SELECTED NEW DECISIONS IN POLITICAL LAW AND PUBLIC INTERNATIONAL LAW Attorney EDWIN REY SANDOVAL, Professor of Law

(December 3, 2002 May 28, 2003) Victorino Dennis M. Socrates v. The Commission on Elections G.R. No. 154512, Nov ember 12, 2002 En Banc [Carpio] This case involved Mayor Edward S. Hagedorn of Puerto Princesa City who ran and won in the Special Recall Election held in that City on September 24, 20 02. Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as Mayor of Puerto Pri ncesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and the Local Gove rnment Code disqualified Hagedorn, who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. In the 2001 elections, he ran for Governor of the Province of Palawan and lost. Socrates ran and won as Mayor of Puerto Princesa in that election. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen. On July 2, 2002, the Preparatory R ecall Assembly (PRA) of Puerto Princesa City adopted a Resolution calling for th e recall of the incumbent Mayor Socrates. The COMELEC scheduled a special recal l election for Mayor on September 24, 2002. Is Mayor Hagedorn qualified to run again for Mayor of that City consideri ng the circumstances? Held: The three-term limit rule for elective local officials is found in Secti on 8, Article X of the Constitution x x x. This three-term limit rule is reiterated in Section 43 (b) of RA No. 716 0, otherwise known as the Local Government Code x x x. These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in det ermining the three-term limit rule. The second part states that voluntary renun ciation of office for any length of time does not interrupt the continuity of se rvice. The clear intent is that involuntary severance from office for any lengt h of time interrupts continuity of service and prevents the service before and a fter the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek im mediate reelection for a fourth term. The prohibited election refers to the nex t regular election for the same office following the end of the third consecutiv e term. Any subsequent election, like a recall election, is no longer covered b y the prohibition for two reasons. First, a subsequent election like a recall e lection is no longer an immediate reelection after three consecutive terms. Sec ond, the intervening period constitutes an involuntary interruption in the conti nuity of service. X x x Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, doe s not prohibit a subsequent reelection for a fourth term as long as the reelecti on is not immediately after the end of the third consecutive term. A recall ele ction mid-way in the term following the third consecutive term is a subsequent e lection but not an immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of o ffice. What the Constitution prohibits is a consecutive fourth term. The debat es in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election. If the prohibition on elective local officials is applied to any electio n within the three-year full term following the three-term limit, then Senators should also be prohibited from running in any election within the six-year full term following their two-term limit. The constitutional provision on the term l imit of Senators is worded exactly like the term limit of elective local officia ls x x x. X x x In the case of Hagedorn, his candidacy in the recall election on Septemb er 24, 2002 is not an immediate reelection after his third consecutive term whic h ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections. Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1 998 elections and served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and the Local G overnment Code disqualified Hagedorn, who had reached the maximum three-term lim it, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections. Socrates ran and won as mayor of Puerto P rincesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 20 01, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates. From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. This period is clearly an interruption i n the continuity of Hagedorn s service as mayor, not because of his voluntary renu nciation, but because of a legal prohibition. Hagedorn s three consecutive terms ended on June 30, 2001. Hagedorn s new recall term from September 24, 2002 to Jun e 30, 2004 is not a seamless continuation of his previous three consecutive term s as mayor. One cannot stitch together Hagedorn s previous three-terms with his n ew recall term to make the recall term a fourth consecutive term because factual ly it is not. An involuntary interruption occurred from June 30, 2001 to Septem ber 24, 2002 which broke the continuity or consecutive character of Hagedorn s ser vice as mayor. In Lonzanida v. Comelec (311 SCRA 602 [1999]), the Court had occasion to explain interruption of continuity of service in this manner: x x x The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he w as elected. The clear intent of the framers of the constitution to bar any attem pt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people s choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a te rm does not cancel the renounced term in the computation of the three-term limit ; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of servic e. x x x. ) (Emphasis supplied)

In Hagedorn s case, the nearly 15-month period he was out of office, although shor t of a full term of three years, constituted an interruption in the continuity o f his service as mayor. The Constitution does not require the interruption or h iatus to be a full term of three years. The clear intent is that interruption fo r any length of time, as long as the cause is involuntary, is sufficient to break an elective local official s continuity of service. In the recent case of Adormeo v. Comelec and Talaga (G.R. No. 147927, Fe bruary 4, 2002), a unanimous Court reiterated the rule that an interruption cons isting of a portion of a term of office breaks the continuity of service of an e lective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecu tive full terms as mayor of Lucena city. In his third bid for election as mayor in 1998, Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections, R aymundo Adormeo, the other candidate for mayor, petitioned for Talaga s disqualifi cation on the ground that Talaga had already served three consecutive terms as m ayor. Thus, the issue in Adormeo was whether Talaga s recall term was a continua tion of his previous two terms so that he was deemed to have already served thre e consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections, stating that the period from June 30, 1998 to May 12, 200 0 when Talaga was out of office interrupted the continuity of his service as may or. Talaga s recall term as mayor was not consecutive to his previous two terms b ecause of this interruption, there having been a break of almost two years durin g which time Tagarao was the mayor. We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prevents his recall term fro m being stitched together as a seamless continuation of his previous two consecu tive terms. In the instant case, we likewise hold that the nearly 15 months Hag edorn was out of office interrupted his continuity of service and prevents his r ecall term from being stitched together as a seamless continuation of his previo us three consecutive terms. The only difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the interruption occurred af ter the first two consecutive terms. In the instant case, the interruption happ ened after the first three consecutive terms. In both cases, the respondents we re seeking election for a fourth term. In Adormeo, the recall term of Talaga began only from the date he assume d office after winning the recall election. Talaga s recall term did not retroact to include the tenure in office of his predecessor. If Talaga s recall term was made to so retroact, then he would have been disqualified to run in the 2001 ele ctions because he would already have served three consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not serve the full term of his predecessor but only the unexpired term. The period of time prior t o the recall term, when another elective official holds office, constitutes an i nterruption in continuity of service. Clearly, Adormeo established the rule tha t the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective official s terms in office. In the same manner, Hagedorn s recall term does not retroact to include th e tenure in office of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the recall term is made to retroact to Ju ne 30, 2001, for only then can the recall term constitute a fourth consecutive t erm. But to consider Hagedorn s recall term as a full term of three years, retroa cting to June 30, 2001, despite the fact that he won his recall term only last S

eptember 24, 2002, is to ignore reality. This Court cannot declare as consecuti ve or successive terms of office which historically and factually are not. Worse, to make Hagedorn s term retroact to June 30, 2001 creates a legal f iction that unduly curtails the freedom of the people to choose their leaders th rough popular elections. The concept of term limits is in derogation of the sov ereign will of the people to elect the leaders of their own choosing. Term limi ts must be construed strictly to give the fullest possible effect to the soverei gn will of the people. X x x A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An official elected in reca ll election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit. This is clear from the following discussion in the Constitutional Commission x x x. Although the discussion referred to special elections for Senators and R epresentatives of the House, the same principle applies to a recall election of local officials. Otherwise, an elective local official who serves a recall term can serve for more than nine consecutive years comprising of the recall term pl us the regular three full terms. A local official who serves a recall term shou ld know that the recall term is in itself one term although less than three year s. This is the inherent limitation he takes by running and winning in the recal l election. Collateral Issue Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. Held: This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualificat ion to participate in the recall assembly under Section 70 of the Local Governme nt Code. Melanio L. Mendoza and Mario E. Ibarra v. Commission on Elections and Leonardo B . Roman G.R. No. 149736, December 17, 2002 En Banc For resolution is a petition for certiorari filed by petitioners x x x se eking to set aside the resolution of the Commission on Elections x x x and to de clare respondent Leonardo B. Roman s election as governor of Bataan on May 14, 200 1 as null and void for allegedly being contrary to Art. X, Sec. 8 of the Constit ution x x x. After due deliberation, the Court voted 8 to 7 to DISMISS the petition. VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He contended that as revealed by the records of the Constitutional Commission, the Constitution envisions a continuous and an uninterrupted service for three f ull terms before the proscription applies. Therefore, not being a full term, a recall term should not be counted or used as a basis for the disqualification wh ether served prior (as in this case) or subsequent (as in the Socrates case) to the nine-year, full three-term limit.

MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss th e petition on the ground that, in accordance with the ruling in Borja, Jr. v. CO MELEC, 295 SCRA 157 [1998]; Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res .); Lonzanida v. COMELEC, 311 SCRA 602 [1999]; and Adormeo v. COMELEC, G.R. No. 147927, Feb. 4, 2002, a term during which succession to a local elective office takes place or a recall election is held should not be counted in determining wh ether an elective local official has served more than three consecutive terms. He argued that the Constitution does not prohibit elective local officials from serving for more than three consecutive terms because, in fact, it excludes from the three-term limit interruptions in the continuity of service, so long as suc h interruptions are not due to the voluntary renunciation of the office by the i ncumbent. Hence, the period from June 28, 1994 to June 30, 1995, during which r espondent Leonardo B. Roman served as governor of Bataan by virtue of a recall e lection held in 1993, should not be counted. Since on May 14, 2001 respondent h ad previously served as governor of Bataan for only two consecutive terms (19951998 and 1998-2001), his election on that day was actually only his third term f or the same position. PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He argued that a recall term should not be considered as one full term, because a contrary interpretation would in effect cut short the elected official s service to less than nine years and shortchange his constituents. The desire to preven t monopoly of political power should be balanced against the need to uphold the voters obvious preference who, in the present case, is Roman who received 97 perc ent of the votes cast. He explained that, in Socrates, he also voted to affirm the clear choice of the electorate, because in a democracy the people should, as much as legally possible, be governed by leaders freely chosen by them in credi ble elections. He concluded that, in election cases, when two conflicting legal positions are of almost equal weight, the scales of justice should be tilted in favor of the people s overwhelming choice. AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is clear from the constitutional provision that the disqualification applies only if the terms are consecutive and the service is full and continuous. Henc e, service for less than a term, except only in case of voluntary renunciation, should not count to disqualify an elective local official from running for the s ame position. This case is different from Socrates, where the full three consec utive terms had been continuously served so that disqualification had clearly at tached. On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and AU STRIA-MARTINEZ, CORONA, and CALLEJO, SR., JJ., concurred, holds the view that th e recall term served by respondent Roman, comprising the period June 28, 1994 to June 30, 1995, should be considered as one term. Since he thereafter served fo r two consecutive terms from 1995 to 1998 and from 1998 to 2001, his election on May 14, 2001 was actually his fourth term and contravenes Art. X, Sec. 8 of the Constitution. For this reason, she voted to grant the petition and to declare respondent s election on May 14, 2002 as null and void. CARPIO, J., joined by CARPI0-MORALES, J., also dissented and voted to gra nt the petition. He held that a recall term constitutes one term and that to to tally ignore a recall term in determining the three-term limit would allow local officials to serve for more than nine consecutive years contrary to the manifes t intent of the framers of the Constitution. He contended that respondent Roman s election in 2001 cannot exempt him from the three-term limit imposed by the Con stitution. WHEREFORE, THE PETITION FOR CERTIORARI IS DISMISSED. THE SEPARATE OPINIONS OF THE JUSTICES ARE HERETO ATTACHED AS PART OF THIS

RESOLUTION. Separate Opinion, Vitug, J. Petitioners would seek the disqualification of respondent Leonardo B. Ro man on the ground of his having transgressed the three-term limit under Section 8, Article X, of the 1987 Constitution and Section 43 of Republic Act No. 7160 ( Local Government Code) x x x. X x x The focal issue presented before the Court x x x would revolve on the qu estion of whether or not private respondent Roman exceeded the three-term limit for elective local officials, expressed in the Constitution and the Local Govern ment Code, when he again ran for the position of Governor in the 14th of May 200 1 elections, having occupied and served in that position following the 1993 reca ll elections, as well as the 1995 and 1998 regular elections, immediately prior to the 2001 elections. In fine, should respondent s incumbency to the post of Gov ernor following the recall elections be included in determining the three-consec utive term limit fixed by law? In order that the three-consecutive term limit can apply, two conditions must concur, i.e., (1) that the elective local official concerned has been elec ted for three consecutive terms to the same local government position, and (2) t hat he has served three consecutive full terms, albeit a voluntary renunciation of the office for any length of time shall not be deemed to be an interruption i n the continuity of the service for the full term for which he is elected. The constitutional provision does not appear to be all that imprecise for and in its application. Section 8, Article X, of the Constitution is explicit that the ter m of office of elective local officials x x x shall be three years which phrase i s forthwith followed by its mandate that no such official shall serve for more th an three consecutive terms, and that [v]oluntary renunciation of the office for an y length of time shall not be considered as an interruption in the continuity of his service for the full term for which he [is] elected. The law evidently cont emplates a continuous full three-year term before the proscription can apply. The Constitutional Commission, in its deliberations, referred to a full nine (9) years of service for each elective local government official in the app lication of the prohibition, envisioning at the same time a continuous and unint errupted period of nine years by providing for only one exception, i.e., when an incumbent voluntarily gives up the office. X x x A winner who dislodges in a recall election an incumbent elective local official merely serves the balance of the latter s term of office; it is not a ful l three-year term. It also goes without saying that an incumbent elective local official against whom a recall election is initiated and who nevertheless wins in a recall election must be viewed as being a continuing term of office and not as a break in reckoning his three consecutive terms. X x x If involuntary severance from the service which results in the incumbent s being unable to finish his term of office because of his ouster through valid r ecall proceedings negates one term for purposes of applying the three-term limit, as so intimated in Lonzanida, it stands to reason that the balance of the term a ssumed by the newly elected local official in a recall election should not also be held to be one term in reckoning the three-term limit. In both situations, n either the elective local official who is unable to finish his term nor the elec ted local official who only assumes the balance of the term of the ousted local official following the recall election could be considered to have served a full

three-year term set by the Constitution. This view is not inconsistent, but indeed in line, with the conclusion u ltimately reached in Socrates v. Commission on Elections, where the Court has co nsidered Hagedorn, following his three full terms of nine years, still qualified to run in a recall election conducted about a year and a half after the most re cent regular local elections. A recall term then, not being a full three-year t erm, is not to be counted or used as a basis for disqualification whether it is held prior or subsequent to the nine year full three-term limit. This same issue has been passed and ruled upon by the Commission on Elec tions no less than five times. Consistently, it has held that the term of a new comer in recall elections cannot be counted as a full term and may not thus be i ncluded in counting the three-term limit prescribed under the law. The Commissi on on Elections, with its fact-finding facilities, its familiarity with politica l realities, and its peculiar expertise in dealing with election controversies, should be in a good vantage point to resolve issues of this nature. Concededly, no ready made formulae are always extant to address occasional complex issues, allowing time and experience to merely evolve and ultimately provide acceptable solutions. In the administration of election laws, it would be unsound by an ex cessive zeal to remove from the Commission on Elections the initiative it takes on such questions which, in fact, by legal mandate properly belong to it (See Lo ong v. COMELEC, 305 SCRA 832, Pangandaman v. COMELEC, 319 SCRA 283). Nor should it be ignored that the law here involved is a limitation on t he right of suffrage not only on the candidate for office but also, and most imp ortantly, on the electorate. Respondent Roman has won the election to the post of Governor of Bataan with a comfortable margin against his closest opponent. W here a candidate appears to be the clear choice of the people, doubts on the can didate s eligibility, even only as a practical matter, must be so resolved as to r espect and carry out, not defeat, the paramount will of the electorate. While t he Constitution would attempt to prevent the monopolization of political power, indeed a wise rule, the precept of preserving the freedom of choice of the peopl e on who shall rightfully hold the reins of government for them is no less than fundamental in looking at its overriding intent. WHEREFORE, I vote to DISMISS the instant petition on the foregoing these s. Government of the United States of America v. Hon. Guillermo Purganan G.R. No. 1 48571, September 24, 2002 En Banc [Panganiban] The United States Government requested the Philippine Government for the extradition of Mark Jimenez pursuant to the provisions of the RP-US Extradition Treaty to face trial for his alleged criminal offenses in the United States. T he Department of Justice (DOJ) filed a Petition for his extradition with the RTC of Manila in accordance with the provisions of PD 1069 (The Philippine Extradit ion Law) and the RP-US Extradition Treaty. Issues, Resolution, Principles and Guidelines in Extradition: A. In extradition proceedings, are prospective extraditees entitled to notice and hearing before their warrants for their arrest can be issued? Equall y important, are they entitled to the right to bail and provisional liberty whil e the extradition proceedings are pending? In general, the answer to these two novel questions is No. X x x

B. Five Postulates of Extradition 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppress ing crime by facilitating the arrest and custodial transfer (Bassiouni, Internat ional Extradition, 1987 ed., p. 68) of a fugitive from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of comm itting crime and evading prosecution has become more frequent. Accordingly, gov ernments are adjusting their methods of dealing with criminals and crimes that t ranscend international boundaries. Today, a majority of nations in the world community have come to look upo n extradition as the major effective instrument of international co-operation in the suppression of crime. (Bassiouni, supra, p. 21) It is the only regular syst em that has been devised to return fugitives to the jurisdiction of a court comp etent to try them in accordance with municipal and international law (Id., p. 67 ). X x x Indeed, in this era of globalization, easier and faster international tr avel, and an expanding ring of international crimes and criminals, we cannot aff ord to be an isolationist state. We need to cooperate with other states in orde r to improve our chances of suppressing crime in our country. 2. The Requesting State Will Accord Due Process to the Accused. Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each other s legal system and judicial process (Coquia, On Implementation of the RP-US Extradition Treaty, The Lawyers Re view, August 31, 2000, p. 4). More pointedly, our duly authorized representativ e s signature on an extradition treaty signifies our confidence in the capacity an d willingness of the other state to protect the basic rights of the person sough t to be extradited (See Bassiouni, p. 546; citing 221 US 508, 512 [1910]). That signature signifies our full faith that the accused will be given, upon extradi tion to the requesting state, all relevant and basic rights in the criminal proc eedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis. Third, as ition proceedings titutional rights s in a class by X x x Given the foregoing, it is evident that the extradition court is not cal led upon to ascertain the guilt or the innocence of the person sought to be extr adited (Secretary of Justice v. Lantion, supra.). Such determinatio0n during th e extradition proceedings will only result in needless duplication and delay. E xtradition is merely a measure of international judicial assistance through whic h a person charged with or convicted of a crime is restored to a jurisdiction wi th the best claim to try that person. It is not part of the function of the ass isting authorities to enter into questions that are the prerogative of that juri sdiction (Shearer, Extradition in International Law, 1971 ed., p. 157). The ult pointed out in Secretary of Justice v. Lantion (Supra), extrad are not criminal in nature. In criminal proceedings, the cons of the accused are at fore; in extradition which is sui generi itself they are not.

imate purpose of extradition proceedings in court is only to determine whether t he extradition request complies with the Extradition Treaty, and whether the per son sought is extraditable (Id., p. 545). 4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the E xtradition Treaty, and our legislative branch ratified it. Hence, the Treaty ca rries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity ( In line with the Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2, Constitution). On the other hand, failure to f ulfill our obligations thereunder paints at bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty (Secretary of Justice v. Lantion, supra.). Thi s principle requires that we deliver the accused to the requesting country if th e conditions precedent to extradition, as set forth in the Treaty, are satisfied . In other words, [t]he demanding government, when it has done all that the trea ty and the law require it to do, is entitled to the delivery of the accused on t he issue of the proper warrant, and the other government is under obligation to make the surrender. (Wright v. Henkel, 190 U.S. 40, 62, March 23, 1903) Accordin gly, the Philippines must be ready and in a position to deliver the accused, sho uld it be found proper. 5. There Is an Underlying Risk of Flight. Fifth, persons to be extradited are presumed to be flight risks. This pr ima facie presumption finds reinforcement in the experience of the executive bra nch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons s ought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country (Persily, International Extradition and the Right to Bail, 34 Stan. J. Int l L. 407 [Summer 1988]). Prior acts of herein respondent (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the reques ting state is seeking his return and that the crimes he is charged with are bail able eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances po int to an ever-present, underlying high risk of flight. He has demonstrated tha t he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? C. Is Respondent entitled to Notice and Hearing Before the Issuance of a Warrant of Arrest (in an Extradition proceeding)? Both parties cite Section 6 of PD 1069 in support of their arguments. X x x Does this provision sanction RTC Judge Purganan s act of immediately setti ng for hearing the issuance of a warrant of arrest? We rule in the negative. 1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law , uses the word immediate to qualify the arrest of the accused. This qualificatio n would be rendered nugatory by setting for hearing the issuance of the arrest w arrant. Hearing entails sending notices to the opposing parties, receiving fact s and arguments from them, and giving them time to prepare and present such fact s and arguments. Arrest subsequent to a hearing can no longer be considered imme diate. The law could not have intended the word as a mere superfluity but, on th e whole, as a means of impairing a sense of urgency and swiftness in the determi nation of whether a warrant of arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy i s not as important as speed at such early stage. The trial court is not expecte d to make an exhaustive determination to ferret out the true and actual situatio n, immediately upon the filing of the petition. From the knowledge and the mate rial then available to it, the court is expected merely to get a good first impr ession a prima facie finding sufficient to make a speedy initial determination a s regards the arrest and detention of the accused. X x x It is evident that respondent judge could have already gotten an impress ion from these records adequate for him to make an initial determination of whet her the accused was someone who should immediately be arrested in order to best s erve the ends of justice. He could have determined whether such facts and circum stances existed as would lead a reasonably discreet and prudent person to believ e that the extradition request was prima facie meritorious. In point of fact, h e actually concluded from these supporting documents that probable cause did exis t. X x x We stress that the prima facie existence of probable cause for hearing t he petition and, a priori, for issuing an arrest warrant was already evident fro m the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gra vely abused his discretion when he set the matter for hearing upon motion of Jim enez. Moreover, the law specifies that the court sets a hearing upon receipt o f the answer or upon failure of the accused to answer after receiving the summon s. In connection with the matter of immediate arrest, however, the word hearing s notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary (See Sec. 9, PD 1069) in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a he aring every little step in the entire proceedings. X x x Verily x x x sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would gi ve them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both w ould have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution Even Section 2 of Article III of our Constitution, which is invoked by Ji menez, does not require a notice or a hearing before the issuance of a warrant o f arrest. X x x

