Republic of the Philippines

SUPREME COURT
Manila

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30,
1992.

The first regular elections for the President and Vice-President under this Constitution shall be held
on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare
and answer the question of the construction and definiteness as to who, among the present
incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President
Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said
Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986
Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the incumbent President of
the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents
are immune from suit or from being brought to court during the period of their incumbency and
tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness
of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common
public knowledge that the Constitutional Commission refers therein to incumbent President Corazon
C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence,
the second paragraph of the cited section provides for the holding on the second Monday of May,
1992 of the first regular elections for the President and Vice-President under said 1986 Constitution.
In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise
sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:
Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy
of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the judgment; they have
accepted the government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de facto government but in fact and law a de jure government.
Moreover, the community of nations has recognized the legitimacy of tlie present government. All the
eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers
League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972
[People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No.
73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador
H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the
Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

MELENCIO-HERRERA, J., concurring:

GUTIERREZ, Jr., J., concurring:

FELICIANO, JJ., concurring.

The petitioner asks the Court to declare who are "the incumbent President and Vice President
elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft
Constitution adopted by the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over
petitions for declaratory relief.

As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to this
Court but to other departments of government constitutionally burdened with the task of making that
declaration.

The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly
provide 'that boards of canvassers in each province and city shall certified who were elected
President and Vice President in their respective areas. The certified returns are transmitted to the
legislature which proclaims, through the designated Presiding Head, who were duty elected.

Copies of the certified returns from the provincial and city boards of canvassers have not been
furnished this Court nor is there any need to do so. In the absence of a legislature, we cannot
assume the function of stating, and neither do we have any factual or legal capacity to officially
declare, who were elected President and Vice President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution,
we agree that there is no doubt the 1986 Constitutional Commission referred to President Corazon
C. Aquino and Vice President Salvador H. Laurel.

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J., concurring:

 Republic of the Philippines
SUPREME COURT
Manila

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30,
1992.

The first regular elections for the President and Vice-President under this Constitution shall be held
on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare
and answer the question of the construction and definiteness as to who, among the present
incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President
Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said
Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986
Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the incumbent President of
the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents
are immune from suit or from being brought to court during the period of their incumbency and
tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness
of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common
public knowledge that the Constitutional Commission refers therein to incumbent President Corazon
C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence,
the second paragraph of the cited section provides for the holding on the second Monday of May,
1992 of the first regular elections for the President and Vice-President under said 1986 Constitution.
In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise
sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:
Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy
of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the judgment; they have
accepted the government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de facto government but in fact and law a de jure government.
Moreover, the community of nations has recognized the legitimacy of tlie present government. All the
eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers
League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972
[People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No.
73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador
H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the
Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

MELENCIO-HERRERA, J., concurring:

GUTIERREZ, Jr., J., concurring:

FELICIANO, JJ., concurring.

The petitioner asks the Court to declare who are "the incumbent President and Vice President
elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft
Constitution adopted by the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over
petitions for declaratory relief.

As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to this
Court but to other departments of government constitutionally burdened with the task of making that
declaration.

The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly
provide 'that boards of canvassers in each province and city shall certified who were elected
President and Vice President in their respective areas. The certified returns are transmitted to the
legislature which proclaims, through the designated Presiding Head, who were duty elected.

Copies of the certified returns from the provincial and city boards of canvassers have not been
furnished this Court nor is there any need to do so. In the absence of a legislature, we cannot
assume the function of stating, and neither do we have any factual or legal capacity to officially
declare, who were elected President and Vice President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution,
we agree that there is no doubt the 1986 Constitutional Commission referred to President Corazon
C. Aquino and Vice President Salvador H. Laurel.

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J., concurring:

 [A.M. No. 90-11-2697-CA. June 29, 1992.]

LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court of Appeals dated 14 November
1990.

RESOLUTION

PADILLA, J.:

Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals, wrote a letter dated 14
November 1990 addressed to this Court, seeking the correction of his seniority ranking in the Court of
Appeals.

It appears from the records that petitioner was first appointed Associate Justice of the Court of Appeals on
20 June 1980 but took his oath of office for said position only on 29 November 1982, after serving as
Assistant Solicitor General in the Office of the Solicitor General since 1974. 1

On 17 January 1983, the Court of Appeals was reorganized and became the Intermediate Appellate Court
pursuant to Batas Pambansa Blg. 129 entitled "An Act Reorganizing the Judiciary. Appropriating Funds
Therefor and For Other Purposes." 2 Petitioner was appointed Appellate Justice in the First Special Cases
Division of the Intermediate Appellate Court. On 7 November 1984, petitioner accepted an appointment to
be ceased to be a member of the Judiciary. 3

The aftermath of the EDSA Revolution in February 1986 brought about a reorganization of the entire
government, including the Judiciary. To effect the reorganization of the Intermediate Appellate Court and
other lower courts, a Screening Committee was created, with the then Minister of Justice, now Senator
Neptali Gonzales as Chairman and then Solicitor General, now Philippine Ambassador to the United Nations
Sedfrey Ordoñez as Vice Chairman. President Corazon C. Aquino, exercising legislative powers by virtue of
the revolution, issued Executive Order No. 33 to govern the aforementioned reorganization of the Judiciary.
4

The Screening Committee recommended the return of petitioner as Associate Justice of the new Court of
Appeals and assigned him the rank of number eleven (11) in the roster of appellate court justices. When the
appointments were signed by President Aquino on 28 July 1986, petitioner’s seniority ranking changed,
however, from number eleven (11) to number twenty six (26). 5

Petitioner now alleges that the change in his seniority ranking could only be attributed to inadvertence for,
otherwise, it would run counter to the provisions of Section 2 of Executive Order No. 33, which reads: chanro bles vi rtua l lawlib ra ry

"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is hereby amended to read as follows: jgc:chan roble s.com.p h

"SEC. 2. Organization. — There is hereby created a Court of Appeals which shall consist of a Presiding
Justice and fifty Associate Justices who shall be appointed by the President of the Philippines. The Presiding
Justice shall be so designated in his appointment and the Associate Justice shall have precedence according
to the dates of their respective appointments, or when the appointments of two or more shall bear the same
date, according to the order in which their appointments were issued by the President. Any Member who is
reappointed to the Court after rendering service in any other position in the government shall retain the
precedence to which he was entitled under his original appointment, and his service in the Court shall, for all
intents and purpose be considered as continuous and uninterrupted." 6

Petitioner elaborates that President Aquino is presumed to have intended to comply with her own Executive
Order No. 33 so much so that the correction of the inadvertent error would only implement the intent of the
President as well as the spirit of Executive Order No. 33 and will not provoke any kind of constitutional
confrontation (between the President and the Supreme Court). 7

Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of the Court of Appeals
who, according to petitioner, was transferred from his position as Justice of the Court of Appeals to the
Ministry of Justice as Commissioner of Land Registration and in 1986 was reappointed to the Court of
Appeals. Petitioner states that his (Victoriano’s) stint in the Commission of Land Registration did not
adversely affect his seniority ranking in the Court of Appeals, for, in his case, Executive Order No. 33 was
correctly applied. 8

In a resolution of the Court en banc dated 29 November 1990, the Court granted Justice Puno’s request. 9 It
will be noted that before the issuance of said resolution, there was no written opposition to, or comment on
petitioner’s aforesaid request. The dispositive portion of the resolution reads:
jgc:c hanro bles. com.ph

"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for correction of his seniority ranking
in the Court of Appeals is granted. The presiding Justice of the Court of Appeals, the Honorable Rodolfo A.
Nocon, is hereby directed to correct the seniority rank of Justice Puno from number twelve (12) to number
five (5). Let copies of this Resolution be furnished the Court Administrator and the Judicial and Bar Council
for their guidance and information." 10

A motion for reconsideration of the resolution of the Court en banc dated 29 November 1990 was later filed
by Associate Justices Jose C. Campos, Jr. and Luis A. Javellana, two (2) of the Associate Justices affected by
the ordered correction. They contend that the present Court of Appeals is a new Court with fifty one (51)
members and that petitioner could not claim a reappointment to a prior court; neither can he claim that he
was returning to his former court, for the courts where he had previously been appointed ceased to exist at
the date of his last appointment. 11

The Court en banc in a resolution dated 17 January 1992 required the petitioner to file his comment on the
motion for reconsideration of the resolution dated 29 November 1990.

In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in relation to B.P. Blg. 129,
his seniority ranking in the Court of Appeals is now number five (5) for, though President Aquino rose to
power by virtue of a revolution, she had pledged at the issuance of Proclamation No. 3 (otherwise known as
the Freedom Constitution) that "no right provided under the unratified 1973 Constitution (shall) be absent in
the Freedom Constitution." 12

Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually re-enacted the last
sentence of Sec. 3, Chapter 1 of B.P. Blg. 129, statutory construction rules on simultaneous repeal and re-
enactment mandate, according to petitioner, the preservation and enforcement of all rights and liabilities
which had accrued under the original statute. 13 Furthermore, petitioner avers that, although the power of
appointment is executive in character and cannot be usurped by any other branch of the Government, such
power can still be regulated by the Constitution and by the appropriate law, in this case, by the limits set by
Executive Order NO. 33 14 for the power of appointment cannot be wielded in violation of law. 15

Justices Javellana and Campos were required by the Court to file their reply to Justice Puno’s comment on
their motion for reconsideration of the resolution of the Court en banc dated 24 January 1991. chanroble s.com:c ralaw:red

In their Reply and Supplemental Reply, Associate Justices Javellana and Campos submit that the appeal or
request for correction filed by the petitioner was addressed to the wrong party. They aver that as petitioner
himself had alleged the mistake to be an "inadvertent error" of the Office of the President, ergo, he should
have filed his request for correction also with said Office of the President and not directly with the Supreme
Court. 16 Furthermore, they point out that petitioner had indeed filed with the Office of the President a
request or petition for correction of his ranking, (seniority) but the same was not approved such that his
recourse should have been an appropriate action before the proper court and impleading all parties
concerned. The aforesaid non-approval by the Office of the President they argue, should be respected by the
Supreme Court "not only on the basis of the doctrine of separation of powers but also their presumed
knowledge ability and even expertise in the laws they are entrusted to enforce" 17 for it (the non-approval)
is a confirmation that petitioner’s seniority ranking at the time of his appointment by President Aquino was,
in fact, deliberate and not an "inadvertent error" as petitioner would have the Court believe. 18

The resolution of this controversy is not a pleasant task for the Court since it involves not only members of
the next highest court of the land but persons who are close to members of this Court. But the controversy
has to be resolved. The core issue in this case is whether the present Court of Appeals is a new court such
that it would negate any claim to precedence or seniority admittedly enjoyed by petitioner in the Court of
Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 or whether the present
Court of Appeals is merely a continuation of the Court of Appeals and Intermediate Appellate Court existing
prior to said Executive Order No. 33.
It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from
the Court of Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33, for it was
created in the wake of the massive reorganization launched by the revolutionary government of Corazon C.
Aquino in the aftermath of the people power (EDSA) revolution in 1986.

A resolution has been defined as "the complete overthrow of the established government in any country or
state by those who were previously subject to it" 19 or as "a sudden, radical and fundamental change in the
government or political system, usually effected with violence or at least some acts of violence." 20 In
Kelsen’s book, General Theory of Law and State, it is defined as that which "occurs whenever the legal order
of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself."
21

It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the
"people power revolution" that the Filipino people tore themselves away from an existing regime. This
revolution also saw the unprecedented rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as "an inherent right of a people
to cast out their rulers, change their policy or effect radical reforms in their system of government or
institutions by force or a general uprising when the legal and constitutional methods of making such change
have proved inadequate or are so obstructed as to be unavailable." 22 It has been said that "the locus of
positive law-making power lies with the people of the state" and from there is derived "the right of the
people to abolish, to reform and to alter any existing form of government without regard to the existing
constitution." 23

The three (3) clauses that precede the text of the Provisional (Freedom) Constitution, 24 read: jgc:chanro bles. com.ph

"WHEREAS, the new government under President Corazon C. Aquino was installed through a direct exercise
of the power of the Filipino people assisted by units of the New Armed Forces of the Philippines;

"WHEREAS, the heroic action of the people was done in defiance of the provisions of the 1973 Constitution,
as amended;

"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by virtue of the powers vested in me by
the sovereign mandate of the people, do hereby promulgate the following Provisional Constitution."25 cralaw:red

These summarize the Aquino government’s position that its mandate is taken from "a direct exercise of the
power of the Filipino people." 26

Discussions and opinions of legal experts also proclaim that the Aquino government was "revolutionary in
the sense that it came into existence in defiance of the existing legal processes" 27 and that it was a
revolutionary government "instituted by the direct action of the people and in opposition to the authoritarian
values and practices of the overthrown government." 28

A question which naturally comes to mind is whether the then existing legal order was overthrown by the
Aquino government. "A legal order is the authoritative code of a polity. Such code consists of all the rules
found in the enactments of the organs of the polity. Where the state operates under a written constitution,
its organs may be readily determined from a reading of its provisions. Once such organs are ascertained, it
becomes an easy matter to locate their enactments. The rules in such enactments, along with those in the
constitution, comprise the legal order of that constitutional state." 29 It is assumed that the legal order
remains as a "culture system" of the polity as long as the latter endures 30 and that a point may be
reached, however, where the legal system ceases to be operative as a whole for it is no longer obeyed by
the population nor enforced by the officials. 31

It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional processes; in fact,
it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution
had earlier declared Mr. Marcos at the winner in the 1986 presidential election. 32 Thus it can be said that
the organization of Mrs. Aquino’s Government which was met by little resistance and her control of the state
evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of
the Marcos Cabinet officials, revampt of the Judiciary and the Military signalled the point where the legal
system then in effect, had ceased to be obeyed by the Filipino.

The Court holds that the Court of Appeals and Intermediate Appellate Court existing prior to Executive Order
No. 33 phased out as part of the legal system abolished by the revolution and that the Court of Appeals
established under Executive Order No. 33 was an entirely new court with appointments thereto having no
relation to earlier appointments to the abolished courts, and that the reference to precedence in rank
contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended by Executive Order No. 33 refers to
prospective situations as distinguished from retroactive ones.

But even assuming, arguendo, that Executive Order No. 33 did not abolish the precedence or seniority
ranking resulting from previous appointment to the Court of Appeals or Intermediate Appellate Court
existing prior to the 1986 revolution, it is believed that President Aquino as head of then revolutionary
government, could disregard or set aside such precedence or seniority in ranking when she made her
appointments to the reorganized Court of Appeals in 1986.

It is to be noted that, at the time of the issuance of Executive Order No. 33, President Aquino was still
exercising the powers of a revolutionary government, encompassing both executive and legislative powers,
such that she could, if she so desired, amend, modify or repeal any part of B.P. Blg. 129 or her own
Executive Order No. 33. It should also be remembered that the same situation was still in force when she
issued the 1986 appointments to the Court of Appeals. In other words, President Aquino, at the time of the
issuance of the 1986 appointments, modified or disregarded the rule embodied in B.P. Blg. 129 as amended
by Executive Order No. 33, on precedence or seniority in the case of the petitioner, for reasons known only
to her. Since the appointment extended by the President to the petitioner in 1986 for membership in the
new Court of Appeals with its implicit ranking in the roster of justices, was a valid appointment anchored on
the President’s exercise of her then revolutionary powers, it is not for the Court at this time to question or
correct that exercise.

ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority rankings of members of
the Court of Appeals, including that of the petitioner, at the time the appointments were made by the
President in 1986, are recognized and upheld.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person

unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
 We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those
cases where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
 President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available.
But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever
been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice
Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal]
regulations and make the said penalties binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials considering the manifestation in their comment
that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the
same shall have been published in the Official Gazette or in some other publication, even though some
criminal laws provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.
 Republic of the Philippines
SUPREME COURT
Manila

G.R. No. L-63915 December 29, 1986

LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.

RESOLUTION

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure of a number of presidential
decrees which they claimed had not been published as required by law. The government argued that
while publication was necessary as a rule, it was not so when it was "otherwise provided," as when
the decrees themselves declared that they were to become effective immediately upon their
approval. In the decision of this case on April 24, 1985, the Court affirmed the necessity for the
publication of some of these decrees, declaring in the dispositive portion as follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.

The petitioners are now before us again, this time to move for reconsideration/clarification of that
decision. 1Specifically, they ask the following questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between laws
of general applicability and those which are not; that publication means complete publication; and
that the publication must be made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request
for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is
otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was not
always imperative; that publication, when necessary, did not have to be made in the Official Gazette; and
that in any case the subject decision was concurred in only by three justices and consequently not
binding. This elicited a Reply 4 refuting these arguments. Came next the February Revolution and the
Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under Rule
3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the
internal administration of a government agency or for particular persons did not have to be 'Published;
that publication when necessary must be in full and in the Official Gazette; and that, however, the
decision under reconsideration was not binding because it was not supported by eight members of this
Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

ART. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year
after such publication.

After a careful study of this provision and of the arguments of the parties, both on the original petition
and on the instant motion, we have come to the conclusion and so hold, that the clause "unless it is
otherwise provided" refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislature may make the
law effective immediately upon approval, or on any other date, without its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present
Chief Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not
become effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided. "

It is not correct to say that under the disputed clause publication may be dispensed with altogether.
The reason. is that such omission would offend due process insofar as it would deny the public
knowledge of the laws that are supposed to govern the legislature could validly provide that a law e
effective immediately upon its approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that persons not aware of it would be
prejudiced as a result and they would be so not because of a failure to comply with but simply
because they did not know of its existence, Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like a law on prescription, which
must also be communicated to the persons they may affect before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law, which of course
presupposes that the law has been published if the presumption is to have any legal justification at
all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the
people to information on matters of public concern," and this certainly applies to, among others, and
indeed especially, the legislative enactments of the government.

The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any
bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an ultra
vires act of the legislature. To be valid, the law must invariably affect the public interest even if it
might be directly applicable only to one individual, or some of the people only, and t to the public as
a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in
the exercise of legislative powers whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. administrative rules and regulations must a also be
published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public, need not be published. Neither is publication required
of the so-called letters of instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their duties.

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a
portion of the national territory and directly affects only the inhabitants of that place. All presidential
decrees must be published, including even, say, those naming a public place after a favored
individual or exempting him from certain prohibitions or requirements. The circulars issued by the
Monetary Board must be published if they are meant not merely to interpret but to "fill in the details"
of the Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare
on the case studies to be made in petitions for adoption or the rules laid down by the head of a
government agency on the assignments or workload of his personnel or the wearing of office
uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local
Government Code.

We agree that publication must be in full or it is no publication at all since its purpose is to inform the
public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the
number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary
Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement. This is not even substantial compliance. This was the manner,
incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably
of general applicability and interest, was "published" by the Marcos administration. 7 The evident
purpose was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication
in the Official Gazette 8 and that six others felt that publication could be made elsewhere as long as the
people were sufficiently informed. 9 One reserved his vote 10 and another merely acknowledged the need
for due publication without indicating where it should be made. 11 It is therefore necessary for the present
membership of this Court to arrive at a clear consensus on this matter and to lay down a binding decision
supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette,
considering its erratic releases and limited readership. Undoubtedly, newspapers of general
circulation could better perform the function of communicating, the laws to the people as such
periodicals are more easily available, have a wider readership, and come out regularly. The trouble,
though, is that this kind of publication is not the one required or authorized by existing law. As far as
we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not
pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet
been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if
we find it impractical. That is not our function. That function belongs to the legislature. Our task is
merely to interpret and apply the law as conceived and approved by the political departments of the
government in accordance with the prescribed procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official
Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from such
publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as possible, to give
effect to the law pursuant to the said Article 2. There is that possibility, of course, although not
suggested by the parties that a law could be rendered unenforceable by a mere refusal of the
executive, for whatever reason, to cause its publication as required. This is a matter, however, that
we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory
opinion is untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open
society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the work of
their delegates and to ratify or reject it according to their lights, through their freedom of expression
and their right of suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with
their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as
binding unless their existence and contents are confirmed by a valid publication intended to make
full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that
cannot feint parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their
approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become
effective only after fifteen days from their publication, or on another date specified by the legislature,
in accordance with Article 2 of the Civil Code.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ.,
concur.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa,
I took a strong stand against the insidious manner by which the previous dispensation had
promulgated and made effective thousands of decrees, executive orders, letters of instructions, etc.
Never has the law-making power which traditionally belongs to the legislature been used and
abused to satisfy the whims and caprices of a one-man legislative mill as it happened in the past
regime. Thus, in those days, it was not surprising to witness the sad spectacle of two presidential
decrees bearing the same number, although covering two different subject matters. In point is the
case of two presidential decrees bearing number 1686 issued on March 19, 1980, one granting
Philippine citizenship to Michael M. Keon the then President's nephew and the other imposing a tax
on every motor vehicle equipped with airconditioner. This was further exacerbated by the issuance
of PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players
Jeffrey Moore and Dennis George Still

The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At
the same time, I wish to add a few statements to reflect my understanding of what the Court is
saying.

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need
of publication. For so to interpret such statute would be to collide with the constitutional obstacle
posed by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section
35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed
medium of publication may therefore be changed. Article 2 of the Civil Code could, without creating a
constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an
amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A.
Cruz, I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa,
I took a strong stand against the insidious manner by which the previous dispensation had
promulgated and made effective thousands of decrees, executive orders, letters of instructions, etc.
Never has the law-making power which traditionally belongs to the legislature been used and
abused to satisfy the whims and caprices of a one-man legislative mill as it happened in the past
regime. Thus, in those days, it was not surprising to witness the sad spectacle of two presidential
decrees bearing the same number, although covering two different subject matters. In point is the
case of two presidential decrees bearing number 1686 issued on March 19, 1980, one granting
Philippine citizenship to Michael M. Keon the then President's nephew and the other imposing a tax
on every motor vehicle equipped with airconditioner. This was further exacerbated by the issuance
of PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players
Jeffrey Moore and Dennis George Still

The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the
people their constitutional right to due process and to information on matters of public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At
the same time, I wish to add a few statements to reflect my understanding of what the Court is
saying.

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette
as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as
purporting literally to come into effect immediately upon its approval or enactment and without need
of publication. For so to interpret such statute would be to collide with the constitutional obstacle
posed by the due process clause. The enforcement of prescriptions which are both unknown to and
unknowable by those subjected to the statute, has been throughout history a common tool of
tyrannical governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the
Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section
35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed
medium of publication may therefore be changed. Article 2 of the Civil Code could, without creating a
constitutional problem, be amended by a subsequent statute providing, for instance, for publication
either in the Official Gazette or in a newspaper of general circulation in the country. Until such an
amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication
effected in the Official Gazette and not in any other medium.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,

ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal,
HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal,
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V.
MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from
replacing them from their respective positions as Barangay Captain and Barangay Councilmen of
Barangay Dolores, Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their
Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected
Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino,
Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores,
Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of
1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December

1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987
designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay,
Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local
Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December
1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina,
Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same
Barangay and Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor,
the pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March 20,
1986;
 That as being OIC Governor of the Province of Rizal and in the performance of my
duties thereof, I among others, have signed as I did sign the unnumbered
memorandum ordering the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by me
personally on February 8,1987;

That said memorandum was further deciminated (sic) to all concerned the following
day, February 9. 1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null
and void and that respondents be prohibited from taking over their positions of Barangay Captain
and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the
Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall
commence on June 7, 1982 and shall continue until their successors shall have elected and shall
have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987
Constitution, respondent OIC Governor no longer has the authority to replace them and to designate
their successors.

On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution,
promulgated on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and
appointive officials were abolished and that petitioners continued in office by virtue of the
aforequoted provision and not because their term of six years had not yet expired; and that the
provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years
must be deemed to have been repealed for being inconsistent with the aforequoted provision of the
Provisional Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials under
the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence
of any of the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive
order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or
not the designation of respondents to replace petitioners was validly made during the one-year
period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should
be considered as the effective date of replacement and not December 1,1986 to which it was ante
dated, in keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision
in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII
of the 1987 Constitution reading.

SECTION 27. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the
Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the
autonomy of the barangays to ensure their fullest development as self-reliant
communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of
political subdivisions of which the barangays form a part, 3 and limits the President's power to "general
supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution
further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office
of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years
for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be
considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of

instructions, and other executive issuances not inconsistent, with this Constitution
shall remain operative until amended, repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987
designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of
Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the
Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the
ouster/take-over of petitioners' positions subject of this Petition. Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ.,
concur.
Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect
on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the
provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that
same date.

The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
ratification shall have been ascertained and not at the time the people cast their votes to approve or
reject it." This view was actually proposed at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will
be effective on the very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the
Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional
Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during
the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution
when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original
formulation of the committee as indicated in Section 12, unless there are other
commissioners who would like to present amendments.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. May I propose the following amendments.

On line 2, delete the words "its ratification" and in lieu thereof insert the following-.
"THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And
on the last line, after "constitutions," add the following: "AND THEIR
AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is
going to propose an additional sentence, the committee would suggest that we take
up first his amendment to the first sentence as originally formulated. We are now
ready to comment on that proposed amendment.

The proposed amendment would be to delete the words "its ratification and in lieu
thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And the second amendment would be: After the word
"constitutions," add the words" AND THEIR AMENDMENTS,"

The committee accepts the first proposed amendment. However, we regret that we
cannot accept the second proposed amendment after the word "constitutions"
because the committee feels that when we talk of all previous Constitutions,
necessarily it includes "AND THEIR AMENDMENTS."

MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam
President, may I request that I be allowed to read the second amendment so the
Commission would be able to appreciate the change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE
MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS
BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE."

MR. MAAMBONG. Madam President, after conferring with our chairman, the
committee feels that the second proposed amendment in the form of a new sentence
would not be exactly necessary and the committee feels that it would be too much for
us to impose a time frame on the President to make the proclamation. As we would
recall, Madam President, in the approved Article on the Executive, there is a
provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be
a proclamation by the President that the Constitution has been ratified, the President
will naturally comply with the law in accordance with the provisions in the Article on
the Executive which we have cited. It would be too much to impose on the President
a time frame within which she will make that declaration. It would be assumed that
the President would immediately do that after the results shall have been canvassed
by the COMELEC.

Therefore, the committee regrets that it cannot accept the second sentence which
the Gentleman is proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will
be an immediate proclamation of the results by the President.

MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the
amendment which makes the effectivity of the new Constitution dependent upon the
proclamation of the President. The effectivity of the Constitution should commence
on the date of the ratification, not on the date of the proclamation of the President.
What is confusing, I think, is what happened in 1976 when the amendments of 1976
were ratified. In that particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation made by the
President. I have a suspicion that was put in there precisely to give the President
some kind of leeway on whether to announce the ratification or not. Therefore, we
should not make this dependent on the action of the President since this will be a
manifestation of the act of the people to be done under the supervision of the
COMELEC and it should be the COMELEC who should make the announcement
that, in fact, the votes show that the Constitution was ratified and there should be no
need to wait for any proclamation on the part of the President.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?

FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly
when the Constitution is supposed to be ratified.

FR. BERNAS. I would say that the ratification of the Constitution is on the date the
votes were supposed to have been cast.

MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President.
We present the Constitution to a plebiscite, the people exercise their right to vote,
then the votes are canvassed by the Commission on Elections. If we delete the
suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT
THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the case may be?

FR. BERNAS. The date would be the casting of the ballots. if the President were to
say that the plebiscite would be held, for instance, on January 19, 1987, then the
date for the effectivity of the new Constitution would be January 19, 1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the
results by the Commission on Elections which will be doing the canvass? That is
immaterial Madam President

FR. BERNAS. It would not, Madam President, because "ratification" is the act of
saying "yes" is done when one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to
know from the proponent, Commissioner Davide, if he is insisting on his amendment.

MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot

subscribe to the view of Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That cannot be the date of
reckoning because it is a plebiscite all over the country. We do not split the moment
of casting by each of the voters. Actually and technically speaking, it would be all
right if it would be upon the announcement of the results of the canvass conducted
by the COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement of the
results of the plebiscite. So it is either the President or the COMELEC itself upon the
completion of the canvass of the results of the plebiscite, and I opted for the
President.

xxx xxx xxx

MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner
Davide. I support the stand of Commissioner Bernas because it is really the date of
the casting of the "yes" votes that is the date of the ratification of the Constitution The
announcement merely confirms the ratification even if the results are released two or
three days after. I think it is a fundamental principle in political law, even in civil law,
because an announcement is a mere confirmation The act of ratification is the act of
voting by the people. So that is the date of the ratification. If there should be any
need for presidential proclamation, that proclamation will merely confirm the act of
ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support
for Commissioner Bernas, because the canvass thereafter is merely
the mathematical confirmation of what was done during the date of the plebiscite and
the proclamation of the President is merely the official confirmatory declaration of an
act which was actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.

MR. LERUM. Madam President, may I be recognized.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date
for the effectivity of the Constitution. Suppose the announcement is delayed by, say,
10 days or a month, what happens to the obligations and rights that accrue upon the
approval of the Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.
MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized.

MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity
for the Commission on Elections to declare the results of the canvass?

FR. BERNAS. There would be because it is the Commission on Elections which

makes the official announcement of the results.

MR. MAAMBONG. My next question which is the final one is: After the Commision
on Elections has declared the results of the canvass, will there be a necessity for the
President to make a proclamation of the results of the canvass as submitted by the
Commission on Elections?

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the
proclamation whether the Constitution has been ratified or not.

FR. BERNAS. I would say that the proclamation made by the President would be
immaterial because under the law, the administration of all election laws is under an
independent Commission on Elections. It is the Commission on Elections which
announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the
Commission on Elections says, it would have no effect. I would only add that when
we say that the date of effectivity is on the day of the casting of the votes, what we
mean is that the Constitution takes effect on every single minute and every single
second of that day, because the Civil Code says a day has 24 hours.So that even if
the votes are cast in the morning, the Constitution is really effective from the previous
midnight.

So that when we adopted the new rule on citizenship, the children of Filipino mothers
or anybody born on the date of effectivity of the 1973 Constitution, which is January
17, 1973, are natural-born citizens, no matter what time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to the date of
the plebiscite?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I
think it is precisely the proposal of Commissioner Bernas which speaks of the date
(of ratification that would have a definite date, because there would be no definite
date if we depend upon the canvassing by the COMELEC.

Thank you,

THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it the

COMELEC or the President, would announce that a majority of the votes cast on a
given date was in favor of the Constitution. And that is the date when the Constitution
takes effect, apart from the fact that the provision on the drafting or amendment of
the Constitution provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very beginning of the
date of election because as of that time it is impossible to determine whether there is
a majority. At the end of the day of election or plebiscite, the determination is made
as of that time-the majority of the votes cast in a plebiscite held on such and such a
date. So that is the time when the new Constitution will be considered ratified and,
therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.

MR. PADILLA. Madam President, I am against the proposed amendment of

Commissioner Davide and I support the view of Commissioner Bernas and the
others because the ratification of the Constitution is on the date the people, by a
majority vote, have cast their votes in favor of the Constitution. Even in civil law, if
there is a contract, say, between an agent and a third person and that contract is
confirmed or ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the
people have cast their affirmative votes in favor of the Constitution.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is

insisting on his amendment

MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion
that it will be effective on the very day of the plebiscite, I am withdrawing my
amendment on the assumption that any of the following bodies the Office of the
President or the COMELEC will make the formal announcement of the results.

MR. RAMA. Madam President, we are now ready to vote on the original provision as
stated by the committee.
 MR. MAAMBONG. The committee will read again the formulation indicated in the
original committee report as Section 12.

This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and shall supersede all previous
Constitutions.

We ask for a vote, Madam President.

VOTING

THE PRESIDENT. As many as are in favor, please raise their hand. (Several
Members raised their hands.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 35 votes in favor and none against; Section 12 is approved. 2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on
the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional
Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987
Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987,
absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC
Governor could no longer exercise the power to replace petitioners in their positions as Barangay
Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no longer produce any legal
force and effect. While the Provisional Constitution provided for a one-year period expiring on March
25, 1987 within which the power of replacement could be exercised, this period was shortened by
the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the
framers of the Constitution been otherwise, they would have so provided for in the Transitory Article,
as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June
30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers
by the incumbent President until the convening of the first Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the
President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the
Judicial and Bar Council created under the Constitution. It should be stated for the record that the
reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on
February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records
of the Department of Justice likewise show that the appointment papers of the last batch of provincial and
city fiscals signed by the President in completion of the reorganization of the prosecution service were
made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of
record that since February 2, 1987, no appointments to the Judiciary have been extended by the
President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared
by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect
than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur.
I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases,
where I submitted that the local OICs may no longer be summarily replaced, having acquired
security of tenure under the new Constitution. Our difference is that whereas I would make that right
commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice
Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better
view and agree with her ponencia completely.

SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional
Constitution with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25, 1986.

was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not
that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new
Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not
February 2, 1987, plebiscite day.

I rely, first and foremost, on the language of the 1987 Charter itself, thus:

Sec. 27. This Constitution shag take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall
have been ascertained, and not at the time the people cast their votes to approve or reject it. For it
cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the
people as of that time, had not, and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.

I have no doubt that between February 2, and February 11, 1987 the government performed acts
that would have been valid under the Provisional Constitution but would otherwise have been void
under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2,
1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx

Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary
 of Justice, and a representative of the Congress as ex oficio Members, a
representative of the Integrated Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private sector.

xxx xxx xxx

Sec. 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.

xxx xxx xxx

such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the
amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17,
1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the
Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now
Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article
XVII, of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all
amendments thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the
ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.

By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this
certificate as duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976
and are therefore effective and in full force and effect as of this date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by a majority of the votes cast in the
referendum-plebiscite.

On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast
in the plebiscite held, together with the election for local officials, on January 30,
1980, and that said amendment is hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment
shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of
April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and
Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the
said amendments duly approved, further declared them "[e]ffective and in full force and in effect as
of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I
and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which
parented these amendments, the same:

. . .shall become valid as part of the Constitution when approved by a majority of the
votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the
Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two,
and One, and to Appropriate Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim
the result of the plebiscite using the certificates submitted to it, duly authenticated
and certified by the Board of Canvassers of each province or city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January
27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions
Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:

....are therefore effective and in full force and effect as of the date of this
Proclamation.

It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9,
Batas Blg. 643), which states, that:

The proposed amendments shall take effect on the date the President of the
Philippines shall proclaim that they have been ratified by a majority of the votes cast
in the plebiscite held for the purpose, but not later than three months from the
approval of the amendments.

albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a

majority of the votes cast in an election/plebiscite at which it is submitted to the
people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as
amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not
at the time of the plebiscite is a view that is not peculiar to the Marcos era.

The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on
September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention
of a retroactive application.

Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11,
1987, at Malacanang Palace:

... that the Constitution of the Republic of the Philippines adopted by the
Constitutional Commission of 1986, including the Ordinance appended thereto, has
been duly ratified by the Filipino people and is therefore effective and in full force and
effect. 4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other
time.

I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter
was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was
said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution
came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged
dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in
force.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took effect
on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the
provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that
same date.

The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
ratification shall have been ascertained and not at the time the people cast their votes to approve or
reject it." This view was actually proposed at the Constitutional Commission deliberations, but was
withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will
be effective on the very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the
Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional
Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during
the date of the plebiscite and the proclamation of the President is merely the official confirmatory
declaration of an act which was actually done by the Filipino people in adopting the Constitution
when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original
formulation of the committee as indicated in Section 12, unless there are other
commissioners who would like to present amendments.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. May I propose the following amendments.

On line 2, delete the words "its ratification" and in lieu thereof insert the following-.
"THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And
on the last line, after "constitutions," add the following: "AND THEIR
AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is

going to propose an additional sentence, the committee would suggest that we take
up first his amendment to the first sentence as originally formulated. We are now
ready to comment on that proposed amendment.

The proposed amendment would be to delete the words "its ratification and in lieu
thereof insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And the second amendment would be: After the word
"constitutions," add the words" AND THEIR AMENDMENTS,"

The committee accepts the first proposed amendment. However, we regret that we
cannot accept the second proposed amendment after the word "constitutions"
because the committee feels that when we talk of all previous Constitutions,
necessarily it includes "AND THEIR AMENDMENTS."

MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam
President, may I request that I be allowed to read the second amendment so the
Commission would be able to appreciate the change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE
MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS
BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the
committee feels that the second proposed amendment in the form of a new sentence
would not be exactly necessary and the committee feels that it would be too much for
us to impose a time frame on the President to make the proclamation. As we would
recall, Madam President, in the approved Article on the Executive, there is a
provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be
a proclamation by the President that the Constitution has been ratified, the President
will naturally comply with the law in accordance with the provisions in the Article on
the Executive which we have cited. It would be too much to impose on the President
a time frame within which she will make that declaration. It would be assumed that
the President would immediately do that after the results shall have been canvassed
by the COMELEC.

Therefore, the committee regrets that it cannot accept the second sentence which
the Gentleman is proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will
be an immediate proclamation of the results by the President.

MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the
amendment which makes the effectivity of the new Constitution dependent upon the
proclamation of the President. The effectivity of the Constitution should commence
on the date of the ratification, not on the date of the proclamation of the President.
What is confusing, I think, is what happened in 1976 when the amendments of 1976
were ratified. In that particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that the draft presented to the
people said that the amendment will be effective upon the proclamation made by the
President. I have a suspicion that was put in there precisely to give the President
some kind of leeway on whether to announce the ratification or not. Therefore, we
should not make this dependent on the action of the President since this will be a
manifestation of the act of the people to be done under the supervision of the
COMELEC and it should be the COMELEC who should make the announcement
that, in fact, the votes show that the Constitution was ratified and there should be no
need to wait for any proclamation on the part of the President.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?

FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly
when the Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the
votes were supposed to have been cast.

MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President.
We present the Constitution to a plebiscite, the people exercise their right to vote,
then the votes are canvassed by the Commission on Elections. If we delete the
suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT
THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the
Constitution is supposed to be ratified or not ratified, as the case may be?

FR. BERNAS. The date would be the casting of the ballots. if the President were to
say that the plebiscite would be held, for instance, on January 19, 1987, then the
date for the effectivity of the new Constitution would be January 19, 1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the
results by the Commission on Elections which will be doing the canvass? That is
immaterial Madam President

FR. BERNAS. It would not, Madam President, because "ratification" is the act of
saying "yes" is done when one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to

know from the proponent, Commissioner Davide, if he is insisting on his amendment.

MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot

subscribe to the view of Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That cannot be the date of
reckoning because it is a plebiscite all over the country. We do not split the moment
of casting by each of the voters. Actually and technically speaking, it would be all
right if it would be upon the announcement of the results of the canvass conducted
by the COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement of the
results of the plebiscite. So it is either the President or the COMELEC itself upon the
completion of the canvass of the results of the plebiscite, and I opted for the
President.

xxx xxx xxx

MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner
Davide. I support the stand of Commissioner Bernas because it is really the date of
the casting of the "yes" votes that is the date of the ratification of the Constitution The
announcement merely confirms the ratification even if the results are released two or
three days after. I think it is a fundamental principle in political law, even in civil law,
because an announcement is a mere confirmation The act of ratification is the act of
voting by the people. So that is the date of the ratification. If there should be any
need for presidential proclamation, that proclamation will merely confirm the act of
ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support
for Commissioner Bernas, because the canvass thereafter is merely
the mathematical confirmation of what was done during the date of the plebiscite and
the proclamation of the President is merely the official confirmatory declaration of an
act which was actually done by the Filipino people in adopting the Constitution when
they cast their votes on the date of the plebiscite.

MR. LERUM. Madam President, may I be recognized.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date
for the effectivity of the Constitution. Suppose the announcement is delayed by, say,
10 days or a month, what happens to the obligations and rights that accrue upon the
approval of the Constitution? So I think we must have a definite date. I am, therefore,
in favor of the Davide amendment.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized.

MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity
for the Commission on Elections to declare the results of the canvass?

FR. BERNAS. There would be because it is the Commission on Elections which

makes the official announcement of the results.

MR. MAAMBONG. My next question which is the final one is: After the Commision
on Elections has declared the results of the canvass, will there be a necessity for the
President to make a proclamation of the results of the canvass as submitted by the
Commission on Elections?

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the
proclamation whether the Constitution has been ratified or not.

FR. BERNAS. I would say that the proclamation made by the President would be
immaterial because under the law, the administration of all election laws is under an
independent Commission on Elections. It is the Commission on Elections which
announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the
Commission on Elections says, it would have no effect. I would only add that when
we say that the date of effectivity is on the day of the casting of the votes, what we
mean is that the Constitution takes effect on every single minute and every single
second of that day, because the Civil Code says a day has 24 hours.

So that even if the votes are cast in the morning, the Constitution is really effective
from the previous midnight. So that when we adopted the new rule on citizenship, the
children of Filipino mothers or anybody born on the date of effectivity of the 1973
Constitution, which is January 17, 1973, are natural-born citizens, no matter what
time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to the date of
the plebiscite?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I
think it is precisely the proposal of Commissioner Bernas which speaks of the date
(of ratification that would have a definite date, because there would be no definite
date if we depend upon the canvassing by the COMELEC.

Thank you,

THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it the

COMELEC or the President, would announce that a majority of the votes cast on a
given date was in favor of the Constitution. And that is the date when the Constitution
takes effect, apart from the fact that the provision on the drafting or amendment of
the Constitution provides that a constitution becomes effective upon ratification by a
majority of the votes cast, although I would not say from the very beginning of the
date of election because as of that time it is impossible to determine whether there is
a majority. At the end of the day of election or plebiscite, the determination is made
as of that time-the majority of the votes cast in a plebiscite held on such and such a
date. So that is the time when the new Constitution will be considered ratified and,
therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.

 MR. PADILLA. Madam President, I am against the proposed amendment of
Commissioner Davide and I support the view of Commissioner Bernas and the
others because the ratification of the Constitution is on the date the people, by a
majority vote, have cast their votes in favor of the Constitution. Even in civil law, if
there is a contract, say, between an agent and a third person and that contract is
confirmed or ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the
people have cast their affirmative votes in favor of the Constitution.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is

insisting on his amendment

MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion
that it will be effective on the very day of the plebiscite, I am withdrawing my
amendment on the assumption that any of the following bodies the Office of the
President or the COMELEC will make the formal announcement of the results.

