only nearest
relatives the herein plaintiffs, namely Primitiva Mirano, who is a surviving sister, and
Gregoria, Juana and Marciano, all surnamed Mirano, who are the children of a
deceased brother, Martin Mirano.

The parties do not dispute the Identity of the two parcels of land in controversy,
which are described in paragraph 3 of the complaint as follows: t.hqw

1. A parcel of sugar land situated in the Barrio of Iba, Taal, Batangas,

with an area of 44,200 square meters, more or less. Bounded on the
North, by Ravine; on the East, by the property of Leodovico Garcia;
on the South by the property of Gregorio Amponin; and on the West,
by the property of Gregorio Maria Aniversario (now Doroteo Banawa).
Under Tax Declaration No. 25994 in the name of Maria Mirano and
assessed at P2,210.00.

2. A parcel of sugar land situated in the barrio of Carsuche, Taal,

Batangas, with an area of 54,093 square meters, more or less.
Bounded on the North, by the property of Agapito Aro and Alley; on
the East, by an Alley; on the South, by the properties of Filomeno
Diomampo, Gregorio de la Rosa and Andres Moratilla; and on the
West, by the property of Agapito Aro. Under Tax Declaration No.
19786 in the name of Maria Mirano and assessed at P2,760.00.

For purposes of clearness and convenience, and since the respective assertions and
evidences adduced by the parties regarding the two parcels of land are in sharp
divergence, we shall refer to the first parcel as the Iba Property and to the second
parcel as the Carsuche property and, moreover, we shall treat and discuss the two
separately.

Parcel 1, or the Iba Property.

The parties agree that the Iba Property was originally owned by Placido Punzalan
from whom it was acquired on May 5, 1921. Plaintiffs' evidence upon this point tends
to show that the acquisition of the said parcel of land was pursuant to a deed of sale
contained in a public instrument acknowledged before Notary Public Ramon A.
Cabrera on the date aforesaid, a photostatic copy of which was introduced in
evidence as Exhibit 'A', the same having been secured from an original copy on file
with the Division of Archives, Bureau of Libraries. The deed of sale in question states
that the Iba property consisted formerly of two parcels of land and that they were sold
for the amount of P2,000.00 in favor of Maria Mirano. Defendant Doroteo Banawa
impliedly admitted the execution of this notarial document when he declared that in
the execution of the document concerning the purchase of the Iba property from
Punzalan the notary public charged him P20.00 and another P5.00 for stamps in the
name of Maria Mirano since 1923 (Exhs. 'A-1' to 'A-7').

By contrast, defendants' claim of ownership over the Iba property is predicated upon
their assertion that the money used in buying said land pertained to the spouses
Doroteo Banawa and Juliana Mendoza. Defendants contend that since 1919 Placido
Punzalan borrowed money from defendant spouses on three different occasions for
the sums of P1,200.00, P1,800.00 and P1,080.00, respectively, each of which was
evidenced by Exhs. '1', '2', and '3', respectively. Upon the failure of Placido Punzalan
to discharge said obligations in 1921, he agreed to sell the land aforementioned to
the spouses for P 3,700.00, but as the total value of the three loans was P4,080.00,
Punzalan had to reimburse to said spouses the difference of P380.00. The document
of sale stated the price to be only P2,000.00 in view of the fact that Doroteo Banawa
had only P25.00 with him when the deed was prepared by the notary public, and the
latter was charging P10.00 for every one thousand pesos mentioned as the
consideration of the contract, Defendants likewise maintain that the sale was made
to appear in favor of Maria Mirano because said spouses being already old, they
want to leave something to Maria Mirano for her to lean upon when they would have
been gone. They, however, made Maria understand that although the property was
placed under her name, they would continue to be the owners thereof, to administer
and enjoy the fruits of the same as long as they live, and that she would become the
owner of the land only after their death. Maria supposedly expressed her conformity
to and appreciation for the said arrangement. Maria Mirano was 19 years old when
the deed of sale was executed.

Parcel 2, or the Carsuche Property.

There is no dispute between the parties that the Carsuche property was acquired by
way of purchase from its original owners, to wit: Roman Biscocho, his sister Paula
Biscocho, and sister-in-law Carmen Mendoza. The sale took place sometime in
December, 1935. There is, however, a sharp conflict of evidence between the parties
concerning the form of the document evidencing the same and in whose favor the
sale was made at that time. The plaintiffs claim that the sale was evidenced by a
public instrument executed before and ratified by Notary Public Vicente Ilagan of
Taal, Batangas, and that the vendee mentioned in the said document was Maria
Mirano. The defendants, on the other hand, assert that the sale was evidenced by a
private writing prepared in the handwriting of Roman Biscocho and that it was in
favor of the spouses Doroteo Banawa and Juliana Mendoza. Neither the public
instrument allegedly ratified by Atty. Ilagan nor the private writing supposedly
prepared by Roman Biscocho was presented before the lower court.
 After laying the proper predicate for the presentation of secondary evidence, the
plaintiffs presented Atty. Vicente Ilagan and Roman Biscocho to testify upon the
execution of the aforesaid public instrument in December, 1935. These two declared
that sometime in December, 1935, the spouses Doroteo Banawa and Juliana
Mendoza, Maria Mirano, Roman Biscocho, Paula Biscocho and Carmen Mendoza,
accompanied by Atty. Regino Aro, went to the office of Atty. Ilagan in Taal, Batangas;
that Atty. Aro, who was a classmate of Atty. Ilagan in the law school, asked the
latter's permission to use his typewriter on which he prepared a document in English
and which he asked Atty. Ilagan to ratify; that Atty. Ilagan translated into Tagalog the
contents of the said document to the parties and. the witnesses, after which they all
signed the same; that the document involved the sale of the Carsuche property in
favor of Maria Mirano: that after paying him P20.00 for his services which Atty. Ilagan
would not accept at first, Doroteo Banawa asked Atty. Ilagan in Tagalog whether the
document that he ratified was 'strong enough' (Matibay) to safeguard the rights of
Maria Mirano, to which Atty. Ilagan answered in the affirmative.

Doroteo Banawa, on the other hand, stated that on being offered the Carsuche
property by the owners thereof, they agreed on the purchase price of P3,700.00 of
which a down payment of P1,200.00 was made and, later, an additional sum of
P100.00 was given to Roman Biscocho, both payments being evidenced by a receipt
dated December 15, 1936 (Exh. '9'). A few days later, Roman Biscocho prepared in
his own handwriting a private document selling the Carsuche property in favor of the
spouses Doroteo Banawa and Juliana Mendoza for the sum of P4,000.00, the
vendors having asked for a P300.00 increase in price. Doroteo Banawa, thereafter
brought said private document to the municipal treasurer of Taal, Batangas, to whom
he expressed the desire to have the land declared in the name of Maria Mirano so
that the latter might attend to the payment of taxes over the land whenever he was
away. This wish of Doroteo Banawa was done by his thumb-marking an affidavit,
thus accounting for the fact that said land appears in the name of Maria Mirano in the
tax declarations covering the same from 1934 to 1956. 5

The petitioners assign the following errors: t.hqw

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING

THAT THE PLACING OF IBA PROPERTY IN THE NAME OF THE LATE MARIA
MIRANO WAS IN THE NATURE OF A DONATION INTER-VIVOS.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING

THAT PETITIONERS' INTERPRETATION OF ARTICLE 632 OF THE OLD CIVIL
CODE IS TOO LITERAL AND IGNORES THE RATIONALE OF THE LEGAL
PROVISION.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING

THAT THE 'EXCEPTIVE' CLAUSE' OF ARTICLE 1448 OF THE CIVIL CODE IS
APPLICABLE IN THE PRESENT CASE.
 IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING

THAT SECTION 5, RULE 100 OF THE OLD RULES OF COURT DOES NOT
APPLY IN THE INSTANT CASE BECAUSE MARIA MIRANO WAS NOT LEGALLY
ADOPTED.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING

WITH RESPECT TO THE CARSUCHE PROPERTY (LOT NO. 2) THAT THE DEED
OF SALE EXECUTED IN 1940 IN FAVOR OF THE PETITIONERS DOROTEO
BANAWA AND HIS WIFE JULIANA MENDOZA AND WHICH WAS DULY
REGISTERED DID NOT IMPAIR THE PRETENDED SALE TO MARIA MIRANO. 6

The first, second, third and fourth errors assigned refer to the Iba property, parcel 1, while the fifth
error assigned refers to the Carsuche property, Lot 2. 7

As may be discerned from the assignment of errors, the basic issue is the ownership of the two
parcels of land in question. The plaintiffs appellees, respondents herein, assert title to the lands as
heirs of Maria Mirano. Defendants-appellants, petitioners herein, claim ownership over them by
virtue of purchase from the original owners.

Considering that in the case at bar the findings of fact of the Court of Appeals are not contrary to
those of the trial court, a minute scrutiny by this Court of said findings is not necessary. In Tolentino
vs. de Jesus, et al., 8 this Court held:
t.hqw

The findings of facts of the respondent Court of Appeals are conclusive on the
parties and on this Court (Tamayo vs. Callejo, L- 25563, July 28, 1972, 46 SCRA 27;
Nery, et al. vs. Lorenzo, et al., L-23096 & L-23376, April 27, 1972, 44 SCRA 43 1;
Villacrucis vs. CA, L-29831, March 29, 1972, 44 SCRA 176; Dela Cruz, et al. vs. CA,
L-24000, Nov. 29, 1971, 42 SCRA 68; Naga Dev. Corp. vs. CA, L-28175, Sept. 30,
1971, 41 SCRA 105, 115; Lacson & Basilio vs. Pineda, et al., L-28523, July 16,
1971, 40 SCRA 35; Qui;ano, et al. vs. CA, et al., L-23024, May 31, 1971, 39 SCRA
227; Reyes, et al. vs. CA, et al., L-28466, March 27, 1971, 38 SCRA 138, 142;
Gotamco Hermanas vs. Shotwell, et al., L-22519, March 27, 1971, 38 SCRA 112-
117; Limjoco vs. CA, L-20656, Feb. 27, 1971, 37 SCRA 663-669; De Garcia, et al.
vs. CA, L-20264, Jan. 30, 1971, 37 SCRA 130, 136-137; Simeon vs. Pe;a, L-29049,
Dec. 29, 1970, 36 SCRA 611), unless (1) the conclusion is a finding grounded
entirely on speculation, surmise and conjectures; (2) the inference made is
manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based
on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the
case and its findings are contrary to the admission of both appellant and appellees
[Roque vs. Buan, L-22459, Oct. 31, 1967, 21 SCRA 648]; (6) the findings of facts of
the Court of Appeals are contrary to those of the trial court; (7) said findings of facts
are conclusions without citation of specific evidence on which they are based; (8) the
facts set forth in the petition as well as in the petitioner's main and reply briefs are not
disputed by the respondents [Garcia vs. CA, L-26490, June 30, 1970, 33 SCRA 622]
; and (9) when the finding of fact of the Court of Appeals is premised on the absence
of evidence and is contradicted by evidence on record [Salazar vs. Gutierrez, L-
21727, May 29, 1970, 33 SCRA 243].
The instant case does not fall under any of the exceptions.

However, all the issues raised by the petitioners shall be passed upon individually.

The first error assigned reads: t.hqw

The Honorable Court of Appeals gravely erred in law in ruling that the placing of the
Iba Properly in the name of the late Maria Mirano was in the nature of a donation
inter-vivos.

The respondents 9 correctly pointed out that neither the Court of Appeals nor the Court of First
Instance of Batangas categorically stated that the placing of the properties in the name of Maria
Mirano was in the nature of a donation inter-vivos. In rejecting the petitioners' contention that a
donation mortis causa was executed, the Court of Appeals said that, under the facts and
circumstances narrated by the petitioners, the placing of the Iba property in the name of Maria
Mirano-if it was to be called a donation at all - was not in the nature of a donation mortis causa, but
rather it would be in the nature of a donation inter-vivos, giving its reasons and citing the applicable
law and decisions of this Court on the matter. The Court of First Instance made the same
hypothetical conclusion. 10

The finding of the Court of First Instance of Batangas which was sustained by the Court of Appeals
is that what was donated by the spouses Doroteo Banawa and Juliana Mendoza to Maria Mirano
was the money used in the purchase of the lands in question. This conclusion of the Court of First
Instance of Batangas was supported by the testimony of Macario B. Aro, a nephew of the deceased
Doroteo Banawa, that the money used by Maria Mirano in the purchase of the Iba and Carsuche
properties was given to her by, Doroteo Banawa. 11

If the money used by Maria Mirano in purchasing the properties was given to her by the spouses
Doroteo Banawa and Juliana Mendoza, or by either of them, then the money had belonged to her.
Maria Mirano purchased and paid for the said properties with her money. As a matter or fact, the
deed of sale, Exhibit "A", 12 recites as follows:
t.hqw

Que en consideracion a la suma de Dos Mil Pesos moneda filipina (P2,000.00) que
me ha pagado Maria Mirano ... .

It is also contended by the petitioners that the deeds of sale executed by the owners of the land in
favor of Maria Mirano were simulated contracts intended to shortcut two different transactions: (1) a
sale in favor of the spouses Doroteo Banawa and Juliana Mendoza; and (2) a donation of lands by
the spouses in favor of Maria Mirano. 13

There are two kinds of simulated contracts, namely: the absolutely simulated contract and the
relatively simulated one. In both instances, however, their nullity is based on the want of true
consent of the parties. There is no intent to be bound or the true intent is hidden or concealed. Such
contracts are even generally regarded as fraudulent with intent of injuring third persons. The
purpose, therefore, of a simulated contract which may be annulled is to conceal the parties' true
intent, or to deceive or defraud third persons.

From the record, there is no showing of deception or fraud, nor of concealment of intent of the
parties as to the sale of the Iba property by the vendors in favor of Maria Mirano. The transactions
which transpired were purely: (1) donations of money or things representing or equivalent to money
by the spouses in favor of Maria Mirano which could be made and accepted verbally; and (2)
purchase of lands by Maria Mirano with the use of that money or credits (pre-existing indebtedness
in favor of the spouses) as consideration thereof.

The petitioners' contention that "the contract of sale had been intended to be a contract of sale
between the vendors and the spouses Doroteo Banawa and Juliana Mendoza" has no merit. The
petitioners were present when the sales were made to Maria Mirano. They were the ones who
caused the titles to the properties to be placed in the name of Maria Mirano because they wished
"that after our death Maria Mirano could have something for her maintenance. 14Moreover, the
testimony of Vicente Ilagan, the notary public before whom the deed of sale was executed, to the
effect that he was asked by Doroteo Banawa in Tagalog "Kung matibay ang documenting ito para
kay Maria" 15 and to which query he answered, "Yes, Sir", 16 supports this conclusion. The conduct of
the spouses at the time of the execution of the contracts are inconsistent with those which the
petitioners, the late spouses and their successors-in interest, now assert. Their intention to make
Maria Mirano the owner of the said parcels of land was clearly shown by their conduct at the time of
the execution of the deeds of sale which influenced the vendors to believe that Maria Mirano was
indeed the vendee in their agreement. The petitioners had full knowledge of the facts surrounding
the execution of the document of sale. They are equitably estopped 17 to deny that the transfer of the
lands in question in favor of Maria Mirano was the actual and true intent of the parties as embodied
in the documents of sale of the Iba and Carsuche properties. The documents are what they purport
to be contracts of sale from the vendors to the vendee, Maria Mirano.

The petitioners submit that since there was transfer of title to the land in litigation to Maria Mirano
when the purchase price was in fact actually paid by the petitioners-spouses, an implied trust was
created. The present law on implied trust is Article 1448 of the New Civil Code which provides: t.hqw

Art. 1448. There is an implied trust when property is sold, and the legal estate is
granted to one party but the price is paid by another for the purpose of having
beneficial interest of the property. The former is the trustee, while the latter is the
beneficiary. However if the person to whom the title is conveyed is a child, legitimate
or illegitimate, of the one paying the price of the sale, no trust is implied by law, it
being disputably presumed that there is a gift in favor of the child.

The transactions in question took place before the Civil Code of the Philippines became effective on
August 30, 1950. Hence Article 1448 of said Code is not applicable. 18

Moreover, there is no showing that Maria Mirano bought the lands in question in trust for the
petitioners.

The petitioners also claim that they have become owners of the properties by acquisitive prescription
under Article 1957 of the Old Civil Code which provides: t.hqw

Ownership and other real rights in immovable property shall prescribe by possession
in good faith and under a just title for ten years as between persons present and for
twenty years as between absentees.

The above-cited provision speaks of two essential requirements: (1) possession for ten (10) years as
between persons present and twenty (20) years, for absentees; and (2) a just title.

As regards the Iba property (Lot No. 1), petitioners have not presented any title, just or otherwise, to
support their claim. And Article 1954 of the Old Civil Code provides, further, that a "just title must be
proven; it never can be presumed."
Not having a just title, as required by Article 1957 of the Old Civil Code, the petitioners cannot invoke
prescription with respect to the Iba property.

The petitioners also assert ownership by acquisitive prescription over the Iba property under Section
41 of the Code of Civil Procedure. The pertinent portion of Section 41 of the Code of Civil Procedure
reads t.hqw

Ten years actual adverse possession by any person claiming to be the owner for that
time of any land or interest in land, uninterruptedly continued for ten years by
occupancy, descent, grants, or otherwise in whatever way such occupancy may have
commenced or continued, shall vest in every actual occupant or possessor of such
land a full and complete title, saving to the persons under disabilities the rights
secured by the next section. In order to constitute such title by prescription or
adverse possession, the possession by the claimant or by the person under or
through whom he claims must have been actual open, public, continuous, under a
claim of title exclusive of any other right and adverse to all other claimants ...

It is a fact that while Maria Mirano was alive she possessed the property in question as the owner
thereof Hence, it is error for the petitioners to claim ownership over the Iba property by acquisitive
prescription under Article 41 of the Code of Civil Procedure for their possession of the said property
became adverse and exclusive only in July 1949 after Maria Mirano's death. From 1949 to the date
of the filing in 1957 of the present action by the respondents only eight years had elapsed.

The second error assigned is: t.hqw

The Honorable Court of Appeals gravely erred in law in ruling that petitioners'
interpretation of Article 632 of the Old Civil Code is too literal and ignores the
rationale of the legal provision.

Article 632 of the Old Civil Code provides: "Donations of personal property may be made verbally or
in writing. Verbal donation requires the simultaneous delivery of the gift. In the absence of this
requisite the donation shall produce no effect, unless made in writing and accepted in the same
form."

It is contended by the petitioners that oral donation of personal property requires simultaneous
delivery of the gift. As regards the Iba property, the consideration given by Maria Mirano for the
purchase of the said property from Placido Punzalan was the pre- existing debts of the latter to the
spouses Doroteo Banawa and Juliana Mendoza.

The contention of the petitioners that there was no simultaneous delivery of the credits to Maria
Mirano is not meritorious. Delivery may be actual or constructive.

Actual delivery consists in the giving of actual possession to the vendee or his agent, as for
example, in manually transferring the possession of a thing from the vendor to the vendee.

Constructive delivery is a general term comprehending all those acts which, although not conferring
physical possession of the thing, have been held by construction of law equivalent to acts of real
delivery, as for example, the giving of the key to the house, as constructive delivery of the house
from the vendor to the vendee.
In the instant case, the oral donation of the gift consisting of pre-existing obligations of the vendor,
Placido Punzalan, was simultaneous or concurrent with the constructive delivery thereof to Maria
Mirano when the spouses consented to the execution of the deed of sale of the Iba property in favor
of Maria Mirano. The execution of the said deed of sale constituted payment by the vendor, Placido
Punzalan, of his outstanding obligations due to the spouses, Doroteo Banawa and Juliana Mendoza.
Consequently, there was constructive transfer of possession of the incorporeal rights of the spouses
over the property in question to Maria Mirano.

It is no longer necessary to discuss the third error assigned because of the holding that Article 1448
of the New Civil Code has no retroactive application to the instant case.

Anent the fourth error assigned, the petitioners urge that the donor spouses are entitled to the land
in question by virtue of Section 5, Rule 100 of the Old Rules of Court, the pertinent portion of which
reads: t.hqw

... In case of the death of the child, his parents and relatives by nature, and not by
adoption, shall be his legal heirs, except as to property received or inherited by the
adopted child from either of his parents by adoption, which shall become the property
of the latter or their legitimate relatives who shall participate in the order established
by the Civil Code for intestate estates.

The submission of the petitioners is that extrajudicial adoption is within the contemplation and spirit
of this rule of reversion adoptive. However, the rule involved specifically provides for the case of the
judicially adopted child. It is an elementary rule of construction that when the language of the law is
clear and unequivocal, the law must be taken to mean exactly what it says.

The fifth error assigned is: t.hqw

The Honorable Court of Appeals gravely erred in law in ruling with respect to the
Carsuche property (Lot No. 2) that the deed of sale executed in 1940 in favor of the
petitioner Doroteo Banawa and his wife Juliana Mendoza did not impair the
pretended sale to Maria Mirano.

The Court of Appeals found that there was a sale of the Carsuche property in 1935 in favor of Maria
Mirano and that such sale was embodied in a public instrument. However, in 1940 the same land
was sold to the petitioners. The sale was duly registered. The petitioners immediately entered into
the possession of the land as owners.

The claim of the petitioners that they have acquired by acquisitive prescription the Carsuche
property (Lot No. 2) is meritorious.

Section 40 of the Code of Civil Procedure provides: "Period of prescription as to real estate An
action for recovery of title to, or possession of, real property, or an interest therein, can only be
brought within ten years after the cause of action accrues."

That the aforesaid Section 40 governs the instant case is clear from Article 1116 of the New Civil
Code which provides that "prescriptions already running before the effectivity of the New Civil Code,
shall be governed by the laws previously in force." The prescriptive period commenced to run since
1940, the date the sale in favor of the Banawas was registered with the Register of Deeds of
Batangas. Hence the Code of Civil Procedure governs.
The instant case, not having been filed within ten (10) years from the time the cause of action
accrued in 1940, prescribed under Section 40 of the Code of Civil Procedure in 1950 because the
same was filed only in 1957, seventeen (17) years later.

The possession of the Banawas over the Carsuche property ripened into full ownership in 1950, ten
(10) years after 1940, when the possession of the petitioner-spouses which was actual, open, public
and continuous, under a claims of title exclusive of any other right and adverse to all other claim
commenced. (Sec. 41, Code of Civil Procedure). The sale in favor of the Banawas was registered in
1940 with the Register of Deeds of Batangas. The actual and adverse possession of the petitioner-
spouses was continued by their present successors.

The alleged bad faith of the petitioners in that they knew that the land was previously sold to Maria
Mirano is of no consequence because Section 41 of the Code of Civil Procedure provides that there
is prescription "in whatever way such occupancy may have commenced." As held in one case "...
guilty knowledge is of no moment for under the law title by prescription may be acquired in whatever
way possession may have been commenced or continued and so long as the possessor had
possessed the land openly, publicly, continuously and under a claim of title for a period of over ten
years." 19

The trial court found that the two parcels of land in question with a combined area of a little less than
ten (10) hectares had an average annual net yield of P 500.00. A total amount of P 4,500.00 as
actual damages was awarded in as much as Maria Mirano had been dead for nine (9) years when
the decision of the trial court was rendered. An adjustment should be made in view of the finding of
this Court that the Carsuche property, Lot 2, belongs to the petitioners.

The Iba property, Lot 1, is about 45% of the combined area of the two lands in question. Forty-five
percent (45 %) of the annual net income of P500.00 is equivalent to P225.00. Maria Mirano has
been dead for about thirty-one (31) years now. During all this period, the petitioners have been in
possession of the Iba property and receiving the products thereof. They should pay as actual
damages the total amount of P6,975.00 representing the net income for the period of thirty-one (31)
years on the basis of P225.00 a year.

The respondents are also entitled to attorney's fees in the amount of P1,000.00.

WHEREFORE, the decision of the Court of Appeals is hereby affirmed as to the Iba property (Lot
No. 1) but reversed as to the Carsuche property (Lot No. 2) which was acquired by the spouses
Doroteo Banawa and Juliana Mendoza who could validly donate the said property to Casiano
Amponin and Gliceria Abrenica The petitioners are ordered to pay the private respondents the total
amount of Six Thousand Nine Hundred Seventy-Five Pesos (P6,975.00) as actual damages and the
amount of One Thousand Pesos (P1,000.00) as attorney's fees, without pronouncement as to costs.

SO ORDERED.

EN BANC

G.R. No. L-22301 August 30, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIO MAPA Y MAPULONG, defendant-appellant.
Francisco P. Cabigao for defendant-appellant.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete and Solicitor
O. C. Hernandez for plaintiff-appellee.

FERNANDO, J.:

The sole question in this appeal from a judgment of conviction by the lower court is whether or not
the appointment to and holding of the position of a secret agent to the provincial governor would
constitute a sufficient defense to a prosecution for the crime of illegal possession of firearm and
ammunition. We hold that it does not.

The accused in this case was indicted for the above offense in an information dated August 14, 1962
reading as follows: "The undersized accuses MARIO MAPA Y MAPULONG of a violation of Section
878 in connection with Section 2692 of the Revised Administrative Code, as amended by
Commonwealth Act No. 56 and as further amended by Republic Act No. 4, committed as follows:
That on or about the 13th day of August, 1962, in the City of Manila, Philippines, the said accused
did then and there wilfully and unlawfully have in his possession and under his custody and control
one home-made revolver (Paltik), Cal. 22, without serial number, with six (6) rounds of ammunition,
without first having secured the necessary license or permit therefor from the corresponding
authorities. Contrary to law."

When the case was called for hearing on September 3, 1963, the lower court at the outset asked the
counsel for the accused: "May counsel stipulate that the accused was found in possession of the
gun involved in this case, that he has neither a permit or license to possess the same and that we
can submit the same on a question of law whether or not an agent of the governor can hold a firearm
without a permit issued by the Philippine Constabulary." After counsel sought from the fiscal an
assurance that he would not question the authenticity of his exhibits, the understanding being that
only a question of law would be submitted for decision, he explicitly specified such question to be
"whether or not a secret agent is not required to get a license for his firearm."

Upon the lower court stating that the fiscal should examine the document so that he could pass on
their authenticity, the fiscal asked the following question: "Does the accused admit that this pistol cal.
22 revolver with six rounds of ammunition mentioned in the information was found in his possession
on August 13, 1962, in the City of Manila without first having secured the necessary license or permit
thereof from the corresponding authority?" The accused, now the appellant, answered categorically:
"Yes, Your Honor." Upon which, the lower court made a statement: "The accused admits, Yes, and
his counsel Atty. Cabigao also affirms that the accused admits."

Forthwith, the fiscal announced that he was "willing to submit the same for decision." Counsel for the
accused on his part presented four (4) exhibits consisting of his appointment "as secret agent of the
Hon. Feliciano Leviste," then Governor of Batangas, dated June 2, 1962;1 another document
likewise issued by Gov. Leviste also addressed to the accused directing him to proceed to Manila,
Pasay and Quezon City on a confidential mission;2 the oath of office of the accused as such secret
agent,3 a certificate dated March 11, 1963, to the effect that the accused "is a secret agent" of Gov.
Leviste.4 Counsel for the accused then stated that with the presentation of the above exhibits he was
"willing to submit the case on the question of whether or not a secret agent duly appointed and
qualified as such of the provincial governor is exempt from the requirement of having a license of
firearm." The exhibits were admitted and the parties were given time to file their respective
memoranda. 1wph1.t

Thereafter on November 27, 1963, the lower court rendered a decision convicting the accused "of
the crime of illegal possession of firearms and sentenced to an indeterminate penalty of from one
year and one day to two years and to pay the costs. The firearm and ammunition confiscated from
him are forfeited in favor of the Government."

The only question being one of law, the appeal was taken to this Court. The decision must be
affirmed.

The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person to
. . . possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or
implement used or intended to be used in the manufacture of firearms, parts of firearms, or
ammunition."5 The next section provides that "firearms and ammunition regularly and lawfully issued
to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine
Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial
governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and
guards of provincial prisoners and jails," are not covered "when such firearms are in possession of
such officials and public servants for use in the performance of their official duties."6

The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt.
Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction
and interpretation come only after it has been demonstrated that application is impossible or
inadequate without them."7 The conviction of the accused must stand. It cannot be set aside.

Accused however would rely on People v. Macarandang,8 where a secret agent was acquitted on
appeal on the assumption that the appointment "of the accused as a secret agent to assist in the
maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the
category of a "peace officer" equivalent even to a member of the municipal police expressly covered
by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the
clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts
with what was held in People v. Macarandang, it no longer speaks with authority.

Wherefore, the judgment appealed from is affirmed.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and
Angeles, JJ., concur.

EN BANC

G.R. No. L-25577 March 15, 1966

ONOFRE P. GUEVARA, petitioner,

vs.
RAOUL M. INOCENTES, respondent.

Ambrosia Padilla and Onofre Guevara for the petitioner.

Office of the Solicitor General for the respondent.

BAUTISTA ANGELO, J.:

This decision is written in keeping with the statement we made in our resolution dated February 16,
1966.
Petitioner was extended an ad interim appointment as Undersecretary of Labor by the former
Executive on November 18, 1965, having taken his oath of office on November 25 of the same year,
and considering that the ad interim appointment for the same position extended to respondent by the
incumbent Executive on January 23, 1966 is invalid in spite of Memorandum Circular No. 8 issued
by the latter on the same date declaring all ad interim appointments made by the former Executive
as having lapsed with the adjournment of the special session of Congress at about midnight of
January 22, 1966, petitioner brought before this Court the instant petition for quo warranto seeking to
be declared the person legally entitled to said office of Undersecretary of Labor.

The petition is predicated on the following grounds: (1) under Article VII, Section 10(4) of the
Constitution, petitioner's ad interim appointment is valid and permanent and may only become
ineffective either upon express disapproval by the Commission on Appointments or upon the
adjournment of the regular session of Congress of 1966; (2) here there has been no express
disapproval by the Commission on Appointments because the same has never been constituted
during the special session called by President Marcos in his Proclamation No. 2, series of 1966; and
(3) there has been no adjournment of the Congress as contemplated in the Constitution because (a)
the aforesaid special session was suspended by the House on Saturday, January 22, 1966 at 10:55
p.m. to be resumed on Monday, January 24, 1966 at 10:00 a.m.; (b) the resolution approved by the
Senate on January 23, 1966 at past 2:00 a.m. for adjournment sine die is not the adjournment
contemplated in Article VII, Section 10(a) of our Constitution; (c) the suspension by the House or the
adjournment by the Senate to resume the session on January 24, 1966 at 10:00 a.m. meant the end
of the special session and the start of the regular session as a continuous session without any
interruption; and (d) the phrase "until the next adjournment of the Congress" must be related with the
phrase "until disapproval by the Commission on Appointments" so that the adjournment
contemplated should refer to a regular session during which the Commission on Appointments may
be organized and allowed to discharge its functions as such.

Respondent, on the other hand, set up the following defenses: (1) petitioner's ad interim appointment
lapsed when Congress adjourned its last special session called under Proclamation No. 2 of
President Marcos; (2) an ad interim appointment ceases to be valid after each term of Congress and
so petitioner's appointment must have lapsed as early as December 30, 1965; (3) petitioner's ad
interim appointment as well as others made under similar conditions, is contrary to morals, good
customs and public policy, and hence null and void; and (4) petitioner's appointment is void in the
light of the doctrine laid down in Rodriguez, Jr. vs. Quirino, G.R. No. L-19800 October 28, 1953.

After due deliberation, the Court resolved that the ad interim appointment extended to petitioner on
November 18, 1965 by the former Executive lapsed when the special session of Congress
adjourned sine die at about midnight of January 22, 1966, as embodied in our resolution dated
February 16, 1966.

We will now elaborate on the reasons expressed in said resolution.

The important provision to be considered is Article VII, Section 10, Subsection 4 of our Constitution,
which provides:

The President shall have the power to make appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress.

