DIGESTS OF LATEST SUPREME COURT

DECISIONS IN POLITICAL LAW

(2009 and 2010)
By:

ATTY. LARRY D. GACAYAN

Professor of Law
UNIVERSITY OF THE CORDILLERAS
COLLEGE OF LAW
Baguio City
(POLITICAL LAW REVIEW, CONSTITUTIONAL LAW I, CONSTITUTIONAL LAW II )
August, 2010 Edition
BAR REVIEWER
(Political Law and Constitutional Law)
CPRS BAR REVIEW CENTER
Davao City, Cagayan de Oro City,Zamboanga City, and Iloilo City
COSMOPOLITAN REVIEW CENTER (CRC)
Baguio City Branch, UC, Baguio City
POWERHAUS LAW REVIEW CENTER
Baguio City, Manila, Santiago City, Tagbilaran City & Dipolog City
EXCELLENT PRE-BAR REVIEW CENTER
Baguio City, Naga City, Cebu City, General Santos City, and Tacloban City
UNIVERSITY OF PANGASINAN PRE-BAR REVIEW CENTER
Dagupan City

ABRAHAM KAHLIL B. MITRA VS. COMELEC,

G.R. NO. 191938, JULY 2, 2010
The minimum requirement under our Constitution and election laws for the
candidates residency in the political unit they seek to represent has never been intended
to be an empty formalistic condition; it carries with it a very specific purpose: to prevent
"stranger[s] or newcomer[s] unacquainted with the conditions and needs of a community
from seeking elective offices in that community.
The requirement is rooted in the recognition that officials of districts or localities
should not only be acquainted with the metes and bounds of their constituencies; more
importantly, they should know their constituencies and the unique circumstances of their
constituents their needs, difficulties, aspirations, potentials for growth and
development, and all matters vital to their common welfare. Familiarity, or the
opportunity to be familiar, with these circumstances can only come with residency in the
constituency to be represented.
The purpose of the residency requirement is best met by individuals who have
either had actual residence in the area for a given period or who have been domiciled in
the same area either by origin or by choice. At the same time, the constituents
themselves can best know and evaluate the candidates qualifications and fitness for
office if these candidates have lived among them.
In the present case, the respondent Commission on Elections (COMELEC)
canceled the certificate of candidacy (COC) of petitioner Abraham Kahlil B. Mitra for
allegedly misrepresenting that he is a resident of the Municipality of Aborlan, Province of
Palawan where he ran for the position of Governor. Mitra came to this Court to seek the
reversal of the cancellation.
The Antecedents
When his COC for the position of Governor of Palawan was declared cancelled,
Mitra was the incumbent Representative of the Second District of Palawan. This district
then included, among other territories, the Municipality of Aborlan and Puerto Princesa
City. He was elected Representative as a domiciliary of Puerto Princesa City, and
represented the legislative district for three (3) terms immediately before the elections of
2010.
On March 26, 2007 (or before the end of Mitras second term as Representative),
Puerto Princesa City was reclassified as a highly urbanized city and thus ceased to be a
component city of the Province of Palawan. The direct legal consequence of this new

3
status was the ineligibility of Puerto Princesa City residents from voting for candidates
for elective provincial officials.

On March 20, 2009, with the intention of running for the position of Governor,
Mitra applied for the transfer of his Voters Registration Record from Precinct No. 03720
of Brgy. Sta. Monica, Puerto Princesa City, to Sitio Maligaya, Brgy. Isaub, Municipality
of Aborlan, Province of Palawan. He subsequently filed his COC for the position of
Governor of Palawan as a resident of Aborlan.
Soon thereafter, respondents Antonio V. Gonzales and Orlando R. Balbon, Jr.
(the respondents) filed a petition to deny due course or to cancel Mitras COC. They
essentially argued that Mitra remains a resident of Puerto Princesa City who has not yet
established residence in Aborlan, and is therefore not qualified to run for Governor of
Palawan. Mitra insisted in his Answer that he has successfully abandoned Puerto
Princesa City as his domicile of origin, and has established a new domicile in Aborlan
since 2008.
The Parties Claims and Evidence
The respondents petition before the COMELEC claimed that Mitras COC
should be cancelled under the following factual premises: (a) Mitra bought, in June 2009,
a parcel of land in Aborlan where he began to construct a house, but up to the time of the
filing of the petition to deny due course or to cancel Mitras COC, the house had yet to be
completed; (b) in the document of sale, Puerto Princesa City was stated as Mitras
residence (attached as Annex J of the Respondents Petition before the COMELEC);
(c) Mitras Puerto Princesa City residence was similarly stated in his application for a
building permit (attached as Annex K of the Respondents Petition before the
COMELEC); and (d) Mitras community tax certificate states that his residence was
Puerto Princesa City (attached as Annex M of the Respondents Petition before the
COMELEC). The respondents presented several affidavits attesting to the noncompletion of the construction of the house, and asserted that without a fully constructed
house, Mitra could not claim residence in Aborlan.
Mitra denied the respondents allegations in his Answer. He claimed that the
respondents misled the COMELEC by presenting photographs of his unfinished house on
the land he purchased from a certain Rexter Temple. He claimed, on the contrary, that
his residence is located inside the premises of the Maligaya Feedmill and Farm
(Maligaya Feedmill) which the owner, Carme Caspe, leased to him; and that he
purchased a farm and presently has an experimental pineapple plantation and a cock
farm. The transfer of his residence, he claimed, began in 2008.
He submitted the following: (a) the Sinumpaang Salaysay of Ricardo Temple;
Florame T. Gabrillo, the Punong Barangay of Isaub, Aborlan; Marissa U. Zumarraga,
Councilor of Aborlan; Virginia J. Agpao and Elsa M. Dalisay, both Sangguniang
Barangay members of Isaub, Aborlan, attesting that Mitra resides in their locality; (b)
photographs of the residential portion of the Maligaya Feedmill where he claims to
reside, and of his Aborlan experimental pineapple plantation, farm, farmhouse and cock

4
farm; (c) the lease contract over the Maligaya Feedmill; (d) the community tax certificate
he claims he himself secured, stating that Aborlan is his residence; and (e) an updated
identification card issued by the House of Representatives stating that Aborlan is his
residence.
To refute Mitras claimed residence in Aborlan specifically, that he resides at
the Maligaya Feedmill property the respondents additionally submitted: (a) the
affidavits of the 14 Punong Barangays of Aborlan and of six residents of Aborlan, all
stating that Mitra is not a resident of Aborlan and has never been seen in that
municipality; (b) a Certification from the Barangay Captain of Sta. Monica, Puerto
Princesa City stating that Mitra was a resident of that barangay as of November 16, 2009;
(c) the affidavit of Commodore Nicanor Hernandez attesting that Mitra continues to
reside in Puerto Princesa City; and (d) 24 affidavits of former employees, workers,
Aborlan residents and a customer of the Maligaya Feedmill attesting that they have never
seen Mitra during the time he claimed to have lived there and that the area where Mitra
supposedly lives is, in fact, the office of the feedmill and is unlivable due to noise and
pollution.
The Ruling of the COMELECs First Division
The Law. The First Division defined the governing law with the statement that
residence means domicile under the Courts consistent rulings since 1928 in Nuval v.
Guray. Domicile imports not only the intent to reside in a fixed place but also personal
presence in that place, coupled with conduct indicative of this intention.
To acquire a new domicile a domicile by choice the following must concur: (1)
residence or bodily presence in a new locality; (2) an intention to remain there; and (3) an
intention to abandon the old domicile. In other words, there must be an animus non
revertendi with respect to the old domicile, and an animus manendi at the domicile of
choice. The intent to remain in or at the domicile of choice must be for an indefinite
period of time and the acts of the person must be consistent with this intent.
Mitra did not meet the above requirements according to the First Division.
The COMELEC En Banc Ruling
The COMELEC en banc in a divided decision subsequently denied Mitras
motion to reconsider the First Division ruling under the following outlined reasons.
First, registration as a voter of Aborlan is not sufficient evidence that Mitra has
successfully abandoned his domicile of origin.
Second, mere intent cannot supplant the express requirement of the law; the
physical presence required to establish domicile connotes actual, factual and bona fide
residence in a given locality. The COMELEC en banc agreed with the First Divisions
evidentiary findings on this point.

5
Third, the First Divisions Resolution was based on a careful and judicious
examination and consideration of all evidence submitted by the parties. The summary
nature of the proceedings is not necessarily offensive to a partys right to due process.
Fourth, Fernandez v. House of Representatives Electoral Tribunal is not on all
fours with the present case Fernandez stemmed from a quo warranto case while the
present case involves a petition to deny due course or cancel the COC. Likewise,
Fernandez successfully proved that his transfer to Sta. Rosa City, Laguna several years
prior to his candidacy was prompted by valid reasons, i.e., existence of his business in the
area and the enrolment of his children at Sta. Rosa schools, thereby erasing doubts as to
the bona fide nature of his transfer. In the present case, the COMELEC en banc found
that Mitra admitted that his transfer to Aborlan in 2008 was prompted by his plans to run
for governor in the 2010 national and local elections. The COMELEC en banc also noted
that Fernandez involved an individual who had earned an overwhelming mandate from
the electorate. The COMELEC en bancs ruling on Mitras case, on the other hand, came
before the 2010 elections; thus, the people had not then voted.
In his Dissent, Commissioner Sarmiento points out that the following acts of
Mitra, taken collectively, indubitably prove a change of domicile from Puerto Princesa to
Aborlan:
(a)

in January 2008, [Mitra] started a pineapple growing project in a

rented farmland near Maligaya Feedmill and Farm located in Barangay
Isaub, Aborlan;

(b) in February 2008, [Mitra] leased the residential portion of the said
Maligaya Feedmill;
(c)

in March 2008, after the said residential portion has been refurbished
and renovated, [Mitra] started to occupy and reside in the said
premises;

(d) in 2009, [Mitra] purchased his own farmland in the same barangay
but continued the lease involving the Maligaya Feedmill, the contract
of which was even renewed until February 2010; and
(e)

[Mitra] caused the construction of a house in the purchased lot which

has been recently completed.

HELD:
From the start, Mitra never hid his intention to transfer his residence from Puerto
Princesa City to Aborlan to comply with the residence requirement of a candidate for an
elective provincial office. Republic Act No. 7160, otherwise known as the Local
Government Code, does not abhor this intended transfer of residence, as its Section 39
merely requires an elective local official to be a resident of the local government unit
where he intends to run for at least one (1) year immediately preceding the day of the
election. In other words, the law itself recognizes implicitly that there can be a change of
domicile or residence, but imposes only the condition that residence at the new place

6
should at least be for a year. Of course, as a continuing requirement or qualification, the
elected official must remain a resident there for the rest of his term.
Mitras domicile of origin is undisputedly Puerto Princesa City. For him to
qualify as Governor in light of the relatively recent change of status of Puerto Princesa
City from a component city to a highly urbanized city whose residents can no longer vote
for provincial officials he had to abandon his domicile of origin and acquire a new one
within the local government unit where he intended to run; this would be his domicile of
choice. To acquire a domicile of choice, jurisprudence, which the COMELEC correctly
invoked, requires the following:
(1) residence or bodily presence in a new locality;
(2) an intention to remain there; and
(3) an intention to abandon the old domicile.
The contentious issues in Mitras case relate to his bodily presence, or the lack of
it, in Aborlan, and the declaration he made on this point. The respondents anchor their
cause of action on the alleged falsity of Mitras statement that he is a resident of
Aborlan. To support this contention, the respondents claim that the construction of the
supposed Mitra residence or house, other than the leased premises in Maligaya Feedmill,
has yet to be completed, leaving Mitra with no habitable place in Aborlan. When Mitra
successfully refuted this original claim, the respondents presented sworn statements of
Aborlan residents contradicting Mitras claimed physical residence at the Maligaya
Feedmill building in Aborlan. They likewise point out, by sworn statements, that this
alleged residence could not be considered a house that Mitra could properly consider his
residence, on the view that the feedmill place is beneath what Mitra a three-term
congressman and a member of the Mitra political clan of Palawan would occupy.
Mitra, on the other hand, presented sworn statements of various persons
(including the seller of the land he purchased, the lessor of the Maligaya Feedmill, and
the Punong Barangay of the site of his residence) attesting to his physical residence in
Aborlan; photographs of the residential portion of Maligaya Feedmill where he resides,
and of his experimental pineapple plantation, farm, farmhouse and cock farm; the lease
contract over the Maligaya Feedmill; and the deed of sale of the lot where he has started
constructing his house. He clarified, too, that he does not claim residence in Aborlan at
the house then under construction; his actual residence is the mezzanine portion of the
Maligaya Feedmill building.
The seeming contradictions arose from the sworn statements of some Aborlan
residents attesting that they never saw Mitra in Aborlan; these are controverted by similar
sworn statements by other Aborlan residents that Mitra physically resides in Aborlan.
The number of witnesses and their conflicting claims for and against Mitras residency
appear to have sidetracked the COMELEC. Substantial evidence, however, is not a
simple question of number; reason demands that the focus be on what these differing
statements say.

7
For example, the sworn statements that Mitra has never been seen in Aborlan
border on the unbelievable and loudly speak of their inherent weakness as evidence.
Mitra has established business interests in Aborlan, a fact which the respondents
have never disputed. He was then the incumbent three-term Representative who, as early
as 2008, already entertained thoughts of running for Governor in 2010. It is not disputed,
too, that Mitra has started the construction of a house on a lot he bought from Rexter
Temple; the site is very near the Maligaya Feedmill that he leased from its owner, Carme
Caspe.
While Mitra might not have stayed in Aborlan nor in Palawan for most of 2008
and 2009 because his office and activities as a Representative were in Manila, it is hardly
credible that he would not be seen in Aborlan. In this regard, the sworn statement of the
Punong Barangay of Isaub, Aborlan should carry a lot more weight than the statements
of punong barangay officials elsewhere since it is the business of a punong barangay to
know who the residents are in his own barangay. The COMELEC apparently missed all
these because it was fixated on the perceived coldness and impersonality of Mitras
dwelling.
The parties submitted documentary evidence likewise requires careful
consideration for the correct appraisal of its evidentiary value. On the one hand, the
document of sale of the Temple property, the building permit for the house under
construction, and the community tax certificate used in these transactions all stated that
Mitras residence was Puerto Princesa City. On the other hand, Mitra introduced a
notarized contract of lease supported by the sworn explanation of the lessor (Carme
Caspe) showing that he indeed leased Maligaya Feedmill. He submitted, too, a
residence certificate showing Aborlan as his residence, and an identification card of the
House of Representatives showing Aborlan as his residence.
We cannot give full evidentiary weight to the contract of sale as evidence relating
to Mitras residence for two reasons. First, it is a unilateral contract executed by the
seller (Rexter Temple); thus, his statement and belief as to Mitras personal
circumstances cannot be taken as conclusive against the latter. Second, the sale involved
several vendees, including Mitras brother (Ramon B. Mitra) and one Peter Winston T.
Gonzales; his co-vendees still live in Puerto Princesa City; hence, they were all loosely
and collectively described to have their residence in Puerto Princesa City.
Parenthetically, the document simply stated: I, REXTER TEMPLE, of legal age,
Filipino, single and resident of Isaub, Aborlan, Palawan, hereby by these presents, x x x
do hereby SELL, TRANSFER and CONVEY unto the said Vendees, ABRAHAM
KAHLIL B. MITRA, single; RAMON B. MITRA, married to Mary Ann Mitra; PETER
WINSTON T. GONZALES, married to Florecita R. Gonzales, all of legal ages and
residents [of] Rancho Sta. Monica, Brgy. Sta. Monica, Puerto Princesa City, their heirs
and assigns. Thus, the contract contained a mere general statement that loosely
described the vendees as Puerto Princesa City residents. This general statement solely
came from the vendor.
The building permit, on the other hand, was filed by Mitras representative, an
architect named John Quillope, who apparently likewise filled the form. That Mitra only
signed the building permit form is readily discernible from an examination of the face of

8
the form; even the statement on his community tax certificate bearing a Puerto Princesa
City residence does not appear in his handwriting. Significantly, Mitras secretary Lilia
Camora attested that it was she who secured the community tax certificate for Mitra in
February 2009 without the latters knowledge. Annex M of the respondents Petition
before the COMELEC indeed shows that the community tax certificate did not bear the
signature of Mitra. Mitra secured his own certificate in Aborlan on March 18, 2009. This
community tax certificate carries his own signature. Parenthetically, per Carme Caspes
statement, Mitra leased the feedmill residence in February 2008 and started moving in his
belongings in March 2008, confirming the veracity of his Aborlan presence at the time he
secured his community tax certificate. In these lights, the February 3, 2009 community
tax certificate, if at all, carries very little evidentiary value.
Where a dwelling qualifies as a residence i.e., the dwelling where a person
permanently intends to return to and to remain his or her capacity or inclination to
decorate the place, or the lack of it, is immaterial.
Specifically, it was lost on the COMELEC majority (but not on the Dissent) that
Mitra made definite, although incremental transfer moves, as shown by the undisputed
business interests he has established in Aborlan in 2008; by the lease of a dwelling where
he established his base; by the purchase of a lot for his permanent home; by his transfer
of registration as a voter in March 2009; and by the construction of a house all viewed
against the backdrop of a bachelor Representative who spent most of his working hours
in Manila, who had a whole congressional district to take care of, and who was
establishing at the same time his significant presence in the whole Province of Palawan.
With this analysis and conclusion in mind, we come to the critical question of
whether Mitra deliberately misrepresented that his residence is in Aborlan to deceive and
mislead the people of the Province of Palawan.
The respondents significantly ask us in this case to adopt the same faulty
approach of using subjective norms, as they now argue that given his stature as a
member of the prominent Mitra clan of Palawan, and as a three term congressman, it is
highly incredible that a small room in a feed mill has served as his residence since 2008.
We reject this suggested approach outright for the same reason we condemned the
COMELECs use of subjective non-legal standards. Mitras feed mill dwelling cannot be
considered in isolation and separately from the circumstances of his transfer of residence,
specifically, his expressed intent to transfer to a residence outside of Puerto Princesa City
to make him eligible to run for a provincial position; his preparatory moves starting in
early 2008; his initial transfer through a leased dwelling; the purchase of a lot for his
permanent home; and the construction of a house in this lot that, parenthetically, is
adjacent to the premises he leased pending the completion of his house. These
incremental moves do not offend reason at all, in the way that the COMELECs highly
subjective non-legal standards do.
PETITION GRANTED.

Creation of a new legislative district in

Camarines Sur with a population of less than
250,000; whether it violates Section 5 [4], Art.
VI; Dissenting opinion of Justice Carpio

SEN. BENIGNO AQUINO III & MAYOR

JESSE ROBREDO VS. COMELEC, G.R. No.
189793, April 7, 2010
PEREZ, J.:
In this original action, petitioners Senator Benigno Simeon C. Aquino III and
Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the nullification as
unconstitutional of Republic Act No. 9716, entitled An Act Reapportioning the
Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of
Camarines Sur and Thereby Creating a New Legislative District From Such
Reapportionment. Petitioners consequently pray that the respondent Commission on
Elections be restrained from making any issuances and from taking any steps relative to
the implementation of Republic Act No. 9716.
Republic Act No. 9716 originated from House Bill No. 4264, and was signed into
law by President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31
October 2009, or fifteen (15) days following its publication in the Manila Standard, a
newspaper of general circulation. In substance, the said law created an additional
legislative district for the Province of Camarines Sur by reconfiguring the existing first
and second legislative districts of the province.
Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to
have a population of 1,693,821, distributed among four (4) legislative districts in this
wise:
District

1st District

Municipalities/Cities
Del Gallego

Libmanan

Ragay

Minalabac

Lupi

Pamplona

Sipocot

Pasacao

Cabusao

San Fernando

Population

417,304

10

2nd District

3rd District

4th District

Gainza

Canaman

Milaor

Camaligan

Naga

Magarao

Pili

Bombon

Ocampo

Calabanga

Caramoan

Sangay

Garchitorena

San Jose

Goa

Tigaon

Lagonoy

Tinamba

Presentacion

Siruma

Iriga

Buhi

Baao

Bula

Balatan

Nabua

474,899

372,548

429,070

Bato

Following the enactment of Republic Act No. 9716, the first and second districts
of Camarines Sur were reconfigured in order to create an additional legislative district for
the province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona,
Pasacao, and San Fernando were combined with the second district municipalities of
Milaor and Gainza to form a new second legislative district. The following table
illustrates the reapportionment made by Republic Act No. 9716:
District

Municipalities/Cities

Population

11

Del Gallego
Ragay
1st District

Lupi

176,383

Sipocot
Cabusao

2nd District

Libmanan

San Fernando

Minalabac

Gainza

Pamplona

Milaor

276,777

Pasacao

3rd District
(formerly 2nd
District)

4th District
(formerly 3rd
District)

Naga

Camaligan

Pili

Magarao

Ocampo

Bombon

Canaman

Calabanga

Caramoan

Sangay

Garchitorena

San Jose

Goa

Tigaon

Lagonoy

Tinamba

Presentacion

Siruma

439,043

372,548

12

5th District
(formerly 4th
District)

Iriga

Buhi

Baao

Bula

Balatan

Nabua

429,070

Bato

Petitioner Aquino III was one of two senators who voted against the approval of
the Bill by the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was
a part of the former second district from which the municipalities of Gainza and Milaor
were taken for inclusion in the new second district. No other local executive joined the
two; neither did the representatives of the former third and fourth districts of the
province.
Petitioners contend that the reapportionment introduced by Republic Act No. 9716,
runs afoul of the explicit constitutional standard that requires a minimum population of
two hundred fifty thousand (250,000) for the creation of a legislative district. The
petitioners claim that the reconfiguration by Republic Act No. 9716 of the first and
second districts of Camarines Sur is unconstitutional, because the proposed first district
will end up with a population of less than 250,000 or only 176,383.
Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the
cited 250,000 minimum population standard. The provision reads:
Article VI
Section 5. (1) x x x x
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each
province, shall have at least one representative.
The petitioners posit that the 250,000 figure appearing in the above-cited provision
is the minimum population requirement for the creation of a legislative district. The
petitioners theorize that, save in the case of a newly created province, each legislative
district created by Congress must be supported by a minimum population of at least
250,000 in order to be valid. Under this view, existing legislative districts may be
reapportioned and severed to form new districts, provided each resulting district will
represent a population of at least 250,000. On the other hand, if the reapportionment
would result in the creation of a legislative seat representing a populace of less than

13
250,000 inhabitants, the reapportionment must be stricken down as invalid for noncompliance with the minimum population requirement.
In support of their theory, the petitioners point to what they claim is the intent of
the framers of the 1987 Constitution to adopt a population minimum of 250,000 in the
creation of additional legislative seats. The petitioners argue that when the
Constitutional Commission fixed the original number of district seats in the House of
Representatives to two hundred (200), they took into account the projected national
population of fifty five million (55,000,000) for the year 1986. According to the
petitioners, 55 million people represented by 200 district representatives translates to
roughly 250,000 people for every one (1) representative. Thus, the 250,000 population
requirement found in Section 5(3), Article VI of the 1987 Constitution is actually based
on the population constant used by the Constitutional Commission in distributing the
initial 200 legislative seats.
By way of summary, the petitioners claim that:
1.

Republic Act 9716 is unconstitutional because the newly

apportioned first district of Camarines Sur failed to meet the
population requirement for the creation of the legislative district as
explicitly provided in Article VI, Section 5, Paragraphs (1) and (3) of
the Constitution and Section 3 of the Ordinance appended thereto; and

2. Republic Act 9716 violates the principle of proportional representation

as provided in Article VI, Section 5 paragraphs (1), (3) and (4) of the
Constitution.
The provision subject of this case states:
Article VI
Section 5. (1) The House of Representatives shall be composed of
not more than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned among the
provinces, cities and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional and
sectoral parties or organizations.
(2) x x x x
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a population
of at least two hundred fifty thousand, or each province, shall have at least
one representative.

14
(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based on the
standards provided in this section.
On the other hand, the respondents, through the Office of the Solicitor
General, call attention to an apparent distinction between cities and provinces drawn by
Section 5(3), Article VI of the 1987 Constitution. The respondents concede the existence
of a 250,000 population condition, but argue that a plain and simple reading of the
questioned provision will show that the same has no application with respect to the
creation of legislative districts in provinces. Rather, the 250,000 minimum population is
only a requirement for the creation of a legislative district in a city.
HELD:
On the procedural aspect, the respondents assert that by choosing to avail
themselves of the remedies of Certiorari and Prohibition, the petitioners have committed
a fatal procedural lapse. No evidence that they will be injured by the implementation of
the law.
The Supreme Court has, on more than one occasion, tempered the application of
procedural rules, as well as relaxed the requirement of locus standi whenever confronted
with an important issue of overreaching significance to society.
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation
(PAGCOR) and Jaworski v. PAGCOR, this Court sanctioned momentary deviation from
the principle of the hierarchy of courts, and took original cognizance of cases raising
issues of paramount public importance. The Jaworski case ratiocinates:
Granting arguendo that the present action cannot be properly
treated as a petition for prohibition, the transcendental importance of
the issues involved in this case warrants that we set aside the technical
defects and take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially pervasive
influence on the social and moral well being of this nation, specially the
youth; hence, their proper and just determination is an imperative need.
This is in accordance with the well-entrenched principle that rules of
procedure are not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their strict and
rigid application, which would result in technicalities that tend to
frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)
Anent the locus standi requirement, this Court has already uniformly ruled in
Kilosbayan v. Guingona, Tatad v. Executive Secretary, Chavez v. Public Estates
Authority and Bagong Alyansang Makabayan v. Zamora, just to name a few, that
absence of direct injury on the part of the party seeking judicial review may be excused
when the latter is able to craft an issue of transcendental importance. In Lim v.
Executive Secretary, this Court held that in cases of transcendental importance, the cases
must be settled promptly and definitely, and so, the standing requirements may be

15
relaxed. This liberal stance has been echoed in the more recent decision on Chavez v.
Gonzales.
We go directly to the determination of whether or not a population of 250,000 is
an indispensable constitutional requirement for the creation of a new legislative district in
a province.
There is no specific provision in the Constitution that fixes a 250,000 minimum
population that must compose a legislative district.
As already mentioned, the petitioners rely on the second sentence of Section 5(3),
Article VI of the 1987 Constitution, coupled with what they perceive to be the intent of
the framers of the Constitution to adopt a minimum population of 250,000 for each
legislative district.
The second sentence of Section 5(3), Article VI of the Constitution, succinctly
provides: Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative.
The provision draws a plain and clear distinction between the entitlement of a city
to a district on one hand, and the entitlement of a province to a district on the other. For
while a province is entitled to at least a representative, with nothing mentioned about
population, a city must first meet a population minimum of 250,000 in order to be
similarly entitled.
The use by the subject provision of a comma to separate the phrase each city
with a population of at least two hundred fifty thousand from the phrase or each
province point to no other conclusion than that the 250,000 minimum population is only
required for a city, but not for a province.
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum
population only for a city to be entitled to a representative, but not so for a
province.
The 250,000 minimum population requirement for legislative districts in cities
was, in turn, the subject of interpretation by this Court in Mariano, Jr. v. COMELEC.
In Mariano, the issue presented was the constitutionality of Republic Act No.
7854, which was the law that converted the Municipality of Makati into a Highly
Urbanized City. As it happened, Republic Act No. 7854 created an additional legislative
district for Makati, which at that time was a lone district. The petitioners in that case
argued that the creation of an additional district would violate Section 5(3), Article VI of
the Constitution, because the resulting districts would be supported by a population of
less than 250,000, considering that Makati had a total population of only 450,000. The
Supreme Court sustained the constitutionality of the law and the validity of the newly
created district, explaining the operation of the Constitutional phrase each city with a
population of at least two hundred fifty thousand, to wit:

16
Petitioners cannot insist that the addition of another legislative
district in Makati is not in accord with section 5(3), Article VI of the
Constitution for as of the latest survey (1990 census), the population of
Makati stands at only four hundred fifty thousand (450,000). Said section
provides, inter alia, that a city with a population of at least two hundred
fifty thousand (250,000) shall have at least one representative. Even
granting that the population of Makati as of the 1990 census stood at
four hundred fifty thousand (450,000), its legislative district may still
be increased since it has met the minimum population requirement of
two hundred fifty thousand (250,000). In fact, Section 3 of the
Ordinance appended to the Constitution provides that a city whose
population has increased to more than two hundred fifty thousand
(250,000) shall be entitled to at least one congressional representative.
(Emphasis supplied)

The Mariano case limited the application of the 250,000 minimum population
requirement for cities only to its initial legislative district. In other words, while Section
5(3), Article VI of the Constitution requires a city to have a minimum population of
250,000 to be entitled to a representative, it does not have to increase its population by
another 250,000 to be entitled to an additional district.
There is no reason why the Mariano case, which involves the creation of an
additional district within a city, should not be applied to additional districts in
provinces. Indeed, if an additional legislative district created within a city is not required
to represent a population of at least 250,000 in order to be valid, neither should such be
needed for an additional district in a province, considering moreover that a province is
entitled to an initial seat by the mere fact of its creation and regardless of its population.
Consistent with Mariano and with the framer deliberations on district
apportionment, we stated in Bagabuyo v. COMELEC that
x x x Undeniably, these figures show a disparity in the population sizes of
the districts. The Constitution, however, does not require
mathematical exactitude or rigid equality as a standard in gauging
equality of representation. x x x. To ensure quality representation
through commonality of interests and ease of access by the representative
to the constituents, all that the Constitution requires is that every
legislative district should comprise, as far as practicable, contiguous,
compact and adjacent territory. (Emphasis supplied).
WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716
entitled An Act Reapportioning the Composition of the First (1 st) and Second (2nd)
Legislative Districts in the Province of Camarines Sur and Thereby Creating a New
Legislative District From Such Reapportionment is a VALID LAW.

17
DISSENTING OPINION
CARPIO, J.:
The majority opinion wreaks havoc on the bedrock principle of our democratic
and republican State that all votes are equal. Instead, the majority opinion introduces
the Orwellian concept that some votes are more equal than others. The majority opinion
allows, for the first time under the 1987 Constitution, voters in a legislative district
created by Congress to send one representative to Congress even if the district has a
population of only 176,383. In sharp contrast, all other legislative districts created by
Congress send one representative each because they all meet the minimum population
requirement of 250,000.
The assailed Republic Act No. 9716 (RA 9716) is unconstitutional for being utterly
repugnant to the clear and precise standards prescribed in Section 5, Article VI of the
1987 Constitution for the creation of legislative districts. Section 5(4) of Article VI
mandates that Congress shall make a reapportionment of legislative districts based
on the standards fixed in Section 5. These constitutional standards, as far as population
is concerned, are: (1) proportional representation; (2) minimum population of
250,000 per legislative district; (3) progressive ratio in the increase of legislative
districts as the population base increases; and (4) uniformity in apportionment of
legislative districts in provinces, cities, and the Metropolitan Manila area. The
assailed RA 9716 grossly violates these constitutional standards.
There was never any debate in the design of our government that the members of
the House of Representatives, just like the members of the Senate, represent people
not provinces, cities, or any other political unit. The only difference is that the
members of the Senate represent the people at large while the members of the House
represent the people in legislative districts. Thus, population or the number of
inhabitants in a district is the essential measure of representation in the House of
Representatives. Section 5(1), Article VI of the 1987 Constitution, just like in the
previous Constitutions, could not be any clearer:
The House of Representatives shall be composed of x x x
members, x x x, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio x x x. (Emphasis supplied)
Section 5(1), Article VI of the 1987 Constitution is even more precise by
providing that the Members of the House shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio x x x. The phrase as nearly as may be according to the number of
their respective inhabitants in the 1935 Constitution has been changed in the 1987
Constitution to the more precise in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio x x x. The addition
of the phrase on the basis of a uniform and progressive ratio was meant to stress that

18
the rule on proportional representation shall apply uniformly in the apportionment of
every legislative district.
The phrase in accordance with the number of their respective inhabitants,
which precedes the phrase provinces, cities and the Metropolitan Manila area, means
that legislative districts in provinces, cities and the Metropolitan Manila area shall be
apportioned according to proportional representation or equal representation for
equal numbers of people. Thus, there shall be one legislative district for every given
number of people, whether inhabiting in provinces, cities or the Metropolitan Manila
area.
The phrase on the basis of a uniform x x x ratio means that the ratio of one
legislative district for every given number of people shall be applied uniformly in all
apportionments, whether in provinces, cities or the Metropolitan Manila area. Section
5(3) of Article VI mandates that [e]ach city with a population of at least two hundred
fifty thousand x x x shall have at least one representative. Consequently, a
population of 250,000 serves as the default minimum population applicable to every
legislative district following the rule on uniformity in the apportionment of legislative
districts, whether in provinces, cities or in the Metropolitan Manila area.
The phrase progressive ratio means that the number of legislative districts
shall increase as the number of the population increases, whether in provinces, cities or
the Metropolitan Manila area. Thus, a province shall have one legislative district if it has
a population of 250,000, and two legislative districts if it has 500,000. This insures that
proportional representation is maintained if there are increases in the population of a
province, city, or the Metropolitan Manila area. This is what is meant by a progressive
ratio in the apportionment of legislative districts, a ratio that must also be uniformly
applied.
The Constitution itself provides the standards against which reapportionment
laws like RA 9716 will be tested, following its command that Congress shall make a
reapportionment of legislative districts based on the standards provided in this section,
referring to Section 5, Article VI. These standards relate to first, population, and
second, territory. Section 5 admits of no other standards.
On population, the standards of the 1987 Constitution have four elements. First is
the rule on proportional representation, which is the universal standard in direct
representation in legislatures. Second is the rule on a minimum population of 250,000 per
legislative district, which was not present in our previous Constitutions. Third is the rule
on progressive ratio, which means that the number of legislative districts shall increase as
the number of the population increases in accordance with the rule on proportional
representation. Fourth is the rule on uniformity, which requires that the first three
rules shall apply uniformly in all apportionments in provinces, cities and the
Metropolitan Manila area.
The Constitution and the Ordinance appended to the 1987 Constitution fixes the
minimum population of a legislative district at 250,000. Although textually relating to
cities, this minimum population requirement applies equally to legislative districts
apportioned in provinces and the Metropolitan Manila area because of the constitutional

19
command that legislative districts [shall be] apportioned among the provinces, cities,
and the Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio. To reiterate, the
Constitution commands that this rule on uniformity shall apply to legislative
districts in provinces, cities, and the Metropolitan Manila area. Otherwise, districts
apportioned in provinces, if freed from the minimum population requirement, will have
constituencies two, four, ten times lower than in districts apportioned in cities, violating
the constitutional command that apportionment shall be based on a uniform ratio in
provinces, cities, and the Metropolitan Manila area.
In short, the constitutional standards in the apportionment of legislative
districts under Section 5 of Article VI, as far as population is concerned, are: (1)
proportional representation; (2) a minimum population of at least two hundred fifty
thousand per legislative district; (3) progressive ratio in the increase of legislative
districts as the population base increases; and (4) uniformity in the apportionment
of legislative districts in provinces, cities, and the Metropolitan Manila area.
RA 9716 grossly malapportions Camarines Surs proposed five legislative districts
by flouting the standards of proportional representation among legislative districts and
the minimum population per legislative district.
Based on the 2007 census, the proposed First District under RA 9716 will
have a population of only 176,383, which is 29% below the constitutional minimum
population of 250,000 per legislative district. In contrast, the remaining four proposed
districts have populations way above the minimum with the highest at 439,043 (proposed
Third District), lowest at 276,777 (proposed Second District) and an average of 379,359.
Indeed, the disparity is so high that three of the proposed districts (Third, Fourth, and
Fifth Districts) have populations more than double that of the proposed First District.
This results in wide variances among the districts populations. Still using the 2007
census, the ideal per district population for Camarines Sur is 338,764. The populations
of the proposed districts swing from this ideal by a high of positive 29.6% (Third
District) to a low of negative 47.9% (First District). This means that the
smallest proposed district (First District) is underpopulated by nearly 50% of the
ideal and the biggest proposed district (Third District) is overpopulated by nearly
30% of the ideal.
The resulting vote undervaluation (for voters in the disfavored districts) and vote
overvaluation (for voters in the First District) fails even the most liberal application of the
constitutional standards. Votes in the proposed First District are overvalued by more than
200% compared to votes from the Third, Fourth, and Fifth Districts and by more than
60% compared to votes in the Second District. Conversely, votes from the Third, Fourth,
and Fifth Districts are undervalued by more than 200% compared to votes in the First
District while those in the Second District suffer more than 60% undervaluation.
Proportional representation in redistricting does not mean exact numbers of population, to
the last digit, for every legislative district. However, under the assailed RA 9716, the
variances swing from negative 47.9% to positive 29.6%. Under any redistricting
yardstick, such variances are grossly anomalous and destructive of the concept of
proportional representation. In the United States, the Supreme Court there ruled that a

20
variance of even less than 1% is unconstitutional in the absence of proof of a good
faith effort to achieve a mathematically exact apportionment.
Equally important, RA 9716 violates the minimum population requirement of
250,000 in creating the proposed First District, which will have a population of only
176,383. The minimum population of 250,000 per legislative district admits of no
variance and must be complied with to the last digit. The Constitution mandates a
population of at least two hundred fifty thousand for a legislative district in a city, and
under the principle of uniform and progressive ratio, for every legislative district in
provinces and in the Metropolitan Manila area.
The directive in Section 5(3) of Article VI that each province, shall have at least
one representative means only that when a province is created, a legislative district must
also be created with it. Can this district have a population below 250,000? To answer in
the affirmative is to ignore the constitutional mandate that districts in provinces be
apportioned in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio. That the Constitution never meant to exclude
provinces from the requirement of proportional representation is evident in the opening
provision of Section 5(1), which states:
The House of Representatives shall be composed of x x x members, x
x x, who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio x x x. (Boldfacing and underscoring supplied)
In short, the Constitution clearly mandates that the creation of legislative districts
in provinces, cities and the Metropolitan Manila area must comply with proportional
representation, on the basis of a uniform and progressive ratio.
In contrast, Congress enacted RA 9716 in the exercise of its legislative powers
under the 1987 Constitution and subject to the reapportionment standards in Section
5, Article VI of the Constitution. Congress is strictly bound by the reapportionment
standards in Section 5, unlike the Constitutional Commission which could create onetime exceptions subject to ratification by the sovereign people. Until it enacted RA 9716,
Congress never deviated from the minimum population requirement of 250,000 in
creating a legislative district. Thus, in Republic Act No. 7854 (RA 7854) which doubled
the legislative districts in Makati City, the Court in Mariano v. COMELEC took note of
the certification by the National Statistics Office that at the time of the enactment of RA
7854, the population of Makati City was 508,174, entitling it to two representatives.
Similarly, in Republic Act No. 9371 (RA 9371) which also doubled the legislative
districts in Cagayan de Oro City, the two districts created complied with the minimum
population of 250,000 (254,644 and 299,322, respectively), as the Court noted in
Bagabuyo v. COMELEC. Contrary to the assertion of the majority opinion, neither
Mariano v. COMELEC nor Bagabuyo v. COMELEC supports the claim that Congress
can create a legislative district with a population of less than 250,000. On the contrary,
these cases confirm that every legislative district must have a minimum population of
250,000. Only very recently, this Court in Aldaba v. COMELEC struck down a law

21
creating a legislative district in the City of Malolos, which has a population just short of
the 250,000 minimum requirement.
Personality to sue; case is moot and
academic
ALAN PAGUIA VS. OFFICE OF THE
PRESIDENT AND HILARIO DAVIDE, JR.,
G.R. No. 176278, June 25, 2010
CARPIO, J.:
ISSUE:
May Congress validly limit the Presidents prerogative to nominate ambassadors by
legislating age qualifications despite the constitutional rule limiting Congress role in the
appointment of ambassadors to the Commission on Appointments confirmation of
nominees.
Does the petitioner has the personality to sue? Shall the SC dismiss the petition on
said ground and defers another day the resolution of the question raised, novel and
fundamental it may be?
Petitioner Alan F. Paguia, as citizen and taxpayer, filed this original action for the
writ of certiorari to invalidate President Gloria Macapagal-Arroyos nomination of
respondent former Chief Justice Hilario G. Davide, Jr. (respondent Davide) as Permanent
Representative to the United Nations (UN) for violation of Section 23 of Republic Act
No. 7157 (RA 7157), the Philippine Foreign Service Act of 1991. Petitioner argues that
respondent Davides age at that time of his nomination in March 2006, 70, disqualifies
him from holding his post. Petitioner grounds his argument on Section 23 of RA 7157
pegging the mandatory retirement age of all officers and employees of the Department of
Foreign Affairs (DFA) at 65. Petitioner theorizes that Section 23 imposes an absolute rule
for all DFA employees, career or non-career; thus, respondent Davides entry into the
DFA ranks discriminates against the rest of the DFA officials and employees.
In their separate Comments, respondent Davide, the Office of the President, and
the Secretary of Foreign Affairs (respondents) raise threshold issues against the petition.
First, they question petitioners standing to bring this suit because of his indefinite
suspension from the practice of law. Second, the Office of the President and the Secretary
of Foreign Affairs (public respondents) argue that neither petitioners citizenship nor his
taxpayer status vests him with standing to question respondent Davides appointment
because petitioner remains without personal and substantial interest in the outcome of a
suit which does not involve the taxing power of the state or the illegal disbursement of
public funds. Third, public respondents question the propriety of this petition, contending
that this suit is in truth a petition for quo warranto which can only be filed by a contender
for the office in question.

22
Held:
The petition presents no case or controversy for petitioners lack of capacity to
sue and mootness.
First. Petitioners citizenship and taxpayer status do not clothe him with standing
to bring this suit. We have granted access to citizens suits on the narrowest of ground:
when they raise issues of transcendental importance calling for urgent resolution. Three
factors are relevant in our determination to allow third party suits so we can reach and
resolve the merits of the crucial issues raised the character of funds or assets involved
in the controversy, a clear disregard of constitutional or statutory prohibition, and the lack
of any other party with a more direct and specific interest to bring the suit. None of
petitioners allegations comes close to any of these parameters.
The same conclusion holds true for petitioners invocation of his taxpayer status.
Taxpayers contributions to the states coffers entitle them to question appropriations for
expenditures which are claimed to be unconstitutional or illegal. However, the salaries
and benefits respondent Davide received commensurate to his diplomatic rank are fixed
by law and other executive issuances, the funding for which was included in the
appropriations for the DFAs total expenditures contained in the annual budgets Congress
passed since respondent Davides nomination. Having assumed office under color of
authority (appointment), respondent Davide is at least a de facto officer entitled to draw
salary, negating petitioners claim of illegal expenditure of scarce public funds.
A supervening event has rendered this case academic and the relief prayed for
moot. Respondent Davide resigned his post at the UN on 1 April 2010.
Power of control of the President over
offices under the executive department;
power to undertake re-organization.
ATTY. SYLVIA BANDA ET AL VS. ERMITA, G.R.
No. 1666620, April 20, 2010
The National Press Office was formed on July 25, 1987, during the term of
former President Corazon C. Aquino (President Aquino), by virtue of Executive Order
No. 285 which provided, among others, the creation of the NPO from the merger of the
Government Printing Office and the relevant printing units of the Philippine Information
Agency (PIA).
On October 25, 2004, President Arroyo issued the herein assailed Executive
Order No. 378, amending Section 6 of Executive Order No. 285 by, inter alia, removing
the exclusive jurisdiction of the NPO over the printing services requirements of
government agencies and instrumentalities. The pertinent portions of Executive Order
No. 378, in turn, provide:
SECTION 1. The NPO shall continue to provide printing
services to government agencies and instrumentalities as mandated
by law. However, it shall no longer enjoy exclusive jurisdiction over

23
the printing services requirements of the government over standard
and accountable forms. It shall have to compete with the private
sector, except in the printing of election paraphernalia which could be
shared with the Bangko Sentral ng Pilipinas, upon the discretion of the
Commission on Elections consistent with the provisions of the Election
Code of 1987.
Pursuant to Executive Order No. 378, government agencies and instrumentalities
are allowed to source their printing services from the private sector through competitive
bidding, subject to the condition that the services offered by the private supplier be of
superior quality and lower in cost compared to what was offered by the NPO. Executive
Order No. 378 also limited NPOs appropriation in the General Appropriations Act to its
income.
Perceiving Executive Order No. 378 as a threat to their security of tenure as
employees of the NPO, petitioners now challenge its constitutionality, contending that:
(1) it is beyond the executive powers of President Arroyo to amend or repeal Executive
Order No. 285 issued by former President Aquino when the latter still exercised
legislative powers; and (2) Executive Order No. 378 violates petitioners security of
tenure, because it paves the way for the gradual abolition of the NPO.
HELD:
As to the merits of the case, the petition raises two main grounds to assail the
constitutionality of Executive Order No. 378:
First, it is contended that President Arroyo cannot amend or repeal Executive
Order No. 285 by the mere issuance of another executive order (Executive Order No.
378). Petitioners maintain that former President Aquinos Executive Order No. 285 is a
legislative enactment, as the same was issued while President Aquino still had legislative
powers under the Freedom Constitution; thus, only Congress through legislation can
validly amend Executive Order No. 285.
Second, petitioners maintain that the issuance of Executive Order No. 378 would
lead to the eventual abolition of the NPO and would violate the security of tenure of
NPO employees.
Anent the first ground raised in the petition, we find the same patently without
merit.
It is a well-settled principle in jurisprudence that the President has the power to
reorganize the offices and agencies in the executive department in line with the
Presidents constitutionally granted power of control over executive offices and by
virtue of previous delegation of the legislative power to reorganize executive offices
under existing statutes.
In Buklod ng Kawaning EIIB v. Zamora, the Court pointed out that Executive
Order No. 292 or the Administrative Code of 1987 gives the President continuing

24
authority to reorganize and redefine the functions of the Office of the President. Section
31, Chapter 10, Title III, Book III of the said Code, is explicit:
Sec. 31. Continuing Authority of the President to Reorganize his
Office. The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the
Office of the President Proper, including the immediate
Offices, the President Special Assistants/Advisers System
and the Common Staff Support System, by abolishing,
consolidating or merging units thereof or transferring
functions from one unit to another;
(2) Transfer any function under the Office of
the President to any other Department or Agency as
well as transfer functions to the Office of the President
from other Departments and Agencies; and
(3) Transfer any agency under the Office of the
President to any other department or agency as well as
transfer agencies to the Office of the President from
other Departments or agencies. (Emphases ours.)
The Constitutions express grant of the power of control in the President justifies
an executive action to carry out reorganization measures under a broad authority of law.
In enacting a statute, the legislature is presumed to have deliberated with full
knowledge of all existing laws and jurisprudence on the subject. It is thus reasonable to
conclude that in passing a statute which places an agency under the Office of the
President, it was in accordance with existing laws and jurisprudence on the Presidents
power to reorganize.
In establishing an executive department, bureau or office, the legislature
necessarily ordains an executive agencys position in the scheme of administrative
structure. Such determination is primary, but subject to the Presidents continuing
authority to reorganize the administrative structure. As far as bureaus, agencies or offices
in the executive department are concerned, the power of control may justify the President
to deactivate the functions of a particular office. Or a law may expressly grant the
President the broad authority to carry out reorganization measures. The Administrative
Code of 1987 is one such law.
The issuance of Executive Order No. 378 by President Arroyo is an exercise of a
delegated legislative power granted by the aforementioned Section 31, Chapter 10, Title
III, Book III of the Administrative Code of 1987, which provides for the continuing

25
authority of the President to reorganize the Office of the President, in order to achieve
simplicity, economy and efficiency.
This brings us to the second ground raised in the petition that Executive Order
No. 378, in allowing government agencies to secure their printing requirements from the
private sector and in limiting the budget of the NPO to its income, will purportedly lead
to the gradual abolition of the NPO and the loss of security of tenure of its present
employees. In other words, petitioners avow that the reorganization of the NPO under
Executive Order No. 378 is tainted with bad faith. The basic evidentiary rule is that he
who asserts a fact or the affirmative of an issue has the burden of proving it.
Security of tenure of probationary
government employee; due process
CIVIL SERVICE COMMISSION VS. GREGORIO
MAGNAYE, JR., G.R. No. 183337, April 23, 2010

FACTS:
In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed
Magnaye as Utility Worker I at the Office of Economic Enterprise [Operation of Market]
(OEE). After a few days, Mayor Rosales detailed him to the Municipal Planning and
Development Office.
In the May elections of that year, Mayor Rosales was defeated by Raul L.
Bendaa, who assumed office on June 30, 2001. Thereafter, Magnaye was returned to his
original assignment at the OEE. On July 11, 2001, Bendaa also placed him on detail at
the Municipal Planning and Development Office to assist in the implementation of a
Survey on the Integrated Rural Accessibility Planning Project.
On August 13, 2001, the new mayor served him a notice of termination from employment
effective the following day for unsatisfactory conduct and want of capacity.
Magnaye questioned his termination before the CSC head office on the ground
that Mayor Bendaa was not in a position to effectively evaluate his performance because
it was made less than one and one-half months after his (Mayor Bendaas) assumption
to office. He added that his termination was without basis and was politically motivated
The CSCRO-IV dismissed Magnayes complaint for lack of merit. It upheld his
dismissal from the service on the ground that Mayor Bendaas own assessment, together
with the evaluation made by his supervisors, constituted sufficient and reasonable
grounds for his termination.
Magnaye sought recourse through a petition for review with the Court of Appeals, citing
CSCRO-IVs alleged errors of fact and of law, non-observance of due process, and grave
abuse of discretion amounting to lack or excess of jurisdiction. Adopting the stance of the
Office of the Solicitor General, the CA ruled in Magnayes favor, mainly on the ground

26
that he was denied due process since he was not informed of what constituted the alleged
unsatisfactory conduct and want of capacity that led to his termination.
THE ISSUES
In this petition, the Civil Service Commission submits the following for our
consideration:
I. The dropping of respondent from the rolls of the local
government unit of Lemery, Batangas was in accord with Civil
Service Law, rules and jurisprudence.
II. The respondent resorted to a wrong mode of appeal and violated
the rule on exhaustion of administrative remedies and the corollary
doctrine of primary jurisdiction.
The principal issue, therefore, is whether or not the termination of
Magnaye was in accordance with the pertinent laws and the rules.
The eligibility of respondent Magnaye has not been put in issue.
THE COURTS RULING
The Court upholds the decision of the Court of Appeals.
The CSC, in arguing that Magnayes termination was in accord with the Civil Service
law, cited Section 4(a), Rule II of the 1998 CSC Omnibus Rules on Appointments and
Other Personnel Actions which provides that:
Sec. 4. Nature of appointment. The nature of appointment shall be
as follows:
a. Original refers to the initial entry into the career service of
persons who meet all the requirements of the position. xxx
It is understood that the first six months of the service following an
original appointment will be probationary in nature and the
appointee shall undergo a thorough character investigation. A
probationer may be dropped from the service for unsatisfactory
conduct or want of capacity anytime before the expiration of the
probationary period. Provided that such action is appealable to the
Commission.
However, if no notice of termination for unsatisfactory conduct is
given by the appointing authority to the employee before the
expiration of the six-month probationary period, the appointment
automatically becomes permanent.