MR. RAMA. Madam President, we are now ready to vote on the original provision as
stated by the committee.

MR. MAAMBONG. The committee will read again the formulation indicated in the
original committee report as Section 12.

This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and shall supersede all previous
Constitutions.

We ask for a vote, Madam President.

VOTING

THE PRESIDENT. As many as are in favor, please raise their hand. (Several
Members raised their hands.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 35 votes in favor and none against; Section 12 is approved. 2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on
the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional
Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the 1987
Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987,
absent any saying clause to the contrary in the Transitory Article of the Constitution, respondent OIC
Governor could no longer exercise the power to replace petitioners in their positions as Barangay
Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of their successors could no longer produce any legal
force and effect. While the Provisional Constitution provided for a one-year period expiring on March
25, 1987 within which the power of replacement could be exercised, this period was shortened by
the ratification and effectivity on February 2, 1987 of the Constitution. Had the intention of the
framers of the Constitution been otherwise, they would have so provided for in the Transitory Article,
as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the incumbent President and Vice-President to noon of June
30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers
by the incumbent President until the convening of the first Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the
President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the
Judicial and Bar Council created under the Constitution. It should be stated for the record that the
reported date of the appointments, February 2, 1987, is incorrect. The official records of the Court
show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on
February 1, 1987 and they were all appointed on or before January 31, 1987. 3(Similarly, the records
of the Department of Justice likewise show that the appointment papers of the last batch of provincial and
city fiscals signed by the President in completion of the reorganization of the prosecution service were
made on January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of
record that since February 2, 1987, no appointments to the Judiciary have been extended by the
President, pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared
by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect
than the tones of thunder. She has written another persuasive opinion, and I am delighted to concur.
I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases,
where I submitted that the local OICs may no longer be summarily replaced, having acquired
security of tenure under the new Constitution. Our difference is that whereas I would make that right
commence on February 25, 1987, after the deadline set by the Freedom Constitution, Justice
Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better
view and agree with her ponencia completely.

SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional
Constitution with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25, 1986.

was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not
that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new
Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same was
proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not
February 2, 1987, plebiscite day.

I rely, first and foremost, on the language of the 1987 Charter itself, thus:

Sec. 27. This Constitution shag take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall
have been ascertained, and not at the time the people cast their votes to approve or reject it. For it
cannot be logically said that Constitution was ratified during such a plebiscite, when the will of the
people as of that time, had not, and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.

I have no doubt that between February 2, and February 11, 1987 the government performed acts
that would have been valid under the Provisional Constitution but would otherwise have been void
under the 1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2,
1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx

Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary
of Justice, and a representative of the Congress as ex oficio Members, a
representative of the Integrated Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private sector.

xxx xxx xxx

2Sec. 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.

xxx xxx xxx

such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the
amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17,
1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the
Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now
Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, 3 became final. And this was so notwithstanding Section 16, Article
XVII, of the 1973 Constitution, thus:
 SEC. 16. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all
amendments thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the
ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.

By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this
certificate as duly ratified by the Filipino people in the referendum — plebiscite held Oct. 16-17, 1976
and are therefore effective and in full force and effect as of this date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by a majority of the votes cast in the
referendum-plebiscite.

On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast
in the plebiscite held, together with the election for local officials, on January 30,
1980, and that said amendment is hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment
shall take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of
April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and
Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the
said amendments duly approved, further declared them "[e]ffective and in full force and in effect as
of the date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I
and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which
parented these amendments, the same:

... shall become valid as part of the Constitution when approved by a majority of the
votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the
Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two,
and One, and to Appropriate Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim
the result of the plebiscite using the certificates submitted to it, duly authenticated
and certified by the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January
27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions
Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:

....are therefore effective and in full force and effect as of the date of this
Proclamation.

It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9,
Batas Blg. 643), which states, that:

The proposed amendments shall take effect on the date the President of the
Philippines shall proclaim that they have been ratified by a majority of the votes cast
in the plebiscite held for the purpose, but not later than three months from the
approval of the amendments.

albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a majority of the
votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant
to Section 2 of Article XVI of the Constitution, as amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not
at the time of the plebiscite is a view that is not peculiar to the Marcos era.

The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on
September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention
of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino)
proclaimed on February 11, 1987, at Malacanang Palace:

... that the Constitution of the Republic of the Philippines adopted by the
Constitutional Commission of 1986, including the Ordinance appended thereto, has
been duly ratified by the Filipino people and is therefore effective and in full force and
effect. 4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other
time.

I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter
was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was
said in passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution
came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged
dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in
force.

Footnotes
 EN BANC

[G.R. No. 122156. February 3, 1997]

MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE

INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.

DECISION
BELLOSILLO, J.:

The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant
of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos, is invoked by
[1]

petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an implementing legislation
for its enforcement. Corollarily, they ask whether the 51% shares form part of
the national economy and patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service Insurance
System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided to
sell through public bidding 30% to 51% of the issued and outstanding shares of
respondent MHC. The winning bidder, or the eventual strategic partner, is to
provide management expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of
the Manila Hotel. In a close bidding held on 18 September 1995 only two (2)
[2]

bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino

corporation, which offered to buy 51% of the MHC or 15,300,000 shares
at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton
as its hotel operator, which bid for the same number of shares at P44.00 per
share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
-
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -

1. The Highest Bidder must comply with the conditions set forth below by October
23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System Contract or other
type of contract specified by the Highest Bidder in its strategic plan for the Manila
Hotel x x x x

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with
GSIS x x x x

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later than October 23,
1995 (reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/

OGCC (Office of the Government Corporate Counsel) are obtained. [3]

Pending the declaration of Renong Berhard as the winning bidder/strategic

partner and the execution of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995 matched the bid price of P44.00
per share tendered by Renong Berhad. In a subsequent letter dated 10
[4]

October 1995 petitioner sent a managers check issued by Philtrust Bank for
Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of
the Malaysian Group, Messrs. Renong Berhad x x x x which respondent GSIS
[5]

refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the MHC
may be hastened by respondent GSIS and consummated with Renong Berhad,
petitioner came to this Court on prohibition and mandamus. On 18 October
1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
 On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then set for
oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin
G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which reflects
the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the national
patrimony. Petitioner also argues that since 51% of the shares of the MHC
[6]

carries with it the ownership of the business of the hotel which is owned by
respondent GSIS, a government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction involving
51% of the shares of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. [7]

It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the Malaysian
firm. For the bidding rules mandate that if for any reason, the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share. [8]

Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and policy since
it is not a self-executing provision and requires implementing legislation(s) x x
x x Thus, for the said provision to operate, there must be existing laws to lay
down conditions under which business may be done. [9]

Second, granting that this provision is self-executing, Manila Hotel does not
fall under the term national patrimony which only refers to 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 all
marine wealth in its territorial sea, and exclusive marine zone as cited in the
first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel
and the events that have transpired therein which make the hotel historic, these
alone do not make the hotel fall under the patrimony of the nation. What is
more, the mandate of the Constitution is addressed to the State, not to
respondent GSIS which possesses a personality of its own separate and
distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony,
the constitutional provision invoked is still inapplicable since what is being sold
is only 51% of the outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51% of the equity of the
MHC cannot be considered part of the national patrimony. Moreover, if the
disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it had
lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing
to match the highest bid in terms of price per share, is misplaced. Respondents
postulate that the privilege of submitting a matching bid has not yet arisen since
it only takes place if for any reason, the Highest Bidder cannot be awarded the
Block of Shares. Thus the submission by petitioner of a matching bid is
premature since Renong Berhad could still very well be awarded the block of
shares and the condition giving rise to the exercise of the privilege to submit a
matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a capricious,
whimsical manner, and if ever it did abuse its discretion it was not 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. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not
have an imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. It prescribes the
[10]

permanent framework of a system of government, assigns to the different

departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in
other words is that it is a supreme law to which all other laws must conform and
in accordance with which all private rights must be determined and all public
authority administered. Under the doctrine of constitutional supremacy, if a
[11]
law or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry out
the purposes of the framers who merely establish an outline of government
providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. A provision
[12]

which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in
itself and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional
provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action. [13]

As against constitutions of the past, modern constitutions have been

generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a
manner similar to that of statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a legislative body. Hence,
unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental
law. This can be cataclysmic. That is why the prevailing view is, as it has
[14]

always been, that -

x x x x in case of doubt, the Constitution should be considered self-executing rather

than non-self-executing x x x x Unless the contrary is clearly intended, the provisions
of the Constitution should be considered self-executing, as a contrary rule would give
the legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute. [15]
 Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions on the
floor of the 1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of PREFERENCE is given to QUALIFIED
FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the
word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against
whom? As against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
QUALIFIED because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et
cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way
as not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting further laws
to enforce the constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the legislature without
impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice to be
used for its enforcement, provide a convenient remedy for the protection of the
rights secured or the determination thereof, or place reasonable safeguards
around the exercise of the right. The mere fact that legislation may supplement
and add to or prescribe a penalty for the violation of a self-executing
constitutional provision does not render such a provision ineffective in the
absence of such legislation. The omission from a constitution of any express
provision for a remedy for enforcing a right or liability is not necessarily an
indication that it was not intended to be self-executing. The rule is that a self-
executing provision of the constitution does not necessarily exhaust legislative
power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more
available. Subsequent legislation however does not necessarily mean that the
[17]

subject constitutional provision is not, by itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third paragraphs
of the same section which undoubtedly are not self-executing. The argument [18]

is flawed. If the first and third paragraphs are not self-executing because
Congress is still to enact measures to encourage the formation and operation
of enterprises fully owned by Filipinos, as in the first paragraph, and the State
still needs legislation to regulate and exercise authority over foreign
investments within its national jurisdiction, as in the third paragraph, then a
fortiori, by the same logic, the second paragraph can only be self-executing as
it does not by its language require any legislation in order to give preference to
qualified Filipinos in the grant of rights, privileges and concessions covering the
national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another. [19]

Even the cases cited by respondents holding that certain constitutional

provisions are merely statements of principles and policies, which are basically
not self-executing and only placed in the Constitution as moral incentives to
legislation, not as judicially enforceable rights - are simply not in point. Basco v.
Philippine Amusements and Gaming Corporation speaks of constitutional
[20]

provisions on personal dignity, the sanctity of family life, the vital role of the
[21] [22]

youth in nation-building, the promotion of social justice, and the values of

[23] [24]

education. Tolentino v. Secretary of Finance refers to constitutional

[25] [26]

provisions on social justice and human rights and on [27]

education. Lastly, Kilosbayan, Inc. v. Morato cites provisions on the

[28] [29]

promotion of general welfare, the sanctity of family life, the vital role of the
[30] [31]

youth in nation-building and the promotion of total human liberation and

[32]

development. A reading of these provisions indeed clearly shows that they are
[33]

not judicially enforceable constitutional rights but merely guidelines for

legislation. The very terms of the provisions manifest that they are only
principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is
a mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in operation. It
is per se judicially enforceable. When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and
patrimony, the State shall give preference to qualified Filipinos, it means just
that - qualified Filipinos shall be preferred. And when our Constitution declares
that a right exists in certain specified circumstances an action may be
maintained to enforce such right notwithstanding the absence of any legislation
on the subject; consequently, if there is no statute especially enacted to enforce
such constitutional right, such right enforces itself by its own inherent potency
and puissance, and from which all legislations must take their bearings. Where
there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission explains -
[34]

The patrimony of the Nation that should be conserved and developed refers
not only to our rich natural resources but also to the cultural heritage of our
race. It also refers to our intelligence in arts, sciences and letters. Therefore,
we should develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. When the Constitution speaks of national patrimony, it refers not
[35]

only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in
1912, it immediately evolved to be truly Filipino. Formerly a concourse for the
elite, it has since then become the venue of various significant events which
have shaped Philippine history. It was called the Cultural Center of the 1930s. It
was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine
Government it plays host to dignitaries and official visitors who are accorded
the traditional Philippine hospitality. [36]

The history of the hotel has been chronicled in the book The Manila Hotel:
The Heart and Memory of a City. During World War II the hotel was converted
[37]

by the Japanese Military Administration into a military headquarters. When the

American forces returned to recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two (2) places for their final
stand. Thereafter, in the 1950s and 1960s, the hotel became the center of
political activities, playing host to almost every political convention. In 1970 the
hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986
the hotel was the site of a failed coup d etat where an aspirant for vice-president
was proclaimed President of the Philippine Republic.
 For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle
for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or
owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the land
on which the hotel edifice stands. Consequently, we cannot sustain
respondents claim that the Filipino First Policy provision is not applicable since
what is being sold is only 51% of the outstanding shares of the corporation, not
the Hotel building nor the land upon which the building stands. [38]

The argument is pure sophistry. The term qualified Filipinos as used in our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And
the amendment would consist in substituting the words QUALIFIED FILIPINOS with
the following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.

xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have
to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not
give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about
a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference
should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may
refer only to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]

xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
 MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS. And the word Filipinos here, as intended by the proponents, will include
not only individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos.[40]

The phrase preference to qualified Filipinos was explained thus -

MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please
restate his amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a
Filipino enterprise is also qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise,
will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies
the so-called Filipino First policy. That means that Filipinos should be given
preference in the grant of concessions, privileges and rights covering the national
patrimony.[42]

The exchange of views in the sessions of the Constitutional Commission

regarding the subject provision was still further clarified by Commissioner
Nolledo -
[43]

Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic

concerns. It is better known as the FILIPINO FIRST Policy x x x x This provision
was never found in previous Constitutions x x x x

The term qualified Filipinos simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of credible
competence and efficiency. It certainly does NOT mandate the pampering and
preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counterproductive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to
be made between a qualified foreigner and a qualified Filipino, the latter shall be
chosen over the former.

Lastly, the word qualified is also determinable. Petitioner was so considered

by respondent GSIS and selected as one of the qualified bidders. It was pre-
qualified by respondent GSIS in accordance with its own guidelines so that the
sole inference here is that petitioner has been found to be possessed of proven
management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. [44]

The penchant to try to whittle away the mandate of the Constitution by

arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a clear
constitutional provision - by the government itself - is only too distressing. To
adopt such a line of reasoning is to renounce the duty to ensure faithfulness to
the Constitution. For, even some of the provisions of the Constitution which
evidently need implementing legislation have juridical life of their own and can
be the source of a judicial remedy. We cannot simply afford the government a
defense that arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on
constitutional government is apt -

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts - provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress, or
perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates. [45]

Respondents further argue that the constitutional provision is addressed to

the State, not to respondent GSIS which by itself possesses a separate and
distinct personality. This argument again is at best specious. It is undisputed
that the sale of 51% of the MHC could only be carried out with the prior approval
of the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the
assets of respondents GSIS and MHC a state action. In constitutional
jurisprudence, the acts of persons distinct from the government are
considered state action covered by the Constitution (1) when the activity it
engages in is a public function; (2) when the government is so significantly
involved with the private actor as to make the government responsible for his
action; and, (3) when the government has approved or authorized the action. It
is evident that the act of respondent GSIS in selling 51% of its share in
respondent MHC comes under the second and third categories of state
action. Without doubt therefore the transaction, although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to
the constitutional command. [46]

When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all, government is
composed of three (3) divisions of power - legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three (3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed
among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it
is not yet the winning bidder. The bidding rules expressly provide that the
highest bidder shall only be declared the winning bidder after it has negotiated
and executed the necessary contracts, and secured the requisite
approvals. Since the Filipino First Policy provision of the Constitution bestows
preference on qualified Filipinos the mere tending of the highest bid is not an
assurance that the highest bidder will be declared the winning
bidder.Resultantly, respondents are not bound to make the award yet, nor are
they under obligation to enter into one with the highest bidder. For in choosing
the awardee respondents are mandated to abide by the dictates of the 1987
Constitution the provisions of which are presumed to be known to all the bidders
and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding rules
issued by respondent GSIS, lest the bidding rules be nullified for being violative
of the Constitution. It is a basic principle in constitutional law that all laws and
contracts must conform with the fundamental law of the land. Those which
violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share. Certainly, the constitutional mandate itself is reason enough not to
[47]
award the block of shares immediately to the foreign bidder notwithstanding its
submission of a higher, or even the highest, bid. In fact, we cannot conceive of
a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there
is no question that the Filipino will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would
be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the Philippines
are understood to be always open to public scrutiny. These are given factors
which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or
with any of its agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware from
the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or
if the qualified Filipino fails to match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was already preferred at the
inception of the bidding because of the constitutional mandate, petitioner had
not yet matched the bid offered by Renong Berhad. Thus it did not have the
right or personality then to compel respondent GSIS to accept its earlier
bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioners matching bid did the latter have a
cause of action.
Besides, there is no time frame for invoking the constitutional safeguard
unless perhaps the award has been finally made. To insist on selling the Manila
Hotel to foreigners when there is a Filipino group willing to match the bid of the
foreign group is to insist that government be treated as any other ordinary
market player, and bound by its mistakes or gross errors of judgment,
regardless of the consequences to the Filipino people. The miscomprehension
of the Constitution is regrettable. Thus we would rather remedy the indiscretion
while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative
but to award to petitioner the block of shares of MHC and to execute the
necessary agreements and documents to effect the sale in accordance not only
with the bidding guidelines and procedures but with the Constitution as
well. The refusal of respondent GSIS to execute the corresponding documents
with petitioner as provided in the bidding rules after the latter has matched the
bid of the Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied
in the 1987 Constitution not merely to be used as a guideline for future
legislation but primarily to be enforced; so must it be enforced. This Court as
the ultimate guardian of the Constitution will never shun, under any reasonable
circumstance, the duty of upholding the majesty of the Constitution which it is
tasked to defend. It is worth emphasizing that it is not the intention of this Court
to impede and diminish, much less undermine, the influx of foreign
investments. Far from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos whenever
such preference is ordained by the Constitution. The position of the Court on
this matter could have not been more appropriately articulated by Chief Justice
Narvasa -

As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism for
decisions perceived as obstacles to economic progress and development x x x x in
connection with a temporary injunction issued by the Courts First Division against the
sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were
published in a major daily to the effect that that injunction again demonstrates that the
Philippine legal system can be a major obstacle to doing business here.

Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism. [48]
 Privatization of a business asset for purposes of enhancing its business
viability and preventing further losses, regardless of the character of the asset,
should not take precedence over non-material values. A commercial, nay even
a budgetary, objective should not be pursued at the expense of national pride
and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so sacrosanctin any
economic policy as to draw itself beyond judicial review when the Constitution
is involved. [49]

Nationalism is inherent in the very concept of the Philippines being a

democratic and republican state, with sovereignty residing in the Filipino people
and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can
have no higher purpose. Any interpretation of any constitutional provision must
adhere to such basic concept. Protection of foreign investments, while laudible,
is merely a policy. It cannot override the demands of nationalism. [50]

The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted many
of the most important events in the short history of the Philippines as a
nation. We are talking about a hotel where heads of states would prefer to be
housed as a strong manifestation of their desire to cloak the dignity of the
highest state function to their official visits to the Philippines. Thus the Manila
Hotel has played and continues to play a significant role as an authentic
repository of twentieth century Philippine history and culture. In this sense, it
has become truly a reflection of the Filipino soul - a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a
country.[51]

This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark - this Grand Old Dame of hotels in
Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of
the Filipino psyche to alien hands cannot be less than mephistophelian for it is,
in whatever manner viewed, a veritable alienation of a nations soul for some
pieces of foreign silver. And so we ask: What advantage, which cannot be
equally drawn from a qualified Filipino, can be gained by the Filipinos if Manila
Hotel - and all that it stands for - is sold to a non-Filipino? How much of national
pride will vanish if the nations cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be preserved and realized if
the national patrimony is safekept in the hands of a qualified, zealous and well-
meaning Filipino? This is the plain and simple meaning of the Filipino First
Policy provision of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the
Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the shares
of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the
matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation
at P44.00 per share and thereafter to execute the necessary agreements and
documents to effect the sale, to issue the necessary clearances and to do such
other acts and deeds as may be necessary for the purpose.
SO ORDERED.
 EN BANC

[G.R. No. 134015. July 19, 1999]

JUAN DOMINO, petitioner, vs. COMMISSION ON ELECTIONS, NARCISO

Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR.,
ROSARIO SAMSON and DIONISIO P. LIM, SR., respondents.
LUCILLE CHIONGBIAN-SOLON, intervenor.

DECISION
DAVIDE, JR., C.J.:

Challenged in this case for certiorari with a prayer for preliminary injunction are the
Resolution of 6 May 1998[1] of the Second Division of the Commission on Elections (hereafter
COMELEC), declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for
representative of the Lone Legislative District of the Province of Sarangani in the 11 May 1998
elections, and the Decision of 29 May 1998[2] of the COMELEC en banc denying DOMINOs
motion for reconsideration.
The antecedents are not disputed.
On 25 March 1998, DOMINO filed his certificate of candidacy for the position of
Representative of the Lone Legislative District of the Province of Sarangani indicating in item
nine (9) of his certificate that he had resided in the constituency where he seeks to be elected for
one (1) year and two (2) months immediately preceding the election.[3]
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P.
Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., filed with the COMELEC a Petition to
Deny Due Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-022
and assigned to the Second Division of the COMELEC. Private respondents alleged that
DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much less a
registered voter, of the province of Sarangani where he seeks election. To substantiate their
allegations, private respondents presented the following evidence:
1. Annex A the Certificate of Candidacy of respondent for the position of Congressman of the
Lone District of the Province of Sarangani filed with the Office of the Provincial Election
Supervisor of Sarangani on March 25, 1998, where in item 4 thereof he wrote his date of birth
as December 5, 1953; in item 9, he claims he have resided in the constituency where he seeks
election for one (1) year and two (2) months; and, in item 10, that he is registered voter of
Precinct No. 14A-1, Barangay Poblacion, Alabel, Sarangani;
2. Annex B Voters Registration Record with SN 31326504 dated June 22, 1997 indicating
respondents registration at Precinct No. 4400-A, Old Balara, Quezon City;
 3. Annex C Respondents Community Tax Certificate No. 11132214C dated January 15, 1997;
4. Annex D Certified true copy of the letter of Herson D. Dema-ala, Deputy Provincial &
Municipal Treasurer of Alabel, Sarangani, dated February 26, 1998, addressed to Mr. Conrado
G. Butil, which reads:

In connection with your letter of even date, we are furnishing you herewith certified
xerox copy of the triplicate copy of COMMUNITY TAX CERTIFICATE NO.
11132214C in the name of Juan Domino.

Furthermore, Community Tax Certificate No. 11132212C of the same stub was issued
to Carlito Engcong on September 5, 1997, while Certificate No. 11132213C was also
issued to Mr. Juan Domino but was cancelled and serial no. 11132215C was issued in
the name of Marianita Letigio on September 8, 1997.

5. Annex E The triplicate copy of the Community Tax Certificate No. 11132214C in the name of
Juan Domino dated September 5, 1997;
6. Annex F Copy of the letter of Provincial Treasurer Lourdes P. Riego dated March 2, 1998
addressed to Mr. Herson D. Dema-ala, Deputy Provincial Treasurer and Municipal Treasurer
of Alabel, Sarangani, which states:

For easy reference, kindly turn-over to the undersigned for safekeeping, the stub of
Community Tax Certificate containing Nos. 11132201C-11132250C issued to you on
June 13, 1997 and paid under Official Receipt No. 7854744.

Upon request of Congressman James L. Chiongbian.

7. Annex G Certificate of Candidacy of respondent for the position of Congressman in

the 3rd District of Quezon City for the 1995 elections filed with the Office of the
Regional Election Director, National Capital Region, on March 17, 1995, where, in
item 4 thereof, he wrote his birth date as December 22, 1953; in item 8 thereof
his residence in the constituency where I seek to be elected immediately preceding the
election as 3 years and 5 months; and, in item 9, that he is a registered voter of Precinct
No. 182, Barangay Balara, Quezon City;
8. Annex H a copy of the APPLICATION FOR TRANSFER OF REGISTRATION RECORDS
DUE TO CHANGE OF RESIDENCE of respondent dated August 30, 1997 addressed to and
received by Election Officer Mantil Alim, Alabel, Sarangani, on September 22, 1997, stating
among others, that [T]he undersigneds previous residence is at 24 Bonifacio Street, Ayala
Heights, Quezon City, III District, Quezon City; wherein he is a registered voter and that for
business and residence purposes, the undersigned has transferred and conducts his business
and reside at Barangay Poblacion, Alabel, Province of Sarangani prior to this application;
9. Annex I Copy of the SWORN APPLICATION FOR CANCELLATION OF VOTERS
[TRANSFER OF] PREVIOUS REGISTRATION of respondent subscribed and sworn to on
22 October 1997 before Election Officer Mantil Allim at Alabel, Sarangani.[4]
 For his defense, DOMINO maintains that he had complied with the one-year residence
requirement and that he has been residing in Sarangani since January 1997. In support of the said
contention, DOMINO presented before the COMELEC the following exhibits, to wit:
1. Annex 1 - Copy of the Contract of Lease between Nora Dacaldacal as Lessor and Administrator
of the properties of deceased spouses Maximo and Remedios Dacaldacal and respondent as
Lessee executed on January 15, 1997, subscribed and sworn to before Notary Public Johnny
P. Landero;
2. Annex 2 - Copy of the Extra-Judicial Settlement of Estate with Absolute Deed of sale executed
by and between the heirs of deceased spouses Maximo and Remedios Dacaldacal, namely:
Maria Lourdes, Jupiter and Beberlie and the respondent on November 4, 1997, subscribed and
sworn to before Notary Public Jose A. Alegario;
3. Annex 3 - True Carbon Xerox copy of the Decision dated January 19, 1998, of the Metropolitan
Trial Court of Metro Manila, Branch 35, Quezon City, in Election Case NO. 725 captioned
as In the Matter of the Petition for the Exclusion from the List of voters of Precinct No. 4400-
A Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda Domino, Petitioners, -versus-
Elmer M. Kayanan, Election Officer, Quezon City, District III, and the Board of Election
Inspectors of Precinct No. 4400-A, Old Balara, Quezon City, Respondents. The dispositive
portion of which reads:

1. Declaring the registration of petitioners as voters of Precinct No. 4400-A, Barangay

Old Balara, in District III Quezon City as completely erroneous as petitioners were no
longer residents of Quezon City but of Alabel, Sarangani where they have been
residing since December 1996;

2. Declaring this erroneous registration of petitioners in Quezon City as done in good

faith due to an honest mistake caused by circumstances beyond their control and
without any fault of petitioners;

3. Approving the transfer of registration of voters of petitioners from Precinct No.

4400-A of Barangay Old Balara, Quezon City to Precinct No. 14A1 of Barangay
Poblacion of Alabel, Sarangani; and

4. Ordering the respondents to immediately transfer and forward all the election/voters
registration records of the petitioners in Quezon City to the Election Officer, the
Election Registration Board and other Comelec Offices of Alabel, Sarangani where
the petitioners are obviously qualified to exercise their respective rights of suffrage.

4. Annex 4 - Copy of the Application for Transfer of Registration Records due to Change of
Residence addressed to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated August
30, 1997.
5. Annex 5 - Certified True Copy of the Notice of Approval of Application, the roster of
applications for registration approved by the Election Registration Board on October 20, 1997,
showing the spouses Juan and Zorayda Bailon Domino listed as numbers 111 and 112 both
 under Precinct No. 14A1, the last two names in the slate indicated as transferees without VRR
numbers and their application dated August 30, 1997 and September 30, 1997, respectively.
6. Annex 6 - same as Annex 5
7. Annex 6-a - Copy of the Sworn Application for Cancellation of Voters Previous
Registration (Annex I, Petition);
8. Annex 7 - Copy of claim card in the name of respondent showing his VRR No. 31326504 dated
October 20, 1997 as a registered voter of Precinct No. 14A1, Barangay Poblacion, Alabel,
Sarangani;
9. Annex 7-a - Certification dated April 16, 1998, issued by Atty. Elmer M. Kayanan, Election
Officer IV, District III, Quezon City, which reads:

This is to certify that the spouses JUAN and ZORAYDA DOMINO are no longer
registered voters of District III, Quezon City. Their registration records (VRR) were
transferred and are now in the possession of the Election Officer of Alabel, Sarangani.

This certification is being issued upon the request of Mr. JUAN DOMINO.

10. Annex 8 - Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal stating the
circumstances and incidents detailing their alleged acquaintance with respondent.
11. Annexes 8-a, 8-b, 8-c and 8-d - Copies of the uniform affidavits of witness Myrna Dalaguit,
Hilario Fuentes, Coraminda Lomibao and Elena V. Piodos subscribed and sworn to before
Notary Public Bonifacio F. Doria, Jr., on April 18, 1998, embodying their alleged personal
knowledge of respondents residency in Alabel, Sarangani;
12. Annex 8-e - A certification dated April 20, 1998, subscribed and sworn to before Notary
Public Bonifacio, containing a listing of the names of fifty-five(55) residents of Alabel,
Sarangani, declaring and certifying under oath that they personally know the respondent as a
permanent resident of Alabel, Sarangani since January 1997 up to present;
13. Annexes 9, 9-a and 9-b- Copies of Individual Income Tax Return for the year 1997, BIR form
2316 and W-2, respectively, of respondent; and,
14. Annex 10 - The affidavit of respondent reciting the chronology of events and circumstances
leading to his relocation to the Municipality of Alabel, Sarangani, appending Annexes A, B,
C, D, D-1, E, F, G with sub-markings G-1 and G-2 and H his CTC No. 111`32214C dated
September 5, 1997, which are the same as Annexes 1, 2, 4, 5, 6-a, 3, 7, 9 with sub-markings
9-a and 9-b except Annex H.[5]
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO
disqualified as candidate for the position of representative of the lone district of Sarangani for lack
of the one-year residence requirement and likewise ordered the cancellation of his certificate of
candidacy, on the basis of the following findings:

What militates against respondents claim that he has met the residency requirement
for the position sought is his own Voters Registration Record No. 31326504
dated June 22, 1997 [Annex B, Petition] and his address indicated as 24 Bonifacio
St., Ayala Heights, Old Balara, Quezon City.This evidence, standing alone, negates
all his protestations that he established residence at Barangay Poblacion, Alabel,
Sarangani, as early as January 1997. It is highly improbable, nay incredible, for
respondent who previously ran for the same position in the 3rd Legislative District of
Quezon City during the elections of 1995 to unwittingly forget the residency
requirement for the office sought.

Counting, therefore, from the day after June 22, 1997 when respondent registered at
Precinct No. 4400-A, up to and until the day of the elections on May 11, 1998,
respondent clearly lacks the one (1) year residency requirement provided for
candidates for Member of the House of Representatives under Section 6, Article VI of
the Constitution.

All told, petitioners evidence conspire to attest to respondents lack of residence in the
constituency where he seeks election and while it may be conceded that he is a
registered voter as contemplated under Section 12 of R.A. 8189, he lacks the
qualification to run for the position of Congressman for the Lone District of the
Province of Sarangani.[6]

On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus
Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the
proclamation if winning, considering that the Resolution disqualifying him as candidate had not
yet become final and executory.[7]
The result of the election, per Statement of Votes certified by the Chairman of the Provincial
Board of Canvassers,[8] shows that DOMINO garnered the highest number of votes over his
opponents for the position of Congressman of the Province of Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May
1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence, the
present Petition for Certiorari with prayer for Preliminary Mandatory Injunction alleging, in the
main, that the COMELEC committed grave abuse of discretion amounting to excess or lack of
jurisdiction when it ruled that he did not meet the one-year residence requirement.
On 14 July 1998, acting on DOMINOs Motion for Issuance of Temporary Restraining Order,
the Court directed the parties to maintain the status quo prevailing at the time of the filing of the
instant petition.[9]
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the
candidate receiving the second highest number of votes, was allowed by the Court to Intervene.[10]
INTERVENOR in her Motion for Leave to Intervene and in her Comment in Intervention[11] is
asking the Court to uphold the disqualification of petitioner Juan Domino and to proclaim her as
the duly elected representative of Sarangani in the 11 May 1998 elections.
Before us DOMINO raised the following issues for resolution, to wit:
 a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaring
petitioner as resident of Sarangani and not of Quezon City is final, conclusive and binding
upon the whole world, including the Commission on Elections.
b. Whether or not petitioner herein has resided in the subject congressional district for at least one
(1) year immediately preceding the May 11, 1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for the
disqualification of petitioner.[12]
The first issue.
The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City
in the exclusion proceedings declaring him a resident of the Province of Sarangani and not of
Quezon City is final and conclusive upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election
Code, over a petition to deny due course to or cancel certificate of candidacy. In the exercise of
the said jurisdiction, it is within the competence of the COMELEC to determine whether false
representation as to material facts was made in the certificate of candidacy, that will include,
among others, the residence of the candidate.
The determination of the Metropolitan Trial Court of Quezon City in the exclusion
proceedings as to the right of DOMINO to be included or excluded from the list of voters in the
precinct within its territorial jurisdiction, does not preclude the COMELEC, in the determination
of DOMINOs qualification as a candidate, to pass upon the issue of compliance with the residency
requirement.
The proceedings for the exclusion or inclusion of voters in the list of voters are summary in
character. Thus, the factual findings of the trial court and its resultant conclusions in the exclusion
proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction
are not conclusive upon the COMELEC. Although the court in inclusion or exclusion proceedings
may pass upon any question necessary to decide the issue raised including the questions of
citizenship and residence of the challenged voter, the authority to order the inclusion in or
exclusion from the list of voters necessarily caries with it the power to inquire into and settle all
matters essential to the exercise of said authority. However, except for the right to remain in the
list of voters or for being excluded therefrom for the particular election in relation to which the
proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res judicata.[13] In this sense, it does not operate as a
bar to any future action that a party may take concerning the subject passed upon in the
proceeding.[14] Thus, a decision in an exclusion proceeding would neither be conclusive on the
voters political status, nor bar subsequent proceedings on his right to be registered as a voter in
any other election.[15]
Thus, in Tan Cohon v. Election Registrar[16] we ruled that:

xxx It is made clear that even as it is here held that the order of the City Court in
question has become final, the same does not constitute res adjudicata as to any of the
matters therein contained. It is ridiculous to suppose that such an important and
intricate matter of citizenship may be passed upon and determined with finality in
such a summary and peremptory proceeding as that of inclusion and exclusion of
persons in the registry list of voters. Even if the City Court had granted appellants
petition for inclusion in the permanent list of voters on the allegation that she is a
Filipino citizen qualified to vote, her alleged Filipino citizenship would still have been
left open to question.

Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded
its jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and
ordered the transfer of his voters registration from Precinct No. 4400-A of Barangay Old Balara,
Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within the
competence of the trial court, in an exclusion proceedings, to declare the challenged voter a
resident of another municipality. The jurisdiction of the lower court over exclusion cases is limited
only to determining the right of voter to remain in the list of voters or to declare that the challenged
voter is not qualified to vote in the precinct in which he is registered, specifying the ground of the
voters disqualification. The trial court has no power to order the change or transfer of registration
from one place of residence to another for it is the function of the election Registration Board as
provided under Section 12 of R.A. No. 8189.[17] The only effect of the decision of the lower court
excluding the challenged voter from the list of voters, is for the Election Registration Board, upon
receipt of the final decision, to remove the voters registration record from the corresponding book
of voters, enter the order of exclusion therein, and thereafter place the record in the inactive file.[18]
Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject
matter and cause of action are indispensable requirements for the application of said
doctrine. Neither herein Private Respondents nor INTERVENOR, is a party in the exclusion
proceedings. The Petition for Exclusion was filed by DOMINO himself and his wife, praying that
he and his wife be excluded from the Voters List on the ground of erroneous registration while
the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by private
respondents against DOMINO for alleged false representation in his certificate of candidacy. For
the decision to be a basis for the dismissal by reason of res judicata, it is essential that there must
be between the first and the second action identity of parties, identity of subject matter and identity
of causes of action.[19] In the present case, the aforesaid essential requisites are not present. In the
case of Nuval v. Guray, et al.,[20] the Supreme Court in resolving a similar issue ruled that:

The question to be solved under the first assignment of error is whether or not the
judgment rendered in the case of the petition for the exclusion of Norberto Gurays
name from the election list of Luna, is res judicata, so as to prevent the institution and
prosecution of an action in quo warranto, which is now before us.

The procedure prescribed by section 437 of the Administrative Code, as amended by

Act No. 3387, is of a summary character and the judgment rendered therein is not
appealable except when the petition is tried before the justice of the peace of the
capital or the circuit judge, in which case it may be appealed to the judge of first
instance, with whom said two lower judges have concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in his dual capacity as
qualified voter of the municipality of Luna, and as a duly registered candidate for the
office of president of said municipality, against Norberto Guray as a registered voter
in the election list of said municipality.The present proceeding of quo warranto was
interposed by Gregorio Nuval in his capacity as a registered candidate voted for the
office of municipal president of Luna, against Norberto Guray, as an elected candidate
for the same office. Therefore, there is no identity of parties in the two cases, since it
is not enough that there be an identity of persons, but there must be an identity of
capacities in which said persons litigate. ( Art. 1259 of the Civil Code; Bowler vs.
Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)

In said case of the petition for the exclusion, the object of the litigation, or the litigious
matter was the exclusion of Norberto Guray as a voter from the election list of the
municipality of Luna, while in the present quo warranto proceeding, the object of the
litigation, or the litigious matter is his exclusion or expulsion from the office to which
he has been elected. Neither does there exist, then, any identity in the object of the
litigation, or the litigious matter.

In said case of the petition for exclusion, the cause of action was that Norberto Guray
had not the six months legal residence in the municipality of Luna to be a qualified
voter thereof, while in the present proceeding of quo warranto, the cause of action is
that Norberto Guray has not the one years legal residence required for eligibility to the
office of municipal president of Luna. Neither does there exist therefore, identity of
causes of action.

In order that res judicata may exist the following are necessary: (a) identity of parties;
(b) identity of things; and (c) identity of issues (Aquino vs. Director of Lands, 39 Phil.
850). And as in the case of the petition for exclusion and in the present quo
warranto proceeding, as there is no identity of parties, or of things or litigious matter,
or of issues or causes of action, there is no res judicata.

The Second Issue.

Was DOMINO a resident of the Province of Sarangani for at least one year immediately
preceding the 11 May 1998 election as stated in his certificate of candidacy?
We hold in the negative.
It is doctrinally settled that the term residence, as used in the law prescribing the qualifications
for suffrage and for elective office, means the same thing as domicile, which imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention.[21] Domicile denotes a fixed permanent residence to which, whenever
absent for business, pleasure, or some other reasons, one intends to return.[22] Domicile is a question
of intention and circumstances. In the consideration of circumstances, three rules must be borne in
mind, namely: (1) that a man must have a residence or domicile somewhere; (2) when once
established it remains until a new one is acquired; and (3) a man can have but one residence or
domicile at a time.[23]
Records show that petitioners domicile of origin was Candon, Ilocos Sur[24] and that sometime
in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara,
Quezon City, as shown by his certificate of candidacy for the position of representative of the
3rdDistrict of Quezon City in the May 1995 election. Petitioner is now claiming that he had
effectively abandoned his residence in Quezon City and has established a new domicile of choice
at the Province of Sarangani.
A persons domicile once established is considered to continue and will not be deemed lost
until a new one is established.[25] To successfully effect a change of domicile one must demonstrate
an actual removal or an actual change of domicile; a bona fide intention of abandoning the former
place of residence and establishing a new one and definite acts which correspond with the
purpose.[26] In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period
of time; the change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.[27]
It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since
December 1996 was sufficiently established by the lease of a house and lot located therein in
January 1997 and by the affidavits and certifications under oath of the residents of that place that
they have seen petitioner and his family residing in their locality.
While this may be so, actual and physical is not in itself sufficient to show that from said date
he had transferred his residence in that place. To establish a new domicile of choice, personal
presence in the place must be coupled with conduct indicative of that intention. While residence
simply requires bodily presence in a given place, domicile requires not only such bodily presence
in that place but also a declared and probable intent to make it ones fixed and permanent place of
abode, ones home.[28]
As a general rule, the principal elements of domicile, physical presence in the locality involved
and intention to adopt it as a domicile, must concur in order to establish a new domicile. No change
of domicile will result if either of these elements is absent. Intention to acquire a domicile without
actual residence in the locality does not result in acquisition of domicile, nor does the fact of
physical presence without intention.[29]
The lease contract entered into sometime in January 1997, does not adequately support a
change of domicile. The lease contract may be indicative of DOMINOs intention to reside in
Sarangani but it does not engender the kind of permanency required to prove abandonment of ones
original domicile. The mere absence of individual from his permanent residence, no matter how
long, without the intention to abandon it does not result in loss or change of domicile.[30] Thus the
date of the contract of lease of a house and lot located in the province of Sarangani, i.e., 15 January
1997, cannot be used, in the absence of other circumstances, as the reckoning period of the one-
year residence requirement.
 Further, Dominos lack of intention to abandon his residence in Quezon City is further
strengthened by his act of registering as voter in one of the precincts in Quezon City. While voting
is not conclusive of residence, it does give rise to a strong presumption of residence especially in
this case where DOMINO registered in his former barangay. Exercising the right of election
franchise is a deliberate public assertion of the fact of residence, and is said to have decided
preponderance is a doubtful case upon the place the elector claims as, or believes to be, his
residence.[31] The fact that a party continuously voted in a particular locality is a strong factor in
assisting to determine the status of his domicile.[32]
His claim that his registration in Quezon City was erroneous and was caused by events over
which he had no control cannot be sustained. The general registration of voters for purposes of the
May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and
22.[33]
While, Dominos intention to establish residence in Sarangani can be gleaned from the fact
that be bought the house he was renting on November 4, 1997, that he sought cancellation of his
previous registration in Quezon City on 22 October 1997,[34] and that he applied for transfer of
registration from Quezon City to Sarangani by reason of change of residence on 30 August
1997,[35] DOMINO still falls short of the one year residency requirement under the Constitution.
In showing compliance with the residency requirement, both intent and actual presence in the
district one intends to represent must satisfy the length of time prescribed by the fundamental
law.[36] Dominos failure to do so rendered him ineligible and his election to office null and void.[37]

The Third Issue.

