Constitutional Law 2 CASES (Preliminaries-I)

ATTY. DJUMEIL GERARD P.
TINAMPAY CASE LIST
EN BANC
The Supreme Court denied the petition for

mandamus and held that the academic freedom
expressly granted by the Constitution to
"institutions of higher learning" involves two kinds of
freedom: that which is enjoyed by the university as
a corporate body to determine for itself who may
teach, what may be taught, how it shall be taught,
and who may be admittedly to study, and that which
is accorded to a university professor to inquire,
discover, publish and teach the truth as he sees it
in the field of his competence. Universities and
colleges, the Supreme Court concluded, should not
be looked upon as public utilities devoid of any
discretion as to whom to admit or reject.
[G.R. No. L-40779. November 28, 1975.]
Petition for mandamus is denied.
EPICHARIS T. GARCIA, petitioner, vs. THE

FACULTY ADMISSION COMMITTEE, LOYOLA
SCHOOL OF THEOLOGY, herein represented by
FR. ANTONIO B. LAMBINO, respondent.
SYLLABUS
SYLLABUS IN
CONSTITUTIONAL LAW II
Atty. V. Paul Le. Montejo
PRELIMINARIES
Academic Freedom
1. GARCIA VS. FACULTY OF ADMISSION,
68 SCRA 277 (1975)
1.CONSTITUTIONAL
LAW;
ACADEMIC
FREEDOM; FREEDOM ACCORDED TO A
FACULTY MEMBER, NATURE OF. The
academic freedom enjoyed by institutions of higher
learning as recognized in the Constitution is more
often identified with the right of a faculty member to
pursue his studies in his particular specialty and
thereafter to make known or publish the result of
his endeavors without fear that retribution would be
visited on him in the event that his conclusions are
found distasteful or objectionable to the power that
be, whether in the political, economic, or academic
establishment. It is "a right claimed by the
accredited educator, as teacher and as investigator,
to interpret his findings and to communicate his
conclusions without being subjected to any
interference, molestation, or penalization because
these conclusions are unacceptable to some
constituted authority within or beyond the
institution." Otherwise stated, "it is the freedom of
professionally qualified persons to inquire, discover,
publish and teach the truth as they see it in the field
of their competence. It is subject to no control or
authority except the control or authority of the
rational methods by which truths or conclusions are
sought and established in these disciplines."
Epicharis T. Garcia in her own behalf.

Bengzon, Villegas, Zarraga, Narciso & Cudala for
respondents.
SYNOPSIS
The specific issue posed by this mandamus
proceeding to compel the Faculty Admission
Committee of the Loyola School of Theology to
allow petitioner to continue studying there is
whether she is deemed possessed of such a right
that has to be respected.
Petitioner alleged that she was admitted by
respondent in the Summer of 1975 to pursue
graduate studies leading to a Master of Arts in
Theology but was denied re-admission in the
following semester. She contended that the reason
given by respondent for such denial, namely: that
"her frequent questions and difficulties were not
always pertinent and had the effect of slowing down
the progress of the class," is not a valid ground for
her expulsion. Respondent, on the other hand,
contended that petitioner was admitted in the
Summer of 1975 not to a degree program but
merely to take some courses for credit, since
admission to a degree program requires
acceptance by the Assistant Dean of the Graduate
School and no such acceptance was given; that
respondent has discretion to admit or continue
admitting in said school any particular student,
considering not only academic or intellectual
standards but also other factors such as personality
traits, character orientation in relation with other
students, space limitations, facilities, professors
and optimum classroom size; and that there was no
clear duty to admit petitioner since the school of
theology is a seminary for the priesthood and
petitioner is admittedly and obviously not studying
for the priesthood, she being a lay person and a
woman.
2.ID.; ID.; FREEDOM ENJOYED BY SCHOOL AS

AN INSTITUTION OF HIGHER LEARNING.
Since the academic freedom recognized by the
Constitution makes reference to the "institutions of
higher learning" as recipients of this boon, it follows
that the school or college itself is possessed of
such a right. It decides for itself its aims and
objectives and how best to attain them. It is free
from outside coercion or interference possibly when
the overriding public welfare calls for some
restraint. It has a wide sphere of autonomy certainly
extending to the choice of students. This
constitutional provision is not to be construed in a
niggardly manner or in a grudging fashion. That
would be to frustrate its purpose and nullify its
intent.
3.ID.; ID.; ACADEMIC FREEDOM OF A
UNIVERSITY DISTINGUISHED FROM THAT OF A
1
ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST
FACULTY MEMBER. The Constitution grants the

right of academic freedom to the university as an
institution as distinguished from the academic
freedom of a university professor. For it is a wellestablished fact, and yet one which sometimes tend
to be obscured in discussions of the problems of
freedom, that the collective liberty of an
organization is by no means the same thing as the
freedom of the individual members within it; in fact,
the two kinds of freedom are not even necessarily
connected. In considering the problems of
academic freedom one must distinguish between
the autonomy of the university as a corporate body,
and the freedom of the individual university teacher.
and not eligible for admission to the seminary.

Mandamus to order her admission in the seminary
cannot lie in the absence of a clear right on her part
and a clear duty on respondent's part to so admit
her.
2.ID.; ID.; FAILURE TO AVAIL OF AND EXHAUST
ADMINISTRATIVE REMEDIES MUST BE BASED
ON JUSTIFIABLE REASONS. Where petitioner
admitted that she failed to avail of and exhaust
administrative remedies open to her but seeks to
justify her failure by alleging that she could have
recourse neither to the President of the school
(where she seeks admission as student for M.A. in
Theology) because the latter is abroad, nor to the
Secretary of Education, "since this is his busiest
time of the year," such excuse is patently inept,
since neither the university president's temporary
absence nor the Secretary of Education's having
"his busiest time of the year" justifies petitioner's
by-passing these officials whose final administrative
decision should first be given. Such exhaustion of
administrative remedies is a precondition for court
action and would get all the facts in so as to enable
the courts in a petition for review simply to decide
on the basis of the facts whether the questioned act
of petitioner's non-admission constitutes an
arbitrary action that would warrant judicial
intervention.
4.ID.; ID.; ID.; FUNCTION OF A UNIVERSITY. It

is the business of a university to provide that
atmosphere which is most conductive to
speculation, experiment and creation. It is an
atmosphere in which there prevail "the four
essential freedoms" of a university to determine for
itself on academic grounds who may teach, what
may be taught, how it shall be taught, and who may
be admitted to study.
5.ID.; ID.; UNIVERSITIES, UNLIKE PUBLIC
UTILITIES, HAVE DISCRETION AS TO WHOM TO
ADMIT OR REJECT. The full respect that must
be accorded the academic freedom expressly
granted by the Constitution to institutions of higher
learning, should not be minimized. Colleges and
universities should not be looked upon as public
utilities devoid of any discretion as to whom to
admit or reject. Education, especially higher
education, belongs to a different, and certainly
higher category.
3.ID.; ID.; SUPREME COURT NOT A TRIER NOR

REVIEWER OF FACTS. In a petition for
mandamus, the Supreme Court will not decide a
factual issue on the basis of assertions and counter
assertions of petitioner and respondent, since said
Court is neither a trier nor reviewer of facts and one
of the reasons for exhaustion of administrative
remedies is that all the facts may be placed before
the final administrative authorities, whose decision
may be reviewed by the courts only upon a clear
showing of fraud, collusion, arbitrariness, illegality,
imposition or mistake.
6.ID.; ID.; SUFFICIENCY OF GROUNDS FOR

DENIAL OF ADMISSION OF STUDENT. Where
a woman student was denied admission to pursue
graduate studies leading to a Master of Arts in
Theology in a school of theology, a seminary for
priesthood, and for reasons explained by the
authorities of said school, it was deemed best, in
the interests of the school as well as of the other
students and her own welfare, that she continue
her graduate work elsewhere, there is nothing
arbitrary in such appraisal of the circumstances
deemed relevant, thereby rendering futile the
persistence of said student to continue her studied
in said school.
4.ID.; SCHOOLS AND UNIVERSITIES; COURTS

WILL NOT INTERFERE WITH ACADEMIC
JUDGMENT. Aside from the fact that the nonadmission of a laywoman as student in a seminary
for priesthood by virtue of her being disqualified as
such laywoman is a matter of school policy and
regulation that obviously can in no way be said to
be arbitrary (since females all over the world are up
to now not admitted to the priesthood), the faculty's
"strong opposition" to having her back in the school
after summer because "they left that (her) frequent
question and difficulties were not always pertinent
and had the effect of slowing down the progress of
the class" and the faculty of Admission Chairman's
courteous but candid appraisal "that the advisability
of (her) completing a program(with all the course
work and thesis writing) with us is very
questionable" are matters of technical and
academic judgment that the courts will not
ordinarily interfere with.
TEEHANKEE, J., concurring:

1.MANDAMUS;
EXHAUSTION
OF
ADMINISTRATIVE REMEDIES; CLEAR DUTY
MUST BE IMPOSED ON RESPONDENT. A
petition for mandamus filed by a laywoman to
compel the Faculty Admissions Committee of a
school of theology to admit her as a student in said
school (a seminary for the priesthood) for an M.A.
in Theology, will be dismissed where petitioner
admittedly failed to exhaust her administrative
remedies, and the facts of record amply show that
petitioner is obviously disqualified, and is not
studying for the priesthood, she being a laywoman
2
institution can neither exist nor operate. The

educational institution is permitted by the State to
exist and operate, not for the benefit of its
administrative authorities or faculty members, but
for the benefit of its studentry.
5.ID.; ID.; ID.; EXCEPTION. Only after

exhaustion of administrative remedies and when
there is marked arbitrariness, will the courts
interfere with the academic judgment of a school
faculty and the proper authorities as to the
competence and fitness of an applicant for
enrollment or to continue taking up graduate
studies in a graduate school. The courts simply do
not have the competence nor inclination to
constitute themselves as Admission Committees of
the universities and institutions of higher learning
and to substitute their judgment for that of the
regularly constituted Admission Committees of such
educational institutions. Were the courts to do so,
they would conceivably be swamped with petitions
for admission from the thousands refused
admission every year, and next the thousands who
flunked are were dropped would also be petitioning
the courts for a judicial review of their grades.
3.ID.; ID.; INDIVIDUAL HAS INHERENT RIGHT TO

DEVELOP HIS FACULTIES. An individual has a
natural and inherent right to learn and develop his
faculties. For this reason, the 1973 Constitution
directs the State to aid and support the parents in
the rearing of the youth (Sec. 4, Art. II, 1973
Constitution); to promote their physical, intellectual
and social well-being (Sec. 5, Art. II); to establish,
maintain and ensure adequate social services in
the field of education (Sec. 7, Art. II); to establish
and maintain a complete, adequate and integrated
system of education relevant to the goals of
national development (Sec 8[1], Art. XV); to
recognize and protect the academic freedom of all
institutions of higher learning (Sec. 8[2], Art. XV); to
maintain a system of free public elementary
education and where finances permit, a system of
free public education up to the secondary level
(Sec. 8[5], Art. XV); to provide citizenship and
vocational training to adult citizens and out-ofschool youths and to create and maintain
scholarships for poor and deserving students (Sec.
8[6], Art. XV); and to promote scientific research
and invention, to patronize arts and letters, to
provide scholarships, grants-in-aid or other forms of
incentives for special gifted children (Sec. 9[1], [2]
and [3], Art. XV).
6.SCHOOLS;
PRIVATE
EDUCATIONAL
INSTITUTIONS. Private educational institutions
do not operate merely by delegation of the state;
and they differ from the commercial public utilities
whose right to exist and to operate depends upon
State authority.
7.MANDAMUS; FACTUAL ISSUE; ASSUMPTION
OF FACTS. In a petition for mandamus filed by a
laywoman to compel the Faculty Admission
Committee of a school of theology to admit
petitioner as a student for an M.A. in Theology, the
Court should not assume that the school has
prescribed "unreasonable rules or regulations"
when such rules have not even been submitted to
the Court nor is there any claim that such rules
have even been questioned in or disapproved by
the Director of Public Schools (assuming that said
official has jurisdiction over a religious seminary).
4.ID.; SCHOOLS; OPERATION OF A SCHOOL

NOT AN INHERENT RIGHT. No private person
or entity has the inherent right to establish and
operate a school, college or university.
MAKASIAR, J., dissenting:

1.CONSTITUTIONAL
LAW;
ACADEMIC
FREEDOM;
PROVISION
OF
1973
CONSTITUTION BROADER THAN THAT OF 1935
CONSTITUTION. Section 8 (2), Art. VI of the
1973 Constitution which provides that: "All
institutions of higher learning shall enjoy academic
freedom" is broader than Section 6 of Article XIV of
the 1935 Constitution, which provides that:
"Universities established by the State shall enjoy
academic freedom." Under the aforecited clause of
the 1973 Constitution, all colleges and universities
of higher learning, whether established by the State
or not, are guaranteed academic freedom.
5.ID.; BILL OF RIGHTS; DIGNITY OF HUMAN

PERSONALITY MUST BE ENHANCED. The
cardinal article of faith of our democratic civilization
is the preservation and enhancement of the dignity
and worth of the human personality. Man's
"inviolate character" should be "protected to the
largest possible extent in his thoughts and in his
beliefs as the citadel of his person", so that the
individual can fully develop himself and achieve
complete fulfillment. His freedom to seek his own
happiness would mean nothing if the same were
not given sanctuary "against the assaults of
opportunism, the expediency of the passing hour,
the erosion of small encroachments and the scorn
and derision of those who have not patience with
general principles."
2.ID.; ID.; ALSO DEEMED GRANTED TO

STUDENTS. Academic freedom is not limited to
the members of the faculty nor to the administrative
authorities of the educational institution. It is also
deemed granted in favor of the student body;
because all three the administrative authorities
of the college or university, its faculty and its
student population constitute the educational
institution, without any one of which the educational
6.ID.; ID.; CONSTITUTIONAL RIGHTS MUST BE

RESPECTED BY THE STATE AND BY
ENTERPRISES AUTHORIZED BY THE STATE TO
OPERATE. The purpose of the Bill of Rights is to
withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the
reach of majorities and officials and to establish
them as legal principles to be applied by the
Courts. One's rights to life, liberty and property, to
3
free speech or free press, freedom of worship and

assembly, and to the fundamental rights may not be
submitted to a vote; they depend on the outcome of
no elections, mush less on the caprice of bigoted,
intolerant and impatient professors and college
administrators. This individual freedom and right to
happiness should be recognized and respected not
only by the State but also by enterprises authorized
by the State to operate.
justifiably denied enrollment in the second

semester. Secretarian schools should realize that
intolerance, bigotry and the inquisition relics of
the Dark Ages tyrannize the mind and spirit of
man and are antithetical to their very function of
nourishing
the
intellect
and
spreading
enlightenment.
10.ID.; ID.; EDUCATION IS SOVEREIGN STATE
FUNCTION; PRIVATE SCHOOLS SIMILAR TO
COMMERCIAL PUBLIC UTILITY. The fact that
petitioner was admitted free to study theology
without intending to be a priest, does not weaken
her position. It should be stressed that education is
a sovereign state function. It is a vital duty of the
State which can delegate the same to private
educational institutions that are qualified and duly
authorized to operate. Private educational
institutions are, therefore, not different in this
respect from the commercial public utilities, whose
right to exist and to operate depends upon state
authority. The moment they are allowed to operate
they must abide by the Constitution, laws and
implementing rules of the Government on the
matter.
7.ID.; ID.; ISSUE IN AN ACTION TO COMPEL

SCHOOL AUTHORITIES TO ADMIT A STUDENT.
In an action to compel the faculty admission
committee of a school of theology to admit a female
student to pursue a theology course therein, the
issue involved is not merely academic freedom of
the higher institutions of learning as guaranteed by
Section 8(2) of Article XV of the 1973 Constitution.
The issue strikes at the broader freedom of
expression of the individual the very core of
human liberty.
8.ID.; ID.; SCOPE OF ACADEMIC FREEDOM.
Even if the term "Academic freedom" were to be
limited to institutions of higher learning, the term
"institutions of higher learning" contained in Sec.
8(2), Art. XV of the 1973 Constitution comprehends
not only the faculty and the college administrators
but also the members of the student body. While
the university professor may have the initiative and
resourcefulness to pursue his own research and
formulate his conclusions concerning the problem
of his own science or subject, the motivation
therefor may be provoked by questions addressed
to him by his student. In his respect, the student
especially a graduate student must not be
restrained from raising questions or from
challenging the validity of dogmas, whether
theological or not. The true scholar never avoids,
but on the contrary welcomes and encourages,
such searching questions even if the same will
have the tendency to uncover his own ignorance. It
is not the happiness and selfulfillment of the
professor alone that are guaranteed. The
happiness and full development of the curious
intellect of the student are protected by the narrow
guarantee of academic freedom and more so by
the broader right of free expression, which includes
free speech and press, and academic freedom.
11.ID.; ID.; AUTHORITY OF PRIVATE SCHOOLS

TO ISSUE REGULATIONS DOES NOT INCLUDE
POWER TO PRESCRIBED UNREASONABLE
RULES. While a college or university can
prescribe regulations for admission to the various
courses of study offered by it, this prerogative does
not include the power to prescribe unreasonable
rules or regulations violative of the constitutional
rights of the citizen, such as freedom of expression
in general and academic freedom in particular.
12.ID.; ID.; NATURE OF FUNCTIONS OF

SCHOOLS. The educational institutions perform
a more vital function than the ordinary public
utilities. The institution of learning feeds and
nurtures the human mind and spirit to insure a
robust, healthy and educated citizenry on whom
national survival and national greatness depend.
The ordinary public utilities merely serve the
material comforts and convenience of the people,
who can certainly go on living without them. But the
people cannot wallow in darkness and ignorance
without hastening their extermination from the face
of the earth.
9.ID.; ID.; SCHOOLS; AFTER STUDENT HAS

BEEN ADMITTED, HE CANNOT BE REFUSED
FURTHER
ADMISSION
EXCEPT
FOR
JUSTIFIABLE GROUNDS. After having been
admitted to the theology course, petitioner cannot
be refused further attendance therein on the ground
that "her frequent questions and difficulties were
not always pertinent and had the effect of slowing
down the progress of the class." This excuse is
merely an euphemistic way of characterizing her
questions which might be embarrassing to the
clergy or to the professor or other sensitive souls,
for her questions might impugn the validity of their
tenets, dogmas and beliefs. But if she flunked in
subjects or the entire course, she could be
DECISION
FERNANDO, J p:
The specific issue posed by this mandamus
proceeding to compel the Faculty Admission
Committee of the Loyola School of Theology,
represented by Father Antonio B. Lambino, to allow
petitioner Epicharis T. Garcia to continue studying
therein is whether she is deemed possessed of
such a right that has to be respected. That is
denied not only on general principle, but also in
4
view of the character of the particular educational

institution involved. It is a seminary. It would appear
therefore that at most she can lay claim to a
privilege, no duty being cast on respondent school.
Moreover, as a reinforcement to such an obvious
conclusion, there is the autonomy recognized by
the Constitution in this explicit language: "All
institutions of higher learning shall enjoy academic
freedom." 1 The petition must therefore fail.
Her petition included the letter of respondent Father

Lambino which started on a happy note that she
was given the grade of B+ and B in two theology
subjects, but ended in a manner far from
satisfactory for her, as shown by this portion
thereof: "Now, you will have to forgive me for going
into a matter which is not too pleasant. The faculty
had a meeting after the summer session and
several members are strongly opposed to having
you back with us at Loyola School of Theology. In
the spirit of honesty may I report this to you as their
reason: They felt that your frequent questions and
difficulties were not always pertinent and had the
effect of slowing down the progress of the class;
they felt you could have tried to give the
presentation a chance and exerted more effort to
understand the point made before immediately
thinking of difficulties and problems. The way things
are, I would say that the advisability of your
completing a program (with all the course work and
thesis writing) with us is very questionable. That
you have the requisite intellectual ability is not to be
doubted. But it would seem to be in your best
interests to work with a faculty that is more
compatible with your orientation. I regret to have to
make this report, but I am only thinking of your
welfare." 3
Petitioner alleged: "3. That in summer, 1975,

Respondent admitted Petitioner for studies leading
to an M.A. in Theology; 4. That on May 30, 1975,
when Petitioner wanted to enroll for the same
course for the first semester, 1975-76, Respondent
told her about the letter he had written her,
informing her of the faculty's decision to bar her
from re-admission in their school; 5. That the
reasons stated in said letter, dated May 19, 1975 . .
. do not constitute valid legal ground for expulsion,
for they neither present any violation of any of the
school's regulation, nor are they indicative of gross
misconduct; 6. That from June 25, 1975, Petitioner
spent much time and effort in said school for the
purpose of arriving at a compromise that would not
duly inconvenience the professors and still allow
her to enjoy the benefits of the kind of instruction
that the school has to offer, but all in vain; she was
in fact told by Fr. Pedro Sevilla, the school's
Director, that the compromises she was offering
were unacceptable, their decision was final, and
that it were better for her to seek for admission at
the UST Graduate School; 1. Petitioner then
subsequently made inquiries in said school, as to
the possibilities for her pursuing her graduate
studies for an M.A. in Theology, and she was
informed that she could enroll at the UST
Ecclesiastical Faculties, but that she would have to
fulfill their requirements for Baccalaureate in
Philosophy in order to have her degree later in
Theology which would entail about four to five
years more of studies whereas in the Loyola
School of Studies to which she is being unlawfully
refused re-admission, it would entail only about two
years more; 8. That Petitioner, considering that time
was of the essence in her case, and not wanting to
be deprived of an opportunity for gaining
knowledge necessary for her life's work, enrolled as
a special student at said UST Ecclesiastical
Faculties, even if she would not thereby be credited
with any academic units for the subject she would
take; 9. That Petitioner could have recourse neither
to the President of her school, Fr. Jose Cruz, he
being with the First Couple's entourage now in Red
China, nor with the Secretary of Education, since
this is his busiest time of the year, and June 11,
1975 is the last day for registration; . . ." 2 She
prayed for a writ of mandamus for the purpose of
allowing her to enroll in the current semester. She
made it more specific in a pleading she called
Amended Petition so that she would be allowed
cross-enrollment even beyond the June 11, 1915
deadline for registration and that whatever units
may be accredited to her in the UST Ecclesiastical
Faculties be likewise recognized by respondent.
This Court, in a resolution of June 23, 1975,

required comment on the part of respondent
Faculty Admission Committee, Loyola School of
Theology. 4 As submitted on behalf of Father
Lambino, it set forth the following: "Respondent is
the Chairman of the Faculty Admission Committee
of the Loyola School of Theology, which is a
religious seminary situated in Loyola Heights,
Quezon City; In collaboration with the Ateneo de
Manila University, the Loyola School of Theology
allows some lay students to attend its classes
and/or take courses in said Loyola School of
Theology but the degree, if any, to be obtained from
such courses is granted by the Ateneo de Manila
University and not by the Loyola School of
Theology; For the reason above given, lay students
admitted to the Loyola School of Theology to take
up courses for credit therein have to be officially
admitted by the Assistant Dean of the Graduate
School of the Ateneo de Manila University in order
for them to be considered as admitted to a degree
program; Petitioner in the summer of 1975 was
admitted by respondent to take some courses for
credit but said admission was not an admission to a
degree program because only the Assistant Dean
of the Ateneo de Manila Graduate School can make
such admission; That in the case of petitioner, no
acceptance by the Assistant Dean of the Ateneo de
Manila Graduate School was given, so that she
was not accepted to a degree program but was
merely allowed to take some courses for credit
during the summer of 1975; Furthermore, petitioner
was not charged a single centavo by the Loyola
School of Theology and/or the Ateneo de Manila
University in connection with the courses she took
in the summer of 1975, as she was allowed to take
it free of charge; That respondent Fr. Antonio B.
5
Lambino, S.J., and/or the Loyola School of

Theology thru its Faculty Admission Committee,
necessarily has discretion as to whether to admit
and/or to continue admitting in the said school any
particular student, considering not only academic or
intellectual standards but also other considerations
such as personality traits and character orientation
in relation with other students as well as
considering the nature of Loyola School of
Theology as a seminary. The Petition for
Mandamus therefore does not lie, as there is no
duty, much less a clear duty, on the part of
respondent to admit the petitioner therein in the
current year to take up further courses in the Loyola
School of Theology." 5 It was likewise alleged in the
aforesaid comment that as set forth in the letter of
May 19, 1975, the decision not to allow petitioner to
take up further courses in said seminary "is not
arbitrary, as it is based on reasonable
grounds, . . . ." 6 Then reference was made to the
availability of non-judicial remedies which petitioner
could have pursued. 7 The prayer was for the
dismissal of the petition for lack of merit. Petitioner
sought permission to reply and it was granted.
Thereafter, she had a detailed recital of why under
the circumstances she is entitled to relief from the
courts. In a resolution of August 8, 1975, this Court
considered the comment of respondent as answer
and required the parties to file their respective
memoranda. That they did, and the petition was
deemed submitted for decision. As was made clear
at the outset, we do not see merit in it. It must
therefore be dismissed.
who unfortunately did not have counsel, an attempt

was made to dispute the contention of respondent.
There was a labored effort to sustain her stand, but
it was not sufficiently persuasive. It is
understandable why. It was the skill of a lay person
rather than a practitioner that was evident. While
she pressed her points with vigor, she was unable
to demonstrate the existence of the clear legal right
that must exist to justify the grant of this writ.
2.Nor is this all. There is, as previously noted, the

recognition in the Constitution of institutions of
higher learning enjoying academic freedom. It is
more often identified with the right of a faculty
member to pursue his studies in his particular
specialty and thereafter to make known or publish
the result of his endeavors without fear that
retribution would be visited on him in the event that
his conclusions are found distasteful or
objectionable to the powers that be, whether in the
political, economic, or academic establishments.
For the sociologist, Robert McIver, it is "a right
claimed by the accredited educator, as teacher and
as investigator, to interpret his findings and to
communicate his conclusions without being
subjected to any interference, molestation, or
penalization because these conclusions are
unacceptable to some constituted authority within
or beyond the institution." 9 As for the educator and
philosopher Sidney Hook, this is his version: "What
is academic freedom? Briefly put, it is the freedom
of professionally qualified persons to inquire,
discover, publish and teach the truth as they see it
in the field of their competence. It is subject to no
control or authority except the control or authority of
the rational methods by which truths or conclusions
are sought and established in these disciplines." 10
1.In respondent's memorandum, it was made clear

why a petition for mandamus is not the proper
remedy. Thus: "Petitioner cannot compel by
mandamus, the respondent to admit her into further
studies in the Loyola School of Theology. For
respondent has no clear duty to so admit the
petitioner. The Loyola School of Theology is a
seminary for the priesthood. Petitioner is admittedly
and obviously not studying for the priesthood, she
being a lay person and a woman. And even
assuming ex gratia argumenti that she is qualified
to study for the priesthood, there is still no duty on
the part of respondent to admit her to said studies,
since the school has clearly the discretion to turn
down even qualified applicants due to limitations of
space, facilities, professors and optimum classroom
size and component considerations." 8 No
authorities were cited, respondent apparently being
of the view that the law has not reached the stage
where the matter of admission to an institution of
higher learning rests on the sole and uncontrolled
discretion of the applicant. There are standards that
must be met. There are policies to be pursued.
Discretion appears to be of the essence. In terms of
Hohfeld's terminology, what a student in the
position of petitioner possesses is a privilege rather
than a right. She cannot therefore satisfy the prime
and indispensable requisite of a mandamus
proceeding. Such being the case, there is no duty
imposed on the Loyola School of Theology. In a
rather comprehensive memorandum of petitioner,
3.That is only one aspect though. Such a view does

not comprehend fully the scope of academic
freedom recognized by the Constitution. For it is to
be noted that the reference is to the "institutions of
higher learning" as the recipients of this boon. It
would follow then that the school or college itself is
possessed of such a right. It decides for itself its
aims and objectives and how best to attain them. It
is free from outside coercion or interference save
possibly when the overriding public welfare calls for
some restraint. It has a wide sphere of autonomy
certainly extending to the choice of students. This
constitutional provision is not to be construed in a
niggardly manner or in a grudging fashion. That
would be to frustrate its purpose, nullify its intent.
Former President Vicente G. Sinco of the University
of the Philippines, in his Philippine Political Law, is
similarly of the view that it "definitely grants the
right of academic freedom to the university as an
institution as distinguished from the academic
freedom of a university professor." 11 He cited the
following from Dr. Marcel Bouchard, Rector of the
University of Dijon, France, President of the
conference of rectors and vice-chancellors of
European universities: "'It is a well-established fact,
6
and yet one which sometimes tends to be obscured

in discussions of the problems of freedom, that the
collective liberty of an organization is by no means
the same thing as the freedom of the individual
members within it; in fact, the two kinds of freedom
are not even necessarily connected. In considering
the problems of academic freedom one must
distinguish, therefore, between the autonomy of the
university, as a corporate body, and the freedom of
the individual university teacher.'" 12 Also: "To
clarify further the distinction between the freedom
of the university and that of the individual scholar,
he says: 'The personal aspect of freedom consists
in the right of each university teacher recognized
and effectively guaranteed by society to seek
and express the truth as he personally sees it, both
in his academic work and in his capacity as a
private citizen. Thus the status of the individual
university teacher is at least as important, in
considering academic freedom, as the status of the
institutions to which they belong and through which
they disseminate their learning.'" 13 He likewise
quoted from the President of the Queen's
University in Belfast, Sir Eric Ashby: "'The internal
conditions for academic freedom in a university are
that the academic staff should have de facto control
of the following functions: (i) the admission and
examination of students; (ii) the curricula for
courses of study; (iii) the appointment and tenure of
office of academic staff; and (iv) the allocation of
income among the different categories of
expenditure. It would be a poor prospect for
academic freedom if universities had to rely on the
literal interpretation of their constitutions in order to
acquire for their academic members control of
these four functions, for in one constitution or
another most of these functions are laid on the
shoulders of the lay governing body.'" 14 Justice
Frankfurter, with his extensive background in legal
education as a former Professor of the Harvard
Law School, referred to what he called the business
of a university and the four essential freedoms in
the following language: "It is the business of a
university to provide that atmosphere which is most
conducive to speculation, experiment and creation.
It is an atmosphere in which there prevail 'the four
essential freedoms' of a university to determine
for itself on academic grounds who may teach,
what may be taught, how it shall be taught, and
who may be admitted to study.'" 15 Thus is
reinforced the conclusion reached by us that
mandamus does not lie in this case.
especially higher education, belongs to a different,

and certainly higher, category.
5.It only remains to be added that the futility that
marked the persistence of petitioner to continue her
studies in the Loyola School of Theology is the
result solely of a legal appraisal of the situation
before us. The decision is not to be construed as in
any way reflecting on the scholastic standing of
petitioner. There was on the part of respondent due
acknowledgment of her intelligence. Nonetheless,
for reasons explained in the letter of Father
Lambino, it was deemed best, considering the
interest of the school as well as of the other
students and her own welfare, that she continue
her graduate work elsewhere. There was nothing
arbitrary in such appraisal of the circumstances
deemed relevant. It could be that on more mature
reflection, even petitioner would realize that her
transfer to some other institution would redound to
the benefit of all concerned. At any rate, as
indicated earlier, only the legal aspect of the
controversy was touched upon in this decision.
WHEREFORE, the petition is dismissed for lack of
merit.
Barredo, Antonio, Esguerra, Muoz Palma, Aquino,
Concepcion, Jr. and Martin, JJ., concur.
Castro, J., took no part.
||| (Garcia v. Faculty Admission Committee, G.R.
No. L-40779, [November 28, 1975], 160-A PHIL
929-958)
2. ANNOTATION 313 SCRA 428
AN N O TAT I O N
BROAD ASPECTS OF ACADEMIC FREEDOM
By
JORGE R. COQUIA*
______________
1.Academic Freedom Generally Defined, p. 429
2.Broader Aspects of Academic Freedom, p. 429
3.Internal Conditions for Academic Freedom of
Schools, p. 430
4.Constitutional Provisions on Academic
Freedom, p. 431
5.Religious Freedom versus Academic Freedom,
p. 433
6.Human Rights Provisions on Academic
Freedom, p. 436
7.Right of Students to be Admitted to School, p.
437
8.Limitations on Academic Freedom, p. 438
______________
4.It is not an easy matter then to disregard the

views of persons knowledgeable in the field, to
whom cannot be imputed lack of awareness of the
need to respect freedom of thought on the part of
students and scholars. Moreover, it could amount to
minimizing the full respect that must be accorded
the academic freedom expressly granted by the
Constitution "to institutions of higher learning." It is
equally difficult to yield conformity to the approach
taken that colleges and universities should be
looked upon as public utilities devoid of any
discretion as to whom to admit or reject. Education,
The main issue resolved by the Supreme Court in

the case of UNIVERSITY OF THE PHILIPPINES
BOARD OF REGENTS, CHANCELLOR ROGER
POSADAS, DR. EMERLINDA ROMAN, DEAN
CONSUELO PAZ, DR. ISAGANI MEDINA, DR.
MARIA SERENA DIOKNO, DR. OLIVIA CAOILI,
DR. FRANCISCO NEMENZO II, DEAN PACIFICO
7
AGABIN, CARMELITA GUNO, and MARICHU

LAMBINO versus HON. COURT OF APPEALS and
AROKIASWAMY WILLIAM MARGARET CELINE,
G.R. No. 134625 dated August 31, 1999 is on the
academic freedom of schools and universities. May
a writ of mandamus be issued by the court be a
valid remedy to compel an educational institution to
grant an academic degree to students. More
specifically in this case, may a school or university
be compelled to restore an academic decree
already granted to her? The case involved a Ph.D.
degree in Anthropology already granted to a
student but was later withdrawn after a finding that
some portions of the doctoral dissertation she
submitted were lifted from a publication without a
proper acknowledgment of the source.
1. Academic Freedom Generally Defined
Generally, academic freedom is the liberty to
pursue and teach relevant knowledge and to
discuss it freely without restriction from school or
public officials or from other sources of influence.
Academic freedom according to Justice Felix
Frankfurter includes the determination on (1) who
may teach; (2) what may be taught; (3) how it shall
be taught; and (4) who may be admitted to study.
(Sweezy vs. New Hampshire, 354 U.S. 234 [1957])
2. Broader Aspects of Academic Freedom
The meaning of academic freedom has been very
much broadened. Under the naturalism theory, an
academic freedom for the teacher or students is the
selection and pursuit of various experiences. It is
also a right of a faculty member to pursue his
studies in his particular specialty and thereafter to
make known or publish the result of his endeavors
without fear that retribution would be visited on him
in the event that his conclusions are found
distasteful or objectionable to the powers that be,
whether in the political, economic, or academic
establishments. (Pedden and Ryan, Catholic
Philosophy of Education, p. 590)
The Supreme Court in Garcia vs. Faculty
Admission Committee, 68 SCRA 283 (1975)
enumerated several ways by which academic
freedom can be exercised, namely, it is a right
claimed by the accredited educator, as teacher and
as investigator, to interpret his findings and to
communicate his conclusions without being
subjected to any interference, molestation, or
penalization because these conclusions are
unacceptable to some constituted authority within
or beyond the institution.
It is a freedom of professionally qualified persons to
inquire, discover, publish and teach the truth as
they see it in the field of their competence. It is
subject to no control or authority except the control
or authority of the rational methods by which truths
or conclusions are sought and established in these
disciplines.
It is the right of a school or college, as an institution
of higher learning, to decide for itself its aims and
objectives and how best to attain them, free from
outside coercion or interference save possibly
when the overriding public welfare calls for some
restraint, and with a wide sphere of autonomy
certainly extending to the choice of students.
It is the right of each university teacher, recognized

and effectively guaranteed by society, to seek and
express the truth as he personally sees it, both in
his academic work and in his capacity as a private
citizen.
3. Internal Conditions for Academic Freedom of
Schools
The internal conditions for academic freedom in a
university are that the academic staff should have
de facto control of the following functions: (1) the
admission and examination of students; (2) the
curricula for courses of study; (3) the appointment
and tenure of office of academic staff; and (4) the
allocation of income among the different categories
of expendi-ture.
The essential freedoms of a university are to
determine for itself on academic grounds who may
teach, what may be taught, how it shall be taught,
and who may be admitted to study.
The freedom of the teacher or research worker in
higher institutions of learning to investigate and
discuss the problems of his science and to express
his conclusions, whether through publication or in
the instruction of the teacher, without interference
from political and ecclesiastical authorities or
administrative opinions of institutions in which he is
employed, unless his methods are found by a
qualified body of his own profession to be clearly
incompetent or contrary to professional ethics.
(Garcia vs. Faculty Admission Committee, 68
SCRA 283 [1975])
4. Constitutional Provisions on Academic
Freedom
Art. XIV, sec. 5 of the Phil. Constitution states:
1. The State shall take into account regional and
sectoral needs and conditions and shall encourage
local planning in the development of educational
policies and programs.
2. Academic freedom shall be enjoyed in all
institutions of higher learning.
3. Every citizen has a right to select a profession or
course of study, subject to fair, reasonable, and
equitable admission and academic requirements.
4. The State shall enhance the right of teachers to
professional advancement. Non-teaching academic
and non-academic personnel shall enjoy the
protection of the State.
5. The State shall assign the highest budgetary
priority to education and ensure that teaching will
attract and retain its rightful share of the best
available talents through adequate remuneration
and other means of job satisfaction and fulfillment.
The 1935 Philippine Constitution referred on
academic freedom only to universities established
by the State, not in private institutions of higher
learning (Art. XIII, section 5, 1935). The 1973
Philippine Constitution states that all institutions of
higher learning shall enjoy academic freedom,
including private schools. The 1987 Philippine
Constitution has spelled out a much broader aspect
of academic freedom. The respect for freedom of
belief and expression requires that all higher
institutions per se can lay claim to academic
freedom. Precisely because the use of public funds
for state universities may be utilized as a means for
8
legislators to interfere in academic matters, there

was a need for an explicit affirmation of such a
right. In Laxamana vs. Borlaza, 47 SCRA 29
(1972), an aspect of academic freedom was
discussed in this wise: The vital need in a
constitutional democracy for freedom of expression
is undeniable whether as a means of assuring
individual self-fulfillment, of attaining the truth, of
securing participation by the people in social,
including political, decision-making, and of
maintaining the balance between stability and
change. The trend as reflected in Philippine and
American decisions is to recognize the broadest
scope and assure it the widest latitude. Nowhere
should there be greater respect for its commands
than in educational institutions. It would make a
mockery of academic freedom if there is the
gnawing fear on the part of those competent to
contribute with their knowledge gained within years
of study and research that what they say, or what
they write, if displeasing to the powers that be,
could be visited with retribution. Nor is it a fine
example for students if such an atmosphere would
infect the campus. While there is no particular right
of petitioner violated in the light of the facts as duly
found, what did transpire bodes ill for the spirit of
free inquiry which should permeate campus life.
Justice Frankfurter in Sweezy vs. New Hampshire,
354 U.S. 234 [1957] said that professors in natural
sciences is not remotely confined to findings made
in the laboratory. Insights into the mysteries of
nature are born of hypotheses and speculation. The
more so is true in the pursuit of understanding in
the groping endeavors of what are called the social
sciences, the concern of which is man and society.
The problem that are the respective preoccupations
of anthropology, economics, law, psychology,
sociology and related areas of scholarship are
merely departmentalized, dealing, by way of
manageable
division
of
analysis,
with
interpenetrating aspects of holistic perplexities. For
societys goodif understanding be an essential
need of societyinquiries into these problems,
speculations about them, stimulation in others of
reflection upon them, must be left as unfettered as
possible. Political power must abstain from
intrusion into this activity of freedom, pursued in the
interest of wise government and the peoples wellbeing, except for reasons that are exigent and
obviously compelling. These pages need not be
burdened with proof, based on the testimony of a
number of impressive witnesses, of the
dependence of a free society on free universities.
This means the exclusion of governmental
intervention in the intellectual life of a university. It
matters little whether such evitably tends to check
the ardor and fearlessness of scholars, qualities at
once so fragile and so indispensable for fruitful
academic labor. (E. Fernando, The Constitution of
the Philippines, p. 490)
The freedom of the teacher or research worker in
higher institutions of learning to investigate and
discuss the problems of his science and to express
his conclusions, whether through publication or in
the instruction of students, without interference
from political or ecclesiastical authority, or from the

