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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 202242 July 17, 2012 FRANCISCO I.

CHAVEZ, Petitioner, vs. JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR., Respondents. DECISION MENDOZA, J.: The issue at hand has been in hibernation until the unexpected departure of Chief Justice Renato C. Corona on May 29, 2012, and the nomination of former Solicitor General Francisco I. Chavez (petitioner), as his potential successor, triggered the filing of this case. The issue has constantly been nagging legal minds, yet remained dormant for lack of constitutional challenge. As the matter is of extreme urgency considering the constitutional deadline in the process of selecting the nominees for the vacant seat of the Chief Justice, the Court cannot delay the resolution of the issue a day longer. Relegating it in the meantime to the back burner is not an option. Does the first paragraph of Section 8, Article VIII of the 1987 Constitution allow more than one (1) member of Congress to sit in the JBC? Is the practice of having two (2) representatives from each house of Congress with one (1) vote each sanctioned by the Constitution? These are the pivotal questions to be resolved in this original action for prohibition and injunction. Long before the naissance ( Birth in meaning) of the present Constitution, the annals (record of history of event) of history bear witness to the fact that the exercise of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government. Like their progenitor of American origins, both the Malolos Constitution1 and the 1935 Constitution2 had vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on Appointments. It was during these times that the country became witness to the deplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.3 Then, with the fusion of executive and legislative power under the 1973 Constitution,4 the appointment of judges and justices was no longer subject to the scrutiny of another body. It was absolute, except that the appointees must have all the qualifications and none of the disqualifications. Prompted by the clamor to rid the process of appointments to the Judiciary from political pressure and partisan activities, 5 the members of the Constitutional Commission saw the need to create a separate, competent and independent body to recommend nominees to the President. Thus, it conceived of a body representative of all the stakeholders in the judicial appointment process and called it the Judicial and Bar Council (JBC). Its composition, term and functions are provided under Section 8, Article VIII of the Constitution, viz: Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. (2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year. (3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings. (4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council. (5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. In compliance therewith, Congress, from the moment of the creation of the JBC, designated one representative to sit in the JBC to act as one of the ex officio members.6 Perhaps in order to give equal opportunity to both houses to sit in the exclusive body, the House of Representatives and the Senate would send alternate representatives to the JBC. In other words, Congress had only one (1) representative. In 1994, the composition of the JBC was substantially altered. Instead of having only seven (7) members, an eighth (8th) member was added to the JBC as two (2) representatives from Congress began sitting in the JBC - one from the House of Representatives and one from the Senate, with each having onehalf (1/2) of a vote.7 Then, curiously, the JBC En Banc, in separate meetings held in 2000 and 2001, decided to allow the representatives from the Senate

and the House of Representatives one full vote each.8 At present, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC as representatives of the legislature. It is this practice that petitioner has questioned in this petition, 9 setting forth the following GROUNDS FOR ALLOWANCE OF THE PETITION I Article VIII, Section 8, Paragraph 1 is clear, definite and needs no interpretation in that the JBC shall have only one representative from Congress. II The framers of the Constitution clearly envisioned, contemplated and decided on a JBC composed of only seven (7) members. III Had the framers of the Constitution intended that the JBC composed of the one member from the Senate and one member from the House of Representatives, they could have easily said so as they did in the other provisions of the Constitution. IV The composition of the JBC providing for three ex-officio members is purposely designed for a balanced representation of each of the three branches of the government. V One of the two (2) members of the JBC from Congress has no right (not even right) to sit in the said constitutional body and perform the duties and functions of a member thereof. VI The JBC cannot conduct valid proceedings as its composition is illegal and unconstitutional.10 On July 9, 2012, the JBC filed its Comment.11 It, however, abstained from recommending on how this constitutional issue should be disposed in gracious deference to the wisdom of the Court. Nonetheless, the JBC was more than generous enough to offer the insights of various personalities previously connected with it.12 Through the Office of the Solicitor General (OSG), respondents defended their position as members of the JBC in their Comment 13 filed on July 12, 2012. According to them, the crux of the controversy is the phrase "a representative of Congress." 14 Reverting to the basics, they cite Section 1, Article VI of the Constitution15 to determine the meaning of the term "Congress." It is their theory that the two houses, the Senate and the House of Representatives, are permanent and mandatory components of "Congress," such that the absence of either divests the term of its substantive meaning as expressed under the Constitution. In simplistic terms, the House of Representatives, without the Senate and vice-versa, is not Congress.16 Bicameralism, as the system of choice by the Framers, requires that both houses exercise their respective powers in the performance of its mandated duty which is to legislate. Thus, when Section 8(1), Article VIII of the Constitution speaks of "a representative from Congress," it should mean one representative each from both Houses which comprise the entire Congress.17 Tracing the subject provisions history, the respondents claim that when the JBC was established, the Fra mers originally envisioned a unicameral legislative body, thereby allocating "a representative of the National Assembly" to the JBC. The phrase, however, was not modified to aptly jive with the change to bicameralism, the legislative system finally adopted by the Constitutional Commission on July 21, 1986. According to respondents, if the Commissioners were made aware of the consequence of having a bicameral legislature instead of a unicameral one, they would have made the corresponding adjustment in the representation of Congress in the JBC.18 The ambiguity having resulted from a plain case of inadvertence, the respondents urge the Court to look beyond the letter of the disputed provision because the literal adherence to its language would produce absurdity and incongruity to the bicameral nature of Congress. 19 In other words, placing either of the respondents in the JBC will effectively deprive a house of Congress of its representation. In the same vein, the electorate represented by Members of Congress will lose their only opportunity to participate in the nomination process for the members of the Judiciary, effectively diminishing the republican nature of the government.20

The respondents further argue that the allowance of two (2) representatives of Congress to be members of the JBC does not render the latters purpose nugatory. While they admit that the purpose in creating the JBC was to insulate appointments to the Judiciary from political influence, they likewise cautioned the Court that this constitutional vision did not intend to entirely preclude political factor in said appointments. Therefore, no evil should be perceived in the current set-up of the JBC because two (2) members coming from Congress, whose membership to certain political parties is irrelevant, does not necessarily amplify political partisanship in the JBC. In fact, the presence of two (2) members from Congress will most likely provide balance as against the other six (6) members who are undeniably presidential appointees.21 The Issues In resolving the procedural and substantive issues arising from the petition, as well as the myriad of counter-arguments proffered by the respondents, the Court synthesized them into two: (1) Whether or not the conditions sine qua non for the exercise of the power of judicial review have been met in this case; and (2) Whether or not the current practice of the JBC to perform its functions with eight (8) members, two (2) of whom are members of Congress, runs counter to the letter and spirit of the 1987 Constitution. The Power of Judicial Review In its Comment, the JBC submits that petitioner is clothed with locus standi to file the petition, as a citizen and taxpayer, who has been nominated to the position of Chief Justice.22 For the respondents, however, petitioner has no "real interest" in questioning the constitutionality of the JBCs current composition. 23 As outlined in jurisprudence, it is well-settled that for locus standi to lie, petitioner must exhibit that he has been denied, or is about to be denied, of a personal right or privilege to which he is entitled. Here, petitioner failed to manifest his acceptance of his recommendation to the position of Chief Justice, thereby divesting him of a substantial interest in the controversy. Without his name in the official list of applicants for the post, the respondents claim that there is no personal stake on the part of petitioner that would justify his outcry of unconstitutionality. Moreover, the mere allegation that this case is of transcendental importance does not excuse the waiver of the rule on locus standi, because, in the first place, the case lacks the requisites therefor. The respondents also question petitioners belated filing of the petition.24 Being aware that the current composition of the JBC has been in practice since 1994, petitioners silence for eighteen (18) years show that the constitutional issue being raised before the Court does not comply with the "earliest possible opportunity" requirement. Before addressing the above issues in seriatim, the Court deems it proper to first ascertain the nature of the petition. Pursuant to the rule that the nature of an action is determined by the allegations therein and the character of the relief sought, the Court views the petition as essentially an action for declaratory relief under Rule 63 of the 1997 Rules of Civil Procedure. 25 The Constitution as the subject matter, and the validity and construction of Section 8 (1), Article VIII as the issue raised, the petition should properly be considered as that which would result in the adjudication of rights sans the execution process because the only relief to be granted is the very declaration of the rights under the document sought to be construed. It being so, the original jurisdiction over the petition lies with the appropriate Regional Trial Court (RTC). Notwithstanding the fact that only questions of law are raised in the petition, an action for declaratory relief is not among those within the original jurisdiction of this Court as provided in Section 5, Article VIII of the Constitution.26 At any rate, due to its serious implications, not only to government processes involved but also to the sanctity of the Constitution, the Court deems it more prudent to take cognizance of it. After all, the petition is also for prohibition under Rule 65 seeking to enjoin Congress from sending two (2) representatives with one (1) full vote each to the JBC. The Courts power of judicial review, like almost all other powers conferred by the Constitution, is subject to several limitations , namely: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case, such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. 27 Generally, a party will be allowed to litigate only when these conditions sine qua non are present, especially when the constitutionality of an act by a co-equal branch of government is put in issue. Anent locus standi, the question to be answered is this: does the party possess a personal stake in the outcome of the controversy as to assure that there is real, concrete and legal conflict of rights and duties from the issues presented before the Court? In David v. Macapagal-Arroyo,28 the Court summarized the rules on locus standi as culled from jurisprudence. There, it was held that taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. In public suits, the plaintiff, representing the general public, asserts a "public right" in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from any other person, and can be suing as a "stranger," or as a "citizen" or "taxpayer." Thus, taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.29