DOMINOs contention that the COMELEC has no jurisdiction in the present petition is bereft
of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election
Code, has jurisdiction over a petition to deny due course to or cancel certificate of candidacy. Such
jurisdiction continues even after election, if for any reason no final judgment of disqualification is
rendered before the election, and the candidate facing disqualification is voted for and receives the
highest number of votes[38] and provided further that the winning candidate has not been
proclaimed or has taken his oath of office.[39]
It has been repeatedly held in a number of cases, that the House of Representatives Electoral
Tribunals sole and exclusive jurisdiction over all contests relating to the election, returns and
qualifications of members of Congress as provided under Section 17 of Article VI of the
Constitution begins only after a candidate has become a member of the House of
Representatives.[40]
The fact of obtaining the highest number of votes in an election does not automatically vest
the position in the winning candidate.[41] A candidate must be proclaimed and must have taken his
oath of office before he can be considered a member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone
Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus
Resolution issued by the COMELEC on the day of the election ordering the suspension of
DOMINOs proclamation should he obtain the winning number of votes. This resolution was issued
by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying DOMINO
as candidate for the position.
Considering that DOMINO has not been proclaimed as Congressman-elect in the Lone
Congressional District of the Province of Sarangani he cannot be deemed a member of the House
of Representative. Hence, it is the COMELEC and not the Electoral Tribunal which has
jurisdiction over the issue of his ineligibility as a candidate.[42]

Issue raised by INTERVENOR.

After finding that DOMINO is disqualified as candidate for the position of representative of
the province of Sarangani, may INTERVENOR, as the candidate who received the next highest
number of votes, be proclaimed as the winning candidate?
It is now settled doctrine that the candidate who obtains the second highest number of votes
may not be proclaimed winner in case the winning candidate is disqualified.[43]
In every election, the peoples choice is the paramount consideration and their expressed will
must, at all times, be given effect. When the majority speaks and elects into office a candidate by
giving the highest number of votes cast in the election for that office, no one can be declared
elected in his place.[44]
It would be extremely repugnant to the basic concept of the constitutionally guaranteed right
to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the majority of which have positively
declared through their ballots that they do not choose him.[45] To simplistically assume that the
second placer would have received the other votes would be to substitute our judgment for the
mind of the voters. He could not be considered the first among qualified candidates because in a
field which excludes the qualified candidate, the conditions would have substantially changed.[46]
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election.[47]
The effect of a decision declaring a person ineligible to hold an office is only that the election
fails entirely, that the wreath of victory cannot be transferred[48] from the disqualified winner to the
repudiated loser because the law then as now only authorizes a declaration of election in favor of
the person who haS obtained a plurality of votes[49] and does not entitle the candidate receiving the
next highest number of votes to be declared elected. In such case, the electors have failed to make
a choice and the election is a nullity.[50] To allow the defeated and repudiated candidate to take over
the elective position despite his rejection by the electorate is to disenfranchise the electorate
without any fault on their part and to undermine the importance and meaning of democracy and
the peoples right to elect officials of their choice.[51]
 INTERVENORs plea that the votes cast in favor of DOMINO be considered stray votes
cannot be sustained. INTERVENORs reliance on the opinion made in the Labo, Jr. case[52] to
wit: if the electorate, fully aware in fact and in law of a candidates disqualification so as to bring
such awareness within the realm of notoriety, would nevertheless cast their votes in favor of the
ineligible candidate, the electorate may be said to have waived the validity and efficacy of their
votes by notoriously misapplying their franchise or throwing away their votes, in which case, the
eligible candidate obtaining the next higher number of votes may be deemed elected, is misplaced.
Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public
as an ineligible candidate. Although the resolution declaring him ineligible as candidate was
rendered before the election, however, the same is not yet final and executory. In fact, it was no
less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed
DOMINO to be voted for the office and ordered that the votes cast for him be counted as the
Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO
are presumed to have been cast in the sincere belief that he was a qualified candidate, without any
intention to misapply their franchise. Thus, said votes can not be treated as stray, void, or
meaningless.[53]
WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the
COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are
hereby AFFIRMED.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17,
2003. Respondent Commission on Elections (COMELEC) refused to give due course to
petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The
decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol
K. Sadain voted to include petitioner as they believed he had parties or movements to back up his
candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No.

6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed by other
aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution No.
6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35) others
nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a
political party or are not supported by a registered political party with a national constituency.
Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had
retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly
rendered in violation of his right to "equal access to opportunities for public service" under Section
26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a
nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the electoral process and limited the
power of the sovereign people to choose their leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among all the presidential candidates, i.e., he
possesses all the constitutional and legal qualifications for the office of the president, he is capable
of waging a national campaign since he has numerous national organizations under his leadership,
he also has the capacity to wage an international campaign since he has practiced law in other
countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for
the Certificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not
provide clear and reasonable guidelines for determining the qualifications of candidates since it does
not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to
opportunities for public office" is the claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to seek the presidency. There is none. What is recognized is
merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution
neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is
nothing in the plain language of the provision which suggests such a thrust or justifies an
interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration
of Principles and State Policies." The provisions under the Article are generally considered not self-
executing,2 and there is no plausible reason for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for legislative or executive
action.3 The disregard of the provision does not give rise to any cause of action before the courts.4

An inquiry into the intent of the framers5 produces the same determination that the provision is not
self-executory. The original wording of the present Section 26, Article II had read, "The State shall
broaden opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief
Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service."
He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important
would be equal access to the opportunity. If you broaden, it would necessarily mean that
the government would be mandated to create as many offices as are possible to
accommodate as many people as are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should not mandate the State to
make the government the number one employer and to limit offices only to what may
be necessary and expedient yet offering equal opportunities to access to it, I change
the word "broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would
accommodate as many people as possible into public office. The approval of the "Davide
amendment" indicates the design of the framers to cast the provision as simply enunciatory of a
desired policy objective and not reflective of the imposition of a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of
positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its
effective means and reach are not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal
access," "opportunities," and "public service" are susceptible to countless interpretations owing to
their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people
an operative but amorphous foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu
proprio refuse to give due course to or cancel a Certificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal
access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the
limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the
case at bar, there is no showing that any person is exempt from the limitations or the burdens which
they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the
Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their
presumed validity stands and has to be accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the
Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine. The State
has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly.
Towards this end, the State takes into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and resources in preparation for the
election. These practical difficulties should, of course, never exempt the State from the conduct of a
mandated electoral exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not
merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions.
As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a

significant modicum of support before printing the name of a political organization and its
candidates on the ballot – the interest, if no other, in avoiding confusion, deception and even
frustration of the democratic [process].11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No.
6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January
2004. As observed in the COMELEC’s Comment:

There is a need to limit the number of candidates especially in the case of candidates for
national positions because the election process becomes a mockery even if those who
cannot clearly wage a national campaign are allowed to run. Their names would have to be
printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots.
These would entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (P450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage
a decent campaign enough to project the prospect of winning, no matter how slim.12

The preparation of ballots is but one aspect that would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws provide various entitlements for candidates for
public office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or
even the receipt of electoral contributions.15Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more
galling. The organization of an election with bona fide candidates standing is onerous enough. To
add into the mix candidates with no serious intentions or capabilities to run a viable campaign would
actually impair the electoral process. This is not to mention the candidacies which are palpably
ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae
covering every step of the electoral process, most probably posed at the instance of these nuisance
candidates. It would be a senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could exclude
nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on
gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling
State interest to ensure orderly and credible elections by excising impediments thereto, such as
nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated
by the Constitution with the administration of elections16 and endowed with considerable latitude in
adopting means and methods that will ensure the promotion of free, orderly and honest
elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office
shall be free from any form of harassment and discrimination.18 The determination of bona
fide candidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in
the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in the case
of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it.
The assailed resolutions of the COMELEC do not direct the Court to the evidence which it
considered in determining that petitioner was a nuisance candidate. This precludes the Court from
reviewing at this instance whether the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily take into account the matters which
the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing
his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts,
can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor
the Solicitor General appended any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The
basis of the factual determination is not before this Court. Thus, the remand of this case for the
reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the
government. It deserves not a cursory treatment but a hearing which conforms to the requirements
of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say
that the form strictly complies with Section 74 of the Omnibus Election Code. This provision
specifically enumerates what a certificate of candidacy should contain, with the required information
tending to show that the candidate possesses the minimum qualifications for the position aspired for
as established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to
the COMELEC for the reception of further evidence, to determine the question on whether petitioner
Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus
Election Code.
The COMELEC is directed to hold and complete the reception of evidence and report its findings to
this Court with deliberate dispatch.

SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila
EN BANC

DATU MICHAEL ABAS KIDA, G.R. No. 196271

in his personal capacity, and in
representation of MAGUINDANAO Present:
FEDERATION OF AUTONOMOUS
IRRIGATORS ASSOCIATION, CORONA, C.J.,
INC., HADJI MUHMINA J. CARPIO,
USMAN, JOHN ANTHONY L. LIM, VELASCO, JR.,
JAMILON T. ODIN, ASRIN LEONARDO-DE CASTRO,
TIMBOL JAIYARI, MUJIB M. BRION,
KALANG, ALIH AL-SAIDI J. SAPI- PERALTA,
E, KESSAR DAMSIE ABDIL, and BERSAMIN,
BASSAM ALUH SAUPI, DEL CASTILLO,
Petitioners, ABAD,
VILLARAMA, JR.,
PEREZ,
- versus - MENDOZA,
SERENO,
REYES, and
SENATE OF THE PHILIPPINES, PERLAS-BERNABE, JJ.
represented by its President JUAN
PONCE ENRILE, HOUSE OF Promulgated:
REPRESENTATIVES, thru
SPEAKER FELICIANO October 18, 2011
BELMONTE, COMMISSION ON
ELECTIONS, thru its Chairman,
SIXTO BRILLANTES, JR.,
PAQUITO OCHOA, JR., Office of
the President Executive Secretary,
FLORENCIO ABAD, JR., Secretary
of Budget, and ROBERTO TAN,
Treasurer of the Philippines,
Respondents.
x----------------------------------------------x
BASARI D. MAPUPUNO, G.R. No. 196305
Petitioner,

- versus -

SIXTO BRILLANTES, in his

capacity as Chairman of the
Commission on Elections,
FLORENCIO ABAD, JR. in his
capacity as Secretary of the
Department of Budget and
Management, PACQUITO OCHOA,
JR., in his capacity as Executive
Secretary, JUAN PONCE ENRILE,
in his capacity as Senate President,
and FELICIANO BELMONTE, in
his capacity as Speaker of the House
of Representatives,
Respondents.
x----------------------------------------------x

REP. EDCEL C. LAGMAN, G.R. No. 197221

Petitioner,

- versus -
PAQUITO N. OCHOA, JR., in his
capacity as the Executive Secretary,
and the COMMISSION ON
ELECTIONS,
Respondents.
x----------------------------------------------x

ALMARIM CENTI TILLAH, DATU G.R. No. 197280

CASAN CONDING CANA, and
PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN
(PDP-LABAN),
Petitioners,

- versus -

THE COMMISSION ON
ELECTIONS, through its Chairman,
SIXTO BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary,
HON. FLORENCIO B. ABAD, JR.,
in his capacity as Secretary of the
Department of Budget and
Management, and HON. ROBERTO
B. TAN, in his capacity as Treasurer
of the Philippines,
Respondents.
x----------------------------------------------x

ATTY. ROMULO B. G.R. No. 197282

MACALINTAL,
Petitioner,
- versus -

COMMISSION ON ELECTIONS
and THE OFFICE OF THE
PRESIDENT, through EXECUTIVE
SECRETARY PAQUITO N.
OCHOA, JR.,
Respondents.
x----------------------------------------------x

LUIS BAROK BIRAOGO, G.R. No. 197392

Petitioner,

- versus -

THE COMMISSION ON
ELECTIONS and EXECUTIVE
SECRETARY PAQUITO N.
OCHOA, JR.,
Respondents.
x----------------------------------------------x

JACINTO V. PARAS, G.R. No. 197454

Petitioner,

- versus -

EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., and the
COMMISSION ON ELECTIONS,
Respondents.
 x--------------------------------------------x

MINORITY RIGHTS FORUM,

PHILIPPINES, INC.,
Respondents-Intervenor.

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

DECISION
BRION, J.:

On June 30, 2011, Republic Act (RA) No. 10153, entitled An Act Providing
for the Synchronization of the Elections in the Autonomous Region in Muslim
Mindanao (ARMM) with the National and Local Elections and for Other
Purposes was enacted. The law reset the ARMM elections from the 8th of August
2011, to the second Monday of May 2013 and every three (3) years thereafter, to
coincide with the countrys regular national and local elections. The law as well
granted the President the power to appoint officers-in-charge (OICs) for the Office
of the Regional Governor, the Regional Vice-Governor, and the Members of the
Regional Legislative Assembly, who shall perform the functions pertaining to the
said offices until the officials duly elected in the May 2013 elections shall have
qualified and assumed office.

Even before its formal passage, the bills that became RA No. 10153 already
spawned petitions against their validity; House Bill No. 4146 and Senate Bill No.
2756 were challenged in petitions filed with this Court. These petitions multiplied
after RA No. 10153 was passed.

Factual Antecedents

The State, through Sections 15 to 22, Article X of the 1987 Constitution,

mandated the creation of autonomous regions in Muslim Mindanao and
the Cordilleras. Section 15 states:

Section 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographical
 areas sharing common and distinctive historical and cultural heritage, economic
and social structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

Section 18 of the Article, on the other hand, directed Congress to enact an

organic act for these autonomous regions to concretely carry into effect the granted
autonomy.

Section 18. The Congress shall enact an organic act for each autonomous region
with the assistance and participation of the regional consultative commission
composed of representatives appointed by the President from a list of nominees
from multisectoral bodies. The organic act shall define the basic structure of
government for the region consisting of the executive department and legislative
assembly, both of which shall be elective and representative of the constituent
political units. The organic acts shall likewise provide for special courts with
personal, family and property law jurisdiction consistent with the provisions of this
Constitution and national laws.

The creation of the autonomous region shall be effective when approved by

a majority of the votes cast by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and geographic areas voting favorably
in such plebiscite shall be included in the autonomous region.

On August 1, 1989 or two years after the effectivity of the 1987 Constitution,
Congress acted through Republic Act (RA) No. 6734 entitled An Act Providing for
an Organic Act for the Autonomous Region in Muslim Mindanao. A plebiscite was
held on November 6, 1990 as required by Section 18(2), Article X of RA No. 6734,
thus fully establishing the Autonomous Region of Muslim Mindanao (ARMM). The
initially assenting provinces were Lanao del Sur, Maguindanao, Sulu and Tawi-
tawi. RA No. 6734 scheduled the first regular elections for the regional officials of
the ARMM on a date not earlier than 60 days nor later than 90 days after its
ratification.

RA No. 9054 (entitled An Act to Strengthen and Expand the Organic Act for the
Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act
No. 6734, entitled An Act Providing for the Autonomous Region in Muslim
Mindanao, as Amended) was the next legislative act passed. This law provided
further refinement in the basic ARMM structure first defined in the original organic
act, and reset the regular elections for the ARMM regional officials to the second
Monday of September 2001.
 Congress passed the next law affecting ARMM RA No. 9140 [1] - on June 22,
2001. This law reset the first regular elections originally scheduled under RA No.
9054, to November 26, 2001. It likewise set the plebiscite to ratify RA No. 9054 to
not later than August 15, 2001.

RA No. 9054 was ratified in a plebiscite held on August 14, 2001.

The province of Basilan and Marawi City voted to join ARMM on the same date.

RA No. 9333[2] was subsequently passed by Congress to reset the ARMM

regional elections to the 2nd Monday of August 2005, and on the same date every 3
years thereafter. Unlike RA No. 6734 and RA No. 9054, RA No. 9333 was not
ratified in a plebiscite.

Pursuant to RA No. 9333, the next ARMM regional elections should have
been held on August 8, 2011. COMELEC had begun preparations for these elections
and had accepted certificates of candidacies for the various regional offices to be
elected. But on June 30, 2011, RA No. 10153 was enacted, resetting the ARMM
elections to May 2013, to coincide with the regular national and local elections of
the country.

RA No. 10153 originated in the House of Representatives as House Bill (HB)

No. 4146, seeking the postponement of the ARMM elections scheduled on August
8, 2011. On March 22, 2011, the House of Representatives passed HB No. 4146,
with one hundred ninety one (191) Members voting in its favor.

After the Senate received HB No. 4146, it adopted its own version, Senate
Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13) Senators voted
favorably for its passage. On June 7, 2011, the House of Representative concurred
with the Senate amendments, and on June 30, 2011, the President signed RA No.
10153 into law.

As mentioned, the early challenge to RA No. 10153 came through a petition

filed with this Court G.R. No. 196271[3] - assailing the constitutionality of both HB
No. 4146 and SB No. 2756, and challenging the validity of RA No. 9333 as well for
non-compliance with the constitutional plebiscite requirement. Thereafter, petitioner
Basari Mapupuno in G.R. No. 196305 filed another petition[4] also assailing the
validity of RA No. 9333.
 With the enactment into law of RA No. 10153, the COMELEC stopped its
preparations for the ARMM elections. The law gave rise as well to the filing of the
following petitions against its constitutionality:

a) Petition for Certiorari and Prohibition[5] filed by Rep. Edcel Lagman as a

member of the House of Representatives against Paquito Ochoa, Jr. (in his
capacity as the Executive Secretary) and the COMELEC, docketed as G.R.
No. 197221;

b) Petition for Mandamus and Prohibition[6] filed by Atty. Romulo Macalintal as

a taxpayer against the COMELEC, docketed as G.R. No. 197282;

c) Petition for Certiorari and Mandamus, Injunction and Preliminary

Injunction[7] filed by Louis Barok Biraogo against the COMELEC and
Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No. 197392; and

d) Petition for Certiorari and Mandamus[8] filed by Jacinto Paras as a member

of the House of Representatives against Executive Secretary Paquito Ochoa,
Jr. and the COMELEC, docketed as G.R. No. 197454.

Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as

registered voters from the ARMM, with the Partido Demokratiko Pilipino Lakas ng
Bayan (a political party with candidates in the ARMM regional elections scheduled
for August 8, 2011), also filed a Petition for Prohibition and Mandamus [9] against
the COMELEC, docketed as G.R. No. 197280, to assail the constitutionality of RA
No. 9140, RA No. 9333 and RA No. 10153.

Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc.

and Bangsamoro Solidarity Movement filed their own Motion for Leave to Admit
their Motion for Intervention and Comment-in-Intervention dated July 18, 2011.
On July 26, 2011, the Court granted the motion. In the same Resolution, the Court
ordered the consolidation of all the petitions relating to the constitutionality of HB
No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153.

Oral arguments were held on August 9, 2011 and August 16, 2011. Thereafter, the
parties were instructed to submit their respective memoranda within twenty (20)
days.
On September 13, 2011, the Court issued a temporary restraining order enjoining the
implementation of RA No. 10153 and ordering the incumbent elective officials of
ARMM to continue to perform their functions should these cases not be decided by
the end of their term on September 30, 2011.

The Arguments

The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that
these laws amend RA No. 9054 and thus, have to comply with the supermajority
vote and plebiscite requirements prescribed under Sections 1 and 3, Article XVII of
RA No. 9094 in order to become effective.

The petitions assailing RA No. 10153 further maintain that it is unconstitutional for
its failure to comply with the three-reading requirement of Section 26(2), Article VI
of the Constitution. Also cited as grounds are the alleged violations of the right of
suffrage of the people of ARMM, as well as the failure to adhere to the elective and
representative character of the executive and legislative departments of the ARMM.
Lastly, the petitioners challenged the grant to the President of the power to appoint
OICs to undertake the functions of the elective ARMM officials until the officials
elected under the May 2013 regular elections shall have assumed office. Corrolarily,
they also argue that the power of appointment also gave the President the power of
control over the ARMM, in complete violation of Section 16, Article X of the
Constitution.

The Issues

From the parties submissions, the following issues were recognized and argued by
the parties in the oral arguments of August 9 and 16, 2011:

I. Whether the 1987 Constitution mandates the synchronization of

elections

II. Whether the passage of RA No. 10153 violates Section 26(2),

Article VI of the 1987 Constitution

III. Whether the passage of RA No. 10153 requires a supermajority vote

and plebiscite
 A. Does the postponement of the ARMM regular elections
constitute an amendment to Section 7, Article XVIII of RA
No. 9054?

B. Does the requirement of a supermajority vote for amendments

or revisions to RA No. 9054 violate Section 1 and Section
16(2), Article VI of the 1987 Constitution and the corollary
doctrine on irrepealable laws?

C. Does the requirement of a plebiscite apply only in the creation

of autonomous regions under paragraph 2, Section 18, Article
X of the 1987 Constitution?

IV. Whether RA No. 10153 violates the autonomy granted to the

ARMM

V. Whether the grant of the power to appoint OICs violates:

A. Section 15, Article X of the 1987 Constitution

B. Section 16, Article X of the 1987 Constitution

C. Section 18, Article X of the 1987 Constitution

VI. Whether the proposal to hold special elections is constitutional and legal.

We shall discuss these issues in the order they are presented above.

OUR RULING

We resolve to DISMISS the petitions and thereby UPHOLD the

constitutionality of RA No. 10153 in toto.

I. Synchronization as a recognized constitutional mandate

The respondent Office of the Solicitor General (OSG) argues that the Constitution
mandates synchronization, and in support of this position, cites Sections 1, 2 and 5,
Article XVIII (Transitory Provisions) of the 1987 Constitution, which provides:

Section 1. The first elections of Members of the Congress under this

Constitution shall be held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the
President, which may be simultaneous with the election of the Members
of the Congress. It shall include the election of all Members of the city or
municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives and
the local officials first elected under this Constitution shall serve
until noon of June 30, 1992.
Of the Senators elected in the election in 1992, the first twelve obtaining
the highest number of votes shall serve for six year and the remaining
twelve for three years.
xxx
Section 5. The six-year term of the incumbent President and Vice
President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.
We agree with this position.

While the Constitution does not expressly state that Congress has to
synchronize national and local elections, the clear intent towards this objective can
be gleaned from the Transitory Provisions (Article XVIII) of the
Constitution,[10] which show the extent to which the Constitutional Commission, by
deliberately making adjustments to the terms of the incumbent officials, sought to
attain synchronization of elections.[11]

The objective behind setting a common termination date for all elective
officials, done among others through the shortening the terms of the twelve winning
senators with the least number of votes, is to synchronize the holding of all future
elections whether national or local to once every three years.[12] This intention finds
full support in the discussions during the Constitutional Commission
deliberations.[13]
These Constitutional Commission exchanges, read with the provisions of the
Transitory Provisions of the Constitution, all serve as patent indicators of the
constitutional mandate to hold synchronized national and local elections, starting the
second Monday of May, 1992 and for all the following elections.

This Court was not left behind in recognizing the synchronization of the
national and local elections as a constitutional mandate. In Osmea v. Commission on
Elections,[14] we explained:

It is clear from the aforequoted provisions of the 1987 Constitution

that the terms of office of Senators, Members of the House of
Representatives, the local officials, the President and the Vice-President
have been synchronized to end on the same hour, date and year noon of
June 30, 1992.
It is likewise evident from the wording of the above-mentioned
Sections that the term of synchronization is used synonymously as the
phrase holding simultaneously since this is the precise intent in
terminating their Office Tenure on the same day or occasion. This
common termination date will synchronize future elections to once every
three years (Bernas, the Constitution of the Republic of the Philippines,
Vol. II, p. 605).
That the election for Senators, Members of the House of
Representatives and the local officials (under Sec. 2, Art. XVIII) will have
to be synchronized with the election for President and Vice President
(under Sec. 5, Art. XVIII) is likewise evident from the x x x records of the
proceedings in the Constitutional Commission. [Emphasis supplied.]

Although called regional elections, the ARMM elections should be included

among the elections to be synchronized as it is a local election based on the wording
and structure of the Constitution.

A basic rule in constitutional construction is that the words used should be

understood in the sense that they have in common use and given their ordinary
meaning, except when technical terms are employed, in which case the significance
thus attached to them prevails.[15] As this Court explained in People v. Derilo,[16] [a]s
the Constitution is not primarily a lawyers document, its language should be
understood in the sense that it may have in common. Its words should be given their
ordinary meaning except where technical terms are employed.

Understood in its ordinary sense, the word local refers to something that primarily
serves the needs of a particular limited district, often a community or minor political
subdivision.[17] Regional elections in the ARMM for the positions of governor, vice-
governor and regional assembly representatives obviously fall within this
classification, since they pertain to the elected officials who will serve within the
limited region of ARMM.

From the perspective of the Constitution, autonomous regions are considered

one of the forms of local governments, as evident from Article X of the Constitution
entitled Local Government. Autonomous regions are established and discussed
under Sections 15 to 21 of this Article the article wholly devoted to Local
Government. That an autonomous region is considered a form of local government
is also reflected in Section 1, Article X of the Constitution, which provides:

Section 1. The territorial and political subdivisions of the Republic of

the Philippines are the provinces, cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao, and the Cordilleras as hereinafter
provided.

Thus, we find the contention that the synchronization mandated by the

Constitution does not include the regional elections of the ARMM
unmeritorious. We shall refer to synchronization in the course of our discussions
below, as this concept permeates the consideration of the various issues posed in this
case and must be recalled time and again for its complete resolution.

II. The Presidents Certification on the Urgency of RA No. 10153

The petitioners in G.R. No. 197280 also challenge the validity of RA No.
10153 for its alleged failure to comply with Section 26(2), Article VI of the
Constitution[18] which provides that before bills passed by either the House or the
Senate can become laws, they must pass through three readings on separate days.
The exception is when the President certifies to the necessity of the bills immediate
enactment.
 The Court, in Tolentino v. Secretary of Finance,[19] explained the effect of the
Presidents certification of necessity in the following manner:

The presidential certification dispensed with the requirement not only of

printing but also that of reading the bill on separate days. The phrase "except when
the President certifies to the necessity of its immediate enactment, etc." in Art. VI,
Section 26[2] qualifies the two stated conditions before a bill can become a law: [i]
the bill has passed three readings on separate days and [ii] it has been printed in its
final form and distributed three days before it is finally approved.

xxx
That upon the certification of a bill by the President, the
requirement of three readings on separate days and of printing and
distribution can be dispensed with is supported by the weight of legislative
practice. For example, the bill defining the certiorari jurisdiction of this
Court which, in consolidation with the Senate version, became Republic
Act No. 5440, was passed on second and third readings in the House of
Representatives on the same day [May 14, 1968] after the bill had been
certified by the President as urgent.

In the present case, the records show that the President wrote to the Speaker
of the House of Representatives to certify the necessity of the immediate enactment
of a law synchronizing the ARMM elections with the national and local
elections.[20] Following our Tolentino ruling, the Presidents certification exempted
both the House and the Senate from having to comply with the three separate
readings requirement.

On the follow-up contention that no necessity existed for the immediate

enactment of these bills since there was no public calamity or emergency that had to
be met, again we hark back to our ruling in Tolentino:

The sufficiency of the factual basis of the suspension of the writ of habeas
corpus or declaration of martial law Art. VII, Section 18, or the existence of a
national emergency justifying the delegation of extraordinary powers to the
President under Art. VI, Section 23(2) is subject to judicial review because basic
rights of individuals may be of hazard. But the factual basis of presidential
certification of bills, which involves doing away with procedural requirements
designed to insure that bills are duly considered by members of Congress,
certainly should elicit a different standard of review. [Emphasis supplied.]
 The House of Representatives and the Senate in the exercise of their
legislative discretion gave full recognition to the Presidents certification and
promptly enacted RA No. 10153. Under the circumstances, nothing short of grave
abuse of discretion on the part of the two houses of Congress can justify our intrusion
under our power of judicial review.[21]

The petitioners, however, failed to provide us with any cause or justification

for this course of action. Hence, while the judicial department and this Court are not
bound by the acceptance of the President's certification by both the House of
Representatives and the Senate, prudent exercise of our powers and respect due our
co-equal branches of government in matters committed to them by the Constitution,
caution a stay of the judicial hand.[22]

In any case, despite the Presidents certification, the two-fold purpose that
underlies the requirement for three readings on separate days of every bill must
always be observed to enable our legislators and other parties interested in pending
bills to intelligently respond to them. Specifically, the purpose with respect to
Members of Congress is: (1) to inform the legislators of the matters they shall vote
on and (2) to give them notice that a measure is in progress through the enactment
process.[23]

We find, based on the records of the deliberations on the law, that both
advocates and the opponents of the proposed measure had sufficient opportunities
to present their views. In this light, no reason exists to nullify RA No. 10153 on the
cited ground.

III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054
The effectivity of RA No. 9333 and RA No. 10153 has also been challenged
because they did not comply with Sections 1 and 3, Article XVII of RA No. 9054 in
amending this law. These provisions require:

Section 1. Consistent with the provisions of the Constitution, this Organic Act may
be reamended or revised by the Congress of the Philippines upon a vote of two-
thirds (2/3) of the Members of the House of Representatives and of the Senate
voting separately.

Section 3. Any amendment to or revision of this Organic Act shall become effective
only when approved by a majority of the vote cast in a plebiscite called for the
 purpose, which shall be held not earlier than sixty (60) days or later than ninety (90)
days after the approval of such amendment or revision.

We find no merit in this contention.

In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No.
9054. As an examination of these laws will show, RA No. 9054 only provides for
the schedule of the first ARMM elections and does not fix the date of the regular
elections. A need therefore existed for the Congress to fix the date of
the subsequent ARMM regular elections, which it did by enacting RA No. 9333 and
thereafter, RA No. 10153. Obviously, these subsequent laws RA No. 9333 and RA
No. 10153 cannot be considered amendments to RA No. 9054 as they did not
change or revise any provision in the latter law; they merely filled in a gap in RA
No. 9054 or supplemented the law by providing the date of the subsequent regular
elections.

This view that Congress thought it best to leave the determination of the date
of succeeding ARMM elections to legislative discretion finds support in ARMMs
recent history.

To recall, RA No. 10153 is not the first law passed that rescheduled the
ARMM elections. The First Organic Act RA No. 6734 not only did not fix the date
of the subsequent elections; it did not even fix the specific date of the first ARMM
elections,[24] leaving the date to be fixed in another legislative enactment.
Consequently, RA No. 7647,[25] RA No. 8176,[26] RA No. 8746,[27] RA No.
8753,[28] and RA No. 9012[29] were all enacted by Congress to fix the dates of the
ARMM elections. Since these laws did not change or modify any part or provision
of RA No. 6734, they were not amendments to this latter law. Consequently, there
was no need to submit them to any plebiscite for ratification.

The Second Organic Act RA No. 9054 which lapsed into law on March 31,
2001, provided that the first elections would be held on the second Monday of
September 2001. Thereafter, Congress passed RA No. 9140[30] to reset the date of
the ARMM elections. Significantly, while RA No. 9140 also scheduled the
plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new
date of the ARMM regional elections fixed in RA No. 9140 was not among the
provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter,
Congress passed RA No. 9333,[31] which further reset the date of the ARMM
regional elections. Again, this law was not ratified through a plebiscite.
 From these legislative actions, we see the clear intention of Congress to treat
the laws which fix the date of the subsequent ARMM elections as separate and
distinct from the Organic Acts. Congress only acted consistently with this intent
when it passed RA No. 10153 without requiring compliance with the amendment
prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054.

III. B. Supermajority voting requirement unconstitutional for giving RA No. 9054

the character of an irrepealable law

Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA
No. 9054, the supermajority (2/3) voting requirement required under Section 1,
Article XVII of RA No. 9054[32] has to be struck down for giving RA No. 9054 the
character of an irrepealable law by requiring more than what the Constitution
demands.

Section 16(2), Article VI of the Constitution provides that a majority of each

House shall constitute a quorum to do business. In other words, as long as majority
of the members of the House of Representatives or the Senate are present, these
bodies have the quorum needed to conduct business and hold session. Within a
quorum, a vote of majority is generally sufficient to enact laws or approve acts.

In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no less

than two-thirds (2/3) of the Members of the House of Representatives and of the
Senate, voting separately, in order to effectively amend RA No. 9054. Clearly, this
2/3 voting requirement is higher than what the Constitution requires for the passage
of bills, and served to restrain the plenary powers of Congress to amend, revise or
repeal the laws it had passed. The Courts pronouncement in City of Davao v.
GSIS[33] on this subject best explains the basis and reason for the unconstitutionality:

Moreover, it would be noxious anathema to democratic principles for a

legislative body to have the ability to bind the actions of future legislative body,
considering that both assemblies are regarded with equal footing, exercising as they
do the same plenary powers. Perpetual infallibility is not one of the attributes
desired in a legislative body, and a legislature which attempts to forestall future
amendments or repeals of its enactments labors under delusions of omniscience.

xxx
 A state legislature has a plenary law-making power over all subjects, whether
pertaining to persons or things, within its territorial jurisdiction, either to introduce
new laws or repeal the old, unless prohibited expressly or by implication by the federal
constitution or limited or restrained by its own. It cannot bind itself or its successors
by enacting irrepealable laws except when so restrained. Every legislative body may
modify or abolish the acts passed by itself or its predecessors. This power of repeal
may be exercised at the same session at which the original act was passed; and even
while a bill is in its progress and before it becomes a law. This legislature cannot
bind a future legislature to a particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures or the effect of subsequent
legislation upon existing statutes.[34] (Emphasis ours.)

Thus, while a supermajority is not a total ban against a repeal, it is a limitation

in excess of what the Constitution requires on the passage of bills and is
constitutionally obnoxious because it significantly constricts the future legislators
room for action and flexibility.
III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the plebiscite
requirement found in Section 18, Article X of the Constitution

The requirements of RA No. 9054 not only required an unwarranted

supermajority, but enlarged as well the plebiscite requirement, as embodied in its
Section 3, Article XVII of that Act. As we did on the supermajority requirement, we
find the enlargement of the plebiscite requirement required under Section 18, Article
X of the Constitution to be excessive to point of absurdity and, hence, a violation of
the Constitution.

Section 18, Article X of the Constitution states that the plebiscite is required
only for the creation of autonomous regions and for determining which provinces,
cities and geographic areas will be included in the autonomous regions. While the
settled rule is that amendments to the Organic Act have to comply with the plebiscite
requirement in order to become effective,[35] questions on the extent of the matters
requiring ratification may unavoidably arise because of the seemingly general terms
of the Constitution and the obvious absurdity that would result if a plebiscite were
to be required for every statutory amendment.

Section 18, Article X of the Constitution plainly states that The creation of the
autonomous region shall be effective when approved by the majority of the votes
case by the constituent units in a plebiscite called for the purpose. With these
wordings as standard, we interpret the requirement to mean that only amendments
to, or revisions of, the Organic Act constitutionally-essential to the creation
of autonomous regions i.e., those aspects specifically mentioned in the Constitution
which Congress must provide for in the Organic Act require ratification through a
plebiscite. These amendments to the Organic Act are those that relate to: (a) the basic
structure of the regional government; (b) the regions judicial system, i.e.,
the specialcourts with personal, family, and property law jurisdiction; and, (c) the
grant and extent of the legislative powers constitutionally conceded to the regional
government under Section 20, Article X of the Constitution.[36]

The date of the ARMM elections does not fall under any of the matters that
the Constitution specifically mandated Congress to provide for in the Organic Act.
Therefore, even assuming that the supermajority votes and the plebiscite
requirements are valid, any change in the date of elections cannot be construed as a
substantial amendment of the Organic Act that would require compliance with these
requirements.

IV. The synchronization issue

As we discussed above, synchronization of national and local elections is a

constitutional mandate that Congress must provide for and this synchronization must
include the ARMM elections. On this point, an existing law in fact already exists
RA No. 7166 as the forerunner of the current RA No. 10153. RA No. 7166 already
provides for the synchronization of local elections with the national and
congressional elections. Thus, what RA No. 10153 provides is an old matter for local
governments (with the exception of barangay and Sanggunian Kabataan elections
where the terms are not constitutionally provided) and is technically a reiteration of
what is already reflected in the law, given that regional elections are in reality local
elections by express constitutional recognition.[37]

To achieve synchronization, Congress necessarily has to reconcile the

schedule of the ARMMs regular elections (which should have been held in August
2011 based on RA No. 9333) with the fixed schedule of the national and local
elections (fixed by RA No. 7166 to be held in May 2013).

During the oral arguments, the Court identified the three options open to
Congress in order to resolve this problem. These options are: (1) to allow the elective
officials in the ARMM to remain in office in a hold over capacity, pursuant to
Section 7(1), Article VII of RA No. 9054, until those elected in the synchronized
elections assume office;[38] (2) to hold special elections in the ARMM, with the terms
of those elected to expire when those elected in the synchronized elections assume
office; or (3) to authorize the President to appoint OICs, pursuant to Section 3 of RA
No. 10153, also until those elected in the synchronized elections assume office.

As will be abundantly clear in the discussion below, Congress, in choosing to

grant the President the power to appoint OICs, chose the correct option and passed
RA No. 10153 as a completely valid law.

V. The Constitutionality of RA No. 10153

A. Basic Underlying Premises

To fully appreciate the available options, certain underlying material premises

must be fully understood. The first is the extent of the powers of Congress to
legislate; the second is the constitutional mandate for the synchronization of
elections; and the third is on the concept of autonomy as recognized and established
under the 1987 Constitution.

The grant of legislative power to Congress is broad, general and

comprehensive.[39] The legislative body possesses plenary power for all purposes of
civil government.[40] Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere.[41] Except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to all matters of general concern
or common interest.[42]

The constitutional limitations on legislative power are either express or

implied. The express limitations are generally provided in some provisions of the
Declaration of Principles and State Policies (Article 2) and in the provisions Bill of
Rights (Article 3). Other constitutional provisions (such as the initiative and
referendum clause of Article 6, Sections 1 and 32, and the autonomy provisions of
Article X) provide their own express limitations. The implied limitations are found
in the evident purpose which was in view and the circumstances and historical events
which led to the enactment of the particular provision as a part of organic law.[43]

The constitutional provisions on autonomy specifically, Sections 15 to 21 of

Article X of the Constitution constitute express limitations on legislative power as
they define autonomy, its requirements and its parameters, thus limiting what is
otherwise the unlimited power of Congress to legislate on the governance of the
autonomous region.

Of particular relevance to the issues of the present case are the limitations
posed by the prescribed basic structure of government i.e., that the government must
have an executive department and a legislative assembly, both of which must be
elective and representative of the constituent political units; national government,
too, must not encroach on the legislative powers granted under Section 20, Article
X. Conversely and as expressly reflected in Section 17, Article X, all powers and
functions not granted by this Constitution or by law to the autonomous regions shall
be vested in the National Government.
The totality of Sections 15 to 21 of Article X should likewise serve as a
standard that Congress must observe in dealing with legislation touching on the
affairs of the autonomous regions. The terms of these sections leave no doubt on
what the Constitution intends the idea of self-rule or self-government, in particular,
the power to legislate on a wide array of social, economic and administrative
matters. But equally clear under these provisions are the permeating principles of
national sovereignty and the territorial integrity of the Republic, as expressed in the
above-quoted Section 17 and in Section 15.[44] In other words, the Constitution and
the supporting jurisprudence, as they now stand, reject the notion of imperium et
imperio[45] in the relationship between the national and the regional governments.

In relation with synchronization, both autonomy and the synchronization of

national and local elections are recognized and established constitutional mandates,
with one being as compelling as the other. If their compelling force differs at all, the
difference is in their coverage; synchronization operates on and affects the whole
country, while regional autonomy as the term suggests directly carries a narrower
regional effect although its national effect cannot be discounted.

These underlying basic concepts characterize the powers and limitations of

Congress when it acted on RA No. 10153. To succinctly describe the legal situation
that faced Congress then, its decision to synchronize the regional elections with the
national, congressional and all other local elections (save
for barangay and sangguniang kabataan elections) left it with the problem of how
to provide the ARMM with governance in the intervening period between the
expiration of the term of those elected in August 2008 and the assumption to office
twenty-one (21) months away of those who will win in the synchronized elections
on May 13, 2013.

The problem, in other words, was for interim measures for this period,
consistent with the terms of the Constitution and its established supporting
jurisprudence, and with the respect due to the concept of autonomy. Interim
measures, to be sure, is not a strange phenomenon in the Philippine legal landscape.
The Constitutions Transitory Provisions themselves collectively provide measures
for transition from the old constitution to the new[46] and for the introduction of new
concepts.[47] As previously mentioned, the adjustment of elective terms and of
elections towards the goal of synchronization first transpired under the Transitory
Provisions. The adjustments, however, failed to look far enough or deeply enough,
particularly into the problems that synchronizing regional autonomous elections
would entail; thus, the present problem is with us today.

The creation of local government units also represents instances when interim
measures are required. In the creation of Quezon del Sur[48] and Dinagat
Islands,[49] the creating statutes authorized the President to appoint an interim
governor, vice-governor and members of the sangguniang panlalawigan although
these positions are essentially elective in character; the appointive officials were to
serve until a new set of provincial officials shall have been elected and
qualified.[50] A similar authority to appoint is provided in the transition of a local
government from a sub-province to a province.[51]

In all these, the need for interim measures is dictated by necessity; out-of-the-
way arrangements and approaches were adopted or used in order to adjust to the goal
or objective in sight in a manner that does not do violence to the Constitution and to
reasonably accepted norms. Under these limitations, the choice of measures was a
question of wisdom left to congressional discretion.

To return to the underlying basic concepts, these concepts shall serve as the
guideposts and markers in our discussion of the options available to Congress to
address the problems brought about by the synchronization of the ARMM elections,
properly understood as interim measures that Congress had to provide. The proper
understanding of the options as interim measures assume prime materiality as it is
under these terms that the passage of RA No. 10153 should be measured,
i.e., given the constitutional objective of synchronization that cannot legally be
faulted, did Congress gravely abuse its discretion or violate the Constitution when
it addressed through RA No. 10153 the concomitant problems that the adjustment
of elections necessarily brought with it?