A perusal of the above-quoted provision would at once reveal that it is the clear intent of the framers
of our Constitution to make a recess appointment effective only (a) until disapproval by the
Commission on Appointments, or (b) until the next adjournment of Congress, and never a day longer
regardless of the nature of the session adjourned. And this is so considering the plain language of
the aforesaid provision which is free from any ambiguity in the light of the well-settled rule of
statutory construction that "when the intention of the legislature is so apparent from the face of the
statute that there can be no question as to its meaning there is no room for construction" (Vol. 2,
Sutherland, Statutory Construction, p. 316). Hence, the above provision contemplates two modes of
termination of an ad interim appointment, or of one made during the recess of Congress, which are
completely separate from, and independent of, each other. And while during the special session
called under proclamation No. 2 no Commission on Appointments was organized by Congress, the
second mode of termination, however, had its constitutional effect, as when Congress adjourned
sine die at about midnight of January 22. 1966. Such adjournment, in legal contemplation, had the
effect of terminating petitioner's appointment thereby rendering it legally ineffective.

Petitioner's theory that the first mode of termination consisting in the disapproval by the Commission
on Appointments should be inseparately related with the clause "until the next adjournment of
Congress" in the sense that the Commission has to be first organized in order that the last mode
may operate is untenable considering that the latter is not dependent upon, nor influenced in any
manner by the operation of the former. As already stated, the two modes of termination are
completely separate from and independent of each other. If the framers of the Constitution had
intended to make the operation of the second clause dependent upon the prior constitution of the
Commission on Appointments they should have so stated in clear terms considering that the first
clause implies a positive act of the Commission, while the second an entirely separate and
independent act of Congress. Indeed, the theory of petitioner, if carried to its logical conclusion, may
result into the anomaly that, should Congress be controlled by a party not inclined to organize said
Commission, or should there arise a group which for reasons of its own indulges in obstructionism,
the Commission on Appointments contemplated in the Constitution is never organized as a
consequence of the action of either, any appointment made during the recess of Congress would
never run the test of legislative scrutiny and would thereby then be always considered permanent
even if it is extended ad interim, a result which, to be sure, was never intended by the framers of our
Constitution. It thus becomes imperative that we avoid such absurd result.

It is true that the provision of the Constitution we are now considering in speaking of the mode of
termination epitomized in the phrase "until the next adjournment of the Congress" does not make
any reference to any specific session of the Congress, whether regular or special, but such
silence is of no moment, for it is a well-known maxim in statutory construction that when the law
does not distinguish we should not distinguish. UBI LEX NON DISTINGUIT NEC NOS
DISTINGUERE DEBEMUS (Robles vs. Zambales Chromite Mining Company, et al., G. R. No. L-
12560, September 30, 1958). Consequently, it is safe to conclude that the framers of our
Constitution in employing merely the word adjournment as a mode of terminating an appointment
made during the recess of Congress had in mind either the regular or special session, and not
simply the regular one as contended by petitioner.

Under our tripartite form of government predicated on the principle of separation of powers the
power to appoint is inherently an executive function while the power to confirm or reject
appointments belongs to the legislative department, the latter power having been conferred as a
check on the former. This power to check may be exercised through the members of both Houses in
the Commission on Appointments. But although the Commission on Appointments is provided for in
the Constitution, its organization requires congressional action, and once organized, by express
provision of the Constitution, it "shall meet only while Congress is in session." Consequently, if for
any reason Congress adjourns a regular or special session without organizing the Commission on
Appointments, Congress should be deemed to have impliedly exercised said power to check by
allowing the ad interim appointments to lapse as provided for in the Constitution.
The next important inquiry is: Since Congress in its special session held under Proclamation No. 2 of
the President, series of 1966, did not deem it wise to organize the Commission on Appointments to
act on the recess appointments made by the former Executive, can it be said that Congress is
deemed to have impliedly exercised its power to check on such recess appointments when it
adjourned its special session at about 12:00 o'clock midnight of January 22, 1966?

The answer must of necessity be in the affirmative inasmuch as that special session actually
adjourned in legal contemplation at about 12:00 midnight of January 22, 1966 considering that the
Senate adjourned sine die at about said hour. Although the House allegedly suspended its session
at 10:55 p.m. on January 22, 1966 to be resumed on Monday, January 24, 1966, at 10:00 a.m.,
Congress cannot be considered to be in special session subsequently to January 22 for the reason
that the House without the Senate which had adjourned sine die, is not "Congress." Indeed, when
the Senate adjourned at 12:00 midnight on January 22, 1966 this adjournment should be considered
as the "next adjournment of the Congress" of the special session notwithstanding the alleged
suspension of the session earlier by the House for the reason that neither the House nor the Senate
can hold session independently of the other in the same manner as neither can transact any
legislative business after the adjournment of the other. None other than President Macapagal and
Speaker Cornelio Villareal expressed such opinion when as members of the Lower House in 1954
they expoused and defended the same on the floor as can be seen from the following transcript of
the congressional record:

Mr. MACAPAGAL . . . Since the Senate has, by its own responsibility, adjourned one and
a half hours ago, therefore, under the present facts, in our Constitution this House is
automatically adjourned, and therefore it is improper and illegal for us to continue the
proceedings farther.

xxx xxx xxx

Mr. VILLAREAL Mr. Speaker, although it is true that I do not want to appeal from the
ruling of the Chair, nonetheless, I maintain that our actuations from the time we approved
that resolution will be illegal acts, and I do not want this Congress to commit illegal acts
because it will affect the dignity of this Chamber. We are not unaware of the facts. I invite the
Presiding Officer and everybody here to go to the Senate now, and if they accept my
challenge, let us go so that I can prove to them that there is not one ghost of any Senator in
that Chamber. The Senate has actually adjourned, Mr. Speaker, and are we to have a fiction
here that the Senators are still holding a session? We approved that resolution of
adjournment before twelve o'clock tonight knowing that the Senate adjourned two or three
hours ago. Are we crazy here to believe that the Senators are still holding sessions? How
can we in conscience justify our actuations here that we are still doing something for the
benefit of the people when in fact and in truth we are not because we cannot do so? . . .

Mr. Speaker, let us be frank; let us be honest to ourselves; let us not ridicule ourselves; let us
adjourn now because we having nothing to do and all that we will do will be illegal beginning
now. . . .

Mr. Speaker. I honestly believe that legally we cannot do anything any further, and if I am the
author of a bill pending approval, I would not submit the bill for passage now because that
will be the subject of litigation in court as to whether such approval will be legal or not, and I
would never risk my committee report to be submitted after the approval of that resolution,
knowing fully well that actually and physically that Upper Chamber has already adjourned.
(Congressional Record, House of Representatives, 3rd Congress, Republic of the
Philippines, First Regular and First Special Sessions, Vol. I, pp. 4091 and 4094). 1w ph1.t
As a corollary, the theory that there was a continuous session without any interruption when the
house allegedly suspended its session at 10:55 p.m. on January 22, 1966 to be resumed on
Monday, January 24, 1966 at 10:00 a.m. cannot be accepted, because such theory runs counter to
well-established parliamentary precedents and practice. Thus, for one thing, between January 22,
1966 at 10:55 p.m. and January 24, 1966 at 10:35 a.m. when the House opened its regular session,
there intervened January 23, 1966, which was Sunday, and as such is expressly excluded by the
Constitution as a session day of Congress. For another, it is imperative that there be a "constructive
recess" between a special and regular session, as when a regular session succeeds immediately a
special session or vice-versa, and so a special session cannot be held immediately before a regular
session without any interruption nor can both be held simultaneously together. Hinds' Precedents
has the following to say on the matter:

The commissions granted during the recess prior to the convening of Congress in
extraordinary session November 9, 1903, of course furnished lawful warrant for the
assumption by the persons named therein of the duties of the offices to which they were,
respectively, commissioned. Their names were regularly sent to the Senate thereafter. If
confirmed, of course they would hold under appointment initiated by the nomination without
any regard to the recess commission. If not confirmed, their right to hold under the recess
nomination absolutely ended at 12 o'clock meridian on the 7th of December, 1903, for at that
hour the extraordinary session ended and the regular session of Congress began by
operation of law. An extraordinary session and a regular session can not coexist, and the
beginning of the regular session at 12 o'clock was the end of the extraordinary session; not a
constructive end of it, but an actual end of it. At 12 o'clock December 7 the President pro
tempore of the Senate said:

Senators, the hour provided by law for the meeting of the first regular session of the
Fifty-eighth Congress having arrived, I declare the extraordinary session adjourned
without day.

Aside from the statement upon the record that the "hour had struck" which marked the
ending of the one and the beginning of the other, the declaration of the President pro
tempore was without efficacy. It did not operate to adjourn without day either the Congress or
the Senate. Under the law the arrival of the hour did both.

The constitutional provision that the commission shall expire at the end of the next session is
self-executing, and when the session expires the right to hold under the commission expires
with it. If there be no appreciable point of time between the end of one session and the
beginning of another, since of necessity one ends and another begins, the tenure under the
commission as absolutely terminates as if months of recess supervened. (Hinds' Precedents
of the House of Representatives of the United States, Vol. V, p. 854.)

Considering now petitioner's ad interim appointment and others extended under similar conditions in
the light of the doctrine we laid down in the Aytona case, we may say that they were even more
irregular than those involved in said case to the extend that they may be avoided even on this
ground alone. Thus, while President Garcia only extended 350 ad interim appointments after he had
lost the election, President Macapagal made 1,717 ad interim appointments most of which were
made only after the elections in November, 1965. As a consequence, the following anomalies were
noted: a former presidential assistant was appointed judge of three different salas, another was
appointed to a non-existing branch of the Court of First Instance of Pangasinan, while still another
who had a pending disbarment case received an ad interim appointment as judge of first instance.
This is indeed a far cry from the following admonition we made in the Aytona case:
 Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of
December 30, 1961. But it is common sense to believe that after the proclamation of the
election of President Macapagal, his was no more than a "caretaker" administration. He was
duty bound to prepare for the orderly transfer of authority to the incoming President, and he
should not do acts which, he ought to know, would embarrass or obstruct the policies of his
successor. The time for debate had passed; the electorate had spoken. It was not for him to
use his powers as incumbent President to continue the political warfare that had ended or to
avail himself of presidential prerogatives to serve partisan purposes. The filling up of
vacancies in important positions, if few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointee's qualifications may undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of almost all of them a few hours before
the inauguration of the new President may, with some reason, be regarded by the latter as
an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan
effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to
deprive the new administration of an opportunity to make the corresponding appointments.
(Aytona vs. Castillo, et al., G.R. No. L-19313, January 20, 1962.)

It is hoped that now and hereafter such excess in the exercise of power should be obviated to avoid
confusion, uncertainty, embarrassment and chaos which may cause disruption in the normal function
of government to the prejudice of public interest. It is time that such excess be stopped in the
interest of the public weal.

Wherefore, petition is denied. No costs.

Bengzon, C.J., Reyes, J.B.L., Barrera and Regala, JJ., concur.

Makalintal, J., dissents for the same reasons previously expressed by him in the resolution of Feb.
16, 1966.
Bengzon, J.P., and Sanchez, JJ., took no part.

Separate Opinions

CONCEPCION, J., concurring:

Having been extended an ad interim appointment, dated November 18, 1965, as Undersecretary of
Labor, petitioner Onofre F. Guevara assumed the office on November 25, 1965. The question for
determination is whether his title to said office has lapsed upon adjournment of the special session
of Congress that began on January 17, 1966, in view of the provisions of Section 10(4), Article VII of
the Constitution, reading:

The President shall have the power to make appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress.

Petitioner maintains that the question adverted to above should be answered in the negative, for
there has been no adjournment of Congress because the aforementioned special session had
commenced on January 17, 1966, and, although the Senate had adjourned sine die shortly after
midnight of January 22 to 23, 1966, the House of Representatives merely suspended its session on
January 22, 1966, at 10:55 p.m., "to be resumed on January 24, 1966, at 10:00 a.m." when the
present regular session began. Petitioner concludes, therefrom, that Congress has been in
continuous session without any interruption" since January 17, 1966.
This pretense is clearly devoid of merit for:

1. The Senate had admittedly adjourned at about midnight of January 22 to 23, 1966. Inasmuch as
the House of Representatives is only a part of our Congress, not Congress itself, it follows
necessarily that "Congress" can not be said to have been in session on January 23, 1966.

2. Not even the House was in special session on January 23 and 24, 1966. The fact is that it did not
hold any session on January 23, 1966. Although it purported to have "suspended" the session on
January 22 to be resumed on January 24, the House did not, evidently, intend to "resume" the
special session on January 24, 1966, at 10:00 a.m., for: a) the members of the House knew that
the regular session would then begin; b) the regular session did begin on January 24, 1966, at 10:00
a.m.; and c) they did not meet, or try or even purport to meet in special session on January 24, 1966,
or at any other time after January 22, 1966. In other words, when, on January 22, 1966 at 10:55
p.m., the House placed on record that the (special) session was then suspended to be resumed on
January 24, 1966, at 10:00 a.m., it meant that the Congressmen would meet on January 24, 1966, at
10:00 a.m., not in special session, but to begin the regular session.

3. Petitioner does not claim that Congress is still in special session. It is, likewise, an undisputable
and undisputed fact that the regular session of Congress had begun on January 24, 1966. Since the
commencement of such regular session has necessarily put an end, ipso facto, to the special
session that began on January 17, 1966, the inevitable conclusion is that Congress, assembled in
such special session, has adjourned since, at least, January 24, 1966,1even if we assumed
hypothetically that its two (2) Houses had actually assembled daily in legislative session, without any
interruption, from January 17 up to this date, which is not a fact. Indeed, said assumption does not
offset the fact that the present regular session of Congress is different, distinct and separate from
said special session; that said regular session is not the session next following the issuance of
petitioner's ad interim appointment; and that, even if the regular session had followed the special
session, without any physical solution of continuity, said special session, which is the one next to
said ad interim appointment has in fact and in law been adjourned. Hence, it is admitted in the
petition herein (par. 6[d]) that the aforementioned "suspension by the House" of its session on
January 22, to be resumed on January 24, 1966, at 10:00 a.m. "meant the end of the special
session."

It is next urged by petitioner that the clause "the next adjournment of the Congress" in the above
quoted provision of our fundamental law refers to an adjournment of Congress assembled in regular
session. I am unable to accept this view because:

1) To do so would entail a judicial legislation by the insertion of the word "regular" in said
provision. We can not even justify such act upon the ground of judicial construction, for
"where the language of a statute is plain and unambiguous" as the constitutional precept
in question is "there is no occasion for construction, and the statute must be given effect
according to its plain and obvious meaning,"2 and "this is true even though other meanings of
the language employed could be fraud."3

The editor of American Jurisprudence has expressed itself as follows:

x x x Where the language of a statute is plain and unambiguous and conveys a clear
and definite meaning, there is no occasion for resorting to the rules of statutory
construction, and the court has no right to look for or impose another meaning.4

2) Neither can we adopt petitioner's theory without, in effect, amending the Constitution, and
violating its requirement therefor of "a vote of three-fourths (3/4) of all the Members of the
 Senate and of the House of Representatives voting separately" and a ratification by a
majority of the votes cast at a plebiscite called for the purpose.5 As the branch of the
Government to which the task of being the last bulwark of the Constitution has been
assigned, we can not adopt the posture advocated by the petitioner, entailing as it does an
impairment of the basic tenets of our political system, and the assumption of omnipotent
powers which, admittedly, we do not have.

3) Petitioner's theory is refuted by the fact admitted by petitioner and his counsel that
the adjournment of a special session of Congress may render ineffective an ad
interim appointment made prior thereto, if said appointment had been preceded by a regular
session of a new Congress. In fact, upon adjournment of the regular session of Congress in
1965, ad interim appointments were made, some of which, including those of several
members of this Court, were renewed upon the adjournment of each of the
several special sessions called after said regular session. In other words, it is an established
practice in this jurisdiction, confirmed no less than by the party backing up petitioner herein,
that ad interim appointments made before a given special session of Congress, expire upon
the adjournment thereof.

4) Petitioner's theory is further refuted by the fact that, if a special session is held before the
initial regular session of a new Congress, and the Commission on Appointments is organized
during said special session, its adjournment would admittedly extinguish the effectivity of ad
interim appointments made prior thereto, provided, according to petitioner, that the
Commission has had reasonable time during that session to act on said appointments.

In this connection, it should be noted that, although Congress convenes in regular session on the
fourth Monday of January, it may by law fix another date for the beginning of said session.6 Suppose
that the date fixed by law therefor is, say, June 19 (Rizal's birthday); that ad interim appointments
have been made on January 2, following the assumption of office of a new President, who calls four
(4) special sessions, one after the other, each for thirty (30) days, the first to begin on January 5; and
that the Commission on Appointments is duly organized on January 10. Shall we hold that, if the
Commission does not act on said appointments, the same shall be effective until the adjournment of
the regular session of Congress, which, in our hypothesis, would take place early in October?
Indeed, there is no plausible reason to distinguish between the adjournment of a regular session and
that of a special session, insofar as the effect thereof upon ad interim appointments is concerned.

The main argument adduced in support of petitioner's theory that the adjournment of the last special
session of Congress cannot affect the effectivity of his ad interim appointment, is that the
Commission on Appointments had not been organized during said special session and that, even if
then organized, the Commission would not have had enough time, during that session, to consider
the 1,717 ad interim appointments made after the last special session held in 1965.

With respect to the last part of the argument, the Constitution does not make the extinctive effect of
the "next adjournment of the Congress" upon ad interim appointments made prior thereto dependent
on the sufficiency of the time available to the Commission on Appointments. Thus, if the Commission
on Appointments were not organized until, say, May 15, 1966, there could be no possible doubt that
such ad interim appointments as may have been made prior to the present regular session of
Congress, no matter how many said appointments may be, would lapse upon adjournment of
Congress at about May 20, or five (5) days later, even if this period of time were manifestly
inadequate to permit a reasonable consideration of said appointments.

Let us now consider the theory that the "next adjournment of the Congress" does not extinguish the
effectivity of ad interim appointments made prior thereto, unless the Commission on Appointments
has been organized before said adjournment. This theory is contradicted by the admission of
petitioner's counsel during the hearing of this case, that, upon adjournment of a regular session of
Congress, ad interim appointments made before said session would lapse, even if the Commission
on Appointments had not been organized prior to said adjournment.

The aforementioned theory is, moreover, predicated upon false assumptions, namely: that the "next
adjournment of the Congress" should be construed in relation only to the "disapproval of the
Commission on Appointments," not to "the recess of the Congress"; that "the next adjournment of
the Congress" terminates the effectivity of ad interim appointments because the Commission on
Appointments cannot function when Congress is not in session; and that Congress would be
usurping the functions of the Commission on Appointments if said appointments lapsed by the
adjournment of Congress, although the Commission had not as yet been constituted.

At the outset, it is well to remember that one of the fundamental tenets underlying our constitutional
system is the principle of separation of powers, pursuant to which the powers of government are
mainly divided into three classes,7 each of which is assigned to a given branch of the service.8 The
main characteristic of said principle is not, however, this allocation of powers among said branches
of the service,9 but the fact that: 1) each department is independent of the others and supreme within
its own sphere; and 2) the power vested in one department cannot be given or delegated, either by
the same or by Act of Congress, to any other department. The reason is that, otherwise, instead of
being separated, said powers are likely to be concentrated - and hence united - in one (1)
department, 10 thereby seriously jeopardizing our republican system. Indeed, history has shown that
sovereignty cannot long remain in the people when the powers of Government are in the hands of
one man, for the latter is thus placed in a position, and would eventually be inclined, to change his
role, from that of a public servant to that of master of the people.

The separation of powers in our Government is not, however, absolute. Not all legislative powers are
vested in Congress. Some, like the veto power and the power to make rules of Court, are explicitly
vested in the President and the Supreme Court, respectively. 11 Similarly, not all executive powers
are vested in the President. Some, like the treaty-making power, are shared by him with the
legislative department. 12 Not all judicial powers are vested in courts of justice. Some like the
pardoning power are lodged exclusively in the President. 13

As a consequence, there is some overlapping of powers and a system of checks and balances,
under which a department may exercise some measure of restraint, upon another department. Such
is the situation as regards appointing power of the Executive, which is subject to said restraint by the
legislative department. 14 Indeed, the latter may limit said executive power by, inter alia, prescribing
the qualifications of the appointees, fixing their term of office, or disapproving appointments to some
offices.

With respect to the approval or disapproval of appointments, the framers of our Constitution
considered it, however, impractical to entrust the exercise of the power to the whole National
Assembly or Congress. Considering its sizeable membership, it was deemed wiser to vest the power
of confirmation or rejection of appointments upon a body, small enough to permit reasonable
expeditious action, when necessary, but sufficiently representative to reflect substantially the views
of the legislature. Hence, the Commission on Appointments, which, under the present Constitution,
consists of "twelve Senators and twelve Members of the House of Representatives elected by each
House, respectively, on basis of proportional representation of the political parties
therein." 15 Although, in the discharge of their duties, the Members of the Commission are not under
the control of Congress, it is only obvious, from the composition of the Commission particularly
the equal representation therein of each House of Congress and the manner of selection of the
Members of the Commission that the same was expected to reflect the feelings of Congress on
presidential appointments, and this expectation has, invariably, been borne out by the facts. In other
words, the Commission was intended to be, and is an agent of Congress, or the means by which
Congress may check the appointing power of the President.

More specifically, appointments made by the President are subject to two (2) forms of legislative
restraint, namely: a) disapproval of the Commission on Appointments; and b) termination of the
effectivity of ad interim appointments upon "the next adjournment of the Congress."

As regards the first form of restraint, the Constitution provides that regular appointments to specified
offices shall be made only after consent thereto has been given by the Commission on
Appointments, to which the President must have first submitted the corresponding
nominations. 16 Inasmuch as the Commission can act only while Congress is in session, 17 no
appointments could be made during a recess of Congress for lack of said consent, if the provision
above quoted had not been inserted in the fundamental law. Pursuant thereto, which Congress is
not in session, a nomination need not be made. Neither is the previous consent of the Commission
on Appointments necessary, for, being impotent to act at such time, said consent cannot possibly be
given. In order to avoid a hiatus in the public service to forestall a suspension in the exercise of
governmental functions the President may "make appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress."

Now, why is the lifetime of ad interim appointments limited? Because, if they expired before the
session of Congress, the evil sought to be avoided interruption in the discharge of essential
functions may take place. Because the same evil would result if the appointments ceased to be
effective during the session of Congress and before its adjournment. 18 Upon the other hand, once
Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of
other ad interim appointments or reappointments.

In short, an ad interim appointment ceases to be effective upon disapproval by the Commission,

because the incumbent can not continue holding office over the positive objection of the
Commission. It ceases, also, upon the next adjournment of the Congress," simply because the
President may then issue new appointments not because of implied disapproval of the
Commission deduce from its inaction during the session of Congress, for, under the Constitution, the
Commission may affect adversely the ad interim appointments only by action, never by omission. If
the adjournment of Congress were an implied disapproval of ad interim appointments made prior
thereto, then the President could no longer appoint those so bypassed by the Commission. But, the
fact is that the President may reappoint them, thus clearly indicating that the reason for said
termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said
omission of the Commission, but, the circumstance that, upon said adjournment of the Congress, the
President is free to make ad interim appointments or reappointments.

It is thus patent that the adjournment of Congress operates differently from the disapproval by the
Commission; that the effect of the former is predicated upon a premise other than that of the latter;
and that the opinion of the majority of the Court in the case at bar, not only does not lead to an
encroachment by Congress upon the field assigned to the Commission on Appointments, but is,
moreover, in consonance with the latter and the spirit of the fundamental law.

In fact, the first draft of our Constitution provided that ad interim appointments shall "become
ineffective after a period of three months or upon disapproval" by a Permanent Commission, which
was to perform the functions of the Commission on Appointments. In other words, it subjected the
effectivity of said appointments to (1) a period (three months) and (2) a condition (disapproval by the
Permanent Commission). It is worthy of notice, in this connection, that the operation of said period
was not conditioned upon the organization of the Permanent Commission. The provision
incorporated into the original Constitution 19 adopted, in principle, the same limitations: a period and
a condition. In lieu of the "Permanent Commission", it used the phrase "Commission on
Appointments", and instead of the three-month term in the draft, it, merely, inserted the clause "until
the next adjournment of the National Assembly". Upon the amendment of our Constitution, by the
establishment of a bicameral legislature, the term "Congress" was substituted in lieu of the "National
Assembly". The philosophy of the original draft was thereby preserved the effectivity of ad interim
appointments is subject to a condition (disapproval by the Commission on Appointments) and a
period (the next adjournment of the Congress, regardless of whether the Commission on
Appointments was been organized or not).

A portion of my concurring and dissenting opinion in Aytona vs. Castillo (L-19313, Jan. 19, 1962)
has been quoted in support of petitioner herein. Detached from the context thereof, the quotation
seemingly gives an impression altogether at variance with the obvious import of said opinion. The
Aytona case did not involve the legal issue posed in this case the effect of the adjournment of a
special session of Congress upon ad interim appointments made prior thereto. The question raised
in the Aytona case was whether an incoming President could, before Congress had met in regular or
special session, validly withdraw ad interim appointments made by the outgoing President, in order
that the Commission on Appointments could not act, even if it wanted to, on said appointments. In
the regular session of Congress following said withdrawal of ad interim appointments, the
Commission on Appointments was actually organized. What is more, the Commission did, in fact,
approve or confirm some of the aforementioned ad interim appointments. The Aytona case was
decided even before the next session of Congress had begun. An incident thereof 20 was decided
before the adjournment of said session. There was no occasion, therefore, to pass upon the effect of
said adjournment. In the case at bar, the ad interim appointments made by the outgoing President
were not withdrawn by the incoming President before the special session of Congress; the
Commission on Appointments was not organized during said special session; and the President
merely considered said appointments 21 ineffective upon the adjournment of the aforementioned
special session, as well as withdrawn.

True, there are a number of things in common between the Aytona case and the one at bar; in both
cases the outgoing President had made hundreds of ad interim appointments knowing that he had
lost his bid for reelection; in both cases equity is, admittedly, against the action taken by the outgoing
President and in favor of that taken by the incoming President; in both cases the judicial verdict has
been in favor of the latter. But, then, there are the following points of difference: (1) the right of the
incoming President to withdraw said appointments in the Aytona case was defended by those who
deny the existence of such right in the present case; (2) those who invoked equity in favor of the
measure taken by the incoming President in the Aytona case, now object to the application of the
rules of equity in favor of the action taken by the incoming President in the case at bar; (3) the only
legal ground, in support of our decision in the Aytona case was a principle of equity in the writs of
prohibition and mandamus sought by Aytona depended upon the sound discretion of the Court to be
exercised on equitable principles, because of which the writs were denied whereas, in addition to
equity, there is a clear and explicit provision of the Constitution in support of the step taken by the
incoming President in the present case; (4) those who urged the condition of said decision in the
Aytona case, backed by no other principles than those of equity, and hailed it as an act of justice,
now maintains that said principles, plus said constitutional provision, are insufficient to warrant a
similar decision in the present case.

It is trite to say that the interest of the appointees involved therein cannot but be the object of grave
concern. But, the Courts must apply the law as they find it, not as they wish it to be. Moreover, the
power to make ad interim appointments and the lifetime thereof are dictated by considerations of
public policy the neccessity of insuring continuity in the discharge of the sovereign functions of the
State. The protection of the interest of the appointees is subordinate to such policy and merely
incidental thereto. Under our constitutional set up, the President is the principal administrative officer
of the Government. As such, he is the officer mainly responsible for the faithful execution of the laws
and the maintenance of law and order in the Philippines. Consistently with this responsibility, he has
authority to appoint those who shall assist him in the discharge of his difficult task. He may exercise
such authority, even if his term is about to expire, but, only to avoid a disruption in the operation of
the Government. And his appointees particularly those whose appointments have been confirmed
by the Commission on Appointments shall be entitled to remain in office, even after the expiration
of his term. But, the recipients of his ad interim appointments are forwarned that the same are
subject to the resolutory condition and the period adverted to above. They know that, unless
approved by the Commission prior thereto, the appointments cease to be effective upon the
expiration of said period. They know that the incoming Executive may then either re-appoint those
whose ad interim appointments had lapsed or appoint others whom he may deem fit to carry out the
policies of his administration. In the exercise of this authority, his functions are mainly political, and,
hence, not subject to judicial review.

Wherefore, I vote to dismiss the petition and concur in the majority opinion, penned by Mr. Justice
Felix Bautista Angelo.

DIZON, J., concurring:

I concur. However, aside from the reasons given in support of the majority opinion penned by Mr.
Justice Felix Bautista Angelo, I am of the opinion that the ad interim appointments extended to
petitioner Guevara must be deemed to have lapsed for the reasons given in support of the
concurring opinion penned by former Justice Sabino Padilla in the Aytona case with which I
concur.

FIRST DIVISION

G.R. No. L-33052 August 31, 1981

ANGEL R. QUIMPO, petitioner,

vs.
LEONCIO MENDOZA, as Treasurer for the City of Cagayan de Oro, and in his personal
capacity, and JUDGE BERNARDO TEVES, as Presiding Judge of Branch IV of the Court of
First Instance of Misamis Oriental, respondents.

GUERRERO, J.:

This is a petition to review on certiorari the decision rendered by the Court of First Instance of
Misamis Oriental, Branch IV, dismissing the suit for mandamus and damages filed by herein
petitioner Angel R. Quimpo against herein respondent Leoncio Mendoza, as Treasurer of the City of
Cagayan de Oro and in his personal capacity.

The background facts are stated in the decision of the lower court, thus:

Petitioner Angel Quimpo is the owner of a building located in Cagayan de Oro City
assessed at P20,000.00 for 1969 under Tax Declaration No. 2102. The realty tax of
said building is P400.00 yearly payable in four equal installments, the first installment
to be paid on or before March 31. The second installment, on or before June 30; the
 third installment, on or before September 30; and the last installment, on or before
December 31. (Sec. 4, RA 5447).

Petitioner paid on time the first three installments amounting to P300.00, but with
respect to the last installment of P100.00 which was to be paid on or before
December 31, it was only on August 27, 1970 that he tendered the amount of
P124.00, which covered, according to his computation, the tax or last installment of
P100.00 and the penalty of P24.00 to herein respondent City Treasurer of Cagayan
de Oro, who refused the payment insisting that petitioner ought to pay the last
installment of P100.00 plus the penalty of P96.00 or a total of P196.00 (Stipulations,
pars. 3 & 4) based on and computed according to Section 42 of the City Charter of
Cagayan de Oro RA 521) and the Provincial Circular No. 18-64 dated July 17, 1964
of the Secretary of Finance (Exhibit 2 and Stipulations, par. 7).

On September 2, 1970 petitioner deposited by way of consignation the above-

mentioned amount of P124.00 with the Clerk of Court (Stipulations, par. 5) and
instituted the instant action of mandamus, with damages, against herein respondent
City Treasurer in his official as well as personal capacity, praying for judgment:

1. ORDERING the respondent to accept the payment of taxes for the last installment
and the penalty therefor in the amount of ONE HUNDRED TWENTY FOUR
(Pl24.00);

2. ORDERING the respondent to issue the official receipt for the final payment of the
taxes for 1969, and a tax clearance certificate;

3. DECLARING the act of the respondent in imposing the penalty on the full amount
of the tax even if the late payment was only on the last installment as illegal, unjust,
immoral and oppressive;

4. ORDERING respondent in his personal capacity, to pay damages in the total

amount of TWELVE THOUSAND PESOS (Pl2,000.00), by way of actual moral,
exemplary damages, and attorneys fees, and costs;

5. ORDERING such just and equitable reliefs and remedies under the premises. 1

The court below sustained the City Treasurer, relying on the main opinion of this Tribunal in the case
of Padilla vs. City of Pasay and City Treasurer (L-24039, June 29, 1968, 23 SCRA 1349).