administrative officials of the institution in which he
is employed, unless his methods are found by
qualified bodies of his won profession to be
completely incompetent or contrary to professional
ethics.
5. Religious Freedom versus Academic Freedom
True academic freedom as opposed to an unbridled
license to expound and teach ones religious views
without any limitations was illustrated in two antievolution cases in the United States.
Under a Tennessee statute (Sec. 2344, Code of
Tennessee [1932]), Scopes, a teacher in the public
schools of the State of Tennessee, was indicted for
denying the story of the divine creation of man, as
based on the Bible. The teacher instead followed
the Darwinian theory of evolution. Upholding the
constitutionality of the statute, the court dwelt on
the theistic and materialistic concepts of evolution.
The Tennessee court sustained the legality of the
statute and said: He (Scopes) was under a
contract with the State to work in an institution of
the State. He had no right or privilege to serve the
State except upon such terms as the State
prescribed. His liberty, privilege, his immunity to
teach and proclaim the theory of evolution
elsewhere than in the service of the State was no
wise touched by this law.
The main contention of the appellant was that the
antievolution act passed by the Tennessee
legislature contravened a State constitutional
provision affirming that it shall be the duty of the
general assembly . . . to cherish literature and
science.
Recognizing the moral duty of the State to
safeguard and protect its citizen from unwarranted
views, the court pointed out that the statute was not
an exercise of police power, but an act of the State
as a corporation, a proprietor, an employer.
The more important issue was whether or not this
Act violated the constitutional provision prohibiting
the State from giving any preference to any
religious establishment or mode of worship.
Resolving this issue, the Court said:
We are not able to see how the prohibition of
teaching the theory that man has descended from a
lower order of animals gives preference to any
religious establishment or mode of worship . . .
Belief or unbelief in the theory of evolution is no
more a characteristic of any religious establishment
or mode of worship that in belief or unbelief in the
wisdom of the prohibition laws. (Scopes vs. State,
154 Tennessee 105 [1927])
The U.S. Supreme Court in a similar case involving
an Arkansas statute ruled that the monkey law is
unconstitutional. The Arkansas statute prohibited
the teaching of Charles Darwins theory of evolution
which asserts that men biologically originated from
the species of monkeys. Mrs. Epperson, a biology
teacher, taught said theory.
In holding that the statute is violative of the freedom
of religion, the Court said that it is an attempt to blot
out a particular theory, because of its supposed
conflict with the biblical account of mans origin.
(Epperson vs. Arkansas, 393 U.S. 97 [1968])
9
In order that persons may fulfill their proper

function, let it be recognized that all the faithful,
clerical and law, possess a lawful freedom of
inquiry and of thought and the freedom to express
their minds humbly and courageously about those
matters in which they enjoy competence. By virtue
of the right and obligation of the State to guard
against the introduction of erroneous views, and to
see to it that instruction given in schools shall not
undermine the common good, Congress created a
Board of Textbooks which should have charge of
the selection and approval of books to be used in
the public and private schools. This board was
given the power to prohibit the use of any textbooks
which it may find to be against the law, or offend
the dignity and honor of the Government and the
people of the Philippines, or which it may find to be
against the general policies of the Government, of
which it may deem pedagogically unsuitable.
(Coquia, Church and State Law and Relations,
1989 ed., p. 283)
Keyishian vs. Board of Regents, 385 U.S. 589
[1967] was another U.S. decision involving
academic freedom. In 1962, faculty members were
permitted to continue their employment but on the
condition that, now as state employees, they certify,
pursuant to state law, that they were not or ever
had been Communists, or that they had not taught
or advocated the overthrow of the government by
force and violence. Harry Keyishian and other
members of the faculty, facing dismissal for
refusing to comply by signing the requisite
certificates, brought suit against the governing
board of the state educational system for
declaratory and injunctive relief. A three-judge
federal district court upheld the constitutionality of
the requirement and plaintiffs appealed.
The U.S. Supreme Court finding overbreadth and
vagueness in the statute, threw out the New York
loyalty oath requiring a denial of Communist
affiliation as a prerequisite to teaching at a state
university. The Court relied on the fact that the
statute could cover mere membership in a
Communist organization, something less than the
constitutionally required standard of membership
plus a specific intent to further the unlawful aims of
an organization.
6. Human Rights Provisions on Academic
Freedom
Article 26 of the Universal Declaration of Human
Rights reads:
1. Everyone has the right to education. Education
shall be free, at least in the elementary and
fundamental stages. Elementary education shall be
compulsory. Technical and professional education
shall be made generally available and higher
education shall be equally accessible to all on the
basis of merit.
2. Education shall be directed to the full
development of the human personality and to the
strengthening of respect for human rights and
fundamental
freedoms.
It
shall
promote
understanding, tolerance and friendship among all
nations, racial or religious groups, and shall further
the activities of the United Nations for maintenance

of peace.
Article 13 of the International Covenant on
Economic, Social and Cultural Rights reads:
1. The State Parties to the present Covenant
recognize the right of everyone to education. They
agree that education shall be directed to the full
development of the human personality and the
sense of its dignity, and shall strengthen the
respect for human rights and fundamental
freedoms. They further agree that education shall
enable all persons to participate effectively in a free
society, promote understanding, tolerance and
friendship among all nations and all racial, ethnic or
religious groups, and further the activities of the
United Nations for the maintenance of peace.
recognize that, with a view to achieving the full
realization of this right:
(a) Primary education shall be compulsory and
available free to all;
(b) Secondary education in its different forms,
including technical and vocational secondary
education, shall be made generally available and
accessible to all by every appropriate means, and
in particular by the progressive introduction of free
education;
c) Higher education shall be made equally
accessible to all, on the basis of capacity, by every
appropriate means, and in particular by the
progressive introduction of free education;
(d) Fundamental education shall be encouraged or
intensified as far as possible for those persons who
have not received or completed the whole period of
their primary education;
(e) The development of a system of schools at all
levels shall be actively pursued, and adequate
fellowship system shall be established, and the
material conditions of teaching staff shall be
continuously improved.
undertake to have respect for the liberty of parents
and, when applicable, legal guardians to choose for
their children schools, other than those established
by the public authorities, which conform to such
minimum educational standards as may be laid
down or approved by the State and to ensure the
religious and moral education of their children in
conformity with their own convictions.
4. No part of this article shall be construed so as to
interfere with the liberty of individuals and bodies to
establish and direct educational institutions, subject
always to the observance of the principles set forth
in paragraph 1 of this article and to the requirement
that the education given in such institutions shall
conform to such minimum standards as may be laid
down by the State.
7. Right of Students to be Admitted to School
The court said that what students possess is a
privilege rather than a right. (Garcia vs. The Faculty
Admission Committee, Loyola School of Theology;
68 SCRA 277 [1975]). The court also said in Ateneo
de Manila University vs. Capulong, (222 SCRA 647
[1993]), reiterating Garcia vs. The Faculty
Admission Committee, Loyola School of Theology
10
(68 SCRA 277 [1975]) that admission to an

institution of higher learning is discretionary upon a
school, the same being a privilege the art of the
student rather than a right. While under Education
Act of 1982, students have the right to freely
choose their field of study, subject to existing
curricula and to continue their course therein up to
graduation, such right is subject, as all rights are,
to the established academic and disciplinary
standards laid down by the academic institution.
(See also Tangonan vs. Pao, 137 SCRA 245
[1985]; Magtibay vs. Gar-cia, 120 SCRA 370
[1983])
The matter of admission of students is within the
ambit of academic freedom and therefore, beyond
the province of the courts to decide. (University of
the Philippines Board of Regents vs. Ligot-Telan,
227 SCRA 342 [1993])
8. Limitations on Academic Freedom
In Board of Medical Education vs. Judge Alfonso,
176 SCRA 304 [1989], the Supreme Court
sustained the decision of the Board of Medical
Education in closing the Philippine Muslim-Christian
College of Medicine for being inadequate. The
Court said that being a matter of law that the
Secretary of Education, Culture and Sports
exercises the power to enjoin compliance with the
requirements laid down for medical schools and to
mete out sanctions where he finds that violations
thereof have been committed, it was a grave abuse
of discretion for the respondent judge to issue the
questioned injunction and thereby thwart official
action, in the premises correctly taken, allowing the
College to operate without the requisite government
permit. A single ocular inspection, done after the
College had been pre-warned thereof, did not, in
the circumstances, warrant overturning the findings
of more qualified inspectors about the true state of
the College, its faculty, facilities, operations, etc.
The members of the evaluating team came from
the different sectors in the fields of education and
medicine, and their judgment in this particular area
is certainly better than that of the respondent Judge
whose sole and only visit to the school could hardly
have given him much more to go on than a brief
look at the physical plant and facilities and into the
conduct of the classes and other school activities.
(Board of Medical Education vs. Alfonso, 176
SCRA 304 [1989])
In Capitol Medical Center, Inc. vs. Court of Appeals,
178 SCRA 493 [1989], the closure of the nursing
school was upheld, after due notice to the DECS,
when its teachers and students declared a strike,
refusing to hold classes and take examinations.
The school may not be forced to reopen at the
instance of the striking students. The court held that
the lower court gravely abused its discretion in
compelling the CMCC to reopen and re-admit the
striking students for enrollment in the second
semester of their courses. Since their contracts with
the school were terminated at the end of the first
semester of 1987, and as the school has already
ceased to operate, they have no clear legal right
to re-enroll and the school has no legal obligation to
reopen and re-admit them. No provision in the
Education Act of 1982, nor in the Manual of

Regulations for Private Schools can be, or has
been, cited to support the novel view that a school
is obligated to remain open until its students have
completed their courses therein. Indeed, neither is
there a law or rule that obligates a student who has
enrolled in a school, to remain there until he
finishes his course. On the contrary he may transfer
at any time to any school that is willing to accept
him. (Capitol Medical Center, Inc. vs. Court of
Appeals, 178 SCRA 493 at 507 [1989])
InUniversity of the Philippines vs. Judge Ayson, 176
SCRA 571, the Court also sustained the closure of
the U.P. Baguio High School, on the ground that
U.P. was set up as a tertiary institution and that the
High School was set up only as an incident to its
tertiary functions. The court said that the University
of the Philippines as an institution of higher learning
enjoying academic freedom. It is apparent that
secondary education is not the mandated function
of the University of the Philippines; consequently,
the latter can validly phase out and/or abolish the
UPCBHS especially so when the requirements for
its continuance have not been met, Rep. Act No.
6655 to the contrary notwithstanding. The findings
of facts by the Board of Regents which led to its
decision to phase out the UPCBHS must be
accorded respect, if not finality. Acts of an
administrative agency within their areas of
competence must not be casually overturned by the
courts. (University of the Philippines vs. Ayson, 176
SCRA 572 [1989])
In Non vs. Dames II, 185 SCRA 523 [1990], the
Supreme Court reversed its ruling in Alcuaz vs.
PSBA, 161 SCRA 7 [1988], declaring that the
termination of contract theory in Alcuaz can no
longer be used as a valid ground to deny
readmission or re-enrollment to students who had
led or participated in student mass actions against
the school. The Court held that the students do not
shed their constitutionally-protected rights of free
expression at the school gates. Cited with approval
were the rulings in Malabanan vs. Ramento, 129
SCRA 359 [1984], and with Villar vs. Technological
Institute of the Philippines, 135 SCRA 706 [1985];
Arreza vs. Gregorio Araneta University Foundation,
137 SCRA 94 [1985]; and Guzman vs. National
Unversity, 142 SCRA 699 [1986]
The only valid grounds to deny readmission of
students are academic deficiency and breach of the
schools reasonable rules of conduct. Be that as it
may, in imposing disciplinary sanctions on students,
it was held in Guzman vs. National University, 142
SCRA 699 [1986] that the following minimum
standards of procedural due process must be
satisfied: (i) the students must be informed in
writing of the nature and cause of the accusation
against them; (ii) they shall have the right to answer
the charges against them, with the assistance of
counsel, if desired; (iii) they shall be informed of the
evidence against them; (iv) they shall have the right
to adduce evidence in their own behalf; and (v) the
evidence must be duly considered by the
investigating committee or official designated by the
school authorities to hear and decide the case. See
11
also: Ateneo University vs. Judge Capulong, 222

SCRA 644. Not applicable aforesaid rulings as in
Garcia vs. The Faculty Admission Committee,
Loyola School of Theology, 68 SCRA 277 [1975]
the issue was whether a female lay student had the
right to compel a seminary for the priesthood to
admit her for theological studies leading to a
degree, and Tangonan vs. Pano, 137 SCRA 245
[1985] where the issue was whether a nursing
student, who was admitted on probation and who
failed in her nursing subjects, may compel her
school to readmit her for enrollment.
InTan vs. Court of Appeals, 199 SCRA 212,which
involved a bitter conflict between the administrators
of Grace Christian High School and the parents of
some students on matters of school policy, the
Supreme Court said that the maintenance of a
morally conducive and orderly educational
environment will be seriously imperiled if, under the
circumstances of the case, Grace Christian High
School is forced to admit petition-ers children and
to reintegrated them into the student body.
In University of San Carlos vs. Court of Appeals,
166 SCRA 570 [1988], the Court held that it is
within the sound discretion of the university to
determine whether a student may be conferred
graduation honors, considering that the student had
incurred a failing grade in an earlier course she
took in school. Schools of learning are given ample
discretion to formulate rules and guidelines in
granting honors for purposes of graduation.
In Lupangco vs. Court of Appeals, 160 SCRA 848
[1988], Resolution No. 105 of the Professional
Regulation Commission prohibiting examinees for
the accountancy licensure examinations from
attending any review class, briefing, conference or
the like or to receive any hand-out, review
material or any tip from any school, college or
university, or any review center infringes on the
examinees right to liberty guaranteed by the
Constitution. It violated the academic freedom of
the schools concerned.
In Reyes vs. Court of Appeals, 194 SCRA 402
[1991], the Supreme Court ruled that under the U.P.
Charter, the power to fix admission requirements is
vested in the University Council of the autonomous
campus, which is composed of the President of the
University of the Philippines and of all instructors
holding the rank of professor, associate professor
or assistant professor. Consequently, the University
Council alone has the right to protest against any
unauthorized exercise of its power. Petitioners
cannot impugn the directives of the Board of
Regents on the ground of academic freedom inasmuch as their rights as university teachers
remain unaffected.
In Cagayan Capitol College vs. NLRC, 189 SCRA
658 [1990], it was held that while DECS regulations
prescribe a maximum of three years probation
period for teachers, the termination of the threeyear period does not result in the automatic
permanent status for the teacher. It must be
conditioned on a showing that the teachers
services during the probationary period was
satisfactory in accordance with the employers
standards. The prerogative of the school to provide

standards for its teachers and to determine whether
or not these standards have been met is in
accordance
with
academic
freedom
and
constitutional autonomy which give educational
institutions the right to choose who should teach.
InIsabelo, Jr. vs. Perpetual Help College of Rizal,
Inc., 227 SCRA 591 [1993], it was held that
academic freedom was never meant to be an
unabridged license; it is a privilege that assumes a
correlative duty to exercise it responsibly. Thus,
where the students expulsion was disproportionate
to his having unit deficiencies in his CMT course,
there is reason to believe the petitioners claim that
the schools action was strongly influenced by the
students participation in questioning PHCRs
application for tuition fee increase.
(Broad Aspects of Academic Freedom, 313 SCRA
428, August 31, 1999)
3. DLSU VS. CA 541 SCRA 22 (2007)
THIRD DIVISION
[G.R. No. 127980. December 19, 2007.]
DE LA SALLE UNIVERSITY, INC., EMMANUEL
SALES, RONALD HOLMES, JUDE DELA TORRE,
AMPARO RIO, CARMELITA QUEBENGCO,
AGNES YUHICO and JAMES YAP, petitioners, vs.
THE COURT OF APPEALS, HON. WILFREDO D.
REYES, in his capacity as Presiding Judge of
Branch 36, Regional Trial Court of Manila, THE
COMMISSION ON HIGHER EDUCATION, THE
DEPARTMENT OF EDUCATION CULTURE AND
SPORTS, ALVIN AGUILAR, JAMES PAUL
BUNGUBUNG, RICHARD REVERENTE and
ROBERTO VALDES, JR., respondents.
DECISION
REYES, R.T., J p:
NAGTATAGIS sa kasong ito ang karapatang magaral ng apat na estudyante na nasangkot sa away
ng dalawang fraternity at ang karapatang
akademiko ng isang pamantasan.
PRIVATE respondents Alvin Aguilar, James Paul
Bungubung, Richard Reverente and Roberto
Valdes, Jr. are members of Tau Gamma Phi
Fraternity who were expelled by the De La Salle
University (DLSU) and College of Saint Benilde
(CSB) 1 Joint Discipline Board because of their
involvement in an offensive action causing injuries
to petitioner James Yap and three other student
members of Domino Lux Fraternity. This is the
backdrop of the controversy before Us pitting
private respondents' right to education vis-a-vis the
University's right to academic freedom.
ASSAILED in this Petition for Certiorari, Prohibition
and Mandamus under Rule 65 of the Rules of Court
are the following: (1) Resolution of the Court of
12
Appeals (CA) dated July 30, 1996 dismissing

DLSU's petition for certiorari against respondent
Judge
and
private
respondents
Aguilar,
Bungubung, Reverente, and Valdes, Jr.; 2 (2)
Resolution of the CA dated October 15, 1996
denying the motion for reconsideration; 3 (3) Order
dated January 7, 1997 of the Regional Trial Court
(RTC), Branch 36 Manila granting private
respondent Aguilar's motion to reiterate writ of
preliminary injunction; 4 and (4) Resolution No.
181-96 dated May 14, 1996 of the Commission on
Higher Education (CHED) exonerating private
respondent Aguilar and lowering the penalties for
the other private respondents from expulsion to
exclusion. 5
did not know what to do. Then, respondent

Bungubung punched him in the head with
something heavy in his hands "parang
knuckles." Respondents Reverente and Lee were
behind
Yap,
punching
him.
Respondents
Bungubung and Valdes who were in front of him,
were also punching him. As he was lying on the
street, respondent Aguilar kicked him. People
shouted; guards arrived; and the group of attackers
left.
Mr. Yap could not recognize the other members of
the group who attacked him. With respect to
respondent Papio, Mr. Yap said "hindi ko nakita ang
mukha niya, hindi ko nakita sumuntok siya." What
Mr. Yap saw was a long haired guy also running
with the group.
Factual Antecedents
Gleaned from the May 3, 1995 Decision of the
DLSU-CSB Joint Discipline Board, two violent
incidents on March 29, 1995 involving private
respondents occurred:
Two guards escorted Mr. Yap inside the campus. At

this point, Mr. Dennis Pascual was at the
Engineering Gate. Mr. Pascual accompanied Yap to
the university clinic; reported the incident to the
Discipline Office; and informed his fraternity brods
at their tambayan. According to Mr. Pascual, their
head of the Domino Lux Fraternity said: "Walang
gagalaw. Uwian na lang." DTAIaH
. . . From the testimonies of the complaining

witnesses, it appears that one week prior to March
29, 1995, Mr. James Yap was eating his dinner
alone in Manang's Restaurant near La Salle, when
he overheard two men bad-mouthing and
apparently angry at Domino Lux. He ignored the
comments of the two. When he arrived at his
boarding house, he mentioned the remarks to his
two other brods while watching television. These
two brods had earlier finished eating their dinner at
Manang's. Then, the three, together with four other
persons went back to Manang's and confronted the
two who were still in the restaurant. By admission
of respondent Bungubung in his testimony, one of
the two was a member of the Tau Gamma Phi
Fraternity. There was no rumble or physical
violence then.
Mr. Ericson Cano, who was supposed to hitch a

ride with Dennis Pascual, saw him under the clock
in Miguel Building. However, they did not proceed
directly for home. With a certain Michael Perez,
they went towards the direction of Dagonoy Street
because Mr. Pascual was supposed to pick up a
book for his friend from another friend who lives
somewhere in the area.
As they were along Dagonoy Street, and before
they could pass the Kolehiyo ng Malate Restaurant,
Mr. Cano first saw several guys inside the
restaurant. He said not to mind them and just keep
on walking. However, the group got out of the
restaurant, among them respondents Reverente,
Lee and Valdes. Mr. Cano told Mr. Lee: "Ayaw
namin ng gulo." But, respondent Lee hit Mr. Cano
without provocation. Respondent Reverente kicked
Mr. Pascual and respondent Lee also hit Mr.
Pascual. Mr. Cano and Mr. Perez managed to run
from the mauling and they were chased by
respondent Lee and two others.
After this incident, a meeting was conducted

between the two heads of the fraternity through the
intercession of the Student Council. The Tau
Gamma Phi Fraternity was asking for an apology.
"Kailangan ng apology" in the words of respondent
Aguilar. But no apology was made.
Then, 5 members of the Tau Gamma Phi Fraternity
went to the tambayan of the Domino Lux Fraternity
in the campus. Among them were respondents
Bungubung, Reverente and Papio. They were
looking for a person whose description matched
James Yap. According to them, this person
supposedly "nambastos ng brod." As they could not
find Mr. Yap, one of them remarked "Paano ba iyan.
Pasensiya na lang."
Mr. Pascual was left behind. After respondent

Reverente first kicked him, Mr. Pascual was
ganged-upon by the rest. He was able to run, but
the group was able to catch up with him. His shirt
was torn and he was hit at the back of his head with
a lead pipe. Respondent Lee who was chasing
Cano and Perez, then returned to Mr. Pascual.
Came March 29, 1995 and the following events.

Mr. Pascual identified respondents Reverente and
Lee, as among those who hit him. Although Mr.
Pascual did not see respondent Valdes hit him, he
identified respondent Valdez (sic) as also one of the
members of the group. HCTaAS
Ten minutes before his next class at 6:00 p.m., Mr.

James Yap went out of the campus using the
Engineering Gate to buy candies across Taft
Avenue. As he was about to re-cross Taft Avenue,
he heard heavy footsteps at his back. Eight to ten
guys were running towards him. He panicked. He
13
In fact, Mr. Cano saw respondent Valdes near Mr.

Pascual. He was almost near the corner of Leon
Guinto and Estrada; while respondent Pascual who
managed to run was stopped at the end of
Dagonoy along Leon Guinto. Respondent Valdes
shouted: "Mga putang-ina niyo." Respondent
Reverente hit Mr. Pascual for the last time.
Apparently being satisfied with their handiwork, the
group left. The victims, Cano, Perez and Pascual
proceeded to a friend's house and waited for
almost two hours, or at around 8:00 in the evening
before they returned to the campus to have their
wounds treated. Apparently, there were three cars
roaming the vicinity. 6
give testimony and present evidence in your behalf.

You may be assisted by a lawyer when you give
your testimony or those of your witnesses.
On or before April 18, 1995, you are further directed
to provide the Board, through the Discipline Office,
with a list of your witnesses as well as the sworn
statement of their proposed testimony.
Your failure to appear at the scheduled hearing or
your failure to submit the list of witnesses and the
sworn statement of their proposed testimony will be
considered a waiver on your part to present
evidence and as an admission of the principal act
complained of.
The mauling incidents were a result of a fraternity

war. The victims, namely: petitioner James Yap and
Dennis Pascual, Ericson Cano, and Michael Perez,
are members of the "Domino Lux Fraternity," while
the alleged assailants, private respondents Alvin
Aguilar, James Paul Bungubung, Richard
Reverente and Roberto Valdes, Jr. are members of
"Tau Gamma Phi Fraternity," a rival fraternity.
For your strict compliance. 13

During the proceedings before the Board on April
19 and 28, 1995, private respondents interposed
the common defense of alibi, summarized by the
DLSU-CSB Joint Discipline Board as follows:
The next day, March 30, 1995, petitioner Yap

lodged a complaint 7 with the Discipline Board of
DLSU charging private respondents with "direct
assault." Similar complaints 8 were also filed by
Dennis Pascual and Ericson Cano against Alvin
Lee and private respondents Valdes and
Reverente. Thus, cases entitled "De La Salle
University and College of St. Benilde v. Alvin
Aguilar
(AB-BSM/9152105),
James
Paul
Bungubung (AB-PSM/9234403), Robert R. Valdes,
Jr.
(BS-BS-APM/9235086),
Alvin
Lee
(EDD/9462325),
Richard
Reverente
(ABMGT/9153837) and Malvin A. Papio (ABMGT/9251227)" were docketed as Discipline Case
No. 9495-3-25121.
First, in the case of respondent Bungubung, March

29, 1995 was one of the few instances when he
was picked-up by a driver, a certain Romeo S.
Carillo. Most of the time, respondent Bungubung
goes home alone sans driver. But on this particular
date, respondent Bungubung said that his dad
asked his permission to use the car and thus, his
dad instructed this driver Carillo to pick-up his son.
Mr. Carillo is not a family driver, but works from
8:00 a.m. to 5:00 p.m. for the Philippine Ports
Authority where the elder Bungubung is also
employed.
Thus, attempting to corroborate the alibi of
respondent Bungubung, Mr. Carillo said that he
arrived at La Salle at 4:56 p.m.; picked-up
respondent at 5:02 p.m.; took the Roxas Blvd. route
towards respondent's house in BF Paraaque (on a
Wednesday in Baclaran); and arrived at the house
at 6:15 p.m. Respondent Bungubung was droppedoff in his house, and taking the same route back,
Mr. Carillo arrived at the South Harbor at 6:55 p.m.
the Philippine Ports Authority is located at the
South Harbor. 14
The Director of the DLSU Discipline Office sent

separate notices to private respondents Aguilar,
Bungubung and Valdes, Jr. and Reverente
informing them of the complaints and requiring
them to answer. Private respondents filed their
respective answers. 9
As it appeared that students from DLSU and CSB
10 were involved in the mauling incidents, a joint
DLSU-CSB Discipline Board 11 was formed to
investigate the incidents. Thus, petitioner Board
Chairman Emmanuel Sales sent notices of hearing
12 to private respondents on April 12, 1995. Said
notices uniformly stated as follows:
xxx xxx xxx

Secondly, respondent Valdes said that he was with
his friends at McDonald's Taft just before 6:00 p.m.
of March 29, 1995. He said that he left McDonald at
5:50 p.m. together to get some medicine at the
university clinic for his throat irritation. He said that
he was at the clinic at 5:52 p.m. and went back to
McDonald, all within a span of 3 or even 4 minutes.
Please be informed that a joint and expanded

Discipline Board had been constituted to hear and
deliberate the charge against you for violation of
CHED Order No. 4 arising from the written
complaints of James Yap, Dennis C. Pascual, and
Ericson Y. Cano.
Two witnesses, a certain Sharon Sia and the

girlfriend of respondent Valdes, a certain Jorgette
Aquino, attempted to corroborate Valdez' alibi. 15
You are directed to appear at the hearing of the

Board scheduled on April 19, 1995 at 9:00 a.m. at
the Bro. Connon Hall for you and your witnesses to
xxx xxx xxx

14
The following day, June 6, 1995, respondent Judge

issued a TRO 24 directing DLSU, its subordinates,
agents, representatives and/or other persons acting
for and in its behalf to refrain and desist from
implementing Resolution dated May 3, 1995 and
Letter-Resolution dated June 1, 1995 and to
immediately desist from barring the enrollment of
Aguilar for the second term of school year (SY)
1995.
Third, respondent Reverente told that (sic) the

Board that he was at his home at 5:00 p.m. of
March 29, 1995. He said that he was given the
responsibility to be the paymaster of the
construction workers who were doing some works
in the apartment of his parents. Although he had
classes in the evening, the workers according to
him would wait for him sometimes up to 9:00 p.m.
when he arrives from his classes. The workers get
paid everyday.
Subsequently, private respondent Aguilar filed an

ex parte motion to amend his petition to correct an
allegation in paragraph 3.21 25 of his original
petition. Respondent Judge amended the TRO 26
to conform to the correction made in the amended
petition. 27
Respondent Reverente submitted an affidavit,

unsigned by the workers listed there, supposedly
attesting to the fact that he paid the workers at the
date and time in question. 16
xxx xxx xxx
Fourth, respondent Aguilar "solemnly sw[ore] that
[he] left DLSU at 5:00 p.m. for Camp Crame for a
meeting with some of the officers that we were
preparing." 17
On June 7, 1995, the CHED directed DLSU to

furnish it with copies of the case records of
Discipline Case No. 9495-3-25121, 28 in view of
the authority granted to it under Section 77 (c) of
the Manual of Regulations for Private Schools
(MRPS).
On May 3, 1995, the DLSU-CSB Joint Discipline

Board issued a Resolution 18 finding private
respondents guilty. They were meted the supreme
penalty of automatic expulsion, 19 pursuant to
CHED Order No. 4. 20 The dispositive part of the
resolution reads:
On the other hand, private respondents Bungubung

and Reverente, and later, Valdes, filed petitions-inintervention 29 in Civil Case No. 95-74122.
Respondent Judge also issued corresponding
temporary restraining orders to compel petitioner
DLSU to admit said private respondents.
WHEREFORE, considering all the foregoing, the

Board finds respondents ALVIN AGUILAR (ABBSM/9152105), JAMES PAUL BUNGUBUNG (ABPSM/9234403), ALVIN LEE (EDD/94623250) and
RICHARD V. REVERENTE (AB-MGT/9153837)
guilty of having violated CHED Order No. 4 and
thereby orders their automatic expulsion.
On June 19, 1995, petitioner Sales filed a motion to

dismiss 30 in behalf of all petitioners, except James
Yap. On June 20, 1995, petitioners filed a
supplemental motion to dismiss 31 the petitions-inintervention.
On September 20, 1995, respondent Judge issued
an Order 32 denying petitioners' (respondents
there) motion to dismiss and its supplement, and
granted private respondents' (petitioners there)
prayer for a writ of preliminary injunction. The
pertinent part of the Order reads:
In the case of respondent MALVIN A. PAPIO (ABMGT/9251227), the Board acquits him of the
charge.
SO ORDERED. 21
For this purpose, respondent, its agents,

representatives or any and all other persons acting
for and in its behalf is/are restrained and enjoined
from
Private respondents separately moved for

reconsideration 22 before the Office of the Senior
Vice-President for Internal Operations of DLSU.
The motions were all denied in a Letter-Resolution
23 dated June 1, 1995.
1. Implementing and enforcing the Resolution dated

May 3, 1995 ordering the automatic expulsion of
petitioner and the petitioners-in-intervention from
the De La Salle University and the letter-resolution
dated June 1, 1995, affirming the Resolution dated
May 3, 1995; and
On June 5, 1995, private respondent Aguilar filed

with the RTC, Manila, against petitioners a petition
for certiorari and injunction under Rule 65 of the
Rules of Court with prayer for temporary restraining
order (TRO) and/or writ of preliminary injunction. It
was docketed as Civil Case No. 95-74122 and
assigned to respondent Judge of Branch 36. The
petition essentially sought to annul the May 3, 1995
Resolution of the DLSU-CSB Joint Discipline Board
and the June 1, 1995 Letter-Resolution of the
Office of the Senior Vice-President for Internal
Affairs.
2. Barring the enrolment of petitioner and

petitioners-in-intervention in the courses offered at
respondent De La Salle University and to
immediately allow them to enroll and complete their
respective courses/degrees until their graduation
thereat in accordance with the standards set by the
latter.
15
WHEREFORE, the ancillary remedy prayed for is

granted. Respondent, its agents, representatives,
or any and all persons acting for and its behalf are
hereby restrained and enjoyed from:
On October 16, 1995, petitioner DLSU filed with the

CA a petition for certiorari 37 (CA-G.R. SP No.
38719) with prayer for a TRO and/or writ of
preliminary injunction to enjoin the enforcement of
respondent Judge's September 20, 1995 Order and
writ of preliminary injunction dated September 25,
1995.

petitioner and petitioners-in-intervention and the
Letter-Resolution dated June 1, 1995; and
On April 12, 1996, the CA granted petitioners'

prayer for preliminary injunction.
2. Barring the enrollment of petitioner and

respondent (De La Salle University) and to forthwith
allow all said petitioner and petitioners-inintervention to enroll and complete their respective
courses/degrees until their graduation thereat.
On May 14, 1996, the CHED issued its questioned

Resolution No. 181-96, summarily disapproving the
penalty of expulsion for all private respondents. As
for Aguilar, he was to be reinstated, while other
private respondents were to be excluded. 38 The
Resolution states:
The Writ of Preliminary Injunction shall take effect

upon petitioner and petitioners-in-intervention
posting an injunctive bond in the amount of
P15,000.00 executed in favor of respondent to the
effect that petitioner and petitioners-in-intervention
will pay to respondent all damages that the latter
may suffer by reason of the injunction if the Court
will finally decide that petitioner and petitioners-inintervention are not entitled thereto.
RESOLUTION 181-96
RESOLVED THAT THE REQUEST OF THE DE LA
SALLE UNIVERSITY (DLSU), TAFT AVENUE,
MANILA FOR THE APPROVAL OF THE PENALTY
OF EXPULSION IMPOSED ON MR. ALVIN
AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT
R. VALDES, JR., ALVIN LEE AND RICHARD V.
REVERENTE BE, AS IT IS HEREBY IS,
DISAPPROVED.
The motion to dismiss and the supplement thereto

is denied for lack of merit. Respondents are
directed to file their Answer to the Petition not later
than fifteen (15) days from receipt thereof.
RESOLVED FURTHER, THAT THE COMMISSION

DIRECT THE DLSU TO IMMEDIATELY EFFECT
THE REINSTATEMENT OF MR. AGUILAR AND
THE LOWERING OF THE PENALTY OF MR.
JAMES PAUL BUNGUBUNG, MR. ROBER R.
VALDEZ, JR., (sic) MR. ALVIN LEE AND MR.
RICHARD V. REVERENTE FROM EXPULSION
TO EXCLUSION. 39
SO ORDERED. 33
Despite the said order, private respondent Aguilar
was refused enrollment by petitioner DLSU when
he attempted to enroll on September 22, 1995 for
the second term of SY 1995-1996. Thus, on
September 25, 1995, Aguilar filed with respondent
Judge an urgent motion to cite petitioners
(respondents there) in contempt of court. 34 Aguilar
also prayed that petitioners be compelled to enroll
him at DLSU in accordance with respondent
Judge's Order dated September 20, 1995. On
September 25, 1995, respondent Judge issued 35
a writ of preliminary injunction, the relevant portion
of which reads:
Despite the directive of CHED, petitioner DLSU

again prevented private respondent Aguilar from
enrolling and/or attending his classes, prompting
his lawyer to write several demand letters 40 to
petitioner DLSU. In view of the refusal of petitioner
DLSU to enroll private respondent Aguilar, CHED
wrote a letter dated June 26, 1996 addressed to
petitioner Quebengco requesting that private
respondent Aguilar be allowed to continue
attending his classes pending the resolution of its
motion for reconsideration of Resolution No. 18196. However, petitioner Quebengco refused to do
so, prompting CHED to promulgate an Order dated
September 23, 1996 which states:
IT IS HEREBY ORDERED by the undersigned of

the REGIONAL TRIAL COURT OF MANILA that
until further orders, you the said DE LA SALLE
University as well as your subordinates, agents,
representatives, employees and any other person
assisting or acting for or on your behalf, to
immediately desist from implementing the
Resolution dated May 3, 1995 ordering the
automatic expulsion of petitioner and the
intervenors in DLSU, and the letter-resolution dated
June 1, 1995 affirming the said Resolution of May
3, 1995 and to immediately desist from barring the
enrolment of petitioner and intervenors in the
courses offered at DLSU and to allow them to enroll
and complete their degree courses until their
graduation from said school. 36
Acting on the above-mentioned request of Mr.

Aguilar through counsel enjoining De La Salle
University (DLSU) to comply with CHED Resolution
181-96 (Re: Expulsion Case of Alvin Aguilar, et al.
v. DLSU) directing DLSU to reinstate Mr. Aguilar
and finding the urgent request as meritorious, there
being no other plain and speedy remedy available,
considering the set deadline for enrollment this
current TRIMESTER, and in order to prevent
further prejudice to his rights as a student of the
16
institution, DLSU, through the proper school

authorities, is hereby directed to allow Mr. Alvin
Aguilar to provisionally enroll, pending the
Commission's Resolution of the instant Motion for
Reconsideration filed by DLSU.
In light of the foregoing, petitioner Aguilar's urgent

motion to reiterate writ of preliminary injunction is
hereby granted, and respondents' motion to
dismiss is denied.
The writ of preliminary injunction dated September
25, 1995 is declared to be in force and effect.
SO ORDERED. 41
Notwithstanding the said directive, petitioner DLSU,
through petitioner Quebengco, still refused to allow
private respondent Aguilar to enroll. Thus, private
respondent Aguilar's counsel wrote another
demand letter to petitioner DLSU. 42
Let a copy of this Order and the writ be served

personally by the Court's sheriff upon the
respondents at petitioners' expense.
Meanwhile, on June 3, 1996, private respondent

Aguilar, using CHED Resolution No. 181-96, filed a
motion to dismiss 43 in the CA, arguing that CHED
Resolution No. 181-96 rendered the CA case moot
and academic.
Accordingly, private respondent Aguilar was

allowed to conditionally enroll in petitioner DLSU,
subject to the continued effectivity of the writ of
preliminary injunction dated September 25, 1995
and to the outcome of Civil Case No. 95-74122.
On July 30, 1996, the CA issued its questioned

resolution granting the motion to dismiss of private
respondent Aguilar, disposing thus:
On February 17, 1997, petitioners filed the instant

petition.
SO ORDERED. 48
On June 15, 1998, We issued a TRO 49 as prayed

for by the urgent motion for the issuance of a TRO
50 dated June 4, 1998 of petitioners, and enjoined
respondent Judge from implementing the writ of
issued in Civil Case No. 95-74122, effective
immediately and until further orders from this Court.
THE FOREGOING CONSIDERED, dismissal of

herein petition is hereby directed.
SO ORDERED. 44
On October 15, 1996, the CA issued its resolution
denying petitioners' motion for reconsideration, as
follows:
On March 27, 2006, private respondent Aguilar filed

his manifestation 51 stating that he has long
completed his course at petitioner DLSU. He
finished and passed all his enrolled subjects for the
second trimester of 1997-1998, as indicated in his
transcript of records 52 issued by DLSU. However,
despite having completed all the academic
requirements for his course, DLSU has not issued a
certificate of completion/graduation in his favor.
It is obvious to Us that CHED Resolution No. 18196 is immediately executory in character, the
pendency of a Motion for Reconsideration
notwithstanding.
After considering the Opposition and for lack of
merit, the Motion for Reconsideration is hereby
denied.
Issues
We are tasked to resolve the following issues:
SO ORDERED. 45
On October 28, 1996, petitioners requested transfer
of case records to the Department of Education,
Culture and Sports (DECS) from the CHED. 46
Petitioners claimed that it is the DECS, not CHED,
which has jurisdiction over expulsion cases, thus,
necessitating the transfer of the case records of
Discipline Case No. 9495-3-25121 to the DECS.
1. Whether it is the DECS or the CHED which has

legal authority to review decisions of institutions of
higher learning that impose disciplinary action on
their students found violating disciplinary rules.
On November 4, 1996, in view of the dismissal of

the petition for certiorari in CA-G.R. SP No. 38719
and the automatic lifting of the writ of preliminary
injunction, private respondent Aguilar filed an
urgent motion to reiterate writ of preliminary
injunction dated September 25, 1995 before
respondent RTC Judge of Manila. 47
2.a Were private respondents accorded due

process of law?
2. Whether or not petitioner DLSU is within its rights

in expelling private respondents.
2.b Can petitioner DLSU invoke its right to

academic freedom?
2.c Was the guilt of private respondents proven by
substantial evidence?
On January 7, 1997, respondent Judge issued its

questioned order granting private respondent
Aguilar's urgent motion to reiterate preliminary
injunction. The pertinent portion of the order reads:
3. Whether or not the penalty imposed by DLSU on

private respondents is proportionate to their
misdeed.
17
Our Ruling
Prefatorily, there is merit in the observation of
petitioners 53 that while CHED Resolution No. 18196 disapproved the expulsion of other private
respondents, it nonetheless authorized their
exclusion from petitioner DLSU. However, because
of the dismissal of the CA case, petitioner DLSU is
now faced with the spectacle of having two different
directives from the CHED and the respondent
Judge CHED ordering the exclusion of private
respondents Bungubung, Reverente, and Valdes,
Jr., and the Judge ordering petitioner DLSU to allow
them to enroll and complete their degree courses
until their graduation.
limited to the powers and functions specified in

Section 8. The Bureau of Higher Education, which
the CHED has replaced and whose functions and
responsibilities it has taken over, never had any
authority over student disciplinary cases.
We cannot agree.
On May 18, 1994, Congress approved R.A. No.
7722, otherwise known as "An Act Creating the
Commission on Higher Education, Appropriating
Funds Thereof and for other purposes."
Section 3 of the said law, which paved the way for
the creation of the CHED, provides:
This is the reason We opt to decide the whole case

on the merits, brushing aside technicalities, in order
to settle the substantial issues involved. This Court
has the power to take cognizance of the petition at
bar due to compelling reasons, and the nature and
importance of the issues raised warrant the
immediate exercise of Our jurisdiction. 54 This is in
consonance with our case law now accorded nearreligious reverence that rules of procedure are but
tools designed to facilitate the attainment of justice,
such that when its rigid application tends to
frustrate rather than promote substantial justice,
this Court has the duty to suspend their operation.
55
Section 3. Creation of the Commission on Higher

Education. In pursuance of the abovementioned
policies, the Commission on Higher Education is
hereby created, hereinafter referred to as
Commission.
The Commission shall be independent and
separate from the Department of Education,
Culture and Sports (DECS) and attached to the
office of the President for administrative purposes
only. Its coverage shall be both public and private
institutions of higher education as well as degreegranting programs in all post secondary educational
institutions, public and private.
I. It is the CHED, not DECS, which has

the power of supervision and review
over disciplinary cases decided by
Ang CHED, hindi ang DECS, ang may
kapangyarihan ng pagsubaybay at pagrepaso sa
mga desisyong pandisiplina ng mga institusyon ng
mas mataas na pag-aaral.
The powers and functions of the CHED are

enumerated in Section 8 of R.A. No. 7722. They
include the following:
Sec. 8. Powers and functions of the Commission.
The Commission shall have the following powers
and functions:
Petitioners posit that the jurisdiction and duty to

review student expulsion cases, even those
involving students in secondary and tertiary levels,
is vested in the DECS not in the CHED. In support
of their stance, petitioners cite Sections 4, 56 15 (2)
& (3), 57 54, 58 57 (3) 59 and 70 60 of Batas
Pambansa (B.P.) Blg. 232, otherwise known as the
"Education Act of 1982."
xxx xxx xxx

n) promulgate such rules and regulations and
exercise such other powers and functions as may
be necessary to carry out effectively the purpose
and objectives of this Act; and
o) perform such other functions as may be
necessary for its effective operations and for the
continued enhancement of growth or development
of higher education.
According to them, Republic Act (R.A.) No. 7722

did not transfer to the CHED the DECS' power of
supervision/review over expulsion cases involving
institutions of higher learning. They say that unlike
B.P. Blg. 232, R.A. No. 7722 makes no reference to
the right and duty of learning institutions to develop
moral character and instill discipline among its
students. The clear concern of R.A. No. 7722 in the
creation of the CHED was academic, i.e., the
formulation,
recommendation,
setting,
and
development of academic plans, programs and
standards for institutions of higher learning. The
enumeration of CHED's powers and functions
under
Section
8
does
not
include
supervisory/review powers in student disciplinary
cases. The reference in Section 3 to CHED's
"coverage" of institutions of higher education is
Clearly, there is no merit in the contention of

petitioners that R.A. No. 7722 did not transfer to the
CHED the DECS' power of supervision/review over
expulsion cases involving institutions of higher
learning.
First, the foregoing provisions are all-embracing.

