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Francisco vs. House of Representatives


(GR 160261, 10 November 2003)
En Banc, Carpio Morales (J): 1 concurs, 3 wrote separate concurring opinions to which 4 concur, 2 wrote concurring and
dissenting separate opinions to which 2 concur.
Facts: On 28 November 2001, the 12th Congress of the House of Representatives adopted and approved the Rules of
Procedure in Impeachment Porceedings, superceding the previous House Impeachment Rules approved by the 11th
Congress. On 22 July 2002, the House of Representatives adopted a Resolution, which directed the Committee on Justice
"to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of
the Supreme Court of the Judiciary Development Fund (JDF). On 2 June 2003, former President Joseph E. Estrada filed an
impeachment complaint (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices of the Supreme Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes."
The complaint was endorsed by House Representatives, and was referred to the House Committee on Justice on 5 August
2003 in accordance with Section 3(2) of Article XI of the Constitution. The House Committee on Justice ruled on 13 October
2003 that the first impeachment complaint was "sufficient in form," but voted to dismiss the same on 22 October 2003 for
being insufficient in substance. Four months and three weeks since the filing of the first complaint or on 23 October 2003, a
day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was filed with the
Secretary General of the House by House Representatives against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House Resolution. The second impeachment complaint
was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least 1/3 of all the Members of the House of
Representatives. Various petitions for certiorari, prohibition, and mandamus were filed with the Supreme Court against the
House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is
unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings
shall be initiated against the same official more than once within a period of one year."
Issue: Whether the power of judicial review extends to those arising from impeachment proceedings.
Held: The Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of
our present 1987 Constitution. The "moderating power" to "determine the proper allocation of powers" of the different
branches of government and "to direct the course of government along constitutional channels" is inherent in all courts as a
necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving
rights which are legally demandable and enforceable." As indicated in Angara v. Electoral Commission, judicial review is
indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of
separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized
only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks
and balances to secure coordination in the workings of the various departments of the government. 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.
The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that
while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that
granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power
but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the
part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the
U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, our Constitution,
though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations
include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same
official. The people expressed their will when they instituted the above-mentioned safeguards in the Constitution. This shows
that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it
provided for certain well-defined limits, or "judicially discoverable standards" for determining the validity of the exercise of
such discretion, through the power of judicial review. There is indeed a plethora of cases in which this Court exercised the
power of judicial review over congressional action. Finally, there exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral
components of the calibrated system of independence and interdependence that insures that no branch of government act
beyond the powers assigned to it by the Constitution.
Commission on Human Rights Employees' Association (CHREA) vs. Commission on Human Rights
[GR 155336, 25 November 2004]
Second Division, Chico-Nazario (J): 4 concur
Facts: On 14 February 1998, Congress passed Republic Act 8522, otherwise known as the General Appropriations Act of
1998. It provided for Special Provisions Applicable to All Constitutional Offices Enjoying Fiscal Autonomy. The last portion of
Article XXXIII covers the appropriations of the Commission on Human Rights (CHR). These special provisions tackles
Organizational Structure and the Use of Savings. On the strength of these special provisions, the CHR, through its then
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Chairperson Aurora P. Navarette-Reciña and Commissioners Nasser A. Marohomsalic, Mercedes V. Contreras, Vicente P.
Sibulo, and Jorge R. Coquia, promulgated Resolution A98-047 n 04 September 1998, adopting an upgrading and
reclassification scheme among selected positions in the Commission. Annexed to said resolution is the proposed creation of
ten additional plantilla positions, namely: one Director IV position, with Salary Grade 28 for the Caraga Regional Office, four
Security Officer II with Salary Grade 15, and five Process Servers, with Salary Grade 5 under the Office of the
Commissioners. On 19 October 1998, CHR issued Resolution No. A98-055 providing for the upgrading or raising of salary
grades of certain positions in the Commission. It, likewise, provided for the creation and upgrading of other positions. To
support the implementation of such scheme, the CHR, in the same resolution, authorized the augmentation of a
commensurate amount generated from savings under Personnel Services. By virtue of Resolution A98-062 dated 17
November 1998, the CHR “collapsed” the vacant positions in the body to provide additional source of funding for said
staffing modification. Among the positions collapsed were: one Attorney III, four Attorney IV, one Chemist III, three Special
Investigator I, one Clerk III, and one Accounting Clerk II. The CHR forwarded said staffing modification and upgrading
scheme to the Department of Budget and Management (DBM) with a request for its approval, but the then DBM secretary
Benjamin Diokno denied the request. In light of the DBM’s disapproval of the proposed personnel modification scheme, the
Civil Service Commission (CSC)-National Capital Region Office, through a memorandum dated 29 March 1999,
recommended to the CSC-Central Office that the subject appointments be rejected owing to the DBM’s disapproval of the
plantilla reclassification. Meanwhile, the officers of the Commission on Human Rights Employees’ Association (CHREA), in
representation of the rank and file employees of the CHR, requested the CSC-Central Office to affirm the recommendation of
the CSC-Regional Office. CHREA stood its ground in saying that the DBM is the only agency with appropriate authority
mandated by law to evaluate and approve matters of reclassification and upgrading, as well as creation of positions. The
CSC-Central Office denied CHREA’s request in a Resolution dated 16 December 1999, and reversed the recommendation
of the CSC-Regional Office that the upgrading scheme be censured. CHREA filed a motion for reconsideration, but the CSC-
Central Office denied the same on 9 June 2000. Given the cacophony of judgments between the DBM and the CSC,
CHREA elevated the matter to the Court of Appeals. The Court of Appeals affirmed the pronouncement of the CSC-Central
Office and upheld the validity of the upgrading, retitling, and reclassification scheme in the CHR on the justification that such
action is within the ambit of CHR’s fiscal autonomy. The CHREA filed the petition for review.
Issue: Whether CHREA is a proper party to bring the suit in Court.
Held: It has been held in a multitude of cases that a proper party is one who has sustained or is in immediate danger of
sustaining an injury as a result of the act complained of. Here, CHREA, which consists of rank and file employees of CHR,
protests that the upgrading and collapsing of positions benefited only a select few in the upper level positions in the
Commission resulting to the demoralization of the rank and file employees. This sufficiently meets the injury test. Indeed, the
CHR’s upgrading scheme, if found to be valid, potentially entails eating up the Commission’s savings or that portion of its
budgetary pie otherwise allocated for Personnel Services, from which the benefits of the employees, including those in the
rank and file, are derived. Further, the personality of the CHREA to file this case was recognized by the CSC when it took
cognizance of the CHREA’s request to affirm the recommendation of the CSC-National Capital Region Office. CHREA’s
personality to bring the suit was a non-issue in the Court of Appeals when it passed upon the merits of this case. Thus,
neither should our hands be tied by this technical concern. Indeed, it is settled jurisprudence that an issue that was neither
raised in the complaint nor in the court below cannot be raised for the first time on appeal, as to do so would be offensive to
the basic rules of fair play, justice, and due process.
CIVIL LIBERTIES UNIONvs. EXECUTIVE SECRETARY
G.R. No. 83896 February 22, 1991
FERNAN,C.J.:
THE CASE:
Seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino
and issuance of the extraordinary writs of prohibition andm andam us, as well as a temporary restraining order directing
public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions
other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms
of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse
or refund any and all amounts or benefits that they may have received from such positions.
THE FACTS:
Petitioner Anti-Graft League of the Philippines charges that then DOJ Secretary Sedfrey Ordoñez, construing
Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered an opinion declaring that Cabinet members,
their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards
of government corporations:
(a) when directly provided for in the Constitution as in the case of the Secretary of Justice who
is made anex- offi cio member of the Judicial and Bar Council under Section 8, paragraph 1,
Article VIII; or
(b) if allowed by law; or
(c) if allowed by the primary functions of their respective positions.
On the basis of this opinion, the President Aquino promulgated Executive Order No. 284.
Petitioners maintain that this EO which allows members of the Cabinet, their undersecretaries and assistant
secretaries to hold other government offices or positions in addition to their primary positions runs counter to Section 13,
Article VII of the 1987 Constitution. That by virtue of the phrase "unless otherwise provided in this Constitution," the only
exceptions against holding any other office or employment in Government are those provided in the Constitution, namely:
(1) The Vice-President may be appointed as a Member of the Cabinet under Section 3, par. (2),
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Article VII thereof; and


(2) (2) the Secretary of Justice is anex- offi cio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service
Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and
cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the
Cabinet and their deputies or assistants.
The Solicitor General counters that DOJ Opinion No. 73 being the first official construction and interpretation by the
Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I- XB of the Constitution, involving the same
subject of appointments or designations of an appointive executive official to positions other than his primary position, is
"reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73,
series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129 and DOJ Opinion No. 155,
(subsequent opinions aftern Opinion No. 73) construed the limitation imposed by E.O. No. 284 as not applying toex-off icio
positions or to positions which, although not so designated asex- offi cio are allowed by the primary functions of the public
official, but only to the holding of multiple positions which are not related to or necessarily included in the position of the
public official concerned.
THE ISSUE:
Whether or not EO 284 is constitutional?
THE RULING:
Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention,
specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and
expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental
offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions
of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far
outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than
what he can handle.
While all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words,
Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice- President,
Members of the Cabinet, their deputies and assistants.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the
1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to
not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows
them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the
1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
Executive Order No. 284 is hereby declared null and void and is accordingly set aside.
Manila Prince Hotel v. GSIS
GR 122156, 3 February 1997
En banc, Bellosillo (p): 6 concur, others dissent
Facts: The Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the
issued and outstanding shares of the Manila Hotel (MHC). In a close bidding held on 18 September 1995 only two bidders
participated: 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. Pending the declaration of Renong
Berhard as the winning bidder/strategic partner and the execution of the necessary contracts, the Manila Prince Hotel
matched the bid price of P44.00 per share tendered by Renong Berhad in a letter to GSIS dated 28 September 1995. Manila
Prince Hotel sent a manager’s check to the GSIS in a subsequent letter, but which GSIS refused to accept. On 17 October
1995, perhaps apprehensive that GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC
may be hastened by GSIS and consummated with Renong Berhad, Manila Prince Hotel came to the Court on prohibition
and mandamus.
Issue(s):
• Whether the provisions of the Constitution, particularly Article XII Section 10, are self-executing.
• Whether the 51% share is part of the national patrimony.
Held: A provision which lays down a general principle, such as those found in Article 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. In self-executing
constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the
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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 subject constitutional provision is not, by itself, fully enforceable. 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. In fine,
Section 10, second paragraph, 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.
In its plain and ordinary meaning, the term patrimony pertains to heritage. When the Constitution speaks of national
patrimony, it refers not 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. It also refers to Filipino’s intelligence in arts, sciences
and letters. In the present case, 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, a concourse for the elite, it has since then become the venue of
various significant events which have shaped Philippine history. In the granting of economic rights, privileges, and
concessions, especially on matters involving national patrimony, when a choice has to be made between a “qualified
foreigner” and a “qualified Filipino,” the latter shall be chosen over the former.
The Supreme Court directed the GSIS, the Manila Hotel Corporation, the Committee on Privatization and the Office of the
Government Corporate Counsel to cease and desist from selling 51% of the Share of the MHC to Renong Berhad, and to
accept the matching bid of Manila Prince Hotel at P44 per shere and thereafter execute the necessary agreements and
document to effect the sale, to issue the necessary clearances and to do such other acts and deeds as may be necessary
for the purpose.
Mabanag vs Lopez Vito
FACTS
This is a petition for prohibition to prevent the enforcement of a congressional resolution designated "Resolution of both
houses proposing an amendment to the Constitution of the Philippines to be appended as an ordinance thereto."
The petitioners contend that their vote were not taken into consideration in requiring that in amending the constitution, the
law requires 3/4 of the votes of the member of the Congress thus arriving in the question of constitutionality of the said
resolution.
ISSUES
Whether or not the Court has jurisdiction and whether or not the journals can be investigated against the
conclusiveness of the enrolled bills.
HELD
Petition is dismissed without cost. The Court held that to go behind the enrolled bills which were already authenticated and
to investigate the journals amounts to disregard of the respect due to the coequal and independent department of the state,
and it would be an inquisition into the conduct of the members of the legislature, a very delicate power, the frequent exercise
of which must lead to confusion in the administration of the law.
Duly certified copies shall be conclusive proof of the provisions of Acts and the due enactment thereof.
Kilosbayan vs Guingona
27.KILOSBAYAN v. GUINGONA
Facts:
Petitioners filed a case for the prohibition / injunction with a prayer for a TRO & preliminary injunction against
the implementation of the Contract of Lease between PCSO & PGMC in connection to an online lotto system. Petitioners are
suing in their capacity as members of Congress and as taxpayers. On DECEMBER 17, 1993 the Contract of Lease was
executed and approved by the president on DECEMBER 20, 1993. Petitioner claims that the respondents & the OFFICE OF
THE PRESIDENT gravely abused their discretion tantamount to a lack of authority by entering into the contract, because:
1. Section 1 of RA 1169 (PCSO Charter) prohibits the PCSO from conducting lotteries in cooperation with any entity
2. RA 3846 & jurisprudence require Congresional franchise before a telecom system (public utility) can be established
3. Article 12 of Section 11 of the Constitution prohibits companies with less than 60% Filipino Ownership from operating a public
system
4. PGMG is not authorized by its charter or by RA 7042 (Foreign Investment Act) to install an online Lotto system
a. The contract shows that PGMC is the actual operatior while it is a 75% foreign-owned company. RA 7042 puts all forms of
gambling on the negative list
Respondents answered the allegations by contending:
1. PGMC is only an independent contractor. There is no
shared franchise
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2. PCSO will not a operate a public system as a telecom system is an indispensable requirement of an online lottery system.
Petitioner interpretation of Section 1 of RA 1169 too narrow.
3. There are no violations of laws
4. The issue of morality is a political one and should not be
resolved in a legal forum
5. Petitioners are without legal standing, as illustrated in
Valmonte vs. PCSO
a. The PCSO is a corporate entity and can enter into all kinds of contracts to achieve objectives. Arguing that PCSO will operate a
public utility, it is still exempted under Section of Act 3846, where
legislative
franchisees
are
not
necessary for radio stations
Issues:
1. Whether or not petitioners have standing
2. Whether or not the contract is legal under Section 1 of
RA 1169
Held:
1. Yes, petitioners have standing. Standing is only a procedural technicality that can be set aside depending on the importance of
an issue. As taxpayers and citizens to be affected by the reach of the lotto system, petitioners have standing.
2. No, the contract is illegal. The Court rules in the
negative arguing that “whatever is not unequivocally
granted is withheld.” PCSO cannot share the franchise in any way. The contract’s nature can be understood to form the
intent of the parties as evident in the provisions of the contract. Article 1371 of the CC provides that the intent of contracting
parties are determined in part through their acts. The only contribution PCSO will be giving is the authority to operate. All
risks are to be taken by the lessor; operation will be taken by the PCSO only after 8 years. Further proof are:
a. Payment of investment acts in the even of
contract suspension / breach
b. Rent not fixed at 4.9% and can be reduced
given that all risks are borne by the lessor
c. Prohibition against PGMC involvement in competitor games; strange if gaming is PGMC; business
d. Public stock requirement of 25% in 2 years, which is unreasonable for a lease contract. It indicates that PGMC is the operator
and the condition an attempt to increase public benefit through public involvement.
e. Escrow deposit may be used as performance
bond.
f. PGMC operation evident in personnel management, procedural and coordinating rules set by the lessor.
g. PCSO authority to terminate contact upon
PGMC insolvency
The contract indicates that PCSO is the actual lessor of the authority to operate given the indivisible community between
them.
Wherefore, Petition granted. Contract invalid and TRO made
permanent
Cruz, Concurring:
The respondent was not able to prove the allegations that the contract was intentionally crafted to appear to be
a lease. PCSO cannot operate without the collaboration of PGMC. The rental fee underscores the PGMC interest in the
success of the venture, since their income depends on the degree of success. The transaction is immoral insofar as the
activity is fixed by the foreigners on us with government approval.
Feliciano concurring:
Locus standi reflects an important constitutional principle: the separation of powers. The rules is that those
assailing statute must show the adverse effect of its implementation has on them. But it is not a rigid rule. It is not enough
that the court invoke public mistrust or national concern in brushing aside the requirement, as it would mean standing is
dependent on a majority and is far from being intellectually satisfying. While no principle has been set for determining
standing, the guidelines are:
1.character of funds involved (is it public in nature? in
this case, the funds are from the general populace);
taxpayer with right to see taxes used properly.
2. clear disregard of a law prohibiting certain actions of a public agency – the judicial conclusion on case merits interact with the
notion of locus standi