The decision under review states:

The law imposes only one annual real estate tax (plus the additional tax under RA
5447). This tax is due and payable only once, on or before March 31 of every year.
Before the effectivity of RA 5447 the taxpayer was given the option to pay the tax in
two installments, the first on or before May 31, and the second on or before October
30th. The payment in two installments was a privilege extended to the taxpayer for
his accommodation and convenience. With the imposition of the additional tax of
one per centum on the assessed value of real property in addition to the real property
tax regularly levied thereon the amount of the tax shouldered by the taxpayer has
practically been doubled, and it is for this reason, to the mind of the Court, that the
new law now allows him to pay his real tax in four equal installments instead of only
 two. There is only one tax, payable in four equal installments on specified dates; not
four different taxes, each with a different due date. ... .

Accordingly, the Court concludes that the ruling of the Supreme Court in the above-
mentioned Padilla case applies squarely to the case at bar. Hence, the tax liability of
petitioner is P100.00, corresponding to the unpaid last installment, plus P96.00
computed at 2% of the original tax of P400.00 for every full month of delinquency but
not to exceed 24% from April, 1969 to July 1970. 2

The lower court further held that it was without authority to entertain the suit for failure of petitioner to
comply with the provisions of the Charter of Cagayan de Oro (Republic Act No. 521) on payment of
tax under protest. 3

Against the foregoing judgment, petitioner assigns the following errors:

1. Respondent Judge erred when he ruled that under Section 4, R.A. 5447, the
installments for the basic and additional real property tax have only one due date but
are payable in four equal installments

2. Respondent Judge erred in ruling that on the question of the imposition of the tax
penalty, said penalty must first be paid under protest before the suit can prosper; and

3. Respondent Judge erred in ruling that the error of respondent City Treasurer, if
any, arose from an honest interpretation of the law or their meaning, and therefore no
damages can be awarded.

In resolving the first assignment of error, it is well to set forth the pertinent provisions of law, R.A.
521 (Charter of Cagayan de Oro City), to wit:

Section 42. Taxes on real estate. A tax, the rate of which shall not exceed two per
centum ad valorem to be determined by the Municipal Board, shall be levied annually
on or before the second Monday of January on the assessed value of all real estate
in the city subject to taxation. All taxes on real estate for any year shall be due and
payable annually on the first day of June, and from this date such taxes together with
all penalties accruing thereto shall constitute a lien on the property subject to such
taxation.

xxx xxx xxx

At the option of the taxpayer, the tax for any year may be paid in two installments to be fixed
annually by the Municipal Board simultaneously with the rate per centum of ad valorem taxation;
Provided, That the time limit for the first and second installments shall be set at not later than the
thirty first day of May and the thirtieth day of October of each year, respectively.

xxx xxx xxx

At the expiration of the time for the payment of the real estate tax without penalty, the taxpayer shall
be subject, from the first day of delinquency, to the payment of a penalty at the rate of two per
centum for each full month of delinquency that has expired, on the amount of the original tax
due, until the tax shall have been paid in full or until the property shall have been forfeited to the city
as provided in this Act: Provided, That in no case shall the total penalty exceed twenty-four per
centum of the original tax due.

xxx xxx xxx

On January 1, 1969, Republic Act No. 5447 took effect, imposing an additional tax on real property
and providing, inter alia, that "the pertinent provisions of the corresponding charters of chartered
cities to the contrary notwithstanding, the basic and the additional property tax shall be due and
payable in four equal installments; the first installment shall be due and payable on or before March
31; the second installment, on or before June 30; the third installment, on or before September 30;
and the last installment on or before December 31." 4

Petitioner contends that R.A. 5447 explicitly amended the respective city charters, including R.A.
521, by providing that the real property tax now becomes due in four equal installments and
becomes payable in four equal installments; that the term "original tax due" in R.A. 521 is only
proper if the tax has one due date and is payable in two or more installments; and, that R.A. 5447,
having been enacted after the Padilla case relied upon by respondent court, was obviously intended
to cure the harsh but mandatory law as interpreted in said decision.

We agree with petitioner that, contrary to the conclusion of the lower court, the
aforementioned Padilla case does not apply squarely to the case at bar.

In Padilla, the applicable law was Republic Act No. 183, otherwise known as the Charter of the City
of Pasay. Therein petitioner Teodoro Padilla paid the first installment of his 1963 real property tax on
time but paid his second installment only on December 23, 1963, instead of October 30 of the same
year, as required by R.A. 183. This Court held that his delinquency penalty should be based on the
amount of the original tax due, and computed from June first 5 when said tax became due and
payable. We quote below the pertinent portions of the decision as follows:

In appellant's brief, it is submitted that the taxpayer having been given an option to
pay his realty tax in two installments and the appellant having paid within the
permissible period, the first installment, he could not be considered delinquent
insofar as the first half of the realty tax is due. His delinquency should date only from
November 1, 1963 by virtue of his failure to pay on October 30 of the same year. For
appellant, it is inconclusive "how he can be declared delinquent from June 1, 1963
since the second installment of his real estate tax was not yet due on that date but
will have become due and payable only on the thirtieth of October 1963". The
decision then, according to appellant, "negates the taxpayer's option to pay his realty
tax in two (2) installments as expressly granted" by law and amounted to unwarranty
judicial legislation.

Appellant's theory is not inherently implausible. Nonetheless, it must yield to the

specific language of the law which is controlling. The last sentence of the first
paragraph of the controlling legal provision reads thus: "All taxes on real estate for
any year shag be due and payable annually on the first day of June and from this
date such taxes together with all penalties accruing thereto shall constitute a lien on
the property subject to such taxation. Two paragraphs later, the taxpayer is given the
option to pay 'in two installments to be fixed annually by the Municipal Board
simultaneously with the rate per centum ad valorem taxation:" Provided, That the
time limit for the first and second installments shall be set at not later than the thirty-
first day of May and the thirtieth day of October of each year, respectively.' Then
comes the provision as to the penalty to be imposed in case of delinquency and how
 to fix the same: At the expiration of the time for the payment of the real estate tax
without penalty, the taxpayer shall be subject, from the first day of delinquency, to the
payment of a penalty at the rate of two per centum for each fun month of delinquency
that has expired, on the amount of the original tax due, until the tax shall have been
paid in fun or until the property shall have been forfeited to the city as provided in this
ACT: Provided, That in no case shall the total penalty exceed twenty- four per
centum of the original tax due.

Construed together, the above provisions yield no other conclusion but that the taxes
are due and payable 'on the first day of June' from which date 'such taxes together
with all penalties accruing thereto shall constitute a lien on the property subject to
such taxation. It is true the taxpayer is given the option to pay in two installments with
the respective dates for the payment thereof 'at not later than the thirty-first day of
May and the thirtieth day of October of each year, respectively.' Then comes the
crucial and decisive provision. 'At the expiration of the time for the payment of the
real estate tax without penalty, the taxpayer shall be subject, from the first day of
delinquency, to the payment of a penalty at the rate of two per centum for each full
month of delinquency that has expired, on the amount of the original tax due, until
the tax shall have been paid in full or until the property shall have been forfeited to
the city ... .

The law is specific and mandatory. It calls for application as thus worded. There is no
room for interpretation. The penalty is to be based 'on the amount of the original tax
due.' The fact that the first installment was made on time does not benefit the
taxpayer at all, thereafter the second installment were not paid on time. In effect
then, the option thus granted, to pay in two installments, must be strictly complied
with, otherwise the operation of the plain statutory command that the tax due and
payable on June 1st becomes unavoidable and delinquency is to be computed from
such a date.

The aforecited provisions of R.A. 183 (Charter of Pasay City) applied and interpreted in
the Padilla case are indeed almost Identical to the corresponding provisions in R.A. 521 (Charter of
Cagayan de Oro City), the law applicable to the case at bar. However, the Padilla decision was
promulgated on June 29, 1968, or prior to the passage of R.A. 5447 which, as already stated, took
effect on January 1, 1969. As the tax penalty in question was imposed on the real estate tax for
1969, the subsequent enactment of R.A. 5447 must be taken into consideration with R.A. 521 and
the pronouncements of this Court in the Padilla case.

A careful reading of the applicable provisions of R.A. 521 and R.A. 5447 reveals the extent to which
the former law was modified or amended by the later statute. While R.A. 521, among others,
provides that the real property tax is "due and payable annually on the first day of June", R.A. 5447
declares that the same tax (including the additional tax) "shall be due and payable in four equal
installments." In other words, R.A. 521 specifically and expressly provides for one due date for the
whole annual real estate tax. R.A. 5447, on the other hand, does not provide for such a specific
singular date for the payment of the entire tax, but directly and unmistakably mandates that the tax
shall be due and payable in four equal installments spread over the period of whole year, Each
installment is due and payable on or before a specified statutory limit. The last installment is due and
payable on or before December 31 of each year, hence it is only thereafter, or commencing January
1 of the following year, that delinquency starts as to this final installment. This being so, it only
logically follows that the penalty for delinquency should be computed from January 1.
The next question now poses itself What is the basis for the computation of the tax penalty in case of
delinquency? The sixth paragraph of Section 42, R.A. 521 (supra), provides that the taxpayer is
subject to " a penalty at the rate of two per centum for each full month of delinquency that has
expired, on the amount of the original tax due ... ." There is no corresponding or amendatory
provision in R.A. 5447. This later law does not cover the aspect of penalty in case of delinquency in
the payment of the real estate tax. In the absence of such penalty provision, respondent City
Treasurer insists that the penalty of 2% be based on the original tax due whereas petitioner
maintains that it should be the amount of the installment due and not paid.

We rule for the petitioner, following the general rule in the interpretation of tax statutes that such
statutes are construed most strongly against the government and in favor of the taxpayer. Moreover,
simple logic fairness and reason cannot countenance an exaction or a penalty for an act faithfully
done in compliance with the law. Since petitioner is allowed by law to pay his real estate tax in four
equal installments due and payable on four specified dates and having paid the first three (3)
installments faithfully and religiously, it is manifest injustice, sheer arbitrariness and abuse of power
to penalize him for doing so when he fails to pay the fourth end last installment.

That it is the legislator's intention to subject the taxpayer to the payment of the penalty of two (2) per
centum on the amount of the delinquent tax for each month of delinquency or fraction thereof, is
clearly evident in the promulgation of P.D. No. 464 enacting the Real Property Tax Code, Sec. 66
thereof which provides:

Sec. 66. Penalty for delinquency. Failure to pay the real property tax before the
expiration of the period for the payment without penalty of the quarterly installments
thereof shall subject the taxpayer to the payment of a penalty of two per centum on
the amount of the delinquent tax for each month of delinquency or fraction
thereof until the delinquent tax shall be fully paid: Provided, That in no case shall the
total penalty exceed twenty-four per centum of the delinquent tax. The rate of penalty
for tax delinquency fixed herein shall be uniformly applied in all provinces and cities.
(emphasis supplied)

P.D. 464 was promulgated effective June 1, 1974. Section 66 of the P.D. evidently supplies the
omission of a penalty provision in Republic Act 5447. However, since R.A. 5447 amended R.A. 521,
the City Charter of Cagayan de Oro City in making the basic and additional property tax to be due
and payable in four (4) equal installments, We hold that the penalty provision of R.A. 521, Sec. 42 is
deemed modified by implication.

Accordingly, petitioner's total liability as of August 27, 1970 when he tendered payment to
respondent City Treasurer may be computed as follows: P100.00 (the fourth and last installment)
plus P16.00 penalty (8 months of delinquency from January to August, 1970 at two per centum on
the amount of the delinquent tax of P100.00) which totals Pl 16.00.

As to the second assignment of error, We do not agree with the respondent court that failure of the
petitioner to comply with Section 42 and Section 58 (b) of R.A. 521 requiring payment of taxes under
protest, rendered the court without authority to entertain the suit. Section 58(b) provides that no court
shall entertain any suit assailing the validity of a tax assessed under this Chapter until the taxpayer
shall have paid, under protest, the taxed assessed against him ... ." (emphasis supplied.) The phrase
"tax assessed" clearly refers to the annual real estate tax imposable on the taxable real property.

May the phrase "tax assessed" be interpreted to include not only the tax itself but also all penalties
accruing thereto'? The legislative intent is not clear on this point, reading Section 42 to Section 58 of
the Act. However, in the case of Collector of Internal Revenue vs. Bautista, G.R. No. L-12250 and L-
12259, May 27, 1959, this Court, speaking thru Justice Roberto Concepcion, who later became
Chief Justice, held that a surcharge is not a "tax" in itself, and We quote:

It will be noted that the surcharge of five per centum (5%) and the interest of one per
centum (1 %) a month, referred to in Section 51 (e) are imposed upon the "tax
unpaid." Similarly, under said section 72, the "surcharge of fifty per centum (50%) of
the amount of" the "deficiency tax," imposable "in case of ... a false or fraudulent
return," shall be "added" to the "tax or to the deficiency tax". In other words, the
aforementioned surcharge of 50% is not a "tax" in itself, and hence, not subject to the
5% surcharge and to the interest of 1% a month on the "unpaid tax", prescribed in
section 51(e). Although, pursuant to section 72, said 50% surcharge "shall be
collected at the same time and in the same manner and as part of that tax", the
likeness to the tax therein mentioned refers exclusively to the "time" and "manner"-
meaning the method-of collection, not to the amount to be collected which is not
procedural, but substantive in character."

Since a surcharge is in the nature of a penalty, the ruling cited above is aptly applicable in the instant
case. Furthermore, the particular circumstances herein cast doubt as to the applicability of Section
58(b), R.A. 521, which must be resolved in favor of the petitioner. We must take into consideration
his apparent good faith in relying on the amendatory provisions of R.A. 5447, and the admitted fact
that he tendered payment of the last installment of his 1969 realty tax to respondent City Treasurer,
together with the tax penalty in accordance with his computation, though erroneous, before filing this
case in court. We likewise take into account the fact that even said respondent Treasurer erred in
interpreting the law. It may be added that it could have been more expedient for the latter to have
accepted the amount tendered by petitioner in August, 1970, for after all, the tax itself was not in
question. As to the balance of the tax penalty, said respondent's recourse would have been Section
43 of R.A. 521 which provides:

After a property shall have become delinquent in the payment of taxes and said
taxes and the corresponding penalties shall remain unpaid ninety days after payment
thereof shall have become due, the city treasurer, or his deputy, if he desires to
compel payment through seizure of any personal property of any delinquent person
or persons, shall issue a duly authenticated certificate, based on the records of his
office, showing the fact of delinquency and the amount of the tax and penalty due
from said delinquent person or persons or from each of them. Such certificate shall
be sufficient warrant for the seizure of the personal property belonging to the
delinquent person or persons in question not exempt from seizure; and these
proceedings may be carried out by the city treasurer, his deputy, or any other officer
authorized to carry out legal proceedings. (Emphasis supplied.)

Anent the last assigned error, We agree with the conclusion reached by respondent court that
petitioner is not entitled to actual, moral or exemplary damages prayed for in his Complaint. It does
not appear that herein respondent City Treasurer's actuations or decisions were tainted with bad
faith. As this Court held in the case of Cabungcal, et al. vs. Mayor Cordova and Gustilo L-16934,
July 31, 1964, 11 SCRA 584), "(a)n erroneous interpretation of the meaning of the provisions of an
ordinance (by the City Mayor) does not constitute nor does it amount to bad faith that would entitle
an aggrieved party to an award of damages."

WHEREFORE, judgment is hereby rendered ordering petitioner to pay to the City Treasurer of
Cagayan de Oro City the amount of P116.00 representing full payment of the last installment of
P100.00 on the realty tax for the year 1969 and the tax penalty of P16.00 for eight months of his
delinquency from January, 1970 to August, 1970; and ordering said City Treasurer to accept the
aforesaid payment, issue the official receipt therefor and a tax clearance certificate covering the
aforementioned real estate tax and penalty. No costs. Judgment modified.

SO ORDERED.

EN BANC

G.R. No. L-3881 August 31, 1950

EDUARDO DE LOS SANTOS, petitioner,

vs.
GIL R. MALLARE, LUIS P. TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in
his capacity as City Treasurer and RAFAEL USON, in his capacity as City
Auditor, respondents.

Francisco S. Reyes for petitioner.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto Luciano for respondents.
Jose P. Laurel and Abelardo Subido as amici curiae.

TUASON, J.:

This is an original action of quo warranto questioning the legality of the appointment of respondent
Gil R. Mallare to the office of city engineer for the City of Baguio which the petitioner occupied and
claims to be still occupying. The real issue however is the legality of the petitioner's removal from the
same office which would be the effect of Mallare's appointment if the same be allowed to stand. It is
the petitioner's contention that under the Constitution he can not be removed against his will and
without cause. The complaint against the other respondents has to do merely with their recognition
of Mallare as the lawful holder of the disputed office and is entirely dependent upon the result of the
basic action against the last-mentioned respondent (Mallare).

Stripped of details unessential to the solution of the case, the facts are that Eduardo de los Santos,
the petitioner, was appointed City Engineer of Baguio on July 16, 1946, by the President,
appointment which was confirmed by the Commission on Appointments on August 6, and on the
23rd of that month, he qualified for and began to exercise the duties and functions of the position.
On June 1, 1950, Gil R. Mallare was extended an ad interim appointment by the President to the
same position, after which, on June 3, the Undersecretary of the Department of Public Works and
Communications directed Santos to report to the Bureau of Public Works for another assignment.
Santos refused to vacate the office, and when the City Mayor and the other officials named as
Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the position, he
commenced these proceedings.

The petitioner rests his case on Article XII of the Constitution, section 4 of which reads: "No officer or
employee in the Civil Service shall be removed or suspended except for cause as provided by law."

It is admitted in respondents' answer that the City Engineer of Baguio "belongs to the unclassified
service." And this Court, in an exhaustive opinion by Mr. Justice Montemayor in the case of Lacson
vs. Romero, 47 Off. Gaz., 1778, involving the office of provincial fiscal, ruled that officers or
employees in the unclassified as well as those in the classified service are protected by the above-
cited provision of the organic law. But there is this difference between the Lacson case and the case
at bar: Section 2545 of the Revised Administrative Code, which falls under Chapter 61 entitled "City
of Baguio," authorizes the Governor General (now the President) to remove at pleasure any of the
officers enumerated therein, one of whom is the city engineer. The first question that presents itself
is, is this provision still in force?

Section 2 of Article XVI of the Constitution declares that "All laws of the Philippine Islands shall
continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such
laws shall remain operative, unlessinconsistent with this Constitution, until amended, altered,
modified, or repealed by the Congress of the Philippines, . . . ."

It seems plain beyond doubt that the provision of section 2545 of the Revised Administrative Code,
he (Governor-General now President) may remove at pleasure any of the said appointive officers," is
incompatible with the constitutional inhibition that "No officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law." The two provisions are mutually
repugnant and absolutely irreconcilable. One in express terms permits what the other in similar
terms prohibits.

The Constitution leaves it to the Congress to provide for the cause of removal, and it is suggested
that the President's pleasure is itself a cause. The phrase "for cause" in connection with the
removals of public officers has acquired a well-defined concept. "It means for reasons which the law
and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not
merely causes which the appointing power in the exercise of discretion may deem sufficient. It is
implied that officers may not be removed at the mere will of those vested with the power of removal,
or without any cause. Moreover, the cause must relate to and affect the administration of the office,
and must be restricted to something of a substantial nature directly affecting the rights and interests
of the public."(43 Am. Jur., 47, 48.)

Reconsideration of the decision in Lacson vs. Romero as far as officers in the unclassified service
are concerned is urged. It is contended that only officers and employees in the classified service
should be brought within the purview of Article XII of the Constitution.

Section 1 of this article ordains: "A Civil Service embracing all branches and subdivisions of the
Government shall be provided by law. Appointments in the Civil Service, except as those which are
policy-determining, primarily confidential or highly technical in nature, shall be made only according
to merit and fitness, to be determined as far as practicable by competitive examination." The first
clause is a definition of the scope of Civil Service, the men and women which section 4 protects. It
seems obvious from that definition that the entire Civil Service is contemplated, except positions
"which are policy-determining, primarily confidential or highly technical in nature." This theory is
confirmed by the enactment of Commonwealth Act No. 177 on November 30, 1936 to implement
Article XII of the Constitution. Commonwealth Act No. 177 explains Civil Service almost in the
identical words of that article of the organic law. As a contemporaneous construction, this Act affords
an index to the meaning of Civil Service as conceived by the framers of the Constitution. "The
principle of contemporaneous construction may be applied to the construction given by the
legislature to the constitutional provisions dealing with legislative powers and procedure. Though not
conclusive, such interpretation is generally conceded as being entitled to great weight."
(U.S. vs.Sprague, 282 U.S., 716; 75 L. ed. 640; 51 S. Ct., 220; 71 A.L.R., 1381; Den ex dem.
Murray vs. Hoboken Land and Improv. Co., 18 How. [U.S.], 272; 15 L. ed., 372; Clark vs. Boyce, 20
Ariz., 544; 185 P., 136, citing R.C.L.; 11 Am. Jur. 699.) The principle of express mention and implied
exclusion may be made use of also to drive home this point.

We are led to the same conclusion by the existing provisions at the time of the adoption of the
Constitution. Civil Service as embracing both classes of officers and employees possessed definite
legal and statutory meaning when the Constitution was approved. Section 670 of the Revised
Administrative Code already provided that "Persons in the Philippine civil service pertain either to the
classified service," and went on to say that "The classified service embraces all not expressly
declared to be in the unclassified service." Then section 671 described persons in the unclassified
service as "officers, other than the provincial treasurers and assistant directors of bureaus or offices,
appointed by the President of the Philippines, with the consent of the Commission on Appointments
of the National Assembly, and all other officers of the government whose appointments are by law
vested in the President of the Philippines alone."

The rules of the construction inform us that the words use in the constitution are to be given the
sense they have in common use. (Okanogan Indians vs. United States, 279, U.S., 665; 64 A.L.R.,
1434; 73 Law ed., 894.) It has been said that we must look to the history of the times, examine the
state of things existing when the Constitution was framed and adopted, (Rhode
Islands vs. Massachusetts, 12 Pet., 657; 9 Law ed., 1233), and interpret it in the light of the law then
in operation. (Mattox vs. United States, 156, U.S., 237; 39 Law ed., 409.)

Attention is drawn to supposed inconveniences of tying the hands of the appointing power in
changing and shifting officers in the unclassified service. "If it is argued all important officers
and employees of the government falling within the unclassified service as enumerated in section
671 of the Revised Administrative Code as amended by Commonwealth Act No. 177, may not be
removed by the President except for cause as provided by law, . . . the President would be seriously
crippled in the discharge of the grave duty and responsibility laid upon him by the Constitution to
take care that the laws faithfully executed."

Questions of expediency are, of course, beyond the province of the court to take into account in the
interpretation of laws or of the Constitution where the language is otherwise clear. But the argument
is, we think, unsound even if the case be approached from this angle. It contains its own refutation.
The Constitution and the law implementing it afford adequate safeguards against such
consequences as have been painted.

The argument proceeds, contrary to its context, on the assumption that removes of civil service
officers and employees are absolutely prohibited, which is not the case. The Constitution authorizes
removals and only requires that they be for cause. And the occasions for removal would be greatly
diminished if the injunction of section 1 of Article XII of the Constitution that appointments in the
civil service shall be made only according to merit and fitness, to be determined as far as practicable
by competitive examination would be adhered of meticulously in the first place.

By far greater mischiefs would be fomented by an unbridled authority to remove. Such license would
thwart the very aims of the Constitution which are expounded by Dean Aruego, himself a member of
the Constitutional Convention, in the following remarks copied with approval in Lacson vs.
Romero, supra:

The adoption of the "merit system" in government service has secured efficiency and social
justice. It eliminates the political factor in the selection of civil employees which is the first
essential to an efficient personnel system. It insures equality of opportunity to all deserving
applicants desirous of a career in the public service. It advocates a new concept of the public
office as a career open to all and not the exclusive patrimony of any party or faction to be
doled out as a reward for party service.

The "merit system" was adopted only after the nations of the world took cognizance of its
merits. Political patronage in the government service was sanctioned in 1879 by the
Constitutional right of President of the United States to act alone in the matter of removals.
From the time of Andrew Jackson the principle of the "To the victor belongs the spoils'
 dominated the Federal Government. The system undermined moral values and destroyed
administrative efficiency.

Since the establishment of the American Regime in the Philippines we have enjoyed the
benefits of the "merit system." The Schurmann Commission advocated in its reports that "the
greatest care should be taken in the selection of the officials for administration. They should
be men of the highest character and fitness, and partisan politics should be entirely
separated from the government." The fifth act passed by the Philippine Commission created
a Board of Civil Service. It instituted a system here that was far more radical and thorough
than that in the United States. The Governor-General after William Taft adopted the policy of
appointing Filipinos in the government regardless of their party affiliation. As the result of
these the personnel of the Civil Service had gradually come to be one of which the people of
the United States could feel justly proud.

Necessity for Constitutional provision. The inclusion in the constitution of provisions

regarding the "merit system" is a necessity of modern times. As its establishment secures
good government the citizens have a right to accept its guarantee as a permanent institution.

Separation, suspension, demotions and transfers. The "merit system" will be ineffective if
no safeguards are placed around the separation and removal of public employees. The
Committee's report requires that removals shall be made only for "causes and in the manner
provided by law. This means that there should be bona fide reasons and action maybe taken
only after the employee shall have been given a fair hearing. This affords the public
employees reasonable security of tenure. (II Aruego's Framing of the Constitution, 886, 887,
890.)

As has been seen, three specified classes of positions policy-determining, primarily confidential
and highly technical are excluded from the merit system and dismissal at pleasure of officers and
employees appointed therein is allowed by the Constitution. These positions involved the highest
degree of confidence, or are closely bound out with and dependent on other positions to which they
are subordinate, or are temporary in nature. It may truly be said that the good of the service itself
demands that appointments coming under this category determinable at the will of the officer that
makes them.

The office of city engineer is neither primarily confidential, policy-determining, nor highly technical.

Every appointment implies confidence, but much more than ordinary confidence is reposed in the
occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in
the aptitude of the appointee for the duties of the office but primarily close intimacy which insures
freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal
trust or confidential matters of state. Nor is the position of city engineer policy-determining. A city
engineer does not formulate a method of action for the government or any its subdivisions. His job is
to execute policy, not to make it. With specific reference to the City Engineer of Baguio, his powers
and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and
are essentially ministerial in character. Finally, the position of city engineer is technical but not highly
so. A city engineer is not required nor is he supposed to possess a technical skill or training in the
supreme or superior degree, which is the sense in which "highly technical" is, we believe, employed
in the Constitution. There are hundreds of technical men in the classified civil service whose
technical competence is not lower than that of a city engineer. As a matter of fact, the duties of a city
engineer are eminently administrative in character and could very well be discharged by non-
technical men possessing executive ability.
Section 10 of Article VIII of the Constitution requires that "All cases involving the constitutionality of a
treaty or law shall be heard and decided by the Supreme Court in banc," and warns that "no treaty or
law may be declared unconstitutional without the concurrence of two-thirds of all the members of the
Court." The question arises as to whether this judgment operates as invalidation of section 2545 of
the Revised Administrative Code or a part of it so as to need at least eight votes to make effective.
The answer should be in negative.

We are not declaring any part of section 2545 of the Revised Administrative Code unconstitutional.
What we declare is that the particular provision thereof which gave the Chief Executive power to
remove officers at pleasure has been repealed by the Constitution and ceased to be operative from
the time that instrument went into effect. Unconstitutionally, as we understand it, denotes life and
vigor, and unconstitutional legislation presupposes posteriority in point of time to the Constitution. It
is a statute that "attempts to validate and legalize a course of conduct the effect of which the
Constitution specifically forbids (State ex-rel. Mack vs. Guckenberger, 139 Ohio St., 273; 39 NE.
[2d], 840.) A law that has been repealed is as good as if it had never been enacted, and can not, in
the nature of things, contravene or pretend to contravene constitutional inhibition. So, unlike
legislation that is passed in defiance of the Constitution, assertive and menacing, the questioned
part of section 2545 of the Revised Administrative Code does not need a positive declaration of
nullity by the court to put it out of the way. To all intents and purposes, it is non-existent, outlawed
and eliminated from the statute book by the Constitution itself by express mandate before this
petitioner was appointed.

Incidentally, the last discussion answers and disposes of the proposition that in accepting
appointment under section 2545 of the Revised Administrative Code, the petitioner must be deemed
to have accepted the conditions and limitations attached to the appointment. If the clause of section
2545 which authorized the President to remove officers of the City of Baguio at pleasure had been
abrogated when petitioner's appointment was issued, the appointee can not presumed to have
abided by this condition.

We therefore hold that the petitioner is entitled to remain in office as City Engineer of Baguio with all
the emoluments, rights and privileges appurtenant thereto, until he resigns or is removed for cause,
and that respondent Mallare's appointment is ineffective in so far as it may adversely affect those
emoluments, rights and privileges. Without costs.

Moran, C.J., Ozaeta, Paras, Pablo, and Montemayor, JJ., concur.

EN BANC

G.R. No. L-2873 February 28, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EUGENIO GARCIA Y MADRIGAL, defendant-appellant.

Dominador A. Alafriz for appellant.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Rafael P. Caiza for appellee.

TUASON, J.:

The sole question presented on this appeal is whether the appellant, being 17 years of age at the
time of at the time of the commission of the crime, was entitled to the privileged mitigating
circumstance of article 68, paragraph 2, of the Revised Penal Code. The lower court, ignoring
defendant's minority, sentenced him to an indeterminate penalty of from 4 years, 2 months and 1
day of prision correccional to 8 years of prision mayor for the crime of robbery of which he was found
guilty. He was also sentenced to pay the offended party, jointly and severally with the other accused,
the sum of P85 as indemnity.

Republic Act No. 47, which amended article 80 of the Revised Penal Code by reducing from 18 to 16
the age below which accused have to "be committed to the custody or care of a public or private,
benevolent or charitable institution," instead of being convicted and sentenced to prison, has given
rise to the controversy. The Solicitor General believes that the amendment by implication has also
amended paragraph 2 of article 68 of the Revised Pena Code, which provides that when the
offender is over fifteen and under eighteen years age, "The penalty next lower than that prescribed
by law shall be imposed, but always in the proper period."

There are well recognized rules of statutory construction which are against the Government's
contention.

One of these rules is that all parts of a statute are to be harmonized and reconciled so that effect
may be given to each and every part thereof, and that conflicting intention in the same statute are
never to be supposed or so regarded, unless forced upon the court by an unambiguous language.
(59 C. J., 999.)

This rule applies in the construction of a statute and its amendment, both being read together as
whole. "An amended act is ordinarily to be construed as if the original statute has been repealed,
and a new and independent act in the amended form had been adopted in its stead; or, as frequently
stated by the courts, so far as regards any action after the adoption of the amendment, as if the
statute had been originally enacted in its amended form the amendment becomes a part of the
original statute as if it had always been contained therein, unless such amendment involves the
abrogation of contractual relations between the state and others. Where an amendment leaves
certain portions of the original act unchanged, such portions are continued in force, with the same
meaning and effect they had before the amendment. So where an amendatory act provides that an
existing statute shall be amended to read as recited in the amendatory act, such portions of the
existing law as are retained, either literally or substantially, are regarded as a continuation of the
existing law, and not as a new enactment." (59 C. J., 1096, 1097.)

We find no irreconcilable conflict between article 68, paragraph 2, as it nowstands and article 80 as
amended. There is no incompatibility between granting accused of the ages of 15 to 18 a privileged
mitigating circumstance and fixing at 16 the maximum age of persons who are to be placed in a
reformatory institution. In other words, there is no inconsistency between sending defendants of
certain ages to prison and giving them a penalty lower than the imposable one on adults under the
same or similar circumstances. Let it be remember that the privilege of article 68, supra, is not by its
nature inherent in age but purely statutory and conventional, and that this privilege is granted adult
offenders under given conditions.

At least there is no clear intention on the part of the Congress to amend article 68. Indeed the
rational presumption is that if there had been such an intention the lawmakers should have said so
expressly, instead of leaving the change to inference.