They make no reservations of powers to the DECS
insofar as institutions of higher learning are
concerned. They show that the authority and
supervision over all public and private institutions of
higher education, as well as degree-granting
programs in all post-secondary educational
18
institutions, public and private, belong to the CHED,

not the DECS.
distinguit nec nos distinguere debemus: Where the

law does not distinguish, neither should we.
Second, to rule that it is the DECS which has

authority to decide disciplinary cases involving
students on the tertiary level would render nugatory
the coverage of the CHED, which is "both public
and private institutions of higher education as well
as degree granting programs in all post secondary
educational institutions, public and private." That
would be absurd.
To Our mind, this provision, if not an explicit grant

of jurisdiction to the CHED, necessarily includes the
transfer to the CHED of any jurisdiction which the
DECS might have possessed by virtue of B.P. Blg.
232 or any other law or rule for that matter.
IIa. Private respondents were accorded
due process of law.
Ang mga private respondents ay nabigyan ng
tamang proseso ng batas.
It is of public knowledge that petitioner DLSU is a

private educational institution which offers tertiary
degree programs. Hence, it is under the CHED
authority.
The Due Process Clause in Article III, Section 1 of

the Constitution embodies a system of rights based
on moral principles so deeply imbedded in the
traditions and feelings of our people as to be
deemed fundamental to a civilized society as
conceived by our entire history. 64 The
constitutional behest that no person shall be
deprived of life, liberty or property without due
process of law is solemn and inflexible. 65
Third, the policy of R.A. No. 7722 61 is not only the

protection, fostering and promotion of the right of all
citizens to affordable quality education at all levels
and the taking of appropriate steps to ensure that
education shall be accessible to all. The law is
likewise concerned with ensuring and protecting
academic freedom and with promoting its exercise
and observance for the continued intellectual
growth of students, the advancement of learning
and research, the development of responsible and
effective leadership, the education of high-level and
middle-level professionals, and the enrichment of
our historical and cultural heritage.
In administrative cases, such as investigations of

students found violating school discipline, "[t]here
are withal minimum standards which must be met
before to satisfy the demands of procedural due
process and these are: that (1) the students must
be informed in writing of the nature and cause of
any accusation against them; (2) they shall have
the right to answer the charges against them and
with the assistance if counsel, if desired; (3) they
shall be informed of the evidence against them; (4)
they shall have the right to adduce evidence in their
own behalf; and (5) the evidence must be duly
considered by the investigating committee or official
designated by the school authorities to hear and
decide the case." 66
It is thus safe to assume that when Congress

passed R.A. No. 7722, its members were aware
that disciplinary cases involving students on the
tertiary level would continue to arise in the future,
which would call for the invocation and exercise of
institutions of higher learning of their right to
academic freedom.
Fourth, petitioner DLSU cited no authority in its
bare claim that the Bureau of Higher Education,
which CHED replaced, never had authority over
student
disciplinary
cases.
In
fact,
the
responsibilities of other government entities having
functions similar to those of the CHEDwere
transferred to the CHED. 6 2
Where a party was afforded an opportunity to

participate in the proceedings but failed to do so, he
cannot complain of deprivation of due process. 67
Notice and hearing is the bulwark of administrative
due process, the right to which is among the
primary rights that must be respected even in
administrative proceedings. 68 The essence of due
process is simply an opportunity to be heard, or as
applied to administrative proceedings, an
opportunity to explain one's side or an opportunity
to seek reconsideration of the action or ruling
complained of. 69 So long as the party is given the
opportunity to advocate her cause or defend her
interest in due course, it cannot be said that there
was denial of due process. 70
Section 77 of the MRPS 63 on the process of

review in student discipline cases should therefore
be read in conjunction with the provisions of R.A.
No. 7722.
Fifth, Section 18 of R.A. No. 7722 is very clear in
stating that "[j]urisdiction over DECS-supervised or
chartered state-supported post-secondary degreegranting vocational and tertiary institutions shall be
transferred to the Commission [On Higher
Education]." This provision does not limit or
distinguish that what is being transferred to the
CHED is merely the formulation, recommendation,
setting and development of academic plans,
programs and standards for institutions of higher
learning, as what petitioners would have us believe
as the only concerns of R.A. No. 7722. Ubi lex non
A formal trial-type hearing is not, at all times and in

all instances, essential to due process it is
enough that the parties are given a fair and
reasonable opportunity to explain their respective
sides of the controversy and to present supporting
evidence on which a fair decision can be based. 71
"To be heard" does not only mean presentation of
testimonial evidence in court one may also be
heard through pleadings and where the opportunity
19
to be heard through pleadings is accorded, there is

no denial of due process. 72
to existing curricula and to continue their course

therein up to graduation," 77 such right is subject to
the established academic and disciplinary
Petitioner DLSU, therefore, can very well exercise
its academic freedom, which includes its free
choice of students for admission to its school.
Private respondents were duly informed in writing

of the charges against them by the DLSU-CSB
Joint Discipline Board through petitioner Sales.
They were given the opportunity to answer the
charges against them as they, in fact, submitted
their respective answers. They were also informed
of the evidence presented against them as they
attended all the hearings before the Board.
Moreover, private respondents were given the right
to adduce evidence on their behalf and they did.
Lastly, the Discipline Board considered all the
pieces of evidence submitted to it by all the parties
before rendering its resolution in Discipline Case
No. 9495-3-25121.
IIc. The guilt of private respondents

Bungubung, Reverente and Valdes,
Jr. was proven by substantial evidence.
Ang pagkakasala ng private respondents na sina
Bungubung, Reverente at Valdes, Jr. ay
napatunayan ng ebidensiyang substansyal.
As has been stated earlier, private respondents
interposed the common defense of alibi. However,
in order that alibi may succeed as a defense, "the
accused must establish by clear and convincing
evidence (a) his presence at another place at the
time of the perpetration of the offense and (b) the
physical impossibility of his presence at the scene
of the crime." 78
Private respondents cannot claim that they were

denied due process when they were not allowed to
cross-examine the witnesses against them. This
argument was already rejected in Guzman v.
National University 73 where this Court held that ". .
. the imposition of disciplinary sanctions requires
observance of procedural due process. And it bears
stressing that due process in disciplinary cases
involving students does not entail proceedings and
hearings similar to those prescribed for actions and
proceedings in courts of justice. The proceedings in
student discipline cases may be summary; and
cross examination is not, . . . an essential part
thereof."
On the other hand, the defense of alibi may not be

successfully invoked where the identity of the
assailant has been established by witnesses. 79
Positive identification of accused where categorical
and consistent, without any showing of ill motive on
the part of the eyewitness testifying, should prevail
over the alibi and denial of appellants whose
testimonies are not substantiated by clear and
convincing evidence. 80 Well-settled is the rule that
denial and alibi, being weak defenses, cannot
overcome the positive testimonies of the offended
parties. 81
IIb. Petitioner DLSU, as an institution of

higher learning, possesses academic
freedom which includes determination
of who to admit for study.
Ang petitioner DLSU, bilang institusyon ng mas
mataas na pag-aaral, ay nagtataglay ng kalayaang
akademiko na sakop ang karapatang pumili ng mga
mag-aaral dito.
Courts reject alibi when there are credible

eyewitnesses to the crime who can positively
identify the accused. 82 Alibi is an inherently weak
defense and courts must receive it with caution
because one can easily fabricate an alibi. 83
Jurisprudence holds that denial, like alibi, is
inherently weak and crumbles in light of positive
declarations of truthful witnesses who testified on
affirmative matters that accused were at the scene
of the crime and were the victim's assailants. As
between categorical testimonies that ring of truth on
one hand and a bare denial on the other, the former
must prevail. 84 Alibi is the weakest of all defenses
for it is easy to fabricate and difficult to disprove,
and it is for this reason that it cannot prevail over
the positive identification of accused by the
witnesses. 85
Section 5 (2), Article XIV of the Constitution

guaranties all institutions of higher learning
academic freedom. This institutional academic
freedom includes the right of the school or college
to decide for itself, its aims and objectives, and how
best to attain them free from outside coercion or
interference save possibly when the overriding
public interest calls for some restraint. 74 According
to present jurisprudence, academic freedom
encompasses the independence of an academic
institution to determine for itself (1) who may teach,
(2) what may be taught, (3) how it shall teach, and
(4) who may be admitted to study. 75
It cannot be gainsaid that "the school has an
interest in teaching the student discipline, a
necessary, if not indispensable, value in any field of
learning. By instilling discipline, the school teaches
discipline. Accordingly, the right to discipline the
student likewise finds basis in the freedom "what to
teach." 76 Indeed, while it is categorically stated
under the Education Act of 1982 that students have
a right "to freely choose their field of study, subject
The required proof in administrative cases, such as

in student discipline cases, is neither proof beyond
reasonable doubt nor preponderance of evidence
but only substantial evidence. According to Ang
Tibay v. Court of Industrial Relations, 86 it means
"such reasonable evidence as a reasonable mind
might accept as adequate to support a conclusion."
20
Viewed from the foregoing, We reject the alibi of

private respondents Bungubung, Valdes Jr., and
Reverente. They were unable to show convincingly
that they were not at the scene of the crime on
March 29, 1995 and that it was impossible for them
to have been there. Moreover, their alibi cannot
prevail over their positive identification by the
victims.
permission to leave and we saw him leave Camp

Crame, in his car with the driver.
April 18, 1995, Camp Crame, Quezon City. 90
The said certification was duly signed by PO3
Nicanor R. Faustino (Anti-Organized Crime CIC,
NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp
Crame, Quezon City), PO2 Severino C. Filler
(TNTSC, Camp Crame, Quezon City), and PO3
Ireneo M. Desesto (Supply Center, PNPLSS). The
rule is that alibi assumes significance or strength
when it is amply corroborated by credible and
disinterested witnesses. 91 It is true that alibi is a
weak defense which an accused can easily
fabricate to escape criminal liability. But where the
prosecution evidence is weak, and betrays lack of
credibility as to the identification of defendant, alibi
assumes commensurate strength. This is but
consistent with the presumption of innocence in
favor of accused. 92
We hark back to this Court's pronouncement

affirming the expulsion of several students found
guilty of hazing:
No one can be so myopic as to doubt that the
immediate reinstatement of respondent students
who have been investigated and found guilty by the
Disciplinary Board to have violated petitioner
university's disciplinary rules and standards will
certainly undermine the authority of the
administration of the school. This we would be most
loathe to do.
More importantly, it will seriously impair petitioner
university's academic freedom which has been
enshrined in the 1935, 1973 and the present 1987
Constitution. 87
Alibi is not always undeserving of credit, for there

are times when accused has no other possible
defense for what could really be the truth as to his
whereabouts at the crucial time, and such defense
may, in fact, tilt the scales of justice in his favor. 93
Certainly,
private
respondents
Bungubung,
Reverente and Valdes, Jr. do not deserve to claim a
venerable institution as their own, for they may
foreseeably cast a malevolent influence on the
students currently enrolled, as well as those who
come after them. 88 It must be borne in mind that
universities are established, not merely to develop
the intellect and skills of the studentry, but to
inculcate lofty values, ideals and attitudes; nay, the
development, or flowering if you will, of the total
man. 89
III. The penalty of expulsion imposed by DLSU

on private respondents is disproportionate
to their misdeed.
Ang parusang expulsion na ipinataw ng DLSU sa
private respondents ay hindi angkop sa kanilang
pagkakasala.
It is true that schools have the power to instill
discipline in their students as subsumed in their
academic freedom and that "the establishment of
rules governing university-student relations,
particularly those pertaining to student discipline,
may be regarded as vital, not merely to the smooth
and efficient operation of the institution, but to its
very survival." 94 This power, however, does not
give them the untrammeled discretion to impose a
penalty which is not commensurate with the gravity
of the misdeed. If the concept of proportionality
between the offense committed and the sanction
imposed is not followed, an element of arbitrariness
intrudes. That would give rise to a due process
question. 95
As for private respondent Aguilar, however, We are

inclined to give credence to his alibi that he was at
Camp Crame in Quezon City at the time of the
incident in question on March 29, 1995. This claim
was amply corroborated by the certification that he
submitted before the DLSU-CSB Joint Discipline
Board, to wit:
CERTIFICATION
TO WHOM THIS MAY CONCERN:
We, the undersigned, hereby declare and affirm by
way of this Certification that sometime on March
29, 1995, at about and between 4:30 P.M. and 5:30
P.M., we were together with Alvin A. Aguilar, at
Kiangan Hall, inside Camp Crame, Quezon City,
meeting in connection with an affair of our class
known as Class 7, Batch 89 of the Philippine
Constabulary discussing on the proposed
sponsorship of TAU GAMMA PHI from said Batch
'89 affair.
We agree with respondent CHED that under the

circumstances, the penalty of expulsion is grossly
disproportionate to the gravity of the acts
committed by private respondents Bungubung,
Reverente, and Valdes, Jr. Each of the two mauling
incidents lasted only for few seconds and the
victims did not suffer any serious injury. Disciplinary
measures
especially
where
they
involve
suspension, dismissal or expulsion, cut significantly
into the future of a student. They attach to him for
life and become a mortgage of his future, hardly
redeemable in certain cases. Officials of colleges
and universities must be anxious to protect it,
conscious of the fact that, appropriately construed,
That the meeting was terminated at about 6:30 P.M.

that evening and Alvin Aguilar had asked our
21
a disciplinary action should be treated as an

educational tool rather than a punitive measure. 96
The uncontroverted facts that led to the

controversy, as found by the CSC and the CA, are
as follows:
Accordingly, We affirm the penalty of exclusion 97

only, not expulsion, 98 imposed on them by the
CHED. As such, pursuant to Section 77 (b) of the
MRPS, petitioner DLSU may exclude or drop the
names of the said private respondents from its rolls
for being undesirable, and transfer credentials
immediately issued.
On August 1, 1991, respondent Sojor was

appointed by then President Corazon Aquino as
president of the Central Visayas Polytechnic
College (CVPC) in Dumaguete City. In June 1997,
Republic Act (R.A.) No. 8292, or the "Higher
Education Modernization Act of 1997", was
enacted. This law mandated that a Board of
Trustees (BOT) be formed to act as the governing
body in state colleges. The BOT of CVPC
appointed respondent as president, with a four-year
term beginning September 1998 up to September
2002. 3 Upon the expiration of his first term of office
in 2002, he was appointed president of the
institution for a second four-year term, expiring on
September 24, 2006. 4
WHEREFORE, the petition is PARTIALLY

GRANTED. The Court of Appeals Resolutions
dated July 30, 1996 and dated October 15, 1996,
and Regional Trial Court of Manila, Branch 36,
Order dated January 7, 1997 are ANNULLED AND
SET ASIDE, while CHED Resolution 181-96 dated
May 14, 1996 is AFFIRMED.
Petitioner DLSU is ordered to issue a certificate of
completion/graduation
in
favor
of
private
respondent Aguilar. On the other hand, it may
exclude or drop the names of private respondents
Bungubung, Reverente, and Valdes, Jr. from its
rolls, and their transfer credentials immediately
issued.
On June 25, 2004, CVPC was converted into the

Negros Oriental State University (NORSU). 5 A
Board of Regents (BOR) succeeded the BOT as its
governing body.
Meanwhile, three (3) separate administrative cases
against respondent were filed by CVPC faculty
members before the CSC Regional Office (CSCRO) No. VII in Cebu City, to wit:
SO ORDERED.
Ynares-Santiago, Quisumbing,* Chico-Nazario and
Velasco, Jr.,** JJ., concur.
1. ADMC DC No. 02-20 (A) Complaint for

dishonesty, grave misconduct and conduct
prejudicial to the best interest of the service filed on
June 26, 2002 by Jose Rene A. Cepe and Narciso
P. Ragay. It was alleged that respondent approved
the release of salary differentials despite the
absence of the required Plantilla and Salary
Adjustment Form and valid appointments. 6
HCSDca
||| (De La Salle University, Inc. v. Court of Appeals,

G.R. No. 127980, [December 19, 2007], 565 PHIL
330-365)
4. CSC VS. SOJOR 554 SCRA 160 (2008)
EN BANC
[G.R. No. 168766. May 22, 2008.]
2. ADM DC No. 02-20 Complaint for dishonesty,

misconduct and falsification of official documents
filed on July 10, 2002 by Jocelyn Juanon and
Carolina Fe Santos. The complaint averred that
respondent maliciously allowed the antedating and
falsification of the reclassification differential
payroll, to the prejudice of instructors and
professors who have pending request for
adjustment of their academic ranks. 7
THE CIVIL SERVICE COMMISSION, petitioner, vs.

HENRY A. SOJOR, respondent.
DECISION
REYES, R.T., J p:
IS the president of a state university outside the
reach of the disciplinary jurisdiction constitutionally
granted to the Civil Service Commission (CSC)
over all civil servants and officials? DETACa
3. ADM DC No. 02-21 Complaint for nepotism

filed on August 15, 2002 by Rose Marie Palomar, a
former part-time instructor of CVPC. It was alleged
that respondent appointed his half-sister, Estrellas
Sojor-Managuilas, as casual clerk, in violation of
the provisions against nepotism under the
Administrative Code. 8
Does the assumption by the CSC of jurisdiction

over a president of a state university violate
academic freedom?
The twin questions, among others, are posed in this
petition for review on certiorari of the Decision 1 of
the Court of Appeals (CA) which annulled two (2)
CSC Resolutions 2 against respondent Henry A.
Sojor.
Before filing his counter-affidavits, respondent

moved to dismiss the first two complaints on
grounds of lack of jurisdiction, bar by prior judgment
and forum shopping.
He claimed that the CSC had no jurisdiction over
him as a presidential appointee. Being part of the
The Facts
22
non-competitive or unclassified service of the

government, he was exclusively under the
disciplinary jurisdiction of the Office of the President
(OP). He argued that CSC had no authority to
entertain, investigate and resolve charges against
him; that the Civil Service Law contained no
provisions on the investigation, discipline, and
removal of presidential appointees. He also pointed
out that the subject matter of the complaints had
already been resolved by the Office of the
Ombudsman. 9
(CHED) Chairman Ester A. Garcia. Moreover, the

said appointment expressly stated that it was
approved and adopted by the Central Visayas
Polytechnic College Board of Trustees on August
13, 2002 in accordance with Section 6 of Republic
Act No. 8292 (Higher education Modernization Act
of 1997), which explicitly provides that, "He (the
president of a state college) shall be appointed by
the
Board
of
Regents/Trustees,
upon
recommendation of a duly constituted search
committee." Since the President of a state college
is appointed by the Board of Regents/Trustees of
the college concerned, it is crystal clear that he is
not a presidential appointee. Therefore, it is without
doubt that Sojor, being the President of a state
college (Central Visayas Polytechnic College), is
within the disciplinary jurisdiction of the
Commission.
Finding no sufficient basis to sustain respondent's

arguments, the CSC-RO denied his motion to
dismiss in its Resolution dated September 4, 2002.
10 His motion for reconsideration 11 was likewise
denied. Thus, respondent was formally charged
with three administrative cases, namely: (1)
Dishonesty, Misconduct, and Falsification of Official
Document; (2) Dishonesty, Grave Misconduct, and
Conduct Prejudicial to the Best Interest of the
Service; and (3) Nepotism. 12 ADaSEH
The allegation of appellant Sojor that the

Commission is bereft of disciplinary jurisdiction over
him since the same is exclusively lodged in the
CVPC Board of Trustees, being the appointing
authority, cannot be considered. The Commission
and the CVPC Board of Trustees have concurrent
jurisdiction over cases against officials and
employees of the said agency. Since the three (3)
complaints against Sojor were filed with the
Commission and not with the CVPC, then the
former already acquired disciplinary jurisdiction
over the appellant to the exclusion of the latter
agency. 18 (Emphasis supplied) cHDAIS
Respondent appealed the actions of the regional

office to the Commission proper (CSC), raising the
same arguments in his motion to dismiss. 13 He
argued that since the BOT is headed by the
Committee on Higher Education Chairperson who
was under the OP, the BOT was also under the OP.
Since the president of CVPC was appointed by the
BOT, then he was a presidential appointee. On the
matter of the jurisdiction granted to CSC by virtue
of Presidential Decree (P.D.) No. 807 14 enacted in
October 1975, respondent contended that this was
superseded by the provisions of R.A. No. 8292, 15
a later law which granted to the BOT the power to
remove university officials.
The CSC categorized respondent as a third level

official, as defined under its rules, who are under
the jurisdiction of the Commission proper.
Nevertheless, it adopted the formal charges issued
by its regional office and ordered it to proceed with
the investigation:
CSC Disposition
In a Resolution dated March 30, 2004, 16 the CSC
dismissed respondent's appeal and authorized its
regional office to proceed with the investigation. He
was also preventively suspended for 90 days. The
fallo of the said resolution states:
Pursuant to the Uniform Rules on Administrative

Cases in the Civil Service, Sojor, being a third level
official, is within the disciplinary jurisdiction of the
Commission Proper. Thus, strictly speaking, the
Commission has the sole jurisdiction to issue the
formal charge against Sojor. . . . However, since the
CSC RO No. VII already issued the formal charges
against him and found merit in the said formal
charges, the same is adopted. The CSC RO No. VII
is authorized to proceed with the formal
investigation of the case against Sojor in
accordance with the procedure outlined in the
aforestated Uniform Rules. 19 (Emphasis supplied)
WHEREFORE, the appeal of Henry A. Sojor,

President of Central Visayas Polytechnic College,
is hereby DISMISSED. The Civil Service
Commission Regional Office No. VII, Cebu City, is
authorized to proceed with the formal investigation
of the cases against Sojor and submit the
investigation reports to the Commission within one
hundred five (105) days from receipt hereof. Finally,
Sojor is preventively suspended for ninety (90)
days. 17 cEaCAH
No merit was found by the CSC in respondent's

motion for reconsideration and, accordingly, denied
it with finality on July 6, 2004. 20 aTIAES
In decreeing that it had jurisdiction over the

disciplinary case against respondent, the CSC
opined that his claim that he was a presidential
appointee had no basis in fact or in law. CSC
maintained that it had concurrent jurisdiction with
the BOT of the CVPC. We quote:
Respondent appealed the CSC resolutions to the

CA via a petition for certiorari and prohibition. He
alleged that the CSC acted without or in excess of
its jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction when it
issued the assailed resolutions; that CSC
encroached upon the academic freedom of CVPC;
His appointment dated September 23, 2002 was

signed by then Commission on Higher Education
23
and that the power to remove, suspend, and

discipline the president of CVPC was exclusively
lodged in the BOT of CVPC.
requirements of due process of law. (Emphasis

added)
The CA added that Executive Order (E.O.) No. 292,
25 which grants disciplinary jurisdiction to the CSC
over all branches, subdivisions, instrumentalities,
and agencies of the government, including
government-owned or controlled corporations with
original charters, is a general law. According to the
appellate court, E.O. No. 292 does not prevail over
R.A. No. 9299, 26 a special law. IADaSE
CA Disposition
On September 29, 2004, the CA issued a writ of
preliminary injunction directing the CSC to cease
and desist from enforcing its Resolution dated
March 30, 2004 and Resolution dated July 6, 2004.
21 Thus, the formal investigation of the
administrative charges against Sojor before the
CSC-RO was suspended.
Issues
Petitioner CSC comes to Us, seeking to reverse the
decision of the CA on the ground that THE COURT
OF APPEALS GRAVELY ERRED IN HOLDING
THAT
PETITIONER
ACTED
WITHOUT
JURISDICTION IN ISSUING RESOLUTION NO.
040321 DATED MARCH 30, 2004 AND
RESOLUTION NO. 04766 DATED JULY 6, 2004.
27
On June 27, 2005, after giving both parties an

opportunity to air their sides, the CA resolved in
favor of respondent. It annulled the questioned
CSC resolutions and permanently enjoined the
CSC from proceeding with the administrative
investigation. The dispositive part of the CA
decision reads: SDEITC
WHEREFORE, in view of all the foregoing, and
finding that the respondent Civil Service
Commission acted without jurisdiction in issuing the
assailed Resolution Nos. 040321 and 040766
dated March 20, 2004 and July 6, 2004,
respectively, the same are hereby ANNULLED and
SET ASIDE. The preliminary injunction issued by
this Court on September 29, 2004 is hereby made
permanent.
Our Ruling
The petition is meritorious.
I. Jurisdiction of the CSC
The Constitution grants to the CSC administration
over the entire civil service. 28 As defined, the civil
service
embraces
every
branch,
agency,
subdivision, and instrumentality of the government,
including every government-owned or controlled
corporation. 29 It is further classified into career
and non-career service positions. Career service
positions are those where: (1) entrance is based on
merit and fitness or highly technical qualifications;
(2) there is opportunity for advancement to higher
career positions; and (3) there is security of tenure.
These include: CIAHaT
SO ORDERED. 22
The CA ruled that the power to appoint carries with

it the power to remove or to discipline. It declared
that the enactment of R.A. No. 9299 23 in 2004,
which converted CVPC into NORSU, did not divest
the BOT of the power to discipline and remove its
faculty members, administrative officials, and
employees. Respondent was appointed as
president of CVPC by the BOT by virtue of the
authority granted to it under Section 6 of R.A. No.
8292. 24 The power of the BOT to remove and
discipline erring employees, faculty members, and
administrative officials as expressly provided for
under Section 4 of R.A. No. 8292 is also granted to
the BOR of NORSU under Section 7 of R.A. No.
9299. The said provision reads: ACTISE
(1) Open Career positions for appointment to which

prior qualification in an appropriate examination is
required;
(2) Closed Career positions which are scientific, or
highly technical in nature; these include the faculty
and academic staff of state colleges and
universities, and scientific and technical positions in
scientific or research institutions which shall
establish and maintain their own merit systems;
(3) Positions in the Career Executive Service;
namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director,
Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of
equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed
by the President;
Powers and Duties of Governing Boards. The

governing board shall have the following specific
powers and duties in addition to its general powers
of administration and exercise of all the powers
granted to the board of directors of a corporation
under Section 36 of Batas Pambansa Blg. 68,
otherwise known as the Corporation Code of the
Philippines:
(4) Career officers, other than those in the Career

Executive Service, who are appointed by the
President, such as the Foreign Service Officers in
the Department of Foreign Affairs;
xxx xxx xxx

to fix and adjust salaries of faculty members and
administrative officials and employees . . .; and to
remove them for cause in accordance with the
24
(5) Commissioned officers and enlisted men of the

Armed Forces which shall maintain a separate
merit system; TIaDHE
own responsibility with a minimum of direction and

supervision from the hiring agency; and
(5) Emergency and seasonal personnel. 34
(6) Personnel of government-owned or controlled

corporations, whether performing governmental or
proprietary functions, who do not fall under the noncareer service; and
It is evident that CSC has been granted by the

Constitution and the Administrative Code
jurisdiction over all civil service positions in the
government service, whether career or non-career.
From this grant of general jurisdiction, the CSC
promulgated the Revised Uniform Rules on
Administrative Cases in the Civil Service. 35 We
find that the specific jurisdiction, as spelled out in
the CSC rules, did not depart from the general
jurisdiction granted to it by law. The jurisdiction of
the Regional Office of the CSC and the
Commission central office (Commission Proper) is
specified in the CSC rules as: DHSEcI
(7) Permanent laborers, whether skilled, semiskilled, or unskilled. 30

Career positions are further grouped into three
levels. Entrance to the first two levels is determined
through competitive examinations, while entrance
to the third level is prescribed by the Career
Executive Service Board. 31 The positions covered
by each level are:
(a) The first level shall include clerical, trades,
crafts, and custodial service positions which involve
non-professional or subprofessional work in a nonsupervisory or supervisory capacity requiring less
than four years of collegiate studies;
Section 4. Jurisdiction of the Civil Service

Commission. The Civil Service Commission
shall hear and decide administrative cases
instituted by, or brought before it, directly or on
appeal, including contested appointments, and
shall review decisions and actions of its offices and
of the agencies attached to it.
(b) The second level shall include professional,

technical, and scientific positions which involve
professional, technical, or scientific work in a nonsupervisory or supervisory capacity requiring at
least four years of college work up to Division Chief
level; and DISaEA
Except as otherwise provided by the Constitution or

by law, the Civil Service Commission shall have the
final authority to pass upon the removal, separation
and suspension of all officers and employees in the
civil service and upon all matters relating to the
conduct, discipline and efficiency of such officers
and employees.
(c) The third level shall cover positions in the

Career Executive Service. 32
On the other hand, non-career service positions are
characterized by: (1) entrance not by the usual
tests of merit and fitness; and (2) tenure which is
limited to a period specified by law, coterminous
with the appointing authority or subject to his
pleasure, or limited to the duration of a particular
project for which purpose employment was made.
33 The law states:
Section 5. Jurisdiction of the Civil Service

Commission Proper. The Civil Service
Commission Proper shall have jurisdiction over the
following cases: SITCEA
A. Disciplinary
1. Decisions of Civil Service Regional Offices
brought before it on petition for review;
The Non-Career Service shall include:

(1) Elective officials
confidential staff;
and
their
personal
2. Decisions of heads of departments, agencies,

provinces, cities, municipalities and other
instrumentalities, imposing penalties exceeding
thirty days suspension or fine in an amount
exceeding thirty days salary brought before it on
appeal;
or
(2) Secretaries and other officials of Cabinet rank

who hold their positions at the pleasure of the
President and their personal or confidential staff(s);
3. Complaints brought against

Commission Proper personnel;
(3) Chairman and members of commissions and

boards with fixed terms of office and their personal
or confidential staff; DAESTI
Civil
Service
4. Complaints against third level officials who are

not presidential appointees;
(4) Contractual personnel or those whose

employment in the government is in accordance
with a special contract to undertake a specific work
or job, requiring special or technical skills not
available in the employing agency, to be
accomplished within a specific period, which in no
case shall exceed one year, and performs or
accomplishes the specific work or job, under his
5. Complaints against Civil Service officials and

employees which are not acted upon by the
agencies and such other complaints requiring direct
or immediate action, in the interest of justice;
HEDSIc
25
6. Requests for transfer of venue of hearing on

cases being heard by Civil Service Regional
Offices;
7. Appeals from
Suspension; and
the
Order
of
non-career civil servant

jurisdiction of the CSC.
Preventive
who
is
under
the
II. The power of the BOR to

discipline officials and employees
is not exclusive. CSC has
concurrent jurisdiction over a
president of a state university.
Section 4 of R.A. No. 8292, or the Higher Education
Modernization Act of 1997, under which law
respondent was appointed during the time material
to the present case, provides that the school's
governing board shall have the general powers of
administration granted to a corporation. In addition,
Section 4 of the law grants to the board the power
to remove school faculty members, administrative
officials, and employees for cause: IEaHSD
8. Such other actions or requests involving issues

arising out of or in connection with the foregoing
enumerations.
B. Non-Disciplinary
1. Decisions of Civil Service Commission Regional
Offices brought before it;
2. Requests for favorable recommendation on
petition for executive clemency;
3. Protests against the appointment, or other
personnel actions, involving third level officials; and
Section 4. Powers and Duties of Governing Boards.

The governing board shall have the following
specific powers and duties in addition to its general
powers of administration and the exercise of all the
powers granted to the board of directors of a
corporation under Section 36 of Batas Pambansa
Blg. 68, otherwise known as the Corporation Code
of the Philippines:
4. Such other analogous actions or petitions arising

out of or in relation with the foregoing
enumerations. aHADTC
Section 6. Jurisdiction of Civil Service Regional
Offices. The Civil Service Commission Regional
Offices shall have jurisdiction over the following
cases:
xxx xxx xxx

h) to fix and adjust salaries of faculty members and
administrative officials and employees subject to
the provisions of the revised compensation and
classification system and other pertinent budget
and compensation laws governing hours of service,
and such other duties and conditions as it may
deem proper; to grant them, at its discretion, leaves
of absence under such regulations as it may
promulgate, any provisions of existing law to the
contrary notwithstanding; and to remove them for
cause in accordance with the requirements of due
process of law. (Emphasis supplied) TAcDHS
A. Disciplinary
1. Complaints initiated by, or brought before, the
Civil Service Commission Regional Offices
provided that the alleged acts or omissions were
committed within the jurisdiction of the Regional
Office, including Civil Service examination
anomalies or irregularities and the persons
complained of are employees of agencies, local or
national, within said geographical areas;
2. Complaints involving Civil Service Commission
Regional Office personnel who are appointees of
said office; and
The above section was subsequently reproduced

as Section 7 (i) of the succeeding law that
converted CVPC into NORSU, R.A. No. 9299.
Notably, and in contrast with the earlier law, R.A.
No. 9299 now provides that the administration of
the university and exercise of corporate powers of
the board of the school shall be exclusive:
3. Petitions to place respondent under Preventive

Suspension.
B. Non-Disciplinary
1. Disapproval of appointments brought before it on
appeal;
Sec. 4. Administration. The University shall have

the general powers of a corporation set forth in
Batas Pambansa Blg. 68, as amended, otherwise
known as "The Corporation Code of the
Philippines." The administration of the University
and the exercise of its corporate powers shall be
vested exclusively in the Board of Regents and the
president of the University insofar as authorized by
the Board.
2. Protests against the appointments of first and

second level employees brought before it directly or
on appeal. (Emphasis supplied) DAaHET
Respondent, a state university president with a
fixed term of office appointed by the governing
board of trustees of the university, is a non-career
civil service officer. He was appointed by the
chairman and members of the governing board of
CVPC. By clear provision of law, respondent is a
Measured by the foregoing yardstick, there is no

question that administrative power over the school
exclusively belongs to its BOR. But does this
26
exclusive administrative power extend to the power

to remove its erring employees and officials?
ADSTCa
In University of the Philippines v. Regino, 38 this

Court struck down the claim of exclusive jurisdiction
of the UP BOR to discipline its employees. The
Court held then:
In light of the other provisions of R.A. No. 9299,

respondent's argument that the BOR has exclusive
power to remove its university officials must fail.
Section 7 of R.A. No. 9299 states that the power to
remove faculty members, employees, and officials
of the university is granted to the BOR "in addition
to its general powers of administration". This
provision is essentially a reproduction of Section 4
of its predecessor, R.A. No. 8292, demonstrating
that the intent of the lawmakers did not change
even with the enactment of the new law. For clarity,
the text of the said section is reproduced below:
The Civil Service Law (PD 807) expressly vests in

the
Commission
appellate
jurisdiction
in
administrative disciplinary cases involving members
of the Civil Service. Section 9(j) mandates that the
Commission shall have the power to "hear and
decide administrative disciplinary cases instituted
directly with it in accordance with Section 37 or
brought to it on appeal." And Section 37(a) provides
that, "The Commission shall decide upon appeal all
administrative disciplinary cases involving the
imposition of a penalty of suspension for more than
thirty (30) days, or fine in an amount exceeding
thirty days' salary, demotion in rank or salary or
transfer, removal or dismissal from office."
(Emphasis supplied) CacTIE
Sec. 7. Powers and Duties of the Board of Regents.