B. Holdover Option is Unconstitutional

We rule out the first option holdover for those who were elected in executive
and legislative positions in the ARMM during the 2008-2011 term as an option that
Congress could have chosen because a holdover violates Section 8, Article X of the
Constitution. This provision states:

Section 8. The term of office of elective local officials, except barangay

officials, which shall be determined by law, shall be three years and no such
official shall serve for more than three consecutive terms. [emphases ours]

Since elective ARMM officials are local officials, they are covered and
bound by the three-year term limit prescribed by the Constitution; they cannot
extend their term through a holdover. As this Court put in Osmea v. COMELEC:[52]

It is not competent for the legislature to extend the term of officers by

providing that they shall hold over until their successors are elected and qualified
where the constitution has in effect or by clear implication prescribed the term and
when the Constitution fixes the day on which the official term shall begin, there is
no legislative authority to continue the office beyond that period, even though the
successors fail to qualify within the time.

In American Jurisprudence it has been stated as follows:

It has been broadly stated that the legislature cannot, by an

act postponing the election to fill an office the term of which is
limited by the Constitution, extend the term of the incumbent
beyond the period as limited by the Constitution. [Emphasis
ours.]

Independently of the Osmea ruling, the primacy of the Constitution as the

supreme law of the land dictates that where the Constitution has itself made a
determination or given its mandate, then the matters so determined or mandated
should be respected until the Constitution itself is changed by amendment or repeal
through the applicable constitutional process. A necessary corollary is that none of
the three branches of government can deviate from the constitutional mandate except
only as the Constitution itself may allow.[53] If at all, Congress may only pass
legislation filing in details to fully operationalize the constitutional command or to
implement it by legislation if it is non-self-executing; this Court, on the other hand,
may only interpret the mandate if an interpretation is appropriate and called for.[54]

In the case of the terms of local officials, their term has been fixed clearly and
unequivocally, allowing no room for any implementing legislation with respect to
the fixed term itself and no vagueness that would allow an interpretation from this
Court. Thus, the term of three years for local officials should stay at three (3) years
as fixed by the Constitution and cannot be extended by holdover by Congress.

If it will be claimed that the holdover period is effectively another term mandated
by Congress, the net result is for Congress to create a new term and to appoint the
occupant for the new term. This view like the extension of the elective term is
constitutionally infirm because Congress cannot do indirectly what it cannot do
directly, i.e., to act in a way that would effectively extend the term of the incumbents.
Indeed, if acts that cannot be legally done directly can be done indirectly, then all
laws would be illusory.[55] Congress cannot also create a new term and effectively
appoint the occupant of the position for the new term. This is effectively an act of
appointment by Congress and an unconstitutional intrusion into the constitutional
appointment power of the President.[56] Hence, holdover whichever way it is viewed
is a constitutionally infirm option that Congress could not have undertaken.

Jurisprudence, of course, is not without examples of cases where the question of

holdover was brought before, and given the imprimatur of approval by, this Court.
The present case though differs significantly from past cases with contrary rulings,
particularly from Sambarani v. COMELEC,[57] Adap v.
[58] [59]
Comelec, and Montesclaros v. Comelec, where the Court ruled that the elective
officials could hold on to their positions in a hold over capacity.

All these past cases refer to elective barangay or sangguniang

kabataan officials whose terms of office are not explicitly provided for
in the Constitution; the present case, on the other hand, refers to local elective
officials the ARMM Governor, the ARMM Vice-Governor, and the members of the
Regional Legislative Assembly whose terms fall within the three-year term limit set
by Section 8, Article X of the Constitution. Because of their constitutionally limited
term, Congress cannot legislate an extension beyond the term for which they were
originally elected.

Even assuming that holdover is constitutionally permissible, and there had

been statutory basis for it (namely Section 7, Article VII of RA No. 9054) in the
past,[60] we have to remember that the rule of holdover can only apply as an
available option where no express or implied legislative intent to the contrary
exists; it cannot apply where such contrary intent is evident.[61]

Congress, in passing RA No. 10153, made it explicitly clear that it had the
intention of suppressing the holdover rule that prevailed under RA No. 9054 by
completely removing this provision. The deletion is a policy decision that is wholly
within the discretion of Congress to make in the exercise of its plenary legislative
powers; this Court cannot pass upon questions of wisdom, justice or expediency of
legislation,[62] except where an attendant unconstitutionality or grave abuse of
discretion results.

C. The COMELEC has no authority to order special elections

Another option proposed by the petitioner in G.R. No. 197282 is for this Court
to compel COMELEC to immediately conduct special elections pursuant to Section
5 and 6 of Batas Pambansa Bilang (BP) 881.
The power to fix the date of elections is essentially legislative in nature, as
evident from, and exemplified by, the following provisions of the Constitution:

Section 8, Article VI, applicable to the legislature, provides:

Section 8. Unless otherwise provided by law, the regular election of the

Senators and the Members of the House of Representatives shall be held on the
second Monday of May. [Emphasis ours]

Section 4(3), Article VII, with the same tenor but applicable solely to the President
and Vice-President, states:
xxxx

Section 4. xxx Unless otherwise provided by law, the regular election for
President and Vice-President shall be held on the second Monday of May.
[Emphasis ours]
while Section 3, Article X, on local government, provides:

Section 3. The Congress shall enact a local government code which shall
provide for xxx the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials[.] [Emphases ours]

These provisions support the conclusion that no elections may be held on any
other date for the positions of President, Vice President, Members of Congress and
local officials, except when so provided by another Act of Congress, or upon orders
of a body or officer to whom Congress may have delegated either the power or the
authority to ascertain or fill in the details in the execution of that power.[63]

Notably, Congress has acted on the ARMM elections by postponing the

scheduled August 2011 elections and setting another date May 13, 2011 for regional
elections synchronized with the presidential, congressional and other local
elections. By so doing, Congress itself has made a policy decision in the exercise of
its legislative wisdom that it shall not call special elections as an adjustment
measure in synchronizing the ARMM elections with the other elections.

After Congress has so acted, neither the Executive nor the Judiciary can act to
the contrary by ordering special elections instead at the call of the COMELEC. This
Court, particularly, cannot make this call without thereby supplanting the legislative
decision and effectively legislating. To be sure, the Court is not without the power
to declare an act of Congress null and void for being unconstitutional or for having
been exercised in grave abuse of discretion.[64] But our power rests on very narrow
ground and is merely to annul a contravening act of Congress; it is not to supplant
the decision of Congress nor to mandate what Congress itself should have done in
the exercise of its legislative powers. Thus, contrary to what the petition in G.R. No.
197282 urges, we cannot compel COMELEC to call for special elections.

Furthermore, we have to bear in mind that the constitutional power of the

COMELEC, in contrast with the power of Congress to call for, and to set the date
of, elections, is limited to enforcing and administering all laws and regulations
relative to the conduct of an election.[65] Statutorily, COMELEC has no power to call
for the holding of special elections unless pursuant to a specific statutory grant. True,
Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with the power to
postpone elections to another date. However, this power is limited to, and can only
be exercised within, the specific terms and circumstances provided for in the law.
We quote:
Section 5. Postponement of election. - When for any serious cause
such as violence, terrorism, loss or destruction of election
paraphernalia or records, force majeure, and other analogous
causes of such a nature that the holding of a free, orderly and honest
election should become impossible in any political subdivision, the
Commission, motu proprio or upon a verified petition by any interested
party, and after due notice and hearing, whereby all interested parties are
afforded equal opportunity to be heard, shall postpone the election
therein to a date which should be reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but
not later than thirty days after the cessation of the cause for such
postponement or suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force

majeure, violence, terrorism, fraud, or other analogous causes the election in
any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by any interested
party and after due notice and hearing, call for the holding or continuation of the
election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted
in a failure to elect but not later than thirty days after the cessation of the cause of
such postponement or suspension of the election or failure to elect. [Emphasis ours]

A close reading of Section 5 of BP 881 reveals that it is meant to address

instances where elections have already been scheduled to take place but have to
be postponed because of (a) violence, (b) terrorism, (c) loss or destruction of
election paraphernalia or records, (d) force majeure, and (e) other analogous
causes of such a nature that the holding of a free, orderly and honest election should
become impossible in any political subdivision. Under the principle of ejusdem
generis, the term analogous causes will be restricted to
those unforeseen or unexpected events that prevent the holding of the scheduled
elections. These analogous causes are further defined by the phrase of such nature
that the holding of a free, orderly and honest election should become impossible.
 Similarly, Section 6 of BP 881 applies only to those situations where elections
have already been scheduled but do not take place because of (a) force majeure,
(b) violence, (c) terrorism, (d) fraud, or (e) other analogous causes the election
in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect. As in
Section 5 of BP 881, Section 6 addresses instances where the elections do not occur
or had to be suspended because of unexpected and unforeseen circumstances.

In the present case, the postponement of the ARMM elections is by law i.e.,
by congressional policy and is pursuant to the constitutional mandate of
synchronization of national and local elections. By no stretch of the imagination
can these reasons be given the same character as the circumstances contemplated by
Section 5 or Section 6 of BP 881, which all pertain to extralegal causes that obstruct
the holding of elections. Courts, to be sure, cannot enlarge the scope of a statute
under the guise of interpretation, nor include situations not provided nor intended by
the lawmakers.[66] Clearly, neither Section 5 nor Section 6 of BP 881 can apply to
the present case and this Court has absolutely no legal basis to compel the
COMELEC to hold special elections.

D. The Court has no power to shorten the terms of elective officials

Even assuming that it is legally permissible for the Court to compel the
COMELEC to hold special elections, no legal basis likewise exists to rule that the
newly elected ARMM officials shall hold office only until the ARMM officials
elected in the synchronized elections shall have assumed office.
In the first place, the Court is not empowered to adjust the terms of elective
officials. Based on the Constitution, the power to fix the term of office of elective
officials, which can be exercised only in the case of barangay officials,[67] is
specifically given to Congress. Even Congress itself may be denied such power, as
shown when the Constitution shortened the terms of twelve Senators obtaining the
least votes,[68] and extended the terms of the President and the Vice-President[69] in
order to synchronize elections; Congress was not granted this same power. The
settled rule is that terms fixed by the Constitution cannot be changed by mere
statute.[70] More particularly, not even Congress and certainly not this Court, has the
authority to fix the terms of elective local officials in the ARMM for less, or more,
than the constitutionally mandated three years[71] as this tinkering would directly
contravene Section 8, Article X of the Constitution as we ruled in Osmena.

Thus, in the same way that the term of elective ARMM officials cannot be
extended through a holdover, the term cannot be shortened by putting an
expiration date earlier than the three (3) years that the Constitution itself
commands. This is what will happen a term of less than two years if a call for
special elections shall prevail. In sum, while synchronization is achieved, the result
is at the cost of a violation of an express provision of the Constitution.

Neither we nor Congress can opt to shorten the tenure of those officials to be
elected in the ARMM elections instead of acting on their term (where the term means
the time during which the officer may claim to hold office as of right and fixes the
interval after which the several incumbents shall succeed one another, while the
tenure represents the term during which the incumbent actually holds the
office).[72] As with the fixing of the elective term, neither Congress nor the Court has
any legal basis to shorten the tenure of elective ARMM officials. They would
commit an unconstitutional act and gravely abuse their discretion if they do so.

E. The Presidents Power to Appoint OICs

The above considerations leave only Congress chosen interim measure RA

No. 10153 and the appointment by the President of OICs to govern the ARMM
during the pre-synchronization period pursuant to Sections 3, 4 and 5 of this law as
the only measure that Congress can make. This choice itself, however, should be
examined for any attendant constitutional infirmity.

At the outset, the power to appoint is essentially executive in nature, and the
limitations on or qualifications to the exercise of this power should be strictly
construed; these limitations or qualifications must be clearly stated in order to be
recognized.[73] The appointing power is embodied in Section 16, Article VII of the
Constitution, which states:

Section 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He
 shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of departments, agencies, commissions, or
boards. [emphasis ours]

This provision classifies into four groups the officers that the President can
appoint. These are:

First, the heads of the executive departments; ambassadors; other public

ministers and consuls; officers of the Armed Forces of the Philippines, from the rank
of colonel or naval captain; and other officers whose appointments are vested in the
President in this Constitution;

Second, all other officers of the government whose appointments are not
otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; and

Fourth, officers lower in rank whose appointments the Congress may by law
vest in the President alone.[74]

Since the Presidents authority to appoint OICs emanates from RA No. 10153,
it falls under the third group of officials that the President can appoint pursuant to
Section 16, Article VII of the Constitution. Thus, the assailed law facially rests on
clear constitutional basis.

If at all, the gravest challenge posed by the petitions to the authority to appoint
OICs under Section 3 of RA No. 10153 is the assertion that the Constitution requires
that the ARMM executive and legislative officials to be elective and representative
of the constituent political units. This requirement indeed is an express limitation
whose non-observance in the assailed law leaves the appointment of OICs
constitutionally defective.

After fully examining the issue, we hold that this alleged constitutional
problem is more apparent than real and becomes very real only if RA No. 10153
were to be mistakenly read as a law that changes the elective and representative
character of ARMM positions. RA No. 10153, however, does not in any way amend
what the organic law of the ARMM (RA No. 9054) sets outs in terms of structure of
governance. What RA No. 10153 in fact only does is to appoint officers-in-charge
for the Office of the Regional Governor, Regional Vice Governor and Members of
the Regional Legislative Assembly who shall perform the functions pertaining to the
said offices until the officials duly elected in the May 2013 elections shall have
qualified and assumed office. This power is far different from appointing elective
ARMM officials for the abbreviated term ending on the assumption to office of the
officials elected in the May 2013 elections.

As we have already established in our discussion of the supermajority and

plebiscite requirements, the legal reality is that RA No. 10153 did not amend RA
No. 9054. RA No. 10153, in fact, provides only for synchronization of elections
and for the interim measures that must in the meanwhile prevail. And this is how
RA No. 10153 should be read in the manner it was written and based on its
unambiguous facial terms.[75] Aside from its order for synchronization, it is purely
and simply an interim measure responding to the adjustments that the
synchronization requires.

Thus, the appropriate question to ask is whether the interim measure is an

unreasonable move for Congress to adopt, given the legal situation that the
synchronization unavoidably brought with it. In more concrete terms and based on
the above considerations, given the plain unconstitutionality of providing for a
holdover and the unavailability of constitutional possibilities for lengthening or
shortening the term of the elected ARMM officials, is the choice of the Presidents
power to appoint for a fixed and specific period as an interim measure, and as
allowed under Section 16, Article VII of the Constitution an unconstitutional or
unreasonable choice for Congress to make?

Admittedly, the grant of the power to the President under other

situations or where the power of appointment would extend beyond the adjustment
period for synchronization would be to foster a government that is not democratic
and republican. For then, the peoples right to choose the leaders to govern them may
be said to be systemically withdrawn to the point of fostering an undemocratic
regime. This is the grant that would frontally breach the elective and representative
governance requirement of Section 18, Article X of the Constitution.
 But this conclusion would not be true under the very limited circumstances
contemplated in RA No. 10153 where the period is fixed and, more importantly, the
terms of governance both under Section 18, Article X of the Constitution and RA
No. 9054 will not systemically be touched nor affected at all. To repeat what has
previously been said, RA No. 9054 will govern unchanged and continuously, with
full effect in accordance with the Constitution, save only for the interim and
temporary measures that synchronization of elections requires.

Viewed from another perspective, synchronization will temporarily disrupt

the election process in a local community, the ARMM, as well as the communitys
choice of leaders, but this will take place under a situation of necessity and as an
interim measure in the manner that interim measures have been adopted and used in
the creation of local government units[76] and the adjustments of sub-provinces to the
status of provinces.[77] These measures, too, are used in light of the wider national
demand for the synchronization of elections (considered vis--vis the regional
interests involved). The adoption of these measures, in other words, is no different
from the exercise by Congress of the inherent police power of the State, where one
of the essential tests is the reasonableness of the interim measure taken in light of
the given circumstances.

Furthermore, the representative character of the chosen leaders need not

necessarily be affected by the appointment of OICs as this requirement is really a
function of the appointment process; only the elective aspect shall be supplanted by
the appointment of OICs. In this regard, RA No. 10153 significantly seeks to address
concerns arising from the appointments by providing, under Sections 3, 4 and 5 of
the assailed law, concrete terms in the Appointment of OIC, the Manner and
Procedure of Appointing OICs, and their Qualifications.

Based on these considerations, we hold that RA No. 10153 viewed in its

proper context is a law that is not violative of the Constitution (specifically, its
autonomy provisions), and one that is reasonable as well under the circumstances.

VI. Other Constitutional Concerns

Outside of the above concerns, it has been argued during the oral arguments
that upholding the constitutionality of RA No. 10153 would set a dangerous
precedent of giving the President the power to cancel elections anywhere in the
country, thus allowing him to replace elective officials with OICs.
 This claim apparently misunderstands that an across-the-board cancellation of
elections is a matter for Congress, not for the President, to address. It is a power that
falls within the powers of Congress in the exercise of its legislative powers. Even
Congress, as discussed above, is limited in what it can legislatively undertake with
respect to elections.

If RA No. 10153 cancelled the regular August 2011 elections, it was for a very
specific and limited purpose the synchronization of elections. It was a temporary
means to a lasting end the synchronization of elections. Thus, RA No. 10153 and the
support that the Court gives this legislation are likewise clear and specific, and
cannot be transferred or applied to any other cause for the cancellation of elections.
Any other localized cancellation of elections and call for special elections can occur
only in accordance with the power already delegated by Congress to the COMELEC,
as above discussed.

Given that the incumbent ARMM elective officials cannot continue to act in
a holdover capacity upon the expiration of their terms, and this Court cannot compel
the COMELEC to conduct special elections, the Court now has to deal with the
dilemma of a vacuum in governance in the ARMM.

To emphasize the dire situation a vacuum brings, it should not be forgotten

that a period of 21 months or close to 2 years intervenes from the time that the
incumbent ARMM elective officials terms expired and the time the new ARMM
elective officials begin their terms in 2013. As the lessons of our Mindanao history
past and current teach us, many developments, some of them critical and adverse,
can transpire in the countrys Muslim areas in this span of time in the way they
transpired in the past.[78] Thus, it would be reckless to assume that the presence of
an acting ARMM Governor, an acting Vice-Governor and a fully functioning
Regional Legislative Assembly can be done away with even temporarily. To our
mind, the appointment of OICs under the present circumstances is an absolute
necessity.

Significantly, the grant to the President of the power to appoint OICs to

undertake the functions of the elective members of the Regional Legislative
Assembly is neither novel nor innovative. We hark back to our earlier
pronouncement in Menzon v. Petilla, etc., et al.:[79]

It may be noted that under Commonwealth Act No. 588 and the Revised
Administrative Code of 1987, the President is empowered to make temporary
 appointments in certain public offices, in case of any vacancy that may
occur. Albeit both laws deal only with the filling of vacancies in appointive
positions. However, in the absence of any contrary provision in the Local
Government Code and in the best interest of public service, we see no cogent
reason why the procedure thus outlined by the two laws may not be similarly
applied in the present case. The respondents contend that the provincial board is
the correct appointing power. This argument has no merit. As between the President
who has supervision over local governments as provided by law and the members
of the board who are junior to the vice-governor, we have no problem ruling in
favor of the President, until the law provides otherwise.
A vacancy creates an anomalous situation and finds no approbation under
the law for it deprives the constituents of their right of representation and
governance in their own local government.

In a republican form of government, the majority rules through their chosen

few, and if one of them is incapacitated or absent, etc., the management of
governmental affairs is, to that extent, may be hampered. Necessarily, there will
be a consequent delay in the delivery of basic services to the people of Leyte if
the Governor or the Vice-Governor is missing.[80](Emphasis ours.)

As in Menzon, leaving the positions of ARMM Governor, Vice Governor, and

members of the Regional Legislative Assembly vacant for 21 months, or almost 2
years, would clearly cause disruptions and delays in the delivery of basic services to
the people, in the proper management of the affairs of the regional government, and
in responding to critical developments that may arise. When viewed in this context,
allowing the President in the exercise of his constitutionally-recognized appointment
power to appoint OICs is, in our judgment, a reasonable measure to take.

B. Autonomy in the ARMM

It is further argued that while synchronization may be constitutionally

mandated, it cannot be used to defeat or to impede the autonomy that the Constitution
granted to the ARMM. Phrased in this manner, one would presume that there exists
a conflict between two recognized Constitutional mandates synchronization and
regional autonomy such that it is necessary to choose one over the other.

We find this to be an erroneous approach that violates a basic principle in

constitutional construction ut magis valeat quam pereat: that the Constitution is to
be interpreted as a whole,[81] and one mandate should not be given importance over
the other except where the primacy of one over the other is clear. [82] We refer to
the Courts declaration in Ang-Angco v. Castillo, et al.,[83] thus:
 A provision of the constitution should not be construed in isolation from the
rest. Rather, the constitution must be interpreted as a whole, and
apparently, conflicting provisions should be reconciled and harmonized in a
manner that may give to all of them full force and effect. [Emphasis supplied.]

Synchronization is an interest that is as constitutionally entrenched as regional

autonomy. They are interests that this Court should reconcile and give effect to, in
the way that Congress did in RA No. 10153 which provides the measure to transit to
synchronized regional elections with the least disturbance on the interests that must
be respected. Particularly, regional autonomy will be respected instead of being
sidelined, as the law does not in any way alter, change or modify its governing
features, except in a very temporary manner and only as necessitated by the attendant
circumstances.

Elsewhere, it has also been argued that the ARMM elections should not be
synchronized with the national and local elections in order to maintain the autonomy
of the ARMM and insulate its own electoral processes from the rough and tumble of
nationwide and local elections. This argument leaves us far from convinced of its
merits.

As heretofore mentioned and discussed, while autonomous regions are

granted political autonomy, the framers of the Constitution never equated autonomy
with independence. The ARMM as a regional entity thus continues to operate within
the larger framework of the State and is still subject to the national policies set by
the national government, save only for those specific areas reserved by the
Constitution for regional autonomous determination. As reflected during the
constitutional deliberations of the provisions on autonomous regions:

Mr. Bennagen. xxx We do not see here a complete separation from the
central government, but rather an efficient working relationship between the
autonomous region and the central government. We see this as an effective
partnership, not a separation.

Mr. Romulo. Therefore, complete autonomy is not really thought of as

complete independence.

Mr. Ople. We define it as a measure of self-government within the

larger political framework of the nation.[84] [Emphasis supplied.]

This exchange of course is fully and expressly reflected in the above-quoted Section
17, Article X of the Constitution, and by the express reservation under Section 1 of
the same Article that autonomy shall be within the framework of this Constitution
and the national sovereignty as well as the territorial integrity of the Republic of
the Philippines.

Interestingly, the framers of the Constitution initially proposed to remove

Section 17 of Article X, believing it to be unnecessary in light of the enumeration of
powers granted to autonomous regions in Section 20, Article X of the Constitution.
Upon further reflection, the framers decided to reinstate the provision in order to
make it clear, once and for all, that these are the limits of the powers of the
autonomous government. Those not enumerated are actually to be exercised by
the national government[.][85] Of note is the Courts pronouncement in Pimentel, Jr.
v. Hon. Aguirre[86] which we quote:

Under the Philippine concept of local autonomy, the national government

has not completely relinquished all its powers over local governments, including
autonomous regions. Only administrative powers over local affairs are delegated
to political subdivisions. The purpose of the delegation is to make governance
more directly responsive and effective at the local levels. In turn, economic,
political and social development at the smaller political units are expected to propel
social and economic growth and development. But to enable the country to
develop as a whole, the programs and policies effected locally must be
integrated and coordinated towards a common national goal. Thus, policy-
setting for the entire country still lies in the President and Congress. [Emphasis
ours.]

In other words, the autonomy granted to the ARMM cannot be invoked to

defeat national policies and concerns. Since the synchronization of elections is not
just a regional concern but a national one, the ARMM is subject to it; the regional
autonomy granted to the ARMM cannot be used to exempt the region from having
to act in accordance with a national policy mandated by no less than the Constitution.

Conclusion

Congress acted within its powers and pursuant to a constitutional mandate the
synchronization of national and local elections when it enacted RA No. 10153. This
Court cannot question the manner by which Congress undertook this task; the
Judiciary does not and cannot pass upon questions of wisdom, justice or expediency
of legislation.[87] As judges, we can only interpret and apply the law and, despite our
doubts about its wisdom, cannot repeal or amend it.[88]
 Nor can the Court presume to dictate the means by which Congress should
address what is essentially a legislative problem. It is not within the Courts power to
enlarge or abridge laws; otherwise, the Court will be guilty of usurping the exclusive
prerogative of Congress.[89] The petitioners, in asking this Court to compel
COMELEC to hold special elections despite its lack of authority to do so, are
essentially asking us to venture into the realm of judicial legislation, which is
abhorrent to one of the most basic principles of a republican and democratic
government the separation of powers.

The petitioners allege, too, that we should act because Congress acted with
grave abuse of discretion in enacting RA No. 10153. Grave abuse of discretion is
such capricious and whimsical exercise of judgment that is patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform a duty
enjoined by law or to act at all in contemplation of the law as where the power is
exercised in an arbitrary and despotic manner by reason of passion and hostility.[90]

We find that Congress, in passing RA No. 10153, acted strictly within its
constitutional mandate. Given an array of choices, it acted within due constitutional
bounds and with marked reasonableness in light of the necessary adjustments that
synchronization demands. Congress, therefore, cannot be accused of any evasion of
a positive duty or of a refusal to perform its duty. We thus find no reason to accord
merit to the petitioners claims of grave abuse of discretion.

On the general claim that RA No. 10153 is unconstitutional, we can only

reiterate the established rule that every statute is presumed valid.[91] Congress, thus,
has in its favor the presumption of constitutionality of its acts, and the party
challenging the validity of a statute has the onerous task of rebutting this
presumption.[92] Any reasonable doubt about the validity of the law should be
resolved in favor of its constitutionality.[93] As this Court declared in Garcia v.
Executive Secretary:[94]

The policy of the courts is to avoid ruling on constitutional questions and to

presume that the acts of the political departments are valid in the absence of a clear
and unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers which enjoins upon
each department a becoming respect for the acts of the other departments. The
theory is that as the joint act of Congress and the President of the Philippines,
a law has been carefully studied and determined to be in accordance with the
fundamental law before it was finally enacted.[95] [Emphasis ours.]
 Given the failure of the petitioners to rebut the presumption of
constitutionality in favor of RA No. 10153, we must support and confirm its validity.
WHEREFORE, premises considered, we DISMISS the consolidated
petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the
constitutionality of this law. We likewise LIFT the temporary restraining order we
issued in our Resolution of September 13, 2011. No costs.

SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila
EN BANC

DATU MICHAEL ABAS KIDA, G.R. No. 196271

in his personal capacity, and in
representation of
MAGUINDANAO
FEDERATION OF
AUTONOMOUS IRRIGATORS
ASSOCIATION, INC., HADJI
MUHMINA J. USMAN, JOHN
ANTHONY L. LIM, JAMILON
T. ODIN, ASRIN TIMBOL
JAIYARI, MUJIB M. KALANG,
ALIH AL-SAIDI J. SAPI-E,
KESSAR DAMSIE ABDIL, and
BASSAM ALUH SAUPI,
Petitioners,
- versus -

SENATE OF THE
PHILIPPINES, represented by its
President JUAN PONCE
ENRILE, HOUSE OF
REPRESENTATIVES, thru
SPEAKER FELICIANO
BELMONTE, COMMISSION ON
ELECTIONS, thru its Chairman,
SIXTO BRILLANTES, JR.,
PAQUITO OCHOA, JR., Office
of the President Executive
Secretary, FLORENCIO ABAD,
JR., Secretary of Budget, and
ROBERTO TAN, Treasurer of
the Philippines,
 Respondents.
X----------------------X
BASARI D. MAPUPUNO,
Petitioner, G.R. No. 196305
- versus -

SIXTO BRILLANTES, in his

capacity as Chairman of the
Commission on Elections,
FLORENCIO ABAD, JR. in his
capacity as Secretary of the
Department of Budget and
Management, PAQUITO
OCHOA, JR., in his capacity as
Executive Secretary, JUAN
PONCE ENRILE, in his capacity
as Senate President, and
FELICIANO BELMONTE, in his
capacity as Speaker of the House
of Representatives,
Respondents.
X----------------------
XREP. EDCEL C. LAGMAN,
Petitioner, G.R. No. 197221
- versus -

PAQUITO N. OCHOA, JR., in his

capacity as the Executive
Secretary, and the COMMISSION
ON ELECTIONS,
Respondents.
X----------------------
XALMARIM CENTI TILLAH,
DATU
CASAN CONDING CANA, and G.R. No. 197280
PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN
(PDP-LABAN),
Petitioners,
- versus -
THE COMMISSION ON
ELECTIONS, through its
Chairman, SIXTO
BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary,
HON. FLORENCIO B. ABAD,
JR., in his capacity as Secretary of
the Department of Budget and
Management, and HON.
ROBERTO B. TAN, in his
capacity as Treasurer of the
Philippines,
Respondents.
X----------------------
XATTY. ROMULO B.
MACALINTAL,
Petitioner,
- versus - G.R. No. 197282

COMMISSION ON ELECTIONS
and THE OFFICE OF THE
PRESIDENT, through
EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR.,
Respondents.
X----------------------
XLOUIS BAROK C. BIRAOGO,
Petitioner,
- versus -

THE COMMISSION ON G.R. No. 197392

ELECTIONS and EXECUTIVE
SECRETARY PAQUITO N.
OCHOA, JR.,
Respondents.
X----------------------
X JACINTO V. PARAS,
Petitioner,
 G.R. No. 197454
- versus -
Present:
CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
EXECUTIVE SECRETARY PERALTA,
PAQUITO N. OCHOA, JR., and BERSAMIN,
the COMMISSION ON DEL CASTILLO,*
ELECTIONS, ABAD,
Respondents. VILLARAMA, JR.,
x-----------------------------------------x PEREZ,
MINORITY RIGHTS FORUM, MENDOZA,
PHILIPPINES, INC., SERENO,**
Respondents-Intervenor. REYES, and
PERLAS-BERNABE, JJ.

Promulgated:

February 28, 2012

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

RESOLUTION

BRION, J.:

We resolve: (a) the motion for reconsideration filed by petitioners Datu

Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for reconsideration
filed by petitioner Rep. Edcel Lagman in G.R. No. 197221; (c) the ex abundante ad
cautelam motion for reconsideration filed by petitioner Basari Mapupuno in G.R.
No. 196305; (d) the motion for reconsideration filed by petitioner Atty. Romulo
Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by
petitioners Almarim Centi Tillah, Datu Casan Conding Cana and Partido
Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation and
motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No. 197280; and (g)
the very urgent motion to issue clarificatory resolution that the temporary restraining
order (TRO) is still existing and effective.

These motions assail our Decision dated October 18, 2011, where we upheld
the constitutionality of Republic Act (RA) No. 10153. Pursuant to the constitutional
mandate of synchronization, RA No. 10153 postponed the regional elections in the
Autonomous Region in Muslim Mindanao (ARMM) (which were scheduled to be
held on the second Monday of August 2011) to the second Monday of May 2013
and recognized the Presidents power to appoint officers-in-charge (OICs) to
temporarily assume these positions upon the expiration of the terms of the elected
officials.
The Motions for Reconsideration

The petitioners in G.R. No. 196271 raise the following grounds in support of their
motion:

I. THE HONORABLE COURT ERRED IN CONCLUDING THAT

THE ARMM ELECTIONS ARE LOCAL ELECTIONS,
CONSIDERING THAT THE CONSTITUTION GIVES THE
ARMM A SPECIAL STATUS AND IS SEPARATE AND
DISTINCT FROM ORDINARY LOCAL GOVERNMENT
UNITS.

II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.

III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC

ACT (R.A. 9054) ARE NOT IRREPEALABLE LAWS.

IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT

VIOLATE SECTION 18, ARTICLE X OF THE
CONSTITUTION.

V. BALANCE OF INTERESTS TILT IN FAVOR OF THE

DEMOCRATIC PRINCIPLE[.][1]
The petitioner in G.R. No. 197221 raises similar grounds, arguing that:

I. THE ELECTIVE REGIONAL EXECUTIVE AND

LEGISLATIVE OFFICIALS OF ARMM CANNOT BE
CONSIDERED AS OR EQUATED WITH THE TRADITIONAL
LOCAL GOVERNMENT OFFICIALS IN THE LOCAL
GOVERNMENT UNITS (LGUs) BECAUSE (A) THERE IS NO
EXPLICIT CONSTITUTIONAL PROVISION ON SUCH
PARITY; AND (B) THE ARMM IS MORE SUPERIOR THAN
LGUs IN STRUCTURE, POWERS AND AUTONOMY, AND
CONSEQUENTLY IS A CLASS OF ITS OWN APART FROM
TRADITIONAL LGUs.

II. THE UNMISTAKABLE AND UNEQUIVOCAL

CONSTITUTIONAL MANDATE FOR AN ELECTIVE AND
REPRESENTATIVE EXECUTIVE DEPARTMENT AND
LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY
PRECLUDES THE APPOINTMENT BY THE PRESIDENT OF
OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR
TEMPORARY, FOR THE POSITIONS OF ARMM
GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE
REGIONAL ASSEMBLY.

III. THE PRESIDENTS APPOINTING POWER IS LIMITED TO

APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO
ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS ONLY
VESTED WITH SUPERVISORY POWERS OVER THE ARMM,
THEREBY NEGATING THE AWESOME POWER TO
APPOINT AND REMOVE OICs OCCUPYING ELECTIVE
POSITIONS.

IV. THE CONSTITUTION DOES NOT PROSCRIBE THE

HOLDOVER OF ARMM ELECTED OFFICIALS PENDING
THE ELECTION AND QUALIFICATION OF THEIR
SUCCESSORS.

V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM

ELECTED OFFICIALS WHOSE TERMS OF OFFICE ARE NOT
PROVIDED FOR BY THE CONSTITUTION BUT
PRESCRIBED BY THE ORGANIC ACTS.
VI. THE REQUIREMENT OF A SUPERMAJORITY OF VOTES IN
THE HOUSE OF REPRESENTATIVES AND THE SENATE
FOR THE VALIDITY OF A SUBSTANTIVE AMENDMENT
OR REVISION OF THE ORGANIC ACTS DOES NOT IMPOSE
AN IRREPEALABLE LAW.

VII. THE REQUIREMENT OF A PLEBISCITE FOR THE

EFFECTIVITY OF A SUBSTANTIVE AMENDMENT OR
REVISION OF THE ORGANIC ACTS DOES NOT UNDULY
EXPAND THE PLEBISCITE REQUIREMENT OF THE
CONSTITUTION.

VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH

THE NATIONAL AND LOCAL ELECTIONS IS NOT
MANDATED BY THE CONSTITUTION.

IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND

CONDUCT SPECIAL ELECTIONS IN ARMM, AND THE
ENACTMENT OF AN IMPROVIDENT AND
UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS
CAUSE WARRANTING COMELECS HOLDING OF SPECIAL
ELECTIONS.[2] (italics supplied)

The petitioner in G.R. No. 196305 further asserts that:

I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A

STATUTE, IT IS A CONDITION SINE QUA NON THAT
THERE BE DOUBT OR AMBIGUITY IN ITS LANGUAGE.

THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND

UNAMBIGUOUS: THEY REFER TO THE 1992 ELECTIONS
AND TURN-OVER OF ELECTIVE OFFICIALS.
IN THUS RECOGNIZING A SUPPOSED INTENT OF THE
FRAMERS, AND APPLYING THE SAME TO ELECTIONS 20
YEARS AFTER, THE HONORABLE SUPREME COURT MAY
HAVE VIOLATED THE FOREMOST RULE IN STATUTORY
CONSTRUCTION.
 xxxx

II. THE HONORABLE COURT SHOULD HAVE CONSIDERED

THAT RA 9054, AN ORGANIC ACT, WAS COMPLETE IN
ITSELF. HENCE, RA 10153 SHOULD BE CONSIDERED TO
HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054.

xxxx

III. THE HONORABLE COURT MAY HAVE COMMITTED A

SERIOUS ERROR IN DECLARING THE 2/3 VOTING
REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.

xxxx

IV. THE HONORABLE COURT MAY HAVE COMMITTED A

SERIOUS ERROR IN HOLDING THAT A PLEBISCITE IS NOT
NECESSARY IN AMENDING THE ORGANIC ACT.

xxxx

V. THE HONORABLE COURT COMMITTED A SERIOUS

ERROR IN DECLARING THE HOLD-OVER OF ARMM
ELECTIVE OFFICIALS UNCONSTITUTIONAL.

xxxx

VI. THE HONORABLE COURT COMMITTED A SERIOUS

ERROR IN UPHOLDING THE APPOINTMENT OF OFFICERS-
IN-CHARGE.[3] (italics and underscoring supplied)

The petitioner in G.R. No. 197282 contends that:

A.

ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT

OF OICs FOR THE REGIONAL GOVERNMENT OF THE ARMM IS
NOT UNCONSTITUTIONAL TO BEGIN WITH, SUCH
APPOINTMENT OF OIC REGIONAL OFFICIALS WILL CREATE A
FUNDAMENTAL CHANGE IN THE BASIC STRUCTURE OF THE
REGIONAL GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD
HAVE BEEN SUBMITTED TO A PLEBISCITE IN THE ARMM FOR
APPROVAL BY ITS PEOPLE, WHICH PLEBISCITE REQUIREMENT
CANNOT BE CIRCUMVENTED BY SIMPLY CHARACTERIZING
THE PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF OICs
AS AN INTERIM MEASURE.

B.

THE HONORABLE COURT ERRED IN RULING THAT THE

APPOINTMENT BY THE PRESIDENT OF OICs FOR THE ARMM
REGIONAL GOVERNMENT IS NOT VIOLATIVE OF THE
CONSTITUTION.

C.

THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES

NOT VIOLATE THE CONSTITUTION, AND BEFORE THEIR
SUCCESSORS ARE ELECTED IN EITHER AN ELECTION TO BE
HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE
SAID INCUMBENT ARMM REGIONAL OFFICIALS MAY
VALIDLY CONTINUE FUNCTIONING AS SUCH IN A HOLDOVER
CAPACITY IN ACCORDANCE WITH SECTION 7, ARTICLE VII OF
R.A. NO. 9054.

D.

WITH THE CANCELLATION OF THE AUGUST 2011 ARMM

ELECTIONS, SPECIAL ELECTIONS MUST IMMEDIATELY BE
HELD FOR THE ELECTIVE REGIONAL OFFICIALS OF THE
ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE
ELECTED IN THE MAY 2013 SYNCHRONIZED ELECTIONS.[4]

Finally, the petitioners in G.R. No. 197280 argue that:

a) the Constitutional mandate of synchronization does not apply to the

ARMM elections;
b) RA No. 10153 negates the basic principle of republican democracy
which, by constitutional mandate, guides the governance of the
Republic;

c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has
to comply with the 2/3 vote from the House of Representatives and the
Senate, voting separately, and be ratified in a plebiscite;

d) if the choice is between elective officials continuing to hold their

offices even after their terms are over and non-elective individuals
getting into the vacant elective positions by appointment as OICs, the
holdover option is the better choice;

e) the President only has the power of supervision over autonomous

regions, which does not include the power to appoint OICs to take the
place of ARMM elective officials; and

f) it would be better to hold the ARMM elections separately from the

national and local elections as this will make it easier for the authorities
to implement election laws.

In essence, the Court is asked to resolve the following questions:

(a) Does the Constitution mandate the synchronization of ARMM regional

elections with national and local elections?

(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153
have to comply with the supermajority vote and plebiscite
requirements?

(c) Is the holdover provision in RA No. 9054 constitutional?

 (d) Does the COMELEC have the power to call for special elections in
ARMM?

(e) Does granting the President the power to appoint OICs violate the
elective and representative nature of ARMM regional legislative and
executive offices?

(f) Does the appointment power granted to the President exceed the
Presidents supervisory powers over autonomous regions?

The Courts Ruling

We deny the motions for lack of merit.

Synchronization mandate includes ARMM elections

The Court was unanimous in holding that the Constitution mandates the
synchronization of national and local elections. While the Constitution does not
expressly instruct Congress to synchronize the national and local elections, the
intention can be inferred from the following provisions of the Transitory Provisions
(Article XVIII) of the Constitution, which state:

Section 1. The first elections of Members of the Congress under this

Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the

President, which may be simultaneous with the election of the Members
of the Congress. It shall include the election of all Members of the city or
municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives, and

the local officials first elected under this Constitution shall serve until
noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining
the highest number of votes shall serve for six years and the remaining
twelve for three years.
xxxx

Section 5. The six-year term of the incumbent President and Vice-

President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.

To fully appreciate the constitutional intent behind these provisions, we refer

to the discussions of the Constitutional Commission:

MR. MAAMBONG. For purposes of identification, I will now read a

section which we will temporarily indicate as Section 14. It reads: THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION
SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE
1992.

This was presented by Commissioner Davide, so may we ask that

Commissioner Davide be recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is

recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only

state that in view of the action taken by the Commission on Section 2
earlier, I am formulating a new proposal. It will read as follows: THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS
CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992.

I proposed this because of the proposed section of the Article on

Transitory Provisions giving a term to the incumbent President and Vice-
President until 1992. Necessarily then, since the term provided by the
Commission for Members of the Lower House and for local officials is
three years, if there will be an election in 1987, the next election for said
officers will be in 1990, and it would be very close to 1992. We could
never attain, subsequently, any synchronization of election which is once
every three years.

So under my proposal we will be able to begin actual synchronization

in 1992, and consequently, we should not have a local election or an
election for Members of the Lower House in 1990 for them to be able to
complete their term of three years each. And if we also stagger the Senate,
upon the first election it will result in an election in 1993 for the Senate
alone, and there will be an election for 12 Senators in 1990. But for the
remaining 12 who will be elected in 1987, if their term is for six years,
their election will be in 1993. So, consequently we will have elections in
1990, in 1992 and in 1993. The later election will be limited to only 12
Senators and of course to the local officials and the Members of the Lower
House. But, definitely, thereafter we can never have an election once
every three years, therefore defeating the very purpose of the Commission
when we adopted the term of six years for the President and another six
years for the Senators with the possibility of staggering with 12 to serve
for six years and 12 for three years insofar as the first Senators are
concerned. And so my proposal is the only way to effect the first
synchronized election which would mean, necessarily, a bonus of two
years to the Members of the Lower House and a bonus of two years
to the local elective officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee

say?