27
Under Civil Service rules, the first six months of service following a permanent
appointment shall be probationary in nature, and the probationer may be dropped from
the service for unsatisfactory conduct or want of capacity anytime before the expiration
of the probationary period.
The CSC is of the position that a civil service employee does not enjoy security of tenure
during his 6-month probationary period. It submits that an employees security of tenure
starts only after the probationary period. Specifically, it argued that an appointee under
an original appointment cannot lawfully invoke right to security of tenure until after the
expiration of such period and provided that the appointee has not been notified of the
termination of service or found unsatisfactory conduct before the expiration of the
same.
The CSC position is contrary to the Constitution and the Civil Service Law itself.
Section 3 (2) Article 13 of the Constitution guarantees the rights of all workers not just
in terms of self-organization, collective bargaining, peaceful concerted activities, the
right to strike with qualifications, humane conditions of work and a living wage but also
to security of tenure, and Section 2(3), Article IX-B is emphatic in saying that, "no
officer or employee of the civil service shall be removed or suspended except for cause
as provided by law."
Consistently, Section 46 (a) of the Civil Service Law provides that no officer or
employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law after due process.
Our Constitution, in using the expressions all workers and no officer or employee,
puts no distinction between a probationary and a permanent or regular employee which
means that both probationary and permanent employees enjoy security of tenure.
Probationary employees enjoy security of tenure in the sense that during their
probationary employment, they cannot be dismissed except for cause or for failure to
qualify as regular employees. This was clearly stressed in the case of Land Bank of the
Philippines v. Rowena Paden, where it was written:
To put the case in its proper perspective, we begin with a discussion
on the respondent's right to security of tenure. Article IX (B),
Section 2(3) of the 1987 Constitution expressly provides that
"[n]o officer or employee of the civil service shall be removed or
suspended except for cause provided by law." At the outset, we
emphasize that the aforementioned constitutional provision
does not distinguish between a regular employee and a
probationary employee. In the recent case of Daza v. Lugo we
ruled that:
The Constitution provides that "[N]o officer or
employee of the civil service shall be removed or
suspended except for cause provided by law." Sec. 26,
par. 1, Chapter 5, Book V, Title I-A of the Revised
Administrative Code of 1987 states:

28
All such persons (appointees who meet all the
requirements of the position) must serve a
probationary period of six months following their
original appointment and shall undergo a thorough
character investigation in order to acquire permanent
civil service status. A probationer may be dropped
from the service for unsatisfactory conduct or want of
capacity any time before the expiration of the
probationary period; Provided, That such action is
appealable to the Commission.
Thus, the services of respondent as a
probationary employee may only be terminated
for a just cause, that is, unsatisfactory conduct or
want of capacity. [Emphasis supplied]
x x x.
X x x the only difference between regular and probationary
employees from the perspective of due process is that the latter's
termination can be based on the wider ground of failure to comply
with standards made known to them when they became
probationary employees.
The constitutional and statutory guarantee of security of tenure is extended
to both those in the career and non-career service positions, and the cause under
which an employee may be removed or suspended must naturally have some
relation to the character or fitness of the officer or employee, for the discharge of
the functions of his office, or expiration of the project for which the employment
was extended. Further, well-entrenched is the rule on security of tenure that such
an appointment is issued and the moment the appointee assumes a position in the
civil service under a completed appointment, he acquires a legal, not merely
equitable right (to the position), which is protected not only by statute, but also by
the Constitution [Article IX-B, Section 2, paragraph (3)] and cannot be taken away
from him either by revocation of the appointment, or by removal, except for cause,
and with previous notice and hearing.
While the CSC contends that a probationary employee does not enjoy security of
tenure, its Omnibus Rules recognizes that such an employee cannot be terminated except
for cause. Note that in the Omnibus Rules it cited, a decision or order dropping a
probationer from the service for unsatisfactory conduct or want of capacity anytime
before the expiration of the probationary period is appealable to the
Commission. This can only mean that a probationary employee cannot be fired at
will.
While unsatisfactory conduct and want of capacity are valid causes that may be
invoked for dismissal from the service, the CA observed that the Memorandum issued by
Mayor Bendaa terminating Magnayes employment did not specify the acts constituting

29
his want of capacity and unsatisfactory conduct. It merely stated that the character
investigation conducted during his probationary period showed that his employment
need not be necessary to be permanent in status. Specifically, the notice of termination
partly reads:
You are hereby notified that your service as Utility Worker I, this
municipality under six (6) month probationary period, is
considered terminated for unsatisfactory conduct or want of
capacity, effective August 14, 2001.
You are further notified that after a thorough character
investigation made during your such probationary period under my
administration, your appointment for employment need not be
necessary to be automatically permanent in status.
This notice indisputably lacks the details of Magnayes unsatisfactory conduct or want of
capacity. Section VI, 2.2(b) of the Omnibus Guidelines on Appointments and other
Personnel Actions (CSC Memorandum Circular No. 38, Series of 1993, as amended by
CSC Memorandum Circular No. 12, Series of 1994), provides:
2.2. Unsatisfactory or Poor Performance
xxx
b. An official who, for one evaluation period, is rated poor in
performance, may be dropped from the rolls after due notice. Due
notice shall mean that the officer or employee is informed in writing
of the status of his performance not later than the fourth month of
that rating period with sufficient warning that failure to improve his
performance within the remaining period of the semester shall
warrant his separation from the service. Such notice shall also
contain sufficient information which shall enable the employee to
prepare an explanation. [Emphasis and underscoring supplied]
Magnaye asserts that no performance evaluation was made between
March 2001 when he was hired by Mayor Rosales until August 14, 2001 when his
services were terminated by Mayor Bendaa. It was only on July 29, 2003, at
Mayor Bendaas behest, that his two supervisors prepared and submitted the
evaluation report after the CSCRO-IV directed him to file an answer to
Magnayes appeal.
This has not been rebutted. It being not disputed, it was an error on the part of the
CSCRO-IV to rely on such belated performance appraisal. Common sense dictates that
the evaluation report, submitted only in 2003, could not have been the basis for
Magnayes termination.

30
Besides, Mayor Bendaas own assessment of Magnayes performance could not
have served as a sufficient basis to dismiss him because said mayor was not his
immediate superior and did not have daily contacts with him. Additionally, Mayor
Bendaa terminated his employment less than one and one-half months after his
assumption to office. This is clearly a short period within which to assess his
performance. In the case of Miranda v. Carreon, it was stated:
The 1987 Constitution provides that no officer or employee of the
civil service shall be removed or suspended except for cause
provided by law. Under the Revised Administrative Code of 1987, a
government officer or employee may be removed from the service
on two (2) grounds: (1) unsatisfactory conduct and (2) want of
capacity. While the Code does not define and delineate the
concepts of these two grounds, however, the Civil Service Law
(Presidential Decree No. 807, as amended) provides specific
grounds for dismissing a government officer or employee from the
service. Among these grounds are inefficiency and incompetence in
the performance of official duties. In the case at bar, respondents
were dismissed on the ground of poor performance. Poor
performance falls within the concept of inefficiency and
incompetence in the performance of official duties which, as earlier
mentioned, are grounds for dismissing a government official or
employee from the service.
But inefficiency or incompetence can only be determined after the
passage of sufficient time, hence, the probationary period of six (6)
months for the respondents. Indeed, to be able to gauge whether a
subordinate is inefficient or incompetent requires enough time on the
part of his immediate superior within which to observe his
performance. This condition, however, was not observed in this
case. x x x. [Emphasis and underscoring supplied]
The CSC is the central personnel agency of the government exercising quasijudicial functions. In cases filed before administrative or quasi-judicial bodies, a fact
may be deemed established if it is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion. The standard of substantial evidence is satisfied when, on the basis of the
evidence on record, there is reasonable ground to believe that the person terminated was
evidently wanting in capacity and had unsatisfactory conduct. In this case, the evidence
against Magnaye was woefully inadequate.
Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman
Patricia Sto. Tomas that the prohibition in Article IX (B) (2) (3) of the Constitution
against dismissal of a civil service officer or employee "except for cause provided by
law" is a guaranty of both procedural and substantive due process. Procedural due
process requires that the dismissal comes only after notice and hearing, while
substantive due process requires that the dismissal be for cause.

31
Magnaye was denied procedural due process when he received his notice of
termination only a day before he was dismissed from the service. Evidently, he was
effectively deprived of the opportunity to defend himself from the charge that he lacked
the capacity to do his work and that his conduct was unsatisfactory. As well, during his
appeal to the CSCRO-IV, he was not furnished with the submissions of Mayor Bendaa
that he could have opposed. He was also denied substantive due process because he was
dismissed from the service without a valid cause for lack of any factual or legal basis for
his want of capacity and unsatisfactory conduct.
Thus, we reject petitioners argument that the CA erred when it acted upon the
erroneous remedy availed of by respondent when he filed a petition for review
considering that the assailed decision is not in the nature of awards, judgments, final
orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its
quasi-judicial functions as prescribed under Rule 43 of the Rules of Court. While
Sections 71 and 72 of Rule V (B) of the Uniform Rules on Administrative Cases in
the Civil Service provide for the remedy of an appeal from decisions of its regional
offices to the Commission proper, Magnayes petition to the CA comes under the
exceptions to the doctrine of exhaustion of administrative remedies. The CA correctly
cited Republic v. Lacap, where a violation of due process is listed to be among the noted
exceptions to the rule. As discussed above, Magnayes dismissal was tainted with
irregularity because the notice given to him comes short of the notice contemplated by
law and jurisprudence. The CA correctly exercised jurisdiction over this case where
standards of due process had been patently breached.
Having been illegally dismissed, Magnaye should be reinstated to his former position
without loss of seniority and paid backwages and other monetary benefits from the time
of his dismissal up to the time of his reinstatement. In our decision in Civil Service
Commission v. Gentallan, we ruled that for reasons of justice and fairness, an illegally
dismissed government employee who is later ordered reinstated is entitled to backwages
and other monetary benefits from the time of his illegal dismissal until his reinstatement
because he is considered as not having left his office.
Presumption
of
innocence;
noncompliance of the police of section 21 of
RA No. 9165 in drugs cases

PEOPLE OF THE PHILIPPINES VS. SAPIA

ANDONGAN, G.R. No. 184595, June 29, 2010
Accused was allegedly arrested in a buy-bus operation in Manila particularly in
Abad Santos Avenue along Bambang Street, a street with many people at that time, at
around 7:50 p.m. of June 25, 2004. She allegedly sold shabu worth P500.00 for one (1)
sachet containing 0.146 grams . No other sachet of shabu was confiscated on her person
though she allegedly a drug dealer.
HELD:

32

The chain of custody rule under Section 21 of RA No. 9165 was not shown to
have been substantially complied with.
The presumption of regularity in the performance of official duties could not
prevail over the presumption of innocence in favor of the accused.
For, among other things, it is incredible for an allegedly known drug-peddler to be
standing at a corner of a street at 7:50 in the evening instead of plying her trade secretly,
and with only a 0.146-gram sachet worth P500.00 of prohibited drugs in her possession
the value of which happens to be what a poseur-buyer wants to buy.
Residence requirement for members of
the House of Representatives.
REP. DANILO RAMON FERNANDEZ VS. HOUSE
OF REPRESENTATIVES ELECTORAL TRIBUNAL
and JESUS VICENTE, G.R. No. 187478, December 21,
2009
Petitioner filed for candidacy as Representative of the First Legislative District of
the Province of Laguna in the May 14, 2007 elections. In his Certificate of Candidacy
(COC), he indicated his complete/exact address as No. 13 Maharlika St., Villa Toledo
Subdivision, Barangay Balibago, Sta. Rosa City, Laguna (alleged Sta. Rosa residence).
Private respondent Jesus L. Vicente (private respondent) filed a Petition to Deny
Due Course to and/or Cancel Certificate of Candidacy and Petition for Disqualification
before the Office of the Provincial Election Supervisor of Laguna. This was forwarded to
the Commission on Elections (COMELEC) and docketed therein as SPA No. 07-046
(PES). Private respondent sought the cancellation of petitioners COC and the latters
disqualification as a candidate on the ground of an alleged material misrepresentation in
his COC regarding his place of residence, because during past elections, he had declared
Pagsanjan, Laguna as his address, and Pagsanjan was located in the Fourth Legislative
District of the Province of Laguna. Private respondent likewise claimed that petitioner
maintained another house in Cabuyao, Laguna, which was also outside the First District.
The COMELEC (First Division) dismissed said petition for lack of merit.
Petitioner was proclaimed as the duly elected Representative of the First District
of Laguna on June 27, 2007, having garnered a total of 95,927 votes, winning by a
margin of 35,000 votes over the nearest candidate.
On July 5, 2007, private respondent filed a petition for quo warranto before the
HRET, docketed as HRET CASE No. 07-034, praying that petitioner be declared
ineligible to hold office as a Member of the House of Representatives representing the
First Legislative District of the Province of Laguna, and that petitioners election and
proclamation be annulled and declared null and void.
Private respondents main ground for the quo warranto petition was that
petitioner lacked the required one-year residency requirement provided under Article VI,

33
Section 6 of the 1987 Constitution. In support of his petition, private respondent argued
that petitioner falsely declared under oath: (1) his alleged Sta. Rosa residence; (2) the
period of his residence in the legislative district before May 14, 2007, which he indicated
as one year and two months; and (3) his eligibility for the office where he was seeking to
be elected. Private respondent presented the testimony of a certain Atty. Noel T.
Tiampong, who stated that petitioner is not from the alleged Sta. Rosa residence but a
resident of Barangay Pulo, Cabuyao, Laguna; as well as the respective testimonies of
Barangay Balibago Health Workers who attested that they rarely, if ever, saw respondent
in the leased premises at the alleged Sta. Rosa residence; and other witnesses who
testified that contrary to the misrepresentations of petitioner, he is not a resident of the
alleged Sta. Rosa residence. A witness testified that petitioner attempted to coerce some
of the other witnesses to recant their declarations and change their affidavits. Finally,
private respondent presented as witness the lawyer who notarized the Contract of Lease
dated March 8, 2007 between petitioner as lessee and Bienvenido G. Asuncion as lessor.
Petitioner, as respondent in HRET Case No. 07-034, presented as his witnesses
residents of Villa de Toledo who testified that they had seen respondent and his family
residing in their locality, as well as Bienvenido G. Asuncion who testified that petitioner
is the lessee in Unit No. 13 Block 1 Lot I, Maharlika St., Villa de Toledo Subdivision,
Brgy. Balibago, Sta. Rosa City, Laguna. Petitioner likewise presented Mr. Joseph Wade,
President of South Point Homeowners Association of Cabuyao, Laguna, as well as Engr.
Larry E. Castro (Castro), who testified that since February 2006 up to the present,
petitioner had no longer been residing in his property located at Block 28, Lot 18, South
Point Subdivision, Cabuyao, Laguna, and that said property was being offered for sale
and temporarily being used by Castro, together with some security men of petitioner and
employees of Rafters Music Lounge owned by petitioner. Petitioner testified that he had
been a resident of Sta. Rosa even before February 2006; that he owned property in
another Sta. Rosa subdivision (Bel-Air); that he and his wife had put up a business
therein, the RAFTERS restaurant/ bar; and that he had prior residence in another place
also at Sta. Rosa as early as 2001.
Since the HRET ruled in favor of private respondent, this petition was filed before
us.
In petitioners assignment of errors, he alleges that the HRET grievously erred
and committed grave abuse of discretion:
1.

In not placing on the quo warranto petitioner Jesus L. Vicente the burden
of proving that then respondent (now petitioner) Fernandez is not a
qualified candidate for Representative of the First District of the Province
of Laguna;
2. When it disregarded the ruling of a co-equal tribunal in SPA No. 07-046;
3. When it added a property qualification to a Member of Congress;
4. When it determined that the petitioner failed to comply with the one (1)
year residency requirement based on the contract of lease;

34
On the first assignment of error, petitioner questions the following
pronouncement of the HRET in its decision:
In the case before us, petitioner has clearly asserted, and
respondent does not deny, that his domicile of origin is Pagsanjan in the
Fourth District of Laguna. Hence, the burden is now on respondent to
prove that he has abandoned his domicile of origin, or since his birth,
where he formerly ran for provincial Board Member of Laguna in 1998,
for Vice-Governor of Laguna in 2001 and for Governor of Laguna in
2004. In all his Certificates of Candidacy when he ran for these positions,
he indicated under oath that his domicile or permanent residence was in
Pagsanjan in the Fourth District of Laguna, not in the First District where
he later ran in the last elections.
Petitioner avers that private respondent failed to establish his claim and to adduce
evidence sufficient to overcome petitioners eligibility to be a candidate for
Representative of the First District of Laguna.
On the second assignment of error, petitioner submits that the HRET should have
been guided and/or cautioned by the COMELECs dispositions in SPA No. 07-046,
wherein he was adjudged as qualified to run for the position of Congressman of the First
District of Laguna by an agency tasked by law and the Constitution to ascertain the
qualifications of candidates before election. Petitioner claims that the HRET should have
respected the findings of the COMELEC and should have discreetly denied the petition.
On the third assignment of error, petitioner argues that under Article V, Section 1,
of the 1987 Constitution, any citizen of the Philippines who is a qualified voter may
likewise, if so qualified under the appertaining law and the constitution, be able to run
and be voted for as a candidate for public office.
Petitioner alleges that in the questioned Decision, the HRET added a new
qualification requirement for candidates seeking election to the position of Member of the
House of Representatives, and that is, they must be real property owners in the legislative
district where they seek election.

On the fourth assignment of error, petitioner addresses private respondents

arguments against the contract of lease that he presented as part of the proof of his
compliance with the residency requirement. Petitioner asserts that the nomenclature used
by contracting parties to describe a contract does not determine its nature, but the
decisive factor is the intention of the parties to a contract as shown by their conduct,
words, actions, and deeds prior to, during and after executing the agreement. Petitioner
claims that he has presented ample proof of his residency in terms of evidence more
numerous and bearing more weight and credibility than those of private respondent. He
proceeds to highlight some of the evidence he offered in the quo warranto case that
allegedly prove that his transfer of residence and intention to reside in Sta. Rosa were
proven by his stay in Villa de Toledo, to wit: (1) even earlier than 2006, he had purchased
a house and lot in Bel-Air Subdivision in Sta. Rosa which he rented out because he was

35
not yet staying there at that time; (2) he sent his children to schools in Sta. Rosa as early
as 2002; and (3) he and his wife established a restaurant business there in 2003.
Petitioner contends that when he and his family moved to Sta. Rosa by initially renting a
townhouse in Villa de Toledo, it cannot be said that he did this only in order to run for
election in the First Legislative District.
As regards the alleged infirmities characterizing the execution of the contract of
lease and the renewal of said contract of lease, petitioner contends that these are not
material since the lessor, Bienvenido Asuncion, affirmed his stay in his townhouse; the
neighbors and other barangay personalities confirmed his and his familys stay in their
area; and petitioner has continued actual residence in Sta. Rosa from early 2006 to the
present. Petitioner claims that all these prove that he had effectively changed his
residence and could therefore likewise transfer his voters registration from Pagsanjan to
Sta. Rosa under Sec. 12 of R.A. No. 8189. Petitioner also alleges that he had become
qualified to seek elective office in his new place of residence and registration as a voter.
To further prove that he has made Sta. Rosa his domicile of choice from early 2006
to the present, petitioner points out that he and his wife had purchased a lot in the same
area, Villa de Toledo, on April 21, 2007, built a house thereon, and moved in said house
with their family.
Regarding the non-notarization of the contract of lease raised by private
respondent, petitioner avers that this does not necessarily nullify nor render the parties
transaction void ab initio.
HELD:
The issues for determination are: (1) whether the HRET had jurisdiction over the
case; and (2) whether petitioner sufficiently complied with the one-year residency
requirement to be a Member of the House of Representatives, as provided in the 1987
Constitution.
The first issue is procedural and involves the jurisdiction of the HRET vis--vis
that of the COMELEC in cases involving the qualification of Members of the House of
Representatives. Petitioner suggests that the matters raised in HRET Case No. 07-034
were already passed upon by the COMELEC in SPA No. 07-046 (PES), thus the HRET
should have dismissed the case for forum-shopping.
We do not agree. The 1987 Constitution explicitly provides under Article VI,
Section 17 thereof that the HRET and the Senate Electoral Tribunal (SET) shall be the
sole judges of all contests relating to the election, returns, and qualifications of their
respective members. The authority conferred upon the Electoral Tribunal is full, clear
and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of
these Tribunals, which is conferred upon the HRET and the SET after elections and the
proclamation of the winning candidates. A candidate who has not been proclaimed and
who has not taken his oath of office cannot be said to be a member of the House of
Representatives.

36
Thus, private respondent correctly pointed out that a petition for quo warranto is
within the exclusive jurisdiction of the HRET, and cannot be considered forum shopping
even if, as in this case, the COMELEC had already passed upon in administrative or
quasi-judicial proceedings the issue of the qualification of the Member of the House of
Representatives while the latter was still a candidate.
Anent the second issue pertaining to petitioners compliance with the residency
requirement for Members of the House of Representatives, after studying the evidence
submitted by the parties, we find for petitioner, taking into account our ruling in Frivaldo
v. COMELEC, which reads in part:
This Court has time and again liberally and equitably construed the
electoral laws of our country to give fullest effect to the manifest will of
our people, for in case of doubt, political laws must be interpreted to give
life and spirit to the popular mandate freely expressed through the ballot.
Otherwise stated, legal niceties and technicalities cannot stand in the way
of the sovereign will. xxx (Emphasis supplied)
For the foregoing reason, the Court must exercise utmost caution before
disqualifying a winning candidate, shown to be the clear choice of the constituents that he
wishes to represent in Congress.
The qualifications of a member of the House of Representatives are found in
Article VI, Section 6 of the Constitution, which provides:
Section 6. No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the Philippines and,
on the day of the election, is at least twenty-five years of age, able to read
and write, and, except the party-list representatives, a registered voter in
the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the
election. (Emphasis supplied)
We find the interpretation of the HRET of the residency requirement under the
Constitution to be overly restrictive and unwarranted under the factual circumstances of
this case.
The evidence presented by private respondent before the HRET hardly suffices to
prove that petitioner failed to comply with the one-year residency requirement under the
Constitution. Private respondents documentary evidence to disqualify petitioner mainly
consisted of (a) petitioners certificates of candidacy (COCs) for various positions in
1998, 2001 and 2004, which all indicated his residence as Pagsanjan, Laguna within the
Fourth District of said province; (b) his application for a drivers license in August 2005
that indicated Pagsanjan, Laguna as his residence; and (c) the statement in his COCs
including his 2007 COC for Congressman for the First District of Laguna that his place
of birth was Pagsanjan, Laguna.
The only thing these pieces of documentary evidence prove is that petitioners
domicile of origin was Pagsanjan, Laguna and it remained his domicile up to 2005, at the

37
latest. On the other hand, what petitioner asserted in his 2007 COC is that he had been a
resident of Sta. Rosa, Laguna in the First District of Laguna as of February 2006 and
respondents evidence failed contradict that claim.

If it is true that petitioner and his family had been living in Sta. Rosa, Laguna as of
February 2006 with the intent to reside therein permanently, that would more than fulfill
the requirement that petitioner be a resident of the district where he was a candidate for at
least one year before election day, which in this case was May 14, 2007.
In order to buttress his claim that he and his family actually resided in Sta. Rosa,
Laguna beginning at least in February 2006, petitioners evidence included, among
others: (a) original and extended lease contracts for a townhouse in Villa de Toledo,
Barangay Balibago, Sta. Rosa, Laguna; (b) certification issued by the President of the
Villa de Toledo Homeowners Association, Inc, that petitioner has been a resident of said
Subdivision since February 2006; (c) affidavits of petitioners neighbors in Villa de
Toledo attesting that petitioner has been a resident of said subdivision since February
2006; (d) certification of the barangay chairman of Barangay Balibago, Sta. Rosa,
Laguna that petitioner is a resident of Villa de Toledo within the said barangay; (e)
certificates of attendance of petitioners children in schools located in Sta. Rosa, Laguna
since 2005; and (f) DTI certificates of business issued in the name of petitioner and his
wife to show that they own and operate businesses in Sta. Rosa, Laguna since 2003.
The fact that a few barangay health workers attested that they had failed to see
petitioner whenever they allegedly made the rounds in Villa de Toledo is of no moment,
especially considering that there were witnesses (including petitioners neighbors in Villa
de Toledo) that were in turn presented by petitioner to prove that he was actually a
resident of Villa de Toledo, in the address he stated in his COC. The law does not require
a person to be in his home twenty-four (24) hours a day, seven days a week, in order to
fulfill the residency requirement. It may be that whenever these health workers do their
rounds petitioner was out of the house to attend to his own employment or business. It is
not amiss to note that even these barangay health workers, with the exception of one,
confirm seeing petitioners wife at the address stated in petitioners 2007 COC. Indeed,
these health workers testimonies do not conclusively prove that petitioner did not in fact
reside in Villa de Toledo for at least the year before election day.
Neither do we find anything wrong if petitioner sometimes transacted business or
received visitors in his Cabuyao house, instead of the alleged Sta. Rosa residence, as
there is nothing in the residency requirement for candidates that prohibits them from
owning property and exercising their rights of ownership thereto in other places aside
from the address they had indicated as their place of residence in their COC.
As regards the weight to be given the contract of lease vis--vis petitioners
previous COCs, we find Perez v. COMELEC to be instructive in this case, and quote the
pertinent portions of the decision below:
In the case at bar, the COMELEC found that private respondent
changed his residence from Gattaran to Tuguegarao, the capital of Cagayan,

38
in July 1990 on the basis of the following: (1) the affidavit of Engineer
Alfredo Ablaza, the owner of the residential apartment at 13-E Magallanes
St., Tuguegarao, Cagayan, where private respondent had lived in 1990; (2)
the contract of lease between private respondent, as lessee, and Tomas T.
Decena, as lessor, of a residential apartment at Kamias St., Tanza,
Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the
marriage certificate, dated January 18, 1998, between private respondent
and Lerma Dumaguit; (4) the certificate of live birth of private respondent's
second daughter; and (5) various letters addressed to private respondent and
his family, which all show that private respondent was a resident of
Tuguegarao, Cagayan for at least one (1) year immediately preceding the
elections on May 11, 1998.
There is thus substantial evidence supporting the finding that private
respondent had been a resident of the Third District of Cagayan and there is
nothing in the record to detract from the merit of this factual finding.
Petitioner contends that the fact that private respondent was a resident
of Gattaran, at least until June 22, 1997, is shown by the following
documentary evidence in the record, to wit: (1) his certificates of candidacy
for governor of Cagayan in the 1988, 1992 and 1995 elections; (2) his
voter's registration records, the latest of which was made on June 22, 1997;
and (3) the fact that private respondent voted in Gattaran, Cagayan, in the
elections of 1987, 1988, 1992 and 1995.
The contention is without merit. The fact that a person is registered as
a voter in one district is not proof that he is not domiciled in another
district. Thus, in Faypon v. Quirino, this Court held that the registration of a
voter in a place other than his residence of origin is not sufficient to
consider him to have abandoned or lost his residence.
Nor is it of much importance that in his certificates of candidacy
for provincial governor in the elections of 1988, 1992, and 1995, private
respondent stated that he was a resident of Gattaran. Under the law,
what is required for the election of governor is residency in the
province, not in any district or municipality, one year before the
election.
Moreover, as this Court said in Romualdez-Marcos v. COMELEC:
It is the fact of residence, not a statement in a certificate of
candidacy, which ought to be decisive in determining whether or not
an individual has satisfied the constitution's residency qualification
requirement. The said statement becomes material only when there is

39
or appears to be a deliberate attempt to mislead, misinform, or hide a
fact which would otherwise render a candidate ineligible.
In this case, although private respondent declared in his certificates of
candidacy prior to the May 11, 1998 elections that he was a resident of
Gattaran, Cagayan, the fact is that he was actually a resident of the Third
District not just for one (1) year prior to the May 11, 1998 elections but for
more than seven (7) years since July 1990. His claim that he had been a
resident of Tuguegarao since July 1990 is credible considering that he
was governor from 1988 to 1998 and, therefore, it would be convenient
for him to maintain his residence in Tuguegarao, which is the capital of
the province of Cagayan.
As always, the polestar of adjudication in cases of this nature is
Gallego v. Vera, in which this Court held: "[W]hen the evidence on the
alleged lack of residence qualification is weak or inconclusive and it
clearly appears, as in the instant case, that the purpose of the law
would not be thwarted by upholding the right to the office, the will of
the electorate should be respected." In this case, considering the purpose
of the residency requirement, i.e., to ensure that the person elected is
familiar with the needs and problems of his constituency, there can be no
doubt that private respondent is qualified, having been governor of the
entire province of Cagayan for ten years immediately before his election as
Representative of that province's Third District.
Thus, in the case above, the Court found that the affidavit of the lessor and the
contract of lease were sufficient proof that private respondent therein had changed his
residence. In the case now before us, although private respondent raised alleged formal
defects in the contract of lease, the lessor himself testified that as far as he was
concerned, he and petitioner had a valid contract and he confirmed that petitioner and his
family are the occupants of the leased premises.
Petitioner correctly pointed out that the lack of proper notarization does not
necessarily nullify nor render the parties transaction void ab initio. In Mallari v. Alsol,
we found a contract of lease to be valid despite the non-appearance of one of the parties
before a notary public, and ruled in this wise:
Notarization converts a private document into a public document.
However, the non-appearance of the parties before the notary public who
notarized the document does not necessarily nullify nor render the parties'
transaction void ab initio. Thus:
. . . Article 1358 of the New Civil Code on the necessity
of a public document is only for convenience, not for validity or
enforceability. Failure to follow the proper form does not
invalidate a contract. Where a contract is not in the form
prescribed by law, the parties can merely compel each other to
observe that form, once the contract has been perfected. This is

40
consistent with the basic principle that contracts are obligatory
in whatever form they may have been entered into, provided all
essential requisites are present.
Hence, the Lease Contract is valid despite Mayor Perez's
failure to appear before the notary public.
The HRET puts undue emphasis on the fact that petitioner is only leasing a
townhouse in Sta. Rosa while he owns houses in Pagsanjan and Cabuyao. His ownership
of properties in other places has been taken to mean that petitioner did not intend to make
Sta. Rosa his permanent residence or that he had not abandoned his domicile of origin.
Although it is true that the latest acquired abode is not necessarily the domicile of
choice of a candidate, there is nothing in the Constitution or our election laws which
require a congressional candidate to sell a previously acquired home in one district and
buy a new one in the place where he seeks to run in order to qualify for a congressional
seat in that other district. Neither do we see the fact that petitioner was only leasing a
residence in Sta. Rosa at the time of his candidacy as a barrier for him to run in that
district. Certainly, the Constitution does not require a congressional candidate to be a
property owner in the district where he seeks to run but only that he resides in that district
for at least a year prior to election day. To use ownership of property in the district as the
determinative indicium of permanence of domicile or residence implies that only the
landed can establish compliance with the residency requirement. This Court would be, in
effect, imposing a property requirement to the right to hold public office, which property
requirement would be unconstitutional.
This case must be distinguished from Aquino v. COMELEC and Domino v.
COMELEC, where the disqualified candidate was shown to be merely leasing a residence
in the place where he sought to run for office. In Aquino and Domino, there appeared to
be no other material reason for the candidate to lease residential property in the place
where he filed his COC, except to fulfill the residency requirement under election laws.
In the case at bar, there are real and substantial reasons for petitioner to establish
Sta. Rosa as his domicile of choice and abandon his domicile of origin and/or any other
previous domicile. To begin with, petitioner and his wife have owned and operated
businesses in Sta. Rosa since 2003. Their children have attended schools in Sta. Rosa at
least since 2005. Although ownership of property should never be considered a
requirement for any candidacy, petitioner had sufficiently confirmed his intention to
permanently reside in Sta. Rosa by purchasing residential properties in that city even
prior to the May 2007 election, as evidenced by certificates of title issued in the name of
petitioner and his wife. One of these properties is a residence in Bel-Air, Sta. Rosa which
petitioner acquired even before 2006 but which petitioner had been leasing out. He
claims that he rented out this property because prior to 2006 he had not decided to
permanently reside in Sta. Rosa. This could explain why in early 2006 petitioner had to
rent a townhouse in Villa de Toledo his Bel-Air residence was occupied by a tenant.
The relatively short period of the lease was also adequately explained by petitioner they
rented a townhouse while they were in the process of building their own house in Sta.
Rosa. True enough, petitioner and his spouse subsequently purchased a lot also in Villa
de Toledo in April 2007, about a month before election day, where they have constructed

41
a home for their familys use as a residence. In all, petitioner had adequately shown that
his transfer of residence to Sta. Rosa was bona fide and was not merely for complying
with the residency requirement under election laws.
It was incumbent upon private respondent to prove his assertion that petitioner is
indeed disqualified from holding his congressional seat. Private respondents burden of
proof was not only to establish that petitioners domicile of origin is different from Sta.
Rosa but also that petitioners domicile for the one year prior to election day continued to
be Pagsanjan, Laguna which was petitioners domicile of origin or that petitioner had
chosen a domicile other than Sta. Rosa, Laguna for that same period. In other words, to
prove petitioners disqualification, the relevant period is the one year period prior to
election day. It would be absurd to rule that the petitioner in a quo warranto suit only
needs to prove that the candidate had some other previous domicile, regardless of how
remote in time from election day that previous domicile was established, and then the
candidate would already have the burden to prove abandonment of that previous
domicile. It is the burden of the petitioner in a quo warranto case to first prove the very
fact of disqualification before the candidate should even be called upon to defend himself
with countervailing evidence.
In our considered view, private respondent failed to discharge his burden of proof.
Petitioners COCs for previous elections and his 2005 application for a drivers license
only proved that his domicile of origin was Pagsanjan, Laguna and it remained to be so
up to 2005. Affidavits/testimonies of respondents witnesses, at most, tended to prove
that petitioner was on several instances found in his house in Cabuyao, Laguna, which
was not even his domicile of origin. Cabuyao, Laguna is in the Second District of Laguna
while petitioners domicile of origin, Pagsanjan, is in the Fourth District of Laguna.
Based on private respondents own documentary submissions, Cabuyao was never even
stated as a domicile or residence in any of the petitioners COCs. Moreover, owning an
abode in Cabuyao where petitioner is occasionally found did not prove that Cabuyao is
petitioners real domicile. Indeed, disregarding Cabuyao as petitioners domicile would
be consistent with the established principle that physical presence in a place sans the
intent to permanently reside therein is insufficient to establish domicile. Neither did
private respondents submissions refute petitioners evidence that since February 2006
petitioner has chosen Sta. Rosa as his domicile.
To summarize, private respondents own evidence did not categorically establish
where petitioners domicile is nor did said evidence conclusively prove that for the year
prior to the May 14, 2007 petitioner had a domicile other than where he actually resided,
i.e. Sta. Rosa, Laguna. To be sure, Gallego v. Vera decreed that:
We might add that the manifest intent of the law in fixing a
residence qualification is to exclude a stranger or newcomer, unacquainted
with the conditions and needs of a community and not identified with the
latter, from an elective office to serve that community; and when the
evidence on the alleged lack of residence qualification is weak or
inconclusive and it clearly appears, as in the instant case, that the
purpose of the law would not be thwarted by upholding the right to
the office, the will of the electorate should be respected. xxx xxx xxx
(Emphasis supplied)

42
Frivaldo likewise prescribed that:
xxx xxx xxx To successfully challenge a winning candidate's
qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect
to the apparent will of the people, would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that
our Constitution and laws so zealously protect and promote. xxx xxx xxx
(Emphasis supplied)
In Torayno, the Court had the occasion to say that:
The Constitution and the law requires residence as a qualification
for seeking and holding elective public office, in order to give candidates
the opportunity to be familiar with the needs, difficulties, aspirations,
potentials for growth and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office
seekers' qualifications and fitness for the job they aspire for. xxx xxx xxx
Recently, in Japzon v. COMELEC, the Court, citing Papandayan, Jr. v.
COMELEC, said:
In Papandayan, Jr. v. Commission on Elections, the Court provided a
summation of the different principles and concepts in jurisprudence relating
to the residency qualification for elective local officials. Pertinent portions of
the ratio in Papandayan are reproduced below:
Our decisions have applied certain tests and concepts in
resolving the issue of whether or not a candidate has complied with the
residency requirement for elective positions. The principle of animus
revertendi has been used to determine whether a candidate has an
"intention to return" to the place where he seeks to be elected.
Corollary to this is a determination whether there has been an
"abandonment" of his former residence which signifies an intention to
depart therefrom. In Caasi v. Court of Appeals, this Court set aside the
appealed orders of the COMELEC and the Court of Appeals and
annulled the election of the respondent as Municipal Mayor of
Bolinao, Pangasinan on the ground that respondent's immigration to
the United States in 1984 constituted an abandonment of his domicile
and residence in the Philippines. Being a green card holder, which was
proof that he was a permanent resident or immigrant of the United
States, and in the absence of any waiver of his status as such before he
ran for election on January 18, 1988, respondent was held to be
disqualified under 68 of the Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of Representatives,
respondent Jose Ong, Jr. was proclaimed the duly elected

43
representative of the 2nd District of Northern Samar. The House of
Representatives Electoral Tribunal (HRET) upheld his election against
claims that he was not a natural born Filipino citizen and a resident of
Laoang, Northern Samar. In sustaining the ruling of the HRET, this
Court, citing Faypon v. Quirino, applied the concept of animus
revertendi or "intent to return", stating that his absence from his
residence in order to pursue studies or practice his profession as a
certified public accountant in Manila or his registration as a voter other
than in the place where he was elected did not constitute loss of
residence. The fact that respondent made periodical journeys to his
home province in Laoag revealed that he always had animus
revertendi.
In Abella v. Commission on Elections and Larrazabal v.
Commission on Elections, it was explained that the determination of a
person's legal residence or domicile largely depends upon the intention
that may be inferred from his acts, activities, and utterances. In that
case, petitioner Adelina Larrazabal, who had obtained the highest
number of votes in the local elections of February 1, 1988 and who
had thus been proclaimed as the duly elected governor, was
disqualified by the COMELEC for lack of residence and registration
qualifications, not being a resident nor a registered voter of Kananga,
Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal
to change her residence one year before the election by registering at
Kananga, Leyte to qualify her to run for the position of governor of the
province of Leyte was proof that she considered herself a resident of
Ormoc City. This Court affirmed the ruling of the COMELEC and
held that petitioner Larrazabal had established her residence in Ormoc
City, not in Kananga, Leyte, from 1975 up to the time that she ran for
the position of Provincial Governor of Leyte on February 1, 1988.
There was no evidence to show that she and her husband maintained
separate residences, i.e., she at Kananga, Leyte and her husband at
Ormoc City. The fact that she occasionally visited Kananga, Leyte
through the years did not signify an intention to continue her residence
after leaving that place.
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that
"domicile" and "residence" are synonymous. The term "residence", as
used in the election law, imports not only an intention to reside in a
fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure, or
for like reasons, one intends to return. In that case, petitioner Philip G.
Romualdez established his residence during the early 1980's in
Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure
from the country of petitioner, because of the EDSA People's Power
Revolution of 1986, to go into self-exile in the United States until
favorable conditions had been established, was not voluntary so as to
constitute an abandonment of residence. The Court explained that in

44
order to acquire a new domicile by choice, there must concur (1)
residence or bodily presence in the new locality, (2) an intention to
remain there, and (3) an intention to abandon the old domicile. There
must be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be voluntary;
and the residence at the place chosen for the new domicile must be
actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact
of residence that is the decisive factor in determining whether or not an
individual has satisfied the residency qualification requirement.
We do not doubt that the residency requirement is a means to prevent a stranger or
newcomer from holding office on the assumption that such stranger or newcomer would
be insufficiently acquainted with the needs of his prospective constituents. However, it is
appropriate to point out at this juncture that aside from petitioners actual, physical
presence in Sta. Rosa for more than a year prior to election day, he has demonstrated that
he has substantial ties to Sta. Rosa and the First District of Laguna for an even longer
period than that. Petitioner has business interests in Sta. Rosa comprised of restaurants
and a residential property for lease. Petitioner has two children studying in Sta. Rosa
schools even before 2006. These circumstances provided petitioner with material reasons
to frequently visit the area and eventually take up residence in the said district.
Significantly, petitioner previously served as Board Member and Vice-Governor for the
Province of Laguna, of which the First District and Sta. Rosa are a part. It stands to
reason that in his previous elected positions petitioner has acquired knowledge of the
needs and aspirations of the residents of the First District who were among his
constituents.
Simply put, petitioner could not be considered a stranger to the community
which he sought to represent and that evil that the residency requirement was designed to
prevent is not present in this case.
We take this occasion to reiterate our ruling in Sinaca v. Mula, to wit:
[When] a candidate has received popular mandate, overwhelmingly
and clearly expressed, all possible doubts should be resolved in favor of the
candidate's eligibility for to rule otherwise is to defeat the will of the
people. Above and beyond all, the determination of the true will of the
electorate should be paramount. It is their voice, not ours or of anyone else,
that must prevail. This, in essence, is the democracy we continue to hold
sacred.
WHEREFORE, premises considered, the petition is hereby GRANTED.

Jurisdiction
of
the
House
of
Representatives Electoral Tribunal to
determine the qualifications of nominees
of the party lists

45

DARYL GRACE ABAYON VS. HOUSE OF

REPRESENTATIVES ELECTORAL TRIBUNAL, ET
AL., AND JOVITO PALPARAN VS. HRET, ET AL.,

G.R. NO. 189466, FEBRUARY 11, 2010

These two cases are about the authority of the House of Representatives Electoral
Tribunal (HRET) to pass upon the eligibilities of the nominees of the party-list groups
that won seats in the lower house of Congress.
The Facts and the Case
In G.R. 189466, petitioner Daryl Grace J. Abayon is the first nominee of the
Aangat Tayo party-list organization that won a seat in the House of Representatives
during the 2007 elections.
Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz, and Agustin C.
Doroga, all registered voters, filed a petition for quo warranto with respondent HRET
against Aangat Tayo and its nominee, petitioner Abayon, in HRET Case 07-041. They
claimed that Aangat Tayo was not eligible for a party-list seat in the House of
Representatives, since it did not represent the marginalized and underrepresented sectors.
Respondent Lucaban and the others with him further pointed out that petitioner
Abayon herself was not qualified to sit in the House as a party-list nominee since she did
not belong to the marginalized and underrepresented sectors, she being the wife of an
incumbent congressional district representative. She moreover lost her bid as party-list
representative of the party-list organization called An Waray in the immediately
preceding elections of May 10, 2004.
Petitioner Abayon countered that the Commission on Elections (COMELEC) had
already confirmed the status of Aangat Tayo as a national multi-sectoral party-list
organization representing the workers, women, youth, urban poor, and elderly and that
she belonged to the women sector. Abayon also claimed that although she was the
second nominee of An Waray party-list organization during the 2004 elections, she could
not be regarded as having lost a bid for an elective office.
Finally, petitioner Abayon pointed out that respondent HRET had no jurisdiction
over the petition for quo warranto since respondent Lucaban and the others with him
collaterally attacked the registration of Aangat Tayo as a party-list organization, a matter
that fell within the jurisdiction of the COMELEC. It was Aangat Tayo that was taking a
seat in the House of Representatives, and not Abayon who was just its nominee. All
questions involving her eligibility as first nominee, said Abayon, were internal concerns
of Aangat Tayo.
On July 16, 2009 respondent HRET issued an order, dismissing the petition as
against Aangat Tayo but upholding its jurisdiction over the qualifications of petitioner
Abayon. The latter moved for reconsideration but the HRET denied the same on

46
September 17, 2009, prompting Abayon to file the present petition for special civil action
of certiorari.
In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first nominee of the
Bantay party-list group that won a seat in the 2007 elections for the members of the
House of Representatives. Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato
M. Reyes, Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez are members of
some other party-list groups.
Shortly after the elections, respondent Lesaca and the others with him filed with
respondent HRET a petition for quo warranto against Bantay and its nominee, petitioner
Palparan, in HRET Case 07-040. Lesaca and the others alleged that Palparan was
ineligible to sit in the House of Representatives as party-list nominee because he did not
belong to the marginalized and underrepresented sectors that Bantay represented, namely,
the victims of communist rebels, Civilian Armed Forces Geographical Units (CAFGUs),
former rebels, and security guards. Lesaca and the others said that Palparan committed
gross human rights violations against marginalized and underrepresented sectors and
organizations.
Petitioner Palparan countered that the HRET had no jurisdiction over his person
since it was actually the party-list Bantay, not he, that was elected to and assumed
membership in the House of Representatives. Palparan claimed that he was just Bantays
nominee. Consequently, any question involving his eligibility as first nominee was an
internal concern of Bantay. Such question must be brought, he said, before that party-list
group, not before the HRET.
On July 23, 2009 respondent HRET issued an order dismissing the petition
against Bantay for the reason that the issue of the ineligibility or qualification of the
party-list group fell within the jurisdiction of the COMELEC pursuant to the Party-List
System Act. HRET, however, defended its jurisdiction over the question of petitioner
Palparans qualifications. Palparan moved for reconsideration but the HRET denied it by
a resolution dated September 10, 2009, hence, the recourse to this Court through this
petition for special civil action of certiorari and prohibition.
The Issue Presented
The common issue presented in these two cases is:
Whether or not respondent HRET has jurisdiction over the question of
qualifications of petitioners Abayon and Palparan as nominees of Aangat Tayo and
Bantay party-list organizations, respectively, who took the seats at the House of
Representatives that such organizations won in the 2007 elections.
The Courts Ruling
Petitioners Abayon and Palparan have a common theory: Republic Act (R.A.)
7941, the Party-List System Act, vests in the COMELEC the authority to determine
which parties or organizations have the qualifications to seek party-list seats in the House
of Representatives during the elections. Indeed, the HRET dismissed the petitions for

47
quo warranto filed with it insofar as they sought the disqualifications of Aangat Tayo and
Bantay. Since petitioners Abayon and Palparan were not elected into office but were
chosen by their respective organizations under their internal rules, the HRET has no
jurisdiction to inquire into and adjudicate their qualifications as nominees.
But, although it is the party-list organization that is voted for in the elections, it is
not the organization that sits as and becomes a member of the House of Representatives.
Section 5, Article VI of the Constitution, identifies who the members of that House are:
Sec. 5. (1). The House of Representatives shall be composed of
not more than two hundred and fifty members, unless otherwise fixed
by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.
(Underscoring supplied)
Clearly, the members of the House of Representatives are of two kinds: members
x x x who shall be elected from legislative districts and those who x x x shall be
elected through a party-list system of registered national, regional, and sectoral
parties or organizations. This means that, from the Constitutions point of view, it is
the party-list representatives who are elected into office, not their parties or
organizations. These representatives are elected, however, through that peculiar party-list
system that the Constitution authorized and that Congress by law established where the
voters cast their votes for the organizations or parties to which such party-list
representatives belong.
Once elected, both the district representatives and the party-list representatives are
treated in like manner. They have the same deliberative rights, salaries, and
emoluments. They can participate in the making of laws that will directly benefit their
legislative districts or sectors. They are also subject to the same term limitation of three
years for a maximum of three consecutive terms.
It may not be amiss to point out that the Party-List System Act itself recognizes
party-list nominees as members of the House of Representatives, thus:
Sec. 2. Declaration of Policy. - The State shall promote
proportional representation in the election of representatives to the
House of Representatives through a party-list system of registered
national, regional and sectoral parties or organizations or coalitions
thereof, which will enable Filipino citizens belonging to the
marginalized and underrepresented sectors, organizations and
parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members
of the House of Representatives. Towards this end, the State shall
develop and guarantee a full, free and open party system in order to

48
attain the broadest possible representation of party, sectoral or group
interests in the House of Representatives by enhancing their chances
to compete for and win seats in the legislature, and shall provide the
simplest scheme possible. (Underscoring supplied)
As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on
Elections, a party-list representative is in every sense an elected member of the House of
Representatives. Although the vote cast in a party-list election is a vote for a party, such
vote, in the end, would be a vote for its nominees, who, in appropriate cases, would
eventually sit in the House of Representatives.
Both the Constitution and the Party-List System Act set the qualifications and
grounds for disqualification of party-list nominees. Section 9 of R.A. 7941, echoing the
Constitution, states:
Sec. 9. Qualification of Party-List Nominees. No person shall
be nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1) year immediately
preceding the day of the election, able to read and write, bona fide
member of the party or organization which he seeks to represent for
at least ninety (90) days preceding the day of the election, and is at
least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be
twenty-five (25) but not more than thirty (30) years of age on the day
of the election. Any youth sectoral representative who attains the age
of thirty (30) during his term shall be allowed to continue until the
expiration of his term.
In the cases before the Court, those who challenged the qualifications of
petitioners Abayon and Palparan claim that the two do not belong to the marginalized and
underrepresented sectors that they ought to represent. The Party-List System Act
provides that a nominee must be a bona fide member of the party or organization which
he seeks to represent.
It is for the HRET to interpret the meaning of this particular qualification of a
nomineethe need for him or her to be a bona fide member or a representative of his
party-list organizationin the context of the facts that characterize petitioners Abayon
and Palparans relation to Aangat Tayo and Bantay, respectively, and the marginalized
and underrepresented interests that they presumably embody.
Petitioners Abayon and Palparan of course point out that the authority to
determine the qualifications of a party-list nominee belongs to the party or organization
that nominated him. This is true, initially. The right to examine the fitness of aspiring
nominees and, eventually, to choose five from among them after all belongs to the party
or organization that nominates them. But where an allegation is made that the party or
organization had chosen and allowed a disqualified nominee to become its party-list

49
representative in the lower House and enjoy the secured tenure that goes with the
position, the resolution of the dispute is taken out of its hand.
What is inevitable is that Section 17, Article VI of the Constitution provides that
the HRET shall be the sole judge of all contests relating to, among other things, the
qualifications of the members of the House of Representatives. Since, as pointed out
above, party-list nominees are elected members of the House of Representatives
no less than the district representatives are, the HRET has jurisdiction to hear and
pass upon their qualifications. By analogy with the cases of district representatives,
once the party or organization of the party-list nominee has been proclaimed and the
nominee has taken his oath and assumed office as member of the House of
Representatives, the COMELECs jurisdiction over election contests relating to his
qualifications ends and the HRETs own jurisdiction begins.
The Court holds that respondent HRET did not gravely abuse its discretion when
it dismissed the petitions for quo warranto against Aangat Tayo party-list and Bantay
party-list but upheld its jurisdiction over the question of the qualifications of petitioners
Abayon and Palparan.
Whether the COMELEC was correct in
denying Ang Ladlad as a party-list group
on moral grounds; freedom of expression
and right to religion.
ANG LADLAD LGBT PARTY VS. COMELEC, G.R. No.
190582, April 7, 2010
DEL CASTILLO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application
for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad)
against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009
(the First Assailed Resolution) and December 16, 2009 (the Second Assailed Resolution) in SPP
No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the
COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act
(RA) No. 7941, otherwise known as the Party-List System Act.
Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no substantial membership base.
On August 17, 2009, Ang Ladlad again filed a Petition for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized
and under-represented sector that is particularly disadvantaged because of their sexual orientation
and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that
because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and
that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong

50
Bayani-OFW Labor Party v. Commission on Elections. Ang Ladlad laid out its national
membership base consisting of individual members and organizational supporters, and outlined
its platform of governance.
On November 11, 2009, after admitting the petitioners evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner
defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT)
Community, thus:

x x x a marginalized and under-represented sector that

is particularly disadvantaged because of their sexual orientation
and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional,
affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same
gender, or more than one gender.
This definition of the LGBT sector makes it crystal clear that
petitioner tolerates immorality which offends religious beliefs.
The ANG LADLAD apparently advocates sexual
immorality as indicated in the Petitions par. 6F: Consensual
partnerships or relationships by gays and lesbians who are
already of age. It is further indicated in par. 24 of the Petition
which waves for the record: In 2007, Men Having Sex with
Men or MSMs in the Philippines were estimated as 670,000
(Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract,
permit, license, relationship, or accreditation. Hence, pertinent
provisions of the Civil Code and the Revised Penal Code are
deemed part of the requirement to be complied with for
accreditation.
ANG LADLAD collides with Article 695 of the Civil
Code which defines nuisance as Any act, omission,
establishment, business, condition of property, or anything else
which x x x (3) shocks, defies; or disregards decency or morality
xxx
It also collides with Article 1306 of the Civil Code:
The contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order
or public policy. Art 1409 of the Civil Code provides that
Contracts whose cause, object or purpose is contrary to law,

51
morals, good customs, public order or public policy are
inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the
Revised Penal Code, as amended, penalizes Immoral doctrines, obscene
publications and exhibitions and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications
and exhibitions, and indecent shows. The penalty of prision
mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed
upon:
1. Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;
When Ang Ladlad sought reconsideration to the COMELEC EN BANC, three
commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y.
Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to
deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito
N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for
the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:
Ladlad is applying for accreditation as a sectoral party in the party-list
system. Even assuming that it has properly proven its under-representation and
marginalization, it cannot be said that Ladlads expressed sexual orientations per
se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of
the party-list system of electing congressional representatives is to enable
Filipino citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political constituencies but
who could contribute to the formulation and enactment of appropriate legislation
that will benefit the nation as a whole, to become members of the House of
Representatives.
If entry into the party-list system would depend only on the ability of
an organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But that is
not the intention of the framers of the law. The party-list system is not a tool to
advocate tolerance and acceptance of misunderstood persons or groups of
persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the nations
only that their interests have not been brought to the attention of the nation
because of their under representation. Until the time comes when Ladlad is
able to justify that having mixed sexual orientations and transgender
identities is beneficial to the nation, its application for accreditation under
the party-list system will remain just that.