The Board shall have the following specific
powers and duties in addition to its general powers
of administration and the exercise of all the powers
granted to the Board of Directors of a corporation
under existing laws:
Under the 1972 Constitution,all government-owned

or controlled corporations, regardless of the
manner of their creation, were considered part of
the Civil Service. Under the 1987 Constitution, only
government-owned or controlled corporations with
original charters fall within the scope of the Civil
Service pursuant to Article IX-B, Section 2(1), which
states:
xxx xxx xxx

i. To fix and adjust salaries of faculty members and
administrative officials and employees, subject to
the provisions of the Revised Compensation and
Position Classification System and other pertinent
budget and compensation laws governing hours of
service and such other duties and conditions as it
may deem proper; to grant them, at its discretion,
leaves of absence under such regulations as it may
promulgate, any provision of existing law to the
contrary notwithstanding; and to remove them for
cause in accordance with the requirements of due
process of law. 36 (Emphasis supplied) AIcECS
"The Civil Service embraces all branches,

subdivisions, instrumentalities, and agencies of the
government, including government-owned or
controlled corporations with original charters."
As a mere government-owned or controlled
corporation, UP was clearly a part of the Civil
Service under the 1973 Constitution and now
continues to be so because it was created by a
special law and has an original charter. As a
component of the Civil Service, UP is therefore
governed by PD 807 and administrative cases
involving the discipline of its employees come
under the appellate jurisdiction of the Civil Service
Commission. 39 (Emphasis supplied)
Verily, the BOR of NORSU has the sole power of

administration over the university. But this power is
not exclusive in the matter of disciplining and
removing its employees and officials.
Although the BOR of NORSU is given the specific
power under R.A. No. 9299 to discipline its
employees and officials, there is no showing that
such power is exclusive. When the law bestows
upon a government body the jurisdiction to hear
and decide cases involving specific matters, it is to
be presumed that such jurisdiction is exclusive
unless it be proved that another body is likewise
vested with the same jurisdiction, in which case,
both bodies have concurrent jurisdiction over the
matter. 37
In the more recent case of Camacho v. Gloria, 40

this Court lent credence to the concurrent
jurisdiction of the CSC when it affirmed that a case
against a university official may be filed either with
the university's BOR or directly with the CSC. We
quote: DCcHIS
Further, petitioner contends that the creation of the
committee by the respondent Secretary, as
Chairman of the USP Board of Regents, was
contrary to the Civil Service Rules. However, he
cites no specific provision of the Civil Service Law
which was violated by the respondents in forming
the investigating committee. The Civil Service
Rules embodied in Executive Order 292 recognize
the power of the Secretary and the university,
through its governing board, to investigate and
decide matters involving disciplinary action against
All members of the civil service are under the

jurisdiction of the CSC, unless otherwise provided
by law. Being a non-career civil servant does not
remove respondent from the ambit of the CSC.
Career or non-career, a civil service official or
employee is within the jurisdiction of the CSC.
CDTSEI
This is not a case of first impression.
27
officers and employees under their jurisdiction. Of

course under EO 292, a complaint against a state
university official may be filed either with the
university's Board of Regents or directly with the
Civil Service Commission, although the CSC may
delegate the investigation of a complaint and for
that purpose, may deputize any department,
agency, official or group of officials to conduct such
investigation. 41 (Emphasis supplied)
Santos 48 are inapplicable to the present

circumstances. Respondents in the mentioned
cases are elective officials, unlike respondent here
who is an appointed official. Indeed, election
expresses the sovereign will of the people. 49
Under the principle of vox populi est suprema lex,
the re-election of a public official may, indeed,
supersede a pending administrative case. The
same cannot be said of a re-appointment to a noncareer position. There is no sovereign will of the
people to speak of when the BOR re-appointed
respondent Sojor to the post of university president.
Thus, CSC validly took cognizance of the

administrative complaints directly filed before the
regional office, concerning violations of civil service
rules against respondent. ADCIca
WHEREFORE, the petition is GRANTED. The

Decision of the Court of Appeals is REVERSED
and SET ASIDE. The assailed Resolutions of the
Civil Service Commission are REINSTATED.
IDcHCS
III. Academic freedom may not be

invoked when there are alleged
violations of civil service laws and
rules.
Certainly, academic institutions and personnel are
granted wide latitude of action under the principle of
academic
freedom.
Academic
freedom
encompasses the freedom to determine who may
teach, who may be taught, how it shall be taught,
and who may be admitted to study. 42 Following
that doctrine, this Court has recognized that
institutions of higher learning has the freedom to
decide for itself the best methods to achieve their
aims and objectives, free from outside coercion,
except when the welfare of the general public so
requires. 43 They have the independence to
determine who to accept to study in their school
and they cannot be compelled by mandamus to
enroll a student. 44
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, AustriaMartinez, Corona (I certify that J. Corona concurred
in the decision), Carpio-Morales, Azcuna, Tinga,
Chico-Nazario, Velasco, Jr., Nachura, Leonardo-de
Castro and Brion, JJ., concur.
Carpio, J., is on leave.
||| (Civil Service Commission v. Sojor, G.R. No.
168766, [May 22, 2008], 577 PHIL 52-72)
5. MERCADO VS. AMA 618 SCRA 218
(2010)
That principle, however, finds no application to the

facts of the present case. Contrary to the matters
traditionally held to be justified to be within the
bounds of academic freedom, the administrative
complaints filed against Sojor involve violations of
civil service rules. He is facing charges of nepotism,
dishonesty, falsification of official documents, grave
misconduct, and conduct prejudicial to the best
interest of the service. These are classified as
grave offenses under civil service rules, punishable
with suspension or even dismissal. 45 EScHDA
SECOND DIVISION
This Court has held that the guaranteed academic

freedom does not give an institution the unbridled
authority to perform acts without any statutory
basis. 46 For that reason, a school official, who is a
member of the civil service, may not be permitted to
commit violations of civil service rules under the
justification that he was free to do so under the
principle of academic freedom.
BRION, J p:
[G.R. No. 183572. April 13, 2010.]

YOLANDA M. MERCADO, CHARITO S. DE LEON,
DIANA R. LACHICA, MARGARITO M. ALBA,
JR.,and FELIX A. TONOG, petitioners,vs.AMA
COMPUTER COLLEGE-PARAAQUE CITY, INC.,
respondent.
DECISION
The petitioners Yolanda M. Mercado

(Mercado),Charito S. De Leon (De Leon),Diana R.
Lachica (Lachica),Margarito M. Alba, Jr. (Alba,
Jr.,),and Felix A. Tonog (Tonog),all former faculty
members of AMA Computer College-Paraaque
City, Inc. (AMACC) assail in this petition for
review on certiorari 1 the Court of Appeals' (CA)
decision of November 29, 2007 2 and its resolution
of June 20, 2008 3 that set aside the National
Labor Relations Commission's (NLRC) resolution
dated July 18, 2005. 4
THE FACTUAL ANTECEDENTS
The background facts are not disputed and are
summarized below.
AMACC is an educational institution engaged in
computer-based education in the country. One of
Lastly, We do not agree with respondent's

contention that his appointment to the position of
president of NORSU, despite the pending
administrative cases against him, served as a
condonation by the BOR of the alleged acts
imputed to him. The doctrine this Court laid down in
Salalima v. Guingona, Jr. 47 and Aguinaldo v.
28
AMACC's biggest schools in the country is its

branch at Paraaque City. The petitioners were
faculty members who started teaching at AMACC
on May 25, 1998. The petitioner Mercado was
engaged as a Professor 3, while petitioner Tonog
was engaged as an Assistant Professor 2. On the
other hand, petitioners De Leon, Lachica and Alba,
Jr., were all engaged as Instructor 1. 5 The
petitioners executed individual Teacher's Contracts
for each of the trimesters that they were engaged to
teach, with the following common stipulation: 6
1.POSITION. The TEACHER has agreed to accept
a non-tenured appointment to work in the College
of ...effective ...to ...or for the duration of the last
term that the TEACHER is given a teaching load
based on the assignment duly approved by the
DEAN/SAVP-COO. [Emphasis supplied]
petitioners claimed that their dismissal was illegal

because it was made in retaliation for their
complaint for monetary benefits and discriminatory
practices against AMACC. The petitioners also
contended that AMACC failed to give them
adequate notice; hence, their dismissal was
ineffectual. 12
AMACC contended in response that the petitioners
worked under a contracted term under a nontenured appointment and were still within the threeyear probationary period for teachers. Their
contracts were not renewed for the following term
because they failed to pass the Performance
Appraisal System for Teachers (PAST) while others
failed to comply with the other requirements for
regularization, promotion, or increase in salary. This
move, according to AMACC, was justified since the
school has to maintain its high academic standards.
13
The Labor Arbiter Ruling
On March 15, 2002, Labor Arbiter (LA) Florentino
R. Darlucio declared in his decision 14 that the
petitioners had been illegally dismissed, and
ordered AMACC to reinstate them to their former
positions without loss of seniority rights and to pay
them full backwages, attorney's fees and 13th
month pay. The LA ruled that Article 281 of the
Labor Code on probationary employment applied to
the case; that AMACC allowed the petitioners to
teach for the first semester of school year 2000200; that AMACC did not specify who among the
petitioners failed to pass the PAST and who among
them did not comply with the other requirements of
regularization, promotions or increase in salary;
and that the petitioners' dismissal could not be
sustained on the basis of AMACC's "vague and
general allegations" without substantial factual
basis. 15 Significantly, the LA found no
"discrimination in the adjustments for the salary
rate of the faculty members based on the
performance and other qualification which is an
exercise of management prerogative." 16 On this
basis, the LA paid no heed to the claims for salary
increases. DaESIC
The NLRC Ruling
On appeal, the NLRC in a Resolution dated July
18, 2005 17 denied AMACC's appeal for lack of
merit and affirmed in toto the LA's ruling. The
NLRC, however, observed that the applicable law is
Section 92 of the Manual of Regulations for Private
Schools (which mandates a probationary period of
nine consecutive trimesters of satisfactory service
for academic personnel in the tertiary level where
collegiate courses are offered on a trimester
basis),not Article 281 of the Labor Code (which
prescribes a probationary period of six months) as
the LA ruled. Despite this observation, the NLRC
affirmed the LA's finding of illegal dismissal since
the petitioners were terminated on the basis of
standards that were only introduced near the end of
their probationary period.
The NLRC ruled that the new screening guidelines
for the school year 2000-20001 cannot be imposed
on the petitioners and their employment contracts
since the new guidelines were not imposed when
For the school year 2000-2001, AMACC

implemented new faculty screening guidelines, set
forth in its Guidelines on the Implementation of
AMACC Faculty Plantilla. 7 Under the new
screening guidelines, teachers were to be hired or
maintained
based
on
extensive
teaching
experience, capability, potential, high academic
qualifications and research background. The
performance standards under the new screening
guidelines were also used to determine the present
faculty members' entitlement to salary increases.
The petitioners failed to obtain a passing rating
based on the performance standards; hence
AMACC did not give them any salary increase. 8
SAcaDE
Because of AMACC's action on the salary
increases, the petitioners filed a complaint with the
Arbitration Branch of the NLRC on July 25, 2000,
for underpayment of wages, non-payment of
overtime and overload compensation, 13th month
pay, and for discriminatory practices. 9
On September 7, 2000, the petitioners individually
received a memorandum from AMACC, through
Human Resources Supervisor Mary Grace Beronia,
informing them that with the expiration of their
contract to teach, their contract would no longer be
renewed. 10 The memorandum 11 entitled "Notice
of Non-Renewal of Contract" states in full:
In view of the expiration of your contract to teach
with AMACC-Paraaque, We wish to inform you
that your contract shall no longer be renewed
effective Thirty (30) days upon receipt of this notice.
We therefore would like to thank you for your
service and wish you good luck as you pursue your
career.
You are hereby instructed to report to the HRD for
further instruction. Please bear in mind that as per
company policy, you are required to accomplish
your clearance and turn-over all documents and
accountabilities to your immediate superior.
For your information and guidance.
The petitioners amended their labor arbitration
complaint to include the charge of illegal dismissal
against AMACC. In their Position Paper, the
29
the petitioners were first employed in 1998.

According to the NLRC, the imposition of the new
guidelines violates Section 6 (d) of Rule I, Book VI
of the Implementing Rules of the Labor Code,
which provides that "in all cases of probationary
employment, the employer shall make known to the
employee the standards under which he will qualify
as a regular employee at the time of his
engagement." Citing our ruling in Orient Express
Placement Philippines v. NLRC, 18 the NLRC
stressed that the rudiments of due process demand
that employees should be informed beforehand of
the conditions of their employment as well as the
basis for their advancement.
AMACC elevated the case to the CA via a petition
for certiorari under Rule 65 of the Rules of Court. It
charged that the NLRC committed grave abuse of
discretion in: (1) ruling that the petitioners were
illegally dismissed; (2) refusing to recognize and
give effect to the petitioner's valid term of
employment; (3) ruling that AMACC cannot apply
the performance standards generally applicable to
all faculty members; and (4) ordering the
petitioners' reinstatement and awarding them
backwages and attorney's fees.
The CA Ruling
In a decision issued on November 29, 2007, 19 the
CA granted AMACC's petition for certiorari and
dismissed the petitioners' complaint for illegal
dismissal.
The CA ruled that under the Manual for Regulations
for Private Schools, a teaching personnel in a
private educational institution (1) must be a full time
teacher; (2) must have rendered three consecutive
years of service; and (3) such service must be
satisfactory before he or she can acquire
permanent status.
The CA noted that the petitioners had not
completed three (3) consecutive years of service
(i.e., six regular semesters or nine consecutive
trimesters of satisfactory service) and were still
within their probationary period; their teaching stints
only covered a period of two (2) years and three (3)
months when AMACC decided not to renew their
contracts on September 7, 2000. AEDCHc
The CA effectively found reasonable basis for
AMACC not to renew the petitioners' contracts. To
the CA, the petitioners were not actually dismissed;
their respective contracts merely expired and were
no longer renewed by AMACC because they failed
to satisfy the school's standards for the school year
2000-2001 that measured their fitness and aptitude
to teach as regular faculty members. The CA
emphasized that in the absence of any evidence of
bad faith on AMACC's part, the court would not
disturb or nullify its discretion to set standards and
to select for regularization only the teachers who
qualify, based on reasonable and nondiscriminatory guidelines.
The CA disagreed with the NLRC's ruling that the
new guidelines for the school year 2000-20001
could not be imposed on the petitioners and their
employment contracts. The appellate court opined
that AMACC has the inherent right to upgrade the
quality of computer education it offers to the public;
part of this pursuit is the implementation of

continuing evaluation and screening of its faculty
members for academic excellence. The CA noted
that the nature of education AMACC offers
demands that the school constantly adopt
progressive performance standards for its faculty to
ensure that they keep pace with the rapid
developments in the field of information technology.
Finally, the CA found that the petitioners were hired
on a non-tenured basis and for a fixed and
predetermined term based on the Teaching
Contract exemplified by the contract between the
petitioner Lachica and AMACC. The CA ruled that
the non-renewal of the petitioners' teaching
contracts is sanctioned by the doctrine laid down in
Brent School, Inc. v. Zamora 20 where the Court
recognized the validity of contracts providing for
fixed-period employment.
THE PETITION
The petitioners cite the following errors in the CA
decision: 21
1) The CA gravely erred in reversing the LA and
NLRC illegal dismissal rulings; and
2) The CA gravely erred in not ordering their
reinstatement with full, backwages.
The petitioners submit that the CA should not have
disturbed the findings of the LA and the NLRC that
they were illegally dismissed; instead, the CA
should have accorded great respect, if not finality,
to the findings of these specialized bodies as these
findings were supported by evidence on record.
Citing our ruling in Soriano v. National Labor
Relations Commission, 22 the petitioners contend
that in certiorari proceedings under Rule 65 of the
Rules of Court, the CA does not assess and weigh
the sufficiency of evidence upon which the Labor
Arbiter and the NLRC based their conclusions.
They submit that the CA erred when it substituted
its judgment for that of the Labor Arbiter and the
NLRC who were the "triers of facts" who had the
opportunity to review the evidence extensively.
On the merits, the petitioners argue that the
applicable law on probationary employment, as
explained by the LA, is Article 281 of the Labor
Code which mandates a period of six (6) months as
the maximum duration of the probationary period
unless there is a stipulation to the contrary; that the
CA should not have disturbed the LA's conclusion
that the AMACC failed to support its allegation that
they did not qualify under the new guidelines
adopted for the school year 2000-2001; and that
they were illegally dismissed; their employment was
terminated based on standards that were not made
known to them at the time of their engagement. On
the whole, the petitioners argue that the LA and the
NLRC committed no grave abuse of discretion that
the CA can validly cite. aIHCSA
THE CASE FOR THE RESPONDENT
In their Comment, 23 AMACC notes that the
petitioners raised no substantial argument in
support of their petition and that the CA correctly
found that the petitioners were hired on a nontenured basis and for a fixed or predetermined
30
term. AMACC stresses that the CA was correct in

concluding that no actual dismissal transpired; it
simply did not renew the petitioners' respective
employment contracts because of their poor
performance and failure to satisfy the school's
standards.
AMACC also asserts that the petitioners knew very
well that the applicable standards would be revised
and updated from time to time given the nature of
the teaching profession. The petitioners also knew
at the time of their engagement that they must
comply with the school's regularization policies as
stated in the Faculty Manual. Specifically, they must
obtain a passing rating on the Performance
Appraisal for Teachers (PAST) the primary
instrument to measure the performance of faculty
members.
Since the petitioners were not actually dismissed,
AMACC submits that the CA correctly ruled that
they are not entitled to reinstatement, full
backwages and attorney's fees.
THE COURT'S RULING
We find the petition meritorious.
The CA's Review of Factual Findings under Rule
65
We agree with the petitioners that, as a rule in
certiorari proceedings under Rule 65 of the Rules of
Court, the CA does not assess and weigh each
piece of evidence introduced in the case. The CA
only examines the factual findings of the NLRC to
determine whether or not the conclusions are
supported by substantial evidence whose absence
points to grave abuse of discretion amounting to
lack or excess of jurisdiction. 24 In the recent case
of Protacio v. Laya Mananghaya & Co., 25 we
emphasized that:
As a general rule, in certiorari proceedings under
Rule 65 of the Rules of Court, the appellate court
does not assess and weigh the sufficiency of
evidence upon which the Labor Arbiter and the
NLRC based their conclusion. The query in this
proceeding is limited to the determination of
whether or not the NLRC acted without or in excess
of its jurisdiction or with grave abuse of discretion in
rendering its decision. However, as an exception,
the appellate court may examine and measure the
factual findings of the NLRC if the same are not
supported by substantial evidence. The Court has
not hesitated to affirm the appellate court's
reversals of the decisions of labor tribunals if they
are not supported by substantial evidence.
[Emphasis supplied]
In a Rule 45 review, we consider the correctness of

the assailed CA decision,in contrast with the review
for jurisdictional error that we undertake under Rule
65. Furthermore, Rule 45 limits us to the review of
questions of law raised against the assailed CA
decision. In ruling for legal correctness, we have to
view the CA decision in the same context that the
petition for certiorari it ruled upon was presented to
it; we have to examine the CA decision from the
prism of whether it correctly determined the
presence or absence of grave abuse of discretion
in the NLRC decision before it, not on the basis of
whether the NLRC decision on the merits of the
case was correct.In other words, we have to be
keenly aware that the CA undertook a Rule 65
review, not a review on appeal, of the NLRC
decision challenged before it. This is the approach
that should be basic in a Rule 45 review of a CA
ruling in a labor case. In question form, the
question to ask is: Did the CA correctly determine
whether the NLRC committed grave abuse of
discretion in ruling on the case?
Following this approach, our task is to determine
whether the CA correctly found that the NLRC
committed grave abuse of discretion in ruling that
the petitioners were illegally dismissed.
Legal Environment in the Employment of Teachers
a. Rule on Employment on Probationary Status
A reality we have to face in the consideration of
employment on probationary status of teaching
personnel is that they are not governed purely by
the Labor Code. The Labor Code is supplemented
with respect to the period of probation by special
rules found in the Manual of Regulations for Private
Schools. 27 On the matter of probationary period,
Section 92 of these regulations provides:
Section 92. Probationary Period. Subject in all
instances to compliance with the Department and
school requirements,the probationary period for
academic personnel shall not be more than three
(3) consecutive years of satisfactory service for
those in the elementary and secondary levels, six
(6) consecutive regular semesters of satisfactory
service for those in the tertiary level, and nine (9)
consecutive trimesters of satisfactory service for
those in the tertiary level where collegiate courses
are offered on a trimester basis.[Emphasis
supplied]
The CA pointed this out in its decision (as the
NLRC also did),and we confirm the correctness of
this conclusion. Other than on the period, the
following quoted portion of Article 281 of the Labor
Code still fully applies:
...The services of an employee who has been
engaged on a probationary basis may be
terminated for a just cause when he fails to qualify
as a regular employee in accordance with
reasonable standards made known by the
employer to the employee at the time of his
engagement.An employee who is allowed to work
after a probationary period shall be considered a
regular employee. [Emphasis supplied]
As discussed below, our review of the records and

of the CA decision shows that the CA erred in
recognizing that grave abuse of discretion attended
the NLRC's conclusion that the petitioners were
illegally dismissed. Consistent with this conclusion,
the evidence on record show that AMACC failed to
discharge its burden of proving by substantial
evidence the just cause for the non-renewal of the
petitioners' contracts. HDTSIE
In Montoya v. Transmed Manila Corporation, 26 we
laid down our basic approach in the review of Rule
65 decisions of the CA in labor cases, as follows:
31
b. Fixed-period Employment
The use of employment for fixed periods during the
teachers' probationary period is likewise an
accepted practice in the teaching profession. We
mentioned this in passing in Magis Young
Achievers' Learning Center v. Adelaida P. Manalo,
28 albeit a case that involved elementary, not
tertiary, education, and hence spoke of a school
year rather than a semester or a trimester. We
noted in this case: aAHTDS
The common practice is for the employer and the
teacher to enter into a contract, effective for one
school year. At the end of the school year, the
employer has the option not to renew the contract,
particularly considering the teacher's performance.
If the contract is not renewed, the employment
relationship terminates. If the contract is renewed,
usually for another school year, the probationary
employment continues. Again, at the end of that
period, the parties may opt to renew or not to renew
the contract. If renewed, this second renewal of the
contract for another school year would then be the
last year since it would be the third school year
of probationary employment. At the end of this
third year, the employer may now decide whether to
extend a permanent appointment to the employee,
primarily on the basis of the employee having met
the reasonable standards of competence and
efficiency set by the employer. For the entire
duration of this three-year period, the teacher
remains under probation. Upon the expiration of his
contract of employment, being simply on probation,
he cannot automatically claim security of tenure
and compel the employer to renew his employment
contract.It is when the yearly contract is renewed
for the third time that Section 93 of the Manual
becomes operative, and the teacher then is entitled
to regular or permanent employment status.
The institutional academic freedom includes the

right of the school or college to decide and adopt its
aims and objectives, and to determine how these
objections can best be attained, free from outside
coercion or interference, save possibly when the
overriding public welfare calls for some restraint.
The essential freedoms subsumed in the term
"academic freedom" encompass the freedom of the
school or college to determine for itself: (1) who
may teach; (2) who may be taught; (3) how lessons
shall be taught; and (4) who may be admitted to
study. 31
AMACC's right to academic freedom is particularly
important in the present case, because of the new
screening guidelines for AMACC faculty put in
place for the school year 2000-2001. We agree with
the CA that AMACC has the inherent right to
establish high standards of competency and
efficiency for its faculty members in order to
achieve and maintain academic excellence. The
school's prerogative to provide standards for its
teachers and to determine whether or not these
standards have been met is in accordance with
academic freedom that gives the educational
institution the right to choose who should teach. 32
In Pea v. National Labor Relations Commission,
33 we emphasized: HDacIT
It is the prerogative of the school to set high
standards of efficiency for its teachers since quality
education is a mandate of the Constitution. As long
as the standards fixed are reasonable and not
arbitrary, courts are not at liberty to set them aside.
Schools cannot be required to adopt standards
which barely satisfy criteria set for government
recognition.
The same academic freedom grants the school the
autonomy to decide for itself the terms and
conditions for hiring its teacher, subject of course to
the overarching limitations under the Labor Code.
Academic freedom, too, is not the only legal basis
for AMACC's issuance of screening guidelines. The
authority to hire is likewise covered and protected
by its management prerogative the right of an
employer to regulate all aspects of employment,
such as hiring, the freedom to prescribe work
assignments, working methods, process to be
followed,
regulation
regarding
transfer
of
employees, supervision of their work, lay-off and
discipline, and dismissal and recall of workers. 34
Thus, AMACC has every right to determine for itself
that it shall use fixed-term employment contracts as
its medium for hiring its teachers. It also acted
within the terms of the Manual of Regulations for
Private Schools when it recognized the petitioners
to be merely on probationary status up to a
maximum of nine trimesters.
The Conflict: Probationary Status
and Fixed-term Employment
The existence of the term-to-term contracts
covering the petitioners' employment is not
disputed, nor is it disputed that they were on
probationary status not permanent or regular
status from the time they were employed on May
25, 1998 and until the expiration of their Teaching
It is important that the contract of probationary

employment specify the period or term of its
effectivity. The failure to stipulate its precise
duration could lead to the inference that the
contract is binding for the full three-year
probationary period.
We have long settled the validity of a fixed-term
contract in the case Brent School, Inc. v. Zamora
29 that AMACC cited. Significantly, Brent happened
in a school setting. Care should be taken, however,
in reading Brent in the context of this case as Brent
did not involve any probationary employment issue;
it dealt purely and simply with the validity of a fixedterm employment under the terms of the Labor
Code, then newly issued and which does not
expressly contain a provision on fixed-term
employment.
c. Academic and Management Prerogative
Last but not the least factor in the academic world,
is that a school enjoys academic freedom a
guarantee that enjoys protection from the
Constitution no less. Section 5 (2) Article XIV of the
Constitution guarantees all institutions of higher
learning academic freedom. 30
32
Contracts on September 7, 2000. As the CA

correctly found, their teaching stints only covered a
period of at least seven (7) consecutive trimesters
or two (2) years and three (3) months of service.
This case, however, brings to the fore the essential
question of which, between the two factors affecting
employment, should prevail given AMACC's
position that the teachers contracts expired and it
had the right not to renew them.In other words,
should the teachers' probationary status be
disregarded simply because the contracts were
fixed-term?
The provision on employment on probationary
status under the Labor Code 35 is a primary
example of the fine balancing of interests between
labor and management that the Code has
institutionalized pursuant to the underlying intent of
the Constitution. 36
On the one hand, employment on probationary
status affords management the chance to fully
scrutinize the true worth of hired personnel before
the full force of the security of tenure guarantee of
the Constitution comes into play. 37 Based on the
standards set at the start of the probationary
period, management is given the widest opportunity
during the probationary period to reject hirees who
fail to meet its own adopted but reasonable
standards. 38 These standards, together with the
just 39 and authorized causes 40 for termination of
employment the Labor Code expressly provides,
are the grounds available to terminate the
employment of a teacher on probationary status.
For example, the school may impose reasonably
stricter attendance or report compliance records on
teachers on probation, and reject a probationary
teacher for failing in this regard, although the same
attendance or compliance record may not be
required for a teacher already on permanent status.
At the same time, the same just and authorizes
causes for dismissal under the Labor Code apply to
probationary teachers, so that they may be the first
to be laid-off if the school does not have enough
students for a given semester or trimester.
Termination of employment on this basis is an
authorized cause under the Labor Code. 41
DCIAST
Labor, for its part, is given the protection during the
probationary period of knowing the company
standards the new hires have to meet during the
probationary period, and to be judged on the basis
of these standards, aside from the usual standards
applicable to employees after they achieve
permanent status. Under the terms of the Labor
Code, these standards should be made known to
the teachers on probationary status at the start of
their probationary period, or at the very least under
the circumstances of the present case, at the start
of the semester or the trimester during which the
probationary standards are to be applied. Of critical
importance in invoking a failure to meet the
probationary standards, is that the school should
show as a matter of due process how these
standards have been applied. This is effectively the
second notice in a dismissal situation that the law
requires as a due process guarantee supporting the
security of tenure provision, 42 and is in

furtherance, too, of the basic rule in employee
dismissal that the employer carries the burden of
justifying a dismissal. 43 These rules ensure
compliance with the limited security of tenure
guarantee the law extends to probationary
employees. 44
When fixed-term employment is brought into play
under the above probationary period rules, the
situation as in the present case may at first
blush look muddled as fixed-term employment is in
itself a valid employment mode under Philippine
law and jurisprudence. 45 The conflict, however, is
more apparent than real when the respective
nature of fixed-term employment and of
employment on probationary status are closely
examined.
The fixed-term character of employment essentially
refers to the period agreed upon between the
employer and the employee; employment exists
only for the duration of the term and ends on its
own when the term expires. In a sense,
employment on probationary status also refers to a
period because of the technical meaning
"probation" carries in Philippine labor law a
maximum period of six months, or in the academe,
a period of three years for those engaged in
teaching jobs. Their similarity ends there, however,
because of the overriding meaning that being "on
probation" connotes, i.e., a process of testing and
observing the character or abilities of a person who
is new to a role or job. 46
Understood in the above sense, the essentially
protective character of probationary status for
management can readily be appreciated. But this
same protective character gives rise to the
countervailing but equally protective rule that the
probationary period can only last for a specific
maximum period and under reasonable, well-laid
and properly communicated standards. Otherwise
stated, within the period of the probation, any
employer move based on the probationary
standards and affecting the continuity of the
employment must strictly conform to the
probationary rules.
Under the given facts where the school year is
divided into trimesters, the school apparently
utilizes its fixed-term contracts as a convenient
arrangement dictated by the trimestral system and
not because the workplace parties really intended
to limit the period of their relationship to any fixed
term and to finish this relationship at the end of that
term. If we pierce the veil, so to speak, of the
parties' so-called fixed-term employment contracts,
what undeniably comes out at the core is a fixedterm contract conveniently used by the school to
define and regulate its relations with its teachers
during their probationary period. AaCEDS
To be sure, nothing is illegitimate in defining the
school-teacher relationship in this manner. The
school, however, cannot forget that its system of
fixed-term contract is a system that operates during
the probationary period and for this reason is
subject to the terms of Article 281 of the Labor
Code. Unless this reconciliation is made, the
33
requirements of this Article on probationary status

would be fully negated as the school may freely
choose not to renew contracts simply because their
terms have expired. The inevitable effect of course
is to wreck the scheme that the Constitution and
the Labor Code established to balance
relationships between labor and management.
Given the clear constitutional and statutory intents,
we cannot but conclude that in a situation where
the probationary status overlaps with a fixed-term
contract not specifically used for the fixed term it
offers, Article 281 should assume primacy and the
fixed-period character of the contract must give
way. This conclusion is immeasurably strengthened
by the petitioners' and the AMACC's hardly
concealed expectation that the employment on
probation could lead to permanent status, and that
the contracts are renewable unless the petitioners
fail to pass the school's standards.
To highlight what we mean by a fixed-term contract
specifically used for the fixed term it offers, a
replacement teacher, for example, may be
contracted for a period of one year to temporarily
take the place of a permanent teacher on a oneyear study leave. The expiration of the replacement
teacher's
contracted
term,
under
the
circumstances, leads to no probationary status
implications as she was never employed on
probationary basis; her employment is for a specific
purpose with particular focus on the term and with
every intent to end her teaching relationship with
the school upon expiration of this term.
If the school were to apply the probationary
standards (as in fact it says it did in the present
case),these standards must not only be reasonable
but must have also been communicated to the
teachers at the start of the probationary period, or
at the very least, at the start of the period when
they were to be applied. These terms, in addition to
those expressly provided by the Labor Code, would
serve as the just cause for the termination of the
probationary contract. As explained above, the
details of this finding of just cause must be
communicated to the affected teachers as a matter
of due process.
AMACC, by its submissions, admits that it did not
renew the petitioners' contracts because they failed
to pass the Performance Appraisal System for
Teachers (PAST) and other requirements for
regularization that the school undertakes to
maintain its high academic standards. 47 The
evidence is unclear on the exact terms of the
standards, although the school also admits that
these were standards under the Guidelines on the
Implementation of AMACC Faculty Plantilla put in
place at the start of school year 2000-2001.
While we can grant that the standards were duly
communicated to the petitioners and could be
applied beginning the 1st trimester of the school
year 2000-2001, glaring and very basic gaps in the
school's evidence still exist. The exact terms of the
standards were never introduced as evidence;
neither does the evidence show how these
standards were applied to the petitioners. 48
Without these pieces of evidence (effectively, the
finding of just cause for the non-renewal of the

petitioners' contracts), we have nothing to consider
and pass upon as valid or invalid for each of the
petitioners. Inevitably, the non-renewal (or
effectively, the termination of employment of
employees on probationary status) lacks the
supporting finding of just cause that the law
requires and, hence, is illegal. caIETS
In this light, the CA decision should be reversed.
Thus, the LA's decision, affirmed as to the results
by the NLRC, should stand as the decision to be
enforced, appropriately re-computed to consider
the period of appeal and review of the case up to
our level.
Given the period that has lapsed and the inevitable
change of circumstances that must have taken
place in the interim in the academic world and at
AMACC, which changes inevitably affect current
school operations, we hold that in lieu of
reinstatement the petitioners should be paid
separation pay computed on a trimestral basis from
the time of separation from service up to the end of
the complete trimester preceding the finality of this
Decision. 49 The separation pay shall be in addition
to the other awards, properly recomputed, that the
LA originally decreed.
WHEREFORE,premises considered, we hereby
GRANT the petition, and, consequently, REVERSE
and SET ASIDE the Decision of the Court of
Appeals dated November 29, 2007 and its
Resolution dated June 20, 2008 in CA-G.R. SP No.
96599. The Labor Arbiter's decision of March 15,
2002, subsequently affirmed as to the results by the
National Labor Relations Commission, stands and
should be enforced with appropriate re-computation
to take into account the date of the finality of this
Decision.
In lieu of reinstatement, AMA Computer CollegeParaaque City, Inc. is hereby DIRECTED to pay
separation pay computed on a trimestral basis from
the time of separation from service up to the end of
the complete trimester preceding the finality of this
Decision. For greater certainty, the petitioners are
entitled to:
(a) backwages and 13th month pay computed from
September 7, 2000 (the date AMA Computer
College-Paraaque City, Inc. illegally dismissed the
petitioners) up to the finality of this Decision;
(b) monthly honoraria (if applicable) computed from
September 7, 2000 (the time of separation from
service) up to the finality of this Decision; and
(c) separation pay on a trimestral basis from
September 7, 2000 (the time of separation from
service) up to the end of the complete trimester
preceding the finality of this Decision.
The labor arbiter is hereby ORDERED to make
another re-computation according to the above
directives. No costs.
SO ORDERED.
Carpio, Del Castillo, Perez and Mendoza, * JJ.,
concur.
34
||| (Mercado v. AMA Computer College-Paraaque

City, Inc., G.R. No. 183572, [April 13, 2010], 632
PHIL 228-261)
Upon receipt of the petitioners' letters, Dean Baylon

wrote a series of memos addressed to Professor
Sanares, questioning the propriety of the thesis
topics with the college's graduate degree program.
He subsequently disapproved the composition of
the petitioners' thesis committees and their
tentative thesis topics. According to Dean Baylon,
the petitioners' thesis titles connote a historical and
social dimension study which is not appropriate for
the petitioners' chosen master's degrees. Dean
Baylon thereafter ordered the petitioners to submit
a two-page proposal containing an outline of their
tentative thesis titles, and informed them that he is
forming an ad hoc committee that would take over
the role of the adviser and of the thesis committees.
6. CALAWAG VS. UPVISAYAS 703 SCRA

373 (2013)
SECOND DIVISION
[G.R. No. 207412. August 7, 2013.]
FLORD NICSON CALAWAG, petitioner, vs.
UNIVERSITY OF THE PHILIPPINES VISAYAS and
DEAN CARLOS C. BAYLON, respondents.
[G.R. No. 207542. August 7, 2013.]
The petitioners thus filed a petition for certiorari and

mandamus before the RTC, asking it to order Dean
Baylon to approve and constitute the petitioners'
thesis committees and approve their thesis titles.
They also asked that the RTC issue a writ of
preliminary mandatory injunction against Dean
Baylon, and order him to perform such acts while
the suit was pending.
MICAH P. ESPIA, JOSE MARIE F. NASALGA and

CHE CHE B. SALCEPUEDES, petitioners, vs. DR.
CARLOS C. BAYLON, DR. MINDA J. FORMACION
and DR. EMERLINDA ROMAN (to be substituted
by Alfredo E. Pascual, being the new UP
President), University of the Philippines Board of
Regents, respondents.
RESOLUTION
The RTC granted a writ of preliminary mandatory

injunction, which Dean Baylon allegedly refused to
follow. UP Visayas eventually assailed this order
before the CA through a Rule 65 petition for
certiorari, with prayer for a temporary restraining
order (TRO). TSaEcH
BRION, J p:
This case involves the consolidated petitions of
petitioner Flord Nicson Calawag in G.R. No.
207412 and petitioners Micah P. Espia, Jose Marie
F. Nasalga and Che Che B. Salcepuedes in G.R.
No. 207542 (hereinafter collectively known as
petitioners), both assailing the decision 1 dated
August 9, 2012 of the Court of Appeals (CA) in CAG.R. CEB-SP No. 05079. The CA annulled the
Order 2 of the Regional Trial Court (RTC) of
Guimbal, Iloilo, Branch 67, granting a writ of
preliminary
mandatory
injunction
against
respondent Dean Carlos Baylon of the University of
the Philippines Visayas (UP Visayas).
The CA's Ruling

The CA issued a TRO against the implementation
of the RTC's order, holding that the petitioners had
no clear right to compel Dean Baylon to approve
the composition of their thesis committees as a
matter of course. As the college dean, Dean Baylon
exercises supervisory authority in all academic
matters affecting the college. According to the CA,
the petitioners' reliance on Article 51 of the
Graduate Program Manual of UP Visayas is
misplaced. Article 51 provides:
The petitioners enrolled in the Master of Science in

Fisheries Biology at UP Visayas under a
scholarship from the Department of Science and
Technology-Philippine Council for Aquatic and
Marine Research and Development. They finished
their first year of study with good grades, and thus
were eligible to start their thesis in the first
semester of their second year. The petitioners then
enrolled in the thesis program, drafted their
tentative thesis titles, and obtained the consent of
Dr. Rex Balea to be their thesis adviser, as well as
the other faculty members' consent to constitute
their respective thesis committees. These details
were enclosed in the letters the petitioners sent to
Dean Baylon, asking him to approve the
composition of their thesis committees. The letter
contained the thesis committee members and the
thesis adviser's approval of their titles, as well as
the approval of Professor Roman Sanares, the
director of the Institute of Marine Fisheries and
Oceanology.
Art. 51. The composition of the thesis committee

shall be approved by the dean of the college/school
upon the recommendation of the chairperson of the
major department/division/institute. The GPO shall
be informed of the composition of the thesis
committee and/or any change thereof. 3
Despite the mandatory language provided for
composing the thesis committee under Article 51 of
the Graduate Program Manual of UP Visayas, the
CA construed it to mean that the Dean's approval is
necessary prior to the composition of a thesis
committee.
Lastly, the CA held that the case presents issues
that are purely academic in character, which are
outside the court's jurisdiction. It also noted that
Dean Baylon has been accommodating of the
petitioners, and that the requirements he imposed
were meant to assist them to formulate a proper
thesis title and graduate on time.
35
mandatory injunction that the RTC issued against

Dean Baylon. Thus, there could be no basis for the
Court's exercise of its discretionary power to review
the CA's decision.
The Petitions for Review on Certiorari

In G.R. No. 207412, Calawag argues that the CA's
decision should be set aside for the following
reasons:
"To be entitled to a writ of preliminary injunction, . . .

the petitioners must establish the following
requisites: (a) the invasion of the right sought to be
protected is material and substantial; (b) the right of
the complainant is clear and unmistakable; and (c)
there is an urgent and permanent necessity for the
writ to prevent serious damage. Since a preliminary
mandatory injunction commands the performance
of an act, it does not preserve the status quo and is
thus more cautiously regarded than a mere
prohibitive injunction. Accordingly, the issuance of a
writ of preliminary mandatory injunction [presents a
fourth requirement: it] is justified only in a clear
case, free from doubt or dispute. When the
complainant's right is thus doubtful or disputed, he
does not have a clear legal right and, therefore, the
issuance of injunctive relief is improper." 6
First, Calawag was entitled to the injunction prayed

for, as he has clear rights under the law which were
violated by Dean Baylon's actions. These are the
right to education, the right to due process, and the
right to equal protection under the law. According to
Calawag, Dean Baylon violated his right to due
process when he added to and changed the
requirements for the constitution of his thesis
committee, without prior publication of the change
in rules. Calawag's right to equal protection of the
law, on the other hand, was allegedly violated
because only students like him, who chose Dr.
Balea for their thesis adviser, were subjected to
the additional requirements imposed by the dean,
while the other students' thesis committees were
formed without these impositions. Hence, Calawag
and the three other petitioners in G.R. No. 207542
were unduly discriminated against.
The CA did not err in ruling that the petitioners

failed to show a clear and unmistakable right that
needs the protection of a preliminary mandatory
injunction. We support the CA's conclusion that the
dean has the discretion to approve or disapprove
the composition of a thesis committee, and, hence,
the petitioners had no right for an automatic
approval and composition of their thesis
committees.
Second, a reading of Executive Order No. 628, s.

1980, 4 and Republic Act No. 9500 5 shows that
the college dean's functions are merely
administrative, and, hence, the CA erred in its
construction of Article 51 of the Graduate Program
Manual of UP Visayas, as well as its proclamation
that the college dean has supervisory authority over
academic matters in the college.
Calawag's citation of Executive Order No. 628, s.