In this case, petitioner seeks judicial intervention as a taxpayer, a concerned citizen and a nominee to the position of Chief Justice of the Supreme Court. As a taxpayer, petitioner invokes his right to demand that the taxes he and the rest of the citizenry have been paying to the government are spent for lawful purposes. According to petitioner, "since the JBC derives financial support for its functions, operation and proceedings from taxes paid, petitioner possesses as taxpayer both right and legal standing to demand that the JBCs proceedings are not tainted with illegality and that its composition and actions do not violate the Constitution."30 Notably, petitioner takes pains in enumerating past actions that he had brought before the Court where his legal standing was sustained. Although this inventory is unnecessary to establish locus standi because obviously, not every case before the Court exhibits similar issues and facts, the Court recognizes the petitioners right to sue in this case. Clearly, petitioner has the legal standing to bring the pres ent action because he has a personal stake in the outcome of this controversy. The Court disagrees with the respondents contention that petitioner lost his standing to sue because he is not an official n ominee for the post of Chief Justice. While it is true that a "personal stake" on the case is imperative to have locus standi, this is not to say that only official nominees for the post of Chief Justice can come to the Court and question the JBC composition for being unconstitutional. The JBC likewise screens and nominates other members of the Judiciary. Albeit heavily publicized in this regard, the JBCs duty is not at all limited to the nominations for the h ighest magistrate in the land. A vast number of aspirants to judicial posts all over the country may be affected by the Courts ruling. More importantly, the legality of the very process of nominations to the positions in the Judiciary is the nucleus of the controversy. The Court considers this a constitutional issue that must be passed upon, lest a constitutional process be plagued by misgivings, doubts and worse, mistrust. Hence, a citizen has a right to bring this question to the Court, clothed with legal standing and at the same time, armed with issues of transcendental importance to society. The claim that the composition of the JBC is illegal and unconstitutional is an object of concern, not just for a nominee to a judicial post, but for all citizens who have the right to seek judicial intervention for rectification of legal blunders. With respect to the question of transcendental importance, it is not difficult to perceive from the opposing arguments of the parties that the determinants established in jurisprudence are attendant in this case: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in the questions being raised.31 The allegations of constitutional violations in this case are not empty attacks on the wisdom of the other branches of the government. The allegations are substantiated by facts and, therefore, deserve an evaluation from the Court. The Court need not elaborate on the legal and societal ramifications of the issues raised. It cannot be gainsaid that the JBC is a constitutional innovation crucial in the selection of the magistrates in our judicial system. The Composition of the JBC Central to the resolution of the foregoing petition is an understanding of the composition of the JBC as stated in the first paragraph of Section 8, Article VIII of the Constitution. It reads: Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. From a simple reading of the above-quoted provision, it can readily be discerned that the provision is clear and unambiguous. The first paragraph calls for the creation of a JBC and places the same under the supervision of the Court. Then it goes to its composition where the regular members are enumerated: a representative of the Integrated Bar, a professor of law, a retired member of the Court and a representative from the private sector. On the second part lies the crux of the present controversy. It enumerates the ex officio or special members of the JBC composed of the Chief Justice, who shall be its Chairman, the Secretary of Justice and "a representative of Congress." As petitioner correctly posits, the use of the singular letter "a" preceding "representative of Congress" is unequivocal and leaves no room for any other construction. It is indicative of what the members of the Constitutional Commission had in mind, that is, Congress may designate only one (1) representative to the JBC. Had it been the intention that more than one (1) representative from the legislature would sit in the JBC, the Framers could have, in no uncertain terms, so provided. One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.32 It is a well-settled principle of constitutional construction that the language employed in the Constitution must be given their ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitution should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. 33 Verba legis non est recedendum from the words of a statute there should be no departure. 34 The raison d tre for the rule is essentially two-fold: First, because it is assumed that the words in which constitutional provisions are couched express the objective sought to be attained;35 and second, because the Constitution is not primarily a lawyers document but essentially that of the people, in whose consciousness it should ever be present as an important condition for the rule of law to prevail. 36 Moreover, under the maxim noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, its correct construction may be made clear and specific by considering the company of words in which it is founded or with which it is associated. 37 This is because a word or phrase in a statute is always used in association with other words or phrases, and its meaning may, thus, be modified or restricted by the latter.38 The particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. A statute must be so construed as to harmonize and give effect to all its provisions whenever possible.39 In short, every meaning to be given to each word or phrase must be ascertained from the context of the body of the statute since a word or phrase in a statute is always used in association with other words or phrases and its meaning may be modified or restricted by the latter.

Applying the foregoing principle to this case, it becomes apparent that the word "Congress" used in Article VIII, Section 8(1) of the Constitution is used in its generic sense. No particular allusion whatsoever is made on whether the Senate or the House of Representatives is being referred to, but that, in either case, only a singular representative may be allowed to sit in the JBC. The foregoing declaration is but sensible, since, as pointed out by an esteemed former member of the Court and consultant of the JBC in his memorandum, 40 "from the enumeration of the membership of the JBC, it is patent that each category of members pertained to a single individual only."41 Indeed, the spirit and reason of the statute may be passed upon where a literal meaning would lead to absurdity, contradiction, injustice, or defeat the clear purpose of the lawmakers.42 Not any of these instances, however, is present in the case at bench. Considering that the language of the subject constitutional provision is plain and unambiguous, there is no need to resort extrinsic aids such as records of the Constitutional Commission. Nevertheless, even if the Court should proceed to look into the minds of the members of the Constitutional Commission, it is undeniable from the records thereof that it was intended that the JBC be composed of seven (7) members only. Thus: MR. RODRIGO: Let me go to another point then. On page 2, Section 5, there is a novel provision about the appointments of members of the Supreme Court and judges of the lower courts. At present it is the President who appoints them. If there is a Commission on Appointments, then it is the President with the confirmation of the Commission on Appointment. In this proposal, we would like to establish a new office, a sort of a board composed of seven members called the Judicial and Bar Council. And while the President will still appoint the member of the judiciary, he will be limited to the recommendees of this Council. xxxxxxxxx MR. RODRIGO. Of the seven members of the Judicial and Bar Council, the President appoints four of them who are regular members. xxxxxxxxx MR. CONCEPCION. The only purpose of the Committee is to eliminate partisan politics. 43 xxxxxxxxx MR. RODRIGO. If my amendment is approved, then the provision will be exactly the same as the provision in the 1935 Constitution, Article VIII, Section 5. xxxxxxxxx If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this will be a diminution of the appointing power of the highest magistrate of the land, of the President of the Philippines elected by all the Filipino people. The appointing power will be limited by a group of seven people who are not elected by the people but only appointed. Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional provisions on appointments. The members of the Judiciary will be segregated from the rest of the government. Even a municipal judge cannot be appointed by the President except upon recommendation or nomination of the three names by this Committee of seven people, commissioners of the Commission on Elections, the COA and the Commission on Civil Serviceeven ambassadors, generals of the Army will not come under this restriction. Why are we going to segregate the Judiciary from the rest of our government in the appointment of high-ranking officials? Another reason is that this Council will be ineffective. It will just besmirch the honor of our President without being effective at all because this Council will be under the influence of the President. Four out of seven are appointees of the President and they can be reappointed when their term ends. Therefore, they would be kowtow the President. A fifth member is the Minister of Justice, an alter ego of the President. Another member represents the Legislature. In all probability, the controlling part in the legislature belongs to the President and, therefore, this representative form the National Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that event the Chief Justice of the Supreme Court is an appointee of the President. So it is futile he will be influence anyway by the President.44 [Emphases supplied] At this juncture, it is worthy to note that the seven-member composition of the JBC serves a practical purpose, that is, to provide a solution should there be a stalemate in voting. This underlying reason leads the Court to conclude that a single vote may not be divided into half (1/2), between two representatives of Congress, or among any of the sitting members of the JBC for that matter. This unsanctioned practice can possibly cause disorder and eventually muddle the JBCs voting process, especially in the event a tie is reached. The aforesaid purpose would then be rendered illus ory, defeating the precise mechanism which the Constitution itself created. While it would be unreasonable to expect that the Framers provide for every possible scenario, it is sensible to presume that they knew that an odd composition is the best means to break a voting deadlock. The respondents insist that owing to the bicameral nature of Congress, the word "Congress" in Section 8(1), Article VIII of the Constitution should be read as including both the Senate and the House of Representatives. They theorize that it was so worded because at the time the said provision was being drafted, the Framers initially intended a unicameral form of Congress.