MR. DE CASTRO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is

recognized.

MR. DE CASTRO. Thank you.

During the discussion on the legislative and the synchronization of

elections, I was the one who proposed that in order to synchronize the
elections every three years, which the body approved the first national and
local officials to be elected in 1987 shall continue in office for five years,
the same thing the Honorable Davide is now proposing. That means they
will all serve until 1992, assuming that the term of the President will be
for six years and continue beginning in 1986. So from 1992, we will again
have national, local and presidential elections. This time, in 1992, the
 President shall have a term until 1998 and the first 12 Senators will
serve until 1998, while the next 12 shall serve until 1995, and then the
local officials elected in 1992 will serve until 1995. From then on, we
shall have an election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if

we have to synchronize our elections every three years which was already
approved by the body.

Thank you, Mr. Presiding Officer.

xxxx

MR. GUINGONA. What will be synchronized, therefore, is the election

of the incumbent President and Vice-President in 1992.

MR. DAVIDE. Yes.

MR. GUINGONA. Not the reverse. Will the committee not synchronize
the election of the Senators and local officials with the election of the
President?

MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt
here is on the assumption that the provision of the Transitory Provisions
on the term of the incumbent President and Vice-President would really
end in 1992.

MR. GUINGONA. Yes.

MR. DAVIDE. In other words, there will be a single election in 1992

for all, from the President up to the municipal officials.[5] (emphases
and underscoring ours)

The framers of the Constitution could not have expressed their objective more
clearly there was to be a single election in 1992 for all elective officials from the
President down to the municipal officials. Significantly, the framers were even
willing to temporarily lengthen or shorten the terms of elective officials in order to
meet this objective, highlighting the importance of this constitutional mandate.
 We came to the same conclusion in Osmea v. Commission on
Elections,[6] where we unequivocally stated that the Constitution has mandated
synchronized national and local elections."[7] Despite the length and verbosity of
their motions, the petitioners have failed to convince us to deviate from this
established ruling.

Neither do we find any merit in the petitioners contention that the ARMM
elections are not covered by the constitutional mandate of synchronization because
the ARMM elections were not specifically mentioned in the above-quoted
Transitory Provisions of the Constitution.

That the ARMM elections were not expressly mentioned in the Transitory
Provisions of the Constitution on synchronization cannot be interpreted to mean that
the ARMM elections are not covered by the constitutional mandate of
synchronization. We have to consider that the ARMM, as we now know it, had not
yet been officially organized at the time the Constitution was enacted and ratified by
the people. Keeping in mind that a constitution is not intended to provide merely for
the exigencies of a few years but is to endure through generations for as long as it
remains unaltered by the people as ultimate sovereign, a constitution should be
construed in the light of what actually is a continuing instrument to govern not
only the present but also the unfolding events of the indefinite future. Although the
principles embodied in a constitution remain fixed and unchanged from the time of
its adoption, a constitution must be construed as a dynamic process intended to stand
for a great length of time, to be progressive and not static.[8]

To reiterate, Article X of the Constitution, entitled Local Government, clearly

shows the intention of the Constitution to classify autonomous regions, such as the
ARMM, as local governments. We refer to Section 1 of this Article, which provides:

Section 1. The territorial and political subdivisions of the Republic of

the Philippines are the provinces, cities, municipalities, and barangays.
There shall be autonomous regions in Muslim Mindanao and
the Cordilleras as hereinafter provided.
 The inclusion of autonomous regions in the enumeration of political
subdivisions of the State under the heading Local Government indicates quite clearly
the constitutional intent to consider autonomous regions as one of the forms of local
governments.

That the Constitution mentions only the national government and the local
governments, and does not make a distinction between the local government and the
regional government, is particularly revealing, betraying as it does the intention of
the framers of the Constitution to consider the autonomous regions not as separate
forms of government, but as political units which, while having more powers and
attributes than other local government units, still remain under the category of local
governments. Since autonomous regions are classified as local governments, it
follows that elections held in autonomous regions are also considered as local
elections.

The petitioners further argue that even assuming that the Constitution
mandates the synchronization of elections, the ARMM elections are not covered by
this mandate since they are regional elections and not local elections.

In construing provisions of the Constitution, the first rule is verba legis, that
is, wherever possible, the words used in the Constitution must be given their ordinary
meaning except where technical terms are employed.[9] Applying this principle to
determine the scope of local elections, we refer to the meaning of the word local, as
understood in its ordinary sense. As defined in Websters Third New International
Dictionary Unabridged, local refers to something that primarily serves the needs of
a particular limited district, often a community or minor political
subdivision. Obviously, the ARMM elections, which are held within the confines of
the autonomous region of Muslim Mindanao, fall within this definition.

To be sure, the fact that the ARMM possesses more powers than other
provinces, cities, or municipalities is not enough reason to treat the ARMM regional
elections differently from the other local elections. Ubi lex non distinguit nec nos
distinguire debemus. When the law does not distinguish, we must not distinguish.[10]

RA No. 10153 does not amend RA No. 9054

The petitioners are adamant that the provisions of RA No. 10153, in postponing the
ARMM elections, amend RA No. 9054.
We cannot agree with their position.

A thorough reading of RA No. 9054 reveals that it fixes the schedule for only
the first ARMM elections;[11] it does not provide the date for the succeeding regular
ARMM elections. In providing for the date of the regular ARMM elections, RA No.
9333 and RA No. 10153 clearly do not amend RA No. 9054 since these laws do not
change or revise any provision in RA No. 9054. In fixing the date of the ARMM
elections subsequent to the first election, RA No. 9333 and RA No. 10153 merely
filled the gap left in RA No. 9054.

We reiterate our previous observations:

This view that Congress thought it best to leave the determination

of the date of succeeding ARMM elections to legislative discretion finds
support in ARMMs recent history.

To recall, RA No. 10153 is not the first law passed that rescheduled
the ARMM elections. The First Organic Act RA No. 6734 not only did
not fix the date of the subsequent elections; it did not even fix the specific
date of the first ARMM elections, leaving the date to be fixed in another
legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA No.
8746, RA No. 8753, and RA No. 9012 were all enacted by Congress to fix
the dates of the ARMM elections. Since these laws did not change or
modify any part or provision of RA No. 6734, they were not amendments
to this latter law. Consequently, there was no need to submit them to any
plebiscite for ratification.

The Second Organic Act RA No. 9054 which lapsed into law on
March 31, 2001, provided that the first elections would be held on the
second Monday of September 2001. Thereafter, Congress passed RA No.
9140 to reset the date of the ARMM elections. Significantly, while RA
No. 9140 also scheduled the plebiscite for the ratification of the Second
Organic Act (RA No. 9054), the new date of the ARMM regional
elections fixed in RA No. 9140 was not among the provisions ratified
in the plebiscite held to approve RA No. 9054. Thereafter, Congress
passed RA No. 9333, which further reset the date of the ARMM regional
elections. Again, this law was not ratified through a plebiscite.
 From these legislative actions, we see the clear intention of
Congress to treat the laws which fix the date of the subsequent ARMM
elections as separate and distinct from the Organic Acts. Congress only
acted consistently with this intent when it passed RA No. 10153 without
requiring compliance with the amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA No. 9054.[12] (emphases
supplied)

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna
in RA No. 9054 as regards the date of the subsequent ARMM elections. In his
estimation, it can be implied from the provisions of RA No. 9054 that the succeeding
elections are to be held three years after the date of the first ARMM regional
elections.

We find this an erroneous assertion. Well-settled is the rule that the court may
not, in the guise of interpretation, enlarge the scope of a statute and include therein
situations not provided nor intended by the lawmakers. An omission at the time of
enactment, whether careless or calculated, cannot be judicially supplied however
later wisdom may recommend the inclusion.[13] Courts are not authorized to insert
into the law what they think should be in it or to supply what they think the
legislature would have supplied if its attention had been called to the
omission.[14] Providing for lapses within the law falls within the exclusive domain
of the legislature, and courts, no matter how well-meaning, have no authority to
intrude into this clearly delineated space.

Since RA No. 10153 does not amend, but merely fills in the gap in RA No.
9054, there is no need for RA No. 10153 to comply with the amendment
requirements set forth in Article XVII of RA No. 9054.

Supermajority vote requirement makes RA No. 9054 an irrepealable law

Even assuming that RA No. 10153 amends RA No. 9054, however, we have
already established that the supermajority vote requirement set forth in Section 1,
Article XVII of RA No. 9054[15] is unconstitutional for violating the principle that
Congress cannot pass irrepealable laws.
The power of the legislature to make laws includes the power to amend and repeal
these laws. Where the legislature, by its own act, attempts to limit its power to amend
or repeal laws, the Court has the duty to strike down such act for interfering with the
plenary powers of Congress. As we explained in Duarte v. Dade:[16]

A state legislature has a plenary law-making power over all subjects,

whether pertaining to persons or things, within its territorial jurisdiction,
either to introduce new laws or repeal the old, unless prohibited expressly
or by implication by the federal constitution or limited or restrained by its
own. It cannot bind itself or its successors by enacting irrepealable laws
except when so restrained. Every legislative body may modify or abolish
the acts passed by itself or its predecessors. This power of repeal may be
exercised at the same session at which the original act was passed; and
even while a bill is in its progress and before it becomes a law. This
legislature cannot bind a future legislature to a particular mode of
repeal. It cannot declare in advance the intent of subsequent
legislatures or the effect of subsequent legislation upon existing
statutes. [emphasis ours]

Under our Constitution, each House of Congress has the power to approve
bills by a mere majority vote, provided there is quorum.[17] In requiring all laws
which amend RA No. 9054 to comply with a higher voting requirement than the
Constitution provides (2/3 vote), Congress, which enacted RA No. 9054, clearly
violated the very principle which we sought to establish in Duarte. To reiterate, the
act of one legislature is not binding upon, and cannot tie the hands of, future
legislatures.[18]

We also highlight an important point raised by Justice Antonio T. Carpio in

his dissenting opinion, where he stated: Section 1, Article XVII of RA 9054 erects a
high vote threshold for each House of Congress to surmount, effectively and
unconstitutionally, taking RA 9054 beyond the reach of Congress amendatory
powers. One Congress cannot limit or reduce the plenary legislative power of
succeeding Congresses by requiring a higher vote threshold than what the
Constitution requires to enact, amend or repeal laws. No law can be passed fixing
such a higher vote threshold because Congress has no power, by ordinary
legislation, to amend the Constitution.[19]
Plebiscite requirement in RA No. 9054 overly broad

Similarly, we struck down the petitioners contention that the plebiscite

requirement[20] applies to all amendments of RA No. 9054 for being an unreasonable
enlargement of the plebiscite requirement set forth in the Constitution.

Section 18, Article X of the Constitution provides that [t]he creation of the
autonomous region shall be effective when approved by majority of the votes cast
by the constituent units in a plebiscite called for the purpose[.] We interpreted this
to mean that only amendments to, or revisions of, the Organic Act constitutionally-
essential to the creation of autonomous regions i.e., those aspects specifically
mentioned in the Constitution which Congress must provide for in the Organic
Act[21]require ratification through a plebiscite. We stand by this interpretation.

The petitioners argue that to require all amendments to RA No. 9054 to

comply with the plebiscite requirement is to recognize that sovereignty resides
primarily in the people.

While we agree with the petitioners underlying premise that sovereignty

ultimately resides with the people, we disagree that this legal reality necessitates
compliance with the plebiscite requirement for all amendments to RA No. 9054. For
if we were to go by the petitioners interpretation of Section 18, Article X of the
Constitution that all amendments to the Organic Act have to undergo the plebiscite
requirement before becoming effective, this would lead to impractical and illogical
results hampering the ARMMs progress by impeding Congress from enacting laws
that timely address problems as they arise in the region, as well as weighing down
the ARMM government with the costs that unavoidably follow the holding of a
plebiscite.

Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in
giving the President the power to appoint OICs to take the place of the elective
officials of the ARMM, creates a fundamental change in the basic structure of the
government, and thus requires compliance with the plebiscite requirement embodied
in RA No. 9054.
 Again, we disagree.

The pertinent provision in this regard is Section 3 of RA No. 10153, which

reads:

Section 3. Appointment of Officers-in-Charge. The President shall

appoint officers-in-charge for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said offices
until the officials duly elected in the May 2013 elections shall have
qualified and assumed office.

We cannot see how the above-quoted provision has changed the basic
structure of the ARMM regional government. On the contrary, this provision clearly
preserves the basic structure of the ARMM regional government when it recognizes
the offices of the ARMM regional government and directs the OICs who shall
temporarily assume these offices to perform the functions pertaining to the said
offices.

Unconstitutionality of the holdover provision

The petitioners are one in defending the constitutionality of Section 7(1), Article VII
of RA No. 9054, which allows the regional officials to remain in their positions in a
holdover capacity. The petitioners essentially argue that the ARMM regional
officials should be allowed to remain in their respective positions until the May 2013
elections since there is no specific provision in the Constitution which prohibits
regional elective officials from performing their duties in a holdover capacity.

The pertinent provision of the Constitution is Section 8, Article X which provides:

Section 8. The term of office of elective local officials, except barangay

officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms. [emphases
ours]

On the other hand, Section 7(1), Article VII of RA No. 9054 provides:
 Section 7. Terms of Office of Elective Regional Officials. (1) Terms of
Office. The terms of office of the Regional Governor, Regional Vice
Governor and members of the Regional Assembly shall be for a period of
three (3) years, which shall begin at noon on the 30th day of September
next following the day of the election and shall end at noon of the same
date three (3) years thereafter. The incumbent elective officials of the
autonomous region shall continue in effect until their successors are
elected and qualified.

The clear wording of Section 8, Article X of the Constitution expresses the

intent of the framers of the Constitution to categorically set a limitation on the period
within which all elective local officials can occupy their offices. We have already
established that elective ARMM officials are also local officials; they are, thus,
bound by the three-year term limit prescribed by the Constitution. It, therefore,
becomes irrelevant that the Constitution does not expressly prohibit elective officials
from acting in a holdover capacity. Short of amending the Constitution, Congress
has no authority to extend the three-year term limit by inserting a holdover
provision in RA No. 9054. Thus, the term of three years for local officials should
stay at three (3) years, as fixed by the Constitution, and cannot be extended by
holdover by Congress.

Admittedly, we have, in the past, recognized the validity of holdover

provisions in various laws. One significant difference between the present case and
these past cases[22] is that while these past cases all refer to
elective barangay or sangguniang kabataan officials whose terms of office are not
explicitly provided for in the Constitution, the present case refers to local elective
officials - the ARMM Governor, the ARMM Vice Governor, and the members of
the Regional Legislative Assembly - whose terms fall within the three-year term
limit set by Section 8, Article X of the Constitution.

Even assuming that a holdover is constitutionally permissible, and there had

been statutory basis for it (namely Section 7, Article VII of RA No. 9054), the rule
of holdover can only apply as an available option where no express or implied
legislative intent to the contrary exists; it cannot apply where such contrary intent is
evident.[23]

Congress, in passing RA No. 10153 and removing the holdover option, has
made it clear that it wants to suppress the holdover rule expressed in RA No. 9054.
Congress, in the exercise of its plenary legislative powers, has clearly acted within
its discretion when it deleted the holdover option, and this Court has no authority to
question the wisdom of this decision, absent any evidence of unconstitutionality or
grave abuse of discretion. It is for the legislature and the executive, and not this
Court, to decide how to fill the vacancies in the ARMM regional government which
arise from the legislature complying with the constitutional mandate of
synchronization.

COMELEC has no authority to hold special elections

Neither do we find any merit in the contention that the Commission on Elections
(COMELEC) is sufficiently empowered to set the date of special elections in the
ARMM. To recall, the Constitution has merely empowered the COMELEC to
enforce and administer all laws and regulations relative to the conduct of an
election.[24] Although the legislature, under the Omnibus Election Code (Batas
Pambansa Bilang [BP] 881), has granted the COMELEC the power to postpone
elections to another date, this power is confined to the specific terms and
circumstances provided for in the law. Specifically, this power falls within the
narrow confines of the following provisions:

Section 5. Postponement of election. - When for any serious cause such

as violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a nature that
the holding of a free, orderly and honest election should become
impossible in any political subdivision, the Commission, motu proprio or
upon a verified petition by any interested party, and after due notice and
hearing, whereby all interested parties are afforded equal opportunity to
be heard, shall postpone the election therein to a date which should be
reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after the
cessation of the cause for such postponement or suspension of the election
or failure to elect.
 Section 6. Failure of election. - If, on account of force
majeure, violence, terrorism, fraud, or other analogous causes the
election in any polling place has not been held on the date fixed, or had
been suspended before the hour fixed by law for the closing of the voting,
or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results
in a failure to elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall, on
the basis of a verified petition by any interested party and after due notice
and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close
to the date of the election not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of the cause of
such postponement or suspension of the election or failure to elect.
[emphases and underscoring ours]

As we have previously observed in our assailed decision, both Section 5 and

Section 6 of BP 881 address instances where elections have already been
scheduled to take place but do not occur or had to be suspended because
of unexpected and unforeseen circumstances, such as violence, fraud, terrorism,
and other analogous circumstances.

In contrast, the ARMM elections were postponed by law, in furtherance

of the constitutional mandate of synchronization of national and local elections.
Obviously, this does not fall under any of the circumstances contemplated by Section
5 or Section 6 of BP 881.

More importantly, RA No. 10153 has already fixed the date for the next
ARMM elections and the COMELEC has no authority to set a different election
date.

Even assuming that the COMELEC has the authority to hold special elections, and
this Court can compel the COMELEC to do so, there is still the problem of having
to shorten the terms of the newly elected officials in order to synchronize the ARMM
elections with the May 2013 national and local elections. Obviously, neither the
Court nor the COMELEC has the authority to do this, amounting as it does to an
amendment of Section 8, Article X of the Constitution, which limits the term of local
officials to three years.

Presidents authority to appoint OICs

The petitioner in G.R. No. 197221 argues that the Presidents power to appoint
pertains only to appointive positions and cannot extend to positions held by elective
officials.

The power to appoint has traditionally been recognized as executive in

nature.[25] Section 16, Article VII of the Constitution describes in broad strokes the
extent of this power, thus:

Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom
he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone,
in the courts, or in the heads of departments, agencies, commissions, or
boards. [emphasis ours]

The 1935 Constitution contained a provision similar to the one quoted above.
Section 10(3), Article VII of the 1935 Constitution provides:

(3) The President shall nominate and with the consent of the Commission
on Appointments, shall appoint the heads of the executive departments
and bureaus, officers of the Army from the rank of colonel, of the Navy
and Air Forces from the rank of captain or commander, and all other
officers of the Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law to appoint;
but the Congress may by law vest the appointment of inferior officers, in
the President alone, in the courts, or in the heads of
departments. [emphasis ours]
The main distinction between the provision in the 1987 Constitution and its
counterpart in the 1935 Constitution is the sentence construction; while in the 1935
Constitution, the various appointments the President can make are enumerated in a
single sentence, the 1987 Constitution enumerates the various appointments the
President is empowered to make and divides the enumeration in two sentences. The
change in style is significant; in providing for this change, the framers of the 1987
Constitution clearly sought to make a distinction between the first group of
presidential appointments and the second group of presidential appointments, as
made evident in the following exchange:

MR. FOZ. Madame President x x x I propose to put a period (.) after

captain and x x x delete and all and substitute it with HE SHALL ALSO
APPOINT ANY.

MR. REGALADO. Madam President, the Committee accepts the

proposed amendment because it makes it clear that those other officers
mentioned therein do not have to be confirmed by the Commission on
Appointments.[26]

The first group of presidential appointments, specified as the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers of the
Armed Forces, and other officers whose appointments are vested in the President by
the Constitution, pertains to the appointive officials who have to be confirmed by
the Commission on Appointments.

The second group of officials the President can appoint are all other officers
of the Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint.[27] The second sentence acts as
the catch-all provision for the Presidents appointment power, in recognition of the
fact that the power to appoint is essentially executive in nature.[28] The wide latitude
given to the President to appoint is further demonstrated by the recognition of the
Presidents power to appoint officials whose appointments are not even provided for
by law. In other words, where there are offices which have to be filled, but the law
does not provide the process for filling them, the Constitution recognizes the power
of the President to fill the office by appointment.

Any limitation on or qualification to the exercise of the Presidents

appointment power should be strictly construed and must be clearly stated in order
to be recognized.[29] Given that the President derives his power to appoint OICs in
the ARMM regional government from law, it falls under the classification of
presidential appointments covered by the second sentence of Section 16, Article VII
of the Constitution; the Presidents appointment power thus rests on clear
constitutional basis.

The petitioners also jointly assert that RA No. 10153, in granting the President
the power to appoint OICs in elective positions, violates Section 16, Article X of the
Constitution,[30] which merely grants the President the power of supervision over
autonomous regions.

This is an overly restrictive interpretation of the Presidents appointment

power. There is no incompatibility between the Presidents power of supervision over
local governments and autonomous regions, and the power granted to the President,
within the specific confines of RA No. 10153, to appoint OICs.

The power of supervision is defined as the power of a superior officer to see to it

that lower officers perform their functions in accordance with law.[31] This is
distinguished from the power of control or the power of an officer to alter or modify
or set aside what a subordinate officer had done in the performance of his duties and
to substitute the judgment of the former for the latter.[32]

The petitioners apprehension regarding the Presidents alleged power of

control over the OICs is rooted in their belief that the Presidents appointment power
includes the power to remove these officials at will. In this way, the petitioners
foresee that the appointed OICs will be beholden to the President, and act as
representatives of the President and not of the people.
Section 3 of RA No. 10153 expressly contradicts the petitioners supposition.
The provision states:
 Section 3. Appointment of Officers-in-Charge. The President shall
appoint officers-in-charge for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said offices
until the officials duly elected in the May 2013 elections shall have
qualified and assumed office.

The wording of the law is clear. Once the President has appointed the OICs
for the offices of the Governor, Vice Governor and members of the Regional
Legislative Assembly, these same officials will remain in office until they are
replaced by the duly elected officials in the May 2013 elections. Nothing in this
provision even hints that the President has the power to recall the appointments he
already made. Clearly, the petitioners fears in this regard are more apparent than
real.

RA No. 10153 as an interim measure

We reiterate once more the importance of considering RA No. 10153 not in a

vacuum, but within the context it was enacted in. In the first place, Congress enacted
RA No. 10153 primarily to heed the constitutional mandate to synchronize the
ARMM regional elections with the national and local elections. To do this, Congress
had to postpone the scheduled ARMM elections for another date, leaving it with
the problem of how to provide the ARMM with governance in the intervening
period, between the expiration of the term of those elected in August 2008 and the
assumption to office twenty-one (21) months away of those who will win in the
synchronized elections on May 13, 2013.

In our assailed Decision, we already identified the three possible solutions

open to Congress to address the problem created by synchronization (a) allow the
incumbent officials to remain in office after the expiration of their terms in a
holdover capacity; (b) call for special elections to be held, and shorten the terms of
those to be elected so the next ARMM regional elections can be held on May 13,
2013; or (c) recognize that the President, in the exercise of his appointment powers
and in line with his power of supervision over the ARMM, can appoint interim OICs
to hold the vacated positions in the ARMM regional government upon the expiration
of their terms. We have already established the unconstitutionality of the first two
options, leaving us to consider the last available option.

In this way, RA No. 10153 is in reality an interim measure, enacted to respond

to the adjustment that synchronization requires. Given the context, we have to judge
RA No. 10153 by the standard of reasonableness in responding to the challenges
brought about by synchronizing the ARMM elections with the national and local
elections. In other words, given the plain unconstitutionality of providing for a
holdover and the unavailability of constitutional possibilities for lengthening or
shortening the term of the elected ARMM officials, is the choice of the Presidents
power to appoint for a fixed and specific period as an interim measure, and as
allowed under Section 16, Article VII of the Constitution an unconstitutional or
unreasonable choice for Congress to make?[33]

We admit that synchronization will temporarily disrupt the election process in

a local community, the ARMM, as well as the communitys choice of leaders.
However, we have to keep in mind that the adoption of this measure is a matter of
necessity in order to comply with a mandate that the Constitution itself has set out
for us. Moreover, the implementation of the provisions of RA No. 10153 as an
interim measure is comparable to the interim measures traditionally practiced when,
for instance, the President appoints officials holding elective offices upon the
creation of new local government units.

The grant to the President of the power to appoint OICs in place of the elective
members of the Regional Legislative Assembly is neither novel nor innovative. The
power granted to the President, via RA No. 10153, to appoint members of the
Regional Legislative Assembly is comparable to the power granted by BP 881 (the
Omnibus Election Code) to the President to fill any vacancy for any cause in the
Regional Legislative Assembly (then called the Sangguniang Pampook).[34]

Executive is not bound by the principle of judicial courtesy

The petitioners in G.R. No. 197280, in their Manifestation and Motion dated
December 21, 2011, question the propriety of the appointment by the President of
Mujiv Hataman as acting Governor and Bainon Karon as acting Vice Governor of
the ARMM. They argue that since our previous decision was based on a close vote
of 8-7, and given the numerous motions for reconsideration filed by the parties, the
President, in recognition of the principle of judicial courtesy, should have refrained
from implementing our decision until we have ruled with finality on this case.

We find the petitioners reasoning specious.

Firstly, the principle of judicial courtesy is based on the hierarchy of courts and
applies only to lower courts in instances where, even if there is no writ of preliminary
injunction or TRO issued by a higher court, it would be proper for a lower court to
suspend its proceedings for practical and ethical considerations.[35] In other words,
the principle of judicial courtesy applies where there is a strong probability that the
issues before the higher court would be rendered moot and moribund as a result of
the continuation of the proceedings in the lower court or court of
origin.[36] Consequently, this principle cannot be applied to the President, who
represents a co-equal branch of government. To suggest otherwise would be to
disregard the principle of separation of powers, on which our whole system of
government is founded upon.
Secondly, the fact that our previous decision was based on a slim vote of 8-7 does
not, and cannot, have the effect of making our ruling any less effective or binding.
Regardless of how close the voting is, so long as there is concurrence of the majority
of the members of the en banc who actually took part in the deliberations of the
case,[37] a decision garnering only 8 votes out of 15 members is still a decision of the
Supreme Court en banc and must be respected as such. The petitioners are, therefore,
not in any position to speculate that, based on the voting, the probability exists that
their motion for reconsideration may be granted.[38]

Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue
Clarificatory Resolution, argues that since motions for reconsideration were filed by
the aggrieved parties challenging our October 18, 2011 decision in the present case,
the TRO we initially issued on September 13, 2011 should remain subsisting and
effective. He further argues that any attempt by the Executive to implement our
October 18, 2011 decision pending resolution of the motions for reconsideration
borders on disrespect if not outright insolence[39] to this Court.

In support of this theory, the petitioner cites Samad v. COMELEC,[40] where

the Court held that while it had already issued a decision lifting the TRO, the lifting
of the TRO is not yet final and executory, and can also be the subject of a motion for
reconsideration. The petitioner also cites the minute resolution issued by the Court
in Tolentino v. Secretary of Finance,[41] where the Court reproached the
Commissioner of the Bureau of Internal Revenue for manifesting its intention to
implement the decision of the Court, noting that the Court had not yet lifted the TRO
previously issued.[42]
We agree with the petitioner that the lifting of a TRO can be included as a subject of
a motion for reconsideration filed to assail our decision. It does not follow, however,
that the TRO remains effective until after we have issued a final and executory
decision, especially considering the clear wording of the dispositive portion of our
October 18, 2011 decision, which states:

WHEREFORE, premises considered, we DISMISS the

consolidated petitions assailing the validity of RA No. 10153 for lack of
merit, and UPHOLD the constitutionality of this law. We likewise LIFT
the temporary restraining order we issued in our Resolution of
September 13, 2011. No costs.[43] (emphases ours)

In this regard, we note an important distinction between Tolentino and the

present case. While it may be true that Tolentino and the present case are similar in
that, in both cases, the petitions assailing the challenged laws were dismissed by the
Court, an examination of the dispositive portion of the decision in Tolentino reveals
that the Court did not categorically lift the TRO. In sharp contrast, in the present
case, we expressly lifted the TRO issued on September 13, 2011. There is, therefore,
no legal impediment to prevent the President from exercising his authority to appoint
an acting ARMM Governor and Vice Governor as specifically provided for in RA
No. 10153.

Conclusion

As a final point, we wish to address the bleak picture that the petitioner in
G.R. No. 197282 presents in his motion, that our Decision has virtually given the
President the power and authority to appoint 672,416 OICs in the event that the
elections of barangay and Sangguniang Kabataan officials are postponed or
cancelled.
 We find this speculation nothing short of fear-mongering.

This argument fails to take into consideration the unique factual and legal
circumstances which led to the enactment of RA No. 10153. RA No. 10153 was
passed in order to synchronize the ARMM elections with the national and local
elections. In the course of synchronizing the ARMM elections with the national and
local elections, Congress had to grant the President the power to appoint OICs in the
ARMM, in light of the fact that: (a) holdover by the incumbent ARMM elective
officials is legally impermissible; and (b) Congress cannot call for special elections
and shorten the terms of elective local officials for less than three years.

Unlike local officials, as the Constitution does not prescribe a term limit
for barangay and Sangguniang Kabataan officials, there is no legal proscription
which prevents these specific government officials from continuing in a holdover
capacity should some exigency require the postponement
of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither
legal nor factual basis to stand on.

For the foregoing reasons, we deny the petitioners motions for reconsideration.

WHEREFORE, premises considered, we DENY with FINALITY the

motions for reconsideration for lack of merit and UPHOLD the constitutionality of
RA No. 10153.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR., Respondents.

RESOLUTION

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12 vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
1âwphi1

was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic.19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers intended
that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the
Congress, voting separately."20Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.

Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function – to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.
The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commission’s desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.

xxx

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House
of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37
Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45081 July 15, 1936

JOSE A. ANGARA, petitioner,

vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR, respondents.

Godofredo Reyes for petitioner.

Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of
a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from
taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the
election of said petitioner as member of the National Assembly for the first assembly district of the
Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as
follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the
respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for
the position of member of the National Assembly for the first district of the Province of
Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as
member-elect of the National Assembly for the said district, for having received the most
number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the
following resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS

CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no

se hubiere presentado debidamente una protesta antes de la adopcion de la
 presente resolucion sean, como por la presente, son aprobadas y
confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral
Commission a "Motion of Protest" against the election of the herein petitioner, Jose A.
Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and
praying, among other-things, that said respondent be declared elected member of the
National Assembly for the first district of Tayabas, or that the election of said position be
nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6
of which provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o

antes de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to
Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a)
that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its
constitutional prerogative to prescribe the period during which protests against the election of
its members should be presented; (b) that the aforesaid resolution has for its object, and is
the accepted formula for, the limitation of said period; and (c) that the protest in question was
filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the
Motion of Dismissal" alleging that there is no legal or constitutional provision barring the
presentation of a protest against the election of a member of the National Assembly after
confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the
aforesaid "Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a
resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed
for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely
as regards the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the
proceedings of said election contests, which power has been reserved to the Legislative
Department of the Government or the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution,
whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted
to them for decision and to matters involving their internal organization, the Electoral
 Commission can regulate its proceedings only if the National Assembly has not availed of its
primary power to so regulate such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be
respected and obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and
paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the
United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of
the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question
herein raised because it involves an interpretation of the Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the
respondent Electoral Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality
of the Legislative Department invested with the jurisdiction to decide "all contests relating to
the election, returns, and qualifications of the members of the National Assembly"; that in
adopting its resolution of December 9, 1935, fixing this date as the last day for the
presentation of protests against the election of any member of the National Assembly, it
acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by
the Constitution to adopt the rules and regulations essential to carry out the power and
functions conferred upon the same by the fundamental law; that in adopting its resolution of
January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in
question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in
the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative
Department of the Commonwealth Government, and hence said act is beyond the judicial
cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the
election of the members of the National Assembly against whom no protest had thus far
been filed, could not and did not deprive the electoral Commission of its jurisdiction to take
cognizance of election protests filed within the time that might be set by its own rules:

(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by
the Constitution as an instrumentality of the Legislative Department, and is not an "inferior
tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the
Code of Civil Procedure, against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March
2, 1936, setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9,
1935, there was no existing law fixing the period within which protests against the election of
members of the National Assembly should be filed; that in fixing December 9, 1935, as the
last day for the filing of protests against the election of members of the National Assembly,
the Electoral Commission was exercising a power impliedly conferred upon it by the
Constitution, by reason of its quasi-judicial attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on
December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral
Commission;
 (c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by
said respondent and over the parties thereto, and the resolution of the Electoral Commission
of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the
jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly
of the election of its members, and that such confirmation does not operate to limit the period
within which protests should be filed as to deprive the Electoral Commission of jurisdiction
over protest filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution,
endowed with quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal,

corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil
Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be
article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended
thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition
from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress
of the united States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the
petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral
Commission which petition was denied "without passing upon the merits of the case" by resolution of
this court of March 21, 1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal
propositions:

1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter
of the controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election by resolution of the National
Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy.
However, the question of jurisdiction having been presented, we do not feel justified in evading the
issue. Being a case primæ impressionis, it would hardly be consistent with our sense of duty to
overlook the broader aspect of the question and leave it undecided. Neither would we be doing
justice to the industry and vehemence of counsel were we not to pass upon the question of
jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other.
The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For example, the Chief
Executive under our Constitution is so far made a check on the legislative power that this assent is
required in the enactment of laws. This, however, is subject to the further check that a bill may
become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or
three-fourths, as the case may be, of the National Assembly. The President has also the right to
convene the Assembly in special session whenever he chooses. On the other hand, the National
Assembly operates as a check on the Executive in the sense that its consent through its
Commission on Appointments is necessary in the appointments of certain officers; and the
concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in
its power to determine what courts other than the Supreme Court shall be established, to define their
jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.

But in the main, 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. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say just where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between
the several departments and among the integral or constituent units thereof.

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

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

But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself is not
"the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also
be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression
on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed
the election of the herein petitioner to the said body. On the other hand, the Electoral Commission
has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of
protests against the election, returns and qualifications of members of the National Assembly,
notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the election, returns and
qualifications of members of the National Assembly, submitted after December 3, 1935, then the
resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect.
But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating
its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day for filing protests against the
election, returns and qualifications of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional
nature between the National Assembly on the one hand, and the Electoral Commission on the other.
From the very nature of the republican government established in our country in the light of
American experience and of our own, upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The
Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created
for a specific purpose, namely to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral Commission may not
be interfered with, when and while acting within the limits of its authority, it does not follow that it is
beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to
constitutional restrictions. The Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of authority under the fundamental law between
department powers and agencies of the government are necessarily determined by the judiciary in
justifiable and appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our constitution adopted the American type where the
written constitution is interpreted and given effect by the judicial department. In some countries
which have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This
is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition
courts are bound to assume what is logically their function. For instance, the Constitution of Poland
of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art.
81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this power. This is true in Norway,
Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123,
Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass
upon the validity of ordinary laws. In our case, the nature of the present controversy shows the
necessity of a final constitutional arbiter to determine the conflict of authority between two agencies
created by the Constitution. Were we to decline to take cognizance of the controversy, who will
determine the conflict? And if the conflict were left undecided and undetermined, would not a void be
thus created in our constitutional system which may be in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the
opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject mater of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and qualifications of the members of the National
Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second
proposition and determine whether the Electoral Commission has acted without or in excess of its
jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of
the protest filed against the election of the herein petitioner notwithstanding the previous
confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the
petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the
Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of
whom shall be nominated by the party having the largest number of votes, and three by the party
having the second largest number of votes therein. The senior Justice in the Commission shall be its
Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election,
returns and qualifications of the members of the National Assembly." It is imperative, therefore, that
we delve into the origin and history of this constitutional provision and inquire into the intention of its
framers and the people who adopted it so that we may properly appreciate its full meaning, import
and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5)
laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications
of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United
States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of
its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this
provision by the insertion of the word "sole" as follows: "That the Senate and House of
Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of
their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the
particular case s therein specified. This court has had occasion to characterize this grant of power to
the Philippine Senate and House of Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested
elections to the legislature was taken by the sub-committee of five appointed by the Committee on
Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report
on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered
to hear legislature but also against the election of executive officers for whose election the vote of
the whole nation is required, as well as to initiate impeachment proceedings against specified
executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be
composed of three justices designated by the Supreme Court and six members of the house of the
legislature to which the contest corresponds, three members to be designed by the majority party
and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a
member in which case the latter shall preside. The foregoing proposal was submitted by the
Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight
modifications consisting in the reduction of the legislative representation to four members, that is,
two senators to be designated one each from the two major parties in the Senate and two
representatives to be designated one each from the two major parties in the House of
Representatives, and in awarding representation to the executive department in the persons of two
representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the
Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the
Legislative Department, reads as follows:

The elections, returns and qualifications of the members of either house and all cases
contesting the election of any of their members shall be judged by an Electoral Commission,
constituted, as to each House, by three members elected by the members of the party
having the largest number of votes therein, three elected by the members of the party having
the second largest number of votes, and as to its Chairman, one Justice of the Supreme
Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as

proposed by the Committee on Constitutional Guarantees which was probably inspired by the
Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor
of the proposition of the Committee on Legislative Power to create a similar body with reduced
powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The
Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect
to the composition of the Electoral Commission and made further changes in phraseology to suit the
project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to
the Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all
cases contesting the election of any of its Members shall be judged by an Electoral
Commission, composed of three members elected by the party having the largest number of
votes in the National Assembly, three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court designated by the Chief
Justice, the Commission to be presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others,
proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the
following: "The National Assembly shall be the soled and exclusive judge of the elections, returns,
and qualifications of the Members", the following illuminating remarks were made on the floor of the
Convention in its session of December 4, 1934, as to the scope of the said draft:

xxx xxx xxx

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the
first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and
qualifications of the Members of the National Assembly and all cases contesting the election
of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask
from the gentleman from Capiz whether the election and qualification of the member whose
elections is not contested shall also be judged by the Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be
judged; that is why the word "judge" is used to indicate a controversy. If there is no question
about the election of a member, there is nothing to be submitted to the Electoral Commission
and there is nothing to be determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm
also the election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the
House of Representatives confirming the election of its members is just a matter of the rules
of the assembly. It is not constitutional. It is not necessary. After a man files his credentials
that he has been elected, that is sufficient, unless his election is contested.

Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for
purposes of the auditor, in the matter of election of a member to a legislative body, because
he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected?
What happens with regards to the councilors of a municipality? Does anybody confirm their
election? The municipal council does this: it makes a canvass and proclaims — in this case
the municipal council proclaims who has been elected, and it ends there, unless there is a
contest. It is the same case; there is no need on the part of the Electoral Commission unless
there is a contest. The first clause refers to the case referred to by the gentleman from
Cavite where one person tries to be elected in place of another who was declared elected.
From example, in a case when the residence of the man who has been elected is in
question, or in case the citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by
certain maneuvers upon its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral Commission all the powers exercised by
the assembly referring to the elections, returns and qualifications of the members. When
there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman
from Ilocos Norte when I arose a while ago. However I want to ask more questions from the
delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the
election as separate from the first part of the sections which refers to elections, returns and
qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are
already included in the phrase "the elections, returns and qualifications." This phrase "and
contested elections" was inserted merely for the sake of clarity.
 Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance,
refuse to confirm the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is
granted to the assembly, the assembly on its own motion does not have the right to contest
the election and qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is,
even if two-thirds of the assembly believe that a member has not the qualifications provided
by law, they cannot remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral
Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to
question the eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral
Commission and make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is
contested or not contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has
power and authority to pass upon the qualifications of the members of the National Assembly
even though that question has not been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.