To determine probable cause for the issuance of arrest warrants, the Cons titution itself requires only the examination under oath or affirmation of compl ainants and the witnesses they may produce. There is no requirement to notify a nd hear the accused before the issuance of warrants of arrest. In Ho v. People (280 SCRA 365, October 9, 1997) and in all the cases cite d therein, never was a judge required to go to the extent of conducting a hearin g just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the judge must have sufficient supporting documents upon which to make his independent judgment, or at the ver y least, upon which to verify the findings of the prosecutor as to the existence of probable cause. In Webb v. De Leon (247 SCRA 652, 680, per Puno, J.), the Court categoric ally stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest x x x. At most, in cases of clear insufficiency of evidence on record, judges me rely further examine complainants and their witnesses (Ibid; citing Allado v. Di okno, 233 SCRA 192, May 5, 1994). In the present case, validating the act of re spondent judge and instituting the practice of hearing the accused and his witne sses at this early stage would be discordant with the rationale for the entire s ystem. If the accused were allowed to be heard and necessarily to present evide nce during the prima facie determination for the issuance of a warrant of arrest , what would stop him from presenting his entire plethora of defenses at this st age if he so desires in his effort to negate a prima facie finding? Such a proc edure could convert the determination of a prima facie case into a full-blown tr ial of the entire proceedings and possibly make trial of the main case superfluo us. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal ac tion is not sufficient to justify the adoption of a set of procedures more prote ctive of the accused. If a different procedure were called for at all, a more r estrictive one not the opposite would be justified in view of respondent s demonst rated predisposition to flee. X x x D. Procedure to be Followed Once Extradition Petition is Filed in Court. Since this is a matter of first impression, we deem it wise to restate th e proper procedure. Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding w hether (a) they are sufficient in form and substance, (b) they show compliance w ith the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding (Prima facie finding , not probable cause, is the more precise terminology because an extradition cas e is not a criminal proceeding in which the latter phrase is commonly used.) is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, t hen the magistrate must immediately issue a warrant for the arrest of the extrad itee, who is at the same time summoned to answer the petition and to appear at s cheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition,

lest the latter be given the opportunity to escape and frustrate the proceedings . In our opinion, the foregoing procedure will best serve the ends of justice in extradition cases. E. Is Respondent Entitled to Bail (in Extradition Proceedings)? Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word conviction , the constitutional provision on bail x x x, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained f or violation of Philippine criminal laws. It does not apply to extradition proc eedings, because extradition courts do not render judgments of conviction or acq uittal. Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of f reedom as thereafter he would be entitled to acquittal, unless his guilt be prov ed beyond reasonable doubt. (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1 971, per Fernando, Jr. [later CJ]) It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of inn ocence is not an issue. The provision in the Constitution stating that the right to bail shall no t be impaired even when the privilege of the writ of habeas corpus is suspended d oes not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the priv ilege of the writ of habeas corpus finds application only to persons judicially c harged for rebellion or offenses inherent in or directly connected with invasion . (Sec. 18, Article VII, Constitution) Hence, the second sentence in the constit utional provision on bail merely emphasizes the right to bail in criminal procee dings for the aforementioned offenses. It cannot be taken to mean that the righ t is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailab le in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial fo r the offenses for which he is charged. He should apply for bail before the cou rts trying the criminal cases against him, not before the extradition court. No Violation of Due Process X x x Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due proc ess. We iterate the familiar doctrine that the essence of due process is the op portunity to be heard (Garcia v. NLRC, GR No. 110494, November 18, 1996; Paat v. Court of Appeals, January 10, 1997) but, at the same time, point out that the d octrine does not always call for a prior opportunity to be heard (See Central Ba nk of the Philippines v. Court of Appeals, 220 SCRA 536, March 20, 1993). Where the circumstances such as those present in an extradition case call for it, a s ubsequent opportunity to be heard is enough (Ibid. See also Busuego v. Court of Appeals, 304 SCRA 473, March 11, 1999). In the present case, respondent will b e given full opportunity to be heard subsequently, when the extradition court he ars the Petition for Extradition. Hence, there is no violation of his right to due process and fundamental fairness. Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his

arrest and detention will not be arbitrary is sufficiently ensured by (1) the D OJ s filing in court the Petition with its supporting documents after a determinat ion that the extradition request meets the requirements of the law and the relev ant treaty; (2) the extradition judge s independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the court s custody, to apply for bail as an exception to the no-initial-bail rule. It is also worth noting that before the US government requested the extr adition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those procee dings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now had thus become h ollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away. In this light, would it be proper and just for the government to increas e the risk of violating its treaty obligations in order to accord Respondent Jim enez his personal liberty in the span of time that it takes to resolve the Petit ion for Extradition? His supposed immediate deprivation of liberty without due process that he had previously shunned pales against the government s interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, [c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be caref ully balanced against exigent and palpable government interest. (Coquia, On the Im plementation of the US-RP Extradition Treaty, supra; citing Kelso v. US Departmen t of State, 13 F Supp. 291 [DDC 1998]) Too, we cannot allow our country to be a haven for fugitives, cowards an d weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violat ing our treaty obligations if, through overprotection or excessively liberal tre atment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision in the Constitution, the law or th e treaty expressly guaranteeing the right to bail in extradition proceedings, ad opting the practice of not granting them bail, as a general rule, would be a ste p towards deterring fugitives from coming to the Philippines to hide from or eva de their prosecutors. The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 (It states: If the person sought consent s in writing to surrender to the Requesting State, the Requested State may surre nder the person as expeditiously as possible without further proceedings. ) of the Treaty, since this practice would encourage the accused to voluntarily surrende r to the requesting state to cut short their detention here. Likewise, their de tention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition ca ses and the need for their speedy disposition. F. Exceptions to the No Bail Rule

The rule x x x is that bail is not a matter of right in extradition case s. However, the judiciary has the constitutional duty to curb grave abuse of di scretion and tyranny, as well as the power to promulgate rules to protect and en force constitutional rights. Furthermore, we believe that the right to due proc ess is broad enough to include the grant of basic fairness to extraditees. Inde ed, the right to due process extends to the life, liberty or property of every per son. It is dynamic and resilient, adaptable to every situation calling for its a pplication. (I.A. Cruz, Constitutional Law, 1998 ed., p. 98)

Accordingly and to best serve the ends of justice, we believe and so hol d that, after a potential extraditee has been arrested or placed under the custo dy of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special , humanitarian and compelling circumstances including, as a matter of reciprocit y, those cited by the highest court in the requesting state when it grants provi sional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and sin ce it is derived essentially from general principles of justice and fairness, th e applicant bears the burden of proving the above two-tiered requirement with cl arity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the pres idential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judi cial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bi lateral interests of our country will not be unreasonably impeded or compromised . In short, while this Court is ever protective of the sporting idea of fair pla y, it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. G. Are There Special Circumstances Compelling Enough for the Court to Gr ant Jimenez s Request for Provisional Release on Bail? Along this line, Jimenez contends that there are special circumstances t hat are compelling enough for the Court to grant his request for provisional rel ease on bail. We have carefully examined these circumstances and shall now disc uss them. 1. Alleged Disenfranchisement While his extradition was pending, Respondent Jimenez was elected as a m ember of the House of Representatives. On that basis, he claims that his detent ion will disenfranchise his Manila district of 600,000 residents. We are not pe rsuaded. In People v. Jalosjos (324 SCRA 689, February 3, 2000, per Ynares-Sant iago, J.), the Court has already debunked the disenfranchisement argument x x x. It must be noted that even before private respondent ran for and won a c ongressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should h ave been prepared for the consequences of the extradition case against their rep resentative, including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are constrained to rule agains t his claim that his election to public office is by itself a compelling reason to grant him bail. 2. Anticipated Delay Respondent Jimenez further contends that because the extradition proceed ings are lengthy, it would be unfair to confine him during the pendency of the c ase. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to merely to determine whether the extradi tion petition and its annexes conform to the Extradition Treaty, not to determin e his guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal act ion. We are not overruling the possibility that petitioner may, in bad faith,

unduly delay the proceedings. This is quite another matter that is not at issu e here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tanta mount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more . This we cannot allow. 3. Not a Flight Risk? Jimenez further claims that he is not a flight risk. To support this cl aim, he stresses that he learned of the extradition request in June 1999; yet, h e has not fled the country. True, he has not actually fled during the prelimina ry stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as h e hears the footsteps of the requesting government inching closer and closer. T hat he has not yet fled from the Philippines cannot be taken to mean that he wil l stand his ground and still be within reach of our government if and when it ma tters; that is, upon the resolution of the Petition for Extradition. In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and p rior to judgment, even after bail has been previously denied. In the present ca se, the extradition court may continue hearing evidence on the application for b ail, which may be granted in accordance with the guidelines in this Decision. H. Ten Points to Consider in Extradition Proceedings As we draw to a close, it is now time to summarize and stress these ten points: 1. The ultimate purpose of extradition proceedings is to determine wheth er the request expressed in the petition, supported by its annexes and the evide nce that may be adduced during the hearing of the petition, complies with the Ex tradition Treaty and Law; and whether the person sought is extraditable. The pr oceedings are intended merely to assist the requesting state in bringing the acc used or the fugitive who has illegally escaped back to its territory, so that th e criminal process may proceed therein. 2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner; as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case the rein. 3. By nature then, extradition proceedings are not equivalent to a crimi nal case in which guilt or innocence is determined. Consequently, an extraditio n case is not one in which the constitutional rights of the accused are necessar ily available. It is more akin, if at all, to a court s request to police authori ties for the arrest of the accused who is at large or has escaped detention or j umped bail. Having once escaped the jurisdiction of the requesting state, the r easonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon orting documents, the judge n is sufficient in form and Treaty and Law, and whether receipt of shall make substance, the person the petition for extradition and its supp a prima facie finding whether the petitio whether it complies with the Extradition sought is extraditable. The magistrate h

as discretion to require the petitioner to submit further documentation, or to p ersonally examine the affiants or witnesses. If convinced that a prima facie ca se exists, the judge immediately issues a warrant for the arrest of the potentia l extraditee and summons him or her to answer and to appear at scheduled hearing s on the petition. 5. After being taken into custody, potential extraditees may apply for b ail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b ) there exist special, humanitarian or compelling circumstances. The grounds us ed by the highest court in the requesting state for the grant of bail therein ma y be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial d iscretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and t o fundamental fairness. Due process does not always call for a prior opportunit y to be heard. A subsequent opportunity is sufficient due to the flight risk in volved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatibl e with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is als o well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judici al, responsibility arising out of the presidential power to conduct foreign rela tions and to implement treaties. Thus, the Executive Department of government h as broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exer cise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and over-due process every little step of the way, lest these summary extradition proceedings become not only inutile but also sour ces of international embarrassment due to our inability to comply in good faith with a treaty partner s simple request to return a fugitive. Worse, our country s hould not be converted into a dubious haven where fugitives and escapees can unr easonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bi lateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deli berate speed to determine compliance with the Extradition Treaty and Law; and, w hile safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. Resolution of the Motion for Reconsideration G.R. No. 148571, December 17, 2002 En Banc First, private respondent insists that the Extradition Court acted prope rly in granting bail to him. We have already exhaustively discussed this issue in our Decision and in the Concurring Opinion of Mr. Justice Antonio T. Carpio. Thus, we will not belabor our ruling on this point. Suffice it to say that pet itioner s repeated invocation of the Extradition Court s grant of bail has not convi nced us that he deserves bail under the exception laid down in our Decision x x x. There has been no clear and convincing showing as to the absence of flig ht risk and the non-endangerment of the community, or as to the existence of spe

cial, humanitarian and compelling circumstances justifying grant of bail. Second, private respondent claims that our Decision did not make an expr ess finding of grave abuse of discretion on the part of the lower court. This i s incorrect. X x x Further, contrary to Jimenez s claims, the Extradition Court did not negat e the flight risk posed by him. It did not make a finding on flight risk as it considered the issue irrelevant, having already determined bail to be a matter o f right. X x x And in any event, in his Memorandum, private respondent submitted factua l issues i.e., existence of special circumstances and absence of flight risk for the consideration of this Court. He even reiterated some of those factual subm issions in his Motion for Reconsideration. He is therefore deemed estopped to c laim that this Court cannot, on certiorari, address factual issues and review an d reverse the factual findings of the Extradition Court. Third, private respondent s arguments (1) that the Extradition Court exerc ised due discretion in its grant of bail and (2) that our ruling that bail is not a matter of right in extradition cases is contrary to prevailing law and jurisp rudence are neither novel nor deserving of further rebuttal. Again, they have be en extensively taken up in our Decision as well as in Concurring, Separate and D issenting Opinions. Fourth, private respondent argues that allegedly our Decision violated h is due process rights. Again, we have discussed this matter in our Decision say ing that, in its simplest concept, due process is merely the opportunity to be h eard which opportunity need not always be a prior one. In point of fact, privat e respondent has been given more than enough opportunity to be heard in this Cou rt as well as in the Extradition Court. Even his Motion for Reconsideration has been given all the chances to persuade by way of allowing additional arguments in his Motion x x x and Reply. These latter pleadings are normally not allowed, b ut precisely because this Court wanted to give him more than enough opportunity to be heard and to argue, we have bent backwards and admitted these additional p leadings. Finally, private respondent contends that as a member of Congress, he is immune from arrest arising from offenses punishable by not more than six (6) yea rs imprisonment, saying that he cannot be prevented from performing his legislati ve duties because his constituents would be disenfranchised. He perorates that a member of Congress may be suspended or removed from office only by two-thirds vote of the House of Representatives. Citing People v. Jalosjos, our Decision h as already debunked the disenfranchisement argument. Furthermore, our Decision does not in any manner suspend or remove him from office. Neither his arrest or detention arising from the extradition proceeding will constitute his suspensio n or removal form office. That is clear enough. While equal protection and reasonable classifications are not directly i n issue in this case, we nevertheless stress, paraphrasing Jalosjos, that respon dent s election to the position of congressman, with the concomitant duty to disch arge legislative functions, does not constitute a substantial differentiation wh ich warrants placing him in a classification or category apart from all other pe rsons confined and deprived of their liberty pending resolution of their extradi tion cases. We reiterate that lawful arrest and temporary confinement of a pote ntial extraditee are germane to the purposes of the law and apply to all those b elonging to the same class. As we have stated, the procedure adopted by the Extradition Court of fir st notifying and hearing a prospective extraditee before the actual issuance of

the warrant for his arrest, is tantamount to giving notice to flee and avoid ext radition. Whether a candidate for extradition does in fact go into hiding or no t is beside the point. In the final analysis, the method adopted by the lower c ourt was completely at loggerheads with the purpose, object and rationale of the law, and overlooked the evils to be remedied. As already suggested in our Decision (p. 32), private respondent can avo id arrest and detention which are the consequences of the extradition proceeding simply by applying for bail before the courts trying the criminal cases against him in the USA. He himself has repeatedly told us that the indictments against him in the United States are bailable. Furthermore, he is capable, financially and otherwise, of producing the necessary bail in the US. Why then has he not done so? Otherwise stated, Respondent Jimenez has the actual power to lift his ar rest and detention arising from his extradition by simply and voluntarily going to and filing bail in the USA. AT BOTTOM, private respondent s Motion for Reconsideration presents no new or substantial arguments which have not been presented in his prior pleadings a nd which have not been taken up in our Decision. His present allegations and as severations are mere rehashes of arguments previously presented to us or are mer e restatements of the Separate and Dissenting Opinions which were already adequa tely discussed in our Decision. In short, private respondent has not given any compelling reason to warrant a reversal or modification of our earlier rulings. Separate Opinion, Vitug, J. Extradition is an exceptional measure running against the tradition of a sylum. International Extradition is a process under which a sovereign state sur renders to another sovereign state a person accused in a case or a fugitive offe nder in the latter state [1]. The practice has its origins as early as the anci ent Egyptian, Chinese, Chaldean and Assyro-Babylonian civilizations [2]. The su rrender of a person who has been granted the privilege of presence or refuge in the requested state is deemed to be an exceptional measure running against the t radition of asylum and hospitality of the requesting state, and it has given ris e to the speculation that the term extradition evolved from what used to be then k nown as extra-tradition. [3] The widely accepted explanation for the term still a ppears to be the Latin original extradere on pacts and treaties. The first reco rded extradition treaty in the world dates circa 1280 BC, where Rameses II, Phar aoh of Egypt, and King Hattusili III of the Hittites signed a peace treaty expre ssly providing for the return of persons sought by each sovereign taking refuge in the territory of the other. Since then, however, only the practice of Greece and Rome on extradition arrangements evidently found their way into European te xts of international law [4]. The participants of the process remained the same over time the two states and the individual sought to be extradited. But while , historically, extradition was for the purpose of obtaining the surrender of po litical offenders, the trend, starting in the 19th century, has been to refuse t he extradition of a person sought for political crimes. This shift can be expla ined partly to the emergence of humanitarian international law which has given i mpetus to a new legal status of one of the participants, i.e., the individual, t hus placing some limitations on the power of the respective sovereigns that did not historically exist [5]. Extradition, nevertheless, does not find basis in Customary Internationa l Law. International customary law is, as its name suggests, created by custom. It is one of the two (the other being treaties) primary law-creating processes of international law. Its evolution, according to Schwarzenberger [6], can be

traced to the early development of a global society when international law consi sted primarily of express agreements, which the parties freely accepted as legal ly binding between or among themselves. Little was taken for granted, and every thing that was considered if only remotely relevant had been incorporated into t he text of these treaties. Some of the rules were found to be so convenient and generally acceptable that their inclusion in the succeeding agreements graduall y became non-essential. Time hardened them into customary international law. I nternational customary law has two constitutive elements: (1) a general practice of sovereign states and (2) the acceptance of the states of this general practi ce as law [7]. In the Lotus (1927) and Asylum (1950) cases, the World Court rul ed that to prove the existence of a rule in international customary law, it is n ecessary to establish not only that States act a certain way but that they do so because they recognize a legal obligation to this effect, i.e., with or without a treaty [8]. Despite its ancient roots, extradition, as it is presently exercised by states, adopts the view represented by Puffendorf who argues that the duty to ex tradite is only an imperfect obligation which requires an explicit agreement in order to become fully binding under international law and secure reciprocal righ ts and duties of the contracting states [9]. The exception would be with respec t to international crimes, such as terrorism and genocide, in which extradition is seen as being a definite legal duty. As D.W. Grieg so bluntly puts it, there exists no duty to extradite under customary international law [10]. Prevailing practice among states indeed supports the conclusion that the duty to extradite can be demanded only by virtue of a treaty, whether bilateral or multilateral [ 11]; conversely, in its absence, there is no legal right to demand and no corres ponding obligation to extradite. Once, however, of course, an extradition treat y is concluded, respect for and compliance with the treaty obligation is, under the international principle of pacta sunt servanda, expected from the states tha t enter into the agreement. Neither can extradition be considered a generally accepted principle of international law. Article 38(1)(c) of the Statute of the International Court of Justice re fers to the general principles of law recognized by civilized nations as being a s ource of law which comes after customary law, international conventions and trea ties, all of which are based on the consent of nations [12]. Article 38(1)(c) i s identified as being a secondary source of international law and therefore, not r anked at par with treaties and customary international law [13]. The phrase is innately vague, and its exact meaning still eludes any general consensus. The w idely preferred opinion, however, appears to be that of Oppenheim which views gen eral principles of law as being inclusive of principles of private or municipal l aw when these are applicable to international relations [14]. Where, in certain cases, there is no applicable treaty nor a generality of state practice giving rise to customary law, the international court is expected to rely upon certain legal notions of justice and equity in order to deduce a new rule for applicatio n to a novel situation [15]. This reliance or borrowing by the international trib unal from general principles of municipal jurisprudence is explained in many way s by the fact that municipal or private law has s higher level of development co mpared to international law. Brownlie submits that the term generally-accepted p rinciples of international law could also refer to rules of customary law, to gen eral principles of law, or to logical propositions resulting from judicial reaso ning on the basis of existing international law and municipal law analogies [16] . In order to qualify as a product of the subsidiary law-creating process, a principle of law must fulfill three requirements: (1) it must be a general pr inciple of law as distinct from a legal rule of more limited functional scope, ( 2) it must be recognized by civilized nations, and (3) it must be shared by a fa