Tolentino vs. Commission on Elections


[GR 148334, 21 January 2004]
En Banc, Carpio (J): 8 concur, 1 dissents in separate opinion to which 3 join
Facts: Shortly after her succession to the Presidency in January 2001, President Gloria Macapagal-Arroyo nominated then
Senator Teofisto T. Guingona, Jr. (“Senator Guingona”) as Vice-President. Congress confirmed the nomination of Senator
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Guingona who took his oath as Vice-President on 9 February 2001. Following Senator Guingona’s confirmation, the Senate
on 8 February 2001 passed Resolution 84 certifying to the existence of a vacancy in the Senate. Resolution 84 called on
COMELEC to fill the vacancy through a special election to be held simultaneously with the regular elections on 14 May 2001.
Twelve Senators, with a 6-year term each, were due to be elected in that election. Resolution 84 further provided that the
“Senatorial candidate garnering the 13th highest number of votes shall serve only for the unexpired term of former Senator
Teofisto T. Guingona, Jr.,” which ends on 30 June 2004. On 5 June 2001, after COMELEC had canvassed the election
results from all the provinces but one (Lanao del Norte), COMELEC issued Resolution 01-005 provisionally proclaiming 13
candidates as the elected Senators. Resolution 01-005 also provided that “the first twelve (12) Senators shall serve for a
term of six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T.
Guingona, Jr. who was appointed Vice-President.” Ralph Recto (“Recto”) and Gregorio Honasan (“Honasan”) ranked 12th
and 13th, respectively, in Resolution 01-005. On 20 June 2001, Arturo Tolentino and Arturo Mojica, as voters and taxpayers,
filed the petition for prohibition, impleading only COMELEC as respondent. Tolentino and Mojica sought to enjoin COMELEC
from proclaiming with finality the candidate for Senator receiving the 13th highest number of votes as the winner in the
special election for a single three-year term seat. Accordingly, Tolentino and Mojica prayed for the nullification of Resolution
01-005 in so far as it makes a proclamation to such effect. Tolentino and Mojica contend that COMELEC issued Resolution
01-005 without jurisdiction because: (1) it failed to notify the electorate of the position to be filled in the special election as
required under Section 2 of RA 6645; (2) it failed to require senatorial candidates to indicate in their certificates of candidacy
whether they seek election under the special or regular elections as allegedly required under Section 73 of BP 881; and,
consequently, (3) it failed to specify in the Voters Information Sheet the candidates seeking election under the special or
regular senatorial elections as purportedly required under Section 4, paragraph 4 of RA 6646. Tolentino and Mojica add that
because of these omissions, COMELEC canvassed all the votes cast for the senatorial candidates in the 14 May 2001
elections without distinction such that “there were no two separate Senate elections held simultaneously but just a single
election for thirteen seats, irrespective of term.” Tolentino and Mojica sought the issuance of a temporary restraining order
during the pendency of their petition. Without issuing any restraining order, the Supreme Court required COMELEC to
Comment on the petition. Honasan questioned Tolentino’s and Mojica's standing to bring the instant petition as taxpayers
and voters because they do not claim that COMELEC illegally disbursed public funds; nor claim that they sustained personal
injury because of the issuance of Resolutions 01-005 and 01-006.
Issue: Whether Tolentino and Mojica have standing to litigate.
Held: “Legal standing” or locus standi refers to a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury because of the challenged governmental act. The requirement of standing, which
necessarily “sharpens the presentation of issues,” relates to the constitutional mandate that this Court settle only actual
cases or controversies. Thus, generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly
traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action. Applied strictly, the
doctrine of standing to litigate will indeed bar the present petition. In questioning, in their capacity as voters, the validity of the
special election on 14 May 2001, Tolentino and Mojica assert a harm classified as a “generalized grievance.” This
generalized grievance is shared in substantially equal measure by a large class of voters, if not all the voters, who voted in
that election. Neither have Tolentino and Mojica alleged, in their capacity as taxpayers, that the Court should give due
course to the petition because in the special election held on 14 May 2001 “tax money [was] ‘x x x extracted and spent in
violation of specific constitutional protections against abuses of legislative power’ or that there [was] misapplication of such
funds by COMELEC or that public money [was] deflected to any improper purpose.” On the other hand, the Court has
relaxed the requirement on standing and exercised our discretion to give due course to voters’ suits involving the right of
suffrage. The Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing
when paramount interest is involved. In not a few cases, the court has adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the people. Thus, when the issues
raised are of paramount importance to the public, the Court may brush aside technicalities of procedure. The Court accords
the same treatment to Tolentino and Mojica in the present case in their capacity as voters since they raise important issues
involving their right of suffrage, considering that the issue raised in the petition is likely to arise again.
Javellana vs. The Executive Secretary

The Facts:
Sequence of events that lead to the filing of the “Plebiscite” then “Ratification” Cases.

The Plebiscite Case


On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said
body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines.

Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to
the provisions of which the election of delegates to the said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971.

While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law.

On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day,
7

November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention,
and appropriating funds therefor," as well as setting the plebiscite for said ratification or rejection of the Proposed
Constitution on January 15, 1973.

On December 7, 1972, Charito Planas filed a case against the Commission on Elections, the Treasurer of the Philippines
and the Auditor General, to enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any
manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect
as law because the calling ... of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the
ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are,
by the Constitution, lodged exclusively in Congress ...," and "there is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient
time to inform the people of the contents thereof."

On December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for
the purpose of free and open debate on the Proposed Constitution.
On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the
Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was
issued, directing "that the plebiscite scheduled to be held on January 15, 1978, be postponed until further notice." Said
General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution."

Because of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for
the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite
would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled
to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the
President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President reportedly after
consultation with, among others, the leaders of Congress and the Commission on Elections the Court deemed it more
imperative to defer its final action on these cases.

"In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said
case be decided "as soon as possible, preferably not later than January 15, 1973."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said three
(3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior
thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 riled a "supplemental
motion for issuance of restraining order and inclusion of additional respondents," praying:
"... that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the
Department of Local Governments and its head, Secretary Jose Roño; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their
deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from collecting,
certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens' Assemblies
referendum results allegedly obtained when they were supposed to have met during the period comprised between January
10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion."

On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case G.R. No. L-35948
to file "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing
"on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary
of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice)
was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon,
the writer returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 inasmuch as the hearing
in connection therewith was still going on and the public there present that the President had, according to information
conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning.

Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:
____________________________
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971
CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to
ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant
to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or
8

ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of
Citizen Assembly members kept by the barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the
democratic process and to afford ample opportunity for the citizenry to express their views on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973,
the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution?
Do you still want a plebiscite to be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the
Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the
people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays
(Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that
the new Constitution should already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS"President of the Philippines
"By the President:
"ALEJANDRO MELCHOR"Executive Secretary"
_________________________________

The Ratification Case

On January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the Secretaries of
National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents from implementing
any of the provisions of the propose Constitution not found in the present Constitution" referring to that of 1935. The petition
therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself,
and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After reciting in
substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the
immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are acting
without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President, as
Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; that the
same "are without power to approve the proposed Constitution ..."; "that the President is without power to proclaim the
ratification by the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution
was not a free election, hence null and void."

The Issue:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict,
compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?
(acquiesced - "permission" given by silence or passiveness. Acceptance or agreement by keeping quiet or by not making
objections.)

4. Are petitioners entitled to relief?

5. Is the aforementioned proposed Constitution in force?

The Resolution:

Summary:
The court was severely divided on the following issues raised in the petition: but when the crucial question of whether the
petitioners are entitled to relief, six members of the court (Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra) voted to dismiss the petition. Concepcion, together Justices Zaldivar, Fernando and Teehankee, voted to grant
the relief being sought, thus upholding the 1973 Constitution.
9

Details:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable,
question?

On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and
myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable
and non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in
their discussion of the second question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has
been approval by the people, the Court may inquire into the question of whether or not there has actually been such an
approval, and, in the affirmative, the Court should keep hands-off out of respect to the people's will, but, in negative, the
Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution been complied
with." Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the
ambit of judicial inquiry."

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not
strict, compliance) conformably to the applicable constitutional and statutory provisions?

On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself,
or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not
validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification,
i.e., "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters.

Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly ratified pursuant
to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article, the
referendum in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls
short of the requirements thereof. In view, however, of the fact that I have no means of refusing to recognize as a judge that
factually there was voting and that the majority of the votes were for considering as approved the 1973 Constitution without
the necessity of the usual form of plebiscite followed in past ratifications, I am constrained to hold that, in the political sense,
if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so
they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most,
after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally
ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in
effect substantial compliance with the constitutional requirements for valid ratification.

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?

On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote
has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already
accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there has
even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the
proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in some
American decisions to the effect that independently of the validity of the ratification, a new Constitution once accepted
acquiesced in by the people must be accorded recognition by the Court, I am not at this stage prepared to state that such
doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is the
mind of the people in the absence of the freedom of debate that is a concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices
Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free
expression of opinions through the usual media vehicle restricted, (they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the Constitution."

4. Are petitioners entitled to relief?

On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view
that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases to
resolve which considerations other than judicial, an therefore beyond the competence of this Court, 90 are relevant and
unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents'
motion to dismiss and to give due course to the petitions.

5. Is the aforementioned proposed Constitution in force?


10

On the fifth question of whether the new Constitution of 1973 is in force:


Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of
the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the
premise stated in their votes on the third question that they could not state with judicial certainty whether the people have
accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971
Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution
is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the
aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the
new Constitution being considered in force and effect.

It is so ordered.
Sanidad vs. Commission on Elections
[GR L-44640, 12 October 1976]; also Guzman vs. Comelec [GR L-44684], and Gonzales vs. Commission on Elections [GR
L-44714]
En Banc, Martin (J): 1 concurs in result, 4 concur in separate opinions, 2 dissent in separate opinions, 2 filed separate
opinions
Facts: On 2 September 1976, President Ferdinand E. Marcos issued Presidential Decree 991 calling for a national
referendum on 16 October 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of
martial law, the interim assembly, its replacement, the powers of such replacement, the period of its existence, the length of
the period for the exercise by the President of his present powers. 20 days after or on 22 September 1976, the President
issued another related decree, Presidential Decree 1031, amending the previous Presidential Decree 991, by declaring the
provisions of Presidential Decree 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens
Assemblies) applicable to the national referendum-plebiscite of 16 October 1976. Quite relevantly, Presidential Decree 1031
repealed inter alia, Section 4, of Presidential Decree 991. On the same date of 22 September 1976, the President issued
Presidential Decree 1033, stating the questions to he submitted to the people in the referendum-plebiscite on 16 October
1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the interim
National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment,
providing for a new interim legislative body, which will be submitted directly to the people in the referendum-plebiscite of
October 16. The Commission on Elections was vested with the exclusive supervision and control of the October 1976
National Referendum-Plebiscite. On 27 September 1976, Pablo C. Sanidad and Pablito V. Sanidad, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding
and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991
and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree 1031, insofar as it directs
the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on 16 October
1976. They contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the
constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on
October 16 has no constitutional or legal basis. On 30 September 1976, another action for Prohibition with Preliminary
Injunction, docketed as L-44684, was instituted by Vicente M. Guzman, a delegate to the 1971 Constitutional Convention,
asserting that the power to propose amendments to, or revision of the Constitution during the transition period is expressly
conferred on the interim National Assembly under action 16, Article XVII of the Constitution. Still another petition for
Prohibition with Preliminary Injunction was filed on 5 October 1976 by Raul M. Gonzales, his son Raul Jr., and Alfredo
Salapantan, docketed as L-44714, to restrain the implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
Issue: Whether the President may call upon a referendum for the amendment of the Constitution.
Held: Section 1 of Article XVI of the 1973 Constitution on Amendments ordains that "(1) Any amendment to, or revision of,
this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional
convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an
election." Section 2 thereof provides that "Any amendment to, or revision of, this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not later than three months a after the approval of such
amendment or revision." In the present period of transition, the interim National Assembly instituted in the Transitory
Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads "The interim National
Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments
to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof." There are,
therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In
times of normalcy, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote
of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of
the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election
voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be
proposed by a majority vote of all the Members of the interim National Assembly upon special call by the interim Prime
Minister. The Court in Aquino v. COMELEC, had already settled that the incumbent President is vested with that prerogative
11

of discretion as to when he shall initially convene the interim National Assembly. The Constitutional Convention intended to
leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent
with the prevailing conditions of peace and order in the country. When the Delegates to the Constitutional Convention voted
on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene the interim National Assembly. The President's decision to defer the convening of
the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at
which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National
Assembly. In the referendum of 24 July 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to
withhold the convening of the interim National Assembly. Again, in the referendum of 27 February 1975, the proposed
question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members
of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the interim
National Assembly, were against its inclusion since in that referendum of January, 1973 the people had already resolved
against it. In sensu striciore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution,
that body is not in the usual function of lawmaking. It is not legislating when engaged in the amending process. Rather, it is
exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for
in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for
the interim National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of
constitutional conferment, amending of the Constitution is not legislative in character. In political science a distinction is
made between constitutional content of an organic character and that of a legislative character. The distinction, however, is
one of policy, not of law. Such being the case, approval of the President of any proposed amendment is a misnomer. The
prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has
nothing to do with proposition or adoption of amendments to the Constitution.
Philippine Bar Association vs. COMELEC
140 SCRA 455
January 7, 1986

FACTS:

11 petitions were filed for prohibition against the enforcement of BP 883 which calls for special national elections on
February 7, 1986 (Snap elections) for the offices of President and Vice President of the Philippines. BP 883 in conflict with
the constitution in that it allows the President to continue holding office after the calling of the special election.

Senator Pelaez submits that President Marcos’ letter of conditional “resignation” did not create the actual vacancy required
in Section 9, Article 7 of the Constitution which could be the basis of the holding of a special election for President and Vice
President earlier than the regular elections for such positions in 1987. The letter states that the President is: “irrevocably
vacat(ing) the position of President effective only when the election is held and after the winner is proclaimed and qualified
as President by taking his oath office ten (10) days after his proclamation.”

The unified opposition, rather than insist on strict compliance with the cited constitutional provision that the incumbent
President actually resign, vacate his office and turn it over to the Speaker of the Batasang Pambansa as acting President,
their standard bearers have not filed any suit or petition in intervention for the purpose nor repudiated the scheduled election.
They have not insisted that President Marcos vacate his office, so long as the election is clean, fair and honest.

ISSUE:

Is BP 883 unconstitutional, and should the Supreme Court therefore stop and prohibit the holding of the elections

HELD:

The petitions in these cases are dismissed and the prayer for the issuance of an injunction restraining respondents from
holding the election on February 7, 1986, in as much as there are less than the required 10 votes to declare BP 883
unconstitutional.

The events that have transpired since December 3,as the Court did not issue any restraining order, have turned the issue
into a political question (from the purely justiciable issue of the questioned constitutionality of the act due to the lack of the
actual vacancy of the President’s office) which can be truly decided only by the people in their sovereign capacity at the
scheduled election, since there is no issue more political than the election. The Court cannot stand in the way of letting the
people decide through their ballot, either to give the incumbent president a new mandate or to elect a new president.
Lawyers League for a Better Philippines vs Pres. Aquino
G.R. No. 73748
May 22, 1986

FACTS:
1. On February 25, 1986, President Corazon Aquino issued Proclamation No. 1 announcing that she and Vice President
Laurel
12

were taking power.


2. On March 25, 1986, proclamation No.3 was issued providing the basis of the Aquino government assumption of power by
stating that the "new government was installed through a direct exercise of the power of the Filipino people assisted by units
of the New Armed Forces of the Philippines."

ISSUE:
WON the government of Corazon Aquino is legitimate?

HELD:
Yes

RATIO:
The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of politics where only the people
are the judge.
The Court further held that:
1. the people have accepted the Aquino government which is in effective control of the entire country;
2. it is not merely a de facto government but in fact and law a de jure government; and
3. the community of nations has recognized the legitimacy of the new government
Santiago vs COMELEC
FACTS:

On December 6, 1996, Atty. Jesus S. Delfin, founding member of the Movement for People's Initiative, filed with the
COMELEC a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" citing Section
2, Article XVII of the Constitution. Acting on the petition, the COMELEC set the case for hearing and directed Delfin to have
the petition published. After the hearing the arguments between petitioners and opposing parties, the COMELEC directed
Delfin and the oppositors to file their "memoranda and/or oppositions/memoranda" within five days. On December 18, 1996,
Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin filed a special civil action for prohibition
under Rule 65 raising the following arguments, among others:

1.) That the Constitution can only be amended by people’s initiative if there is an enabling law passed by Congress, to which
no such law has yet been passed; and

2.) That R.A. 6735 does not suffice as an enabling law on people’s initiative on the Constitution, unlike in the other modes of
initiative.