1980 and Republic Act No. 9500 to show that the
dean of a college exercises only administrative
functions and, hence, has no ascendancy over the
college's academic matters, has no legal ground to
stand on. Neither law provides or supports such
conclusion, as neither specifies the role and
responsibilities of a college dean. The functions
and duties of a college dean are outlined in the
university's Faculty Manual, which details the rules
and regulations governing the university's
administration. Section 11.8.2, paragraph b of the
Faculty Manual enumerates the powers and
responsibilities of a college dean, which include the
power to approve the composition of a thesis
committee, to wit:
On the other hand, in G.R. No. 207542, petitioners

Espia, Nasalga and Salcepuedes argue that the
CA's decision should be set aside for the following
reasons:
First, the Graduate Program Manual of UP Visayas
and the Guidelines for the Master of Science in
Fisheries Program are clear in providing that Dean
Baylon has a formal duty to approve the
composition of the petitioners' thesis committees
upon the latter's compliance with several
requirements. Thus, when the petitioners complied
with these requirements and Dean Baylon still
refused to approve the composition of their thesis
committees, the petitioners had a right to have him
compelled to perform his duty.
11.8.2 Administration
Second, Dean Baylon cannot arbitrarily change and
alter the manual and the guidelines, and cannot
use academic freedom as subterfuge for not
performing his duties. HAaDTE
xxx xxx xxx

b. Dean/Director of UP System or UP Dilimanbased Programs *
Third, the thesis adviser and the thesis committees,

in consultations with the students, have the right to
choose the thesis topics, and not the dean.
The Dean/Director shall be responsible for the

planning and implementation of the graduate
programs. In particular, the Dean/Director shall
exercise the following powers and responsibilities
based on the recommendations forwarded to
him/her, through channels:
The Court's Ruling

Having reviewed the arguments presented by the
petitioners and the records they have attached to
the petitions, we find that the CA did not commit an
error in judgment in setting aside the preliminary
xxx xxx xxx

36
part of the reasonable academic requirements a

person desiring to complete a course of study
would have to comply with.
Approve the composition of the Thesis,

Dissertation or Special Project ** Committees and
Master's or doctoral examination/oral defense
panel for each student[.] 7 (emphases and italics
ours)
By necessary implication, 8 the dean's power to
approve includes the power to disapprove the
composition of a thesis committee. Thus, under the
UP System's faculty manual, the dean has
complete discretion in approving or disapproving
the composition of a thesis committee. Harmonizing
this provision with the Graduate Program Manual of
UP Visayas, and the Guidelines for the Master of
Science in Fisheries Program, we agree with the
CA's interpretation that the thesis committee's
composition needs the approval of the dean after
the students have complied with the requisites
provided in Article 51 of the Graduate Program
Manual and Section IX of the Guidelines for the
Master of Science in Fisheries Program. 9 HDIaST
WHEREFORE, the Court resolves to DENY giving

due course to the petitions in G.R. No. 207412 and
G.R. No. 207542.
SO ORDERED. SEACTH
Carpio, Del Castillo, Perez and Perlas-Bernabe,
JJ., concur.
||| (Calawag v. University of the Philippines Visayas,
G.R. No. 207412, 207542 (Resolution), [August 7,
2013])
INDIVIDUAL RIGHTS
I.
Anent the petitioners' argument that Dean Baylon

acted arbitrarily in imposing additional requirements
for the composition of the thesis committee, which
according to Calawag violated their right to due
process, we hold that the dean's authority to
approve or disapprove the composition of a thesis
committee includes this discretion. We also note
the CA's finding that these additional requirements
were meant to assist the petitioners in formulating a
thesis title that is in line with the college's master of
fisheries program. Absent any finding of grave
abuse of discretion, we cannot interfere with the
exercise of the dean's prerogative without
encroaching on the college's academic freedom.
DUE PROCESS AND EQUAL PROTECTION

AS LIMITATIONS ON POLICE POWER,
EMINENT DOMAIN AND TAXATION
A. Fundamental Principles on Constitutional Law
and the Bill of Rights
1. MANILA PRINCE HOTEL VS. GSIS 267
SCRA 408 (1997)
EN BANC
[G.R. No. 122156. February 3, 1997.]
MANILA
PRINCE
HOTEL,
petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM,
MANILA HOTEL CORPORATION, COMMITTEE
ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT
CORPORATE
COUNSEL,
respondents.
Verily, the academic freedom accorded to

institutions of higher learning gives them the right to
decide for themselves their aims and objectives
and how best to attain them. 10 They are given the
exclusive discretion to determine who can and
cannot study in them, as well as to whom they can
confer the honor and distinction of being their
graduates. 11 This necessarily includes the
prerogative
to
establish
requirements
for
graduation, such as the completion of a thesis, and
the manner by which this shall be accomplished by
their students. The courts may not interfere with
their exercise of discretion unless there is a clear
showing that they have arbitrarily and capriciously
exercised their judgment. 12
SYLLABUS
1. POLITICAL LAW; CONSTITUTION; DEFINED.
A constitution is a system of fundamental laws
for the governance and administration of a nation. It
is supreme, imperious, absolute and unalterable
except by the authority from which it emanates. It
has been defined as the fundamental and
paramount law of the nation. It prescribes the
permanent framework of a system of government,
assigns to the different departments their
respective powers and duties, and establishes
certain fixed principles on which government is
founded. The fundamental conception in other
words is that it is a supreme law to which all other
laws must conform and in accordance with which
all private rights must be determined and all public
authority administered.
Lastly, the right to education invoked by Calawag

cannot be made the basis for issuing a writ of
preliminary mandatory injunction. In Department of
Education, Culture and Sports v. San Diego, 13 we
held that the right to education is not absolute.
Section 5 (e), Article XIV of the Constitution
provides that "[e]very citizen has a right to select a
profession or course of study, subject to fair,
reasonable, and equitable admission and academic
requirements." The thesis requirement and the
compliance with the procedures leading to it, are
2. ID.; ID.; DEEMED WRITTEN IN EVERY

STATUTE AND CONTRACT. Under the doctrine
of constitutional supremacy, if a law or contract
violates any norm of the constitution that law or
contract whether promulgated by the legislative or
37
by the executive branch or entered into by private

persons for private purposes is null and void and
without any force and effect. Thus, since the
Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in
every statute and contract. Adhering to the doctrine
of
constitutional
supremacy,
the
subject
constitutional provision is, as it should be, impliedly
written in the bidding rules issued by respondent
GSIS, lest the bidding rules be nullified for being
violative of the Constitution. It is a basic principle in
constitutional law that all laws and contracts must
conform with the fundamental law of the land.
Those which violate the Constitution lose their
reason for being.
enact measures to encourage the formation and

operation of enterprises fully owned by Filipinos, as
in the first paragraph, and the State still needs
legislation to regulate and exercise authority over
foreign investments within its national jurisdiction,
as in the third paragraph, then a fortiori, by the
same logic, the second paragraph can only be selfexecuting as it does not by its language require any
legislation in order to give preference to qualified
Filipinos in the grant of rights, privileges and
concessions covering the national economy and
patrimony. A constitutional provision may be selfexecuting in one part and non-self-executing in
another.
6. ID.; ID.; NATIONAL PATRIMONY; PROVISION
ON PREFERENCE TO QUALIFIED FILIPINOS,
SELF-EXECUTING. Sec. 10, second par., Art.
XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which
needs no further guidelines or implementing laws or
rules for its enforcement. From its very words the
provision does not require any legislation to put it in
operation. It is per se judicially enforceable. When
our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering
national economy and patrimony, the State shall
give preference to qualified Filipinos, it means just
that qualified Filipinos shall be preferred. And
when our Constitution declares that a right exists in
certain specified circumstances an action may be
maintained to enforce such right notwithstanding
the absence of any legislation on the subject;
consequently, if there is no statute especially
enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and
puissance and from which all legislations must take
their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
3. ID.; ID.; CONSIDERED SELF-EXECUTING

RATHER THAN NON-SELF-EXECUTING. In
case of doubt, the Constitution should be
considered self-executing rather than non-selfexecuting . . . Unless the contrary is clearly
intended, the provisions of the Constitution should
be considered self-executing, as a contrary rule
would give the legislature discretion to determine
when, or whether, they shall be effective. These
provisions would be subordinated to the will of the
lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed
implementing
statute.
(Cruz,
Isagani
A.,
Constitutional Law, 1993 ed., pp. 8-10)
4. ID.; ID.; SELF-EXECUTING PROVISIONS;
LEGISLATURE
NOT
PRECLUDED
FROM
ENACTING LAWS ENFORCING PROVISIONS.
Quite apparently, Sec. 10, second par., of Art. XII is
couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes
of style. But, certainly, the legislature is not
precluded from enacting further laws to enforce the
constitutional provision so long as the contemplated
statute squares with the Constitution. Minor details
may be left to the legislature without the selfexecuting nature of constitutional provisions. The
omission from a constitution of any express
provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was
not intended to be self-executing. The rule is that a
self-executing provision of the constitution does not
necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with
the constitution, further the exercise of
constitutional right and make it more available.
Subsequent legislation however does not
necessarily mean that the subject constitutional
provision is not, by itself, fully enforceable.
7. ID.; ID.; ID.; INCLUDES THE NATIONAL

RESOURCES AND CULTURAL HERITAGE.
When the Constitution speaks of national
patrimony, it refers not only to the natural resources
of the Philippines, as the Constitution could have
very well used the term natural resources, but also
to the cultural heritage of the Filipinos.
8. ID.; ID.; ID.; MANILA HOTEL CORPORATION,
EMBRACED THEREIN; FILIPINO FIRST POLICY
PROVISION, APPLICABLE IN SALES OF HOTEL
STOCKS. For more than eight (8) decades
Manila Hotel has bore mute witness to the triumphs
and failures, loves and frustrations of the Filipinos;
its existence is impressed with public interest; its
own historicity associated with our struggle for
sovereignty, independence and nationhood. Verily,
Manila Hotel has become part of our national
economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority
and controlling stock, so that anyone who acquires
or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of
the MHC cannot be disassociated from the hotel
5. ID.; ID.; ID.; A PROVISION MAY BE SELFEXECUTING IN ONE PART AND NON-SELFEXECUTING IN ANOTHER. Respondents also
argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of
the first and third paragraphs of the same section
which undoubtedly are not self-executing. The
argument is flawed. If the first and third paragraphs
are not self-executing because Congress is still to
38
and the land on which the hotel edifice stands.

Consequently, we cannot sustain respondents'
claim that the Filipino First Policy provision is not
applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the
Hotel building nor the land upon which the building
stands.
12. REMEDIAL LAW; ACTIONS; FOREIGN

BIDDERS WITHOUT CAUSE OF ACTION
AGAINST GSIS BEFORE ACCEPTANCE OF BID.
The argument of respondents that petitioner is
now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the
beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and
foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no
Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was
already preferred at the inception of the bidding
because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong
Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its
earlier bid. Rightly, only after it had matched the bid
of the foreign firm and the apparent disregard by
respondent GSIS of petitioner's matching bid did
the latter have a cause of action.
9. ID.; STATE; SALE BY THE GSIS OF 51% OF

ITS SHARE IN MANILA HOTEL CORP., A STATE
ACTION, SUBJECT TO CONSTITUTIONAL
COMMAND. In constitutional jurisprudence, the
acts of persons distinct from the government are
considered "state action" covered by the
Constitution (1) when the activity it engages in is a "
public function", (2) when the government is sosignificantly involved with the private actor as to
make the government responsible for his action;
and, (3) when the government has approved or
authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in
respondent MHC comes under the second and
third categories of "state action." Without doubt
therefore the transaction, although entered into by
respondent GSIS, is in fact a transaction of the
State and therefore subject to the constitutional
command.
13. ID.; SPECIAL CIVIL ACTION, CERTIORARI;

FAILURE OF THE GSIS TO EXECUTE
CORRESPONDING
DOCUMENTS
WHERE
PETITIONER HAD MATCHED THE BID PRICE BY
FOREIGN BIDDER, A GRAVE ABUSE OF
DISCRETION. Since petitioner has already
matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is
left with no alternative but to award to petitioner the
block of shares of MHC and to execute the
necessary agreements and documents to effect the
sale in accordance not only with the bidding
guidelines and procedures but with the Constitution
as well. The refusal of respondent GSIS to execute
the corresponding documents with petitioner as
provided in the bidding rules after the latter has
matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.
10.
ID.;
CONSTITUTION;
WHEN
THE
CONSTITUTION ADDRESSES THE STATE, IT
REFERS
TO
BOTH
PEOPLE
AND
GOVERNMENT. When the Constitution
addresses the State it refers not only to the people
but also to the government as elements of the
State. After all, government is composed of three
(3) divisions of power legislative, executive and
judicial. Accordingly, a constitutional mandate
directed to the State is correspondingly directed to
the three (3) branches of government. It is
undeniable that in this case the subject
constitutional injunction is addressed among others
to the Executive Department and respondent GSIS,
a government instrumentality deriving its authority
from the State.
14. ID.; SUPREME COURT; DUTY BOUND TO

MAKE SURE THAT CONTRACTS DO NOT
VIOLATE THE CONSTITUTION OR THE LAWS.
While it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as
the judge of whether they are viable or attainable, it
is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of
discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter
how buffeted by winds of unfair and ill-informed
criticism. Indeed, the Court will always defer to the
Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in
any economic policy as to draw itself beyond
judicial review when the Constitution is involved.
11.
ID.;
ID.;
NATIONAL
PATRIMONY;
PREFERENCE TO QUALIFIED FILIPINOS; SALE
OF STOCKS OF MANILA HOTEL CORPORATION
BY THE GSIS; FILIPINOS ALLOWED TO MATCH
THE BID OF FOREIGN ENTITY. In the instant
case, where a foreign firm submits the highest bid
in a public bidding concerning the grant of rights,
privileges and concessions covering the national
economy and patrimony, thereby exceeding the bid
of a Filipino, there is no question that the Filipino
will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the bid of
a foreign firm the award should go to the Filipino. It
must be so if we are to give life and meaning to the
Filipino First Policy provision of the 1987
Constitution. For, while this may neither be
expressly stated nor contemplated in the bidding
rules, the constitutional fiat is omnipresent to be
imply disregarded. To ignore it would be to sanction
a perilous skirting of the basic law.
PADILLA, J., concurring opinion:

39
1.
POLITICAL
LAW;
CONSTITUTION;
PATRIMONY OF THE NATION, CONSTRUED.
A study of the 1935 Constitution, where the concept
of "national patrimony" originated, would show that
its framers decided to adopt the even more
comprehensive expression "Patrimony of the
Nation" in the belief that the phrase encircles a
concept embracing not only the natural resources
of the country but practically everything that
belongs to the Filipino people, the tangible and the
material as well as the intangible and the spiritual
assets and possessions of the people. It is to be
noted that the framers did not stop with
conservation. They knew that conservation alone
does not spell progress; and that this may be
achieved only through development as a correlative
factor to assure to the people not only the exclusive
ownership, but also the exclusive benefits of their
national patrimony. Moreover, the concept of
national patrimony has been viewed as referring
not only to our rich natural resources but also to the
cultural heritage of our race. There is no doubt in
my mind that the Manila Hotel is very much a part
of our national patrimony and, as such deserves
constitutional protection as to who shall own it and
benefit from its operation. This institution has
played an important role in our nation's history,
having been the venue of many a historical event,
and serving as it did, and as it does, as the
Philippine Guest House for visiting foreign heads of
state, dignitaries, celebrities, and others.
attractive for foreign investors to come to our

shores, yet we should not preclude ourselves from
reserving to us Filipinos certain areas where our
national identity, culture and heritage are involved.
In the hotel industry, for instance, foreign investors
have established themselves creditably, such as in
the Shangri-La, the Nikko, the Peninsula, and
Mandarin Hotels. This should not stop us from
retaining 51% of the capital stock of the Manila
Hotel Corporation in the hands of Filipinos. This
would be in keeping with the intent of the Filipino
people to preserve our national patrimony, including
our historical and cultural heritage in the hands of
Filipinos.
VITUG, J., separate opinion:
1. POLITICAL LAW; CONSTITUTION; NATIONAL
PATRIMONY; PROVISION GIVING PREFERENCE
TO QUALIFIED FILIPINOS, SELF-EXECUTORY.
The provision in our fundamental law which
provides that "(i)n the grant of rights, privileges, and
concessions covering the national economy and
patrimony, the State shall give preference to
qualified Filipinos" is self-executory. The provision
verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set
of rules.
2. ID.; ID.; ID.; PATRIMONY INCLUDES
CULTURAL HERITAGE OF THE COUNTRY;
MANILA HOTEL, EMBRACED THEREIN. The
term "patrimony" does not merely refer to the
country's natural resources but also to its cultural
heritage. A "historical landmark," to use the words
of Mr. Justice Justo P. Torres, Jr., Manila Hotel has
now indeed become part of Philippine heritage.
2. ID.; ID.; MANILA HOTEL, PART OF OUR

NATIONAL PATRIMONY. There is no doubt in
my mind that the Manila Hotel is very much a part
of our national patrimony and, as such, deserves
constitutional protection as to who shall own it and
benefit from its operation. This institution has
played an important role in our nation's history,
having been the venue of many a historical event,
and serving as it did, and as it does, as the
Philippine Guest House for visiting foreign heads of
state, dignitaries, celebrities, and others.
3. ADMINISTRATIVE LAW; GOVERNMENT

SERVICE INSURANCE SYSTEM; SALE OF ITS
SHARE IN MANILA HOTEL CORPORATION, AN
ACT OF THE STATE; CONSTITUTIONAL
REQUIREMENT SHOULD BE COMPLIED WITH.
The act of the Government Service Insurance
System ("GSIS"), a government entity which
derives its authority from the State, in selling 51%
of its share in MHC should be considered an act of
the State subject to the Constitutional mandate.
3. ID.; ID.; PREFERENCE TO QUALIFIED

FILIPINOS; APPLIED TO SALES OF SHARE OF
STOCKS OF MANILA HOTEL. "Preference to
qualified Filipinos," to be meaningful, must refer not
only to things that are peripheral, collateral, or
tangential. It must touch and affect the very "heart
of the existing order." In the field of public bidding in
the acquisition of things that pertain to the national
patrimony, preference to qualified Filipinos must
allow a qualified Filipino to match or equal the
higher bid of a non-Filipino; the preference shall not
operate only when the bids of the qualified Filipino
and the non-Filipino are equal in which case, the
award should undisputedly be made to the qualified
Filipino. The Constitutional preference should give
the qualified Filipino an opportunity to match or
equal the higher bid of the non-Filipino bidder if the
preference of the qualified Filipino bidder is to be
significant at all. While government agencies,
including the courts should re-condition their
thinking to such a trend, and make it easy and even
4. POLITICAL LAW; CONSTITUTION; NATIONAL

PATRIMONY; PREFERENCE TO QUALIFIED
FILIPINOS; DOES NOT REFER TO ALLOWING
QUALIFIED FILIPINOS TO MATCH FOREIGN BID.
On the pivotal issue of the degree of "preference
to qualified Filipinos" I find it somewhat difficult to
take the same path traversed by the forceful
reasoning of Justice Puno. In the particular case
before us, the only meaningful preference, it
seems, would really be to allow the qualified
Filipino to match the foreign bid for, as a practical
matter, I cannot see any bid that literally calls for
millions of dollars to be at par (to the last cent) with
another. The magnitude of the bids is such that it
becomes hardly possible for the competing bids to
stand exactly "equal" which alone, under the
40
dissenting view,
preference.
could
trigger
the
right
of
the spirit and soul of a people. The Manila Hotel is

part of our history, culture and heritage. Every inch
of the Manila Hotel is witness to historic events (too
numerous to mention) which shaped our history for
almost 84 years. The history of the Manila Hotel
should not be placed in the auction block of a
purely business transaction, where profit subverts
the cherished historical values of our people. The
Filipino should be first under his Constitution and in
his own land.
MENDOZA, J., separate opinion:

POLITICAL LAW; CONSTITUTION; NATIONAL
PATRIMONY; PREFERENCE TO QUALIFIED
FILIPINOS; FILIPINO BIDDERS SHOULD BE
ALLOWED TO EQUAL BID OF FOREIGN FIRM IN
SALE OF STOCKS OF MANILA HOTEL
CORPORATION. I take the view that in the
context of the present controversy the only way to
enforce the constitutional mandate that "[i]n the
grant of rights, privileges and concessions covering
the national patrimony the State shall give
preference to qualified Filipinos" is to allow
petitioner Philippine corporation to equal the bid of
the Malaysian firm Renong Berhad for the purchase
of the controlling shares of stocks in the Manila
Hotel Corporation. Indeed, it is the only way a
qualified Filipino or Philippine corporation can be
given preference in the enjoyment of a right,
privilege or concession given by the State, by
favoring it over a foreign national or corporation.
Under the rules on public bidding of the
Government Service and Insurance System, if
petitioner and the Malaysian firm had offered the
same price per share, "priority [would be given] to
the bidder seeking the larger ownership interest in
MHC," so that if petitioner bid for more shares, it
would be preferred to the Malaysian corporation for
that reason and not because it is a Philippine
corporation. Consequently, it is only in cases like
the present one, where an alien corporation is the
highest bidder, that preferential treatment of the
Philippine corporation is mandated not by declaring
it winner but by allowing it "to match the highest bid
in terms of price per share" before it is awarded the
shares of stocks. That, to me, is what "preference
to qualified Filipinos" means in the context of this
case by favoring Filipinos whenever they are at
a disadvantage vis-a-vis foreigners.
PUNO, J., dissenting opinion:

1. POLITICAL LAW; CONSTITUTION; AS A RULE
PROVISIONS THEREOF ARE SELF-EXECUTING.
A Constitution provides the guiding policies and
principles upon which is built the substantial
foundation and general framework of the law and
government. As a rule, its provisions are deemed
self-executing and can be enforced without further
legislative action. Some of its provisions, however,
can be implemented only through appropriate laws
enacted by the Legislature, hence not selfexecuting. Courts as a rule consider the provisions
of the Constitution as self-executing, rather than as
requiring future legislation for their enforcement.
The reason is not difficult to discern For if they are
not treated as self-executing, the mandate of the
fundamental law ratified by the sovereign people
can be easily ignored and nullified by Congress.
Suffused with wisdom of the ages is the unyielding
rule that legislative actions may give breath to
constitutional rights but congressional inaction
should not suffocate them.
2. ID.; ID.; PROVISIONS ARE NOT SELFEXECUTING WHERE IT MERELY ANNOUNCES A
POLICY AND EMPOWERS THE LEGISLATURE
TO ENACT LAWS TO CARRY THE POLICY INTO
EFFECT. Contrariwise, case law lays down the
rule that a constitutional provision is not selfexecuting where it merely announces a policy and
its language empowers the Legislature to prescribe
the means by which the policy shall be carried into
effect.
TORRES, JR., J., separate opinion:

POLITICAL LAW; CONSTITUTION; PATRIMONY
OF THE NATION; MANILA HOTEL, EMBRACED
WITHIN THE MEANING THEREOF; SALE OF ITS
STOCKS SHOULD BE LIMITED TO QUALIFIED
FILIPINOS. Section 10, Article XII of the 1987
Constitution should be read in conjunction with
Article II of the same Constitution pertaining to
"Declaration of Principles and State Policies" which
ordain "The State shall develop a self-reliant and
independent
national
economy,
effectively
controlled by Filipinos." (Sec. 19), Interestingly, the
matter of giving preference to "qualified Filipinos"
was one of the highlights in the 1987 Constitution
Commission
proceedings.
The
nationalistic
provisions of the 1987 Constitution reflect the
history and spirit of the Malolos Constitution of
1898, the 1935 Constitution and the 1973
Constitution. I subscribe to the view that history,
culture, heritage, and tradition are not legislated
and is the product of events, customs, usages and
practices. It is actually a product of growth and
acceptance by the collective mores of a race. It is
3. ID.; ID.; FIRST PARAGRAPH OF SECTION 10,

ARTICLE 12 NOT SELF-EXECUTING. The first
paragraph directs Congress to reserve certain
areas of investments in the country to Filipino
citizens or to corporations sixty per cent of whose
capital stock is owned by Filipinos. It further
commands Congress to enact laws that will
encourage the formation and operation of one
hundred percent Filipino-owned enterprises. In
checkered contrast, the second paragraph orders
the entire State to give preference to qualified
Filipinos in the grant of rights and privileges
covering the national economy and patrimony. The
third paragraph also directs the State to regulate
foreign investments in line with our national goals
and well-set priorities. The first paragraph of
Section 10 is not self-executing. By its express text,
there is a categorical command for Congress to
41
enact laws restricting foreign ownership in certain

areas of investments in the country and to
encourage the formation and operation of whollyowned Filipino enterprises.
the Commission on Audit. As a state-owned and

controlled corporation, it is skin-bound to adhere to
the policies spelled out in the Constitution
especially those designed to promote the general
welfare of the people. One of these policies is the
Filipino First policy which the people elevated as a
constitutional command.
4.
ID.;
ID.;
NATIONAL
PATRIMONY;
PREFERENCE
TO
QUALIFIED
FILIPINOS
UNDER PARAGRAPHS 2 AND 3 OF SECTION 10,
ARTICLE 12, SELF-EXECUTING. The second
and third paragraphs of Section 10 are different.
They are directed to the State and not to Congress
alone which is but one of the three great branches
of our government. Their coverage is also broader
for they cover "the national economy and
patrimony" and "foreign investments within [the]
national jurisdiction" and not merely "certain areas
of investments." Beyond debate, they cannot be
read as granting Congress the exclusive power to
implement by law the policy of giving preference to
qualified Filipinos in the conferral of rights and
privileges covering our national economy and
patrimony. Their language does not suggest that
any of the State agency or instrumentality has the
privilege to hedge or to refuse its implementation
for any reason whatsoever. Their duty to implement
is unconditional and it is now. The second and the
third paragraphs of Section 10, Article XII are thus
self-executing.
7. ID.; CONSTITUTION; PROVISIONS THEREOF

DEEMED INCLUDED IN ALL LEGISLATIONS AND
ALL STATE ACTIONS. The constitutional
command to enforce the Filipino First policy is
addressed to the State and not to Congress alone.
Hence, the word "laws" should not be understood
as limited to legislations but all state actions which
include applicable rules and regulations adopted by
agencies and instrumentalities of the State in the
exercise of their rule-making power.
8.
ID.;
ID.;
NATIONAL
PATRIMONY;
PREFERENCE TO QUALIFIED FILIPINOS; STATE
NOT PROHIBITED FROM GRANTING RIGHTS
TO FOREIGN FIRM IN THE ABSENCE OF
QUALIFIED FILIPINOS. In the absence of
qualified Filipinos, the State is not prohibited from
granting these rights, privileges and concessions to
foreigners if the act will promote the weal of the
nation.
5. ID.; ID.; ID.; MANILA HOTEL CORPORATION,

PART OF THE NATIONAL PATRIMONY. The
second issue is whether the sale of a majority of
the stocks of the Manila Hotel Corporation involves
the disposition of part of our national patrimony.
The records of the Constitutional Commission show
that the Commissioners entertained the same view
as to its meaning. According to Commissioner
Nolledo, "patrimony" refers not only to our rich
natural resources but also to the cultural heritage of
our race. By this yardstick, the sale of Manila Hotel
falls within the coverage of the constitutional
provision giving preferential treatment to qualified
Filipinos in the grant of rights involving our national
patrimony.
9. ID.; ID.; ID.; ID.; CASE AT BAR. The right of

preference of petitioner arises only if it tied the bid
of Renong Berhad. In that instance, all things stand
equal, and petitioner, as a qualified Filipino bidder,
should be preferred. It is with deep regret that I
cannot subscribe to the view that petitioner has a
right to match the bid of Renong Berhad.
Petitioner's submission must be supported by the
rules but even if we examine the rules inside-out a
thousand times, they can not justify the claimed
right. Under the rules, the right to match the highest
bid arises only "if for any reason, the highest bidder
cannot be awarded the block of shares . . . ." No
reason has arisen that will prevent the award to
Renong Berhad. It deserves the award as a matter
of right for the rules clearly did not give to the
petitioner as a qualified Filipino the privilege to
match the higher bid of a foreigner. What the rules
did not grant, petitioner cannot demand. Our
sympathies may be with petitioner but the court has
no power to extend the latitude and longitude of the
right of preference as defined by the rules. We are
duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right
they grant may be little but we must uphold the
grant for as long as the right of preference is not
denied. It is only when a State action amounts to a
denial of the right that the Court can come in and
strike down the denial as unconstitutional.
6. ID.; STATE; GSIS, EMBRACED WITHIN THE

MEANING THEREOF. The third issue is whether
the constitutional command to the State includes
the respondent GSIS. A look at its charter will
reveal that GSIS is a government-owned and
controlled corporation that administers funds that
come from the monthly contributions of government
employees and the government. The funds are held
in trust for a distinct purpose which cannot be
disposed of indifferently. They are to be used to
finance the retirement, disability and life insurance
benefits of the employees and the administrative
and operational expenses of the GSIS. Excess
funds, however, are allowed to be invested in
business and other ventures for the benefit of the
employees. The GSIS is not a pure private
corporation. It is essentially a public corporation
created by Congress and granted an original
charter to serve a public purpose. It is subject to the
jurisdictions of the Civil Service Commission and
10. REMEDIAL LAW; ACTIONS; ESTOPPEL;

PARTY ESTOPPED FROM ASSAILING THE
WINNING BID OF FOREIGN FIRM FROM BEING
AWARE OF THE RULES AND REGULATIONS OF
THE BIDDINGS IT AGREED TO RESPECT. I
submit that petitioner is estopped from assailing the
42
winning bid of Renong Berhad. Petitioner was

aware of the rules and regulations of the bidding. It
knew that the rules and regulations do not provide
that a qualified Filipino bidder can match the
winning bid after submitting an inferior bid. It knew
that the bid was open to foreigners and that
foreigners qualified even during the first bidding.
Petitioner cannot be allowed to repudiate the rules
which it agreed to respect. It cannot be allowed to
obey the rules when it wins and disregard them
when it loses. If sustained, petitioners' stance will
wreak havoc on the essence of bidding.
the provision is not self-executing but requires an

implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares form
part of the national economy and patrimony
covered by the protective mantle of the
Constitution.
The
controversy
arose
when
respondent
Government Service Insurance System (GSIS),
pursuant to the privatization program of the
Philippine Government under Proclamation No. 50
dated 8 December 1986, decided to sell through
public bidding 30% to 51% of the issued and
outstanding shares of respondent MHC. The
winning bidder, or the eventual "strategic partner,"
is to provide management expertise and/or an
international marketing/reservation system, and
financial support to strengthen the profitability and
performance of the Manila Hotel. 2 In a close
bidding held on 18 September 1995 only two (2)
bidders participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which offered to
buy 51% of the MHC or 15,300,000 shares at
P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel
operator, which bid for the same number of shares
at P44.00 per share, or P2.42 more than the bid of
petitioner.
PANGANIBAN, J., separate dissenting opinion:

POLITICAL LAW; CONSTITUTION; PATRIMONY
OF THE NATION; PREFERENCE TO QUALIFIED
FILIPINOS; LOSING FILIPINO NOT GIVEN RIGHT
TO EQUAL THE HIGHEST FOREIGN BID. The
majority contends the Constitution should be
interpreted to mean that, after a bidding process is
concluded, the losing Filipino bidder should be
given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2),
Art. XII] simply states that "in the grant of rights . . .
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos."
The majority concedes that there is no law defining
the extent or degree of such preference.
Specifically, no statute empowers a losing Filipino
bidder to increase his bid and equal that of the
winning foreigner. In the absence of such
empowering
law,
the
majority's
strained
interpretation, I respectfully submit, constitutes
unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can
lose and where no foreigner can win. Only in the
Philippines! Aside from being prohibited by the
Constitution, such judicial legislation is shortsighted and, viewed properly, gravely prejudicial to
long-term Filipino interests. In the absence of a law
specifying the degree or extent of the "Filipino First"
policy of the Constitution, the constitutional
preference for the "qualified Filipinos" may be
allowed only where all the bids are equal. In this
manner, we put the Filipino ahead without selfdestructing him and without being unfair to the
foreigner. In short, the Constitution mandates a
victory for the qualified Filipino only when the
scores are tied. But not when the ballgame is over
and the foreigner clearly posted the highest score.
Pertinent provisions of the bidding rules prepared

by respondent GSIS state
I.
EXECUTION
OF
THE
CONTRACTS WITH GSIS/MHC
NECESSARY
1. The Highest Bidder must comply with the

conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest Bidder
will lose the right to purchase the Block of Shares
and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with the GSIS/MHC the Management Contract,
International
Marketing/Reservation
System
Contract or other type of contract specified by the
Highest Bidder in its strategic plan for the Manila
Hotel . . . .
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS . . . .
K.
DECLARATION
OF
THE
BIDDER/STRATEGIC PARTNER
DECISION
BELLOSILLO, J p:
WINNING
The Highest Bidder will be declared the Winning

Bidder/Strategic Partner after the following
conditions are met
The Filipino First Policy enshrined in the 1987

Constitution, i.e., in the grant of rights, privileges,
and concessions covering the national economy
and patrimony, the State shall give preference to
qualified Filipinos, 1 is invoked by petitioner in its
bid to acquire 51% of the shares of the Manila
Hotel Corporation (MHC) which owns the historic
Manila Hotel. Opposing, respondents maintain that
a. Execution of the necessary contracts with

GSIS/MHC not later than October 23, 1995 (reset
to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and
COP (Committee on Privatization)/ OGCC (Office
43
of the Government
obtained." 3
Corporate
Counsel)
are
Bidders that have validly submitted bids provided

that these Qualified Bidders are willing to match the
highest bid in terms of price per share. 8
Pending the declaration of Renong Berhard as the

winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered
by Renong Berhad. 4 In a subsequent letter dated
10 October 1995 petitioner sent a manager's check
issued by Philtrust Bank for Thirty-three Million
Pesos (P33,000,000.00) as Bid Security to match
the bid of the Malaysian Group, Messrs. Renong
Berhad . . . . 5 which respondent GSIS refused to
accept.
Respondents except. They maintain that: First,

Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and
policy since it is not a self-executing provision and
requires implementing legislation(s). . . . Thus, for
the said provision to operate, there must be existing
laws "to lay down conditions under which business
may be done." 9
Second, granting that this provision is selfexecuting, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the
public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna
and all marine wealth in its territorial sea, and
exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while
petitioner speaks of the guests who have slept in
the hotel and the events that have transpired
therein which make the hotel historic, these alone
do not make the hotel fall under the patrimony of
the nation. What is more, the mandate of the
Constitution is addressed to the State, not to
respondent GSIS which possesses a personality of
its own separate and distinct from the Philippines
as a State. lexlib
On 17 October 1995, perhaps apprehensive that

respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC
may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner
came to this Court on prohibition and mandamus.
On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from
perfecting and consummating the sale to the
Malaysian firm.
On 10 September 1996 the instant case was
accepted by the Court En Banc after it was referred
to it by the First Division. The case was then set for
oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as
amici curiae.
Third, granting that the Manila Hotel forms part of

the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold
is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon
which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the
national patrimony. Moreover, if the disposition of
the shares of the MHC is really contrary to the
Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in
the bidding.
In the main, petitioner invokes Sec. 10, second

par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the
Filipino nation and has practically become a
historical monument which reflects the vibrancy of
Philippine heritage and culture. It is a proud legacy
of an earlier generation of Filipinos who believed in
the nobility and sacredness of independence and
its power and capacity to release the full potential
of the Filipino people. To all intents and purposes, it
has become a part of the national patrimony. 6
Petitioner also argues that since 51% of the shares
of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent
GSIS, a government-owned and controlled
corporation, the hotel business of respondent GSIS
being a part of the tourism industry is
unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares
of stock of the MHC is clearly covered by the term
national economy, to which Sec. 10, second par.,
Art. XII, 1987 Constitution, applies. 7
Fourth, the reliance by petitioner on par. V., subpar.

J. 1, of the bidding rules which provides that if for
any reason, the Highest Bidder cannot be awarded
the Block of Shares, GSIS may offer this to the
other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per
share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not
yet arisen since it only takes place if for any reason,
the Highest Bidder cannot be awarded the Block of
Shares. Thus the submission by petitioner of a
matching bid is premature since Renong Berhad
could still very well be awarded the block of shares
and the condition giving rise to the exercise of the
privilege to submit a matching bid had not yet taken
place.
It is also the thesis of petitioner that since Manila

Hotel is part of the national patrimony and its
business also unquestionably part of the national
economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the
bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified
44
Finally, the prayer for prohibition grounded on grave

abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious,
whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to
amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly,
the petition for mandamus should fail as petitioner
has no clear legal right to what it demands and
respondents do not have an imperative duty to
perform the act required of them by petitioner.
extensive codes of laws intended to operate directly

upon the people in a manner similar to that of
statutory enactments, and the function of
constitutional conventions has evolved into one
more like that of a legislative body. Hence, unless it
is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the
constitution are self-executing. If the constitutional
provisions are treated as requiring legislation
instead of self-executing, the legislature would have
the power to ignore and practically nullify the
mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it
has always been, that
We now resolve. A constitution is a system of

fundamental laws for the governance and
administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority
from which it emanates. It has been defined as the
fundamental and paramount law of the nation. 10 It
prescribes the permanent framework of a system of
government, assigns to the different departments
their respective powers and duties, and establishes
certain fixed principles on which government is
founded. The fundamental conception in other
words is that it is a supreme law to which all other
laws must conform and in accordance with which
all private rights must be determined and all public
authority administered. 11 Under the doctrine of
constitutional supremacy, if a law or contract
violates any norm of the constitution that law or
contract whether promulgated by the legislative or
by the executive branch or entered into by private
persons for private purposes is null and void and
without any force and effect. Thus, since the
Constitution is the fundamental paramount and
supreme law of the nation, it is deemed written in
every statute and contract.
. . . in case of doubt, the Constitution should be

considered self-executing rather than non-selfexecuting. . . . Unless the contrary is clearly
intended, the provisions of the Constitution should
be considered self-executing, as a contrary rule
would give the legislature discretion to determine
when, or whether, they shall be effective. These
provisions would be subordinated to the will of the
lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed
implementing statute. 15
Respondents argue that Sec. 10, second par., Art.
XII, of the 1987 Constitution is clearly not selfexecuting, as they quote from discussions on the
floor of the 1986 Constitutional Commission
MR. RODRIGO.
Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording
of "PREFERENCE" is given to "QUALIFIED
FILIPINOS," can it be understood as a preference
to qualified Filipinos vis-a-vis Filipinos who are not
qualified. So, why do we not make it clear? To
qualified Filipinos as against aliens?
Admittedly, some constitutions are merely

declarations of policies and principles. Their
provisions command the legislature to enact laws
and carry out the purposes of the framers who
merely establish an outline of government providing
for the different departments of the governmental
machinery and securing certain fundamental and
inalienable rights of citizens. 12 A provision which
lays down a general principle, such as those found
in Art. II of the 1987 Constitution, is usually not selfexecuting. But a provision which is complete in
itself and becomes operative without the aid of
supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right
it grants may be enjoyed or protected, is selfexecuting. Thus a constitutional provision is selfexecuting if the nature and extent of the right
conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined
by an examination and construction of its terms,
and there is no language indicating that the subject
is referred to the legislature for action. 13
THE PRESIDENT.
What is the question of Commissioner Rodrigo? Is
it to remove the word "QUALIFIED?"
MR. RODRIGO.
No, no, but say definitely "TO QUALIFIED
FILIPINOS" as against whom? As against aliens or
over aliens?
MR. NOLLEDO.
Madam President, I think that is understood. We
use the word "QUALIFIED" because the existing
laws or prospective laws will always lay down
conditions under which business may be done. For
example, qualifications on capital, qualifications on
the setting up of other financial structures, et cetera
(italics supplied by respondents).
As against constitutions of the past, modern

constitutions have been generally drafted upon a
different principle and have often become in effect
MR RODRIGO.
45
Even the cases cited by respondents holding that

certain constitutional provisions are merely
statements of principles and policies, which are
basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not
as judicially enforceable rights are simply not in
point. Basco v. Philippine Amusements and Gaming
Corporation 20 speaks of constitutional provisions
on personal dignity, 21 the sanctity of family life, 22
the vital role of the youth in nation-building, 23 the
promotion of social justice, 24 and the values of
education. 25 Tolentino v. Secretary of Finance 26
refers to constitutional provisions on social justice
and human rights 27 and on education. 28 Lastly,
Kilosbayan, Inc. v. Morato 29 cites provisions on
the promotion of general welfare, 30 the sanctity of
family life, 31 the vital role of the youth in nationbuilding 32 and the promotion of total human
liberation and development. 33 A reading of these
provisions indeed clearly shows that they are not
judicially enforceable constitutional rights but
merely guidelines for legislation. The very terms of
the provisions manifest that they are only principles
upon which legislations must be based. Res ipsa
loquitur.
It is just a matter of style.