ir number of states in the community of nations [17]. Examples of these princip les, most of which are drawn from Roman law, encompasses rules on prescription, estoppel, res judicata [18], consent and pacta sunt servanda. It can also inclu de generally accepted principles enshrined under the Universal Declaration of Hu man Rights, such as the basic human right to life and liberty without distinctio n as to race, color, sex, race language or religion, political or other opinion, nationality, social origin, property, birth or other status [19]. At the momen t, extradition, at most a process resorted to by states under the policy of coop eration and comity with each other, does not qualify as a generally accepted pri nciple of international law nor as being thereby incorporated and deemed part of the law of the land under Section 2, Article II, of the 1987 Philippine Constit ution [20]. Clarifying the term generally-accepted principles of international law dur ing the deliberations of the 1987 Constitutional Commission, Commissioner Rodolf o Azcuna points out that [w]hen we talk of generally-accepted principles of inter national as part of the law of the land, we mean that it is part of the statutor y part of laws, not of the Constitution [21]. The remark is shared by Professor Merlin M. Magallona who expresses that the phrase as part of the law of the land in the incorporation clause refers to t he levels of legal rules below the Constitution such as legislative acts and jud icial decisions. Thus, he contends, it is incorrect to so interpret this phrase as including the Constitution itself because it would mean that the generally-ac cepted principles of international law falls in parity with the Constitution [22] . A treaty being the primary source of the obligation to extradite has given oc casion to a lack of cohesive and uniform standards on extradition. Not finding basis in customary law, and failing to qualify as a generall y-accepted principle of international law, the present state of international la w on the return of fugitives for trial is hypothesized by Brownlie: With the exce ption of alleged crimes under international law, surrender of an alleged crimina l cannot be demanded of right in the absence of treaty. [23] The result has been a failure of consistency in extradition practice among states. Indeed, the rea lity is that there is to date no uniform standard applicable to all states. D.W . Gregg [24] attributes this lack of universal and cohesive standards in the extra dition process to the adoption of a variety of procedures which can be as divers e as the contracting states would want them to be. In formulating their extradi tion treaties, contracting states insert particular provisions and stipulations to address specific particularities in their relationships. Thus, extradition u nder American law is different from that under English law; to illustrate, the E nglish Extradition Act of 1870 requires that the offense, for which a fugitive i s to be extradited, be also considered a crime under English law. No such requi rement, upon the other hand, exists under the US Extradition Act, which limits ex traditable crimes to those enumerated under the treaty, regardless of whether the same are considered crimes under its laws. While both England and the United S tates are amenable to extraditing their own nationals, France and Belgium absolu tely refuse to do so. This refusal to surrender one s own nationals is likewise a dopted by most states in Continental Europe which, under their own municipal law s, are obliged to unconditionally reject any request for the surrender of their own nationals, preferring to try them under their own laws even though the offen se is committed abroad. While Common Law countries require a prima facie showin g of guilt before they surrender a fugitive, almost all other legal systems requ ire only that the offense be committed in the jurisdiction of the demanding stat e [25]. In the United States, extradition is demanded with an opportunity for a judicial hearing, while in other countries, extradition is exclusively an admin istrative function [26]. It may also happen that a single estate may have as ma ny extradition processes as the number of extradition treaties it has with other countries. Thus, while the general extradition process with England is governe d by the Extradition Act of 1870, any extradition it may undertake with member s

tates of the British Commonwealth is governed by the Fugitive Act of 1967 [27]. Fenwick, another recognized authority in international law, concludes --- Since extradition is effected as the result of the provisions of treaties entered into by nations two by two, it is impossible to formulate any general rule of law up on the subject. [28] The elevated status of a treaty over that of an ordinary statute is taki ng ground. The International Tribunal, has consistently held that, in consonance wi th the Vienna Convention, a state cannot plead provisions of its own laws or def iciencies in that law in an answer to a claim against it for an alleged breach o f its obligations under international law [29]. From the standpoint of Internat ional Law and of the International Court, municipal laws are merely expressions of the will and constitute the activities of the states within its boundaries in the same manner as do ordinary legal decisions or administrative measures [30]. But, viewed domestically, reactions have been varied. Differing internal laws among the members of the international community has resulted in the divergence of responses when treaty law clashes with ordinary municipal law. In the United Kingdom, despite pronouncements that the law of nations is adopted in its full extent by common law and is held to be part of the law of th e land, cases decided since 1876 point to the displacement of the doctrine of inc orporation by that of transformation, viz.: customary law is part of the law of England only insofar as the rules have been clearly adopted and made part of Eng land by legislation, judicial decision, or established usage [31]. In the Unite d States, there has not been much hesitation in recognizing the priority of legi slative enactment when passed not only in contravention of established custom bu t even of the provisions of a specific treaty [32]. Meeting objection to the va lidity of a tax on immigrants as a violation of the numerous treaties of the US g overnment with friendly nations, the United States Supreme Court, in the Head Mon ey Cases (112 US 580 [1884]), observed: A treaty, then, is a law of the land as an act of Congress whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined, and when such rights are of a nature to be enforced in a court of justice, courts resort to treaties for a rule of decision of the case as it would to a statute. Nevertheless, added the Court, so far as a treaty made by the US with any foreign nation can become subje ct of judicial cognizance in the courts of this country, it is subject to such a cts as Congress may pass for its enforcement, modification or repeal. In France, a treaty has supremacy over an inconsistent prior statute as long as the other state party to the agreements accords a similar superiority in its domestic foru m. French precedent also exists for treaty supremacy over a subsequent inconsis tent statute [33]. The European Court once ruled that the European Economic Com munity Treaty has precedence over national law, even if the national law were la ter in time [34]. This ambivalent attitude towards the relationship between international and municipal law exemplifies the still on-going debate between two schools of t hought monism and dualism . Monists believe that international law and domestic law are part of a single legal order; international law is automatically incorporate d into each nation s legal system and that international is supreme over domestic law [35]. Monism requires that domestic courts give effect to international law, notwithstanding inconsistent domestic law, even constitutional law of a constit utional character. [36] Dualists, however, contend that international law and do mestic law are distinct, each nation ascertaining for itself when and to what ex tent international law is incorporated into its legal system, and that the statu s of international law in the domestic system is determined by domestic law [37] . Under this view, when municipal law provides that international law applies in whole or in part within our jurisdiction, it is but an exercise of the authorit y of municipal law, an adoption or transformation of the rules of international

law.

[38]

In the Philippines, while specific rules on how to resolve conflicts bet ween a treaty law and an act of Congress, whether made prior or subsequent to it s execution, have yet to be succinctly defined, the established pattern, however , would show a leaning towards the dualist model. The Constitution exemplified by its incorporation clause (Article II, Section 2), as well as statutes such as those founding some provisions of the Civil Code and of the Revised Penal Code [39], would exhibit a remarkable textual commitment towards internalizing internat ional law. The Supreme Court itself has recognized that the principles of intern ational law are deemed part of the law of the land as a condition and as a conseq uence of our admission in the society of nations [40]. The principle being that treaties create rights and duties only for thos e who are parties thereto pacta tertiis nec nocre nec prodesse possunt it is con sidered necessary to transform a treaty into a national law in order to make it binding upon affected state organs, line the courts, and private individuals who could, otherwise, be seen as non-parties [41]. The US-RP Extradition Treaty in particular, undoubtedly affects not only state organs but also private individu als as well. It is said that, in treaties of this nature, it should behoove the state to undertake or adopt the necessary steps to make the treaty binding upon said subjects either by incorporation or transformation [42]. Article II, Sect ion 2 of the 1987 Constitution provides for an adherence to general principles o f international law as part of the law of the land. One of these principles is the basic rule of pacta sunt servanda or the performance in good faith of a stat e s treaty obligations. Pacta sunt servanda is the foundation of all conventional international law, for without it, the superstructure of treaties, both bilater al and multilateral, which comprise a great part of international law, could wel l be inconsequential. Existing legislation contrary to the provisions of the tr eaty becomes invalid, but legislation is necessary to put the treaty into effect [43]. The constitutional requirement that the treaty be concurred in by no les s than two-thirds of all members of the Senate (Section 21, Article VII) is, for legal intent and purposes, an equivalent to the required transformation of trea ty into municipal law. In preserving harmony between treaty law and municipal law, it is submit ted 1) That treaty law has the effect of amending, or even repealing an inconsis tent municipal statute, a later enactment being controlling, 2) but that an inco nsistent municipal statute subsequently passed cannot modify treaty law, without the concurrence of the other state party thereto, following the generally accep ted principle of pacta sunt servanda. As so observed by Fenwick: Legislation pas sed, or administrative action taken subsequent to the adoption of the treaty and in violation of its provisions is invalid, but this should be declared so by th e appropriate agency of national government. In like manner, in doubtful cases w here the national legislation or administrative ruling is open to different inte rpretations, the courts of the state will give the benefit of the doubt to the p rovisions of the treaty. A treaty, nevertheless, cannot override the Constitution; in case of con flict, the Constitution must prevail. When a controversy calls for a determination of the validity of a treaty in the light of the Constitution, there is no question but that the Constitutio n is given primary consideration [44]. The deference to the interpretation of t he national law by competent organs of a state, was exhibited by the Permanent C ourt of International Justice in the case of Serbian Loans [45] where it held th at the construction given by the Highest Court of France on French law should be followed. When a state, through its government, concludes a treaty with anothe r state, the government of the latter has no reason and is not entitled to quest ion the constitutionality of the act of the former [46]. But this rule does not

prevent the government of a state, after having concluded a treaty with another state, from declaring the treaty null and void because it is made in violation of its own constitution [47]. In the United States, treaties are regarded as part of the law of the la nd but this general rule is qualified by the stipulation that a treaty must not be violative of the Constitution [48]. The United States government, in carryin g out its treaty obligations, must conform its conduct to the requirements of th e Constitution which override the provisions of a treaty that may be contrary to any specific constitutional right [49]. In Reyes v. Bagatsing [50], this Court has had the occasion to resolve the see-sawing interests of preserving fundamen tal freedoms such as free speech and assembly, as espoused by the members of the Anti-Bases Coalition seeking permit to hold a rally in front of the American Em bassy and the corresponding international obligation of the state to protect the integrity and safety of diplomatic missions and premises under the Vienna Conve ntion. While holding that the prohibition against holding rallies within a 500 meter radius from any foreign mission is valid, the ponencia sees a possible sce nario that in case a treaty or a general principle of international law is found to be in irreconcilable conflict with Constitutional mandates, the Court would uphold the latter every time, even to the possible detriment of its obligations under international law. This preeminence of the Constitution over any treaty i s not hard to explain. The Constitution is the act of the people from whom sove reignty emanates. It reflects the popular will. A treaty, on the other hand, i s merely negotiated by the treaty-making authority. Surely a few good men, them selves mere delegates of the sovereign people, cannot be permitted to thwart the intent of the Constitution. An agent could never go beyond the mandate of the agency under whose authority he acts. The 1987 Constitution has its own standards for the grant of bail. No country is under any legal obligation to adopt, or blindly be in conf ormity with, procedures from other jurisdictions. The proposed solution of deve loping a special circumstances standard in determining whether bail should be gran ted or not, following what could be considered to be mere pro hac vice pronounce ments of some foreign courts, might not be apropos. Indeed, setting up the so-c alled special circumstances standard would be to ignore our own constitutional man date on bail. Section 13, Article III of the 1987 Constitution clearly sets the parame ters for the judicial exercise of the grant of bail x x x. Starting with the de claration that the right to bail is available to all persons, the Constitution p roceeds to define its exceptions and qualifications --- 1) when a criminal offen se is a capital one and the evidence of guilt is strong, and 2) when granted the bail shall not be excessive. The circumstance of high risk of flight upon which the main decision anchors its refusal to grant bail is conspicuously absent from the recital. The English Amendment of the US Federal Constitution, unlike the Philippine Constitution, does not categorically provide for bail as a matter of right. Thus, wrestling with the compatibility of the grant of bail in extraditi on proceedings with basic constitutional guarantees, which US judges have been f aced with, should not be our dilemma. Extradition proceedings are part of the criminal process. Verily, an extradition proceeding before the extradition court forms a p art of the criminal process. It is predicated on a criminal indictment of an ex traditee. Like any criminal proceeding, it ultimately ends in either conviction or acquittal for the potential extraditee. Except for the reality that it invo lves two sovereign states, at least, extradition proceedings before the extradit ion court can be likened to the preliminary investigation conduced before an inv estigating fiscal. Like the investigating fiscal, the judge acting in an extrad

ition proceeding does not rule on the issue of guilt or innocence of the potenti al extraditee, his main concern being the determination of whether a prima facie cases exists against the potential extraditee [51]. Stated otherwise, both pro ceedings are an inquiry into whether a person should stand trial [52]. The righ t to a preliminary investigation is a component part of due process in the crimi nal justice system. The initial findings of the investigating fiscal, which may result in a dismissal of the case, could spare the respondent from hasty malici ous prosecution, as well as the resultant prolonged anxiety, aggravation and hum iliation, that a protracted trial brings. In the same vein, the extradition pro cess can result in an extended restraint of liberty following arrest that can ev en be more severe than the accompanying detention within a single state [53]. E xtradition involves, at minimum, administrative proceedings in both the asylum s tate and the demanding state and a forced transportation in between [54]. Thus, the rules governing the extradition process should not be viewed as existing in a vacuum, totally divergent and isolated from the entire criminal process of wh ich it, in fact, forms part. Indubitably, bail is available in this country eve n in the preliminary investigation stage. The eligibility for bail exists once the person is placed under legal custody regardless of whether a complaint or in formation has been filed or yet to be filed in court against him [55]. In sum, I yield to the following submissions: a) The obligation to extradite does not find basis in customary internati onal law, nor is it a generally accepted principle of international law, the com mitment to extradite being dependent, by and large, on an extradition treaty bet ween two sovereign states. b) There is an absence of a universal or uniform extradition practice applica ble to all states. This lack of a standard extradition procedure should mean that the Philippines is not obligated to follow extradition practices from other jur isdictions, particularly when its own Constitution itself has provided for such standards. c) A treaty, entered into by the delegated authority, although occupying an elevated status in the hierarchy of laws predicated on the principle of pacta sunt servanda, cannot override the Constitution, the latter being the ultimate expression of the will of the People, from whom all sovereignty emanates. In ca se of conflict, the Constitution must prevail. WHEREFORE, I vote to grant the motion for reconsideration. Republic of the Philippines v. Manila Electric Company G.R. No. 141314, November 15, 2002 3rd Div. [Puno] In third world countries like the Philippines, equal justice will have a synthetic ring unless the economic rights of the people, especially the poor, a re protected with the same resoluteness as their right to liberty. The cases at bar are of utmost significance for they concern the right of our people to elec tricity and to be reasonably charged for their consumption. In configuring the contours of this economic right to a basic necessity of life, the Court shall de fine the limits of the power of respondent MERALCO, a giant public utility and a monopoly, to charge our people for their electric consumption. The question is : should public interest prevail over private profits? X x x We grant the petition. The regulation of rates to be charged by public utilities is founded upo

n the police power of the State and statutes prescribing rules for the control a nd regulations of public utilities are a valid exercise thereof. When private p roperty is used for a public purpose and is affected with public interest, it ce ases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to regulation may be withdrawn by th e owner by discontinuing use; but as long as the use of the property is continue d, the same is subject to public regulation (Munn v. People of the State of Illi nois, 94 U.S. 113, 126 [1877]). In regulating rates charged by public utilities, the State protects the public against arbitrary and excessive rates while maintaining the efficiency an d quality of services rendered. However, the power to regulate rates does not g ive the State the right to prescribe rates which are so low as to deprive the pu blic utility of a reasonable return on investment. Thus, the rates prescribed b y the State must be one that yields a fair return on the public utility upon the value of the property performing the service and one that is reasonable to the public for the service rendered (IV A.F. Agbayani, Commentaries and Jurisprudenc e on the Commercial Laws of the Philippines 500 [1993]). The fixing of just and reasonable rates involves a balancing of the investor and the consumer interest s (Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591). In his famous dissenting opinion in the 1923 case of Southwestern Bell T el. Co. v. Public Service Commission (262 U.S. 290-291, 43 S. Ct. 544, 547 [1923 ]), Mr. Justice Brandeis wrote: The thing devoted by the investor to the public use is not specific proper ty, tangible and intangible, but capital embarked in an enterprise. Upon the ca pital so invested, the Federal Constitution guarantees to the utility the opport unity to earn a fair return x x x. The Constitution does not guarantee to the u tility the opportunity to earn a return on the value of all items of property us ed by the utility, or of any of them. X x x The investor agrees, by embarking capital in a utility, that its charges to the public shall be reasonable. His company is the substitute for the State in the performance of the public service, thus becoming a public servant. The c ompensation which the Constitution guarantees an opportunity to earn is the reas onable cost of conducting the business. While the power to fix rates is a legislative function, whether exercise d by the legislature itself or delegated through an administrative agency, a det ermination of whether the rates so fixed are reasonable and just is a purely jud icial question and is subject to the review of the courts (IV A.F. Agbayani, Com mentaries and Jurisprudence on the Commercial Laws of the Philippines 500 [1993] , citing Ynchausti SS Co. v. Public Utility Commission, 42 Phil. 624 and Manila Electric Co. v. De Vera, et al., 66 Phil. 161). The ERB was created under Executive Order No. 172 to regulate, among oth ers, the distribution of energy resources and to fix rates to be charged by publ ic utilities involved in the distribution of electricity. In the fixing of rate s, the only standard which the legislature is required to prescribe for the guid ance of the administrative authority is that the rate be reasonable and just. I t has been held that even in the absence of an express requirement as to reasona bleness, this standard may be implied (Philippine Communications Satellite Corpo ration v. Alcuaz, et al., 180 SCRA 218, 226 [1989]). What is a just and reasona ble rate is a question of fact calling for the exercise of discretion, good sens e, and a fair, enlightened and independent judgment. The requirement of reasona bleness comprehends such rates which must not be so low as to be confiscatory, o r too high as to be oppressive. In determining whether a rate is confiscatory,

it is essential also to consider the given situation, requirements and opportuni ties of the utility (Id. at 232). Settled jurisprudence holds that factual findings of administrative bodi es on technical matters within their area of competence should be accorded not o nly respect but even finality if they are supported by substantial evidence even if not overwhelming or preponderant (Casa Filipina Realty Corporation v. Office of the President, 241 SCRA 165 [1995]). In one case (Batangas Transportation C ompany, et al. v. Laguna Transportation Company, 104 Phil. 992 [1958]), we cauti oned that courts should refrain from substituting their discretion on the weight of the evidence for the discretion of the Public Service Commission on questions of fact and will only reverse or modify such orders of the Public Service Commi ssion when it really appears that the evidence is insufficient to support their conclusions. (Id., citing Manila Yellow Taxicab Co. and Acro Taxicab Co. v. Danon , 58 Phil. 75 [1993]) In the cases at bar, findings and conclusions of the ERB on the rate tha t can be charged by MERALCO to the public should be respected (Province of Zambo anga del Norte v. Court of Appeals, 342 SCRA 549, 560 [2000]). The function of the court, in exercising its power of judicial review, is to determine whether u nder the facts and circumstances, the final order entered by the administrative agency is unlawful or unreasonable (City of Cincinnati v. Public Utilities Commi ssion, 90 N.E. 2d 681 [1950]). Thus, to the extent that the administrative agen cy has not been arbitrary or capricious in the exercise of its power, the time-h onored principle is that courts should not interfere. The principle of separati on of powers dictates that courts should hesitate to review the acts of administ rative officers except in clear cases of grave abuse of discretion (A. Sibal, Ad ministrative Law 145 [1999]). In determining the just and reasonable rates to be charged by a public u tility, three major factors are considered by the regulating agency: a) rate of return; b) rate base and c) the return itself or the computed revenue to be earn ed by the public utility based on the rate of return and rate base (P. Garfield and W. Lovejoy, Public Utility, p. 116). The rate of return is a judgment perce ntage which, if multiplied with the rate base, provides a fair return on the pub lic utility for the use of its property or service to the public (Nichols and We lch, Ruling Principles of Utility Regulations, Rate of Return, Supp. A, 1 [1964] ). The rate of return of a public utility is not prescribed by statute but by a dministrative and judicial pronouncements. This Court has consistently adopted a 12% rate of return for public utilities (Manila Electric Company v. Public Ser vice Commission, 18 SCRA 651, 665-666 [1966]). The rate base, on the other hand , is an evaluation of the property devoted by the public utility to the public s ervice or the value of invested capital or property which the utility is entitle d to a return (Susan F. Fendell, Public Ownership of Public Utilities: Have Stoc kholders Outlived Their Useful Economic Lives?, 43 Ohio St. L. J. 821 [1982]; 64 Am Jur 2d Sec. 138). In the cases at bar, the resolution of the issues involved hinges on the determination of the kind and the amount of operating expenses that should be a llowed to a public utility to generate a fair return and the proper valuation of the rate base or the value of the property entitled to a return. I Income Tax as Operating Expense Cannot be Allowed For Rate-Determination Purpo ses In determining whether or not a rate yields a fair return to the utility , the operating expenses of the utility must be considered. The return allowed to a public utility in accordance with the prescribed rate must be sufficient to provide for the payment of such reasonable operating expenses incurred by the p ublic utility in the provision of its service to the public. Thus, the public u