One other rule of interpretation that quarrels with the theory of implied repeal or amendment is that
penal law is to be construed, in case of doubt, strictly against the state. "Criminal and penal statutes
must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication,
or by any equitable considerations. In other words, the language cannot be enlarged beyond the
ordinary meaning of its terms in order to carry into effect the general purpose for which the statute
was enacted. Only those persons, offenses, and penalties, clearly included, beyond any reasonable
doubt, will be considered within the statute's operation. They must come clearly within both the spirit
and the letter of the statute, and where there is any reasonable doubt, it must be resolved in favor of
the person accused of violating the statute; that is, all questions in doubt will be resolved in favor of
those from whom the penalty is sought." (Statutory Construction, Crawford, pp. 460-462.)

The offense charged in the information of which the appellant was found guilty is punishable under
article 294, case No. 5, of the Revised Penal Code, as amended by section 6 of Republic Act No.
18, with prision correccional in its maximum period to prision mayor in its medium period. The
penalty one degree lower than this is arresto mayor in its maximum period to prision correccional in
its medium period. There being no modifying circumstance, the appropriate penalty in the present
case is from 6 months and 1 day of arresto mayor to 2 years and 4 months ofprision
correccional. Being entitled to an indeterminate penalty as provided in section 1 of Act No. L-4103 as
amended, the accused should be, and he is hereby sentenced to imprisonment of not less than 4
months of arresto mayor and not more than 2 years and 4 months of prision correccional. In all other
respect the appealed judgment is affirmed. The appellant will pay the costs of this appeal.

Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Montemayor, Reyes and Torres, JJ., concur.

RESOLUTION ON MOTION FOR RECONSIDERATION

April 12, 1950

TUASON, J.:

This is a motion for reconsideration of our decision.

The main theme of the Solicitor General's argument is that articles 13 (2) and 68 (2) of the Revised
Penal code "complement each other;" that "the application of article 68 takes place only when the
court has to render judgment and impose a penalty upon a minor who has been proceeded against
in accordance with article 80 and who had misbehaved or is found incorrigible," and that "article 80
must be applied first before article 68 can come into operation, and the court can not apply the latter
article in total disregard of the former." In short, as we infer from this line of reasoning, what article
80 does not touch, article 68 can not touch.

We do not think the premise and conclusion of the motion are correct. There seems to be a
confusion of ideas.

It may do us well to make brief review of the legislation, past and present, relative to juvenile
offenders and dissect and analyze its various provisions and the differences between them and the
role assigned to each. .

Article 68 of the Revised Penal code provides:.

Penalty to be imposed upon a person under eighteen years of age. When the offender is
a minor under eighteen years and his case is one coming under the provisions of the
paragraph next to the last of article 80 of this Code, the following rules shall be observed:
 1. Upon a person under fifteen but over nine years of age, who is not exempted from liability
by reason of the court having declared that he acted with discernment, a discretionary
penalty shall be imposed, but always lower by two degrees at least than that prescribed by
law for the crime which he committed.

2. Upon a person over fifteen and under eighteen years of the penalty next lower than that
prescribed by law shall be imposed but always in the proper period.

Sub-paragraph 1 and 2 of the foregoing article are a reproduction of article 85 of the Spanish Penal
Code.

Into the Revised Penal Code, the Juvenile Delinquency Act was incorporated. It has become in the
new code article 80, the first paragraph of which provides that "whenever a minor under 18 years of
age, of either sex, be accused of a crime, the court . . . shall commit such minor to the custody or
care of a public or private, benevolent or charitable, institution, etc." And in the paragraph
immediately preceding the last, it is further provided that "In case the minor fails to behave properly
or to comply with the regulation of the institution to which he has been committed, or with the
conditions imposed upon him when he was committed to the care of a responsible person, or in case
he should be found incorrigible or his continued stay in such institution should be inadvisable, he
shall be returned to the court in order that the same may render the judgment corresponding to the
crime committed by him."

The latest legislation on the subject was Republic Act No. 47, which amended article 80 of the
Revised Penal Code so as to reduce to below 16 the age of minors coming within its purview.

A close examination of articles 68 and 80 will disclose that article 68, according to its main
paragraph, is to lay off and watch while the minor is in the hands of a charitable institution or person
mentioned in article 80 trying to reform him or her. This has to be so because article 68 is a rule for
the application of penalties, and there is no penalty when there is no judgment when the delinquent
is in Welfareville or other place of similar character or entrusted to the care of a private person.
However, if and when the minor turns out to be hopeless or incorrigible, he is returned to the proper
court and the court passes sentence on him or her. In other words, article 80 withdraws, as it were,
and sub-paragraph 1 and 2, as the case maybe, of article 68 takes control.

From this it will be seen that article 68 is not dependent on article 80, nor do these articles
complement each other if by complement is meant that they are two mutually completing parts so
that article 68 could not stand without article 80. It is more appropriate to say that article 68 merely
adjusts itself to article 80 but is, in all other respects, self-sufficient and independent of the latter.
Parts of one system of penology and working in coordination with each other, they pursue different
ends. It is to be noticed that article 68 falls under section 2 of Chapter IV entitled "Application of
Penalties," while article 80 comes under section 1 of Chapter V entitled "Execution and Service of
Penalties." Two different subjects, these.

It will also be seen that article 68, sub-paragraphs 1 and 2, and article 80 of the Revised Penal Code
do not function at the same time and are designed for different purposes. Each has its assigned,
separate sphere of action without in any way intermingling with the other. When article 80 operates,
article 68 keeps out of the way; article 68 steps in when article 80 steps out.

While a minor is in the process of being reformed he is, in a manner of speaking, in an intermediate
or indeterminate state, neither in prison nor free. Through repentance and by observing good
conduct, he is rewarded with freedom, released upon reaching the age of majority or before, but if he
shows no promise of turning a new leaf, Bilibid claims him.
It is the minors so situated; it is selection of two should be committed to are formatory school or to
the custody of a private person with which article 80 has to do, and no more. Article 80 does not
concern itself with what should be done with minors when they are consigned to jail because of
misbehavior; much less is it concerned over minors who, after the passage of Republic Act No. 47,
are condemned to prison without having been under the custody of a benevolent institution or private
person like youths between 16 and 18. On the other hand, article 68 is intended for minors who are
sent to jail, a matter foreign to the province of article 80.

To press the argument further, article 85 of the original Penal Code conferred upon minors under 18
the right to a penalty. Then came the Juvenile Delinquency Act giving additional concession to
juvenile delinquents. When, later, Republic Act No. 47 amended article 80 so as to eliminate from its
beneficent provisions minor of the age of 16 or over and under 18, the logical effect of the
amendment can no other than to correspondingly reduce the age of minors regarding whom the
suspensory inhibition on article 68 is to be confined. Only to the extent and within the limits that
article 80 applies is article 68 bound to defer to that article. Where article 80 does not apply article 68
is supreme. When article 80 says that it will deal only with minors below 16, it relinquishes authority
over minors above that age in favor of article 68. When and if article 80 should by amendment
further reduce the age to 15, to that extent the operation of article 68 will be correspondingly
enlarged.

In fact, if Republic Act No. 47, instead of limiting the operation of article 80 to minors under 16, had
totally abolished the scheme of juvenile reformation, sub-paragraphs 1 and 2 of article 68 of the
Revised Penal Code would, in our opinion, remain intact, with the only difference that, as before,
they would have full sway, unhampered by any consideration of suspended judgment. The
predecessor of article 68 was in the original Penal Code since that code was put in force in Spain in
1870 and in the Philippines in 1884, long before the idea embodied in article 80 was conceived.
Before the Revised Penal Code went into effect, article 85 of the old Penal Code and the Juvenile
Delinquency Act worked in the manner herein set forth although there was not any express provision
coordinating their operation. It can safely be said that the main paragraph of article 68 was inserted
merely to explain in clear and express terms when it should stand aloof and when it should play its
role. The Revised Penal Code merely states the obvious as befits a scientific system of law.

In conclusion, when Republic Act No. 47 amended article 80 of the Revised Penal Code by reducing
the age of persons who may be placed on probation under that article, the amendment did not
change in any form or manner the degree of punishment that should be meted out to those who are
to be committed to jail or how they are to treated. After the minor is turned over to the court for
sentence, article 80 ceases to have any interest in him or her. In saying that the 16-and 18-year old
should no longer be given a trial or placed on probation in a reformatory institution but should go
straight to prison upon conviction, Republic Act No. 47 does not, by implication or otherwise,
connote that such minors should also be deprived of a reduced penalty. In no standard of statutory
construction is there support for the proposition that the mitigating circumstance which minors
between 16 and 18 enjoyed before Republic Act No. 47 came into being, notwithstanding the fact
that they had shown evidence of incorrigibility, should be denied them now for no other reason than
that the right to be committed to a reformatory school has been taken away from them; now that they
are confined in jail without having committed any fault other than the crime for which they were
prosecuted in the first instance.

Let it be remembered that by virtue of the amendment minors between 16 and 18 do not now come
under the provisions of the paragraph next to the last of article 80.

Of course, the effect of a law amendment would different if the amendatory law had absorbed the
law which it had amended. In that case, the original law become part and parcel of the new law, with
the result that if the amendatory law be later repealed, both that law and the law which it had
superseded or amended would be considered abrogated. There was no law of its own force could
survive. But, as we have indicated, article 68 as well as its predecessor is an independent provision
and has not been merged with article 80 or any other article of the Revised Penal code. It is an
independent provision inoperative only during the suspension of the sentence but possessing all the
vigor which article 85 of Spanish Code had, when the minors are sentenced to jail.

In the decision sought to be reconsidered, we emphasize the rule of statutory construction to the
effect that all parts of a statute are to be harmonized and reconciled so that effect may be given to
each and every part thereof, and that conflicting intentions in the same statute are never to be
supposed or so regarded, unless forced upon the court by an unambiguous language. (59 C. J.,
999.) The motion for reconsideration has not pointed to any conflict, and we can not find any,
between the retention of the privileged or special mitigating circumstance in favor of minors below 18
and over 16 and the fact that such minors are not entitled to the benefits of article 80 under any
circumstances. The motion for reconsideration is conspicuous for its silence on any incongruity or
absurdity that might result from our ruling on the scope and extent of Republic Act No. 47.

The sole consideration that might commend itself in favor of the Government's position is the general
welfare. For the good of society it may have been better if Republic Act No. 47 had amended articles
13 and 68 also by correspondingly reducing the age of accused minors entitled to a mitigating
circumstance by reason of age. But it is write to say that we are not authorized to insert into a law
what we think should be in it or to supply what we think the legislature would have supplied if its
attention had been called to the omission. This is specially true in penal legislation which, as we
have repeatedly stressed in our decision, has to be construed strictly. But there is not even room for
construction in this case. The preamble or explanatory note to Republic Act No. 47 can not be used
as basis for giving it an meaning not apparent on its face. A preamble or explanatory not is resorted
to only for clarification in cases of doubt. There is no ambiguity in Republic Act No. 47.

The motion and the request to set it for oral argument are denied.

Moran, C.J., Ozaeta, Pablo, Bengzon, Montemayor, Reyes and Torres, JJ., concur.

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed
against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge
Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against
Co, directed the Government prosecutors to file the corresponding information. The twice-amended
information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas,

Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in the
Philippines a totalitarian regime and placing the government under the control and
domination of an alien power, by being an instructor in the Mao Tse Tung University,
the training school of recruits of the New People's Army, the military arm of the said
Communist Party of the Philippines.

That in the commission of the above offense, the following aggravating

circumstances are present, to wit:

(a) That the crime has been committed in contempt of or with insult to public
authorities;

(b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.

Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the
respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated
by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac,
pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S.
Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still unknown, for violation
of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the
Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in
the Philippines, the above-named accused knowingly, willfully and by overt acts
organized, joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act
No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,
 knowingly, willfully and by over acts joined and/or remained as a member and
became an officer and/or ranking leader not only of the Communist Party of the
Philippines but also of the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named accused, as such officers
and/or ranking leaders of the aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then and there knowingly,
willfully and feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and tumultuously and take
up arms against the government, and/or engage in rebellious conspiracies and riots
to overthrow the government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the following:

1. On several occasions within the province of Tarlac, the accused conducted

meetings and/or seminars wherein the said accused delivered speeches instigating
and inciting the people to unite, rise in arms and overthrow the Government of the
Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the Philippines and to
established in the Philippines a Communist regime.

2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting members for the
New People's Army, and/or by instigating and inciting the people to organize and
unite for the purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or other illegal means,
and establishing in the Philippines a Communist Government.

That the following aggravating circumstances attended the commission of the

offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft,
fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that
(1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970,
declared the statute void on the grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall
be enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial.3 Its essence
is the substitution of a legislative for a judicial determination of guilt.4 The constitutional ban against
bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures
to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History in
perspective, bills of attainder were employed to suppress unpopular causes and political
minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of
a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute
as a bill of attainder. 9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder
because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and grave danger to the security
of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the
forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of organizational guilt which the accused
can never hope to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment. What it
does is simply to declare the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional
purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its focus is not on individuals but
on conduct. 10

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management
Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder
and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve

(1) as an officer, director, trustee, member of any executive board or similar

governing body, business agent, manager, organizer, or other employee (other than
as an employee performing exclusively clerical or custodial duties) of any labor
organization.

during or for five years after the termination of his membership in the Communist
Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000
or imprisoned for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members.
Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or
a member of the governing body of any labor organization. As the Supreme Court of the United
States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting
and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact legislation designed to keep
from positions affecting interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however, Congress has exceeded the
 authority granted it by the Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits certain acts or possesses
certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and
juries the job of deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and therefore cannot hold union
office without incurring criminal liability members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81

S CT 1357, lend a support to our conclusion. That case involved an appeal from an
order by the Control Board ordering the Communist Party to register as a
"Communist-action organization," under the Subversive Activities Control Act of
1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-
action organization" which the Board is to apply is set forth in sec. 3 of the Act:

[A]ny organization in the United States ... which (i)is substantially directed,
dominated, or controlled by the foreign government or foreign organization controlling
the world Communist movement referred to in section 2 of this title, and(ii) operates
primarily to advance the objectives of such world Communist movement... 64 Stat
989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder,
reasoning that sec. 3 does not specify the persons or groups upon which the
deprivations setforth in the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that the Communist Party was
a "Communist-action organization," the Court found the statutory definition not to be
so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its
conclusion, that the Communist Party, by virtud of the activities in which it now
engages, comes within the terms of the Act. If the Party should at anytime choose to
abandon these activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially established. The Government has yet to
prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that
they joined the Party, knowing its subversive character and with specific intent to further its basic
objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and
place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature
of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute were construed as
punishing mere membership devoid of any specific intent to further the unlawful goals of the
Party. 13 But the statute specifically required that membership must be knowing or active, with
specific intent to further the illegal objectives of the Party. That is what section 4 means when it
requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully
and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must
be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient
of guilty knowledge. The former requires proof of direct participation in the organization's unlawful
activities, while the latter requires proof of mere adherence to the organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not
enough to render it a bill of attainder. A statute prohibiting partners or employees of securities
underwriting firms from serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the temptation to commit acts
deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly,
a statute requiring every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society which fails to register or
remains a member thereof, was declared valid even if in its operation it was shown to apply only to
the members of the Ku Klux Klan. 17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to
file with the Department of Labor affidavits of union officers "to the effect that they are not members
of the Communist Party and that they are not members of any organization which teaches the
overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by
this Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a judicial trial does it
become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had
taken part in the rebellion against the Government of the United States during the Civil War from
holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further
compensation to individuals named in the Act on the basis of a finding that they had engages in
subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an
officer or employee of a labor union, 24 have been invalidated as bills of attainder.

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be

"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed
fairly to make such determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every
secret, oath-bound society with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing to register. While the statute did
not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret,
oath-bound organizations like masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The
Court said:

The courts below recognized the principle shown in the cases just cited and reached
the conclusion that the classification was justified by a difference between the two
classes of associations shown by experience, and that the difference consisted (a) in
a manifest tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to personal rights and
public welfare, and (b) in the absence of such a tendency on the part of the other
class. In pointing out this difference one of the courts said of the Ku Klux Klan, the
principal association in the included class: "It is a matter of common knowledge that
this organization functions largely at night, its members disguised by hoods and
gowns and doing things calculated to strike terror into the minds of the people;" and
 later said of the other class: "These organizations and their purposes are well known,
many of them having been in existence for many years. Many of them are oath-
bound and secret. But we hear no complaint against them regarding violation of the
peace or interfering with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or organization of which the relator
is concededly a member exercises activities tending to the prejudice and intimidation
of sundry classes of our citizens. But the legislation is not confined to this society;"
and later said of the other class: "Labor unions have a recognized lawful purpose.
The benevolent orders mentioned in the Benevolent Orders Law have already
received legislative scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful agencies." The third
court, after recognizing "the potentialities of evil in secret societies," and observing
that "the danger of certain organizations has been judicially demonstrated,"
meaning in that state, said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune from hostile criticism,
have on the whole justified their existence."

We assume that the legislature had before it such information as was readily
available including the published report of a hearing, before a committee of the
House of Representatives of the 57th Congress relating to the formation, purposes
and activities of the Klu Klux Klan. If so it was advised putting aside controverted
evidence that the order was a revival of the Ku Klux Klan of an earlier time with
additional features borrowed from the Know Nothing and the A. P. A. orders of other
periods; that its memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the widest freedom for
all and full adherence to the Constitution of the United States; in another exacted of
its member an oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous ingredient in
the body politic of our country and an enemy to the weal of our national
commonwealth;" that it was conducting a crusade against Catholics, Jews, and
Negroes, and stimulating hurtful religious and race prejudices; that it was striving for
political power and assuming a sort of guardianship over the administration of local,
state and national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes. 27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by
this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In
1969 we again found that the objective of the Party was the "overthrow of the Philippine Government
by armed struggle and to establish in the Philippines a communist form of government similar to that
of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of
the Communist Party of the Philippines and the organization of Communist fronts among youth
organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's
Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about
the existence of a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the Government of the
Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit
of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and
reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post facto features. This is the historic explanation for uniting the two
mischiefs in one
clause 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill
of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of attainder." 31

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the
Charter of the City of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in
the service of the City of Los Angeles, in any office or department thereof, either
elective or appointive, who has within five (5) years prior to the effective date of this
section advised, advocated, or taught, or who may, after this section becomes
effective, become a member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or has within said period
of five (5) years advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner
therein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar as
it purported to apply restrospectively for a five-year period to its effective date. We
assume that under the Federal Constitution the Charter Amendment is valid to the
extent that it bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so. The provisions
operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the
United States.

... Unlike the provisions of the charter and ordinance under which petitioners were
removed, the statute in the Lovett case did not declare general and prospectively
operative standards of qualification and eligibility for public employment. Rather, by
its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy,
them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct
and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect
to the U.S. Federal Subversive Activities ControlAct of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct
which it regulates is describedwith such particularity that, in probability, few
organizationswill come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public welfare,whether that conduct is
found to be engaged in by manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the regulated conduct, bethey
many or few, can escape regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein applies only to acts committed"After the approval of this
Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its successors or of any
subversive association"after June 20, 1957, are punished. Those whowere members of the Party or
of any other subversive associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such renunciationshall operate to exempt
such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of
the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to
provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of
constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence
of a substantive evil. This isthe reason why before enacting the statute in question
Congressconducted careful investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in

fact an organized conspiracyto overthrow the Government of the Republic of the
Philippinesnot only by force and violence but also by deceit, subversionand other
illegal means, for the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;

... [I]n the face of the organized, systematice and persistentsubversion, national in
scope but international in direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings
in enactingthe statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed
to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul
Freund elucidatesthe crucial distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol
would raise a question of legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement problem. Alaw forbidding the
sale of intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the meaning of the statuteand the
limits on governmental action imposed by the Constitution. Of course what we mean
by fact in each case is itselfan ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.

A conventional formulation is that legislative facts those facts which are relevant to
the legislative judgment will not be canvassed save to determine whether there is
 a rationalbasis for believing that they exist, while adjudicativefacts those which tie
the legislative enactment to the litigant are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is
that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio." The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities
Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate primarily to"advance the objectives
of such world Communist movement"),the U.S. Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject
them....They are the productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530.
We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we
accept them, as we mustas a not unentertainable appraisal by Congress of the
threatwhich Communist organizations pose not only to existing governmentin the
United States, but to the United States as asovereign, independent Nation. ...we
must recognize that thepower of Congress to regulate Communist organizations of
thisnature is
extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-
Subversion Act.

That the Government has a right to protect itself againstsubversion is a proposition too plain to
require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes
every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no
subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United
States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to

rebellion against dictatorial governmentsis without force where the existing structure
of government provides for peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor revolution, which principle,
carried to its logical conclusion,must lead to anarchy. No one could conceive that it
isnot within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be
legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental
personal liberties when the end can be more narrowly achieved." 42 The requirement
of knowing membership,as distinguished from nominal membership, hasbeen held as a sufficient
basis for penalizing membershipin a subversive organization. 43 For, as has been stated:

Membership in an organization renders aid and encouragement to the organization;

and when membership is acceptedor retained with knowledge that the organization is
 engaged inan unlawful purpose, the one accepting or retaining membershipwith such
knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of
"overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a
legislative declaration; the definitionsof and the penalties prescribed for the different acts
prescribedare stated in section 4 which requires that membershipin the Communist Party of the
Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand
violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in
section 2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only
in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law
does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow"
in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the
"overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the
Government under thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious
sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the
whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument
designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which
the appellant wouldhave us impute to the language." 45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force,
violence orother illegal means. Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is
so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding
considerationsof national security and the preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership
provision ofthe Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assembly

of persons who teach, advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a member of, or affiliatedwith,
any such society, group or assembly of persons, knowingthe purpose thereof

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or
both, and shall be ineligible for emplymentby the United States or any department or
agencythereof, for the five years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47

It was settled in Dennis that advocacy with which we arehere concerned is not
constitutionally protected speech, and itwas further established that a combination to
promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty,
 is not such association as is protected by the firstAmendment. We can discern no
reason why membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive anygreater degree
of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of
self-preservationand the values of liberty are as complex and intricate as inthe situation described in
the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the
legislative judgment as to how that threat may best bemet consistently with the safeguards of
personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first
instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire
or freedom to speak, is itself an effort at compromisebetween the claims of the social order and
individual freedom,and when the legislative compromise in either case isbrought to the judicial test
the court stands one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into
law shall embrace more than one subject which shall be expressed in the title of the bill." 50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4
which reads:

And provided, finally, That one who conspires with anyother person to overthrow the
Government of the Republic ofthe Philippines, or the government of any of its
political subdivisionsby force, violence, deceit, subversion or illegal means,for the
purpose of placing such Government or political subdivisionunder the control and
domination of any lien power, shallbe punished by prision correccional to prision
mayor with allthe accessory penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of
the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the
national or any local governmentby illegal means, even if their intent is not to establisha totalitarian
regime, burt a democratic regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe United States or England or
Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title.
Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates
that the subject matter is subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting Government and not merely
subversion by Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of
the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences
of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the
statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the
Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize
the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive
area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be
observed in any prosecution under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following elementsof the crime of joining the
Communist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that
thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to
establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the
objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of
the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign
power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert
acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the

Communist Party ofthe Philippines or of any other subversive association: weleave this matter to
future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases
are herebyremanded to the court a quo for trial on the merits. Costs de oficio.

Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.

Concepcion, C.J., concurs in the result.

Makasiar and Antonio, JJ., took no part.

Separate Opinions

FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the decision reached
upholding thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the learned and scholarly
opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe
constitutional issues raised. What is more, the stressin the concluding portion thereof on basic
guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their
constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited,
interpreting the bill of attainder clause2 coupled withthe fears, perhaps induced by a too-latitudinarian
constructionof the guarantees of freedom of belief and expression3 as well as freedom of
association 4 as to impermissible inroadsto which they may be exposed, compels a
differentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety and
security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a
justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the government wasusually
through the rising up in arms, with weapons farless sophisticated than those now in existence, there
wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It
was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty
and weakening the senseof allegiance have introduced complexities in coping withsuch problems.
There must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim
that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934
as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof
attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which
a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without
hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas
attainted or corrupted, rendering him devoid of allheritable quality of acquiring and disposing
property bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities."5 Two American
SupremeCourt decision were thus in the minds of the framers.They are Cummings v.
Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir
form, that apply either to named individuals or easilyascertainable members of a group in such a
way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without
judicial trial are billsof attainder prohibited by the Constitution. 8

Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty
oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors,
ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a
"desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil
War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without
theoath, they were criminally liable. The United States Supreme Court condemned the provision as a
bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The
deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a
conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa
legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death,
the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate
functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks,
judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof
trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of
evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the
enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we
have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having
been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or
drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right
topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no
question thatthe clauses would constitute a bill of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand
clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and
hencebe subjected to the like deprivation, the clause would beequally open to objection. And further,
it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be
thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no
less within the inhibition of the Federal Constitution.In all these cases there would be the
legislativeenactment creating the deprivation, without any of theordinary forms and guards provided
for the security ofthe citizen in the administration of justice by the establishedtribunales." 10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also
decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules
of such Court, all that was necessarywas that the applicant have three years practice in the
statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause
requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such
candidate for admission to the barhad never voluntarily borne arms against the UnitedStates.
Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a
presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be
allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill
of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt
again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a
punishmentfor some of the acts specified which were not punishableat the time they were
committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus
brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law.
Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the
meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding
their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition
is contained in the Constitution againstenactments of this kind by Congress; and the
argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case." 12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided
in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had
been for several yearsworking for the government. The government agencies,which had lawfully
employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed
on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency
AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November
15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter
appropriated except for services as jurorsor members of the armed forces, unless they wereprior to
November 15, 1943, again appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint
the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after
November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought
this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme
Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction
of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder
insofar as the respondents wereconcerned.

After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of
Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post
Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a
legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death,
the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of
attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided,
the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which
required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever
been overruled. They stand for the propositionthat legislative acts, no matter what their form,that
apply either to named individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution.
Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14

United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-
ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the
Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a
labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open
andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of
Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year
terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment
returned in a district court of California withservicing as a member of an executive board of a
labororganization while a member of the Communist Party, inwillful violation of the above provision.
The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication.
While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was
sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide
variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the
evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our
constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow,
technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more
simply trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice
Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management
Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses
power under theCommerce Clause to enact legislation designed to keepfrom positions affecting
interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504,
however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not
setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate
political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what
persons have committed the specifiedacts or possessed the specified characteristics. Instead,it
designates in no uncertain terms the personswho possess the fearec characteristics and therefore
cannothold union office without incurring criminal liability members of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the
Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to
register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party
been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of
attainder. It attaches notto specified organizations but to described activities inwhich an organization
may or may not engage. The singlingout of an individual for legislatively prescribed
punishmentconstitutes an attainder whether the individualis called by name or described in terms of
conduct which,because it is past conduct, operates only as a designationof particular persons. ...
The Subversive Activities ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under the direction, domination, or
controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding
must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as tofact are supported by the
preponderance of the evidence.Present activity constitutes an operative element to whichthe statute
attaches legal consequences, not merely a pointof reference for the ascertainment of particularly
personsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be in
the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the
Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three
subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of
the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable
togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is
not to lose sightof the qualification that for them could deprive such aholding of its explicit character
as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has
to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the
Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive
character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby
force, deceit, and other illegal means and placeit under the control and domination of a foreign
power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a
criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there
was an indictment of the laborleader who, judging by his membership in the CommunistParty, did
transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the American Supreme Court is
correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute.
It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist
Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof
invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.

3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition
guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the
threat that Communism, the Russian brand then, didpose was a painful reality for Congressional
leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could
neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such
mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward
off such menace must not be repugnant to our Constitution.We are legally precluded from acting in
anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental
guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not
only can but must.Such dissent can take the form of the most critical andthe most disparaging
remarks. They may give offense tothose in authority, to those who wield powe and
influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such
dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to
such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for
those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose
a democraticform of government cannot be silenced. This is trueespecially in centers of learning
where scholars competentin their line may, as a result of their studies, assert thata future is bleak for
the system of government now favoredby Western democracies. There may be doubts
entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk
of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If
there be any among us who would wish todissolve this union or to change its republican form,
letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated
where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without
holding the right to theexpression of heresy at any time and place to be absolute for even the right
to non-heretical speech cannot beabsolute it still seems wise to tolerate the expression evenof
Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and
deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23

The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the
Constitution. It does not bar the expressionof views affecting the very life of the state, even
ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that
unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly
stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of
regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so
for "a governmental purpose to control or prevent activities constitutionally subject to state regulation
may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of
protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute
be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm
hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion
Act.

There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this
noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech.
Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was
designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas willbring
about. Now, when this country is trying to spreadthe high ideals of democracy all over the world
ideals that are revolutionary in many countries seems to be aparticularly inappropriate time to
stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin
other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the
internal securityof a nation like ours does not and cannot be made todepend upon the use of force
by Government to make allthe beliefs and opinions of the people fit into a commonmold on any
single subject. Such enforced conformity ofthought would tend only to deprive our people of the
boldspirit of adventure and progress which has brought thisNation to its present greatness. The
creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican
Corresponding Societies, played a large part increating sentiment in this country that led the people
ofthe Colonies to want a nation of their own. The Father ofthe Constitution James Madison
said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in
effect during the period beforethe Revolution, the United States might well have continuedto be
'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security
can betterbe served by depending upon the affection of the peoplethan by attempting to instill them
with fear and dreadof the power of Government. The Communist Party hasnever been more than a
small group in this country. Andits numbers had been dwindling even before the Governmentbegan
its campaign to destroy the Party by force oflaw. This was because a vast majority of the
Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year
after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course
that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a
distinction in our Constitution which we would bewise to follow. They gave the Government the
fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish
people for nothing morethan advocacy of their views." 27

With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I
cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully
meeting the test of validity onfree speech and freedom of association grounds.

4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of
the challengedstatute which for me is susceptible of an interpretationthat it does represent a
defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic
state. That certainly could not havebeen the thought of its framers; nonetheless, such an
assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to
what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what
previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in
many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to
accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to
whatis an admitted evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of
disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a
realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is
up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in
a condition of destitution andmisery. It may not be able to change matters radically.At least, it should
take earnest steps in that direction.What is important for those at the bottom of the economicpyramid
is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot
evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion.
Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would
be more in accordance with the basic propositionof our polity. This is not therefore to preach a
doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally
opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the
vitality of the democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to yield concurrence to the
ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Separate Opinions

FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the decision reached
upholding thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the learned and scholarly
opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe
constitutional issues raised. What is more, the stressin the concluding portion thereof on basic
guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their
constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited,
interpreting the bill of attainder clause2 coupled withthe fears, perhaps induced by a too-latitudinarian
constructionof the guarantees of freedom of belief and expression3 as well as freedom of
association 4 as to impermissible inroadsto which they may be exposed, compels a
differentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety and
security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a
justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the government wasusually
through the rising up in arms, with weapons farless sophisticated than those now in existence, there
wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It
was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty
and weakening the senseof allegiance have introduced complexities in coping withsuch problems.
There must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim
that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934
as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof
attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which
a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without
hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas
attainted or corrupted, rendering him devoid of allheritable quality of acquiring and disposing
property bydescent. (Ex parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities."5 Two American
SupremeCourt decision were thus in the minds of the framers.They are Cummings v.
Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir
form, that apply either to named individuals or easilyascertainable members of a group in such a
way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without
judicial trial are billsof attainder prohibited by the Constitution. 8

Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty
oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors,
ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a
"desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil
War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without
theoath, they were criminally liable. The United States Supreme Court condemned the provision as a
bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The
deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a
conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa
legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death,
the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate
functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks,
judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof
trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of
evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the
enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we
have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having
been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or
drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right
topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no
question thatthe clauses would constitute a bill of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand
clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and
hencebe subjected to the like deprivation, the clause would beequally open to objection. And further,
it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be
thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no
less within the inhibition of the Federal Constitution.In all these cases there would be the
legislativeenactment creating the deprivation, without any of theordinary forms and guards provided
for the security ofthe citizen in the administration of justice by the establishedtribunales." 10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also
decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules
of such Court, all that was necessarywas that the applicant have three years practice in the
statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause
requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such
candidate for admission to the barhad never voluntarily borne arms against the UnitedStates.
Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a
presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be
allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill
of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt
again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a
punishmentfor some of the acts specified which were not punishableat the time they were
committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus
brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law.
Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the
meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding
their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition
is contained in the Constitution againstenactments of this kind by Congress; and the
argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case." 12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided
in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had
been for several yearsworking for the government. The government agencies,which had lawfully
employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed
on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency
AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November
15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter
appropriated except for services as jurorsor members of the armed forces, unless they wereprior to
November 15, 1943, again appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint
the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after
November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought
this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme
Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction
of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder
insofar as the respondents wereconcerned.