52

Thus, even if societys understanding, tolerance, and acceptance of

LGBTs is elevated, there can be no denying that Ladlad constituencies are still
males and females, and they will remain either male or female protected by
the same Bill of Rights that applies to all citizens alike.
The COMELEC likewise used the Holy Bible and the Koran in denying Ladlads
application.
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the
Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory
injunction against the COMELEC, which had previously announced that it would begin printing
the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, the Office of the Solicitor General (OSG was ordered to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010. Instead of
filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given
until January 16, 2010 to Comment. Somewhat surprisingly, the OSG later filed a Comment in
support of petitioners application. Thus, in order to give COMELEC the opportunity to fully
ventilate its position, we required it to file its own comment. The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.
In the meantime, due to the urgency of the petition, a temporary restraining order was
issued on January 12, 2010, effective immediately and continuing until further orders from this
Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions.
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to
Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention. The
CHR opined that the denial of Ang Ladlads petition on moral grounds violated the standards and
principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted
the CHRs motion to intervene.
HELD:
We grant the petition.
Compliance with the Requirements of the
Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground that the
LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or
related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said sectors
(labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals) may be

53
registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections, the enumeration of marginalized and underrepresented sectors is not exclusive. The crucial element is not whether a sector is

specifically enumerated, but whether a particular organization complies with the

requirements of the Constitution and RA 7941.

A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in
each province of the Philippines. Rather, petitioner alleged that the LGBT community in the
Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and
members around the country, and 4,044 members in its electronic discussion group. Ang Ladlad
also represented itself to be a national LGBT umbrella organization with affiliates around the
Philippines composed of the following LGBT networks:

Abra Gay Association

Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG)
Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro
Manila

54

Soul Jive Antipolo, Rizal

The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from COMELECs moral
objection and the belated allegation of non-existence, nowhere in the records has the respondent
ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any
of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference,
COMELEC claims, lies in Ang Ladlads morality, or lack thereof.
Our Constitution provides in Article III, Section 5 that [n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. At bottom,
what our non-establishment clause calls for is government neutrality in religious matters.
Clearly, governmental reliance on religious justification is inconsistent with this policy of
neutrality. We thus find that it was grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its rulings
beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular
purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor:
x x x The morality referred to in the law is public and necessarily
secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious
teachings as expressed in public debate may influence the civil public order but
public moral disputes may be resolved only on grounds articulable in secular
terms." Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would require
conformity to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious
beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are disapproved are
second-class citizens.
We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to
imagine the reasons behind this censure religious beliefs, convictions about the preservation of
marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their
perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize

55
homosexual conduct. Evidently, therefore, these generally accepted public morals have not
been convincingly transplanted into the realm of law.
The Assailed Resolutions have not identified any specific overt immoral act performed
by Ang Ladlad. Even the OSG agrees that there should have been a finding by the COMELEC
that the groups members have committed or are committing immoral acts. The OSG argues:
x x x A person may be sexually attracted to a person of the same
gender, of a different gender, or more than one gender, but mere attraction does
not translate to immoral acts. There is a great divide between thought and action.
Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC
would have its hands full of disqualification cases against both the straights
and the gays. Certainly this is not the intendment of the law.
Respondent has failed to explain what societal ills are sought to be prevented, or why
special protection is required for the youth. Neither has the COMELEC condescended to justify
its position that petitioners admission into the party-list system would be so harmful as to
irreparably damage the moral fabric of society. We, of course, do not suggest that the state is
wholly without authority to regulate matters concerning morality, sexuality, and sexual relations,
and we recognize that the government will and should continue to restrict behavior considered
detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with
the loftiest of intentions, situate morality on one end of an argument or another, without bothering
to go through the rigors of legal reasoning and explanation. In this, the notion of morality is
robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from
our scrutiny.
We also find the COMELECs reference to purported violations of our penal and civil
laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as
any act, omission, establishment, condition of property, or anything else which shocks, defies, or
disregards decency or morality, the remedies for which are a prosecution under the Revised
Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. A
violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond
reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere
allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings and a judicial determination of liability or
culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system. The
denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of
dislike and disapproval of homosexuals, rather than a tool to further any substantial public
interest. Respondents blanket justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor
shall any person be denied equal protection of the laws, courts have never interpreted the

56
provision as an absolute prohibition on classification. Equality, said Aristotle, consists in the
same treatment of similar persons. The equal protection clause guarantees that no person or
class of persons shall be deprived of the same protection of laws which is enjoyed by other
persons or other classes in the same place and in like circumstances.
Recent jurisprudence has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the classification as long as it bears a
rational relationship to some legitimate government end. In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas, we declared that [i]n our jurisdiction, the
standard of analysis of equal protection challenges x x x have followed the rational
basis test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach
of the Constitution.
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to
disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed
no such belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here that is, moral disapproval of an
unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis
review under the equal protection clause. The COMELECs differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that
would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike
for a disfavored group.
It bears stressing that our finding that COMELECs act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under different circumstances would
similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves
for the purposes of the equal protection clause. We are not prepared to single out homosexuals as
a separate class meriting special or differentiated treatment. We have not received sufficient
evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself
has merely demanded that it be recognized under the same basis as all other groups similarly
situated, and that the COMELEC made an unwarranted and impermissible classification not
justified by the circumstances of the case.
Freedom of Expression and Association
Freedom of expression constitutes one of the essential foundations of a democratic
society, and this freedom applies not only to those that are favorably received but also to those
that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the
legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this
Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free
to interfere with speech for no better reason than promoting an approved message or discouraging
a disfavored one.
This position gains even more force if one considers that homosexual conduct is not
illegal in this country. It follows that both expressions concerning ones homosexuality and the
activity of forming a political association that supports LGBT individuals are protected as well.

57
Other jurisdictions have gone so far as to categorically rule that even overwhelming
public perception that homosexual conduct violates public morality does not justify criminalizing
same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay
rights claimants on both privacy and equality grounds, citing general privacy and equal protection
provisions in foreign and international texts. To the extent that there is much to learn from other
jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts have ruled
that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In
order to justify the prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany an unpopular viewpoint.
With respect to freedom of association for the advancement of ideas and beliefs, in
Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR)
has repeatedly stated that a political party may campaign for a change in the law or the
constitutional structures of a state if it uses legal and democratic means and the changes it
proposes are consistent with democratic principles. The ECHR has emphasized that political
ideas that challenge the existing order and whose realization is advocated by peaceful means
must be afforded a proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the authorities or the
majority of the population. A political group should not be hindered solely because it seeks to
publicly debate controversial political issues in order to find solutions capable of satisfying
everyone concerned. Only if a political party incites violence or puts forward policies that are
incompatible with democracy does it fall outside the protection of the freedom of association
guarantee.
We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the
other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this Court
is concerned, our democracy precludes using the religious or moral views of one part of the
community to exclude from consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy between
the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos.
We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus
favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions
of homosexuality through this Decision.
WHEREFORE, the Petition is hereby GRANTED.
Creation of a new legislative district in
Camarines Sur with a population of less than
250,000; whether it violates Section 5 [4], Art.
VI; Dissenting opinion of Justice Carpio

58

SEN. BENIGNO AQUINO III & MAYOR

JESSE ROBREDO VS. COMELEC, G.R. No.
189793, April 7, 2010
PEREZ, J.:
In this original action, petitioners Senator Benigno Simeon C. Aquino III and
Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the nullification as
unconstitutional of Republic Act No. 9716, entitled An Act Reapportioning the
Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of
Camarines Sur and Thereby Creating a New Legislative District From Such
Reapportionment. Petitioners consequently pray that the respondent Commission on
Elections be restrained from making any issuances and from taking any steps relative to
the implementation of Republic Act No. 9716.
Republic Act No. 9716 originated from House Bill No. 4264, and was signed into
law by President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31
October 2009, or fifteen (15) days following its publication in the Manila Standard, a
newspaper of general circulation. In substance, the said law created an additional
legislative district for the Province of Camarines Sur by reconfiguring the existing first
and second legislative districts of the province.
Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to
have a population of 1,693,821, distributed among four (4) legislative districts in this
wise:
District

1st District

2nd District

Municipalities/Cities
Del Gallego

Libmanan

Ragay

Minalabac

Lupi

Pamplona

Sipocot

Pasacao

Cabusao

San Fernando

Gainza

Canaman

Milaor

Camaligan

Population

417,304

474,899

59

3rd District

4th District

Naga

Magarao

Pili

Bombon

Ocampo

Calabanga

Caramoan

Sangay

Garchitorena

San Jose

Goa

Tigaon

Lagonoy

Tinamba

Presentacion

Siruma

Iriga

Buhi

Baao

Bula

Balatan

Nabua

372,548

429,070

Bato

Following the enactment of Republic Act No. 9716, the first and second districts
of Camarines Sur were reconfigured in order to create an additional legislative district for
the province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona,
Pasacao, and San Fernando were combined with the second district municipalities of
Milaor and Gainza to form a new second legislative district. The following table
illustrates the reapportionment made by Republic Act No. 9716:
District

Municipalities/Cities
Del Gallego

Population

60

Ragay
1st District

Lupi

176,383

Sipocot
Cabusao

2nd District

Libmanan

San Fernando

Minalabac

Gainza

Pamplona

Milaor

276,777

Pasacao

3rd District
(formerly 2nd
District)

4th District
(formerly 3rd
District)

Naga

Camaligan

Pili

Magarao

Ocampo

Bombon

Canaman

Calabanga

Caramoan

Sangay

Garchitorena

San Jose

Goa

Tigaon

Lagonoy

Tinamba

Presentacion

Siruma

439,043

372,548

61

5th District
(formerly 4th
District)

Iriga

Buhi

Baao

Bula

Balatan

Nabua

429,070

Bato

Petitioner Aquino III was one of two senators who voted against the approval of
the Bill by the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was
a part of the former second district from which the municipalities of Gainza and Milaor
were taken for inclusion in the new second district. No other local executive joined the
two; neither did the representatives of the former third and fourth districts of the
province.
Petitioners contend that the reapportionment introduced by Republic Act No. 9716,
runs afoul of the explicit constitutional standard that requires a minimum population of
two hundred fifty thousand (250,000) for the creation of a legislative district. The
petitioners claim that the reconfiguration by Republic Act No. 9716 of the first and
second districts of Camarines Sur is unconstitutional, because the proposed first district
will end up with a population of less than 250,000 or only 176,383.
Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the
cited 250,000 minimum population standard. The provision reads:
Article VI
Section 5. (1) x x x x
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each
province, shall have at least one representative.
The petitioners posit that the 250,000 figure appearing in the above-cited provision
is the minimum population requirement for the creation of a legislative district. The
petitioners theorize that, save in the case of a newly created province, each legislative
district created by Congress must be supported by a minimum population of at least
250,000 in order to be valid. Under this view, existing legislative districts may be
reapportioned and severed to form new districts, provided each resulting district will
represent a population of at least 250,000. On the other hand, if the reapportionment
would result in the creation of a legislative seat representing a populace of less than

62
250,000 inhabitants, the reapportionment must be stricken down as invalid for noncompliance with the minimum population requirement.
In support of their theory, the petitioners point to what they claim is the intent of
the framers of the 1987 Constitution to adopt a population minimum of 250,000 in the
creation of additional legislative seats. The petitioners argue that when the
Constitutional Commission fixed the original number of district seats in the House of
Representatives to two hundred (200), they took into account the projected national
population of fifty five million (55,000,000) for the year 1986. According to the
petitioners, 55 million people represented by 200 district representatives translates to
roughly 250,000 people for every one (1) representative. Thus, the 250,000 population
requirement found in Section 5(3), Article VI of the 1987 Constitution is actually based
on the population constant used by the Constitutional Commission in distributing the
initial 200 legislative seats.
By way of summary, the petitioners claim that:
1.

Republic Act 9716 is unconstitutional because the newly

apportioned first district of Camarines Sur failed to meet the
population requirement for the creation of the legislative district as
explicitly provided in Article VI, Section 5, Paragraphs (1) and (3) of
the Constitution and Section 3 of the Ordinance appended thereto; and

2. Republic Act 9716 violates the principle of proportional representation

as provided in Article VI, Section 5 paragraphs (1), (3) and (4) of the
Constitution.
The provision subject of this case states:
Article VI
Section 5. (1) The House of Representatives shall be composed of
not more than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned among the
provinces, cities and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional and
sectoral parties or organizations.
(2) x x x x
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a population
of at least two hundred fifty thousand, or each province, shall have at least
one representative.

63
(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based on the
standards provided in this section.
On the other hand, the respondents, through the Office of the Solicitor
General, call attention to an apparent distinction between cities and provinces drawn by
Section 5(3), Article VI of the 1987 Constitution. The respondents concede the existence
of a 250,000 population condition, but argue that a plain and simple reading of the
questioned provision will show that the same has no application with respect to the
creation of legislative districts in provinces. Rather, the 250,000 minimum population is
only a requirement for the creation of a legislative district in a city.
HELD:
On the procedural aspect, the respondents assert that by choosing to avail
themselves of the remedies of Certiorari and Prohibition, the petitioners have committed
a fatal procedural lapse. No evidence that they will be injured by the implementation of
the law.
The Supreme Court has, on more than one occasion, tempered the application of
procedural rules, as well as relaxed the requirement of locus standi whenever confronted
with an important issue of overreaching significance to society.
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation
(PAGCOR) and Jaworski v. PAGCOR, this Court sanctioned momentary deviation from
the principle of the hierarchy of courts, and took original cognizance of cases raising
issues of paramount public importance. The Jaworski case ratiocinates:
Granting arguendo that the present action cannot be properly
treated as a petition for prohibition, the transcendental importance of
the issues involved in this case warrants that we set aside the technical
defects and take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially pervasive
influence on the social and moral well being of this nation, specially the
youth; hence, their proper and just determination is an imperative need.
This is in accordance with the well-entrenched principle that rules of
procedure are not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their strict and
rigid application, which would result in technicalities that tend to
frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)
Anent the locus standi requirement, this Court has already uniformly ruled in
Kilosbayan v. Guingona, Tatad v. Executive Secretary, Chavez v. Public Estates
Authority and Bagong Alyansang Makabayan v. Zamora, just to name a few, that
absence of direct injury on the part of the party seeking judicial review may be excused
when the latter is able to craft an issue of transcendental importance. In Lim v.
Executive Secretary, this Court held that in cases of transcendental importance, the cases
must be settled promptly and definitely, and so, the standing requirements may be

64
relaxed. This liberal stance has been echoed in the more recent decision on Chavez v.
Gonzales.
We go directly to the determination of whether or not a population of 250,000 is
an indispensable constitutional requirement for the creation of a new legislative district in
a province.
There is no specific provision in the Constitution that fixes a 250,000 minimum
population that must compose a legislative district.
As already mentioned, the petitioners rely on the second sentence of Section 5(3),
Article VI of the 1987 Constitution, coupled with what they perceive to be the intent of
the framers of the Constitution to adopt a minimum population of 250,000 for each
legislative district.
The second sentence of Section 5(3), Article VI of the Constitution, succinctly
provides: Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative.
The provision draws a plain and clear distinction between the entitlement of a city
to a district on one hand, and the entitlement of a province to a district on the other. For
while a province is entitled to at least a representative, with nothing mentioned about
population, a city must first meet a population minimum of 250,000 in order to be
similarly entitled.
The use by the subject provision of a comma to separate the phrase each city
with a population of at least two hundred fifty thousand from the phrase or each
province point to no other conclusion than that the 250,000 minimum population is only
required for a city, but not for a province.
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum
population only for a city to be entitled to a representative, but not so for a
province.
The 250,000 minimum population requirement for legislative districts in cities
was, in turn, the subject of interpretation by this Court in Mariano, Jr. v. COMELEC.
In Mariano, the issue presented was the constitutionality of Republic Act No.
7854, which was the law that converted the Municipality of Makati into a Highly
Urbanized City. As it happened, Republic Act No. 7854 created an additional legislative
district for Makati, which at that time was a lone district. The petitioners in that case
argued that the creation of an additional district would violate Section 5(3), Article VI of
the Constitution, because the resulting districts would be supported by a population of
less than 250,000, considering that Makati had a total population of only 450,000. The
Supreme Court sustained the constitutionality of the law and the validity of the newly
created district, explaining the operation of the Constitutional phrase each city with a
population of at least two hundred fifty thousand, to wit:

65
Petitioners cannot insist that the addition of another legislative
district in Makati is not in accord with section 5(3), Article VI of the
Constitution for as of the latest survey (1990 census), the population of
Makati stands at only four hundred fifty thousand (450,000). Said section
provides, inter alia, that a city with a population of at least two hundred
fifty thousand (250,000) shall have at least one representative. Even
granting that the population of Makati as of the 1990 census stood at
four hundred fifty thousand (450,000), its legislative district may still
be increased since it has met the minimum population requirement of
two hundred fifty thousand (250,000). In fact, Section 3 of the
Ordinance appended to the Constitution provides that a city whose
population has increased to more than two hundred fifty thousand
(250,000) shall be entitled to at least one congressional representative.
(Emphasis supplied)

The Mariano case limited the application of the 250,000 minimum population
requirement for cities only to its initial legislative district. In other words, while Section
5(3), Article VI of the Constitution requires a city to have a minimum population of
250,000 to be entitled to a representative, it does not have to increase its population by
another 250,000 to be entitled to an additional district.
There is no reason why the Mariano case, which involves the creation of an
additional district within a city, should not be applied to additional districts in
provinces. Indeed, if an additional legislative district created within a city is not required
to represent a population of at least 250,000 in order to be valid, neither should such be
needed for an additional district in a province, considering moreover that a province is
entitled to an initial seat by the mere fact of its creation and regardless of its population.
Consistent with Mariano and with the framer deliberations on district
apportionment, we stated in Bagabuyo v. COMELEC that
x x x Undeniably, these figures show a disparity in the population sizes of
the districts. The Constitution, however, does not require
mathematical exactitude or rigid equality as a standard in gauging
equality of representation. x x x. To ensure quality representation
through commonality of interests and ease of access by the representative
to the constituents, all that the Constitution requires is that every
legislative district should comprise, as far as practicable, contiguous,
compact and adjacent territory. (Emphasis supplied).
WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716
entitled An Act Reapportioning the Composition of the First (1 st) and Second (2nd)
Legislative Districts in the Province of Camarines Sur and Thereby Creating a New
Legislative District From Such Reapportionment is a VALID LAW.

66
DISSENTING OPINION
CARPIO, J.:
The majority opinion wreaks havoc on the bedrock principle of our democratic
and republican State that all votes are equal. Instead, the majority opinion introduces
the Orwellian concept that some votes are more equal than others. The majority opinion
allows, for the first time under the 1987 Constitution, voters in a legislative district
created by Congress to send one representative to Congress even if the district has a
population of only 176,383. In sharp contrast, all other legislative districts created by
Congress send one representative each because they all meet the minimum population
requirement of 250,000.
The assailed Republic Act No. 9716 (RA 9716) is unconstitutional for being utterly
repugnant to the clear and precise standards prescribed in Section 5, Article VI of the
1987 Constitution for the creation of legislative districts. Section 5(4) of Article VI
mandates that Congress shall make a reapportionment of legislative districts based
on the standards fixed in Section 5. These constitutional standards, as far as population
is concerned, are: (1) proportional representation; (2) minimum population of
250,000 per legislative district; (3) progressive ratio in the increase of legislative
districts as the population base increases; and (4) uniformity in apportionment of
legislative districts in provinces, cities, and the Metropolitan Manila area. The
assailed RA 9716 grossly violates these constitutional standards.
There was never any debate in the design of our government that the members of
the House of Representatives, just like the members of the Senate, represent people
not provinces, cities, or any other political unit. The only difference is that the
members of the Senate represent the people at large while the members of the House
represent the people in legislative districts. Thus, population or the number of
inhabitants in a district is the essential measure of representation in the House of
Representatives. Section 5(1), Article VI of the 1987 Constitution, just like in the
previous Constitutions, could not be any clearer:
The House of Representatives shall be composed of x x x
members, x x x, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio x x x. (Emphasis supplied)
Section 5(1), Article VI of the 1987 Constitution is even more precise by
providing that the Members of the House shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio x x x. The phrase as nearly as may be according to the number of
their respective inhabitants in the 1935 Constitution has been changed in the 1987
Constitution to the more precise in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio x x x. The addition
of the phrase on the basis of a uniform and progressive ratio was meant to stress that

67
the rule on proportional representation shall apply uniformly in the apportionment of
every legislative district.
The phrase in accordance with the number of their respective inhabitants,
which precedes the phrase provinces, cities and the Metropolitan Manila area, means
that legislative districts in provinces, cities and the Metropolitan Manila area shall be
apportioned according to proportional representation or equal representation for
equal numbers of people. Thus, there shall be one legislative district for every given
number of people, whether inhabiting in provinces, cities or the Metropolitan Manila
area.
The phrase on the basis of a uniform x x x ratio means that the ratio of one
legislative district for every given number of people shall be applied uniformly in all
apportionments, whether in provinces, cities or the Metropolitan Manila area. Section
5(3) of Article VI mandates that [e]ach city with a population of at least two hundred
fifty thousand x x x shall have at least one representative. Consequently, a
population of 250,000 serves as the default minimum population applicable to every
legislative district following the rule on uniformity in the apportionment of legislative
districts, whether in provinces, cities or in the Metropolitan Manila area.
The phrase progressive ratio means that the number of legislative districts
shall increase as the number of the population increases, whether in provinces, cities or
the Metropolitan Manila area. Thus, a province shall have one legislative district if it has
a population of 250,000, and two legislative districts if it has 500,000. This insures that
proportional representation is maintained if there are increases in the population of a
province, city, or the Metropolitan Manila area. This is what is meant by a progressive
ratio in the apportionment of legislative districts, a ratio that must also be uniformly
applied.
The Constitution itself provides the standards against which reapportionment
laws like RA 9716 will be tested, following its command that Congress shall make a
reapportionment of legislative districts based on the standards provided in this section,
referring to Section 5, Article VI. These standards relate to first, population, and
second, territory. Section 5 admits of no other standards.
On population, the standards of the 1987 Constitution have four elements. First is
the rule on proportional representation, which is the universal standard in direct
representation in legislatures. Second is the rule on a minimum population of 250,000 per
legislative district, which was not present in our previous Constitutions. Third is the rule
on progressive ratio, which means that the number of legislative districts shall increase as
the number of the population increases in accordance with the rule on proportional
representation. Fourth is the rule on uniformity, which requires that the first three
rules shall apply uniformly in all apportionments in provinces, cities and the
Metropolitan Manila area.
The Constitution and the Ordinance appended to the 1987 Constitution fixes the
minimum population of a legislative district at 250,000. Although textually relating to
cities, this minimum population requirement applies equally to legislative districts
apportioned in provinces and the Metropolitan Manila area because of the constitutional

68
command that legislative districts [shall be] apportioned among the provinces, cities,
and the Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio. To reiterate, the
Constitution commands that this rule on uniformity shall apply to legislative
districts in provinces, cities, and the Metropolitan Manila area. Otherwise, districts
apportioned in provinces, if freed from the minimum population requirement, will have
constituencies two, four, ten times lower than in districts apportioned in cities, violating
the constitutional command that apportionment shall be based on a uniform ratio in
provinces, cities, and the Metropolitan Manila area.
In short, the constitutional standards in the apportionment of legislative
districts under Section 5 of Article VI, as far as population is concerned, are: (1)
proportional representation; (2) a minimum population of at least two hundred fifty
thousand per legislative district; (3) progressive ratio in the increase of legislative
districts as the population base increases; and (4) uniformity in the apportionment
of legislative districts in provinces, cities, and the Metropolitan Manila area.
RA 9716 grossly malapportions Camarines Surs proposed five legislative districts
by flouting the standards of proportional representation among legislative districts and
the minimum population per legislative district.
Based on the 2007 census, the proposed First District under RA 9716 will
have a population of only 176,383, which is 29% below the constitutional minimum
population of 250,000 per legislative district. In contrast, the remaining four proposed
districts have populations way above the minimum with the highest at 439,043 (proposed
Third District), lowest at 276,777 (proposed Second District) and an average of 379,359.
Indeed, the disparity is so high that three of the proposed districts (Third, Fourth, and
Fifth Districts) have populations more than double that of the proposed First District.
This results in wide variances among the districts populations. Still using the 2007
census, the ideal per district population for Camarines Sur is 338,764. The populations
of the proposed districts swing from this ideal by a high of positive 29.6% (Third
District) to a low of negative 47.9% (First District). This means that the
smallest proposed district (First District) is underpopulated by nearly 50% of the
ideal and the biggest proposed district (Third District) is overpopulated by nearly
30% of the ideal.
The resulting vote undervaluation (for voters in the disfavored districts) and vote
overvaluation (for voters in the First District) fails even the most liberal application of the
constitutional standards. Votes in the proposed First District are overvalued by more than
200% compared to votes from the Third, Fourth, and Fifth Districts and by more than
60% compared to votes in the Second District. Conversely, votes from the Third, Fourth,
and Fifth Districts are undervalued by more than 200% compared to votes in the First
District while those in the Second District suffer more than 60% undervaluation.
Proportional representation in redistricting does not mean exact numbers of population, to
the last digit, for every legislative district. However, under the assailed RA 9716, the
variances swing from negative 47.9% to positive 29.6%. Under any redistricting
yardstick, such variances are grossly anomalous and destructive of the concept of
proportional representation. In the United States, the Supreme Court there ruled that a

69
variance of even less than 1% is unconstitutional in the absence of proof of a good
faith effort to achieve a mathematically exact apportionment.
Equally important, RA 9716 violates the minimum population requirement of
250,000 in creating the proposed First District, which will have a population of only
176,383. The minimum population of 250,000 per legislative district admits of no
variance and must be complied with to the last digit. The Constitution mandates a
population of at least two hundred fifty thousand for a legislative district in a city, and
under the principle of uniform and progressive ratio, for every legislative district in
provinces and in the Metropolitan Manila area.
The directive in Section 5(3) of Article VI that each province, shall have at least
one representative means only that when a province is created, a legislative district must
also be created with it. Can this district have a population below 250,000? To answer in
the affirmative is to ignore the constitutional mandate that districts in provinces be
apportioned in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio. That the Constitution never meant to exclude
provinces from the requirement of proportional representation is evident in the opening
provision of Section 5(1), which states:
The House of Representatives shall be composed of x x x members, x
x x, who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio x x x. (Boldfacing and underscoring supplied)
In short, the Constitution clearly mandates that the creation of legislative districts
in provinces, cities and the Metropolitan Manila area must comply with proportional
representation, on the basis of a uniform and progressive ratio.
In contrast, Congress enacted RA 9716 in the exercise of its legislative powers
under the 1987 Constitution and subject to the reapportionment standards in Section
5, Article VI of the Constitution. Congress is strictly bound by the reapportionment
standards in Section 5, unlike the Constitutional Commission which could create onetime exceptions subject to ratification by the sovereign people. Until it enacted RA 9716,
Congress never deviated from the minimum population requirement of 250,000 in
creating a legislative district. Thus, in Republic Act No. 7854 (RA 7854) which doubled
the legislative districts in Makati City, the Court in Mariano v. COMELEC took note of
the certification by the National Statistics Office that at the time of the enactment of RA
7854, the population of Makati City was 508,174, entitling it to two representatives.
Similarly, in Republic Act No. 9371 (RA 9371) which also doubled the legislative
districts in Cagayan de Oro City, the two districts created complied with the minimum
population of 250,000 (254,644 and 299,322, respectively), as the Court noted in
Bagabuyo v. COMELEC. Contrary to the assertion of the majority opinion, neither
Mariano v. COMELEC nor Bagabuyo v. COMELEC supports the claim that Congress
can create a legislative district with a population of less than 250,000. On the contrary,
these cases confirm that every legislative district must have a minimum population of
250,000. Only very recently, this Court in Aldaba v. COMELEC struck down a law

70
creating a legislative district in the City of Malolos, which has a population just short of
the 250,000 minimum requirement.
Creation
of
a
separate
legislative district for Malolos
City,
Bulacan,
with
a
population of less than 250,000
declared unconstitutional
VICTORINO B. ALDABA, CARLO JOLETTE
S. FAJARDO, JULIO G. MORADA, and
MINERVA
ALDABA
MORADA
VS.
COMELEC, G.R No. 188078, January 25, 2010
CARPIO, J.:
This is an original action for Prohibition to declare unconstitutional Republic Act No.
9591 (RA 9591), creating a legislative district for the city of Malolos, Bulacan, for violating the
minimum population requirement for the creation of a legislative district in a city.
Before 1 May 2009, the province of Bulacan was represented in Congress through four
legislative districts. The First Legislative District comprised of the city of Malolos and the
municipalities of Hagonoy, Calumpit, Pulilan, Bulacan, and Paombong. On 1 May 2009, RA
9591 lapsed into law, amending Malolos City Charter, by creating a separate legislative district
for the city. At the time the legislative bills for RA 9591 were filed in Congress in 2007, namely,
House Bill No. 3162 (later converted to House Bill No. 3693) and Senate Bill No. 1986, the
population of Malolos City was 223,069. The population of Malolos City on 1 May 2009 is a
contested fact but there is no dispute that House Bill No. 3693 relied on an undated certification
issued by a Regional Director of the National Statistics Office (NSO) that the projected
population of the Municipality of Malolos will be 254,030 by the year 2010 using the population
growth rate of 3.78 between 1995 to 2000.
Petitioners, taxpayers, registered voters and residents of Malolos City, filed this petition
contending that RA 9591 is unconstitutional for failing to meet the minimum population
threshold of 250,000 for a city to merit representation in Congress as provided under Section
5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987
Constitution.
In its Comment to the petition, the Office of the Solicitor General (OSG) contended that
Congress use of projected population is non-justiciable as it involves a determination on the
wisdom of the standard adopted by the legislature to determine compliance with [a constitutional
requirement.
HELD:
We grant the petition and declare RA 9591 unconstitutional for being violative of Section
5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987
Constitution

71
The 1987 Constitution requires that for a city to have a legislative district, the city must
have a population of at least two hundred fifty thousand.1[5] The only issue here is whether
the City of Malolos has a population of at least 250,000, whether actual or projected, for the
purpose of creating a legislative district for the City of Malolos in time for the 10 May 2010
elections.
If not, then RA 9591 creating a legislative district in the City of Malolos is
unconstitutional.
House Bill No. 3693 cites the undated Certification of Regional Director Alberto N.
Miranda of Region III of the National Statistics Office (NSO) as authority that the population
of the City of Malolos will be 254,030 by the year 2010. The Certification states that the
population of Malolos, Bulacan as of May 1, 2000 is 175,291. The Certification further states
that it was issued upon the request of Mayor Danilo A. Domingo of the City of Malolos in
connection with the proposed creation of Malolos City as a lone congressional district of the
Province of Bulacan .
The Certification of Regional Director Miranda, which is based on demographic
projections, is without legal effect because Regional Director Miranda has no basis and no
authority to issue the Certification. The Certification is also void on its face because based on its
own growth rate assumption, the population of Malolos will be less than 250,000 in the year
2010. In addition, intercensal demographic projections cannot be made for the entire year. In
any event, a city whose population has increased to 250,000 is entitled to have a legislative
district only in the immediately following election after the attainment of the 250,000
population.
First, certifications on demographic projections can be issued only if such projections
are declared official by the National Statistics Coordination Board (NSCB). Second,
certifications based on demographic projections can be issued only by the NSO Administrator
or his designated certifying officer. Third, intercensal population projections must be as of the
middle of every year.
Section 6 of Executive Order No. 135 dated 6 November 1993 issued by President Fidel
V. Ramos provides:
SECTION 6. Guidelines on the Issuance of Certification of Population sizes
Pursuant to Section 7, 386, 442, 450, 452, and 461 of the New Local Government
Code.
(a)
The National Statistics Office shall issue certification on data that it has
collected and processed as well as on statistics that it has estimated.
(b)
For census years, certification on population size will be based on actual
population census counts; while for the intercensal years, the certification will
1

[5]

Section 5(3), Article VI of the 1987 Constitution provides: Each legislative district shall
comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province, shall have at least one
representative. (Emphasis supplied)
Moreover, Section 3 of the Ordinance appended to the 1987 Constitution provides: Any
province that may be created, or any city whose population may hereafter increase to more
than two hundred fifty thousand shall be entitled in the immediately following election to at
least one Member or such number of members as it may be entitled to on the basis of the number
of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI
of the Constitution. xxx. (Emphasis supplied)

72
be made on the basis of a set of demographic projections or estimates
declared official by the National Statistical Coordination Board (NSCB).
(c)
Certification of population census counts will be made as of the census
reference date, such as May 1, 1990, while those of intercensal population
estimates will be as of middle of every year.
(d)
Certification of population size based on projections may specify the
range within which the true count is deemed likely to fall. The range will
correspond to the official low and high population projections.
(e)
The smallest geographic area for which a certification on population size
may be issued will be the barangay for census population counts, and the city or
municipality for intercensal estimates. If an LGU wants to conduct its own
population census, during offcensus years, approval must be sought from the
NSCB and the conduct must be under the technical supervision of NSO from
planning to data processing.
(f)
Certifications of population size based on published census results shall
be issued by the Provincial Census Officers or by the Regional Census Officers.
Certifications based on projections or estimates, however, will be issued by
the NSO Administrator or his designated certifying officer.
(Emphasis
supplied)
The Certification of Regional Director Miranda does not state that the demographic
projections he certified have been declared official by the NSCB. The records of this case do not
also show that the Certification of Regional Director Miranda is based on demographic
projections declared official by the NSCB. The Certification, which states that the population of
Malolos will be 254,030 by the year 2010, violates the requirement that intercensal
demographic projections shall be as of the middle of every year. In addition, there is no
showing that Regional Director Miranda has been designated by the NSO Administrator as a
certifying officer for demographic projections in Region III. In the absence of such official
designation, only the certification of the NSO Administrator can be given credence by this Court.
Moreover, the Certification states that the total population of Malolos, Bulacan as of
May 1, 2000 is 175,291. The Certification also states that the population growth rate of Malolos
is 3.78% per year between 1995 and 2000. Based on a growth rate of 3.78% per year, the
population of Malolos of 175,291 in 2000 will grow to only 241,550 in 2010.
Also, the 2007 Census places the population of Malolos at 223,069 as of 1 August 2007. 2
[9]
Based on a growth rate of 3.78%, the population of Malolos will grow to only 248,365 as of 1
August 2010. Even if the growth rate is compounded yearly, the population of Malolos of
223,069 as of 1 August 2007 will grow to only 249,333 as of 1 August 2010.
All these conflict with what the Certification states that the population of Malolos will
be 254,030 by the year 2010. Based on the Certifications own growth rate assumption, the
population of Malolos will be less than 250,000 before the 10 May 2010 elections. Incidentally,
the NSO has no published population projections for individual municipalities or cities but only
for entire regions and provinces.
A city that has attained a population of 250,000 is entitled to a legislative district only in
the immediately following election. In short, a city must first attain the 250,000 population,
2[9]

Annex F of Petition, which is a copy of the 2007 Census from the National Statistics Office.

73
and thereafter, in the immediately following election, such city shall have a district
representative. There is no showing in the present case that the City of Malolos has attained
or will attain a population of 250,000, whether actual or projected, before the 10 May 2010
elections.
Clearly, there is no official record that the population of the City of Malolos will be
at least 250,000, actual or projected, prior to the 10 May 2010 elections, the immediately
following election after the supposed attainment of such population. Thus, the City of Malolos is
not qualified to have a legislative district of its own under Section 5(3), Article VI of the 1987
Constitution and Section 3 of the Ordinance appended to the 1987 Constitution.
WHEREFORE, we GRANT the petition. We DECLARE Republic Act No. 9591
UNCONSTITUTIONAL for being violative of Section 5(3), Article VI of the 1987 Constitution
and Section 3 of the Ordinance appended to the 1987 Constitution.

Appointment of USEC Maria Elena

Baustista of DOTC as OIC, Marina
violates the constitutional prohibition on
multiple positions of members of the
cabinet and their deputies or assistants.
DENNIS FUNA VS. EXECUTIVE SECRETARY
EDUARDO ERMITA, G.R. No. 184740, February 11,
2010
VILLARAMA, JR., J.:
This is a petition for certiorari, prohibition and mandamus under Rule 65 with
prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction, to declare as unconstitutional the designation of respondent Undersecretary
Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority
(MARINA).
FACTS:
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent
Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of
Transportation and Communications (DOTC), vice Agustin R. Bengzon. Bautista was
designated as Undersecretary for Maritime Transport of the department under Special
Order No. 2006-171 dated October 23, 2006.
On September 1, 2008, following the resignation of then MARINA Administrator
Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the
Administrator, MARINA, in concurrent capacity as DOTC Undersecretary.
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned
citizen and lawyer, filed the instant petition challenging the constitutionality of
Bautistas appointment/designation, which is proscribed by the prohibition on the

74
President, Vice-President, the Members of the Cabinet, and their deputies and assistants
to hold any other office or employment.
On January 5, 2009, during the pendency of this petition, Bautista was
appointed Administrator of the MARINA vice Vicente T. Suazo, Jr. and she
assumed her duties and responsibilities as such on February 2, 2009.
ISSUE:

Whether or not Bautistas concurrent positions as DOTC Undersecretary and

MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution.
HELD:

The petition is meritorious.

On petitioners personality to sue as a mere taxpayer:
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. Respondents
assert that the second requisite is absent in this case.
Generally, a party will be allowed to litigate only when (1) he can show that he has
personally suffered some actual or threatened injury because of the allegedly illegal
conduct of the government; (2) the injury is fairly traceable to the challenged action; and
(3) the injury is likely to be redressed by a favorable action. The question on standing is
whether such parties have alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.
In David v. Macapagal-Arroyo, summarizing the rules culled from jurisprudence,
we 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;

75
(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.
[EMPHASIS SUPPLIED.]

Petitioner having alleged a grave violation of the constitutional prohibition against

Members of the Cabinet, their deputies and assistants holding two (2) or more positions
in government, the fact that he filed this suit as a concerned citizen sufficiently confers
him with standing to sue for redress of such illegal act by public officials.
The other objection raised by the respondent is that the resolution of this case had
been overtaken by events considering the effectivity of respondent Bautistas
appointment as MARINA Administrator effective February 2, 2009 and her
relinquishment of her former position as DOTC Undersecretary for Maritime Transport.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical use or
value. Generally, courts decline jurisdiction over such case or dismiss it on ground of
mootness. However, as we held in Public Interest Center, Inc. v. Elma, supervening
events, whether intended or accidental, cannot prevent the Court from rendering a
decision if there is a grave violation of the Constitution. Even in cases where
supervening events had made the cases moot, this Court did not hesitate to resolve the
legal or constitutional issues raised to formulate controlling principles to guide the bench,
bar, and public.
Undersecretary
Bautistas
designation as MARINA OIC
falls under
the stricter
prohibition under Section 13,
Article VII of the 1987
Constitution.
Resolution of the present controversy hinges on the correct application of Section
13, Article VII of the 1987 Constitution, which provides:
SEC. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure, directly or
indirectly practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency, or

76
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
On the other hand, Section 7, paragraph (2), Article IX-B reads:
SEC. 7. x x x
Unless otherwise allowed by law or the primary functions of
his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
In Civil Liberties Union, a constitutional challenge was brought before this Court
to nullify EO No. 284 issued by then President Corazon C. Aquino on July 25, 1987,
which included Members of the Cabinet, undersecretaries and assistant secretaries in its
provisions limiting to two (2) the positions that appointive officials of the Executive
Department may hold in government and government corporations. Interpreting the
above provisions in the light of the history and times and the conditions and
circumstances under which the Constitution was framed, this Court struck down as
unconstitutional said executive issuance, saying that it actually allows them to hold
multiple offices or employment in direct contravention of the express mandate of Section
13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
Noting that the prohibition imposed on the President and his official family is
all-embracing, the disqualification was held to be absolute, as the holding of any other
office is not qualified by the phrase in the Government unlike in Section 13, Article
VI prohibiting Senators and Members of the House of Representatives from holding any
other office or employment in the Government; and when compared with other officials
and employees such as members of the armed forces and civil service employees, we
concluded thus:
These sweeping, all-embracing prohibitions imposed on the President and
his official family, which prohibitions are not similarly imposed on other
public officials or employees such as the Members of Congress, members
of the civil service in general and members of the armed forces, are proof
of the intent of the 1987 Constitution to treat the President and his
official family as a class by itself and to impose upon said class stricter
prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter
with the President and his official family was also succinctly articulated
by Commissioner Vicente Foz after Commissioner Regalado Maambong
noted during the floor deliberations and debate that there was no
symmetry between the Civil Service prohibitions, originally found in the

77
General Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, We actually have to be
stricter with the President and the members of the Cabinet because they
exercise more powers and, therefore, more checks and restraints on them
are called for because there is more possibility of abuse in their case.
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions
of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to
lay down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution
is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is prohibitory so that it
must be understood as intended to be a positive and unequivocal negation
of the privilege of holding multiple government offices or employment.
Verily, wherever the language used in the constitution is prohibitory, it is
to be understood as intended to be a positive and unequivocal negation.
The phrase unless otherwise provided in this Constitution must be given
a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3),
Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
[EMPHASIS SUPPLIED.]
Respondent Bautista being then the appointed Undersecretary of DOTC, she
was thus covered by the stricter prohibition under Section 13, Article VII and
consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article
IX-B where holding another office is allowed by law or the primary functions of the
position. Neither was she designated OIC of MARINA in an ex-officio capacity, which is
the exception recognized in Civil Liberties Union.
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the 1987 Constitution was held inapplicable to posts occupied
by the Executive officials specified therein, without additional compensation in an exofficio capacity as provided by law and as required by the primary functions of said
office. The reason is that these posts do not comprise any other office within the

78
contemplation of the constitutional prohibition but are properly an imposition of
additional duties and functions on said officials. Apart from their bare assertion that
respondent Bautista did not receive any compensation when she was OIC of MARINA,
respondents failed to demonstrate clearly that her designation as such OIC was in an exofficio capacity as required by the primary functions of her office as DOTC
Undersecretary for Maritime Transport.
Given the vast responsibilities and scope of administration of the Authority, we are
hardly persuaded by respondents submission that respondent Bautistas designation as
OIC of MARINA was merely an imposition of additional duties related to her primary
position as DOTC Undersecretary for Maritime Transport. It appears that the DOTC
Undersecretary for Maritime Transport is not even a member of the Maritime Industry
Board, which includes the DOTC Secretary as Chairman, the MARINA Administrator as
Vice-Chairman, and the following as members: Executive Secretary (Office of the
President), Philippine Ports Authority General Manager, Department of National Defense
Secretary, Development Bank of the Philippines General Manager, and the Department of
Trade and Industry Secretary.
Finally, the Court similarly finds respondents theory that being just a
designation, and temporary at that, respondent Bautista was never really appointed as
OIC Administrator of MARINA, untenable. In Binamira v. Garrucho, Jr., we
distinguished between the terms appointment and designation, as follows:
Appointment may be defined as the selection, by the authority
vested with the power, of an individual who is to exercise the functions
of a given office. When completed, usually with its confirmation, the
appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on
the other hand, connotes merely the imposition by law of additional duties
on an incumbent official, as where, in the case before us, the Secretary of
Tourism is designated Chairman of the Board of Directors of the
Philippine Tourism Authority, or where, under the Constitution, three
Justices of the Supreme Court are designated by the Chief Justice to sit in
the Electoral Tribunal of the Senate or the House of Representatives. It is
said that appointment is essentially executive while designation is
legislative in nature.
Designation may also be loosely defined as an appointment
because it likewise involves the naming of a particular person to a
specified public office. That is the common understanding of the term.
However, where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary capacity
and may be replaced at will by the appointing authority. In this sense, the
designation is considered only an acting or temporary appointment, which
does not confer security of tenure on the person named. [EMPHASIS
SUPPLIED.]
Clearly, respondents reliance on the foregoing definitions is misplaced considering
that the above-cited case addressed the issue of whether petitioner therein acquired valid title

79
to the disputed position and so had the right to security of tenure. It must be stressed though
that while the designation was in the nature of an acting and temporary capacity, the words
hold the office were employed. Such holding of office pertains to both appointment and
designation because the appointee or designate performs the duties and functions of the
office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible
offices, refers to the holding of the office, and not to the nature of the appointment or
designation, words which were not even found in Section 13, Article VII nor in Section 7,
paragraph 2, Article IX-B. To hold an office means to possess or occupy the same, or
to be in possession and administration, which implies nothing less than the actual discharge
of the functions and duties of the office.
The disqualification laid down in Section 13, Article VII is aimed at preventing the
concentration of powers in the Executive Department officials, specifically the President,
Vice-President, Members of the Cabinet and their deputies and assistants. Civil Liberties
Union traced the history of the times and the conditions under which the Constitution was
framed, and construed the Constitution consistent with the object sought to be
accomplished by adoption of such provision, and the evils sought to be avoided or
remedied. We recalled the practice, during the Marcos regime, of designating members
of the Cabinet, their deputies and assistants as members of the governing bodies or
boards of various government agencies and instrumentalities, including governmentowned or controlled corporations. This practice of holding multiple offices or positions
in the government led to abuses by unscrupulous public officials, who took advantage of
this scheme for purposes of self-enrichment. The blatant betrayal of public trust evolved
into one of the serious causes of discontent with the Marcos regime. It was therefore
quite inevitable and in consonance with the overwhelming sentiment of the people that
the 1986 Constitutional Commission would draft into the proposed Constitution the
provisions under consideration, which were envisioned to remedy, if not correct, the evils
that flow from the holding of multiple governmental offices and employment. Our
declaration in that case cannot be more explicit:
But what is indeed significant is the fact that although Section 7,
Article IX-B already contains a blanket prohibition against the holding of
multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission
should see it fit to formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the different phraseologies
of the constitutional provisions in question, the intent of the framers of
the Constitution was to impose a stricter prohibition on the President
and his official family in so far as holding other offices or employment
in the government or elsewhere is concerned. [EMPHASIS
SUPPLIED.]
Such laudable intent of the law will be defeated and rendered sterile if we are to adopt
the semantics of respondents. It would open the veritable floodgates of circumvention of an

80
important constitutional disqualification of officials in the Executive Department and of
limitations on the Presidents power of appointment in the guise of temporary designations
of Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of
government agencies, instrumentalities, or government-owned or controlled corporations.
As to respondents contention that the concurrent positions of DOTC
Undersecretary for Maritime Transport and MARINA OIC Administrator are not
incompatible offices, we find no necessity for delving into this matter. Incompatibility
of offices is irrelevant in this case, unlike in the case of PCGG Chairman Magdangal
Elma in Public Interest Center, Inc. v. Elma. Therein we held that Section 13, Article
VII is not applicable to the PCGG Chairman or to the Chief Presidential Legal Counsel,
as he is not a cabinet member, undersecretary or assistant secretary.
WHEREFORE, the petition is GRANTED. The designation of respondent
Ma. Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime
Industry Authority, in a concurrent capacity with her position as DOTC
Undersecretary
for
Maritime
Transport,
is
hereby
declared
UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987
Constitution and therefore, NULL and VOID.
Procedure if the voting in the Supreme
Court on a case questioning the
constitutionality of a law ends in a 6-tie;
Requirements in the creation of a city
under Section 10, Article X of the
Constitution; and the equal protection
clause.
LEAGUE OF CITIES OF THE PHILIPPINES VS.
COMELEC, ET AL., GR NO. 176951 , December 21,
2009
DECISION
VELASCO, JR. J.:
The consolidated petitions for prohibition commenced by the League of Cities of
the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treas assail the
constitutionality of the sixteen (16) laws, each converting the municipality covered
thereby into a city (cityhood laws, hereinafter) and seek to enjoin the Commission on
Elections (COMELEC) from conducting plebiscites pursuant to subject laws.
By Decision dated November 18, 2008, the Court en banc,
banc, by a 6-5 vote, granted
the petitions and nullified the sixteen (16) cityhood laws for being violative of the
Constitution, specifically its Section 10, Article X and the equal protection clause.
Subsequently, respondent local government units (LGUs) moved for
reconsideration, raising, as one of the issues, the validity of the factual premises not
contained in the pleadings of the parties, let alone established, which became the bases of

81
the Decision subject of reconsideration. By Resolution of March 31, 2009, a divided
Court denied the motion for reconsideration.
A second motion for reconsideration followed in which respondent LGUs prayed
as follows:
WHEREFORE, respondents respectfully pray that the Honorable
Court reconsider its Resolution dated March 31, 2009, in so far as it
denies for lack of merit respondents Motion for Reconsideration
dated December 9, 2008 and in lieu thereof, considering that new and
meritorious arguments are raised by respondents Motion for
Reconsideration dated December 9, 2008 to grant afore-mentioned
Motion for Reconsideration dated December 9, 2008 and dismiss the
Petitions For Prohibition in the instant case.
Per Resolution dated April 28, 2009,
2009, the Court, voting 6-6, disposed of the motion
as follows:
By a vote of 6-6, the Motion for Reconsideration of the Resolution
of 31 March 2009 is DENIED for lack of merit. The motion is denied
since there is no majority that voted to overturn the Resolution of 31
March 2009.
The Second Motion for Reconsideration of the Decision of 18
November 2008 is DENIED for being a prohibited pleading, and the
Motion for Leave to Admit Attached Petition in Intervention x x x filed by
counsel for Ludivina T. Mas, et al. are also DENIED. No further pleadings
shall be entertained. Let entry of judgment be made in due course.
course. x x x
On May 14, 2009,
2009, respondent LGUs filed a Motion to Amend the Resolution of
April 28, 2009 by Declaring Instead that Respondents Motion for Reconsideration of
the Resolution of March 31, 2009 and Motion for Leave to File and to Admit Attached
Second Motion for Reconsideration of the Decision Dated November 18, 2008 Remain
Unresolved and to Conduct Further Proceedings Thereon.
Thereon.
Per its Resolution of June 2, 2009,
2009, the Court declared the May 14, 2009 motion
adverted to as expunged in light of the entry of judgment made on May 21, 2009. Justice
Leonardo-De Castro, however, taking common cause with Justice Bersamin to grant the
motion for reconsideration of the April 28, 2009 Resolution and to recall the entry of
judgment, stated the observation, and with reason, that the entry was effected before the
Court could act on the aforesaid motion which was filed within the 15-day period counted
from receipt of the April 28, 2009 Resolution.
Forthwith, respondent LGUs filed a Motion for Reconsideration of the
Resolution of June 2, 2009 to which some of the petitioners and petitioners-inintervention filed their respective comments. The Court will now rule on this incident.
But first, we set and underscore some basic premises:
(1) The initial motion to reconsider the November 18, 2008 Decision, as Justice
Leonardo-De Castro noted, indeed raised new and substantial issues, inclusive of the
matter of the correctness of the factual premises upon which the said decision was
predicated. The 6-6 vote on the motion for reconsideration per the Resolution of March
31, 2009, which denied the motion on the sole ground that the basic issues have already
been passed upon reflected a divided Court on the issue of whether or not the underlying

82
Decision of November 18, 2008 had indeed passed upon the basic issues raised in the
motion for reconsideration of the said decision;
(2) The aforesaid May 14, 2009 Motion to Amend Resolution of April 28, 2009
was precipitated by the tie vote which served as basis for the issuance of said resolution.
This May 14, 2009 motionwhich mainly argued that a tie vote is inadequate to declare
a law unconstitutional remains unresolved; and
(3) Pursuant to Sec. 4(2), Art. VIII of the Constitution, all cases involving the
constitutionality of a law shall be heard by the Court en banc and decided with the
concurrence of a majority of the Members who actually took part in the deliberations on
the issues in the case and voted thereon.
The basic issue tendered in this motion for reconsideration of the June 2, 2009
Resolution boils down to whether or not the required vote set forth in the aforesaid Sec.
4(2), Art. VIII is limited only to the initial vote on the petition or also to the subsequent
voting on the motion for reconsideration where the Court is called upon and actually
votes on the constitutionality of a law or like issuances. Or, as applied to this case, would
a minute resolution dismissing, on a tie vote, a motion for reconsideration on the sole
stated groundthat the basic issues have already been passed suffice to hurdle the
voting requirement required for a declaration of the unconstitutionality of the cityhood
laws in question?
The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009,
which denied the initial motion on the sole ground that the basic issues had already been
passed upon betrayed an evenly divided Court on the issue of whether or not the
underlying Decision of November 18, 2008 had indeed passed upon the issues raised in
the motion for reconsideration of the said decision. But at the end of the day, the single
issue that matters and the vote that really counts really turn on the constitutionality of the
cityhood laws. And be it remembered that the inconclusive 6-6 tie vote reflected in the
April 28, 2009 Resolution was the last vote on the issue of whether or not the cityhood
laws infringe the Constitution. Accordingly, the motions of the respondent LGUs, in light
of the 6-6 vote, should be deliberated anew until the required concurrence on the issue of
the validity or invalidity of the laws in question is, on the merits, secured.
It ought to be clear that a deadlocked vote does not reflect the majority of the
Members contemplated in Sec. 4 (2) of Art. VIII of the Constitution, which requires
that:
All cases involving the constitutionality of a treaty, international or
executive agreement, or law shall be heard by the Supreme Court en banc,
banc,
x x x shall be decided with the concurrence of a majority of the Members
who actually took part in the deliberations on the issues in the case and
voted thereon. (Emphasis added.)
Webster defines majority as a number greater than half of a total. In plain
language, this means 50% plus one. In Lambino v. Commission on Elections,
Elections, Justice, now
Chief Justice, Puno, in a separate opinion, expressed the view that a
a deadlocked vote of
six (6) is not a majority and a non-majority cannot write a rule with precedential value.
value.
As may be noted, the aforequoted Sec. 4 of Art. VIII, as couched, exacts a
majority vote in the determination of a case involving the constitutionality of a statute,
without distinguishing whether such determination is made on the main petition or
thereafter on a motion for reconsideration. This is as it should be, for, to borrow from the
late Justice Ricardo J. Francisco: x x x [E]ven assuming x x x that the constitutional
requirement on the concurrence of the majority was initially reached in the x x x