MR. NOLLEDO.
Yes. 16
Quite apparently, Sec. 10, second par., of Art. XII is
couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes
of style. But, certainly, the legislature is not
precluded from enacting further laws to enforce the
constitutional provision so long as the contemplated
statute squares with the Constitution. Minor details
may be left to the legislature without the selfexecuting nature of constitutional provisions.
In self-executing constitutional provisions, the
legislature may still enact legislation to facilitate the
exercise of powers directly granted by the
constitution, further the operation of such a
provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the
protection of the rights secured or the determination
thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation
may supplement and add to or prescribe a penalty
for the violation of a self-executing constitutional
provision does not render such a provision
ineffective in the absence of such legislation. The
omission from a constitution of any express
provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was
not intended to be self-executing. The rule is that a
self-executing provision of the constitution does not
necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with
the constitution, further the exercise of
constitutional right and make it more available. 17
Subsequent legislation however does not
necessarily mean that the subject constitutional
provision is not, by itself, fully enforceable.
On the other hand, Sec. 10, second par., Art. XII of

the 1987 Constitution is a mandatory, positive
command which is complete in itself and which
needs no further guidelines or implementing laws or
rules for its enforcement. From its very words the
provision does not require any legislation to put it in
operation. It is per se judicially enforceable. When
our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering
national economy and patrimony, the State shall
give preference to qualified Filipinos, it means just
that qualified Filipinos shall be preferred. And
when our Constitution declares that a right exists in
certain specified circumstances an action may be
maintained to enforce such right notwithstanding
the absence of any legislation on the subject;
consequently, if there is no statute especially
enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and
puissance, and from which all legislations must
take their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
Respondents also argue that the non-self-executing

nature of Sec. 10, second par., of Art. XII is implied
from the tenor of the first and third paragraphs of
the same section which undoubtedly are not selfexecuting. 18 The argument is flawed. If the first
and third paragraphs are not self-executing
because Congress is still to enact measures to
encourage the formation and operation of
enterprises fully owned by Filipinos, as in the first
paragraph, and the State still needs legislation to
regulate and exercise authority over foreign
investments within its national jurisdiction, as in the
third paragraph, then a fortiori, by the same logic,
the second paragraph can only be self-executing as
it does not by its language require any legislation in
order to give preference to qualified Filipinos in the
grant of rights, privileges and concessions covering
the national economy and patrimony. A
constitutional provision may be self-executing in
one part and non-self-executing in another. 19
As regards our national patrimony, a member of the

1986 Constitutional Commission 34 explains
The patrimony of the Nation that should be
conserved and developed refers not only to our rich
natural resources but also to the cultural heritage of
our race. It also refers to our intelligence in arts,
sciences and letters. Therefore, we should develop
not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of
our people.
We agree. In its plain and ordinary meaning, the
term patrimony pertains to heritage. 35 When the
Constitution speaks of national patrimony, it refers
not only to the natural resources of the Philippines,
46
as the Constitution could have very well used the

term natural resources, but also to the cultural
heritage of the Filipinos.
THE PRESIDENT.
Manila Hotel has become a landmark a living

testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened
in 1912, it immediately evolved to be truly Filipino.
Formerly a concourse for the elite, it has since then
become the venue of various significant events
which have shaped Philippine history. It was called
the Cultural Center of the 1930's. It was the site of
the festivities during the inauguration of the
Philippine Commonwealth. Dubbed as the Official
Guest House of the Philippine Government it plays
host to dignitaries and official visitors who are
accorded the traditional Philippine hospitality. 36
MR. DAVIDE.
Commissioner Davide is recognized.
I would like to introduce an amendment to the

Nolledo amendment. And the amendment would
consist in substituting the words "QUALIFIED
FILIPINOS" with the following: "CITIZENS OF THE
PHILIPPINES
OR
CORPORATIONS
OR
ASSOCIATIONS
WHOSE
CAPITAL
OR
CONTROLLING STOCK IS WHOLLY OWNED BY
SUCH CITIZENS."
xxx xxx xxx
MR. MONSOD.
Madam President, apparently the proponent is
agreeable, but we have to raise a question.
Suppose it is a corporation that is 80-percent
Filipino, do we not give it preference?
The history of the hotel has been chronicled in the

book The Manila Hotel: The Heart and Memory of a
City. 37 During World War II the hotel was
converted by the Japanese Military Administration
into a military headquarters. When the American
forces returned to recapture Manila the hotel was
selected by the Japanese together with Intramuros
as the two (2) places for their final stand.
Thereafter, in the 1950's and 1960's, the hotel
became the center of political activities, playing
host to almost every political convention. In 1970
the hotel reopened after a renovation and reaped
numerous
international
recognitions,
an
acknowledgment of the Filipino talent and ingenuity.
In 1986 the hotel was the site of a failed coup d'etat
where an aspirant for vice-president was
"proclaimed" President of the Philippine Republic.
MR. DAVIDE.
The Nolledo amendment would refer to an
individual Filipino. What about a corporation wholly
owned by Filipino citizens?
MR. MONSOD.
At least 60 percent, Madam President.
MR. DAVIDE.
Is that the intention?
For more than eight (8) decades Manila Hotel has

bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence
is impressed with public interest; its own historicity
associated with our struggle for sovereignty,
independence and nationhood. Verily, Manila Hotel
has become part of our national economy and
patrimony. For sure, 51% of the equity of the MHC
comes within the purview of the constitutional
shelter for it comprises the majority and controlling
stock, so that anyone who acquires or owns the
51% will have actual control and management of
the hotel. In this instance, 51% of the MHC cannot
be disassociated from the hotel and the land on
which the hotel edifice stands. Consequently, we
cannot sustain respondents' claim that the Filipino
First Policy provision is not applicable since what is
being sold is only 51% of the outstanding shares of
the corporation, not the Hotel building nor the land
upon which the building stands. 38
MR MONSOD.
The argument is pure sophistry. The term qualified

Filipinos as used in our Constitution also includes
corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of
the 1986 Constitutional Commission
Before we vote, may I request that the amendment

be read again.
Yes, because, in fact, we would be limiting it if we

say that the preference should only be 100-percent
Filipino.
MR. DAVIDE.
I want to get that meaning clear because
"QUALIFIED FILIPINOS" may refer only to
individuals and not to juridical personalities or
entities.
MR. MONSOD.
We agree, Madam President. 39
xxx xxx xxx
MR. RODRIGO.
MR. NOLLEDO.
47
The amendment will read: "IN THE GRANT OF

RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND
PATRIMONY,
THE
STATE
SHALL
GIVE
PREFERENCE TO QUALIFIED FILIPINOS." And
the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-controlled entities or entities fullycontrolled by Filipinos. 40
The exchange of views in the sessions of the

Constitutional Commission regarding the subject
provision was still further clarified by Commissioner
Nolledo 43
"Paragraph 2 of Section 10 explicitly mandates the
"Pro-Filipino" bias in all economic concerns. It is
better known as the FILIPINO FIRST Policy. . . .
This provision was never found in previous
Constitutions. . . .
The phrase preference to qualified Filipinos was

explained thus
The term "qualified Filipinos" simply means that

preference shall be given to those citizens who can
make a viable contribution to the common good,
because of credible competence and efficiency. It
certainly does NOT mandate the pampering and
preferential treatment to Filipino citizens or
organizations that are incompetent or inefficient,
since such an indiscriminate preference would be
counterproductive and inimical to the common
good.
MR. FOZ.
Madam President, I would like to request
Commissioner Nolledo to please restate his
amendment so that I can ask a question.
MR. NOLLEDO.
"IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS."
In the granting of economic rights, privileges, and

concessions, when a choice has to be made
between a "qualified foreigner" and a "qualified
Filipino," the latter shall be chosen over the former."
MR. FOZ.
Lastly, the word qualified is also determinable.
Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was
pre-qualified by respondent GSIS in accordance
with its own guidelines so that the sole inference
here is that petitioner has been found to be
possessed of proven management expertise in the
hotel industry, or it has significant equity ownership
in another hotel company, or it has an overall
management and marketing proficiency to
successfully operate the Manila Hotel. 44
In connection with that amendment, if a foreign

enterprise is qualified and a Filipino enterprise is
also qualified, will the Filipino enterprise still be
given a preference?
MR. NOLLEDO.
Obviously.
MR. FOZ.
If the foreigner is more qualified in some aspects
than the Filipino enterprise, will the Filipino still be
preferred?
The penchant to try to whittle away the mandate of

the Constitution by arguing that the subject
provision is not self-executory and requires
implementing legislation is quite disturbing. The
attempt to violate a clear constitutional provision
by the government itself is only too distressing.
To adopt such a line of reasoning is to renounce the
duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution
which evidently need implementing legislation have
juridical life of their own and can be the source of a
judicial remedy. We cannot simply afford the
government a defense that arises out of the failure
to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G.
Bernas, S.J., on constitutional government is apt
MR. NOLLEDO.
The answer is "yes."
MR. FOZ.
Thank you. 41
Expounding further on the Filipino First Policy
provision Commissioner Nolledo continues
MR NOLLEDO.
Yes, Madam President. Instead of "MUST," it will be
"SHALL
THE
STATE
SHALL
GIVE
PREFERENCE TO QUALIFIED FILIPINOS." This
embodies the so-called "Filipino First" policy. That
means that Filipinos should be given preference in
the grant of concessions, privileges and rights
covering the national patrimony. 42
The executive department has a constitutional duty

to implement laws, including the Constitution, even
before Congress acts provided that there are
discoverable legal standards for executive action.
When the executive acts, it must be guided by its
own understanding of the constitutional command
and of applicable laws. The responsibility for
reading and understanding the Constitution and the
laws is not the sole prerogative of Congress. If it
48
were, the executive would have to ask Congress, or

perhaps the Court, for an interpretation every time
the executive is confronted by a constitutional
command. That is not how constitutional
government operates. 45
Adhering to the doctrine of constitutional

supremacy, the subject constitutional provision is,
as it should be, impliedly written in the bidding rules
issued by respondent GSIS, lest the bidding rules
be nullified for being violative of the Constitution. It
is a basic principle in constitutional law that all laws
and contracts must conform with the fundamental
law of the land. Those which violate the
Constitution lose their reason for being.
Respondents further argue that the constitutional

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

[i]f for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this
to other Qualified Bidders that have validly
submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms
of price per share. 47 Certainly, the constitutional
mandate itself is reason enough not to award the
block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even
the highest, bid. In fact, we cannot conceive of a
stronger reason than the constitutional injunction
itself.
In the instant case, where a foreign firm submits the
highest bid in a public bidding concerning the grant
of rights, privileges and concessions covering the
national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question
that the Filipino will have to be allowed to match the
bid of the foreign entity. And if the Filipino matches
the bid of a foreign firm the award should go to the
Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the
1987 Constitution. For, while this may neither be
expressly stated nor contemplated in the bidding
rules, the constitutional fiat is omnipresent to be
simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
When the Constitution addresses the State it refers

not only to the people but also to the government
as elements of the State. After all, government is
composed of three (3) divisions of power
legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is
correspondingly directed to the three (3) branches
of government. It is undeniable that in this case the
subject constitutional injunction is addressed
among others to the Executive Department and
respondent GSIS, a government instrumentality
deriving its authority from the State.
This Court does not discount the apprehension that

this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are
understood to be always open to public scrutiny.
These are given factors which investors must
consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its
agencies or instrumentalities is presumed to know
his rights and obligations under the Constitution
and the laws of the forum
It should be stressed that while the Malaysian firm

offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the
highest bidder shall only be declared the winning
bidder after it has negotiated and executed the
necessary contracts, and secured the requisite
approvals. Since the Filipino First Policy provision
of the Constitution bestows preference on qualified
Filipinos the mere tending of the highest bid is not
an assurance that the highest bidder will be
declared
the
winning
bidder.
Resultantly,
respondents are not bound to make the award yet,
nor are they under obligation to enter into one with
the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates
of the 1987 Constitution the provisions of which are
presumed to be known to all the bidders and other
interested parties.
The argument of respondents that petitioner is now

estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the
beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and
foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no
Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was
already preferred at the inception of the bidding
49
because of the constitutional mandate, petitioner

had not yet matched the bid offered by Renong
Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its
earlier bid. Rightly, only after it had matched the bid
of the foreign firm and the apparent disregard by
respondent GSIS of petitioner's matching bid did
the latter have a cause of action.
temporary injunction issued by the Court's First

Division against the sale of the Manila Hotel to a
Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that
that injunction "again demonstrates that the
Philippine legal system can be a major obstacle to
doing business here."
Let it be stated for the record once again that while
it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as
the judge of whether they are viable or attainable, it
is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of
jurisdiction. It will never shirk that duty, no matter
how buffeted by winds of unfair and ill-informed
criticism. 48
Besides, there is no time frame for invoking the

constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the
Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is
to insist that government be treated as any other
ordinary market player, and bound by its mistakes
or gross errors of judgment, regardless of the
consequences to the Filipino people. The
miscomprehension
of
the
Constitution
is
regrettable. Thus we would rather remedy the
indiscretion while there is still an opportunity to do
so than let the government develop the habit of
forgetting that the Constitution lays down the basic
conditions and parameters for its actions.
Privatization of a business asset for purposes of

enhancing its business viability and preventing
further losses, regardless of the character of the
asset, should not take precedence over nonmaterial values. A commercial, nay even a
budgetary, objective should not be pursued at the
expense of national pride and dignity. For the
Constitution enshrines higher and nobler nonmaterial values. Indeed, the Court will always defer
to the Constitution in the proper governance of a
free society; after all, there is nothing so sacrosanct
in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49
Since petitioner has already matched the bid price

tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of
shares of MHC and to execute the necessary
agreements and documents to effect the sale in
accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The
refusal of respondent GSIS to execute the
corresponding documents with petitioner as
provided in the bidding rules after the latter has
matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.
Nationalism is inherent in the very concept of the

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

nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future
legislation but primarily to be enforced; so must it
be enforced. This Court as the ultimate guardian of
the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the
majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the
intention of this Court to impede and diminish,
much less undermine, the influx of foreign
investments. Far from it, the Court encourages and
welcomes more business opportunities but
avowedly sanctions the preference for Filipinos
whenever such preference is ordained by the
Constitution. The position of the Court on this
matter could have not been more appropriately
articulated by Chief Justice Narvasa
The Manila Hotel or, for that matter, 51% of the

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

not its function to substitute its judgment for that of
the legislature or the executive about the wisdom
and feasibility of legislation economic in nature, the
Supreme Court has not been spared criticism for
decisions perceived as obstacles to economic
progress and development . . . in connection with a
50
EN BANC
This Court cannot extract rhyme nor reason from
the determined efforts of respondents to sell the
historical landmark this Grand Old Dame of
hotels in Asia to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino
psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner
viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What
advantage, which cannot be equally drawn from a
qualified Filipino, can be gained by the Filipinos if
Manila Hotel and all that it stands for is sold
to a non-Filipino? How much of national pride will
vanish if the nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much
dignity will be preserved and realized if the national
patrimony is safekept in the hands of a qualified,
zealous and well-meaning Filipino? This is the plain
and simple meaning of the Filipino First Policy
provision of the Philippine Constitution. And this
Court, heeding the clarion call of the Constitution
and accepting the duty of being the elderly
watchman of the nation, will continue to respect
and protect the sanctity of the Constitution.
[G.R. No. 118295. May 2, 1997.]

WIGBERTO E. TAADA and ANNA DOMINIQUE
COSETENG, as members of the Philippine Senate
and as taxpayers; GREGORIO ANDOLANA and
JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P.
PERLAS and HORACIO R. MORALES, both as
taxpayers: CIVIL LIBERTIES UNION, NATIONAL
ECONOMIC PROTECTIONISM ASSOCIATION,
CENTER FOR ALTERNATIVE DEVELOPMENT
INITIATIVES,
LIKAS-KAYANG
KAUNLARAN
FOUNDATION,
INC.,
PHILIPPINE
RURAL
RECONSTRUCTION
MOVEMENT,
DEMOKRATIKONG KILUSAN NG MAGBUBUKID
NG PILIPINAS, INC., and PHILIPPINE PEASANT
INSTITUTE, in representation of various taxpayers
and
as
non-governmental
organizations,
petitioners, vs. EDGARDO ANGARA, ALBERTO
ROMULO,
LETICIA
RAMOS-SHAHANI,
HEHERSON ALVAREZ, AGAPITO AQUINO,
RODOLFO BIAZON, NEPTALI GONZALES,
ERNESTO HERRERA, JOSE LINA, GLORIA
MACAPAGAL-ARROYO, ORLANDO MERCADO,
BLAS OPLE, JOHN OSMEA, SANTANINA
RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their
respective capacities as members of the Philippine
Senate who concurred in the ratification by the
President of the Philippines of the Agreement
Establishing the World Trade Organization;
SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National
Treasurer; RIZALINO NAVARRO, in his capacity as
Secretary of Trade and Industry; ROBERTO
SEBASTIAN, in his capacity as Secretary of
Agriculture; ROBERTO DE OCAMPO, in his
capacity as Secretary of Finance; ROBERTO
ROMULO, in his capacity as Secretary of Foreign
Affairs; and TEOFISTO T. GUINGONA, in his
capacity as Executive Secretary, respondents.
WHEREFORE,
respondents
GOVERNMENT
SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION,
COMMITTEE
ON
PRIVATIZATION
and
OFFICE
OF
THE
GOVERNMENT CORPORATE COUNSEL are
directed to CEASE and DESIST from selling 51%
of the shares of the Manila Hotel Corporation to
RENONG BERHAD, and to ACCEPT the matching
bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of
the shares of the Manila Hotel Corporation at
P44.00 per share and thereafter to execute the
necessary agreements and documents to effect the
sale, to issue the necessary clearances and to do
such other acts and deeds as may be necessary for
the purpose.
SO ORDERED
Abelardo T . Domondon for petitioners.
Regalado, Davide, Jr., Romero, Kapunan,

Francisco, and Hermosisima, Jr., JJ., concur.
The Solicitor General for respondents.

SYLLABUS
Narvasa, C.J., I join Justice Puno in his dissent.
1.REMEDIAL LAW; ACTIONS; ESTOPPEL,

SUBJECT TO WAIVER. The matter of estoppel
will not be taken up because this defense is
waivable and the respondents have effectively,
waived it by not pursuing it in any of their pleadings;
in any event, this issue, even if ruled in
respondents' favor, will not cause the petition's
dismissal as there are petitioners other than the two
senators, who are not vulnerable to the defense of
estoppel.
Padilla, Vitug, Mendoza, and Torrens, Jr., JJ., see

concuring opinion.
Puno and Panganiban, JJ., please see separate
(Dissenting) opinion.
||| (Manila Prince Hotel v. Government Service
Insurance System, G.R. No. 122156, [February 3,
1997], 335 PHIL 82-154)
2. TAADA VS. ANGARA 272 SCRA 18
(1997)
2.ID.; ID.; PARTIES; LOCUS STANDI; SUBJECT

TO WAIVER. During its deliberations on the
case, the Court noted that the respondents did not
51
question the locus standi of petitioners. Hence, they

are also deemed to have waived the benefit of such
issue. They probably realized that grave
constitutional issues, expenditures of public funds
and serious international commitments of the nation
are involved here, and that transcendental public
interest requires that the substantive issues be met
head on and decided on the merits, rather than
skirted or deflected by procedural matters.
prohibition and mandamus are appropriate

remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper, acts of
legislative and executive officials.
6.POLITICAL
LAW;
CONSTITUTION;
DECLARATION OF PRINCIPLES AND STATE
POLICIES; AIDS OR GUIDES IN THE EXERCISE
OF JUDICIAL AND LEGISLATIVE POWERS. By
its very title, Article II of the Constitution is a
"declaration of principles and state policies." The
counterpart of this article in the 1935 Constitution is
called the "basic political creed of the nation" by
Dean Vicente Sinco. These principles in Article II
are not intended to be self-executing principles
ready for enforcement through the courts. They are
used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the
leading case of Kilosbayan, Incorporated vs.
Morato, the principles and state policies
enumerated in Article II and some sections of
Article XII are not "self-executing provisions, the
disregard of which can give rise to a cause of
action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for
legislation."
3.ID.; ID.; PETITION SEEKING TO NULLIFY ACT

OF
SENATE
ON
GROUND
THAT
IT
CONTRAVENES
THE
CONSTITUTION,
A
JUSTICIABLE QUESTION. In seeking to nullify
an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt
raises a justiciable controversy. Where an action of
the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the
dispute. "The question thus posed is judicial rather
than political. The duty (to adjudicate) remains to
assure that the supremacy of the Constitution is
upheld." Once a "controversy as to the application
or interpretation of a constitutional provision is
raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by
constitutional mandate to decide."
7.ID.; ID.; THOUGH IT MANDATES A BIAS IN

FAVOR OF FILIPINO GOODS, SERVICES,
LABOR AND ENTERPRISES, IT RECOGNIZES
THE NEED FOR BUSINESS EXCHANGE WITH
THE REST OF THE WORLD. While the
Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at
the same time, it recognizes the need for business
exchange with the rest of the world on the bases of
equality and reciprocity and limits protection of
Filipino enterprises only against foreign competition
and trade practices that are unfair. In other words,
the Constitution did not intend to pursue an
isolationist policy. It did not shut out foreign
investments, goods and services in the
development of the Philippine economy. While the
Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the
country, it does not prohibit them either. In fact, it
allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition
that is unfair.
4.ID.; SUPREME COURT; JUDICIAL POWER;

SCOPE. The jurisdiction of this Court to
adjudicate the matters raised in the petition is
clearly set out in the 1987 Constitution, as follows:
"Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality, of the government." The foregoing
text emphasizes the judicial department's duty and
power to strike down grave abuse of discretion on
the part of any branch or instrumentality, of
government including Congress. It is an innovation
in our political law. As explained by former Chief
Justice Roberto Concepcion, "the judiciary is the
final arbiter on the question of whether or not a
branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction
or so capriciously, as to constitute an abuse of
discretion amounting to excess of jurisdiction. This
is not only a judicial power but a duty to pass
judgment on matters of this nature." As this Court
has repeatedly and firmly emphasized in many
cases, it will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution
in matters that involve grave abuse of discretion
brought before it in appropriate cases, committed
by any officer, agency, instrumentality or
department of the government.
8.REMEDIAL LAW; SPECIAL CIVIL ACTIONS;

CERTIORARI; JOINING THE WORLD TRADE
ORGANIZATION, NOT A GRAVE ABUSE OF
DISCRETION. The basic principles underlying
the WTO Agreement recognize the need of
developing countries like the Philippines to "share
in the growth in international trade commensurate
with the needs of their economic development."
GATT has provided built-in protection from unfair
foreign competition and trade practices including
anti-dumping measures, countervailing measures
and safeguards against import surges. Where local
businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these
5.ID.; SPECIAL CIVIL ACTIONS; CERTIORARI,

PROHIBITION AND MANDAMUS; APPROPRIATE
REMEDIES TO REVIEW ACTS OF LEGISLATIVE
AND EXECUTIVE OFFICIALS. Certiorari,
52
measures. There is hardly therefore any basis for

the statement that under the WTO, local industries
and enterprises will all be wiped out and that
Filipinos will be deprived of control of the economy.
Quite the contrary, the weaker situations of
developing nations like the Philippines have been
taken into account; thus, there would be no basis to
say that in joining the WTO, the respondents have
gravely abused their discretion. True, they have
made a bold decision to steer the ship of state into
the yet uncharted sea of economic liberalization.
But such decision cannot be set aside on the
ground of grave abuse of discretion simply because
we disagree with it or simply because we believe
only in other economic policies. As earlier stated,
the Court in taking jurisdiction of this case will not
pass upon the advantages and disadvantages of
trade liberalization as an economic policy. It will
only, perform its constitutional duty of determining
whether the Senate committed grave abuse of
discretion.
WTO treaty bring this ideal (of favoring the general

welfare) to reality? Will WTO/GATT succeed in
promoting the Filipinos' general welfare because it
will as promised by its promoters expand the
country's exports and generate more employment?
Will it bring more prosperity, employment,
purchasing power and quality products at the most
reasonable rates to the Filipino public? The
responses to these questions involve "judgment
calls" by our policy makers, for which they are
answerable to our people during appropriate
electoral exercises. Such questions and the
answers thereto are not subject to judicial
pronouncements based on grave abuse of
discretion.
12.POLITICAL LAW; SOVEREIGNTY; SUBJECT
TO
RESTRICTIONS
AND
LIMITATIONS
VOLUNTARILY AGREED TO BY THE STATE;
CASE AT BAR. While sovereignty has
traditionally been deemed absolute and allencompassing on the domestic level, it is however
subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly,
as a member of the family of nations. In its
Declaration of Principles and State Policies, the
Constitution "adopts the generally accepted
principles of international law as part of the law of
the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity,
with all nations." By the doctrine of incorporation,
the country is bound by generally accepted
principles of international law, which are considered
to be automatically part of our own laws. One of the
oldest and most fundamental rules in international
law is pacta sunt servanda international
agreements must be performed in good faith. "A
treaty engagement is not a mere moral obligation
but creates a legally binding obligation on the
parties . . . A state which has contracted valid
international obligations is bound to make in its
legislations such modifications as may be
necessary to ensure the fulfillment of the
obligations undertaken."
9.POLITICAL
LAW;
CONSTITUTION;
POLICIES; POLICY OF "SELF-RELIANT AND
INDEPENDENT NATIONAL ECONOMY" DOES
NOT RULE OUT ENTRY OF FOREIGN
INVESTMENTS, GOODS AND SERVICES. The
constitutional policy of a "self-reliant and
independent national economy" does not
necessarily rule out the entry, of foreign
investments, goods and services. It contemplates
neither "economic seclusion" nor "mendicancy in
the international community."
10.POLITICAL LAW; INTERNATIONAL LAW;
WORLD TRADE LAW ORGANIZATION/GENERAL
AGREEMENT ON TARIFFS AND TRADE;
RELIANCE ON "MOST FAVORED NATIONS",
CONSTITUTIONAL. The WTO reliance on "most
favored nation", "national treatment", and "trade
without discrimination" cannot be struck down as
unconstitutional as in fact they are rules of equality
and reciprocity, that apply to all WTO members.
Aside from envisioning a trade policy based on
"equality and reciprocal", the fundamental law
encourages industries that are "competitive in both
domestic
and
foreign
markets,"
thereby
demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the
gradual development of robust industries that can
compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino enterprises
have shown capability and tenacity to compete
internationally. And given a free trade environment,
Filipino entrepreneurs and managers in Hongkong
have demonstrated the Filipino capacity to grow
and to prosper against the best offered under a
policy of laissez faire.
13.ID.; ID.; ID.; ID. When the Philippines joined

the United Nations as one of its 51 charter
members, it consented to restrict its sovereign
rights under the "concept of sovereignty as autolimitation." Under Article 2 of the UN Charter, "(a)ll
members shall give the United Nations every
assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving
assistance to any state against which the United
Nations is taking preventive or enforcement action."
Apart from the UN Treaty, the Philippines has
entered into many other international pacts both
bilateral and multilateral that involve limitations
on Philippine sovereignty the Philippines has
effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain and
police power. The underlying consideration in this
partial surrender of sovereignty is the reciprocal
commitment of the other contracting states in
granting the same privilege and immunities to the
11.REMEDIAL LAW; ACTIONS; QUESTIONS

INVOLVING "JUDGMENT CALLS", NOT SUBJECT
TO JUDICIAL REVIEW. Will adherence to the
53
Philippines, its officials and its citizens. The same

reciprocity
characterizes
the
Philippine
commitments under WTO-GATT. The point is that,
as shown by the foregoing treaties, a portion of
sovereignty may be waived without violating the
Constitution, based on the rationale that the
Philippines "adopts the generally accepted
principles of international law as part of the law of
the land and adheres to the policy of . . .
cooperation and amity with all nations."
within their own internal systems and processes. By

and large, the arguments adduced in connection
with our disposition of the third issue derogation
of a legislative power will apply to this fourth
issue also. Suffice it to say that the reciprocity
clause more than justifies such intrusion, if any
actually exists. Besides, Article 34 does not contain
an unreasonable burden, consistent as it is with
due process and the concept of adversarial dispute
settlement inherent in our judicial system. So too,
since the Philippine is a signatory to most
international conventions on patents, trademarks
and copyrights, the adjustments in legislation and
rules of procedure will not be substantial.
14.ID.; ID.; ID.; WORLD TRADE ORGANIZATION;

PARAGRAPH 1, ARTICLE 34 OF THE GENERAL
PROVISIONS AND BASIC PRINCIPLES OF THE
AGREEMENT ON TRADE-RELATED ASPECTS
OF
INTELLECTUAL
PROPERTY
RIGHTS
(TRIPS); DOES NOT INTRUDE ON THE POWER
OF THE SUPREME COURT TO PROMULGATE
RULES ON PLEADING, PRACTICE AND
PROCEDURES. Petitioners aver that paragraph
1, Article 34 (Process Patents: Burden of Proof) of
the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) intrudes on the power of
the Supreme Court to promulgate rules concerning
pleading, practice and procedures. A WTO Member
is required to provide a rule of disputable (note the
words "in the absence of proof to the contrary")
presumption that a product shown to be identical to
one produced with the use of a patented process
shall be deemed to have been obtained by the
(illegal) use of the said patented process, (1) where
such product obtained by the patented product is
new, or (2) where there is "substantial likelihood"
that the identical product was made with the use of
the said patented process but the owner of the
patent could not determine the exact process used
in obtaining such identical product. Hence, the
"burden of proof" contemplated by Article 34 should
actually be understood as the duty of the alleged
patent infringer to overthrow such presumption.
Such burden, properly understood, actually refers
to the "burden of evidence" (burden of going
forward) placed on the producer of the identical (or
fake) product to show that his product was
produced without the use of the patented process.
The foregoing notwithstanding, the patent owner
still has the "burden of proof" since, regardless of
the presumption provided under paragraph 1 of
Article 34, such owner still has to introduce
evidence of the existence of the alleged identical
product, the fact that it is "identical" to the genuine
one produced by the patented process and the fact
of "newness" of the genuine product was made by
the patented process. Moreover, it should be noted
that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the
product obtained by the patented process is NEW
or (2) there is a substantial likelihood that the
identical product was made by the process and the
process owner has not been able through
reasonable effort to determine the process used.
Where either of these two provisos does not obtain,
members shall be free to determine the appropriate
method of implementing the provisions of TRIPS
15.ID.; ID.; ID.; ID.; MINISTERIAL DECLARATION

AND DECISIONS AND THE UNDERSTANDING
ON COMMITMENTS IN FINANCIAL SERVICES,
NOT SUBJECT TO CONCURRENCE BY THE
SENATE. "A final act, sometimes called protocol
de cloture, is an instrument which records the
winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of
the texts of treaties, conventions, recommendations
and other acts agreed upon and signed by the
plenipotentiaries attending the conference." It is not
the treaty itself. It is rather a summary of the
proceedings of a protracted conference which may
have taken place over several years. The assailed
Senate Resolution No. 97 expressed concurrence
in exactly what the Final Act required from its
signatories, namely, concurrence of the Senate in
the WTO Agreement. The Ministerial Declarations
and Decisions were deemed adopted without need
for ratification. They were approved by the
ministers by virtue of Article XXV: 1 of GATT which
provides that representatives of the members can
meet "to give effect to those provision of this
Agreement which invoke joint action, and generally
with a view to facilitating the operation and
furthering the objectives of this Agreement." The
Understanding on Commitments in Financial
Services also approved in Marrakesh does not
apply to the Philippines. It applies only to those 27
Members which "have indicated in their respective
schedules of commitments on standstill, elimination
of monopoly, expansion of operation of existing
financial service suppliers, temporary entry of
personnel, free transfer and processing of
information, and national treatment with respect to
access to payment, clearing systems and
refinancing available in the normal course of
business."
16.REMEDIAL LAW; SPECIAL CIVIL ACTIONS;
CERTIORARI; RESORT THERETO ON GROUND
OF GRAVE ABUSE OF DISCRETION AVAILABLE
ONLY WHERE THERE IS NO PLAIN, SPEEDY
AND ADEQUATE REMEDY IN THE ORDINARY
COURSE OF LAW. Procedurally. a writ of
certiorari grounded on grave abuse of discretion
may be issued by the Court under Rule 65 of the
Rules of Court when it is amply shown that
petitioners have no other plain, speedy and
adequate remedy in the ordinary course of law.
54
17.ID.; ID.; ID.; GRAVE ABUSE OF DISCRETION,

CONSTRUED. By grave abuse of discretion is
meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction.
Mere abuse of discretion is not enough. It must be
grave abuse of discretion as when the power is
exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and must be
so patent and so gross as to amount to an evasion
of a positive duty or to a virtual refusal to perform
the duty, enjoined or to act at all in contemplation of
law. Failure on the part of the petitioner to show
grave abuse of discretion will result in the dismissal
of the petition.
DECISION
PANGANIBAN, J p:
The emergence on January 1, 1995 of the World
Trade Organization, abetted by the membership
thereto of the vast majority of countries, has
revolutionized international business and economic
relations amongst states. It has irreversibly
propelled the world towards trade liberalization and
economic
globalization.
Liberalization,
globalization, deregulation and privatization, the
third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as
mere historical relics the heretofore traditional
modes of promoting and protecting national
economies like tariffs, export subsidies, import
quotas, quantitative restrictions, tax exemptions
and currency controls. Finding market niches and
becoming the best in specific industries in a
market-driven and export-oriented global scenario
are replacing age-old "beggar-thy-neighbor"
policies that unilaterally protect weak and inefficient
domestic producers of goods and services. In the
words of Peter Drucker, the well-known
management guru, "Increased participation in the
world economy has become the key to domestic
economic growth and prosperity." prll
18.ID.; ID.; ID.; CONCURRENCE BY THE SENATE

IN THE WORLD TRADE ORGANIZATION, NOT A
GRAVE ABUSE OF DISCRETION. In rendering
this Decision, this Court never forgets that the
Senate, whose act is under review, is one of two
sovereign houses of Congress and is thus entitled
to great respect in its actions. It is itself a
constitutional body independent and coordinate,
and thus its actions are presumed regular and done
in good faith. Unless convincing proof and
persuasive arguments are presented to overthrow
such presumptions, this Court will resolve every
doubt in its favor. Using the foregoing well-accepted
definition of grave abuse of discretion and the
presumption of regularity in the Senate's
processes, this Court cannot find any cogent
reason to impute grave abuse of discretion to the
Senate's exercise of its power of concurrence in the
WTO Agreement granted it by Sec. 21 of Article VII
of the Constitution. That the Senate, after
deliberation
and
voting,
voluntarily
and
overwhelmingly gave its consent to the WTO
Agreement thereby making it "a part of the law of
the land" is a legitimate exercise of its sovereign
duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or
personal hostility" in such exercise. It is not
impossible to surmise that this Court, or at least
some of its members, may even agree with
petitioners that it is more advantageous to the
national interest to strike down Senate Resolution
No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to
nullify its decision. To do so would constitute grave
abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid
exercise of its authority. As to whether such
exercise was wise, beneficial or viable is outside
the realm of judicial inquiry and review. That is a
matter between the elected policy makers and the
people. As to whether the nation should join the
worldwide march toward trade liberalization and
economic globalization is a matter that our people
should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of
membership, should this be the political desire of a
member.
Brief Historical Background

To hasten worldwide recovery from the devastation
wrought by the Second World War, plans for the
establishment of three multilateral institutions
inspired by that grand political body, the United
Nations were discussed at Dumbarton Oaks and
Bretton Woods. The first was the World Bank (WB)
which was to address the rehabilitation and
reconstruction of war-ravaged and later developing
countries; the second, the International Monetary
Fund (IMF) which was to deal with currency
problems; and the third, the International Trade
Organization (ITO), which was to foster order and
predictability in world trade and to minimize
unilateral protectionist policies that invite challenge,
even retaliation, from other states. However, for a
variety of reasons, including its non-ratification by
the United States, the ITO, unlike the IMF and WB,
never took off. What remained was only GATT
the General Agreement on Tariffs and Trade. GATT
was a collection of treaties governing access to the
economies of treaty adherents with no
institutionalized body administering the agreements
or dependable system of dispute settlement.
After half a century and several dizzying rounds of
negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world
finally gave birth to that administering body the
World Trade Organization with the signing of the
"Final Act" in Marrakesh, Morocco and the
ratification of the WTO Agreement by its members.
1 1a 1b 1c
55
Like many other developing countries, the

Philippines joined WTO as a founding member with
the goal, as articulated by President Fidel V.
Ramos in two letters to the Senate (infra), of
improving "Philippine access to foreign markets,
especially its major trading partners, through the
reduction of tariffs on its exports, particularly
agricultural and industrial products." The President
also saw in the WTO the opening of "new
opportunities for the services sector . . ., (the
reduction of) costs and uncertainty associated with
exporting . . ., and (the attraction of) more
investments into the country." Although the Chief
Executive did not expressly mention it in his letter,
the Philippines and this is of special interest to
the legal profession will benefit from the WTO
system of dispute settlement by judicial
adjudication through the independent WTO
settlement bodies called (1) Dispute Settlement
Panels and (2) Appellate Tribunal. Heretofore, trade
disputes were settled mainly through negotiations
where solutions were arrived at frequently on the
basis of relative bargaining strengths, and where
naturally, weak and underdeveloped countries were
at a disadvantage.
The Facts
On April 15, 1994, Respondent Rizalino Navarro,
then Secretary of the Department of Trade and
Industry
(Secretary
Navarro,
for
brevity),
representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the
Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations (Final Act, for
brevity).
By signing the Final Act, 2 Secretary Navarro on
behalf of the Republic of the Philippines, agreed:
"(a)to submit, as appropriate, the WTO Agreement
for the consideration of their respective competent
authorities, with a view to seeking approval of the
Agreement in accordance with their procedures;
and
(b)to adopt
Decisions."
the
Ministerial
Declarations
and
On August 12, 1994, the members of the Philippine

Senate received a letter dated August 11, 1994
from the President of the Philippines, 3 stating
among others that "the Uruguay Round Final Act is
hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the
Constitution." cdta
The Petition in Brief

Arguing mainly (1) that the WTO requires the
Philippines "to place nationals and products of
member-countries on the same footing as Filipinos
and local products" and (2) that the WTO "intrudes,
limits and/or impairs" the constitutional powers of
both Congress and the Supreme Court, the instant
petition before this Court assails the WTO
Agreement for violating the mandate of the 1987
Constitution to "develop a self-reliant and
independent
national
economy
effectively
controlled by Filipinos . . . (to) give preference to
qualified Filipinos (and to) promote the preferential
use of Filipino labor, domestic materials and locally
produced goods."
On August 13, 1994, the members of the Philippine

Senate received another letter from the President
of the Philippines 4 likewise dated August 11, 1994,
which stated among others that "the Uruguay
Round Final Act, the Agreement Establishing the
World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding
on Commitments in Financial Services are hereby
submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the
Constitution."
Simply stated, does the Philippine Constitution

prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it
proscribe Philippine integration into a global
economy that is liberalized, deregulated and
privatized? These are the main questions raised in
this petition for certiorari, prohibition and
mandamus under Rule 65 of the Rules of Court
praying (1) for the nullification, on constitutional
grounds, of the concurrence of the Philippine
Senate in the ratification by the President of the
Philippines of the Agreement Establishing the
World Trade Organization (WTO Agreement, for
brevity) and (2) for the prohibition of its
implementation and enforcement through the
release and utilization of public funds, the
assignment of public officials and employees, as
well as the use of government properties and
resources by respondent-heads of various
executive offices concerned therewith. This
concurrence is embodied in Senate Resolution No.
97, dated December 14, 1994.
On December 9, 1994, the President of the

Philippines certified the necessity of the immediate
adoption of P.S. 1083, a resolution entitled
"Concurring in the Ratification of the Agreement
Establishing the World Trade Organization." 5
On December 14, 1994, the Philippine Senate
adopted Resolution No. 97 which "Resolved, as it is
hereby resolved, that the Senate concur, as it
hereby concurs, in the ratification by the President
of the Philippines of the Agreement Establishing the
World Trade Organization." 6 The text of the WTO
Agreement is written on pages 137 et seq. of
Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various
agreements and associated legal instruments
(identified in the said Agreement as Annexes 1, 2
and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as
follows:
"ANNEX I
56
Annex 1A:Multilateral Agreement on Trade in

Goods
aforementioned Agreement Establishing the World

Trade Organization and the agreements and
associated legal instruments included in Annexes
one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at
Marrakesh, Morocco on 15 April 1994, do hereby
ratify and confirm the same and every Article and
Clause thereof."
General Agreement on Tariffs and Trade 1994

Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary
To emphasize, the WTO Agreement ratified by the

President of the Philippines is composed of the
Agreement Proper and "the associated legal
instruments included in Annexes one (1), two (2)
and three (3) of that Agreement which are integral
parts thereof."
Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
On the other hand, the Final Act signed by

Secretary Navarro embodies not only the WTO
Agreement
(and
its
integral
annexes
aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the
Services. In his Memorandum dated May 13, 1996,
8 the Solicitor General describes these two latter
documents as follows:
Agreement on Implementation of Article VI of the

General
Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the
General
on Tariffs and Trade 1994
"The Ministerial Decisions and Declarations are

twenty-five declarations and decisions on a wide
range of matters, such as measures in favor of
least developed countries, notification procedures,
relationship of WTO with the International Monetary
Fund (IMF), and agreements on technical barriers
to trade and on dispute settlement.
Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement
Measures
on
Subsidies
and
Coordinating
The Understanding on Commitments in Financial

Services dwell on, among other things, standstill or
limitations and qualifications of commitments to
existing non-conforming measures, market access,
national treatment, and definitions of non-resident
supplier of financial services, commercial presence
and new financial service." cdti
Agreement on Safeguards
Annex 1B:General Agreement on Trade in Services
and Annexes
Annex 1C:Agreement on Trade-Related Aspects of
Intellectual
On December 29, 1994, the present petition was

filed. After careful deliberation on respondents'
comment and petitioners' reply thereto, the Court
resolved on December 12, 1995, to give due
course to the petition, and the parties thereafter
filed their respective memoranda. The Court also
requested the Honorable Lilia R. Bautista, the
Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a
paper, hereafter referred to as "Bautista Paper," 9
for brevity, (1) providing a historical background of
and (2) summarizing the said agreements.
Property Rights
ANNEX 2
Understanding
Governing the
on
Rules
and
Procedures
Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism"
During the Oral Argument held on August 27, 1996,

the Court directed:
On December 16, 1994, the President of the

Philippines signed 7 the Instrument of Ratification,
declaring:
"(a)the petitioners to submit the (1) Senate

Committee Report on the matter in controversy and
(2) the transcript of proceedings/hearings in the
Senate; and
"NOW THEREFORE, be it known that I, FIDEL V.