tility is allowed a return on capital over and above operating expenses. Howeve r, only such expenses and in such amounts as are reasonable for the efficient op eration of the utility should be allowed for determination of the rates to be ch arged by a public utility. The ERB correctly ruled that income tax should not be included in the co mputation of operating expenses of a public utility. Income tax paid by a publi c utility is consistent with the nature of operating expenses. In general, oper ating expenses are those which are reasonably incurred in connection with busine ss operations to yield revenue or income. They are items of expenses which cont ribute or are attributable to the production of income or revenue. As correctly put by the ERB, operating expenses should be a requisite of or necessary in the operation of a utility, recurring, and that it redounds to the service or benefi t of customers. Income tax, it should be stressed, is imposed on an individual or entity as a form of excise tax or a tax on the privilege of earning income (H. De Leon, The Fundamentals of Taxation 79 [1993]). In exchange for the protection extend ed by the State to the taxpayer, the government collects taxes as a source of re venue to finance its activities. Clearly, by its nature, income tax payments of a public utility are not expenses which contribute to or are incurred in connec tion with the production of profit of a public utility. Income tax should be bo rne by the taxpayer alone as they are payments made in exchange for benefits rec eived by the taxpayer from the State. No benefit is derived by the customers of a public utility for the taxes paid by such entity and no direct contribution i s made by the payment of income tax to the operation of a public utility for pur poses of generating revenue or profit. Accordingly, the burden of paying income tax should be MERALCO s alone and should not be shifted to the consumers by inclu ding the same in the computation of its operating expenses. The principle behind the inclusion of operating expenses in the determin ation of a just and reasonable rate is to allow the public utility to recoup the reasonable amount of expenses it has incurred in connection with the services i t provides. It does not give the public utility the license to indiscriminately charge any and all types of expenses incurred without regard to the nature ther eof, i.e., whether or not the expense is attributable to the production of servi ces to the public utility. To charge consumers for expenses incurred by a publi c utility which are not related to the service or benefit derived by the custome rs from the public utility is unjustified and inequitable. While the public utility is entitled to a reasonable return on the fair value of the property being used for the service of the public, no less than the Federal Supreme Court of the United States emphasized: [t]he public cannot prope rly be subjected to unreasonable rates in order simply that stockholders may ear n dividends x x x. If a corporation cannot maintain such a [facility] and earn dividends for stockholders, it is a misfortune for it and them which the Constit ution does not require to be remedied by imposing burdens on the public. (Smyth v . Ames, 169 U.S. 466, 545 [1898]) We are not impressed by the reliance by MERALCO on some American case la w allowing the treatment of income tax paid by a public utility as operating exp ense for rate-making purposes. Suffice to state that with regard to rate-determ ination, the government is not hidebound to apply any particular method or formu la (Republic v. Medina, 41 SCRA 643, 662 [1971]; 64 Am Jur 2d 666). The questio n of what constitutes a reasonable return for the public utility is necessarily determined and controlled by its peculiar environmental milieu. Aside from the financial condition of the public utility, there are other critical factors to c onsider for purposes of rate regulation. Among others, they are: particular rea sons involved for the request of the rate increase, the quality of services rend ered by the public utility, the existence of competition, the element of risk of

hazard involved in the investment, the capacity of consumers, etc. (II O Pond, Public Utilities 1037-1038 [1932]). Rate regulation is the art of reaching a re sult that is good for the public utility and is best for the public. For these reasons, the Court cannot give in to the importunings of MERAL CO that we blindly apply the rulings of American courts on the treatment of inco me tax as operating expenses in rate regulation cases. An approach allowing the indiscriminate inclusion of income tax payments as operating expenses may creat e an undesirable precedent and serve as a blanket authority for public utilities to charge their income tax payments to operating expenses and unjustly shift th e tax burden to the customer. To be sure, public utility taxation in the United States is going through the eye of criticism. Some commentators are of the vie w that by allowing the public utility to collect its income tax payment from its customers, a form of sales tax is, in effect, imposed on the public for consumpti on. By charging their income tax payments to their customers, public utilities virtually become tax collectors rather than taxpayers (P. Garfield and W. Lovejoy, Public Utility Economics 386, 393 [1964]). In the cases at bar, MERALCO has no t justified why its income tax should be treated as an operating expense to enab le it to derive a fair return for its services. It is also noteworthy that under American laws, public utilities are tax ed differently from other types of corporations and thus carry a heavier tax bur den. Moreover, different types of taxes, charged, tolls or fees are assessed on a public utility depending on the state or locality where it operates. At a fe deral level, public utilities are subject to corporate income taxes and Social S ecurity taxes in the same manner as other business corporations. At the state a nd local levels, public utilities are subject to a wide variety of taxes, not al l of which are imposed on each state. Thus, it is not unusual to find different taxes or combinations of taxes applicable to respective utility industries with in a particular state (Id. at 385-386). A significant aspect of state and local taxation of public utilities in the United States is that they have been single d out for special taxation, i.e., they are required to pay one or more taxes tha t are not levied upon other industries. In contrast, in this jurisdiction, publ ic utilities are subject to the same tax treatment as any other corporation and local taxes paid by it to various local government units are substantially the s ame. The reason for this is that the power to tax resides in our legislature wh ich may prescribe the limits of both national and local taxation, unlike in the federal system of the United States where state legislature may prescribe taxes to be levied in their respective jurisdictions. MERALCO likewise cites decisions of the ERB (Cotabato Light & Power Plant [ERB Case No. 91-70]; Davao Light & Power Co., Inc. [ERB Case No. 92-105]; and San Fernando Electric Light & Power Co., Inc. [ERB Case No. 97-11]) allowing the application of a tax recovery clause for the imposition of an additional charge on consumers for taxes paid by the public utility. A close look at these decis ions will show they are inappropos. In the said cases, the ERB approved the ado ption of a formula which will allow the public utility to recover from its custo mers taxes already paid by it. However, in the cases at bar, the income tax com ponent added to the operating expenses of a public utility is based on an estima te or approximate figure of income tax to be paid by the public utility. It is this estimated amount of income tax to be paid by MERALCO which is included in t he amount of operating expenses and used as basis in determining the reasonable rate to be charged to the customers. Accordingly, the varying factual circumsta nces in the said cases prohibit a square application of the rule under the previ ous ERB decisions. II Use of Net Average Investment Method is Not Unreasonable

In the determination of the rate base, property used in the operation of the public utility must be subject to appraisal and evaluation to determine the

fair value thereof entitled to a fair return. With respect to those properties which have not been used by the public utility for the entire duration of the t est year, i.e., the year subject to audit examination for rate-making purposes, a valuation methods must be adopted to determine the proportionate value of the property. Petitioners maintain that the net average investment method (also kno wn as actual number of months use method ) recommended by COA and adopted by the ER B should be used, while MERALCO argues that the average investment method (also known as the trending method ) to determine the proportionate value of properties s hould be applied. Under the net average investment method, properties and equipment used in the operation of a public utility are entitled to a return only on the actual nu mber of months they are in service during the period (Section 608 [7], Article I X of the National Accounting and Auditing Manual). In contrast, the average inve stment method computes the proportionate value of the property by adding the valu e of the property at the beginning and at the end of the test year with the resu lting sum divided by two. The ERB did not abuse its discretion when it applied the net average inv estment method. The reasonableness of net average investment method is borne by the records of the case. In its report, the COA explained that the computation of the proportionate value of the property and equipment in accordance with the actual number of months such property or equipment is in service for purposes o f determining the rate base is favored, as against the trending method employed by MERALCO, to reflect the real status of the property. By using the net average investment method, the ERB and the COA considered for determination of the rate base the value of properties and equipment used by MERALCO in proportion to the period that the same were actually used during the period in question. This tre atment is consistent with the settled rule in rate regulations that the determin ation of the rate base of a public utility entitled to a return must be based on properties and equipment actually being used or are useful to the operations of the public utility (II O. Pond, Public Utilities 1154 [1932]). MERALCO does not seriously contest this treatment of actual usage of pro perty but opposes the method of computation or valuation thereof adopted by the ERB and the COA on the ground that the net average investment method assumes an i deal situation where a utility, like MERALCO, is able to record in its books wit hin any given month the value of all the properties actually placed in service d uring that month. MERALCO contends that immediate recordal in its books of the p roperty and equipment is not possible as MERALCO s franchise covers a wide area an d that due to the volume of properties and equipment put into service and the am ount of paper work required to be accomplished for recording in the books of the company, it takes three to six months (often longer) before an asset placed in s ervice is recorded in the books of MERALCO. Hence, MERALCO adopted the average in vestment method or the trending method which computes the average value of the prop erty at the beginning and at the end of the test year to compensate for the irre gular recording in its books. MERALCO s stance is belied by the COA Report which states that the verifica tion of the records, as confirmed by the Management Staff, disclosed that proper ties are recorded in the books as these are actually placed in service. Moreover , while the case was pending trial before the ERB, the ERB conducted an ocular i nspection to examine the assets in service, records and books of accounts of MER ALCO to ascertain the physical existence, ownership, valuation and usefulness of the assets contained in the COA Report. Thus, MERALCO s contention that the date of recordal in the books does not reflect the date when the asset is placed in service is baseless. Further, computing the proportionate value of assets used in service in accordance with the actual number of months the same is used during the test yea

r is a more accurate method of determining the value of the properties of a publ ic utility entitled to a return. If, as determined by COA, the date of recordal in the books of MERALCO reflects the actual date the equipment or property is u sed in service, there is no reason for the ERB to adopt the trending method appl ied by MERALCO if a more precise method is available for determining the proport ionate value of the assets placed in service. If we were to sustain the application of the trending method, the public u tility may easily manipulate the valuation of its property entitled to a return (rate base) by simply including a highly capitalized asset in the computation of the rate base even if the same was used for a limited period of time during the test year. With the inexactness of the trending method and the possibility tha t the valuation of certain properties may be subject to the control of and abuse by the public utility, the Court finds no reasonable basis to overturn the reco mmendation of COA and the decision of the ERB. MERALCO further insists that the Court should sustain the trending method in view of previous decisions by the Public Service Commission and of this Court which upheld the use of this method. By refusing to adopt the trending method, M ERALCO argues that the ERB violated the rule on stare decisis. Again, we are not impressed. It is a settled rule that the goal of rate -making is to arrive at a just and reasonable rate for both the public utility a nd the public which avails of the former s products and services (Rate-Making for Public Utilities, 169 SCRA 175, 192 [1989]). However, what is a just and reason able rate cannot be fixed by any immutable method or formula. Hence, it has bee n held that no public utility has a vested right to any particular method of val uation (64 Am Jur 2d, 666-667). Accordingly, with respect to a determination of the proper method to be used in the valuation of property and equipment used by a public utility for rate-making purposes, the administrative agency is not bou nd to apply any one particular formula or method simply because the same method has been previously used and applied. In fact, nowhere in the previous decision s cited by MERALCO which applied the trending method did the Court rule that the same should be the only method to be applied in all instances. At any rate, MERALCO has not adequately shown that the rates prescribed by the ERB are unjust or confiscatory as to deprive its stockholders a reasonabl e return on investment. In the early case of Ynchausti S.S. Co. v. Public Utili ty Commissioner, this Court held: [t]here is a legal presumption that the rates f ixed by an administrative agency are reasonable, and it must be conceded that th e fixing of rates by the Government, through its authorized agents, involves the exercise of reasonable discretion and, unless there is an abuse of that discret ion, the courts will not interfere. (42 Phil. 621 [1922]) Thus, the burden is up on the oppositor, MERALCO, to prove that the rates fixed by the ERB are unreason able or otherwise confiscatory as to merit the reversal of the ERB. In the inst ant cases, MERALCO was unable to discharge this burden. Atty. Miguel M. Lingating v. Commission on Elections and Cesar B. Sulong G.R. No . 153475, November 13, 2002 En Banc [Mendoza] On May 3, 2001, petitioner filed with the Provincial Election Supervisio n (sic) in Pagadian City a petition for the disqualification of respondent Sulon g, pursuant to Sec. 40[b] of Republic Act No. 7160 (Local Government Code), whic h disqualifies from running for any elective local position those removed from of fice as a result of an administrative case. It appears that respondent Sulong ha d previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for dis qualification, petitioner alleged that in 1991, during his first term as mayor o

f Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and se veral other individuals, was administratively charged (AC No. 12-91) with variou s offenses, and that, on February 4, 1992, the Sangguniang Panlalawigan of Zambo anga del Sur found him guilty of the charges and ordered his removal from office . Petitioner claimed that this decision had become final and executory, and con sequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992. Respondent Sulong denied that the decision in AC No. 12-91 had become fi nal and executory. He averred that after receiving a copy of the decision on Fe bruary 17, 1992, he filed a motion for reconsideration and/or notice of appeal t hereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalaw igan required Jim Lingating, the complainant in AC No. 12-91, to comment on resp ondent Sulong s motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulong s) motion ha d consequently remained pending. Respondent Sulong denied he had been removed f rom office by virtue of the decision in AC No. 12-91. X x x Petitioner contends that the COMELEC en banc erred in applying the rulin g in Aguinaldo v. Commission on Elections (212 SCRA 768 [1992]) in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sa ngguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commissi on on Elections (254 SCRA 514, 525-526 [1996]) in which we held that an elective local executive officer, who is removed before the expiration of the term for w hich he was elected, is disqualified from being a candidate for a local elective position under Section 40[b] of the Local Government Code. We stated in Reyes: Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was he ld that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer s pre vious misconduct to the extent of cutting-off the right to remove him therefore. But that was because in that case, before the petition questioning the validit y of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal ca nnot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected [for] another term. This is th e rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, x x x the dec ision in the administrative case x x x was served on petitioner and it thereafte r became final on April 3, 1995, because petitioner failed to appeal to the Offi ce of the President. He was thus validly removed from office and, pursuant to S ec. 40[b] of the Local Government Code, he was disqualified from running for ree lection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to Sec. 40[b] which disqualified any person from runnin g for any elective position on the ground that he has been removed as a result o f an administrative case. The Local Government Code of 1991 (R.A. No. 7160) cou ld not be given retroactive effect. However, Reyes cannot be applied to this case because it appears that the 1992 d ecision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dis honesty, falsification and malversation of public funds, has not until now becom

e final. X x x. The filing of his motion for reconsideration prevented the dec ision of Sangguniang Panlalawigan from becoming final. While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition aga inst the filing of a motion for reconsideration. Thus, it was held (Halimao v. Villanueva, 253 SCRA 196 [1996]) that a party in a disbarment proceeding under R ule 139-B, Sec. 12[c] can move for a reconsideration of a resolution of the Inte grated Bar of the Philippines although Rule 139-B does not so provide x x x. There is thus no decision finding respondent guilty to speak of. As Pro vincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sanggun iang Panlalawigan simply considered the matter as having become moot and academi c because it was overtaken by the local elections of May [11], 1992. Neither can the succession of the then vice-mayor of Lapuyan x x x and t he highest ranking municipal councilor of Lapuyan x x x to the offices of mayor and vice-mayor, respectively, be considered proof that the decision in AC No. 12 -91 had become final because it appears to have been made pursuant to Sec. 68 of the Local Government Code, which makes decisions in administrative cases immedi ately executory. Indeed, considering the failure of the Sangguniang Panlalawigan to resol ve respondent s motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since at the time of the elections on May 14, 2001, the decision of the Sangguniang Pa nlalawigan had been rendered nearly ten years ago. X x x WHEREFORE, the petition for certiorari is DISMISSED and the resolution, dated April 4, 2002, of the COMELEC en banc, dismissing petitioner s petition for disqualification, is AFFIRMED. Commission on Elections v. Judge Ma. Luisa Quijano-Padilla G.R. No. 151992, Sept ember 18, 2002 En Banc [Sandoval-Gutierrez] The case at bar provides us with another occasion to stress that with re spect to government contracts, statutes take precedence over the public officers freedom to contract. Here, the primordial question to be resolved is may a succ essful bidder compel a government agency to formalize a contract with it notwith standing that its bid exceeds the amount appropriated by Congress for the projec t? X x x Enshrined in the 1987 Philippine Constitution is the mandate that no mone y shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Sec. 29[1], Article VI of the 1987 Constitution) Thus, in the executio n of government contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appro priations made by law for each fiscal year. Complementary to the foregoing constitutional injunction are pertinent p rovisions of law and administrative issuances that are designed to effectuate th e above mandate in a detailed manner x x x. It is quite evident from the tenor of the language of the law that the e xistence of appropriations and the availability of funds are indispensable pre-r

equisites to or conditions sine qua non for the execution of government contract s. The obvious intent is to impose such conditions as a priori requisites to t he validity of the proposed contract (Fernandez, A Treatise on Government Contra cts Under Philippine Law, 2001, pp. 40-41). Using this as our premise, we canno t accede to PHOTOKINA s contention that there is already a perfected contract. Wh ile we held in Metropolitan Manila Development Authority v. Jancom Environmental Corporation (Supra) that the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to th e bidder, however, such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made (64 Am Jur 2d Sec. 11). This is a d angerous precedent. In the case at bar, there seems to be an oversight of the legal requirem ents as early as the bidding stage. The first step of a Bids and Awards Committ ee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid passed only if it complies with all the requirements and the sub mitted price does not exceed the approved budget for the contract. (Implementing Rules and Regulations [IRR] for Executive Order No. 262, supra.) Extant on the record is the fact that the VRIS Project was awarded to PH OTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, u nder Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra. ), the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract wit h PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should have rejected the bid for bei ng excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void. The objections of then Chairman Demetriou to the implementation of the V RIS Project, ardently carried on by her successor Chairman Benipayo, are therefo re in order. Even the draft contract submitted by Commissioner Sadain, that provides for a contract price in the amount of P1.2 Billion Pesos is unacceptable. Indee d, we share the observation of former Chairman Demetriou that it circumvents the statutory requirements on government contracts. While the contract price under the draft contract is only P1.2 Billion and, thus, within the certified availab le funds, the same covers only Phase I of the VRIS Project, i.e., the issuance o f identification cards for only 1,000,000 voters in specified areas (Ibid., p. 3 82). In effect, the implementation of the VRIS Project will be segmented or choppe d into several phases. Not only is such arrangement disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the unc ertainty that will loom over its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount necessary for the compl etion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed to sell with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELEC s request for the issuance of the Notice of Cash Availability (NCA) an d a multi-year obligatory authority to assume payment of the total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no age ncy shall enter into a multi-year contract without a multi-year obligational aut hority, thus: SECTION 33. Contracting Multi-Year Projects. - In the implementation of

multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Managem ent for the purpose. Notwithstanding the issuance of the multi-year Obligationa l Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the amount programmed for implementation during said calendar yea r. Petitioners are justified in refusing to formalize the contract with PHO TOKINA. Prudence dictated them not to enter into a contract not backed up by su fficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullit y. In Osmena v. Commission on Audit (230 SCRA 585, 589-590 [1994]), this Court held: The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefore and the proper accounting official of the ag ency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and the amount necessary to cover the proposed contract for the current fiscal year is available for exp enditure on account thereof. Any contract entered into contrary to the foregoin g requirements shall be VOID. Clearly then, the contract entered into by the former Mayor Duterte was vo id from the very beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly declared void and unenforceable in COA s 2nd Indorsement, dated September 4, 1986. The COA declared and we agree, t hat: The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and mandatory. Fund availability is, as it has always been, an ind ispensable prerequisite to the execution of any government contract involving th e expenditure of public funds by all government agencies at all levels. Such co ntracts are not to be considered as final or binding unless such a certification as to funds availability is issued (Letter of Instruction No. 767, s. 1978). A ntecedent of advance appropriation is thus essential to government liability on contracts (Zobel v. City of Manila, 47 Phil. 169). This contract being violativ e of the legal requirements aforequoted, the same contravenes Sec. 85 of PD 1445 and is null and void by virtue of Sec. 87. Verily, the contract, as expressly declared by law, is inexistent and vo id ab initio (Article 1409 of the Civil Code of the Philippines). This is to sa y that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification (Manila Lodge v. Court of Appeals, 73 SCRA 162 [1976]; See also Tongoy v. Court of Appeals, 123 SCRA 99 [1 983]). Of course, we are not saying that the party who contracts with the gover nment has no other recourse in law. The law itself affords him the remedy. Sec tion 48 of E.O. No. 292 explicitly provides that any contract entered into contr ary to the above-mentioned requirements shall be void, and the officers entering into the contract shall be liable to the Government or other contracting party f or any consequent damage to the same as if the transaction had been wholly betwe en private parties. So when the contracting officer transcends his lawful and le gitimate powers by acting in excess of or beyond the limits of his contracting a uthority, the Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds himself, and thus , assumes personal liability thereunder. (Fernandez, a Treatise on Government Co

ntracts Under Philippine Law, 2001, supra., pp. 22-23). Otherwise stated, the p roposed contract is unenforceable as to the Government. While this is not the proceeding to determine where the culpability lies , however, the constitutional mandate cited above constrains us to remind all pu blic officers that public office is a public trust and all public officers must at all times be accountable to the people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsi bility. In the exercise of their contracting prerogative, they should be the fi rst judges of the legality, propriety and wisdom of the contract they entered in to. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action (Rivera v. Maclang, 7 SCRA 57 [1963]). In fine, we rule that PHOTOKINA, though the winning bidder, cannot compe l the COMELEC to formalize the contract. Since PHOTOKINA s bid is beyond the amou nt appropriated by Congress for the VRIS Project, the proposed contract is not b inding upon the COMELEC and is considered void x x x. Arthur D. Lim and Paulino R. Ersando v. Honorable Executive Secretary G.R. No. 1 51445, April 11, 2002 En Banc [De Leon] This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents be restrained from proceedi ng with the so-called Balikatan 02-1 and that after due notice and hearing, that j udgment be rendered issuing a permanent writ of injunction and/or prohibition ag ainst the deployment of U.S. troops in Basilan and Mindanao for being illegal an d in violation of the Constitution. X x x Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving in Mindanao to take part, in conju nction with the Philippine military, in Balikatan 02-1. These so-called Balikatan xercises are the largest combined training operations involving Filipino and Ame rican troops. In theory, they are a simulation of joint military maneuvers purs uant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippine and the United States in 1951. Prior to the year 2002, the last Balikatan was held in 1995. This was due to the paucity of any formal agreement relative to the treatment of United Stat es personnel visiting the Philippines. In the meantime, the respective governme nts of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded the Visit ing Forces Agreement (VFA) in 1999. The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. Bus h in reaction to the tragic events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown and smashed into the t win towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ( the Base ), a Muslim extremist organization headed by the infamous Osama Bin Laden. Of no co mparable historical parallels, these acts caused billions of dollars worth of de struction of property and incalculable loss of hundreds of lives. X x x The holding of Balikatan 02-1 must be studied in the framework of the trea