Then, when the Constitutional Commission eventually adopted a bicameral form of Congress, the Framers, through oversight, failed to amend Article VIII, Section 8 of the Constitution.45 On this score, the Court cites the insightful analysis of another member of the Court and JBC consultant, retired Justice Consuelo Ynares-Santiago.46 Thus: A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the Commissions d esire "to have in the Council a representation for the major elements of the community." xxx The ex-officio members of the Council consist of representatives from the three main branches of government while the regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch of government. xxx Thus, the JBC was designed to have seven voting members with the three ex-officio members having equal say in the choice of judicial nominees. xxxxxxxxx No parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of its legislative powers under Article VI and constituent powers under Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of government, is constitutionally treated as another co-equal branch of in the matter of its representative in the JBC. On the other hand, the exercise of legislative and constituent powers requires the Senate and House of Representatives to coordinate and act as dist inct bodies in furtherance of Congress role under our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the two houses of Congress as they relate inter se, no such dichotomy need be made when Congress interacts with the other two co-equal branches of government. It is more in keeping with the co-equal nature of the three governmental branches to assign the same weight to considerations that any of its representatives may have regarding aspiring nominees to the judiciary. The representatives of the Senate and the House of Representatives act as such for one branch and should not have any more quantitative influence as the other branches in the exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality among the three branches support this conclusion. [Emphases and underscoring supplied] More than the reasoning provided in the above discussed rules of constitutional construction, the Court finds the above thesis as the paramount justification of the Courts conclusion that "Congress," in the context of JBC representation, should be considered as one body. It is evident that the definition of "Congress" as a bicameral body refers to its primary function in government - to legislate.47 In the passage of laws, the Constitution is explicit in the distinction of the role of each house in the process. The same holds true in Congress non -legislative powers such as, inter alia, the power of appropriation,48 the declaration of an existence of a state of war,49 canvassing of electoral returns for the President and Vice-President,50 and impeachment.51 In the exercise of these powers, the Constitution employs precise language in laying down the roles which a particular house plays, regardless of whether the two houses consummate an official act by voting jointly or separately. An inter-play between the two houses is necessary in the realization of these powers causing a vivid dichotomy that the Court cannot simply discount. Verily, each house is constitutionally granted with powers and functions peculiar to its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and balances, to the other branches of government. This, however, cannot be said in the case of JBC representation because no liaison between the two houses exists in the workings of the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Hence, the term "Congress" must be taken to mean the entire legislative department. A fortiori, a pretext of oversight cannot prevail over the more pragmatic scheme which the Constitution laid with firmness, that is, that the JBC has a seat for a single representative of Congress, as one of the co-equal branches of government. Doubtless, the Framers of our Constitution intended to create a JBC as an innovative solution in response to the public clamor in favor of eliminating politics in the appointment of members of the Judiciary.52 To ensure judicial independence, they adopted a holistic approach and hoped that, in creating a JBC, the private sector and the three branches of government would have an active role and equal voice in the selection of the members of the Judiciary. Therefore, to allow the Legislature to have more quantitative influence in the JBC by having more than one voice speak, whether with one full vote or onehalf (1/2) a vote each, would, as one former congressman and member of the JBC put it, "negate the principle of equality among the three branches of government which is enshrined in the Constitution."53 To quote one former Secretary of Justice: The present imbalance in voting power between the Legislative and the other sectors represented in the JBC must be corrected especially when considered vis--vis the avowed purpose for its creation, i.e., to insulate the appointments in the Judiciary against political influence. By allowing both houses of Congress to have a representative in the JBC and by giving each representative one (1) vote in the Council, Congress, as compared to the other members of the JBC, is accorded greater and unwarranted influence in the appointment of judges. 54 [Emphasis supplied] It is clear, therefore, that the Constitution mandates that the JBC be composed of seven (7) members only. Thus, any inclusion of another member, whether with one whole vote or half (1/2) of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the Judiciary is explicit. Any circumvention of the constitutional mandate should not be countenanced for the Constitution is the supreme law of the land. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of the government and the people who run it.55 Hence, any act of the government or of a public official or employee which is contrary to the Constitution is illegal, null and void. As to the effect of the Courts finding that the current composition of the JBC is unconstitutional, it bears mentioning that as a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been

passed at all.56 This rule, however, is not absolute. In the interest of fair play under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally recognized. They are not nullified. In Planters Products, Inc. v. Fertiphil Corporation, 57 the Court explained: The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. 1wphi1 It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it. Considering the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless valid. At this point, the Court takes the initiative to clarify that it is not in a position to determine as to who should remain as the sole representative of Congress in the JBC. This is a matter beyond the province of the Court and is best left to the determination of Congress. Finally, while the Court finds wisdom in respondents' contention that both the Senate and the House of Representatives should be equally represented in the JBC, the Court is not in a position to stamp its imprimatur on such a construction at the risk of expanding the meaning of the Constitution as currently worded. Needless to state, the remedy lies in the amendment of this constitutional provision. The courts merely give effect to the lawgiver's intent. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct, by reading into the law what is not written therein. WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council IS declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only one ( 1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8( 1 ), Article VIII of the 1987 Constitution. This disposition is immediately executory. SO ORDERED. JOSE CATRAL MENDOZA Associate Justice WE CONCUR:


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


The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos,i[1] is invoked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and patrimony covered by the protective mantle of the Constitution. The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual strategic partner, is to provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel .ii[2] In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner. Pertinent provisions of the bidding rules prepared by respondent GSIS state I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila Hotel x x x x b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995); and b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the Government Corporate Counsel) are obtained.iii[3]

Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad.iv[4] In a subsequent letter dated 10 October 1995 petitioner sent a managers check issued by Philtrust Bank for Thirty -three Million Pesos (P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad x x x xv[5] which respondent GSIS refused to accept. On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm. On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae. In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people. To all intents and purposes, it has become a part of the national[6] Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.vii[7] It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share.viii[8] Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) x x x x Thus, for the said provision to operate, there must be existing laws to lay down conditions under which business may be done.ix[9] Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation. What is more, the

mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State. Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the beginning and not after it had lost in the bidding. Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share , is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place. Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of them by petitioner. We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation.x[10] It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered.xi[11] Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. xii[12] A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action.xiii[13]

As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. xiv[14] This can be cataclysmic. That is why the prevailing view is, as it has always been, that x x x x in case of doubt, the Constitution should be considered self-executing rather than non-selfexecuting x x x x Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.xv[15]

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not selfexecuting, as they quote from discussions on the floor of the 1986 Constitutional Commission MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of PREFERENCE is given to QUALIFIED FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens? THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word QUALIFIED? MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As against aliens or over aliens ? MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED because the existing laws or prospective laws will always lay down conditions under which business may be done. For example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera (underscoring supplied by respondents). MR. RODRIGO. It is just a matter of style. MR. NOLLEDO. Yes.xvi[16]

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

of constitutional right and make it more available. xvii[17] Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing.xviii[18] The argument is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part and non-self-executing in another.xix[19] Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and policies, which are basically not self-executing and only placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights - are simply not in point. Basco v. Philippine Amusements and Gaming Corporationxx[20] speaks of constitutional provisions on personal dignity,xxi[21] the sanctity of family life,xxii[22] the vital role of the youth in nation-building,xxiii[23] the promotion of social justice,xxiv[24] and the values of education.xxv[25] Tolentino v. Secretary of Financexxvi[26] refers to constitutional provisions on social justice and human rightsxxvii[27] and on education.xxviii[28] Lastly, Kilosbayan, Inc. v. Moratoxxix[29] cites provisions on the promotion of general welfare,xxx[30] the sanctity of family life,xxxi[31] the vital role of the youth in nation-buildingxxxii[32] and the promotion of total human liberation and development.xxxiii[33] A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only principles upon which legislations must be based. Res ipsa loquitur. On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that - qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium. As regards our national patrimony, a member of the 1986 Constitutional Commissionxxxiv[34] explains The patrimony of the Nation that should be conserved and developed refers not only to our rich natural resources but also to the cultural heritage of our race. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.xxxv[35] When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino.

Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of the 1930s. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality.xxxvi[36] The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City.xxxvii[37] During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places for their final stand. Thereafter, in the 1950s and 1960s, the hotel became the center of political activities, playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d etat where an aspirant for vice-president was proclaimed President of the Philippine Republic. For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands. xxxviii[38] The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in substituting the words QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS.

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

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

The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can ask a question. MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred? MR. NOLLEDO. The answer is yes. MR. FOZ. Thank you.xli[41]

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called Filipino First policy. That means that Filipinos should be given preference in the grant of concessions, privileges and rights covering the national patrimony.xlii[42]

The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified by Commissioner Nolledoxliii[43] Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is better known as the FILIPINO FIRST Policy x x x x This provision was never found in previous Constitutions x x x x The term qualified Filipinos simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counterproductive and inimical to the common good. In the granting of economic rights, privileges, and concessions, when a choice has to be made between a qualified foreigner and a qualified Filipino, the latter shall be chosen over the former.

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

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional provision - by the government itself - is only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the government a defense that arises out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts - provided that there are discoverable legal standards for executive action. When the executive acts, it must be guided by its own understanding of the constitutional command and of applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional government operates.xlv[45]

Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a state action. In constitutional jurisprudence, the acts of persons distinct from the government are considered state action covered by the Constitution (1) when the activity it engages in is a public function; (2) when the government is so significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of state action. Without doubt therefore the transaction, although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command.xlvi[46] When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State. After all, government is composed of three (3) divisions of power - legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three (3) branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State. It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties. Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose

their reason for being. Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share.xlvii[47] Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself. In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law. This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum. The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioners matching bid did the latter have a cause of action. Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987

Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. The position of the Court on this matter could have not been more appropriately articulated by Chief Justice Narvasa As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress and development x x x x in connection with a temporary injunction issued by the Courts First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were published in a major daily to the effect that that injunction again demonstrates that the Philippine legal system can be a major obstacle to doing business here. Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism.xlviii[48]

Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved.xlix[49] Nationalism is inherent in the very concept of the Philippines being a democratic and republican state, with sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of nationalism.l[50] The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul - a place with a history of grandeur; a most historical setting that has played a part in the shaping of a[51] This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark - this Grand Old Dame of hotels in Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nations soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a

qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all that it stands for - is sold to a non-Filipino? How much of national pride will vanish if the nations cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution. WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary agreements and documents to effect the sale, to issue the necessary clearances and to do such other acts and deeds as may be necessary for the purpose. SO ORDERED. Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ, concur. Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent. Padilla, J., see concurring opinion. Vitug, J., see separate concurring opinion Mendoza, J., see concurring opinion Torres, J., with separate opinion Puno, J., see dissent. Panganiban J., with separate dissenting opinion.