83
ponencia,
ponencia, the same is inconclusive as it was still open for review by way of a motion for
reconsideration.
To be sure, the Court has taken stock of the rule on a tie-vote situation, i.e., Sec.
7, Rule 56 and the complementary A.M. No. 99-1-09- SC, respectively, providing that:
SEC. 7.
7. Procedure if opinion is equally divided.
divided. Where the court
en banc is equally divided in opinion, or the necessary majority cannot be
had, the case shall again be deliberated on, and if after such deliberation
no decision is reached, the original action commenced in the court shall be
dismissed; in appealed cases, the judgment or order appealed from shall
stand affirmed; and on all incidental matters, the petition or motion shall
be denied.
A.M. No. 99-1-09-SC x x x A motion for reconsideration of a
decision or resolution of the Court En Banc or of a Division may be
granted upon a vote of a majority of the En Banc or of a Division, as the
case may be, who actually took part in the deliberation of the motion.
If the voting results in a tie, the motion for reconsideration is
deemed denied.
But since the instant cases fall under Sec. 4 (2), Art. VIII of the Constitution, the
aforequoted provisions ought to be applied in conjunction with the prescription of the
Constitution that the cases shall be decided with the concurrence of a majority of the
Members who actually took part in the deliberations on the issues in the instant cases and
voted thereon. To repeat, the last vote on the issue of the constitutionality of the
cityhood bills is that reflected in the April 28, 2009 Resolutiona 6-6 deadlock.
On the postulate then that first, the finality of the November 18, 2008 Decision
has yet to set in, the issuance of the precipitate entry of judgment notwithstanding, and
second, the deadlocked vote on the second motion for reconsideration did not definitely
settle the constitutionality of the cityhood laws, the Court is inclined to take another hard
look at the underlying decision. Without belaboring in their smallest details the
arguments for and against the procedural dimension of this disposition, it bears to stress
that the Court has the power to suspend its own rules when the ends of justice would be
served thereby. In the performance of their duties, courts should not be shackled by
stringent rules which would result in manifest injustice. Rules of procedure are only
tools crafted to facilitate the attainment of justice. Their strict and rigid application must
be eschewed, if they result in technicalities that tend to frustrate rather than promote
substantial justice. Substantial rights must not be prejudiced by a rigid and technical
application of the rules in the altar of expediency. When a case is impressed with public
interest, a relaxation of the application of the rules is in order. Time and again, this Court
has suspended its own rules or excepted a particular case from their operation whenever
the higher interests of justice so require.
While perhaps not on all fours with the case, because it involved a purely business
transaction, what the Court said in Chuidian v. Sandiganbayan is most apropos:
To reiterate what the Court has said in Ginete vs. Court of Appeals
and other cases, the rules of procedure should be viewed as mere

84
instruments designed to facilitate the attainment of justice. They are not to
be applied with severity and rigidity when such application would clearly
defeat the very rationale for their conception and existence. Even the
Rules of Court reflects this principle. The power to suspend or even
disregard rules, inclusive of the one-motion rule, can be so pervasive and
compelling as to alter even that which this Court has already declared to
be final. The peculiarities of this case impel us to do so now.
The Court, by a vote of 6-4, grants the respondent LGUs motion for
reconsideration of the Resolution of June 2, 2009, as well as their May 14, 2009 motion
to consider the second motion for reconsideration of the November 18, 2008 Decision
unresolved, and also grants said second motion for reconsideration.
This brings us to the substantive aspect of the case.
The Undisputed Factual Antecedents in Brief
During the 11th Congress, fifty-seven (57) cityhood bills were filed before the
House of Representatives. Of the fifty-seven (57), thirty-three (33) eventually became
laws. The twenty-four (24) other bills were not acted upon.
Later developments saw the introduction in the Senate of Senate Bill (S. Bill) No.
2157 to amend Sec. 450 of Republic Act No. (RA) 7160, otherwise known as the Local
Government Code (LGC) of 1991. The proposed amendment sought to increase the
income requirement to qualify for conversion into a city from PhP 20 million average
annual income to PhP 100 million locally generated income.
In March 2001, S. Bill No. 2157 was signed into law as RA 9009 to take effect on
June 30, 2001. As thus amended by RA 9009, Sec. 450 of the LGC of 1991 now
provides that [a] municipality x x x may be converted into a component city if it has a
[certified] locally generated average annual income x x x of at least [PhP 100 million] for
the last two (2) consecutive years based on 2000 constant prices.
After the effectivity of RA 9009, the Lower House of the 12 th Congress adopted in
July 2001 House (H.) Joint Resolution No. 29 which, as its title indicated, sought to
exempt from the income requirement prescribed in RA 9009 the 24 municipalities whose
conversions into cities were not acted upon during the previous Congress. The 12th
Congress ended without the Senate approving H. Joint Resolution No. 29.
Then came the 13th Congress (July 2004 to June 2007), which saw the House of
Representatives re-adopting H. Joint Resolution No. 29 as H. Joint Resolution No. 1 and
forwarding it to the Senate for approval.
The Senate, however, again failed to approve the joint resolution. During the
Senate session held on November 6, 2006, Senator Aquilino Pimentel, Jr. asserted that
passing H. Resolution No. 1 would, in net effect, allow a wholesale exemption from the
income requirement imposed under RA 9009 on the municipalities. For this reason, he
suggested the filing by the House of Representatives of individual bills to pave the way

85
for the municipalities to become cities and then forwarding them to the Senate for proper
action.
Heeding the advice, sixteen (16) municipalities filed, through their respective
sponsors, individual cityhood bills. Common to all 16 measures was a provision
exempting the municipality covered from the PhP 100 million income requirement.
As of June 7, 2007, both Houses of Congress had approved the individual cityhood
bills, all of which eventually lapsed into law on various dates. Each cityhood law directs
the COMELEC, within thirty (30) days from its approval, to hold a plebiscite to
determine whether the voters approve of the conversion.
As earlier stated, the instant petitions seek to declare the cityhood laws
unconstitutional for violation of Sec. 10, Art. X of the Constitution, as well as for
violation of the equal-protection clause. The wholesale conversion of municipalities into
cities, the petitioners bemoan, will reduce the share of existing cities in the Internal
Revenue Allotment (IRA), since more cities will partake of the internal revenue set aside
for all cities under Sec. 285 of the LGC of 1991.
The Issues
In the main, the issues to which all others must yield pivot on whether or not
the cityhood laws violate (1) Sec. 10. Art. X of the Constitution and (2) the
equal protection clause.
In the November 18, 2008 Decision granting the petitions, Justice Antonio T.
Carpio, for the Court, resolved the twin posers in the affirmative and accordingly
declared the cityhood laws unconstitutional, deviating as they do from the uniform and
non-discriminatory income criterion prescribed by the LGC of 1991. In so doing, the
ponencia veritably agreed with the petitioners that the Constitution, in clear and
unambiguous language, requires that all the criteria for the creation of a city shall be
embodied and written in the LGC, and not in any other law.
After a circumspect reflection, the Court is disposed to reconsider.
Petitioners threshold posture, characterized by a strained interpretation of the
Constitution, if accorded cogency, would veritably curtail and cripple Congress valid
exercise of its authority to create political subdivisions.
By constitutional design and as a matter of long-established principle, the power
to create political subdivisions or LGUs is essentially legislative in character. But even
without any constitutional grant, Congress can, by law, create, divide, merge, or
altogether abolish or alter the boundaries of a province, city, or municipality. We said as
much in the fairly recent case, Sema v. CIMELEC. The 1987 Constitution, under its Art.
X, Sec. 10, nonetheless provides for the creation of LGUs, thus:
Section 10. No province, city, municipality, or barangay shall be
created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government

86
code and subject to approval by a majority of the votes cast in a plebiscite
in the political units directly affected. (Emphasis supplied.)
As may be noted, the afore-quoted provision specifically provides for the creation
of political subdivisions in accordance with the criteria established in the local
government code, subject to the approval of the voters in the unit concerned. The
criteria referred to are the verifiable indicators of viability, i.e., area, population, and
income, now set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. The
petitioners would parlay the thesis that these indicators or criteria must be written only in
the LGC and not in any other statute. Doubtless, the code they are referring to is the LGC
of 1991. Pushing their point, they conclude that the cityhood laws that exempted the
respondent LGUs from the income standard spelled out in the amendatory RA 9009
offend the Constitution.
The supposedly infringed Art. X, Sec. 10 is not a new constitutional provision.
Save for the use of the term barrio in lieu of barangay, may be instead of shall,
the change of the phrase unit or units to political unit and the addition of the
modifier directly to the word affected, the aforesaid provision is a substantial
reproduction of Art. XI, Sec. 3 of the 1973 Constitution, which reads:
Section 3. No province, city, municipality, or barrio may be
created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a plebiscite
in the unit or units affected. (Emphasis supplied.)
It bears notice, however, that the code similarly referred to in the 1973 and
1987 Constitutions is clearly but a law Congress enacted. This is consistent with the
aforementioned plenary power of Congress to create political units. Necessarily, since
Congress wields the vast poser of creating political subdivisions, surely it can exercise
the lesser authority of requiring a set of criteria, standards, or ascertainable indicators of
viability for their creation. Thus, the only conceivable reason why the Constitution
employs the clause in accordance with the criteria established in the local
government code is to lay stress that it is Congress alone, and no other, which can
impose the criteria. The eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., in his
treatise on Constitutional Law, specifically on the subject provision, explains:
Prior to 1965, there was a certain lack of clarity with regard to the
power to create, divide, merge, dissolve, or change the boundaries of
municipal corporations. The extent to which the executive may share in
this power was obscured by Cardona v. Municipality of Binangonan.
Pelaez v. Auditor General subsequently clarified the Cardona case when
the Supreme Court said that the authority to create municipal
corporations is essentially legislative in nature. Pelaez, however,
conceded that the power to fix such common boundary, in order to avoid
or settle conflicts of jurisdiction between adjoining municipalities, may
partake of an administrative nature-involving as it does, the adoption of
means and ways to carry into effect the law creating said municipalities.
Pelaez was silent about division, merger, and dissolution of municipal

87
corporations. But since division in effect creates a new municipality, and
both dissolution and merger in effect abolish a legal creation, it may fairly
be inferred that these acts are also legislative in nature.
Section 10 [Art. X of the 1987 Constitution], which is a legacy
from the 1973 Constitution, goes further than the doctrine in the Pelaez
case. It not only makes creation, division, merger, abolition or substantial
alteration of boundaries of provinces, cities, municipalities x x x subject to
criteria established in the local government code, thereby declaring
these actions properly legislative, but it also makes creation, division,
merger, abolition or substantial alteration of boundaries subject to
approval by a majority of the votes cast in a plebiscite in the political units
directly affected. x x x (Emphasis added.)
It remains to be observed at this juncture that when the 1987 Constitution speaks
of the LGC, the reference cannot be to any specific statute or codification of laws, let
alone the LGC of 1991. Be it noted that at the time of the adoption of the 1987
Constitution, Batas Pambansa Blg. (BP) 337, the then LGC, was still in effect.
Accordingly, had the framers of the 1987 Constitution intended to isolate the
embodiment of the criteria only in the LGC, then they would have actually referred to BP
337. Also, they would then not have provided for the enactment by Congress of a new
LGC, as they did in Art. X, Sec. 3 of the Constitution.
Consistent with its plenary legislative power on the matter, Congress can, via
either a consolidated set of laws or a much simpler, single-subject enactment, impose the
said verifiable criteria of viability. These criteria need not be embodied in the local
government code, albeit this code is the ideal repository to ensure, as much as possible,
the element of uniformity. Congress can even, after making a codification, enact an
amendatory law, adding to the existing layers of indicators earlier codified, just as
efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the
already codified income requirement from PhP 20 million to PhP 100 million. At the end
of the day, the passage of amendatory laws is no different from the enactment of laws,
i.e., the cityhood laws specifically exempting a particular political subdivision from the
criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively
decreased the already codified indicators.
Petitioners theory that Congress must provide the criteria solely in the
LGC and not in any other law strikes the Court as illogical. For if we pursue their
contention to its logical conclusion, then RA 9009 embodying the new and
increased income criterion would, in a way, also suffer the vice of
unconstitutionality. It is startling, however, that petitioners do not question the
constitutionality of RA 9009, as they in fact use said law as an argument for the
alleged unconstitutionality of the cityhood laws.
Exemption from Republic Act No. 9009. The City of x x x shall be
exempted from the income requirement prescribed under Republic Act
No. 9009.

88
In any event, petitioners constitutional objection would still be untenable even if
we were to assume purely ex hypothesi the correctness of their underlying thesis, viz: that
the conversion of a municipality to a city shall be in accordance with, among other
things, the income criterion set forth in the LGC of 1991, and in no other; otherwise, the
conversion is invalid. We shall explain.
Looking at the circumstances behind the enactment of the laws subject of
contention, the Court finds that the LGC-amending RA 9009, no less, intended the LGUs
covered by the cityhood laws to be exempt from the PhP 100 million income criterion. In
other words, the cityhood laws, which merely carried out the intent of RA 9009, adhered,
in the final analysis, to the criteria established in the Local Government Code,
pursuant to Sec. 10, Art. X of the 1987 Constitution. We shall now proceed to discuss
this exemption angle.
Among the criteria established in the LGC pursuant to Sec.10, Art. X of
the 1987 Constitution are those detailed in Sec. 450 of the LGC of 1991 under the
heading Requisites for Creation. The section sets the minimum income
qualifying bar before a municipality or a cluster of barangays may be considered
for cityhood. Originally, Sec. 164 of BP 337 imposed an average regular annual
income of at least ten million pesos for the last three consecutive years as a
minimum income standard for a municipal-to-city conversion. The LGC that BP
337 established was superseded by the LGC of 1991 whose then Sec. 450
provided that [a] municipality or cluster of barangays may be converted into a
component city if it has an average annual income, x x x of at least twenty million
pesos (P20,000,000.00) for at least two (2) consecutive years based on 1991
constant prices x x x. RA 9009 in turn amended said Sec. 450 by further
increasing the income requirement to PhP 100 million, thus:

Section 450. Requisites for Creation. (a) A municipality or a

cluster of barangays may be converted into a component city if it has a
locally generated average annual income, as certified by the Department
of Finance, of at least One Hundred Million Pesos (P100,000,000.00)
for the last two (2) consecutive years based on 2000 constant prices, and
if it has either of the following requisites:
xxxx
(c) The average annual income shall include the income accruing
to the general fund, exclusive of special funds, transfers, and nonrecurring income. (Emphasis supplied.)
The rationale behind the enactment of RA 9009 to amend Sec. 450 of the LGC of
1991 can reasonably be deduced from Senator Pimentels sponsorship speech on S. Bill
No. 2157. Of particular significance is his statement regarding the basis for the proposed
increase from PhP 20 million to PhP 100 million in the income requirement for
municipalities wanting to be converted into cities, viz:

89
Senator Pimentel. Mr. President, I would have wanted this bill to
be included in the whole set of proposed amendments that we have
introduced to precisely amend the [LGC]. However, it is a fact that there
is a mad rush of municipalities wanting to be converted into cities.
Whereas in 1991, when the [LGC] was approved, there were only 60
cities, today the number has increased to 85 cities, with 41 more
municipalities applying for conversion x x x. At the rate we are going, I
am apprehensive that before long this nation will be a nation of all
cities and no municipalities.
It is for that reason, Mr. President, that we are proposing among
other things, that the financial requirement, which, under the [LGC], is
fixed at P20 million, be raised to P100 million to enable a municipality to
have the right to be converted into a city, and the P100 million should be
sourced from locally generated funds.
Congress to be sure knew, when RA 9009 was being deliberated upon, of the
pendency of several bills on cityhood, wherein the applying municipalities were qualified
under the then obtaining PhP 20 million-income threshold. These included respondent
LGUs.
Given the foregoing perspective, it is not amiss to state that the basis for the
inclusion of the exemption clause of the cityhood laws is the clear-cut intent of Congress
of not according retroactive effect to RA 9009. Not only do the congressional records
bear the legislative intent of exempting the cityhood laws from the income requirement of
PhP 100 million. Congress has now made its intention to exempt express in the
challenged cityhood laws.
It is contended that the deliberations on the cityhood bills and the covering joint
resolution were undertaken in the 11th and/or the 12th Congress. Accordingly, so the
argument goes, such deliberations, more particularly those on the unapproved resolution
exempting from RA 9009 certain municipalities, are without significance and would not
qualify as extrinsic aids in construing the cityhood laws that were passed during the 13th
Congress, Congress not being a continuing body.
The argument is specious and glosses over the reality that the cityhood bills
which were already being deliberated upon even perhaps before the conception of RA
9009were again being considered during the 13th Congress after being tossed around in
the two previous Congresses. And specific reference to the cityhood bills was also made
during the deliberations on RA 9009. At the end of the day, it is really immaterial if
Congress is not a continuing legislative body. What is important is that the debates,
deliberations, and proceedings of Congress and the steps taken in the enactment of the
law, in this case the cityhood laws in relation to RA 9009 or vice versa, were part of its
legislative history and may be consulted, if appropriate, as aids in the interpretation of the
law. And of course the earlier cited Drilon-Pimentel exchange on whether or not the 16
municipalities in question would be covered by RA 9009 is another vital link to the
historical chain of the cityhood bills. This and other proceedings on the bills are spread in
the Congressional journals, which cannot be conveniently reduced to pure rhetoric
without meaning whatsoever, on the simplistic and non-sequitur pretext that Congress is

90
not a continuing body and that unfinished business in either chamber is deemed
terminated at the end of the term of Congress.
This brings us to the challenge to the constitutionality of cityhood laws on equal
protection grounds.
To the petitioners, the cityhood laws, by granting special treatment to respondent
municipalities/LGUs by way of exemption from the standard PhP 100 million minimum
income requirement, violate Sec.1, Art. III of the Constitution, which in part provides that
no person shall be denied the equal protection of the laws.
Petitioners challenge is not well taken. At its most basic, the equal protection
clause proscribes undue favor as well as hostile discrimination. Hence, a law need not
operate with equal force on all persons or things to be conformable with Sec. 1, Art. III of
the Constitution.
The equal protection guarantee is embraced in the broader and elastic concept of
due process, every unfair discrimination being an offense against the requirements of
justice and fair play. It has nonetheless come as a separate clause in Sec. 1, Art. III of the
Constitution to provide for a more specific protection against any undue discrimination or
antagonism from government. Arbitrariness in general may be assailed on the basis of
the due process clause. But if a particular challenged act partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.
This constitutional protection extends to all persons, natural or artificial, within the
territorial jurisdiction. Artificial persons, as the respondent LGUs herein, are, however,
entitled to protection only insofar as their property is concerned.
As a matter of settled legal principle, the fundamental right of equal protection
does not require absolute equality. It is enough that all persons or things similarly situated
should be treated alike, both as to rights or privileges conferred and responsibilities or
obligations imposed. The equal protection clause does not preclude the state from
recognizing and acting upon factual differences between individuals and classes. It
recognizes that inherent in the right to legislate is the right to classify, necessarily
implying that the equality guaranteed is not violated by a legislation based on reasonable
classification. Classification, to be reasonable, must (1) rest on substantial distinctions;
(2) be germane to the purpose of the law; (3) not be limited to existing conditions only;
and (4) apply equally to all members of the same class. The Court finds that all these
requisites have been met by the laws challenged as arbitrary and discriminatory under the
equal protection clause.
As things stand, the favorable treatment accorded the sixteen (16) municipalities by
the cityhood laws rests on substantial distinction. Indeed, respondent LGUs, which are
subjected only to the erstwhile PhP 20 million income criterion instead of the stringent
income requirement prescribed in RA 9009, are substantially different from other
municipalities desirous to be cities. Looking back, we note that respondent LGUs had
pending cityhood bills before the passage of RA 9009. There lies part of the tipping
difference. And years before the enactment of the amendatory RA 9009, respondents
LGUs had already met the income criterion exacted for cityhood under the LGC of 1991.
Due to extraneous circumstances, however, the bills for their conversion remained

91
unacted upon by Congress. As aptly observed by then Senator, now Manila Mayor,
Alfredo Lim in his speech sponsoring H. Joint Resolution No. 1, or the cityhood bills,
respondent LGUs saw themselves confronted with the changing of the rules in the
middle of the game.
The classification is also germane to the purpose of the law. The exemption of
respondent LGUs/municipalities from the PhP 100 million income requirement was
meant to reduce the inequality occasioned by the passage of the amendatory RA 9009.
From another perspective, the exemption was unquestionably designed to insure that
fairness and justice would be accorded respondent LGUs. Let it be noted that what were
then the cityhood bills covering respondent LGUs were part and parcel of the original 57
conversion bills filed in the 11th Congress, 33 of those became laws before the
adjournment of that Congress. The then bills of the challenged cityhood laws were not
acted upon due, inter alia, to the impeachment of then President Estrada, the related
jueteng scandal investigations conducted before, and the EDSA events that followed the
aborted impeachment.
In summary:
(1) Congress did not intend the increased income requirement in RA 9009 to
apply to the cityhood bills which became the cityhood laws in question. In other words,
Congress intended the subject cityhood laws to be exempted from the income
requirement of PhP 100 million prescribed by RA 9009;
(2) The cityhood laws merely carry out the intent of RA 9009, now Sec. 450 of
the LGC of 1991, to exempt respondent LGUs from the PhP 100 million income
requirement;
(3) The deliberations of the 11th or 12th Congress on unapproved bills or
resolutions are extrinsic aids in interpreting a law passed in the 13th Congress. It is
really immaterial if Congress is not a continuing body. The hearings and deliberations
during the 11th and 12th Congress may still be used as extrinsic reference inasmuch as the
same cityhood bills which were filed before the passage of RA 9009 were being
considered during the 13th Congress. Courts may fall back on the history of a law, as here,
as extrinsic aid of statutory construction if the literal application of the law results in
absurdity or injustice.
(4) The exemption accorded the 16 municipalities is based on the fact that each
had pending cityhood bills long before the enactment of RA 9009 that substantially
distinguish them from other municipalities aiming for cityhood. On top of this, each of
the 16 also met the PhP 20 million income level exacted under the original Sec. 450 of
the 1991 LGC.
WHEREFORE,
WHEREFORE, respondent LGUs Motion for Reconsideration dated June 2,
2009, their Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that
Respondents Motion for Reconsideration of the Resolution of March 31, 2009 and
Motion for Leave to File and to Admit Attached Second Motion for Reconsideration of
the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further
Proceedings, dated May 14, 2009, and their second Motion for Reconsideration of the

92
Decision dated November 18, 2008 are GRANTED.
GRANTED. The June 2, 2009, the March 31,
2009, and April 31, 2009 Resolutions are REVERSED and SET ASIDE.
ASIDE. The entry of
judgment made on May 21, 2009 must accordingly be RECALLED.
RECALLED.
Civil Service Commission has no
administrative jurisdiction over offenses
committed by court personnel. Only the
Supreme Court.
CIVIL
SERVICE
COMMISSION
vs.
HERMINIGILDO ANDAL,
G.R. No. 185749,
December 16, 2009
CARPIO, J.:
Herminigildo L. Andal (respondent) holds the position of Security Guard II in the
Sandiganbayan. On 24 January 2000, he filed an application to take the Career Service
Professional Examination-Computer Assisted Test (CSPE-CAT) and was admitted to
take the examination. The examination results showed that respondent passed the
examination with a rating of 81.03%.
On 25 January 2000, Arlene S. Vito (Vito), claiming to have been authorized by
respondent to secure the results of the examination, presented a handwritten authorization
allegedly signed by respondent. Upon verification and comparison of the pictures
attached to the Picture Seat Plan and the identification card of respondent which Vito
presented, there appeared a dissimilarity in the facial features. Bella A. Mitra, then
Officer-in-Charge of the Examination, Placement and Services Division (EPSD) of the
Civil Service Commission-National Capital Region (CSC-NCR), issued a Memorandum
on the alleged impersonation of respondent and the matter was referred to the Legal
Affairs Division to conduct a fact-finding investigation. On 29 November 2000, the CSCNCR formally charged respondent with dishonesty.
A formal investigation of the case was scheduled on 4 June 2001, 21 November
2001, 5 February 2002, and 10 July 2002. Notices were sent to respondents last known
address as indicated in his Application Form but respondent failed to appear on the
scheduled hearings. Respondent was deemed to have waived his right to appear at the
formal investigation and the case proceeded ex parte.
On 5 August 2005, the CSC-NCR rendered judgment finding respondent guilty of
dishonesty and imposing upon him the penalty of dismissal from the service.
Aggrieved, respondent appealed to the CSC which issued Resolution No. 062255
dated 20 December 2006, the dispositive portion of which reads:
WHEREFORE, the appeal of Herminigildo L. Andal is hereby
DISMISSED. Accordingly, the Decision dated May 25, 2005 of the Civil
Service Commission National Capital Region (CSC-NCR), Quezon City,

93
finding him guilty of Dishonesty and imposing upon him the penalty of
dismissal from the service with accessory penalties of disqualification
from re-entering government service, forfeiture of retirement benefits, and
bar from taking any civil service examination, pursuant to Section 57 of
the Uniformed Rules, is AFFIRMED.
Respondent moved for a reconsideration of the CSC judgment but the motion was
denied in the CSC Resolution No. 071493 dated 1 August 2007.
Respondent elevated the case to the Court of Appeals on a petition for review under
Rule 43. On 22 September 2008, the Court of Appeals rendered judgment in favor of
respondent, the dispositive portion of which reads:
WHEREFORE, premises considered, the assailed Decision dated
25 May 2005, Resolution No. 062255 dated 20 December 2006, and
Resolution No. 071493 dated 01 August 2007 in Admin. Case No. 00-12027 are SET ASIDE and respondent Civil Service Commission is
enjoined from implementing the same. Respondent Civil Service
Commission is hereby ORDERED to immediately refer said
administrative case for Dishonesty against petitioner Herminigildo L.
Andal to the Office of the Court Administrator, Supreme Court, for
appropriate action.
The CSC filed a motion for reconsideration which the Court of Appeals denied in
its Resolution dated 2 December 2008.
Hence, the present petition.
The Issue
The issue in this case is whether or not the Civil Service Commission has
disciplinary jurisdiction to try and decide administrative cases against court personnel.
HELD:
The CSCs authority and power to hear and decide administrative disciplinary cases
are not in dispute. The question is whether the CSCs disciplinary jurisdiction extends to
court personnel in view of Section 6, Article VIII of the 1987 Constitution.
The Albao case cited by the CSC is not in point as Albao was not a court employee
but a contractual employee of the Office of the Vice President. The Albao case merely
affirmed the authority of the CSC to take cognizance of any irregularity or anomaly
connected with the civil service examinations.
One case in point is Bartolata v. Julaton wherein a letter-complaint was sent to the
CSC Regional Office in Davao City denouncing the acts of Felicia Julaton (Julaton),
Clerk of Court, and Juanita Tapic (Tapic), Court Interpreter II, both of the Municipal
Trial Court in Cities, Davao City, Branch 3. The CSC Regional Office in Davao City
discovered that a certain Julaton submitted her application to take the Civil Service

94
Professional Examination in 1989 but the picture on the application form and on the
Picture Seat Plan did not resemble the picture appearing on the appointment of Julaton.
The signature of Julaton affixed to the examination documents did not match the
signature on her PDS. The case was referred to the Office of the Court Administrator
which recommended that Julaton and Tapic be held liable as charged. This Court
dismissed Julaton from the service, with forfeiture of all retirement benefits while Tapic,
who had resigned, was fined P25,000 and his retirement benefits were ordered forfeited.
Likewise, in Civil Service Commission v. Sta. Ana, the CSC formally charged
Zenaida Sta. Ana (Sta. Ana), Court Stenographer I of the Municipal Circuit Trial Court of
Quezon-Licab, Nueva Ecija with dishonesty, grave misconduct, and conduct prejudicial
to the best interest of the service for misrepresenting that she took and passed the CSPECAT when in truth and in fact, someone else took the examinations for her. The CSC
found that the picture and signature in Sta. Anas PDS were different from those
appearing in her application form and in the Picture Seat Plan. Upon the
recommendation of the Office of the Court Administrator, this Court found Sta. Ana
guilty of dishonesty and dismissed her from the service with forfeiture of retirement
benefits.
In the Julaton and Sta. Ana cases, the CSC recognized the disciplinary jurisdiction
of the Supreme Court over court personnel. This is consonant with Section 6, Article VIII
of the 1987 Constitution vesting in the Supreme Court administrative supervision over all
courts and the personnel thereof, thus:
Sec. 6. The Supreme Court shall have administrative supervision
over all courts and the personnel thereof.
By virtue of this power, it is only the Supreme Court that can oversee the judges
and court personnels administrative compliance with all laws, rules and regulations. No
other branch of government may intrude into this power, without running afoul of the
doctrine of separation of powers. This we have ruled in Maceda v. Vasquez and have
reiterated in the case of Ampong v. Civil Service Commission. In Ampong, we also
emphasized that in case of violation of the Civil Service Law by a court personnel, the
standard procedure is for the CSC to bring its complaint against a judicial employee
before the Office of the Court Administrator of the Supreme Court.
The CSC contends that respondent is now estopped from assailing the jurisdiction
of the CSC when he voluntarily submitted himself to the CSC-NCR and was accorded
due process, citing the Ampong case.
In Ampong, petitioner in that case admitted her guilt. She voluntarily went to the
CSC regional office, admitted to the charges leveled against her and waived her right to
the assistance of counsel. She was given ample opportunity to present her side and
adduce evidence in her defense before the CSC. She filed her answer to the charges
against her and even moved for a reconsideration of the adverse ruling of the CSC. In
short, Ampong did not question the authority of the CSC and, in fact, actively
participated in the proceedings before it.

95
In the present case, while respondent may have filed his Answer to the formal
charge of dishonesty after having been directed to do so, he denied having taken the civil
service examination and did not even appear at the formal investigation conducted by the
CSC-NCR. He appealed to the CSC after the adverse decision of the CSC-NCR was
rendered but raised the issue of lack of jurisdiction over his person. He argued that as an
employee in the Judiciary, the jurisdiction to hear disciplinary action against him vests
with the Sandiganbayan or the Supreme Court. It cannot therefore be said that he was
estopped from assailing the jurisdiction of the CSC.
This notwithstanding, we reiterate that we will not and cannot tolerate dishonesty
for the judiciary expects the highest standard of integrity from all its employees. The
conduct and behavior of everyone connected with an office charged with the dispensation
of justice is circumscribed with a heavy burden or responsibility. The Court will not
hesitate to rid its ranks of undesirables.
Petition denied but the Civil Service Commission is directed to refer the case of
respondent Herminigildo L. Andal to the Office of the Court Administrator, for the filing
of the appropriate administrative case against him.
Whether the constitutional prohibition on
the President to make appointments
under Section 15, Art. VII extends to the
Judiciary,
particularly
to
the
appointment of the Chief Justice.
ARTURO DE CASTRO VS. JUDICIAL AND BAR
COUNCIL, G.R. No. 191032, March 17, 2010
BERSAMIN, J.:
ISSUES:
May the incumbent President appoint the successor of Chief Justice Reynato
Puno when he retires on May 17, 2010, considering that Section 15, Article VII
(Executive Department) of the Constitution prohibits the President or Acting President
from making appointments within two months immediately before the next presidential
elections and up to the end of his term, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or endanger
public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department)
of the Constitution, which provides that any vacancy in the Supreme Court shall be filled
within 90 days from the occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the process of screening the
candidates nominated or being considered to succeed Chief Justice Puno, and submit the
list of nominees to the incumbent President even during the period of the prohibition
under Section 15, Article VII? Does mandamus lie to compel the submission of the
shortlist of nominees by the JBC?

96
The main question presented in all the filings herein because it involves two
seemingly conflicting provisions of the Constitution imperatively demands the attention
and resolution of this Court, the only authority that can resolve the question definitively
and finally. The imperative demand rests on the ever-present need, first, to safeguard the
independence, reputation, and integrity of the entire Judiciary, particularly this Court, an
institution that has been unnecessarily dragged into the harsh polemics brought on by the
controversy; second, to settle once and for all the doubt about an outgoing Presidents
power to appoint to the Judiciary within the long period starting two months before the
presidential elections until the end of the presidential term; and third, to set a definite
guideline for the JBC to follow in the discharge of its primary office of screening and
nominating qualified persons for appointment to the Judiciary.
HELD:
a. On the personality to sue of petitioners:
The Court rules that the petitioners have each demonstrated adequate interest in
the outcome of the controversy as to vest them with the requisite locus standi. The issues
before us are of transcendental importance to the people as a whole, and to the petitioners
in particular. Indeed, the issues affect everyone (including the petitioners), regardless of
ones personal interest in life, because they concern that great doubt about the authority
of the incumbent President to appoint not only the successor of the retiring incumbent
Chief Justice, but also others who may serve in the Judiciary, which already suffers from
a far too great number of vacancies in the ranks of trial judges throughout the country.
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel
the doubt now in order to remove any obstacle or obstruction to the resolution of the
essential issue squarely presented herein. We are not to shirk from discharging our
solemn duty by reason alone of an obstacle more technical than otherwise. In Agan, Jr. v.
Philippine International Air Terminals Co., Inc., we pointed out: Standing is a peculiar
concept in constitutional law because in some cases, suits are not brought by parties who
have been personally injured by the operation of a law or any other government act but
by concerned citizens, taxpayers or voters who actually sue in the public interest. But
even if, strictly speaking, the petitioners are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions raised.
b. Prohibition under Section 15, Article
VII does not apply to appointments to fill
a vacancy in the Supreme Court or to
other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting President
shall not make appointments, except temporary appointments to executive

97
positions when continued vacancies therein will prejudice public service
or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any vacancy shall
be filled within ninety days from the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano,
Tolentino and Inting, submit that the incumbent President can appoint the successor of
Chief Justice Puno upon his retirement on May 17, 2010, on the ground that the
prohibition against presidential appointments under Section 15, Article VII does not
extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal
that the framers devoted time to meticulously drafting, styling, and arranging the
Constitution. Such meticulousness indicates that the organization and arrangement of the
provisions of the Constitution were not arbitrarily or whimsically done by the framers,
but purposely made to reflect their intention and manifest their vision of what the
Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation of
the awesome powers of government among the three great departments, the Legislative
(Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The
arrangement was a true recognition of the principle of separation of powers that underlies
the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy
member of the Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for the
separation of powers in government because we believe that the only way
to protect freedom and liberty is to separate and divide the awesome
powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments.
As can be seen, Article VII is devoted to the Executive Department, and, among
others, it lists the powers vested by the Constitution in the President. The presidential
power of appointment is dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and Section
9 of this Article are the provisions specifically providing for the appointment of Supreme
Court Justices. In particular, Section 9 states that the appointment of Supreme Court
Justices can only be made by the President upon the submission of a list of at least three

98
nominees by the JBC; Section 4(1) of the Article mandates the President to fill the
vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could have
explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made explicit in
Section 15, Article VII as being equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or
Acting President making appointments within two months before the next presidential
elections and up to the end of the Presidents or Acting Presidents term does not refer to
the Members of the Supreme Court.
Although Valenzuela came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the confirmation made to the
JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former
member of the Constitutional Commission, about the prohibition not being intended to
apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly
mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of
Section 4 (1), Article VIII, viz:
V

. Intent of the Constitutional Commission

The journal of the Commission which drew up the present

Constitution discloses that the original proposal was to have an elevenmember Supreme Court. Commissioner Eulogio Lerum wanted to increase
the number of Justices to fifteen. He also wished to ensure that that
number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy must be
filled within two months from the date that the vacancy occurs. His
proposal to have a 15-member Court was not initially adopted. Persisting
however in his desire to make certain that the size of the Court would not
be decreased for any substantial period as a result of vacancies, Lerum
proposed the insertion in the provision (anent the Courts membership) of
the same mandate that IN CASE OF ANY VACANCY, THE SAME
SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE
THEREOF. He later agreed to suggestions to make the period three,
instead of two, months. As thus amended, the proposal was approved. As
it turned out, however, the Commission ultimately agreed on a fifteenmember Court. Thus it was that the section fixing the composition of
the Supreme Court came to include a command to fill up any vacancy
therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any
vacancy shall be filled within ninety days (in the last sentence of

99
Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15,
Article VII, which is couched in stronger negative language - that a
President or Acting President shall not make appointments
The commission later approved a proposal of Commissioner Hilario
G. Davide, Jr. (now a Member of this Court) to add to what is now Section
9 of Article VIII, the following paragraph: WITH RESPECT TO
LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION
OF THE LIST (of nominees by the Judicial and Bar Council to the
President). Davide stated that his purpose was to provide a uniform rule
for lower courts. According to him, the 90-day period should be counted
from submission of the list of nominees to the President in view of the
possibility that the President might reject the list submitted to him and the
JBC thus need more time to submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives
the President of his appointing power two months immediately before
the next presidential elections up to the end of his term - was approved
without discussion.
However, the reference to the records of the Constitutional Commission did not
advance or support the result in Valenzuela. Far to the contrary, the records disclosed the
express intent of the framers to enshrine in the Constitution, upon the initiative of
Commissioner Eulogio Lerum, a command [to the President] to fill up any vacancy
therein within 90 days from its occurrence, which even Valenzuela conceded. The
exchanges during deliberations of the Constitutional Commission on October 8, 1986
further show that the filling of a vacancy in the Supreme Court within the 90-day period
was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme
Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection
reads: Any vacancy shall be filled within ninety days from the
occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the
vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact
that in the past 30 years, seldom has the Court had a complete
complement.

100
Moreover, the usage in Section 4(1), Article VIII of the word shall an
imperative, operating to impose a duty that may be enforced should not be disregarded.
Thereby, Sections 4(1) imposes on the President the imperative duty to make an
appointment of a Member of the Supreme Court within 90 days from the occurrence of
the vacancy. The failure by the President to do so will be a clear disobedience to the
Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill
the vacancy in the Supreme Court was undoubtedly a special provision to establish a
definite mandate for the President as the appointing power, and cannot be defeated by
mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII
prevailed because it was couched in stronger negative language. Such interpretation
even turned out to be conjectural, in light of the records of the Constitutional
Commissions deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted.
According to an authority on statutory construction:
xxx the court should seek to avoid any conflict in the provisions of
the statute by endeavoring to harmonize and reconcile every part so that
each shall be effective. It is not easy to draft a statute, or any other writing
for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its entirety, what
appears to be on its face a conflict may be cleared up and the provisions
reconciled.
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or provision
meaningless because of inconsistency. But a word should not be given
effect, if to do so gives the statute a meaning contrary to the intent of the
legislature. On the other hand, if full effect cannot be given to the words of
a statute, they must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized at a sacrifice
of the legislative intention. It may be that two provisions are
irreconcilable; if so, the one which expresses the intent of the law-makers
should control. And the arbitrary rule has been frequently announced that
where there is an irreconcilable conflict between the different provisions
of a statute, the provision last in order of position will prevail, since it is
the latest expression of the legislative will. Obviously, the rule is subject
to deserved criticism. It is seldom applied, and probably then only where
an irreconcilable conflict exists between different sections of the same act,
and after all other means of ascertaining the meaning of the legislature
have been exhausted. Where the conflict is between two statutes, more
may be said in favor of the rules application, largely because of the
principle of implied repeal.

101
In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela
is timely and appropriate. Valenzuela arbitrarily ignored the express intent of the
Constitutional Commission to have Section 4 (1), Article VIII stand independently of any
other provision, least of all one found in Article VII. It further ignored that the two
provisions had no irreconcilable conflict, regardless of Section 15, Article VII being
couched in the negative. As judges, we are not to unduly interpret, and should not accept
an interpretation that defeats the intent of the framers.
Consequently, prohibiting the incumbent President from appointing a Chief Justice
on the premise that Section 15, Article VII extends to appointments in the Judiciary
cannot be sustained. A misinterpretation like Valenzuela should not be allowed to last
after its false premises have been exposed. It will not do to merely distinguish Valenzuela
from these cases, for the result to be reached herein is entirely incompatible with what
Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the
dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in
the Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15
as part of Article VII was to eliminate midnight appointments from being made by an
outgoing Chief Executive in the mold of the appointments dealt with in the leading case
of Aytona v. Castillo. In fact, in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two
types of appointments: (1) those made for buying votes and (2) those made
for partisan considerations. The first refers to those appointments made
within the two months preceding a Presidential election and are similar to
those which are declared election offenses in the Omnibus Election Code,
viz.:
xxx

The second type of appointments prohibited by Section 15, Article

VII consists of the so-called midnight appointments. In Aytona v.
Castillo, it was held that after the proclamation of Diosdado Macapagal as
duly elected President, President Carlos P. Garcia, who was defeated in his
bid for reelection, became no more than a caretaker administrator whose
duty was to prepare for the orderly transfer of authority to the incoming
President. Said the Court:
The filling up of vacancies in important positions, if few,
and so spaced as to afford some assurance of deliberate
action and careful consideration of the need for the
appointment and appointee's qualifications may undoubtedly

102
be permitted. But the issuance of 350 appointments in one
night and the planned induction of almost all of them in a few
hours before the inauguration of the new President may, with
some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a
mere partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding
appointments.
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made even after the
proclamation of the new President. Such appointments, so long as they
are few and so spaced as to afford some assurance of deliberate
action and careful consideration of the need for the appointment and
the appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by President Garcia,
which were shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona
ruling. It may not unreasonably be deemed to contemplate not only
midnight appointments those made obviously for partisan reasons
as shown by their number and the time of their making but also
appointments presumed made for the purpose of influencing the
outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article
VII allowing appointments to be made during the period of the ban
therein provided is much narrower than that recognized in Aytona. The
exception allows only the making of temporary appointments to executive
positions when continued vacancies will prejudice public service or
endanger public safety. Obviously, the article greatly restricts the
appointing power of the President during the period of the ban.
Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power of
appointment, it is this Courts view that, as a general proposition, in case
of conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Temporary
vacancies can abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six years.
Moreover, those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent
in their effects. They may, as earlier pointed out, in fact influence the
results of elections and, for that reason, their making is considered an
election offense.

103
Given the background and rationale for the prohibition in Section 15, Article VII,
we have no doubt that the Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The framers did not need to extend the
prohibition to appointments in the Judiciary, because their establishment of the JBC and
their subjecting the nomination and screening of candidates for judicial positions to the
unhurried and deliberate prior process of the JBC ensured that there would no longer be
midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona
were made in haste and with irregularities, or made by an outgoing Chief Executive in the
last days of his administration out of a desire to subvert the policies of the incoming
President or for partisanship, the appointments to the Judiciary made after the
establishment of the JBC would not be suffering from such defects because of the JBCs
prior processing of candidates. Indeed, it is axiomatic in statutory construction that the
ascertainment of the purpose of the enactment is a step in the process of ascertaining the
intent or meaning of the enactment, because the reason for the enactment must
necessarily shed considerable light on the law of the statute, i.e., the intent; hence, the
enactment should be construed with reference to its intended scope and purpose, and the
court should seek to carry out this purpose rather than to defeat it.
Also, the intervention of the JBC eliminates the danger that appointments to the
Judiciary can be made for the purpose of buying votes in a coming presidential election,
or of satisfying partisan considerations. The experience from the time of the
establishment of the JBC shows that even candidates for judicial positions at any level
backed by people influential with the President could not always be assured of being
recommended for the consideration of the President, because they first had to undergo the
vetting of the JBC and pass muster there. Indeed, the creation of the JBC was precisely
intended to de-politicize the Judiciary by doing away with the intervention of the
Commission on Appointments. This insulating process was absent from the Aytona
midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to
appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado
to the JBC itself when it met on March 9, 1998 to discuss the question raised by some
sectors about the constitutionality of xxx appointments to the Court of Appeals in light
of the forthcoming presidential elections. He assured that on the basis of the
(Constitutional) Commissions records, the election ban had no application to
appointments to the Court of Appeals. This confirmation was accepted by the JBC,
which then submitted to the President for consideration the nominations for the eight
vacancies in the Court of Appeals.
The fault of Valenzuela was that it accorded no weight and due consideration to
the confirmation of Justice Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than on the deliberations of the
Constitutional Commission. Much of the unfounded doubt about the Presidents power to
appoint during the period of prohibition in Section 15, Article VII could have been
dispelled since its promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished member of the
Constitutional Commission like Justice Regalado.

104
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and
Section 16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke
appointments made by an Acting President, and evidently refers only to appointments in
the Executive Department. It has no application to appointments in the Judiciary, because
temporary or acting appointments can only undermine the independence of the Judiciary
due to their being revocable at will. The letter and spirit of the Constitution safeguard that
independence. Also, there is no law in the books that authorizes the revocation of
appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges
of the first and second level courts and the Justices of the third level courts may only be
removed for cause, but the Members of the Supreme Court may be removed only by
impeachment.
Section 14, Section 15, and Section 16 are obviously of the same character, in that
they affect the power of the President to appoint. The fact that Section 14 and Section 16
refer only to appointments within the Executive Department renders conclusive that
Section 15 also applies only to the Executive Department. This conclusion is consistent
with the rule that every part of the statute must be interpreted with reference to the
context, i.e. that every part must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment. It is absurd to assume that the
framers deliberately situated Section 15 between Section 14 and Section 16, if they
intended Section 15 to cover all kinds of presidential appointments. If that was their
intention in respect of appointments to the Judiciary, the framers, if only to be clear,
would have easily and surely inserted a similar prohibition in Article VIII, most likely
within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to
appointments to the Judiciary further undermines the intent of the Constitution of
ensuring the independence of the Judicial Department from the Executive and Legislative
Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes
or misfortunes of political leaders vying for the Presidency in a presidential election.
Consequently, the wisdom of having the new President, instead of the current incumbent
President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial
independence, because the appointee can also become beholden to the appointing
authority. In contrast, the appointment by the incumbent President does not run the same
risk of compromising judicial independence, precisely because her term will end by June
30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the
incumbent President to appoint during the prohibition period the successor of Chief
Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will
still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy

occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the need to
apply Section 4(1) to every situation of a vacancy in the Supreme Court.

105
The argument also rests on the fallacious assumption that there will still be time
remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily
demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second
Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the
latest. If the regular presidential elections are held on May 8, the period of the prohibition
is 115 days. If such elections are held on May 14, the period of the prohibition is 109
days. Either period of the prohibition is longer than the full mandatory 90-day period to
fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions
(i.e., the difference between the shortest possible period of the ban of 109 days and the
90-day mandatory period for appointments) in which the outgoing President would be in
no position to comply with the constitutional duty to fill up a vacancy in the Supreme
Court. It is safe to assume that the framers of the Constitution could not have intended
such an absurdity. In fact, in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers
neither discussed, nor mentioned, nor referred to the ban against midnight appointments
under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did
not need to, because they never intended Section 15, Article VII to apply to a vacancy in
the Supreme Court, or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on
whether a JBC list is necessary at all for the President any President to appoint a
Chief Justice if the appointee is to come from the ranks of the sitting justices of the
Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by
the President from a list of at least three nominees prepared by the Judicial
and Bar Council for any vacancy. Such appointments need no
confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court from
the outside, that is, a non-member of the Court aspiring to become one. It speaks of
candidates for the Supreme Court, not of those who are already members or sitting
justices of the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as
Chief Justice?
The question is not squarely before us at the moment, but it should lend itself to a
deeper analysis if and when circumstances permit. It should be a good issue for the
proposed Constitutional Convention to consider in the light of Senate President Juan
Ponce Enriles statement that the President can appoint the Chief Justice from among the
sitting justices of the Court even without a JBC list.

106
The Decision therefore Grants the petition in A.M. No. 10-2-5-SC and,
accordingly, directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the
vacancy to be created by the compulsory retirement of Chief Justice
Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the
position of Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill
other vacancies in the Judiciary and submit to the President the short
list of nominees corresponding thereto in accordance with this
decision.
Power of the COMELEC to declare a failure of elections.

ABDUL GAFFAR DIBARATUN VS.

COMELEC, G.R. No. 170365, February 2, 2010
This is a petition for certiorari of the Resolution of the Commission on Elections
(COMELEC) en banc dated October 17, 2005 in SPA No. 02-481, which declared a
failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid, Municipality of
Tugaya, Lanao del Sur and annulled the proclamation of petitioner Abdul Gaffar P.M.
Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15,
2002 Synchronized Barangay and Sangguniang Kabataan Elections.
The facts are as follows:
Respondent Abdulcarim Mala Abubakar, a re-electionist candidate for the
position of Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur, filed a
petition before the COMELEC to declare a failure of elections in Precinct No. 6A/7A,
Barangay Bagoainguid, Tugaya, Lanao del Sur and to annul the proclamation of
petitioner Abdul Gaffar P.M. Dibaratun as the duly elected Punong Barangay of
Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang
Kabataan Elections.
In his petition, respondent Abubakar alleged:
3. That on July 15, 2002 at around 10:30 o clock in the morning, the
casting of votes in the above named precinct was commenced at its
designated Polling Place in Cayagan Elementary School and while
only ten (10) voters had actually voted, a certain ALIPECRY ACOP
GAFFAR, who is the son of respondent Punong Barangay candidate
ABDULGAFFAR DIBARATUN got inside the polling place and was

107
caught in possession of Three (3) filled up ballots where candidate
ABDULGAFFAR DIBARATUN were voted which he wanted to
place or insert inside the ballot box for official (sic).
4. That when said ALIPECRY GAFFAR was confronted by the
petitioners watcher and other watchers confronted him of said official
ballots, he got mad and flared up and committed violence which
disrupted and stopped the casting of votes and because of the
commotion, the chairman left the ballot box which was held by the
companions of Alipecry Acop Gaffar and destroyed the said ballot
box, took the official ballot contained therein and inserted, placed
therein a bundle of substituted ballots.
5.

That due to the facts adverted to above, the casting of votes was
stopped and it was never resumed nor continued. Only Ten (10)
voters had actually voted out of One Hundred Fifty One (151)
registered voters.

6.

That even candidates for Barangay Chairmen and Barangay Kagawad

were unable to cast their votes because the casting of votes was
illegally disturbed, disrupted, interrupted and stopped by Alipecry
Acop Gaffar despite the presence of numerous registered voters
ready to cast their votes.
x x x x

9. The Election Officer knowing fully that there was really a failure of
election in the said precinct recommended that a special election be
called for the said precinct.
10. That unknown to the petitioner, the respondent Board of Election
Inspectors, in conspiracy and connivance with respondent
Abdulgaffar Dibaratun, surreptitiously and clandestinely canvassed
the election returns and then illegally proclaimed the respondent
Abdulgaffar Dibaratun and issued Certificate of Canvass of Votes and
Proclamation of Winning Candidates dated July 16, 2002 which was
ant[e]dated xerox copy of which is hereto attached as Annex C
hereof.
Respondents therein filed their Answer denying the allegations of herein private
respondent. They contended that as 10 voters had actually voted, there was no failure of
elections in the aforementioned precinct. They further contended that the petition was
filed out of time.
In the Resolution dated October 17, 2005, the COMELEC en banc granted the
petition, the dispositive portion of which reads:

108
WHEREFORE, premises considered, the Commission (en banc)
RESOLVED, as it hereby RESOLVES, to GIVE DUE COURSE to the
instant petition.
ACCORDINGLY, the proclamation of respondent Abdulgaffar
P.M. Dibaratun as the duly elected Punong Barangay of Barangay
Bagoainguid, Tugaya, Lanao del Sur is hereby ANNULLED and he is
thus ORDERED to CEASE AND DESIST from exercising the powers and
responsibilities of the said office. Pending the conduct of the special
elections yet to be scheduled by this Commission and until no Punong
Barangay has been duly elected and qualified, the incumbent Punong
Barangay shall continue to exercise the powers and duties of such office in
a hold-over capacity in accordance with Section 5 of R.A. No. 9164 (An
Act Providing for Synchronized Barangay and Sangguniang Kabataan
Elections, Amending Republic Act No. 7160, As Amended, Otherwise
Known as The Local Government Code of 1991, and For Other
Purposes).
Let the Office of the Deputy Executive Director for Operations
(ODEDO), this Commission, furnish a copy of this Resolution to the
Provincial Election Supervisor of Lanao del Sur for the implementation of
the same upon its finality.
I S S U E:
The main issue is whether or not the COMELEC en banc committed grave abuse
of discretion amounting to lack or excess of jurisdiction in declaring a failure of elections
in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and in annulling
the proclamation of petitioner as the elected Punong Barangay.
The petition is unmeritorious.
The 1987 Constitution vests in the COMELEC the broad power to enforce all the
laws and regulations relative to the conduct of elections, as well as the plenary authority
to decide all questions affecting elections except the question as to the right to vote.