ISSUE:

Is R.A. No. 6735 sufficient to enable amendment of the Constitution by people’s initiative?

HELD:

NO. R.A. 6735 is inadequate to cover the system of initiative on amendments to the Constitution.

Under the said law, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the
power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative.
They can only do so with respect to "laws, ordinances, or resolutions." The use of the clause "proposed laws sought to be
enacted, approved or rejected, amended or repealed" denotes that R.A. No. 6735 excludes initiative on amendments to the
Constitution.

Also, while the law provides subtitles for National Initiative and Referendum and for Local Initiative and Referendum, no
subtitle is provided for initiative on the Constitution. This means that the main thrust of the law is initiative and referendum on
national and local laws. If R.A. No. 6735 were intended to fully provide for the implementation of the initiative on
amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the
primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.

While R.A. No. 6735 specially detailed the process in implementing initiative and referendum on national and local laws, it
intentionally did not do so on the system of initiative on amendments to the Constitution.

WHEREFORE, petition is GRANTED.


MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as
founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents.
13

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF


ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:


The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right
of the people to directly propose amendments to the Constitution through the system of initiative under Section 2 of Article
XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of initiative was unknown to the
people of this country, except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponent 1 and the main sponsor 2 of the proposed Article on
Amendments or Revision of the Constitution, characterized this system as "innovative". 3 Indeed it is, for both under the 1935
and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were recognized,
viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional convention. 4 For this and the
other reasons hereafter discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections
(hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative"
(hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the 1987
Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and
volunteers, in establishing signing stations at the time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a group of citizens
desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement and
other volunteers intend to exercise the power to directly propose amendments to the Constitution granted under Section 2,
Article XVII of the Constitution; that the exercise of that power shall be conducted in proceedings under the control and
supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established
all over the country, with the assistance of municipal election registrars, who shall verify the signatures affixed by individual
signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the time and dates to
be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to adequately inform the
people of the electoral process involved, it is likewise necessary that the said order, as well as the Petition on which the
signatures shall be affixed, be published in newspapers of general and local circulation, under the control and supervision of
the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI, 7 Section 4 of
Article VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the
1987 Constitution" 10 embodying the proposed amendments which consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS,
AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII,
AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least twelve
per cent of the total number of registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the COMELEC,
through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the petition, together with the
attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed constitutional amendment, and the
signature form), and the notice of hearing in three (3) daily newspapers of general circulation at his own expense" not later
than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra;
representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul
S. Roco, together with his two other lawyers, and representatives of, or counsel for, the Integrated Bar of the Philippines
(IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the
initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda and/or
oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel
Ongpin — filed this special civil action for prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the Constitution can only be implemented
by law to be passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An
Act Prescribing and Regulating Constitution Amendments by People's Initiative, which petitioner Senator
Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional
Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on initiative on
the Constitution, unlike in the other modes of initiative, which are specifically provided for in Subtitle II and
14

Subtitle III. This deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed this deficiency in the
law in his privilege speech delivered before the Senate in 1994: "There is not a single word in that law
which can be considered as implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This
indicates that the Act covers only laws and not constitutional amendments because the latter take effect
only upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of initiative on
the Constitution and initiative and referendum on national and local laws, is ultra vires insofar as initiative
on amendments to the Constitution is concerned, since the COMELEC has no power to provide rules and
regulations for the exercise of the right of initiative to amend the Constitution. Only Congress is authorized
by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not to revision thereof. Extending or
lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the COMELEC nor any
other government department, agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the COMELEC
grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail expenses to the national treasury for
general re-registration of voters amounting to at least P180 million, not to mention the millions of additional pesos in
expenses which would be incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public
and the nation of the issues raised demands that this petition for prohibition be settled promptly and definitely, brushing
aside technicalities of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no
other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible period of
ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and
Carmen Pedrosa from conducting a signature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition. They argue therein
that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE
COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE
GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER
THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE
ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE
SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS
IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING
WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS
"INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER
26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET
AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING
THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION.
SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE
ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP.
ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R.
NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO
NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR
BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION
DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12,
S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS
PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT IS
ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC
PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE
15

ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP.
412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off with an assertion that
the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally
filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally necessary
to start the signature campaign to amend the Constitution or to put the movement to gather signatures under COMELEC
power and function. On the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of
initiative to amend the Constitution. The absence therein of a subtitle for such initiative is not fatal, since
subtitles are not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the
Constitution approved by the majority of the votes cast in the plebiscite shall become effective as of the
day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-
C of the Constitution, which grants the COMELEC the power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; and (b)
Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution
because it seeks to alter only a few specific provisions of the Constitution, or more specifically, only those
which lay term limits. It does not seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180 million as unreliable, for
only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997
Barangay Elections. In any event, fund requirements for initiative will be a priority government expense because it will be for
the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General
contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its Section 2 on
Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which
enumerates the three systems of initiative, includes initiative on the Constitution and defines the same as
the power to propose amendments to the Constitution. Likewise, its Section 5 repeatedly mentions
initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being
national in scope, that system of initiative is deemed included in the subtitle on National Initiative and
Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law when he claimed
that nothing therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with
initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a
revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the
Omnibus Election Code. The rule-making power of the COMELEC to implement the provisions of R.A. No.
6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the aforementioned
Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through Atty. Quadra, as well as
the latter's Manifestation stating that he is the counsel for private respondents Alberto and Carmen Pedrosa only and the
Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul
Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on
23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood
Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was their Petition in
Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution
because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change from a political philosophy
that rejects unlimited tenure to one that accepts unlimited tenure; and although the change might appear
to be an isolated one, it can affect other provisions, such as, on synchronization of elections and on the
State policy of guaranteeing equal access to opportunities for public service and prohibiting political
dynasties. 19 A revision cannot be done by initiative which, by express provision of Section 2 of Article XVII
of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided for all other national and local
elective officials are based on the philosophy of governance, "to open up the political arena to as many as
there are Filipinos qualified to handle the demands of leadership, to break the concentration of political
and economic powers in the hands of a few, and to promote effective proper empowerment for
participation in policy and decision-making for the common good"; hence, to remove the term limits is to
negate and nullify the noble vision of the 1987 Constitution.
16

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest
situation. Initiative is intended as a fallback position that may be availed of by the people only if they are
dissatisfied with the performance of their elective officials, but not as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the
people's initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file
the petition, (b) the appropriate agency before whom the petition is to be filed, (c) the contents of the
petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters
nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity
of the signatures, (g) the role of the COMELEC in the verification of the signatures and the sufficiency of
the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such people's initiative. Accordingly, there being no enabling law, the COMELEC
has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300,
since the COMELEC is without authority to legislate the procedure for a people's initiative under Section 2
of Article XVII of the Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not set a sufficient standard
for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate constitutional
amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and
even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under Section 20 of
that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is
without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said petition is not the
initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What
vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signed
by the required number of registered voters. He also submits that the proponents of a constitutional amendment cannot avail
of the authority and resources of the COMELEC to assist them is securing the required number of signatures, as the
COMELEC's role in an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition
and the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the following
arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987
Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to
amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of
signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or
a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and MABINI and
by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of
DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file within
a nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court formulated
in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the
Constitution; and if so, whether the Act, as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the
Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws)
regarding the conduct of initiative on amendments to the Constitution is valid, considering the absence in
the law of specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft "Petition
for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment to, the
Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to
obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal election
officers to assist Delfin's movement and volunteers in establishing signature stations; and (c) directing or
causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending
case before the COMELEC.
17

After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda within twenty
days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the main
Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a sufficient cause
of action and that the Commission's failure or refusal to do so constituted grave abuse of discretion amounting to lack of
jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of
Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on
House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of
Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a
prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it is proper
for this Court to take cognizance of this special civil action when there is a pending case before the COMELEC. The
petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin.
This being so, it becomes imperative to stop the Comelec from proceeding any further, and under the
Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent
necessity, in view of the highly divisive and adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of legal confusion and political instability begs for
judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of
man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the ground that
the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required
them to submit within five days their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it
practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the
attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition rendered ripe and viable
the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation, board, or person,
whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with
grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging
the facts with certainty and praying that judgment be rendered commanding the defendant to desist from
further proceedings in the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition because the
said petition is not supported by the required minimum number of signatures of registered voters. LABAN also asserts that
the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which does not contain the required
number of signatures. In light of these claims, the instant case may likewise be treated as a special civil action for certiorari
under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside technicalities of
procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28
A party's standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality because the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities
of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative
upon a petition of at least twelve per centum of the total number of registered voters, of which every
18

legislative district must be represented by at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the
Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is
dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of
initiative would remain entombed in the cold niche of the Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot
exercise it if Congress, for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision proposed by the
Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its Committee Report No. 7
(Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article___ Section ___of the
Constitution. 31
After several interpellations, but before the period of amendments, the Committee submitted a new formulation of
the concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the
Members of the Commission that pursuant to the mandate given to us last night, we
submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section 2
of the complete committee report. With the permission of the Members, may I quote
Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose amendments to
this Constitution thru initiative upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there
are no details in the provision on how to carry this out. Do we understand, therefore, that
we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the legislature
does not pass the necessary implementing law on this, this will not operate?
MR. SUAREZ. That matter was also taken up during the committee hearing, especially
with respect to the budget appropriations which would have to be legislated so that the
plebiscite could be called. We deemed it best that this matter be left to the legislature.
The Gentleman is right. In any event, as envisioned, no amendment through the power
of initiative can be called until after five years from the date of the ratification of this
Constitution. Therefore, the first amendment that could be proposed through the
exercise of this initiative power would be after five years. It is reasonably expected that
within that five-year period, the National Assembly can come up with the appropriate
rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature — the details on how this is to be
carried out — is it possible that, in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the people? Does this provision
exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself
as a body could propose that amendment, maybe individually or collectively, if it fails to
muster the three-fourths vote in order to constitute itself as a constituent assembly and
submit that proposal to the people for ratification through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to
vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the draft of
Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal
mandate, constituent power has primacy over all other legal mandates?
19

MR. SUAREZ. The Commissioner is right, Madam President.


MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we require a
great deal of circumspection in the drafting and in the amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we
have a separate article in the constitution that would specifically cover the process and
the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to
again concede to the legislature the process or the requirement of determining the
mechanics of amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the hands of
the National Assembly, not unless we can incorporate into this provision the mechanics
that would adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND — not to
REVISE — the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year, has to
be separated from the traditional modes of amending the Constitution as embodied in
Section 1. The committee members felt that this system of initiative should not extend to
the revision of the entire Constitution, so we removed it from the operation of Section 1
of the proposed Article on Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section as if it
were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the Constitution. That was the sense that
was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage
of modes (a) and (b) in Section 1 to include the process of revision; whereas the
process of initiation to amend, which is given to the public, would only apply to
amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the
Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2
with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment after taking
into account the modifications submitted by the sponsor himself and the honorable
Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The
modified amendment in substitution of the proposed Section 2 will now read as follows:
"SECTION 2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION
OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY
AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION
OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is reflective
of the sense contained in Section 2 of our completed Committee Report No. 7, we
accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative
act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
20

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this
particular right would be subject to legislation, provided the legislature cannot determine
anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form for
submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish or
impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to — NOT
REVISION of — the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on
line 1 refers to "amendment." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words "amendments"
and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered
by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision." 38
Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more
rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is
an amendment to the Constitution. To amend a Constitution would ordinarily require a
proposal by the National Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to submit the issue of calling
a constitutional convention, a majority of the National Assembly is required, the import
being that the process of amendment must be made more rigorous and difficult than
probably initiating an ordinary legislation or putting an end to a law proposed by the
National Assembly by way of a referendum. I cannot agree to reducing the requirement
approved by the Committee on the Legislative because it would require another voting
by the Committee, and the voting as precisely based on a requirement of 10 percent.
Perhaps, I might present such a proposal, by way of an amendment, when the
Commission shall take up the Article on the Legislative or on the National Assembly on
plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the Commission
approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows:
"AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED
BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT
OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986. 41
Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an amendment to
Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on Second and
Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be amended by changing "percent" to "per
centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph so that said paragraph reads:
The Congress 43 shall provide for the implementation of the exercise of this right. 44 This amendment was approved and is
the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article XVII of
the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question in the
affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.
21

There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a
statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the exercise of this right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the
exercise of the right. The "rules" means "the details on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the
Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred to it,
viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject matter of
House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative
provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum
concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate
Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and
by the House of Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of the
exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on
amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. — The power of the people under a system of initiative and referendum to
directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or
resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane nor
relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier,
initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to
"directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative.
They can only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17,
which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases "propose
and enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and
mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional
requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other
systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. Section 5,
paragraph (c) requires, among other things, statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of the
Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed,
as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly
written or printed at the top of every page of the petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" only
strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and
Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter
simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended
R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have
provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right
of the people to directly propose amendments to the Constitution is far more important than the initiative on national and
local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on
National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based
on the scope of the initiative involved, but on its nature and character. It is "national initiative," if what is proposed to be
22

adopted or enacted is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be
adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the autonomous
regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative into national and local is
actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms —
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city,
municipal, or barangay law, resolution or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the
Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on
National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an election called for
the purpose shall become effective fifteen (15) days after certification and proclamation of the
Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments;
thus:
Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may file a
petition for indirect initiative with the House of Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or
insufficiency of the petition for initiative or referendum, which could be petitions for both national and local initiative
and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum is misplaced, 54
since the provision therein applies to both national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts from
declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or
want of capacity of the local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of
initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally,
to do so on the system of initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act
provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the
Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of initiative as a
consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to whether
the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their approval,
which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three sections,
merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which the proposition
in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements
as to the number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.
23

There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. RA. No. 6735
thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant
lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are
fatal and cannot be cured by "empowering" the COMELEC "to promulgate such rules and regulations as may be necessary
to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non
delegari potest. 59 The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations
is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there
must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard — the limits of which are
sufficiently determinate and determinable — to which the delegate must conform in the performance of his functions. 61 A
sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public
agency to apply it. It indicates the circumstances under which the legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both
requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE
CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right
of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power
under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced,
for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C
of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the
"sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING
THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the right to
initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate legislation and
that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the
Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the required
number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his petition is
primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory pleading.
Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC or its
personnel before the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to issue through its Election
Records and Statistics Office a certificate on the total number of registered voters in each legislative district; 64 (3) to assist,
through its election registrars, in the establishment of signature stations; 65 and (4) to verify, through its election registrars,
the signatures on the basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the
immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot be
entertained or given cognizance of by the COMELEC. The respondent Commission must have known that the petition does
not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for
which reason it did not assign to the petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not have been dignified by
the Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file
their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion
and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of elective national
and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic.
CONCLUSION
24