ty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the cor e of the defense relationship between the Philippines and its traditional ally, t he United States. Its aim is to enhance the strategic and technological capabil ities of our armed forces through joint training with its American counterparts; the Balikatan is the largest such training exercise directly supporting the MDT s o bjectives. It is this treaty to which the VFA adverts and the obligations there under which it seeks to reaffirm. The lapse of the US-Philippine Bases Agreement in 1992 and the decision n ot to renew it created a vacuum in US-Philippine defense relations, that is, unt il it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court upheld the validi ty of the VFA (BAYAN, et. Al. v. Zamora, et. al., 342 SCRA 449 [2000]). The VFA provides the regulatory mechanism by which United States military and civilian per sonnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government. It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircr aft, as well as the duration of the agreement and its termination. It is the VF A which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between Ameri can and Philippine military forces in the event of an attack by a common foe. The first question that should be addressed is whether Balikatan 02-1 is co vered by the Visiting Forces Agreement. To resolve this, it is necessary to ref er to the VFA itself. Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits U nited States personnel to engage, on an impermanent basis, in activities, the exac t meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine gove rnment. The sole encumbrance placed on its definition is couched in the negativ e, in that United States personnel must abstain from any activity inconsistent wi th the spirit of this agreement, and in particular, from any political activity. All other activities, in other words, are fair game. We are not completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state x x x. It is clear from the foregoing that the cardinal rule of interpretation m ust involve an examination of the text, which is presumed to verbalize the parti es intentions. The Convention likewise dictates what may be used as aids to dedu ce the meaning of terms, which it refers to as the context of the treaty, as wel l as other elements may be taken into account alongside the aforesaid context. X x x The Terms of Reference rightly fall within the context of the VFA. After studied reflection, it appeared farfetched that the ambiguity surro unding the meaning of the word activities arose from accident. In our view, it wa s deliberately made that way to give both parties a certain leeway in negotiatio n. In this manner, visiting US forces may sojourn in Philippine territory for p urposes other than military. As conceived, the joint exercises may include trai ning on new techniques of patrol and surveillance to protect the nation s marine r esources, sea search-and-destroy operations to assist vessels in distress, disas ter relief operations, civic action projects such as the building of school hous es, medical and humanitarian missions, and the like. Under these auspices, the VFA gives legitimacy to the current Balikatan e

xercises. It is only logical to assume that Balikatan 02-1, a mutual anti-terroris m advising, assisting and training exercise, falls under the umbrella of sanction ed or allowable activities in the context of the agreement. Both the history an d intent of the Mutual Defense Treaty and the VFA support the conclusion that co mbat-related activities as opposes to combat itself such as the one subject of t he instant petition, are indeed authorized. That is not the end of the matter, though. Granted that Balikatan 02-1 is permitted under the terms of the VFA, what may US forces legitimately do in furt herance of their aim to provide advice, assistance and training in the global ef fort against terrorism? Differently phrased, may American troops actually engag e in combat in Philippine territory? The Terms of Reference are explicit enough . Paragraph 8 of section I stipulates that US exercise participants may not eng age in combat except in self-defense. We wryly note that this sentiment is admira ble in the abstract but difficult in implementation. The target of Balikatan 021, the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose thei r targets for they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim Nemo potest facere per alium quod non potest facere per d irectum. ( No one is allowed to do indirectly what he is prohibited to do directly. ) The indirect violation is actually petitioners worry, that in reality, Balikatan 02-1 is actually a war principally conducted by the United States government, an d that the provision on self-defense serves only as camouflage to conceal the tr ue nature of the exercise. A clear pronouncement on this matter thereby becomes crucial. In our considered opinion, neither the MDT nor the VFA allow foreign troo ps to engage in an offensive war on Philippine territory. We bear in mind the s alutary proscription stated in the Charter of the United Nations x x x. In the same manner, both the Mutual Defense Treaty and the Visiting Force s Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. I n particular, the Mutual Defense Treaty was concluded way before the present Cha rter, though it nevertheless remains in effect as a valid source of internationa l obligation. The present Constitution contains key provisions useful in determ ining the extent to which foreign military troops are allowed in Philippine terr itory. X x x The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that [n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the member s of the Senate. (Sec. 21, Art. VII) Even more pointedly, the Transitory Provisi ons state: Sec. 25. After the expiration in 1991 of the Agreement between the Repub lic of the Philippines and the United States of America concerning Military Base s, foreign military bases, troops or facilities shall not be allowed in the Phil ippines except under a treaty duly concurred in by the Senate and, when the Cong ress so requires, ratified in a majority of the votes cast by the people in a na tional referendum held for that purpose, and recognized as a treaty by the other contracting state. The aforequoted provisions betray a marked antipathy towards foreign mili tary presence in the county, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising fr om international agreements.

A recent formulation of the relation of international law vis--vis municip al law was expressed in Philip Morris, Inc. v. Court of Appeals (224 SCRA 576, 5 93 [1993]), to wit: x x x Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law ove r national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal , not superior, to national legislation. This is not exactly helpful in solving the problem at hand since in trying to fi nd a middle ground, it favors neither one law nor the other, which only leaves t he hapless seeker with an unsolved dilemma. Other more traditional approaches m ay offer valuable insights. From the perspective of public international law, a treaty is favored ov er municipal law pursuant to the principle of pacta sunt servanda. Hence, [e]ver y treaty in force is binding upon the parties to it and must be performed by the m in good faith. (Vienna Convention on the Law of Treaties, Art. 26) Further, a party to a treaty is not allowed to invoke the provisions of its internal law as justification for its failure to perform a treaty. (Id., Art. 27. However, this is without prejudice to the provisions of Art. 46 of the Convention x x x.) Our Constitution espouses the opposing view. Witness our jurisdiction a s stated in Section 5 of Article VIII x x x. In Ichong v. Hernandez (101 Phil. 1155, 1191 [1957]), we ruled that pro visions of a treaty are always subject to qualification or amendment by a subseq uent law, or that it is subject to the police power of the State. In Gonzales v . Hechanova (9 SCRA 230, 242 [1963]), x x x as regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philip pines has clearly settled it in the affirmative, by providing, in Section 2 of A rticle VIII thereof, that the Supreme Court may not be deprived of its jurisdicti on to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decre es of inferior courts in (1) All cases in which the constitutionality or validit y of any treaty, law, ordinance, or executive order or regulation is in question . In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counte r to an act of Congress. The foregoing premises leave no doubt that US forces are prohibited from engaging in an offensive war on Philippine territory. Yet a nagging question remains: Are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and a ssistance exercise? Contrary to what petitioners would have us to do, we cannot take judicial notice of the events transpiring down south, as reported from the saturation coverage of the media. As a rule, we do not take cognizance of news paper or electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be establis hed in accordance with the rules of evidence. As a result, we cannot accept, in the absence of concrete proof, petitioners allegation that the Arroyo government is engaged in doublespeak in trying to pass off as a mere training exercise an of fensive effort by foreign troops on native soil. The petitions invite us to spe culate on what is really happening in Mindanao, to issue, make factual findings on matters well beyond our immediate perception, and this we are understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur with the Solicitor General t hat the present subject matter is not a fit topic for a special civil action for certiorari. We have held in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion. X x x In this connection, it will not be amiss to add that the Supreme Court i s not a trier of facts (Hervas v. Court of Appeals, 319 SCRA 776 [1999]; Valmont e v. Court of Appeals, 303 SCRA 278 [1999]). Under the expanded concept of judicial power under the Constitution, cou rts are charged with the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of a ny branch or instrumentality of the government. (Article VIII, Section 1) From t he facts obtaining, we find that the holding of Balikatan 02-1 joint military exer cise has not intruded into that penumbra of error that would otherwise call for correction on our part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction . Dissenting Opinion Justice Santiago M. Kapunan, joined by Justices Consuelo Ynares-Santiago and Ang elina Sandoval-Gutierrez The petition is impressed with merit. There is no treaty allowing US troops to engage in combat. The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same. X x x There is no treaty allowing foreign military troops to engage in combat with internal elements. The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United States of America does not authorize US military troops to engage the ASG in combat. The MDT contemplates only an external armed attack. Article III of the treaty cannot be more explicit x x x. Supporting this conclusion is the third paragraph of the MDT preamble x x x. There is no evidence that the ASG is connected with global terrorism.

There is no empirical basis for the allegation that the terrorism which th e ASG is accused of constitutes an external armed attack. The ASG has committed m ostly crimes of kidnapping for ransom and murder common crimes that are punishab le under the penal code but which, by themselves, hardly constitute terrorism. Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one man s terrorist may be another man s freedom fighter. T he divergent interests of States have caused contradicting definitions and confl icting perceptions of what constitutes terrorist acts that make it difficult for t he United Nations to reach a decision on the definition of terrorism. Because o f this definitional predicament, the power of definition is easily exercised by a superpower which, by reason of its unchallenged hegemony, could draw lists of wh at it considers terrorist organizations or states sponsoring terrorism based on criteria determined by the hegemon s own strategic interests. In any case, ties between the ASG and so-called international terrorist o

rganizations have not been established. Even assuming that such ties do exist, it does not necessarily make the attacks by the ASG external as to fall within the a mbit of the MDT. Balikatan exercises are not covered by VFA as US troops are not allowed to engag e in combat. Neither is the present situation covered by the so-called Visiting Force s Agreement (VFA). The VFA was concluded after the removal of the US military b ases, troops and facilities in the aftermath of the termination of the treaty al lowing the presence of American military bases in the Philippines. The VFA is n othing more than what its formal name suggests: an Agreement between the Governme nt of the Republic of the Philippines and the Government of the United States of America regarding the Treatment of United States Armed Forces Visiting the Phil ippines. The last paragraph of the VFA preamble also recogniz[es] the desirabilit y of defining the treatment of United States personnel visiting the Republic of the Philippines. The VFA was entered into to enable American troops to enter the country again after the removal of the American military bases so they can participate i n military exercises under the auspices of the Mutual Defense Treaty. It provid ed the legal framework under which American soldiers will be treated while they remain in the country. The military exercises contemplated in the VFA are those in accordance w ith the National Defense Plan (NDP) of the Philippines. The NDP was previously approved and adopted by the Mutual Defense Board, jointly chaired by the Chief o f Staff of the Armed Forces of the Philippines and the Commander in the Pacific of the United States Armed Forces. The NDP is directed against potential foreign aggressors, not designed t o deal with internal disorders. This was what the Senate understood when it rat ified the VFA in Senate Resolution No. 18 x x x. The VFA s ambiguous reference to activities is not a loophole that legitimiz es the presence of US troops in Basilan. In the treaty s preamble, the parties rea ffirm their obligations under the Mutual Defense Treaty of August 30, 1951. As t he preamble comprises part of a treaty s context for the purpose of interpretation , the VFA must be read in light of the provisions of the MDT. As stated earlier , the MDT contemplates only an external armed attack; consequently, the activitie s referred to in the VFA cannot thus be interpreted to include armed confrontatio n with or suppression of the ASG members who appear to be mere local bandits, ma inly engaged in kidnapping for ransom and murder even arson, extortion and illeg al possession of firearms, all of which are common offenses under our criminal l aws. These activities involve purely police matters and domestic law and order problems; they are hardly external attacks within the contemplation of the MDT and the VFA. To construe the vagueness of the term activities in the VFA as authoriz ing American troops to confront the ASG in armed conflict would, therefore, cont ravene both spirit and letter of the MDT. Respondents maintain that the American troops are not here to fight the ASG but merely to engage in training exercises. To allay fears that the American troops are here to engage the ASG in combat, the TOR [Terms of Reference] profes ses that the present exercise is a mutual counter-terrorism advising, assisting a nd training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. The TOR further provides that the exercise sh all involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilit ies of both forces to combat terrorism.

These avowals of assistance, advice, and training, however, fly in the f ace of the presence of US troops in the heart of the ASG s stronghold. Such prese nce is an act of provocation that makes an armed confrontation between US soldie rs and ASG members inevitable. The US troops in Basilan have been described as being on a slippery slope between training and fighting. Their very presence makes them a target for terro rist and for the local Muslim populace, which has been bitterly anti-American si nce colonial times. Though they are called advisers, the Americans will be goin g on risky missions deep into the jungle. A former Green Beret who is an analys t of Washington s Center for Strategies and Budgetary Assessments notes that when t roops go out on patrol, they come as close as they can to direct combat. (McGeary , Next Stop Mindanao, Time Magazine, January 28, 2002, p. 22) Advising or training Filipino soldiers hardly describes the involvement of US troops (unaccompanied by Filipino counterparts) on board combat helicopters whi ch land on the battlegrounds to evacuate Filipino soldiers wounded while fightin g the ASG. For example, on April 5, 2002, US troops on board a Pave Hawk helico pter flew to the scene of a night battle on Basilan Island to evacuate a wounded Filipino soldier. This was reportedly the third time in recent weeks that chop per-borne US forces had evacuated Filipino soldiers fighting the ASG (Philippine Daily Inquirer, April 6, 2002). Whatever euphemisms may be conjured to characterize American involvement, the RP-US Balikatan 02-1 Exercises are aimed at seeking out the ASG and extermi nating it. The prohibition contained in the TOR against US exercise participants fro m engaging in combat but without prejudice to their right to self-defense provides little consolation. Combat muddles the distinction between aggression and self -defense. US troops can always say they did not fire first and no one would dar e say otherwise. The ASG has been so demonized that no one cares how it is exor cised. Significantly, the TOR does not define the parameters of self-defense. Mi litarily, a pre0emptive strike could be interpreted as an act of self-defense. What I fear most is that the country would be dragged into a more devasta ting and protracted conflict as a result of the continued presence of US militar y troops in Basilan. A single ASG sniper s bullet felling an American soldier cou ld be used as an excuse for massive retaliation by US ground and air forces to a ttack and bomb out every suspected ASG lair, all in the name of self-defense. Apprehensions over possible catastrophic consequence of US military invol vement in our country are not without historical basis. X x x US military presence is essentially indefinite and open-ended. Already, there are indications that the US intends to reestablish a more enduring presence in the country. Defense Secretary Angelo Reyes was quoted to have declared on March 20, 2002 that 2,665 US soldiers will take part in the RP -US Balikatan 02-2 starting next month in Central Luzon and that 10 more militar y exercises will be held this year. How many more war exercises are needed for t raining and advising Filipino soldiers? What conditions must be satisfied for th e United States to consider the war against terrorism in Mindanao terminated? The endless frequency and successive repetition of the war exercises covering the t wo largest islands of the country amount, in a real sense, to the permanent pres ence of foreign military troops here sans a treaty in blatant violation of the c onstitutional proscription.

X x x The declarations of the two Presidents on the war against terrorism and their avowal to secure the world against the terrorists would ineluctably sugges t a long-drawn conflict without a foreseeable end. Worse, it is not unlikely th at this war could expand and escalate to include as protagonists the Moro Islami c Liberation Front and the Moro National Liberation Front and not improbably the New People s Army, all lumped-up as terrorists in a unilateral characterization. X x x US military intervention is not the solution to the Mindanao problem. Assuming that the ASG is a terrorist organization, U.S. military interve ntion is not the solution to achieve peace. The annihilation of the rebel bandi ts would be a futile quest so long as the root causes of their criminality are n ot addressed. A study by the United Nations Secretariat, however, acknowledges that international terrorism springs from misery, frustration, grievance and desp air, elements which, many believe, are present in Basilan. Two veteran Philippin e journalists have described the province as Mindanao s war laboratory, where lawles sness, government neglect, religious strife, poverty, and power struggle are ram pant. If indeed acts of terrorism are cries of desperation, if terrorism is bu t a symptom of the greater maladies of misery, frustration, grievance and despair , then it cannot be remedied alone by ASG s physical extermination, which appears t o be the object of President Bush and President Macapagal-Arroyo s joint campaign against global terrorism. Admittedly, the State has the right to use force as a means of self-preservation. But perhaps we should all consider that a military solution is but a first-aid measure, not the prescription to these diseases. X x x The presence of US troops in Basilan, whether from the legal, philosophi cal or even from the practical perspective cannot be justified. On the contrary , it is counterproductive. It serves to fuel an already volatile situation. US troops are likely less able, if not less willing, to distinguish between the in nocent and the enemy. The inevitable collateral damage, the killing of women and children, Muslims and Christians, the destruction of homes, schools and hospital s would fan the flames of fanaticism and transform mere rogues into martyrs. The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of battle as shown in Bataan and Corregidor, in the four long years of guerilla warfare thereafter against the Japanese, and in the strug gle for independence against Spain and the United States at the turn of the last century. The local army and police have successfully battled in the past Commu nist and other insurgents which were more organized and numerous, operating in l arger parts of the country and fighting for their political beliefs. If our tro ops need training by US advisers or have to conduct joint exercises with US troo ps to improve their fighting capability, these could be more effectively achieve d if done outside Basilan or away from the danger zones. Instead of bringing tr oops to the combat zones, the US can do more by supplying our soldiers with mode rn and high tech weaponry. Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do not have legal standing or that the issues raised by them are premature and not based on sufficient facts. The issues raised are of transcendental importance (Bayan v. Zamora, 342 SCRA 449 [2002]). The Balikatan exercises pose direct injury to some of the petitioners (intervenors) who live in the affected areas. The presence of US troops in the combat zones assisting an d advising our troops in combat against the ASG is a blatant violation of the Cons

titutional proscription against the stationing of foreign troops to fight a loca l insurgency and puts the country in peril of becoming a veritable killing field . If the time is not ripe to challenge the continuing affront against the Const itution and the safety of the people, when is the right time? When the countrys ide has been devastated and numerous lives lost? Republic of the Philippines v. The Hon. Court of Appeals G.R. No. 146587, July 2 , 2002 First Division [Vitug] Nature of the Right of Eminent Domain; Limitations The right of eminent domain is usually understood to be an ultimate righ t of the sovereign power to appropriate any property within its territorial sove reignty for a public purpose (Bernas, 1987 Edition, p. 276, quoting Justice Stor y in Charles River Bridge v. Warren Bridge). Fundamental to the independent exi stence of a State, it requires no recognition by the Constitution, whose provisi ons are taken as being merely confirmatory of its presence and as being regulato ry, at most, in the due exercise of the power. In the hands of the legislature, the power is inherent, its scope matching that of taxation, even that of police power itself, in many respects. It reaches to every form of property the State needs for public use and, as an old case so puts it, all separate interests of individuals in property are held under a tacit agreement or implied reservation vesting upon the sovereign the right to resume the possession of the property wh enever the public interest so requires it (US v. Certain Lands in Highlands [DY NY] 48 F Supp 306). The ubiquitous character of eminent domain is manifest in the nature of the expropriation proceedings. Expropriation proceedings are not adversarial in the conventional sense, for the condemning authority is not required to assert any conflicting interest in the property. Thus, by filing the action, the conde mnor in effect merely serves notice that it is taking title and possession of th e property, and the defendant asserts title or interest in the property, not to prove a right to possession, but to prove a right to compensation for the taking (US v. Certain Lands in Highlands [DY NY] 48 F Supp 306; San Bernardino Valley Municipal Water District v. Gage Canal Co. [4th Dist] Cal App 2d 206, 37 Cal Rpt r 856). Obviously, however, the power is not without its limits: first, the taki ng must be for public use, and second, that just compensation must be given to t he private owner of the property (Sena v. Manila Railroad Co., 42 Phil. 102). T hese twin proscriptions have their origin in the recognition of the necessity fo r achieving balance between the State interests, on the one hand, and private ri ghts, upon the other hand, by effectively restraining the former and affording p rotection to the latter (Visayan Refining Co. v. Camus, 40 Phil. 550). In deter mining public use, two approaches are utilized the first is public employment or t he actual use by the public, and the second is public advantage or benefit (Thor nton Development authority v. Upah [DC Colo] 640 F Supp 1071). It is also usefu l to view the matter as being subject to constant growth, which is to say that a s society advances, its demands upon the individual so increases, and each deman d is a new use to which the resources of the individual may be devoted (Visayan Refining, supra) Return of the Expropriated Property In insisting on the return of the expropriated property, respondents wou ld exhort on the pronouncement in Provincial Government of Sorsogon v. Vda. De V illaroya (153 SCRA 291) where the unpaid landowners were allowed the alternative remedy of recovery of the property there in question. It might be borne in min d that the case involved the municipal government of Sorsogon, to which the powe

r of eminent domain is not inherent, but merely delegated and of limited applica tion. The grant of the power of eminent domain to local governments under Repub lic Act No. 7160 (See Local Government Code of 1991) cannot be understood as bei ng the pervasive and all-encompassing power vested in the legislative branch of government. For local governments to be able to wield the power, it must, by en abling law, be delegated to it by the national legislature, but even then, this delegated power of eminent domain is not, strictly speaking, a power of eminent, but only of inferior, domain or only as broad or confined as the real authority would want it to be (City of Manila v. Chinese Cemetery of Manila, 40 Phil. 349 ). Thus, in Valdehueza v. Republic (17 SCRA 107) where the private landowne rs had remained unpaid ten years after the termination of the expropriation proc eedings, this Court ruled The points in dispute are whether such payment can still be made and, if s o, in what amount. Said lots have been the subject of expropriation proceedings . By final and executory judgment in said proceedings, they were condemned for public use, as part of an airport, and ordered sold to the government. X x x I t follows that both by virtue of the judgment, long final, in the expropriation suit, as well as the annotations upon their title certificates, plaintiffs are n ot entitled to recover possession of their expropriated lots which are still dev oted to the public use for which they were expropriated but only to demand the f air market value of the same. Said relief may be granted under plaintiffs prayer for: such other remedies , which may be deemed just and equitable under the premises . (At p. 112) The Court proceeded to reiterate its pronouncement in Alfonso v. Pasay City (106 Phil. 1017) where the recovery of possession of property taken for public use p rayed for by the unpaid landowner was denied even while no requisite expropriati on proceedings were first instituted. The landowner was merely given the relief of recovering compensation for his property computed at its market value at the time it was taken and appropriated by the State. The judgment rendered by the Bulacan RTC in 1979 on the expropriation pr oceedings provides not only for the payment of just compensation to herein respo ndents but likewise adjudges the property condemned in favor of petitioner over which parties, as well as their privies, are bound (Mines v. Canal Authority of the State [Fla] 467 So2d 989, 10 FLW 230). Petitioner has occupied, utilized an d, for all intents and purposes, exercised dominion over the property pursuant t o the judgment. The exercise of such rights vested to it as the condemnee indee d has amounted to at least a partial compliance or satisfaction of the 1979 judg ment, thereby preempting any claim of bar by prescription on grounds of non-exec ution. In arguing for the return of their property on the basis of non-payment, respondents ignore the fact that the right of the expropriatory authority is fa r from that of an unpaid seller in ordinary sales, to which the remedy of rescis sion might perhaps apply. An in rem proceeding, condemnation acts upon the prop erty (Cadorette v. US CCA [Mass] 988 F2d 215). After condemnation, the paramoun t title is in the public under a new and independent title (Ibid.); thus, by giv ing notice to all claimants to a disputed title, condemnation proceedings provid e a judicial process for securing better title against all the world than may be obtained by voluntary conveyance (Ibid.). Meaning of Just Compensation ; Interest computation.