After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of
Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post
Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a
legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death,
the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of
attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided,
the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which
required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever
been overruled. They stand for the propositionthat legislative acts, no matter what their form,that
apply either to named individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution.
Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14

United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-
ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the
Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a
labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open
andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of
Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year
terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment
returned in a district court of California withservicing as a member of an executive board of a
labororganization while a member of the Communist Party, inwillful violation of the above provision.
The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication.
While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was
sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide
variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the
evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our
constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow,
technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more
simply trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice
Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management
Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses
power under theCommerce Clause to enact legislation designed to keepfrom positions affecting
interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504,
however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not
setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate
political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what
persons have committed the specifiedacts or possessed the specified characteristics. Instead,it
designates in no uncertain terms the personswho possess the fearec characteristics and therefore
cannothold union office without incurring criminal liability members of the Communist Party." 17

Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the
Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to
register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party
been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of
attainder. It attaches notto specified organizations but to described activities inwhich an organization
may or may not engage. The singlingout of an individual for legislatively prescribed
punishmentconstitutes an attainder whether the individualis called by name or described in terms of
conduct which,because it is past conduct, operates only as a designationof particular persons. ...
The Subversive Activities ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under the direction, domination, or
controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding
must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as tofact are supported by the
preponderance of the evidence.Present activity constitutes an operative element to whichthe statute
attaches legal consequences, not merely a pointof reference for the ascertainment of particularly
personsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be in
the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the
Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three
subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of
the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable
togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is
not to lose sightof the qualification that for them could deprive such aholding of its explicit character
as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has
to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the
Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive
character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby
force, deceit, and other illegal means and placeit under the control and domination of a foreign
power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a
criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there
was an indictment of the laborleader who, judging by his membership in the CommunistParty, did
transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the American Supreme Court is
correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute.
It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist
Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof
invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.

3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition
guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the
threat that Communism, the Russian brand then, didpose was a painful reality for Congressional
leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could
neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such
mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward
off such menace must not be repugnant to our Constitution.We are legally precluded from acting in
anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental
guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not
only can but must.Such dissent can take the form of the most critical andthe most disparaging
remarks. They may give offense tothose in authority, to those who wield powe and
influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such
dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to
such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for
those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose
a democraticform of government cannot be silenced. This is trueespecially in centers of learning
where scholars competentin their line may, as a result of their studies, assert thata future is bleak for
the system of government now favoredby Western democracies. There may be doubts
entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk
of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If
there be any among us who would wish todissolve this union or to change its republican form,
letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated
where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without
holding the right to theexpression of heresy at any time and place to be absolute for even the right
to non-heretical speech cannot beabsolute it still seems wise to tolerate the expression evenof
Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and
deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23

The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the
Constitution. It does not bar the expressionof views affecting the very life of the state, even
ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that
unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly
stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of
regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so
for "a governmental purpose to control or prevent activities constitutionally subject to state regulation
may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of
protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute
be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm
hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion
Act.

There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this
noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech.
Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was
designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas willbring
about. Now, when this country is trying to spreadthe high ideals of democracy all over the world
ideals that are revolutionary in many countries seems to be aparticularly inappropriate time to
stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin
other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the
internal securityof a nation like ours does not and cannot be made todepend upon the use of force
by Government to make allthe beliefs and opinions of the people fit into a commonmold on any
single subject. Such enforced conformity ofthought would tend only to deprive our people of the
boldspirit of adventure and progress which has brought thisNation to its present greatness. The
creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a
necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican
Corresponding Societies, played a large part increating sentiment in this country that led the people
ofthe Colonies to want a nation of their own. The Father ofthe Constitution James Madison
said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in
effect during the period beforethe Revolution, the United States might well have continuedto be
'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security
can betterbe served by depending upon the affection of the peoplethan by attempting to instill them
with fear and dreadof the power of Government. The Communist Party hasnever been more than a
small group in this country. Andits numbers had been dwindling even before the Governmentbegan
its campaign to destroy the Party by force oflaw. This was because a vast majority of the
Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year
after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course
that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a
distinction in our Constitution which we would bewise to follow. They gave the Government the
fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish
people for nothing morethan advocacy of their views." 27

With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I
cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully
meeting the test of validity onfree speech and freedom of association grounds.

4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of
the challengedstatute which for me is susceptible of an interpretationthat it does represent a
defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic
state. That certainly could not havebeen the thought of its framers; nonetheless, such an
assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to
what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what
previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in
many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to
accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to
whatis an admitted evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of
disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a
realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is
up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in
a condition of destitution andmisery. It may not be able to change matters radically.At least, it should
take earnest steps in that direction.What is important for those at the bottom of the economicpyramid
is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot
evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion.
Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would
be more in accordance with the basic propositionof our polity. This is not therefore to preach a
doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally
opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the
vitality of the democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to yield concurrence to the
ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

ARTURO M. DE CASTRO,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO,

Respondents.

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

JAIME N. SORIANO,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

 Respondent.

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

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

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

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

APPOINTMENTS TO THE JUDICIARY,

ESTELITO P. MENDOZA,

Petitioner,

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

JOHN G. PERALTA,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC).

Respondent.

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

PETER IRVING CORVERA;

CHRISTIAN ROBERT S. LIM;

ALFONSO V. TAN, JR.;

NATIONAL UNION OF PEOPLES LAWYERS;

MARLOU B. UBANO;

INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its

Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal
capacity as a MEMBER of the PHILIPPINE BAR;

MITCHELL JOHN L. BOISER;

BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN

SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY)
SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN
NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD
RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION
OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE
EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT
CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA;

WALDEN F. BELLO and LORETTA ANN P. ROSALES;

WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA

QUISUMBING-

JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA.

VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and
GUINEVERE DE LEON.
Intervenors.

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

ATTY. AMADOR Z. TOLENTINO, JR., (IBP

GovernorSouthern Luzon), and ATTY. ROLAND B. INTING

(IBP GovernorEastern Visayas),

Petitioners,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

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

PHILIPPINE BAR ASSOCIATION, INC.,

Petitioner,

- versus -
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,

Respondents.

G. R. No. 191002

G.R. No. 191032

G.R. No. 191057

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

G.R. No. 191149

G.R. No. 191342
G.R. No. 191420

Present:

PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,
ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

Promulgated:

March 17, 2010

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

DECISION

BERSAMIN, J.:

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

Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No.
191002[1] and G.R. No. 191149[2] as special civil actions for certiorari and mandamus,
praying that the JBC be compelled to submit to the incumbent President the list of at least
three nominees for the position of the next Chief Justice.

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

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

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

General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15,
Article VII applies to appointments to the Judiciary.

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

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

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

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

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

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

Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC to
immediately transmit to the President, within a reasonable time, its nomination list for the
position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in
compliance with its mandated duty under the Constitution in the event that the Court
resolves that the President can appoint a Chief Justice even during the election ban under
Section 15, Article VII of the Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that
the JBC has initiated the process of receiving applications for the position of Chief Justice
and has in fact begun the evaluation process for the applications to the position, and is
perilously near completing the nomination process and coming up with a list of nominees for
submission to the President, entering into the period of the ban on midnight appointments on
March 10, 2010, which only highlights the pressing and compelling need for a writ of
prohibition to enjoin such alleged ministerial function of submitting the list, especially if it
will be cone within the period of the ban on midnight appointments.[14]

Antecedents

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

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

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

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

It will publish the opening of the position for applications or recommendations; deliberate on
the list of candidates; publish the names of candidates; accept comments on or opposition to
the applications; conduct public interviews of candidates; and prepare the shortlist of
candidates.

As to the time to submit this shortlist to the proper appointing authority, in the light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views
on the matter.
18 January 2010.

(sgd.)

MA. LUISA D. VILLARAMA

Clerk of Court &

Ex-Officio Secretary

Judicial and Bar Council

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

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

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

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

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

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

The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet
the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office
of the Ombudsman (due to cases pending in the Office of the Ombudsman).[21]

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their sworn
complaint, written report, or opposition, if any, not later than February 22, 2010, to wit:
Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales,
Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice
Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine
Star issues of February 13, 2010.[22]

Issues

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

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

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

G.R. No. 191002

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

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

G.R. No. 191032

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

G.R. No. 191057

a. Is the constitutional prohibition against appointment under Section 15, Article VII of the
Constitution applicable only to positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies
to members of the Judiciary, may such appointments be excepted because they are
impressed with public interest or are demanded by the exigencies of public service, thereby
justifying these appointments during the period of prohibition?

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

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

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

b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March
10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on
May 17, 2010?

G.R. No. 191149

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

G.R. No. 191342

a. Does the JBC have the authority to submit the list of nominees to the incumbent
President without committing a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight appointments two months
immediately preceding the next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the candidates for the position
of Chief Justice, constitutionally invalid in view of the JBCs illegal composition allowing each
member from the Senate and the House of Representatives to have one vote each?

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

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

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

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

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

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

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

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

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

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

wit:

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

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

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

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

Peoples Lawyers (NUPL);

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

(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the
Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon
(IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser
(Boiser);

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

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

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

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

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

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

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

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

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

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

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

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

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

Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of nominating
appointees to the Supreme Court is purely ministerial and does not involve the exercise of
judgment; that there can be no default on the part of the JBC in submitting the list of
nominees to the President, considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the commencement of the process
of screening of applicants to fill the vacancy in the office of the Chief Justice only begins
from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for
any party to claim that the submission or non-submission of the list of nominees to the
President by the JBC is a matter of right under law.
The main question presented in all the filings herein because it involves two seemingly
conflicting provisions of the Constitution imperatively demands the attention and resolution
of this Court, the only authority that can resolve the question definitively and finally. The
imperative demand rests on the ever-present need, first, to safeguard the independence,
reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has
been unnecessarily dragged into the harsh polemics brought on by the controversy; second,
to settle once and for all the doubt about an outgoing Presidents power to appoint to the
Judiciary within the long period starting two months before the presidential elections until
the end of the presidential term; and third, to set a definite guideline for the JBC to follow in
the discharge of its primary office of screening and nominating qualified persons for
appointment to the Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

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

Black defines locus standi as a right of appearance in a court of justice on a given

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

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

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

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

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

organizations to bring their suits involving the constitutionality or validity of laws,

regulations, and rulings.[53]

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

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain
locus standi. That is not surprising, for even if the issue may appear to concern only the
public in general, such capacities nonetheless equip the petitioner with adequate interest to
sue. In David v. Macapagal-Arroyo,[54] the Court aptly explains why:
Case law in most jurisdictions now allows both citizen and taxpayer standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was held that
the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In
the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins:[56] In matter of mere public right, howeverthe people are the
real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied.
With respect to taxpayers suits, Terr v. Jordan[57] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his
injury cannot be denied.[58]

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

PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law
for the purpose of defending, protecting, and preserving the Constitution and promoting its
growth and flowering. It also alleges that the Court has recognized its legal standing to file
cases on constitutional issues in several cases.[60]

In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the
Philippine Bar engaged in the active practice of law, and a former Solicitor General, former
Minister of Justice, former Member of the Interim Batasang Pambansa and the Regular
Batasang Pambansa, and former member of the Faculty of the College of Law of the
University of the Philippines.

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

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

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

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

Justiciability

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

Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial
determination, pointing out that petitioner De Castro has not even shown that the JBC has
already completed its selection process and is now ready to submit the list to the incumbent
President; and that petitioner De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castros petition rests on an overbroad
and vague allegation of political tension, which is insufficient basis for the Court to exercise
its power of judicial review.

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

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

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

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

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

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

Substantive Merits

Prohibition under Section 15, Article VII does not apply

to appointments to fill a vacancy in the Supreme Court

or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

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

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

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

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

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

The Court agrees with the submission.

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

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

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

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

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

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They
could not have ignored the meticulous ordering of the provisions. They would have easily
and surely written the prohibition made explicit in Section 15, Article VII as being equally
applicable to the appointment of Members of the Supreme Court in Article VIII itself, most
likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making appointments within two
months before the next presidential elections and up to the end of the Presidents or Acting
Presidents term does not refer to the Members of the Supreme Court.
Although Valenzuela[67] came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC
by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the
Constitutional Commission, about the prohibition not being intended to apply to the
appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned,
should prevail.

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

V . Intent of the Constitutional Commission

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

In this connection, it may be pointed out that that instruction that any vacancy shall be filled
within ninety days (in the last sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition in Section 15, Article VII, which is couched in stronger negative language - that a
President or Acting President shall not make appointments

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

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

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

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

MR. CONCEPCION. Yes.

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

MR. CONCEPCION. That is right.

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

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

Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to
impose a duty that may be enforced[71] should not be disregarded. Thereby, Sections 4(1)
imposes on the President the imperative duty to make an appointment of a Member of the
Supreme Court within 90 days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the Constitution.

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

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

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

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

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

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

We reverse Valenzuela.

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

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

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

xxx

The second type of appointments prohibited by Section 15, Article VII consists of the so-
called midnight appointments. In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated
in his bid for reelection, became no more than a caretaker administrator whose duty was to
prepare for the orderly transfer of authority to the incoming President. Said the Court:
The filling up of vacancies in important positions, if few, and so spaced as to afford some
assurance of deliberate action and careful consideration of the need for the appointment and
appointee's qualifications may undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of almost all of them in a few hours
before the inauguration of the new President may, with some reason, be regarded by the
latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness and other conditions, and
thereby to deprive the new administration of an opportunity to make the corresponding
appointments.

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

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

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

Considering the respective reasons for the time frames for filling vacancies in the courts and
the restriction on the President's power of appointment, it is this Courts view that, as a
general proposition, in case of conflict, the former should yield to the latter. Surely, the
prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling
up of court vacancies or the disposition of some cases. Temporary vacancies can abide the
period of the ban which, incidentally and as earlier pointed out, comes to exist only once in
every six years. Moreover, those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent in their effects.
They may, as earlier pointed out, in fact influence the results of elections and, for that reason,
their making is considered an election offense.[76]
Given the background and rationale for the prohibition in Section 15, Article VII, we have no
doubt that the Constitutional Commission confined the prohibition to appointments made in
the Executive Department. The framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment of the JBC and their subjecting
the nomination and screening of candidates for judicial positions to the unhurried and
deliberate prior process of the JBC ensured that there would no longer be midnight
appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in
haste and with irregularities, or made by an outgoing Chief Executive in the last days of his
administration out of a desire to subvert the policies of the incoming President or for
partisanship,[77] the appointments to the Judiciary made after the establishment of the JBC
would not be suffering from such defects because of the JBCs prior processing of
candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the
purpose of the enactment is a step in the process of ascertaining the intent or meaning of the
enactment, because the reason for the enactment must necessarily shed considerable light
on the law of the statute, i.e., the intent; hence, the enactment should be construed with
reference to its intended scope and purpose, and the court should seek to carry out this
purpose rather than to defeat it.[78]

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

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

The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to
determine the intent of the framers rather than on the deliberations of the Constitutional
Commission. Much of the unfounded doubt about the Presidents power to appoint during the
period of prohibition in Section 15, Article VII could have been dispelled since its
promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the
confirmation of a distinguished member of the Constitutional Commission like Justice
Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16)
concern the appointing powers of the President.

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

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

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

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the
Judiciary further undermines the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative Departments. Such a holding will
tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders
vying for the Presidency in a presidential election. Consequently, the wisdom of having the
new President, instead of the current incumbent President, appoint the next Chief Justice is
itself suspect, and cannot ensure judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the appointment by the incumbent
President does not run the same risk of compromising judicial independence, precisely
because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the incumbent
President to appoint during the prohibition period the successor of Chief Justice Puno within
the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of
the 90 days mandated in Section 4(1), Article VIII remaining.

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

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

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

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

Sec. 9, Article VIII says:

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

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

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

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

II

The Judiciary Act of 1948

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

Section 12 of the Judiciary Act of 1948 states:

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

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

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

We cannot agree with the posture.

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

For sure, the framers intended the position of Chief Justice to be permanent, not one to be
occupied in an acting or temporary capacity. In relation to the scheme of things under the
present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation
in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice
is unable to perform the duties and powers of the office. It ought to be remembered, however,
that it was enacted because the Chief Justice appointed under the 1935 Constitution was
subject to the confirmation of the Commission on Appointments, and the confirmation
process might take longer than expected.
The appointment of the next Chief Justice by the incumbent President is preferable to having
the Associate Justice who is first in precedence take over. Under the Constitution, the heads
of the Legislative and Executive Departments are popularly elected, and whoever are elected
and proclaimed at once become the leaders of their respective Departments. However, the
lack of any appointed occupant of the office of Chief Justice harms the independence of the
Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice
performs functions absolutely significant to the life of the nation. With the entire Supreme
Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the
Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its
being mandatory for the incumbent President to make within the 90-day period from May 17,
2010, there is no justification to insist that the successor of Chief Justice Puno be appointed
by the next President.

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

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

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

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

4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide,
Jr. was sworn into office the following early morning of November 30, 1998;

5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio
Panganiban was appointed the next day, December 20, 2005; and

6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S.
Puno took his oath as Chief Justice at midnight of December 6, 2006.[85]
III

Writ of mandamus does not lie against the JBC

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

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

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

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

Section 8. xxx

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

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

For the lower courts, the President shall issue the appointments within ninety days from the
submission of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in
the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days
from the submission of the list, in the case of the lower courts. The 90-day period is directed
at the President, not at the JBC. Thus, the JBC should start the process of selecting the
candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the President the list of
nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint
one of them within the 90-day period from the occurrence of the vacancy. The JBC has no
discretion to submit the list to the President after the vacancy occurs, because that shortens
the 90-day period allowed by the Constitution for the President to make the appointment. For
the JBC to do so will be unconscionable on its part, considering that it will thereby effectively
and illegally deprive the President of the ample time granted under the Constitution to reflect
on the qualifications of the nominees named in the list of the JBC before making the
appointment.

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

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

The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in
a prescribed manner, in obedience to the mandate of a legal authority, without regard to or
the exercise of his own judgment upon the propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him the right to decide how or when the duty
shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only
when the discharge of the same requires neither the exercise of official discretion or
judgment.[89]
Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue
a writ of mandamus against the JBC. The actions for that purpose are premature, because it
is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of
nominees to the President to fill the vacancy created by the compulsory retirement of Chief
Justice Puno.

IV

Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President
can appoint the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No. 191032,
which proposes to prevent the JBC from intervening in the process of nominating the
successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit.
The challenge mounted against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio members from the Senate and the
House of Representatives, thereby prejudicing the chances of some candidates for
nomination by raising the minimum number of votes required in accordance with the rules of
the JBC, is not based on the petitioners actual interest, because they have not alleged in their
petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the
petitioners lack locus standi on that issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of
merit; and

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

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

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

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

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

SO ORDERED.

IMMACULADA L. GARCIA,

Petitioner,

- versus -
SOCIAL SECURITY COMMISSION LEGAL AND COLLECTION, SOCIAL SECURITY SYSTEM,

Respondents.

G.R. No. 170735

Present:

YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

REYES, JJ.

Promulgated:

December 17, 2007

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

DECISION
CHICO-NAZARIO, J.:

This is petition for review on Certiorari under Rule 45 of the Rules of Court is assailing the 2
June 2005 Decision[1] and 8 December 2005 Resolution[2] both of the Court of Appeals in
CA-G.R. SP No. 85923. the appellate court affirmed the --- Order and --- Resolution both of the
Social Security Commission (SSC) in SSC Case No. 10048, finding Immaculada L. Garcia
(Garcia), the sole surviving director of Impact Corporation, petitioner herein, liable for
unremitted, albeit collected, SSS contributions.

Petitioner Immaculada L. Garcia, Eduardo de Leon, Ricardo de Leon, Pacita Fernandez, and
Consuelo Villanueva were directors[3] of Impact Corporation. The corporation was engaged
in the business of manufacturing aluminum tube containers and operated two factories. One
was a slug foundry-factory located in Cuyapo, Nueva Ecija, while the other was an Extrusion
Plant in Cainta, Metro Manila, which processed the slugs into aluminum collapsible tubes and
similar containers for toothpaste and other related products.

Records show that around 1978, Impact Corporation started encountering financial problems.
By 1980, labor unrest besieged the corporation.

In March 1983, Impact Corporation filed with the Securities and Exchange Commission (SEC)
a Petition for Suspension of Payments,[4] docketed as SEC Case No. 02423, in which it stated
that:

[Impact Corporation] has been and still is engaged in the business of manufacturing
aluminum tube containers x x x.

xxxx

In brief, it is an on-going, viable, and profitable enterprise.

On 8 May 1985, the union of Impact Corporation filed a Notice of Strike with the Ministry of
Labor which was followed by a declaration of strike on 28 July 1985. Subsequently, the
Ministry of Labor certified the labor dispute for compulsory arbitration to the National Labor
Relations Commission (NLRC) in an Order[5] dated 25 August 1985. The Ministry of Labor, in
the same Order, noted the inability of Impact Corporation to pay wages, 13th month pay, and
SSS remittances due to cash liquidity problems. A portion of the order reads:

On the claims of unpaid wages, unpaid 13th month pay and non-remittance of loan
amortization and SSS premiums, we are for directing the company to pay the same to the
workers and to remit loan amortizations and SSS premiums previously deducted from their
wages to the Social Security System. Such claims were never contested by the company both
during the hearing below and in our office. In fact, such claims were admitted by the
company although it alleged cash liquidity as the main reason for such non-payment.

WHEREFORE, the dispute at Impact Corporation is hereby certified to the National Labor
Relations Commission for compulsory arbitration in accordance with Article 264 (g) of the
Labor Code, as amended.

xxxx

The company is directed to pay all the entitled workers unpaid wages, unpaid 13th month pay
and to remit to the Social Security System loan amortizations and SSS premiums previously
deducted from the wages of the workers.[6]

On 3 July 1985, the Social Security System (SSS), through its Legal and Collection Division
(LCD), filed a case before the SSC for the collection of unremitted SSS premium contributions
withheld by Impact Corporation from its employees. The case which impleaded Impact
Corporation as respondent was docketed as SSC Case No. 10048.[7]

Impact Corporation was compulsorily covered by the SSS as an employer effective 15 July
1963 and was assigned Employer I.D. No. 03-2745100-21.

In answer to the allegations raised in SSC Case No. 10048, Impact Corporation, through its
then Vice President Ricardo de Leon, explained in a letter dated 18 July 1985 that it had been
confronted with strikes in 1984 and layoffs were effected thereafter. It further argued that the
P402,988.93 is erroneous. It explained among other things, that its operations had been
suspended and that it was waiting for the resolution on its Petition for Suspension of
Payments by the SEC under SEC Case No. 2423. Despite due notice, the corporation failed to
appear at the hearings. The SSC ordered the investigating team of the SSS to determine if it
can still file its claim for unpaid premium contributions against the corporation under the
Petition for Suspension of Payments.

In the meantime, the Petition for Suspension of Payments was dismissed which was pending
before the SEC in an Order[8] dated 12 December 1985. Impact Corporation resumed
operations but only for its winding up and dissolution.[9] Due to Impact Corporations liability
and cash flow problems, all of its assets, namely, its machineries, equipment, office furniture
and fixtures, were sold to scrap dealers to answer for its arrears in rentals.

On 1 December 1995, the SSS-LCD filed an amended Petition[10] in SSC Case No. 10048
wherein the directors of Impact Corporation were directly impleaded as respondents, namely:
Eduardo de Leon, Ricardo de Leon,[11] Pacita Fernandez, Consuelo Villanueva, and
petitioner. The amounts sought to be collected totaled P453,845.78 and P10,856.85 for the
periods August 1980 to December 1984 and August 1981 to July 1984, respectively, and the
penalties for late remittance at the rate of 3% per month from the date the contributions fell
due until fully paid pursuant to Section 22(a) of the Social Security Law,[12] as amended, in
the amounts of P49,941.67 and P2,474,662.82.

Period

Unremitted Amount

Penalties

(3% Interest Per Month)

TOTAL

August 1980 to December 1984

P 453,845.78

P49, 941.67

503,787.45

August 1981 to July 1984

P 10,856.85
P2, 474, 662.82

2,485,519.67

Summonses were not served upon Eduardo de Leon, Pacita Fernandez, and Consuelo
Villanueva, their whereabouts unknown. They were all later determined to be deceased. On
the other hand, due to failure to file his responsive pleading, Ricardo de Leon was declared in
default.

Petitioner filed with the SSC a Motion to Dismiss[13] on grounds of prescription, lack of
cause of action and cessation of business, but the Motion was denied for lack of merit.[14] In
her Answer with Counterclaim[15] dated 20 May 1999, petitioner averred that Impact
Corporation had ceased operations in 1980. In her defense, she insisted that she was a mere
director without managerial functions, and she ceased to be such in 1982. Even as a
stockholder and director of Impact Corporation, petitioner contended that she cannot be
made personally liable for the corporate obligations of Impact Corporation since her liability
extended only up to the extent of her unpaid subscription, of which she had none since her
subscription was already fully paid. The petitioner raised the same arguments in her Position
Paper. [16]

On 23 January 1998, Ricardo de Leon died following the death, too, of Pacita Fernandez died
on 7 February 2000. In an Order dated 11 April 2000, the SSC directed the System to check if
Impact Corporation had leviable properties to which the investigating team of respondent
SSS manifested that the Impact Corporation had already been dissolved and its assets
disposed of.[17]

In a Resolution dated 28 May 2003, the Social Security Commission ruled in favor of SSS and
declared petitioner liable to pay the unremitted contributions and penalties, stating the
following:

WHEREFORE, premises considered, this Commission finds, and so holds, that respondents
Impact Corporation and/or Immaculada L. Garcia, as director and responsible officer of the
said corporation, is liable to pay the SSS the amounts of P442,988.93, representing the
unpaid SS contributions of their employees for the period August 1980 to December 1984, not
inclusive, and P10,856.85, representing the balance of the unpaid SS contributions in favor of
Donato Campos, Jaime Mascarenas, Bonifacio Franco and Romeo Fullon for the period
August 1980 to December 1984, not inclusive, as well as the 3% per month penalty imposed
thereon for late payment in the amounts of P3,194,548.63 and P78,441.33, respectively,
computed as of April 30, 2003. This is without prejudice to the right of the SSS to collect the
penalties accruing after April 30, 2003 and to institute other appropriate actions against the
respondent corporation and/or its responsible officers.

Should the respondents pay their liability for unpaid SSS contributions within sixty (60) days
from receipt of a copy of this Resolution, the 3% per month penalty for late payment thereof
shall be deemed condoned pursuant to SSC Res. No. 397-S.97, as amended by SSC Res. Nos.
112-S.98 and 982-S.99, implementing the provision on condonation of penalty under Section
30 of R.A. No. 8282.

In the event the respondents fail to pay their liabilities within the aforestated period, let a writ
of execution be issued, pursuant to Section 22 (c) [2] of the SS Law, as amended, for the
satisfaction of their liabilities to the SSS.[18]

Petitioner filed a Motion for Reconsideration[19] of the afore-quoted Decision but it was
denied for lack of merit in an Order[20] dated 4 August 2004, thus:

Nowhere in the questioned Resolution dated May 28, 2003 is it stated that the other directors
of the defunct Impact Corporation are absolved from their contribution and penalty liabilities
to the SSS. It is certainly farthest from the intention of the petitioner SSS or this Commission
to pin the entire liability of Impact Corporation on movant Immaculada L. Garcia, to the
exclusion of the directors of the corporation namely: Eduardo de Leon, Ricardo de Leon,
Pacita Fernandez and Conzuelo Villanueva, who were all impleaded as parties-respondents in
this case.

The case record shows that there was failure of service of summonses upon respondents
Eduardo de Leon, Pacita Fernandez and Conzuelo Villanueva, who are all deceased, for the
reason that their whereabouts are unknown. Moreover, neither the legal heirs nor the estate
of the defaulted respondent Ricardo de Leon were substituted as parties-respondents in this
case when he died on January 23, 1998. Needless to state, the Commission did not acquire
jurisdiction over the persons or estates of the other directors of Impact Corporation, hence, it
could not validly render any pronouncement as to their liabilities in this case.

Furthermore, the movant cannot raise in a motion for reconsideration the defense that she
was no longer a director of Impact Corporation in 1982, when she was allegedly eased out by
the managing directors of Impact Corporation as purportedly shown in the Deed of Sale and
Assignment of Shares of Stock dated January 22, 1982. This defense was neither pleaded in
her Motion to Dismiss dated January 17, 1996 nor in her Answer with Counterclaim dated May
18, 1999 and is, thus, deemed waived pursuant to Section 1, Rule 9 of the 1997 Rules of Civil
Procedure, which has suppletory application to the Revised Rules of Procedure of the
Commission.

Finally, this Commission has already ruled in the Order dated April 27, 1999 that since the
original Petition was filed by the SSS on July 3, 1985, and was merely amended on December
1, 1995 to implead the responsible officers of Impact Corporation, without changing its
causes of action, the same was instituted well within the 20-year prescriptive period provided
under Section 22 (b) of the SS Law, as amended, considering that the contribution
delinquency assessment covered the period August 1980 to December 1984.

In view thereof, the instant Motion for Reconsideration is hereby denied for lack of merit.

Petitioner elevated her case to the Court of Appeals via a Petition for Review. Respondent
SSS filed its Comment dated 20 January 2005, and petitioner submitted her Reply thereto on
4 April 2005.

The Court of Appeals, applying Section 28(f) of the Social Security Law,[21] again ruled
against petitioner. It dismissed the petitioners Petition in a Decision dated 2 June 2005, the
dispositive portion of which reads:

WHEREFORE, premises considered, the petition is DISMISSED for lack of merit. The assailed
Resolution dated 28 May 2003 and the Order dated 4 August 2004 of the Social Security
Commission are AFFIRMED in toto.[22]

Aggrieved, petitioner filed a Motion for Reconsideration of the appellate courts Decision but
her Motion was denied in a Resolution dated 8 December 2005.

Hence, the instant Petition in which petitioner insists that the Court of Appeals committed
grave error in holding her solely liable for the collected but unremitted SSS premium
contributions and the consequent late penalty payments due thereon. Petitioner anchors her
Petition on the following arguments:
I. SECTION 28(F) OF THE SSS LAW PROVIDES THAT A MANAGING HEAD,
DIRECTOR OR PARTNER IS LIABLE ONLY FOR THE PENALTIES OF THE EMPLOYER
CORPORATION AND NOT FOR UNPAID SSS CONTRIBUTIONS OF THE EMPLOYER
CORPORATION.

II. UNDER THE SSS LAW, IT IS THE MANAGING HEADS, DIRECTORS OR

PARTNERS WHO SHALL BE LIABLE TOGETHER WITH THE CORPORATION. IN THIS CASE,
PETITIONER HAS CEASED TO BE A STOCKHOLDER OF IMPACT CORPORATION IN 1982.
EVEN WHILE SHE WAS A STOCKHOLDER, SHE NEVER PARTICIPATED IN THE DAILY
OPERATIONS OF IMPACT CORPORATION.