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on
the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on
Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Salonga vs. Cruz-Pano
[GR 59524, 18 February 1985]
En Banc, Gutierrez Jr. (J): 9 concur, 1 concur in separate opinion, 3 took no part
Facts: A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On
6 September 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost
killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the
YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken
sometime in May 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los
Angeles suburb. Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures
together with other guests, including Lovely. As a result of the serious injuries he suffered, Lovely was brought by military
and police authorities to the AFP Medical Center (V. Luna Hospital) where he was place in the custody and detention of Col.
Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security
Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely where charged with
subversion, illegal possession of explosives, and damage to property. On 12 September 1980, bombs once again exploded
in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in
Makati and others which caused injuries to a number of persons. On 20 September 1980, the President's anniversary
television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the
conference. The next day, newspapers came out with almost identical headlines stating in effect that Salonga had been
linked to the various bombings in Metro Manila. Meanwhile, on 25 September 1980, Lovely was taken out of the hospital's
intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for sometime. On the
night of 4 October 1980, more bombs were reported to have exploded at 3 big hotels in Metro Manila. The bombs injured 9
people. A meeting of the General Military Council was called for 6 October 1980. On 19 October 1980, minutes after the
President had finished delivering his speech before the International Conference of the American Society of Travel Agents at
the Philippine International Convention Center, a small bomb exploded. Within the next 24 hours, arrest, search, and seizure
orders (ASSOs) were issued against persons, including Salonga, who were apparently implicated by Victor Lovely in the
series of bombings in Metro Manila. On 21 October 1980, elements of the military went to the hospital room of Salonga at
the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed
him under arrest. The arresting officer showed Salonga the ASSO form which however did not specify the charge or charges
against him. For some time, Salonga's lawyers were not permitted to visit him in his hospital room until the Supreme Court in
the case of Ordoñez v. Gen. Fabian Ver, et al., (GR 55345, 28 October 1980) issued an order directing that Salonga's right
to be visited by counsel be respected. On 2 November 1980, Salonga was transferred against his objections from his
hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. Salonga stated that he
was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil
authority. Subsequently, on 27 November 1980, Salonga was released for humanitarian reasons from military custody and
placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges. On
10 December 1980, the Judge Advocate General sent Salonga a "Notice of Preliminary Investigation" in People v. Benigno
Aquino, Jr., et al. (which included Salonga as a co-accused). Up to the time martial law was lifted on 17 January 1981, and
despite assurance to the contrary, Salonga has not received any copies of the charges against him nor any copies of the so-
called supporting evidence. On 9 February 1981, the records of the case were turned over by the Judge Advocate General's
Office to the Ministry of Justice. On 24 February 1981, the City Fiscal filed a complaint accusing Salonga, among others of
having violated RA 1700, as amended by PD 885 and BP 31 in relation to Article 142 of the Revised Penal Code. The
inquest court set the preliminary investigation for 17 March 1981. On 6 March 1981, Salonga was allowed to leave the
country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach,
liver, eye and ear including a possible removal of his left eye to save his right eye. The counsel for Salonga was furnished a
copy of an amended complaint signed by Gen. Prospero Olivas, dated 12 March 1981, charging Salonga, along with 39
other accused with the violation of RA 1700, as amended by PD 885, BP 31 and PD 1736. On 15 October 1981, the counsel
for Salonga filed a motion to dismiss the charges against Salonga for failure of the prosecution to establish a prima facie
case against him. On 2 December 1981, Judge Ernani Cruz Pano (Presiding Judge of the Court of First Instance of Rizal,
25

Branch XVIII, Quezon City) denied the motion. On 4 January 1982, he issued a resolution ordering the filing of an
information for violation of the Revised Anti-Subversion Act, as amended, against 40 people, including Salonga. The
resolutions of the said judge dated 2 December 1981 and 4 January 1982 are the subject of the present petition for
certiorari. It is the contention of Salonga that no prima facie case has been established by the prosecution to justify the filing
of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him
would be to admit that no rule of law exists in the Philippines today.
Issue: Whether the Court may still elaborate on a decision when the lower courts have dropped the case against petitioner
Salonga.
Held: The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of
Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not
enter at will is not the totality of the Court's functions. The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent
of protection given by constitutional guarantees. In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a
P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition
was pending. The petition became moot because of his escape but we nonetheless rendered a decision. In Gonzales v.
Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive
order was mooted by Presidential Decree 15, the Center's new charter pursuant to the President's legislative powers under
martial law. Still, the Court discussed the constitutional mandate on the preservation and development of Filipino culture for
national identity. In the habeas corpus case of Aquino, Jr., v. Enrile (59 SCRA 183), during the pendency of the case, 26
petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of
murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent the
Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in the
Reports. Herein, the prosecution evidence miserably fails to establish a prima facie case against Salonga, either as a co-
conspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization.
The respondents have taken the initiative of dropping the charges against Salonga. The Court reiterates the rule, however,
that the Court will not validate the filing of an information based on the kind of evidence against Salonga found in the
records.
Sanlakas vs. Executive Secretary Reyes
[GR 159085, 3 February 2004]; also Social Justice Society (SJS) Officers/Member [GR 159103], Suplico, et al., vs.
Macapagal-Arroyo, et al. [GR 159185]; Pimentel et al. vs. Romulo et al. [GR 159196]
En Banc, Tinga (J): 3 concur, 3 concur in result, 1 concurs in separate opinion to which 2 join, 2 file own separate opinions, 1
dissents in separate opinion, 1 on leave
Facts: They came in the middle of the night. Armed with high-powered ammunitions and explosives, some three hundred
junior officers and enlisted men of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere
apartments in Makati City in the wee hours of 27 July 2003. Bewailing the corruption in the AFP, the soldiers demanded,
among other things, the resignation of the President, the Secretary of Defense and the Chief of the Philippine National Police
(PNP). In the wake of the Oakwood occupation, the President issued later in the day Proclamation 427 and General Order 4,
both declaring “a state of rebellion” and calling out the Armed Forces to suppress the rebellion. By the evening of 27 July
2003, the Oakwood occupation had ended. After hours-long negotiations, the soldiers agreed to return to barracks. The
President, however, did not immediately lift the declaration of a state of rebellion and did so only on 1 August 2003, through
Proclamation 435. In the interim, several petitions were filed before the Supreme Court challenging the validity of
Proclamation 427 and General Order 4.
Issue: Whether the petitions have been rendered moot by the lifting of the declaration.
Held: NO. The Court agrees with the Solicitor General that the issuance of Proclamation 435, declaring that the state of
rebellion has ceased to exist, has rendered the case moot. As a rule, courts do not adjudicate moot cases, judicial power
being limited to the determination of “actual controversies.” Nevertheless, courts will decide a question, otherwise moot, if it
is “capable of repetition yet evading review.” The present case is one such case. Once before, the President on 1 May 2001
declared a state of rebellion and called upon the AFP and the PNP to suppress the rebellion through Proclamation 38 and
General Order 1. On that occasion, “‘an angry and violent mob armed with explosives, firearms, bladed weapons, clubs,
stones and other deadly weapons’ assaulted and attempted to break into Malacañang.” Petitions were filed before the
Supreme Court assailing the validity of the President’s declaration. Five days after such declaration, however, the President
lifted the same. The mootness of the petitions in Lacson v. Perez and accompanying cases precluded the Court from
addressing the constitutionality of the declaration. To prevent similar questions from reemerging, the Supreme Court seized
the opportunity to finally lay to rest the validity of the declaration of a state of rebellion in the exercise of the President’s
calling out power, the mootness of the petitions notwithstanding.
G.R. No. 171396, May 3, 2006
David vs GMA
• "Take Care" Power of the President
• Powers of the Chief Executive
• The power to promulgate decrees belongs to the Legislature

FACTS:

These 7 consolidated petitions question the validity of PP 1017 (declaring a state of national emergency) and General Order
26

No. 5 issued by President Gloria Macapagal-Arroyo. While the cases are pending, President Arroyo issued PP 1021,
declaring that the state of national emergency has ceased to exist, thereby, in effect, lifting PP 1017.

ISSUE:
• Whether or not PP 1017 and G.O. No. 5 arrogated upon the President the power to enact laws and decrees
• If so, whether or not PP 1017 and G.O. No. 5 are unconstitutional

HELD:

“Take-Care” Power

This refers to the power of the President to ensure that the laws be faithfully executed, based on Sec. 17, Art. VII: “The
President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully
executed.”

As the Executive in whom the executive power is vested, the primary function of the President is to enforce the laws as well
as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and
employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as
President of the Philippines, he will, among others, “execute its laws.” In the exercise of such function, the President, if
needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country,
including the Philippine National Police under the Department of Interior and Local Government.

The specific portion of PP 1017 questioned is the enabling clause: “to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction.”

Is it within the domain of President Arroyo to promulgate “decrees”?

The President is granted an Ordinance Power under Chap. 2, Book III of E.O. 292. President Arroyo’s ordinance power is
limited to those issuances mentioned in the foregoing provision. She cannot issue decrees similar to those issued by Former
President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to
promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. Sec. 1, Art. VI categorically
states that “the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a
House of Representatives.” To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyo’s exercise of legislative power by issuing decrees.

But can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and,
therefore, cannot be enforced. With respect to “laws,” she cannot call the military to enforce or implement certain laws, such
as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only
order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
Senate vs. Ermita , GR 169777, April 20, 2006

FACTS:
This is a petition for certiorari and prohibition proffer that the President has abused power by issuing E.O. 464 “Ensuring
Observance of the Principles of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the
Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and for Other
Purposes”. Petitioners pray for its declaration as null and void for being unconstitutional.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts
inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the
executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations,
the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).
The Committee of the Senate issued invitations to various officials of the Executive Department for them to appear as
resource speakers in a public hearing on the railway project, others on the issues of massive election fraud in the Philippine
elections, wire tapping, and the role of military in the so-called “Gloriagate Scandal”.
Said officials were not able to attend due to lack of consent from the President as provided by E.O. 464, Section 3 which
requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before
either house of Congress.

ISSUE:
Is Section 3 of E.O. 464, which requires all the public officials, enumerated in Section 2(b) to secure the consent of the
27

President prior to appearing before either house of Congress, valid and constitutional?

RULING:
No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered by the executive privilege. The doctrine of
executive privilege is premised on the fact that certain information must, as a matter of necessity, be kept confidential in
pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that
obligation in a particular case.
Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the
executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason
therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information
without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking
said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated.
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine
National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District
Chief Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay,
Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo
Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn
Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon,
Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO
REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his
official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief,
National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila
Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING
UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.
x---------------------------------x
G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by
its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA
SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR
LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and
that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was
violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they
were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and
violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to
Malacañang to protest issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and the
protest was likewise dispersed violently and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass
actions and that their rights as organizations and those of their individual members as citizens, specifically the right to
peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR)
being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police
blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their
members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to
proceed along España Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing
injuries on one of them.4 Three other rallyists were arrested.
28

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a),
as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR
policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government
[And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and petition the government for
redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the
free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or
concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the
general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or
social; or petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall
be governed by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this
Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action in strike areas by workers and
employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and
by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park,
plaza, square, and/or any open space of public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping
authorities shall observe during a public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the
parade or street march, the volume of loud-speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written permit shall be required for any person or persons to
organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be
done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent
of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or
rallies held during any election campaign period as provided for by law are not covered by this Act.
Sec. 5. Application requirements. – All applications for a permit shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of
such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity;
and the probable number of persons participating, the transport and the public address systems to be used.
(b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the
intended activity is to be held, at least five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal
mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear
and convincing evidence that the public assembly will create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the
date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by
the applicant on the premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit,
the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall
be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases
filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next
in rank.
29

(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an appreciable length of
time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent
grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic
to another direction so that there will be no serious or undue interference with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and organizers of a public assembly
to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in
accordance with the terms of the permit. These shall include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful
activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to the end that the public assembly may
be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the
rights of other persons not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a
responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of
activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this
end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with
their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform
and must observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with
baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public
assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the
police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will
be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the
ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public
assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a
ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured
that written permit where a permit is required from the office concerned, or the use of such permit for such purposes
in any place other than those set out in said permit: Provided, however, That no person can be punished or held
criminally liable for participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor
or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the
mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the
public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public
assembly or on the occasion thereof:
30

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor
vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in the immediately
preceding section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment
of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years
without prejudice to prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty
days.
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time
without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional, the validity or
constitutionality of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which
are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in Annex
"A" to the Petition in G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow
disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the local
government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest all
persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside
while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to
public order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and
proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or
absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of
expression clause as the time and place of a public assembly form part of the message for which the expression is sought.
Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words "lawful
cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the government. Also,
the phrase "maximum tolerance" shows that the law applies to assemblies against the government because they are being
tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to
peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It
also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its
provisions are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws
(clear and present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in
B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880
cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the
limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear
31

and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain
events require instant public assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform
their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum
tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of
the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of
the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj.
Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity; Angelo Reyes,
as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro
Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their control, supervision and
instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the
Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or
detained because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.]
880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and
manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No.
880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored
to serve a significant governmental interest, i.e., the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the
information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public
assembly’s time, place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and
serious or undue interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880
authorizes the denial of a permit on the basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of B.P. No. 880 as a
content-neutral regulation has been recognized in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of
holding public assemblies and the law passes the test for such regulation, namely, these regulations need only a
substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police
power to meet "the demands of the common good in terms of traffic decongestion and public convenience."
Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d),
(e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly
will create a clear and present danger to public order, public safety, public convenience, public morals or public
health" and "imminent and grave danger of a substantive evil" both express the meaning of the "clear and present
danger test."10
7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect
public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active
and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not
replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be
dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880;
that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt
the economy and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not for the
exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the
cases for oral arguments on April 4, 2006,14 stating the principal issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and
Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal Declaration of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?
32

During the course of the oral arguments, the following developments took place and were approved and/or noted by the
Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising
factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the
rallies of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a
legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought
to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the
affidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the
right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who
would publicly assemble in the nation’s streets and parks. They have, in fact, purposely engaged in public assemblies
without the required permits to press their claim that no such permit can be validly required without violating the
Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed
the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom
of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these
rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and
unprotected. As stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already
upheld the right to assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the government for a redress of grievances
and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful
concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of
Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements
defending and promoting the people’s exercise of these rights. As early as the onset of this century, this Court in U.S. vs.
Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement,
and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of
the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a
delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would
expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in
drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a
tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition
over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are
fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a
settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the
sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good
order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated
to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and
city councils to enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and
peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances." Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no
previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a "clear and present danger of a
substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to
33

meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom
of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to
the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for
the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the
rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people
peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical,
are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the
judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger,
of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed
than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to
reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due
to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope.
But utterance in a context of violence can lose its significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered by the Constitution." What was rightfully stressed
is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give
vent to their views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication
cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the
cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled
out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early
Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more or
less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance
and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their
irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to
property, and acts of vandalism must be avoided. To give free rein to one’s destructive urges is to call for
condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed
in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks
may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of
the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties
of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views
on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and good order; but must
not, in the guise of regulation, be abridged or denied." The above excerpt was quoted with approval in Primicias v.
Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a
contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade
for public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason
why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two
blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding
that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in
Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox v.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2,
providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special
license therefor shall first be obtained from the selectmen of the town or from licensing committee,’ was construed
by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse
to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by
Chief Justice Hughes affirming the judgment of the State Supreme Court, held that ‘a statute requiring persons
using the public streets for a parade or procession to procure a special license therefor from the local authorities is
not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a
34

consideration of the time, place, and manner of the parade or procession, with a view to conserving the public
convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion
to issue or refuse license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the
opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society
maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the
use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the
most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation
is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances would be entitled to protection."
xxx
6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The
question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under
which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects." There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character.
Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent
Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but
of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the
assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there.
The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not
to be "abridged on the plea that it may be exercised in some other place."
xxx
8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of
the date, the public place where and the time when it will take place. If it were a private place, only the consent of
the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time
to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit
or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the
clear and present danger test be the standard for the decision reached. If he is of the view that there is such an
imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his
decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded,
they can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other
intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed
that on the judiciary, -- even more so than on the other departments – rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of
judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such
rights, enjoying as they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880


(G.R. No. L-65366, November 9, 1983, Sec. 4. Permit when required and when not required.-- A
125 SCRA 553, 569) written permit shall be required for any person or persons
8. By way of a summary. The applicants for a permit to to organize and hold a public assembly in a public place.
hold an assembly should inform the licensing authority of However, no permit shall be required if the public
the date, the public place where and the time when it will assembly shall be done or made in a freedom park duly
take place. If it were a private place, only the consent of established by law or ordinance or in private property, in
the owner or the one entitled to its legal possession is which case only the consent of the owner or the one
required. Such application should be filed well ahead in entitled to its legal possession is required, or in the
time to enable the public official concerned to appraise campus of a government-owned and operated educational
whether there may be valid objections to the grant of the institution which shall be subject to the rules and
permit or to its grant but at another public place. It is an regulations of said educational institution. Political
indispensable condition to such refusal or modification that meetings or rallies held during any election campaign
the clear and present danger test be the standard for the period as provided for by law are not covered by this Act.
decision reached. If he is of the view that there is such an Sec. 5. Application requirements.-- All applications for a
imminent and grave danger of a substantive evil, the permit shall comply with the following guidelines:
applicants must be heard on the matter. Thereafter, his (a) The applications shall be in writing and shall
decision, whether favorable or adverse, must be include the names of the leaders or organizers;
transmitted to them at the earliest opportunity. Thus if so the purpose of such public assembly; the date,
minded, they can have recourse to the proper judicial time and duration thereof, and place or streets to
35

authority. be used for the intended activity; and the


probable number of persons participating, the
transport and the public address systems to be
used.
(b) The application shall incorporate the duty and
responsibility of applicant under Section 8 hereof.
(c) The application shall be filed with the office of
the mayor of the city or municipality in whose
jurisdiction the intended activity is to be held, at
least five (5) working days before the scheduled
public assembly.
(d) Upon receipt of the application, which must
be duly acknowledged in writing, the office of the
city or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in
the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official
acting in his behalf to issue or grant a permit
unless there is clear and convincing evidence
that the public assembly will create a clear and
present danger to public order, public safety,
public convenience, public morals or public
health.
(b) The mayor or any official acting in his behalf
shall act on the application within two (2) working
days from the date the application was filed,
failing which, the permit shall be deemed
granted. Should for any reason the mayor or any
official acting in his behalf refuse to accept the
application for a permit, said application shall be
posted by the applicant on the premises of the
office of the mayor and shall be deemed to have
been filed.
(c) If the mayor is of the view that there is
imminent and grave danger of a substantive evil
warranting the denial or modification of the
permit, he shall immediately inform the applicant
who must be heard on the matter.
(d) The action on the permit shall be in writing
and served on the applica[nt] within twenty-four
hours.
(e) If the mayor or any official acting in his behalf
denies the application or modifies the terms
thereof in his permit, the applicant may contest
the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan
Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial
Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate
court within forty-eight (48) hours after receipt of
the same. No appeal bond and record on appeal
shall be required. A decision granting such permit
or modifying it in terms satisfactory to the
applicant shall be immediately executory.
(g) All cases filed in court under this section shall
be decided within twenty-four (24) hours from
date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to
36

the Supreme Court.