The constitutional limitation of just compensation is considered to be the sum equivalent to the market value of the property, broadly described to be the price fixed by the seller in open market in the usual and ordinary course of le gal action and competition or the fair value of the property as between one who

receives, and one who desires to sell, it fixed at the time of the actual taking by the government (Manila Railway Co. v. Fabie, 17 Phil. 206). Thus, if proper ty is taken for public use before compensation is deposited with the court havin g jurisdiction over the case, the final compensation must include interests on i ts just value to be computed from the time the property is taken to the time whe n compensation is actually paid or deposited with the court (Philippine Railway Co. v. Solon, 13 Phil. 34). In fine, between the taking of the property and the actual payment, legal interests accrue in order to place the owner in a positio n as good as (but not better than) the position he was in before the taking occu rred (Commissioner of Public Highways v. Burgos, 96 SCRA 831). Joseph Ejercito Estrada v. Sandiganbayan [Third Division] G.R. No. 148560, Nov. 19, 2001 En Banc [Bellosillo] As concisely delineated by this Court during the oral arguments on 18 Sep tember 2001, the issues for resolution in the instant petition for certiorari ar e: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the po wer of Congress to so classify it. Presumption of Constitutionality of The Plunder Law (R.A. 7080, as amended by RA 7659) Preliminary, the whole gamut of legal concepts pertaining to the validit y of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution (Lim v. Pacquing, et al., G. R. No. 115044, 27 January 1995, 240 SCRA 644). Courts invariably train their si ghts on this fundamental rule whenever a legislative act is under a constitution al attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is for bidden for one branch of the government to encroach upon the duties and powers o f another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch the legislature. If there is any reasonable basis upon which the legislation may firmly r est, the courts must assume that the legislature is ever conscious of the border s and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welf are of the majority. Hence in determining whether the acts of the legislature a re in tune with the fundamental law, courts should proceed with judicial restrai nt and act with caution and forbearance. Every intendment of the law must be ad judged by the courts in favor of its constitutionality, invalidity being a measu re of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep th e question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon (G.R. No. 87001, 4 Decem ber 1989, 179 SCRA 828) we held that as long as there is some basis for the deci sion of the court, the constitutionality of the challenged law will not be touch ed and the case will be decided on other available grounds. Yet the force of th e presumption is not sufficient to catapult a fundamentally deficient law into t he safe environs of constitutionality. Of course, where the law clearly and pal pably transgresses the hallowed domain of the organic law, it must be struck dow n on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond a

ny tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, To doubt is to sustain. (Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 [1925]) And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. The Plunder Law is not vague. As it is written, the Plunder Law contains ascertainable standards and w ell-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the ac ts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. X x x As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity would be sustained. It must sufficiently guide the judg e in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed co nduct. Indeed, it can be understood with little difficulty that what the assail ed statute punishes is the act of a public officer in amassing or accumulating i ll-gotten wealth of at least P50,000,000.00 through a series or combination of a cts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of t he law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed x x x. We discern nothing in the foregoing that is vague or ambiguous as there is obviously none that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely in formed of the accusations against him as to enable him to prepare for an intelli gent defense. Petitioner, however, bewails the failure of the law to provide for the s tatutory definition of the terms combination and series in the key phrase a combinati on or series of overt or criminal acts found in Sec. 1, par. (d), and Sec. 2, and the word pattern in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and de ny him the right to be informed of the nature and cause of the accusation agains t him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or be cause of the employment of terms without defining them (82 C.J.S. 68, P. 113; Pe ople v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768); much less do we have to d efine every word we use. Besides, there is no positive constitutional or statut ory command requiring the legislature to define each and every word in an enactm ent. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily resu lt in the vagueness or ambiguity of the law so long as the legislative will is c lear, or at least, can be gathered from the whole act, which is distinctly expre ssed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that word s of a statute will be interpreted in their natural, plain and ordinary acceptat ion and signification (Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988

, 18 June 1965, 257 SCRA 430, 448), unless it is evident that the legislature in tended a technical or special legal meaning to those words (PLDT v. Eastern Tele communications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16, 26). The intention of the lawmakers who are, ordinarily, untrained philologists and l exicographers to use statutory phraseology in such a manner is always presumed. Thus, Webster s New Collegiate Dictionary contains the following commonly accepte d definition of the words combination and series. Combination the result or product of combining; the act or process of com bining. To combine is to bring into such close relationship as to obscure indiv idual characters. Series a number of things or events of the same class coming one after an other in spatial and temporal succession. That Congress intended the words combination and series to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law x x x. X x x Thus when the Plunder Law speaks of combination, it is referring to at lea st two (2) acts falling under different categories or enumeration provided in Se c. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government un der Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series there must be two (2) or more ov ert or criminal acts falling under the same category of enumeration found in Sec . 1, par. (d), say, misappropriation, malversation and raids on the public treas ury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the leg islature intended a technical or distinctive meaning for combination and series, it would have taken greater pains in specifically providing for it in the law. As for pattern, we agree with the observations of the Sandiganbayan that t his term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x under Sec. 1 (d) of the law, a pattern consists of at least a combina tion or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or c riminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an overall unlawful scheme or conspiracy to achieve said commo n goal. As commonly understood, the term overall unlawful scheme indicates a gener al plan of action or method which the principal accused and public officer and ot hers conniving with him follow to achieve the aforesaid common goal. In the alt ernative, if there is no such overall scheme or where the schemes or methods use d by multiple accused vary, the overt or criminal acts must form part of a consp iracy to attain a common goal. The Void-for-Vagueness Doctrine

Hence, it cannot plausibly be contended that the law does not give a fai r warning and sufficient notice of what it seeks to penalize. Under the circums tances, petitioner s reliance on the void-for-vagueness doctrine is manifestly mispl aced. The doctrine has been formulated in various ways, but is commonly stated to the effect that a statute establishing a criminal offense must define the off ense with sufficient definiteness that persons of ordinary intelligence can unde rstand what conduct is prohibited by the statute. It can only be invoked agains

t that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible st andards that men of common intelligence must necessarily guess at its meaning an d differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects it violated due process for failure to accord p ersons, especially the parties targeted by it, fair notice of what conduct to av oid; and, it leaves law enforcers unbridled discretion in carrying out its provi sions and becomes an arbitrary flexing of the Government muscle (See People v. N azario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196). But the doctrine d oes not apply as against legislations that are merely couched in imprecise langu age but which nonetheless specify a standard though defectively phrased; or to t hose that are apparently ambiguous yet fairly applicable to certain types of act ivities. The first may be saved by proper construction, while no challenge may be mounted as against the second whenever directed against such activities (Ibid.) With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertain ty is whether the language conveys a sufficiently definite warning as to the pro scribed conduct when measured by common understanding and practice (State v. Hil l, 189 Kan 403, 369 P2d 365, 91 ALR 2d 750). It must be stressed, however, that the vagueness doctrine merely requires a reasonable degree of certainty for the s tatute to be upheld not absolute precision or mathematical exactitude, as petiti oner seems to suggest. Flexibility, rather than meticulous specificity, is perm issible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations t hat the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligen ce must necessarily guess at its meaning and differ as to its application violat es the first essential of due process of law. (Connally v. General Constr. Co., 2 69 U.S. 385, 391, 70 L. Ed. 328 [1926] cited in Ermita-Malate Hotel and Motel Op erators Ass n. v. City Mayor, 20 SCRA 849, 867 [1967]) The overbreadth doctrine, on the other hand, decrees that a governmental purpose may not be achieved by mea ns which sweep unnecessarily broadly and thereby invade the area of protected fr eedoms. (NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 [1958]; Shelto n v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960]) A facial challenge is allowed to be made to a vague statute and to one wh ich is overbroad because of possible chilling effect upon protected speech. The t heory is that [w]hen statutes regulate or proscribe speech and no readily apparen t construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally p rotected expression is deemed to justify allowing attacks on overly broad statut es with no requirement that the person making the attack demonstrate that his ow n conduct could not be regulated by a statute drawn with narrow specificity. (Goo ding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 [1972] [internal quotat ion marks omitted]) The possible harm to society in permitting some unprotected speed to go unpunished is outweighed by the possibility that the protected spee ch of others may be deterred and perceived grievances left to fester because of

possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial c hallenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, th e law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrine then have special application only to free speech cases. They are inapt for testing the validity of penal statute s. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, w e have not recognized an overbreadth doctrine outside the limited context of the F irst Amendment. In Broadwick v. Oklahoma (413 U.S. 601, 612-613, 37 L Ed. 2d 830 , 840-841 [1973]), the Court ruled that claims of facial overbreadth have been en tertained in cases involving statutes which, by their terms, seek to regulate on ly spoken words and, again, that overbreadth claims, if entertained at all, have b een curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. For this reason, it has been held that a facial cha llenge to a legislative act is the most difficult challenge to mount successfull y, since the challenger must establish that no set of circumstances exists under which the Act would be valid. (United States v. Salerno, supra.) As for the vag ueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. (Village of Hoffman Estates v. Flipside , Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L Ed. 2d 362, 369 [1982]) In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing on their faces statutes in free speech case s or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect t o such statute, the established rule is that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that im pliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. (United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 [1960]. The paradigmatic case is Yazoo & Mis sissippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 l. Ed. 193 [1912]) As has been pointed out, vagueness challenges in the First Amendment context, li ke overbreadth challenges typically produce facial invalidation, while statutes found to be vague as a matter of due process typically are invalidated [only] as applied to a particular defendant. (G. Gunther & K. Sullivan, Constitutional Law 1 299 [2001]) Consequently, there is no basis for petitioner s claim that this Cour t review the Anti-Plunder Law on its face and in its entirety. Indeed, on its face invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Cour t whose activities are constitutionally protected (Id. at 1328). It constitutes a departure from the case and controversy requirement of the Constitution and p ermits decisions to be made without concrete factual settings and in sterile abs tract contexts (Constitution, Art. VIII, Sections 1 and 5. Compare Angara v. El ectoral Commission, 63 Phil. 139, 158 [1936]). But, as the U.S. Supreme Court p ointed out in Younger v. Harris (401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 [1971 ]; others omitted.) [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into e ffect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative pr ocess of the relief sought, and above all the speculative and amorphous nature o f the required line-by-line analysis of detailed statutes, x x x ordinarily resu

lts in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, on its face invalidation of statutes has been described as manif estly strong medicine, to be employed sparingly and only as a last resort, (Broadwi ck v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; National Endowment for the A rts v. Finley, 524 U.S. 569, 580 [1998]) and is generally disfavored (FW/PBS, In c. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 [1990]; Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 [Mendoza, J ., Separate Opinion]). In determining the constitutionality of a statute, there fore, its provisions which are alleged to have been violated in a case must be e xamined in the light of the conduct with which the defendant is charged (United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6 [ 1963]). In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by pe titioner, is more imagined than real. Ambiguity, where none exists, cannot be c reated by dissecting parts and words in the statute to furnish support to critic s who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched p resumption of constitutionality and validity of the Plunder Law. A fortiori, pe titioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the la w was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge o f its legal implications and sound constitutional anchorage. X x x Criminal Due Process; The Right to be Presumed Innocent On the second issue, petitioner advances the highly stretched theory tha t Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecut ion to prove beyond reasonable doubt the predicate acts constituting the crime o f plunder when it requires only proof of a pattern of overt or criminal acts sho wing unlawful scheme or conspiracy SEC. 4. Rule of Evidence For purposes of establishing the crime of plund er, it shall not be necessary to proven each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acqui re ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. The running fault in this reasoning is obvious even to the simplistic mi nd. In a criminal prosecution for plunder, as in all other crimes, the accused has always in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond r easonable doubt that culpability lies, the accused is entitled to an acquittal ( People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275). T he use of the reasonable doubt standard is indispensable to command the respect an d confidence of the community in the application of criminal law. It is critica l that the moral force of criminal law be not diluted by a standard of proof tha t leaves people in doubt whether innocent men are being condemned. It is also i mportant in our free society that every individual going about his ordinary affa irs has confidence that his government cannot adjudge him guilty of a criminal o ffense without convincing a proper factfinder of his guilt with utmost certainty . This reasonable doubt standard has acquired such exalted stature in the realm o

f constitutional law as it gives life to the Due Process Clause which protects t he accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged (People v. Garc ia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360). The following exchange s between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the del iberations in the floor of the House of Representatives are elucidating x x x. X x x It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The bur den still remains with the prosecution to prove beyond any iota of doubt every f act or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision . What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a patt ern and involving an amount of at least P50,000,000.00. There is no need to pro ve each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amas s, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the a ccused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty ( 50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,00 0.00. A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that pattern of overt or criminal acts indicative of the overall unla wful scheme or conspiracy inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecu tion is able to prove beyond reasonable doubt the predicate acts as defined in S ec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate a cts. This conclusion is consistent with reason and common sense. There would b e no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth. The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner s contentions on the purported defect of Sec. 4 is his submission that pattern is a very important element of the crime of plunder, that Sec. 4 is two pronged, (as) it contains a rule of evidence and a substantiv e element of the crime, such that without it the accused cannot be convicted of p lunder x x x. We do not subscribe to petitioner s stand. Primarily, all the essential e lements of plunder can be culled and understood from its definition in Sec. 2, i n relation to Sec. 1, par. (d), and pattern is not one of them. Moreover, the epi graph and opening clause of Sec. 4 is clear and unequivocal: SEC 4. Rule of Evidence. er x x x. For purposes of establishing the crime of plund and

It purports to do no more than prescribe a rule of procedure for the pro secution of a criminal case for plunder. Being a purely procedural measure, Sec . 4 does not define or establish any substantive right in favor of the accused b ut only operates in furtherance of a remedy. It is only a means to an end, an a id to substantive law. Indubitably, even without invoking Sec. 4, a conviction

for plunder may be had, for what is crucial for the prosecution is to present su fficient evidence to engender that moral certitude exacted by the fundamental la w to prove the guilt of the accused beyond reasonable doubt. Thus, even grantin g for the sake argument that Sec. 4 is flawed and vitiated for the reasons advan ced by petitioner, it may simply be severed from the rest of the provisions with out necessarily resulting in the demise of the law; after all, the existing rule s on evidence can supplant Sec. 4 more than enough. Besides Sec. 7 of RA 7080 p rovides for a separability clause x x x. Implicit in the foregoing section is that to avoid the whole act from be ing declared invalid as a result of the nullity of some of its provisions, assum ing that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doi ng so, the objectives of the statute can best be achieved. Dissenting Opinion Justice Santiago M. Kapunan (Internal citations omitted) On the Rule of Law and Due Process The primary duty of the Court is to render justice. The resolution of t he issues brought before it must be grounded on law, justice and the basic tenet s of due process, unswayed by the passion of the day or the clamor of the multit udes, guided only by its members honest conscience, clean hearts and their unsull ied conviction to do what is right under the law. The issues posed by the instant petition are quite difficult. The task of the Court to resolve the same is made more daunting because the case involves a former President of the Republic who, in the eyes of certain sectors of socie ty, deserves to be punished. But the mandate of the Court is to decide these is sues solely on the basis of law and due process, and regardless of the personali ties involved. For indeed, the rule of law and the right to due process are imm utable principles that should apply to all, even to those we hate. As Fr. Joaqu in G. Bernas, S.J., a noted constitutionalist, aptly puts it x x x the greater disaster would be if the Supreme Court should heed the clamor for conviction and convict Estrada even under an unconstitutional law but of the belief that Estrada deserves to be punished. That would be tantamount to a rul e of men and not of law (Joaquin G. Bernas, S.J., Prejudging the Supreme Court, in his column Sounding Board , Today, September 26, 2001, p. 6) x x x I believe there is merit in the petition. A penal statute which violates constitutional guarantees of individual rights is void. Every law enacted by Congress enjoys a presumption of constitutionality, and the presumption prevails in the absence of contrary evidence. A criminal s tatute is generally valid if it does not violate constitutional guarantees of in dividual rights. Conversely, when a constitutionally protected right of an indi vidual is in danger of being trampled upon by a criminal statute, such law must be struck down for being void. One of the fundamental requirements imposed by the Constitution upon cri minal statutes is that pertaining to clarity and definiteness. Statutes, partic ularly penal laws, that fall short of this requirement have been declared uncons titutional for being vague. This void-for-vagueness doctrine is rooted in the bas ic concept of fairness as well as the due process clause of the Constitution.