i[1] ii[2]

See Sec. 10, par. 2, Art. XII, 1987 Constitution. Par. I. Introduction and Highlights, Guidelines and Procedures: Second Prequalifications and Public Bidding of the MHC Privatization; Annex A, Consolidated Reply to Comments of Respondents; Rollo, p.142. Par. V. Guidelines for the Public Bidding, Id., pp. 153-154. Annex A, Petition for Prohibition and Mandamus with Temporary Res training Order; Rollo, pp.13-14. Annex B, Petition for Prohibition and Mandamus with Temporary Restraining Order; Id., p.15. Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-6; Id., pp.6-7. Consolidated Reply to Comments of Respondents, p. 17; Id., p.133. Par. V. J. 1,Guidelines for Public Bidding, Guidelines and Procedures: Second Prequalifications and Public Bidding of the MHC Privatization, Annex A, Consolidated Reply to Comments of Respondents; Id., p. 154.

iii[3] iv[4] v[5] vi[6] vii[7]


ix[9] x[10]

Respondents Joint Comment with Urgent Motion to Lift Temporary Restraining Order, p.9; Rollo, p. 44. Marbury v. Madison, 5 U.S. 138 (1803). 11 Am Jur. 606.


xii[12] xiii[13] xiv[14] xv[15] xvi[16]

16 Am Jur. 2d 281. Id., p. 282. See Note 12. Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10. Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608. 16 Am Jur 2d 283-284.

xvii[17] xviii[18]

Sec. 10, first par., reads: The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.
xix[19] xx[20] xxi[21]

State ex rel. Miller v. OMalley, 342 Mo 641, 117 SW2d 319. G.R. No. 91649, 14 May 1991, 197 SCRA 52. Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he State values the dignity of every human person and guarantees full respect for human rights. Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the government. Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.




Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports), provides that [t]he State shall:

(1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; (2) Establish and maintain a system of free public education in the elementary and high school levels. Without limiting the natural right of parents to rear their children, elementary education is compulsory for all children of school age; (3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged; (4) Encourage non-formal, informal, and indigenous learning, independent, and out-of-school study programs particularly those that respond to community needs; and (5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills.
xxvi[26] xxvii[27] xxviii[28]

G.R. No. 115455, 25 August 1994, 235 SCRA 630. See Note 25. Sec. 1, Art. XIV, provides that [t]he State shall protect and promote the right of all citizens to quality education at all levels of education and shall take appropriate steps to make such education accessible to all.

xxix[29] xxx[30]

G.R. No. 118910, 17 July 1995. Sec. 5, Art. II (Declaration of Principles and State Policies), provides that [t]he maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. See Note 23. See Note 24. Sec. 17, Art. II, provides that [t]he State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

xxxi[31] xxxii[32]


xxxiv[34] xxxv[35] xxxvi[36]

Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p. 72. Websters Third New International Dictionary, 1986 ed., p. 1656. The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President Dwight Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime Minister Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime Minister Malcolm Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia, Prime Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan Hassanal Bolkiah of Brunei, President Ramaswami Venkataraman of India, Prime Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva Cimma of Chile, Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia, President Kim Young Sam of Korea, Princess Infanta Elena of Spain, President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia, King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of Argentina, Prime Ministers Chatichai Choonhavan and Prem Tinsulanonda of Thailand, Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech Republic, Gen. Norman Schwarzkopf of U.S.A., President Ernesto Perez Balladares of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar Hashemi Rafsanjani of Iran, President Askar Akayev of Kyrgyztan, President Ong Teng Cheong of Singapore, President Frei Ruiz Tagle of Chile, President Le Duc Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see Memorandum for Petitioner, pp. 16-19. Authored by Beth Day Romulo. See Note 9, pp.15-16; Rollo, pp. 50-51.

xxxvii[37] xxxviii[38] xxxix[39] xl[40] xli[41] xlii[42] xliii[43] xliv[44] xlv[45] xlvi[46] xlvii[47] xlviii[48]

Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 607.

Id., p. 612. Id., p. 616. Id., p. 606. Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.930-931. Bidders were required to have at least one of the these qualifications to be able to participate in the bidding process; see Note 2. Memorandum of Fr. Joaquin G. Bernas, S.J., p.6. Id., pp. 3-4. See Note 8. Keynote Address at the ASEAN Regional Symposium on Enforcement of Industrial Property Rights held 23 October 1995 at New World Hotel, Makati City.


Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers and Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top, Hotel Intercontinental, Makati City.

l[50] li[51]

Memorandum of Authorities submitted by former Chief Justice Enrique M. Fernando, p.5. 8 March 1996 issue of Philippine Daily Inquirer, p. B13.


[G.R. No. 104768. July 21, 2003]

Republic of the Philippines, petitioner, vs. Sandiganbayan, Major General Josephus Q. Ramas and Elizabeth Dimaano, respondents. DECISION CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the Sandiganbayan (First Division)li[1] dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037. The first Resolution dismissed petitioners Amended Complaint and ord ered the return of the confiscated items to respondent Elizabeth Dimaano, while the second Resolution denied petitioner s Motion for Reconsideration. Petitioner prays for the grant of the reliefs sought in its Amended Complaint, or in the alternative, for the remand of this case to the Sandiganbayan (First Division) for further proceedings allowing petitioner to complete the presentation of its evidence.

Antecedent Facts

Immediately upon her assumption to office following the successful EDSA Revolution, then President Corazon C. Aquino issued Executive Order No. 1 (EO No. 1) creating the Presidential Commission on Good Government (PCGG). EO No. 1 primarily tasked the PCGG to recover all ill -gotten wealth of former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates. EO No. 1 vested the PCGG with the power (a) to conduct investigation as may be necessary in order to accomplish and carry out the purposes of this order and the power (h) to promulg ate such rules and regulations as may be necessary to carry out the purpose of this order. Accordingly, the PCGG, through its then Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board) tasked to investigate reports of unexplained wealth and corrupt practices by AFP personnel, whether in the active service or[2] Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth of respondent Major General Josephus Q. Ramas (Ramas). On 27 July 1987, the AFP Board issued a Resolution on its findings and recommendation on the reported unexplained wealth of Ramas. The relevant part of the Resolution reads: III. FINDINGS and EVALUATION: Evidence in the record showed that respondent is the owner of a house and lot located at 15-Yakan St., La Vista, Quezon City. He is also the owner of a house and lot located in Cebu City. The lot has an area of 3,327 square meters. The value of the property located in Quezon City may be estimated modestly at P700,000.00. The equipment/items and communication facilities which were found in the premises of Elizabeth Dimaano and were confiscated by elements of the PC Command of Batangas were all covered by invoice receipt in the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not have been in the possession of Elizabeth Dimaano if not given for her use by respondent Commanding General of the Philippine Army. Aside from the military equipment/items and communications equipment, the raiding team was also able to confiscate money in the amount of P2,870,000.00 and $50,000 US Dollars in the house of Elizabeth Dimaano on 3 March 1986. Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna, disclosed that Elizabeth Dimaano is the mistress of respondent. That respondent usually goes and stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives, Elizabeth Dimaano embraces and kisses respondent. That on February 25, 1986, a person who rode in a car went to the residence of Elizabeth Dimaano with four (4) attache cases filled with money and owned by MGen Ramas. Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of income and is supported by respondent for she was formerly a mere secretary. Taking in toto the evidence, Elizabeth Dimaano could not have used the military equipment/items seized in her house on March 3, 1986 without the consent of respondent, he being the Commanding General of the Philippine Army. It is also impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and $50,000 US Dollars for she had no visible source of income. This money was never declared in the Statement of Assets and Liabilities of respondent. There was an intention to cover the existence of these money because these are all ill-gotten and unexplained wealth. Were it not for the affidavits of the members of the Military Security Unit assigned at Camp Eldridge, Los Baos, Laguna, the existence and ownership of these money would have never been known. The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and analysis by the Boards consultant. Althoug h the amount of P2,870,000.00 and $50,000 US Dollars were not included, still it was disclosed that respondent has an unexplained wealth of P104,134. 60. IV. CONCLUSION: In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-gotten and unexplained wealth in the amount of P2,974,134.00 and $50,000 US Dollars. V. RECOMMENDATION: Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for violation of RA 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise known as The Act for the Forfeiture of Unlawfully Acquired[3] Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379 (RA No. 1379)

against Ramas.

Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an Amended Complaint naming the Republic of the Philippines (petitioner), represented by the PCGG, as plaintiff and Ramas as defendant. The Amended Complaint also impleade d Elizabeth Dimaano (Dimaano) as co-defendant.