(i) Telegraphic appeals to be followed by formal
appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates
the time, place and manner of the assemblies. This was adverted to in Osmeña v. Comelec,20 where the Court referred to it
as a "content-neutral" regulation of the time, place, and manner of holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use
public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for
lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion,"
"protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The
words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be
avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the
expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public
convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the
Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined
by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United
Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art,
or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by
law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be
defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or
characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or
any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent
needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and present
danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially
means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power
independently under Republic Act No. 716024 is thus not necessary to resolve in these proceedings, and was not pursued by
the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom
parks where no prior permit is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time
without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
37

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park –
Fuente Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set aside a freedom park
within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have
been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the people’s
exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the
finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or
municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum,
to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to
ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the
term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P.
No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General,
thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of
"maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police
and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately,
however, the phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean
inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that
they need not bother secure a permit when holding rallies thinking this would be "tolerated." Clearly, the popular connotation
of "maximum tolerance" has departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic
assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances
when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no
rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their
response based on the circumstances on the ground with the view to preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not
referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to
disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even
when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local
government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . .
unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg.
880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose
if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be
followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the
following:
Sec. 3. Definition of terms. – For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities
shall observe during a public assembly or in the dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a
responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of
activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble and the freedom of expression is primordial.1avvphil.net
Towards this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with
their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform
and must observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with
baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public
assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;
38

(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the
police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will
be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the
ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public
assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a
ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public
assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly
or on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and
loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a
permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In
such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an
application duly filed on a given date can, after two days from said date, rally in accordance with their application without the
need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities
to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the
procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of
expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly
vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of
justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck
down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify
abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict
freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being
insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power
to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30
days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks
are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned
shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The
only requirement will be written notices to the police and the mayor’s office to allow proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and
Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas
Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and
municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no
prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city
or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR),
insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are
ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance. The petitions
are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T.
ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA,
and ALVIN A. PETERS, Petitioners,
vs.
COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS and
39

AWARDS COMMITTEE, represented by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET
and MANAGEMENT, represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT
CORPORATION and SMARTMATIC INTERNATIONAL CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor.
DECISION
VELASCO, JR., J.:
In a democratic system of government, the people’s voice is sovereign. Corollarily, choosing through the ballots the men and
women who are to govern the country is perhaps the highest exercise of democracy. It is thus the interest of the state to
insure honest, credible and peaceful elections, where the sanctity of the votes and the secrecy of the ballots are
safeguarded, where the will of the electorate is not frustrated or undermined. For when the popular will itself is subverted by
election irregularities, then the insidious seeds of doubt are sown and the ideal of a peaceful and smooth transition of power
is placed in jeopardy. To automate, thus breaking away from a manual system of election, has been viewed as a significant
step towards clean and credible elections, unfettered by the travails of the long wait and cheating that have marked many of
our electoral exercises.
The Commission on Elections (Comelec), private respondents, the National Computer Center and other computer wizards
are confident that nationwide automated elections can be successfully implemented. Petitioners and some skeptics in the
information technology (IT) industry have, however, their reservations, which is quite understandable. To them, the
automated election system and the untested technology Comelec has chosen and set in motion are pregnant with risks and
could lead to a disastrous failure of elections. Comelec, they allege, would not be up to the challenge. Cheating on a
massive scale, but this time facilitated by a machine, is perceived to be a real possibility.
In this petition for certiorari, prohibition and mandamus with prayer for a restraining order and/or preliminary injunction,
petitioners H. Harry L. Roque, Jr., et al., suing as taxpayers and concerned citizens, seek to nullify respondent Comelec’s
award of the 2010 Elections Automation Project (automation project) to the joint venture of Total Information Management
Corporation (TIM) and Smartmatic International Corporation (Smartmatic)1 and to permanently prohibit the Comelec, TIM
and Smartmatic from signing and/or implementing the corresponding contract-award.
By Resolution2 of July 14, 2009, the Court directed the respondents as well as the University of the Philippines (UP)
Computer Center, National Computer Center (NCC) and Information Technology Foundation of the Philippines (Infotech,
hereinafter) to submit their collective or separate comments to the petition on or before July 24, 2009. Before any of the
comments could actually be filed, Atty. Pete Quirino-Quadra sought leave to intervene. In another resolution, the Court
allowed the intervention and admitted the corresponding petition-in-intervention.3
On July 29, 2009, the Court heard the principal parties in oral arguments which was followed by the submission of their and
the resource persons’ instructive, albeit clashing, memoranda. The Senate, through the Senate President, would later join
the fray via a Motion for Leave to Intervene. In a Resolution of August 25, 2009, the Court admitted the Senate’s comment-
in-intervention.
From the petition, the separate comments thereon, with their respective annexes, and other pleadings, as well as from
admissions during the oral arguments, the Court gathers the following facts:
On December 22, 1997, Congress enacted Republic Act No. (RA) 8436 authorizing the adoption of an automated election
system (AES) in the May 11, 1998 national and local elections and onwards. The 1998, 2001, and 2004 national and local
polls, however, came and went but purely manual elections were still the order of the day. On January 23, 2007, the
amendatory RA 93694 was passed authorizing anew the Comelec to use an AES. Of particular relevance are Sections 6 and
10 of RA 9369––originally Secs. 5 and 8, respectively of RA 8436, as amended––each defining Comelec’s specific
mandates insofar as automated elections are concerned. The AES was not utilized in the May 10, 2000 elections, as funds
were not appropriated for that purpose by Congress and due to time constraints.
RA 9369 calls for the creation of the Comelec Advisory Council5 (CAC). CAC is to recommend, among other functions, the
most appropriate, applicable and cost-effective technology to be applied to the AES.6 To be created by Comelec too is the
Technical Evaluation Committee (TEC)7 which is tasked to certify, through an established international certification
committee, not later than three months before the elections, by categorically stating that the AES, inclusive of its hardware
and software components, is operating properly and accurately based on defined and documented standards.8
In August 2008, Comelec managed to automate the regional polls in the Autonomous Region of Muslim Mindanao9 (ARMM),
using direct recording electronics (DRE) technology10 in the province of Maguindanao; and the optical mark reader/recording
(OMR) system, particularly the Central Count Optical Scan (CCOS),11 in the rest of ARMM.12 What scores hailed as
successful automated ARMM 2008 elections paved the way for Comelec, with some prodding from senators,13 to prepare for
a nationwide computerized run for the 2010 national/local polls, with the many lessons learned from the ARMM experience
influencing, according to the NCC, the technology selection for the 2010 automated elections.14
Accordingly, in early March 2009, the Comelec released the Request for Proposal (RFP), also known as Terms of Reference
(TOR), for the nationwide automation of the voting, counting, transmission, consolidation and canvassing of votes for the
May 10, 2010 Synchronized National and Local Elections. What is referred to also in the RFP and other contract documents
as the 2010 Elections Automation Project (Automation Project) consists of three elaborate components, as follows:
Component 1: Paper-Based AES.15 1-A. Election Management System (EMS); 1-B Precinct-Count Optic Scan
(PCOS) 16 System and 1-C. Consolidation/Canvassing System (CCS);
Component 2: Provision for Electronic Transmission of Election Results using Public Telecommunications
Network; and
Component 3: Overall Project Management
40

And obviously to address the possibility of systems failure, the RFP required interested bidders to submit, among other
things: a continuity plan17 and a back-up plan. 18
Under the two-envelope system designed under the RFP,19 each participating bidder shall submit, as part of its bid, an
Eligibility Envelope20 that should inter alia establish the bidder’s eligibility to bid. On the other hand, the second envelope, or
the Bid Envelope itself, shall contain two envelopes that, in turn, shall contain the technical proposal and the financial
proposal, respectively.21
Subsequently, the Comelec Special Bids and Awards Committee (SBAC), earlier constituted purposely for the aforesaid
project, caused the publication in different newspapers of the Invitation to Apply for Eligibility and to Bid22 for the procurement
of goods and services to be used in the automation project.23 Meanwhile, Congress enacted RA 9525 appropriating some
PhP 11.3 billion as supplemental budget for the May 10, 2010 automated national and local elections.
Of the ten (10) invitation-responding consortia which obtained the bid documents, only seven (7) submitted sealed
applications for eligibility and bids24 which, per Bid Bulletin No. 24, were to be opened on a pre-set date, following the
convening of the pre-bid conference. Under the RFP, among those eligible to participate in the bidding are manufacturers,
suppliers and/or distributors forming themselves into a joint venture. A joint venture is defined as a group of two or more
manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular
contract.25
Among the submitted bids was that of the joint venture (JV) of TIM and Smartmatic, the former incorporated under the
Corporation Code of the Philippines. Smartmatic, on the other hand, was organized under the laws of Barbados.26 For a
stated amount, said JV proposed to undertake the whole automation project, inclusive of the delivery of 82,200 PCOS
machines. After the conclusion of the eligibility evaluation process, only three consortia27 were found and thus declared as
eligible. Further on, following the opening of the passing bidders’ Bid Envelope and evaluating the technical and financial
proposals therein contained, the SBAC, per its Res. No. 09-001, s.-2009, declared the above-stated bid of the JV of TIM-
Smartmatic as the single complying calculated bid.28 As required by the RFP, the bid envelope contained an outline of the
joint venture’s back-up and continuity or contingency plans,29 in case of a systems breakdown or any such eventuality which
shall result in the delay, obstruction or nonperformance of the electoral process.
After declaring TIM-Smartmatic as the best complying bidder, the SBAC then directed the joint venture to undertake post-
qualification screening, and its PCOS prototype machines––the Smarmatic Auditable Electronic System (SAES) 1800––to
undergo end-to-end30 testing to determine compliance with the pre-set criteria.
In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation Consolidated Report and Status Report on the
Post-Qualification Evaluation Procedures, the SBAC Technical Working Group (TWG) stated that it was undertaking a 4-day
(May 27 to May 30, 2009) test evaluation of TIM and Smartmatic’s proposed PCOS project machines. Its conclusion: "The
demo systems presented PASSED all tests as required in the 26-item criteria specified in the [RFP]" with 100% accuracy
rating.31 The TWG also validated the eligibility, and technical and financial qualifications of the TIM-Smartmatic joint venture.
On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC and other stakeholders, issued Resolution No.
(Res.) 860832 authorizing the SBAC to issue, subject to well-defined conditions, the notice of award and notice to proceed in
favor of the winning joint venture.
Soon after, TIM wrote Comelec expressing its desire to quit the JV partnership. In time, however, the parties were able to
patch up what TIM earlier described as irreconcilable differences between partners.
What followed was that TIM and Smartmatic, pursuant to the Joint Venture Agreement (JVA),33 caused the incorporation of a
joint venture corporation (JVC) that would enter into a contract with the Comelec. On July 8, 2009, the Securities and
Exchange Commission issued a certificate of incorporation in favor of Smartmatic TIM Corporation. Two days after, or on
July 10, 2009, Comelec and Smartmatic TIM Corporation, as provider, executed a contract34 for the lease of goods and
services under the contract for the contract amount of PhP 7,191,484,739.48, payable as the "Goods and Services are
delivered and/or progress is made in accordance [with pre-set] Schedule of Payments."35 On the same date, a Notice to
Proceed36 was sent to, and received by, Smartmatic TIM Corporation.
Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse which, for all intents and purposes, impugns the
validity and seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM Corporation automation contract adverted to. Among
others, petitioners pray that respondents be permanently enjoined from implementing the automation project on the
submission that:
PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010 ELECTIONS AUTOMATION
PROJECT TO PRIVATE RESPONDENTS TIM AND SMARTMATIC FOR THE FOLLOWING REASONS:
x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE x x x PCOS MACHINES OFFERED BY PRIVATE
RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION OF [RA] 8436 (AS AMENDED BY [RA] 9369)
THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE RESPONDENTS x x x DO NOT SATISFY THE MINIMUM
SYSTEM CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED BY [RA] 9369).
PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED DOCUMENTS DURING THE BIDDING PROCESS
THAT SHOULD ESTABLISH THE DUE EXISTENCE, COMPOSITION, AND SCOPE OF THEIR JOINT VENTURE, IN
VIOLATION OF THE SUPREME COURT’S HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE
PHILIPPINES, vs. COMELEC (G.R. No. 159139, Jan. 13, 2004).
THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA] BETWEEN PRIVATE RESPONDENTS SMARTMATIC
AND TIM DURING THE BIDDING, IN VIOLATION OF THE SUPREME COURT’S HOLDING IN INFORMATION
TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A JOINT VENTURE TO
INCLUDE A COPY OF ITS [JVA] DURING THE BIDDING.
41

THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE RESPONDENTS SMARTMATIC AND TIM, DOES NOT
SATISFY THE SUPREME COURT’S DEFINITION OF A "JOINT VENTURE" IN INFORMATION TECHNOLOGY
FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH "REQUIRES A COMMUNITY OF INTEREST IN THE
PERFORMANCE OF THE SUBJECT MATTER."
Filed as it was before contract signing, the petition understandably did not implead Smartmatic TIM Corporation, doubtless
an indispensable party to these proceedings, an incident that did not escape Comelec’s notice.37
As a preliminary counterpoint, either or both public and private respondents question the legal standing or locus standi of
petitioners, noting in this regard that the petition did not even raise an issue of transcendental importance, let alone a
constitutional question.
As an additional point, respondents also urge the dismissal of the petition on the ground of prematurity, petitioners having
failed to avail themselves of the otherwise mandatory built-in grievance mechanism under Sec. 55 in relation to Sec. 58 of
RA 9184, also known as the Government Procurement Reform Act, as shall be discussed shortly.
PROCEDURAL GROUNDS
The Court is not disposed to dismiss the petition on procedural grounds advanced by respondents.
Locus Standi and Prematurity
It is true, as postulated, that to have standing, one must, as a rule, establish having suffered some actual or threatened injury
as a result of the alleged illegal government conduct; that the injury is fairly traceable to the challenged action; and that the
injury is likely to be redressed by a favorable action.38 The prescription on standing, however, is a matter of procedure.
Hence, it may be relaxed, as the Court has often relaxed the rule for non-traditional plaintiffs, like ordinary citizens and
taxpayers, when the public interest so requires, such as when the matter is of transcendental importance, of overarching
significance to society, or of paramount public interest.39 As we wrote in Chavez v. PCGG,40 where issues of public
importance are presented, there is no necessity to show that the suitor has experienced or is in actual danger of suffering
direct and personal injury as the requisite injury is assumed.
Petitioners’ counsel, when queried, hedged on what specific constitutional proscriptions or concepts had been infringed by
the award of the subject automation project to Smartmatic TIM Corporation, although he was heard to say that "our objection
to the system is anchored on the Constitution itself a violation [sic] of secrecy of voting and the sanctity of the ballot."41
Petitioners also depicted the covering automation contract as constituting an abdication by the Comelec of its election-
related mandate under the Constitution, which is to enforce and administer all laws relative to the conduct of elections.
Worse still, according to the petitioners, the abdication, with its anti-dummy dimension, is in favor of a foreign corporation
that will be providing the hardware and software requirements.42 And when pressed further, petitioners came out with the
observation that, owing in part to the sheer length of the ballot, the PCOS would not comply with Art. V, Sec. 2 of the
Constitution43 prescribing secrecy of voting and sanctity of the ballot.44
There is no doubt in our mind, however, about the compelling significance and the transcending public importance of the one
issue underpinning this petition: the success––and the far-reaching grim implications of the failure––of the nationwide
automation project that will be implemented via the challenged automation contract.
The doctrinal formulation may vary, but the bottom line is that the Court may except a particular case from the operations of
its rules when the demands of justice so require.45 Put a bit differently, rules of procedure are merely tools designed to
facilitate the attainment of justice.46 Accordingly, technicalities and procedural barriers should not be allowed to stand in the
way, if the ends of justice would not be subserved by a rigid adherence to the rules of procedure.47 This postulate on
procedural technicalities applies to matters of locus standi and the presently invoked principle of hierarchy of courts, which
discourages direct resort to the Court if the desired redress is within the competence of lower courts to grant. The policy on
the hierarchy of courts, which petitioners indeed failed to observe, is not an iron-clad rule. For indeed the Court has full
discretionary power to take cognizance and assume jurisdiction of special civil actions for certiorari and mandamus filed
directly with it for exceptionally compelling reasons48 or if warranted by the nature of the issues clearly and specifically raised
in the petition.49
The exceptions that justify a deviation from the policy on hierarchy appear to obtain under the premises. The Court will for
the nonce thus turn a blind eye to the judicial structure intended, first and foremost, to provide an orderly dispensation of
justice.
Hierarchy of Courts
At this stage, we shall dispose of another peripheral issue before plunging into the core substantive issues tendered in this
petition.
Respondents contend that petitioners should have availed themselves of the otherwise mandatory protest mechanism set
forth in Sections 55 and 58 of the procurement law (RA 9184) and the counterpart provisions found in its Implementing Rules
and Regulations (IRR)-A before seeking judicial remedy. Insofar as relevant, Sec. 55 of RA 9184 provides that decisions of
the bids and awards committee (BAC) in all stages of procurement may be protested, via a "verified position paper," to the
head of the procuring agency. On the other hand, the succeeding Sec. 58 states that court action may be resorted to only
after the protest contemplated in Sec. 55 shall have been completed. Petitioners except. As argued, the requirement to
comply with the protest mechanism, contrary to what may have been suggested in Infotech, is imposed on the bidders.50
Petitioners’ position is correct. As a matter of common sense, only a bidder is entitled to receive a notice of the protested
BAC action. Only a losing bidder would be aggrieved by, and ergo would have the personality to challenge, such action. This
conclusion finds adequate support from the ensuing provisions of the aforesaid IRR-A:
55.2. The verified position paper shall contain the following documents:
a) The name of bidder;
b) The office address of the bidder x x x.
SUBSTANTIVE ISSUES
42