The Constitution guarantees both substantive and procedural due process as well as the right of the accused to be informed of the nature and cause of th e accusation against him. A criminal statute should not be so vague and uncerta in that men of common intelligence must necessarily guess as to its meaning and d iffer as to its application. There are three distinct considerations for the vagueness doctrine. Fir st, the doctrine is designed to ensure that individuals are properly warned ex a nte of the criminal consequence of their conduct. This fair notice rationale was articulated in United States v. Harris (3457 U.S. 612 [1954]): The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that hi s contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed (Id., at 617) Second, and viewed as more important, the doctrine is intended to prevent arbitr ary and discriminatory law enforcement. Vague laws are invariably standardless an d as such, they afford too great an opportunity for criminal enforcement to be l eft to the unfettered discretion of police officers and prosecutors. Third, vag ue laws fail to provide sufficient guidance to judges who are charged with inter preting statutes. Where a statute is too vague to provide sufficient guidance, the judiciary is arguably placed in the position of usurping the proper function of the legislature by making the law rather than interpreting it. While the dictum that laws be clear and definite does not require Congre ss to spell out with mathematical certainty the standards to which an individual must conform his conduct, it is necessary that statutes provide reasonable stan dards to guide prospective conduct. And where a statute imposes criminal sancti ons, the standard of certainty is higher. The penalty imposable on the person found guilty of violating R.A. No. 7080 is reclusion perpetua to death. Given s uch penalty, the standard of clarity and definiteness required of R.A. No. 7080 is unarguably higher than that of other laws. Void-for-vagueness doctrine applies to criminal laws. A view has been proffered that vagueness and overbreadth doctrines are no t applicable to penal laws. These two concepts, while related, are distinct from each other. On one hand, the doctrine of overbreadth applies generally to stat utes that infringe upon freedom of speech. On the other hand, the void-for-vague ness doctrine applies to criminal laws, not merely those that regulate speech or other fundamental constitutional rights. The fact that a particular criminal st atute does not infringe upon free speech does not mean that a facial challenge t o the statute on vagueness grounds cannot succeed. Development Bank of the Philippines v. Commission on Audit 373 SCRA 356, January 16, 2002 En Banc [Carpio] X x x This petition raises a question of first impression, whether or n ot the constitutional power of the COA to examine and audit the DBP is exclusive and precludes a concurrent audit of the DBP by a private external auditor. X x x The resolution of the primordial issue of whether or not the COA has the sole and exclusive power to examine and audit government banks involves an inte rpretation of Section 2, Article IX-D of the 1987 Constitution. This Section pr

ovides as follows: Sec. 2. (1) The Commission on Audit shall have the power, authority, and d uty to examine, audit, and settle all accounts pertaining to the revenue and rec eipts of, and expenditures or uses of funds and property, owned and held in trus t by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with o riginal charters, x x x. (2) The Commission shall have the exclusive authority, subject to the limi tations in this Article, to define the scope of its audit and examination, estab lish the techniques and methods required therefore, and promulgate accounting an d auditing rules and regulations, including those for the prevention and disallo wance of irregular, unnecessary, excessive, extravagant, or unconscionable expen ditures, or uses of government funds and properties. (Emphasis supplied) The COA vigorously asserts that under the first paragraph of Section 2, t he COA enjoys the sole and exclusive power to examine and audit all government a gencies, including the DBP. The COA contends this is similar to its sole and ex clusive authority, under the same paragraph of the same section, to define the s cope of its audit, promulgate auditing rules and regulations, including rules on the disallowance of unnecessary expenditures of government agencies. The bare language of Section 2, however, shows that the COA s power under the first paragra ph is not declared exclusive, while its authority under the second paragraph is expressly declared exclusive. There is a significant reason for this marked diffe rence in language. During the deliberations of the Constitutional Commission, Commissioner S erafin Guingona proposed the addition of the word exclusive in the first paragraph of Section 2, thereby granting the COA the sole and exclusive power to examine and audit all government agencies. However, the Constitutional Commission rejec ted the addition of the word exclusive in the first paragraph of Section 2 and Gui ngona was forced to withdraw his proposal. X x x. X x x In sharp contrast, the Constitutional Commission placed the word exclusive to qualify the authority of the COA under the second paragraph of the same Secti on 2. This word exclusive did not appear in the counterpart provisions of Section 2 in the 1935 and 1973 Constitutions. There is no dispute that the COA s authori ty under the second paragraph of Section 2 is exclusive as the language of the C onstitution admits of no other meaning. Thus, the COA has the exclusive authori ty to decide on disallowances of unnecessary government expenditures. Other gov ernment agencies and their officials, as well as private auditors engaged by the m, cannot in any way intrude into this exclusive function of the COA. The qualifying word exclusive in the second paragraph of Section 2 cannot b e applied to the first paragraph which is another sub-section of Section 2. A q ualifying word is intended to refer only to the phrase to which it is immediatel y associated, and not to a phrase distantly located in another paragraph or subsection (Felipe v. De la Cruz, 99 Phil. 940 [1956]; Tirona v. Cudiamat, 14 SCRA 264 [1965]). Thus, the first paragraph of Section 2 must be read the way it app ears, without the word exclusive, signifying that non-COA auditors can also examin e and audit government agencies. Besides, the framers of the Constitution inten tionally omitted the word exclusive in the first paragraph of Section 2 precisely to allow concurrent audit by private external auditors. The clear and unmistakable conclusion from a reading of the entire Sectio n 2 is that the COA s power to examine and audit is non-exclusive. On the other h and, the COA s authority to define the scope of its audit, promulgate auditing rul

es and regulations, and disallow unnecessary expenditures is exclusive. Moreover, as the constitutionally-mandated auditor of all government agen cies, the COA s findings and conclusions necessarily prevail over those of private auditors, at least insofar as government agencies and officials are concerned. The superiority or preponderance of the COA audit over private audit can be gle aned from the records of the Constitutional Commission x x x. The findings and conclusions of the private auditor may guide private investors or creditors who require such private audit. Government agencies and officials, however, remain bound by the findings and conclusions of the COA, whether the matter falls under the first or second paragraph of Section 2, unless of course such findings and conclusions are modified or reversed by the courts. The power of the COA to examine and audit government agencies, while nonexclusive, cannot be taken away from the COA. Section 3, Article IX-C of the Co nstitution mandates that: Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatsoever, or any investment of public funds, from the jurisdiction of the Commission on Audit. The mere fact that private auditors may audit government agencies does not dives t the COA of its power to examine and audit the same government agencies. The C OA is neither by-passed nor ignored since even with a private audit the COA will still conduct its usual examination and audit, and its findings and conclusions will still bind government agencies and their officials. A concurrent private audit poses no danger whatsoever of public funds or assets escaping the usual sc rutiny of a COA audit. Manifestly, the express language of the Constitution, and the clear inte nt of its framers, point to only one indubitable conclusion the COA does not hav e the exclusive power to examine and audit government agencies. The framers of the Constitution were fully aware of the need to allow independent private audit of certain government agencies in addition to the COA audit, as when there is a private investment in a government-controlled corporation, or when a government corporation is privatized or publicly listed, or as in the case at bar when the government borrows money from abroad. In these instances the government enters the marketplace and competes wi th the rest of the world in attracting investments or loans. To succeed, the go vernment must abide with the reasonable business practices of the marketplace. Otherwise no investor or creditor will do business with the government, frustrat ing government efforts to attract investments or secure loans that may be critic al to stimulate moribund industries or resuscitate a badly shattered national ec onomy as in the case at bar. By design the Constitution is flexible enough to m eet these exigencies. Any attempt to nullify this flexibility in the instances mentioned, or in similar instances, will be ultra vires, in the absence of a sta tute limiting or removing such flexibility. The deliberations of the Constitutional Commission reveal eloquently the intent of Section 2, Article IX-D of the Constitution. As this Court has ruled repeatedly, the intent of the law is the controlling factor in the interpretatio n of the law (People v. Purisima, 86 SCRA 542 [1978]; others omitted). If a law needs interpretation, the most dominant influence is the intent of the law (De Jesus v. City of Manila, 29 Phil. 73 [1914]). The intent of the law is that whi ch is expressed in the words of the law, which should be discovered within its f our corners aided, if necessary, by its legislative history (Manila Lodge No. 76 1 v. Court of Appeals, 73 SCRA 162 [1976]). In the case of Section 2, Article I X-D of the Constitution, the intent of the framers of the Constitution is eviden t from the bare language of Section 2 itself. The deliberations of the Constitu

tional Commission confirm expressly and even elucidate further this intent beyon d any doubt whatsoever. There is another constitutional barrier to the COA s insistence of exclusi ve power to examine and audit all government agencies. The COA s claim clashes di rectly with the Central Bank s constitutional power of supervision over banks under Section 20, Article XII of the Constitution. X x x Historically, the Central Bank has been conducting periodic and special examination and audit of banks to determine the soundness of their operations an d the safety of the deposits of the public. Undeniably, the Central Bank s power of supervision includes the power to examine and audit banks, as the banking laws have always recognized this power of the Central Bank. Hence, the COA s power to examine and audit government banks must be reconciled with the Central Bank s powe r to supervise the same banks. The inevitable conclusion is that the COA and th e Central Bank have concurrent jurisdiction, under the Constitution, to examine and audit government banks. However, despite the Central Bank s concurrent jurisdiction over governmen t banks, the COA s audit still prevails over that of the Central Bank since the CO A is the constitutionally mandated auditor of government banks. And in matters falling under the second paragraph of Section 2, Article IX-D of the Constitutio n, the COA s jurisdiction is exclusive. Thus, the Central Bank is devoid of autho rity to allow or disallow expenditures of government banks since this function b elongs exclusively to the COA. Second Issue: Statutes Prohibiting or Authorizing Private Auditors The COA argues that Sections 26, 31 and 32 of PD No. 1445, otherwise kno wn as the Government Auditing Code of the Philippines, prohibit the hiring of pr ivate auditors by government agencies. X x x Section 26 defines the extent and scope of the powers of the COA. Consi dering the comprehensive definition in Section 26, the COA s jurisdiction covers a ll government agencies, offices, bureaus and units, including government-owned o r controlled corporations, ad even non-government entities enjoying subsidy from the government. However, there is nothing in Section 26 that states, expressly or impliedly, that the COA s power to examine and audit government banks is exclu sive, thereby preventing private audit of government agencies concurrently with the COA audit. Section 26 is a definition of the COA s general jurisdiction. Jurisdiction may be exclusive or concurrent. Section 26 of PD No. 1445 does not state that t he COA s jurisdiction is exclusive, and there are other laws providing for concurr ent jurisdiction. Thus, Section 26 must be applied in harmony with Section 58 ( previously, Section 6-D of the General Banking Act [RA No. 337]) of the General Banking Law of 2000 (RA No. 8791) which authorizes unequivocally the Monetary Bo ard to require banks to hire independent auditors. X x x Moreover, Section 26 must also be applied in conformity with Sections 25 and 28 (Previously, Sections 25 and 28 of the Central Bank Act [RA No. 265]) od the New Central Bank Act (RA No. 7653) which authorize expressly the Monetary B oard to conduct periodic or special examination of all banks. X x x The power vested in the Monetary Board under Section 58 of the General B anking Law of 2000, and Sections 25 and 28 of the New Central Bank Act, emanates from the Central Bank s explicit constitutional mandate to exercise supervision ov er the operations of banks. X x x Clearly, under existing laws, the COA does not have the sole and exclusi

ve power to examine and audit government banks. The Central Bank has concurrent jurisdiction to examine and audit, or cause the examination and audit, of gover nment banks. Section 31 of PD No. 1445, another provision of law claimed by the COA t o prohibit the hiring of private auditors by government agencies, provides as fo llows x x x. According to the COA, Section 31 is the maximum extent that privat e auditors can participate in auditing government agencies and anything beyond t his is without legal basis. Hence, the COA maintains that the hiring of private auditors who act in their own name and operate independently of the COA is unla wful. Section 31 is bereft of any language that prohibits, expressly or implie dly, the hiring of private auditors by government agencies. This provision of l aw merely grants authority to the COA to hire and deputize private auditors to a ssist the COA in the auditing of government agencies. Such private auditors ope rate under the authority of the COA. By no stretch of statutory construction ca n this provision be interpreted as an absolute statutory ban on the hiring of pr ivate auditors by government agencies. Evidently, the language of the law does not support the COA s claim. Moreover, the COA further contends that Section 32 of PD No. 1445 is anot her provision of law that prohibits the hiring of private auditors by government agencies. X x x Section 32 refers to contracts for studies and services relating to govern ment auditing which the COA may or may not want to undertake itself for a governm ent agency. Stated another way, Section 32 speaks of studies and services that the COA may choose not to render to a government agency. Obviously, the subject of these contracts is not the audit itself of a government agency because the C OA is compelled to undertake such audit and cannot choose not to conduct such au dit. The Constitution and existing law mandate the COA to audit all government agencies. Section 2, Article IX-D of the Constitution commands that the COA shal l have the x x x duty to examine, audit, and settle all accounts of government ag encies (Emphasis supplied). Similarly, the Revised Administrative Code of 1987 directs that the Commission on Audit shall have the x x x duty to examine, audit, and settle all accounts of government agencies (Emphasis supplied). Hence, the COA cannot refuse to audit government agencies under any circumstance. The subject of the contracts referred to in Section 32 is necessarily lim ited to studies, seminars, workshops, researches and other services on governmen t auditing which the COA may or may not undertake at its discretion, thereby exc luding the audit itself of government agencies. Since the COA personnel have th e experience on government auditing and are in fact the experts on this subject, it is only proper for the COA to be granted the right of first refusal to under take such services if required by government agencies. This is what Section 32 is all about and nothing more. Plainly, there is nothing in Section 32 which pr ohibits the hiring of private auditors to audit government agencies concurrently with the COA audit. On the other hand, the DBP cites Central Bank Circular No. 1124 as legal basis for hiring a private auditor. This Circular amended Subsection 1165.5 (Bo ok I) of the Manual of Regulations for Banks and other Financial Intermediaries to require [E]ach bank, whether government-owned or controlled or private, x x x (to) cause an annual financial audit to be conducted by an external auditor x x x. Moreover, the Circular states that the audit of a government-owned or controll ed bank by an external independent auditor shall be in addition to and without p rejudice to that conducted by the Commission on Audit in the discharge of its ma ndate under existing law. Furthermore, the Circular provides that the requirement for an annual audit by an external independent auditor shall extend to speciali

zed and unique government banks such as the Land Bank of the Philippines and the Development Bank of the Philippines. The Central Bank promulgated Circular No. 1124 on December 5, 1986 pursua nt to its power under the Freedom Constitution, the fundamental law then in forc e, as well as pursuant to its general rule making authority under the General Ba nking Act (RA No. 337), the banking law then in effect at that time. Under the Freedom Constitution, the Central Bank exercised supervisory authority over the banking system. Section 14, Article XV of the 1973 Constitution, which was re-a dopted in the Freedom constitution, provides x x x. Section 6-D of the General Banking Act (RA No. 337) vested the Monetary Board with the specific power to req uire a bank to engage the services of an independent auditor to be chosen by the bank concerned from a list of certified public accountants acceptable to the Mo netary Board. The 1987 Constitution created an independent central monetary authority w ith substantially the same powers as the Central Bank under the 1973 Constitutio n and the Freedom Constitution. Section 20, Article XII of the 1987 Constitutio n provides that the Monetary Board shall have supervision over the operations of banks. The specific power of the Central Bank under the General Banking Act (RA No. 337) to require an independent audit of banks was re-enacted in Section 58 o f the General Banking Law of 2000 (RA No. 8791). Indubitably, the Central Bank had the express constitutional and statutor y power to promulgate Circular No. 1124 on December 5, 1986. The power granted to the Central Bank to issue Circular No. 1124 with respect to the independent a udit of banks is direct, unambiguous, and beyond dispute. The Bangko Sentral ng Pilipinas, which succeeded the Central Bank, retained under the 1987 Constituti on and the General Banking Law of 2000 (RA No. 8791) the same constitutional and statutory power of the Central Bank had under the Freedom Constitution and the General Banking Act (RA No. 337) with respect to the independent audit of banks. Circular No. 1124 has the force and effect of law. In a long line of dec isions (Banco Filipino Savings & Mortgage Bank v.Navarro, 152 SCRA 346 [1987]; o thers omitted), this Court has held consistently that the rules and regulations issued by the Central Bank pursuant to its supervisory and regulatory powers hav e the force and effect of law. The DBP, being a bank under the constitutional a nd statutory supervision of the Central Bank, was under a clear legal obligation to comply with the requirement of Circular No. 1124 on the private audit of ban ks. Refusal by the DBP to comply with the Circular would have rendered the DBP and its officers liable to the penal provisions of the General Banking Act (Sect ion 87 of RA No. 337), as well as the administrative and penal sanctions under t he Central Bank Act (Section 34 of RA No. 265). The DBP also relies on Section 8 of PD No. 2029 as its statutory basis fo r hiring a private auditor. This Section states in part as follows: The audit of government corporations by the Commission on Audit shall not preclude government corporations from engaging the services of private auditing firms: Provided, however, that even if the services of the latter are availed of , the audit report of the Commission on Audit shall serve as the report for purp oses of compliance with audit requirements as required of government corporation s under applicable law. Section 8 of PD No. 2029, however, also provides that the policy of withdr awal of resident auditors shall be fully implemented x x x. Section 2 of the sam e decree also excludes from the term government-owned or controlled corporation tw o classes of corporations. The first are originally private corporations the ma jority of the shares of stock of which are acquired by government financial inst itutions through foreclosure or dacion en pago. The second are subsidiary corpo

rations of government corporations, which subsidiaries are organized exclusively to own, manage or lease physical assets acquired by government financial instit utions through foreclosure or dacion en pago. Claiming that PD No. 2029 operate s to exempt certain government-owned corporations from the COA s jurisdiction in v iolation of Section 3, Article IX-D of the Constitution, the COA is questioning the constitutionality of PD No. 2029. There is, however, no compelling need to pass upon the constitutionality of PD No. 2029 because the Constitution and existing banking laws allow such hir ing. The issues raised in this case can be resolved adequately without resolvin g the constitutionality of PD No. 2029. This Court will leave the issue of the constitutionality of PD No. 2029 to be settled in another case where its resolut ion is an absolute necessity (Alger v. Court of Appeals, 135 SCRA 37 [1985]). Republic v. Express Telecommunication Co., Inc. 373 SCRA 316, January 15, 2002 1st Div. [Ynares-Santiago] At the outset, it is well to discuss the nature and functions of the NTC , and analyze its powers and authority as well as the laws, rules and regulation s that govern its existence and operations. The NTC was created pursuant to Executive Order No. 546, promulgated on July 23, 1979. It assumed the functions formerly assigned to the Board of Commu nications and the Communications Control Bureau, which were both abolished under the said Executive Order. Previously, the NTC s function were merely those of th e defunct Public Service Commission (PSC), created under Commonwealth Act No. 14 6, as amended, otherwise known as the Public Service Act, considering that the B oard of Communications was the successor-in-interest of the PSC. Under Executiv e Order No. 125-A, issued in April 1987, the NTC became an attached agency of th e Department of Transportation and Communications. In the regulatory communications industry, the NTC has the sole authorit y to issue Certificates of Public Convenience and Necessity (CPCN) for the insta llation, operation, and maintenance of communications facilities and services, r adio communications systems, telephone and telegraph systems. Such power includ es the authority to determine the areas of operations of applicants for telecomm unications services. Specifically, Section 16 of the Public Service Act authori zes the then PSC, upon notice and hearing, to issue Certificates of Public Conve nience for the operation of public services within the Philippines whenever the C ommission finds that the operation of the public service proposed and the author ization to do business will promote the public interests in a proper and suitabl e manner. (Commonwealth Act No. 146, Section 16[a]) The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act x x x . In granting Bayantel the provisional authority to operate a CMTS, the NT C applied Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides: Sec. 3. Provisional Relief. Upon the filing of an application, complaint or petition or at any stage thereafter, the Board may grant on motion of the pl eader or on its own initiative, the relief prayed for, based on the pleading, to gether with the affidavits and supporting documents attached thereto, without pr ejudice to a final decision after completion of the hearing which shall be calle d within thirty (30) days from grant of authority asked for. (italics ours) Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrativ e Register on February 3, 1993. These Revised Rules deleted the phrase on its ow n initiative ; accordingly, a provisional authority may be issued only upon filing

of the proper motion before the Commission. In answer to this argument, the NTC, through the Secretary of the Commis sion, issued a certification to the effect that inasmuch as the 1993 Revised Rul es have not been published in a newspaper of general circulation, the NTC has be en applying the 1978 Rules. The absence of publication, coupled with the certification by the Commis sioner of the NTC stating that the NTC was still governed by the 1987 Rules, cle arly indicate that the 1993 Revised Rules have not taken effect at the time of t he grant of the provisional authority to Bayantel. The fact that the 1993 Revis ed Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the fili ng of the rules with the UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states: Filing. (1) Every agency shall file with the University of the Philippine s Law Center three (3) certified copies of every rule adopted by it. Rules in f orce on the date of effectivity of this Code which are not filed within three (3 ) months from the date shall not thereafter be the basis of any sanction against any party or persons. (2) The records officer of the agency, or his equivalent functionary, sha ll carry out the requirements of this section under pain of disciplinary action. (3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection. The National Administrative Register is merely a bulletin of codified ru les and it is furnished only to the Office of the President, Congress, all appel late courts, the National Library, other public offices or agencies as the Congr ess may select, and to other persons at a price sufficient to cover publication and mailing or distribution costs (Administrative Code of 1987, Book VII, Chapte r 2, Section 7). In a similar case, we held: This does not imply, however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Ord er issued on August 30, 1989, under which the respondents filed their applicatio ns for importations, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which r eads: Article 2. Laws shall take effect after fifteen days following the comple tion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. X x x The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrati ve Register, does not cure the defect related to the effectivity of the Administ rative Order. This Court, in Tanada v. Tuvera (G.R. No. L-63915, December 29, 1986, 146 SCRA 446) stated, thus: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fi xed by the legislature.

Covered by this rule are presidential decrees and executive orders promul gated by the President in the exercise of legislative power or, at present, dire ctly conferred by the Constitution. Administrative Rules and Regulations must a lso be published if their purpose is to enforce or implement existing law pursua nt also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, n eed not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guide lines to be followed by their subordinates in the performance of their duties. X x x We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The ich should implement elation to , 263 SCRA Administrative Order under consideration is one of those issuances wh be published for its effectivity, since its purpose is to enforce and an existing law pursuant to a valid delegation, i.e., P.D. 1071, in r LOI 444 and EO 133 (Philippine International Trading Corp. v. Angeles 421, 446-447 [1996]).