The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army until 1986. On the other hand, Dimaano was a confidential agent of the Military Security Unit, Philippine Army, assigned as a clerk-typist at the office of Ramas from 1 January 1978 to February 1979. The Amended Complaint further alleged that Ramas acquired funds, assets and properties manifestly out of proportion to his s alary as an army officer and his other income from legitimately acquired property by taking undue advantage of his public office and/or using his power, authority and influence as such officer of the Armed Forces of the Philippines and as a subordinate and close associate of the deposed President Ferdinand M[5] The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found reasonable ground to believe that respondents have violated RA No.[6] The Amended Complaint prayed for, among others, the forfeiture of respondents properties, funds and equipment in favor of the State. Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to the Amended Complaint. In his Answer, Ramas contended that his property consisted only of a residential house at La Vista Subdivision, Quezon City, valued at P700,000, which was not out of proportion to his salary and other legitimate income. He denied ownership of any mansion in Cebu City and the cash, communications equipment and other items confiscated from the house of Dimaano. Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a clerk-typist in the office of Ramas from JanuaryNovember 1978 only, Dimaano claimed ownership of the monies, communications equipment, jewelry and land titles taken from her house by the Philippine Constabulary raiding team. After termination of the pre-trial,li[7] the court set the case for trial on the merits on 9-11 November 1988. On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of preparation for trial and the absence of witnesses and vital documents to support its case. The court reset the hearing to 17 and 18 April 1989. On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order to ch arge the delinquent properties with being subject to forfeiture as having been unlawfully acquired by defendant Dimaano alone x x[8] Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioners presentation of evidence on the ground that the motion for leave to amend complaint did not state when petitioner would file the amended complaint. The Sandiganbayan further stated that the subject matter of the amended complaint was on its face vague and not related to the existing complaint. The Sandiganbayan also held that due to the time that the case had been pending in court, petitioner should proceed to present its evidence. After presenting only three witnesses, petitioner asked for a postponement of the trial. On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to proceed to trial because of the absence of other witnesses or lack of further evidence to present. Instead, petitioner reiterated its motion to amend the complaint to conform to the evidence already presented or to change the averments to show that Dimaano alone unlawfully acquired the monies or properties subject of the forfeiture. The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly because of its many postponements. Moreover, petitioner would want the case to revert to its preliminary stage when in fact the case had long been ready for trial. The Sandiganbayan ordered petitioner to prepare for presentation of its additional evidence, if any. During the trial on 23 March 1990, petitioner again admitted its inability to present further evidence. Giving petitioner one more chance to present further evidence or to amend the complaint to conform to its evidence, the Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however, hinted that the re-setting was without prejudice to any action that private respondents might take under the circumstances. However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it had no further evidence to present. Again, in the interest of justice, the Sandiganbayan granted petitioner 60 days within which to file an appropriate pleading. The Sandiganbayan, however, warned petitioner that failure to act would constrain the court to take drastic action. Private respondents then filed their motions to dismiss based on Republic v.[9] The Court held in Migrino that the PCGG does not have jurisdiction to investigate and prosecute military officers by reason of mere position held without a showing that they are subordinates of former President Marcos. On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of which states: WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without pronouncement as to costs. The counterclaims are likewise dismissed for lack of merit, but the confiscated sum of money, communications equipment, jewelry and land titles are ordered returned to Elizabeth Dimaano. The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate action as the evidence warrants. This case is also referred to the Commissioner of the Bureau of Internal Revenue for a determination of any tax liability of respondent Elizabeth Dimaano in connection herewith. SO ORDERED. On 4 December 1991, petitioner filed its Motion for Reconsideration. In answer to the Motion for Reconsideration, private respondents filed a Joint Comment/Opposition to which petitioner filed its Reply on 10 January 1992. On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for Reconsideration.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following grounds: (1.) (2.) (3.) (4.) The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court in Cruz, Jr. v. Sandiganbayanli[10] and Republic v. Migrinoli[11] which involve the same issues. No previous inquiry similar to preliminary investigations in criminal cases was conducted against Ramas and Dimaano. The evidence adduced against Ramas does not constitute a prima facie case against him. There was an illegal search and seizure of the items confiscated.

The Issues

Petitioner raises the following issues: A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE AND THAT THERE WAS NO SHOWING OF CONSPIRACY, COLLUSION OR RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND BETWEEN RESPONDENT RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN RENDERED PRIOR TO THE COMPLETION OF THE PRESENTATION OF THE EVIDENCE OF THE PETITIONER. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING OF THE ORIGINAL COMPLAINT AND THE AMENDED COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE RULINGS OF THE SUPREME COURT IN CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA 289, NOTWITHSTANDING THE FACT THAT: 1. 2. 3. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino, supra, are clearly not applicable to this case; Any procedural defect in the institution of the complaint in Civil Case No. 0037 was cured and/or waived by respondents with the filing of their respective answers with counterclaim; and The separate motions to dismiss were evidently improper considering that they were filed after commencement of the presentation of the evidence of the petitioner and even before the latter was allowed to formally offer its evidence and rest its case;




The Courts Ruling

First Issue: PCGGs Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v. Sandiganbayanli[13] and Republic v.[14] The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and cause the filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No. 1379. We hold that PCGG has no such jurisdiction. The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of AFP personnel, whether in the active service or[15] The PCGG tasked the AFP Board to make the necessary recommendations to appropriate government agencies on the action to be taken based on its[16] The PCGG gave this task to the AFP Board pursuant to the PCGGs power under Section 3 of EO No. 1 to conduct investigation as may be necessary in order to accomplish and to carry out the purposes of this or der. EO No. 1 gave the PCGG specific responsibilities, to wit: SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the following matters: (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover and sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/ or using their powers, authority, influence, connections or relationship. The investigation of such cases of graft and corruption as the President may assign to the Commission from time to


time. x x x. The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the administration of former President Marcos by being the latters immediate family, relative, subordinate or close associate, taking undue advant age of their public office or using their powers, influence x x x;li[17] or (2) AFP personnel involved in other cases of graft and corruption provided the President assigns their cases to the[18] Petitioner, however, does not claim that the President assigned Ramas case to the PCGG. Therefore, Ramas case should fall under the first category of AFP personnel before the PCGG could exercise its jurisdiction over him. Petitioner argues that Ramas was undoubtedly a subordinate of former President Marcos because of his position as the Commanding General of the Philippine Army. Petitioner claims that Ramas position enabled him to receive orders directly from his commander-in-chief, undeniably making him a subordinate of former President Marcos. We hold that Ramas was not a subordinate of former President Marcos in the sense contemplated under EO No. 1 and its amendments. Mere position held by a military officer does not automatically make him a subordinate as this term is used in EO Nos. 1, 2 , 14 and 14-A absent a showing that he enjoyed close association with former President Marcos. Migrino discussed this issue in this wise: A close reading of EO No. 1 and related executive orders will readily show what is contemplated within the term subordinate. The Whereas Clauses of EO No. 1 express the urgent need to recover the ill-gotten wealth amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad. EO No. 2 freezes all assets and properties in the Philippines in which former Pres ident Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees have any interest or participation. Applying the rule in statutory construction known as ejusdem generis that is[W]here general words follow an enumeration of persons or things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2nd Ed., 203]. [T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close assoc iation with former President Marcos and/or his wife, similar to the immediate family member, relative, and close associate in EO No. 1 and the close relative, business associate, dummy, agent, or nominee in EO No. 2. xxx It does not suffice, as in this case, that the respondent is or was a government official or employee during the administration of former President Marcos. There must be a prima facie showing that the respondent unlawfully accumulated wealth by virtue of his close association or relation with former Pres. Marcos and/or his wife. (Emphasis supplied) Ramas position alone as Commanding General of the Philippine Army with the rank of Major General li[19] does not suffice to make him a subordinate of former President Marcos for purposes of EO No. 1 and its amendments. The PCGG has to provide a prima facie showing that Ramas was a close associate of former President Marcos, in the same manner that business associates, dummies, agents or nominees of former President Marcos were close to him. Such close association is manifested either by Ramas complicity with former President Marcos in the accumulation of ill -gotten wealth by the deposed President or by former President Marcos acquiescence in Ramas own accumulation of ill -gotten wealth if any. This, the PCGG failed to do. Petitioners attempt to differentiate the instant case from Migrino does not convince us. Petitioner argues that unlike in Migrino, the AFP Board Resolution in the instant case states that the AFP Board conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner asserts that there is a presumption that the PCGG was acting within its jurisdiction of investigating crony-related cases of graft and corruption and that Ramas was truly a subordinate of the former President. However, the same AFP Board Resolution belies this contention. Although the Resolution begins with such statement, it ends with the following recommendation: V. RECOMMENDATION: Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for violation of RA 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act and RA 1379, as amended, otherwise known as The Act for the Forfeiture of Unlawfully Acquired[20] Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379 without any relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its amendments proves fatal to petitioners case. EO No. 1 created the PCGG for a specific and limited purpose, and necessarily its powers m ust be construed to address such specific and limited purpose. Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the properties Ramas allegedly owned were accumulated by him in his capacity as a subordinate of his commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned and suggested that these properties were disproportionate to his salary and other legitimate income without showing that Ramas amassed them because of his close association with former President Marcos. Petitioner, in fact, admits that the AFP Board resolution does not contain a finding that Ramas accumulated his wealth because of his close association with former President Marcos, thus: 10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of the Philippines did not categorically find a prima facie evidence showing that respondent Ramas unlawfully accumulated wealth by virtue of his close association or relation

with former President Marcos and/or his wife, it is submitted that such omission was not fatal. The resolution of the Anti-Graft Board should be read in the context of the law creating the same and the objective of the investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;li[21] (Emphasis supplied) Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-gotten wealth was accumulated by a subordinate of former President Marcos that vests jurisdiction on PCGG. EO No. 1 li[22] clearly premises the creation of the PCGG on the urgent need to recover all illgotten wealth amassed by former President Marcos, his immediate family, relatives, subordinates and close associates. Therefore, to say that such omission was not fatal is clearly contrary to the intent behind the creation of the PCGG. A:li[26] In Cruz, Jr. v. Sandiganbayan,li[23] the Court outlined the cases that fall under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2, li[24] 14,li[25] 14A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of the respondent PCGG to investigate and prosecute covers: (a) the investigation and prosecution of the civil action for the recovery of ill-gotten wealth under Republic Act No. 1379, accumulated by former President Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the take-over or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through his nominees, by taking undue advantage of their public office and/or using their powers, authority and influence, connections or relationships ; and the investigation and prosecution of such offenses committed in the acquisition of said ill-gotten wealth as contemplated under Section 2(a) of Executive Order No. 1.