RAMOS, President of the Republic of the
Philippines, after having seen and considered the
57
(b)the Solicitor General, as counsel for

respondents, to file (1) a list of Philippine treaties
signed prior to the Philippine adherence to the
WTO Agreement, which derogate from Philippine
sovereignty and (2) copies of the multi-volume
WTO Agreement and other documents mentioned
in the Final Act, as soon as possible."
Final Act, Ministerial Declaration and Decisions,

and the Understanding on Commitments in
Financial Services."
After receipt of the foregoing documents, the Court

said it would consider the case submitted for
resolution. In a Compliance dated September 16,
1996, the Solicitor General submitted a printed
copy of the 36-volume Uruguay Round of
Multilateral Trade Negotiations, and in another
Compliance dated October 24, 1996, he listed the
various "bilateral or multilateral treaties or
international instruments involving derogation of
Philippine sovereignty." Petitioners, on the other
hand, submitted their Compliance dated January
28, 1997, on January 30, 1997.
"1.Whether or not the provisions of the 'Agreement

Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments
included in Annexes one (1), two (2) and three (3)
of that agreement' cited by petitioners directly
contravene or undermine the letter, spirit and intent
of Section 19, Article II and Sections 10 and 12,
Article XII of the 1987 Constitution.
The Issues
In their Memorandum dated March 11, 1996,
petitioners summarized the issues as follows:
3.Whether or not certain provisions of the

Agreement impair the exercise of judicial power by
this Honorable Court in promulgating the rules of
evidence.
On the other hand, the Solicitor General as counsel

for respondents "synthesized the several issues
raised by petitioners into the following": 10
2.Whether or not certain provisions of the

Agreement unduly limit, restrict or impair the
exercise of legislative power by Congress.
"A.Whether the petition presents a political question

or is otherwise not justiciable.
4.Whether or not the concurrence of the Senate 'in

the ratification by the President of the Philippines of
the Agreement establishing the World Trade
Organization' implied rejection of the treaty
embodied in the Final Act."
B.Whether the petitioner members of the Senate

who participated in the deliberations and voting
leading to the concurrence are estopped from
impugning the validity of the Agreement
Establishing the World Trade Organization or of the
validity or of the concurrence.
By raising and arguing only four issues against the

seven presented by petitioners, the Solicitor
General has effectively ignored three, namely: (1)
whether the petition presents a political question or
is otherwise not justiciable; (2) whether petitionermembers of the Senate (Wigberto E. Taada and
Anna Dominique Coseteng) are estopped from
joining this suit; and (3) whether the respondentmembers of the Senate acted in grave abuse of
discretion when they voted for concurrence in the
ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with
these three issues thus: cdt
C.Whether the provisions of the Agreement

Establishing the World Trade Organization
contravene the provisions of Sec. 19, Article II, and
Secs. 10 and 12, Article XII, all of the 1987
Philippine Constitution.
D.Whether
provisions
of
the
Agreement
Establishing the World Trade Organization unduly
limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec.
2, Article VI, 1987 Philippine Constitution is 'vested
in the Congress of the Philippines';
(1)The "political question" issue being very

fundamental and vital, and being a matter that
probes into the very jurisdiction of this Court to hear
and decide this case was deliberated upon by
the Court and will thus be ruled upon as the first
issue;
E.Whether
provisions
of
the
Agreement
Establishing the World Trade Organization interfere
with the exercise of judicial power.
F.Whether the respondent members of the Senate
acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they voted for
concurrence
in
the
ratification
of
the
constitutionally-infirm Agreement Establishing the
World Trade Organization.
(2)The matter of estoppel will not be taken up

because this defense is waivable and the
respondents have effectively waived it by not
pursuing it in any of their pleadings; in any event,
this issue, even if ruled in respondents' favor, will
not cause the petition's dismissal as there are
petitioners other than the two senators, who are not
vulnerable to the defense of estoppel; and
G.Whether the respondent members of the Senate

acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they concurred
only in the ratification of the Agreement
Establishing the World Trade Organization, and not
with the Presidential submission which included the
(3)The issue of alleged grave abuse of discretion

on the part of the respondent senators will be taken
58
up as an integral part of the disposition of the four

issues raised by the Solicitor General.
The jurisdiction of this Court to adjudicate the

matters 14 raised in the petition is clearly set out in
the 1987 Constitution, 15 as follows:
During its deliberations on the case, the Court

noted that the respondents did not question the
locus standi of petitioners. Hence, they are also
deemed to have waived the benefit of such issue.
They probably realized that grave constitutional
issues, expenditures of public funds and serious
international commitments of the nation are
involved here, and that transcendental public
interest requires that the substantive issues be met
head on and decided on the merits, rather than
skirted or deflected by procedural matters. 11
"Judicial power includes the duty of the courts of

instrumentality of the government."
The foregoing text emphasizes the judicial
department's duty and power to strike down grave
abuse of discretion on the part of any branch or
instrumentality of government including Congress.
It is an innovation in our political law. 16 As
explained by former Chief Justice Roberto
Concepcion, 17 "the judiciary is the final arbiter on
the question of whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction. This is not only
a judicial power but a duty to pass judgment on
matters of this nature."
To recapitulate, the issues that will be ruled upon

shortly are:
(1)DOES
THE
PETITION
PRESENT
A
JUSTICIABLE CONTROVERSY? OTHERWISE
STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS
COURT HAS NO JURISDICTION?
(2)DO THE PROVISIONS OF THE WTO
AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS.
10 AND 12, ARTICLE XII, OF THE PHILIPPINE
CONSTITUTION?
As this Court has repeatedly and firmly emphasized

in many cases, 18 it will not shirk, digress from or
abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or
department of the government. LibLex
(3)DO THE PROVISIONS OF SAID AGREEMENT

AND ITS ANNEXES LIMIT, RESTRICT, OR IMPAIR
THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4)DO SAID PROVISIONS UNDULY IMPAIR OR
INTERFERE WITH THE EXERCISE OF JUDICIAL
POWER BY THIS COURT IN PROMULGATING
RULES ON EVIDENCE?
As the petition alleges grave abuse of discretion

and as there is no other plain, speedy or adequate
remedy in the ordinary course of law, we have no
hesitation at all in holding that this petition should
be given due course and the vital questions raised
therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus
are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials.
On this, we have no equivocation.
(5)WAS THE CONCURRENCE OF THE SENATE

IN THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING
THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS
IN FINANCIAL SERVICES?
The First Issue: Does the Court Have Jurisdiction
Over the Controversy?
In seeking to nullify an act of the Philippine Senate
on the ground that it contravenes the Constitution,
the petition no doubt raises a justiciable
controversy. Where an action of the legislative
branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in
fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure
that the supremacy of the Constitution is upheld."
12 Once a "controversy as to the application or
interpretation of a constitutional provision is raised
before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by
constitutional mandate to decide." 13
We should stress that, in deciding to take

jurisdiction over this petition, this Court will not
review the wisdom of the decision of the President
and the Senate in enlisting the country into the
WTO, or pass upon the merits of trade liberalization
as a policy espoused by said international body.
Neither will it rule on the propriety of the
government's
economic
policy
of
reducing/removing
tariffs,
taxes,
subsidies,
quantitative restrictions, and other import/trade
barriers. Rather, it will only exercise its
constitutional duty "to determine whether or not
there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the
59
part of the Senate in ratifying the WTO Agreement

and its three annexes.
"Article 2
National Treatment and Quantitative Restrictions.
Second Issue: The WTO Agreement and Economic

Nationalism
This is the lis mota, the main issue, raised by the
petition.
1.Without prejudice to other rights and obligations

under GATT 1994. No Member shall apply any
TRIM that is inconsistent with the provisions of
Article III or Article XI of GATT 1994.
Petitioners vigorously argue that the "letter, spirit

and intent" of the Constitution mandating
"economic nationalism" are violated by the socalled "parity provisions" and "national treatment"
clauses scattered in various parts not only of the
WTO Agreement and its annexes but also in the
Ministerial Decisions and Declarations and in the
Services.
2.An Illustrative list of TRIMS that are inconsistent

with the obligations of general elimination of
quantitative restrictions provided for in paragraph I
of Article XI of GATT 1994 is contained in the
Annex to this Agreement." (Agreement on TradeRelated Investment Measures, Vol. 27, Uruguay
Round, Legal Instruments, p. 22121, emphasis
supplied).
Specifically, the "flagship" constitutional provisions

referred to are Sec. 19, Article II, and Secs. 10 and
12, Article XII, of the Constitution, which are worded
as follows:
The Annex referred to reads as follows:

"ANNEX
Illustrative List
"Article II
1.TRIMS that are inconsistent with the obligation of
national treatment provided for in paragraph 4 of
Article III of GATT 1994 include those which are
mandatory or enforceable under domestic law or
under administrative rulings, or compliance with
which is necessary to obtain an advantage, and
which require:

POLICIES
xxx xxx xxx
Sec. 19.The State shall develop a self-reliant and
independent
national
economy
effectively
controlled by Filipinos.
(a)the purchase or use by an enterprise of products

of domestic origin or from any domestic source,
whether specified in terms of particular products, in
terms of volume or value of products, or in terms of
proportion of volume or value of its local production;
or
xxx xxx xxx

Article XII
NATIONAL ECONOMY AND PATRIMONY
(b)that an enterprise's purchases or use of

imported products be limited to an amount related
to the volume or value of local products that it
exports. LLjur
xxx xxx xxx

Sec. 10. . . The Congress shall enact measures
that will encourage the formation and operation of
enterprises whose capital is wholly owned by
Filipinos.
2.TRIMS that are inconsistent with the obligations

of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or
enforceable under domestic laws or under
administrative rulings, or compliance with which is
necessary to obtain an advantage, and which
restrict:
In the grant of rights, privileges, and concessions

State shall give preference to qualified Filipinos.
xxx xxx xxx
Sec. 12.The State shall promote the preferential
produced goods, and adopt measures that help
make them competitive."
(a)the importation by an enterprise of products

used in or related to the local production that it
exports;
(b)the importation by an enterprise of products
used in or related to its local production by
restricting its access to foreign exchange inflows
attributable to the enterprise; or
Petitioners aver that these sacred constitutional

principles are desecrated by the following WTO
provisions quoted in their memorandum: 19
"a)In the area of investment measures related to
trade in goods (TRIMS, for brevity):
(c)the exportation or sale for export specified in

terms of particular products, in terms of volume or
value of products, or in terms of a preparation of
60
volume or value of its local production." (Annex to

the Agreement on Trade-Related Investment
Measures, Vol. 27, Uruguay Round Legal
Documents, p. 22125, emphasis supplied).
Agreement on Trade in Services, Vol. 28, Uruguay

Round Legal Instruments, p. 22610 emphasis
supplied)."
It is petitioners' position that the foregoing "national
treatment" and "parity provisions" of the WTO
Agreement "place nationals and products of
member countries on the same footing as Filipinos
and local products," in contravention of the "Filipino
First" policy of the Constitution. They allegedly
render meaningless the phrase "effectively
controlled by Filipinos." The constitutional conflict
becomes more manifest when viewed in the
context of the clear duty imposed on the Philippines
as a WTO member to ensure the conformity of its
laws, regulations and administrative procedures
with its obligations as provided in the annexed
agreements. 20 Petitioners further argue that these
provisions contravene constitutional limitations on
the role exports play in national development and
negate the preferential treatment accorded to
Filipino labor, domestic materials and locally
produced goods.
The paragraph 4 of Article III of GATT 1994 referred

to is quoted as follows:
The products of the territory of any contracting
party imported into the territory of any other
contracting party shall be accorded treatment no
less favorable than that accorded to like products of
national origin in respect of laws, regulations and
requirements affecting their internal sale, offering
for sale, purchase, transportation, distribution or
use. The provisions of this paragraph shall not
prevent the application of differential internal
transportation charges which are based exclusively
on the economic operation of the means of
transport and not on the nationality of the product."
(Article III, GATT 1947, as amended by the Protocol
Modifying Part II, and Article XXVI of GATT, 14
September 1948, 62 UMTS 82-84 in relation to
paragraph 1 (a) of the General Agreement on
Tariffs and Trade 1994, Vol. 1, Uruguay Round,
Legal Instruments p. 177, emphasis supplied).
"b)In the area of trade-related aspects
intellectual property rights (TRIPS, for brevity):
On the other hand, respondents through the

Solicitor General counter (1) that such Charter
provisions are not self-executing and merely set out
general policies; (2) that these nationalistic portions
of the Constitution invoked by petitioners should not
be read in isolation but should be related to other
relevant provisions of Art. XII, particularly Secs. 1
and 13 thereof; (3) that read properly, the cited
WTO clauses do not conflict with the Constitution;
and (4) that the WTO Agreement contains sufficient
provisions to protect developing countries like the
Philippines from the harshness of sudden trade
liberalization. LLphil
of
Each Member shall accord to the nationals of other

Members treatment no less favourable than that it
accords to its own nationals with regard to the
protection of intellectual property . . . (par. 1, Article
3, Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay
Round, Legal Instruments, p. 25432 (emphasis
supplied)
We shall now discuss and rule on these arguments.

"(c)In the area of the General Agreement on Trade
in Services:
Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a
"declaration of principles and state policies." The
counterpart of this article in the 1935 Constitution
21 is called the "basic political creed of the nation"
by Dean Vicente Sinco. 22 These principles in
Article II are not intended to be self-executing
principles ready for enforcement through the courts.
23 They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review,
and by the legislature in its enactment of laws. As
held in the leading case of Kilosbayan,
Incorporated vs. Morato, 24 the principles and state
policies enumerated in Article II and some sections
of Article XII are not "self-executing provisions, the
disregard of which can give rise to a cause of
action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for
legislation."
National Treatment
1.In the sectors inscribed in its schedule, and
subject to any conditions and qualifications set out
therein, each Member shall accord to services and
service suppliers of any other Member, in respect of
all measures affecting the supply of services,
treatment no less favourable than it accords to its
own like services and service suppliers.
2.A Member may meet the requirement of
paragraph I by according to services and service
suppliers of any other Member, either formally
identical treatment or formally different treatment to
that it accords to its own like services and service
suppliers.
3.Formally identical or formally different treatment
shall be considered to be less favourable if it
modifies the conditions of completion in favour of
services or service suppliers of the Member
compared to like services or service suppliers of
any other Member. (Article XVII, General
In the same light, we held in Basco vs. Pagcor 25

that broad constitutional principles need legislative
enactments to implement them, thus:
61
be expected to fall back on the expanded

conception of judicial power in the second
paragraph of Section 1 of Article VIII of the
Constitution which reads:
"On petitioners' allegation that P.D. 1869 violates

Sections 11 (Personal Dignity) 12 (Family) and 13
(Role of Youth) of Article II; Section 13 (Social
Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely
statements of principles and policies. As such, they
are basically not self-executing, meaning a law
should be passed by Congress to clearly define
and effectuate such principles.
'Section 1.. . .
Judicial power includes the duty of the courts of
instrumentality of the Government.' (Emphases
supplied)
'In general, therefore, the 1935 provisions were not

intended to be self-executing principles ready for
enforcement through the courts. They were rather
directives addressed to the executive and to the
legislature. If the executive and the legislature
failed to heed the directives of the article, the
available remedy was not judicial but political. The
electorate could express their displeasure with the
failure of the executive and the legislature through
the language of the ballot. (Bernas, Vol. II, p. 2)."
When substantive standards as general as 'the

right to a balanced and healthy ecology' and 'the
right to health' are combined with remedial
standards as broad ranging as 'a grave abuse of
jurisdiction,' the result will be, it is respectfully
submitted, to propel courts into the uncharted
ocean of social and economic policy making. At
least in respect of the vast area of environmental
protection and management, our courts have no
claim to special technical competence and
experience and professional qualification. Where
no specific, operable norms and standards are
shown to exist, then the policy making departments
the legislative and executive departments
must be given a real and effective opportunity to
fashion and promulgate those norms and
standards, and to implement them before the courts
should intervene." cdasia
The reasons for denying a cause of action to an

alleged infringement of broad constitutional
principles are sourced from basic considerations of
due process and the lack of judicial authority to
wade "into the uncharted ocean of social and
economic policy making." Mr. Justice Florentino P.
Feliciano in his concurring opinion in Oposa vs.
Factoran, Jr., 26 explained these reasons as
follows:
"My suggestion is simply that petitioners must,
before the trial court, show a more specific legal
right a right cast in language of a significantly
lower order of generality than Article II (15) of the
Constitution that is or may be violated by the
actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can
validly render judgment granting all or part of the
relief prayed for. To my mind, the court should be
understood as simply saying that such a more
specific legal right or rights may well exist in our
corpus of law, considering the general policy
principles found in the Constitution and the
existence of the Philippine Environment Code, and
that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of
aborting the proceedings on a motion to dismiss.
Economic Nationalism Should Be Read with Other

Constitutional Mandates to Attain Balanced
Development of Economy
On the other hand, Secs. 10 and 12 of Article XII,
apart from merely laying down general principles
relating to the national economy and patrimony,
should be read and understood in relation to the
other sections in said article, especially Secs. 1 and
13 thereof which read:
"Section 1.The goals of the national economy are a
more equitable distribution of opportunities, income,
and wealth; a sustained increase in the amount of
goods and services produced by the nation for the
benefit of the people; and an expanding productivity
as the key to raising the quality of life for all,
especially the underprivileged.
It seems to me important that the legal right which

is an essential component of a cause of action be a
specific, operable legal right, rather than a
constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed
to have been violated or disregarded is given
specification in operational terms, defendants may
well be unable to defend themselves intelligently
and effectively; in other words, there are due
process dimensions to this matter.
The State shall promote industrialization and full

employment
based
on sound
agricultural
development and agrarian reform, through
industries that make full and efficient use of human
and natural resources, and which are competitive in
both domestic and foreign markets. However, the
State shall protect Filipino enterprises against
unfair foreign competition and trade practices.
The second is a broader-gauge consideration

where a specific violation of law or applicable
regulation is not alleged or proved, petitioners can
62
In the pursuit of these goals, all sectors of the

economy and all regions of the country shall be
given optimum opportunity to develop. . .
Rather, the issue is whether, as a rule, there are

enough balancing provisions in the Constitution to
allow the Senate to ratify the Philippine
concurrence in the WTO Agreement. And we hold
that there are.
xxx xxx xxx

Sec. 13.The State shall pursue a trade policy that
serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of
equality and reciprocity."
All told, while the Constitution indeed mandates a

bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the
need for business exchange with the rest of the
world on the bases of equality and reciprocity and
limits protection of Filipino enterprises only against
foreign competition and trade practices that are
unfair. 32 In other words, the Constitution did not
intend to pursue an isolationist policy. It did not shut
out foreign investments, goods and services in the
development of the Philippine economy. While the
Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the
country, it does not prohibit them either. In fact, it
allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition
that is unfair.
As pointed out by the Solicitor General, Sec. 1 lays

down the basic goals of national economic
development, as follows:
1.A more equitable distribution of opportunities,
income and wealth;
2.A sustained increase in the amount of goods and
services provided by the nation for the benefit of
the people; and
3.An expanding productivity as the key to raising
the quality of life for all especially the
underprivileged.
WTO Recognizes Need to Protect Weak

Economies
Upon the other hand, respondents maintain that the
WTO itself has some built-in advantages to protect
weak and developing economies, which comprise
the vast majority of its members. Unlike in the UN
where major states have permanent seats and veto
powers in the Security Council, in the WTO,
decisions are made on the basis of sovereign
equality, with each member's vote equal in weight
to that of any other. There is no WTO equivalent of
the UN Security Council. aisadc
With these goals in context, the Constitution then

ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos
"in the grant of rights, privileges and concessions
covering the national economy and patrimony" 27
and in the use of "Filipino labor, domestic materials
and locally-produced goods"; (2) by mandating the
State to "adopt measures that help make them
competitive; 28 and (3) by requiring the State to
"develop a self-reliant and independent national
economy effectively controlled by Filipinos." 29 In
similar language, the Constitution takes into
account the realities of the outside world as it
requires the pursuit of "a trade policy that serves
the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality
and reciprocity"; 30 and speaks of industries "which
are competitive in both domestic and foreign
markets" as well as of the protection of "Filipino
enterprises against unfair foreign competition and
trade practices."
"WTO decides by consensus whenever possible,

otherwise, decisions of the Ministerial Conference
and the General Council shall be taken by the
majority of the votes cast, except in cases of
interpretation of the Agreement or waiver of the
obligation of a member which would require three
fourths vote. Amendments would require two thirds
vote in general. Amendments to MFN provisions
and the Amendments provision will require assent
of all members. Any member may withdraw from
the Agreement upon the expiration of six months
from the date of notice of withdrawals." 33
It is true that in the recent case of Manila Prince

Hotel vs. Government Service Insurance System,
et al., 31 this Court held that "Sec. 10, second par.,
Art. XII of the 1987 Constitution is a mandatory,
positive command which is complete in itself and
which needs no further guidelines or implementing
laws or rules for its enforcement. From its very
words the provision does not require any legislation
to put it in operation. It is per se judicially
enforceable." However, as the constitutional
provision itself states, it is enforceable only in
regard to "the grants of rights, privileges and
concessions covering national economy and
patrimony" and not to every aspect of trade and
commerce. It refers to exceptions rather than the
rule. The issue here is not whether this paragraph
of Sec. 10 of Art. XII is self-executing or not.
Hence, poor countries can protect their common

interests more effectively through the WTO than
through one-on-one negotiations with developed
countries. Within the WTO, developing countries
can form powerful blocs to push their economic
agenda more decisively than outside the
Organization. This is not merely a matter of
practical alliances but a negotiating strategy rooted
in law. Thus, the basic principles underlying the
WTO Agreement recognize the need of developing
countries like the Philippines to "share in the growth
in international trade commensurate with the needs
of their economic development." These basic
63
principles are found in the preamble 34 of the WTO

Agreement as follows:
compared to only 13% for developing countries to

be effected within ten (10) years.
"The Parties to this Agreement,
In regard to export subsidy for agricultural products,

GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and
export volumes receiving export subsidy by 21%
within a period of six (6) years. For developing
countries, however, the reduction rate is only twothirds of that prescribed for developed countries
and a longer period of ten (10) years within which
to effect such reduction.
Recognizing that their relations in the field of trade

and economic endeavour should be conducted with
a view to raising standards of living, ensuring full
employment and a large and steadily growing
volume of real income and effective demand, and
expanding the production of and trade in goods and
services, while allowing for the optimal use of the
world's resources in accordance with the objective
of sustainable development, seeking both to protect
and preserve the environment and to enhance the
means for doing so in a manner consistent with
their respective needs and concerns at different
levels of economic development,
Moreover, GATT itself has provided built-in

protection from unfair foreign competition and trade
practices
including
anti-dumping
measures,
countervailing measures and safeguards against
import surges. Where local businesses are
jeopardized by unfair foreign competition, the
Philippines can avail of these measures. There is
hardly therefore any basis for the statement that
under the WTO, local industries and enterprises will
all be wiped out and that Filipinos will be deprived
of control of the economy. Quite the contrary, the
weaker situations of developing nations like the
Philippines have been taken into account; thus,
there would be no basis to say that in joining the
WTO, the respondents have gravely abused their
discretion. True, they have made a bold decision to
steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot
be set aside on the ground of grave abuse of
discretion, simply because we disagree with it or
simply because we believe only in other economic
policies. As earlier stated, the Court in taking
jurisdiction of this case will not pass upon the
advantages
and
disadvantages
of
trade
liberalization as an economic policy. It will only
perform its constitutional duty of determining
whether the Senate committed grave abuse of
discretion. cdtai
Recognizing further that there is need for positive

efforts designed to ensure that developing
countries, and especially the least developed
among them, secure a share in the growth in
international trade commensurate with the needs of
their economic development,
Being desirous of contributing to these objectives
by entering into reciprocal and mutually
advantageous arrangements directed to the
substantial reduction of tariffs and other barriers to
trade and to the elimination of discriminatory
treatment in international trade relations,
Resolved, therefore, to develop an integrated, more
viable and durable multilateral trading system
encompassing the General Agreement on Tariffs
and Trade, the results of past trade liberalization
efforts, and all of the results of the Uruguay Round
of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to
further the objectives underlying this multilateral
trading system, . . ." (emphasis supplied.)
Constitution Does Not Rule Out Foreign

Competition
Furthermore, the constitutional policy of a "selfreliant and independent national economy" 35 does
not necessarily rule out the entry of foreign
investments, goods and services. It contemplates
neither "economic seclusion" nor "mendicancy in
the international community." As explained by
Constitutional Commissioner Bernardo Villegas,
sponsor of this constitutional policy:
Specific WTO Provisos Protect Developing

Countries
So too, the Solicitor General points out that
pursuant to and consistent with the foregoing basic
principles, the WTO Agreement grants developing
countries a more lenient treatment, giving their
domestic industries some protection from the rush
of foreign competition. Thus, with respect to tariffs
in general, preferential treatment is given to
developing countries in terms of the amount of tariff
reduction and the period within which the reduction
is to be spread out. Specifically, GATT requires an
average tariff reduction rate of 36% for developed
countries to be effected within a period of six (6)
years while developing countries including the
Philippines are required to effect an average
tariff reduction of only 24% within ten (10) years.
"Economic self reliance is a primary objective of a

developing country that is keenly aware of
overdependence on external assistance for even its
most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding
mendicancy in the international community.
Independence refers to the freedom from undue
foreign control of the national economy, especially
in such strategic industries as in the development
of natural resources and public utilities." 36
In respect to domestic subsidy, GATT requires

developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as
64
The WTO reliance on "most favored nation,"

"national
treatment,"
and
"trade
without
discrimination" cannot be struck down as
unconstitutional as in fact they are rules of equality
and reciprocity that apply to all WTO members.
Aside from envisioning a trade policy based on
"equality and reciprocity," 37 the fundamental law
encourages industries that are "competitive in both
domestic
and
foreign
markets,"
thereby
demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the
gradual development of robust industries that can
compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino enterprises
have shown capability and tenacity to compete
internationally. And given a free trade environment,
Filipino entrepreneurs and managers in Hongkong
have demonstrated the Filipino capacity to grow
and to prosper against the best offered under a
policy of laissez faire.
the 1935 Constitution became effective. Did that

necessarily mean that the then Constitution might
not have contemplated a diminution of the
absoluteness of sovereignty when the Philippines
signed the UN Charter, thereby effectively
surrendering part of its control over its foreign
relations to the decisions of various UN organs like
the Security Council?
It is not difficult to answer this question.
Constitutions are designed to meet not only the
vagaries of contemporary events. They should be
interpreted to cover even future and unknown
circumstances. It is to the credit of its drafters that a
Constitution can withstand the assaults of bigots
and infidels but at the same time bend with the
refreshing winds of change necessitated by
unfolding events. As one eminent political law writer
and respected jurist 38 explains:
"The Constitution must be quintessential rather
than superficial, the root and not the blossom, the
base and framework only of the edifice that is yet to
rise. It is but the core of the dream that must take
shape, not in a twinkling by mandate of our
delegates, but slowly 'in the crucible of Filipino
minds and hearts,' where it will in time develop its
sinews and gradually gather its strength and finally
achieve its substance. In fine, the Constitution
cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor
can it conjure by mere fiat an instant Utopia. It must
grow with the society it seeks to re-structure and
march apace with the progress of the race, drawing
from the vicissitudes of history the dynamism and
vitality that will keep it, far from becoming a petrified
rule, a pulsing, living law attuned to the heartbeat of
the nation." cdtech
Constitution Favors Consumers, Not Industries or

Enterprises
The Constitution has not really shown any
unbalanced bias in favor of any business or
enterprise, nor does it contain any specific
pronouncement that Filipino companies should be
pampered with a total proscription of foreign
competition. On the other hand, respondents claim
that WTO/GATT aims to make available to the
Filipino consumer the best goods and services
obtainable anywhere in the world at the most
reasonable prices. Consequently, the question boils
down to whether WTO/GATT will favor the general
welfare of the public at large.
Will adherence to the WTO treaty bring this ideal
(of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos'
general welfare because it will as promised by
its promoters expand the country's exports and
generate more employment?
Third Issue: The WTO Agreement and Legislative

Power
The WTO Agreement provides that "(e)ach Member
shall ensure the conformity of its laws, regulations
and administrative procedures with its obligations
as provided in the annexed Agreements." 39
Petitioners maintain that this undertaking "unduly
limits, restricts and impairs Philippine sovereignty,
specifically the legislative power which under Sec.
2, Article VI of the 1987 Philippine Constitution is
vested in the Congress of the Philippines. It is an
assault on the sovereign powers of the Philippines
because this means that Congress could not pass
legislation that will be good for our national interest
and general welfare if such legislation will not
conform with the WTO Agreement, which not only
relates to the trade in goods . . . but also to the flow
of investments and money . . . as well as to a whole
slew of agreements on socio-cultural matters . . ."
40
Will it bring more prosperity, employment,

purchasing power and quality products at the most
reasonable rates to the Filipino public?
The responses to these questions involve
"judgment calls" by our policy makers, for which
they are answerable to our people during
appropriate electoral exercises. Such questions
and the answers thereto are not subject to judicial
pronouncements based on grave abuse of
discretion.
Constitution Designed to Meet Future Events and
Contingencies
No doubt, the WTO Agreement was not yet in
existence when the Constitution was drafted and
ratified in 1987. That does not mean however that
the Charter is necessarily flawed in the sense that
its framers might not have anticipated the advent of
a borderless world of business. By the same token,
the United Nations was not yet in existence when
More specifically, petitioners claim that said WTO

proviso derogates from the power to tax, which is
lodged in the Congress. 41 And while the
65
Constitution allows Congress to authorize the

President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other
duties or imposts, such authority is subject to
"specified limits and . . . such limitations and
restrictions" as Congress may provide, 42 as in fact
it did under Sec. 401 of the Tariff and Customs
Code.
"Today, no nation can build its destiny alone. The

age of self-sufficient nationalism is over. The age of
interdependence is here." 47
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United
Nations as one of its 51 charter members, it
consented to restrict its sovereign rights under the
"concept of sovereignty as auto-limitation." 47-A
Under Article 2 of the UN Charter, "(a)ll members
shall give the United Nations every assistance in
any action it takes in accordance with the present
Charter, and shall refrain from giving assistance to
any state against which the United Nations is taking
preventive or enforcement action." Such assistance
includes payment of its corresponding share not
merely in administrative expenses but also in
expenditures for the peace-keeping operations of
the organization. In its advisory opinion of July 20,
1961, the International Court of Justice held that
money used by the United Nations Emergency
Force in the Middle East and in the Congo were
"expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its
members must bear their corresponding share in
such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It
is compelled to appropriate funds whether it agrees
with such peace-keeping expenses or not. So too,
under Article 105 of the said Charter, the UN and its
representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of
sovereignty of members within their own territory.
Another example: although "sovereign equality"
and "domestic jurisdiction" of all members are set
forth as underlying principles in the UN Charter,
such provisos are however subject to enforcement
measures decided by the Security Council for the
maintenance of international peace and security
under Chapter VII of the Charter. A final example:
under Article 103, "(i)n the event of a conflict
between the obligations of the Members of the
United Nations under the present Charter and their
obligations
under
any
other
international
agreement, their obligation under the present
charter shall prevail," thus unquestionably denying
the Philippines as a member the sovereign
power to make a choice as to which of conflicting
obligations, if any, to honor. cda
Sovereignty Limited by International Law and

Treaties
This Court notes and appreciates the ferocity and
passion by which petitioners stressed their
arguments on this issue. However, while
sovereignty has traditionally been deemed absolute
and all-encompassing on the domestic level, it is
however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly
or impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a
hermit-type isolation of the country from the rest of
the world. In its Declaration of Principles and State
Policies, the Constitution "adopts the generally
accepted principles of international law as part of
the law of the land, and adheres to the policy of
peace, equality, justice, freedom, cooperation and
amity, with all nations." 43 By the doctrine of
incorporation, the country is bound by generally
accepted principles of international law, which are
considered to be automatically part of our own
laws. 44 One of the oldest and most fundamental
rules in international law is pacta sunt servanda
international agreements must be performed in
good faith. "A treaty engagement is not a mere
moral obligation but creates a legally binding
obligation on the parties . . . A state which has
contracted valid international obligations is bound
to make in its legislations such modifications as
may be necessary to ensure the fulfillment of the
obligations undertaken." 45
By their inherent nature, treaties really limit or
restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects
of their state power in exchange for greater benefits
granted by or derived from a convention or pact.
After all, states, like individuals, live with coequals,
and in pursuit of mutually covenanted objectives
and benefits, they also commonly agree to limit the
exercise of their otherwise absolute rights. Thus,
treaties have been used to record agreements
between States concerning such widely diverse
matters as, for example, the lease of naval bases,
the sale or cession of territory, the termination of
war, the regulation of conduct of hostilities, the
formation of alliances, the regulation of commercial
relations, the settling of claims, the laying down of
rules governing conduct in peace and the
establishment of international organizations. 46 The
sovereignty of a state therefore cannot in fact and
in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the
family of nations and (2) limitations imposed by
treaty stipulations. As aptly put by John F. Kennedy,
Apart from the UN Treaty, the Philippines has

entered into many other international pacts both
bilateral and multilateral that involve limitations
on Philippine sovereignty. These are enumerated
by the Solicitor General in his Compliance dated
October 24, 1996, as follows:
"(a)Bilateral convention with the United States
regarding taxes on income, where the Philippines
agreed, among others, to exempt from tax, income
received in the Philippines by, among others, the
Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the
Overseas Private Investment Corporation of the
United States. Likewise, in said convention, wages,
66
salaries and similar remunerations paid by the

United States to its citizens for labor and personal
services performed by them as employees or
officials of the United States are exempt from
income tax by the Philippines.
question of international law, the existence of any

fact which, if established, would constitute a breach
of international obligation."
In the foregoing treaties, the Philippines has
effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain and
police power. The underlying consideration in this
partial surrender of sovereignty is the reciprocal
commitment of the other contracting states in
granting the same privilege and immunities to the
Philippines, its officials and its citizens. The same
reciprocity
characterizes
the
Philippine
commitments under WTO-GATT.
(b)Bilateral agreement with Belgium, providing,

among others, for the avoidance of double taxation
with respect to taxes on income.
(c)Bilateral convention with the Kingdom of Sweden
for the avoidance of double taxation.
(d)Bilateral convention with the French Republic for
the avoidance of double taxation.
(e)Bilateral air transport agreement with Korea
where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties or
taxes aircrafts of South Korea and the regular
equipment, spare parts and supplies arriving with
said aircrafts.
"International treaties, whether relating to nuclear

disarmament, human rights, the environment, the
law of the sea, or trade, constrain domestic political
sovereignty through the assumption of external
obligations. But unless anarchy in international
relations is preferred as an alternative, in most
cases we accept that the benefits of the reciprocal
obligations involved outweigh the costs associated
with any loss of political sovereignty. (T)rade
treaties that structure relations by reference to
durable, well-defined substantive norms and
objective dispute resolution procedures reduce the
risks of larger countries exploiting raw economic
power to bully smaller countries, by subjecting
power relations to some form of legal ordering. In
addition, smaller countries typically stand to gain
disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide
access to a larger set of potential new trading
relationship than in case of the larger country
gaining enhanced success to the smaller country's
market." 48
(f)Bilateral air service agreement with Japan, where

the Philippines agreed to exempt from customs
duties, excise taxes, inspection fees and other
similar duties, taxes or charges fuel, lubricating oils,
spare parts, regular equipment, stores on board
Japanese aircrafts while on Philippine soil.
(g)Bilateral air service agreement with Belgium
where the Philippines granted Belgian air carriers
the same privileges as those granted to Japanese
and Korean air carriers under separate air service
agreements.
(h)Bilateral notes with Israel for the abolition of
transit and visitor visas where the Philippines
exempted Israeli nationals from the requirement of
obtaining transit or visitor visas for a sojourn in the
Philippines not exceeding 59 days.
The point is that, as shown by the foregoing

treaties, a portion of sovereignty may be waived
without violating the Constitution, based on the
rationale that the Philippines "adopts the generally
accepted principles of international law as part of
the law of the land and adheres to the policy of . . .
cooperation and amity with all nations." casia
(i)Bilateral agreement with France exempting

French nationals from the requirement of obtaining
transit and visitor visa for a sojourn not exceeding
59 days.
(j)Multilateral Convention on Special Missions,
where the Philippines agreed that premises of
Special Missions in the Philippines are inviolable
and its agents can not enter said premises without
consent of the Head of Mission concerned. Special
Missions are also exempted from customs duties,
taxes and related charges.
Fourth Issue: The WTO Agreement and Judicial

Power
Petitioners aver that paragraph 1, Article 34 of the
General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) 49 intrudes on the power
of the Supreme Court to promulgate rules
concerning pleading, practice and procedures. 50
(k)Multilateral Convention on the Law of Treaties. In

this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of
Treaties.
To understand the scope and meaning of Article 34,