Section 6 of the Omnibus Election Code provides for the instances when the
COMELEC may declare failure of elections, thus:
SEC. 6. Failure of election. If, on account of force majeure,
violence, terrorism, fraud, or other analogous causes the election in any
polling place has not been held on the date fixed, or had been suspended
before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election results in a

109
failure to elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall, on
the basis of a verified petition by any interested party and after due notice
and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close
to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause
of such postponement or suspension of the election or failure to elect.
In its Resolution, the COMELEC en banc, citing Banaga, Jr. v. Commission on
Elections, enumerated the three instances when a failure of elections may be declared by
the Commission:
(1) the election in any polling place has not been held on the date fixed
on account of force majeure, violence, terrorism, fraud or other
analogous causes;
(2) the election in any polling place had been suspended before the
hour fixed by law for the closing of the voting on account of force
majeure, violence, terrorism, fraud or other analogous causes; or
(3) after the voting and during the preparation and transmission of the
election returns or in the custody or canvass thereof, such election
results in a failure to elect on account of force majeure, violence,
terrorism, fraud or other analogous causes.
The COMELEC en banc based its decision to declare a failure of elections in
Precinct No. 6A/7A on the second instance stated in Section 6 of the Omnibus Election
Code, that is, the election in any polling place had been suspended before the hour fixed
by law for the closing of the voting on account of force majeure, violence, terrorism,
fraud or other analogous causes.
The COMELEC en banc held that in this case, it was undisputed that after only
10 registered voters cast their votes, the voting was suspended before the hour fixed by
law by reason of violence. This was supported by the affidavits submitted by both
petitioner and private respondent, who only disagreed as to the perpetrator of the violence
as each party blamed the other party.
The findings of fact of the COMELEC en banc are binding on this Court. The
grounds for failure of election (i.e., force majeure, violence, terrorism, fraud, or other
analogous cases) involve questions of fact, which can only be determined by the
COMELEC en banc after due notice to and hearing of the parties. An application for
certiorari against actions of the COMELEC is confined to instances of grave abuse of
discretion, amounting to lack or excess of jurisdiction. The COMELEC, as the
administrative agency and specialized constitutional body charged with the enforcement
and administration of all laws and regulations relative to the conduct of an election,

110
plebiscite, initiative, referendum, and recall, has the expertise in its field so that its
findings and conclusions are generally respected by and conclusive on the Court.
Thus, the Court agrees with the COMELEC that the elections in Precinct No.
6A/7A were suspended before the hour fixed by law for the closing of the voting due to
violence. Only 10 voters were able to cast their votes out of 151 registered voters; hence,
the votes not cast would have affected the result of the elections. The concurrence of
these two conditions caused the COMELEC en banc to declare a failure of elections.
When there is failure of elections, the COMELEC is empowered to annul the elections
and to call for special elections. Public respondent, therefore, did not commit grave abuse
of discretion in its resolution of the case.
Whether the COMELEC EN BANC may
directly review the Decision of RTC in
connection with the election of a
Municipal Mayor with a division of the
COMELEC first deciding the same.
SANDRA ERIGUEL VS. COMELEC and MA.
THERESA DUMPIT-MICHELENA, G.R. No. 190526,
February 26, 2010
VILLARAMA, JR., J.:
ISSUES:
May a division of the Commission on Elections (COMELEC) elevate an appeal to
the Commission en banc without first resolving it for lack of quorum because other
members inhibited themselves? And in connection with the said appeal, may the
COMELEC en banc legally proceed with a fresh appreciation of the contested ballots
without first ascertaining that the same have been kept inviolate?
FACTS:
Petitioner Sandra Eriguel (Eriguel) and private respondent Ma. Theresa DumpitMichelena (Dumpit) were mayoralty candidates in Agoo, La Union during the May 14,
2007 elections.
On May 18, 2007, after the canvassing and counting of votes, Eriguel was
proclaimed as the duly elected mayor of the Municipality of Agoo. Eriguel received
11,803 votes against Dumpits 7,899 votes, translating to a margin of 3,904 votes.
On May 28, 2007, Dumpit filed an Election Protest Ad Cautelam before the
Regional Trial Court (RTC) of Agoo, La Union contesting the appreciation and counting
of ballots in 152 precincts in Agoo. Dumpit alleged that some of the ballots cast in favor

111
of Eriguel were erroneously counted and appreciated in the latters favor despite
containing markings and identical symbols. Dumpit also alleged that while a number of
ballots containing Eriguels name were written by only one (1) person, the same were
still counted in the latters favor.
Initially, the RTC dismissed the election protest on May 31, 2007 due to Dumpits
failure to specify the number of votes credited to the parties per proclamation as required
by Section 11(c), Rule 2 of A.M. No. 07-4-15-SC. The protest was, however, reinstated
following Dumpits filing of a motion for reconsideration.
Preliminary conference was then conducted on June 15, 2007. Revision of ballots
followed shortly thereafter and was completed on July 18, 2007. The results of the
revision showed that Eriguel had 11,678 votes against Dumpits 7,839 votes, or a lead of
3,839 votes.
On Dumpits motion, the RTC conducted a technical examination of the ballots.
Senior Document Examiner Antonio Magbojos of the National Bureau of Investigation
(NBI) Questioned Documents Division conducted the technical examination for Dumpit,
while Chief Inspector Jose Wacangan of the Regional Crime Laboratory Office No.1 of
the Philippine National Police (PNP) conducted the examination for Eriguel. Eight (8)
other witnesses for Dumpit also testified during the trial.
On December 7, 2007, the trial court issued a decision upholding
Eriguels proclamation.
Unsatisfied with the findings, Dumpit appealed to the COMELEC. The case was
docketed as EAC No. A-01-2008, and was initially assigned to the Special Second
Division composed of Presiding Commissioner Rene V. Sarmiento and Commissioner
Nicodemo T. Ferrer. Commissioner Ferrer, however, decided to inhibit himself. This
prompted Presiding Commissioner Sarmiento to issue an Order dated July 22, 2009
elevating the appeal to the Commission en banc. The transfer of the case to the
Commission en banc was apparently made pursuant to Section 5(b), Rule 3 of the
COMELEC Rules of Procedure, which states,
SEC. 5. Quorum; Votes Required. (a) x x x
(b) When sitting in Divisions, two (2) Members of a Division shall
constitute a quorum to transact business. The concurrence of at least two
(2) Members of a Division shall be necessary to reach a decision,
resolution, order or ruling. If this required number is not obtained, the case
shall be automatically elevated to the Commission en banc for decision or
resolution.
Thereafter, the Commission en banc proceeded to conduct a fresh appreciation of
the contested ballots. On December 9, 2009, after an exhaustive appreciation of all the
contested ballots, the Commission en banc promulgated a resolution nullifying 3,711
ballots cast in favor of Eriguel after finding the same to have been written by only one (1)
or two (2) persons. The following figures were thus derived:

112

Total number of votes per physical count after revision

ADD claimed/credited ballots
LESS ballots INVALIDATED after appreciation
Total No. of votes AFTER Comelec appreciation

Dumpit
7,839
35
14
7,860

Eriguel
11,678
41
4,026
7,693

On this note, the Commission en banc set aside the RTCs decision and declared
Dumpit as the duly elected mayor of Agoo, La Union, for having garnered 167 more
votes than Eriguel.
HELD:
Eriguel essentially raises the following two issues: (1) procedurally, whether the
Special Second Division of the COMELEC gravely abused its authority when it
automatically elevated Dumpits appeal to the Commission en banc after only one
commissioner was left to deal with the case; and (2) substantively, whether the
COMELEC en bancs fresh appreciation of the contested ballots without first
ascertaining the integrity thereof violated the doctrine enunciated in Rosal v. Commission
on Elections.
We find the petition meritorious.
I.

Automatic elevation of the appeal to the Commission en banc is invalid

The COMELEC, in the exercise of its quasi-judicial functions, is bound to follow

the provision set forth in Section 3, Article IX-C of the 1987 Constitution, which reads:
SEC. 3. The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to expedite
disposition of election cases, including pre-proclamation controversies.
All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decisions shall be
decided by the Commission en banc.
It therefore follows that when the COMELEC is exercising its quasi-judicial
powers such as in the present case, the Commission is constitutionally mandated to
decide the case first in division, and en banc only upon motion for reconsideration.
Indeed, it is a basic doctrine in procedural law that the jurisdiction of a court or an
agency exercising quasi-judicial functions (such as the COMELEC) over the subjectmatter of an action is conferred only by the Constitution or by law. Jurisdiction cannot
be fixed by the agreement of the parties; it cannot be acquired through, or waived,
enlarged or diminished by, any act or omission of the parties. Neither can it be conferred

113
by the acquiescence of the court, more particularly so in election cases where the interest
involved transcends those of the contending parties.
This being so, the Special Second Division of the COMELEC clearly acted with
grave abuse of discretion when it immediately transferred to the Commission en banc a
case that ought to be heard and decided by a division. Such action cannot be done
without running afoul of Section 3, Article IX-C of the 1987 Constitution. Instead of
peremptorily transferring the case to the Commission en banc, the Special Second
Division of COMELEC, should have instead assigned another Commissioner as
additional member of its Special Second Division, not only to fill in the seat temporarily
vacated by Commissioner Ferrer, but more importantly so that the required quorum may
be attained.
Emphasis must be made that it is the COMELEC division that has original
appellate jurisdiction to resolve an appeal to an election protest decided by a trial court.
Conclusively, the Commission en banc acted without jurisdiction when it heard and
decided Dumpits appeal.
II.

The COMELEC cannot proceed to conduct a fresh appreciation of

ballots without first ascertaining the integrity thereof

The records of the case also indicate that the COMELEC en banc proceeded to
conduct a fresh appreciation of the contested ballots without first ascertaining whether the
ballots to be recounted had been kept inviolate. This lackadaisical and flawed procedure
on the part of the COMELEC is further highlighted by the fact that as early as August 10,
2009, COMELEC Chairman Jose A.R. Melo has already issued an order to the
Commissions Law Department to investigate why some election returns in La Union
were missing, while some of the ballot boxes appeared to have been tampered with.
On December 4, 2009, Eriguel even filed an omnibus motion expressing concern
over the discovery and praying that she be informed of the status of the investigation in
order to ensure that the ballots being appreciated by the Commission at that time were
still the same ballots that had been cast by the electorate of Agoo. The motion, however,
remained unresolved as the Commission en banc proceeded with the appreciation of
ballots and, eventually, promulgated the assailed Resolution five (5) days thereafter.
Under such circumstances, the question as to who between the parties was duly
elected mayor of Agoo, La Union still cannot be settled without conducting proper
proceedings in the COMELEC. Therefore, we are left with no other recourse but to set
aside the assailed Resolution for being both procedurally and substantively infirm.
Accordingly, the COMELEC is hereby ordered to re-raffle and assign the case to
one (1) of its divisions, and to issue an order that an additional member be appointed to
the assigned division should it later on be determined that the required quorum still could
not be attained. Since the custody of the ballot boxes has already been transferred to the
COMELEC, the COMELEC division to which the case shall be assigned must, prior to
proceeding with a fresh appreciation of the ballots, determine whether the ballot boxes
for the Municipality of Agoo sufficiently retained their integrity as to justify the

114
conclusion that the ballots contained therein could be relied on as better evidence than the
election returns. The COMELEC division shall also determine which ballot boxes in the
said municipality were in such a condition as would afford reasonable opportunity for
unauthorized persons to gain unlawful access to their contents. Should it be found that
there are such ballot boxes, the ballots contained therein shall be held to have lost all
probative value and should not be used to set aside the official count in the election
returns, following our ruling in Rosal.
We likewise remind the COMELEC to be more prudent and circumspect in
resolving election protests by following the proper procedure, whether in the exercise of
its original or appellate jurisdiction, in order not to frustrate the true will of the electorate.
Otherwise, the very foundation of our democratic processes may just as well be easily
and expediently compromised.
WHEREFORE, the instant petition is GRANTED. The Resolution dated
December 9, 2009 of the Commission on Elections en banc in EAC No. A-01-2008 is
hereby declared NULL and VOID. The Commission on Elections is hereby DIRECTED
to re-raffle and assign the case to one (1) of its divisions, and to proceed with the
resolution of the case with utmost dispatch. To this end, it shall:
(1)

identify which of the ballot boxes were otherwise preserved with such
substantial compliance with statutory safety measures as to preclude
reasonable opportunity for tampering with their contents. The ballots from
these precincts shall be deemed to have retained their integrity in the absence
of evidence to the contrary and the Commission on Elections may consider
them in the recount; and

(2) ascertain which of the ballot boxes were found in such a condition as would
afford reasonable opportunity for unauthorized persons to gain unlawful
access to their contents. The Commission on Elections shall exclude from the
recount the ballots from these boxes and shall rely instead on the official
count as stated in the election returns.
Requisites for the creation of a province
from another province, i.e., Province of
Dinagat Islands. Income, population and
land area.
RODOLFO NAVARRO VS. ERMITA, G.R. NO.
180050, FEBRUARY 10, 2010
This is a petition for certiorari under Rule 65 of the Rules of Court seeking to
nullify Republic Act (R.A.) No. 9355, otherwise known as An Act Creating the Province
of Dinagat Islands, for being unconstitutional.
Petitioners Rodolfo G. Navarro, Victor F. Bernal, and Rene O. Medina aver that
they are taxpayers and residents of the Province of Surigao del Norte. They have served

115
the Province of Surigao del Norte once as Vice- Governor and members of the Provincial
Board, respectively.
They claim to have previously filed a similar petition, which
was dismissed on technical grounds. They allege that the creation of the Dinagat Islands
as a new province, if uncorrected, perpetuates an illegal act of Congress, and unjustly
deprives the people of Surigao del Norte of a large chunk of its territory, Internal
Revenue Allocation and rich resources from the area.
The facts are as follows:
The mother province of Surigao del Norte was created and established under R.A.
No. 2786 on June 19, 1960. The province is composed of three main groups of islands:
(1) the Mainland and Surigao City; (2) Siargao Island and Bucas Grande; and (3)
Dinagat Island, which is composed of seven municipalities, namely, Basilisa, Cagdianao,
Dinagat, Libjo, Loreto, San Jose, and Tubajon.
Based on the official 2000 Census of Population and Housing conducted by the
National Statistics Office (NSO), the population of the Province of Surigao del Norte as
of May 1, 2000 was 481,416, broken down as follows:
Mainland
Surigao City
Siargao Island & Bucas Grande
Dinagat Island

281,111
118,534
93,354
106,951

Under Section 461 of R.A. No. 7610, otherwise known as The Local Government
Code, a province may be created if it has an average annual income of not less than
P20 million based on 1991 constant prices as certified by the Department of
Finance, and a population of not less than 250,000 inhabitants as certified by the
NSO, or a contiguous territory of at least 2,000 square kilometers as certified by the
Lands Management Bureau. The territory need not be contiguous if it comprises
two or more islands or is separated by a chartered city or cities, which do not
contribute to the income of the province.
On April 3, 2002, the Office of the President, through its Deputy Executive
Secretary for Legal Affairs, advised the Sangguniang Panlalawigan of the Province of
Surigao del Norte of the deficient population in the proposed Province of Dinagat
Islands.
In July 2003, the Provincial Government of Surigao del Norte conducted a
special census, with the assistance of an NSO District Census Coordinator, in the
Dinagat Islands to determine its actual population in support of the house bill creating
the Province of Dinagat Islands. The special census yielded a population count of
371,576 inhabitants in the proposed province. The NSO, however, did not certify the
result of the special census. On July 30, 2003, Surigao del Norte Provincial Governor

116
Robert Lyndon S. Barbers issued Proclamation No. 01, which declared as official, for all
purposes, the 2003 Special Census in Dinagat Islands showing a population of 371,576.
The Bureau of Local Government Finance certified that the average annual
income of the proposed Province of Dinagat Islands for calendar year 2002 to 2003
based on the 1991 constant prices was P82,696,433.23. The land area of the proposed
province is 802.12 square kilometers.
On August 14, 2006 and August 28, 2006, the Senate and the House of
Representatives, respectively, passed the bill creating the Province of Dinagat Islands. It
was approved and enacted into law as R.A. No. 9355 on October 2, 2006 by President
Gloria Macapagal-Arroyo.
On December 2, 2006, a plebiscite was held in the mother Province of Surigao
del Norte to determine whether the local government units directly affected approved of
the creation of the Province of Dinagat Islands into a distinct and independent province
comprising the municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San
Jose, and Tubajon. The result of the plebiscite yielded 69,943 affirmative votes and
63,502 negative votes.
On December 3, 2006, the Plebiscite Provincial Board of Canvassers proclaimed
that the creation of Dinagat Islands into a separate and distinct province was ratified and
approved by the majority of the votes cast in the plebiscite.
On January 26, 2007, a new set of provincial officials took their oath of office
following their appointment by President Gloria Macapagal-Arroyo. Another set of
provincial officials was elected during the synchronized national and local elections held
on May 14, 2007. On July 1, 2007, the elected provincial officials took their oath of
office; hence, the Province of Dinagat Islands began its corporate existence.
Petitioners contended that the creation of the Province of Dinagat Islands under
R.A. No. 9355 is not valid because it failed to comply with either the population or land
area requirement prescribed by the Local Government Code.
Petitioners prayed that R.A. No. 9355 be declared unconstitutional, and that all
subsequent appointments and elections to the new vacant positions in the newly created
Province of Dinagat Islands be declared null and void. They also prayed for the return of
the municipalities of the Province of Dinagat Islands and the return of the former districts
to the mother Province of Surigao del Norte.
MAIN ISSUE:
WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING
THE NEW PROVINCE OF DINAGAT ISLANDS, COMPLIED WITH
THE CONSTITUTION AND STATUTORY REQUIREMENTS UNDER
SECTION 461 OF REPUBLIC ACT NO. 7160, OTHERWISE KNOWN
AS THE LOCAL GOVERNMENT CODE OF 1991.

117
Petitioners contend that the proposed Province of Dinagat Islands is not qualified
to become a province because it failed to comply with the land area or the population
requirement, despite its compliance with the income requirement. It has a total land area
of only 802.12 square kilometers, which falls short of the statutory requirement of at
least 2,000 square kilometers. Moreover, based on the NSO 2000 Census of
Population, the total population of the proposed Province of Dinagat Islands is only
106,951, while the statutory requirement is a population of at least 250,000
inhabitants.
Petitioners allege that in enacting R.A. No. 9355 into law, the House of
Representatives and the Senate erroneously relied on paragraph 2 of Article 9 of the
Rules and Regulations Implementing the Local Government Code of 1991, which states
that [t]he land area requirement shall not apply where the proposed province is
composed of one (1) or more islands. The preceding italicized provision contained in
the Implementing Rules and Regulations is not expressly or impliedly stated as an
exemption to the land area requirement in Section 461 of the Local Government Code.
Petitioners assert that when the Implementing Rules and Regulations conflict with the
law that they seek to implement, the law prevails.
First, the Bureau of Local Government Finance certified that the average annual
income of the proposed Province of Dinagat Islands for the years 2002 to 2003 based on
the 1991 constant prices was P82,696,433.25.
Second, the Lands Management Bureau certified that though the land area of the
Province of Dinagat Islands is 802.12 square kilometers, it is composed of one or more
islands; thus, it is exempt from the required land area of 2,000 square kilometers under
paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local
Government Code.
Third, in the special census conducted by the Provincial Government of Surigao
del Norte, with the assistance of a District Census Coordinator of the NSO, the number
of inhabitants in the Province of Dinagat Islands as of 2003, or almost three years before
the enactment of R.A. No. 9355 in 2006, was 371,576, which is more than the minimum
requirement of 250,000 inhabitants.
In his Memorandum, respondent Governor Ace S. Barbers contends that although
the result of the special census conducted by the Provincial Government of Surigao del
Norte on December 2, 2003 was never certified by the NSO, it is credible since it was
conducted with the aid of a representative of the NSO. He alleged that the lack of
certification by the NSO was cured by the presence of NSO officials, who testified
during the deliberations on House Bill No. 884 creating the Province of Dinagat Islands,
and who questioned neither the conduct of the special census nor the validity of the
result.
HELD:
The petition is granted.

118
The constitutional provision on the creation of a province in Section 10, Article X
of the Constitution states:
SEC. 10. No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast
in a plebiscite in the political units directly affected.
Pursuant to the Constitution, the Local Government Code of 1991 prescribed the
criteria for the creation of a province, thus:
SEC. 461. Requisites for Creation. -- (a) A province may be
created if it has an average annual income, as certified by the Department
of Finance, of not less than Twenty million pesos (P20,000,000.00) based
on 1991 constant prices and either of the following requisites:
(i)
(ii)

a contiguous territory of at least two thousand (2,000)

square kilometers, as certified by the Lands Management
Bureau; or
a population of not less than two hundred fifty thousand
(250,000) inhabitants as certified by the National Statistics
Office:

Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2)
or more islands or is separated by a chartered city or cities which do not
contribute to the income of the province.
(c) The average annual income shall include the income accruing
to the general fund, exclusive of special funds, trust funds, transfers, and
non-recurring income.
As a clarification of the territorial requirement, the Local Government Code
requires a contiguous territory of at least 2,000 square kilometers, as certified by the
Lands Management Bureau. However, the territory need not be contiguous if it
comprises two (2) or more islands or is separated by a chartered city or cities that
do not contribute to the income of the province.
If a proposed province is composed of two or more islands, does territory,
under Sec. 461 of the Local Government Code, include not only the land mass above the
water, but also that which is beneath it?
To answer the question above, the discussion in Tan v. Commission on Elections
(COMELEC) is enlightening.

119
In Tan v. COMELEC, petitioners therein contended that Batas Pambansa
Blg. 885, creating the new Province of Negros del Norte , was unconstitutional for it
was not in accord with Art. XI, Sec. 3 of the Constitution, and Batas Pambansa Blg. 337,
the former Local Government Code. Although what was applicable then was the 1973
Constitution and the former Local Government Code, the provisions pertinent to the
case are substantially similar to the provisions in this case.
Art. XI, Sec. 3 of the 1973 Constitution provides:
Sec. 3. No province, city, municipality or barrio (barangay in the 1987
Constitution) may be created, divided, merged, abolished, or its boundary substantially
altered except in accordance with the criteria established in the local government code,
and subject to the approval by a majority of the votes in a plebiscite in the unit or units
affected.
The requisites for the creation of a province in Sec. 197 of Batas Pambansa Blg. 337 are similar
to the requisites in Sec. 461 of the Local Government Code of 1991, but the requirements for population
and territory/land area are lower now, while the income requirement is higher. Sec. 197 of Batas Pambansa
Blg. 337, the former Local Government Code, provides:
SEC. 197.Requisites for Creation.A province may be created if it has a
territory of at least three thousand five hundred square kilometers, a population of at
least five hundred thousand persons, an average estimated annual income, as certified by
the Ministry of Finance, of not less than ten million pesos for the last three consecutive
years, and its creation shall not reduce the population and income of the mother province
or provinces at the time of said creation to less than the minimum requirements under this
section. The territory need not be contiguous if it comprises two or more islands.
The average estimated annual income shall include the income allotted for both
the general and infrastructure funds, exclusive of trust funds, transfers and nonrecurring
income.

In Tan v. COMELEC, petitioners therein filed a case for Prohibition for the
purpose of stopping the COMELEC from conducting the plebiscite scheduled on January
3, 1986. Since the Court was in recess, it was unable to consider the petition on time.
Petitioners filed a supplemental pleading, averring that the plebiscite sought to be
restrained by them was held as scheduled, but there were still serious issues raised in the
case affecting the legality, constitutionality and validity of such exercise which should
properly be passed upon and resolved by the Court.
At issue in Tan was the land area of the new Province of Negros del Norte, and
the validity of the plebiscite, which did not include voters of the parent Province of
Negros Occidental, but only those living within the territory of the new Province of
Negros del Norte.
The Court held that the plebiscite should have included the people living in the
area of the proposed new province and those living in the parent province. However, the
Court did not direct the conduct of a new plebiscite, because the factual and legal basis
for the creation of the new province did not exist as it failed to satisfy the land area
requirement; hence, Batas Pambansa Blg. 885, creating the new Province of Negros del
Norte, was declared unconstitutional. The Court found that the land area of the new
province was only about 2,856 square kilometers, which was below the statutory
requirement then of 3,500 square kilometers.

120
Hence, the Court holds that the provision in Sec. 2, Art. 9 of the IRR stating that
[t]he land area requirement shall not apply where the proposed province is composed of
one (1) or more islands is null and void.
It is undisputed that R.A. No. 9355 complied with the income requirement
specified by the Local Government Code. What is disputed is its compliance with the
land area or population requirement.
R.A. No. 9355 expressly states that the Province of Dinagat Islands contains an
approximate land area of eighty thousand two hundred twelve hectares (80,212 has.) or
802.12 sq. km., more or less, including Hibuson Island and approximately forty-seven
(47) islets x x x. R.A. No. 9355, therefore, failed to comply with the land area
requirement of 2,000 square kilometers.
The Province of Dinagat Islands also failed to comply with the population
requirement of not less than 250,000 inhabitants as certified by the NSO. Based on the
2000 Census of Population conducted by the NSO, the population of the Province of
Dinagat Islands as of May 1, 2000 was only 106,951.
Although the Provincial Government of Surigao del Norte conducted a special
census of population in Dinagat Islands in 2003, which yielded a population count of
371,000, the result was not certified by the NSO as required by the Local Government
Code. Moreover, respondents failed to prove that with the population count of 371,000,
the population of the original unit (mother Province of Surigao del Norte) would not be
reduced to less than the minimum requirement prescribed by law at the time of the
creation of the new province.
Respondents contended that the lack of certification by the NSO was cured by the
presence of the officials of the NSO during the deliberations on the house bill creating the
Province of Dinagat Islands, since they did not object to the result of the special census
conducted by the Provincial Government of Surigao del Norte.
The contention of respondents does not persuade.
Although the NSO representative to the Committee on Local Government
deliberations dated November 24, 2005 did not object to the result of the provincial
governments special census, which was conducted with the assistance of an NSO district
census coordinator, it was agreed by the participants that the said result was not certified
by the NSO, which is the requirement of the Local Government Code. Moreover, the
NSO representative, Statistician II Ma. Solita C. Vergara, stated that based on their
computation, the population requirement of 250,000 inhabitants would be attained by the
Province of Dinagat Islands by the year 2065. The computation was based on the growth
rate of the population, excluding migration.
To reiterate, when the Dinagat Islands was proclaimed a new province on
December 3, 2006, it had an official population of only 106,951 based on the NSO
2000 Census of Population. Less than a year after the proclamation of the new province,
the NSO conducted the 2007 Census of Population. The NSO certified that as of August

121
1, 2007, Dinagat Islands had a total population of only 120,813, which was still below
the minimum requirement of 250,000 inhabitants.
In fine, R.A. No. 9355 failed to comply with either the territorial or the population
requirement for the creation of the Province of Dinagat Islands.
The Constitution clearly mandates that the creation of local government units
must follow the criteria established in the Local Government Code. Any derogation of or
deviation from the criteria prescribed in the Local Government Code violates Sec. 10,
Art. X of the Constitution.
While the Local Government Code allows
local government units to sue and be
sued, a party suing such LGU may not
attached its properties during the trial of
the case. It is a waiver of immunity from
suit but not liability.
THE MUNICIPALITY OF HAGONOY, BULACAN
VS. HON. SIMEON DUMDUM, JR., in his capacity as
Presiding Judge of RTC Branch 7, Cebu City et al., GR
No. 168289, March 22, 2010

PERALTA, J.:
This is a Joint Petition under Rule 45 of the Rules of Court brought by the
Municipality of Hagonoy, Bulacan and its former chief executive, Mayor Felix V. Ople
in his official and personal capacity, from the January 31, 2005 Decision and the May
23, 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 81888. The assailed
decision affirmed the October 20, 2003 Order issued by the Regional Trial Court of Cebu
City, Branch 7 in Civil Case No. CEB-28587 denying petitioners motion to dismiss and
motion to discharge/dissolve the writ of preliminary attachment previously issued in the
case. The assailed resolution denied reconsideration.
The case stems from a Complaint filed by herein private respondent Emily Rose
Go Ko Lim Chao against herein petitioners, the Municipality of Hagonoy, Bulacan and
its chief executive, Felix V. Ople (Ople) for collection of a sum of money and damages.
It was alleged that sometime in the middle of the year 2000, respondent, doing business
as KD Surplus and as such engaged in buying and selling surplus trucks, heavy
equipment, machinery, spare parts and related supplies, was contacted by petitioner
Ople. Respondent had entered into an agreement with petitioner municipality through
Ople for the delivery of motor vehicles, which supposedly were needed to carry out
certain developmental undertakings in the municipality. Respondent claimed that
because of Oples earnest representation that funds had already been allocated for the
project, she agreed to deliver from her principal place of business in Cebu City twentyone motor vehicles whose value totaled P5,820,000.00. To prove this, she attached to the
complaint copies of the bills of lading showing that the items were consigned, delivered
to and received by petitioner municipality on different dates. However, despite having

122
made several deliveries, Ople allegedly did not heed respondents claim for payment. As
of the filing of the complaint, the total obligation of petitioner had already totaled
P10,026,060.13 exclusive of penalties and damages. Thus, respondent prayed for full
payment of the said amount, with interest at not less than 2% per month, plus
P500,000.00 as damages for business losses, P500,000.00 as exemplary damages,
attorneys fees of P100,000.00 and the costs of the suit.
On February 13, 2003, the trial court issued an Order granting respondents prayer
for a writ of preliminary attachment conditioned upon the posting of a bond equivalent to
the amount of the claim. On March 20, 2003, the trial court issued the Writ of
Preliminary Attachment directing the sheriff to attach the estate, real and personal
properties of petitioners.
Instead of addressing private respondents allegations, petitioners filed a Motion to
Dismiss on the ground that the claim on which the action had been brought was
unenforceable under the statute of frauds, pointing out that there was no written contract
or document that would evince the supposed agreement they entered into with
respondent. They averred that contracts of this nature, before being undertaken by the
municipality, would ordinarily be subject to several preconditions such as a public
bidding and prior approval of the municipal council which, in this case, did not obtain.
From this, petitioners impress upon us the notion that no contract was ever entered into
by the local government with respondent. To address the claim that respondent had made
the deliveries under the agreement, they advanced that the bills of lading attached to the
complaint were hardly probative, inasmuch as these documents had been accomplished
and handled exclusively by respondent herself as well as by her employees and agents.
Petitioners also filed a Motion to Dissolve and/or Discharge the Writ of
Preliminary Attachment already Issued, [1] invoking immunity of the state from suit,
[2] nenforceability of the contract, and [3] failure to substantiate the allegation of
fraud.
On October 20, 2003, the trial court issued an Order denying the two motions.
Petitioners moved for reconsideration, but they were denied in an Order dated December
29, 2003.
Believing that the trial court had committed grave abuse of discretion in issuing the
two orders, petitioners elevated the matter to the Court of Appeals via a petition for
certiorari under Rule 65.
On January 31, 2005, following assessment of the parties arguments, the Court of
Appeals, finding no merit in the petition, upheld private respondents claim and affirmed
the trial courts order. Petitioners moved for reconsideration, but the same was likewise
denied for lack of merit and for being a mere scrap of paper for having been filed by an
unauthorized counsel. Hence, this petition.
HELD:
Petitioners, advocating a negative stance on this issue, posit that as a municipal
corporation, the Municipality of Hagonoy is immune from suit, and that its properties are

123
by law exempt from execution and garnishment. Hence, they submit that not only was
there an error committed by the trial court in denying their motion to dissolve the writ of
preliminary attachment; they also advance that it should not have been issued in the first
place. Nevertheless, they believe that respondent has not been able to substantiate her
allegations of fraud necessary for the issuance of the writ.
Private respondent, for her part, counters that, contrary to petitioners claim, she
has amply discussed the basis for the issuance of the writ of preliminary attachment in
her affidavit; and that petitioners claim of immunity from suit is negated by Section 22
of the Local Government Code, which vests municipal corporations with the power to sue
and be sued. Further, she contends that the arguments offered by petitioners against the
writ of preliminary attachment clearly touch on matters that when ruled upon in the
hearing for the motion to discharge, would amount to a trial of the case on the merits.
The general rule spelled out in Section 3, Article XVI of the Constitution is that
the state and its political subdivisions may not be sued without their consent. Otherwise
put, they are open to suit but only when they consent to it. Consent is implied when the
government enters into a business contract, as it then descends to the level of the other
contracting party; or it may be embodied in a general or special law such as that found in
Book I, Title I, Chapter 2, Section 22 of the Local Government Code of 1991, which
vests local government units with certain corporate powers one of them is the power to
sue and be sued.
Be that as it may, a difference lies between suability and liability. As held in City
of Caloocan v. Allarde, where the suability of the state is conceded and by which liability
is ascertained judicially, the state is at liberty to determine for itself whether to satisfy the
judgment or not. Execution may not issue upon such judgment, because statutes waiving
non-suability do not authorize the seizure of property to satisfy judgments recovered from
the action. These statutes only convey an implication that the legislature will recognize
such judgment as final and make provisions for its full satisfaction. Thus, where consent
to be sued is given by general or special law, the implication thereof is limited only to the
resultant verdict on the action before execution of the judgment.
Traders Royal Bank v. Intermediate Appellate Court, citing Commissioner of
Public Highways v. San Diego, is instructive on this point. In that case which involved a
suit on a contract entered into by an entity supervised by the Office of the President, the
Court held that while the said entity opened itself to suit by entering into the subject
contract with a private entity; still, the trial court was in error in ordering the garnishment
of its funds, which were public in nature and, hence, beyond the reach of garnishment and
attachment proceedings. Accordingly, the Court ordered that the writ of preliminary
attachment issued in that case be lifted, and that the parties be allowed to prove their
respective claims at the trial on the merits. There, the Court highlighted the reason for
the rule, to wit:
The universal rule that where the State gives its consent to be sued
by private parties either by general or special law, it may limit claimants
action only up to the completion of proceedings anterior to the stage of
execution and that the power of the Courts ends when the judgment is
rendered, since government funds and properties may not be seized under

124
writs of execution or garnishment to satisfy such judgments, is based on
obvious considerations of public policy. Disbursements of public funds
must be covered by the corresponding appropriations as required by law.
The functions and public services rendered by the State cannot be allowed
to be paralyzed or disrupted by the diversion of public funds from their
legitimate and specific objects. x x x
With this in mind, the Court holds that the writ of preliminary attachment must be
dissolved and, indeed, it must not have been issued in the very first place. While there is
merit in private respondents position that she, by affidavit, was able to substantiate the
allegation of fraud in the same way that the fraud attributable to petitioners was
sufficiently alleged in the complaint and, hence, the issuance of the writ would have been
justified. Still, the writ of attachment in this case would only prove to be useless and
unnecessary under the premises, since the property of the municipality may not, in the
event that respondents claim is validated, be subjected to writs of execution and
garnishment unless, of course, there has been a corresponding appropriation provided
by law.
WHEREFORE, the Petition is GRANTED IN PART. The January 31, 2005
Decision of the Court of Appeals in CA-G.R. SP No. 81888 is AFFIRMED insofar as it
affirmed the October 20, 2003 Decision of the Regional Trial Court of Cebu City, Branch
7 denying petitioners motion to dismiss in Civil Case No. CEB-28587. The assailed
decision is REVERSED insofar as it affirmed the said trial courts denial of petitioners
motion to discharge the writ of preliminary attachment issued in that case. Accordingly,
the August 4, 2003 Writ of Preliminary Attachment issued in Civil Case No. CEB-28587
is ordered lifted.
VALIDITY OF EXPULSION OF LIBERAL
PARTY MEMBERS WITHOUT NOTICE AND
HEARING. WHETHER THEIR RIGHT TO DUE
PROCESS OF LAW WAS VIOLATED.

JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR,

JR., RODOLFO G.VALENCIA, DANILO E. SUAREZ,
SOLOMON
R.
CHUNGALAO,
SALVACION
ZALDIVAR-PEREZ,
HARLIN
CAST-ABAYON,
MELVIN G.MACUSI and ELEAZAR P. QUINTO vs.
COMELEC, MANUEL ROXAS II, FRANKLIN
DRILON and J.R. NEREUS ACOSTA , G.R. No.
188920
ABAD, J.:
On July 5, 2005 respondent Franklin M. Drilon , then the president of the Liberal
Party (LP), announced his partys withdrawal of support for the administration of
President Gloria Macapagal-Arroyo. But petitioner Jose L. Atienza, Jr., LP Chairman,

125
and a number of party members denounced Drilons move, claiming that he made the
announcement without consulting his party.
On March 2, 2006 petitioner Atienza hosted a party conference to supposedly
discuss local autonomy and party matters but, when convened, the assembly proceeded to
declare all positions in the LPs ruling body vacant and elected new officers, with
Atienza as LP president. Respondent Drilon immediately filed a petition with the
Commission on Elections (COMELEC) to nullify the elections. He claimed that it was
illegal considering that the partys electing bodies, the National Executive Council
(NECO) and the National Political Council (NAPOLCO), were not properly convened.
Drilon also claimed that under the amended LP Constitution, party officers were elected
to a fixed three-year term that was yet to end on November 30, 2007.
On the other hand, petitioner Atienza claimed that the majority of the LPs NECO
and NAPOLCO attended the March 2, 2006 assembly. The election of new officers on
that occasion could be likened to people power, wherein the LP majority removed
respondent Drilon as president by direct action. Atienza also said that the amendments to
the original LP Constitution, or the Salonga Constitution, giving LP officers a fixed
three-year term, had not been properly ratified. Consequently, the term of Drilon and the
other officers already ended on July 24, 2006
On October 13, 2006, the COMELEC issued a resolution, partially granting
respondent Drilons petition. It annulled the March 2, 2006 elections and ordered the
holding of a new election under COMELEC supervision. It held that the election of
petitioner Atienza and the others with him was invalid since the electing assembly did not
convene in accordance with the Salonga Constitution. But, since the amendments to the
Salonga Constitution had not been properly ratified, Drilons term may be deemed to
have ended. Thus, he held the position of LP president in a holdover capacity until new
officers were elected.
Both sides of the dispute went to the Supreme Court to challenge the COMELEC
rulings. On April 17, 2007 a divided Court issued a resolution, granting respondent
Drilons petition and denying that of petitioner Atienza. The Court held, through the
majority, that the COMELEC had jurisdiction over the intra-party leadership dispute; that
the Salonga Constitution had been validly amended; and that, as a consequence,
respondent Drilons term as LP president was to end only on November 30, 2007.
Subsequently, the LP held a NECO meeting to elect new party leaders before
respondent Drilons term expired. Fifty-nine NECO members out of the 87 who were
supposedly qualified to vote attended. Before the election, however, several persons
associated with petitioner Atienza sought to clarify their membership status and raised
issues regarding the composition of the NECO. Eventually, that meeting installed
respondent Manuel A. Roxas II (Roxas) as the new LP president.
On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G.
Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin
Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for mandatory
and prohibitory injunction before the COMELEC against respondents Roxas, Drilon and
J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas

126
from assuming the presidency of the LP, claiming that the NECO assembly which elected
him was invalidly convened. They questioned the existence of a quorum and claimed
that the NECO composition ought to have been based on a list appearing in the partys
60th Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as
common exhibit in the earlier cases and it showed that the NECO had 103 members.
Petitioners Atienza, et al. also complained that Atienza, the incumbent party
chairman, was not invited to the NECO meeting and that some members, like petitioner
Defensor, were given the status of guests during the meeting. Atienzas allies allegedly
raised these issues but respondent Drilon arbitrarily thumbed them down and railroaded
the proceedings. He suspended the meeting and moved it to another room, where Roxas
was elected without notice to Atienzas allies.
On the other hand, respondents Roxas, et al. claimed that Roxas election as LP
president faithfully complied with the provisions of the amended LP Constitution. The
partys 60th Anniversary Souvenir Program could not be used for determining the NECO
members because supervening events changed the bodys number and composition.
Some NECO members had died, voluntarily resigned, or had gone on leave after
accepting positions in the government. Others had lost their re-election bid or did not run
in the May 2007 elections, making them ineligible to serve as NECO members. LP
members who got elected to public office also became part of the NECO. Certain
persons of national stature also became NECO members upon respondent Drilons
nomination, a privilege granted the LP president under the amended LP Constitution. In
other words, the NECO membership was not fixed or static; it changed due to
supervening circumstances.
Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza,
Zaldivar-Perez, and Cast-Abayon resigned for holding the illegal election of LP officers
on March 2, 2006. This was pursuant to a March 14, 2006 NAPOLCO resolution that
NECO subsequently ratified. Meanwhile, certain NECO members, like petitioners
Defensor, Valencia, and Suarez, forfeited their party membership when they ran under
other political parties during the May 2007 elections. They were dropped from the roster
of LP members.
On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners
Atienza, et al.s petition. It noted that the May 2007 elections necessarily changed the
composition of the NECO since the amended LP Constitution explicitly made incumbent
senators, members of the House of Representatives, governors and mayors members of
that body. That some lost or won these positions in the May 2007 elections affected the
NECO membership. Petitioners failed to prove that the NECO which elected Roxas as
LP president was not properly convened.
As for the validity of petitioners Atienza, et al.s expulsion as LP members, the
COMELEC observed that this was a membership issue that related to disciplinary action
within the political party. The COMELEC treated it as an internal party matter that was
beyond its jurisdiction to resolve.
Without filing a motion for reconsideration of the COMELEC resolution,
petitioners Atienza, et al. filed this petition for certiorari under Rule 65.

127
ISSUE
Whether or not respondents Roxas, et
al. violated petitioners Atienza, et al.s
constitutional right to due process by
the latters expulsion from the party.
HELD:
Petitioners Atienza, et al. argue that their expulsion from the party is not a simple
issue of party membership or discipline; it involves a violation of their constitutionallyprotected right to due process of law. They claim that the NAPOLCO and the NECO
should have first summoned them to a hearing before summarily expelling them from the
party. According to Atienza, et al., proceedings on party discipline are the equivalent of
administrative proceedings and are, therefore, covered by the due process requirements
laid down in Ang Tibay v. Court of Industrial Relations.
But the requirements of administrative due process do not apply to the internal affairs
of political parties. The due process standards set in Ang Tibay cover only
administrative bodies created by the state and through which certain governmental
acts or functions are performed. An administrative agency or instrumentality
contemplates an authority to which the state delegates governmental power for the
performance of a state function. The constitutional limitations that generally
apply to the exercise of the states powers thus, apply too, to administrative bodies
The constitutional limitations on the exercise of the states powers are found in
Article III of the Constitution or the Bill of Rights. The Bill of Rights, which guarantees
against the taking of life, property, or liberty without due process under Section 1 is
generally a limitation on the states powers in relation to the rights of its citizens. The
right to due process is meant to protect ordinary citizens against arbitrary
government action, but not from acts committed by private individuals or entities.
In the latter case, the specific statutes that provide reliefs from such private acts
apply. The right to due process guards against unwarranted encroachment by the
state into the fundamental rights of its citizens and cannot be invoked in private
controversies involving private parties.
Although political parties play an important role in our democratic set-up as an
intermediary between the state and its citizens, it is still a private organization, not a state
instrument. The discipline of members by a political party does not involve the right to
life, liberty or property within the meaning of the due process clause. An individual has
no vested right, as against the state, to be accepted or to prevent his removal by a political
party. The only rights, if any, that party members may have, in relation to other party
members, correspond to those that may have been freely agreed upon among themselves
through their charter, which is a contract among the party members. Members whose
rights under their charter may have been violated have recourse to courts of law for the
enforcement of those rights, but not as a due process issue against the government or any
of its agencies.

128
But even when recourse to courts of law may be made, courts will ordinarily not
interfere in membership and disciplinary matters within a political party. A political
party is free to conduct its internal affairs, pursuant to its constitutionally-protected right
to free association. In Sinaca v. Mula, the Court said that judicial restraint in internal
party matters serves the public interest by allowing the political processes to operate
without undue interference. It is also consistent with the state policy of allowing a free
and open party system to evolve, according to the free choice of the people.
To conclude, the COMELEC did not gravely abuse its discretion when it upheld
Roxas election as LP president but refused to rule on the validity of Atienza, et al.s
expulsion from the party. While the question of party leadership has implications on the
COMELECs performance of its functions under Section 2, Article IX-C of the
Constitution, the same cannot be said of the issue pertaining to Atienza, et al.s expulsion
from the LP. Such expulsion is for the moment an issue of party membership and
discipline, in which the COMELEC cannot intervene, given the limited scope of its
power over political parties.
No violation of the right to due process
when a party was notified but failed to
file comment to a motion of the other
party.
SUSIE CHAN-TAN vs. JESSE TAN, G.R. No. 167139,
February 25, 2010
ISSUE:
Petitioner raises the question of whether the 30 March 2004 decision and
the 17 May 2004 resolution of the trial court giving custody to their children have
attained finality despite the alleged denial of due process since she was not
present during the hearing.
HELD:
Petitioner contends she was denied due process when her counsel failed to file
pleadings and appear at the hearings for respondents omnibus motion to amend
the partial judgment as regards the custody of the children and the properties in
her possession. Petitioner claims the trial court issued the 17 May 2004 resolution
relying solely on the testimony of respondent.
Respondent stresses neither
petitioner nor her counsel appeared in court at the hearings on respondent's
omnibus motion or on petitioners motion to dismiss.
We also ruled in Tuason that notice sent to the counsel of record is binding
upon the client and the neglect or failure of the counsel to inform the client of an
adverse judgment resulting in the loss of the latters right to appeal is not a ground
for setting aside a judgment valid and regular on its face.

129
Further, petitioner cannot claim that she was denied due process. While she
may have lost her right to present evidence due to the supposed negligence of her
counsel, she cannot say she was denied her day in court. Records show petitioner,
through counsel, actively participated in the proceedings below, filing motion
after motion. Contrary to petitioners allegation of negligence of her counsel, we
have reason to believe the negligence in pursuing the case was on petitioners end,
as may be gleaned from her counsels manifestation dated 3 May 2004:
Undersigned Counsel, who appeared for petitioner, in the
nullity proceedings, respectfully informs the Honorable Court that
she has not heard from petitioner since Holy Week. Attempts to
call petitioner have failed.
Undersigned counsel regrets therefore that she is unable to respond
in an intelligent manner to the Motion (Omnibus Motion) filed by
respondent.
Clearly, despite her counsels efforts to reach her, petitioner showed utter
disinterest in the hearings on respondents omnibus motion seeking, among
others, custody of the children. The trial judge was left with no other recourse but
to proceed with the hearings and rule on the motion based on the evidence
presented by respondent. Petitioner cannot now come to this Court crying denial
of due process.
The right of an accused to due process of
law was violated when the judge issued a
warrant for her arrest even though she
did not receive any notice which was sent
to the Chief of Police of Quezon City.
NORYN S. TAN VS. JUDGE MARIA CLARITA
CASUGA-TABIN, A.M. No. MTJ-09-1729, January
20, 2009
AUSTRIA-MARTINEZ, J.:
FACTS:
Noryn S. Tan (complainant) filed a Complaint dated April 2, 2007 against Judge Maria
Clarita Casuga-Tabin (respondent) of the Municipal Trial Court in Cities (MTCC), Branch 4,
Baguio City for denial of due process relative to Criminal Case No. 118628.

Complainant avers: On November 9, 2006, the Philippine National Police (PNP) Quezon
City Police District (QCPD) served her a warrant of arrest dated October 13, 2006, issued by the
MTCC Baguio City, Branch 4, presided by respondent, relative to Criminal Case No. 118628 for

130
alleged violation of Batas Pambansa Blg. 22. It was only then that she learned for the first time
that a criminal case was filed against her before the court. She was detained at the Quezon City
Hall Complex Police Office and had to post bail of P1,000.00 before the Office of the Executive
Judge of the Regional Trial Court (RTC) of Quezon City for her temporary release. Upon
verification, she learned that respondent issued on August 8, 2006 an Order directing her to appear
before the court on October 10, 2006 for arraignment. It was sent by mail to PNP Quezon City for
service to her. However, she did not receive any copy of the Order and up to the present has not
seen the same; hence, she was not able to attend her arraignment. She also found out that there was
no proof of service of the Order or any notice to her of the arraignment. This notwithstanding,
respondent issued a warrant for her arrest. Complainant alleges that she was deeply aggrieved and
embarrassed by the issuance of the warrant for her arrest despite the fact that she was never notified
of her arraignment. Complainant prayed that the appropriate investigation be conducted as to the
undue issuance of a warrant for her arrest.
In her Comment dated July 5, 2007, respondent answered: She issued the warrant of arrest
because when the case was called for appearance, the complainant, as accused therein, failed to
appear. Prior to the issuance of the warrant of arrest, her staff sent by registered mail the court's
Order dated August 8, 2006 addressed to complainant through the Chief of Police, PNP, 1104,
Quezon City directing complainant to appear on October 10, 2006 at 8:30 a.m. for the arraignment
and preliminary conference in Criminal Case No. 118628, as proven by Registry Receipt No.
0310. It is true that the return on the court's Order dated August 8, 2006 had not yet been made by
the QC Police on or before October 10, 2006. Nonetheless, she issued the warrant of arrest in good
faith and upon the following grounds: (a) under Sec. 3 of Rule 131 of the Rules of Court, the court
was entitled to presume that on October 10, 2006, after the lapse of a little over two months, official
duty had been regularly performed and a letter duly directed and mailed had been received in the
regular course of mail; and (b) Sec. 12 of the 1983 Rule on Summary Procedure in Special Cases
provides that bail may be required where the accused does not reside in the place where the
violation of the law or ordinance was committed. The warrant of arrest she issued was meant to
implement this provision, which was not repealed by the 1991 Revised Rule on Summary
Procedure, since complainant is a resident of Quezon City and not of Baguio City. If her
interpretation was erroneous, she (respondent) believes that an administrative sanction for such
error would be harsh and unsympathetic. She has nothing personal against complainant and did not
want to embarrass or humiliate her. She issued the warrant in the honest belief that her act was in
compliance with the rules. She prays that the case against her be dismissed and that a ruling on the
interpretation of Secs. 10 & 12, of the 1983 Rule on Summary Procedure in Special Cases, in
relation to Sec. 16 of the 1991 Revised Rule on Summary Procedure be made for the guidance of
the bench and bar.

HELD:
Whenever a criminal case falls under the Summary Procedure, the general rule is that the
court shall not order the arrest of the accused, unless the accused fails to appear whenever required.
This is clearly provided in Section 16 of the 1991 Revised Rule on Summary Procedure which
states:
Sec. 16. Arrest of accused. - The court shall not order the arrest of
the accused except for failure to appear whenever required. Release of the

131
person arrested shall either be in bail or on recognizance by a responsible citizen
acceptable to the court. (Emphasis supplied)
In this case, respondent claims that the issuance of a warrant for the arrest of complainant
was justified, since complainant failed to appear during the arraignment in spite of an order
requiring her to do so. Respondent admits, however, that a copy of the Order dated August 8,
2006, was sent to complainant through the Chief of Police, PNP, 1104, Quezon City.
While it is true that the Rules of Court provides for presumptions, one of which is that
official duty has been regularly performed, such presumption should not be the sole basis of a
magistrate in concluding that a person called to court has failed to appear as required, which in turn
justifies the issuance of a warrant for her arrest, when such notice was not actually addressed to her
residence but to the police in her city. So basic and fundamental is a person's right to liberty that it
should not be taken lightly or brushed aside with the presumption that the police through which the
notice had been sent, actually served the same on complainant whose address was not even
specified.
The Court has held that a judge commits grave abuse of authority when she hastily issues a
warrant of arrest against the accused in violation of the summary procedure rule that the accused
should first be notified of the charges against him and given the opportunity to file his counteraffidavits and countervailing evidence .
Hence, complainants right to due process was violated.
Considering that this is respondent's first administrative infraction in her more than 8 years
of service in the judiciary, which serves to mitigate her liability, the Court holds the imposition of a
fine in the amount of P10,000.00 to be proper in this case.
Whether the law declaring appointive officials
as ipso facto resigned from their positions
upon filing of their certificates of candidacy
while elective officials are not is not violative of
the equal protection clause of the Constitution.
ELEAZAR P. QUINTO and GERINO TOLENTINO,
JR. VS. COMELEC, G.R. No. 189698, February 22,
2010
Puno, CJ
The main issue in this case is whether or not the second proviso in the third
paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election
Code and Section 4(a) of COMELEC Resolution No. 8678, providing that appointive
officials are deemed automatically resigned from their jobs upon the filing of their
certificates of candidacy (while the elected officials are not) is unconstitutional mainly on
the ground that they violate the equal protection clause of the Constitution and suffer
from overbreadth.