However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the foregoing categories, require a previous authority of the President for the respondent PCGG to investigate and prosecute in accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction over such cases is vested in the Ombudsman and other duly authorized investigating agencies such as the provincial and city prosecutors, their assistants, the Chief State Prosecutor and his assistants and the state prosecutors. (Emphasis supplied) The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture petitions not falling under EO No. 1 and its amendments. The preliminary investigation of unexplained wealth amassed on or before 25 February 1986 falls under the jurisdiction of the Ombudsman, while the authority to file the corresponding forfeiture petition rests with the Solicitor General. li[27] The Ombudsman Act or Republic Act No. 6770 (RA No. 6770) vests in the Ombudsman the power to conduct preliminary investigation and to file forfeiture proceedings involving une xplained wealth amassed after 25 February[28] After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the absence of a prima facie finding that Ramas was a subordinate of former President Marcos. The petition for forfeiture filed with the Sandiganbayan should be dismissed for la ck of authority by the PCGG to investigate respondents since there is no prima facie showing that EO No. 1 and its amendments apply to respondents. The AFP Board Resolution and even the Amended Complaint state that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should have r ecommended Ramas case to the Ombudsman who has jurisdiction to conduct the preliminary investigation of ordinary unexplained wealth and graft cases. As stated in Migrino: [But] in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be enjoined from proceeding with the case, without prejudice to any action that may be taken by the proper prosecutory agency. The rule of law mandates that an agency of government be allowed to exercise only the powers granted to it. Petitioners argument that private respondents have waived any defect in the filing of the forfeiture petition by submitting their respective Answers with counterclaim deserves no merit as well. Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in the first place. The PCGG cannot exercise investigative or prosecutorial powers never granted to it. PCGGs powers are specific and lim ited. Unless given additional assignment by the President, PCGGs sole task is only to recover the ill -gotten wealth of the Marcoses, their relatives and[29] Without these elements, the PCGG cannot claim jurisdiction over a case. Private respondents questioned the authority and jurisdiction of the PCGG to investigate and prosecute their cases by filing their Motion to Dismiss as soon as they learned of the pronouncement of the Court in Migrino. This case was decided on 30 August 1990, which explains why private respondents only filed their Motion to Dismiss on 8 October 1990. Nevertheless, we have held that the parties may raise lack of jurisdiction at any stage of the[30] Thus, we hold that there was no waiver of jurisdiction in this case. Jurisdiction is vested by law and not by the parties to an[31] Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the preliminary investigation. The Ombudsman may still conduct the proper preliminary investigation for violation of RA No. 1379, and if warranted, the Solicitor General may file the forfeiture petition with the[32] The right of the State to forfeit unexplained wealth under RA No. 1379 is not subject to prescription, laches or[33]

Second Issue: Propriety of Dismissal of Case Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion of the presentation of petitio ners evidence. We disagree. Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner has only itself to blame for non-completion of the

presentation of its evidence. First, this case has been pending for four years before the Sandiganbayan dismissed it. Petitioner filed its Amended Complaint on 11 August 1987, and only began to present its evidence on 17 April 1989. Petitioner had almost two years to prepare its evidence. However, despite this sufficient time, petitioner still delayed the presentation of the rest of its evidence by filing numerous motions for postponements and extensions. Even before the date set for the presentation of its evidence, petitioner filed, on 13 April 1989, a Motion for Leave to Amend the[34] The motion sought to charge the delinquent properties (which comprise most of petitioners evidence) with being subject to forfeiture as havin g been unlawfully acquired by defendant Dimaano alone x x x. The Sandiganbayan, however, refused to defer the presentation of petitioners evidence since petitioner did not state when it would file the amended complaint. On 18 April 1989, the Sandiganbayan set the continuation of the presentation of evidence on 28-29 September and 9-11 October 1989, giving petitioner ample time to prepare its evidence. Still, on 28 September 1989, petitioner manifested its inability to proceed with the presentation of its evidence. The Sandiganbayan issued an Order expressing its view on the matter, to wit: The Court has gone through extended inquiry and a narration of the above events because this case has been ready for trial for over a year and much of the delay hereon has been due to the inability of the government to produce on scheduled dates for pre-trial and for trial documents and witnesses, allegedly upon the failure of the military to supply them for the preparation of the presentation of evidence thereon. Of equal interest is the fact that this Court has been held to task in public about its alleged failure to move cases such as this one beyond the preliminary stage, when, in view of the developments such as those of today, this Court is now faced with a situation where a case already in progress will revert back to the preliminary stage, despite a five-month pause where appropriate action could have been undertaken by the plaintiff[35] On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary investigation on the unexplained wealth of private respondents as mandated by RA No.[36] The PCGG prayed for an additional four months to conduct the preliminary investigation. The Sandiganbayan granted this request and scheduled the presentation of evidence on 26-29 March 1990. However, on the scheduled date, petitioner failed to inform the court of the result of the preliminary investigation the PCGG supposedly conducted. Again, the Sandiganbayan gave petitioner until 18 May 1990 to continue with the presentation of its evidence and to inform the court of what lies ahead insofar as the status of the case is concerned x x x. li[37] Still on the date set, petitioner failed to present its evidence. Finally, on 11 July 1990, petitioner filed its Re-Amended[38] The Sandiganbayan correctly observed that a case already pending for years would revert to its preliminary stage if the court were to accept the Re-Amended Complaint. Based on these circumstances, obviously petitioner has only itself to blame for failure to complete the presentation of its evidence. The Sandiganbayan gave petitioner more than sufficient time to finish the presentation of its evidence. The Sandiganbayan overlooked petitioners delays and yet petitioner ended the long-string of delays with the filing of a Re-Amended Complaint, which would only prolong even more the disposition of the case. Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to investigate and prosecute the case against private respondents. This alone would have been sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case against private respondents. Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the presentation of petitioners evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from Dimaanos house as illegally seiz ed and therefore inadmissible in evidence. This issue bears a significant effect on petit ioners case since these properties comprise most of petitioners evidence against private respondents. Petitioner will not have much evidence to support its case against private respondents if these properties are inadmissible in evidence. On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a search warrant captioned Illegal Possession of Firearms and Ammunition. Dimaano was not present during the raid but Dimaanos cousins witnessed the raid. The raiding team seized the it ems detailed in the seizure receipt together with other items not included in the search warrant. The raiding team seized these items: one baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45; communications equipment, cash consisting of P2,870,000 and US$50,000, jewelry, and land titles. Petitioner wants the Court to take judicial notice that the raiding team conducted the search and seizure on March 3, 1986 o r five days after the successful EDSA[39] Petitioner argues that a revolutionary government was operative at that time by virtue of Proclamation No. 1 announcing that President Aquino and Vice President Laurel were taking power in the name and by the will of the Filipino people. li[40] Petitioner asserts that the revolutionary government effectively withheld the operation of the 1973 Constitution which guaranteed private respondents ex clusionary right. Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends that all rights under the Bill of Rights had already reverted to its embryonic stage at the time of the search. Therefore, the government may confiscate the monies and items taken from Dimaano and use the same in evidence against her since at the time of their seizure, private respondents did not enjoy any constitutional right. Petitioner is partly right in its arguments. The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquinos Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was done in defiance of the provisions of the 1973[41] The resulting government was indisputably a revolutionary government bound by no constitution or legal limitations except treaty obligations that the revolutionary government, as the de jure government in the Philippines, assumed under international law. The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of the 1973 Constitution during the interregnum, that is, after the actual and effective take-over of power by the revolutionary government following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional Constitution); and (2) whether the protection accorded to individuals under the International Covenant on Civil and Political Rights (Covenant) and the Universal Declaration of Human Rights (Declaration) remained in effect during the interregnum.