In the same session, the first clause of the aforesaid draft reading "The election, returns and
qualifications of the members of the National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons,
Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft
as amended, Delegate Roxas speaking for the Sponsorship Committee said:
 xxx xxx xxx

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion

apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The
elections, returns and qualifications of the members of the National Assembly" parece que
da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros
que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon
en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases
contesting the election", de modo que los jueces de la Comision Electoral se limitaran
solamente a los casos en que haya habido protesta contra las actas." Before the
amendment of Delegate Labrador was voted upon the following interpellation also took
place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a
la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente
a dejar el asunto a los miembros del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa
forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la
Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el
partidismo no es suficiente para dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto
los de la mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

xxx xxx xxx

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power
to decide contests relating to the election, returns and qualifications of members of the National
Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six
(56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing
the representation of the minority party and the Supreme Court in the Electoral Commission to two
members each, so as to accord more representation to the majority party. The Convention rejected
this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-
partisan character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the
National Assembly shall be judged by an Electoral Commission, composed of three
members elected by the party having the largest number of votes in the National Assembly,
 three elected by the members of the party having the second largest number of votes, and
three justices of the Supreme Court designated by the Chief Justice, the Commission to be
presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number of
votes, and three by the party having the second largest number of votes therein. The senior
Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole
judge of the election, returns, and qualifications of the Members of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee,
through President Recto, to effectuate the original intention of the Convention, agreed to insert the
phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which
was accordingly accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of
the legislature long lodged in the legislative body, to an independent, impartial and non-partisan
tribunal, is by no means a mere experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58),
gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the
disposition of contests by the House of Commons in the following passages which are partly quoted
by the petitioner in his printed memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of
the elections, returns, and qualifications of their members, until the year 1770, two modes of
proceeding prevailed, in the determination of controverted elections, and rights of
membership. One of the standing committees appointed at the commencement of each
session, was denominated the committee of privileges and elections, whose functions was to
hear and investigate all questions of this description which might be referred to them, and to
report their proceedings, with their opinion thereupon, to the house, from time to time. When
an election petition was referred to this committee they heard the parties and their witnesses
and other evidence, and made a report of all the evidence, together with their opinion
thereupon, in the form of resolutions, which were considered and agreed or disagreed to by
the house. The other mode of proceeding was by a hearing at the bar of the house itself.
When this court was adopted, the case was heard and decided by the house, in substantially
the same manner as by a committee. The committee of privileges and elections although a
select committee. The committee of privileges and elections although a select committee
was usually what is called an open one; that is to say, in order to constitute the committee, a
quorum of the members named was required to be present, but all the members of the
house were at liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of
membership gradually assumed a political character; so that for many years previous to the
year 1770, controverted elections had been tried and determined by the house of commons,
as mere party questions, upon which the strength of contending factions might be tested.
Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government,
resigned his office in consequence of an adverse vote upon the Chippenham election. Mr.
Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every
 principle of decency and justice were notoriously and openly prostituted, from whence the
younger part of the house were insensibly, but too successfully, induced to adopt the same
licentious conduct in more serious matters, and in questions of higher importance to the
public welfare." Mr. George Grenville, a distinguished member of the house of commons,
undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the
unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections,
or returns of members to serve in parliament." In his speech to explain his plan, on the
motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead
of trusting to the merits of their respective causes, the principal dependence of both parties is
their private interest among us; and it is scandalously notorious that we are as earnestly
canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not
bound to act by the principles of justice, but by the discretionary impulse of our own
inclinations; nay, it is well known, that in every contested election, many members of this
house, who are ultimately to judge in a kind of judicial capacity between the competitors,
enlist themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the strictest
impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill
which met with the approbation of both houses, and received the royal assent on the 12th of
April, 1770. This was the celebrated law since known by the name of the Grenville Act; of
which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of
commons, and the security of the constitution, that was ever devised by any minister or
statesman." It is probable, that the magnitude of the evil, or the apparent success of the
remedy, may have led many of the contemporaries of the measure to the information of a
judgement, which was not acquiesced in by some of the leading statesmen of the day, and
has not been entirely confirmed by subsequent experience. The bill was objected to by Lord
North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who
had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of parliament,
and a total abrogation of one of the most important rights and jurisdictions of the house of
commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-
partisan settlement of the controverted elections of its members by abdicating its prerogative to two
judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules
of court made for the purpose. Having proved successful, the practice has become imbedded in
English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and
Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of
Canada, election contests which were originally heard by the Committee of the House of Commons,
are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests
which were originally determined by each house, are since 1922 tried in the High Court. In Hungary,
the organic law provides that all protests against the election of members of the Upper House of the
Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par.
6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of
Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or
National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the
Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak
Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927
(art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both from the legislature
and the judiciary is by no means unknown in the United States. In the presidential elections of 1876
there was a dispute as to the number of electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for such a contingency, Congress
passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the Supreme Court, the fifth
justice to be selected by the four designated in the Act. The decision of the commission was to be
binding unless rejected by the two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard, judging from the observations of
Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913]
— Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least
abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their
majority men mature in years and experience. To be sure, many of them were familiar with the
history and political development of other countries of the world. When , therefore, they deemed it
wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive
function of passing upon and determining the election, returns and qualifications of the members of
the National Assembly, they must have done so not only in the light of their own experience but also
having in view the experience of other enlightened peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its
creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the constitutional the creation of the Electoral
Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln,
First Inaugural Address, March 4, 1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer
in its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge
and appreciation of contemporary constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations which prompted the people, acting
through their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and minority parties
are equally represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the
performance and execution of the limited and specific function assigned to it by the Constitution.
Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes,
when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the
legislative department than to any other. The location of the provision (section 4) creating the
Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very
indicative. Its compositions is also significant in that it is constituted by a majority of members of the
legislature. But it is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns
and qualifications of members of the National Assembly, is intended to be as complete and
unimpaired as if it had remained originally in the legislature. The express lodging of that power in the
Electoral Commission is an implied denial of the exercise of that power by the National Assembly.
And this is as effective a restriction upon the legislative power as an express prohibition in the
Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S.D., 260; L.R.A.,
1917B, 1). If we concede the power claimed in behalf of the National Assembly that said body may
regulate the proceedings of the Electoral Commission and cut off the power of the commission to lay
down the period within which protests should be filed, the grant of power to the commission would
be ineffective. The Electoral Commission in such case would be invested with the power to
determine contested cases involving the election, returns and qualifications of the members of the
National Assembly but subject at all times to the regulative power of the National Assembly. Not only
would the purpose of the framers of our Constitution of totally transferring this authority from the
legislative body be frustrated, but a dual authority would be created with the resultant inevitable
clash of powers from time to time. A sad spectacle would then be presented of the Electoral
Commission retaining the bare authority of taking cognizance of cases referred to, but in reality
without the necessary means to render that authority effective whenever and whenever the National
Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of
our Constitution. The power to regulate on the part of the National Assembly in procedural matters
will inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral
Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that
this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner
regarding the importance and necessity of respecting the dignity and independence of the national
Assembly as a coordinate department of the government and of according validity to its acts, to
avoid what he characterized would be practically an unlimited power of the commission in the
admission of protests against members of the National Assembly. But as we have pointed out
hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power
regulative in character to limit the time with which protests intrusted to its cognizance should be filed.
It is a settled rule of construction that where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the performance of the other is also
conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any
further constitutional provision relating to the procedure to be followed in filing protests before the
Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the
proper exercise of its exclusive power to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be deemed by necessary implication to
have been lodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may
abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance
of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of
abuse is not argument against the concession of the power as there is no power that is not
susceptible of abuse. In the second place, if any mistake has been committed in the creation of an
Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the
election, returns, and qualifications of members of the National Assembly, the remedy is political, not
judicial, and must be sought through the ordinary processes of democracy. All the possible abuses
of the government are not intended to be corrected by the judiciary. We believe, however, that the
people in creating the Electoral Commission reposed as much confidence in this body in the
exclusive determination of the specified cases assigned to it, as they have given to the Supreme
Court in the proper cases entrusted to it for decision. All the agencies of the government were
designed by the Constitution to achieve specific purposes, and each constitutional organ working
within its own particular sphere of discretionary action must be deemed to be animated with the
same zeal and honesty in accomplishing the great ends for which they were created by the
sovereign will. That the actuations of these constitutional agencies might leave much to be desired in
given instances, is inherent in the perfection of human institutions. In the third place, from the fact
that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it
does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate
cases over which the courts may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are
considerations of equitable character that should not be overlooked in the appreciation of the
intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November
15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of
Article XV thereof, went into effect. The new National Assembly convened on November 25th of that
year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by
that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the
election of the petitioner was filed on December 9 of the same year. The pleadings do not show
when the Electoral Commission was formally organized but it does appear that on December 9,
1935, the Electoral Commission met for the first time and approved a resolution fixing said date as
the last day for the filing of election protest. When, therefore, the National Assembly passed its
resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly,
the Electoral Commission had not yet met; neither does it appear that said body had actually been
organized. As a mater of fact, according to certified copies of official records on file in the archives
division of the National Assembly attached to the record of this case upon the petition of the
petitioner, the three justices of the Supreme Court the six members of the National Assembly
constituting the Electoral Commission were respectively designated only on December 4 and 6,
1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members
of the National Assembly had the effect of limiting or tolling the time for the presentation of protests,
the result would be that the National Assembly — on the hypothesis that it still retained the incidental
power of regulation in such cases — had already barred the presentation of protests before the
Electoral Commission had had time to organize itself and deliberate on the mode and method to be
followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and
could not have been contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members
against whom no protests had been filed at the time of its passage on December 3, 1935, can not be
construed as a limitation upon the time for the initiation of election contests. While there might have
been good reason for the legislative practice of confirmation of the election of members of the
legislature at the time when the power to decide election contests was still lodged in the legislature,
confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of
the authority incidental to its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly", to fix the time for the
filing of said election protests. Confirmation by the National Assembly of the returns of its members
against whose election no protests have been filed is, to all legal purposes, unnecessary. As
contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion
of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of
the election of any member is not required by the Constitution before he can discharge his duties as
such member. As a matter of fact, certification by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to
any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the
United States, confirmation is neither necessary in order to entitle a member-elect to take his seat.
The return of the proper election officers is sufficient, and the member-elect presenting such return
begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of
England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26).
Confirmation is in order only in cases of contested elections where the decision is adverse to the
claims of the protestant. In England, the judges' decision or report in controverted elections is
certified to the Speaker of the House of Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter the same upon the Journals, and to give
such directions for confirming or altering the return, or for the issue of a writ for a new election, or for
carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec.
13). In the United States, it is believed, the order or decision of the particular house itself is generally
regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and
Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine
Legislature fixed the time when protests against the election of any of its members should be filed.
This was expressly authorized by section 18 of the Jones Law making each house the sole judge of
the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387)
empowering each house to respectively prescribe by resolution the time and manner of filing contest
in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for
the filing of protests had already expired, each house passed a resolution confirming or approving
the returns of such members against whose election no protests had been filed within the prescribed
time. This was interpreted as cutting off the filing of further protests against the election of those
members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature,
Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature;
Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640;
Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First Period,
pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period,
vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No.
3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with
the power to determine all contest relating to the election, returns and qualifications of members of
the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of
that power. There was thus no law nor constitutional provisions which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests
against the election of its members. And what the National Assembly could not do directly, it could
not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of
separation of power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties
often makes difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies
thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional
mechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases
and controversies, and is the power and duty to see that no one branch or agency of the
government transcends the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific
powers and functions to execute and perform, closer for purposes of classification to the
legislative than to any of the other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election,
returns and qualifications of members of the National Assembly.
 (g) That under the organic law prevailing before the present Constitution went into effect,
each house of the legislature was respectively the sole judge of the elections, returns, and
qualifications of their elective members.

(h) That the present Constitution has transferred all the powers previously exercised by the
legislature with respect to contests relating to the elections, returns and qualifications of its
members, to the Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full,
clear and complete, and carried with it ex necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an
independent constitutional organ pass upon all contests relating to the election, returns and
qualifications of members of the National Assembly, devoid of partisan influence or
consideration, which object would be frustrated if the National Assembly were to retain the
power to prescribe rules and regulations regarding the manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones
Law making each house of the Philippine Legislature respectively the sole judge of the
elections, returns and qualifications of its elective members, but also section 478 of Act No.
3387 empowering each house to prescribe by resolution the time and manner of filing
contests against the election of its members, the time and manner of notifying the adverse
party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not
essential before such member-elect may discharge the duties and enjoy the privileges of a
member of the National Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom
no protest had been filed prior to said confirmation, does not and cannot deprive the
Electoral Commission of its incidental power to prescribe the time within which protests
against the election of any member of the National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its
constitutional prerogative in assuming to take cognizance of the protest filed by the respondent
Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of
the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests
against the elections, returns and qualifications of members of the National Assembly, nor prevent
the filing of a protest within such time as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a
constitutional creation and as to the scope and extent of its authority under the facts of the present
controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior
tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil
Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs
against the petitioner. So ordered.
 Republic of the Philippines

Supreme Court
Manila

FIRST DIVISION

METROPOLITAN BANK & G.R. No. 177780

TRUST CO. (METROBANK),
represented by ROSELLA A.
SANTIAGO,
Present:
Petitioner,

CORONA, C.J., Chairperson,

LEONARDO-DE CASTRO,
-versus-
BERSAMIN,

VILLARAMA, JR., and

*
PERLAS-BERNABE, JJ.

ANTONINO O. TOBIAS III,

Promulgated:
Respondent.

January 25, 2012

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

DECISION
BERSAMIN, J.:

This appeal assails the adverse decision of the Court of Appeals (CA) that dismissed
1

the petition for certiorari brought by the petitioner to nullify and set aside the
resolutions issued by the Secretary of Justice on July 20, 2004 and November 18,
2

2005 directing the City Prosecutor of Malabon City to withdraw the information in
3

Criminal Case No. 27020 entitled People v. Antonino O. Tobias III.

We affirm the CA in keeping with the principle of non-interference with the

prerogative of the Secretary of Justice to review the resolutions of the public
prosecutor in the latter’s determination of the existence of probable cause, absent any
showing that the Secretary of Justice thereby commits grave abuse of his discretion.

Antecedents

In 1997, Rosella A. Santiago, then the OIC-Branch Head of Metropolitan Bank &
Trust Company (METROBANK) in Valero Street, Makati City, was introduced to
respondent Antonino O. Tobias III (Tobias) by one Jose Eduardo Gonzales, a valued
client of METROBANK. Subsequently, Tobias opened a savings/current account for
and in the name of Adam Merchandising, his frozen meat business. Six months later,
Tobias applied for a loan from METROBANK, which in due course conducted trade
and credit verification of Tobias that resulted in negative findings. METROBANK
next proceeded to appraise the property Tobias offered as collateral by asking him for
a photocopy of the title and other related documents. The property consisted of four
4

parcels of land located in Malabon City, Metro Manila with a total area of 6,080
square meters and covered by Transfer Certificate of Title (TCT) No. M-
16751. Based on the financial statements submitted by Tobias, METROBANK
5

approved a credit line for P40,000,000.00. On August 15, 1997, Joselito Bermeo
Moreno, Lead Internal Affairs Investigator of METROBANK, proceeded to the
Registry of Deeds of Malabon to cause the annotation of the deed of real estate
mortgage on TCT No. M-16751. The annotation was Entry No. 26897. 6
Thereafter, Tobias initially availed himself of P20,000,000, but took out the balance
within six months. He paid the interest on the loan for about a year before defaulting.
7

His loan was restructured to 5-years upon his request. Yet, after two months, he again
defaulted. Thus, the mortgage was foreclosed, and the property was sold to
METROBANK as the lone bidder. On June 11, 1999, the certificate of sale was
8

issued in favor of METROBANK. 9

When the certificate of sale was presented for registration to the Registry of Deeds of
Malabon, no corresponding original copy of TCT No. M-16751 was found in the
registry vault. Atty. Sarah Principe-Bido, Deputy Register of Deeds of Malabon, went
on to verify TCT No. M-16751 and learned that Serial No. 4348590 appearing therein
had been issued for TCT No. M-15363 in the name of one Alberto Cruz; while TCT
No. 16751 (now TCT No. 390146) appeared to have been issued in the name of
Eugenio S. Cruz and Co. for a parcel of land located in Navotas. 10

Given such findings, METROBANK requested the Presidential Anti-Organized

Crime Task Force (PAOCTF) to investigate. In its report dated May 29,
11

2000, PAOCTF concluded that TCT No. M-16751 and the tax declarations submitted
12

by Tobias were fictitious. PAOCTF recommended the filing against Tobias of a

criminal complaint for estafa through falsification of public documents under
paragraph 2 (a) of Article 315, in relation to Articles 172(1) and 171(7) of the Revised
Penal Code. 13

The Office of the City Prosecutor of Malabon ultimately charged Tobias with estafa
through falsification of public documents through the following information, viz:
14

xxx
 That on or about the 15th day of August, 1997 in the Municipality of
Malabon, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, by means of deceit, false pretense,
fraudulent acts and misrepresentation executed prior to or simultaneous
with the commission of fraud, represented to METROBANK, as
represented by MS. ROSELLA S. SANTIAGO, that he is the registered
owner of a parcel of land covered by TCT No. M-16751 which he
represented to be true and genuine when he knew the Certificate of Title
No. M-16751 is fake and spurious and executed a Real Estate Mortgage
in favor of Metrobank and offered the same as collateral for a loan and
Rosella S. Santiago relying on said misrepresentation gave to accused,
the amount of P20,000,000.00 and once in possession of the amount,
with intent to defraud, willfully, unlawfully and feloniously failed to
deliver the land covered by spurious title and misappropriate, misapply
and converted the said amount of P20,000,000.00 to his own personal
use and benefit and despite repeated demands accused failed and refused
and still fails and refuses to return the amount to complainant
METROBANK, and/or delivered the land covered in the spurious title in
the aforementioned amount of P20,000,000.00.

CONTRARY TO LAW. 15

Tobias filed a motion for re-investigation, which was granted.

16

In his counter-affidavit submitted during the re-investigation, Tobias averred that he

17

had bought the property from one Leonardo Fajardo through real estate brokers
Augusto Munsuyac and Carmelito Pilapil; that Natalio Bartolome, his financial
consultant from Carwin International, had convinced him to purchase the property due
to its being an ideal site for his meat processing plant and cold storage business; that
the actual inspection of the property as well as the verification made in the Registry of
Deeds of Malabon City had ascertained the veracity of TCT No. 106083 under the
name of Leonardo Fajardo; that he had applied for the loan from METROBANK to
pay the purchase price by offering the property as collateral; that in order for the final
application to be processed and the loan proceeds to be released, METROBANK had
advised him to have the title first transferred to his name; that he had executed a deed
of absolute sale with Fajardo covering the property, and that said instrument had been
properly registered in the Registry of Deeds; that the transfer of the title, being under
the account of the seller, had been processed by seller Fajardo and his brokers
Munsuyac and Pilapil; that his title and the property had been inspected and verified
by METROBANK’s personnel; and that he did not have any intention to defraud
METROBANK.

Nonetheless, on December 27, 2002, the City Prosecutor of Malabon still found
probable cause against Tobias, and recommended his being charged with estafa
through falsification of public document. 18

Tobias appealed to the Department of Justice (DOJ).

On July 20, 2004, then Acting Secretary of Justice Ma. Merceditas N. Gutierrez
issued a resolution directing the withdrawal of the information filed against
Tobias, to wit:
19

WHEREFORE, the assailed resolution is hereby REVERSED and

SET ASIDE. The City Prosecutor of Malabon City is directed to cause
the withdrawal of the Information in Crim. Case No. 27020 against
respondent Antonino O. Tobias III, and report the action taken thereon
within ten (10) days from receipt hereof.

SO ORDERED.

Acting Secretary of Justice Gutierrez opined that Tobias had sufficiently established
his good faith in purchasing the property; that he had even used part of the proceeds of
the loan to pay the seller; that it was METROBANK that had caused the annotation of
the mortgage on the TCT, thereby creating an impression that the title had been
existing in the Registry of Deeds at that time; that, accordingly, the presumption that
the possessor of a falsified document was the author of the falsification did not apply
because it was always subject to the qualification or reference as to the approximate
time of the commission of the falsification.

METROBANK moved to reconsider, arguing that Tobias had employed deceit or

20

false pretense in offering the property as collateral by using a fake title; and that the
presumption that the possessor of the document was the author of the falsification
applied because no other person could have falsified the TCT and would have
benefitted therefrom except Tobias himself.

On November 18, 2005, Secretary of Justice Raul M. Gonzalez denied

METROBANK’s motion for reconsideration. 21

Ruling of the CA

METROBANK challenged the adverse resolutions through certiorari.

On December 29, 2006, the CA promulgated its decision, dismissing

22

METROBANK’s petition for certiorari by holding that the presumption of authorship

might be disputed through a satisfactory explanation, viz:

We are not unaware of the established presumption and rule that when it
is proved that a person has in his possession a falsified document and
makes use of the same, the presumption or inference is that such person
is the forger (Serrano vs. Court of Appeals, 404 SCRA 639, 651 [2003]),
citing Koh Tieck Heng vs. People, 192 SCRA 533, 546-547 [1990]).
Yet, the Supreme Court declared that in the absence of satisfactory
explanation, one who is found in possession of a forged document and
who used it is presumed to be the forger (citing People vs. Sendaydiego,
81 SCRA 120, 141 [1978]). Very clearly then, a satisfactory explanation
could render ineffective the presumption which, after all, is merely a
disputable one.

It is in this score that We affirm the resolution of the Department of

Justice finding no probable cause against private respondent Tobias for
estafa thru falsification of public document. The record speaks well of
Tobias’ good faith and lack of criminal intention and liability. Consider:

(a) Tobias has in his favor a similar presumption that good

faith is always presumed. Therefore, he who claims bad faith
must prove it (Prinsipio vs. The Honorable Oscar Barrientos,
G.R. 167025, December 19, 2005). No such evidence of bad
faith of Tobias appears on record;

(b) Tobias’ actuation in securing the loan belies any criminal

intent on his part to deceive petitioner Bank. He was not in a
hurry to obtain the loan. He had to undergo the usual process of
the investigative arm or machine of the Bank not only on the
location and the physical appearance of the property but
likewise the veracity of its title. Out of the
approved P40,000,000.00 loan he only availed
of P20,000,000.00, for his frozen meat business which upon
investigation of the Bank failed to give negative results;

(c) Tobias paid the necessary interests for one (1) year on the
loan and two (2) installments on the restructured loan; and
 (d) More importantly, the loan was not released to him until
after the mortgage was duly registered with the Registry of
Deeds of Malabon City and even paid the amount of P90,000.00
for the registration fees therefor.

These actuations, for sure, can only foretell that Tobias has the least
intention to deceive the Bank in obtaining the loan. It may not be
surprising to find that Tobias could even be a victim himself by another
person in purchasing the properties he offered as security for the loan. 23

The CA stressed that the determination of probable cause was an executive

function within the discretion of the public prosecutor and, ultimately, of the Secretary
of Justice, and the courts of law could not interfere with such determination; that the
24

private complainant in a criminal action was only concerned with its civil aspect; that
should the State choose not to file the criminal action, the private complainant might
initiate a civil action based on Article 35 of the Civil Code, to wit:

In the eventuality that the Secretary of Justice refuses to file the criminal
complaint, the complainant, whose only interest is the civil aspect of the
case and not the criminal aspect thereof, is not left without a remedy. In
Vda. De Jacob vs. Puno, 131 SCRA 144, 149 [1984], the Supreme Court
has this for an answer:

“The remedy of complainant in a case where the Minister of

Justice would not allow the filing of a criminal complaint
against an accused because it is his opinion that the evidence is
not sufficient to sustain an information for the complaint with
which the respondents are charged of, is to file a civil action as
indicated in Article 35 of the Civil Code, which provides:
 ‘Art. 35. When a person, claiming to be injured by a
criminal offense, charges another with the same, for
which no independent civil action is granted in this Code
or any special law, but the justice of the peace finds no
reasonable grounds to believe that a crime has been
committed, or the prosecuting attorney refuses or fails to
institute criminal proceedings, the complainant may bring
a civil action for damages against the alleged offender.
Such civil action may be supported by a preponderance of
evidence. Upon the defendant’s motion, the court may
require the plaintiff to file a bond to indemnify the
defendant in case the complainant should be found to be
malicious.

‘If during the pendency of the civil action, an information

should be presented by the prosecuting attorney, the civil
action shall be suspended until the termination of the
criminal proceedings.’” 25

METROBANK sought reconsideration, but the CA denied its motion for that purpose,
emphasizing that the presumption that METROBANK firmly relied upon was
overcome by Tobias sufficiently establishing his good faith and lack of criminal
intent. The CA relevantly held:

Petitioner should be minded that the subject presumption that the

possessor and user of a forged or falsified document is presumed to be
the falsifier or forger is a mere disputable presumption and not a
conclusive one. Under the law on evidence, presumptions are divided
into two (2) classes: conclusive and rebuttable. Conclusive or absolute
presumptions are rules determining the quantity of evidence requisite for
the support of any particular averment which is not permitted to be
overcome by any proof that the fact is otherwise, if the basis facts are
established (1 Greenleaf, Ev 44; 29 Am Jur 2d, Evidence 164; 1 Jones on
Evidence 6 ed, page 132). Upon the other hand, a disputable
presumption has been defined as species of evidence that may be
 accepted and acted on when there is no other evidence to uphold the
contention for which it stands, or one which may be overcome by other
evidence (31A C.J.S., p. 197; People v. de Guzman, G.R. No. 106025,
Feb. 9, 1994; Herrera, Remedial Law, Vol. VI, 1999 Edition, pp. 40-41).
In fact, Section 3 of Rule 131 provides that the disputable presumptions
therein enumerated are satisfactory if uncontradicted but may be
contradicted and overcome by other evidence. Thus, as declared in Our
decision in this case, private respondent had shown evidence of good
faith and lack of criminal intention and liability that can overthrow the
controversial disputable presumption. 26

Issue

In this appeal, METROBANK raises the lone issue of—

WHETHER OR NOT THE HONORABLE COURT OF APPEALS

HAS DECIDED A QUESTION OF SUBSTANCE PROBABLY NOT
IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS
OF THIS HONORABLE COURT AND THUS, COMMITTED
PATENT ERROR IN RENDERING THE ASSAILED DECISION
DATED 29 DECEMBER 2006, DISMISSING METROBANK’S
PETITION FOR CERTIORARI AND AFFIRMING THE
RESOLUTIONS DATED 20 JULY 2004 AND 18 NOVEMBER 2005
OF THE HON. SECRETARY OF JUDTICE AND IN DENYING
METROBANK’S MOTION FOR RECONSIDERATION.

METROBANK submits that the presumption of authorship was sufficient to establish

probable cause to hold Tobias for trial; that the presumption applies when a person is
found in possession of the forged instrument, makes use of it, and benefits from it;
that contrary to the ruling of the CA, there is no requirement that the legal
presumption shall only apply in the absence of a valid explanation from the person
found to have possessed, used and benefited from the forged document; that the CA
erred in declaring that Tobias was in good faith, because good faith was merely
evidentiary and best raised in the trial on the merits; and that Tobias was heavily
involved in a modus operandi of using fake titles because he was also being tried for a
similar crime in the RTC, Branch 133, in Makati City.
METROBANK maintains that what the Secretary of Justice did was to determine the
innocence of the accused, which should not be done during the preliminary
investigation; and that the CA disregarded such lapse.

On the other hand, Tobias posits that the core function of the Department of Justice is
to prosecute the guilty in criminal cases, not to persecute; that although the
prosecutors are given latitude to determine the existence of probable cause, the review
power of the Secretary of Justice prevents overzealous prosecutors from persecuting
the innocent; that in reversing the resolution of Malabon City Assistant Prosecutor
Ojer Pacis, the Secretary of Justice only acted within his authority; that, indeed, the
Secretary of Justice was correct in finding that there was lack of evidence to prove
that the purported fake title was the very cause that had induced the petitioner to grant
the loan; and that the Secretary likewise appropriately found that Tobias dealt with the
petitioner in good faith because of lack of proof that he had employed fraud and deceit
in securing the loan.

Lastly, Tobias argues that the presumption of forgery could not be applied in his case
because it was METROBANK, through a representative, who had annotated the real
estate mortgage with the Registry of Deeds; and that he had no access to and contact
with the Registry of Deeds, and whatever went wrong after the annotation was beyond
his control.

Ruling

The appeal has no merit.

Under the doctrine of separation of powers, the courts have no right to directly decide
matters over which full discretionary authority has been delegated to the Executive
Branch of the Government, or to substitute their own judgments for that of the
27

Executive Branch, represented in this case by the Department of Justice. The settled
28
policy is that the courts will not interfere with the executive determination of probable
cause for the purpose of filing an information, in the absence of grave abuse of
discretion. That abuse of discretion must be so patent and gross as to amount to an
29

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, such as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility. For instance, in Balanganan v.
30

Court of Appeals, Special Nineteenth Division, Cebu City, the Court ruled that the
31

Secretary of Justice exceeded his jurisdiction when he required “hard facts and solid
evidence” in order to hold the defendant liable for criminal prosecution when such
requirement should have been left to the court after the conduct of a trial.

In this regard, we stress that a preliminary investigation for the purpose of

determining the existence of probable cause is not part of a trial. At a preliminary
32

investigation, the investigating prosecutor or the Secretary of Justice only determines

whether the act or omission complained of constitutes the offense charged. Probable
33

cause refers to facts and circumstances that engender a well-founded belief that a
crime has been committed and that the respondent is probably guilty thereof. There is
34

no definitive standard by which probable cause is determined except to consider the

attendant conditions; the existence of probable cause depends upon the finding of the
public prosecutor conducting the examination, who is called upon not to disregard the
facts presented, and to ensure that his finding should not run counter to the clear
dictates of reason.
35

Tobias was charged with estafa through falsification of public document the elements
of which are: (a) the accused uses a fictitious name, or falsely pretends to possess
power, influence, qualifications, property, credit, agency, business or imaginary
transactions, or employs other similar deceits; (b) such false pretense, fraudulent act
or fraudulent means must be made or executed prior to or simultaneously with the
commission of the fraud; (c) the offended party must have relied on the false pretense,
fraudulent act or fraudulent means, that is, he was induced to part with his money or
property because of the false pretense, fraudulent act or fraudulent means; and (d) as a
result thereof, the offended party suffered damage. It is required that the false
36
statement or fraudulent representation constitutes the very cause or the only motive
that induced the complainant to part with the thing.37

METROBANK urges the application of the presumption of authorship against Tobias

based on his having offered the duplicate copy of the spurious title to secure the loan;
and posits that there is no requirement that the presumption shall apply only when
there is absence of a valid explanation from the person found to have possessed, used
and benefited from the forged document.

We cannot sustain METROBANK’s urging.

Firstly, a presumption affects the burden of proof that is normally lodged in the
State. The effect is to create the need of presenting evidence to overcome the prima
38

facie case that shall prevail in the absence of proof to the contrary. As such, a
39

presumption of law is material during the actual trial of the criminal case where in the
establishment thereof the party against whom the inference is made should adduce
evidence to rebut the presumption and demolish the prima facie case. This is not so in
40

a preliminary investigation, where the investigating prosecutor only determines the

existence of a prima facie case that warrants the prosecution of a criminal case in
court.
41

Secondly, the presumption of authorship, being disputable, may be accepted and acted
upon where no evidence upholds the contention for which it stands. It is not correct to
42

say, consequently, that the investigating prosecutor will try to determine the existence
of the presumption during preliminary investigation, and then to disregard the
evidence offered by the respondent. The fact that the finding of probable cause during
a preliminary investigation is an executive function does not excuse the investigating
prosecutor or the Secretary of Justice from discharging the duty to weigh the evidence
submitted by the parties. Towards that end, the investigating prosecutor, and,
ultimately, the Secretary of Justice have ample discretion to determine the existence
of probable cause, a discretion that must be used to file only a criminal charge that
43

the evidence and inferences can properly warrant.

The presumption that whoever possesses or uses a spurious document is its forger
applies only in the absence of a satisfactory explanation. Accordingly, we cannot
44

hold that the Secretary of Justice erred in dismissing the information in the face of the
controverting explanation by Tobias showing how he came to possess the spurious
document. Much less can we consider the dismissal as done with abuse of discretion,
least of all grave. We concur with the erudite exposition of the CA on the matter, to
wit:

It would seem that under the above proposition of the petitioner, the
moment a person has in his possession a falsified document and has
made use of it, probable cause or prima facie is already established and
that no amount of satisfactory explanation will prevent the filing of the
case in court by the investigating officer, for any such good explanation
or defense can only be threshed out in the trial on the merit. We are not
to be persuaded. To give meaning to such argumentation will surely
defeat the very purpose for which preliminary investigation is required in
this jurisdiction.

A preliminary investigation is designed to secure the respondent

involved against hasty, malicious and oppressive prosecution. A
preliminary investigation is an inquiry to determine whether (a) a crime
has been committed, and (b) whether there is probable cause to believe
that the accused is guilty thereof (De Ocampo vs. Secretary of Justice,
480 SCRA 71 [2006]). It is a means of discovering the person or persons
who may be reasonably charged with a crime (Preferred Home
Specialties, Inc. vs. Court of Appeals, 478 SCRA 387, 410 [2005]).
Prescindingly, under Section 3 of Rule 112 of the Rules of Criminal
Procedure, the respondent must be informed of the accusation against
him and shall have the right to examine the evidence against him and
submit his counter-affidavit to disprove criminal liability. By far,
 respondent in a criminal preliminary investigation is legally entitled to
explain his side of the accusation.

We are not unaware of the established presumption and rule that when it
is proved that a person has in his possession a falsified document and
makes use of the same the presumption or inference is that such person
is the forger (Serrano vs. Court of Appeals, 404 SCRA 639, 651 [2003]),
citing Koh Tieck Heng vs. People, 192 SCRA 533, 546-547 [1990]).
Yet, the Supreme Court declared that in the absence of satisfactory
explanation, one who is found in possession of a forged document and
who used it is presumed to be the forger (citing People vs. Sendaydiego,
81 SCRA 120, 141 [1978]). Very clearly then, a satisfactory explanation
could render ineffective the presumption which, after all, is merely a
disputable one. 45

We do not lose sight of the fact that METROBANK, a commercial bank dealing in
real property, had the duty to observe due diligence to ascertain the existence and
condition of the realty as well as the validity and integrity of the documents bearing
on the realty. Its duty included the responsibility of dispatching its competent and
46

experience representatives to the realty to assess its actual location and condition, and
of investigating who was its real owner. Yet, it is evident that METROBANK did not
47

diligently perform a thorough check on Tobias and the circumstances surrounding the
realty he had offered as collateral. As such, it had no one to blame but itself. Verily,
banks are expected to exercise greater care and prudence than others in their dealings
because their business is impressed with public interest. Their failure to do so
48

constitutes negligence on its part.

49

WHEREFORE, the Court DENIES the petition for review on certiorari,

and AFFIRMS the decision of the Court of Appeals promulgated on December 29,
2006. The petitioner shall pay the costs of suit.

SO ORDERED.
 [A.M. NO. 11-7-10-SC - July 31, 2012]

Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the
Retired Chief/Associate Justices of the Supreme Court.

RESOLUTION

PER CURIAM:

The present administrative matter stems from the two Memoranda, dated July 14, 2011 and August 10,
2010, submitted by Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative Officer, Office
of Administrative Services, to the Office of the Chief Justice. These

Memoranda essentially ask the Court to determine the proper formula to be used in computing the appraisal
value that a retired Chief Justice and several Associate Justices of the Supreme Court have to pay to acquire
the government properties they used during their tenure.

THE FACTUAL ANTECEDENTS

This issue has its roots in the June 8, 2010 Opinion1 issued by the Legal Services Sector, Office of the
General Counsel of the Commission on Audit (COA), which found that an underpayment amounting to
P221,021.50 resulted when five (5) retired Supreme Court justices purchased from the Supreme Court the
personal properties assigned to them during their incumbency in the Court, to wit:ςηαñrοblε š ν ιr†υαl l αω l ιb rα rÿ

Valuation
Valuation under
Name of Items under COA Difference
Justice Purchased CFAG Memorandum (in pesos)
(in pesos) No. 98-569A
(in pesos)
Artemio Toyota 341,241.10 365,000.00 23,758.90
Panganiban Camry,
(Chief Justice) 2003 model
Toyota 136,500.00 151,000.00 14,500.00
Grandia,
2002 model
Toyota 115,800.00 156,000.00 40,200.00
Camry,
2001 model
Ruben T. Toyota 579,532.50 580,600.00 1,067.50
Reyes Camry,
(Associate 2005 model
Justice)
 Toyota 117,300.00 181,200.00 63,900.00
Grandia,
2003 model
Angelina S. Toyota 115,800.00 150,600.00 34,800.00
Gutierrez Grandia,
(Associate 2002 model
Justice)
Adolfo S. Toyota 536,105.00 543,300.00 9,195.00
Azcuna Camry,
(Associate 2005 model
Justice)
Toyota 117,300.00 145,000.00 27,700.00
Grandia,
2002 model
Sony TV Set 2,399.90 2,500.00 100.10
Ma. Alicia 5,800.002

The COA attributed this underpayment to the use by the Property Division of the Supreme Court of the
wrong formula in computing the appraisal value of the purchased vehicles. According to the COA, the
Property Division erroneously appraised the subject motor vehicles by applying Constitutional Fiscal
Autonomy Group (CFAG) Joint Resolution No. 35 dated April 23, 1997 and its guidelines, in compliance with
the Resolution of the Court En Banc dated March 23, 2004 in A.M. No. 03-12-01,3when it should have
applied the formula found in COA Memorandum No. 98-569-A4 dated August 5, 1998.

Recommendations of the Office of Administrative Services In her Memorandum dated August 10, 2010, Atty.
Candelaria recommended that the Court advise the COA to respect the in-house computation based on the
CFAG formula, noting that this was the first time that the COA questioned the authority of the Court in using
CFAG Joint Resolution No. 35 and its guidelines in the appraisal and disposal of government property since
these were issued in 1997. As a matter of fact, in two previous instances involving two (2) retired Court of
Appeals Associate Justices,5 the COA upheld the in-house appraisal of government property using the
formula found in the CFAG guidelines. More importantly, the Constitution itself grants the Judiciary fiscal
autonomy in the handling of its budget and resources. Full autonomy, among others,6 contemplates the
guarantee of full flexibility in the allocation and utilization of the Judiciary s resources, based on its own
determination of what it needs. The Court thus has the recognized authority to allocate and disburse such
sums as may be provided or required by law in the course of the discharge of its functions.7 To allow the
COA to substitute the Court s policy in the disposal of its property would be tantamount to an encroachment
into this judicial prerogative.

OUR RULING

We find Atty. Candelaria s recommendation to be well-taken.

The COA s authority to conduct post-audit examinations on constitutional bodies granted fiscal autonomy is
provided under Section 2(1), Article IX-D of the 1987 Constitution, which states:ςrαl αω

Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and
settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies,
or instrumentalities, including government-owned or controlled corporations with original charters, and on a
post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy
under this Constitution. emphasis ours

This authority, however, must be read not only in light of the Court s fiscal autonomy, but also in relation
with the constitutional provisions on judicial independence and the existing jurisprudence and Court rulings
on these matters.

Separation of Powers and Judicial Independence

In Angara v. Electoral Commission,8 we explained the principle of separation of powers, as follows: ςrαl αω

The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended
them to be absolutely unrestrained and independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the workings of the various departments
of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.9 ςrν ll

The concept of the independence of the three branches of government, on the other hand, extends 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.10 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.11
ς rν ll

Under the Judiciary s unique circumstances, independence encompasses the idea that individual judges can
freely exercise their mandate to resolve justiciable disputes, while the judicial branch, as a whole, should
work in the discharge of its constitutional functions free of restraints and influence from the other branches,
save only for those imposed by the Constitution itself.12 Thus, judicial independence can be "broken down
into two distinct concepts: decisional independence and institutional independence."13 Decisional
independence "refers to a judge s ability to render decisions free from political or popular influence based
solely on the individual facts and applicable law."14 On the other hand, institutional independence "describes
the separation of the judicial branch from the executive and legislative branches of government."15 Simply
put, institutional independence refers to the "collective independence of the judiciary as a body."16ςrνll

In the case In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in
Malaya Dated September 18, 19, 20 and 21, 2007,17 the Court delineated the distinctions between the two
concepts of judicial independence in the following manner: ς rα lαω

One concept is individual judicial independence, which focuses on each particular judge and seeks to insure
his or her ability to decide cases with autonomy within the constraints of the law. A judge has this kind of
independence when he can do his job without having to hear or at least without having to take it seriously if
he does hear criticisms of his personal morality and fitness for judicial office. The second concept is
institutional judicial independence. It focuses on the independence of the judiciary as a branch of
government and protects judges as a class.

A truly independent judiciary is possible only when both concepts of independence are preserved - wherein
public confidence in the competence and integrity of the judiciary is maintained, and the public accepts the
legitimacy of judicial authority. An erosion of this confidence threatens the maintenance of an independent
Third Estate. italics and emphases ours Recognizing the vital role that the Judiciary plays in our system of
government as the sole repository of judicial power, with the power to determine whether any act of any
branch or instrumentality of the government is attended with grave abuse of discretion,18 no less than the
Constitution provides a number of safeguards to ensure that judicial independence is protected and
maintained.
The Constitution expressly prohibits Congress from depriving the Supreme Court of its jurisdiction, as
enumerated in Section 5, Article VII of the Constitution, or from passing a law that undermines the security
of tenure of the members of the judiciary.19 The Constitution also mandates that the judiciary shall enjoy
fiscal autonomy,20 and grants the Supreme Court administrative supervision over all courts and judicial
personnel. Jurisprudence21 has characterized administrative supervision as exclusive, noting that only the
Supreme Court can oversee the judges and court personnel's compliance with all laws, rules and
regulations. No other branch of government may intrude into this power, without running afoul of the
doctrine of separation of powers.22 ς rνll

The Constitution protects as well the salaries of the Justices and judges by prohibiting any decrease in their
salary during their continuance in office,23 and ensures their security of tenure by providing that "Members
of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the
age of seventy years or become incapacitated to discharge the duties of their office."24 With these
guarantees, justices and judges can administer justice undeterred by any fear of reprisals brought on by
their judicial action. They can act inspired solely by their knowledge of the law and by the dictates of their
conscience, free from the corrupting influence of base or unworthy motives.25 ςrνll

All of these constitutional provisions were put in place to strengthen judicial independence, not only by
clearly stating the Court s powers, but also by providing express limits on the power of the two other
branches of government to interfere with the Court s affairs.

Fiscal Autonomy

One of the most important aspects of judicial independence is the constitutional grant of fiscal autonomy.
Just as the Executive may not prevent a judge from discharging his or her judicial duty (for example, by
physically preventing a court from holding its hearings) and just as the Legislature may not enact laws
removing all jurisdiction from courts,26 the courts may not be obstructed from their freedom to use or
dispose of their funds for purposes germane to judicial functions. While, as a general proposition, the
authority of legislatures to control the purse in the first instance is unquestioned, any form of interference
by the Legislative or the Executive on the Judiciary s fiscal autonomy amounts to an improper check on a
co-equal branch of government. If the judicial branch is to perform its primary function of adjudication, it
must be able to command adequate resources for that purpose. This authority to exercise (or to compel the
exercise of) legislative power over the national purse (which at first blush appears to be a violation of
concepts of separateness and an invasion of legislative autonomy) is necessary to maintain judicial
independence27 and is expressly provided for by the Constitution through the grant of fiscal autonomy under
Section 3, Article VIII. This provision states:ς rαl αω

Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by
the legislature below the amount appropriated for the previous year and, after approval, shall be
automatically and regularly released.

In Bengzon v. Drilon,28 we had the opportunity to define the scope and extent of fiscal autonomy in the
following manner: ς rαlα ω

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service
Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman
contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and
dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix
rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of
the government and allocate and disburse such sums as may be provided by law or prescribed by them in
the course of the discharge of their functions.

Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters
but DBM rules we need only 10 typewriters and sends its recommendations to Congress without even
informing us, the autonomy given by the Constitution becomes an empty and illusory platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and
flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints
on the manner the independent constitutional offices allocate and utilize the funds appropriated for their
operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution
but especially as regards the Supreme Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme
Court, Constitutional Commissions, and the Ombudsman have so far limited their objections to constant
reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless
provision.29 (emphases ours)

In this cited case, the Court set aside President Corazon Aquino s veto of particular provisions of the General
Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions of retired
justices of the Supreme Court and the Court of Appeals, on the basis of the Judiciary s constitutionally
guaranteed independence and fiscal autonomy. The Court ruled: ςrαlα ω

In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to
dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The
freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated from the
expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or
shortages in other items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary
must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its
priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to
augment appropriations where augmentation is needed.30 ςrν ll

The Court s declarations in Bengzon make it clear that the grant of fiscal autonomy to the Judiciary is more
extensive than the mere automatic and regular release of its approved annual appropriations;31 real fiscal
autonomy covers the grant to the Judiciary of the authority to use and dispose of its funds and properties at
will, free from any outside control or interference.

Application to the Present Case

The Judiciary s fiscal autonomy is realized through the actions of the Chief Justice, as its head, and of the
Supreme Court En Banc, in the exercise of administrative control and supervision of the courts and its
personnel. As the Court En Banc s Resolution (dated March 23, 2004) in A.M. No. 03-12-01 reflects, the
fiscal autonomy of the Judiciary serves as the basis in allowing the sale of the Judiciary s properties to
retiring Justices of the Supreme Court and the appellate courts: ςrαlα ω

WHEREAS, by the constitutional mandate of fiscal autonomy as defined in Bengzon v. Drilon (G.R. No.
103524, 15 April 1992, 208 SCRA 133, 150) the Judiciary has "full flexibility to allocate and utilize (its)
resources with the wisdom and dispatch that (its) needs require";

WHEREAS, the long-established tradition and practice of Justices or Members of appellate courts of
purchasing for sentimental reasons at retirement government properties they used during their tenure has
been recognized as a privilege enjoyed only by such government officials; and cralawl ibra ry

WHEREAS, the exercise of such privilege needs regulation to the end that respect for sentiments that a
retiring Justice attaches to properties he or she officially used during his or her tenure should be in
consonance with the need for restraint in the utilization and disposition of government resources.

By way of a long standing tradition, partly based on the intention to reward long and faithful service, the
sale to the retired Justices of specifically designated properties that they used during their incumbency has
been recognized both as a privilege and a benefit. This has become an established practice within the
Judiciary that even the COA has previously recognized.32 The En Banc Resolution also deems the grant of
the privilege as a form of additional retirement benefit that the Court can grant its officials and employees in
the exercise of its power of administrative supervision. Under this administrative authority, the Court has
the power to administer the Judiciary s internal affairs, and this includes the authority to handle and manage
the retirement applications and entitlements of its personnel as provided by law and by its own grants.33 ςrνll

Thus, under the guarantees of the Judiciary s fiscal autonomy and its independence, the Chief Justice and
the Court En Banc determine and decide the who, what, where, when and how of the privileges and benefits
they extend to justices, judges, court officials and court personnel within the parameters of the Court s
granted power; they determine the terms, conditions and restrictions of the grant as grantor.
In the context of the grant now in issue, the use of the formula provided in CFAG Joint Resolution No. 35 is
a part of the Court s exercise of its discretionary authority to determine the manner the granted retirement
privileges and benefits can be availed of. Any kind of interference on how these retirement privileges and
benefits are exercised and availed of, not only violates the fiscal autonomy and independence of the
Judiciary, but also encroaches upon the constitutional duty and privilege of the Chief Justice and the
Supreme Court En Banc to manage the Judiciary s own affairs.

As a final point, we add that this view finds full support in the Government Accounting and Auditing Manual
(GAAM), Volume 1, particularly, Section 501 of Title 7, Chapter 3, which states: ςrαlα ω

Section 501. Authority or responsibility for property disposal/divestment. The full and sole authority and
responsibility for the divestment and disposal of property and other assets owned by the national
government agencies or instrumentalities, local government units and government-owned and/or controlled
corporations and their subsidiaries shall be lodged in the heads of the departments, bureaus, and offices of
the national government, the local government units and the governing bodies or managing heads of
government-owned or controlled corporations and their subsidiaries conformably to their respective
corporate charters or articles of incorporation, who shall constitute the appropriate committee or body to
undertake the same. italics supplied; emphases ours

This provision clearly recognizes that the Chief Justice, as the head of the Judiciary, possesses the full and
sole authority and responsibility to divest and dispose of the properties and assets of the Judiciary; as Head
of Office, he determines the manner and the conditions of disposition, which in this case relate to a benefit.
As the usual practice of the Court, this authority is exercised by the Chief Justice in consultation with the
Court En Banc. However, whether exercised by the Chief Justice or by the Supreme Court En Banc, the
grant of such authority and discretion is unequivocal and leaves no room for interpretations and insertions.

ACCORDINGLY, premises considered, the in-house computation of the appraisal value made by the Property
Division, Office of `Administrative Services, of the properties purchased by the retired Chief Justice and
Associate Justices of the Supreme Court, based on CFAG Joint Resolution No. 35 dated April 23, 1997, as
directed under the Court Resolution dated March 23, 2004 in A.M. No. 03-12-01, is CONFIRMED to be legal
and valid. Let the Commission on Audit be accordingly advised of this Resolution for its guidance.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

A.M. No. P-08-2531 April 11, 2013

(Formerly A.M. No. 08-7-220-MTCC)

CIVIL SERVICE COMMISSION, Complainant,

vs.
MERLE RAMONEDA-PITA, Clerk III, Municipal Trial Court in Cities, Danao City. Respondent.

DECISION

PER CURIAM:

This administrative case arose from a letter1dated June 23, 2006 by Director David E. Cabanag, Jr.
of the Civil Service Commission (CSC) Regional Office No. VII calling the attention of the Office of
the Court Administrator (OCA) to the continued employment of Merle Ramoneda-Pita (Ramoneda-
Pita) as Clerk III of the Municipal Trial Court in Cities (MTCC), Danao City. It informed the OCA that
in CSC Resolution No. 0102632 dated January 26, 2001, Ramoneda-Pita was found guilty of
dishonesty and dismissed from the service. As accessory penalties, she was perpetually barred from
joining government service and her civil service eligibility was revoked. However, Ramoneda-Pita did
not declare her ineligibility when she stated in her Personnel Data Sheet (PDS)3 dated June 14,
2005 that she had never been involved in any administrative case and that she was civil service
eligible.

The antecedent facts follow.

On March 23, 1998, an anonymous letter4 informed the CSC of an alleged irregularity in the civil
service eligibility of Ramoneda-Pita. The letter stated that the irregularity concerned Ramoneda-
Pita’s taking of the Career Service Sub-Professional Examination held in Cebu City on July 26,
1987.

The CSC retrieved the records for the July 26, 1987 examinations and compared the pictures and
signatures of Ramoneda-Pita as they appeared in the Picture Seat Plan (PSP) for the exam and her
PDS dated October 17, 1990. As the pictures and signatures did not match, the CSC required
Ramoneda-Pita to explain why it seemed that another person took the civil service examination on
her behalf.

Ramoneda-Pita denied that someone else took the civil service examinations in her stead. She
averred that she took the civil service examinations on July 30, 1986 and not July 26, 1987. She
explained that there were dissimilarities in the pictures in the PSP and the PDS because these were
not taken on the same year and might have deteriorated in quality over the years. On the other
hand, she accounted for the difference in her signatures to her low educational attainment leading to
her non-development and non-maintenance of a usual signature.5

In its Investigation Report6 dated May 3, 1999, the CSC made the following observations and
recommendation:
The person who actually took the Career Service Subprofessional Examination on July 26, 1987 in
Cebu City, was the "Merle C. Ramoneda" whose picture and signature were affixed in the Admission
Slip/Notice of Admission and in the Picture Seat Plan, is NOT the "Merle C. Ramoneda" whose
picture and signature appear in the Personal Data Sheet dated October 17, 1990 of the real Merle C.
Ramoneda.

In view of the foregoing, considering that the evidence presented is substantial, it is recommended
that respondent Merle C. Ramoneda be adjudged guilty of the charges and meted the penalty of
dismissal with all its accessories.7

Thus, the CSC issued Resolution No. 010263 dated January 26, 2001 finding Ramoneda-Pita guilty
of dishonesty, the dispositive portion of which reads as follows:

WHEREFORE, the Commission hereby finds Merle C. Ramoneda guilty of the offense of
Dishonesty. Accordingly, the penalty of dismissal from the service with all its accessory penalties is
imposed.

Since the respondent is not in the government service, the penalty of dismissal is deemed
implemented. She is also perpetually barred from entering the government service and from taking
any civil service examination in the future. Her Civil Service Sub-Professional Eligibility is likewise
revoked.

Let a copy of this Resolution be furnished the Office of the Ombudsman-Visayas for whatever legal
action it may take under the premises.8

Ramoneda-Pita moved for reconsideration but the CSC denied it in Resolution No. 0108809 dated
May 3, 2001.

Ramoneda-Pita appealed CSC Resolution Nos. 010263 and 010880 to the Court of Appeals and,
subsequently, to this Court. In both instances, her appeal was denied.10

On January 14, 2005, Ramoneda-Pita wrote to then President Gloria Macapagal-Arroyo appealing
for clemency stating that she accepted her fate and turned a new leaf with a solemn commitment to
do good for the rest of her life. The Office of the President referred the matter to Director David
Cabanag, Jr. of the CSC Regional Office No. VII for validation, verification and investigation.11

While the appeal for clemency was pending and in the course of the CSC’s investigation, the CSC
discovered that, again, Ramoneda-Pita had been declaring in her PDS, particularly the PDS dated
June 14, 2005 submitted to the Supreme Court, that she had not been found guilty in any
administrative case and that she was civil service eligible.12

Thus, on May 11, 2006, the CSC, in its Investigation Report13 pursuant to the Office of the
President’s referral, found that Ramoneda-Pita had not sufficiently established moral reformation
which is crucial in the grant of executive clemency. It recommended that the plea for executive
clemency be denied.

On June 23, 2006, Director Cabanag, Jr. wrote a letter to the OCA informing it of the continued
employment of Ramoneda-Pita as Clerk III of the MTCC, Danao City despite the finality of CSC
Resolution No. 010263.
On August 18, 2006, the OCA required Ramoneda-Pita to submit her comment within fifteen (15)
days.

In her Comment dated September 7, 2006, Ramoneda-Pita asserted that she never concealed that
she had been previously found guilty of dishonesty. She claimed that her immediate supervisor,
Judge Manuel D. Patalinghug, was furnished a copy of CSC Resolution No. 010263. She admitted
having filed request for executive clemency with the Office of the President. In connection to this,
she said that the CSC directed her to submit some documents needed for its processing. She
explained that she made the entries in her June 14, 2005 PDS because she wanted to be consistent
in her statements in her previous PDS and, considering her low education, she just copied the data
entries contained in her earlier PDS. She said that it was never her intention to falsify the PDS and
she did not understand the legal implications. She prayed for the Court’s understanding and cited
her good record during her years of service.

In its Report14 dated July 4, 2008, the OCA recommended, among others, that the case be docketed
as a regular administrative matter and that this Court conduct its own investigation on the matter.

This Court noted and adopted the recommendation of the OCA in a Resolution15 dated August 6,
2008 where it directed the OCA to conduct its own investigation on the matter and submit a report
and recommendation thereon.

Thus, this administrative case.

In its Memorandum16 dated February 19, 2009, the OCA recommended Ramoneda-Pita’s dismissal
from the service. It found that Ramoneda-Pita fully participated in the proceedings before the CSC
never once questioning its jurisdiction. It stated:

In the instant case, respondent Ramoneda-Pita, who never even questioned the jurisdiction of the
CSC, fully participated in the proceedings before the CSC. Although she was not yet a Supreme
Court employee when the CSC instituted the case against her, she had already become a member
of the judiciary when Resolution No. 01-0263 dated January 26, 2001 finding her guilty and meting
her the penalty of dismissal was issued - having been appointed by the Court to her present position
on July 24, 2000. Her motion for reconsideration of the CSC Resolution was denied. The respondent
then filed a petition for review before the Court of Appeals which affirmed the same Resolution. A
petition for review on certiorari under Rule 45 was filed with the Supreme Court which in its
Resolution dated August 24, 2004 found no reversible error in the challenged decision of the Court
of Appeals to warrant the exercise by the Court of its discretionary appellate jurisdiction in the case.
Taking into consideration the pronouncement in the Ampong case, we believe that with all the more
reason the doctrine of estoppel should thus be considered applicable in the instant case as the
respondent went all the way to the Supreme Court to question the CSC Resolution. In addition, the
Court itself has even ruled on the case, effectively upholding CSC Resolution No. 01-0263 when it
explicitly stated that in any event, the petition would still be denied for failure thereof to sufficiently
show that the public respondent committed any reversible error in the challenged decision as to
warrant the exercise by this Court of its discretionary appellate jurisdiction in this case.

xxxx

There lies the question as to how should respondent then be proceeded against with respect to her
employment in the Judiciary. We deem that we cannot just implement CSC Resolution No. 01-0263
and dismiss the respondent outright. The Court still maintains its administrative jurisdiction over the
respondent and should therefore have the final determination of her administrative liability.
Considering, however, that the CSC had already conducted both fact-finding and formal
investigations, we find no reason why the Court should replicate what the CSC had done more
ably.17

In support of its conclusion, the OCA cited Ampong v. Civil Service Commission, CSC-Regional
Office No. 1118among others. Said the OCA:

The standard procedure is for the CSC to bring its complaint against a judicial employee before the
Supreme Court through the OCA as shown in several cases. The Court, however, has made
exceptions in certain cases. In the very recent case of Ampong, the Court, although it declared that it
had administrative jurisdiction over the petitioner, nevertheless upheld the ruling of the CSC based
on the principle of estoppel. In the said case, petitioner Ampong, a court interpreter at the time the
CSC instituted administrative proceedings against her, questioned the jurisdiction of the CSC after it
found her guilty of dishonesty in surreptitiously taking the CSC-supervised Professional Board
Examination for Teachers (PBET) in 1991 in place of another person and dismissed her from the
service. The Court denied the petition on the ground that the previous actions of petitioner estopped
her from attacking the jurisdiction of the CSC which had accorded her due process.19 (Citations
omitted.)

The OCA then proceeded to discuss the merits of Ramoneda-Pita’s contention. It noted Ramoneda-
Pita’s claim that her physical appearance changed over the intervening years since she took the
Civil Service Sub-Professional Examinations. She also posed the possibility that the picture quality
had deteriorated over time. In addition, she also claims that the examiner must have interchanged
her picture with someone else as he was the one who pasted the pictures to the seat plan.

However, the OCA seriously doubted the validity of Ramoneda-Pita’s claim saying:

We do not think that a mere three-year gap would bring about drastic changes in a person’s
appearance. Besides, the respondent failed to substantiate her claims. She could have easily
submitted additional evidence, such as pictures to show the gradual change in her appearance
through the three-year period.20

On the confusion with respect to the pictures, the OCA said that it was not "likely due to the strict
procedure followed during civil service examinations x x x."21 Moreover, the OCA stated:

The presentation of various explanations and conjectures show the inconsistent stands taken by the
respondent. She insists that the picture in the seat plan was her and that her physical appearance
has changed over the years, yet in the same breath argues that the examiner must have
interchanged her picture with the pictures of other examinees.

The same inconsistency is manifest in all her records. Upon the Court’s resolution of her petition for
review on certiorari, the respondent states in her letter dated January 14, 2005 addressed to
President Arroyo that she fought hard to prove her innocence but had accepted her fate and
mistake, with the solemn commitment that she would never commit the same or similar mistake for
the rest of her life. x x x.

xxxx

The respondent has a string of dishonest acts which started when she had somebody impersonate
her in taking the Civil Service Subprofessional examination. Upon the discovery of her deception,
she embarked on a series of prevarications to cover it up, the most notable of which is the Personal
Data Sheet dated April 5, 2000 she submitted to the Court as one of the supporting documents for
her appointment to the judiciary. In the Personal Data Sheet, item no. 25 asks "Do you have any
pending administrative case?" while item no. 27 queries "Have you ever been convicted of any
administrative offense?" The respondent answered "no" to both questions. It must be remembered
that at the time she filled out the Personal Data Sheet, she already had a pending administrative
case, the CSC having already filed its formal charge on September 7, 1998. Her fraudulent answers
had been instrumental in the unquestioned approval of her appointment because had she answered
truthfully the Court would have been alerted to her pending administrative case with the CSC and
would have surely withheld, if not denied, her appointment.

Taking judicial notice of the fact-finding and formal investigations conducted by the CSC relative to
the impersonation case of the respondent and given the observations on her subsequent actuations
which were predisposed to deceive, we find that the respondent, is indeed, guilty of dishonesty and
falsification of document.22

The OCA thus recommended:

In view of the foregoing, we respectfully submit for the consideration of the Honorable Court the
recommendation that respondent Merle Ramoneda-Pita, Clerk III, Municipal Trial Court in Cities,
Danao City, be found GUILTY of Dishonesty and Falsification of Official Document and be
DISMISSED from the service with forfeiture of all her retirement benefits, except the value of her
accrued leaves, if any, and with prejudice to re-employment in the government or any of its
subdivisions, instrumentalities or agencies including government-owned or controlled corporations.23

We note and adopt the recommendation of the OCA.

As a preliminary matter, we address the matter of propriety of the proceedings against Ramoneda-
Pita in the CSC.

We have always maintained that it is only the Supreme Court that can oversee the judges’ and court
personnel’s administrative compliance with all laws, rules and regulations. No other branch of
government may intrude into this power, without running afoul of the doctrine of separation of
powers.24 However, as aptly pointed out by the OCA, Ramoneda-Pita was afforded the full protection
of the law, that is, afforded due process. She was able to file several affidavits and pleadings before
the CSC with counsel. It may also be noted that the case had been elevated to the Court of Appeals
and this Court, where the Resolution of the CSC was upheld in both instances.

The OCA’s reliance in Ampong v. Civil Service Commission is well taken. As we have stated in Civil
Service Commission v. Andal25:

In Ampong, petitioner in that case admitted her guilt. She voluntarily went to the CSC regional office,
admitted to the charges leveled against her and waived her right to the assistance of counsel. She
was given ample opportunity to present her side and adduce evidence in her defense before the
CSC. She filed her answer to the charges against her and even moved for a reconsideration of the
adverse ruling of the CSC. In short, Ampong did not question the authority of the CSC and, in fact,
actively participated in the proceedings before it.

In the present case, while respondent may have filed his Answer to the formal charge of dishonesty
after having been directed to do so, he denied having taken the civil service examination and did not
even appear at the formal investigation conducted by the CSC-NCR. He appealed to the CSC after
the adverse decision of the CSC-NCR was rendered but raised the issue of lack of jurisdiction over
his person. He argued that as an employee in the Judiciary, "the jurisdiction to hear disciplinary
action against him vests with the Sandiganbayan or the Supreme Court." It cannot therefore be said
that he was estopped from assailing the jurisdiction of the CSC.

This notwithstanding, we reiterate that we will not and cannot tolerate dishonesty for the judiciary
expects the highest standard of integrity from all its employees. The conduct and behavior of
everyone connected with an office charged with the dispensation of justice is circumscribed with a
heavy burden or responsibility. The Court will not hesitate to rid its ranks of undesirables. (Citations
omitted; emphases ours.)

In any event, the OCA had asked Ramoneda-Pita to comment on the matter. She was therefore
given due notice and fair hearing. It is noteworthy that she only rehashed the arguments that she
raised before the CSC proceedings.

We now proceed to the substantive aspect of the case.

This Court has defined dishonesty in Civil Service Commission v. Perocho, Jr.26 as:

Intentionally making a false statement in any material fact, or practicing or attempting to practice any
deception or fraud in securing his examination, registration, appointment or promotion. Thus,
dishonesty, like bad faith, is not simply bad judgment or negligence. Dishonesty is a question of
intention. In ascertaining the intention of a person accused of dishonesty, consideration must be
taken not only of the facts and circumstances which gave rise to the act committed by the
respondent, but also of his state of mind at the time the offense was committed, the time he might
have had at his disposal for the purpose of meditating on the consequences of his act, and the
degree of reasoning he could have had at that moment. (Citations omitted.)

We have previously dealt with cases with a marked resemblance to the present case.

In Civil Service Commission v. Sta. Ana,27 we found sufficient basis to dismiss a court stenographer
for misrepresenting herself to have passed the Career Service Professional Examination Computer
Assisted Test (CAT) when she had somebody else take the exam for her. The CSC undertook to
compare the respondent’s PDS with the CAT application and the Picture Seat Plan of the
examinations and found them to be different.

In Civil Service Commission v. Dasco,28 we found Ms. Caridad S. Dasco guilty of dishonesty and
consequently dismissed her from the service for having someone else take the requisite Civil
Service Examinations in her stead. It was found that her picture in the CSC’s PSP had a marked
difference from her PDS.

In Office of the Court Administrator v. Bermejo,29 we dismissed Ms. Lourdes Bermejo for having
another person impersonate her at the Civil Service Examinations.

A careful review of the documents submitted before the CSC and a perusal of its investigation
reports in the present case, convince us that Ramoneda-Pita was not the one who took the Civil
Service Sub-Professional Examinations conducted on July 26, 1987. Specimen signatures in the
various PDS she had submitted over the years to the Court do not resemble the signature which
appeared in the seat plan of the CSC. Moreover, no substantive evidence was presented by
Ramoneda-Pita to bolster her defense that she was not able to develop a settled signature. Nor did
she substantiate her claim that the difference between the pictures in the PSP and the PDS is due to
the aging process.
This Court cannot stress enough that its employees should hold the highest standard of integrity for
they are a reflection of this esteemed institution which they serve. It certainly cannot countenance
any form of dishonesty perpetrated by its employees. As we have stated in the Code of Conduct for
Court Personnel30:

WHEREAS, court personnel, from the lowliest employee to the clerk of court or any position lower
than that of a judge or justice, are involved in the dispensation of justice, and parties seeking redress
from the courts for grievances look upon court personnel as part of the Judiciary.

WHEREAS, in performing their duties and responsibilities, court personnel serve as sentinels of
justice and any act of impropriety on their part immeasurably affects the honor and dignity of the
Judiciary and the people’s confidence in it. (Emphases supplied.)

In this case, Ramoneda-Pita’s length of service in the judiciary is inconsequential. The CSC’s
discovery of the perfidy in her acquisition of her civil service eligibility and her insistence in stating
that she is civil service eligible in her PDS when she had been already found guilty of an
administrative charge even after the finality of the CSC Resolution and even after her seeking
clemency tell this Court that Ramoneda-Pita has not and does not live up to the high standards
demanded of a court employee. As the Court has previously stated it will not hesitate to rid the ranks
of undesirables.31

WHEREFORE, Merle C. Ramoneda-Pita is hereby found GUILTY of dishonesty. She is DISMISSED

from the service with forfeiture of all her retirement benefits, except the value of her accrued leave
credits, if any, and with prejudice to re-employment in the government or any of its subdivisions,
instrumentalities or agencies including government-owned and controlled corporations. Let a copy of
this Decision be attached to her records with this Court.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41,
Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that,
for the years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or
any person who has or had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and
other local government officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C.
Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven
years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took up law, and even when she was
already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her
to just stay at home. He was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's
Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted to the household help about
his sexual relations with said bank manager. Petitioner told private respondent, though, that he was
just using the woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms
and shook her with such force that caused bruises and hematoma. At another time, petitioner hit
private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom
he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the
latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of
his cruelty to private respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered
to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing
therapy almost every week and is taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's job.
He then packed his things and told private respondent that he was leaving her for good. He even
told private respondent's mother, who lives with them in the family home, that private respondent
should just accept his extramarital affair since he is not cohabiting with his paramour and has not
sired a child with her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not get a single centavo.14
Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation – of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly
salary of P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than P200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation together with the
bills for utilities.15

On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of
pesos from the corporations.16After private respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home
within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering
that he be removed by police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act
No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children from her
when he arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and
driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where
the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation
rights to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial
 Director of the PNP to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house
for them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received
from all the corporations from 1 January 2006 up to 31 March 2006, which himself and as
President of the corporations and his Comptroller, must submit to the Court not later than 2
April 2006. Thereafter, an accounting of all these funds shall be reported to the court by the
Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner
sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan
Patrol and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred
Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand
Pesos (Php 50,000.00) per month until the matter of support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent and returning the same to
its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the
bond from P5,000,000.00 to a more manageable level at P100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
 from receipt of the Temporary Protection Order by his counsel, otherwise be declared in
Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he cannot return until 48 hours after the
petitioners have left, so that the petitioner Rosalie and her representatives can remove things
from the conjugal home and make an inventory of the household furniture, equipment and
other things in the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of
Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of
Court within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent
filed another application24for the issuance of a TPO ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter
was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex
Van used by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the two small boys,
Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

 1) Prohibited from threatening to commit or committing, personally or through another, acts
of violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating

in any form with the offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents,
from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers,
her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard Darwin Gayona and the petitioner's other
household helpers from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well as from the schools of the
three children; Furthermore, that respondent shall not contact the schools of the children
directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children through the schools and the TPO will
be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to
the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00

for rental for the period from August 6 to September 6, 2006; and support in arrears from
March 2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a
Starex van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another vehicle which is the one taken by J
Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those in
which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent
have an interest in, especially the conjugal home located in No. 14, Pitimini St., Capitolville
Subdivision, Bacolod City, and other properties which are conjugal assets or those in which
the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an
interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by TCT
Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a
copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that
her signature will be forged in order to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's manifestation,30 however, that he
has not received a copy of private respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after each expiration, until further orders,
and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil
case for being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against
the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure
of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the
trial court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that –

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE
LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT

R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
 III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A.
9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law
in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide cases of domestic violence against
women and children.42 In accordance with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides
that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction
over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In the
absence of such court in the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority
as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law."46 The Constitution vests the power
of judicial review or the power to declare the constitutionality or validity of a law, treaty, international
or executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in
this Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the
Constitution contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior
courts in cases where such constitutionality happens to be in issue." Section 5, Article VIII of the
1987 Constitution reads in part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his Opposition to the petition for protection order before the
RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this
Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays
down a new kind of procedure requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:

SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why
a temporary or permanent protection order should not be issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the other hand, is any
claim by one party against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein.51Finally, a third-party complaint is a
claim that a defending party may, with leave of court, file against a person not a party to the action
for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.52 As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the
right of private respondent to a protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence.54 Be that as it may, Section
25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may
issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day,
to the extent possible, within the 30-day period of the effectivity of the temporary protection
order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed to litigate the constitutional issues,
without necessarily running afoul of the very purpose for the adoption of the rules on summary
procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a superior court, he could be granted
an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of
a petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United
States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the law.60

A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure"62 – an amalgamation of
two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 – providing protection to "all family members, leaving no one in isolation" but at
the same time giving special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same
measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence
apart from against women as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator respond to this kind
of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for victims. This includes the
men, children, live-in, common-law wives, and those related with the family.65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women
and not to families which was the issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity
to file a case against their spouses, their live-in partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult situation for women, Mr.
President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to
the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because
the family members have been included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be victimized and that children are almost always
the helpless victims of violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing
that they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights and dignity of both husband
and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts, sports
groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That
will be the net effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined
to accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.

So, if I may propose an amendment –

The President Pro Tempore. To the amendment.

Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is
not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-
year-old children being abused by their fathers, even by their mothers. And it breaks my heart to find
out about these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that.
It will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but
not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in this proceeding. Congress
has made its choice and it is not our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law.68 We only step in when there is a violation
of the Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:

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 state. 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. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection
clause by favoring women over men as victims of violence and abuse to whom the State extends its
protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all
make for real differences justifying the classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence of true equality."70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are nurturers, men's companions and supporters,
and take on subordinate roles in society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that power. And VAW is a form of men's
expression of controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the
early studies:

Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of
men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards
the patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her,
spit in her face or kick her about the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as
the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette movements,
expanding the liberation movement's agenda. They fought for women's right to vote, to own
property, and more. Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an important public concern. No less than the United
States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The [American Medical Association]
views these figures as "marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely assaulted women
per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents
involve sexual assault... In families where wife beating takes place, moreover, child abuse is often
present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also
common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the
role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing.
The UN itself established a Commission on the Status of Women.

The Philippines has been in cadence with the half – and full – steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before the law
of women and men. Our Senate has ratified the CEDAW as well as the Convention on the Rights of
the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No.
9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women
and children show that –

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx
(T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003.
Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of
these reported cases were committed by the women's intimate partners such as their husbands and
live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence

against women across an eight-year period from 2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW categories since its implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported 200 200 200 200 200 200

2010 2011
Cases 4 5 6 7 8 9

Rape 997 927 659 837 811 770 1,042 832

Incestuous
38 46 26 22 28 27 19 23
Rape

Attempted
194 148 185 147 204 167 268 201
Rape

Acts of
Lasciviousne 580 536 382 358 445 485 745 625
ss

Physical 3,55 2,33 1,89 1,50 1,30 1,49

2,018 1,588
Injuries 3 5 2 5 7 8

Sexual
53 37 38 46 18 54 83 63
Harassment

1,26 2,38 3,59 5,28

RA 9262 218 924 9,974 9,021
9 7 9 5

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinag
121 102 93 109 109 99 158 128
e
 RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnapping 16 34 23 28 18 25 22
29

Unjust
90 50 59 59 83 703 183 155
Vexation

6,27 5,37 4,88 5,72 6,90 9,48 15,10 12,94

Total
1 4 1 9 5 5 4 8

*2011 report covers only from January to August

Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against
men in the Philippines because incidents thereof are relatively low and, perhaps, because many
men will not even attempt to report the situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or more) times, compared with 11% of the
smaller number of men who had ever experienced domestic violence; and women constituted 89%
of all those who had experienced 4 or more incidents of domestic violence.75 Statistics in Canada
show that spousal violence by a woman against a man is less likely to cause injury than the other
way around (18 percent versus 44 percent). Men, who experience violence from their spouses are
much less likely to live in fear of violence at the hands of their spouses, and much less likely to
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse
are in self-defense or the result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles
to pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-
drawing animals in any public highways, streets, plazas, parks or alleys, said ordinance was
challenged as violative of the guaranty of equal protection of laws as its application is limited to
owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but
similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-
vehicle-drawing animals that also traverse the city roads, "but their number must be negligible and
their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that the legislative classification may result
in actual inequality is not violative of the right to equal protection, for every classification of persons
or things for regulation by law produces inequality in some degree, but the law is not thereby
rendered invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women
are often treated differently and less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He stressed that the widespread
gender bias in the U.S. has institutionalized historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" – first at the hands of the offender and then of the
legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner"
and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila
even called her a "prostitute," and accused her of being motivated by "insatiable greed" and of
absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack
of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific measures
focused on women does not discriminate against men.82 Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves
scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for
men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require the development
of a distinct mindset on the part of the police, the prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of Policy, as
follows:

SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect
the family and its members particularly women and children, from violence and threats to their
personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August
5, 1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on
October 6, 2003.86 This Convention mandates that State parties shall accord to women equality with
men before the law87 and shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two
protocols.89 It is, thus, bound by said Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and
their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment
or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as

a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of
the family to which the victim belongs, or to witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of
common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any

legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in
Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women.90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily understood and provide adequate contrast
between the innocent and the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited, and need not guess at
its meaning nor differ in its application.91 Yet, petitioner insists92 that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional anguish" are so
vague that they make every quarrel a case of spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld –
not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the
person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of
Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they and their son (Go-
Tan's husband) had community of design and purpose in tormenting her by giving her insufficient
financial support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life.96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented,"99 the court is
authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is
necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the defendant to abscond or dispose of
his property,102 in the same way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting vital public
interests,103 among which is protection of women and children from violence and threats to their
personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within five
(5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should
not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family, property, guns, money, children, job, future employment
and reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of
an overactive imagination. The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. "To be heard" does
not only mean verbal arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him visitation
rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days
(5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not
to file the required comment arguing that it would just be an "exercise in futility," conveniently
forgetting that the renewal of the questioned TPO was only for a limited period (30 days) each time,
and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due
process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued
to the wife to claim any property as her conjugal home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that
this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or
all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to
the residence, remain there until the respondent has gathered his things and escort him from the
residence;

xxxx
Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal and
exclusion may be permanent only where no property rights are violated. How then can the private
respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the avowed policy of the State to "protect and
strengthen the family as a basic autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof
to a mediator. The reason behind this provision is well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection
is problematic because the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who
1âwphi1

receives applications for a BPO shall issue the protection order to the applicant on the date of filing
after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to
act on the application for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of
an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.

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.112 On the other hand, executive power "is generally defined as
the power to enforce and administer the laws. It is the power of carrying the laws into practical
operation and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her
child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and to
"maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that
an imminent danger of violence against the woman and her children exists or is about to recur that
would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor
is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a
BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would
be very unlikely that they would remain objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and other law enforcement agencies is
consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality
of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with
full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare
of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of
law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 179987 September 3, 2013

HEIRS OF MARIO MALABANAN, (Represented by Sally A. Malabanan), Petitioners,

vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

RESOLUTION

BERSAMIN, J.:

For our consideration and resolution are the motions for reconsideration of the parties who both
assail the decision promulgated on April 29, 2009, whereby we upheld the ruling of the Court of
Appeals (CA) denying the application of the petitioners for the registration of a parcel of land situated
in Barangay Tibig, Silang, Cavite on the ground that they had not established by sufficient evidence
their right to the registration in accordance with either Section 14(1) or Section 14(2) of Presidential
Decree No. 1529 (Property Registration Decree).

Antecedents

The property subject of the application for registration is a parcel of land situated in Barangay Tibig,
Silang Cavite, more particularly identified as Lot 9864-A, Cad-452-D, with an area of 71,324-square
meters. On February 20, 1998, applicant Mario Malabanan, who had purchased the property from
Eduardo Velazco, filed an application for land registration covering the property in the Regional Trial
Court (RTC) in Tagaytay City, Cavite, claiming that the property formed part of the alienable and
disposable land of the public domain, and that he and his predecessors-in-interest had been in open,
continuous, uninterrupted, public and adverse possession and occupation of the land for more than
30 years, thereby entitling him to the judicial confirmation of his title.1

To prove that the property was an alienable and disposable land of the public domain, Malabanan
presented during trial a certification dated June 11, 2001 issued by the Community Environment and
Natural Resources Office (CENRO) of the Department of Environment and Natural Resources
(DENR), which reads:

This is to certify that the parcel of land designated as Lot No. 9864 Cad 452-D, Silang Cadastre as
surveyed for Mr. Virgilio Velasco located at Barangay Tibig, Silang, Cavite containing an area of
249,734 sq. meters as shown and described on the Plan Ap-04-00952 is verified to be within the
Alienable or Disposable land per Land Classification Map No. 3013 established under Project No.
20-A and approved as such under FAO 4-1656 on March 15, 1982.2

After trial, on December 3, 2002, the RTC rendered judgment granting Malabanan’s application for
land registration, disposing thusly:

WHEREFORE, this Court hereby approves this application for registration and thus places under the
operation of Act 141, Act 496 and/or P.D. 1529, otherwise known as Property Registration Law, the
lands described in Plan Csd-04-0173123-D, Lot 9864-A and containing an area of Seventy One
Thousand Three Hundred Twenty Four (71,324) Square Meters, as supported by its technical
description now forming part of the record of this case, in addition to other proofs adduced in the
name of MARIO MALABANAN, who is of legal age, Filipino, widower, and with residence at Munting
Ilog, Silang, Cavite.

Once this Decision becomes final and executory, the corresponding decree of registration shall
forthwith issue.

SO ORDERED.3

The Office of the Solicitor General (OSG) appealed the judgment to the CA, arguing that Malabanan
had failed to prove that the property belonged to the alienable and disposable land of the public
domain, and that the RTC erred in finding that he had been in possession of the property in the
manner and for the length of time required by law for confirmation of imperfect title.

On February 23, 2007, the CA promulgated its decision reversing the RTC and dismissing the
application for registration of Malabanan. Citing the ruling in Republic v. Herbieto (Herbieto),4 the CA
declared that under Section 14(1) of the Property Registration Decree, any period of possession
prior to the classification of the land as alienable and disposable was inconsequential and should be
excluded from the computation of the period of possession. Noting that the CENRO-DENR
certification stated that the property had been declared alienable and disposable only on March 15,
1982, Velazco’s possession prior to March 15, 1982 could not be tacked for purposes of computing
Malabanan’s period of possession.

Due to Malabanan’s intervening demise during the appeal in the CA, his heirs elevated the CA’s
decision of February 23, 2007 to this Court through a petition for review on certiorari.

The petitioners assert that the ruling in Republic v. Court of Appeals and Corazon Naguit5 (Naguit)
remains the controlling doctrine especially if the property involved is agricultural land. In this regard,
Naguit ruled that any possession of agricultural land prior to its declaration as alienable and
disposable could be counted in the reckoning of the period of possession to perfect title under the
Public Land Act (Commonwealth Act No. 141) and the Property Registration Decree. They point out
that the ruling in Herbieto, to the effect that the declaration of the land subject of the application for
registration as alienable and disposable should also date back to June 12, 1945 or earlier, was a
mere obiter dictum considering that the land registration proceedings therein were in fact found and
declared void ab initio for lack of publication of the notice of initial hearing.

The petitioners also rely on the ruling in Republic v. T.A.N. Properties, Inc.6 to support their argument
that the property had been ipso jure converted into private property by reason of the open,
continuous, exclusive and notorious possession by their predecessors-in-interest of an alienable
land of the public domain for more than 30 years. According to them, what was essential was that
the property had been "converted" into private property through prescription at the time of the
application without regard to whether the property sought to be registered was previously classified
as agricultural land of the public domain.

As earlier stated, we denied the petition for review on certiorari because Malabanan failed to
establish by sufficient evidence possession and occupation of the property on his part and on the
part of his predecessors-in interest since June 12, 1945, or earlier.

Petitioners’ Motion for Reconsideration

In their motion for reconsideration, the petitioners submit that the mere classification of the land as
alienable or disposable should be deemed sufficient to convert it into patrimonial property of the
State. Relying on the rulings in Spouses De Ocampo v. Arlos,7 Menguito v. Republic8 and Republic
v. T.A.N. Properties, Inc.,9 they argue that the reclassification of the land as alienable or disposable
opened it to acquisitive prescription under the Civil Code; that Malabanan had purchased the
property from Eduardo Velazco believing in good faith that Velazco and his predecessors-in-interest
had been the real owners of the land with the right to validly transmit title and ownership thereof; that
consequently, the ten-year period prescribed by Article 1134 of the Civil Code, in relation to Section
14(2) of the Property Registration Decree, applied in their favor; and that when Malabanan filed the
application for registration on February 20, 1998, he had already been in possession of the land for
almost 16 years reckoned from 1982, the time when the land was declared alienable and disposable
by the State.

The Republic’s Motion for Partial Reconsideration

The Republic seeks the partial reconsideration in order to obtain a clarification with reference to the
application of the rulings in Naguit and Herbieto.

Chiefly citing the dissents, the Republic contends that the decision has enlarged, by implication, the
interpretation of Section 14(1) of the Property Registration Decree through judicial legislation. It
reiterates its view that an applicant is entitled to registration only when the land subject of the
application had been declared alienable and disposable since June 12, 1945 or earlier.

Ruling

We deny the motions for reconsideration.

In reviewing the assailed decision, we consider to be imperative to discuss the different

classifications of land in relation to the existing applicable land registration laws of the Philippines.

Classifications of land according to ownership

Land, which is an immovable property,10 may be classified as either of public dominion or of private
ownership.11Land is considered of public dominion if it either: (a) is intended for public use; or (b)
belongs to the State, without being for public use, and is intended for some public service or for the
development of the national wealth.12 Land belonging to the State that is not of such character, or
although of such character but no longer intended for public use or for public service forms part of
the patrimonial property of the State.13 Land that is other than part of the patrimonial property of the
State, provinces, cities and municipalities is of private ownership if it belongs to a private individual.

Pursuant to the Regalian Doctrine (Jura Regalia), a legal concept first introduced into the country
from the West by Spain through the Laws of the Indies and the Royal Cedulas,14 all lands of the
public domain belong to the State.15 This means that the State is the source of any asserted right to
ownership of land, and is charged with the conservation of such patrimony.16

All lands not appearing to be clearly under private ownership are presumed to belong to the State.
Also, public lands remain part of the inalienable land of the public domain unless the State is shown
to have reclassified or alienated them to private persons.17

Classifications of public lands

according to alienability
Whether or not land of the public domain is alienable and disposable primarily rests on the
classification of public lands made under the Constitution. Under the 1935 Constitution,18 lands of the
public domain were classified into three, namely, agricultural, timber and mineral.19 Section 10,
Article XIV of the 1973 Constitution classified lands of the public domain into seven, specifically,
agricultural, industrial or commercial, residential, resettlement, mineral, timber or forest, and grazing
land, with the reservation that the law might provide other classifications. The 1987 Constitution
adopted the classification under the 1935 Constitution into agricultural, forest or timber, and mineral,
but added national parks.20 Agricultural lands may be further classified by law according to the uses
to which they may be devoted.21 The identification of lands according to their legal classification is
done exclusively by and through a positive act of the Executive Department.22

Based on the foregoing, the Constitution places a limit on the type of public land that may be
alienated. Under Section 2, Article XII of the 1987 Constitution, only agricultural lands of the public
domain may be alienated; all other natural resources may not be.