132
On December 1, 2009, the Supreme Court held that the questioned provisions of
the above-mentioned laws are unconstitutional for being violative of the equal protection
clause.
On Motion for Reconsideration, the Supreme Court reconsidered its earlier
Decision and declared the above laws and COMELEC Resolution constitutional.
In support of their respective motions for reconsideration, respondent COMELEC
and movants-intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional
proscription against the participation of public appointive officials and
members of the military in partisan political activity;
(2) The assailed provisions do not violate the equal protection clause when they
accord differential treatment to elective and appointive officials, because such
differential treatment rests on material and substantial distinctions and is
germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety
and interest demand such reversal.
We find the foregoing arguments meritorious.
The assailed December 1, 2009 Decision struck down Section 4(a) of Resolution
8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369,
and Section 66 of the Omnibus Election Code, on the following grounds:
(1) They violate the equal protection clause of the Constitution because of the
differential treatment of persons holding appointive offices and those holding
elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants
holding appointive posts: (a) without distinction as to whether or not they
occupy high/influential positions in the government, and (b) they limit these
civil servants activity regardless of whether they be partisan or nonpartisan in
character, or whether they be in the national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental
right of these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of
Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the
third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly
reverse our December 1, 2009 Decision.

133
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus
Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369
are not violative of the equal protection clause of the Constitution.

i.

Farias, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned
provisions challenged in the case at bar violate the equal protection clause of the
Constitution in Farias, et al. v. Executive Secretary, et al.
In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation
to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among
others, that it unduly discriminates against appointive officials. As Section 14 repealed
Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the
Omnibus Election Code, elected officials are no longer considered ipso facto resigned
from their respective offices upon their filing of certificates of candidacy. In contrast,
since Section 66 was not repealed, the limitation on appointive officials continues to be
operative they are deemed resigned when they file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge against
Section 14, with the end in view of having the deemed-resigned provisions apply
equally to both elected and appointive officials. We held, however, that the legal
dichotomy created by the Legislature is a reasonable classification, as there are material
and significant distinctions between the two classes of officials. Consequently, the
contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, infringed on the equal protection clause of the Constitution,
failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the
Omnibus Election Code pertaining to elective officials gives undue benefit
to such officials as against the appointive ones and violates the equal
protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not
absolute, but is subject to reasonable classification. If the groupings are
characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from the other. The Court
has explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue
favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either in
the object to which it is directed or by territory within
which it is to operate. It does not demand absolute equality
among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both

134
as to privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between
those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials
and appointive officials. The former occupy their office by virtue of
the mandate of the electorate. They are elected to an office for a
definite term and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the
appointing authority.
Another substantial distinction between the two sets of officials is
that under Section 55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of 1987 (Executive
Order No. 292), appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any partisan political
activity or take (sic) part in any election except to vote. Under the same
provision, elective officials, or officers or employees holding political
offices, are obviously expressly allowed to take part in political and
electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus
Election Code, the legislators deemed it proper to treat these two classes
of officials differently with respect to the effect on their tenure in the
office of the filing of the certificates of candidacy for any position other
than those occupied by them. Again, it is not within the power of the Court
to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006,
i.e., elected officials vis--vis appointive officials, is anchored upon
material and significant distinctions and all the persons belonging under
the same classification are similarly treated, the equal protection clause of
the Constitution is, thus, not infringed.
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our
assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis
et non quieta movere. This doctrine, which is really adherence to precedents, mandates
that once a case has been decided one way, then another case involving exactly the same
point at issue should be decided in the same manner. This doctrine is one of policy
grounded on the necessity for securing certainty and stability of judicial decisions. As the
renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial
Process:

135
It will not do to decide the same question one way between one set of
litigants and the opposite way between another. If a group of cases
involves the same point, the parties expect the same decision. It would be
a gross injustice to decide alternate cases on opposite principles. If a case
was decided against me yesterday when I was a defendant, I shall look for
the same judgment today if I am plaintiff. To decide differently would
raise a feeling of resentment and wrong in my breast; it would be an
infringement, material and moral, of my rights." Adherence to precedent
must then be the rule rather than the exception if litigants are to have faith
in the even-handed administration of justice in the courts.
Our Farias ruling on the equal protection implications of the deemed-resigned
provisions cannot be minimalized as mere obiter dictum. It is trite to state that an
adjudication on any point within the issues presented by the case cannot be considered as
obiter dictum. This rule applies to all pertinent questions that are presented and resolved
in the regular course of the consideration of the case and lead up to the final conclusion,
and to any statement as to the matter on which the decision is predicated. For that reason,
a point expressly decided does not lose its value as a precedent because the disposition of
the case is, or might have been, made on some other ground; or even though, by reason of
other points in the case, the result reached might have been the same if the court had held,
on the particular point, otherwise than it did. As we held in Villanueva, Jr. v. Court of
Appeals, et al.:
A decision which the case could have turned on is not regarded as
obiter dictum merely because, owing to the disposal of the contention, it
was necessary to consider another question, nor can an additional reason
in a decision, brought forward after the case has been disposed of on one
ground, be regarded as dicta. So, also, where a case presents two (2) or
more points, any one of which is sufficient to determine the ultimate issue,
but the court actually decides all such points, the case as an authoritative
precedent as to every point decided, and none of such points can be
regarded as having the status of a dictum, and one point should not be
denied authority merely because another point was more dwelt on and
more fully argued and considered, nor does a decision on one proposition
make statements of the court regarding other propositions dicta. (italics
supplied)
ii.

Classification Germane to the Purposes of the Law

The Farias ruling on the equal protection challenge stands on solid ground even
if reexamined.
To start with, the equal protection clause does not require the universal
application of the laws to all persons or things without distinction. What it simply
requires is equality among equals as determined according to a valid classification. The
test developed by jurisprudence here and yonder is that of reasonableness, which has four
requisites:
(1) The classification rests on substantial distinctions;

136
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
Our assailed Decision readily acknowledged that these deemed-resigned
provisions satisfy the first, third and fourth requisites of reasonableness. It, however,
proffers the dubious conclusion that the differential treatment of appointive officials vis-vis elected officials is not germane to the purpose of the law, because whether one
holds an appointive office or an elective one, the evils sought to be prevented by the
measure remain, viz.:
For example, the Executive Secretary, or any Member of the Cabinet
for that matter, could wield the same influence as the Vice-President who
at the same time is appointed to a Cabinet post (in the recent past, elected
Vice-Presidents were appointed to take charge of national housing, social
welfare development, interior and local government, and foreign affairs).
With the fact that they both head executive offices, there is no valid
justification to treat them differently when both file their [Certificates of
Candidacy] for the elections. Under the present state of our law, the VicePresident, in the example, running this time, let us say, for President,
retains his position during the entire election period and can still use the
resources of his office to support his campaign.
Sad to state, this conclusion conveniently ignores the long-standing rule that to
remedy an injustice, the Legislature need not address every manifestation of the evil at
once; it may proceed one step at a time. In addressing a societal concern, it must
invariably draw lines and make choices, thereby creating some inequity as to those
included or excluded. Nevertheless, as long as the bounds of reasonable choice are not
exceeded, the courts must defer to the legislative judgment. We may not strike down a
law merely because the legislative aim would have been more fully achieved by
expanding the class. Stated differently, the fact that a legislative classification, by itself,
is under inclusive will not render it unconstitutionally arbitrary or invidious. There is no
constitutional requirement that regulation must reach each and every class to which it
might be applied; that the Legislature must be held rigidly to the choice of regulating all
or none.
Thus, any person who poses an equal protection challenge must convincingly
show that the law creates a classification that is palpably arbitrary or capricious. He
must refute all possible rational bases for the differing treatment, whether or not the
Legislature cited those bases as reasons for the enactment, such that the constitutionality
of the law must be sustained even if the reasonableness of the classification is fairly
debatable. In the case at bar, the petitioners failed and in fact did not even attempt to
discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this
point even while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may find
that the statutes distinction is unfair, underinclusive, unwise, or not the

137
best solution from a public-policy standpoint; rather, we must find that
there is no reasonably rational reason for the differing treatment.
In the instant case, is there a rational justification for excluding
elected officials from the operation of the deemed resigned provisions? I
submit that there is.
An election is the embodiment of the popular will, perhaps the
purest expression of the sovereign power of the people. It involves the
choice or selection of candidates to public office by popular vote.
Considering that elected officials are put in office by their constituents for
a definite term, it may justifiably be said that they were excluded from
the ambit of the deemed resigned provisions in utmost respect for the
mandate of the sovereign will. In other words, complete deference is
accorded to the will of the electorate that they be served by such officials
until the end of the term for which they were elected. In contrast, there is
no such expectation insofar as appointed officials are concerned.
The dichotomized treatment of appointive and elective officials
is therefore germane to the purposes of the law. For the law was made
not merely to preserve the integrity, efficiency, and discipline of the
public service; the Legislature, whose wisdom is outside the rubric of
judicial scrutiny, also thought it wise to balance this with the
competing, yet equally compelling, interest of deferring to the
sovereign will. (emphasis in the original)
In fine, the assailed Decision would have us equalize the playing field by
invalidating provisions of law that seek to restrain the evils from running riot. Under the
pretext of equal protection, it would favor a situation in which the evils are unconfined
and vagrant, existing at the behest of both appointive and elected officials, over another
in which a significant portion thereof is contained. The absurdity of that position is selfevident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his
dissent, that elected officials (vis--vis appointive officials) have greater political clout
over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it
to say that the remedy lies with the Legislature. It is the Legislature that is given the
authority, under our constitutional system, to balance competing interests and thereafter
make policy choices responsive to the exigencies of the times. It is certainly within the
Legislatures power to make the deemed-resigned provisions applicable to elected
officials, should it later decide that the evils sought to be prevented are of such frequency
and magnitude as to tilt the balance in favor of expanding the class. This Court cannot
and should not arrogate unto itself the power to ascertain and impose on the people the
best state of affairs from a public policy standpoint.
iii.

Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our

assailed Decision adverted to, and extensively cited, Mancuso v. Taft. This was a

138
decision of the First Circuit of the United States Court of Appeals promulgated in March
1973, which struck down as unconstitutional a similar statutory provision. Pathetically,
our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is inextricably linked with two
fundamental freedoms freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right
must be subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and
impartiality of its public work force, the deemed-resigned provisions pursue
their objective in a far too heavy-handed manner as to render them
unconstitutional.
It then concluded with the exhortation that since the Americans, from whom we
copied the provision in question, had already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow suit.
Our assailed Decisions reliance on Mancuso is completely misplaced.
We
cannot blink away the fact that the United States Supreme Court effectively overruled
Mancuso three months after its promulgation by the United States Court of Appeals. In
United States Civil Service Commission, et al. v. National Association of Letter
Carriers AFL-CIO, et al. and Broadrick, et al. v. State of Oklahoma, et al., the United
States Supreme Court was faced with the issue of whether statutory provisions
prohibiting federal and state employees from taking an active part in political
management or in political campaigns were unconstitutional as to warrant facial
invalidation. Violation of these provisions results in dismissal from employment and
possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It
held that (i) in regulating the speech of its employees, the state as employer has interests
that differ significantly from those it possesses in regulating the speech of the citizenry in
general; (ii) the courts must therefore balance the legitimate interest of employee free
expression against the interests of the employer in promoting efficiency of public
services; (iii) if the employees expression interferes with the maintenance of efficient
and regularly functioning services, the limitation on speech is not unconstitutional; and
(iv) the Legislature is to be given some flexibility or latitude in ascertaining which
positions are to be covered by any statutory restrictions. Therefore, insofar as government
employees are concerned, the correct standard of review is an interest-balancing
approach, a means-end scrutiny that examines the closeness of fit between the
governmental interests and the prohibitions in question.
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the
country appears to have been that partisan political activities by federal
employees must be limited if the Government is to operate effectively and
fairly, elections are to play their proper part in representative government,

139
and employees themselves are to be sufficiently free from improper
influences. The restrictions so far imposed on federal employees are not
aimed at particular parties, groups, or points of view, but apply equally to
all partisan activities of the type described. They discriminate against no
racial, ethnic, or religious minorities. Nor do they seek to control political
opinions or beliefs, or to interfere with or influence anyone's vote at the
polls.
But, as the Court held in Pickering v. Board of Education, the
government has an interest in regulating the conduct and the speech of
its employees that differ(s) significantly from those it possesses in
connection with regulation of the speech of the citizenry in general. The
problem in any case is to arrive at a balance between the interests of the
(employee), as a citizen, in commenting upon matters of public concern
and the interest of the (government), as an employer, in promoting the
efficiency of the public services it performs through its employees.
Although Congress is free to strike a different balance than it has, if it so
chooses, we think the balance it has so far struck is sustainable by the
obviously important interests sought to be served by the limitations on
partisan political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the
Executive Branch of the Government, or those working for any of its
agencies, should administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a
political party. They are expected to enforce the law and execute the
programs of the Government without bias or favoritism for or against any
political party or group or the members thereof. A major thesis of the
Hatch Act is that to serve this great end of Government-the impartial
execution of the laws-it is essential that federal employees, for example,
not take formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for office on
partisan political tickets. Forbidding activities like these will reduce the
hazards to fair and effective government.
There is another consideration in this judgment: it is not only
important that the Government and its employees in fact avoid practicing
political justice, but it is also critical that they appear to the public to be
avoiding it, if confidence in the system of representative Government is
not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities
by federal employees was perhaps the immediate occasion for enactment
of the Hatch Act in 1939. That was the conviction that the rapidly
expanding Government work force should not be employed to build a
powerful, invincible, and perhaps corrupt political machine. The
experience of the 1936 and 1938 campaigns convinced Congress that these
dangers were sufficiently real that substantial barriers should be raised
against the party in power-or the party out of power, for that matter-using

140
the thousands or hundreds of thousands of federal employees, paid for at
public expense, to man its political structure and political campaigns.
A related concern, and this remains as important as any other, was
to further serve the goal that employment and advancement in the
Government service not depend on political performance, and at the same
time to make sure that Government employees would be free from
pressure and from express or tacit invitation to vote in a certain way or
perform political chores in order to curry favor with their superiors
rather than to act out their own beliefs. It may be urged that prohibitions
against coercion are sufficient protection; but for many years the joint
judgment of the Executive and Congress has been that to protect the rights
of federal employees with respect to their jobs and their political acts and
beliefs it is not enough merely to forbid one employee to attempt to
influence or coerce another. For example, at the hearings in 1972 on
proposed legislation for liberalizing the prohibition against political
activity, the Chairman of the Civil Service Commission stated that the
prohibitions against active participation in partisan political management
and partisan political campaigns constitute the most significant safeguards
against coercion . . .. Perhaps Congress at some time will come to a
different view of the realities of political life and Government service; but
that is its current view of the matter, and we are not now in any position to
dispute it. Nor, in our view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in political
activities is absolute in any event. x x x
As we see it, our task is not to destroy the Act if we can, but to
construe it, if consistent with the will of Congress, so as to comport with
constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is
constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed
restrictions on the partisan political conduct of state employees.
Appellants freely concede that such restrictions serve valid and important
state interests, particularly with respect to attracting greater numbers of
qualified people by insuring their job security, free from the vicissitudes of
the elective process, and by protecting them from political extortion.
Rather, appellants maintain that however permissible, even commendable,
the goals of s 818 may be, its language is unconstitutionally vague and its
prohibitions too broad in their sweep, failing to distinguish between
conduct that may be proscribed and conduct that must be permitted. For
these and other reasons, appellants assert that the sixth and seventh
paragraphs of s 818 are void in toto and cannot be enforced against them
or anyone else.

141
We have held today that the Hatch Act is not impermissibly vague.
We have little doubt that s 818 is similarly not so vague that men of
common intelligence must necessarily guess at its meaning. Whatever
other problems there are with s 818, it is all but frivolous to suggest that
the section fails to give adequate warning of what activities it proscribes or
fails to set out explicit standards' for those who must apply it. In the
plainest language, it prohibits any state classified employee from being an
officer or member of a partisan political club or a candidate for any
paid public office. It forbids solicitation of contributions for any political
organization, candidacy or other political purpose and taking part in the
management or affairs of any political party or in any political campaign.
Words inevitably contain germs of uncertainty and, as with the Hatch Act,
there may be disputes over the meaning of such terms in s 818 as
partisan, or take part in, or affairs of political parties. But what was
said in Letter Carriers, is applicable here: there are limitations in the
English language with respect to being both specific and manageably
brief, and it seems to us that although the prohibitions may not satisfy
those intent on finding fault at any cost, they are set out in terms that the
ordinary person exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to the public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is overbroad and
purports to reach protected, as well as unprotected conduct, and must
therefore be struck down on its face and held to be incapable of any
constitutional application. We do not believe that the overbreadth doctrine
may appropriately be invoked in this manner here.
xxxx
The consequence of our departure from traditional rules of
standing in the First Amendment area is that any enforcement of a statute
thus placed at issue is totally forbidden until and unless a limiting
construction or partial invalidation so narrows it as to remove the seeming
threat or deterrence to constitutionally protected expression. Application
of the overbreadth doctrine in this manner is, manifestly, strong medicine.
It has been employed by the Court sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least, that
facial over-breadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves
from pure speech toward conduct and that conduct-even if expressivefalls within the scope of otherwise valid criminal laws that reflect
legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct. Although such laws, if too
broadly worded, may deter protected speech to some unknown extent,
there comes a point where that effect-at best a prediction-cannot, with

142
confidence, justify invalidating a statute on its face and so prohibiting a
State from enforcing the statute against conduct that is admittedly within
its power to proscribe. To put the matter another way, particularly where
conduct and not merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep. It is our view
that s 818 is not substantially overbroad and that whatever overbreadth
may exist should be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad
regulatory acts, s 818 is directed, by its terms, at political expression
which if engaged in by private persons would plainly be protected by the
First and Fourteenth Amendments. But at the same time, s 818 is not a
censorial statute, directed at particular groups or viewpoints. The statute,
rather, seeks to regulate political activity in an even-handed and neutral
manner. As indicted, such statutes have in the past been subject to a less
exacting overbreadth scrutiny. Moreover, the fact remains that s 818
regulates a substantial spectrum of conduct that is as manifestly subject to
state regulation as the public peace or criminal trespass. This much was
established in United Public Workers v. Mitchell, and has been
unhesitatingly reaffirmed today in Letter Carriers. Under the decision in
Letter Carriers, there is no question that s 818 is valid at least insofar as
it forbids classified employees from: soliciting contributions for partisan
candidates, political parties, or other partisan political purposes; becoming
members of national, state, or local committees of political parties, or
officers or committee members in partisan political clubs, or candidates
for any paid public office; taking part in the management or affairs of any
political party's partisan political campaign; serving as delegates or
alternates to caucuses or conventions of political parties; addressing or
taking an active part in partisan political rallies or meetings; soliciting
votes or assisting voters at the polls or helping in a partisan effort to get
voters to the polls; participating in the distribution of partisan campaign
literature; initiating or circulating partisan nominating petitions; or riding
in caravans for any political party or partisan political candidate.
x x x It may be that such restrictions are impermissible and that s
818 may be susceptible of some other improper applications. But, as
presently construed, we do not believe that s 818 must be discarded in toto
because some persons arguably protected conduct may or may not be
caught or chilled by the statute. Section 818 is not substantially overbroad
and it not, therefore, unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not
deny the principles enunciated in Letter Carriers and Broadrick. He would hold,
nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since
they pertain to different types of laws and were decided based on a different set of
facts, viz.:

143
In Letter Carriers, the plaintiffs alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch Acts
prohibition against active participation in political management or
political campaigns. The plaintiffs desired to campaign for candidates for
public office, to encourage and get federal employees to run for state and
local offices, to participate as delegates in party conventions, and to hold
office in a political club.
In Broadrick, the appellants sought the invalidation for being
vague and overbroad a provision in the (sic) Oklahomas Merit System of
Personnel Administration Act restricting the political activities of the
States classified civil servants, in much the same manner as the Hatch Act
proscribed partisan political activities of federal employees. Prior to the
commencement of the action, the appellants actively participated in the
1970 reelection campaign of their superior, and were administratively
charged for asking other Corporation Commission employees to do
campaign work or to give referrals to persons who might help in the
campaign, for soliciting money for the campaign, and for receiving and
distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic
resignation provision. Kenneth Mancuso, a full time police officer and
classified civil service employee of the City of Cranston, filed as a
candidate for nomination as representative to the Rhode Island General
Assembly. The Mayor of Cranston then began the process of enforcing the
resign-to-run provision of the City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different types of
laws and were decided based on a different set of facts, Letter Carriers
and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x
(italics in the original)
We hold, however, that his position is belied by a plain reading of these cases.
Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the
constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for
nomination as representative to the Rhode Island General Assembly. He
assailed the constitutionality of 14.09(c) of the City Home Rule Charter,
which prohibits continuing in the classified service of the city after becoming
a candidate for nomination or election to any public office.
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service
Commission was enforcing, or threatening to enforce, the Hatch Acts
prohibition against active participation in political management or political
campaigns with respect to certain defined activities in which they desired to
engage. The plaintiffs relevant to this discussion are

144
(a) The National Association of Letter Carriers, which alleged that
its members were desirous of, among others, running in local
elections for offices such as school board member, city council
member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as
a candidate for the office of Borough Councilman in his local
community for fear that his participation in a partisan election
would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a
Republican candidate in the 1971 partisan election for the
mayor of West Lafayette, Indiana, and that he would do so
except for fear of losing his job by reason of violation of the
Hatch Act.
The Hatch Act defines active participation in political management or
political campaigns by cross-referring to the rules made by the Civil Service
Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination
or for election to any National, State, county, or municipal
office is not permissible. The prohibition against political
activity extends not merely to formal announcement of
candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or
doing or permitting to be done any act in furtherance of
candidacy. The fact that candidacy, is merely passive is
immaterial; if an employee acquiesces in the efforts of
friends in furtherance of such candidacy such acquiescence
constitutes an infraction of the prohibitions against political
activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids the use
of appropriated funds thereafter to pay compensation to these persons.
(3) Broadrick was a class action brought by certain Oklahoma state employees
seeking a declaration of unconstitutionality of two sub-paragraphs of Section
818 of Oklahomas Merit System of Personnel Administration Act. Section
818 (7), the paragraph relevant to this discussion, states that [n]o employee
in the classified service shall be a candidate for nomination or election to
any paid public office Violation of Section 818 results in dismissal from
employment, possible criminal sanctions and limited state employment
ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick
effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be
held operative, as Letter Carriers and Broadrick (i) concerned virtually identical
resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme

145
Court. It was thus not surprising for the First Circuit Court of Appeals the same court
that decided Mancuso to hold categorically and emphatically in Magill v. Lynch that
Mancuso is no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city
office in 1975. Pawtuckets Little Hatch Act prohibits city employees
from engaging in a broad range of political activities. Becoming a
candidate for any city office is specifically proscribed, the violation being
punished by removal from office or immediate dismissal. The firemen
brought an action against the city officials on the ground that that the
provision of the city charter was unconstitutional. However, the court,
fully cognizant of Letter Carriers and Broadrick, took the position that
Mancuso had since lost considerable vitality. It observed that the view
that political candidacy was a fundamental interest which could be
infringed upon only if less restrictive alternatives were not available,
was a position which was no longer viable, since the Supreme Court
(finding that the governments interest in regulating both the conduct
and speech of its employees differed significantly from its interest in
regulating those of the citizenry in general) had given little weight to
the argument that prohibitions against the coercion of government
employees were a less drastic means to the same end, deferring to the
judgment of Congress, and applying a balancing test to determine
whether limits on political activity by public employees substantially
served government interests which were important enough to
outweigh the employees First Amendment rights.
It must be noted that the Court of Appeals ruled in this manner
even though the election in Magill was characterized as nonpartisan, as it
was reasonable for the city to fear, under the circumstances of that case,
that politically active bureaucrats might use their official power to help
political friends and hurt political foes. Ruled the court:
The question before us is whether Pawtucket's
charter provision, which bars a city employee's candidacy
in even a nonpartisan city election, is constitutional. The
issue compels us to extrapolate two recent Supreme Court
decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both dealt with laws
barring civil servants from partisan political activity. Letter
Carriers reaffirmed United Public Workers v. Mitchell,
upholding the constitutionality of the Hatch Act as to
federal employees. Broadrick sustained Oklahoma's Little
Hatch Act against constitutional attack, limiting its
holding to Oklahoma's construction that the Act barred
only activity in partisan politics. In Mancuso v. Taft, we
assumed that proscriptions of candidacy in nonpartisan

146
elections would not be constitutional. Letter Carriers and
Broadrick compel new analysis.
xxxx
What we are obligated to do in this case, as the
district court recognized, is to apply the Courts interest
balancing approach to the kind of nonpartisan election
revealed in this record. We believe that the district court
found more residual vigor in our opinion in Mancuso v.
Taft than remains after Letter Carriers. We have particular
reference to our view that political candidacy was a
fundamental interest which could be trenched upon only if
less restrictive alternatives were not available. While this
approach may still be viable for citizens who are not
government employees, the Court in Letter Carriers
recognized that the government's interest in regulating
both the conduct and speech of its employees differs
significantly from its interest in regulating those of the
citizenry in general. Not only was United Public Workers
v. Mitchell "unhesitatingly" reaffirmed, but the Court gave
little weight to the argument that prohibitions against the
coercion of government employees were a less drastic
means to the same end, deferring to the judgment of the
Congress. We cannot be more precise than the Third
Circuit in characterizing the Court's approach as "some sort
of 'balancing' process". It appears that the government may
place limits on campaigning by public employees if the
limits substantially serve government interests that are
"important" enough to outweigh the employees' First
Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question, the
Magill court detailed the major governmental interests discussed in Letter
Carriers and applied them to the Pawtucket provision as follows:
In Letter Carriers[,] the first interest identified by
the Court was that of an efficient government, faithful to
the Congress rather than to party. The district court
discounted this interest, reasoning that candidates in a local
election would not likely be committed to a state or
national platform. This observation undoubtedly has
substance insofar as allegiance to broad policy positions is
concerned. But a different kind of possible political
intrusion into efficient administration could be thought to
threaten municipal government: not into broad policy
decisions, but into the particulars of administration
favoritism in minute decisions affecting welfare, tax
assessments, municipal contracts and purchasing, hiring,

147
zoning, licensing, and inspections. Just as the Court in
Letter Carriers identified a second governmental interest in
the avoidance of the appearance of "political justice" as to
policy, so there is an equivalent interest in avoiding the
appearance of political preferment in privileges,
concessions, and benefits. The appearance (or reality) of
favoritism that the charter's authors evidently feared is not
exorcised by the nonpartisan character of the formal
election process. Where, as here, party support is a key to
successful campaigning, and party rivalry is the norm, the
city might reasonably fear that politically active
bureaucrats would use their official power to help political
friends and hurt political foes. This is not to say that the
city's interest in visibly fair and effective administration
necessarily justifies a blanket prohibition of all employee
campaigning; if parties are not heavily involved in a
campaign, the danger of favoritism is less, for neither
friend nor foe is as easily identified.
A second major governmental interest identified in
Letter Carriers was avoiding the danger of a powerful
political machine. The Court had in mind the large and
growing federal bureaucracy and its partisan potential. The
district court felt this was only a minor threat since parties
had no control over nominations. But in fact candidates
sought party endorsements, and party endorsements proved
to be highly effective both in determining who would
emerge from the primary election and who would be
elected in the final election. Under the prevailing customs,
known party affiliation and support were highly significant
factors in Pawtucket elections. The charter's authors might
reasonably have feared that a politically active public work
force would give the incumbent party, and the incumbent
workers, an unbreakable grasp on the reins of power. In
municipal elections especially, the small size of the
electorate and the limited powers of local government may
inhibit the growth of interest groups powerful enough to
outbalance the weight of a partisan work force. Even when
nonpartisan issues and candidacies are at stake, isolated
government employees may seek to influence voters or
their co-workers improperly; but a more real danger is that
a central party structure will mass the scattered powers of
government workers behind a single party platform or slate.
Occasional misuse of the public trust to pursue private
political ends is tolerable, especially because the political
views of individual employees may balance each other out.
But party discipline eliminates this diversity and tends to
make abuse systematic. Instead of a handful of employees
pressured into advancing their immediate superior's

148
political ambitions, the entire government work force may
be expected to turn out for many candidates in every
election. In Pawtucket, where parties are a continuing
presence in political campaigns, a carefully orchestrated
use of city employees in support of the incumbent party's
candidates is possible. The danger is scarcely lessened by
the openness of Pawtucket's nominating procedure or the
lack of party labels on its ballots.
The third area of proper governmental interest in
Letter Carriers was ensuring that employees achieve
advancement on their merits and that they be free from both
coercion and the prospect of favor from political activity.
The district court did not address this factor, but looked
only to the possibility of a civil servant using his position to
influence voters, and held this to be no more of a threat
than in the most nonpartisan of elections. But we think that
the possibility of coercion of employees by superiors
remains as strong a factor in municipal elections as it was
in Letter Carriers. Once again, it is the systematic and
coordinated exploitation of public servants for political
ends that a legislature is most likely to see as the primary
threat of employees' rights. Political oppression of public
employees will be rare in an entirely nonpartisan system.
Some superiors may be inclined to ride herd on the politics
of their employees even in a nonpartisan context, but
without party officials looking over their shoulders most
supervisors will prefer to let employees go their own ways.
In short, the government may constitutionally
restrict its employees' participation in nominally
nonpartisan elections if political parties play a large role in
the campaigns. In the absence of substantial party
involvement, on the other hand, the interests identified by
the Letter Carriers Court lose much of their force. While
the employees' First Amendment rights would normally
outbalance these diminished interests, we do not suggest
that they would always do so. Even when parties are
absent, many employee campaigns might be thought to
endanger at least one strong public interest, an interest that
looms larger in the context of municipal elections than it
does in the national elections considered in Letter Carriers.
The city could reasonably fear the prospect of a subordinate
running directly against his superior or running for a
position that confers great power over his superior. An
employee of a federal agency who seeks a Congressional
seat poses less of a direct challenge to the command and
discipline of his agency than a fireman or policeman who
runs for mayor or city council. The possibilities of internal

149
discussion, cliques, and political bargaining, should an
employee gather substantial political support, are
considerable. (citations omitted)
The court, however, remanded the case to the district court for
further proceedings in respect of the petitioners overbreadth charge.
Noting that invalidating a statute for being overbroad is not to be taken
lightly, much less to be taken in the dark, the court held:
The governing case is Broadrick, which introduced
the doctrine of "substantial" overbreadth in a closely
analogous case. Under Broadrick, when one who
challenges a law has engaged in constitutionally
unprotected conduct (rather than unprotected speech) and
when the challenged law is aimed at unprotected conduct,
"the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly
legitimate sweep." Two major uncertainties attend the
doctrine: how to distinguish speech from conduct, and how
to define "substantial" overbreadth. We are spared the first
inquiry by Broadrick itself. The plaintiffs in that case had
solicited support for a candidate, and they were subject to
discipline under a law proscribing a wide range of
activities, including soliciting contributions for political
candidates and becoming a candidate. The Court found that
this combination required a substantial overbreadth
approach. The facts of this case are so similar that we may
reach the same result without worrying unduly about the
sometimes opaque distinction between speech and conduct.
The second difficulty is not so easily disposed of.
Broadrick found no substantial overbreadth in a statute
restricting partisan campaigning. Pawtucket has gone
further, banning participation in nonpartisan campaigns as
well. Measuring the substantiality of a statute's
overbreadth apparently requires, inter alia, a rough
balancing of the number of valid applications compared to
the number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application that
is far-fetched does not deserve as much weight as one that
is probable. The question is a matter of degree; it will
never be possible to say that a ratio of one invalid to nine
valid applications makes a law substantially overbroad.
Still, an overbreadth challenger has a duty to provide the
court with some idea of the number of potentially invalid
applications the statute permits. Often, simply reading the
statute in the light of common experience or litigated cases
will suggest a number of probable invalid applications. But
this case is different. Whether the statute is overbroad

150
depends in large part on the number of elections that are
insulated from party rivalry yet closed to Pawtucket
employees. For all the record shows, every one of the city,
state, or federal elections in Pawtucket is actively contested
by political parties. Certainly the record suggests that
parties play a major role even in campaigns that often are
entirely nonpartisan in other cities. School committee
candidates, for example, are endorsed by the local
Democratic committee.
The state of the record does not permit us to find
overbreadth; indeed such a step is not to be taken lightly,
much less to be taken in the dark. On the other hand, the
entire focus below, in the short period before the election
was held, was on the constitutionality of the statute as
applied. Plaintiffs may very well feel that further efforts are
not justified, but they should be afforded the opportunity to
demonstrate that the charter forecloses access to a
significant number of offices, the candidacy for which by
municipal employees would not pose the possible threats to
government efficiency and integrity which Letter Carriers,
as we have interpreted it, deems significant. Accordingly,
we remand for consideration of plaintiffs' overbreadth
claim. (italics supplied, citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate
beyond doubt that Mancuso v. Taft, heavily relied upon by the
ponencia, has effectively been overruled. As it is no longer good law,
the ponencias exhortation that [since] the Americans, from whom we
copied the provision in question, had already stricken down a similar
measure for being unconstitutional[,] it is high-time that we, too, should
follow suit is misplaced and unwarranted.
Accordingly, our assailed Decisions submission that the right to run for public
office is inextricably linked with two fundamental freedoms those of expression and
association lies on barren ground. American case law has in fact never recognized a
fundamental right to express ones political views through candidacy, as to invoke a
rigorous standard of review. Bart v. Telford pointedly stated that [t]he First
Amendment does not in terms confer a right to run for public office, and this court has
held that it does not do so by implication either. Thus, ones interest in seeking office,
by itself, is not entitled to constitutional protection. Moreover, one cannot bring ones
action under the rubric of freedom of association, absent any allegation that, by running
for an elective position, one is advancing the political ideas of a particular set of voters.
Prescinding from these premises, it is crystal clear that the provisions challenged in
the case at bar, are not violative of the equal protection clause. The deemed-resigned
provisions substantially serve governmental interests (i.e., (i) efficient civil service
faithful to the government and the people rather than to party; (ii) avoidance of the
appearance of political justice as to policy; (iii) avoidance of the danger of a powerful

151
political machine; and (iv) ensuring that employees achieve advancement on their merits
and that they be free from both coercion and the prospect of favor from political activity).
These are interests that are important enough to outweigh the non-fundamental right of
appointive officials and employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v.
Fashing and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al. to
buttress his dissent. Maintaining that resign-to-run provisions are valid only when made
applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the constitutionality of
resign-to-run provisions when applied to specified or particular officials,
as distinguished from all others, under a classification that is germane
to the purposes of the law. These resign-to-run legislations were not
expressed in a general and sweeping provision, and thus did not violate
the test of being germane to the purpose of the law, the second requisite
for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis in the
original)
This reading is a regrettable misrepresentation of Clements and Morial. The
resign-to-run provisions in these cases were upheld not because they referred to specified
or particular officials (vis--vis a general class); the questioned provisions were found
valid precisely because the Court deferred to legislative judgment and found that a
regulation is not devoid of a rational predicate simply because it happens to be
incomplete. In fact, the equal protection challenge in Clements revolved around the
claim that the State of Texas failed to explain why some public officials are subject to the
resign-to-run provisions, while others are not. Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the
holders of certain offices automatically resign their positions if they
become candidates for any other elected office, unless the unexpired
portion of the current term is one year or less. The burdens that 65
imposes on candidacy are even less substantial than those imposed by
19. The two provisions, of course, serve essentially the same state
interests. The District Court found 65 deficient, however, not because of
the nature or extent of the provision's restriction on candidacy, but because
of the manner in which the offices are classified. According to the District
Court, the classification system cannot survive equal protection scrutiny,
because Texas has failed to explain sufficiently why some elected public
officials are subject to 65 and why others are not. As with the case of
19, we conclude that 65 survives a challenge under the Equal Protection
Clause unless appellees can show that there is no rational predicate to the
classification scheme.
The history behind 65 shows that it may be upheld consistent
with the "one step at a time" approach that this Court has undertaken with
regard to state regulation not subject to more vigorous scrutiny than that
sanctioned by the traditional principles. Section 65 was enacted in 1954 as

152
a transitional provision applying only to the 1954 election. Section 65
extended the terms of those offices enumerated in the provision from two
to four years. The provision also staggered the terms of other offices so
that at least some county and local offices would be contested at each
election. The automatic resignation proviso to 65 was not added until
1958. In that year, a similar automatic resignation provision was added in
Art. XI, 11, which applies to officeholders in home rule cities who serve
terms longer than two years. Section 11 allows home rule cities the option
of extending the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a creature of
the State's electoral reforms of 1958. That the State did not go further in
applying the automatic resignation provision to those officeholders whose
terms were not extended by 11 or 65, absent an invidious purpose, is
not the sort of malfunctioning of the State's lawmaking process forbidden
by the Equal Protection Clause. A regulation is not devoid of a rational
predicate simply because it happens to be incomplete. The Equal
Protection Clause does not forbid Texas to restrict one elected
officeholder's candidacy for another elected office unless and until it
places similar restrictions on other officeholders. The provision's language
and its history belie any notion that 65 serves the invidious purpose of
denying access to the political process to identifiable classes of potential
candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that there
is no blanket approval of restrictions on the right of public employees to become
candidates for public office out of context. A correct reading of that line readily shows
that the Court only meant to confine its ruling to the facts of that case, as each equal
protection challenge would necessarily have to involve weighing governmental interests
vis--vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political
association are unquestionably entitled to the protection of the first and
fourteenth amendments. Nothing in today's decision should be taken to
imply that public employees may be prohibited from expressing their
private views on controversial topics in a manner that does not interfere
with the proper performance of their public duties. In today's decision,
there is no blanket approval of restrictions on the right of public
employees to become candidates for public office. Nor do we approve any
general restrictions on the political and civil rights of judges in particular.
Our holding is necessarily narrowed by the methodology employed to
reach it. A requirement that a state judge resign his office prior to
becoming a candidate for non-judicial office bears a reasonably necessary
relation to the achievement of the state's interest in preventing the actuality
or appearance of judicial impropriety. Such a requirement offends neither
the first amendment's guarantees of free expression and association nor the
fourteenth amendment's guarantee of equal protection of the laws. (italics
supplied)

153

Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which
of its employment positions require restrictions on partisan political
activities and which may be left unregulated. And a State can hardly be
faulted for attempting to limit the positions upon which such restrictions
are placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code on equal protection ground, our assailed
Decision struck them down for being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding
appointive posts without due regard for the type of position being held by the
employee seeking an elective post and the degree of influence that may be
attendant thereto; and
(2) The assailed provisions limit the candidacy of any and all civil servants
holding appointive positions without due regard for the type of office being
sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i.

Limitation on Candidacy Regardless of

Incumbent Appointive Officials Position, Valid

According to the assailed Decision, the challenged provisions of law are overly
broad because they apply indiscriminately to all civil servants holding appointive posts,
without due regard for the type of position being held by the employee running for
elective office and the degree of influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are
extant only when the incumbent appointive official running for elective office holds an
influential post.

154
Such a myopic view obviously fails to consider a different, yet equally plausible,
threat to the government posed by the partisan potential of a large and growing
bureaucracy: the danger of systematic abuse perpetuated by a powerful political
machine that has amassed the scattered powers of government workers so as to give
itself and its incumbent workers an unbreakable grasp on the reins of power. As
elucidated in our prior exposition:
Attempts by government employees to wield influence over others
or to make use of their respective positions (apparently) to promote their
own candidacy may seem tolerable even innocuous particularly when
viewed in isolation from other similar attempts by other government
employees. Yet it would be decidedly foolhardy to discount the equally (if
not more) realistic and dangerous possibility that such seemingly
disjointed attempts, when taken together, constitute a veiled effort on the
part of an emerging central party structure to advance its own agenda
through a carefully orchestrated use of [appointive and/or elective]
officials coming from various levels of the bureaucracy.
[T]he avoidance of such a politically active public work force
which could give an emerging political machine an unbreakable grasp on
the reins of power is reason enough to impose a restriction on the
candidacies of all appointive public officials without further distinction as
to the type of positions being held by such employees or the degree of
influence that may be attendant thereto. (citations omitted)
The assailed Decision also held that the challenged provisions of law are overly
broad because they are made to apply indiscriminately to all civil servants holding
appointive offices, without due regard for the type of elective office being sought,
whether it be partisan or nonpartisan in character, or in the national, municipal or
barangay level.
This erroneous ruling is premised on the assumption that the concerns of a truly
partisan office and the temptations it fosters are sufficiently different from those involved
in an office removed from regular party politics [so as] to warrant distinctive treatment,
so that restrictions on candidacy akin to those imposed by the challenged provisions can
validly apply only to situations in which the elective office sought is partisan in character.
To the extent, therefore, that such restrictions are said to preclude even candidacies for
nonpartisan elective offices, the challenged restrictions are to be considered as
overbroad.
Again, a careful study of the challenged provisions and related laws on the matter
will show that the alleged overbreadth is more apparent than real. Our exposition on this
issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the
rules and guidelines set forth therein refer to the filing of certificates of
candidacy and nomination of official candidates of registered political
parties, in connection with the May 10, 2010 National and Local
Elections. Obviously, these rules and guidelines, including the restriction

155
in Section 4(a) of Resolution 8678, were issued specifically for purposes
of the May 10, 2010 National and Local Elections, which, it must be
noted, are decidedly partisan in character. Thus, it is clear that the
restriction in Section 4(a) of RA 8678 applies only to the candidacies of
appointive officials vying for partisan elective posts in the May 10, 2010
National and Local Elections. On this score, the overbreadth challenge
leveled against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and
Section 66 of the Omnibus Election Code, in conjunction with other
related laws on the matter, will confirm that these provisions are likewise
not intended to apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the
elections for barangay offices, since these are the only elections in this
country which involve nonpartisan public offices.
In this regard, it is well to note that from as far back as the
enactment of the Omnibus Election Code in 1985, Congress has intended
that these nonpartisan barangay elections be governed by special rules,
including a separate rule on deemed resignations which is found in Section
39 of the Omnibus Election Code. Said provision states:

Section 39. Certificate of Candidacy. No person shall be

elected punong barangay or kagawad ng sangguniang
barangay unless he files a sworn certificate of candidacy in
triplicate on any day from the commencement of the
election period but not later than the day before the
beginning of the campaign period in a form to be
prescribed by the Commission. The candidate shall state
the barangay office for which he is a candidate.
xxxx
Any elective or appointive municipal, city, provincial or
national official or employee, or those in the civil or
military service, including those in government-owned orcontrolled corporations, shall be considered automatically
resigned upon the filing of certificate of candidacy for a
barangay office.
Since barangay elections are governed by a separate deemed
resignation rule, under the present state of law, there would be no occasion
to apply the restriction on candidacy found in Section 66 of the Omnibus
Election Code, and later reiterated in the proviso of Section 13 of RA
9369, to any election other than a partisan one. For this reason, the

156
overbreadth challenge raised against Section 66 of the Omnibus Election
Code and the pertinent proviso in Section 13 of RA 9369 must also fail.

In any event, even if we were to assume, for the sake of argument, that Section 66
of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369
are general rules that apply also to elections for nonpartisan public offices, the
overbreadth challenge would still be futile. Again, we explained:

In the first place, the view that Congress is limited to controlling

only partisan behavior has not received judicial imprimatur, because the
general proposition of the relevant US cases on the matter is simply that
the government has an interest in regulating the conduct and speech of its
employees that differs significantly from those it possesses in connection
with regulation of the speech of the citizenry in general.
Moreover, in order to have a statute declared as unconstitutional or
void on its face for being overly broad, particularly where, as in this case,
conduct and not pure speech is involved, the overbreadth must not
only be real, but substantial as well, judged in relation to the statutes
plainly legitimate sweep.
In operational terms, measuring the substantiality of a statutes
overbreadth would entail, among other things, a rough balancing of the
number of valid applications compared to the number of potentially
invalid applications. In this regard, some sensitivity to reality is needed; an
invalid application that is far-fetched does not deserve as much weight as
one that is probable. The question is a matter of degree. Thus, assuming
for the sake of argument that the partisan-nonpartisan distinction is valid
and necessary such that a statute which fails to make this distinction is
susceptible to an overbreadth attack, the overbreadth challenge presently
mounted must demonstrate or provide this Court with some idea of the
number of potentially invalid elections (i.e. the number of elections that
were insulated from party rivalry but were nevertheless closed to
appointive employees) that may in all probability result from the
enforcement of the statute.
The state of the record, however, does not permit us to find
overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a
step is not to be taken lightly, much less to be taken in the dark, especially
since an overbreadth finding in this case would effectively prohibit the
State from enforcing an otherwise valid measure against conduct that is
admittedly within its power to proscribe.

157
This Court would do well to proceed with tiptoe caution, particularly when it
comes to the application of the overbreadth doctrine in the analysis of statutes that
purportedly attempt to restrict or burden the exercise of the right to freedom of speech,
for such approach is manifestly strong medicine that must be used sparingly, and only as
a last resort.
In the United States, claims of facial overbreadth have been entertained only
where, in the judgment of the court, the possibility that protected speech of others may be
muted and perceived grievances left to fester (due to the possible inhibitory effects of
overly broad statutes) outweighs the possible harm to society in allowing some
unprotected speech or conduct to go unpunished. Facial overbreadth has likewise not
been invoked where a limiting construction could be placed on the challenged statute, and
where there are readily apparent constructions that would cure, or at least substantially
reduce, the alleged overbreadth of the statute.

In the case at bar, the probable harm to society in permitting incumbent

appointive officials to remain in office, even as they actively pursue elective posts, far
outweighs the less likely evil of having arguably protected candidacies blocked by the
possible inhibitory effect of a potentially overly broad statute.

In this light, the conceivably impermissible applications of the challenged statutes

which are, at best, bold predictions cannot justify invalidating these statutes in toto
and prohibiting the State from enforcing them against conduct that is, and has for more
than 100 years been, unquestionably within its power and interest to proscribe. Instead,
the more prudent approach would be to deal with these conceivably impermissible
applications through case-by-case adjudication rather than through a total invalidation of
the statute itself.

Indeed, the anomalies spawned by our assailed Decision have taken place. In his
Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking
Cabinet members had already filed their Certificates of Candidacy without relinquishing
their posts. Several COMELEC election officers had likewise filed their Certificates of
Candidacy in their respective provinces. Even the Secretary of Justice had filed her
certificate of substitution for representative of the first district of Quezon province last
December 14, 2009 even as her position as Justice Secretary includes supervision over
the City and Provincial Prosecutors, who, in turn, act as Vice-Chairmen of the respective
Boards of Canvassers. The Judiciary has not been spared, for a Regional Trial Court
Judge in the South has thrown his hat into the political arena. We cannot allow the tilting
of our electoral playing field in their favor.

158
For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and
Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code,
are not unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and
the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts
December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring
as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2)
the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3)
Section 66 of the Omnibus Election Code.
The provision of the Compensation and
Position Classification Act which includes
certain allowance and other benefits of
government officials in their salary rates
but not military and police personnel is
not violative of the equal protection clause

VICTORIA
C.
GUTIERREZ,
et
al
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT,
G.R. No. 153266, March 18, 2010
ABAD, J.:
These consolidated cases question the inclusion of certain allowances and fringe
benefits into the standardized salary rates for offices in the national government, state
universities and colleges, and local government units as required by the Compensation
and Position Classification Act of 1989 and implemented through the challenged
National Compensation Circular 59 (NCC 59) while the said allowances and other fringe
benefits are not included insofar as members of the police and military are concerned.
The Facts and the Case
Congress enacted in 1989 Republic Act (R.A.) 6758, called the Compensation and
Position Classification Act of 1989 to rationalize the compensation of government
employees. Its Section 12 directed the consolidation of allowances and additional
compensation already being enjoyed by employees into their standardized salary rates.
But it exempted certain additional compensations that the employees may be receiving
from such consolidation. Thus:
Section 12. Consolidation of Allowances and Compensation. -All allowances, except for representation and transportation
allowances; clothing and laundry allowances; subsistence allowance of
marine officers and crew on board government vessels and hospital
personnel; hazard pay; allowances of foreign service personnel
stationed abroad; and such other additional compensation not

159
otherwise specified herein as may be determined by the DBM, shall be
deemed included in the standardized salary rates herein prescribed.
Such other additional compensation, whether in cash or in kind, being
received by incumbents only as of July 1, 1989 not integrated into the
standardized salary rates shall continue to be authorized.
The Issue:
Whether or not the grant of COLA to military and
police personnel to the exclusion of other government
employees violates the equal protection clause.
The Courts Ruling
At the heart of the present controversy is Section 12 of R.A. 6758 as quoted
above. .
As will be noted from the first sentence above, all allowances were deemed
integrated into the standardized salary rates except the following:
(1)

representation and transportation allowances;

(2)

clothing and laundry allowances;

(3)

subsistence allowances of marine officers and crew on board government

vessels;

(4)

subsistence allowances of hospital personnel;

(5)

hazard pay;

(6)

allowances of foreign service personnel stationed abroad; and

(7)

such other additional compensation not otherwise specified in Section 12 as

may be determined by the DBM.

But, while the provision enumerated certain exclusions, it also authorized the
DBM to identify such other additional compensation that may be granted over and above
the standardized salary rates. In Philippine Ports Authority Employees Hired After July
1, 1989 v. Commission on Audit, the Court has ruled that while Section 12 could be
considered self-executing in regard to items (1) to (6), it was not so in regard to item (7).
The DBM still needed to amplify item (7) since one cannot simply assume what other
allowances were excluded from the standardized salary rates. It was only upon the
issuance and effectivity of the corresponding implementing rules and regulations that
item (7) could be deemed legally completed.

160
Clearly, COLA is not in the nature of an allowance intended to reimburse expenses
incurred by officials and employees of the government in the performance of their
official functions. It is not payment in consideration of the fulfillment of official duty.
As defined, cost of living refers to the level of prices relating to a range of everyday
items or the cost of purchasing those goods and services which are included in an
accepted standard level of consumption. Based on this premise, COLA is a benefit
intended to cover increases in the cost of living. Thus, it is and should be integrated into
the standardized salary rates.
Petitioners contend that the continued grant of COLA to military and police to
the exclusion of other government employees violates the equal protection clause of the
Constitution.
But as respondents pointed out, while it may appear that petitioners are
questioning the constitutionality of these issuances, they are in fact attacking the very
constitutionality of Section 11 of R.A. 6758. It is actually this provision which allows the
uniformed personnel to continue receiving their COLA over and above their basic pay,
thus:
Section 11. Military and Police Personnel. - The base pay of
uniformed personnel of the Armed Forces of the Philippines and the
Integrated National Police shall be as prescribed in the salary
schedule for these personnel in R.A. 6638 and R.A. 6648. The
longevity pay of these personnel shall be as prescribed under R.A.
6638, and R.A. 1134 as amended by R.A. 3725 and R.A. 6648:
Provided, however, That the longevity pay of uniformed personnel of
the Integrated National Police shall include those services rendered as
uniformed members of the police, jail and fire departments of the
local government units prior to the police integration.
All existing types of allowances authorized for uniformed
personnel of the Armed Forces of the Philippines and Integrated
National Police such as cost of living allowance, longevity pay,
quarters allowance, subsistence allowance, clothing allowance, hazard
pay and other allowances shall continue to be authorized.
Nothing is more settled than that the constitutionality of a statute cannot be
attacked collaterally because constitutionality issues must be pleaded directly and not
collaterally.
In any event, the Court is not persuaded that the continued grant of COLA to the
uniformed personnel to the exclusion of other national government officials run afoul the
equal protection clause of the Constitution. The fundamental right of equal protection of
the laws is not absolute, but is subject to reasonable classification. If the groupings are
characterized by substantial distinctions that make real differences, one class may be
treated and regulated differently from another. The classification must also be germane
to the purpose of the law and must apply to all those belonging to the same class.