We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum. However, we rule that the protection accorded to individuals under the Covenant and the Declaration remained in effect during the interregnum. During the interregnum, the directives and orders of the revolutionary government were the supreme law because no constitution limited the extent and scope of such directives and orders. With the abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher than the directives and orders of the revolutionary government. Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. As the Court explained in Letter of Associate Justice Reynato S. Puno:li[42] A revolution has been defined as the complete overthrow of the established government in any country or state by those who were previously subject to it or as a sudden, radical and fundamental change in the government or political system, usually effe cted with violence or at least some acts of violence. In Kelsen's book, General Theory of Law and State, it is defined as that which occurs whenever the legal order of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself. It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the people power revolution that the Filipino people tore themselves away from an existing regime. This revolution also saw the unprecedented rise to power of the Aquino government. From the natural law point of view, the right of revolution has been defined as an inherent right of a people to cast out th eir rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable. It has been said that the locus of positive law-making power lies with the people of the state and from there is derived the right of the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution. xxx It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional processes; in fact , it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said that the organization of Mrs. Aquinos Governme nt which was met by little resistance and her control of the state evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet officials, revamp of the Judiciary and the Military signaled the point where the legal system then in effect, had ceased to be obeyed by the Filipino. (Emphasis supplied) To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum would render void all sequestration orders issued by the Philippine Commission on Good Government (PCGG) before the adoption of the Freedom Constitution . The sequestration orders, which direct the freezing and even the take-over of private property by mere executive issuance without judicial action, would violate the due process and search and seizure clauses of the Bill of Rights. During the interregnum, the government in power was concededly a revolutionary government bound by no constitution. No one could validly question the sequestration orders as violative of the Bill of Rights because there was no Bill of Rights during the interregnum. However, upon the adoption of the Freedom Constitution, the sequestered companies assailed the sequestration orders as contrary to the Bill of Rights of the Freedom Constitution. In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good Government,li[43] petitioner Baseco, while conceding there was no Bill of Rights during the interregnum, questioned the continued validity of the sequestration orders upon adoption of the Freedom Constitution in view of the due process clause in its Bill of Rights. The Court ruled that the Freedom Constitution, and later the 1987 Constitution, expressly recognized the validity of sequestration orders, thus: If any doubt should still persist in the face of the foregoing considerations as to the validity and propriety of sequestration, freeze and takeover orders, it should be dispelled by the fact that these particular remedies and the authority of the PCGG to issue them have received constitutional approbation and sanction. As already mentioned, the Provisional or Freedom Constitution recognizes the power and duty of the President to enact measures to achieve the mandate of the people to . . . (r)ecover ill -gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the p eople through orders of sequestration or freezing of assets or accounts. And as also already adverted to, Section 26, Article XVIII of the 1987 Constitution treats of, and ratifies the authority to iss ue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986. The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the sequestration orders would clash with the Bill of Rights. Thus, the framers of both constitutions had to include specific language recognizing the validity of the sequestration orders. The following discourse by Commissioner Joaquin G. Bernas during the deliberations of the Constitutional Commission is instructive: FR. BERNAS: Madam President, there is something schizophrenic about the arguments in defense of the present amendment. For instance, I have carefully studied Minister Salongas lecture in the Gregorio Araneta University Foundation, of which all of us have been given a copy. On the one hand, he argues that everything the Commission is doing is traditionally legal. This is repeated by Commissioner Romulo also. Minister Salonga spends a major portion of his lecture developing that argument. On the other hand, almost as an afterthought, he says that in the end what matters are the results and not the legal niceties, thus suggesting that the PCGG should be allowed to make some legal shortcuts, another word for niceties or exceptions. Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special protection? The answer is clear. What they are doing will not stand the test of ordinary due process, hence they are asking for protection, for exceptions. Grandes malos, grandes remedios, fine, as the saying stands, but let us not say grandes malos, grande y malos remedios. That is not an allowable extrapolation. Hence, we should not give the exceptions asked for, and let me elaborate and give three reasons: First, the whole point of the February Revolution and of the work of the CONCOM is to hasten constitutional normalization. Very much at the heart of the constitutional normalization is the full effectivity of the Bill of Rights. We cannot, in one breath, ask for constitutional normalization and at the same time ask for a temporary halt to the full functioning of what is at the heart of constitutionalism. That would be hypocritical; that would be a repetition of Marcosian protestation of due process and rule of law. The New Society word for t hat is backsliding. It is tragic when we begin to backslide even before we get there. Second, this is really a corollary of the first. Habits tend to become ingrained. The committee report asks for extraordinary exceptions

from the Bill of Rights for six months after the convening of Congress, and Congress may even extend this longer. Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the committee report is asking for is that we should allow the new government to acquire the vice of disregarding the Bill of Rights. Vices, once they become ingrained, become difficult to shed. The practitioners of the vice begin to think that they have a vested right to its practice, and they will fight tooth and nail to keep the franchise. That would be an unhealthy way of consolidating the gains of a democratic revolution. Third, the argument that what matters are the results and not the legal niceties is an argument that is very disturbing. When it comes from a staunch Christian like Commissioner Salonga, a Minister, and repeated verbatim by another staunch Christian like Commissioner Tingson, it becomes doubly disturbing and even discombobulating. The argument makes the PCGG an auctioneer, placing the Bill of Rights on the auction block. If the price is right, the search and seizure clause will be sold. Open your Swi ss bank account to us and we will award you the search and seizure clause. You can keep it in your private safe. Alternatively, the argument looks on the present government as hostage to the hoarders of hidden wealth. The hoarders will release the hidden health if the ransom price is paid and the ransom price is the Bill of Rights, specifically the due process in the search and seizure clauses. So, there is something positively revolving about either argument. The Bill of Rights is not for sale to the highest bidder nor can it be used to ransom captive dollars. This nation will survive and grow strong, only if it would become convinced of the values enshrined in the Constitution of a price that is beyond monetary estimation. For these reasons, the honorable course for the Constitutional Commission is to delete all of Section 8 of the committee report and allow the new Constitution to take effect in full vigor. If Section 8 is deleted, the PCGG has two options. First, it can pursue the Salonga and the Romulo argument that what the PCGG has been doing has been completely within the pale of the law. If sustained, the PCGG can go on and should be able to go on, even without the support of Section 8. If not sustained, however, the PCGG has only one honorable option, it must bow to the majesty of the Bill of Rights. The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude with what another Christian replied when asked to toy around with the law. From his prison cell, Thomas More said, " I'll give the devil benefit of law for my nations safety sake. I ask the Commission to give the devil benefit of law for our nations sake. And we should delete Section 8. Thank you, Madam President. (Emphasis supplied) Despite the impassioned plea by Commissioner Bernas against the amendment excepting sequestration orders from the Bill of Rights, the Constitutional Commission still adopted the amendment as Section 26, li[44] Article XVIII of the 1987 Constitution. The framers of the Constitution were fully aware that absent Section 26, sequestration orders would not stand the test of due process under the Bill of Rights. Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum, absent a constitutional provision excepting sequestration orders from such Bill of Rights, would clearly render all sequestration orders void during the interregnum. Nevertheless, even during the interregnum the Filipino people continued to enjoy, under the Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution. The revolutionary government, after installing itself as the de jure government, assumed responsibility for the States good faith compliance with the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant requires each signatory State to respect and to ensure to all ind ividuals within its territory and subject to its jurisdiction the rightsli[45] recognized in the present Covenant. Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure that [n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. The Declaration, to which the Philippines is also a signato ry, provides in its Article 17(2) that [n]o one shall be arbitrarily deprived of his property. Although the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. li[46] Thus, the revolutionary government was also obligated under international law to observe the rightsli[47] of individuals under the Declaration. The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum. Whether the revolutionary government could have repudiated all its obligations under the Covenant or the Declaration is another matter and is not the issue here. Suffice it to say that the Court considers the Declaration as part of customary international law, and that Filipinos as human beings are proper subjects of the rules of international law laid down in the Covenant. The fact is the revolutionary government did not repudiate the Covenant or the Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the revolutionary government could not escape responsibility for the States good faith compliance with its treaty obligations under international law. It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the directives and orders of the revolutionary government became subject to a higher municipal law that, if contravened, rendered such directives and orders void. The Provisional Constitution adopted verbatim the Bill of Rights of the 1973[48] The Provisional Constitution served as a self-limitation by the revolutionary government to avoid abuses of the absolute powers entrusted to it by the people. During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government officers were valid so long as these officers did not exceed the authority granted them by the revolutionary government. The directives and orders should not have also violated the Covenant or the Declaration. In this case, the revolutionary government presumptively sanctioned the warrant since the revolutionary government did not repudiate it. The warrant, issued by a judge upon proper application, specified the items to be searched and seized. The warrant is thus valid with respect to the items specifically described in the warrant. However, the Constabulary raiding team seized items not included in the warrant. As admitted by pet itioners witnesses, the raiding team confiscated items not included in the warrant, thus: Direct Examination of Capt. Rodolfo Sebastian AJ AMORES Q. A. Q. According to the search warrant, you are supposed to seize only for weapons. What else, aside from the weapons, were seized from the house of Miss Elizabeth Dimaano? The communications equipment, money in Philippine currency and US dollars, some jewelries, land titles, sir. Now, the search warrant speaks only of weapons to be seized from the house of Elizabeth Dimaano. Do you know the reason


why your team also seized other properties not mentioned in said search warrant? During the conversation right after the conduct of said raid, I was informed that the reason why they also brought the other items not included in the search warrant was because the money and other jewelries were contained in attach cases and cartons with markings Sony Trinitron, and I think three (3) vaults or steel safes. Believing that the attach cases and the steel s afes were containing firearms, they forced open these containers only to find out that they contained money.

xxx Q. A. You said you found money instead of weapons, do you know the reason why your team seized this money instead of weapons? I think the overall team leader and the other two officers assisting him decided to bring along also the money because at that time it was already dark and they felt most secured if they will bring that because they might be suspected also of taking money out of those items, your[49]

Cross-examination Atty. Banaag Q. A. Q. A. xxx AJ AMORES Q. A. Q. A. Q. A. Q. A. Before you applied for a search warrant, did you conduct surveillance in the house of Miss Elizabeth Dimaano? The Intelligence Operatives conducted surveillance together with the MSU elements, your Honor. And this party believed there were weapons deposited in the house of Miss Elizabeth Dimaano? Yes, your Honor. And they so swore before the Municipal Trial Judge? Yes, your Honor. But they did not mention to you, the applicant for the search warrant, any other properties or contraband which could be found in the residence of Miss Elizabeth Dimaano? They just gave us still unconfirmed report about some hidden items, for instance, the communications equipment and money. However, I did not include that in the application for search warrant considering that we have not established concrete evidence about that. So when So that when you applied for search warrant, you had reason to believe that only weapons were in the house of Miss Elizabeth Dimaano? Yes, your[50] Were you present when the search warrant in connection with this case was applied before the Municipal Trial Court of Batangas, Branch 1? Yes, sir. And the search warrant applied for by you was for the search and seizure of five (5) baby armalite rifles M-16 and five (5) boxes of ammunition? Yes, sir.