III. UNDER SECTION 31 OF THE CORPORATION CODE, ONLY DIRECTORS,

TRUSTEES OR OFFICERS WHO PARTICIPATE IN UNLAWFUL ACTS OR ARE GUILTY OF
GROSS NEGLIGENCE AND BAD FAITH SHALL BE PERSONALLY LIABLE. OTHERWISE,
BEING A MERE STOCKHOLDER, SHE IS LIABLE ONLY TO THE EXTENT OF HER
SUBSCRIPTION.

IV. IMPACT CORPORATION SUFFERED IRREVERSIBLE ECONOMIC LOSSES,

EVENTS WHICH WERE NEITHER DESIRED NOR CAUSED BY ANY ACT OF THE PETITIONER.
THUS, BY REASON OF FORTUITOUS EVENTS, THE PETITIONER SHOULD BE ABSOLVED
FROM LIABILITY.

V. RESPONDENT SOCIAL SECURITY SYSTEM FAILED MISERABLY IN EXERTING

EFFORTS TO ACQUIRE JURISDICTION OVER THE LEVIABLE ASSETS OF IMPACT
CORPORATION, PERSON/S AND/OR ESTATE/S OF THE OTHER DIRECTORS OR OFFICERS
OF IMPACT CORPORATION.

VI. THE HONORABLE COMMISSION SERIOUSLY ERRED IN NOT RENDERING A

JUDGMENT BY DEFAULT AGAINST THE DIRECTORS UPON WHOM IT ACQUIRED
JURISDICTION.

Based on the foregoing, petitioner prays that the Decision dated 2 June 2005 and the
Resolution dated 8 December 2005 of the Court of Appeals be reversed and set aside, and a
new one be rendered absolving her of any and all liabilities under the Social Security Law.
In sum, the core issue to be resolved in this case is whether or not petitioner, as the only
surviving director of Impact Corporation, can be made solely liable for the corporate
obligations of Impact Corporation pertaining to unremitted SSS premium contributions and
penalties therefore.

As a covered employer under the Social Security Law, it is the obligation of Impact
Corporation under the provisions of Sections 18, 19 and 22 thereof, as amended, to deduct
from its duly covered employees monthly salaries their shares as premium contributions and
remit the same to the SSS, together with the employers shares of the contributions to the
petitioner, for and in their behalf.

From all indications, the corporation has already been dissolved. Respondents are now going
after petitioner who is the only surviving director of Impact Corporation.

A cursory review of the alleged grave errors of law committed by the Court of Appeals above
reveals there seems to be no dispute as to the assessed liability of Impact Corporation for the
unremitted SSS premiums of its employees for the period January 1980 to December 1984.

There is also no dispute as to the fact that the employees SSS premium contributions have
been deducted from their salaries by Impact Corporation.

Petitioner in assailing the Court of Appeals Decision, distinguishes the penalties from the
unremitted or unpaid SSS premium contributions. She points out that although the appellate
court is of the opinion that the concerned officers of an employer corporation are liable for
the penalties for non-remittance of premiums, it still affirmed the SSC Resolution holding
petitioner liable for the unpaid SSS premium contributions in addition to the penalties.

Petitioner avers that under the aforesaid provision, the liability does not include liability for
the unremitted SSS premium contributions.

Petitioners argument is ridiculous. The interpretation petitioner would like us to adopt finds
no support in law or in jurisprudence. While the Court of Appeals Decision provided that
Section 28(f) refers to the liabilities pertaining to penalty for the non-remittance of SSS
employee contributions, holding that it is distinct from the amount of the supposed SSS
remittances, petitioner mistakenly concluded that Section 28(f) is applicable only to penalties
and not to the liability of the employer for the unremitted premium contributions. Clearly, a
simplistic interpretation of the law is untenable. It is a rule in statutory construction that
every part of the statute must be interpreted with reference to the context, i.e., that every part
of the statute must be considered together with the other parts, and kept subservient to the
general intent of the whole enactment.[23] The liability imposed as contemplated under the
foregoing Section 28(f) of the Social Security Law does not preclude the liability for the
unremitted amount. Relevant to Section 28(f) is Section 22 of the same law.

SEC. 22. Remittance of Contributions. -- (a) The contributions imposed in the preceding
Section shall be remitted to the SSS within the first ten (10) days of each calendar month
following the month for which they are applicable or within such time as the Commission
may prescribe. Every employer required to deduct and to remit such contributions shall be
liable for their payment and if any contribution is not paid to the SSS as herein prescribed, he
shall pay besides the contribution a penalty thereon of three percent (3%) per month from the
date the contribution falls due until paid. If deemed expedient and advisable by the
Commission, the collection and remittance of contributions shall be made quarterly or semi-
annually in advance, the contributions payable by the employees to be advanced by their
respective employers: Provided, That upon separation of an employee, any contribution so
paid in advance but not due shall be credited or refunded to his employer.

Under Section 22(a), every employer is required to deduct and remit such contributions
penalty refers to the 3% penalty that automatically attaches to the delayed SSS premium
contributions. The spirit, rather than the letter of a law determines construction of a provision
of law. It is a cardinal rule in statutory construction that in interpreting the meaning and
scope of a term used in the law, a careful review of the whole law involved, as well as the
intendment of the law, must be made.[24] Nowhere in the provision or in the Decision can it
be inferred that the persons liable are absolved from paying the unremitted premium
contributions.

Elementary is the rule that when laws or rules are clear, it is incumbent upon the judge to
apply them regardless of personal belief or predilections - when the law is unambiguous and
unequivocal, application not interpretation thereof is imperative.[25] However, where the
language of a statute is vague and ambiguous, an interpretation thereof is resorted to. An
interpretation thereof is necessary in instances where a literal interpretation would be either
impossible or absurd or would lead to an injustice. A law is deemed ambiguous when it is
capable of being understood by reasonably well-informed persons in either of two or more
senses.[26] The fact that a law admits of different interpretations is the best evidence that it is
vague and ambiguous.[27] In the instant case, petitioner interprets Section 28(f) of the Social
Security Law as applicable only to penalties and not to the liability of the employer for the
unremitted premium contributions. Respondents present a more logical interpretation that is
consistent with the provisions as a whole and with the legislative intent behind the Social
Security Law.
This Court cannot be made to accept an interpretation that would defeat the intent of the law
and its legislators.[28]

Petitioner also challenges the finding of the Court of Appeals that under Section 28(f) of the
Social Security Law, a mere director or officer of an employer corporation, and not
necessarily a managing director or officer, can be held liable for the unpaid SSS premium
contributions.

Section 28(f) of the Social Security Law provides the following:

(f) If the act or omission penalized by this Act be committed by an association, partnership,
corporation or any other institution, its managing head, directors or partners shall be liable to
the penalties provided in this Act for the offense.

This Court agrees in petitioners observation that the SSS did not even deny nor rebut the
claim that petitioner was not the managing head of Impact Corporation. However, the Court of
Appeals rightly held that petitioner, as a director of Impact Corporation, is among those
officers covered by Section 28(f) of the Social Security Law.

Petitioner invokes the rule in statutory construction called ejusdem generic; that is, where
general words follow an enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are
to be held as applying only to persons or things of the same kind or class as those
specifically mentioned. According to petitioner, to be held liable under Section 28(f) of the
Social Security Law, one must be the managing head, managing director, or managing
partner. This Court though finds no need to resort to statutory construction. Section 28(f) of
the Social Security Law imposes penalty on:

(1) the managing head;

(2) directors; or

(3) partners, for offenses committed by a juridical person

The said provision does not qualify that the director or partner should likewise be a
managing director or managing partner.[29] The law is clear and unambiguous.

Petitioner nonetheless raises the defense that under Section 31 of the Corporation Code, only
directors, trustees or officers who participate in unlawful acts or are guilty of gross
negligence and bad faith shall be personally liable, and that being a mere stockholder, she is
liable only to the extent of her subscription.

Section 31 of the Corporation Code, stipulating on the liability of directors, trustees, or

officers, provides:

SEC. 31. Liability of directors, trustees or officers. - Directors or trustees who willfully and
knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of
gross negligence or bad faith in directing the affairs of the corporation or acquire any
personal or pecuniary interest in conflict with their duty as such directors, or trustees shall
be liable jointly and severally for all damages resulting therefrom suffered by the corporation,
its stockholders or members and other persons.

Basic is the rule that a corporation is invested by law with a personality separate and distinct
from that of the persons composing it as well as from that of any other legal entity to which it
may be related. A corporation is a juridical entity with legal personality separate and distinct
from those acting for and in its behalf and, in general, from the people comprising it.
Following this, the general rule applied is that obligations incurred by the corporation, acting
through its directors, officers and employees, are its sole liabilities.[30] A director, officer,
and employee of a corporation are generally not held personally liable for obligations
incurred by the corporation.

Being a mere fiction of law, however, there are peculiar situations or valid grounds that can
exist to warrant the disregard of its independent being and the lifting of the corporate veil.
This situation might arise when a corporation is used to evade a just and due obligation or to
justify a wrong, to shield or perpetrate fraud, to carry out other similar unjustifiable aims or
intentions, or as a subterfuge to commit injustice and so circumvent the law.[31] Thus,
Section 31 of the Corporation Law provides:

Taking a cue from the above provision, a corporate director, a trustee or an officer, may be
held solidarily liable with the corporation in the following instances:
1. When directors and trustees or, in appropriate cases, the officers of

a corporation--

(a) vote for or assent to patently unlawful acts of the corporation;

(b) act in bad faith or with gross negligence in directing the corporate affairs;

(c) are guilty of conflict of interest to the prejudice of the corporation, its stockholders or
members, and other persons.

2. When a director or officer has consented to the issuance of watered stocks or who,
having knowledge thereof, did not forthwith file with the corporate secretary his written
objection thereto.

3. When a director, trustee or officer has contractually agreed or stipulated to hold himself
personally and solidarily liable with the Corporation.

4. When a director, trustee or officer is made, by specific provision of law, personally liable
for his corporate action. [32]

The aforesaid provision states:

SEC. 31. Liability of directors, trustees or officers. - Directors or trustees who willfully and
knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of
gross negligence or bad faith in directing the affairs of the corporation or acquire any
personal or pecuniary interest in conflict with their duty as such directors, or trustees shall
be liable jointly and severally for all damages resulting therefrom suffered by the corporation,
its stockholders or members and other persons.

The situation of petitioner, as a director of Impact Corporation when said corporation failed to
remit the SSS premium contributions falls exactly under the fourth situation. Section 28(f) of
the Social Security Law imposes a civil liability for any act or omission pertaining to the
violation of the Social Security Law, to wit:
(f) If the act or omission penalized by this Act be committed by an association, partnership,
corporation or any other institution, its managing head, directors or partners shall be liable to
the penalties provided in this Act for the offense.

In fact, criminal actions for violations of the Social Security Law are also provided under the
Revised Penal Code. The Social Security Law provides, in Section 28 thereof, to wit:

(h) Any employer who, after deducting the monthly contributions or loan amortizations from
his employees compensation, fails to remit the said deductions to the SSS within thirty (30)
days from the date they became due shall be presumed to have misappropriated such
contributions or loan amortizations and shall suffer the penalties provided in Article Three
hundred fifteen of the Revised Penal Code.

(i) Criminal action arising from a violation of the provisions of this Act may be commenced by
the SSS or the employee concerned either under this Act or in appropriate cases under the
Revised Penal Code: x x x.

Respondents would like this Court to apply another exception to the rule that the persons
comprising a corporation are not personally liable for acts done in the performance of their
duties.

The Court of Appeals in the appealed Decision stated:

Anent the unpaid SSS contributions of Impact Corporations employees, the officers of a
corporation are liable in behalf of a corporation, which no longer exists or has ceased
operations. Although as a rule, the officers and members of a corporation are not personally
liable for acts done in performance of their duties, this rule admits of exception, one of which
is when the employer corporation is no longer existing and is unable to satisfy the judgment
in favor of the employee, the officers should be held liable for acting on behalf of the
corporation. Following the foregoing pronouncement, petitioner, as one of the directors of
Impact Corporation, together with the other directors of the defunct corporation, are liable for
the unpaid SSS contributions of their employees.[33]
On the other hand, the SSC, in its Resolution, presented this discussion:

Although as a rule, the officers and members of a corporation are not personally liable for
acts done in the performance of their duties, this rule admits of exceptions, one of which is
when the employer corporation is no longer existing and is unable to satisfy the judgment in
favor of the employee, the officers should be held liable for acting on behalf of the
corporation. x x x.[34]

The rationale cited by respondents in the two preceding paragraphs need not have been
applied because the personal liability for the unremitted SSS premium contributions and the
late penalty thereof attaches to the petitioner as a director of Impact Corporation during the
period the amounts became due and demandable by virtue of a direct provision of law.

Petitioners defense that since Impact Corporation suffered irreversible economic losses, and
by reason of fortuitous events, she should be absolved from liability, is also untenable. The
evidence adduced totally belies this claim. A reference to the copy of the Petition for
Suspension of Payments filed by Impact Corporation on 18 March 1983 before the SEC
contained an admission that:

[I]t has been and still is engaged in business and has been and still is engaged in the
business of manufacturing aluminum tube containers and in brief, it is an on-going, viable,
and profitable enterprise which has sufficient assets and actual and potential income-
generation capabilities.

The foregoing document negates petitioners assertion and supports the contention that
during the period involved Impact Corporation was still engaged in business and was an
ongoing, viable, profitable enterprise. In fact, the latest SSS form RIA submitted by Impact
Corporation is dated 7 May 1984. The assessed SSS premium contributions and penalty are
obligations imposed upon Impact Corporation by law, and should have been remitted to the
SSS within the first 10 days of each calendar month following the month for which they are
applicable or within such time as the SSC prescribes.[35]

This Court also notes the evident failure on the part of SSS to issue a judgment in default
against Ricardo de Leon, who was the vice-president and officer of the corporation, upon his
non-filing of a responsive pleading after summons was served on him. As can be gleaned
from Section 11 of the SSS Revised Rules of Procedure, the Commissioner is mandated to
render a decision either granting or denying the petition. Under the aforesaid provision, if
respondent fails to answer within the time prescribed, the Hearing Commissioner may, upon
motion of petitioner, or motu proprio, declare respondent in default and proceed to receive
petitioners evidence ex parte and thereafter recommend to the Commission either the
granting or denial of the petition as the evidence may warrant.[36]

On a final note, this Court sees it proper to quote verbatim respondents prefatory statement
in their Comment:

The Social Security System is a government agency imbued with a salutary purpose to carry
out the policy of the State to establish, develop, promote and perfect a sound and viable tax
exempt social security system suitable to the needs of the people throughout the Philippines
which shall promote social justice and provide meaningful protection to members and their
beneficiaries against the hazards of disability, sickness, maternity, old-age, death and other
contingencies resulting in loss of income or financial burden.

The soundness and viability of the funds of the SSS in turn depends on the contributions of
its covered employee and employer members, which it invests in order to deliver the basic
social benefits and privileges to its members. The entitlement to and amount of benefits and
privileges of the covered members are contribution-based. Both the soundness and viability
of the funds of the SSS as well as the entitlement and amount of benefits and privileges of its
members are adversely affected to a great extent by the non-remittance of the much-needed
contributions.[37]

The sympathy of the law on social security is toward its beneficiaries. This Court will not turn
a blind eye on the perpetration of injustice. This Court cannot and will not allow itself to be
made an instrument nor be privy to any attempt at the perpetration of injustice.

Following the doctrine laid down in Laguna Transportation Co., Inc. v. Social Security
System,[38] this Court rules that although a corporation once formed is conferred a juridical
personality separate and distinct from the persons comprising it, it is but a legal fiction
introduced for purposes of convenience and to subserve the ends of justice. The concept
cannot be extended to a point beyond its reasons and policy, and when invoked in support of
an end subversive of this policy, will be disregarded by the courts.

WHEREFORE, pursuant to the foregoing, the Decision of the Court of Appeals dated 2 June
2005 in CA-G.R. SP No. 85923 is hereby AFFIRMED WITH FINALITY. Petitioner Immaculada L.
Garcia, as sole surviving director of Impact Corporation is hereby ORDERED to pay for the
collected and unremitted SSS contributions of Impact Corporation. The case is REMANDED
to the SSS for computation of the exact amount and collection thereof.

SO ORDERED

G.R. Nos. 24116-17 August 22, 1968

CEBU PORTLAND CEMENT COMPANY, plaintiff-appellant,

vs.
MUNICIPALITY OF NAGA, CEBU, ET AL., defendants-appellees.

Tomas P. Matic, Jr. and Lorenzo R. Mosqueda for plaintiff-appellant.

Fernan, Osmea and Bellaflor for defendants-appellees.

FERNANDO, J.:

In two separate actions, plaintiff-appellant Cebu Portland Cement Company sought to test the
validity of the distraint and thereafter the sale at public auction by the principal defendant-appellee,
Municipality of Naga, Cebu, of 100,000 bags of cement for the purpose of satisfying its alleged
deficiency in the payment of the municipal license tax for 1960, municipal license tax for 1961 as
well as the penalty, all in the total sum of P204,300.00. The lower court rendered a joint decision
sustaining the validity of the action taken by defendant-appellee Municipality of Naga. The case is
now before us on appeal. We affirm.

According to the appealed decision: "From all the evidence, mostly documentary, adduced during
the hearing the following facts have been established. The efforts of the defendant Treasurer to
collect from the plaintiff the municipal license tax imposed by Amended Ordinance No. 21. Series of
1959 on cement factories located within the Municipality of Naga, Cebu, have met with rebuff time
and again. The demands made on the taxpayer ... have not been entirely successful. Finally, the
defendant Treasurer decided on June 26, 1961 to avail of the Civil remedies provided for under
Section 2304 of the Revised Administrative Code and gave the plaintiff a period of ten days from
receipt thereof within which to settle the account, computed as follows ...: Deficiency Municipal
License Tax for 1960 P80,250.00; Municipal License Tax for 1961 P90,000.00; and 20%
Penalty P34,050.00, stating in exasperation, "This is our last recourse as we had exhausted all
efforts for an amicable solution of our problem." "1

It was further shown: "On July 6, 1961, at 11:00 A.M., the defendant Treasurer notified the Plant
Manager of the plaintiff that he was "distraining 100,000 bags of Apo cement in satisfaction of your
delinquency in municipal license taxes in the total amount of P204,300.00" ... This notice was
received by the acting officer in charge of the plaintiff's plant, Vicente T. Garaygay, according to his
own admission. At first, he was not in accord with the said letter, asking the defendant Treasurer for
time to study the same, but in the afternoon he [acknowledged the] distraint ..." 2

As was noted in the decision, the defendant Treasurer in turn "signed the receipt for goods, articles
or effects seized under authority of Section 2304 of the Revised Administrative Code, certifying that
he has constructively distrained on July 6, 1961 from the Cebu Portland Cement Company at its
plant at Tina-an, Naga, Cebu, 100,000 bags of Apo cement in tanks, and that "the said articles or
goods will be sold at public auction to the highest bidder on July 27, 1961, and the proceeds thereof
will be utilized in part satisfaction of the account of the said company in municipal licenses and
penalties in the total amount of P204,300.00 due the Municipality of Naga Province of Cebu" ..."3
The lower court likewise found as a fact that on the same day, July 6, 1961, the municipal treasurer
posted the notice of sale to the effect that pursuant to the provisions of Section 2305 of the Revised
Administrative Code, he would sell at public auction for cash to the highest bidder at the main
entrance of the municipal building of the Municipality of Naga, Province of Cebu, Philippines on the
27th day of July, 1961, at 9 o'clock in the morning, the property seized and distrained or levied upon
from the Cebu Portland Cement Company in satisfaction of the municipal license taxes and
penalties in the amount of P204,300.00, specifying that what was to be sold was 100,000 bags of
Apo cement.4 No sale, as thus announced, was held on July 27, 1961. It was likewise stated in the
appealed decision that there was stipulation by the parties to this effect: "1. The auction sale took
place on January 30, 1962, ..."5

In this appeal from the above joint decision, plaintiff-appellant Cebu Portland Cement Company
upholds the view that the distraint of the 100,000 bags of cement as well as the sale at public
auction thereafter made ran counter to the law. As earlier noted, we do not see it that way.

1. On the validity of the distraint In the first two errors assigned, plaintiff-appellant submits as
illegal the distraint of 100,000 bags of cement made on July 6, 1961. Its contention is premised on
the fact that in the letter of defendant-appellee dated June 26, 1961, requiring plaintiff-appellant to
settle its account of P204,300.00, it was given a period of 10 days from receipt within which it could
pay, failure to do so being the occasion for the distraint of its property. It is now alleged that the 10-
day period of grace was not allowed to lapse, the distraint having taken place on July 6, 1961.

It suffices to answer such a contention by referring to the explicit language of the law. According to
the Revised Administrative Code: "The remedy by distraint shall proceed as follows: Upon the failure
of the person owing any municipal tax or revenue to pay the same, at the time required, the
municipal treasurer may seize and distrain any personal property belonging to such person or any
property subject to the tax lien, in sufficient quantity to satisfy the tax or charge in question, together
with any increment thereto incident to delinquency, and the expenses of the distraint."6

The clear and explicit language of the law leaves no room for doubt. The municipal treasurer "may
seize and distrain any personal property" of the individual or entity subject to the tax upon failure "to
pay the same, at the time required ..." There was such a failure on the part of plaintiff-appellant to
pay the municipal tax at the time required. The power of the municipal treasurer in accordance with
the above provision therefore came into play. 1wph1.t

Whatever might have been set forth in the letter of the municipal treasurer could not change or
amend the law it has to be enforced as written. That was what the lower court did. What was done
then cannot be rightfully looked upon as a failure to abide by what the statutory provision requires.
Time and time again, it has been repeatedly declared by this Court that where the law speaks in
clear and categorical language, there is no room for interpretation. There is only room for
application. That was what occurred in this case.7

2. On the validity of the auction sale The validity of the auction sale held on January 30, 1962 is
challenged in the next two errors assigned as allegedly committed by the lower court. Plaintiff-
appellant's argument is predicated on the fact that it was not until January 16, 1962 that it was
notified that the public auction sale was to take place on January 29, 1962. It is its view that under
the Revised Administrative Code8 the sale of the distrained property cannot take place "less than
twenty days after notice to the owner or possessor of the property [distrained] ... and the publication
or posting of such notice."

Why such a contention could not prosper is explained clearly by the lower court in the appealed
decision. Thus: "With respect to the claim that the auction sale held on January 30, 1962 pursuant to
the distraint was null and void for being contrary to law because not more than twenty days have
elapsed from the date of notice, it is believed that the defendant Municipality of Naga and Municipal
Treasurer of Naga have substantially complied with the requirements provided for by Section 2305
of the Revised Administrative Code. From the time that the plaintiff was first notified of the distraint
on July 6, 1961 up to the date of the sale on January 30, 1962, certainly, more than twenty days
have elapsed. If the sale did not take place, as advertised, on July 27, 1961, but only on January 30,
1962, it was due to the requests for deferment made by the plaintiff which unduly delayed the
proceedings for collection of the tax, and the said taxpayer should not be allowed now to complain
that the required period has not yet elapsed when the intention of the tax collector was already well-
publicized for many months."9 The reasonableness of the above observation of the lower court
cannot be disputed. Under the circumstances, the allegation that there was no observance of the
twenty-day period hardly carries conviction.

The point is further made that the auction sale took place not on January 29, 1962, as stated in the
notice of sale, but on the next day, January 30, 1962. According to plaintiff-appellant: "On this score
alone, the sale ..., was illegal as it was not made on the time stated in the notice." 10

There is no basis to sustain such a plea as the finding of the lower court is otherwise. Thus: "On
January 16, 1962, the defendant Treasurer informed Garaygay that he would cause the
readvertisement for sale at public auction of the 100,000 bags of Apo cement which were under
constructive distraint ... On January 19, 1962, the said defendant issued the corresponding notice of
sale, which fixed January 30, 1962, at 10:00 A.M., as the date of sale, posting the said notice in
public places and delivering copies thereof to the interested parties in the previous notice, ...
Ultimately, the bidding was conducted on that day, January 30, 1962, with the representatives of the
Provincial Auditor and Provincial Treasurer present. Only two bidders submitted sealed bids. After
the bidding, the defendant-treasurer informed the plaintiff that an award was given to the winning
bidder, ..." 11

This being a direct appeal to us, plaintiff-appellant must be deemed to have accepted as conclusive
what the lower court found as established by the evidence, only questions of law being brought to us
for review. It is the established rule that when a party appeals directly to this Court, he is deemed to
have waived the right to dispute any finding of fact made by the court below. 12

WHEREFORE, the decision of the lower court dated 23, 1964, is affirmed in toto. With costs against
plaintiff-appellant.
1w ph1.t

Concepcion, C.J

G.R. No. 63786-87. April 7, 1993.

UNITED PARACALE MINING COMPANY, INC., AND COCO GROVE, INC., petitioners,
vs.
HON. JOSELITO DELA ROSA, in his capacity as the former Judge of the Court of First Instance of
Camarines Norte, Branch 2, et al., respondents.

G.R. No. 70423. April 7, 1993.

ZAMBALES CHROMITE MINING COMPANY, INC., petitioner, vs. HON. ALFREDO L. BENIPAYO,
as Judge, Regional Trial Court of Manila, and PHILZEA MINING & DEVELOPMENT
CORPORATION, respondents.

G.R. No. 73931. April 7, 1993.

JOSEPH V. LOPEZ and MIGUEL C. ANDRADE, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT MARSMAN & COMPANY, INC. and UNITED
PARACALE MINING COMPANY, INC., respondents.

Sycip, Salazar, Hernandez and Gatmaitan for United Paracale and Coco Grove, Inc.

Pedro A. Venida for respondents in G.R. 63786-87 and petitioners in G.R. 73931.

J.V. Natividad & Associates for Zambales Chromite.

SYLLABUS

1. STATUTORY CONSTRUCTION; INTERPRETATION OF A STATUTE; PROPER ONLY WHEN

THERE IS DOUBT OR AMBIGUITY IN ITS LANGUAGE; CASE AT BAR. The view of the
petitioner that by virtue of the registration of the mining claims under the Philippine Bill of 1902 and
Act No. 624, the mining claims became private property and thereby brought outside the control and
supervision of the Director of Mines is without legal basis. The abovecited law does not distinguish
between private property and lands of the public domain. The provision of law involved is clear and
is not susceptible to interpretation. A condition sine qua non before the court may construe or
interpret a statute is that there be doubt or ambiguity in its language. Section 7 of P.D. 1281 quoted
above defining the original and exclusive jurisdiction of the Director of Mines is clear. Time and
again, it has been repeatedly declared by this Court that where the law speaks in clear and
categorical language, there is no room for interpretation. There is only room for application. [Cebu
Portland Cement Company vs. Municipality of Naga, Cebu, 35 SCRA 708 (1968)] Where the law is
clear and unambiguous, it must be taken to mean exactly what it says and the court has no choice
but to see to it that its mandate is obeyed. [Chartered Bank Employees Association vs. Ople, 138
SCRA 273 (1985)].

2. REMEDIAL LAW; CIVIL PROCEDURE; JUDICIAL RELIEF; NOT A VESTED RIGHT; A MERE
STATUTORY PRIVILEGE, NOT A PROPERTY RIGHT. There can be no vested right in a judicial
relief for this is a mere statutory privilege and not a property right. The distinction between statutory
privileges and vested rights must be borne in mind for persons have no vested rights in statutory
privileges. The state may change or take away rights which were created by the law of the state,
although it may not take away property which was vested by virtue of such rights.(16A Am. Jur. 2d,
pp. 652-653) Besides, the right to judicial relief is not a right which may constitute vested right
because to be vested, a right must have become a title, legal or equitable, to the present or future
enjoyment of property, or to the present or future enforcement of a demand or legal exemption from
a demand made by another. (National Carloading Corporation v. Phoenix-E1 Paso Express, Inc.,
cited in 16A Am, Jur. 2d, p. 651) Definitely, the judicial relief herein referred to by the petitioner does
not fall under any of these.

3. CIVIL LAW; PRESIDENTIAL DECREE 1214; A VALID EXERCISE OF THE SOVEREIGN

POWER OF THE STATE AS OWNER OF LAND OF PUBLIC DOMAIN; SUSTAINED IN CASE AT
BAR. The heart of these twin petitions is the question of constitutionality of P.D. 1214. Unless
P.D. 1214 is successfully assailed, the petitioners will be but mere applicants for the lease of the
mining claims involved and would thus have no causes of action against private respondents. This
question has been resolved by this Court in Santa Rosa Mining Company, Inc. vs. Leido, Jr. [156
SCRA 1 (1987), which ruling was reiterated in Zambales Chromite Mining Company, Inc. vs. Leido,
Jr., 176 SCRA 602 (1989)] thus: "(W)e hold that Presidential Decree No. 1214 is not
unconstitutional.' It is a valid exercise of the sovereign power of the State, as owner, over lands of
the public domain, of which petitioner's mining claims still form a part, and over the patrimony of the
nation, of which mineral deposits are a valuable asset. It may be underscored, in this connection,
that the Decree does not cover all mining claims located under the Phil. Bill of 1902, but only those
claims over which their locators had failed to obtain a patent. And even then, such locators may still
avail of the renewable twenty-five year (25) lease prescribed by Pres. Decree No. 463, the Mineral
Development Resources Decree of 1974. Mere location does not mean absolute ownership over the
affected land or the mining claim. It merely segregates the located land or area from the public
domain by barring other would-be locators from locating the same and appropriating for themselves
the minerals found therein. To rule otherwise would imply that location is all that is needed to acquire
and maintain rights over a located mining claim. This, we cannot approve or sanction because it is
contrary to the intention of the lawmaker that the locator should faithfully and consistently comply
with the requirements for annual work and improvements in the located mining claim. This, we
cannot approve or sanction because it is contrary to the intention of the lawmaker that the locator
should faithfully and consistently comply with the requirements for annual work and improvements in
the located mining claim. Presidential Decree No. 1214 is in accord with Sec. 8, Art. XIV of the 1973
Constitution. The same Constitutional mandate is found in Sec. 2, Art. XII of the 1987 Constitution.

DECISION

CAMPOS, JR., J p:

The cases herein were consolidated upon the representations of petitioners that they involve the
same issues or questions of law or at the very least, revolve around the same set of facts. A perusal
of the records, however, reveals the contrary. Only two petitions are properly consolidated. Thus, it
behooves Us to discuss the cases separately.

In blatant violation of Section 2, Rule 45 of the Rules of Court which in part, provides:

"Sec. 2. Contents of the petition The petition shall contain a concise statement of the matters
involved, the assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, . . . (Emphasis Ours.).

"Only questions of law may be raised in the petition and must be distinctly set forth . . ."

this petition devotes nine (9) pages under the subtitle "Summary statement of the matters involved"
to a discussion of matters off tangent from the real issues in the case. Definitely, the question of
whether or not the Court of Appeals erred in ruling that the Regional Trial Court did not commit grave
abuse of discretion in issuing an order suspending hearing pending the resolution of their motion to
dismiss, does not involve the Philippine Bill of 1902, Executive Order No. 141, much less P.D. 1214.
The counsel for petitioners even discussed pending cases in this Court (G.R. No. 63786 - 87 and
69203) which have completely nothing to do with the instant petition except for the fact that the
parties therein are being represented by the same counsel as in this petition. In several pleadings
subsequent to their petition, petitioners insisted that the proceedings in the court below must be
restrained until this Court resolves the pending cases abovecited. For this reason this case was
consolidated thereto.

A summary of the real matters involved in this petition is found in the respondent Court's decision, to
wit:

"This is a petition for certiorari and prohibition to enjoin the Regional Trial Court, Branch XL, in
Camarines Norte from issuing a writ of preliminary injunction in Civil Case No. 5148 and to disqualify
the respondent judge from acting in that case. The case was brought by the respondents Marsman
and Co., Inc. and United Paracale Mining, Inc., to enjoin the petitioners, Joseph V. Lopez and Miguel
Andrade, from entering and conducting mining operations within the "McDonald" and "San Antonio"
Tunnels in Paracale, Camarines Norte, in which the private respondents have mining claims
("Tulisan," "Santa Marta," "California," and "Rocky Mountain Fraction"). On December 11, 1984 the
RTC issued a restraining order against the petitioners.