161
To be valid and reasonable, the classification must satisfy the following
requirements: (1) it must rest on substantial distinctions; (2) it must be germane to the
purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must
apply equally to all members of the same class.
It is clear from the first paragraph of Section 11 that Congress intended the
uniformed personnel to be continually governed by their respective compensation laws.
Thus, the military is governed by R.A. 6638, as amended by R.A. 9166 while the police
is governed by R.A. 6648, as amended by R.A. 6975.
Certainly, there are valid reasons to treat the uniformed personnel differently from
other national government officials. Being in charged of the actual defense of the State
and the maintenance of internal peace and order, they are expected to be
stationed virtually anywhere in the country. They are likely to be assigned to a variety of
low, moderate, and high-cost areas. Since their basic pay does not vary based on
location, the continued grant of COLA is intended to help them offset the effects of living
in higher cost areas.
Warrantless arrest, search and seizure of
a person caught in flagrante selling
prohibited drugs is valid.
PEOPLE OF THE PHILIPPINES VS. SPO3 SANGKI
ARA, G.R. No. 185011, December 23, 2009
VELASCO, JR., J.:
This is an appeal from the December 13, 2007 Decision of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 00025B entitled People of the Philippines v. SPO3
Sangki Ara y Mirasol, Mike Talib y Mama, Jordan Musa y Bayan, which affirmed the
Decision of the Regional Trial Court (RTC), Branch 9 in Davao City, convicting
accused-appellants of violation of Republic Act No. (RA) 9165 or the Comprehensive
Dangerous Drugs Act of 2002.
The Facts
Criminal Case No. 51,471-2002 against Ara
That on or about December 20, 2002, in the City of Davao, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, without being authorized by law, willfully, unlawfully and
consciously traded, transported and delivered 26.6563 grams of
Methamphetamine Hydrochloride or shabu, which is a dangerous drug,
with the aggravating circumstance of trading, transporting and delivering
said 26.6563 grams of shabu within 100 meters from [the] school St.
Peters College of Toril, Davao City.
CONTRARY TO LAW.

162

During their arraignment, accused-appellants all gave a not guilty plea.

Version of the Prosecution
In the morning of December 20, 2002, a confidential informant (CI) came to the
Heinous Crime Investigation Section (HCIS) of the Davao City Police Department and
reported that three (3) suspected drug pushers had contacted him for a deal involving six
(6) plastic sachets of shabu. He was instructed to go that same morning to St. Peters
College at Toril, Davao City and look for an orange Nissan Sentra car.
Police Chief Inspector Fulgencio Pavo, Sr. immediately formed a buy-bust team
composed of SPO3 Reynaldo Capute, SPO4 Mario Galendez, SPO3 Antonio Balolong,
SPO2 Arturo Lascaos, SPO2 Jim Tan, SPO1 Rizalino Aquino, SPO1 Bienvenido Furog,
PO2 Vivencio Jumawan, Jr., PO2 Ronald Lao, and PO1 Enrique Ayao, Jr., who would
act as poseur-buyer.
The team proceeded to the school where PO1 Ayao and the CI waited by the gate.
At around 8:45 a.m., an orange Nissan Sentra bearing plate number UGR 510 stopped in
front of them. The two men approached the vehicle and the CI talked briefly with an old
man in the front seat. PO1 Ayao was then told to get in the back seat as accusedappellant Mike Talib opened the door. The old man, later identified as accused-appellant
SPO3 Ara, asked PO1 Ayao if he had the money and the latter replied in the positive.
Ara took out several sachets with crystalline granules from his pocket and handed them to
PO1 Ayao, who thereupon gave the pre-arranged signal of opening the car door. The
driver of the car, later identified as accused-appellant Jordan Musa, tried to drive away
but PO1 Ayao was able to switch off the car engine in time. The back-up team appeared
and SPO1 Furog held on to Musa while PO2 Lao restrained Talib. PO1 Ayao then asked
Ara to get out of the vehicle.

Recovered from the group were plastic sachets of white crystalline substance: six
(6) big sachets, weighing 26.6563 grams, from Ara by PO1 Ayao; five (5) big sachets,
weighing 14.2936 grams, from Musa by SPO1 Furog; and a small sachet, weighing
0.3559 gram, from Talib by PO2 Lao.
The three suspects were brought to the HCIS and the seized items indorsed to the
Philippine National Police (PNP) Crime Laboratory for examination. Forensic Chemist
Austero, who conducted the examination, found that the confiscated sachets all tested
positive for shabu.
Version of the Defense
The defense offered the sole testimony of Ara, who said that he had been a member
of the PNP for 32 years, with a spotless record. On December 20, 2002, SPO3 Ara was
in Cotabato City, at the house of his daughter Marilyn, wife of his co-accused Musa. He
was set to go that day to the Ombudsmans Davao City office for some paperwork in

163
preparation for his retirement on July 8, 2003. He recounted expecting at least PhP 1.6
million in retirement benefits. Early that morning, past three oclock, he and Musa
headed for Davao City on board the latters car. As he was feeling weak, Ara slept in the
back seat.
Upon reaching Davao City, he was surprised to see another man, Mike Talib, in
the front seat of the car when he woke up. Musa explained that Talib had hitched a ride
on a bridge they had passed.
When they arrived in Toril, Ara noticed the car to be overheating, so they
stopped. Ara did not know that they were near St. Peters College since he was not
familiar with the area. Talib alighted from the car and Ara transferred to the front seat.
While Talib was getting into the back seat, PO1 Ayao came out of nowhere, pointed his .
45 caliber pistol at Ara even if he was not doing anything, and ordered him to get off the
vehicle. He saw that guns were also pointed at his companions. As the group were being
arrested, he told PO1 Ayao that he was also a police officer. Ara insisted that he was not
holding anything and that the shabu taken from him was planted. He asserted that the
only time he saw shabu was on television.
The Ruling of the Trial Court
The dispositive portion of the RTC Decision reads:
WHEREFORE, premised on the foregoing the Court finds the
following:
In Criminal Case No. 51,471-2002, the accused herein SANGKI
ARA Y MASOL, Filipino, 55 years old, widower, a resident of
Kabuntalan, Cotabato City, is hereby found GUILTY beyond reasonable
doubt, and is CONVICTED of the crime of violation of Sec. 5, 1st
paragraph of Republic Act 9165. He is hereby imposed the DEATH
PENALTY and FINE of TEN MILLION PESOS (PhP 10,000,000) with
all the accessory penalties corresponding thereto, including absolute
perpetual disqualification from any public office, in view of the provision
of section 28 of RA 9165 quoted above.
Since the prosecution proved beyond reasonable doubt that the
crime was committed in the area which is only five (5) to six (6) meters
away from the school, the provision of section 5 paragraph 3 Article II of
RA 9165 was applied in the imposition of the maximum penalty against
the herein accused.
In Criminal Case No. 51,472-2002, the accused herein MIKE
TALIB y MAMA, Filipino, of legal age, single and a resident of Parang,
Cotabato, is found GUILTY beyond reasonable doubt, and is
CONVICTED of the crime of violation of Sec. 11, 3rd paragraph, Article
II of Republic Act 9165. He is hereby imposed a penalty of Imprisonment
of SIXTEEN (16) YEARS and a fine of THREE HUNDRED

164
THOUSAND PESOS (PhP 300,000) with all the accessory penalties
corresponding thereto.
In Criminal Case No. 51,473-2002 the accused herein JORDAN
MUSA Y BAYAN, Filipino, 30 years old, married and a resident of
Cotabato City, is hereby found GUILTY beyond reasonable doubt and is
CONVICTED of the crime for Violation of Sec. 11, 1st paragraph, Article
II of Republic Act No. 9165. He is hereby sentenced to suffer a penalty of
LIFE IMPRISONMENT and FINE of FOUR HUNDRED THOUSAND
PESOS (PhP 400,000) with all the accessory penalties corresponding
thereto.
SO ORDERED.
As the death penalty was imposed on Ara, the case went on automatic review
before this Court. Conformably with People v. Mateo, we, however, ordered the transfer
of the case to the CA.
The Issues
Reiterating the matters raised before the CA, accused-appellants alleged the
following:
I
Whether the Court of Appeals erred in holding that the arrest of the
accused-appellants was valid based on the affidavits of the complaining
witnesses
II
Whether the Court of Appeals erred in disregarding the apparent defects
and inconsistencies in the affidavits of the complaining witnesses
III
Whether the Court of Appeals erred in refusing to consider the
suppression or exclusion of evidence
IV
Whether the Court of Appeals erred in not holding that the prosecution
miserably failed to prove the guilt of the accused beyond reasonable doubt
Warrantless Arrest and Seizure Valid
In calling for their acquittal, accused-appellants decry their arrest without probable
cause and the violation of their constitutional rights. They claim that the buy-bust team
had more than a month to apply for an arrest warrant yet failed to do so.
Owing to the special circumstances surrounding the drug trade, a buy-bust
operation has long been held as a legitimate method of catching offenders. It is a form of

165
entrapment employed as an effective way of apprehending a criminal in the act of
commission of an offense. We have ruled that a buy-bust operation can be carried out
after a long period of planning. The period of planning for such operation cannot be
dictated to the police authorities who are to undertake such operation. It is unavailing
then to argue that the operatives had to first secure a warrant of arrest given that the
objective of the operation was to apprehend the accused-appellants in flagrante delicto.
In fact, one of the situations covered by a lawful warrantless arrest under Section 5(a),
Rule 113 of the Rules of Court is when a person has committed, is actually committing,
or is attempting to commit an offense in the presence of a peace officer or private person.
It is erroneous as well to argue that there was no probable cause to arrest accusedappellants. Probable cause, in warrantless searches, must only be based on reasonable
ground of suspicion or belief that a crime has been committed or is about to be
committed. There is no hard and fast rule or fixed formula for determining probable
cause, for its determination varies according to the facts of each case. Probable cause was
provided by information gathered from the CI and from accused-appellants themselves
when they instructed PO1 Ayao to enter their vehicle and begin the transaction. The
illegal sale of shabu inside accused-appellants vehicle was afterwards clearly
established. Thus, as we have previously held, the arresting officers were justified in
making the arrests as accused-appellants had just committed a crime when Ara sold
shabu to PO1 Ayao. Talib and Musa were also frisked for contraband as it may be
logically inferred that they were also part of Aras drug activities inside the vehicle. This
inference was further strengthened by Musas attempt to drive the vehicle away and elude
arrest.
Moreover, the trial court correctly denied the Motion to Suppress or Exclude
Evidence. We need not reiterate that the evidence was not excluded since the buy-bust
operation was shown to be a legitimate form of entrapment. The pieces of evidence thus
seized therein were admissible. As the appellate court noted, it was within legal bounds
and no anomaly was found in the conduct of the buy-bust operation. There is, therefore,
no basis for the assertion that the trial courts order denying said motion was biased and
committed with grave abuse of discretion.
Right to assembly and power of the City
Mayor to change the venue of the rally;
requisites.
INTEGRATED BAR OF THE PHILIPPINES VS.
MANILA MAYOR JOSE LITO ATIENZA, G.R. No.
175241, February 24, 2010
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines (IBP) and lawyers H. Harry L. Roque
and Joel R. Butuyan appeal the June 28, 2006 Decision and the October 26, 2006
Resolution of the Court of Appeals that found no grave abuse of discretion on the part of
respondent Jose Lito Atienza, the then mayor of Manila, in granting a permit to rally in
a venue other than the one applied for by the IBP.

166
On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz
(Cadiz), filed with the Office of the City Mayor of Manila a letter application for a permit
to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be
participated in by IBP officers and members, law students and multi-sectoral
organizations.
Respondent issued a permit dated June 16, 2006 allowing the IBP to stage a rally
on given date but indicated therein Plaza Miranda as the venue, instead of Mendiola
Bridge, which permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a
petition for certiorari docketed as CA-G.R. SP No. 94949. The petition having been
unresolved within 24 hours from its filing, petitioners filed before this Court on June 22,
2006 a petition for certiorari docketed as G.R. No. 172951 which assailed the appellate
courts inaction or refusal to resolve the petition within the period provided under the
Public Assembly Act of 1985.
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20,
2006, respectively, denied the petition for being moot and academic, denied the relief that
the petition be heard on the merits in view of the pendency of CA-G.R. SP No. 94949,
and denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz
discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila Police
District (MPD) earlier barred petitioners from proceeding thereto. Petitioners allege that
the participants voluntarily dispersed after the peaceful conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action, docketed as I.S.
No. 06I-12501, against Cadiz for violating the Public Assembly Act in staging a rally at a
venue not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of
August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first
assailed issuance, that the petition became moot and lacked merit. The appellate court
also denied petitioners motion for reconsideration by the second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which
respondent filed his Comment of November 18, 2008 which merited petitioners Reply of
October 2, 2009.
ISSUE:
The main issue is whether the appellate court erred in holding that the modification
of the venue in IBPs rally permit does not constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the Pubic
Assembly Act and violates their constitutional right to freedom of expression and
public assembly.

167
HELD:
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006 became
moot upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical use or
value. Generally, courts decline jurisdiction over such case or dismiss it on ground of
mootness. However, even in cases where supervening events had made the cases moot,
this Court did not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and public. Moreover, as an exception to
the rule on mootness, courts will decide a question otherwise moot if it is capable of
repetition, yet evading review.
In the present case, the question of the legality of a modification of a permit to rally
will arise each time the terms of an intended rally are altered by the concerned official,
yet it evades review, owing to the limited time in processing the application where the
shortest allowable period is five days prior to the assembly. The susceptibility of
recurrence compels the Court to definitively resolve the issue at hand.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any official acting in his behalf to
issue or grant a permit unless there is clear and convincing evidence that
the public assembly will create a clear and present danger to public order,
public safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the
application within two (2) working days from the date the application was
filed, failing which, the permit shall be deemed granted. Should for any
reason the mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the applicant on
the premises of the office of the mayor and shall be deemed to have been
filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he
shall immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the
application [sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.

168

(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the Regional
Trial Court, or the Intermediate Appellate Court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A
decision granting such permit or modifying it in terms satisfactory to the
applicant shall, be immediately executory.
(g) All cases filed in court under this Section shall be decided within
twenty-four (24) hours from date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for disposition or, in his
absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby
allowed. (underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, the
Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is
entitled to be accorded the utmost deference and respect. It is not to be
limited, much less denied, except on a showing, as is the case with
freedom of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of
free speech. To paraphrase the opinion of Justice Rutledge, speaking for
the majority of the American Supreme Court in Thomas v. Collins, it was
not by accident or coincidence that the rights to freedom of speech and of
the press were coupled in a single guarantee with the rights of the people
peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not identical, are inseparable. In every
case, therefore, where there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of
a serious evil to public safety, public morals, public health, or any
other legitimate public interest. (emphasis supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of 1985
practically codified the 1983 ruling in Reyes v. Bagatsing. In juxtaposing Sections 4 to 6
of the Public Assembly Act with the pertinent portion of the Reyes case, the Court
elucidated as follows:

169
x x x [The public official concerned shall] appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It
is an indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the view
that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the earliest opportunity.
Thus if so minded, they can have recourse to the proper judicial authority. (italics
and underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion when
he did not immediately inform the IBP who should have been heard first on the
matter of his perceived imminent and grave danger of a substantive evil that may
warrant the changing of the venue. The opportunity to be heard precedes the action
on the permit, since the applicant may directly go to court after an unfavorable
action on the permit.
Respondent failed to indicate how he had arrived at modifying the terms of the
permit against the standard of a clear and present danger test which, it bears
repeating, is an indispensable condition to such modification. Nothing in the issued
permit adverts to an imminent and grave danger of a substantive evil, which blank
denial or modification would, when granted imprimatur as the appellate court would have
it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a realistic appraisal not of
what may possibly occur but of what may probably occur, given all the relevant
circumstances, still the assumption especially so where the assembly is scheduled for a
specific public place is that the permit must be for the assembly being held there. The
exercise of such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the plea that it may be
exercised in some other place. (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation
for his action. It smacks of whim and caprice for respondent to just impose a change of
venue for an assembly that was slated for a specific public place. It is thus reversible
error for the appellate court not to
have found such grave abuse of discretion.
The Court DECLARES that respondent committed grave abuse of discretion in
modifying the rally permit issued on June 16, 2006 insofar as it altered the venue from
Mendiola Bridge to Plaza Miranda.
Custodial investigation conducted by
Bantay Bayan groups or Barangay
tanods; whether the right of the suspect to
be informed of his expanded Miranda
Rights is already applicable.

170
PEOPLE OF THE PHILIPPINES VS. ANTONIO
LAUGA, G.R. No. 186228, March 15, 2010
PEREZ, J.:
Consistent with the ruling of this Court in People v. Cabalquinto, the real name
and the personal circumstances of the victim, and any other information tending to
establish or compromise her identity, including those of her immediate family or
household members, are not disclosed in this decision.
The Facts
In an Information dated 21 September 2000, the appellant was accused of the
crime of QUALIFIED RAPE allegedly committed as follows:
That on or about the 15th day of March 2000, in the evening, at
Barangay xxx, municipality of xxx, province of Bukidnon, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, being the father of AAA with lewd design, with the use of force
and intimidation, did then and there, willfully, unlawfully and criminally
have carnal knowledge with his own daughter AAA, a 13 year[s]old minor
against her will.
On 12 October 2000, appellant entered a plea of not guilty. During the pre-trial
conference, the prosecution and the defense stipulated and admitted: (a) the correctness
of the findings indicated in the medical certificate of the physician who examined AAA;
(b) that AAA was only thirteen (13) years old when the alleged offense was committed;
and (c) that AAA is the daughter of the appellant. On trial, three (3) witnesses testified
for the prosecution, namely: victim AAA; her brother BBB; and one Moises Boy
Banting, a bantay bayan in the barangay. Their testimonies revealed the following:
In the afternoon of 15 March 2000, AAA was left alone at home. AAAs father,
the appellant, was having a drinking spree at the neighbors place. Her mother decided to
leave because when appellant gets drunk, he has the habit of mauling AAAs mother.
Her only brother BBB also went out in the company of some neighbors.
At around 10:00 oclock in the evening, appellant woke AAA up; removed his
pants, slid inside the blanket covering AAA and removed her pants and underwear;
warned her not to shout for help while threatening her with his fist; and told her that he
had a knife placed above her head. He proceeded to mash her breast, kiss her repeatedly,
and inserted his penis inside her vagina.
Soon after, BBB arrived and found AAA crying. Appellant claimed he scolded
her for staying out late. BBB decided to take AAA with him. While on their way to their
maternal grandmothers house, AAA recounted her harrowing experience with their
father. Upon reaching their grandmothers house, they told their grandmother and uncle
of the incident, after which, they sought the assistance of Moises Boy Banting.

171
Moises Boy Banting found appellant in his house wearing only his underwear.
He invited appellant to the police station, to which appellant obliged. At the police
outpost, he admitted to him that he raped AAA because he was unable to control himself.
The following day, AAA submitted herself to physical examination. Dra. Josefa
Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued the Medical
Certificate, which reads:
hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated
hymen; (+) minimal to moderate bloody discharges 2 to an alleged raping
incident

On the other hand, only appellant testified for the defense. He believed that the
charge against him was ill-motivated because he sometimes physically abuses his wife in
front of their children after engaging in a heated argument, and beats the children as a
disciplinary measure. He went further to narrate how his day was on the date of the
alleged rape.
The lone assignment of error in the appellants brief is that, the trial court gravely
erred in finding him guilty as charged despite the failure of the prosecution to establish
his guilt beyond reasonable doubt, because: (1) there were inconsistencies in the
testimonies of AAA and her brother BBB; (2) his extrajudicial confession before Moises
Boy Banting was without the assistance of a counsel, in violation of his constitutional
right; and (3) AAAs accusation was ill-motivated.
HELD
Appellant contests the admissibility in evidence of his alleged confession with a
bantay bayan and the credibility of the witnesses for the prosecution.
Admissibility in Evidence of an Extrajudicial Confession
before a Bantay Bayan
Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a
bantay bayan, the confession was inadmissible in evidence because he was not assisted
by a lawyer and there was no valid waiver of such requirement.
The case of People v. Malngan is the authority on the scope of the Miranda
doctrine provided for under Article III, Section 12(1) and (3) of the Constitution. In
Malngan, appellant questioned the admissibility of her extrajudicial confessions given to
the barangay chairman and a neighbor of the private complainant. This Court
distinguished. Thus:
Arguably, the barangay tanods, including the Barangay Chairman,
in this particular instance, may be deemed as law enforcement officer
for purposes of applying Article III, Section 12(1) and (3), of the
Constitution. When accused-appellant was brought to the barangay hall

172
in the morning of 2 January 2001, she was already a suspect, actually the
only one, in the fire that destroyed several houses x x x. She was,
therefore, already under custodial investigation and the rights guaranteed
by x x x [the] Constitution should have already been observed or applied
to her. Accused-appellants confession to Barangay Chairman x x x was
made in response to the interrogation made by the latter admittedly
conducted without first informing accused-appellant of her rights under
the Constitution or done in the presence of counsel. For this reason, the
confession of accused-appellant, given to Barangay Chairman x x x, as
well as the lighter found x x x in her bag are inadmissible in evidence
against her x x x.
[But such does] not automatically lead to her acquittal. x x x [T]he
constitutional safeguards during custodial investigations do not apply to
those not elicited through questioning by the police or their agents but
given in an ordinary manner whereby the accused verbally admits x x x as
x x x in the case at bar when accused-appellant admitted to Mercedita
Mendoza, one of the neighbors x x x [of the private complainant].
(Emphasis supplied)

Following the rationale behind the ruling in Malngan, this Court needs to
ascertain whether or not a bantay bayan may be deemed a law enforcement officer
within the contemplation of Article III, Section 12 of the Constitution.
In People of the Philippines v. Buendia, this Court had the occasion to mention
the nature of a bantay bayan, that is, a group of male residents living in [the]
area organized for the purpose of keeping peace in their community[,which is] an
accredited auxiliary of the x x x PNP.
Also, it may be worthy to consider that pursuant to Section 1(g) of Executive
Order No. 309 issued on 11 November 1987, as amended, a Peace and Order Committee
in each barangay shall be organized to serve as implementing arm of the City/Municipal
Peace and Order Council at the Barangay level. The composition of the Committee
includes, among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the
Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa; (4) a Barangay
Tanod; and (5) at least three (3) Members of existing Barangay-Based Anti-Crime or
neighborhood Watch Groups or a Non Government Organization Representative
well-known in his community.
This Court is, therefore, convinced that barangay-based volunteer
organizations in the nature of watch groups, as in the case of the bantay bayan,
are recognized by the local government unit to perform functions relating to the
preservation of peace and order at the barangay level. Thus, without ruling on the
legality of the actions taken by Moises Boy Banting, and the specific scope of duties and
responsibilities delegated to a bantay bayan, particularly on the authority to conduct a
custodial investigation, any inquiry he makes has the color of a state-related function
and objective insofar as the entitlement of a suspect to his constitutional rights

173
provided for under Article III, Section 12 of the Constitution, otherwise known as
the Miranda Rights, is concerned.
We, therefore, find the extrajudicial confession of appellant, which was taken
without a counsel, inadmissible in evidence.
Be that as it may, We agree with the Court of Appeals that the conviction of the
appellant was not deduced solely from the assailed extrajudicial confession but from the
confluence of evidence showing his guilt beyond reasonable doubt.
When a confession is admissible.
PEOPLE OF THE PHILIPPINES vs. ROMULO
TUNIACO, ET AL.,
G.R. No. 185710,
January 10, 2010
ABAD, J.:
This case is about the requirements of a valid extrajudicial confession and the
establishment of the existence of corpus delicti in murder cases.
The Facts and the Case
The city prosecutor of General Santos City charged the accused Romulo Tuniaco,
Jeffrey Datulayta, and Alex Aleman with murder before the Regional Trial Court (RTC)
of General Santos City in Criminal Case 8370.
Based on the findings of the RTC, in the morning of June 13, 1992 some police
officers from the Lagao Police Sub-Station requested police officer Jaime Tabucon of the
Central Police Station of General Santos City homicide division to take the statement of
accused Alex Aleman regarding the slaying of a certain Dondon Cortez. On his arrival at
the sub-station, Tabucon noted the presence of Atty. Ruperto Besinga, Jr. of the Public
Attorneys Office (PAO) who was conversing with those taken into custody for the
offense. When queried if the suspects would be willing to give their statements, Atty.
Besinga said that they were.
Some other police officer first took the statement of accused Jeffrey Datulayta.
Officer Tabucon next took the statement of accused Aleman, whom he observed to be in
good physical shape.
Before anything else, officer Tabucon informed accused Aleman in Cebuano of
his constitutional right to remain silent and to the assistance of counsel of his own choice
and asked him if he was willing to give a statement. Aleman answered in the
affirmative. When asked if he had any complaint to make, Aleman said that he had
none. When Aleman said that he had no lawyer, Tabucon pointed to Atty. Besinga who
claimed that he was assisting all the suspects in the case. Tabucon warned Aleman that
anything he would say may be used against him later in court. Afterwards, the police
officer started taking down Alemans statement.

174
Accused Aleman said that in the course of a drinking bout with accused Datulayta
and Tuniaco at around 9 p.m. on June 6, 1992, Dondon Cortez threatened to report his
drinking companions illegal activities to the police unless they gave him money for his
forthcoming marriage. According to Aleman, Datulayta and Tuniaco had already
planned to kill Cortez in Tupi, South Cotabato, for making the same threats and now they
decided to do it. They got Cortez drunk then led him out supposedly to get the money he
needed.
The three accused brought Cortez to Apopong near the dump site and, as they
were walking, accused Aleman turned on Cortez and stabbed him on the stomach.
Accused Datulayta, on the other hand, drew out his single shot homemade M16 pistol and
shot Cortez on the head, causing him to fall. Datulayta handed over the gun to Aleman
who fired another shot on Cortezs head. Accused Tuniaco used the same gun to pump
some bullets into Cortezs body. Then they covered him with rice husks.
After taking down the statement, Tabucon explained the substance of it to accused
Aleman who then signed it in the presence of Atty. Besinga.
On June 15, 1992 the police brought Aleman to the City Prosecutors Office
where he swore to his statement before an assistant city prosecutor. In the afternoon,
accused Datulayta and Aleman led Tabucon, the city prosecutor, and a police inspector,
to the dump site where they left their victims body. After some search, the group found
a spot covered with burnt rice husks and a partially burnt body of a man. About a foot
from the body, they found the shells of a 5.56 caliber gun and an armalite rifle.
On being arraigned, all three accused, assisted by Atty. Besinga, pleaded not
guilty to the murder charge. After the prosecution rested its case, accused Tuniaco filed a
demurrer to evidence which the Court granted, resulting in the dismissal of the case
against him. On being re-arraigned at his request, accused Datulayta pleaded guilty to the
lesser offense of Homicide. The trial court sentenced him to imprisonment of six years
and one day and to pay P50,000.00 to the victims family.
For some reason, the trial court had Aleman subjected to psychiatric examination at
the Davao Mental Hospital. But, shortly after, the hospital sent word that Aleman had
escaped. He was later recaptured. When trial in the case resumed, Alemans new PAO
lawyer raised the defense of insanity. This prompted the court to require the Provincial
Jail Warden to issue a certification regarding Alemans behavior and mental condition
while in jail to determine if he was fit to stand trial. The warden complied, stating that
Aleman had been observed to have good mental condition and did not commit any
infraction while in jail.
Although the prosecution and defense stipulated that Atty. Besinga assisted
accused Aleman during the taking of his extrajudicial confession, the latter, however,
recanted what he said to the police during the trial. He testified that sometime in 1992,
some police officers took him from his aunts house in Purok Palen, Labangal, General
Santos City, and brought him to the Lagao police station. He was there asked to admit
having taken part in the murder of Cortez. When he refused, they tortured him until he
agreed to sign a document admitting his part in the crime.

175
Accused Aleman also testified that he could not remember having been assisted
by Atty. Besinga during the police investigation. He even denied ever knowing the
lawyer. Aleman further denied prior association with accused Tuniaco and Datulayta.
He said that he met them only at the city jail where they were detained for the death of
Cortez.
On October 8, 2001 the RTC rendered judgment, finding accused Aleman guilty
beyond reasonable doubt of the crime charged, and sentenced him to suffer the penalty of
reclusion perpetua. The court also ordered him to pay death indemnity of P70,000.00
and moral damages of P50,000.00 to the heirs of Cortez.
On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 00311, the court
rendered judgment on January 21, 2008, affirming the decision of the RTC with the
modification that directed accused Aleman and Datulayta to indemnify the heirs of
Cortez, jointly and severally, in the amounts of P50,000.00 as civil indemnity;
P50,000.00 as moral damages; P25,000.00 as temperate damages; and P25,000.00 as
exemplary damages. Aleman appealed to this Court.
The Issues Presented
Accused Aleman raises two issues: a) whether or not the prosecution was able to
present evidence of corpus delicti; and b) whether or not accused Alemans extrajudicial
confession is admissible in evidence.
The Rulings of the Court
1.
Corpus delicti has been defined as the body, foundation, or substance of a
crime. The evidence of a dead body with a gunshot wound on its back would be evidence
that murder has been committed. Corpus delicti has two elements: (a) that a certain result
has been established, for example, that a man has died and (b) that some person is
criminally responsible for it. The prosecution is burdened to prove corpus delicti beyond
reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.
The defense claims that the prosecution failed to prove corpus delicti since it did
not bother to present a medical certificate identifying the remains found at the dump site
and an autopsy report showing such remains sustained gunshot and stab wounds that
resulted in death; and the shells of the guns used in killing the victim.
But corpus delicti need not be proved by an autopsy report of the dead victims
body or even by the testimony of the physician who examined such body. While such
report or testimony is useful for understanding the nature of the injuries the victim
suffered, they are not indispensable proof of such injuries or of the fact of death. Nor is
the presentation of the murder weapons also indispensable since the physical existence of
such weapons is not an element of the crime of murder.
Here, the police authorities found the remains of Cortez at the place pointed to by
accused Aleman. That physical confirmation, coming after his testimony of the
gruesome murder, sufficiently establishes the corpus delicti of the crime. Of course, that
statement must be admissible in evidence.

176
2.

There is no reason for it not to be . Confession to be admissible

must be a) voluntary; b) made with the assistance of a competent and

independent counsel; c) express; and d) in writing. These requirements were
met here. A lawyer, not working with or was not beholden to the police, Atty. Besinga,
assisted accused Aleman during the custodial investigation. Officer Tabucon testified
that he saw accused Aleman, before the taking of his statement, conversing with counsel
at the police station. Atty. Besinga did not dispute this claim.
Aleman alleges torture as the reason for the execution of the confession. The
appellate court is correct in ruling that such allegation is baseless. It is a settled rule that
where the defendant did not present evidence of compulsion, where he did not institute
any criminal or administrative action against his supposed intimidators, where no
physical evidence of violence was presented, all these will be considered as indicating
voluntariness. Here, although Aleman claimed that he bore torture marks on his head, he
never brought this to the attention of his counsel, his relatives, or the prosecutor who
administered his oath.
Accused Aleman claims, citing People v. Galit, that long questions followed by
monosyllabic answers do not satisfy the requirement that the accused is amply informed
of his rights. But this does not apply here. Tabucon testified that he spoke to Aleman
clearly in the language he knew. Aleman, joined by Atty. Besinga, even signed a
certification that the investigator sufficiently explained to him his constitutional rights
and that he was still willing to give his statement.
Further, Aleman asserts that he was lacking in education and so he did not fully
realize the consequences of a confession. But as the CA said, no law or jurisprudence
requires the police officer to ascertain the educational attainment of the accused. All that
is needed is an effective communication between the interrogator and the suspect to the
end that the latter is able to understand his rights. This appears to have been done in this
case.
Moreover, as the lower court noted, it is improbable that the police fabricated
Alemans confession and just forced him to sign it. The confession has details that only
the person who committed the crime could have possibly known. What is more, accused
Datulaytas confession corroborate that of Aleman in important details. Under the
doctrine of interlocking confessions, such corroboration is circumstantial evidence
against the person implicated in it.
Voluntary and spontaneous confession of
a person arrested for the commission of a
crime even if made without counsel is
admissible as evidence.
PEOPLE OF THE PHILIPPINES VS. VICTOR
VILLARINO, G.R.NO. 185012, MARCH 5, 2010
FACTS:

177
On April 28, 1995, BBB, together with her 10-year old daughter AAA and her
younger son CCC went to the house of their relative in Barangay D to attend the fiesta to be
held the next day.
On even date, from 7:00 oclock to 9:00 oclock in the evening, SPO4 Jesus Genoguin
(SPO4 Genoguin) was in his house in Barangay D entertaining his guests, one of whom was
appellant. While personally serving food and drinks to appellant, SP04 Genoguin noticed that
the latter was wearing a bracelet and a necklace with pendant. Appellant even allowed SPO4
Genoguin to put on the bracelet.
On April 29, 1995, at around 9:00 oclock in the morning, the appellant who was on his
way to Barangay D, passed by the house of Rodrigo Olaje (Rodrigo). At that time, Rodrigo
noticed appellant wearing a bracelet and a necklace with pendant. He was also wearing a white
sleeveless t-shirt (sando).
At 11:00 oclock in the morning, appellant was at the house of BBBs aunt. BBB
offered him food. BBB also noticed that he was dressed in a white sando and that he wore
jewelry consisting of a bracelet and a necklace with pendant. At 1:00 oclock in the afternoon, he
was seen wearing the same sando and jewelry while drinking at the basketball court in Barangay
D.
At around 3:00 oclock in the afternoon, BBB told AAA to go home to Barangay
D1 to get a t-shirt for her brother. AAA obeyed. However, she no longer returned. While
BBB was anxiously waiting for AAA in the house of her aunt in Barangay D, she
received information that a dead child had been found in Barangay D1. She proceeded to the
area where she identified the childs body as that of her daughter, AAA.
At around 4:00 oclock in the afternoon, Rodrigo, who was the barangay captain of
Barangay D1 received information that a dead child was found in their barangay. He
instructed a barangay tanod to inform the police about the incident. Thereafter, Rodrigo
proceeded to the specified area together with other barangay tanods.
SPO4 Genoguin also went to the crime scene after being informed by his commander.
Upon arrival, he saw the corpse of a little girl behind a big boulder that was about 10 meters
away from the trail junction of the barangays. People had gathered seven to 10 meters away
from the dead body, but no one dared to approach.
AAAs lifeless body lay face up with her buttocks on top of a small rock. Her body
was slanted downward with her legs spread apart and dangling on the sides of the small boulder.
She was no longer wearing short pants and panty, and blood oozed from her vagina. Wrapped
around her right hand, which was positioned near her right ear, was a white sando.
AAAs panty was found a meter away from her body, while her short pants was about
two meters farther. A bracelet and a pendant were also recovered from the crime scene. Rodrigo
and BBB identified these pieces of jewelry as those seen on the appellant. They also identified
the sando on AAAs arm as the appellants. Thus, the hunt for appellant began.
On the same day, the appellant was found in the house of Aurelia Susmena near the
seashore of Barangay D1. He was drunk and violent. He resisted arrest and had to be bodily

178
carried to the motorboat that would take him to the municipal building in Almagro, Samar. The
arresting team made the appellant take off his clothes since they were wet. When he complied,
his briefs revealed bloodstains.
On May 2, 1995, the police brought appellant to Calbayog City for medical examination
since he had scratches and abrasions on his body. While waiting for a boat ride at 4:00 oclock in
the morning, the police team took a coffee break. SPO4 Genoguin was momentarily left alone to
guard the appellant. During this short period, the appellant voluntarily admitted to SPO4
Genoguin that he committed the crime charged. He also told SPO4 Genoguin that he could keep
the pendant and bracelet if he would retrieve the t-shirt and throw it into the sea. SPO4
Genoguin rejected the appellants offer and reminded him of his right to a counsel and that
everything the appellant said could be used against him in court. Unperturbed, the appellant
reiterated his offer.
When they boarded the motorboat, the appellant repeatedly offered to give SPO4
Genoguin P20,000.00 if he would throw the sando into the sea. However, the police officer
ignored the offer and instead reported the matter to the Chief of Police of Almagro, SPO4 Basilio
M. Yabao. Later, the appellants mother, Felicidad Mabute y Legaspi, asked him not to testify
against her son.
At the Calbayog District Hospital, Senior Resident Physician Dr. Jose V. Ong, found that
appellants body had 10 healed abrasions and two linear abrasions or scratches, particularly, on
his breast, knees, as well as right and left ears, that could have been caused by fingernails.
On August 3, 1995, an Information was filed charging appellant Victor Villarino y
Mabute with the special complex crime of rape with homicide. The Information contained the
following accusatory allegations:
That on or about the 29th day of April, 1995, at about 5:00 oclock in the
afternoon, at Barangay D1, Municipality of Almagro, Province of Samar,
Philippines, and within the jurisdiction of this Honorable Court, the above named
accused, with lewd design, by means of force, violence and intimidation, did then
and there, willfully, unlawfully and feloniously have carnal knowledge against a
minor ten (10) years [sic], AAA, without the latters consent and against her
will, and thereafter, with deliberate intent to kill, did then and there willfully,
unlawfully and feloniously inflict upon the said AAA mortal wounds on x x x
different parts of her body, which caused her untimely death.
CONTRARY TO LAW.
Appellant pleaded not guilty to the crime charged. After the termination of the pre-trial
conference, trial ensued.
The RTC found him guilty beyond reasonable doubt of the complex crime of Rape with
Homicide and sentenced to Death.
ISSUE:

179

Is accused-appellants voluntary confession to SPO4 Genoguin admissible in evidence?

HELD:
In the instant case, appellant voluntarily confessed to raping and killing AAA to SPO4
Genoguin. He even offered to give the pieces of jewelry to the latter if his sando is thrown into
the sea. The appellant did not deny this accusation nor assail its truthfulness.
When appellant confessed to the crime, he was alone with SPO4 Genoguin, and no force
or intimidation was employed against him. The confession was spontaneously made and not
elicited through questioning. The trial court did not, therefore, err in holding that compliance
with the constitutional procedure on custodial interrogation is not applicable in the instant case.
In People v. Dy, we held that:
Contrary to the defense contention, the oral confession made by the
Accused to Pat. Padilla that he had shot a tourist and that the gun he had used
in shooting the victim was in his bar which he wanted surrendered to the Chief of
Police (t.s.n., October 17, 1984, pp. 6-9), is competent evidence against him.
The declaration of an accused acknowledging his guilt of the offense charged
may be given in evidence against him (Sec. 29, Rule 130, Rules of Court). It
may in a sense be also regarded as part of the res gestae. The rule is that, any
person, otherwise competent as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and
understood all of it. An oral confession need not be repeated verbatim, but in
such a case it must be given in substance (23 C.J.S. 196, cited in People v.
Tawat, G.R. No. 62871, May 25, 1985, 129 SCRA 431).
What was told by the Accused to Pat. Padilla was a spontaneous
statement not elicited through questioning, but given in an ordinary manner. No
written confession was sought to be presented in evidence as a result of formal
custodial investigation. (People v. Taylaran, G.R. No. L-19149, October 31,
1981, 108 SCRA 373). The Trial Court, therefore, cannot be held to have erred
in holding that compliance with the constitutional procedure on custodial
interrogation is not applicable in the instant case, as the defense alleges in its
Error VII.
At any rate, even without his confession, appellant could still be convicted of the
complex crime of rape with homicide. The prosecution established his complicity in the crime
through circumstantial evidence which were credible and sufficient, and led to the inescapable
conclusion that the appellant committed the complex crime of rape with homicide. When
considered together, the circumstances point to the appellant as the culprit.
The judge is correct in granting bail to an
accused charged of Murder if after the
prosecution presented its evidence, only
the crime of Homicide was proven. There

180
is no need to conduct a separate hearing
for the Petition for Bail filed by the
accused.
PEOPLE OF THE PHILIPPINES VS. LUIS PLAZA,
G.R. No. 176933, October 2, 2009
CARPIO MORALES, J.:
Raising only questions of law, the Peoples petition for review on certiorari
assails the January 31, 2007 Decision3[1] of the Court of Appeals which affirmed the
November 12, 2002 Order of the Regional Trial Court (RTC) of Surigao City, Br. 29 in
Criminal Case No. 5144 (the case) fixing bail for the temporary liberty of Luis Bucalon
Plaza alias Loloy Plaza (respondent) who was indicted for Murder.
The case was originally raffled to Branch 30 of the Surigao RTC presided by
Judge Floripinas Buyser (Judge Buyser).
After the prosecution rested its case, respondent, with leave of court, filed a
Demurrer to Evidence.4[2] The Demurrer was denied by Judge Buyser by Order 5[3] of
March 14, 2002, the pertinent portion of which reads:
The evidence thus presented by the prosecution is sufficient to
prove the guilt of the accused beyond reasonable doubt, but only for the
crime of homicide and not for murder, as charged. This is because the
qualifying circumstance of treachery alleged in the information cannot
be appreciated in this case.
The defense thereupon presented evidence6[4] in the course of which respondent
filed a Motion to Fix Amount of Bail Bond,7[5] contending that in view of Judge Buysers
ruling that the prosecution evidence is sufficient to prove only Homicide, he could be
released on bail. He thus prayed that the bail bond for his temporary liberty be fixed at
P40,000.00 which he claimed was the usual bond for Homicide in the RTC of Surigao
City and Surigao del Norte.
In its Opposition to Motion to Fix Amount of Bail Bond, 8[6] the prosecution
contended, in the main, that the case being for Murder, it is non-bailable as the imposable
penalty is reclusion temporal to death; that it is the public prosecutor who has exclusive
jurisdiction to determine what crime the accused should be charged with; that the accused
should have filed a motion/application to bail and not just a motion to fix the amount of
the bail bond; that the accused had already waived his right to apply for bail at that stage
of the proceedings; that Judge Buysers March 14, 2002 Order, being a mere opinion and
3
4
5
6
7
8

181
not a ruling or a dispositive part thereof, produced no legal effect inasmuch as it had no
jurisdiction to rule on a matter outside the Demurrer; and that under the Rules, the
prosecution could still prove the existence of treachery on rebuttal after the defense has
rested its case.
During the hearing of the Motion to Fix Amount of Bail Bond, Senior State
Prosecutor Rogelio Bagabuyo questioned Judge Buysers impartiality, prompting the
judge to inhibit himself and to order the case transferred to Branch 29 of the RTC for
further proceedings.
Branch 29 Presiding Judge Jose Manuel Tan (Judge Tan) heard the Motion to Fix
Amount of Bail Bond.
By Order9[7] of November 12, 2002, Judge Tan, concurring with the finding of
Judge Buyser that since the prosecution evidence proved only Homicide which is
punishable by reclusion temporal and, therefore, bailable, ruled that respondent could no
longer be denied bail. He accordingly granted respondents Motion and fixed the amount
of his bond at P40,000.
Petitioners motion for reconsideration cum prayer for inhibition of Judge Tan
was denied for lack of merit.10[8]
Respondent was subsequently released11[9] after he posted a P40,000 bond.
Roberto Murcia (Roberto), the victims brother, impleading the People as copetitioner, assailed the trial courts orders via petition for certiorari 12[10] with the Court of
Appeals.
Roberto faulted Judge Tan for granting bail without an application for bail having
been filed by respondent and without conducting the mandatory hearing to determine
whether or not the prosecutions evidence is strong.
The Office of the Solicitor General (OSG) adopted Robertos argument that the
grant of bail to respondent without any separate hearing is contrary to prevailing
jurisprudence.
By Decision of January 31, 2007, the appellate court, observing that the
allegations in respondents Motion to Fix Amount of Bail Bond constituted an
application for bail, dismissed Robertos petition and affirmed Judge Tans orders.13[11]
In its present petition, the People contends that
THE COURT
SUBSTANCE
9
10
11
12
13

OF APPEALS DECIDED A QUESTION OF

CONTRARY
TO
LAW
AND
SETTLED

182
JURISPRUDENCE WHEN IT RULED THAT THE HEARING
CONDUCTED SATISFIES THE REQUIREMENT OF DUE PROCESS
AND THAT RESPONDENT IS ENTITLED TO BAIL 14[12]
(Underscoring supplied)
Section 13, Article III of the Constitution provides that "All persons, except those
charged with offenses punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law.
Section 4 of Rule 114 of the Revised Rules of Court, as amended, thus provides
that all persons in custody shall, before conviction by a regional trial court of an offense
not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a
matter of right.
The exercise by the trial court of its discretionary power to grant bail to an
accused charged with a capital offense thus depends on whether the evidence of guilt is
strong. Stressing this point, this Court held:
. . . [W]hen bail is discretionary, a hearing, whether summary or
otherwise in the discretion of the court, should first be conducted to
determine the existence of strong evidence or lack of it, against the
accused to enable the judge to make an intelligent assessment of the
evidence presented by the parties. A summary hearing is defined as such
brief and speedy method of receiving and considering the evidence of guilt
as is practicable and consistent with the purpose of hearing which is
merely to determine the weight of evidence for the purposes of bail.
On such hearing, the court does not sit to try the merits or to enter into any
nice inquiry as to the weight that ought to be allowed to the evidence for
or against the accused, nor will it speculate on the outcome of the trial or
on what further evidence may be therein offered and admitted. The course
of inquiry may be left to the discretion of the court which may confine
itself to receiving such evidence as has reference to substantial matters,
avoiding unnecessary examination and cross examination. 15[13] (Emphasis
and underscoring supplied)
Since Judge Tan concurred with the assessment by Judge Buyser of the
prosecution evidence when he denied the Demurrer and the latters statement that the
evidence was sufficient to convict respondent of Homicide, holding a summary hearing
merely to determine whether respondent was entitled to bail would have been
unnecessary as the evidence in chief was already presented by the prosecution.
The Peoples recourse to Section 5,16[14] Rule 114 of the Revised Rules of
Criminal Procedure to support its contention that respondent should be denied bail is
unavailing, for said Section clearly speaks of an application for bail filed by the accused
after a judgment of conviction has already been handed down by the trial court.
14
15
16

183

Landowner may file for the reconveyance

of his lot from the government if the same
was never used for the purpose for which
it was expropriated.
MACTAN-CEBU
INTERNATIONAL
AIRPORT
AUTHORITY and AIR TRANSPORTATION OFFICE
vs. BERNARDO LOZADA, JR., ET AL., G.R. No.
176625, February 25, 2010
NACHURA, J.:
Subject of this case is Lot No. 88-SWO-25042 (Lot No. 88), with an area of 1,017
square meters, more or less, located in Lahug, Cebu City. Its original owner was
Anastacio Deiparine when the same was subject to expropriation proceedings, initiated
by the Republic of the Philippines (Republic), represented by the then Civil Aeronautics
Administration (CAA), for the expansion and improvement of the Lahug Airport. The
case was filed with the then Court of First Instance of Cebu, Third Branch, and docketed
as Civil Case No. R-1881.
As early as 1947, the lots were already occupied by the U.S. Army. They were
turned over to the Surplus Property Commission, the Bureau of Aeronautics, the National
Airport Corporation and then to the CAA.
During the pendency of the expropriation proceedings, respondent Bernardo L.
Lozada, Sr. acquired Lot No. 88 from Deiparine. Consequently, Transfer Certificate of
Title (TCT) No. 9045 was issued in Lozadas name.
On December 29, 1961, the trial court rendered judgment in favor of the Republic
and ordered the latter to pay Lozada the fair market value of Lot No. 88, adjudged at
P3.00 per square meter, with consequential damages by way of legal interest computed
from November 16, 1947the time when the lot was first occupied by the airport.
Lozada received the amount of P3,018.00 by way of payment.
The affected landowners appealed. Pending appeal, the Air Transportation Office
(ATO), formerly CAA, proposed a compromise settlement whereby the owners of the
lots affected by the expropriation proceedings would either not appeal or withdraw their
respective appeals in consideration of a commitment that the expropriated lots would be
resold at the price they were expropriated in the event that the ATO would abandon the
Lahug Airport, pursuant to an established policy involving similar cases. Because of this
promise, Lozada did not pursue his appeal. Thereafter, Lot No. 88 was transferred and
registered in the name of the Republic under TCT No. 25057.
The projected improvement and expansion plan of the old Lahug Airport, however,
was not pursued.

184
Lozada, with the other landowners, contacted then CAA Director Vicente Rivera,
Jr., requesting to repurchase the lots, as per previous agreement. The CAA replied that
there might still be a need for the Lahug Airport to be used as an emergency DC-3
airport. It reiterated, however, the assurance that should this Office dispose and resell
the properties which may be found to be no longer necessary as an airport, then the policy
of this Office is to give priority to the former owners subject to the approval of the
President.
On November 29, 1989, then President Corazon C. Aquino issued a Memorandum
to the Department of Transportation, directing the transfer of general aviation operations
of the Lahug Airport to the Mactan International Airport before the end of 1990 and,
upon such transfer, the closure of the Lahug Airport.
Sometime in 1990, the Congress of the Philippines passed Republic Act (R.A.) No.
6958, entitled An Act Creating the Mactan-Cebu International Airport Authority,
Transferring Existing Assets of the Mactan International Airport and the Lahug Airport to
the Authority, Vesting the Authority with Power to Administer and Operate the Mactan
International Airport and the Lahug Airport, and For Other Purposes.

From the date of the institution of the expropriation proceedings up to the present,
the public purpose of the said expropriation (expansion of the airport) was never actually
initiated, realized, or implemented. Instead, the old airport was converted into a
commercial complex. Lot No. 88 became the site of a jail known as Bagong Buhay
Rehabilitation Complex, while a portion thereof was occupied by squatters. The old
airport was converted into what is now known as the Ayala I.T. Park, a commercial area.
Thus, on June 4, 1996, petitioners initiated a complaint for the recovery of
possession and reconveyance of ownership of Lot No. 88. The case was docketed as
Civil Case No. CEB-18823 and was raffled to the Regional Trial Court (RTC), Branch
57, Cebu City.
In their Answer, petitioners asked for the immediate dismissal of the complaint.
They specifically denied that the Government had made assurances to reconvey Lot No.
88 to respondents in the event that the property would no longer be needed for airport
operations. Petitioners instead asserted that the judgment of condemnation was
unconditional, and respondents were, therefore, not entitled to recover the expropriated
property notwithstanding non-use or abandonment thereof.
After pretrial, but before trial on the merits, the parties stipulated on the following
set of facts:
(1)

The lot involved is Lot No. 88-SWO-25042 of the Banilad Estate,

situated in the City of Cebu, containing an area of One Thousand
Seventeen (1,017) square meters, more or less;

(2)

The property was expropriated among several other properties in

Lahug in favor of the Republic of the Philippines by virtue of a

185
Decision dated December 29, 1961 of the CFI of Cebu in Civil Case
No. R-1881;
(3)

The public purpose for which the property was expropriated was for
the purpose of the Lahug Airport;

(4)

After the expansion, the property was transferred in the name of

MCIAA; [and]

(5)

On November 29, 1989, then President Corazon C. Aquino directed

the Department of Transportation and Communication to transfer
general aviation operations of the Lahug Airport to the Mactan-Cebu
International Airport Authority and to close the Lahug Airport after
such transfer.