Q. A. xxx Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.

You stated that a .45 caliber pistol was seized along with one armalite rifle M-16 and how many ammunition? Forty, sir. And this became the subject of your complaint with the issuing Court, with the fiscals office who charged Elizabeth Dimaano for Illegal Possession of Firearms and Ammunition? Yes, sir. Do you know what happened to that case? I think it was dismissed, sir. In the fiscals office? Yes, sir. Because the armalite rifle you seized, as well as the .45 caliber pistol had a Memorandum Receipt in the name of Felino Melegrito, is that not correct? I think that was the reason, sir. There were other articles seized which were not included in the search warrant, like for instance, jewelries. Why did you seize the jewelries? I think it was the decision of the overall team leader and his assistant to bring along also the jewelries and other items, sir. I do not really know where it was taken but they brought along also these articles. I do not really know their reason for bringing the same, but I just learned that these were taken because they might get lost if they will just leave this behind.

xxx Q. A. How about the money seized by your raiding team, they were not also included in the search warrant? Yes sir, but I believe they were also taken considering that the money was discovered to be contained in attach cases. These attach cases were suspected to be containing pistols or other high powered firearms, but in the course of the search the

contents turned out to be money. So the team leader also decided to take this considering that they believed that if they will just leave the money behind, it might get lost also. Q. A. That holds true also with respect to the other articles that were seized by your raiding team, like Transfer Certificates of Title of lands? Yes, sir. I think they were contained in one of the vaults that were[51]

It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies, communications equipment, jewelry and land titles that the raiding team confiscated. The search warrant did not particularly describe these items and the raiding team confiscated them on its own authority. The raiding team had no legal basis to seize these items without showing that these items could be the subject of warrantless search and[52] Clearly, the raiding team exceeded its authority when it seized these items. The seizure of these items was therefore void, and unless these items are contraband per se,li[53] and they are not, they must be returned to the person from whom the raiding seized them. However, we do not declare that such person is the lawful owner of these items, merely that the search and seizure warrant could not be used as basis to seize and withhold these items from the possessor. We thus hold that these items should be returned immediately to Dimaano. WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037, remanding the records of this case to the Ombudsman for such appropriate action as the evidence may warrant, and referring this case to the Commissioner of the Bureau of Internal Revenue for a determination of any tax liability of respondent Elizabeth Dimaano, are AFFIRMED. SO ORDERED. Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur. Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his concurring opinion. Puno and Vitug, JJ., see separate opinion Panganiban, J., in the result. Quisumbing and Sandoval-Gutierrez, JJ., on official leave. Ynares-Santiago, J., in the result. I concur in the separate opinion of J. Reynato Puno. Tinga, J., separate opinion reserved.

Habeas Corpus Petition of Benigno S. Aquino, Jr., et al v. Sec. Juan Ponce Enrile, Gen. Espino, Chief of Staff, and Fidel V. Ramos, Chief of the Philippine Constabulary (59 SCRA 183 [September 17, 1974]) Ferdinand E. Marcos issued Proclamation No. 1081 declaring Martial Law on 21 September 1972, and through subsequent presidential issuances, arrested and detained those suspected of being communists. Among those detained indefinitely were Sen. Benigno S. Aquino, Jr. who filed a petition raising the following key issues: the Supreme Courts power of judicial inquiry; the validity of Proclamation No. 1081, the martial law proclamation; and the effect of Proclamation No. 1081 on the privilege of the writ of habeas corpus. Fr. Joaquin G. Bernas, S.J. wrote that the Court merely summarized the voting on the issues and did not come out with a decision in the true sense, as they were conscious of the future verdict of history. (2 J. Bernas, The Constitution of the Republic of the Philippines 222 [1988]). On martial law, Justice Muoz Palma wrote: Is the Court with jurisdiction to inquire into the constitutional sufficiency of the proclamation of martial law? Petitioners assert the authority of this Court to inquire into the necessity of placing the country under martial law in the same manner that it inquired into the constitutional sufficiency of the suspension of the privilege of the writ of habeas corpus in Lansang v. Garcia. We are now called upon by respondents to re-examine the above-quoted ruling, abandon it, and return to the principle laid down in Baker and Montenegro. To do that, however, would be to retrogress, to surrender a momentous gain achieved in judicial history in this country. With Lansang, the highest Court of the land takes upon itself the grave responsibility of checking executive action and saving the nation from an arbitrary and despotic exercise of the presidential power granted under the Constitution to suspend the privilege of the writ of habeas corpus and/or proclaim martial law; that responsibility and duty of the Court must be preserved and fulfilled at all costs if We want to maintain its role as the last bulwark of democracy in this country. Contrary to respondents claim, the proclamation of martial law in the country did not carry with it the automatic suspension of the privilege of the writ of habeas corpus for these reasons: First, from the very nature of the writ of habeas corpus which as stressed in

the early portion of this Opinion is a writ of liberty and the most important and most immediately available safeguard of that liberty, the privilege of the writ cannot be suspended by mere implication. Respondents argue that with a valid proclamation of martial law, all orders, decrees and other acts of the President pursuant to said proclamation are likewise valid; that these acts were expressly declared legal and binding in Art. XVII, Sec. 3 (2) of the 1973 Constitution which is now in full force and effect, and consequently, the arrest of petitioners is legal, it having been made in accordance with General Order No. 2 of the President. I cannot give my unqualified assent to the respondents sweeping statement which in effect upholds the view that whatever def ects, substantive or procedural, may have tainted the orders, decrees, or other acts of the President, have been cured by the confirmatory vote of the sovereign people manifested through the ratification of the 1973 Constitution. I cannot do so, because I refuse to believe that a people that have embraced the principles of democracy in blood, sweat, and tears would thus throw away all their pre cious liberties, the sacred institutions enshrined in their Constitution, for that would be the result if we say that the people have stamped their approval on all the acts of the President executed after the proclamation of martial law irrespective of any taint of injustice, arbitrariness, oppression, or culpable violation of the Constitution that may characterize such acts. To recapitulate: (1) Is the constitutional sufficiency of a proclamation of martial law by the President a political question? I hold that it is not a political, but it is a justiciable one. (2) Did the proclamation of martial law automatically suspend the privilege of the writ of habeas corpus? No, is my answer. (3) Did Sec. 3 (2), Art. XVII of the Transitory Provisions of the 1973 Constitution foreclose judicial inquiry into the validity of all decrees, orders, and acts of the incumbent President executed after the proclamation of martial law and during the Transitory Period? I say: NO, because these acts are still subject to be arbitrary, oppressive, or unjust, in violation of the Constitution and/or the generally accepted principles of International Law.

Republic of the Philippines SUPREME COURT Manila G.R. No. 76180 October 24, 1986 IN RE: SATURNINO V. BERMUDEZ, petitioner. R E S O L U T IO N PER CURIAM: In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986 Constitution, which provides in full as follows: Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and answer the question of the construction and definiteness as to who, among the present incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ... The petition is dismissed outright for lack of jurisdiction and for lack for cause of action. Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit against the incumbent President of the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure. The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common public knowledge that the Constitutional Commission refers therein to incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph of the cited section provides for the holding on the second Monday of May, 1992 of the first regular elections for the President and Vice-President under said 1986 Constitution. In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution. The said cases were dismissed outright by this court which held that: Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of tlie present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.]) For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the Philippines.or the abovequoted reasons, which are fully applicable to the petition at bar, ACCORDINGLY, the petition is hereby dismissed. Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur. MELENCIO-HERRERA, J., concurring: GUTIERREZ, Jr., J., concurring: FELICIANO, JJ., concurring. The petitioner asks the Court to declare who are "the incumbent President and Vice President elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft Constitution adopted by the Constitutional Commission of 1986. We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over petitions for declaratory relief. As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected President and Vice President in the February 7, 1986 elections should be addressed not to this Court but to other departments of government constitutionally burdened with the task of making that declaration. The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly provide 'that boards of canvassers in each province and city shall certified who were elected President and Vice President in their respective areas. The certified returns are transmitted to the legislature which proclaims, through the designated Presiding Head, who were duty elected. Copies of the certified returns from the provincial and city boards of canvassers have not been furnished this Court nor is there any need to do so. In the absence of a legislature, we cannot assume the function of stating, and neither do we have any factual or legal capacity to officially declare, who were elected President and Vice President in the February 7, 1986 elections. As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution, we agree that there is no doubt the 1986 Constitutional Commission referred to President Corazon C. Aquino and Vice President Salvador H. Laurel. Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition. CRUZ, J., concurring: I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not yet been ratified and is therefore not yet effective. I see here no actual conflict of legal rights susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs. Haworth, 300 U.S. 227; PACU vs. Secretary of Education, 97 Phil. 806.) Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 78059 August 31, 1987 ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners, vs. HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents. MELENCIO-HERRERA, J.: An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal. As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents' Comment. In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982. On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government." Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality. That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of which read: xxx xxx xxx That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986; That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others, have signed as I did sign the unnumbered memorandum ordering the replacement of all the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal; That the above cited memorandum dated December 1, 1986 was signed by me personally on February 8,1987; That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987. FURTHER AFFIANT SAYETH NONE. Pasig, Metro Manila, March 23, 1987. Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that respondents be prohibited from taking over their positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay Election

Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority to replace them and to designate their successors. On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which provided: SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25,1986. By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted provision and not because their term of six years had not yet expired; and that the provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution. Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1 Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was validly made during the one-year period which ended on February 25, 1987. Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice. But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading. SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions occupied by petitioners. Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits the President's power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years ... Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern. Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading: Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other executive issuances not inconsistent, with this Constitution shall remain operative until amended, repealed or revoked. WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners' positions subject of this Petition. Without costs. SO ORDERED.