On December 12 the petitioners filed their answer alleging that, in accordance with PD 1214, the
private respondents had forfeited their right to the mining claims. They likewise argued that in view of
PD 605, the RTC had no jurisdiction to entertain the case. On the same day the petitioners moved
for the disqualification of the respondent judge of the RTC, claiming (sic) that in issuing the
restraining order of December 11, 1984, he showed his "bias, prejudice and personal hatred of and
hostility to the [petitioners'] counsel [Atty. Pedro A. Venida]."

On December 24, 1984 the petitioners filed a motion for a preliminary hearing on their defense that
the RTC lacked jurisdiction under PD 605 to issue a temporary restraining order or injunction in
cases involving or growing out of the action of administrative officials on the applications for permits
for the disposition, exploitation, utilization, or exploration or development of the natural resources.
Accordingly the RTC, in its order of September 5, 1985, suspended the hearing of the case until the
resolution of the petitioners' motion to dismiss. It is at this point that the present petition was filed." 1

The respondent Court denied this petition on grounds that: (1) the questions being raised are not
proper in a petition for certiorari under Rule 65 but rather defenses which should be raised in the
action itself; (2) the question of jurisdiction which has yet to be resolved by the trial court pending
resolution of the motion to dismiss is prematurely raised; and (3) there was no basis for determining
whether or not the judge must be disqualified. 2

The review of this decision is what is on appeal before.

We refuse to be persuaded by the petitioners that the RTC must be enjoined from exercising its
jurisdiction in settling the case presented before it for the reason that the constitutionality of the law
involved in the said case is being questioned before this Court. This case should have been
disposed of independently of the other petitions herein.

The respondent Court of Appeals committed no reversible error. Neither did it commit grave abuse
of discretion as what petitioners want this Court to believe. The petitioners fail to point out any
assigned error which the respondent Court had supposedly committed but simply narrate the action
taken by it. Much less have they stated the reasons relied upon for the allowance of the instant
petition. For being insufficient in substance and in form, the instant petition lacks merit and must be
dismissed.

G.R. No. 70423

This is a petition involving the question of jurisdiction of regular courts in cases which had been
placed under the original and exclusive jurisdiction of the Bureau of Mines under P.D. 1281.

This petition seeks to reverse the order of then Judge, now Associate Justice of the Court of
Appeals, Hon. Alfredo L. Benipayo, dismissing the complaint filed by petitioner herein on the ground
of lack of jurisdiction, citing Section 7 of P.D. 1281 and the doctrine enunciated in Twin Peaks Mining
Association, et al. vs. Navarro, 3 that an action for the enforcement of mining contracts, in this case
cancellation of a mining contract, is outside the competence of regular courts in view of the law cited.
4
The complaint filed with the then CFI of Manila, Branch XVI, was one for the rescission of its mining
contract with herein private respondent on grounds of violations of the terms and conditions thereof,
with prayer for the issuance of a preliminary injunction and/or temporary restraining order. The trial
court, however, upon motion of the defendant therein, dismissed the case.

Petitioner wants Us to construe Section 7 of P.D. 1281 as applicable only to mineral lands forming
part of the public domain and not to mining claims located and registered under Philippine Bill of
1902 and Act No. 624 as is its case.

Section 7 of P.D. 1281 reads as follows:

Sec. 7. In addition to its regulatory and adjudicative functions over companies, partnerships or
persons engaged in mining exploration, development and exploitation, the Bureau of Mines shall
have original and exclusive jurisdiction to hear and decide cases involving:

(a) a mining property subject of different agreements entered into by the claim holder thereof with
several mining operators;

(b) complaints from claimowners that the mining property subject of an operating agreement has not
been placed into actual operations within the period stipulated therein; and

(c) cancellation and/or reinforcement of mining contracts due to the refusal of the
claimowner/operator to aside by the terms and conditions thereof.

All actions and decisions of the Director of Mines on the above cases are subject to review, motu
proprio or upon appeal by any person aggrieved thereby, by the Secretary of Natural Resources
whose decision shall be final and executory after the lapse of thirty (30) days from receipt by the
aggrieved party of said decision, unless appealed to the President in accordance with the applicable
provisions of Presidential Decree No. 309 and Letter of Instructions Nos. 119 and 135.

The view of the petitioner that by virtue of the registration of the mining claims under the Philippine
Bill of 1902 and Act No. 624, the mining claims became private property and thereby brought outside
the control and supervision of the Director of Mines is without legal basis. The abovecited law does
not distinguish between private property and lands of the public domain. The provision of law
involved is clear and is not susceptible to interpretation. A condition sine qua non before the court
may construe or interpret a statute is that there be doubt or ambiguity in its language. 5 Section 7 of
P.D. 1281 quoted above defining the original and exclusive jurisdiction of the Director of Mines is
clear. Time and again, it has been repeatedly declared by this Court that where the law speaks in
clear and categorical language, there is no room for interpretation. There is only room for
application. 6 Where the law is clear and unambiguous, it must be taken to mean exactly what it
says and the court has no choice but to see to it that its mandate is obeyed. 7

This Court in Benguet Corporation vs. Leviste, 8 made these pronouncements:

"We grant the petition. Presidential Decree No. 1281 which took effect on January 16, 1978 vests
the Bureau of Mines with jurisdictional supervision and control over all holders of mining claims or
applicants for and/or grantees of mining licenses, permits, leases and/or operators thereof, including
mining service contracts and service contractors insofar as their mining activities are concerned. To
effectively discharge its task as the Government's arm in the administration and disposition of
mineral resources, Section 7 of P.D. 1281 confers upon the Bureau quasi-judicial powers as follows:
xxx xxx xxx

Analyzing the objective of P.D. 1281, particularly said Section 7 thereof, the Court in Twin Peaks
Mining Association, the case relied upon by petitioner, noted that the trend is to make the
adjudication of mining cases a purely administrative matter. This observation was reiterated in the
more recent case of Atlas Consolidated Mining & Development Corporation vs. Court of Appeals."

The petitioner further argues that to hold that P.D. 1281 retroactively applies to its mining claims
which according to it is private property would constitute impairment of vested rights since by shifting
the forum of the petitioner's case from the courts to the Bureau of Mines, as urged by private
respondent, the substantive rights to full protection of its property rights shall be greatly impaired and
prejudiced. The judicial relief available for the redress of private property rights violated, now being
enjoyed by petitioner shall be lost altogether.

This argument does not merit Our approval. There can be no vested right in a judicial relief for this is
a mere statutory privilege and not a property right. The distinction between statutory privileges and
vested rights must be borne in mind for persons have no vested rights in statutory privileges. The
state may change or take away rights which were created by the law of the state, although it may not
take away property which was vested by virtue of such rights. 9 Besides, the right to judicial relief is
not a right which may constitute vested right because to be vested, a right must have become a title,
legal or equitable, to the present or future enjoyment of property, or to the present or future
enforcement of a demand or legal exemption from a demand made by another. 10 Definitely, the
judicial relief herein referred to by the petitioner does not fall under any of these.

The case at bar falls within the original and exclusive jurisdiction of the Bureau of Mines, hence, the
trial court did not err in dismissing the petitioner's complaint on the ground of lack of jurisdiction.

G.R. Nos. 63786-87

In these petitions filed by petitioners United Paracale Mining Company, Inc. and Coco Grove, Inc.,
petitioners seek to set aside the Order of dismissal of the case they filed with the trial court for the
ejectment of their respective defendants from the mining claims which were allegedly privately
owned by them having been located and perfected under the provisions of the Philippine Bill of 1902
and Act No. 624.

The heart of these twin petitions is the question of constitutionality of P.D. 1214. Unless P.D. 1214 is
successfully assailed, the petitioners will be but mere applicants for the lease of the mining claims
involved and would thus have no causes of action against private respondents.

This question has been resolved by this Court in Santa Rosa Mining Company, Inc. vs. Leido, Jr. 11
thus:

"(W)e hold that Presidential Decree No. 1214 is not unconstitutional. ** It is a valid exercise of the
sovereign power of the State, as owner, over lands of the public domain, of which petitioner's mining
claims still form a part, and over the patrimony of the nation, of which mineral deposits are a
valuable asset. It may be underscored, in this connection, that the Decree does not cover all mining
claims located under the Phil. Bill of 1902, but only those claims over which their locators had failed
to obtain a patent. And even then, such locators may still avail of the renewable twenty-five year (25)
lease prescribed by Pres. Decree No. 463, the Mineral Development Resources Decree of 1974.

Mere location does not mean absolute ownership over the affected land or the mining claim. It
merely segregates the located land or area from the public domain by barring other would-be
locators from locating the same and appropriating for themselves the minerals found therein. To rule
otherwise would imply that location is all that is needed to acquire and maintain rights over a located
mining claim. This, we cannot approve or sanction because it is contrary to the intention of the
lawmaker that the locator should faithfully and consistently comply with the requirements for annual
work and improvements in the located mining claim.

Presidential Decree No. 1214 is in accord with Sec. 8, Art. XIV of the 1973 Constitution which states:

'All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the
State. With the exception of agricultural, industrial or commercial, residential and resettlement lands
of the public domain, natural resources shall not be alienated, and no license, concession, or lease
for the exploration, development, and exploitation, or utilization of any of the natural resources shall
be granted for a period exceeding twenty-five years, renewable for not more than twenty-five years,
except as to water rights for irrigation, water supply, fisheries, or industrial uses other than
development of water power, in which cases, beneficial use may be the measure and the limit of the
grant.'

The same Constitutional mandate is found in Sec. 2, Art. XII of the 1987 Constitution, which
declares:

'All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full
control and supervision of the State . . .'"

Notwithstanding Our ruling , in favor of the constitutionality of P.D. 1214, petitioners contend that
having filed mining lease applications on the mining claims they have previously located and
registered under then existing laws, pursuant to the requirements of this Presidential Decree, and
despite the waiver of their rights to the issuance of mining patents therefor (emphasis theirs), they
cannot be placed in equal footing with those who forfeit all rights by virtue of non-filing of an
application within the prescribed period such that they (petitioners) have no causes of action against
private respondents.

We are not persuaded by this contention.

Although We may agree that those who filed their mining lease applications have better rights than
those who forfeited all their right by not filing at all, this, however, does not amount to any vested
right which could be the basis for their cause of action against herein private respondents. What is
precisely waived is their right to the issuance of a mining patent upon application. This in effect
grants the government the power, in the exercise of its sound discretion, to award the patent to the
applicant most qualified to explore, develop and exploit the mineral resources of the country in line
with the objectives of P.D. 463, and not necessarily to the original locator of the mining claim. To
sustain their contention that they can question the award of mining patents to applicants other than
them would put to naught the objectives of P.D. 1214 as enunciated in its WHEREAS clauses.

We agree with the trial court that with the waiver of their right to the issuance of a mining patent
upon their application for a mining lease, their status is reduced to a mere applicant, their only
advantage over the others is the fact that they have already conducted explorations at the site and
this exploration may he ongoing. But still, this credential, so to speak, is not intended to tie the hands
of the government so as to prevent it from awarding the mining patent to some other applicants,
which in its belief may he more qualified than them.

WHEREFORE, the petition in G.R. No. 73931 is hereby DISMISSED for lack of merit; the Order of
dismissal assailed in G.R. No. 70423 is AFFIRMED and this petition is hereby likewise DISMISSED;
the Order of dismissal assailed in G.R. Nos. 63786-87 is AFFIRMED and these petitions are hereby
DISMISSED. No pronouncements as to costs.

SO ORDERED.

G.R. No. L-44143 August 31, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
EUSEBIO NAZARIO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Teofilo Ragodon for accused-appellant.

SARMIENTO, J.:

The petitioner was charged with violation of certain municipal ordinances of the municipal council of Pagbilao, in Quezon province. By way of
confession and avoidance, the petitioner would admit having committed the acts charged but would claim that the ordinances are
unconstitutional, or, assuming their constitutionality, that they do not apply to him in any event.

The facts are not disputed:

This defendant is charged of the crime of Violation of Municipal Ordinance in an

information filed by the provincial Fiscal, dated October 9, 1968, as follows:

That in the years 1964, 1965 and 1966, in the Municipality of

Pagbilao, Province of Quezon, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, being then the
owner and operator of a fishpond situated in the barrio of
Pinagbayanan, of said municipality, did then and there willfully,
unlawfully and feloniously refuse and fail to pay the municipal taxes in
the total amount of THREE HUNDRED SIXTY TWO PESOS AND
SIXTY TWO CENTAVOS (P362.62), required of him as fishpond
operator as provided for under Ordinance No. 4, series of 1955, as
amended, inspite of repeated demands made upon him by the
Municipal Treasurer of Pagbilao, Quezon, to pay the same.

Contrary to law.

For the prosecution the following witnesses testified in substance as follows;

MIGUEL FRANCIA, 39 years of age, married, farmer and resident of Lopez, Quezon

In 1962 to 1967, I resided at Pinagbayanan, Pagbilao, Quezon. I know the accused
as I worked in his fishpond in 1962 to 1964. The fishpond of Nazario is at
Pinagbayanan, Pagbilao, Quezon. I worked in the clearing of the fishpond, the
construction of the dikes and the catching of fish.

On cross-examination, this witness declared:

I worked with the accused up to March 1964.

NICOLAS MACAROLAY, 65 years of age, married, copra maker and resident of

Pinagbayanan, Pagbilao, Quezon

I resided at Pinagbayanan, Pagbilao, Quezon since 1959 up to the present. I know

the accused since 1959 when he opened a fishpond at Pinagbayanan, Pagbilao,
Quezon. He still operates the fishpond up to the present and I know this fact as I am
the barrio captain of Pinagbayanan.

On cross-examination, this witness declared:

I came to know the accused when he first operated his fishpond since 1959.

On re-direct examination, this witness declared:

I was present during the catching of fish in 1967 and the accused was there.

On re-cross examination, this witness declared:

I do not remember the month in 1962 when the accused caught fish.

RODOLFO R. ALVAREZ, 45 years old, municipal treasurer of Pagbilao, Quezon,

married

As Municipal Treasurer I am in charge of tax collection. I know the accused even

before I was Municipal Treasurer of Pagbilao. I have written the accused a letter
asking him to pay his taxes (Exhibit B). Said letter was received by the accused as
per registry return receipt, Exhibit B-1. The letter demanded for payment of P362.00,
more or less, by way of taxes which he did not pay up to the present. The former
Treasurer, Ceferino Caparros, also wrote a letter of demand to the accused (Exhibit
C). On June 28, 1967, I sent a letter to the Fishery Commission (Exhibit D),
requesting information if accused paid taxes with that office. The Commission sent
me a certificate (Exhibits D-1, D-2 & D-3). The accused had a fishpond lease
agreement. The taxes unpaid were for the years 1964, 1965 and 1966.

On cross-examination, this witness declared:

I have demanded the taxes for 38.10 hectares.

On question of the court, this witness declared:

What I was collecting from the accused is the fee on fishpond operation, not rental.
The prosecution presented as part of their evidence Exhibits A, A-1, A-2, B, B-2, C,
D, D-1, D-2, D-3, E, F, F-1 and the same were admitted by the court, except Exhibits
D, D-1, D-2 and D-3 which were not admitted for being immaterial.

For the defense the accused EUSEBIO NAZARIO, 48 years of age, married, owner
and general manager of the ZIP Manufacturing Enterprises and resident of 4801 Old
Sta. Mesa, Sampaloc, Manila, declared in substance as follows:

I have lived in Sta. Mesa, Manila, since 1949. I buy my Residence Certificates at
Manila or at San Juan. In 1964, 1965 and 1966, I was living in Manila and my
business is in Manila and my family lives at Manila. I never resided at Pagbilao,
Quezon. I do not own a house at Pagbilao. I am a lessee of a fishpond located at
Pagbilao, Quezon, and I have a lease agreement to that effect with the Philippine
Fisheries Commission marked as Exhibit 1. In 1964, 1965 and 1966, the contract of
lease, Exhibit 1, was still existing and enforceable. The Ordinances Nos. 4, 15 and
12, series of 1955, 1965 and 1966, were translated into English by the Institute of
National Language to better understand the ordinances. There were exchange of
letters between me and the Municipal Treasurer of Pagbilao regarding the payment
of the taxes on my leased fishpond situated at Pagbilao. There was a letter of
demand for the payment of the taxes by the treasurer (Exhibit 3) which I received by
mail at my residence at Manila. I answered the letter of demand, Exhibit 3, with
Exhibit 3-A. I requested an inspection of my fishpond to determine its condition as it
was not then in operation. The Municipal Treasurer Alvarez went there once in 1967
and he found that it was destroyed by the typhoon and there were pictures taken
marked as Exhibits 4, 4-A, 4-B and 4C. I received another letter of demand, Exhibit
5, and I answered the same (Exhibit 5-A). I copied my reference quoted in Exhibit 5-
A from Administrative Order No. 6, Exhibit 6. I received another letter of demand
from Tomas Ornedo, Acting Municipal Treasurer of Pagbilao, dated February 16,
1966, Exhibit 7, and I answered the same with the letter marked as Exhibit 7-A,
dated February 26, 1966. I received another letter of demand from Treasurer Alvarez
of Pagbilao, Exhibit 8, and I answered the same (Exhibit 8-A). In 1964, I went to
Treasurer Caparros to ask for an application for license tax and he said none and he
told me just to pay my taxes. I did not pay because up to now I do not know whether I
am covered by the Ordinance or not. The letters of demand asked me to pay
different amounts for taxes for the fishpond. Because under Sec. 2309 of the
Revised Administrative Code, municipal taxes lapse if not paid and they are
collecting on a lapsed ordinance. Because under the Tax Code, fishermen are
exempted from percentage tax and privilege tax. There is no law empowering the
municipality to pass ordinance taxing fishpond operators.

The defense presented as part of their evidence Exhibits 1, 2, 3, 3-A, 4, 4-B, 4-B, 4-
C, 5, 5-A, 6, 6-A, 6-B, 6-C, 7, 7-A, 8 and 8-A and the same were admitted by the
court.

From their evidence the prosecution would want to show to the court that the
accused, as lessee or operator of a fishpond in the municipality of Pagbilao, refused,
and still refuses, to pay the municipal taxes for the years 1964, 1965 and 1966, in
violation of Municipal Ordinance No. 4, series of 1955, as amended by Municipal
Ordinance No. 15, series of 1965, and finally amended by Municipal Ordinance No.
12, series of 1966.
 On the other hand, the accused, by his evidence, tends to show to the court that the
taxes sought to be collected have already lapsed and that there is no law
empowering municipalities to pass ordinances taxing fishpond operators. The
defense, by their evidence, tried to show further that, as lessee of a forest land to be
converted into a fishpond, he is not covered by said municipal ordinances; and finally
that the accused should not be taxed as fishpond operator because there is no
fishpond yet being operated by him, considering that the supposed fishpond was
under construction during the period covered by the taxes sought to be collected.

Finally, the defendant claims that the ordinance in question is ultra vires as it is
outside of the power of the municipal council of Pagbilao, Quezon, to enact; and that
the defendant claims that the ordinance in question is ambiguous and uncertain.

There is no question from the evidences presented that the accused is a lessee of a
parcel of forest land, with an area of 27.1998 hectares, for fishpond purposes, under
Fishpond Lease Agreement No. 1066, entered into by the accused and the
government, through the Secretary of Agriculture and Natural Resources on August
21, 1959.

There is no question from the evidences presented that the 27.1998 hectares of land
leased by the defendant from the government for fishpond purposes was actually
converted into fishpond and used as such, and therefore defendant is an operator of
a fishpond within the purview of the ordinance in question. 1

The trial Court 2 returned a verdict of guilty and disposed as follows:

VIEWED IN THE LIGHT OF ALL THE FOREGOING, the Court finds the accused guilty beyond
reasonable doubt of the crime of violation of Municipal Ordinance No. 4, series of 1955, as amended
by Ordinance No. 15, series of 1965 and further amended by Ordinance No. 12, series of 1966, of
the Municipal Council of Pagbilao, Quezon; and hereby sentences him to pay a fine of P50.00, with
subsidiary imprisonment in case of insolvency at the rate of P8.00 a day, and to pay the costs of this
proceeding.

SO ORDERED. 3

In this appeal, certified to this Court by the Court of Appeals, the petitioner alleges that:

I.

THE LOWER COURT ERRED IN NOT DECLARING THAT ORDINANCE NO. 4, SERIES OF 1955,
AS AMENDED BY ORDINANCE NO. 15, SERIES OF 1965, AND AS FURTHER AMENDED BY
ORDINANCE NO. 12, SERIES OF 1966, OF THE MUNICIPALITY OF PAGBILAO, QUEZON, IS
NULL AND VOID FOR BEING AMBIGUOUS AND UNCERTAIN.

II.

THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION, AS
AMENDED, IS UNCONSTITUTIONAL FOR BEING EX POST FACTO.

III.
THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION
COVERS ONLY OWNERS OR OVERSEER OF FISHPONDS OF PRIVATE OWNERSHIP AND
NOT TO LESSEES OF PUBLIC LANDS.

IV.

THE LOWER COURT ERRED IN NOT FINDING THAT THE QUESTIONED ORDINANCE, EVEN IF
VALID, CANNOT BE ENFORCED BEYOND THE TERRITORIAL LIMITS OF PAGBILAO AND
DOES NOT COVER NON-
RESIDENTS. 4

The ordinances in question are Ordinance No. 4, series of 1955, Ordinance No. 15, series of 1965,
and Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao. Insofar as pertinent to
this appeal, the salient portions thereof are hereinbelow quoted:

Section 1. Any owner or manager of fishponds in places within the territorial limits of
Pagbilao, Quezon, shall pay a municipal tax in the amount of P3.00 per hectare of
fishpond on part thereof per annum. 5

xxx xxx xxx

Sec. l (a). For the convenience of those who have or owners or managers of
fishponds within the territorial limits of this municipality, the date of payment of
municipal tax relative thereto, shall begin after the lapse of three (3) years starting
from the date said fishpond is approved by the Bureau of Fisheries. 6

xxx xxx xxx

Section 1. Any owner or manager of fishponds in places within the territorial limits of
Pagbilao shall pay a municipal tax in the amount of P3.00 per hectare or any fraction
thereof per annum beginning and taking effect from the year 1964, if the fishpond
started operating before the year 1964. 7

The first objection refers to the ordinances being allegedly "ambiguous and uncertain." 8 The
petitioner contends that being a mere lessee of the fishpond, he is not covered since the said
ordinances speak of "owner or manager." He likewise maintains that they are vague insofar as they
reckon the date of payment: Whereas Ordinance No. 4 provides that parties shall commence
payment "after the lapse of three (3) years starting from the date said fishpond is approved by the
Bureau of Fisheries." 9 Ordinance No. 12 states that liability for the tax accrues "beginning and taking
effect from the year 1964 if the fishpond started operating before the year 1964." 10

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men
"of common intelligence must necessarily guess at its meaning and differ as to its application." 11 It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targetted 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.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving
clause or by construction. Thus, in Coates v. City of Cincinnati, 12 the U.S. Supreme Court struck
down an ordinance that had made it illegal for "three or more persons to assemble on any sidewalk
and there conduct themselves in a manner annoying to persons passing by." 13 Clearly, the
ordinance imposed no standard at all "because one may never know in advance what 'annoys some
people but does not annoy others.' " 14

Coates highlights what has been referred to as a "perfectly vague" 15 act whose obscurity is evident
on its face. It is to be distinguished, however, from legislation couched in imprecise language but
which nonetheless specifies a standard though defectively phrased in which case, it may be
"saved" by proper construction.

It must further be distinguished from statutes that are apparently ambiguous yet fairly applicable to
certain types of activities. In that event, such statutes may not be challenged whenever directed
against such activities. In Parker v. Levy, 16 a prosecution originally under the U.S. Uniform Code of
Military Justice (prohibiting, specifically, "conduct unbecoming an officer and gentleman"), the
defendant, an army officer who had urged his men not to go to Vietnam and called the Special
Forces trained to fight there thieves and murderers, was not allowed to invoke the void for
vagueness doctrine on the premise that accepted military interpretation and practice had provided
enough standards, and consequently, a fair notice that his conduct was impermissible.

It is interesting that in Gonzales v. Commission on Elections, 17 a divided Court sustained an act of

Congress (Republic Act No. 4880 penalizing "the too early nomination of candidates" 18 limiting the
election campaign period, and prohibiting "partisan political activities"), amid challenges of
vagueness and overbreadth on the ground that the law had included an "enumeration of the acts
deemed included in the terms 'election campaign' or 'partisan political activity" 19 that would supply
the standards. "As thus limited, the objection that may be raised as to vagueness has been
minimized, if not totally set at rest." 20 In his opinion, however, Justice Sanchez would stress that the
conduct sought to be prohibited "is not clearly defined at all." 21 "As worded in R.A 4880, prohibited
discussion could cover the entire spectrum of expression relating to candidates and political
parties." 22 He was unimpressed with the "restrictions" Fernando's opinion had relied on: " 'Simple
expressions of opinions and thoughts concerning the election' and expression of 'views on current
political problems or issues' leave the reader conjecture, to guesswork, upon the extent of protection
offered, be it as to the nature of the utterance ('simple expressions of opinion and thoughts') or the
subject of the utterance ('current political problems or issues')." 23

The Court likewise had occasion to apply the "balancing-of-interests" test, 24 insofar as the statute's
ban on early nomination of candidates was concerned: "The rational connection between the
prohibition of Section 50-A and its object, the indirect and modest scope of its restriction on the
rights of speech and assembly, and the embracing public interest which Congress has found in the
moderation of partisan political activity, lead us to the conclusion that the statute may stand
consistently with and does not offend the Constitution." 25 In that case, Castro would have the
balance achieved in favor of State authority at the "expense" of individual liberties.

In the United States, which had ample impact on Castro's separate opinion, the balancing test finds
a close kin, referred to as the "less restrictive alternative " 26 doctrine, under which the court searches
for alternatives available to the Government outside of statutory limits, or for "less drastic
means" 27 open to the State, that would render the statute unnecessary. In United States v.
Robel, 28 legislation was assailed, banning members of the (American) Communist Party from
working in any defense facility. The U.S. Supreme Court, in nullifying the statute, held that it
impaired the right of association, and that in any case, a screening process was available to the
State that would have enabled it to Identify dangerous elements holding defense positions. 29 In that
event, the balance would have been struck in favor of individual liberties.
It should be noted that it is in free expression cases that the result is usually close. It is said,
however, that the choice of the courts is usually narrowed where the controversy involves say,
economic rights, 30 or as in the Levycase, military affairs, in which less precision in analysis is
required and in which the competence of the legislature is presumed.

In no way may the ordinances at bar be said to be tainted with the vice of vagueness. It is
unmistakable from their very provisions that the appellant falls within its coverage. As the actual
operator of the fishponds, he comes within the term " manager." He does not deny the fact that he
financed the construction of the fishponds, introduced fish fries into the fishponds, and had
employed laborers to maintain them. 31 While it appears that it is the National Government which
owns them, 32 the Government never shared in the profits they had generated. It is therefore only
logical that he shoulders the burden of tax under the said ordinances.

We agree with the trial court that the ordinances are in the character of revenue
measures 33 designed to assist the coffers of the municipality of Pagbilao. And obviously, it cannot be
the owner, the Government, on whom liability should attach, for one thing, upon the ancient principle
that the Government is immune from taxes and for another, since it is not the Government that had
been making money from the venture.

Suffice it to say that as the actual operator of the fishponds in question, and as the recipient of profits
brought about by the business, the appellant is clearly liable for the municipal taxes in question. He
cannot say that he did not have a fair notice of such a liability to make such ordinances vague.

Neither are the said ordinances vague as to dates of payment. There is no merit to the claim that
"the imposition of tax has to depend upon an uncertain date yet to be determined (three years after
the 'approval of the fishpond' by the Bureau of Fisheries, and upon an uncertain event (if the
fishpond started operating before 1964), also to be determined by an uncertain individual or
individuals." 34 Ordinance No. 15, in making the tax payable "after the lapse of three (3) years starting
from the date said fishpond is approved by the Bureau of Fisheries," 35 is unequivocal about the date
of payment, and its amendment by Ordinance No. 12, reckoning liability thereunder "beginning and
taking effect from the year 1964 if the fishpond started operating before the year 1964 ," 36 does not
give rise to any ambiguity. In either case, the dates of payment have been definitely established. The
fact that the appellant has been allegedly uncertain about the reckoning dates as far as his
liability for the years 1964, 1965, and 1966 is concerned presents a mere problem in computation,
but it does not make the ordinances vague. In addition, the same would have been at most a difficult
piece of legislation, which is not unfamiliar in this jurisdiction, but hardly a vague law.

As it stands, then, liability for the tax accrues on January 1, 1964 for fishponds in operation prior
thereto (Ordinance No. 12), and for new fishponds, three years after their approval by the Bureau of
Fisheries (Ordinance No. 15). This is so since the amendatory act (Ordinance No. 12) merely
granted amnesty unto old, delinquent fishpond operators. It did not repeal its mother ordinances
(Nos. 4 and 15). With respect to new operators, Ordinance No. 15 should still prevail.

To the Court, the ordinances in question set forth enough standards that clarify imagined
ambiguities. While such standards are not apparent from the face thereof, they are visible from the
intent of the said ordinances.

The next inquiry is whether or not they can be said to be ex post facto measures. The appellant
argues that they are: "Amendment No. 12 passed on September 19, 1966, clearly provides that the
payment of the imposed tax shall "beginning and taking effect from the year 1964, if the fishpond
started operating before the year 1964.' In other words, it penalizes acts or events occurring before
its passage, that is to say, 1964 and even prior thereto." 37
The Court finds no merit in this contention. As the Solicitor General notes, "Municipal Ordinance No.
4 was passed on May 14, 1955. 38 Hence, it cannot be said that the amendment (under Ordinance
No. 12) is being made to apply retroactively (to 1964) since the reckoning period is 1955 (date of
enactment). Essentially, Ordinances Nos. 12 and 15 are in the nature of curative measures intended
to facilitate and enhance the collection of revenues the originally act, Ordinance No. 4, had
prescribed. 39 Moreover, the act (of non-payment of the tax), had been, since 1955, made
punishable, and it cannot be said that Ordinance No. 12 imposes a retroactive penalty. As we have
noted, it operates to grant amnesty to operators who had been delinquent between 1955 and 1964.
It does not mete out a penalty, much less, a retrospective one.

The appellant assails, finally, the power of the municipal council of Pagbilao to tax "public forest
land." 40 In Golden Ribbon Lumber Co., Inc. v. City of Butuan 41 we held that local governments'
taxing power does not extend to forest products or concessions under Republic Act No. 2264, the
Local Autonomy Act then in force. (Republic Act No. 2264 likewise prohibited municipalities from
imposing percentage taxes on sales.)

First of all, the tax in question is not a tax on property, although the rate thereof is based on the area
of fishponds ("P3.00 per hectare" 42). Secondly, fishponds are not forest lands, although we have
held them to the agricultural lands. 43 By definition, "forest" is "a large tract of land covered with a
natural growth of trees and underbush; a large wood." 44 (Accordingly, even if the challenged taxes
were directed on the fishponds, they would not have been taxes on forest products.)

They are, more accurately, privilege taxes on the business of fishpond maintenance. They are not
charged against sales, which would have offended the doctrine enshrined by Golden Ribbon
Lumber, 45 but rather on occupation, which is allowed under Republic Act No. 2264. 46 They are what
have been classified as fixed annual taxes and this is obvious from the ordinances themselves.

There is, then, no merit in the last objection.

WHEREFORE, the appeal is DISMISSED. Costs against the appellant.