On October 22, 1999, the RTC rendered its Decision, disposing as follows:
WHEREFORE, in the light of the foregoing, the Court hereby
renders judgment in favor of the plaintiffs, Bernardo L. Lozada, Sr., and
the heirs of Rosario Mercado, namely, Vicente M. Lozada, Marcia L.
Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores L.
Gacasan, Socorro L. Cafaro and Rosario M. Lozada, represented by their
attorney-in-fact Marcia Lozada Godinez, and against defendants CebuMactan International Airport Authority (MCIAA) and Air Transportation
Office (ATO):
1. ordering MCIAA and ATO to restore to plaintiffs the
possession and ownership of their land, Lot No. 88 Psd-821 (SWO23803), upon payment of the expropriation price to plaintiffs; and
2. ordering the Register of Deeds to effect the transfer of the
Certificate of Title from defendant[s] to plaintiffs on Lot No. [88],
cancelling TCT No. 20357 in the name of defendant MCIAA and to issue
a new title on the same lot in the name of Bernardo L. Lozada, Sr. and the
heirs of Rosario Mercado, namely: Vicente M. Lozada, Mario M. Lozada,
Marcia L. Godinez, Virginia L. Flores, Bernardo M. Lozada, Jr., Dolores
L. Gacasan, Socorro L. Cafaro and Rosario M. Lozada.
No pronouncement as to costs.
Aggrieved, petitioners interposed an appeal to the CA. After the filing of the
necessary appellate briefs, the CA rendered its assailed Decision dated February 28,
2006, denying petitioners appeal and affirming in toto the Decision of the RTC, Branch
57, Cebu City. Petitioners motion for reconsideration was, likewise, denied in the
questioned CA Resolution dated February 7, 2007.
Hence, this petition arguing that: (1) the respondents utterly failed to prove that
there was a repurchase agreement or compromise settlement between them and the

186
Government; (2) the judgment in Civil Case No. R-1881 was absolute and unconditional,
giving title in fee simple to the Republic; and (3) the respondents claim of verbal
assurances from government officials violates the Statute of Frauds.
The petition should be denied.
Petitioners anchor their claim to the controverted property on the supposition that
the Decision in the pertinent expropriation proceedings did not provide for the condition
that should the intended use of Lot No. 88 for the expansion of the Lahug Airport be
aborted or abandoned, the property would revert to respondents, being its former owners.
Petitioners cite, in support of this position, Fery v. Municipality of Cabanatuan, which
declared that the Government acquires only such rights in expropriated parcels of land as
may be allowed by the character of its title over the properties
If x x x land is expropriated for a particular purpose, with the condition
that when that purpose is ended or abandoned the property shall return to
its former owner, then, of course, when the purpose is terminated or
abandoned the former owner reacquires the property so expropriated. If x
x x land is expropriated for a public street and the expropriation is granted
upon condition that the city can only use it for a public street, then, of
course, when the city abandons its use as a public street, it returns to the
former owner, unless there is some statutory provision to the contrary. x x
x. If, upon the contrary, however, the decree of expropriation gives to the
entity a fee simple title, then, of course, the land becomes the absolute
property of the expropriator, whether it be the State, a province, or
municipality, and in that case the non-user does not have the effect of
defeating the title acquired by the expropriation proceedings. x x x.
When land has been acquired for public use in fee simple,
unconditionally, either by the exercise of eminent domain or by purchase,
the former owner retains no right in the land, and the public use may be
abandoned, or the land may be devoted to a different use, without any
impairment of the estate or title acquired, or any reversion to the former
owner. x x x.

Contrary to the stance of petitioners, this Court had ruled otherwise in Heirs of
Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport Authority, thus

Moreover, respondent MCIAA has brought to our attention a

significant and telling portion in the Decision in Civil Case No. R-1881
validating our discernment that the expropriation by the predecessors of
respondent was ordered under the running impression that Lahug Airport
would continue in operation
As for the public purpose of the expropriation
proceeding, it cannot now be doubted. Although Mactan

187
Airport is being constructed, it does not take away the
actual usefulness and importance of the Lahug Airport: it is
handling the air traffic both civilian and military. From it
aircrafts fly to Mindanao and Visayas and pass thru it on
their flights to the North and Manila. Then, no evidence
was adduced to show how soon is the Mactan Airport to be
placed in operation and whether the Lahug Airport will be
closed immediately thereafter. It is up to the other
departments of the Government to determine said matters.
The Court cannot substitute its judgment for those of the
said departments or agencies. In the absence of such
showing, the Court will presume that the Lahug Airport
will continue to be in operation (emphasis supplied).
While in the trial in Civil Case No. R-1881 [we] could have simply
acknowledged the presence of public purpose for the exercise of eminent
domain regardless of the survival of Lahug Airport, the trial court in its
Decision chose not to do so but instead prefixed its finding of public
purpose upon its understanding that Lahug Airport will continue to be in
operation. Verily, these meaningful statements in the body of the
Decision warrant the conclusion that the expropriated properties would
remain to be so until it was confirmed that Lahug Airport was no longer
in operation. This inference further implies two (2) things: (a) after the
Lahug Airport ceased its undertaking as such and the expropriated lots
were not being used for any airport expansion project, the rights vis--vis
the expropriated Lots Nos. 916 and 920 as between the State and their
former owners, petitioners herein, must be equitably adjusted; and (b) the
foregoing unmistakable declarations in the body of the Decision should
merge with and become an intrinsic part of the fallo thereof which under
the premises is clearly inadequate since the dispositive portion is not in
accord with the findings as contained in the body thereof.
Indeed, the Decision in Civil Case No. R-1881 should be read in its entirety,
wherein it is apparent that the acquisition by the Republic of the expropriated lots was
subject to the condition that the Lahug Airport would continue its operation. The
condition not having materialized because the airport had been abandoned, the former
owner should then be allowed to reacquire the expropriated property.
On this note, we take this opportunity to revisit our ruling in Fery, which involved
an expropriation suit commenced upon parcels of land to be used as a site for a public
market. Instead of putting up a public market, respondent Cabanatuan constructed
residential houses for lease on the area. Claiming that the municipality lost its right to the
property taken since it did not pursue its public purpose, petitioner Juan Fery, the former
owner of the lots expropriated, sought to recover his properties. However, as he had
admitted that, in 1915, respondent Cabanatuan acquired a fee simple title to the lands in
question, judgment was rendered in favor of the municipality, following American
jurisprudence, particularly City of Fort Wayne v. Lake Shore & M.S. RY. Co., McConihay
v. Theodore Wright, and Reichling v. Covington Lumber Co., all uniformly holding that
the transfer to a third party of the expropriated real property, which necessarily resulted

188
in the abandonment of the particular public purpose for which the property was taken, is
not a ground for the recovery of the same by its previous owner, the title of the
expropriating agency being one of fee simple.
Obviously, Fery was not decided pursuant to our now sacredly held constitutional
right that private property shall not be taken for public use without just compensation. It
is well settled that the taking of private property by the Governments power of eminent
domain is subject to two mandatory requirements: (1) that it is for a particular public
purpose; and (2) that just compensation be paid to the property owner. These
requirements partake of the nature of implied conditions that should be complied with to
enable the condemnor to keep the property expropriated.
More particularly, with respect to the element of public use, the expropriator
should commit to use the property pursuant to the purpose stated in the petition for
expropriation filed, failing which, it should file another petition for the new purpose. If
not, it is then incumbent upon the expropriator to return the said property to its private
owner, if the latter desires to reacquire the same. Otherwise, the judgment of
expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the
proper exercise of the power of eminent domain, namely, the particular public purpose
for which the property will be devoted. Accordingly, the private property owner would
be denied due process of law, and the judgment would violate the property owners right
to justice, fairness, and equity.
In light of these premises, we now expressly hold that the taking of private
property, consequent to the Governments exercise of its power of eminent domain,
is always subject to the condition that the property be devoted to the specific public
purpose for which it was taken. Corollarily, if this particular purpose or intent is
not initiated or not at all pursued, and is peremptorily abandoned, then the former
owners, if they so desire, may seek the reversion of the property, subject to the
return of the amount of just compensation received. In such a case, the exercise of
the power of eminent domain has become improper for lack of the required factual
justification.
On the matter of the repurchase price, while petitioners are obliged to reconvey Lot
No. 88 to respondents, the latter must return to the former what they received as just
compensation for the expropriation of the property, plus legal interest to be computed
from default, which in this case runs from the time petitioners comply with their
obligation to respondents.
Respondents must likewise pay petitioners the necessary expenses they may have
incurred in maintaining Lot No. 88, as well as the monetary value of their services in
managing it to the extent that respondents were benefited thereby.
Date of filing of petition for expropriation
is the reckoning point in the computation
of just compensation.

189
CITY OF ILOILO VS. JUDGE LOLITA BESANA, RTC
32 and ELPIDIO JAVELLANA, G.R. No. 168967,
February 12, 2010

DEL CASTILLO, J.:

It is arbitrary and capricious for the government to initiate expropriation proceedings,
seize a persons property, allow the order of expropriation to become final, but then fail to justly
compensate the owner for over 25 years. This is government at its most high-handed and
irresponsible, and should be condemned in the strongest possible terms. For its failure to properly
compensate the landowner, the City of Iloilo is liable for damages.
FACTS:
On September 18, 1981, petitioner filed a Complaint for eminent domain against private
respondent Elpidio T. Javellana (Javellana) and Southern Negros Development Bank, the latter as
mortgagee. The complaint sought to expropriate two parcels of land known as Lot Nos. 3497CC and 3497-DD registered in Javellanas name under Transfer Certificate of Title (TCT) No. T44894 (the Subject Property) to be used as a school site for Lapaz High School. Petitioner
alleged that the Subject Property was declared for tax purposes in Tax Declaration No. 40080 to
have a value of P60.00 per square meter, or a total value of P43,560.00. The case was docketed
as Civil Case No. 14052 and raffled to then Court of First Instance of Iloilo, Branch 7.
On December 9, 1981, Javellana filed his Answer where he admitted ownership of the
Subject Property but denied the petitioners avowed public purpose of the sought-for
expropriation, since the City of Iloilo already had an existing school site for Lapaz High School.
Javellana also claimed that the true fair market value of his property was no less than P220.00
per square meter.
On May 11, 1982, petitioner filed a Motion for Issuance of Writ of Possession, alleging
that it had deposited the amount of P40,000.00 with the Philippine National Bank-Iloilo Branch.
Petitioner claimed that it was entitled to the immediate possession of the Subject Property, citing
Section 1 of Presidential Decree No. 1533, after it had deposited an amount equivalent to 10% of
the amount of compensation. Petitioner attached to its motion a Certification issued by Estefanio
C. Libutan, then Officer-in-Charge of the Iloilo City Treasurers Office, stating that said deposit
was made.
On May 17, 1983, the trial court issued an Order which granted petitioners Motion for
Issuance of Writ of Possession and authorized the petitioner to take immediate possession of the
Subject Property.
Thereafter, a Writ of Possession was issued in petitioners favor, and petitioner was able
to take physical possession of the properties sometime in the middle of 1985. At no time has
Javellana ever denied that the Subject Property was actually used as the site of Lapaz National
High School. Aside from the filing by the private respondent of his Amended Answer on April
21, 1984, the expropriation proceedings remained dormant.

190
Sixteen years later, on April 17, 2000, Javellana filed an Ex Parte Motion/Manifestation,
where he alleged that when he finally sought to withdraw the P40,000.00 allegedly deposited by
the petitioner, he discovered that no such deposit was ever made. In support of this contention,
private respondent presented a Certification from the Philippine National Bank stating that no
deposit was ever made for the expropriation of the Subject Property. Private respondent thus
demanded his just compensation as well as interest. Attempts at an amicable resolution and a
negotiated sale were unsuccessful. It bears emphasis that petitioner could not present any
evidence whether documentary or testimonial to prove that any payment was actually made
to private respondent.

Thereafter, on April 2, 2003, private respondent filed a Complaint against petitioner for
Recovery of Possession, Fixing and Recovery of Rental and Damages. The case was docketed
as Civil Case No. 03-27571, and raffled to Branch 28 of the Iloilo City Regional Trial Court.
Private respondent alleged that since he had not been compensated for the Subject Property,
petitioners possession was illegal, and he was entitled to recovery of possession of his lots. He
prayed that petitioner be ordered to vacate the Subject Property and pay rentals amounting to
P15,000.00 per month together with moral, exemplary, and actual damages, as well as attorneys
fees.
On May 15, 2003, petitioner filed its Answer, arguing that Javellana could no longer
bring an action for recovery since the Subject Property was already taken for public use. Rather,
private respondent could only demand for the payment of just compensation. Petitioner also
maintained that the legality or illegality of petitioners possession of the property should be
determined in the eminent domain case and not in a separate action for recovery of possession.
Both parties jointly moved to consolidate the expropriation case (Civil Case No. 14052)
and the case for recovery of possession (Civil Case No. 03-27571), which motion was granted by
the trial court in an Order dated August 26, 2003. On November 14, 2003, a commission was
created to determine the just compensation due to Javellana.
On November 20, 2003, private respondent filed a Motion/Manifestation dated
November 19, 2003 claiming that before a commission is created, the trial court should first order
the condemnation of the property, in accordance with the Rules of Court. Javellana likewise
insisted that the fair market value of the Subject Property should be reckoned from the date when
the court orders the condemnation of the property, and not the date of actual taking, since
petitioners possession of the property was questionable. Before petitioner could file its
Comment, the RTC issued an Order dated November 21, 2003 denying the Motion.
Undeterred, Javellana filed on November 25, 2003, an Omnibus Motion to Declare Null
and Void the Order of May 17, 1983 and to Require Plaintiff to Deposit 10% or P254,000.00.
Javellana claimed that the amount is equivalent to the 10% of the fair market value of the Subject
Property, as determined by the Iloilo City Appraisal Committee in 2001, at the time when the
parties were trying to negotiate a settlement.
On December 12, 2003, the RTC issued the First Assailed Order, which nullified the
Order dated May 17, 1983 (concerning the issuance of a writ of possession over the Subject
Property). The trial court ruled:

191
x x x the Order dated May 17, 1983 is hereby declared null and void and the
plaintiff [is] hereby ordered to immediately deposit with the PNB the 10% of
the just compensation after the Commission shall have rendered its report
and have determined the value of the property not at the time it was
condemned but at the time the complaint was filed in court. (Emphasis
ours)
Neither party sought reconsideration of this Order. Nonetheless, about six months later,
the RTC issued the Second Assailed Order, which it denominated as an Amended Order. The
Second Assailed Order was identical to the first, except that the reckoning point for just
compensation was now the time this order was issued, which is June 15, 2004.
x x x the Order dated May 17, 1983 is hereby declared null and void and the
plaintiff [is] hereby ordered to immediately deposit with the PNB the 10% of
the just compensation after the Commission shall have rendered its report and
have determined the value of the property not at the time it was condemned but
at the time this order was issued. (Underscoring in original text)
This time, petitioner filed a Motion for Reconsideration claiming that there was no legal
basis for the issuance of the Second Assailed Order. Javellana opposed, arguing that since the
May 17, 1983 Order and the Second Assailed Order were interlocutory in character, they were
always subject to modification and revision by the court anytime.
After the parties were able to fully ventilate their respective positions, the public
respondent issued the Third Assailed Order, denying the Motion for Reconsideration, and ruling
as follows:
The Order dated June 15, 2004 among other things stated that parties
and counsels must be bound by the Commissioners Report regarding the value
of the property not at the time it was condemned but at the time this order
was issued.
This is true inasmuch as there was no deposit at the PNB and their
taking was illegal.
The plaintiff thru [sic] Atty. Laurea alleged that this Court had a
change of heart and issued an Amended Order with the same wordings as the
order of December 12, 2003 but this time stated not at the time it was
condemned but at the time the order was issued. Naturally, this Court in the
interest of justice, can amend its order because there was no deposit by
plaintiff.
The jurisprudence cited by plaintiff that the just compensation must
be determined as of the date of the filing of the complaint is true if there was a
deposit. Because there was none the filing was not in accordance with law,
hence, must be at the time the order was issued.

192
The allegation of defendant thru [sic] counsel that the orders attacked
by plaintiff thru [sic] counsel saying it has become final and executory are
interlocutory orders subject to the control of the Judge until final judgment is
correct. Furthermore, it is in the interes[t] of justice to correct errors.
In the meantime, on April 15, 2004, the Commission submitted its Report, providing the
following estimates of value, but without making a proper recommendation:
Reckoning Point

Value per square

meter
1981 - at the time the
P110.00/sqm
complaint was filed
1981 at the time the
complaint was filed

P686.81/sqm

2002

P3,500.00/sqm

2004

P4,200.00/sqm

Fair Market Value

Basis

P79,860.00

based on three or more recorded

sales of similar types of land in
the vicinity in the same year
P498,625.22
Appraisal by Southern Negros
Development Bank based on
market value, zonal value,
appraised value of other banks,
recent
selling
price
of
neighboring lots
P2,541,000.00 Appraisal by the City Appraisal
Committee, Office of the City
Assessor
PhP3,049,200.00 Private Appraisal Report (Atty.
Roberto Cal Catolico dated April
6, 2004)

Hence, the present petition.

Petitioner is claiming that (1) the trial court gravely abused its discretion amounting to
lack or excess of jurisdiction in overturning the Order dated May 17, 1983, which was already a
final order; and (2) just compensation for the expropriation should be based on the Subject
Propertys fair market value either at the time of taking or filing of the complaint.
Issues
There are only two questions we need answer, and they are not at all novel. First, does an
order of expropriation become final? Second, what is the correct reckoning point for the
determination of just compensation?
Held:
Expropriation proceedings have two stages. The first phase ends with an order of
dismissal, or a determination that the property is to be acquired for a public purpose. Either order
will be a final order that may be appealed by the aggrieved party. The second phase consists of

193
the determination of just compensation. It ends with an order fixing the amount to be paid to the
landowner. Both orders, being final, are appealable.
An order of condemnation or dismissal is final, resolving the question
of whether or not the plaintiff has properly and legally exercised its power of
eminent domain. Once the first order becomes final and no appeal thereto is
taken, the authority to expropriate and its public use can no longer be questioned.
Javellana did not bother to file an appeal from the May 17, 1983 Order which granted
petitioners Motion for Issuance of Writ of Possession and which authorized petitioner to take
immediate possession of the Subject Property. Thus, it has become final, and the petitioners
right to expropriate the property for a public use is no longer subject to review. On the first
question, therefore, we rule that the trial court gravely erred in nullifying the May 17, 1983 Order.
We now turn to the reckoning date for the determination of just compensation. Petitioner
claims that the computation should be made as of September 18, 1981, the date when the
expropriation complaint was filed. We agree.
In a long line of cases, we have constantly affirmed that:
x x x just compensation is to be ascertained as of the time of the taking, which
usually coincides with the commencement of the expropriation proceedings.
Where the institution of the action precedes entry into the property, the just
compensation is to be ascertained as of the time of the filing of the complaint.
When the taking of the property sought to be expropriated coincides with the
commencement of the expropriation proceedings, or takes place subsequent to the filing of the
complaint for eminent domain, the just compensation should be determined as of the date of the
filing of the complaint. Even under Sec. 4, Rule 67 of the 1964 Rules of Procedure, under
which the complaint for expropriation was filed, just compensation is to be determined as of the
date of the filing of the complaint. Here, there is no reason to depart from the general rule that
the point of reference for assessing the value of the Subject Property is the time of the filing of the
complaint for expropriation.

Private respondent claims that the reckoning date should be in 2004 because of the clear
injustice to the private respondent who all these years has been deprived of the beneficial use of
his properties.
We commiserate with the private respondent. The school was constructed and has been
in operation since 1985. Petitioner and the residents of Iloilo City have long reaped the benefits
of the property. However, non-payment of just compensation does not entitle the private
landowners to recover possession of their expropriated lot.
Concededly, Javellana also slept on his rights for over 18 years and did not bother to
check with the PNB if a deposit was actually made by the petitioner. Evidently, from his inaction
in failing to withdraw or even verify the amounts purportedly deposited, private respondent not

194
only accepted the valuation made by the petitioner, but also was not interested enough to pursue
the expropriation case until the end. As such, private respondent may not recover possession of
the Subject Property, but is entitled to just compensation. It is high time that private respondent
be paid what was due him after almost 30 years.
We stress, however, that the City of Iloilo should be held liable for damages for taking
private respondents property without payment of just compensation. In Manila International
Airport Authority v. Rodriguez, the Court held that a government agencys prolonged occupation
of private property without the benefit of expropriation proceedings undoubtedly entitled the
landowner to damages:
Such pecuniary loss entitles him to adequate compensation in the
form of actual or compensatory damages, which in this case should be the
legal interest (6%) on the value of the land at the time of taking, from said
point up to full payment by the MIAA. This is based on the principle that
interest runs as a matter of law and follows from the right of the landowner to be
placed in as good position as money can accomplish, as of the date of the taking
x x x.
xxxx
For more than twenty (20) years, the MIAA occupied the subject lot
without the benefit of expropriation proceedings and without the MIAA exerting
efforts to ascertain ownership of the lot and negotiating with any of the owners of
the property. To our mind, these are wanton and irresponsible acts which
should be suppressed and corrected. Hence, the award of exemplary
damages and attorneys fees is in order. x x x. (Emphasis supplied)
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Iloilo City, Branch 32 in Civil Case No. 14052 and Civil Case No. 03-27571 dated December 12,
2003, June 15, 2004, and March 9, 2005 are hereby ANNULLED and SET ASIDE.
The Regional Trial Court of Iloilo City, Branch 32 is DIRECTED to immediately
determine the just compensation due to private respondent Elpidio T. Javellana based on the fair
market value of the Subject Property at the time Civil Case No. 14052 was filed, or on September
18, 1981 with interest at the legal rate of six percent (6%) per annum from the time of filing until
full payment is made.
The City of Iloilo is ORDERED to pay private respondent the amount of P200,000.00
as exemplary damages.
Presumption of regularity in the
performance of official duties cannot
prevail over presumption of innocence in
drugs cases if Section 21 of RA No. 9165
was not complied with.

195
PEOPLE OF THE PHILIPPINES VS. RONALDO DE
GUZMAN, G.R. No. 186498, March 26, 2010
On June 10, 2003, a confidential informant reported De Guzmans drug pushing
activities to Alcala, Pangasinans Chief of Police, Sotero Soriano, Jr. Soriano
immediately formed a team to conduct a buy-bust operation. After a short briefing, the
team proceeded to De Guzmans house. Once there, the confidential informant
introduced appellant to Senior Police Officer (SPO)1 Daniel Llanillo, who was
designated as poseur-buyer. Llanillo tried to buy P200 worth of shabu. He handed two
marked P100 bills to De Guzman, and the latter, in turn, gave him two heat-sealed
transparent plastic sachets containing what was suspected as shabu. Thereafter, Llanillo
gave the prearranged signal to the rest of the team. Appellant was arrested and frisked.
The team recovered from De Guzman two packs of empty transparent sachets, three
disposable lighters, and P3,380.00 in cash, which included the marked money paid by
SPO1 Llanillo. The team then brought De Guzman to the police station in Alcala,
Pangasinan.
At the police station, De Guzman and the items seized during the buy-bust
operation were turned over to the police investigator, SPO3 Eduardo Yadao. SPO3 Yadao
entered the incident in the police blotter. He then placed his initials on the packets of
suspected shabu, which were later submitted to the Philippine National Police (PNP)
Crime Laboratory in Urdaneta City. Confirmatory tests revealed that the substance in the
packets that appellant handed to SPO1 Llanillo was indeed shabu.
At the trial, appellant denied the charges against him. He claimed that, on the
morning of June 10, 2003, he was on the second floor of his house watching television
when he was informed by his wife that police officers were looking for him. He claimed
that SPO1 Llanillo informed him about a report that he (De Guzman) was repacking
shabu, which he denied. Thereafter, the police officers frisked him and took the
P3,000.00 from his pocket. The police officers also searched the cabinet, where his
television was, and found a lighter. Then, he was handcuffed and brought to the police
station.
After trial, the RTC rendered a decision, finding De Guzman guilty beyond
reasonable doubt of violating R.A. No. 9165. He was sentenced to life imprisonment and
to pay a fine of P500,000.00.
De Guzman elevated the matter to the Supreme Court on Petition for Review
after the Court of Appeals affirmed the RTC Decision. He argues that the prosecution
failed to show that the police officers complied with the mandatory procedures under
R.A. No. 9165. In particular, he points to the fact that the seized items were not marked
immediately after his arrest; that the police officers failed to make an inventory of the
seized items in his presence or in the presence of his counsel and of a representative from
the media and from the Department of Justice (DOJ); and that no photographs were taken
of the seized items and of appellant. Appellant also claims that the unbroken chain of
custody of the evidence was not established. Further, appellant contends that the failure
of the police officers to enter the buy-bust operation in the police blotter before the said
operation, the lack of coordination with the Philippine Drug Enforcement Agency

196
(PDEA), and the failure to observe the requirements of R.A. No. 9165 have effectively
overturned the presumption of regularity in the performance of the police officers duties.
HELD:
A review of the records of this case reveals that circumstances warrant a reversal
of the trial courts decision.
The Constitution mandates that an accused in a criminal case shall be presumed
innocent until the contrary is proven beyond reasonable doubt. The prosecution is laden
with the burden to overcome such presumption of innocence by presenting the quantum
of evidence required.
Consequently, courts are required to put the prosecution evidence through the
crucible of a severe testing, and the constitutional right to presumption of innocence
requires them to take a more than casual consideration of every circumstance or doubt
favoring the innocence of the accused.
When the circumstances are capable of two or more inferences, as in this case,
one of which is consistent with innocence and the other is compatible with guilt, the
presumption of innocence must prevail, and the court must acquit.
The duty to prove the guilt of an accused is reposed in the State. Law enforcers and
public officers have the duty to preserve the chain of custody over the seized drugs. This
guarantee of the integrity of the evidence to be used against an accused goes to the very
heart of his fundamental rights.
In a prosecution for illegal sale of dangerous drugs, the following elements must
be proven: (1) that the transaction or sale took place; (2) that the corpus delicti or the
illicit drug was presented as evidence; and (3) that the buyer and seller were identified.
What is material is the proof that the transaction or sale actually took place, coupled with
the presentation in court of the prohibited or regulated drug. The delivery of the
contraband to the poseur-buyer and the receipt of the marked money consummate the
buy-bust transaction between the entrapping officers and the accused. The presentation in
court of the corpus delicti the body or the substance of the crime establishes the fact
that a crime has actually been committed.
Contrary to De Guzmans contention, the trial court correctly found that the buybust transaction took place. The buyer (SPO1 Llanillo) and seller (De Guzman) were both
identified and the circumstances of how the purported sale of the illegal drugs took place
were clearly demonstrated. Thus, the prosecution successfully established the first and
third elements of the crime. However, there is a problem in the prosecutions effort to
establish the integrity of the corpus delicti.
The identity of the prohibited drug must be established with moral certainty.
Apart from showing that the elements of possession or sale are present, the fact that the
substance illegally possessed and sold in the first place is the same substance offered in
court as exhibit must likewise be established with the same degree of certitude as that

197
needed to sustain a guilty verdict. The corpus delicti should be identified with
unwavering exactitude.
The chain of custody requirement performs this function in that it ensures that
unnecessary doubts concerning the identity of the evidence are removed. Section 21 of
R.A. No. 9165 states:
Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs,
Controlled
Precursors
and
Essential
Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA
shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated,
seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of
the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of
the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign
the copies of the inventory and be given a copy thereof.
The Court finds that the apprehending officers failed to comply with the
guidelines set under R.A. No. 9165 and its IRR.
SPO1 Llanillo himself admitted that the marking of the seized items was done in
the police station and not immediately after the buy-bust operation.
The failure to follow the procedure mandated under R.A. No. 9165 and its IRR
must be adequately explained. The justifiable ground for non-compliance must be
proven as a fact. The court cannot presume what these grounds are or that they even exist.
Accordingly, non-compliance with the procedure shall not render void and invalid
the seizure and custody of the drugs only when: (1) such non-compliance is attended by
justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending team. There must be proof that these two (2)
requirements were met before such non-compliance may be said to fall within the scope
of the proviso.
In this case, it was admitted that it was SPO3 Yadao, the assigned investigator, who
marked the seized items, and only upon seeing the items for the first time at the police
station. Moreover, there was no physical inventory made or photographs of the seized
items taken under the circumstances required by R.A. No. 9165 and its IRR. There was
also no mention that representatives from the media and from the DOJ, and any elected
official, were present during this inventory. The prosecution never explained the reasons
for these lapses.

198
As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be. It would include testimony about
every link in the chain, from the moment the item was picked up to the time it is offered
in evidence, in such a way that every person who touched the exhibit would describe how
and from whom it was received, where it was and what happened to it while in the
witness possession, the condition in which it was received and the condition in which it
was delivered to the next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the condition of the item and
no opportunity for someone not in the chain to have possession of the same. Indeed, it is
from the testimony of every witness who handled the evidence that a reliable assurance
can be derived that the evidence presented in court and that seized from the accused are
one and the same.
Accordingly, the failure to establish, through convincing proof, that the integrity of
the seized items has been adequately preserved through an unbroken chain of custody is
enough to engender reasonable doubt on the guilt of an accused. Reasonable doubt is that
doubt engendered by an investigation of the whole proof and an inability after such
investigation to let the mind rest upon the certainty of guilt. Absolute certainty of guilt is
not demanded by the law to convict a person charged with a crime, but moral certainty is
required as to every proposition of proof requisite to constitute the offense. A conviction
cannot be sustained if there is a persistent doubt on the identity of the drug.
Indeed, the prosecutions failure to prove that the specimen submitted for
laboratory examination was the same one allegedly seized from appellant is fatal to the
prosecutions case.
Finally, the prosecution cannot find solace in its invocation of the presumption of
regularity in the apprehending officers performance of official duty.
The presumption of regularity in the performance of official duty cannot by
itself overcome the presumption of innocence nor constitute proof beyond
reasonable doubt. Moreover, the failure to observe the proper procedure negates the
operation of the presumption of regularity accorded to police officers. As a general rule,
the testimonies of the police officers who apprehended the accused are accorded full faith
and credit because of the presumption that they have performed their duties regularly.
But when the performance of their duties is tainted with failure to comply with the
procedure and guidelines prescribed, the presumption is effectively destroyed.
Thus, even if the defense evidence is weak, the prosecutions whole case still
falls. The evidence for the prosecution must stand or fall on its own weight and cannot
be allowed to draw strength from the weakness of the defense.
Right to speedy disposition of cases
applicable in an administrative case
where the prosecution failed to submit its
formal offer of evidence for almost five
(5) years.

199
CAPT. WILFREDO ROQUERO VS. THE
CHANCELLOR OF UP-MANILA, ET AL., G.R. No.
181851, March 9, 2010
PEREZ, J.:
Petitioner Wildredo G. Roquero is an employee of UP-Manila assigned at the
Philippine General Hospital (PGH) Security Division as Special Police Captain. Private
respondent Imelda O. Abutal is a Lady Guard of Ex-Bataan Security Agency who was
applying for a position in the security force assigned at UP-PGH.
The instant controversy arose from a complaint by private respondent Abutal with
then Chancellor of UP-Manila Perla D. Santos-Ocampo for Grave Misconduct against
petitioner Capt. Roquero. The formal charge filed on 1 October 1998 and docketed as
ADM Case No. UPM-AC 97-007 reads as follows:
After preliminary investigation duly conducted in
accordance with the Rules and Regulations on the
Discipline of UP Faculty and Employees, a prima facie
case has been found to exist against you for GRAVE
MISCONDUCT punishable under the University Rules and
Regulations on the Discipline of UP Faculty and
Employees in relation to the Civil Service Law, committed
as follows:
That you, Capt. Wilfredo Roquero of the UP
Manila Police Force, sometime in April 1996, while
conducting an interview on MS. IMELDA
ABUTAL who was then applying for the position of
Lady Guard of Ex-Bataan Security Agency to be
assigned at UP-PGH, proposed to her that if she
agreed to be your mistress, you would facilitate her
application and give her a permanent position; that
despite the fact the MS. ABUTAL rejected your
proposal, you still insisted on demanding said
sexual favor from her; that you, therefore, are liable
for GRAVE MISCONDUCT under Section 22,
paragraph (c) of Rule XIV of the Omnibus Rules
Implementing Book V of E.O. 292 on Civil Rules.
On 1 October 1998, the petitioner was placed under preventive suspension for
ninety (90) days by Chancellor Santos-Ocampo, the material portion of said Order reads:
Considering the gravity of the offense charged and pursuant
to Section 19 of Rules and Regulations on the Discipline of
UP Faculty Members and Employees and Section 26 and
27 Rule XIV of Book V of Executive Order No. 292 and

200
Omnibus Rules, you are hereby preventively suspended for
ninety (90) days effective upon receipt hereof.
While on preventive suspension, you are hereby required to
appear before the Administrative Disciplinary Tribunal
(ADT) whenever your presence is necessary.
Thereafter, the Administrative Disciplinary Tribunal (ADT) composed of Atty.
Zaldy B. Docena, Eden Perdido and Isabella Lara, was organized to hear the instant case.
Atty. Paul A. Flor, as University Prosecutor, represented the prosecution. He was later
on replaced by Atty. Asteria Felicen. Petitioner was represented by Atty. Leo G. Lee of
the Public Attorneys Office (PAO) who was then replaced by Public Attorney Philger
Inovejas.
The Prosecution presented its only witness, private respondent Abutal. After the
completion of the cross-examination on the prosecutions only witness, the prosecution
agreed to submit its Formal Offer of Evidence on or before 16 July 1999.
The prosecution, however, failed to submit its formal offer of evidence within the
period agreed upon.
Thereafter, on 10 August 1999, when the case was called, only petitioner and his
counsel appeared. Atty. Flor merely called by telephone and requested Atty. Docena to
reset the case to another date. Atty. Docena then ordered the resetting of the hearing on
the following dates: 11 August and 21 August 1999. On 11 August 1999, only petitioner
and his counsel came. No representative from the prosecution appeared before the ADT.
Atty. Flor again called and asked for the postponement of the hearing. By reason thereof,
Atty. Docena issued an Order, which reads as follows:
The continuation of the hearing of this case is hereby set to
September 29, 1999 at 2:00 p.m., with the understanding
that if and when the parties fail to appear at said hearing
date, this case shall be deemed submitted for resolution
based on the evidences already obtaining in the record of
the case.
On said date, the representative from the prosecution again failed to appear.
On 22 October 1999, petitioner filed a Motion through counsel praying that
complainant (private respondent herein) be declared to have waived her rights to formally
offer her exhibits since complainant was not able to file her Formal Offer within the
given period of fifteen (15) days from 1 July 1999 or up to 16 July 1999.
The ADT was not able to act on the said Motion for almost five (5) years. Due to
the unreasonable delay, petitioner, on 19 May 2004 filed another Motion asking for the
dismissal of the administrative case against him. The Motion to Dismiss was anchored
on the following reasons: that the prosecution had not formally offered its evidence; that
the ADT had failed to act on the motion filed on 22 October 1999; that the unfounded

201
charges in the administrative complaint were filed just to harass him; and that he is
entitled to a just and speedy disposition of the case.
On 26 May 2004, the prosecution, represented by Atty. Felicen in view of the
resignation of Atty. Flor in August 1999, filed its Comment/Opposition to the Motion to
Dismiss. The prosecution alleged that a Formal Offer of Documentary Exhibits had
been filed on 24 January 2004, of which a copy thereof was received by Atty. Lee,
petitioners counsel, on 30 January 2004, per registry return receipt. However, petitioner
has not filed his comment to the said Formal Offer.
Furthermore, the prosecution explained in its Comment/Opposition that in view of
the resignation of Atty. Flor in August 1999 but who had been on leave by mid-July
1999, the Formal Offer could not be prepared by another counsel until all the transcript of
stenographic notes have been furnished to the counsel that replaced Atty. Flor.
Meanwhile, the stenographer, Jamie Limbaga, had been in and out of the hospital due to a
serious illness, thus the delay in the filing of the prosecutors Formal Offer of
Documentary Exhibits.
On 8 June 2004, Atty. Docena issued the assailed Order denying petitioners
motion to dismiss, to wit:
Acting on respondents Motion to Dismiss, as well
as the University Prosecutors Comment and/or Opposition
to said Motion, and finding that said Motion to Dismiss to
be bereft of merit, the same is hereby DENIED.
In view of the failure of the respondent to file his
comment on the Prosecutions Formal Offer of Evidence,
the Exhibits (A to G-1) of the Prosecution are hereby
ADMITTED for the purpose for which the same have been
offered.
The respondent is hereby directed to present his
evidence on June 22, 2004 at 10:30 in the morning.
SO ORDERED.
A motion for reconsideration was filed by petitioner but the same was denied in
an Order dated 9 November 2004.
Petitioner Captain Wilfredo Roquero then filed with the Court of Appeals a
Petition for Certiorari under Rule 65, docketed as CA-G.R. SP No. 87776, alleging
therein that the ADT committed grave abuse of discretion when it denied the motion to
dismiss the administrative case filed against him.
In a Decision dated 22 March 2007, the Honorable Court of Appeals denied the
petition with prayer for TRO of Roquero reasoning that the ADT did not commit grave
abuse of discretion in issuing the assailed orders.

202
Hence, this Petition.
The core issue of this case is whether the failure of the ADT to resolve Roqueros
Motion (to declare complainant Imelda Abutal to have waived her right to submit her
Formal Offer of Exhibit) which he seasonably filed on 22 October 1999 and the assailed
Order of the ADT dated 8 June 2004 admitting the Formal Offer of Exhibit of
complainant Imelda Abutal despite having filed after almost five years violated the
constitutional right of Roquero to a speedy disposition of cases.
HELD:
Indeed, while Section 27 of the Uniform Rules on Administrative Cases in Civil
Service states that the failure to submit the formal offer of evidence within the given
period shall be considered as waiver thereof, the ADT in fact allowed the prosecution
to present its formal offer almost five (5) years later or on 24 January 2004. Starting on
that date, petitioner was presented with the choice to either present his evidence or to, as
he did, file a motion to dismiss owing to the extraordinary length of time that ADT failed
to rule on his motion.
We cannot accept the finding of the Court of Appeals that there was no grave abuse
of discretion on the part of the ADT because a formal offer of evidence was filed by
the prosecution, a copy of which was received by petitioners counsel. The
admission by ADT on 8 June 2004 of the formal offer of exhibits belatedly filed did not
cure the 5-year delay in the resolution of petitioners 1999 motion to deem as waived
such formal offer of evidence. Indeed, the delay of almost five (5) years cannot be
justified.
The ADT admitted this explanation of the prosecutor hook, line and sinker without
asking why it took him almost five (5) years to make that explanation. If the excuses
were true, the prosecution could have easily manifested with the ADT of its predicament
right after Roquero filed his motion to declare the waiver of the formal offer. It is evident
too that the prosecution failed to explain why it took them so long a time to find a
replacement for the original prosecutor. And, the stenographer who had been in and out
of the hospital due to serious illness should have been replaced sooner.
While it is true that administrative investigations should not be bound by strict
adherence to the technical rules of procedure and evidence applicable to judicial
proceedings, the same however should not violate the constitutional right of respondents
to a speedy disposition of cases.
Section 16, Article III of the 1987 Constitution provides:
Section 16. All person shall have the right to a speedy disposition
of their cases before all judicial, quasi-judicial, or administrative bodies.
The constitutional right to a speedy disposition of cases is not limited to the
accused in criminal proceedings but extends to all parties in all cases, including civil and
administrative cases, and in all proceedings, including judicial and quasi-judicial

203
hearings. Hence, under the Constitution, any party to a case may demand expeditious
action by all officials who are tasked with the administration of justice.
The right to a speedy disposition of a case, like the right to a speedy trial, is
deemed violated only when the proceedings are attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial are asked for and
secured; or even without cause or justifiable motive, a long period of time is allowed
to elapse without the party having his case tried. Equally applicable is the balancing
test used to determine whether a defendant has been denied his right to a speedy trial, or a
speedy disposition of a case for that matter, in which the conduct of both the prosecution
and the defendant is weighed, and such factors as the length of the delay, the reasons for
such delay, the assertion or failure to assert such right by the accused, and the prejudice
caused by the delay. The concept of a speedy disposition is a relative term and must
necessarily be a flexible concept.
Hence, the doctrinal rule is that in the determination of whether that right has
been violated, the factors that may be considered and balanced are as follows: (1) the
length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such
right by the accused; and (4) the prejudice caused by the delay.
Applying the doctrinal ruling vis-a-vis the factual milieu of this case, the violation
of the right to a speedy disposition of the case against petitioner is clear for the following
reasons: (1) the delay of almost five (5) years on the part of ADT in resolving the motion
of petitioner, which resolution petitioner reasonably found necessary before he could
present his defense; (2) the unreasonableness of the delay; and (3) the timely assertions
by petitioner of the right to an early disposition which he did through a motion to
dismiss. Over and above this, the delay was prejudicial to petitioners cause as he was
under preventive suspension for ninety (90) days, and during the interregnum of almost
five years, the trial of the accusation against him remained stagnant at the prosecution
stage.
The Constitutional guarantee against unreasonable delay in the disposition of
cases was intended to stem the tide of disenchantment among the people in the
administration of justice by our judicial and quasi-judicial tribunals. The adjudication of
cases must not only be done in an orderly manner that is in accord with the established
rules of procedure but must also be promptly decided to better serve the ends of justice.
Excessive delay in the disposition of cases renders the rights of the people guaranteed by
the Constitution and by various legislations inutile.
WHEREFORE, the Petition is hereby GRANTED.
The Administrative
Disciplinary Tribunal (ADT) of the University of the Philippines-Manila, Atty. Zaldy B.
Docena, Eden Perdido and Isabella Lara, in their capacities as Chairman and Members of
the ADT respectively, are hereby ORDERED to DISMISS the administrative case
against Capt. Wilfredo G. Roquero for violation of his constitutional right to a speedy
disposition of cases.
National territory; Full disclosure of
government transactions/negotiations; and

204
right to information on matters of public
concern.
THE PROVINCE OF NORTH COTABATO,
represented by Governor Jesus Sacdalan and Vice
Governor Emmanuel Pinol vs. THE GOVERNMENT
OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), et al., G.R. No. 183591,
October 14, 2008

CARPIO MORALES, J.:

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those who filed their
cases before the scheduled signing of the MOA-AD, this Court issued a Temporary
Restraining Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding
of several prior agreements between the two parties beginning in 1996, when the GRPMILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of Intent on August 27, 1998.
On July 23, 2008, the Province of North Cotabato 17[8] and Vice-Governor
Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and
Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order.18[9] Invoking the right to information on matters of public concern,
petitioners seek to compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit the slated
signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the
holding of a public consultation thereon. Supplementarily, petitioners pray that the
MOA-AD be declared unconstitutional.19[10]
17

[8]

18

[9]

19

Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piol.

Rollo (G.R. No. 183591), pp. 3-33.
[10]
Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591), pp.
143-162.

205

ISSUES:
1. Whether there is a violation of the peoples right to information on
matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions involving
public interest (1987 Constitution, Article II, Sec. 28) including
public
consultation under Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the
1997 Rules of Civil Procedure is an appropriate remedy;
2. Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as
a separate state, or a juridical, territorial or political subdivision
not recognized by law;
b) to revise or amend the Constitution and existing laws to conform
to the MOA;
c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic Act
No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF
1997), particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority
to so bind the Government of the Republic of the Philippines;
3. Whether the inclusion/exclusion of the Province of North Cotabato,
Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Linamon, Lanao del Norte in/from the areas covered by the projected
Bangsamoro Homeland is a justiciable question; and
HELD:
As per MO-AD, the territory of the Bangsamoro homeland is described as the
land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the
aerial domain and the atmospheric space above it, embracing the Mindanao-SuluPalawan geographic region.20[38]
More specifically, the core of the BJE is defined as the present geographic area of
the ARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu,
Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
20

[38]

MOA-AD, Territory, par. 1.

206
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.21[39]
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of
these areas is to be subjected to a plebiscite to be held on different dates, years apart from
each other. Thus, Category A areas are to be subjected to a plebiscite not later than
twelve (12) months following the signing of the MOA-AD.22[40] Category B areas, also
called Special Intervention Areas, on the other hand, are to be subjected to a plebiscite
twenty-five (25) years from the signing of a separate agreement the Comprehensive
Compact.23[41]
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all
natural resources within its internal waters, defined as extending fifteen (15) kilometers
from the coastline of the BJE area;24[42] that the BJE shall also have territorial waters,
which shall stretch beyond the BJE internal waters up to the baselines of the Republic of
the Philippines (RP) south east and south west of mainland Mindanao; and that within
these territorial waters, the BJE and the Central Government (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management over all natural
resources.25[43] Notably, the jurisdiction over the internal waters is not similarly
described as joint.
The MOA-AD further provides for the sharing of minerals on the territorial
waters between the Central Government and the BJE, in favor of the latter, through
production sharing and economic cooperation agreement.26[44] The activities which the
Parties are allowed to conduct on the territorial waters are enumerated, among which are
the exploration and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.27[45] There is no similar
provision on the sharing of minerals and allowed activities with respect to the internal
waters of the BJE.
The MOA-AD states that the BJE is free to enter into any economic cooperation
and trade relations with foreign countries and shall have the option to establish trade
missions in those countries. Such relationships and understandings, however, are not to
include aggression against the GRP.
The BJE may also enter into environmental
cooperation agreements.28[46]
The external defense of the BJE is to remain the duty and obligation of the
Central Government. The Central Government is also bound to take necessary steps to
ensure the BJEs participation in international meetings and events like those of the
ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate
in Philippine official missions and delegations for the negotiation of border agreements or
21

[39]

22

[40]

23

[41]

24

[42]

25

[43]

26

[44]

27

[45]

28

[46]

Id., par. 2(c).

Id., par. 2(d).
Id., par. 2(e).
Id., par. 2(f).
Id., par, 2(g)(1).
Id., par. 2(h).
Id., par. 2(i).
MOA-AD, Resources, par. 4.

207
protocols for environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part of the
ancestral domain.29[47]
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and
control thereon is to be vested in the BJE as the party having control within its territorial
jurisdiction. This right carries the proviso that, in times of national emergency, when
public interest so requires, the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct the operation
of such resources.30[48]
The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.31[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro people
arising from any unjust dispossession of their territorial and proprietary rights, customary
land tenures, or their marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually determined by the Parties. 32
[50]

The BJE may modify or cancel the forest concessions, timber licenses, contracts
or agreements, mining concessions, Mineral Production and Sharing Agreements
(MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those issued by the present
ARMM.33[51]
The MOA-AD describes the relationship of the Central Government and the BJE
as associative, characterized by shared authority and responsibility. And it states that
the structure of governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring amendments to the existing
legal framework shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on the
legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions
inclusive of civil service, electoral, financial and banking, education, legislation, legal,

29

[47]

30

[48]

31

[49]

32

[50]

33

[51]

Ibid.
Id., par. 5.
Id., par. 6.
Id., par. 7.
Id., par. 9.

208
economic, police and internal security force, judicial system and correctional institutions,
the details of which shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by
Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the
GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD
identifies the signatories as the representatives of the Parties, meaning the GRP and
MILF themselves, and not merely of the negotiating panels. 34[53] In addition, the signature
page of the MOA-AD states that it is WITNESSED BY Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister of Malaysia, ENDORSED BY
Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC)
Secretary General and Special Envoy for Peace Process in Southern Philippines, and
SIGNED IN THE PRESENCE OF Dr. Albert G. Romulo, Secretary of Foreign Affairs
of RP and Dato Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia,
all of whom were scheduled to sign the Agreement last August 5, 2008.
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as well as
to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by
law.35[107]
As early as 1948, in Subido v. Ozaeta,36[108] the Court has recognized the statutory
right to examine and inspect public records, a right which was eventually accorded
constitutional status.
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a self-executory
constitutional right.37[109]
In the 1976 case of Baldoza v. Hon. Judge Dimaano,38[110] the Court ruled that
access to public records is predicated on the right of the people to acquire information on
matters of public concern since, undoubtedly, in a democracy, the pubic has a legitimate
interest in matters of social and political significance.

34

35
36
37
38

[53]

IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,] hereby
affix their signatures.
[107]
CONSTITUTION, Article III, Sec. 7.
[108]
80 Phil. 383 (1948).
[109]
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530.
[110]
162 Phil. 868 (1976).

209
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the
nations problems, nor a meaningful democratic decision-making if they
are denied access to information of general interest. Information is needed
to enable the members of society to cope with the exigencies of the times.
As has been aptly observed: Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases. x x x39[111]
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation40[112] so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people.41[113]
The MOA-AD is a matter of public
concern
That the subject of the information sought in the present cases is a matter of
public concern42[114] faces no serious challenge. In fact, respondents admit that the MOAAD is indeed of public concern.43[115] In previous cases, the Court found that the
regularity of real estate transactions entered in the Register of Deeds,44[116] the need for
adequate notice to the public of the various laws,45[117] the civil service eligibility of a
public employee,46[118] the proper management of GSIS funds allegedly used to grant
loans to public officials,47[119] the recovery of the Marcoses alleged ill-gotten wealth, 48[120]
and the identity of party-list nominees,49[121] among others, are matters of public concern.
Undoubtedly, the MOA-AD subject of the present cases is of public concern,
39

[111]

40

[112]

41
42

43
44
45

46
47
48
49

Baldoza v. Dimaano, supra at 876.

Legaspi v. Civil Service Commission, supra note 109.
[113]
Chavez v. PCGG, 360 Phil 133, 164 (1998).
[114]
In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that:
In determining whether or not a particular information is of public concern there is no rigid
test which can be applied. `Public concern' like `public interest' is a term that eludes exact definition.
Both terms embrace a broad spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.
[115]
Respondents Comment of August 4, 2008, p. 9.
[116]
Subido v. Ozaeta, supra note 108.
[117]
Taada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Taada, v. Hon. Tuvera, 230 Phil. 528
(1986).
[118]
Legaspi v. Civil Service Commission, supra note 109.
[119]
Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA 256.
[120]
Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102.
[121]
Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4, 2007, 523
SCRA 1.

210
involving as it does the sovereignty and territorial integrity of the State, which
directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the Court has categorically
ruled:
x x x [T]he right to information contemplates inclusion of
negotiations leading to the consummation of the transaction. Certainly,
a consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too late for
the public to expose its defects.
Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates the State
policy of full transparency on matters of public concern, a situation which
the framers of the Constitution could not have intended. Such a
requirement will prevent the citizenry from participating in the public
discussion of any proposed contract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an emasculation of a
constitutional right, nor a retreat by the State of its avowed policy of full
disclosure of all its transactions involving public interest.50[122] (Emphasis
and italics in the original)
Intended as a splendid symmetry51[123] to the right to information under the Bill
of Rights is the policy of public disclosure under Section 28, Article II of the
Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.52[124]
The policy of full public disclosure enunciated in above-quoted Section 28
complements the right of access to information on matters of public concern found in the
Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands.53[125]
The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the peoples right to know
as the centerpiece. It is a mandate of the State to be accountable by following such
50

[122]

51

[123]

52
53

Chavez v. Public Estates Authority, 433 Phil. 506, 532-533 (2002).

Vide V RECORD, CONSTITUTIONAL COMMISSION 26-28 (September 24, 1986) which is
replete with such descriptive phrase used by Commissioner Blas Ople.
[124]
CONSTITUTION, Article II, Sec. 28.
[125]
Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 100 (2003).

211
policy.54[126] These provisions are vital to the exercise of the freedom of expression and
essential to hold public officials at all times accountable to the people.55[127]
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the
local government units or communities affected constitutes a departure by respondents
from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority
by the mere act of guaranteeing amendments to the Constitution. Any alleged violation
of the Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners, petitioners-inintervention and intervening respondents the requisite locus standi in keeping with the
liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court
finds that the present petitions provide an exception to the moot and academic principle
in view of (a) the grave violation of the Constitution involved; (b) the exceptional
character of the situation and paramount public interest; (c) the need to formulate
controlling principles to guide the bench, the bar, and the public; and (d) the fact that the
case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out
the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF
back in June 2001. Hence, the present MOA-AD can be renegotiated or another one
drawn up that could contain similar or significantly dissimilar provisions compared to the
original.
The peoples right to information on matters of public concern under Sec.
7, Article III of the Constitution is in splendid symmetry with the state policy of full
public disclosure of all its transactions involving public interest under Sec. 28, Article II
of the Constitution. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same selfexecutory nature, subject only to reasonable safeguards or limitations as may be provided
by law.
The contents of the MOA-AD is a matter of paramount public concern involving
public interest in the highest order. In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the contract,
jurisprudence finds no distinction as to the executory nature or commercial character of
the agreement.
54

[126]

55

[127]

Vide Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS 155 (1995).
Vide Chavez v. Public Estates Authority, supra note 122.

212
An essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to these
twin rights is the design for feedback mechanisms. The right to public consultation was
envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify
the exercise of the peoples right to be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on
both national and local levels and for a principal forum for consensus-building. In fact, it
is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues
to seek relevant information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to the
environment and human ecology including those that may call for the eviction of a
particular group of people residing in such locality, is implemented therein. The MOAAD is one peculiar program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of ancestral domain,
which entails, among other things, the observance of the free and prior informed consent
of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does
not grant the Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general
right to information or the specific right to consultation is untenable. The various explicit
legal provisions fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed the official copies of
the final draft of the MOA-AD, for judicial compliance and public scrutiny.
IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated by
E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by
which the MOA-AD was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not
only its specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is on its
way to independence.

213

While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that framework is
amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD
establishing an associative relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From The President dated March 1,
2001, addressed to the government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents act of
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
WHEREFORE, respondents motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRPMILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND
THE CONSTITUTION.

214