Alienable and disposable lands of the State fall into two categories, to wit: (a) patrimonial lands of
the State, or those classified as lands of private ownership under Article 425 of the Civil
Code,23 without limitation; and (b) lands of the public domain, or the public lands as provided by the
Constitution, but with the limitation that the lands must only be agricultural. Consequently, lands
classified as forest or timber, mineral, or national parks are not susceptible of alienation or
disposition unless they are reclassified as agricultural.24 A positive act of the Government is
necessary to enable such reclassification,25 and the exclusive prerogative to classify public lands
under existing laws is vested in the Executive Department, not in the courts.26 If, however, public
land will be classified as neither agricultural, forest or timber, mineral or national park, or when public
land is no longer intended for public service or for the development of the national wealth, thereby
effectively removing the land from the ambit of public dominion, a declaration of such conversion
must be made in the form of a law duly enacted by Congress or by a Presidential proclamation in
cases where the President is duly authorized by law to that effect.27 Thus, until the Executive
Department exercises its prerogative to classify or reclassify lands, or until Congress or the
President declares that the State no longer intends the land to be used for public service or for the
development of national wealth, the Regalian Doctrine is applicable.

Disposition of alienable public lands

Section 11 of the Public Land Act (CA No. 141) provides the manner by which alienable and
disposable lands of the public domain, i.e., agricultural lands, can be disposed of, to wit:

Section 11. Public lands suitable for agricultural purposes can be disposed of only as follows, and
not otherwise:

(1) For homestead settlement;

(2) By sale;

(3) By lease; and

(4) By confirmation of imperfect or incomplete titles;

(a) By judicial legalization; or

(b) By administrative legalization (free patent).

The core of the controversy herein lies in the proper interpretation of Section 11(4), in relation to
Section 48(b) of the Public Land Act, which expressly requires possession by a Filipino citizen of the
land since June 12, 1945, or earlier, viz:

Section 48. The following-described citizens of the Philippines, occupying lands of the public domain
or claiming to own any such lands or an interest therein, but whose titles have not been perfected or
completed, may apply to the Court of First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title thereafter, under the Land
Registration Act, to wit:

xxxx

(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession and occupation of alienable and disposable lands
of the public domain, under a bona fide claim of acquisition of ownership, since June 12, 1945, or
earlier, immediately preceding the filing of the applications for confirmation of title, except when
prevented by war or force majeure. These shall be conclusively presumed to have performed all the
conditions essential to a Government grant and shall be entitled to a certificate of title under the
provisions of this chapter. (Bold emphasis supplied)

Note that Section 48(b) of the Public Land Act used the words "lands of the public domain" or
"alienable and disposable lands of the public domain" to clearly signify that lands otherwise
classified, i.e., mineral, forest or timber, or national parks, and lands of patrimonial or private
ownership, are outside the coverage of the Public Land Act. What the law does not include, it
excludes. The use of the descriptive phrase "alienable and disposable" further limits the coverage of
Section 48(b) to only the agricultural lands of the public domain as set forth in Article XII, Section 2
of the 1987 Constitution. Bearing in mind such limitations under the Public Land Act, the applicant
must satisfy the following requirements in order for his application to come under Section 14(1) of
the Property Registration Decree,28 to wit:

1. The applicant, by himself or through his predecessor-in-interest, has been in possession

and occupation of the property subject of the application;

2. The possession and occupation must be open, continuous, exclusive, and notorious;

3. The possession and occupation must be under a bona fide claim of acquisition of
ownership;

4. The possession and occupation must have taken place since June 12, 1945, or earlier;
and

5. The property subject of the application must be an agricultural land of the public domain.

Taking into consideration that the Executive Department is vested with the authority to classify lands
of the public domain, Section 48(b) of the Public Land Act, in relation to Section 14(1) of the Property
Registration Decree, presupposes that the land subject of the application for registration must have
been already classified as agricultural land of the public domain in order for the provision to apply.
Thus, absent proof that the land is already classified as agricultural land of the public domain, the
Regalian Doctrine applies, and overcomes the presumption that the land is alienable and disposable
as laid down in Section 48(b) of the Public Land Act. However, emphasis is placed on the
requirement that the classification required by Section 48(b) of the Public Land Act is classification or
reclassification of a public land as agricultural.
The dissent stresses that the classification or reclassification of the land as alienable and disposable
agricultural land should likewise have been made on June 12, 1945 or earlier, because any
possession of the land prior to such classification or reclassification produced no legal effects. It
observes that the fixed date of June 12, 1945 could not be minimized or glossed over by mere
judicial interpretation or by judicial social policy concerns, and insisted that the full legislative intent
be respected.

We find, however, that the choice of June 12, 1945 as the reckoning point of the requisite
possession and occupation was the sole prerogative of Congress, the determination of which should
best be left to the wisdom of the lawmakers. Except that said date qualified the period of possession
and occupation, no other legislative intent appears to be associated with the fixing of the date of
June 12, 1945. Accordingly, the Court should interpret only the plain and literal meaning of the law
as written by the legislators.

Moreover, an examination of Section 48(b) of the Public Land Act indicates that Congress
prescribed no requirement that the land subject of the registration should have been classified as
agricultural since June 12, 1945, or earlier. As such, the applicant’s imperfect or incomplete title is
derived only from possession and occupation since June 12, 1945, or earlier. This means that the
character of the property subject of the application as alienable and disposable agricultural land of
the public domain determines its eligibility for land registration, not the ownership or title over it.

Alienable public land held by a possessor, either personally or through his predecessors-in-interest,
openly, continuously and exclusively during the prescribed statutory period is converted to private
property by the mere lapse or completion of the period.29 In fact, by virtue of this doctrine,
corporations may now acquire lands of the public domain for as long as the lands were already
converted to private ownership, by operation of law, as a result of satisfying the requisite period of
possession prescribed by the Public Land Act.30 It is for this reason that the property subject of the
application of Malabanan need not be classified as alienable and disposable agricultural land of the
public domain for the entire duration of the requisite period of possession.

To be clear, then, the requirement that the land should have been classified as alienable and
disposable agricultural land at the time of the application for registration is necessary only to dispute
the presumption that the land is inalienable.

The declaration that land is alienable and disposable also serves to determine the point at which
prescription may run against the State. The imperfect or incomplete title being confirmed under
Section 48(b) of the Public Land Act is title that is acquired by reason of the applicant’s possession
and occupation of the alienable and disposable agricultural land of the public domain. Where all the
necessary requirements for a grant by the Government are complied with through actual physical,
open, continuous, exclusive and public possession of an alienable and disposable land of the public
domain, the possessor is deemed to have acquired by operation of law not only a right to a grant,
but a grant by the Government, because it is not necessary that a certificate of title be issued in
order that such a grant be sanctioned by the courts.31

If one follows the dissent, the clear objective of the Public Land Act to adjudicate and quiet titles to
unregistered lands in favor of qualified Filipino citizens by reason of their occupation and cultivation
thereof for the number of years prescribed by law32 will be defeated. Indeed, we should always bear
in mind that such objective still prevails, as a fairly recent legislative development bears out, when
Congress enacted legislation (Republic Act No. 10023)33 in order to liberalize stringent requirements
and procedures in the adjudication of alienable public land to qualified applicants, particularly
residential lands, subject to area limitations.34
On the other hand, if a public land is classified as no longer intended for public use or for the
development of national wealth by declaration of Congress or the President, thereby converting such
land into patrimonial or private land of the State, the applicable provision concerning disposition and
registration is no longer Section 48(b) of the Public Land Act but the Civil Code, in conjunction with
Section 14(2) of the Property Registration Decree.35 As such, prescription can now run against the
State.

To sum up, we now observe the following rules relative to the disposition of public land or lands of
the public domain, namely:

(1) As a general rule and pursuant to the Regalian Doctrine, all lands of the public domain
belong to the State and are inalienable. Lands that are not clearly under private ownership
are also presumed to belong to the State and, therefore, may not be alienated or disposed;

(2) The following are excepted from the general rule, to wit:

(a) Agricultural lands of the public domain are rendered alienable and disposable
through any of the exclusive modes enumerated under Section 11 of the Public Land
Act. If the mode is judicial confirmation of imperfect title under Section 48(b) of the
Public Land Act, the agricultural land subject of the application needs only to be
classified as alienable and disposable as of the time of the application, provided the
applicant’s possession and occupation of the land dated back to June 12, 1945, or
earlier. Thereby, a conclusive presumption that the applicant has performed all the
conditions essential to a government grant arises,36 and the applicant becomes the
owner of the land by virtue of an imperfect or incomplete title. By legal fiction, the
land has already ceased to be part of the public domain and has become private
property.37

(b) Lands of the public domain subsequently classified or declared as no longer

intended for public use or for the development of national wealth are removed from
the sphere of public dominion and are considered converted into patrimonial lands or
lands of private ownership that may be alienated or disposed through any of the
modes of acquiring ownership under the Civil Code. If the mode of acquisition is
prescription, whether ordinary or extraordinary, proof that the land has been already
converted to private ownership prior to the requisite acquisitive prescriptive period is
a condition sine qua non in observance of the law (Article 1113, Civil Code) that
property of the State not patrimonial in character shall not be the object of
prescription.

To reiterate, then, the petitioners failed to present sufficient evidence to establish that they and their predecessors-in-
interest had been in possession of the land since June 12, 1945. Without satisfying the requisite character and period
of possession - possession and occupation that is open, continuous, exclusive, and notorious since June 12, 1945, or
earlier - the land cannot be considered ipso jure converted to private property even upon the subsequent declaration
of it as alienable and disposable. Prescription never began to run against the State, such that the land has remained
ineligible for registration under Section 14(1) of the Property Registration Decree. Likewise, the land continues to be
ineligible for land registration under Section 14(2) of the Property Registration Decree unless Congress enacts a law
or the President issues a proclamation declaring the land as no longer intended for public service or for the
development of the national wealth.1âwphi1

WHEREFORE, the Court DENIES the petitioners' Motion for Reconsideration and the respondent's Partial Motion for
Reconsideration for their lack of merit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 164763 February 12, 2008

ZENON R. PEREZ, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents.

DECISION

REYES, R.T., J.:

PETITIONER Zenon R. Perez seeks a review1 of his conviction by the Sandiganbayan2 for
malversation of public funds3 under Article 217 of the Revised Penal Code.

This is not a big case but its implications are wide-ranging and the issues We resolve include the
rights to speedy trial and speedy disposition of a criminal case, the balancing test, due process, and
cruel and unusual punishment.

The Facts

On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin, Provincial Auditor’s
Office, Bohol,4conducted a cash examination on the account of petitioner, who was then the acting
municipal treasurer of Tubigon, Bohol.

Petitioner was absent on the first scheduled audit at his office on December 28, 1988. A radio
message was sent to Loon, the town where he resided, to apprise him of the on-going audit. The
following day, the audit team counted the cash contained in the safe of petitioner in his presence. In
the course of the audit, the amount of P21,331.79 was found in the safe of petitioner.

The audit team embodied their findings in the Report of Cash Examination,5 which also contained an
inventory of cash items. Based on the said audit, petitioner was supposed to have on hand the total
amount of P94,116.36, instead of the P21,331.79, incurring a shortage of P72,784.57.6

The report also contained the Cash Production Notice7 dated January 4, 1989, where petitioner was
informed and required to produce the amount of P72,784.57, and the cash count sheet signed and
acknowledged by petitioner indicating the correctness of the amount of P21,331.79 found in his safe
and counted in his presence. A separate demand letter8 dated January 4, 1989 requiring the
production of the missing funds was sent and received by petitioner on January 5, 1989.

When asked by the auditing team as to the location of the missing funds, petitioner verbally
explained that part of the money was used to pay for the loan of his late brother, another portion was
spent for the food of his family, and the rest for his medicine.9

As a result of the audit, Arlene R. Mandin prepared a memorandum10 dated January 13, 1989
addressed to the Provincial Auditor of Bohol recommending the filing of the appropriate criminal
case against petitioner.
On January 16, 1989, petitioner remitted to the Office of the Provincial Treasurer of Bohol the
amounts of P10,000.00 and P15,000.00, respectively. On February 14, 1989, petitioner again
remitted to the Provincial Treasurer an additional amount of P35,000.00, followed by remittances
made on February 16, 1989 in the amounts of P2,000.00 and P2,784.00.

An administrative case was filed against petitioner on February 13, 1989. He filed an Answer11 dated
February 22, 1989 reiterating his earlier verbal admission before the audit team.

On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the Provincial Treasurer of
Bohol. Petitioner had then fully restituted his shortage in the amount of P72,784.57. The full
restitution of the missing money was confirmed and shown by the following receipts:12

Official Receipt Date Issued and Amount

No. Received
8266659 January 16, 1989 P10,000.00
8266660 January 16, 1989 P15,000.00
8266662 February 14, 1989 P35,000.00
8266667 February 16, 1989 P 2,000.00
8266668 February 16, 1989 P 2,784.00
8266675 April 17, 1989 P 8,000.00
TOTAL - P72,784.57

Later, petitioner was charged before the Sandiganbayan with malversation of public funds, defined
and penalized by Article 217 of the Revised Penal Code in an Information that read:

That on or about the period covering from December 28, 1988 to January 5, 1989, and for
sometime prior thereto, in the Municipality of Tubigon, Province of Bohol, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused Zenon R. Perez, a
public officer being then Acting Municipal Treasury of the said Municipality, by reason of the
duties of his official position was accountable for the public funds collected and received by
him, with grave abuse of confidence did then and there willfully, unlawfully and feloniously
misappropriate, misapply, embezzle and take away from the said funds the total amount of
SEVENTY-TWO THOUSAND SEVEN HUNDRED EIGHTY-FOUR PESOS and 57/100
(P72,784.57), which said fund was appropriated and converted by the said accused to his
own personal use and benefit to the damage and prejudice of the government in the
aforementioned amount.

CONTRARY TO LAW.13 (Underscoring supplied)

On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a plea of "not guilty."14

Pre-trial was initially set on June 4-5, 1990 but petitioner’s counsel moved for postponement. The
Sandiganbayan, however, proceeded to hear the case on June 5, 1990, as previously scheduled,
due to the presence of prosecution witness Arlene R. Mandin, who came all the way from Bohol.

On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to present its
witness. Arlene R. Mandin testified as narrated above.
The defense presented evidence through petitioner Zenon R. Perez himself. He denied the contents
of his first Answer15 to the administrative case filed against him by the audit team. He claimed it was
prepared without the assistance of counsel and that at the time of its preparation and submission, he
was not in peak mental and physical condition, having been stricken with diabetes mellitus.16

He then revoked his Answer dated February 22, 1989 and filed his second Answer dated March 2,
1989.17 In the latter, he vehemently denied that he incurred a cash shortage P72,784.57.

According to petitioner, the alleged shortage was in the possession and custody of his accountable
personnel at the time of the audit examination. Several amounts totalling P64,784.00 were remitted
to him on separate dates by his accountable officer, starting January 16, 1989 to February 16, 1989.
The same were turned over by him to the Office of the Provincial Treasurer, leaving an unremitted
sum of P8,000.00 as of February 16, 1989.18 He remitted the P8,000.00 on April 17, 1989 to the
Provincial Treasurer of Bohol, fully restoring the cash shortage.

Petitioner further testified that on July 30, 1989, he submitted his Position Paper19 before the Office
of the Ombudsman, Cebu City and maintained that the alleged cash shortage was only due to
oversight. Petitioner argued that the government did not suffer any damage or prejudice since the
alleged cash shortage was actually deposited with the Office of the Provincial Treasurer as
evidenced by official receipts.20

Petitioner completed his testimony on September 20, 1990. He rested his case on October 20,
1990.21

Sandiganbayan Disposition

On September 24, 2003, the Sandiganbayan rendered a judgment of conviction with a fallo reading:

WHEREFORE, judgment is hereby rendered finding the accused ZENON R.

PEREZ, GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds as
defined in and penalized by Article 217 of the Revised Penal Code and, there being one
mitigating circumstance without any aggravating circumstance to offset the same, is hereby
sentenced to suffer an indeterminate penalty of from TEN (10) YEARS and ONE (1) DAY
of prision mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS
of reclusion temporal as the maximum and to suffer perpetual special disqualification. The
accused Zenon R. Perez is likewise ordered to pay a FINE equal to the total amount of the
funds malversed, which is Seventy-Two Thousand Seven Hundred Eighty-Four Pesos and
Fifty-Seven Centavos (P72, 784.57).

SO ORDERED.22 (Emphasis in the original)

On January 13, 2004, petitioner filed a motion for reconsideration23 which the prosecution opposed
on January 28, 2004.24 Petitioner replied25 to the opposition. On August 6, 2004, petitioner’s motion
was denied with finality.

On September 23, 2004, petitioner resorted to the instant appeal26 raising the following issues, to wit:

I. THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING THE

DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE
PETITIONER’S RIGHT TO SPEEDY DISPOSITION OF HIS CASE AND DUE PROCESS.
 II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE SENTENCE
IMPOSED IS CRUEL AND THEREFORE VIOLATES SECTION 19 OF ARTICLE III (BILL
OF RIGHTS) OF THE CONSTITUTION.27 (Underscoring supplied)

Our Ruling

Before addressing petitioner’s twin assignment of errors, We first tackle the propriety of petitioner’s
conviction for malversation of public funds.

I. Petitioner was correctly convicted of malversation.

Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts
punished as malversation are: (1) appropriating public funds or property, (2) taking or
misappropriating the same, (3) consenting, or through abandonment or negligence, permitting any
other person to take such public funds or property, and (4) being otherwise guilty of the
misappropriation or malversation of such funds or property.28

There are four elements that must concur in order that one may be found guilty of the crime. They
are:

(a) That the offender be a public officer;

(b) That he had the custody or control of funds or property by reason of the duties of his
office;

(c) That those funds or property involved were public funds or property for which he is
accountable; and

(d) That he has appropriated, took or misappropriated or consented or, through

abandonment or negligence, permitted another person to take them.29

Evidently, the first three elements are present in the case at bar. At the time of the commission of the
crime charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon,
Bohol. By reason of his public office, he was accountable for the public funds under his custody or
control.

The question then is whether or not petitioner has appropriated, took or misappropriated, or
consented or through abandonment or negligence, permitted another person to take such funds.

We rule in the affirmative.

In malversation, all that is necessary to prove is that the defendant received in his possession public
funds; that he could not account for them and did not have them in his possession; and that he could
not give a reasonable excuse for its disappearance. An accountable public officer may be convicted
of malversation even if there is no direct evidence of misappropriation and the only evidence is
shortage in his accounts which he has not been able to explain satisfactorily.30

Verily, an accountable public officer may be found guilty of malversation even if there is no direct
evidence of malversation because the law establishes a presumption that mere failure of an
accountable officer to produce public funds which have come into his hands on demand by an officer
duly authorized to examine his accounts is prima facie case of conversion.31
Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the
accused to adequately explain the location of the funds or property under his custody or control in
order to rebut the presumption that he has appropriated or misappropriated for himself the missing
funds. Failing to do so, the accused may be convicted under the said provision.

However, the presumption is merely prima facie and a rebuttable one. The accountable officer may
overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he
has not put said funds or property to personal use, then that presumption is at end and the prima
facie case is destroyed.32

In the case at bar, petitioner was not able to present any credible evidence to rebut the presumption
that he malversed the missing funds in his custody or control. What is extant in the records is that
the prosecution, through witness Arlene R. Mandin, was able to prove that petitioner malversed the
funds under his custody and control. As testified by Mandin:

Atty. Caballero:

Q: Was Mr. Zenon Perez actually and physically present during the time of your cash
examination?

Witness:

A. Yes, Sir.

Q: From December 28, to January 5, 1989?

A: He was present on December 28, 1988 and January 4 and 5, 1989, Sir.

Q: Did he not make any verbal explanation as the reason why he was short of
about P72,000.00, after you conducted the cash count on January 5, 1989?

A: Yes, Sir, he did.

Q: What did he tell you?

A: He told us that he used some of the money to pay for the loan of his brother and
the other portion was spent for food of his family; and the rest for his
medicine.33 (Emphasis supplied)

Petitioner gave himself away with his first Answer filed at the Office of the Provincial Treasurer of
Bohol in the administrative case filed against him.

In that Answer, petitioner narrated how he disposed of the missing funds under his custody and
control, to wit: (1) about P30,000.00 was used to pay the commercial loan of his late brother; (2) he
spent P10,000.00 for the treatment of his toxic goiter; and (3) about P32,000.00 was spent for food
and clothing of his family, and the education of his children. He there stated:

1. That the circumstances surrounding the cash shortage in the total amount of P72,784.57
during the examination of the respondent’s cash accounts by the Commission on Audit on
December 28-29, 1988 and January 4-5, 1989 are as follows, to wit:
 (a) That respondent paid the amount of about P30,000.00 to the Philippine
National Bank, Tagbilaran Branch as interests of the commercial loan of his
late brother Carino R. Perez using respondent’s house and lot as collateral thereof.
If the interests would not be paid, the loan would be foreclosed to respondent’s great
prejudice and disadvantage considering that he and his family are residing in said
house used as collateral;

(b) That respondent spent the amount of P10,000.00 in connection with the
treatment of his toxic goiter;

(c) That the rest of the amount amounting to about P32,000.00 was spent by
him for his family’s foods, clothings (sic), and education of his
children because his monthly salary is not enough for the needs of his family.34

By the explicit admission of petitioner, coupled with the testimony of Arlene R. Mandin, the fourth
element of the crime of malversation was duly established. His conviction thus stands in terra firma.

True it is that petitioner filed another Answer on March 2, 1989 with the Office of the Provincial
Treasurer of Bohol, substantially changing the contents of his earlier answer of February 22, 1989.
His second Answer averred:

3. That the truth of the matter is that the alleged total cash shortage of P72,784.57 were still
in the possession and custody of his accountable personnel at the time of the examination
held by the auditor of the Commission on Audit;

4. That out of the alleged cash shortage of P72,784.57, almost all of said amount were
already remitted to him by his accountable personnel after January 5, 1989, and only the
remaining amount of P8,000.00 remains to be remitted to him by his accountable
personnel.35

The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner only changed his
story to exonerate himself, after realizing that his first Answer put him in a hole, so to speak.

It is contended that petitioner’s first Answer of February 22, 1989 should not have been given
probative weight because it was executed without the assistance of counsel.36

There is no law, jurisprudence or rule which mandates that an employee should be assisted by
counsel in an administrative case. On the contrary, jurisprudence is in unison in saying
that assistance of counsel is not indispensable in administrative proceedings.

Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay dapat may
tulong ng abogado sa isang kasong administratibo. Sa katunayan, ang hurisprudensiya ay
iisa ang sinasabi na ang pagtulong ng isang abogado ay hindi kailangang-kailangan sa
kasong administratibo.

The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of
counsel, is a right afforded a suspect or accused during custodial investigation. It is not an absolute
right and may be invoked or rejected in a criminal proceeding and, with more reason, in an
administrative inquiry.37
Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang ang waiver ay
nakasulat at sa harap ng abogado, ay karapatang ibinibigay sa suspek o nasasakdal sa isang
custodial investigation. Ito ay hindi lubos na karapatan at maaring hingin o tanggihan sa
isang prosesong kriminal, at lalo na sa isang administratibong pagsisiyasat.

While investigations conducted by an administrative body may at times be akin to a criminal

proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or
may not be assisted by counsel, irrespective of the nature of the charges and of respondent’s
capacity to represent himself, and no duty rests on such body to furnish the person being
investigated with counsel.38

Thus, the right to counsel is not imperative in administrative investigations because such inquiries
are conducted merely to determine whether there are facts that merit disciplinary measures against
erring public officers and employees, with the purpose of maintaining the dignity of government
service.39

Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang

administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang malaman kung may
sapat na batayan na patawan ng disiplina ang nagkasalang opisyal o empleyado, para
mapanatili ang dignidad ng paglilingkod sa pamahalaan.

There is nothing in the Constitution that says that a party in a non-litigation proceeding is entitled to
be represented by counsel and that, without such representation, he shall not be bound by such
proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession
was not engrafted in the due process clause such that without the participation of its members, the
safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot
validly act at all except only with a lawyer at his side.40

More than that, petitioner’s first Answer may be taken against him, as he executed it in the course of
the administrative proceedings below. This is pursuant to Rule 130, Section 26 of the Rules of Court
which provides that the "act, declaration or omission of a party as to a relevant fact may be given
against him." In People v. Lising,41 the Court held:

Extrajudicial statements are as a rule, admissible as against their respective declarants,

pursuant to the rule that the act, declaration or omission of a party as to a relevant fact may
be given against him. This is based upon the presumption that no man would declare
anything against himself, unless such declarations were true. A man’s act, conduct and
declarations wherever made, provided they be voluntary, are admissible against him, for the
reason that it is fair to presume that they correspond with the truth and it is his fault if they
are not.

There is also no merit in the contention that petitioner’s sickness affected the preparation of his first
Answer. He presented no convincing evidence that his disease at the time he formulated that
answer diminished his capacity to formulate a true, clear and coherent response to any query. In
fact, its contents merely reiterated his verbal explanation to the auditing team on January 5, 1989 on
how he disposed of the missing funds.

II. There is no violation of the rights to a speedy disposition of the case and to due process of
law.

We now discuss the right to a speedy trial and disposition, the balancing test, due process, and cruel
and unusual punishment.
Petitioner asserts that his right to due process of law and to speedy disposition of his case was
violated because the decision of the Sandiganbayan was handed down after the lapse of more than
twelve years. The years that he had to wait for the outcome of his case were allegedly spent in
limbo, pain and agony.42

We are not persuaded.

Due process of law as applied to judicial proceedings has been interpreted to mean "a law which
hears before it condemns, which proceeds on inquiry, and renders judgment only after
trial."43 Petitioner cannot complain that his right to due process has been violated. He was given all
the chances in the world to present his case, and the Sandiganbayan rendered its decision only after
considering all the pieces of evidence presented before it.

Petitioner’s claim of violation of his right to a speedy disposition of his case must also fail.

The 1987 Constitution44 guarantees the right of an accused to speedy trial. Both the 1973
Constitution in Section 16 of Article IV and the 1987 Constitution in Section 16 of Article III, Bill of
Rights, are also explicit in granting to the accused the right to speedy disposition of his case.45

In Barker v. Wingo,46 the United States Supreme Court was confronted for the first time
with two "rigid approaches" on speedy trial as "ways of eliminating some of the uncertainty which
courts experience protecting the right."47

The first approach is the "fixed-time period" which holds the view that "the Constitution requires a
criminal defendant to be offered a trial within a specified time period."48 The second approach is
the "demand-waiver rule" which provides that "a defendant waives any consideration of his right to
speedy trial for any period prior to which he has not demanded trial. Under this rigid approach, a
prior demand is a necessary condition to the consideration of the speedy trial right."49

The fixed-time period was rejected because there is "no constitutional basis for holding that the
speedy trial can be quantified into a specific number of days or months."50 The demand-waiver rule
was likewise rejected because aside from the fact that it is "inconsistent with this Court’s
pronouncements on waiver of constitutional rights,"51 "it is insensitive to a right which we have
deemed fundamental."52

The Court went on to adopt a middle ground: the "balancing test," in which "the conduct of both the
prosecution and defendant are weighed."53 Mr. Justice Powell, ponente, explained the concept, thus:

A balancing test necessarily compels courts to approach speedy trial cases on an ad

hoc basis. We can do little more than identify some of the factors which courts should
assess in determining whether a particular defendant has been deprived of his right. Though
some might express them in different ways, we identify four such factors: Length of
delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to
the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other factors that
go into the balance. Nevertheless, because of the imprecision of the right to speedy
trial, the length of delay that will provoke such an inquiry is necessarily dependent
upon the peculiar circumstances of the case. To take but one example, the delay that can
be tolerated for an ordinary street crime is considerably less than for a serious, complex
conspiracy charge.
 Closely related to length of delay is the reason the government assigns to justify the
delay. Here, too, different weights should be assigned to different reasons. A deliberate
attempt to delay the trial in order to hamper the defense should be weighted heavily against
the government. A more neutral reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered since the ultimate responsibility
for such circumstances must rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
We have already discussed the third factor, the defendant’s responsibility to assert
his right. Whether and how a defendant asserts his right is closely related to the other
factors we have mentioned. The strength of his efforts will be affected by the length of
the delay, to some extent by the reason for the delay, and most particularly by the
personal prejudice, which is not always readily identifiable, that he experiences. The
more serious the deprivation, the more likely a defendant is to complain. The defendant’s
assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right. We emphasize that failure to assert
the right will make it difficult for a defendant to prove that he was denied a speedy
trial.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed

in the light of the interests of defendants which the speedy trial right was designed to
protect. This Court has identified three such interests: (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness of the
entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is
also prejudice if defense witnesses are unable to recall accurately events of the distant past.
Loss of memory, however, is not always reflected in the record because what has been
forgotten can rarely be shown.54 (Emphasis supplied)

Philippine jurisprudence has, on several occasions, adopted the balancing test.

In 1991, in Gonzales v. Sandiganbayan,55 this Court ruled:

It must be here emphasized that the right to a speedy disposition of a case, like the right to
speedy trial, is deemed violated only when the proceeding is attended by vexatious,
capricious, and oppressive delays; or when unjustified postponements of the trial are asked
for and secured, or when without cause or justifiable motive a long period of time is allowed
to elapse without the party having his case tried. Equally applicable is the balancing
test used to determine whether a defendant has been denied his right to a speedy trial, or a
speedy disposition of a case for that matter, in which the conduct of both the prosecution and
the defendant are weighed, and such factors as length of the delay, reason for the delay, the
defendant’s assertion or non-assertion of his right, and prejudice to the defendant resulting
from the delay, are considered. (Underscoring supplied)

Subsequently, in Dela Peña v. Sandiganbayan,56 this Court again enumerated the factors that should
be considered and balanced, namely: (1) length of delay; (2) reasons for the delay; (3) assertion or
failure to assert such right by the accused; and (4) prejudice caused by the delay.57

Once more, in Mendoza-Ong v. Sandiganbayan,58 this Court reiterated that the right to speedy
disposition of cases, like the right to speedy trial, is violated only when the proceedings are attended
by vexatious, capricious and oppressive delays.59 In the determination of whether said right has been
violated, particular regard must be taken of the facts and circumstances peculiar to each case.60 The
conduct of both the prosecution and defendant, the length of the delay, the reasons for such delay,
the assertion or failure to assert such right by accused, and the prejudice caused by the delay are
the factors to consider and balance.61

Moreover, the determination of whether the delays are of said nature is relative and cannot be based
on a mere mathematical reckoning of time.62

Measured by the foregoing yardstick, We rule that petitioner was not deprived of his right to a
speedy disposition of his case.

More important than the absence of serious prejudice, petitioner himself did not want a speedy
disposition of his case.63 Petitioner was duly represented by counsel de parte in all stages of the
proceedings before the Sandiganbayan. From the moment his case was deemed submitted for
decision up to the time he was found guilty by the Sandiganbayan, however, petitioner has not filed
a single motion or manifestation which could be construed even remotely as an indication that he
wanted his case to be dispatched without delay.

Petitioner has clearly slept on his right. The matter could have taken a different dimension if during
all those twelve years, petitioner had shown signs of asserting his right to a speedy disposition of his
case or at least made some overt acts, like filing a motion for early resolution, to show that he was
not waiving that right.64

Currit tempus contra decides et sui juris contempores: Time runs against the slothful and those who
neglect their rights. Ang panahon ay hindi panig sa mga tamad at pabaya sa kanilang
karapatan. Vigilantis sed non dormientibus jura in re subveniunt. The law aids the vigilant and not
those who slumber in their rights. Ang batas ay tumutulong sa mga mapagbantay at hindi sa
mga humihimbing sa kanilang karapatan.

Pending his conviction by the Sandiganbayan, petitioner may have truly lived in suspicion and
anxiety for over twelve years. However, any prejudice that may have been caused to him in all those
years was only minimal. The supposed gravity of agony experienced by petitioner is more imagined
than real.

This case is analogous to Guerrero v. Court of Appeals.65 There, the Court ruled that there was no
violation of petitioner’s right to speedy trial and disposition of his case inasmuch as he failed
seasonably to assert his rights:

In the present case, there is no question that petitioner raised the violation against his own
right to speedy disposition only when the respondent trial judge reset the case for rehearing.
It is fair to assume that he would have just continued to sleep on his right – a situation
amounting to laches – had the respondent judge not taken the initiative of determining the
non-completion of the records and of ordering the remedy precisely so he could dispose of
the case. The matter could have taken a different dimension if during all those ten years
between 1979 when accused filed his memorandum and 1989 when the case was re-raffled,
the accused showed signs of asserting his right which was granted him in 1987 when the
new Constitution took effect, or at least made some overt act (like a motion for early
disposition or a motion to compel the stenographer to transcribe stenographic notes) that he
was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right.

While this Court recognizes the right to speedy disposition quite distinctly from the right to a
speedy trial, and although this Court has always zealously espoused protection from
oppressive and vexatious delays not attributable to the party involved, at the same time, we
 hold that a party’s individual rights should not work against and preclude the people’s equally
important right to public justice. In the instant case, three people died as a result of the crash
of the airplane that the accused was flying. It appears to us that the delay in the disposition
of the case prejudiced not just the accused but the people as well. Since the accused has
completely failed to assert his right seasonably and inasmuch as the respondent judge was
not in a position to dispose of the case on the merits due to the absence of factual basis, we
hold it proper and equitable to give the parties fair opportunity to obtain (and the court to
dispense) substantial justice in the premises.

III. The law relied upon in convicting petitioner is not cruel and unusual. It does not violate
Section 19, Article III of the Bill of Rights.

What constitutes cruel and unusual punishment has not been exactly defined.66 The Eighth
Amendment of the United States Constitution,67 the source of Section 19, Article III of the Bill of
Rights68 of our own Constitution, has yet to be put to the test to finally determine what constitutes
cruel and inhuman punishment.69

Cases that have been decided described, rather than defined, what is meant by cruel and unusual
punishment. This is explained by the pronouncement of the United States Supreme Court that "[t]he
clause of the Constitution, in the opinion of the learned commentators, may be therefore
progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion
becomes enlightened by a humane justice."70

In Wilkerson v. Utah,71 Mr. Justice Clifford of the United States Supreme Court opined that "[d]ifficulty
would attend the effort to define with exactness the extent of the constitutional provision which
provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that
punishments of torture, x x x and all others in the same line of unnecessary cruelty, are forbidden by
that amendment to the constitution."72

In In Re: Kemmler,73 Mr. Chief Justice Fuller of that same Court stated that "[p]unishments are cruel
when they involve torture or a lingering death; but the punishment of death is not cruel within the
meaning of that word as used in the constitution. It implies x x x something more inhuman and
barbarous, something more than the mere extinguishment of life."74

Again, in Weems v. U.S.,75 Mr. Justice McKenna held for the Court that cadena temporal and its
accessory penalties "has no fellow in American legislation. Let us remember that it has come to us
from a government of a different form and genus from ours. It is cruel in its excess of imprisonment
and that which accompanies and follows imprisonment. It is unusual in character. Its punishments
come under the condemnation of the Bill of Rights, both on account of their degree and kind. And
they would have those bad attributes even if they were found in a Federal enactment, and not taken
from an alien source."

In Echegaray v. Executive Secretary,76 this Court in a per curiam Decision held that Republic Act No.
8177,77even if it does not provide in particular the details involved in the execution by lethal injection,
is not cruel, degrading or inhuman, and is thus constitutional. Any infliction of pain in lethal injection
is merely incidental in carrying out the execution of the death penalty and does not fall within the
constitutional proscription against cruel, degrading or inhuman punishment.78

The Court adopted the American view that what is cruel and unusual is not fastened to the obsolete
but may acquire meaning as public opinion becomes enlightened by humane justice and must draw
its meaning from the evolving standards of decency that mark the progress of a maturing society.79
In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime of
malversation of public funds "that ha[ve] been replenished, remitted and/or returned" to the
government is cruel and therefore unconstitutional, "as government has not suffered any damage."80

The argument is specious on two grounds.

First. What is punished by the crime of malversation is the act of a public officer who, by reason of
the duties of his office, is accountable for public funds or property, shall appropriate the same, or
shall take and misappropriate or shall consent, or through abandonment or negligence shall permit
any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property.81

Payment or reimbursement is not a defense for exoneration in malversation; it may only be

considered as a mitigating circumstance. This is because damage is not an element of malversation.

Second. There is strong presumption of constitutionality accorded to statutes.

It is established doctrine that a statute should be construed whenever possible in harmony with,
rather than in violation of, the Constitution.82 The presumption is that the legislature intended to enact
a valid, sensible and just law and one which operates no further than may be necessary to effectuate
the specific purpose of the law.83 It is presumed that the legislature has acted within its constitutional
powers. So, it is the generally accepted rule that every statute, or regularly accepted act, is, or will
be, or should be, presumed to be valid and constitutional.84

He who attacks the constitutionality of a law has the onus probandi to show why such law is
repugnant to the Constitution. Failing to overcome its presumption of constitutionality, a claim that a
law is cruel, unusual, or inhuman, like the stance of petitioner, must fail.

IV. On the penalty

The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten (10) years and one (1)
day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal,
as maximum. In imposing the penalty, it found that petitioner was entitled to the mitigating
circumstance of payment which is akin to voluntary surrender.

Article 217 penalizes malversation in the following tenor:

Article 217. Malversation of public funds or property. – Presumption of malversation. – Any

public officer who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take and misappropriate or shall consent, or
through abandonment or negligence shall permit any other person to take such public funds
or property, wholly or partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property.

xxxx

4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than 12,000 but is less than 22,000 pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
 In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total
value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal uses.
(Underscoring supplied)

The amount malversed totalled P72,784.57. The prescribed penalty is reclusion temporal in its
maximum period to reclusion perpetua, which has a range of seventeen (17) years, four (4) months
and one (1) day to forty (40) years.

However, the commission of the crime was attended by the mitigating circumstance akin to voluntary
surrender. As correctly observed by the Sandiganbayan, petitioner restituted the full amount even
before the prosecution could present its evidence. That is borne by the records.

It bears stressing that the full restitution of the amount malversed will not in any way exonerate an
accused, as payment is not one of the elements of extinction of criminal liability. Under the law, the
refund of the sum misappropriated, even before the commencement of the criminal prosecution,
does not exempt the guilty person from liability for the crime.85 At most, then, payment of the amount
malversed will only serve as a mitigating circumstance86 akin to voluntary surrender, as provided for
in paragraph 7 of Article 1387 in relation to paragraph 1088 of the same Article of the Revised Penal
Code.

But the Court also holds that aside from voluntary surrender, petitioner is entitled to the mitigating
circumstance of no intention to commit so grave a wrong,89 again in relation to paragraph 10 of
Article 13.90

The records bear out that petitioner misappropriated the missing funds under his custody and control
because he was impelled by the genuine love for his brother and his family. Per his admission,
petitioner used part of the funds to pay off a debt owed by his brother. Another portion of the
misappropriated funds went to his medications for his debilitating diabetes.

Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos (P8,000.00) of the funds
in less than one month and a half and said small balance in three (3) months from receipt of demand
of COA on January 5, 1999. Evidently, there was no intention to commit so grave a wrong.

Of course, the end does not justify the means. To condone what petitioner has done because of the
nobility of his purpose or financial emergencies will become a potent excuse for malefactors and
open the floodgates for more corruption in the government, even from "small fry" like him.

The bottom line is a guilty person deserves the penalty given the attendant circumstances and
commensurate with the gravity of the offense committed. Thus, a reduction in the imposable penalty
by one degree is in order. Article 64 of the Revised Penal Code is explicit:

Art. 64. Rules for the application of penalties which contain three periods. – In cases in which
the penalties prescribed by law contains three periods, whether it be a single divisible
penalty or composed of three difference penalties, each one of which forms a period in
accordance with the provisions of Articles 76 and 77, the courts shall observe for the
application of the penalty, the following rules, according to whether there are no mitigating or
aggravating circumstances:
 xxxx

5. When there are two or more mitigating circumstances and no aggravating

circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances. (Underscoring supplied)

Considering that there are two mitigating circumstances, the prescribed penalty is reduced to prision
mayor in its maximum period to reclusion temporal in its medium period, to be imposed in any of its
periods. The new penalty has a range of ten (10) years and one (1) day to seventeen (17) years and
four (4) months. Applying the Indeterminate Sentence Law,91 the maximum term could be ten (10)
years and one (1) day of prision mayor maximum, while the minimum term is again one degree
lower92 and could be four (4) years, two (2) months and one (1) day of prision
correccional maximum.

In the 1910 case of U.S. v. Reyes,93 the trial judge entered a judgment of conviction against the
accused and meted to him the penalty of "three years’ imprisonment, to pay a fine of P1,500.00, and
in case of insolvency to suffer subsidiary imprisonment at the rate of one day for every P2.50 that he
failed to pay, which subsidiary imprisonment, however, should not exceed one third of the principal
penalty" and to be "perpetually disqualified for public office and to pay the costs." This was well
within the imposable penalty then under Section 1 of Act No. 1740,94 which is "imprisonment for not
less than two months nor more than ten years and, in the discretion of the court, by a fine of not
more than the amount of such funds and the value of such property."

On appeal to the Supreme Court, the accused’s conviction was affirmed but his sentence was
modified and reduced to six months. The court, per Mr. Justice Torres, reasoned thus:

For the foregoing reasons the several unfounded errors assigned to the judgment appealed
from have been fully refuted, since in conclusion it is fully shown that the accused unlawfully
disposed of a portion of the municipal funds, putting the same to his own use, and to that of
other persons in violation of Act. No. 1740, and consequently he has incurred the penalty
therein established as principal of the crime of misappropriation; and even though in
imposing it, it is not necessary to adhere to the rules of the Penal Code, the court in using its
discretional powers as authorized by law, believes that the circumstances present in the
commission of crimes should be taken into consideration, and in the present case the
amount misappropriated was refunded at the time the funds were counted.95 (Underscoring
supplied)

We opt to exercise an analogous discretion.

WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003 is AFFIRMED with
the MODIFICATION that petitioner is hereby sentenced to suffer the indeterminate penalty of four
(4) years, two (2) months and one (1) day of prision correccional, as minimum term, to ten (10) years
and one (1) day of prision mayor, as maximum term, with perpetual special disqualification. He is
likewise ORDERED to pay a fine of P72,784.57, the amount equal to the funds malversed.

Costs against petitioner.

SO ORDERED.