Thus, publication in the Official Gazette or a newspaper of general circ ulation is a condition sine qua non before statutes, rules or regulations can ta ke effect. This is explicit from Executive Order No. 200, which repealed Articl e 2 of the Civil Code, and which states that: Laws shall take effect after fifteen days following the completion of the ir publication either in the Official Gazette or in a newspaper of general circu lation in the Philippines, unless it is otherwise provided (E.O. 200, Section 1) . The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely within the s cope of these laws, as explicitly mentioned in the case of Tanada v. Tuvera (146 SCRA 446 [1986]). Our pronouncement in Tanada v. Tuvera is clear and categorical. Administ rative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exception are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties (PHILSA International Placement & Services Corp. v. Secretary of Labor, G .R. No. 103144, April 4, 2001, 356 SCRA 174). Hence, the 1993 Revised Rules should be published in the Official Gazett e or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation (Section 20 thereof). I n the absence of such publication, therefore, it is the 1978 Rules that governs. Lacson v. Perez 357 SCRA 756, May 10, 2001 En Banc [Melo] On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other de adly weapons assaulting and attempting to break into Malacanang, issued Proclamat

ion No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the rebellion were thereafter effected. X x x All the foregoing petitions assail the declaration of state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effe cted by virtue thereof, as having no basis both in fact and in law. Significant ly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declar ation of a state of rebellion in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners claim that the proclama tion of a state of rebellion is being used by the authorities to justify warrantle ss arrests, the Secretary of Justice denies that it has issued a particular orde r to arrest specific persons in connection with the rebellion. He states that wha t is extant are general instructions to law enforcement officers and military ag encies to implement Proclamation No. 38. x x x With this declaration, petition ers apprehensions as to warrantless arrests should be laid to rest. In quelling or suppressing the rebellion, the authorities may only resor t to warrantless arrests of persons suspected of rebellion, as provided under Se ction 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The w arrantless arrest feared by petitioners is, thus, not based on the declaration o f a state of rebellion. X x x Dissenting Opinion Justice Santiago M. Kapunan The right against unreasonable searches and seizure has been characteriz ed as belonging in the catalog of indispensable freedoms. Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncon trolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and se lf-reliance disappear where homes, persons and possessions are subject at any ho ur to unheralded search and seizure by the police. (Dissenting Opinion, J. Jacks on, in Brinegar v. United States, 338 U.S. 2084 [1949]) X x x Pursuant to the proclamation, several key leaders of the opposition were ordered arrested. X x x The basic issue raised by the consolidated petitions is whether the arre st or impending arrest without warrant, pursuant to a declaration of state of reb ellion by the President of the above-mentioned persons and unnamed other persons similarly situated suspected of having committed rebellion is illegal, being unq uestionably a deprivation of liberty and violative of the Bill of Rights under t he Constitution. The declaration of a state of rebellion Article VII of the Constitution x x x. is supposedly based on Section 18,

Section 18 grants the President, as Commander-in-Chief, the power to cal l out the armed forces in cases of (1) lawless violence, (2) rebellion and (3) i nvasion. In the latter two cases, i.e., rebellion or invasion, the President ma y, when public safety requires, also (a) suspend the privilege of the writ of ha beas corpus, or (b) place the Philippines or any part thereof under martial law. However, in the exercise of this calling out power as Commander-in-Chief of th e armed forces, the Constitution does not require the President to make a declar ation of a state of rebellion (or, for that matter, of lawless violence or invasio n). The term state of rebellion has no legal significance. It is vague and amorp hous and does not give the President more power than what the Constitution says, i.e., whenever it becomes necessary, he may call out such armed forces to preve nt or suppress lawless violence, invasion or rebellion. As Justice Mendoza obse rved during the hearing of this case, such a declaration is legal surplusage. But whatever the term means, it cannot diminish or violate constitutionally-protect ed rights, such as the right to due process, the rights of free speech and peace ful assembly to petition the government for redress of grievances, and the right against unreasonable searches and seizures, among others. X x x On the other hand, if the motive behind the declaration of a state of reb ellion is to arrest persons without warrant and detain them without bail and, thu s, skirt the Constitutional safeguards for the citizens civil liberties, the so-c alled state of rebellion partakes the nature of martial law without declaring it a s such. It is a truism that a law or rule may itself be fair or innocuous on it s face, yet, if it is applied and administered by public authority with an evil eye so as to practically make it unjust and oppressive, it is within the prohibi tion of the Constitution (See Yick Wo v. Hopkins, 118 U.S. 356). In an ironic s ense, a state of rebellion declared as a subterfuge to effect warrantless arrest a nd detention for an unbailable offense places a heavier burden on the people s civ il liberties than the suspension of the privilege of the writ of habeas corpus a nd the declaration of martial law because in the latter case, built-in safeguard s are automatically set on motion: (1) The period of martial law or suspension i s limited to a period not exceeding sixty day; (2) The President is mandated to submit a report to Congress within forty-eight hours from the proclamation or su spension; (3) The proclamation or suspension is subject to review by Congress, w hich may revoke such proclamation or suspension. If Congress is not in session, it shall convene in 24 hours without need for call; and (4) The sufficiency of the factual basis thereof or its extension is subject to review by the Supreme C ourt in an appropriate proceeding. No right is more fundamental than the right to life and liberty. Withou t these rights, all other individual rights may not exist. X x x Indeed, there is nothing in Section 18 any person acting under her direction to make ce of lawless violence, invasion or rebellion l out the armed forces to prevent or suppress lion. which authorizes the President or unwarranted arrests. The existen only authorizes the President to cal lawless violence, invasion or rebel

Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law authorizes the President to order the arrest of a ny person. The only significant consequence of the suspension of the writ of ha beas corpus is to divest the courts of the power to issue the writ whereby the d etention of the person is put in issue. It does not by itself authorize the Pre sident to order the arrest of a person. And even then, the Constitution in Sect ion 18 makes the following qualifications x x x. In the instant case, the President did not suspend the writ of habeas cor pus. Nor did she declare martial law. A declaration of a state of rebellion, at

most, only gives notice to the nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact she did. Such declaration d oes not justify any deviation from the Constitutional proscription against unrea sonable searches and seizures. As a general rule, an arrest may be made only upon a warrant issued by a court in very circumscribed instances, however, the Rules of Court allow warrant less arrests. X x x It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of Rights that a person may only be arrested on the stren gth of a warrant of arrest issued by a judge after determining personally the existe nce of probable cause after examination under oath or affirmation of the complaina nt and the witness he may produce. Its requirements should, therefore, be scrup ulously met x x x. A warrantless arrest may be justified only if the police officer had fact s and circumstances before him which, had they been before a judge, would consti tute adequate basis for a finding of probable cause of the commission of an offe nse and that the person arrested is probably guilty of committing the offense. That is why the Rules of Criminal Procedure require that when arrested, the pers on arrested has committed, is actually committing, or is attempting to commit an offense in the presence of the arresting officer. Or if it be a case of an offen se which had just been committed, that the police officer making the arrest has per sonal knowledge of facts or circumstances that the person to be arrested has com mitted it. Petitioners were arrested or sought to be arrested without warrant for ac ts of rebellion ostensibly under Section 5 of Rule 113. Respondents theory is ba sed on Umil v. Ramos (187 SCRA 311 [1990]), where this Court held: The crimes of rebellion, subversion, conspiracy or proposal to commit suc h crimes, and crimes or offenses committed in furtherance thereof or in connecti on therewith constitute direct assault against the State and are in the nature o f continuing crimes (Id., at 318) Following this theory, it is argued that under Section 5(a), a person who has committed, is actually committing, or is attempting to commit rebellion and m ay be arrested without a warrant at any time so long as the rebellion persists. Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the commission of the violent acts of petitioners therein, were upheld by the Court because at the time of their respective arrest s, they were members of organizations such as the Communist Party of the Philipp ines, the New Peoples Army and the National United Front Commission, then outlaw ed groups under the Anti-Subversion Act. Their mere membership in said illegal organizations amounted to committing the offense of subversion (187 SCRA 311, 32 1, 323-24 [1990]) which justified their arrests without warrants. In contrast, it has not been alleged that the persons to be arrested for their alleged participation in the rebellion on May 1, 2001 are members of an outl awed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the person s arrested or to be arrested has committed, is actually committing or is attempt ing to commit the offense of rebellion. In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting offi cer. In United States v. Samonte (16 Phil. 516 [1910]), the term in his [the arr esting officer s] presence was defined thus: An offense is said to be committed in the presence or within the view of

an arresting officer or private citizen when such officer or person sees the off ense, even though at a distance, or hears the disturbance created thereby and pr oceeds at once to the scene thereof, or the offense is continuing, or has not be en consummated, at the time the arrest is made (Id., at 519). This requirement was not complied with particularly in the arrest of Sena tor Enrile. In the Court s Resolution of May 5, 2001 in the petition for habeas c orpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay (G.R. No. 147785, En Banc, M ay 5, 2001 [minute resolution]). Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without wa rrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on perso nal knowledge of facts and circumstance that the person arrested has committed t he offense. At this point, it must be stressed that apart from being inapplicable to the case at bar, Umil is not without any strong dissents. It merely re-affirmed Garcia-Padilla v. Enrile (121 SCRA 472 [1983]), a case decided during the Marco s martial law regime. It cannot apply when the country is supposed to be under the regime of freedom and democracy. X x x X x x It is observed that a sufficient period has lapsed between the fateful da y of May 1, 2001 up to the present. If respondents have ample evidence against petitioners, then they should forthwith file the necessary criminal complaints i n order that the regular procedure can be followed and the warrants of arrest is sued by the courts in the normal course. When practicable, resort to the warran t process is always to be preferred because it interposes an orderly procedure in volving judicial impartiality whereby a neutral and detached magistrate can make i nformed and deliberate determination on the issue of probable cause. (LAFAVE, I S EARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (1987), pp. 548-549. cita tions omitted.) The neutrality, detachment and independence that judges are supposed to p ossess is precisely the reason the framers of the 1987 Constitution have reposed upon them alone the power to issue warrants of arrest. To vest the same to a b ranch of government, which is also charged with prosecutorial powers, would make such branch the accused s adversary and accuser, his judge and jury. (Presidentia l Anti-Dollar Salting Task Force v. CA, 171 SCRA 348 [1989]) A declaration of a state of rebellion does not relieve the State of its b urden of proving probable cause. The declaration does not constitute a substitu te for proof. It does not in any way bind the courts, which must still judge fo r itself the existence of probable cause. Under Section 18, Article VII, the de termination of the existence of a state of rebellion for purposes of proclaiming martial law or the suspension of the privilege of the writ of habeas corpus res ts for which the President is granted ample, though not absolute, discretion. U nder Section 2, Article II, the determination of probable cause is a purely lega l question of which courts are the final arbiters. Justice Secretary Hernando Perez is reported to have announced that the l ifting of the state of rebellion on May 7, 2001 does not stop the police from maki ng warrantless arrests. If this is so, the pernicious effects of the declaratio n on the people s civil liberties have not abated despite the lifting thereof. No one exactly knows who are in the list or who prepared the list of those to be a rrested for alleged complicity in the continuing crime of rebellion defined as such by executive fiat. The list of the perceived leaders, financiers and supporters

of the rebellion to be arrested and incarcerated could expand depending on the ap preciation of the police. The coverage and duration of effectivity of the order s of arrest are thus so open-ended and limitless as to place in constant and con tinuing peril the people s Bill of Rights. It is of no small significance that fo ur of the petitioners are opposition candidates for the Senate. Their campaign activities have been to a large extent immobilized. If the arrests and orders o f arrest against them are illegal, then their Constitutional right to seek publi c office, as well as the right of the people to choose their officials, is viola ted. In view of the transcendental importance and urgency of the issues raised in these cases affecting as they do the basic liberties of the citizens enshrin ed in our Constitution, it behooves us to rule thereon now, instead of relegatin g the cases to trial courts which unavoidably may come up with conflicting dispo sitions, the same to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga v. Cruz-Pano (134 SCRA 438 [1985]): The Court also has the duty to formulate guiding and controlling constitu tional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional g uarantees. Petitioners look up in urgent supplication to the Court, considered the l ast bulwark of democracy, for relief. If we do not act promptly, justly and fea rlessly, to whom will they turn to? Philsa International Placement and Services Corporation v. Secretary of Labor an d Employment 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes] Petitioner insists, however, that it cannot be held liable for illegal e xaction as POEA Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which may be collected from applicants, is void for lack of publ ication. There is merit in the argument. In Tanada v. Tuvera (136 SCRA 27 [1985]), the Court held, as follows: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promul gated by the President in the exercise of legislative powers whenever the same a re validly delegated by the legislature or, at present, directly conferred by th e Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delega tion. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and the public, need not be published. Neither is publication required of the so-called letter of in structions issued by the administrative superiors concerning the rules or guidel ines to be followed by their subordinates in the performance of their duties. Applying this doctrine, we have previously declared as having no force a nd effect the following administrative issuances: a) Rules and Regulations issue d by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation

Committee regarding the accreditation of hospitals, medical clinics and laborat ories (Joint Ministry of Health-Ministry of Labor and Employment Accreditation C ommittee v. Court of Appeals, 196 SCRA 263 [1991]); b) Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mi ning companies to the national government (Caltex Philippines, Inc. v. Court of Appeals, 208 SCRA 726 [1992]); c) Memorandum Circulars issued by the POEA regula ting the recruitment of domestic helpers to Hong Kong (Phil. Association of Serv ice Exporters v. Torres, 212 SCRA 298 [1992]); d) Administrative Order No. SOCPE C 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the People s Republic of China (Philippine Inte rnational Trading Corporation v. Angeles, 263 SCRA 421 [1996]); and e) Corporate Compensation Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees (De Jesus v. Commission on Audit, 294 SCRA 152 [1998). In all these cited cases, the administrative issuances questioned therein were u niformly struck down as they were not published or filed with the National Admin istrative Register as required by the Administrative Code of 1987 (Administrativ e Code of 1987, Book VII, chapter 2, Section 3). POEA memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the same was never published or filed with the National Administ rative Register. POEA Memorandum Circular No. 2, Series of 1983 provides for the applicab le schedule of placement and documentation fees for private employment agencies or authority holders. Under the said Order, the maximum amount which may be col lected from prospective Filipino overseas workers is P2,500.00. The said circul ar was apparently issued in compliance with the provisions of Article 32 of the Labor Code x x x. It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegat ion (Philippine International Trading Corporation v. Angeles, supra.). Consider ing that POEA Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with the National Administrative Register, the same is ineffe ctive and may not be enforced. X x x The Office of the Solicitor General likewise argues that the questioned administrative circular is not among those requiring publication contemplated by Tanada v. Tuvera as it is addressed only to a specific group of persons and not to the general public. Again, there is no merit in this argument. The fact that the said circular is addressed only to a specified group, namely private employment agencies or authority holders, does not take it away f rom the ambit of our ruling in Tanada v. Tuvera. In the case of Phil. Associati on of Service Exporters v. Torres ((212 SCRA 298 [1992]), the administrative cir culars questioned therein were addressed to an even smaller group, namely Philip pine and Hong Kong agencies engaged in the recruitment of workers for Hong Kong, and still the Court ruled therein that, for lack of proper publication, the sai d circulars may not be enforced or implemented. Our pronouncement in Tanada v. Tuvera is clear and categorical. Adminis trative rules and regulations must be published if their purpose is to enforce o r implement existing law pursuant to a valid delegation. The only exceptions ar e interpretative regulations, those merely internal in nature, or those so-calle

d letters of instructions issued by administrative superiors concerning the rule s and guidelines to be followed by their subordinates in the performance of thei r duties. Administrative Circular No. 2, Series of 1983 has not been shown to f all under any of these exceptions. In this regard, the Solicitor General s reliance on the case of Yaokasin v. Commissioner of Customs (180 SCRA 599 [1989]) is misplaced. In the said case, the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a particular class of persons, the cus toms collectors, who were also the subordinates of the Commissioner of the Burea u of Customs. As such, the said Memorandum Orders clearly fall under one of the exceptions to the publication requirement, namely those dealing with instructio ns from an administrative superior to a subordinate regarding the performance of their duties, a circumstance which does not obtain in the case at bench. X x x To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA Administrative Circular No. 2, Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. X x x Santiago v. Sandiganbayan 356 SCRA 636, April 18, 2001 En Banc [Vitug] X x x The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator o f the Republic of the Philippines, from any government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of the su spension order. The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with violation of the provisions of Republ ic Act No. 3019 has both legal and jurisprudential support. X x x In the relatively recent case of Segovia v. Sandiganbayan (288 SCRA 328 [1998]), the Court reiterated: The validity of Section 13, R.A. 3019, as amended treating of the suspensi on pendente lite of an accused public officer may no longer be put at issue, hav ing been repeatedly upheld by this Court. X x x The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective o fficials; or permanent or temporary employees, or pertaining to the career or no n-career service. (At pp. 336-337) It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information fil ed before it. Once the information is found to be sufficient in form and substa nce, the court is bound to issue an order of suspension as a matter of course, a nd there seems to be no ifs and buts about it. (Libanan v. Sandiganbayan, 163 SCRA 163 [1988]) Explaining the nature of the preventive suspension, the Court in t he case of Bayot v. Sandiganbayan (128 SCRA 383 [1984]) observed: x x x It is not a penalty because it is not imposed as a result of judicia l proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive dur

ing suspension.

(At p. 386)

In issuing the preventive suspension of petitioner, the Sandiganbayan me rely adhered to the clear and unequivocal mandate of the law, as well as the jur isprudence in which the Court has, more than once, upheld Sandiganbayan s authorit y to decree the suspension of public officials and employees indicted before it. Section 13 of Republic Act No. 3019 does not state that the public offic er concerned must be suspended only in the office where he is alleged to have co mmitted the acts with which he has been charged. Thus, it has been held that th e use of the word office would indicate that it applies to any office which the of ficer charged may be holding, and not only the particular office under which he stands accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra. ) En passant, while the imposition of suspension is not automatic or selfoperative as the validity of the information must be determined in a pre-suspens ion hearing, there is no hard and fast rule as to the conduct thereof. It has b een said that x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate oppor tunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he has not been afforded the right of due preliminary investigation; that t he acts for which he stands charged do not constitute a violation of the provisi ons of Republic Act 3019 or the bribery provisions of the Revised Penal Code whi ch would warrant his mandatory suspension from office under Section 13 of the Ac t; or he may present a motion to quash the information on any of the grounds pro vided for in Rule 117 of the Rules of Court x x x. x x x Likewise, he is accorded the right to challenge the propriety of his prose cution on the ground that the acts for which he is charged do not constitute a v iolation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information on any other gr ounds provided in Rule 117 of the Rules of Court. However, a challenge to the validity of the criminal proceedings on the gr ound that the acts for which the accused is charged do not constitute a violatio n of the provisions of Rep. Act No. 3019, or of the provisions on bribery of the Revised Penal Code, should be treated only in the same manner as a challenge to the criminal proceeding by way of a motion to quash on the ground provided in P aragraph (a), Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a resolution of the chall enge to the validity of the criminal proceeding, on such ground, should be limit ed to an inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code. (Luciano v. Mariano, 40 S CRA 187 [1971]; People v. Albano, 163 SCRA 511, 517-519 [1988]) The law does not require that the guilt of the accused must be establish ed in a pre-suspension proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence o f culpability against him, (2) the gravity of the offense charged, or (3) whethe r or not his continuance in office could influence the witnesses or pose a threa t to the safety and integrity of the records and other evidence before the court could have a valid basis in decreeing preventive suspension pending the trial o f the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as, that he has

not been afforded the right to due preliminary investigation, that the acts impu ted to him do not constitute a specific crime warranting his mandatory suspensio n from office under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure (Segovia v. Sandiganbayan, supra; Resolu tion of the Supreme Court in A.M. No. 00-05-03-SC, dated 03 October 2000, which became effective on 01 December 2000) X x x The pronouncement, upholding the validity of the information filed again st petitioner, behooved Sandiganbayan to discharge its mandated duty to forthwit h issue the order of preventive suspension. The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution wh ich provides that each x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Mem bers, suspend or expel a Member. A penalty of suspension, when imposed, shall n ot exceed sixty days. (Section 16[3], Article VI, 1987 Constitution) The suspension contemplated in the above constitutional provision is a p unitive measure that is imposed upon determination by the Senate or the House of Representatives, as the case may be, upon an erring member. Thus, in its resol ution in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al. (G.R. No. 11 8364, 08 August 1995), the Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the court on the prerogatives of Congress. The Court ruled: x x x. Petitioner s invocation of Section 16 (3), Article VI of the Constit ution which deals with the power of each House of Congress inter alia to punish i ts Members for disorderly behavior, and suspend or expel a Member by a vote of twothirds of all its Members subject to the qualification that the penalty of suspe nsion, when imposed, should not exceed sixty days in unavailing, as it appears t o be quite distinct from the suspension spoken of in Section 13 of RA 3019, whic h is not a penalty but a preliminary, preventive measure, prescinding from the f act that the latter is not being imposed on petitioner for misbehavior as a Memb er of the House of Representatives. The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independ ent, albeit coordinate, branches of the government the Legislative, the Executiv e and the Judiciary has exclusive prerogatives and cognizance within its own sph ere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch. Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settl ement of actual controversies involving rights which are legally demandable and e nforceable, but also in the determination of whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The provision allowing the Cour t to look into any possible grave abuse of discretion committed by any governmen t instrumentality has evidently been couched in general terms in order to make i t malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply an arbitrary, despotic, capr icious or whimsical exercise of judgment amounting to lack or excess of jurisdic

tion. When the question, however, pertains to an affair internal to either of C ongress or the Executive, the Court subscribes to the view that unless an infrin gement of any specific Constitutional proscription thereby inheres the Court sho uld not deign substitute its own judgment over that of any of the other two bran ches of government. It is an impairment or a clear disregard of a specific cons titutional precept or provision that can unbolt the steel door for judicial inte rvention. If any part of the Constitution is not, or ceases to be, responsive t o contemporary needs, it is the people, not the Court, who must promptly react i n the manner prescribed by the Charter itself. Republic Act No. 3019 does not exclude from its coverage the members of C ongress and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order. Attention might be called to the fact that Criminal Case No. 16698 has be en decided by the First Division of the Sandiganbayan on 06 December 1999, acqui tting herein petitioner. The Court, nevertheless, deems it appropriate to rende r this decision for future guidance on the significant issue raised by petitione r. ?? ?? ?? ??