G.R. No. 167011 April 30, 2008

SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ, petitioners,

vs.
COMMISSION ON ELECTIONS and DENNIS GARAY, respondents.

DECISION

CHICO-NAZARIO, J.:

This treats of the Petition for Review on Certiorari with a prayer for the issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction filed by petitioners Spouses Carlos S.
Romualdez and Erlinda R. Romualdez seeking to annul and set aside the Resolutions, dated 11
June 20041 and 27 January 20052 of the Commission on Elections (COMELEC) in E.O. Case No.
2000-36. In the Resolution of 11 June 2004, the COMELEC En Bancdirected the Law Department to
file the appropriate Information with the proper court against petitioners Carlos S. Romualdez and
Erlinda Romualdez for violation of Section 10(g) and (j)3 in relation to Section 45(j)4 of Republic Act
No. 8189, otherwise known as The Voters Registration Act of 1996.5 Petitioners Motion for
Reconsideration thereon was denied.
The factual antecedents leading to the instant Petition are presented hereunder:

On 12 July 2000, private respondent Dennis Garay, along with Angelino Apostol6 filed a Complaint-
Affidavit7 with the COMELEC thru the Office of the Election Officer in Burauen, Leyte, charging
petitioners with violation of Section 261(y)(2)8 and Section 261(y)(5)9 of the Omnibus Election Code,
similarly referred to as Batas Pambansa Blg. 881; and Section 1210 of Republic Act No. 8189.

Private respondent deposed, inter alia, that: petitioners are of legal ages and residents of 113
Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City; on 9 May 2000 and 11
May 2000, petitioners Carlos S. Romualdez and Erlinda R. Romualdez, applied for registration as
new voters with the Office of the Election Officer of Burauen, Leyte, as evidenced by Voter
Registration Record Nos. 42454095 and 07902952, respectively; in their sworn applications,
petitioners made false and untruthful representations in violation of Section 1011 of Republic Act Nos.
8189, by indicating therein that they are residents of 935 San Jose Street, Burauen, Leyte, when in
truth and in fact, they were and still are residents of 113 Mariposa Loop, Mariposa Street, Bagong
Lipunan ng Crame, Quezon City, and registered voters of Barangay Bagong Lipunan ng Crame,
District IV, Quezon City, Precinct No. 4419-A, as evidenced by Voter Registration Record Nos.
26195824 and 26195823; and that petitioners, knowing fully well said truth, intentionally and willfully,
did not fill the blank spaces in said applications corresponding to the length of time which they have
resided in Burauen, Leyte. In fine, private respondent charged petitioners, to wit:

Respondent-spouses, Carlos Sison Romualdez and Erlinda Reyes Romualdez committed

and consummated election offenses in violation of our election laws, specifically, Sec. 261,
paragraph (y), subparagraph (2), for knowingly making any false or untruthful statements
relative to any data or information required in the application for registration, and of Sec. 261,
paragraph (y), subparagraph (5), committed by any person who, being a registered voter,
registers anew without filing an application for cancellation of his previous registration, both
of the Omnibus Election Code (BP Blg. 881), and of Sec. 12, RA 8189 (Voter Registration
Act) for failure to apply for transfer of registration records due to change of residence to
another city or municipality."12

The Complaint-Affidavit contained a prayer that a preliminary investigation be conducted by the

COMELEC, and if the evidence so warrants, the corresponding Information against petitioners be
filed before the Regional Trial Court (RTC) for the prosecution of the same.

Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss13 dated 2 April 2001. They
contended therein that they did not make any false or untruthful statements in their application for
registration. They avowed that they intended to reside in Burauen, Leyte, since the year 1989. On 9
May 2000, they took actual residence in Burauen, Leyte, by leasing for five (5) years, the house of
Juanito and Fe Renomeron at No. 935, San Jose Street in Burauen, Leyte. On even date, the
Barangay District III Council of Burauen passed a Resolution of Welcome, expressing therein its
gratitude and appreciation to petitioner Carlos S. Romualdez for choosing the Barangay as his
official residence.14

On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal, COMELEC Investigating Officer,

issued a Resolution, recommending to the COMELEC Law Department (Investigation and
Prosecution Division), the filing of the appropriate Information against petitioners, disposing, thus:

PREMISES CONSIDERED, the Law Department (Investigation and Prosecution Division),

RECOMMENDS to file the necessary information against Carlos Sison Romualdez before
the proper Regional Trial Court for violation of Section 10 (g) and (j) in relation to Section 45
(j) of Republic Act 8189 and to authorize the Director IV of the Law Department to designate
 a Comelec Prosecutor to handle the prosecution of the case with the duty to submit periodic
report after every hearing of the case.15

On 11 June 2004, the COMELEC En Banc found no reason to depart from the recommendatory
Resolution of 28 November 2003, and ordered, viz:

WHEREFORE, premises considered, the Law Department is hereby directed to file the
appropriate information with the proper court against respondents CARLOS S. ROMUALDEZ
AND ERLINDA ROMUALDEZ for violation of Section 10 (g) and (j) in relation to Section 45
(j) of the Republic Act No. 8189.16

Petitioners filed a Motion for Reconsideration thereon.

Acting on the Motion, the COMELEC found no cogent reason to disturb the assailed En
Banc Resolution of 11 June 2004,17 rationalizing, thus:

However, perusal of the records reveal (sic) that the arguments and issues raised in the
Motion for Reconsideration are merely a rehash of the arguments advanced by the
Respondents in [their] Memorandum received by the Law Department on 17 April 2001, the
same [w]as already considered by the Investigating Officer and was discussed in her
recommendation which eventually was made as the basis for the En Bancs resolution.

As aptly observed by the Investigating Officer, the filing of request for the cancellation and
transfer of Voting Registration Record does not automatically cancel the registration records.
The fact remains that at the time of application for registration as new voter of the herein
Respondents on May 9 and 11, 2001 in the Office of Election Officer of Burauen, Leyte their
registration in Barangay 4419-A, Barangay Bagong Lipunan ng Crame Quezon City was still
valid and subsisting.18

On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of the COMELEC filed with the
RTC, Burauen, Leyte, separate Informations against petitioner Carlos S. Romualdez19 for violation of
Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, and against petitioner Erlinda R.
Romualdez20 for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189,
subsequently docketed as Crim. Case No. BN-06-03-4185 and Crim. Case No. BN-06-03-4183,
respectively. Moreover, separate Informations for violation of Section 10(j), in relation to Section
45(j) of Republic Act No. 8189 were filed against petitioners.21

Hence, petitioners come to us via the instant Petition, submitting the following arguments:

RESPONDENT COMMISSION ON ELECTIONS GRAVELY ABUSED ITS DISCRETION

AMOUNTING TO LACK OF OR IN EXCESS OF ITS JURISDICTION; and

II

COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT PREMISED ITS

RESOLUTION ON A MISAPPREHENSION OF FACTS AND FAILED TO CONSIDER
CERTAIN RELEVANT FACTS THAT WOULD JUSTIFY A DIFFERENT CONCLUSION.22
On 4 May 2006, petitioners filed a Motion Reiterating Prayer for Issuance of Writ of Preliminary
Injunction and to Cite for Indirect Contempt,23 alleging that two separate Informations, both dated 12
January 2006, were filed with the RTC by the COMELEC against petitioner Carlos S. Romualdez for
violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189, in Criminal Case No.
BN-06-03-9184; and for violation of Section 10(g), in relation to Section 45(j) of Republic Act No.
8189, in Criminal Case No. BN-06-03-9185. Similarly, the Motion alleged that the COMELEC filed
with the RTC, two separate Informations, both dated 12 January 2006, against petitioner Erlinda R.
Romualdez, charging her with the same offenses as those charged against petitioner Carlos S.
Romualdez, and thereafter, docketed as Criminal Case No. BN-06-03-9182, and No. BN-06-03-
9183.

On 20 June 2006, this Court issued a Resolution24 denying for lack of merit petitioners Motion
Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for Indirect Contempt.

We shall now resolve, in seriatim, the arguments raised by petitioners.

Petitioners contend that the election offenses for which they are charged by private respondent are
entirely different from those which they stand to be accused of before the RTC by the COMELEC.
According to petitioners, private respondents complaint charged them for allegedly violating, to wit:
1) Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code, and 2) Section 12 of the
Voters Registration Act; however, the COMELEC En Bancdirected in the assailed Resolutions, that
they be charged for violations of Section 10(g) and (j), in relation to Section 45(j) of the Voters
Registration Act. Essentially, petitioners are of the view that they were not accorded due process of
law. Specifically, their right to refute or submit documentary evidence against the new charges which
COMELEC ordered to be filed against them. Moreover, petitioners insist that Section 45(j) of the
Voters Registration Act is vague as it does not refer to a definite provision of the law, the violation of
which would constitute an election offense; hence, it runs contrary to Section 14(1)25 and Section
14(2),26 Article III of the 1987 Constitution.

We are not persuaded.

First. The Complaint-Affidavit filed by private respondent with the COMELEC is couched in a
language which embraces the allegations necessary to support the charge for violation of Section
10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189.

A reading of the relevant laws is in order, thus:

Section 10(g) and Section 10(j) of Republic Act No. 8189, provide as follows:

SEC. 10 Registration of Voters. - A qualified voter shall be registered in the permanent list
of voters in a precinct of the city or municipality wherein he resides to be able to vote in any
election. To register as a voter, he shall personally accomplish an application form for
registration as prescribed by the Commission in three (3) copies before the Election Officer
on any date during office hours after having acquired the qualifications of a voter.

The application shall contain the following data:

xxxx

(g) Periods of residence in the Philippines and in the place of registration;

 xxxx

(j) A statement that the application is not a registered voter of any precinct;

The application for registration shall contain three (3) specimen signatures of the applicant,
clear and legible rolled prints of his left and right thumbprints, with four identification size
copies of his latest photograph, attached thereto, to be taken at the expense of the
Commission.

Before the applicant accomplishes his application for registration, the Election Officer shall
inform him of the qualifications and disqualifications prescribed by law for a voter, and
thereafter, see to it that the accomplished application contains all the data therein required
and that the applicants specimen signatures, fingerprints, and photographs are properly
affixed in all copies of the voters application.

Moreover, Section 45(j) of the same Act, recites, thus:

SEC. 45. Election Offense. The following shall be considered election offenses under this
Act:

xxxx

(j) Violation of any of the provisions of this Act.

Significantly, the allegations in the Complaint-Affidavit which was filed with the Law Department of
the COMELEC, support the charge directed by the COMELEC En Banc to be filed against
petitioners with the RTC. Even a mere perusal of the Complaint-Affidavit would readily show that
Section 10 of Republic Act No. 8189 was specifically mentioned therein. On the matter of the acts
covered by Section 10(g) and (j), the Complaint-Affidavit, spells out the following allegations, to wit:

5. Respondent-spouses made false and untruthful representations in their applications

(Annexes "B" and "C") in violation of the requirements of Section 10, RA 8189 (The Voters
Registration Act):

5.1 Respondent-spouses, in their sworn applications (Annexes "B" and "C", claimed
to be residents of 935 San Jose [S]treet, Burauen, Leyte, when in truth and in fact,
they were and still are residents of 113 Mariposa Loop, Mariposa [S]treet, Bagong
Lipunan ng Crame, Quezon City and registered voters of Barangay Bagong Lipunan
ng Crame, District IV, Quezon City, Precinct No. 4419-A, a copy of the Certification
issued by Hon. Emmanuel V. Gozon, Punong Barangay, Bagong Lipunan ng Crame,
Quezon City is hereto attached and made an integral part hereof, as Annex "D";

5.2 Respondent-spouses knowing fully well said truth, intentionally and willfully, did
not fill the blank spaces in their applications (Annexes "B" and "C") corresponding to
the length of time they have resided in Burauen, Leyte;

6. Respondent-spouses, in (sic) all intents and purposes, were and still are residents and
registered voters of Quezon City, as evidenced by Voter Registration Record Nos. 26195824
and 26195823, respectively; photocopies of which are hereto attached as Annexes "E" and
"F"[.] Likewise, attached is a "Certification" (Annex "G") of Ms. Evelyn B. Bautista, Officer-in-
Charge of the Office of the Election Officer, Fourth District, Quezon City, dated May 31,
 2000, together with a certified copy of the computer print-out of the list of voters of Precinct
No. 4419-A (Annex "G-1" ) containing the names of voters Carlos Romualdez and Erlinda
Reyes Romualdez. The Certification reads as follows:

"THIS IS TO CERTIFY that as per office record MR. CARLOS ROMUALDEZ and
MS. ERLINDA REYES ROMUALDEZ are registered voters of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City, Precinct Number 4419A with voters
affidavit serial nos. 26195824 and 26195823, respectively.

This certification is issued for whatever legal purpose it may serve."

7. Respondent-spouses, registered as new voters of the Municipality of Burauen, Leyte, [in

spite of] the fact that they were and still are, registered voters of Quezon City as early as
June 22, 1997;

7.1 That, Double Registration is an election offense.

A person qualified as a voter is only allowed to register once.

If a person registers anew as a voter in spite of a subsisting registration, the new

application for registration will be disapproved. The registrant is also liable not only
for an election offense of double registration, but also for another election offense of
knowingly making any false or untruthful statement relative to any data or information
required in the application for registration.

In fact, when a person applies for registration as a voter, he or she fills up a Voter
Registration Record form in his or her own handwriting, which contains a Certification
which reads:

"I do solemnly swear that the above statements regarding my person are true and
correct; that I possess all the qualifications and none of the disqualifications of a
voter; that the thumbprints, specimen signatures and photographs appearing herein
are mine; and that I am not registered as a voter in any other precinct."27

Petitioners cannot be said to have been denied due process on the claim that the election offenses
charged against them by private respondent are entirely different from those for which they stand to
be accused of before the RTC, as charged by the COMELEC. In the first place, there appears to be
no incongruity between the charges as contained in the Complaint-Affidavit and the Informations
filed before the RTC, notwithstanding the denomination by private respondent of the alleged
violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code
and Section 12 of Republic Act No. 8189. Evidently, the Informations directed to be filed by the
COMELEC against petitioners, and which were, in fact, filed with the RTC, were based on the same
set of facts as originally alleged in the private respondents Complaint-Affidavit.

Petitioners buttress their claim of lack of due process by relying on the case of Lacson v. Executive
Secretary.28Citing Lacson, petitioners argue that the real nature of the criminal charge is determined
by the actual recital of facts in the Complaint or Information; and that the object of such written
accusations was to furnish the accused with such a description of the charge against him, as will
enable him to make his defense. Let it be said that, in Lacson, this court resolved the issue of
whether under the allegations in the subject Informations therein, it is the Sandiganbayan or the
Regional Trial Court which has jurisdiction over the multiple murder case against therein petitioner
and intervenors. In Lacson, we underscored the elementary rule that the jurisdiction of a court is
determined by the allegations in the Complaint or Information, and not by the evidence presented by
the parties at the trial.29 Indeed, in Lacson, we articulated that the real nature of the criminal charge
is determined not from the caption or preamble of the Information nor from the specification of the
provision of law alleged to have been violated, they being conclusions of law, but by the actual
recital of facts in the Complaint or Information.30

Petitioners reliance on Lacson, however, does not support their claim of lack of due process
because, as we have said, the charges contained in private respondents Complaint-Affidavit and the
charges as directed by the COMELEC to be filed are based on the same set of facts. In fact, the
nature of the criminal charges in private respondents Complaint-Affidavit and that of the charges
contained in the Informations filed with the RTC, pursuant to the COMELEC Resolution En Banc are
the same, such that, petitioners cannot claim that they were not able to refute or submit
documentary evidence against the charges that the COMELEC filed with the RTC. Petitioners were
afforded due process because they were granted the opportunity to refute the allegations in private
respondents Complaint-Affidavit. On 2 April 2001, in opposition to the Complaint-Affidavit,
petitioners filed a Joint Counter-Affidavit with Motion to Dismiss with the Law Department of the
COMELEC. They similarly filed a Memorandum before the said body. Finding that due process was
not dispensed with under the circumstances in the case at bar, we agree with the stance of the
Office of the Solicitor General that petitioners were reasonably apprised of the nature and
description of the charges against them. It likewise bears stressing that preliminary investigations
were conducted whereby petitioners were informed of the complaint and of the evidence submitted
against them. They were given the opportunity to adduce controverting evidence for their defense. In
all these stages, petitioners actively participated.

The instant case calls to our minds Orquinaza v. People,31 wherein the concerned police officer
therein designated the offense charged as sexual harassment; but, the prosecutor found that there
was no transgression of the anti-sexual harassment law, and instead, filed an Information charging
therein petitioner with acts of lasciviousness. On a claim that there was deprivation of due process,
therein petitioner argued that the Information for acts of lasciviousness was void as the preliminary
investigation conducted was for sexual harassment. The court held that the designation by the police
officer of the offense is not conclusive as it is within the competence of the prosecutor to assess the
evidence submitted and determine therefrom the appropriate offense to be charged.

Accordingly, the court pronounced that the complaint contained all the allegations to support the
charge of acts of lasciviousness under the Revised Penal Code; hence, the conduct of another
preliminary investigation for the offense of acts of lasciviousness would be a futile exercise because
the complainant would only be presenting the same facts and evidence which have already been
studied by the prosecutor.32 The court frowns upon such superfluity which only serves to delay the
prosecution and disposition of the criminal complaint.33

Second. Petitioners would have this court declare Section 45(j) of Republic Act No. 8189 vague, on
the ground that it contravenes the fair notice requirement of the 1987 Constitution, in particular,
Section 14(1) and Section 14(2), Article III of thereof. Petitioners submit that Section 45(j) of
Republic Act No. 8189 makes no reference to a definite provision of the law, the violation of which
would constitute an election offense.

We are not convinced.

The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its application.34 However, this Court has
imposed certain limitations by which a criminal statute, as in the challenged law at bar, may be
scrutinized. This Court has declared that facial invalidation35 or an "on-its-face" invalidation of
criminal statutes is not appropriate.36 We have so enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, 37 thus:

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, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'" (underscoring supplied)

"To this date, the Court has not declared any penal law unconstitutional on the ground of
ambiguity." While mentioned in passing in some cases, the void-for-vagueness concept has
yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad, the Bookkeeping
Act was found unconstitutional because it violated the equal protection clause, not because it
was vague. Adiong v. Comelec decreed as void a mere Comelec Resolution, not a statute.
Finally, Santiago v. Comelec held that a portion of RA 6735 was unconstitutional because of
undue delegation of legislative powers, not because of vagueness.

Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass

acquittal of parties whose cases may not have even reached the courts. Such
invalidation would constitute a departure from the usual requirement of "actual case
and controversy" and permit decisions to be made in a sterile abstract context having
no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S.
Supreme Court in these words:

"[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, x
x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided."

For this reason, generally disfavored is an on-its-face invalidation of statutes,

described as a "manifestly strong medicine" to be employed "sparingly and only as a
last resort." In determining the constitutionality of a statute, therefore, its provisions
that have allegedly been violated must be examined in the light of the conduct with
which the defendant has been charged. (Emphasis supplied.)

At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to
the fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be
deemed as a facial challenge. An appropriate "as applied" challenge in the instant Petition should be
limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189the
provisions upon which petitioners are charged. An expanded examination of the law covering
provisions which are alien to petitioners case would be antagonistic to the rudiment that for judicial
review to be exercised, there must be an existing case or controversy that is appropriate or ripe for
determination, and not conjectural or anticipatory.
We further quote the relevant ruling in David v. Arroyo on the proscription anent a facial challenge:38

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
"reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and
rebellion are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v.
Oklahoma, it was held:

It remains a matter of no little difficulty to determine when a law may properly be held void on
its face and when such summary action is inappropriate. But the plain import of our cases
is, at the very least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the outset, attenuates
as the otherwise unprotected behavior that it forbids the State to sanction moves from
pure speech toward conduct and that conduct even if expressive falls within the scope
of otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are 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." Here, the incontrovertible fact
remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be

used "sparingly and only as a last resort," and is "generally disfavored;" The reason for
this is obvious. Embedded in the traditional rules governing constitutional adjudication is the
principle that a person to whom a law may be applied will not be heard to challenge a law on
the ground that it may conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court. A writer and scholar in Constitutional Law explains further:

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.

In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation
to petitioners, but on the assumption or prediction that its very existence may cause others
not before the Court to refrain from constitutionally protected speech or expression.
 Xxx xxx xxx

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners did not even attempt to show
whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a
law is facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application." It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes
in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications.

Be that as it may, the test in determining whether a criminal statute is void for uncertainty is whether
the language conveys a sufficiently definite warning as to the proscribed conduct when measured by
common understanding and practice.39 This Court has similarly stressed that the vagueness doctrine
merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision
or mathematical exactitude.40

As structured, Section 4541 of Republic Act No. 8189 makes a recital of election offenses under the
same Act. Section 45(j) is, without doubt, crystal in its specification that a violation of any of the
provisions of Republic Act No. 8189 is an election offense. The language of Section 45(j) is precise.
The challenged provision renders itself to no other interpretation. A reading of the challenged
provision involves no guesswork. We do not see herein an uncertainty that makes the same vague.

Notably, herein petitioners do not cite a word in the challenged provision, the import or meaning of
which they do not understand. This is in stark contrast to the case of Estrada v.
Sandiganbayan42 where therein petitioner sought for statutory definition of particular words in the
challenged statute. Even then, the Court in Estrada rejected the argument.

This Court reasoned:

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain

and void merely because general terms are used therein, or because of the
employment of terms without defining them; much less do we have to define every
word we use. Besides, there is no positive constitutional or statutory command
requiring the legislature to define each and every word in an enactment.Congress is not
restricted in the form of expression of its will, and its inability to so define the words
employed in a statute will not necessarily result in the vagueness or ambiguity of the law so
long as the legislative will is clear, or at least, can be gathered from the whole act, which is
distinctly expressed in the Plunder Law."

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute

will be interpreted in their natural, plain and ordinary acceptation and signification,
unless it is evident that the legislature intended a technical or special legal meaning to
those words. The intention of the lawmakers who are, ordinarily, untrained philologists and
lexicographers to use statutory phraseology in such a manner is always presumed.
Perforce, this Court has underlined that an act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially where, because of the
nature of the act, it would be impossible to provide all the details in advance as in all other statutes.43

The evident intent of the legislature in including in the catena of election offenses the violation of any
of the provisions of Republic Act No. 8189, is to subsume as punishable, not only the commission of
proscribed acts, but also the omission of acts enjoined to be observed. On this score, the declared
policy of Republic Act No. 8189 is illuminating. The law articulates the policy of the State to
systematize the present method of registration in order to establish a clean, complete, permanent
and updated list of voters. A reading of Section 45 (j) conjointly with the provisions upon which
petitioners are charged, i.e., Sections 10 (g) and (j) would reveal that the matters that are required to
be set forth under the aforesaid sections are crucial to the achievement of a clean, complete,
permanent and updated list of voters. The factual information required by the law is sought not for
mere embellishment.

There is a definitive governmental purpose when the law requires that such facts should be set forth
in the application. The periods of residence in the Philippines and in the place of registration delve
into the matter of residency, a requisite which a voter must satisfy to be deemed a qualified voter
and registered in the permanent list of voters in a precinct of the city or municipality wherein he
resides. Of even rationality exists in the case of the requirement in Section 10 (j), mandating that the
applicant should state that he/she is not a registered voter of any precinct. Multiple voting by so-
called flying voters are glaring anomalies which this country strives to defeat. The requirement that
such facts as required by Section 10 (g) and Section 10 (j) be stated in the voters application form
for registration is directly relevant to the right of suffrage, which the State has the right to regulate.

It is the opportune time to allude to the case of People v. Gatchalian44 where the therein assailed law
contains a similar provision as herein assailed before us. Republic Act No. 602 also penalizes any
person who willfully violates any of the provisions of the Act. The Court dismissed the challenged,
and declared the provision constitutional. The Court in Gatchalian read the challenged provision,
"any of the provisions of this [A]ct" conjointly with Section 3 thereof which was the pertinent portion
of the law upon which therein accused was prosecuted. Gatchalian considered the terms as all-
embracing; hence, the same must include what is enjoined in Section 3 thereof which embodies the
very fundamental purpose for which the law has been adopted. This Court ruled that the law by
legislative fiat intends to punish not only those expressly declared unlawful but even those not so
declared but are clearly enjoined to be observed to carry out the fundamental purpose of the
law.45 Gatchalian remains good law, and stands unchallenged.

It also does not escape the mind of this Court that the phraseology in Section 45(j) is employed by
Congress in a number of our laws.46 These provisions have not been declared unconstitutional.

Moreover, every statute has in its favor the presumption of validity.47 To justify its nullification, there
must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative
or argumentative.48 We hold that petitioners failed to overcome the heavy presumption in favor of the
law. Its constitutionality must be upheld in the absence of substantial grounds for overthrowing the
same.

A salient point. Courts will refrain from touching upon the issue of constitutionality unless it is truly
unavoidable and is the very lis mota. In the case at bar, the lis mota is the alleged grave abuse of
discretion of the COMELEC in finding probable cause for the filing of criminal charges against
petitioners.
Third. Petitioners maintain that the COMELEC En Banc, premised its finding on a misapprehension
of facts, and committed grave abuse of discretion in directing the filing of Informations against them
with the RTC.

We are once again unimpressed.

The constitutional grant of prosecutorial power in the COMELEC finds statutory expression under
Section 26549 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code.50 The
task of the COMELEC whenever any election offense charge is filed before it is to conduct the
preliminary investigation of the case, and make a determination of probable cause. Under Section
8(b), Rule 34 of the COMELEC Rules of Procedure, the investigating officer makes a determination
of whether there is a reasonable ground to believe that a crime has been committed.51 In Baytan v.
COMELEC,52 this Court, sufficiently elucidated on the matter of probable cause in the prosecution of
election offenses, viz:

It is also well-settled that the finding of probable cause in the prosecution of election offenses
rests in the COMELEC's sound discretion. The COMELEC exercises the constitutional
authority to investigate and, where appropriate, prosecute cases for violation of election
laws, including acts or omissions constituting election frauds, offense and malpractices.
Generally, the Court will not interfere with such finding of the COMELEC absent a clear
showing of grave abuse of discretion. This principle emanates from the COMELEC's
exclusive power to conduct preliminary investigation of all election offenses punishable under
the election laws and to prosecute the same, except as may otherwise be provided by law.53

It is succinct that courts will not substitute the finding of probable cause by the COMELEC in
the absence of grave abuse of discretion. The abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.54

According to the COMELEC En Banc, the investigating officer, in the case at bar, held that there was
sufficient cause for the filing of criminal charges against petitioners, and found no reason to depart
therefrom. Without question, on May 9 and 11 of 2001, petitioners applied for registration as new
voters with the Office of the Election Officer of Burauen, Leyte, notwithstanding the existence of
petitioners registration records as registered voters of Precinct No. 4419-A of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City. The directive by the COMELEC which affirmed the
Resolution55 of 28 November 2000 of Investigating Officer Atty. Tangaro-Casingal does not appear
to be wanting in factual basis, such that a reasonably prudent man would conclude that there exists
probable cause to hold petitioners for trial. Thus, in the aforesaid Resolution, the Investigating
Officer, found:

A violation therefore of Section 10 of Republic Act No. 8189 is an election offense.

In the instant case, when respondents Carlos Romualdez and Erlinda Romualdez filed their
respective applications for registration as new voters with the Office of the Election Officer of
Burauen, Leyte on May 9 and 11, 2001, respectively, they stated under oath that they are not
registered voters in other precinct (VRR Nos. 42454095 and 07902941). However, contrary
to their statements, records show they are still registered voters of Precinct No. 4419-A,
barangay Bagong Lipunan ng Crame, District IV, Quezon City, as per VRR Nos. 26195825
and 26195823. In other words, respondents registration records in Quezon City is (sic) still
in existence.
 While it may be true that respondents had written the City Election Officer of District IV,
Quezon City for cancellation of their voters registration record as voters (sic) therein, they
cannot presume that the same will be favorably acted upon. Besides, RA 8189 provides for
the procedure in cases of transfer of residence to another city/municipality which must be
complied with, to wit:

"Section 12. Change of Residence to Another City or Municipality. Any registered voter
who has transferred residence to another city or municipality may apply with the Election
Officer of his new residence for the transfer of his registration records.

The application for transfer of registration shall be subject to the requirements of notice and
hearing and the approval of the Election Registration Board, in accordance with this Act.
Upon approval, of the application for transfer, and after notice of such approval to the
Election Officer of their former residence of the voter, said Election Officer shall transmit by
registered mail the voters registration record to the Election Officer of the voters new
residence."

They cannot claim ignorance of the abovestated provision on the procedure for transfer of
registration records by reason of transferred new residence to another municipality. Based
on the affidavit executed by one Eufemia S. Cotoner, she alleged that the refusal of the
Assistant Election Officer Ms. Estrella Perez to accept the letter of respondents was due to
improper procedure because respondents should have filed the required request for transfer
with the Election Officer of Burauen, Leyte. Despite this knowledge, however, they
proceeded to register as new voters of Burauen, Leyte, notwithstanding the existence of their
previous registrations in Quezon City.

In their subsequent affidavit of Transfer of Voters Registration under Section 12 of Republic

Act 8189, respondents admitted that they erroneously filed an application as a new voter
(sic) with the office of the Election Officer of Burauen, Leyte, by reason of an honest mistake,
which they now desire to correct. (underscoring ours).

Respondents lose sight of the fact that a statutory offense, such as violation of election law,
is mala prohibita. Proof of criminal intent is not necessary. Good faith, ignorance or lack of
malice is beside the point. Commission of the act is sufficient. It is the act itself that is
punished.

xxxx

In view of the foregoing, the Law Department respectfully submits that there is probable
cause to hold respondents Carlos Romualdez and Erlinda Romualdez for trial in violation of
Section 10(g) and (j) in relation to Section 45(j) of Republic Act No. 8189. There is no doubt
that they applied for registration as new voters of Burauen, Leyte consciously, freely and
voluntarily.56

We take occasion to reiterate that the Constitution grants to the COMELEC the power to prosecute
cases or violations of election laws. Article IX (C), Section 2 (6) of the 1987 Constitution, provides:

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or
exclusion of voters; investigate and where appropriate, prosecute cases or violations of
election laws, including acts or omissions constituting election frauds, offenses, and
malpractices.
This power to prosecute necessarily involves the power to determine who shall be prosecuted, and
the corollary right to decide whom not to prosecute.57 Evidently, must this power to prosecute also
include the right to determine under which laws prosecution will be pursued. The courts cannot
dictate the prosecution nor usurp its discretionary powers. As a rule, courts cannot interfere with the
prosecutors discretion and control of the criminal prosecution.58Its rationale cannot be doubted. For
the business of a court of justice is to be an impartial tribunal, and not to get involved with the
success or failure of the prosecution to prosecute.59 Every now and then, the prosecution may err in
the selection of its strategies, but such errors are not for neutral courts to rectify, any more than
courts should correct the blunders of the defense.60

Fourth. In People v. Delgado,61 this Court said that when the COMELEC, through its duly authorized
law officer, conducts the preliminary investigation of an election offense and upon a prima
facie finding of a probable cause, files the Information in the proper court, said court thereby
acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must
be subject to the approval of the court. The records show that Informations charging petitioners with
violation of Section 10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189 had been filed
with the RTC. The case must, thus, be allowed to take its due course.

It may be recalled that petitioners prayed for the issuance of a Temporary Restraining Order or Writ
of Preliminary Injunction before this Court to restrain the COMELEC from executing its Resolutions
of 11 June 2004 and 27 January 2005. In a Resolution dated 20 June 2006, this Court En
Banc denied for lack of merit petitioners Motion Reiterating Prayer for Issuance of Writ of
Preliminary Injunction and to Cite for Indirect Contempt. Logically, the normal course of trial is
expected to have continued in the proceedings a quo.

WHEREFORE, the Petition is DENIED. The assailed Resolutions, dated 11 June 2004 and 27
January 2005 of the COMELEC En Banc are AFFIRMED. Costs against petitioners.

SO ORDERED.