We now turn to the central issues tendered in the petition which, in terms of subject matter, revolved around two concerns,
viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to be used. Petitioners
veritably introduced another issue during the oral arguments, as amplified in their memorandum, i.e. the constitutionality and
statutory flaw of the automation contract itself. The petition-in-intervention confined itself to certain features of the PCOS
machines.
The Joint Venture Agreement: Its Existence and Submission
The issue respecting the existence and submission of the TIM-Smartmatic JVA does not require an extended disquisition, as
repairing to the records would readily provide a satisfactory answer. We note in fact that the petitioners do not appear to be
earnestly pressing the said issue anymore, as demonstrated by their counsel’s practically cavalier discussion thereof during
the oral argument. When reminded, for instance, of private respondents’ insistence on having in fact submitted their JVA
dated April 23, 2009, petitioners’ counsel responded as follows: "We knew your honor that there was, in fact, a joint venture
agreement filed. However, because of the belated discovery that [there] were irreconcilable differences, we then made a
view that this joint venture agreement was a sham, at best pro forma because it did not contain all the required stipulations in
order to evidence unity of interest x x x."51
Indeed, the records belie petitioners’ initial posture that TIM and Smartmatic, as joint venture partners, did not include in their
submitted eligibility envelope a copy of their JVA. The SBAC’s Post Qualification Evaluation Report (Eligibility) on TIM-
Smartmatic, on page 10, shows the following entry: "Valid Joint Venture Agreement, stating among things, that the members
are jointly and severally liable for the whole obligation, in case of joint venture – Documents verified compliance."52
Contrary to what the petitioners posit, the duly notarized JVA, as couched, explained the nature and the limited purpose53 of
the joint venture and expressly defined, among other things, the composition, scope, and the 60-40 capital structure of the
aggroupment.54 The JVA also contains provisions on the management55 and division of profits.56 Article 357 of the JVA
delineates the respective participations and responsibilities of the joint venture partners in the automation project.
Given the foregoing perspective, the Court is at a loss to understand how petitioners can assert that the Smartmatic-TIM
consortium has failed to prove its joint venture existence and/or to submit evidence as would enable the Comelec to know
such items as who it is dealing with, which between the partners has control over the decision-making process, the amount
of investment to be contributed by each partner, the parties’ shares in the profits and like details. Had petitioners only
bothered to undertake the usual due diligence that comes with good judgment and examined the eligibility envelope of the
Smartmatic-TIM joint venture, they would have discovered that their challenge to and arguments against the joint venture
and its JVA have really no factual basis.
It may be, as petitioners observed, that the TIM-Smartmatic joint venture remained an unincorporated aggroupment during
the bid-opening and evaluation stages. It ought to be stressed, however, that the fact of non-incorporation was without a
vitiating effect on the validity of the tender offers. For the bidding ground rules, as spelled out primarily in the RFP and the
clarificatory bid bulletins, does not require, for bidding purposes, that there be an incorporation of the bidding joint ventures
or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the existence and the acceptability of proposals of
unincorporated joint ventures. In response to a poser, for example, regarding the 60% Filipino ownership requirement in a
joint venture arrangement, the SBAC, in its Bid Bulletin No. 22, stated: "In an unincorporated joint venture, determination
of the required Filipino participation may be made by examining the terms and conditions of the [JVA] and other supporting
financial documents submitted by the joint venture." (Emphasis ours.) Petitioners, to be sure, have not shown that
incorporation is part of the pass/fail criteria used in determining eligibility.
Petitioners have made much of the Court’s ruling in Information Technology Foundation of the Philippines [Infotech] v.
Comelec,58 arguing in relation thereto that the partnership of Smartmatic and TIM does not meet the Court’s definition of a
joint venture which requires "community of interest in the performance of the subject matter."
Petitioners’ invocation of Infotech is utterly misplaced. Albeit Infotech and this case are both about modernizing the election
process and bidding joint ventures, the relevant parallelism ends there. Cast as they are against dissimilar factual milieu, one
cannot plausibly set Infotech side with and contextually apply to this case the ratio of Infotech. Suffice it to delve on the most
glaring of differences. In Infotech, the winning bid pertained to the consortium of Mega Pacific, a purported joint venture.
Extant records, however, do not show the formation of such joint venture, let alone its composition. To borrow from the
ponencia of then Justice, later Chief Justice, Artemio Panganiban, "there is no sign whatsoever of any [JVA], consortium
agreement [or] memorandum agreement x x x executed among the members of the purported consortium."59 There was in
fine no evidence to show that the alleged joint venture partners agreed to constitute themselves into a single entity solidarily
responsible for the entirety of the automation contract. Unlike the purported Mega Pacific consortium in Infotech, the
existence in this case of the bidding joint venture of Smarmatic and TIM is properly documented and spread all over the bid
documents. And to stress, TIM and Smartmatic, in their JVA, unequivocally agreed between themselves to perform their
respective undertakings. And over and beyond their commitments to each other, they undertook to incorporate, if called for
by the bidding results, a JVC that shall be solidarily liable with them for any actionable breach of the automation contract.
In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the poll body knew nothing
about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would leave the
Comelec "hanging" for the non-inclusion, as members of the joint venture, of three IT providers. The three referred to are
Jarltech International, Inc. (Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting machines;
Dominion Voting Systems (Domino), the inventor of said PCOS machines; and 2GO Transportation System Corporation
(2GO), the subcontractor responsible for the distribution of the PCOS machines throughout the country.
Petitioners’ beef against the TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very entities whom they are
dealing with, which it can hold solidary liable under the automation contract, should there be contract violation. Secondly,
there is no requirement under either RA 8436, as amended, or the RFP, that all the suppliers, manufacturers or distributors
43

involved in the transaction should be part of the joint venture. On the contrary, the Instruction to Bidders––as petitioners
themselves admit60––allows the bidder to subcontract portions of the goods or services under the automation project.61
To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA between TIM and Smarmatic. Failing to
gain traction for their indefensible posture, they would thrust on the Court the notion of an invalid joint venture due to the
non-inclusion of more companies in the existing TIM-Smartmatic joint venture. The irony is not lost on the Court.
This brings us to the twin technical issues tendered herein bearing on the PCOS machines of Smartmatic.
At its most basic, the petition ascribes grave abuse of discretion to the Comelec for, among other things, awarding the
automation project in violation of RA 8436, as amended. Following their line, no pilot test of the PCOS technology
Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot conduct a nationwide automation of the 2010
polls using the machines thus offered. Hence, the contract award to Smartmatic-TIM with their untested PCOS machines
violated RA 8436, as amended by RA 9369, which mandates that with respect to the May 2010 elections and onwards, the
system procured must have been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as amended. What is more,
petitioners assert, private respondents’ PCOS machines do not satisfy the minimum system capabilities set by the same law
envisaged to ensure transparent and credible voting, counting and canvassing of votes. And as earlier narrated, petitioners
would subsequently add the abdication angle in their bid to nullify the automation contract.
Pilot Testing Not Necessary
Disagreeing, as to be expected, private respondents maintain that there is nothing in the applicable law requiring, as a pre-
requisite for the 2010 election automation project award, that the prevailing bidder’s automation system, the PCOS in this
case, be subjected to pilot testing. Comelec echoes its co-respondents’ stance on pilot testing, with the added observation
that nowhere in the statutory provision relied upon are the words "pilot testing" used.62 The Senate’s position and its
supporting arguments match those of private respondents.
The respondents’ thesis on pilot testing and the logic holding it together are well taken. There can be no argument about the
phrase "pilot test" not being found in the law. But does it necessarily follow that a pilot test is absolutely not contemplated in
the law? We repair to the statutory provision petitioners cited as requiring a pilot run, referring to Sec. 6 of RA 8436, as
amended by RA 9369, reading as follows:
Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the [Comelec], x x x is hereby
authorized to use an automated election system or systems in the same election in different provinces, whether paper-based
or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting
of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national
and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two
highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the [Comelec]: Provided,
further, That local government units whose officials have been the subject of administrative charges within sixteen (16)
month prior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen without the
consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision
shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be
implemented. (Emphasis and underscoring added.)
RA 9369, which envisages an AES, be it paper-based or direct-recording electronic, took effect in the second week of
February 2007 or thereabout.63 The "regular national and local elections" referred to after the "effectivity of this Act" can be
no other than the May 2007 regular elections, during which time the AES shall, as the law is worded, be used in at least two
highly urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court takes judicial notice that the May 2007
elections did not deploy AES, evidently due to the mix of time and funding constraints.
To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA 8436 is the pilot-testing provision that Comelec
failed to observe.
We are not persuaded.
From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled electoral exercise under
harsh conditions would have been the ideal norm in computerized system implementation. The underscored proviso of Sec.
6 of RA 8436 is not, however, an authority for the proposition that the pilot testing of the PCOS in the 2007 national elections
in the areas thus specified is an absolute must for the machines’ use in the 2010 national/local elections. The Court can
concede that said proviso, with respect to the May 2007 elections, commands the Comelec to automate in at least 12
defined areas of the country. But the bottom line is that the required 2007 automation, be it viewed in the concept of a pilot
test or not, is not a mandatory requirement for the choice of system in, or a prerequisite for, the full automation of the May
2010 elections.
As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of the nature of a general
policy declaration: that Comelec is authorized to automate the entire elections. The second part states that for the regular
national and local elections that shall be held in May 2007, Comelec shall use the AES, with an option, however, to
undertake automation, regardless of the technology to be selected, in a limited area or, to be more precise, in at least two
highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec. On the other
hand, the last part, phrased sans reference to the May 2007 elections, commands thus: "[I]n succeeding regular national or
local elections, the [automated election system] shall be implemented." Taken in its proper context, the last part is indicative
of the legislative intent for the May 2010 electoral exercise to be fully automated, regardless of whether or not pilot testing
was run in the 2007 polls.
To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless undermine the purpose of
RA 9369. For, as aptly observed during the oral arguments, if there was no political exercise in May 2007, the country would
theoretically be barred forever from having full automation.
44

Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of unconditional full automation in
the 2010 elections. A construal making pilot testing of the AES a prerequisite or condition sine qua non to putting the system
in operation in the 2010 elections is tantamount to reading into said section something beyond the clear intention of
Congress, as expressed in the provision itself. We reproduce with approval the following excerpts from the comment of the
Senate itself:
The plain wordings of RA 9369 (that amended RA 8436) commands that the 2010 elections shall be fully automated, and
such full automation is not conditioned on "pilot testing" in the May 2007 elections. Congress merely gave COMELEC the
flexibility to partially use the AES in some parts of the country for the May 2007 elections.64
Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS. Sec. 2(a) of RA 8436, as
amended, defines an AES as "a system using appropriate technology which has been demonstrated in the voting, counting,
consolidating, canvassing and transmission of election results, and other electoral processes." On the other hand, PCOS
refers to a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter
are inserted to be counted.65 What may reasonably be deduced from these definitions is that PCOS is merely one of several
automated voting, counting or canvassing technologies coming within the term AES, implying in turn that the automated
election system or technology that the Comelec shall adopt in future elections need not, as a matter of mandatory
arrangement, be piloted in the adverted two highly urbanized cities and provinces.
In perspective, what may be taken as mandatory prerequisite for the full automation of the 2010 regular national/ local
elections is that the system to be procured for that exercise be a technology tested either here or abroad. The ensuing
Section 8 of RA 8436, as amended, says so.
SEC 12. Procurement of Equipment and Materials.– To achieve the purpose of this Act, the Commission is authorized to
procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and
other services, from local or foreign sources xxx. With respect to the May 10, 2010 elections and succeeding electoral
exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise
here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system’s fitness. (Emphasis supplied).
While the underscored portion makes reference to a "2007 pilot exercise," what it really exacts is that, for the automation of
the May 2010 and subsequent elections, the PCOS or any AES to be procured must have demonstrated its capability and
success in either a local or a foreign electoral exercise. And as expressly declared by the provision, participation in the 2007
electoral exercise is not a guarantee nor is it conclusive of the system’s fitness. In this regard, the Court is inclined to agree
with private respondents’ interpretation of the underscored portion in question: "The provision clearly conveys that the [AES]
to be used in the 2010 elections need not have been used in the 2007 elections, and that the demonstration of its capability
need not be in a previous Philippine election. Demonstration of the success and capability of the PCOS may be in an
electoral exercise in a foreign jurisdiction."66 As determined by the Comelec, the PCOS system had been successfully
deployed in previous electoral exercises in foreign countries, such as Ontario, Canada; and New York, USA,67 albeit
Smartmatic was not necessarily the system provider. But then, RA 9369 does not call for the winning bidder of the 2010
automation project and the deploying entity/provider in the foreign electoral exercise to be one and the same entity. Neither
does the law incidentally require that the system be first used in an archipelagic country or with a topography or a voting
population similar to or approximating that of the Philippines.
At any event, any lingering doubt on the issue of whether or not full automation of the 2010 regular elections can validly
proceed without a pilot run of the AES should be put to rest with the enactment in March 2009 of RA 9525,68 in which
Congress appropriated PhP 11.301 billion to automate the 2010 elections, subject to compliance with the transparency and
accuracy requirements in selecting the relevant technology of the machines, thus:
Sec. 2. Use of Funds.– x x x Provided, however, That disbursement of the amounts herein appropriated or any part thereof
shall be authorized only in strict compliance with the Constitution, the provisions of [RA] No. 9369 and other election laws
incorporated in said Act as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such
measures that will guaranty transparency and accuracy in the selection of the relevant technology of the machines to be
used on May 10, 2010 automated national and local elections. (Emphasis added.)
It may safely be assumed that Congress approved the bill that eventually became RA 9525, fully aware that the system
using the PCOS machines were not piloted in the 2007 electoral exercise. The enactment of RA 9525 is to us a compelling
indication that it was never Congress’ intent to make the pilot testing of a particular automated election system in the 2007
elections a condition precedent to its use or award of the 2010 Automation Project. The comment-in-intervention of the
Senate says as much.
Further, the highly charged issue of whether or not the 2008 ARMM elections––covering, as NCC observed, three conflict-
ridden island provinces––may be treated as substantial compliance with the "pilot test" requirement must be answered in the
affirmative. No less than Senator Richard J. Gordon himself, the author of the law, said that "the system has been tried and
tested in the ARMM elections last year, so we have to proceed with the total implementation of the law."69
We note, though, the conflicting views of the NCC70 and ITFP71 on the matter. Suffice it to state at this juncture that the
system used in the 2008 ARMM election exercise bears, as petitioners to an extent grudgingly admit, 72 a similarity with the
PCOS. The following, lifted from the Comelec’s comment, is to us a fair description of how the two systems (PCOS and
CCOS) work and where the difference lies:
xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), a system which uses the Optical Mark
Reader (OMR), the same technology as the PCOS.
Under the CCOS, the voters cast their votes by shading or marking the circles in the paper ballots which corresponded to the
names of their chosen candidates [like in PCOS]. Thereafter, the ballot boxes were brought to the counting centers where
they were scanned, counted and canvassed.
45

xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at the precinct level. The election
results at the precincts are then electronically transmitted to the next level, and so on. xxx PCOS dispenses with the physical
transportation of ballot boxes from the precincts to the counting centers.73
Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections in accordance with
Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court cannot agree as such proposition has
no basis in law. Section 5, as worded, does not allow for partial automation. In fact, Section 5 clearly states that "the AES
shall be implemented nationwide."74 It behooves this Court to follow the letter and intent of the law for full automation in the
May 2010 elections.
PCOS Meets Minimum Capabilities Standards
As another ground for the nullification of the automation contract, petitioners posit the view that the PCOS machines do not
satisfy the minimum system capabilities prescribed by RA 8436, as amended. To a specific point, they suggest that the
PCOS system offered and accepted lacks the features that would assure accuracy in the recording and reading of votes, as
well as in the tabulation, consolidation/canvassing, electronic transmission, storage results and accurate ballot counting.75 In
this particular regard, petitioners allege that, based on Smartmatic’s website, the PCOS has a margin of error of from 2% to
10%, way beyond that of the required 99.99% accuracy in the counting of votes.76
The minimum system capabilities provision cited is Sec. 7 of RA 8436, as amended, and the missing features referred to by
petitioners are pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended, reads:
SEC. 6. Minimum System Capabilities. - The automated election system must at least have the following functional
capabilities:
(a) Adequate security against unauthorized access;
(b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic
transmission, and storage of results;
(c) Error recovery in case of non-catastrophic failure of device;
(d) System integrity which ensures physical stability and functioning of the vote recording and counting process;
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for verifying the correctness of reported election
results;
(g) An election management system for preparing ballots and programs for use in the casting and counting of votes
and to consolidate, report and display election result in the shortest time possible;
(h) Accessibility to illiterates and disabled voters;
(i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process;
(m) Utilize or generate official ballots as herein defined;
(a) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and
(o) Configure access control for sensitive system data and function.
In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above
minimum system capabilities are met. The evaluation system shall be developed with the assistance of an advisory council.
From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid technical evaluation
mechanism, a set of 26-item/check list criteria, as will be enumerated shortly, to ensure compliance with the above minimum
systems capabilities.
The SBAC Memorandum77 of June 03, 2009, as approved by Comelec Res. 8608,78 categorically stated that the SBAC-TWG
submitted its report that TIM/Smartmatic’s proposed systems and machines PASSED all the end-to-end demo tests using
the aforementioned 26-item criteria, inclusive of the accuracy rating test of at least 99.955%. As appearing in the SBAC-
TWG report, the corresponding answers/remarks to each of the 26 individual items are as herein indicated:79
ITEM REQUIREMENT REMARK/DESCRIPTION

1 Does the system allow manual feeding of a Yes. The proposed PCOS machine accepted the test
ballot into the PCOS machine? ballots which were manually fed one at a time.

2 Does the system scan a ballot sheet at the Yes. A 30-inch ballot was used in this test. Scanning the
speed of at least 2.75 inches per second? 30-inch ballot took 2.7 seconds, which translated to
11.11inches per second.

3 Is the system able to capture and store in Yes the system captured the images of the 1,000 ballots
an encrypted format the digital images of in encrypted format. Each of the 1,000 images files
the ballot for at least 2,000 ballot sides contained the images of the front and back sides of the
(1,000 ballots, with back to back printing)? ballot, totaling to 2,000 ballot side.
To verify the captured ballot images, decrypted copies of
the encrypted files were also provided. The same were
found to be digitized representations of the ballots cast.

4 Is the system a fully integrated single device Yes. The proposed PCOS is a fully integrated single
46

as described in item no. 4 of Component 1- device, with built-in printer and built-in data
B? communications ports (Ethernet and USB).

5 Does the system have a scanning Yes. A portion of a filled up marked oval was blown up
resolution of at least 200 dpi? using image editor software to reveal the number of dots
per inch. The sample image showed 200 dpi.
File properties of the decrypted image file also revealed
200 dpi.

6 Does the system scan in grayscale? Yes. 30 shades of gray were scanned in the test PCOS
machine, 20 of which were required, exceeding the
required 4-bit/16 levels of gray as specified in the Bid
Bulletin No. 19.

7 Does the system require authorization and Yes. The system required the use of a security key with
authentication of all operators, such as, but different sets of passwords/PINs for Administrator and
not limited to, usernames and passwords, Operator users.
with multiple user access levels?

8 Does the system have an electronic Yes. The PCOS machine makes use of an LCD display to
display? show information:
 if a ballot may be inserted into the machine;
 if a ballot is being processed; if a ballot is being
rejected;
 on other instructions and information to the
voter/operator.

9 Does the system employ error handling Yes. The PCOS showed error messages on its screen
procedures, including, but not limited to, the whenever a ballot is rejected by the machine and gives
use of error prompts and other related instructions to the voter on what to do next, or when there
instructions? was a ballot jam error.

10 Does the system count the voter’s vote as Yes. The two rounds of tests were conducted for this test
marked on the ballot with an accuracy rating using only valid marks/shades on the ballots. 20,000
of at least 99.995%? marks were required to complete this test, with only one
(1) allowable reading error.
625 ballots with 32 marks each were used for this test.
During the comparison of the PCOS-generated results
with the manually prepared/predetermined results, it was
found out that there were seven (7) marks which were
inadvertently missed out during ballot preparation by the
TWG. Although the PCOS-generated results turned out to
be 100% accurate, the 20,000-mark was not met thereby
requiring the test to be repeated.
To prepare for other possible missed out marks,650
ballots with (20,800 marks) were used for the next round
of test, which also yielded 100% accuracy.

11 Does the system detect and reject fake or Yes. This test made use of one (1) photocopied ballot and
spurious, and previously scanned ballots? one (1) "re-created" ballot. Both were rejected by the
PCOS.

12 Does the system scan both sides of a ballot Yes. Four (4) ballots with valid marks were fed into the
and in any orientation in one pass? PCOS machine in the four (4) portrait orientations
specified in Bid Bulletin No. 4 (either back or front, upside
down or right side up), and all were accurately captured.

13 Does the system have necessary Yes. The system was able to recognize if the security
safeguards to determine the authenticity of features on the ballot are "missing".
a ballot, such as, but not limited to, the use Aside from the test on the fake or spurious ballots (Item
of bar codes, holograms, color shifting ink, No. 11), three (3) test ballots with tampered bar codes
micro printing, to be provided on the ballot, and timing marks were used and were all rejected by the
which can be recognized by the system? PCOS machine.
The photocopied ballot in the test for Item No. 11 was not
47

able to replicate the UV ink pattern on top portion of the


ballot causing the rejection of the ballot.

14 Are the names of the candidates pre-printed Yes. The Two sample test ballots of different lengths
on the ballot? were provided: one (1) was 14 inches long while the other
was 30 inches long. Both were 8.5 inches wide.
The first showed 108 pre-printed candidate names for the
fourteen (14) contests/positions, including two (2) survey
questions on gender and age group, and a plebiscite
question.
The other showed 609 pre-printed candidate names, also
for fourteen (14) positions including three (3) survey
questions.

15 Does each side of the ballot sheet Yes. The 30-inch ballot, which was used to test Item No.
accommodate at least 300 names of 2, contained 309 names for the national positions and
candidates with a minimum font size of 10, 300 names for local positions. The total pre-printed
in addition to other mandatory information names on the ballot totaled 609.
required by law? This type of test ballot was also used for test voting by the
public, including members of the media.
Arial Narrow, font size 10, was used in the printing of the
candidate names.

16 Does the system recognize full shade Yes. The ballots used for the accuracy test (Item No. 10),
marks on the appropriate space on the which made use of full shade marks, were also used in
ballot opposite the name of the candidate to this test and were accurately recognized by the PCOS
be voted for? machine.

17 Does the system recognize partial shade Yes. Four (4) test ballots were used with one (1) mark
marks on the appropriate space on the each per ballot showing the following pencil marks:
ballot opposite the name of the candidate to  top half shade;
be voted for?  bottom half shade;
 left half shade; and
 right half shade
These partial shade marks were all recognized by the
PCOS machine

18 Does the system recognize check (ü)marks Yes. One (1) test ballot with one check (ü) mark, using a
on the appropriate space on the ballot pencil, was used for this test.
opposite the name of the candidate to be The mark was recognized successfully.
voted for?

19 Does the system recognize x marks on the Yes. One (1) test ballot with one x mark, using a pencil,
appropriate space on the ballot opposite the was used for this test.
name of the candidate to be voted for? The mark was recognized successfully.

20 Does the system recognize both pencil and Yes. The 1000 ballots used in the accuracy test (Item No.
ink marks on the ballot? 10) were marked using the proposed marking pen by the
bidder.
A separate ballot with one (1) pencil mark was also
tested. This mark was also recognized by the PCOS
machine. Moreover, the tests for Items No. 17, 18 and 19
were made using pencil marks on the ballots.

21 In a simulation of a system shut down, does Yes. Five (5) ballots were used in this test. The power
the system have error recovery features? cord was pulled from the PCOS while the 3rd ballot was
in the middle of the scanning procedure, such that it was
left "hanging" in the ballot reader.
After resumption of regular power supply, the PCOS
machine was able to restart successfully with notification
to the operator that there were two (2) ballots already cast
in the machine. The "hanging" 3rd ballot was returned to
the operator and was able to be re-fed into the PCOS
machine. The marks on all five (5) were all accurately
48

recognized.

22 Does the system have transmission and Yes. The PCOS was able to transmit to the CCS during
consolidation/canvassing capabilities? the end-to-end demonstration using GLOBE prepaid
Internet kit.

23 Does the system generate a backup copy of Yes. The PCOS saves a backup copy of the ERs, ballot
the generated reports, in a removable data images, statistical report and audit log into a Compact
storage device? Flash (CF) Card.

24 Does the system have alternative power Yes. A 12 bolt 18AH battery lead acid was used in this
sources, which will enable it to fully operate test. The initial test had to be repeated due to a short
for at least 12 hours? circuit, after seven (7) hours from start-up without ballot
scanning. This was explained by TIM-Smartmatic to be
caused by non-compatible wiring of the battery to the
PCOS. A smaller wire than what is required was
inadvertently used, likening the situation to incorrect
wiring of a car battery. Two (2) COMELEC electricians
were called to confirm TIM-Smartmatic’s explanation. The
PCOS machine was connected to regular power and
started successfully. The following day, the "re-test" was
completed in 12 hours and 40 minutes xxx 984 ballots
were fed into the machine. The ER, as generated by the
PCOS was compared with predetermined result, showed
100% accuracy.

25 Is the system capable of generating and Yes. The PCOS prints reports via its built-in printer which
printing reports? includes:
1. Initialization Report; 2. Election Returns (ER); 3. PCOS
Statistical Report; 4. Audit Log.

26 Did the bidder successfully demonstrate Yes. An end-to-end demonstration of all proposed
EMS, voting counting, systems was presented covering: importing of election
consolidation/canvassing and transmission? data into the EMS; creation of election configuration data
for the PCOS and the CCS using EMS; creation of ballot
faces using EMS; configuring the PCOS and the CCS
using the EMS-generated election configuration file;
initialization, operation, generation of reports and backup
using the PCOS; electronic transmission of results to the:
[1] from the PCOS to city/municipal CCS and the central
server. [2] from the city/municipal CCS to the provincial
CCS. [3] from the provincial CCS to the national CCS;
receipt and canvass of transmitted results: [1] by the
city/municipal CCS from the PCOS. [2] by the provincial
CCS from the city/municipal CCS. [3] by the national CCS
from the provincial CCS; receipt of the transmittal results
by the central server from the PCOS.
Given the foregoing and absent empirical evidence to the contrary, the Court, presuming regularity in the performance of
regular duties, takes the demo-testing thus conducted by SBAC-TWG as a reflection of the capability of the PCOS
machines, although the tests, as Comelec admits,80 were done literally in the Palacio del Governador building, where a room
therein simulated a town, the adjoining room a city, etc. Perusing the RFP, however, the real worth of the PCOS system and
the machines will of course come after they shall have been subjected to the gamut of acceptance tests expressly specified
in the RFP, namely, the lab test, field test, mock election test, transmission test and, lastly, the final test and sealing
procedure of all PCOS and CCS units using the actual Election Day machine configuration.811avvph!1
Apropos the counting-accuracy feature of the PCOS machines, petitioners no less impliedly admit that the web page they
appended to their petition, showing a 2% to 10% failing rate, is no longer current.82 And if they bothered to examine the
current website of Smartmatic specifically dealing with its SAES 1800, the PCOS system it offered, they would have readily
seen that the advertised accuracy rating is over "99.99999%."83 Moreover, a careful scrutiny of the old webpage of
Smarmatic reveals that the 2% to 10% failure rate applied to "optical scanners" and not to SAES. Yet the same page
discloses that the SAES has "100%" accuracy. Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court
need not belabor this and the equally irrelevant estoppel principle petitioners impose on us.
Intervenor Cuadra’s concern relates to the auditability of the election results. In this regard, it may suffice to point out that
PCOS, being a paper-based technology, affords audit since the voter would be able, if need be, to verify if the machine had
49

scanned, recorded and counted his vote properly. Moreover, it should also be noted that the PCOS machine contains an
LCD screen, one that can be programmed or configured to display to the voter his votes as read by the machine. 84
No Abdication of Comelec’s Mandate and Responsibilty
As a final main point, petitioners would have the Comelec-Smartmatic-TIM Corporation automation contract nullified since, in
violation of the Constitution, it constitutes a wholesale abdication of the poll body’s constitutional mandate for election law
enforcement. On top of this perceived aberration, the mechanism of the PCOS machines would infringe the constitutional
right of the people to the secrecy of the ballot which, according to the petitioners, is provided in Sec. 2, Art. V of the
Constitution.85
The above contention is not well taken.
The first function of the Comelec under the Constitution86––and the Omnibus Election Code for that matter––relates to the
enforcement and administration of all laws and regulations relating to the conduct of elections to public office to ensure a
free, orderly and honest electoral exercise. And how did petitioners come to their conclusion about their abdication theory?
By acceding to Art. 3.3 of the automation contract, Comelec relinquished, so petitioners claim, supervision and control of the
system to be used for the automated elections. To a more specific point, the loss of control, as may be deduced from the
ensuing exchanges, arose from the fact that Comelec would not be holding possession of what in IT jargon are the public
and private keys pair.
CHIEF JUSTICE: Well, more specifically are you saying that the main course of this lost of control is the fact that
SMARTMATIC holds the public and private keys to the sanctity of this system?
ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the key cost that will read
their votes by which the electorate may verify that their votes were counted.
CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public and private keys?
ATTY. ROQUE: Yes, Your Honor.
The Court is not convinced. There is to us nothing in Art 3.3 of the automation contract, even if read separately from other
stipulations and the provisions of the bid documents and the Constitution itself, to support the simplistic conclusion of
abdication of control pressed on the Court. Insofar as pertinent, Art 3.3 reads:
3.3 The PROVIDER shall be liable for all its obligations under this Project and the performance of portions thereof by other
persons or entities not parties to this Contract shall not relieve the PROVIDER of said obligations and concomitant liabilities.
SMARTMATIC, as the joint venture partner with the greater track record in automated elections, shall be in charge
of the technical aspects of the counting and canvassing software and hardware, including transmission configuration
and system integration. SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical
problems that may arise during the elections. (Emphasis added.)
The proviso designating Smartmatic as the joint venture partner in charge of the technical aspect of the counting and
canvassing wares does not to us translate, without more, to ceding control of the electoral process to Smartmatic. It bears to
stress that the aforesaid designation of Smartmatic was not plucked from thin air, as it was in fact an eligibility requirement
imposed, should the bidder be a joint venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible Bidders,
whence the second paragraph of aforequoted Art. 3.3 came from, reads:
5.4 A JV of two or more firms as partners shall comply with the following requirements.
xxxx
(e) The JV member with a greater track record in automated elections, shall be in-charge of the technical aspects of the
counting and canvassing software and hardware, including transmission configuration and system integration
And lest it be overlooked, the RFP, which forms an integral part of the automation contract,87 has put all prospective bidders
on notice of Comelec’s intent to automate and to accept bids that would meet several needs, among which is "a complete
solutions provider… which can provide… effective overall nationwide project management service… under COMELEC
supervision and control, to ensure effective and successful implementation of the [automation] Project."88 Complementing
this RFP advisory as to control of the election process is Art. 6.7 of the automation contract, providing:
6.7 Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire processes of
voting, counting, transmission, consolidation and canvassing of votes shall be conducted by COMELEC’s personnel and
officials, and their performance, completion and final results according to specifications and within the specified periods shall
be the shared responsibility of COMELEC and the PROVIDER. (Emphasis added.)
But not one to let an opportunity to score points pass by, petitioners rhetorically ask: "Where does Public Respondent
Comelec intend to get this large number of professionals, many of whom are already gainfully employed abroad?"89 The
Comelec, citing Sec. 390 and Sec. 5 of RA 8436,91 as amended, aptly answered this poser in the following wise:
x x x [P]ublic respondent COMELEC, in the implementation of the automated project, will forge partnerships with various
entities in different fields to bring about the success of the 2010 automated elections.
Public respondent COMELEC will partner with Smartmatic TIM Corporation for the training and hiring of the IT personnel as
well as for the massive voter-education campaign. There is in fact a budget allocation x x x for these undertakings. x x x
As regards the requirement of RA 9369 that IT-capable personnel shall be deputized as a member of the BEI and that
another IT-capable person shall assist the BOC, public respondent COMELEC shall partner with DOST and other agencies
and instrumentalities of the government.
In not so many words during the oral arguments and in their respective Memoranda, public and private respondents
categorically rejected outright allegations of abdication by the Comelec of its constitutional duty. The petitioners, to stress,
are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even
perhaps examined the bidding documents and, therefore, none really knows the real intention of the parties. As case law
tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is that petitioners
who are not even privy to the bidding process foist upon the Court their own view on the stipulations of the automation
50

contract and present to the Court what they think are the parties’ true intention. It is a study of outsiders appearing to know
more than the parties do, but actually speculating what the parties intended. The following is self-explanatory:
CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they
failed to perform this duty, they did not exercise this power of control?
ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract ….
CHIEF JUSTICE : Yes, but my question is – did you confront the COMELEC officials that they forfeited their power of control
in over our election process?
ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor.92
Just as they do on the issue of control over the electoral process, petitioners also anchor on speculative reasoning their
claim that Smartmatic has possession and control over the public and private keys pair that will operate the PCOS
machines. Consider: Petitioners’ counsel was at the start cocksure about Smartmatic’s control of these keys and, with its
control, of the electoral process.93
Several questions later, his answers had a qualifying tone:
JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it be given access to and
in fact generate its own keys independently with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that
would have full control of the technology insofar as the keys are concerned xxx?
ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx. 94
And subsequently, the speculative nature of petitioners’ position as to who would have possession and control of the keys
became apparent.
CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x x did you check with
COMELEC whether this system is correct?
ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.
xxxx
CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the COMELEC hire the
services of experts in order for the institution to be able to discharge its constitutional functions?
ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the same kind of
accountability as public officers x x x
CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the country before it made
the bidding rules before it conducted the bidding and make the other policy judgments?
ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x.
CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?95
The Court, to be sure, recognizes the importance of the vote-security issue revolving around the issuance of the public and
private keys pair to the Board of Election Inspectors, including the digital signatures. The NCC comment on the matter
deserves mention, appearing to hew as it does to what appear on the records. The NCC wrote:
The RFP/TOR used in the recent bidding for the AES to be used in the 2010 elections specifically mandated the use of
public key cryptography. However, it was left to the discretion of the bidder to propose an acceptable manner of utilization for
approval/acceptance of the Comelec. Nowhere in the RFP/TOR was it indicated that COMELEC would delegate to the
winning bidder the full discretion, supervision and control over the manner of PKI [Public Key Infrastructure] utilization.
With the view we take of the automation contract, the role of Smartmatic TIM Corporation is basically to supply the goods
necessary for the automation project, such as but not limited to the PCOS machines, PCs, electronic transmission devices
and related equipment, both hardware and software, and the technical services pertaining to their operation. As lessees of
the goods and the back-up equipment, the corporation and its operators would provide assistance with respect to the
machines to be used by the Comelec which, at the end of the day, will be conducting the election thru its personnel and
whoever it deputizes.
And if only to emphasize a point, Comelec’s contract is with Smartmatic TIM Corporation of which Smartmatic is a 40%
minority owner, per the JVA of TIM and Smartmatic and the Articles of Incorporation of Smartmatic TIM Corporation.
Accordingly, any decision on the part or on behalf of Smartmatic will not be binding on Comelec. As a necessary corollary,
the board room voting arrangement that Smartmatic and TIM may have agreed upon as joint venture partners, inclusive of
the veto vote that one may have power over the other, should really be the least concern of the Comelec.
Parenthetically, the contention that the PCOS would infringe on the secrecy and sanctity of the ballot because, as petitioners
would put it, the voter would be confronted with a "three feet" long ballot,96 does not commend itself for concurrence. Surely,
the Comelec can put up such infrastructure as to insure that the voter can write his preference in relative privacy. And as
demonstrated during the oral arguments, the voter himself will personally feed the ballot into the machine. A voter, if so
minded to preserve the secrecy of his ballot, will always devise a way to do so. By the same token, one with least regard for
secrecy will likewise have a way to make his vote known.
During the oral arguments, the notion of a possible violation of the Anti-Dummy Law cropped up, given the RFP requirement
of a joint venture bidder to be at least be 60% Filipino. On the other hand, the winning bidder, TIM-Smartmatic joint venture,
has Smartmatic, a foreign corporation, owning 40% of the equity in, first, the joint venture partnership, and then in
Smartmatic TIM Corporation.
The Anti-Dummy Law97 pertinently states:
Section 1. Penalty. In all cases in which any constitutional or legal provision requires Philippine or any other specific
citizenship as a requisite for the exercise or enjoyment of a right, franchise or privilege, any citizen of the Philippines or of
any other specific country who allows his name or citizenship to be used for the purpose of evading such provision, and any
alien or foreigner profiting thereby, shall be punished by imprisonment xxx and by a fine xxx.
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SECTION 2. Simulation of minimum capital stock – In all cases in which a constitutional or legal provision requires that a
corporation or association may exercise or enjoy a right, franchise or privilege, not less than a certain per centum of its
capital must be owned by citizens of the Philippines or any other specific country, it shall be unlawful to falsely simulate the
existence of such minimum stock or capital as owned by such citizen for the purpose of evading such provision. xxx
SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person, corporation, or association which, having in its name or
under its control, a right, franchise, privilege, property or business, the exercise or enjoyment of which is expressly reserved
by the Constitution or the laws to citizens of the Philippines or of any other specific country, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens, permits or allows the use,
exploitation or enjoyment thereof by a person, corporation, or association not possessing the requisites prescribed by the
Constitution or the laws of the Philippines; or leases, or in any other way, transfers or conveys said right, franchise, privilege,
property or business to a person, corporation or association not otherwise qualified under the Constitution xxx shall be
punished by imprisonment xxx (Emphasis added.)
The Anti-Dummy Law has been enacted to limit the enjoyment of certain economic activities to Filipino citizens or
corporations. For liability for violation of the law to attach, it must be established that there is a law limiting or reserving the
enjoyment or exercise of a right, franchise, privilege, or business to citizens of the Philippines or to corporations or
associations at least 60 per centum of the capital of which is owned by such citizens. In the case at bench, the Court is not
aware of any constitutional or statutory provision classifying as a nationalized activity the lease or provision of goods and
technical services for the automation of an election. In fact, Sec. 8 of RA 8436, as amended, vests the Comelec with specific
authority to acquire AES from foreign sources, thus:
SEC 12. Procurement of Equipment and Materials.– To achieve the purpose of this Act, the Commission is authorized to
procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and
other services, from local or foreign sources xxx. (Emphasis added.)
Petitioners cite Executive Order No. (EO) 584,98 Series of 2006, purportedly limiting "contracts for the supply of materials,
goods and commodities to government-owned or controlled corporation, company, agency or municipal corporation" to
corporations that are 60% Filipino. We do not quite see the governing relevance of EO 584. For let alone the fact that RA
9369 is, in relation to EO 584, a subsequent enactment and, therefore, enjoys primacy over the executive issuance, the
Comelec does fall under the category of a government-owned and controlled corporation, an agency or a municipal
corporation contemplated in the executive order.
A view has been advanced regarding the susceptibility of the AES to hacking, just like the voting machines used in certain
precincts in Florida, USA in the Gore-Bush presidential contests. However, an analysis of post-election reports on the voting
system thus used in the US during the period material and the AES to be utilized in the 2010 automation project seems to
suggest stark differences between the two systems. The first relates to the Source Code, defined in RA 9369 as "human
readable instructions that define what the computer equipment will do."99 The Source Code for the 2010 AES shall be
available and opened for review by political parties, candidates and the citizens’ arms or their representatives;100 whereas in
the US precincts aforementioned, the Source Code was alleged to have been kept secret by the machine manufacture
company, thus keeping the American public in the dark as to how exactly the machines counted their votes. And secondly, in
the AES, the PCOS machines found in the precincts will also be the same device that would tabulate and canvass the votes;
whereas in the US, the machines in the precincts did not count the votes. Instead the votes cast appeared to have been
stored in a memory card that was brought to a counting center at the end of the day. As a result, the hacking and cheating
may have possibly occurred at the counting center.
Additionally, with the AES, the possibility of system hacking is very slim. The PCOS machines are only online when they
transmit the results, which would only take around one to two minutes. In order to hack the system during this tiny span of
vulnerability, a super computer would be required. Noteworthy also is the fact that the memory card to be used during the
elections is encrypted and read-only––meaning no illicit program can be executed or introduced into the memory card.
Therefore, even though the AES has its flaws, Comelec and Smartmatic have seen to it that the system is well-protected
with sufficient security measures in order to ensure honest elections.
And as indicated earlier, the joint venture provider has formulated and put in place a continuity and back-up plans that would
address the understandable apprehension of a failure of elections in case the machines falter during the actual election. This
over-all fall-back strategy includes the provisions for 2,000 spare PCOS machines on top of the 80,000 units assigned to an
equal number precincts throughout the country. The continuity and back-up plans seek to address the following
eventualities: (1) The PCOS fails to scan ballots; (2) The PCOS scans the ballots, but fails to print election returns (ERs);
and/or (3) The PCOS prints but fails to transmit the ERs. In the event item #1 occurs, a spare PCOS, if available, will be
brought in or, if not available, the PCOS of another precinct (PCOS 2 for clarity), after observing certain defined
requirements,101 shall be used. Should all the PCOS machines in the entire municipality/city fail, manual counting of the
paper ballots and the manual accomplishment of ERs shall be resorted to in accordance with Comelec promulgated rules on
appreciation of automated ballots.102 In the event item #2 occurs where the PCOS machines fail to print ERs, the use of
spare PCOS and the transfer of PCOS-2 shall be effected. Manual counting of ERs shall be resorted to also if all PCOS fails
in the entire municipality. And should eventuality #3 transpire, the following back-up options, among others, may be availed
of: bringing PCOS-1 to the nearest precinct or polling center which has a functioning transmission facility; inserting
transmission cable of functioning transmission line to PCOS-1 and transmitting stored data from PCOS-1 using functioning
transmission facility.
The disruption of the election process due to machine breakdown or malfunction may be limited to a precinct only or could
affect an entire municipal/city. The worst case scenario of course would be the wholesale breakdown of the 82,000 PCOS
machines. Nonetheless, even in this most extreme case, failure of all the machines would not necessarily translate into
failure of elections. Manual count tabulation and transmission, as earlier stated, can be done, PCOS being a paper-ballot
52

technology. If the machine fails for whatever reason, the paper ballots would still be there for the hand counting of the votes,
manual tabulation and transmission of the ERs. Failure of elections consequent to voting machines failure would, in fine, be
a very remote possibility.
A final consideration.
The first step is always difficult. Hardly anything works, let alone ends up perfectly the first time around. As has often been
said, if one looks hard enough, he will in all likelihood find a glitch in any new system. It is no wonder some IT specialists and
practitioners have considered the PCOS as unsafe, not the most appropriate technology for Philippine elections, and "easily
hackable," even. And the worst fear expressed is that disaster is just waiting to happen, that PCOS would not work on
election day.
Congress has chosen the May 2010 elections to be the maiden run for full automation. And judging from what the Court has
heard and read in the course of these proceedings, the choice of PCOS by Comelec was not a spur-of-moment affair, but
the product of honest-to-goodness studies, consultations with CAC, and lessons learned from the ARMM 2008 automated
elections. With the backing of Congress by way of budgetary support, the poll body has taken this historic, if not ambitious,
first step. It started with the preparation of the RFP/TOR, with a list of voluminous annexes embodying in specific detail the
bidding rules and expectations from the bidders. And after a hotly contested and, by most accounts, a highly transparent
public bidding exercise, the joint venture of a Filipino and foreign corporation won and, after its machine hurdled the end-to-
end demonstration test, was eventually awarded the contract to undertake the automation project. Not one of the losing or
disqualified bidders questioned, at least not before the courts, the bona fides of the bidding procedures and the outcome of
the bidding itself.
Assayed against the provisions of the Constitution, the enabling automation law, RA 8436, as amended by RA 9369, the
RFP and even the Anti-Dummy Law, which petitioners invoked as an afterthought, the Court finds the project award to have
complied with legal prescriptions, and the terms and conditions of the corresponding automation contract in question to be
valid. No grave abuse of discretion, therefore, can be laid on the doorsteps of respondent Comelec. And surely, the winning
joint venture should not be faulted for having a foreign company as partner.
The Comelec is an independent constitutional body with a distinct and pivotal role in our scheme of government. In the
discharge of its awesome functions as overseer of fair elections, administrator and lead implementor of laws relative to the
conduct of elections, it should not be stymied with restrictions that would perhaps be justified in the case of an organization
of lesser responsibility.103 It should be afforded ample elbow room and enough wherewithal in devising means and initiatives
that would enable it to accomplish the great objective for which it was created––to promote free, orderly, honest and
peaceful elections. This is as it should be for, too often, Comelec has to make decisions under difficult conditions to address
unforeseen events to preserve the integrity of the election and in the process the voice of the people. Thus, in the past, the
Court has steered away from interfering with the Comelec’s exercise of its power which, by law and by the nature of its office
properly pertain to it. Absent, therefore, a clear showing of grave abuse of discretion on Comelec’s part, as here, the Court
should refrain from utilizing the corrective hand of certiorari to review, let alone nullify, the acts of that body. This gem, while
not on all fours with, is lifted from, the Court’s holding in an old but oft-cited case:
x x x We may not agree fully with [the Comelec’s] choice of means, but unless these are clearly illegal or constitute gross
abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with
realistically––not from the standpoint of pure theory [or speculation]. x x x
xxxx
There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that
will serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections, x x
x we must not by any excessive zeal take away from the [Comelec] the initiative which by constitutional and legal mandates
properly belongs to it. Due regard to the independent character of the Commission x x x requires that the power of this court
to review the acts of that body should, as a general proposition, be used sparingly, but firmly in appropriate cases.104 x x x
The Court, however, will not indulge in the presumption that nothing would go wrong, that a successful automation election
unmarred by fraud, violence, and like irregularities would be the order of the moment on May 10, 2010. Neither will it
guarantee, as it cannot guarantee, the effectiveness of the voting machines and the integrity of the counting and
consolidation software embedded in them. That task belongs at the first instance to Comelec, as part of its mandate to
ensure clean and peaceful elections. This independent constitutional commission, it is true, possesses extraordinary powers
and enjoys a considerable latitude in the discharge of its functions. The road, however, towards successful 2010 automation
elections would certainly be rough and bumpy. The Comelec is laboring under very tight timelines. It would accordingly need
the help of all advocates of orderly and honest elections, of all men and women of goodwill, to smoothen the way and assist
Comelec personnel address the fears expressed about the integrity of the system. Like anyone else, the Court would like
and wish automated elections to succeed, credibly.
WHEREFORE, the instant petition is hereby DENIED.
SO ORDERED.