TRIPS, 51 it will be fruitful to restate its full text as
follows:
(l)Declaration of the President of the Philippines

accepting
compulsory
jurisdiction
of
the
International Court of Justice. The International
Court of Justice has jurisdiction in all legal disputes
concerning the interpretation of a treaty, any
"Article 34
Process Patents: Burden of Proof
67
1.For the purposes of civil proceedings in respect of

the infringement of the rights of the owner referred
to in paragraph 1 (b) of Article 28, if the subject
matter of a patent is a process for obtaining a
product, the judicial authorities shall have the
authority to order the defendant to prove that the
process to obtain an identical product is different
from the patented process. Therefore, Members
shall provide, in at least one of the following
circumstances, that any identical product when
produced without the consent of the patent owner
shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented
process:
"substantial likelihood" that the identical product

was made by the patented process.
The foregoing should really present no problem in
changing the rules of evidence as the present law
on the subject, Republic Act No. 165, as amended,
otherwise known as the Patent Law, provides a
similar presumption in cases of infringement of
patented design or utility model, thus:
"SEC. 60.Infringement. Infringement of a design
patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or
utility model for the purpose of trade or industry in
the article or product and in the making, using or
selling of the article or product copying the patented
design or utility model. Identity or substantial
identity with the patented design or utility model
shall constitute evidence of copying." (emphasis
supplied)
(a)if the product obtained by the patented process

is new;
(b)if there is a substantial likelihood that the
identical product was made by the process and the
owner of the patent has been unable through
reasonable efforts to determine the process
actually used.
Moreover, it should be noted that the requirement

of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the
patented process is NEW or (2) there is a
substantial likelihood that the identical product was
made by the process and the process owner has
not been able through reasonable effort to
determine the process used. Where either of these
two provisos does not obtain, members shall be
free to determine the appropriate method of
implementing the provisions of TRIPS within their
own internal systems and processes.
2.Any Member shall be free to provide that the

burden of proof indicated in paragraph 1 shall be on
the alleged infringer only if the condition referred to
in subparagraph (a) is fulfilled or only if the
condition referred to in subparagraph (b) is fulfilled.
3.In the adduction of proof to the contrary, the
legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken
into account."
By and large, the arguments adduced in connection

with our disposition of the third issue derogation
of legislative power will apply to this fourth issue
also. Suffice it to say that the reciprocity clause
more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due
process and the concept of adversarial dispute
settlement inherent in our judicial system.
From the above, a WTO Member is required to

provide a rule of disputable (note the words "in the
absence of proof to the contrary") presumption that
a product shown to be identical to one produced
with the use of a patented process shall be deemed
to have been obtained by the (illegal) use of the
said patented process, (1) where such product
obtained by the patented product is new, or (2)
where there is "substantial likelihood" that the
identical product was made with the use of the said
patented process but the owner of the patent could
not determine the exact process used in obtaining
such identical product. Hence, the "burden of proof"
contemplated by Article 34 should actually be
understood as the duty of the alleged patent
infringer to overthrow such presumption. Such
burden, properly understood, actually refers to the
"burden of evidence" (burden of going forward)
placed on the producer of the identical (or fake)
product to show that his product was produced
without the use of the patented process.
So too, since the Philippine is a signatory to most

international conventions on patents, trademarks
and copyrights, the adjustment in legislation and
rules of procedure will not be substantial. 52
Fifth Issue: Concurrence Only in the WTO
Agreement and Not in Other Documents Contained
in the Final Act
Petitioners allege that the Senate concurrence in
the WTO Agreement and its annexes but not in
the other documents referred to in the Final Act,
namely the Ministerial Declaration and Decisions
and the Understanding on Commitments in
Financial Services is defective and insufficient
and thus constitutes abuse of discretion. They
submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a
rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in
representation of the Republic upon authority of the
President. They contend that the second letter of
The foregoing notwithstanding, the patent owner

still has the "burden of proof" since, regardless of
the presumption provided under paragraph 1 of
Article 34, such owner still has to introduce
evidence of the existence of the alleged identical
product, the fact that it is "identical" to the genuine
one produced by the patented process and the fact
of "newness" of the genuine product or the fact of
68
the President to the Senate 53 which enumerated

what constitutes the Final Act should have been the
subject of concurrence of the Senate. cdt
"Article II
"A final act, sometimes called protocol de clture,

is an instrument which records the winding up of
the proceedings of a diplomatic conference and
usually includes a reproduction of the texts of
treaties, conventions, recommendations and other
acts agreed upon and signed by the
plenipotentiaries attending the conference." 54 It is
not the treaty itself. It is rather a summary of the
proceedings of a protracted conference which may
have taken place over several years. The text of
the "Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations"
is contained in just one page 55 in Vol. I of the 36volume Uruguay Round of Multilateral Trade
Negotiations. By signing said Final Act, Secretary
Navarro as representative of the Republic of the
Philippines undertook:
1.The WTO shall provide the common institutional

framework for the conduct of trade relations among
its Members in matters to the agreements and
associated legal instruments included in the
Annexes to this Agreement.
Scope of the WTO
2.The
Agreements
and
associated
legal
instruments included in Annexes 1, 2, and 3
(hereinafter
referred
to
as
"Multilateral
Agreements") are integral parts of this Agreement,
binding on all Members.
3.The
Agreements
and
associated
legal
instruments included in Annex 4 (hereinafter
referred to as "Plurilateral Trade Agreements") are
also part of this Agreement for those Members that
have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do
not create either obligation or rights for Members
that have not accepted them.
"(a)to submit, as appropriate, the WTO Agreement

for the consideration of their respective competent
authorities with a view to seeking approval of the
Agreement in accordance with their procedures;
and
(b)to adopt
Decisions."
the
Ministerial
Declarations
4.The General Agreement on Tariffs and Trade

1994 as specified in annex 1A (hereinafter referred
to as "GATT 1994") is legally distinct from the
General Agreement on Tariffs and Trade, dated 30
October 1947, annexed to the Final Act adopted at
the conclusion of the Second Session of the
Preparatory Committee of the United Nations
Conference on Trade and Employment, as
subsequently rectified, amended or modified
(hereinafter referred to as "GATT 1947").
and
The assailed Senate Resolution No. 97 expressed

concurrence in exactly what the Final Act required
from its signatories, namely, concurrence of the
Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were
deemed adopted without need for ratification. They
were approved by the ministers by virtue of Article
XXV: 1 of GATT which provides that
representatives of the members can meet "to give
effect to those provisions of this Agreement which
invoke joint action, and generally with a view to
facilitating the operation and furthering the
objectives of this Agreement." 56
It should be added that the Senate was well-aware

of what it was concurring in as shown by the
members' deliberation on August 25, 1994. After
reading the letter of President Ramos dated August
11, 1994, 59 the senators of the Republic minutely
dissected what the Senate was concurring in, as
follows: 60
"THE CHAIRMAN: Yes. Now, the question of the
validity of the submission came up in the first day
hearing of this Committee yesterday. Was the
observation made by Senator Taada that what
was submitted to the Senate was not the
agreement on establishing the World Trade
Organization by the final act of the Uruguay Round
which is not the same as the agreement
establishing the World Trade Organization? And on
that basis, Senator Tolentino raised a point of order
which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative
solution at that time was acceptable. That
suggestion was to treat the proceedings of the
Committee as being in the nature of briefings for
Senators until the question of the submission could
be clarified.
The Understanding on Commitments in Financial

Services also approved in Marrakesh does not
apply to the Philippines. It applies only to those 27
Members which "have indicated in their respective
schedules of commitments on standstill, elimination
of monopoly, expansion of operation of existing
financial service suppliers, temporary entry of
personnel, free transfer and processing of
information, and national treatment with respect to
access to payment, clearing systems and
refinancing available in the normal course of
business." 57
On the other hand, the WTO Agreement itself
expresses what multilateral agreements are
deemed included as its integral parts, 58 as follows:
And so, Secretary Romulo, in effect, is the

President submitting a new. . . is he making a new
69
submission which improves on the clarity of the first

submission?
satisfies both the Constitution and the Final Act

itself .
MR. ROMULO: Mr. Chairman, to make sure that it

is clear cut and there should be no
misunderstanding, it was his intention to clarify all
matters by giving this letter.
Thank you, Mr. Chairman.
THE CHAIRMAN: Thank you.
SEN. GONZALES. Mr. Chairman, my views on this

matter are already a matter of record. And they had
been adequately reflected in the journal of
yesterday's session and I don't see any need for
repeating the same.
THE CHAIRMAN. Thank you, Senator Tolentino,

May I call on Senator Gonzales.
Can this Committee hear from Senator Taada and

later on Senator Tolentino since they were the ones
that raised this question yesterday?
Senator Taada, please.
Now, I would consider the new submission as an

act ex abudante cautela.
SEN. TAADA: Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Gonzales.
Senator Lina, do you want to make any comment
on this?
Based on what Secretary Romulo has read, it

would now clearly appear that what is being
submitted to the Senate for ratification is not the
Final Act of the Uruguay Round, but rather the
Agreement on the World Trade Organization as
well as the Ministerial Declarations and Decisions,
and the Understanding and Commitments in
Financial Services.
SEN. LINA, Mr. President, I agree with the

observation just made by Senator Gonzales out of
the abundance of question. Then the new
submission is, I believe, stating the obvious and
therefore I have no further comment to make."
I am now satisfied with the wording of the new

submission of President Ramos.
Epilogue
In praying for the nullification of the Philippine
ratification of the WTO Agreement, petitioners are
invoking this Court's constitutionally imposed duty
"to determine whether or not there has been grave
jurisdiction" on the part of the Senate in giving its
concurrence therein via Senate Resolution No. 97.
Procedurally, a writ of certiorari grounded on grave
abuse of discretion may be issued by the Court
under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain,
speedy and adequate remedy in the ordinary
course of law.
SEN. TAADA. . . . of President Ramos, Mr.

Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can
we hear from Senator Tolentino? And after him
Senator Neptali Gonzales and Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen
the new submission actually transmitted to us but I
saw the draft of his earlier, and I think it now
complies with the provisions of the Constitution,
and with the Final Act itself . The Constitution does
not require us to ratify the Final Act. It requires us to
ratify the Agreement which is now being submitted.
The Final Act itself specifies what is going to be
submitted to with the governments of the
participants. prcd
By grave abuse of discretion is meant such

capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. 61 Mere abuse of
discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an
arbitrary or despotic manner by reason of passion
or personal hostility, and must be so patent and so
gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform the duty enjoined
or to act at all in contemplation of law. 62 Failure on
the part of the petitioner to show grave abuse of
discretion will result in the dismissal of the petition.
63
In paragraph 2 of the Final Act, we read and I

quote:
'By signing the present Final Act, the
representatives agree: (a) to submit as appropriate
the WTO Agreement for the consideration of the
respective competent authorities with a view of
seeking approval of the Agreement in accordance
with their procedures.'
In rendering this Decision, this Court never forgets

that the Senate, whose act is under review, is one
of two sovereign houses of Congress and is thus
entitled to great respect in its actions. It is itself a
constitutional body independent and coordinate,
and thus its actions are presumed regular and done
in good faith. Unless convincing proof and
persuasive arguments are presented to overthrow
such presumptions, this Court will resolve every
In other words, it is not the Final Act that was

agreed to be submitted to the governments for
ratification or acceptance as whatever their
constitutional procedures may provide but it is the
World Trade Organization Agreement. And if that is
the one that is being submitted now, I think it
70
doubt in its favor. Using the foregoing well-accepted

definition of grave abuse of discretion and the
presumption of regularity in the Senate's
processes, this Court cannot find any cogent
reason to impute grave abuse of discretion to the
Senate's exercise of its power of concurrence in the
WTO Agreement granted it by Sec. 21 of Article VII
of the Constitution. 64
politically and culturally in the next century." He

refers to the "free market" espoused by WTO as
the "catalyst" in this coming Asian ascendancy.
There are at present about 31 countries including
China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding
objections against possible limitations on national
sovereignty, the WTO remains as the only viable
structure for multilateral trading and the veritable
forum for the development of international trade
law. The alternative to WTO is isolation, stagnation,
if not economic self-destruction. Duly enriched with
original membership, keenly aware of the
advantages and disadvantages of globalization with
its on-line experience, and endowed with a vision of
the future, the Philippines now straddles the
crossroads of an international strategy for
economic prosperity and stability in the new
millennium. Let the people, through their duly
authorized elected officers, make their free choice.
It is true, as alleged by petitioners, that broad

constitutional principles require the State to develop
an independent national economy effectively
controlled by Filipinos; and to protect and/or prefer
Filipino labor, products, domestic materials and
locally produced goods. But it is equally true that
such principles while serving as judicial and
legislative guides are not in themselves sources
of causes of action. Moreover, there are other
equally fundamental constitutional principles relied
upon by the Senate which mandate the pursuit of a
"trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on
the basis of equality and reciprocity" and the
promotion of industries "which are competitive in
both domestic and foreign markets," thereby
justifying its acceptance of said treaty. So too, the
alleged impairment of sovereignty in the exercise of
legislative and judicial powers is balanced by the
adoption of the generally accepted principles of
international law as part of the law of the land and
the adherence of the Constitution to the policy of
cooperation and amity with all nations. cdasia
WHEREFORE, the petition is DISMISSED for lack

of merit. cda
SO ORDERED.
Narvasa, C .J ., Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Puno, Kapunan, Mendoza,
Francisco, Hermosisima, Jr., and Torres, Jr., JJ.,
concur.
That the Senate, after deliberation and voting,

voluntarily and overwhelmingly gave its consent to
the WTO Agreement thereby making it "a part of
the law of the land" is a legitimate exercise of its
sovereign duty and power. We find no "patent and
gross" arbitrariness or despotism "by reason of
passion or personal hostility" in such exercise. It is
not impossible to surmise that this Court, or at least
some of its members, may even agree with
petitioners that it is more advantageous to the
national interest to strike down Senate Resolution
No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to
nullify its decision. To do so would constitute grave
abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid
exercise of its authority. As to whether such
exercise was wise, beneficial or viable is outside
the realm of judicial inquiry and review. That is a
matter between the elected policy makers and the
people. As to whether the nation should join the
worldwide march toward trade liberalization and
economic globalization is a matter that our people
should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of
membership, should this be the political desire of a
member.
Padilla and Vitug, JJ., concur in the result.
The eminent futurist John Naisbitt, author of the

best seller Megatrends, predicts an Asian
Renaissance 65 where "the East will become the
dominant region of the world economically,
Petitioner Domino filed his certificate of candidacy

for the position of Representative of the Lone
District of the Province of Sarangani. Private
respondents, however, filed with the Comelec a
||| (Taada v. Angara, G.R. No. 118295, [May 2,

1997], 338 PHIL 546-606)
3.
DOMINO VS. COMELEC 310 SCRA 546

(1999)
EN BANC
[G.R. No. 134015. July 19, 1999.]
JUAN DOMINO, petitioner, vs. COMMISSION ON
ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY
B. JAVA, JUAN P. BAYONITO, JR., ROSARIO
SAMSON and DIONISIO P. LIM, SR., respondents.
LUCILLE CHIONGBIAN-SOLON, intervenor.
Brillantes Navarro Jumamil Arcilla Escolin &
Martinez Law Offices for petitioner.
Bacungan Opinion & Rivilla for private respondents.
Fornier & Fornier Law Firm for intervenor.
SYNOPSIS
71
petition to deny due course to or cancel the

certificate of candidacy of Domino because he is
neither a resident nor a registered voter of the
province of Sarangani. The petition was assigned
to the Comelec Second Division, which rendered a
resolution declaring Domino disqualified as
candidate for the position and ordered the
cancellation of his certificate of candidacy. On the
day of the election, the Comelec ordered that the
votes cast for Domino be counted but suspended
the proclamation if he wins. The result of the
election showed that Domino garnered the highest
number of votes over his opponents. He filed a
motion for reconsideration of the resolution of the
Comelec, which was denied by the Comelec en
banc. Hence, the present petition for certiorari with
preliminary mandatory injunction alleging that
Comelec committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it
ruled that he did not meet the one-year residence
requirement. The Court allowed the candidate who
received the second highest number of votes in the
election to intervene.
2. ID.; ID.; ID.; INCLUSION OR EXCLUSION

PROCEEDING;
DECISION
IN
SUCH
PROCEEDING, NOT CONCLUSIVE ON THE
VOTER'S
POLITICAL
STATUS.
The
determination of the Metropolitan Trial Court of
Quezon City in the exclusion proceedings as to the
right of DOMINO to be included or excluded from
the list of voters in the precinct within its territorial
jurisdiction, does not preclude the COMELEC, in
the determination of DOMINO's qualification as a
candidate, to pass upon the issue of compliance
with the residency requirement. The proceedings
for the exclusion or inclusion of voters in the list of
voters are summary in character. Thus, the factual
findings of the trial court and its resultant
conclusions in the exclusion proceedings on
matters other than the right to vote in the precinct
within its territorial jurisdiction are not conclusive
upon the COMELEC. Although the court in
inclusion or exclusion proceedings may pass upon
any question necessary to decide the issue raised
including the questions of citizenship and residence
of the challenged voter, the authority to order the
inclusion in or exclusion from the list of voters
necessarily carries with it the power to inquire into
and settle all matters essential to the exercise of
said authority. However, except for the right to
remain in the list of voters or for being excluded
therefrom for the particular election in relation to
which the proceedings had been held, a decision in
an exclusion or inclusion proceeding, even if final
and unappealable, does not acquire the nature of
res judicata. In this sense, it does not operate as a
bar to any future action that a party may take
concerning the subject passed upon in the
proceeding. Thus, a decision in an exclusion
proceeding would neither be conclusive on the
voter's political status, nor bar subsequent
proceeding's on his right to be registered as a voter
in any other election. AHacIS
According to the Supreme Court, in showing

compliance with the residency requirement, both
intent and actual presence in the district one
intends to represent must satisfy the length of time
prescribed by the fundamental law. Domino's failure
to do so rendered him ineligible and his election to
office null and void. The intervenor's plea that the
votes cast in favor of Domino be considered stray
votes cannot be sustained. Thus, the votes cast for
Domino were presumed to have been cast in the
sincere belief that he was a qualified candidate,
without any intention to misapply their franchise.
Thus, said votes cannot be treated as stray, void, or
meaningless. The Court dismissed the petition.
DHACES
SYLLABUS
3. ID.; ID.; ID.; ID.; TRIAL COURT; JURISDICTION

OVER EXCLUSION CASES LIMITED TO
DETERMINING THE RIGHT OF VOTER TO
REMAIN IN LIST OF VOTERS. The jurisdiction
of the lower court over exclusion cases is limited
only to determining the right of voter to remain in
the list of voters or to declare that the challenged
voter is not qualified to vote in the precinct in which
he is registered, specifying the ground of the voter's
disqualification. The trial court has no power to
order the change or transfer of registration from
one place of residence to another for it is the
function of the Election Registration Board as
provided under Section 12 of R.A. No. 8189. The
only effect of the decision of the lower court
excluding the challenged voter from the list of
voters, is for the Election Registration Board, upon
receipt of the final decision, to remove the voter's
registration record from the corresponding book of
voters, enter the order of exclusion therein, and
thereafter place the record in the inactive file.
1. POLITICAL LAW; ELECTIONS; OMNIBUS

ELECTION CODE; JURISDICTION OF THE
COMMISSION
ON
ELECTIONS
OVER
PETITIONS TO DENY DUE COURSE TO OR
CANCEL CERTIFICATE OF CANDIDACY; CASE
AT BAR. The COMELEC has jurisdiction as
provided in Sec. 78, Art. IX of the Omnibus Election
Code; over a petition to deny due course to or
cancel certificate of candidacy. In the exercise of
the said jurisdiction, it is within the competence of
the COMELEC to determine whether false
representation as to material facts was made in the
certificate of candidacy, that will include, among
others, the residence of the candidate. . . . Such
jurisdiction continues even after election, if for any
reason no final judgment of disqualification is
rendered before the election, and the candidate
facing disqualification is voted for and receives the
highest number of votes and provided further that
the winning candidate has not been proclaimed or
has taken his oath of office.
4. ID.; ID.; QUALIFICATIONS FOR SUFFRAGE

AND FOR ELECTIVE OFFICE; RESIDENCE AND
72
DOMICILE, CONSTRUED. It is doctrinally

settled that the term "residence," as used in the law
prescribing the qualifications for suffrage and for
elective office, means the same thing as "domicile,"
which imports not only an intention to reside in a
fixed place but also personal presence in that
place, coupled with conduct indicative of such
intention. "Domicile" denotes a fixed permanent
residence to which, whenever absent for business,
pleasure, or some other reasons, one intends to
return. "Domicile" is a question of intention and
circumstances.
In
the
consideration
of
circumstances, three rules must be borne in mind,
namely: (1) that a man must have a residence or
domicile somewhere; (2) when once established it
remains until a new one is acquired; and (3) a man
can have but one residence or domicile at a time. A
person's "domicile" once established is considered
to continue and will not be deemed lost until a new
one is established. To successfully effect a change
of domicile one must demonstrate an actual
removal or an actual change of domicile; a bona
fide intention of abandoning the former place of
residence and establishing a new one and definite
acts which correspond with the purpose. In other
words, there must basically be animus manendi
coupled with animus non revertendi. The purpose
to remain in or at the domicile of choice must be for
an indefinite period of time; the change of
residence must be voluntary; and the residence at
the place chosen for the new domicile must be
actual. As a general rule, the principal elements of
domicile, physical presence in the locality involved
and intention to adopt it as a domicile, must concur
in order to establish a new domicile. No change of
domicile will result if either of these elements is
absent. Intention to acquire a domicile without
actual residence in the locality does not result in
acquisition of domicile, nor does the fact of physical
presence without intention. Exercising the right of
election franchise is a deliberate public assertion of
the fact of residence, and is said to have decided
preponderance in a doubtful case upon the place
the elector claims as, or believes to be, his
residence. The fact that a party continuously voted
in a particular locality is a strong factor in assisting
to determine the status of his domicile.
constitutionally guaranteed right to suffrage if a

candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and
imposed as the representative of a constituency,
the majority of which have positively declared
through their ballots that they do not choose him.
To simplistically assume that the second placer
would have received the other votes would be to
substitute our judgment for the mind of the voters.
He could not be considered the first among
qualified candidates because in a field which
excludes the qualified candidate, the conditions
would have substantially changed. Sound policy
dictates that public elective offices are filled by
those who have received the highest number of
votes cast in the election for that office, and it is
fundamental idea in all republican forms of
government that no one can be declared elected
and no measure can be declared carried unless he
or it receives a majority or plurality of the legal
votes cast in the election. The effect of a decision
declaring a person ineligible to hold an office is only
that the election fails entirely, that the wreath of
victory cannot be transferred from the disqualified
winner to the repudiated loser because the law then
as now only authorizes a declaration of election in
favor of the person who has obtained a plurality of
votes and does not entitle the candidate receiving
the next highest number of votes to be declared
elected. In such case, the electors have failed to
make a choice and the election is a nullity. To allow
the defeated and repudiated candidate to take over
the elective position despite his rejection by the
electorate is to disenfranchise the electorate
without any fault on their part and to undermine the
importance and meaning of democracy and the
people's right to elect officials of their choice.
7. ID.; ID.; JURISDICTION OF THE HOUSE OF

REPRESENTATIVES ELECTORAL TRIBUNAL;
BEGINS ONLY AFTER A CANDIDATE HAS
BECOME A MEMBER OF THE HOUSE OF
REPRESENTATIVES. It has been repeatedly
held in a number of cases, that the House of
Representatives Electoral Tribunal's sole and
exclusive jurisdiction over all contests relating to
the election, returns and qualifications of members
of Congress as provided under Section 17 of Article
VI of the Constitution begins only after a candidate
has become a member of the House of
Representatives. The fact of obtaining the highest
number of votes in an election does not
automatically vest the position in the winning
candidate. A candidate must be proclaimed and
must have taken his oath of office before he can be
considered a member of the House of
Representatives.
5. ID.; ID.; CANDIDATE WHO OBTAINS THE

SECOND HIGHEST NUMBER OF VOTES MAY
NOT BE PROCLAIMED WINNER IN CASE THE
WINNING CANDIDATE IS DISQUALIFIED. It is
now settled doctrine that the candidate who obtains
the second highest number of votes may not be
proclaimed winner in case the winning candidate is
disqualified. In every election, the people's choice
is the paramount consideration and their expressed
will must, at all times, be given effect. When the
majority speaks and elects into office a candidate
by giving the highest number of votes cast in the
election for that office, no one can be declared
elected in his place. TaCDIc
8. REMEDIAL LAW; JUDGMENT; DISMISSAL OF

ACTION;
RES
JUDICATA;
REQUISITES;
UNAVAILING IN CASE AT BAR. The application
of the rule on res judicata is unavailing. Identity of
parties, subject matter and cause of action are
6. ID.; ID.; ID.; RATIONALE. It would be

extremely repugnant to the basic concept of the
73
indispensable requirements for the application of

said doctrine. Neither herein Private Respondents
nor INTERVENOR, is a party in the exclusion
proceedings. The Petition for Exclusion was filed by
DOMINO himself and his wife, praying that he and
his wife be excluded from the Voter's List on the
ground of erroneous registration while the Petition
to Deny Due Course to or Cancel Certificate of
Candidacy was filed by private respondents against
DOMINO for alleged false representation in his
certificate of candidacy. For the decision to be a
basis for the dismissal by reason of res judicata, it
is essential that there must be between the first and
the second action identity of parties, identity of
subject matter and identity of causes of action. In
the present case, the aforesaid essential requisites
are not present.
welfare. Such requisite period would precisely give

candidates the opportunity to be familiar with their
desired constituencies, and likewise for the
electorate to evaluate their fitness for the offices
they seek. If all that is required of elective officials
is legal domicile, then they would qualify even if, for
several years prior to the election, they have never
set foot in their districts (or in the country, for that
matter), since it is possible to maintain legal
domicile even without actual presence, provided
one retains the animus revertendi or the intention to
return.
3. ID.; CONSTITUTION,AS THE BASIC LAW OF
THE LAND; SHOULD BE INTERPRETED IN THE
SENSE UNDERSTOOD BY ORDINARY MAN.
The Constitution is the most basic law of the land. It
enshrines the most cherished aspirations and
ideals of the population at large. It is not a
document reserved only for scholarly disquisition by
the most eminent legal minds of the land. In
ascertaining its import, lawyers are not meant to
quibble over it, to define its legal niceties, or to
articulate its nuances. Its contents and words
should be interpreted in the sense understood by
the ordinary men and women who place their lives
on the line in its defense and who pin their hopes
for a better life on its fulfillment. The call for
simplicity in understanding and interpreting our
Constitution has been made a number of times.
About three decades ago, this Court declared: "It is
to be assumed that the words in which
constitutional provisions are couched express the
objective sought to be attained. They are to be
given their ordinary meaning except where
technical terms are employed in which case the
significance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it
being essential for the rule of law to obtain that it
should ever be present in the people's
consciousness, its language as much as possible
should be understood in the sense they have in
common use. What it says according to the text of
the provision to be construed compels acceptance
and negates the power of the courts to alter it,
based on the postulate that the framers and the
people mean what they say. Thus there are cases
where the need for construction is reduced to a
minimum." CAIHTE
PANGANIBAN, J.: separate opinion:

1.
POLITICAL
LAW;
ELECTIONS;
QUALIFICATION OF VOTERS; RESIDENCE
REQUIREMENT; SHOULD BE CONSTRUED TO
MEAN ACTUAL, PHYSICAL AND PERSONAL
PRESENCE; RATIONALE. A member. of the
House of Representatives must be a resident of the
district which he or she seeks to represent "for a
period of not less than one year immediately
preceding the day of the election" is a constitutional
requirement that should be interpreted in the sense
in which ordinary lay persons understand it. The
common people who ratified the Constitution and
were thereafter expected to abide by it would not
normally refer to the journals of the Constitutional
Commission in order to understand the words and
phrases contained therein. Rather, they would
usually refer to the common source being used
when they look up for the meaning of words the
dictionary. In this sense, Webster's definition of
residence should be controlling. If the framers of
our basic law intended our people to understand
residence as legal domicile, they should have said
so. Then our people would have looked up the
meaning of domicile and would have understood
the constitutional provision in that context.
However, the framers of our Constitution did not.
Justice Panganiban therefore submits that
residence must be understood in its common
dictionary meaning as understood by ordinary lay
persons. CHTcSE
DECISION
2. ID.; ID.; ID.; ID.; NEGATED SHOULD THE
CONCEPT OF DOMICILE BE APPLIED; BASIS
THEREOF. Applying the concept of domicile in
determining residence as a qualification for an
elective office would negate the objective behind
the residence requirement of one year (or six
months, in the case of local positions). This
required period of residence preceding the day of
the election, is rooted in the desire that officials of
districts or localities be acquainted not only with the
metes and bounds of their constituencies but, more
important, with the constituents themselves their
needs, difficulties, potentials for growth and
development and all matters vital to their common
DAVIDE, JR., C.J p:

Challenged in this case for certiorari with a prayer
for preliminary injunction are the Resolution of 6
May 1998 1 of the Second Division of the
Commission on Elections (hereafter COMELEC),
declaring petitioner Juan Domino (hereafter
DOMINO)
disqualified
as
candidate
for
representative of the Lone Legislative District of the
Province of Sarangani in the 11 May 1998
elections, and the Decision of 29 May 1998 2 of the
COMELEC en banc denying DOMINO's motion for
reconsideration. cdll
74
The antecedents are not disputed.
5. Annex "E" The triplicate copy of the

Community Tax Certificate No. 11132214C in the
name of Juan Domino dated September 5, 1997;
On 25 March 1998, DOMINO filed his certificate of

candidacy for the position of Representative of the
Lone Legislative District of the Province of
Sarangani indicating in item nine (9) of his
certificate that he had resided in the constituency
where he seeks to be elected for one (1) year and
two (2) months immediately preceding the election.
3
6. Annex "F" Copy of the letter of Provincial

Treasurer Lourdes P. Riego dated March 2, 1998
addressed to Mr. Herson D. Dema-ala, Deputy
Provincial Treasurer and Municipal Treasurer of
Alabel, Sarangani, which states:
"For easy reference, kindly turn-over to the
undersigned for safekeeping, the stub of
Community Tax Certificate containing Nos.
11132201C-11132250C issued to you on June 13,
1997 and paid under Official Receipt No. 7854744.
On 30 March 1998, private respondents Narciso

Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr.,
Rosario Samson and Dionisio P. Lim, Sr., filed with
the COMELEC a Petition to Deny Due Course to or
Cancel Certificate of Candidacy, which was
docketed as SPA No. 98-022 and assigned to the
Second Division of the COMELEC. Private
respondents alleged that DOMINO, contrary to his
declaration in the certificate of candidacy, is not a
resident, much less a registered voter, of the
province of Sarangani where he seeks election. To
substantiate their allegations, private respondents
presented the following evidence:
Upon request
Chiongbian."
of
Congressman
James
L.
7. Annex "G" Certificate of Candidacy of

respondent for the position of Congressman in the
3rd District of Quezon City for the 1995 elections
filed with the Office of the Regional Election
Director, National Capital Region, on March 17,
1995, where, in item 4 thereof, he wrote his birth
date as December 22, 1953; in item 8 thereof his
"residence in the constituency where I seek to be
elected immediately preceding the election" as 3
years and 5 months; and, in item 9, that he is a
registered voter of Precinct No. 182, Barangay
Balara, Quezon City;
1. Annex "A" the Certificate of Candidacy of

respondent for the position of Congressman of the
Lone District of the Province of Sarangani filed with
the Office of the Provincial Election Supervisor of
Sarangani on March 25, 1998, where in item 4
thereof he wrote his date of birth as December 5,
1953; in item 9, he claims he have resided in the
constituency where he seeks election for one (1)
year and two (2) months; and, in item 10, that he is
registered voter of Precinct No. 14A-1, Barangay
Poblacion, Alabel, Sarangani;
8. Annex "H" a copy of the APPLICATION FOR

TRANSFER OF REGISTRATION RECORDS DUE
TO CHANGE OF RESIDENCE of respondent dated
August 30, 1997 addressed to and received by
Election Officer Mantil Alim, Alabel, Sarangani, on
September 22, 1997, stating among others, that
"[T]he undersigned's previous residence is at 24
Bonifacio Street, Ayala Heights, Quezon City, III
District, Quezon City; wherein he is a registered
voter" and "that for business and residence
purposes, the undersigned has transferred and
conducts his business and reside at Barangay
Poblacion, Alabel, Province of Sarangani prior to
this application;" cdlex
2. Annex "B" Voter's Registration Record with

SN 31326504 dated June 22, 1997 indicating
respondent's registration at Precinct No. 4400-A,
Old Balara, Quezon City;
3. Annex "C" Respondent's Community Tax
Certificate No. 11132214C dated January 15, 1997;
cdasia
4. Annex "D" Certified true copy of the letter of
Herson D. Dema-ala, Deputy Provincial & Municipal
Treasurer of Alabel, Sarangani, dated February 26,
1998, addressed to Mr. Conrado G. Butil, which
reads:
9. Annex "I" Copy of the SWORN APPLICATION

FOR CANCELLATION OF VOTER'S [TRANSFER
OF] PREVIOUS REGISTRATION of respondent
subscribed and sworn to on 22 October 1997
before Election Officer Mantil Allim at Alabel,
Sarangani. 4
"In connection with your letter of even date, we are

furnishing you herewith certified xerox copy of the
triplicate copy of COMMUNITY TAX CERTIFICATE
NO. 11132214C in the name of Juan Domino.
For his defense, DOMINO maintains that he had

complied with the one-year residence requirement
and that he has been residing in Sarangani since
January 1997. In support of the said contention,
DOMINO presented before the COMELEC the
following exhibits, to wit:
Furthermore, Community Tax Certificate No.

11132212C of the same stub was issued to Carlito
Engcong on September 5, 1997, while Certificate
No. 11132213C was also issued to Mr. Juan
Domino but was cancelled and serial no.
11132215C was issued in the name of Marianita
Letigio on September 8, 1997."
75
1. Annex "1" Copy of the Contract of Lease

between Nora Dacaldacal as Lessor and
Administrator of the properties of deceased
spouses Maximo and Remedios Dacaldacal and
respondent as Lessee executed on January 15,
1997, subscribed and sworn to before Notary
Public Johnny P. Landero;
Registration Board on October 20, 1997, showing

the spouses Juan and Zorayda Bailon Domino
listed as numbers 111 and 112 both under Precinct
No. 14A1, the last two names in the slate indicated
as transferees without VRR numbers and their
application dated August 30, 1997 and September
30, 1997, respectively.
2. Annex "2" Copy of the Extra-Judicial

Settlement of Estate with Absolute Deed of sale
executed by and between the heirs of deceased
spouses Maximo and Remedios Dacaldacal,
namely: Maria Lourdes, Jupiter and Beberlie and
the respondent on November 4, 1997, subscribed
and sworn to before Notary Public Jose A. Alegario;
6. Annex "6" same as Annex "5"

7. Annex "6-a" Copy of the Sworn Application for
Cancellation of Voter's Previous Registration
(Annex "I", Petition);
8. Annex "7" Copy of claim card in the name of
respondent showing his VRR No. 31326504 dated
October 20, 1997 as a registered voter of Precinct
No. 14A1, Barangay Poblacion, Alabel, Sarangani;
3. Annex "3" True Carbon Xerox copy of the

Decision dated January 19, 1998, of the
Metropolitan Trial Court of Metro Manila, Branch
35, Quezon City, in Election Case NO. 725
captioned as "In the Matter of the Petition for the
Exclusion from the List of voters of Precinct No.
4400-A Brgy. Old Balara, Quezon City, Spouses
Juan and Zorayda Domino, Petitioners, versus
Elmer M. Kayanan, Election Officer, Quezon City,
District III, and the Board of Election Inspectors of
Precinct No. 4400-A, Old Balara, Quezon City,
Respondents." The dispositive portion of which
reads:
9. Annex "7-a" Certification dated April 16, 1998,

issued by Atty. Elmer M. Kayanan, Election Officer
IV, District III, Quezon City, which reads:
"This is to certify that the spouses JUAN and
ZORAYDA DOMINO are no longer registered
voters of District III, Quezon City. Their registration
records (VRR) were transferred and are now in the
possession of the Election Officer of Alabel,
Sarangani.
1. Declaring the registration of petitioners as voters

of Precinct No. 4400-A, Barangay Old Balara, in
District III Quezon City as completely erroneous as
petitioners were no longer residents of Quezon City
but of Alabel, Sarangani where they have been
residing since December 1996;
This certification is being issued upon the request

of Mr. JUAN DOMINO.
10. Annex "8" Affidavit of Nora Dacaldacal and
Maria
Lourdes
Dacaldacal
stating
the
circumstances and incidents detailing their alleged
acquaintance with respondent.
2. Declaring this erroneous registration of

petitioners in Quezon City as done in good faith
due to an honest mistake caused by circumstances
beyond their control and without any fault of
petitioners;
11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies

of the uniform affidavits of witness Myrna Dalaguit,
Hilario Fuentes, Coraminda Lomibao and Elena V.
Piodos subscribed and sworn to before Notary
Public Bonifacio F. Doria, Jr., on April 18, 1998,
embodying their alleged personal knowledge of
respondent's residency in Alabel, Sarangani;
3. Approving the transfer of registration of voters of

petitioners from Precinct No. 4400-A of Barangay
Old Balara, Quezon City to Precinct No. 14A1 of
Barangay Poblacion of Alabel, Sarangani; and
12. Annex "8-e" A certification dated April 20,

1998, subscribed and sworn to before Notary
Public Bonifacio, containing a listing of the names
of fifty-five(55) residents of Alabel, Sarangani,
declaring and certifying under oath that they
personally know the respondent as a permanent
resident of Alabel, Sarangani since January 1997
up to present; LLpr
4. Ordering the respondents to immediately transfer

and forward all the election/voter's registration
records of the petitioners in Quezon City to the
Election Officer, the Election Registration Board
and other Comelec Offices of Alabel, Sarangani
where the petitioners are obviously qualified to
exercise their respective rights of suffrage. cdll
13. Annexes "9", "9-a" and "9-b" Copies of

Individual Income Tax Return for the year 1997,
BIR form 2316 and W-2, respectively, of
respondent; and,
4. Annex "4" Copy of the Application for Transfer

of Registration Records due to Change of
Residence addressed to Mantil Alim, COMELEC
Registrar, Alabel, Sarangani, dated August 30,
1997.
14. Annex "10" The affidavit of respondent

reciting
the
chronology
of
events
and
circumstances leading to his relocation to the
Municipality of Alabel, Sarangani, appending
Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with
5. Annex "5" Certified True Copy of the Notice of

Approval of Application, the roster of applications
for registration approved by the Election
76
sub-markings "G-1" and "G-2" and "H" his CTC No.

111`32214C dated September 5, 1997, which are
the same as Annexes "1", "2", "4", "5", "6-a", "3",
"7", "9" with sub-markings "9-a" and "9-b" except
Annex "H." 5
in its decision dated 29 May 1998. Hence, the

present Petition for Certiorari with prayer for
Preliminary Mandatory Injunction alleging, in the
main, that the COMELEC committed grave abuse
of discretion amounting to excess or lack of
jurisdiction when it ruled that he did not meet the
one-year residence requirement.
On 6 May 1998, the COMELEC 2nd Division

promulgated a resolution declaring DOMINO
disqualified as candidate for the position of
representative of the lone district of Sarangani for
lack of the one-year residence requirement and
likewise ordered the cancellation of his certificate of
candidacy, on the basis of the following findings:
On 14 July 1998, acting on DOMINO's Motion for

Issuance of Temporary Restraining Order, the Court
directed the parties to maintain the status quo
prevailing at the time of the filing of the instant
petition. 9
What militates against respondent's claim that he

has met the residency requirement for the position
sought is his own Voter's Registration Record No.
31326504 dated June 22, 1997 [Annex "B",
Petition] and his address indicated as 24 Bonifacio
St., Ayala Heights, Old Balara, Quezon City. This
evidence, standing alone, negates all his
protestations that he established residence at
Barangay Poblacion, Alabel, Sarangani, as early as
January 1997. It is highly improbable, nay
incredible, for respondent who previously ran for
the same position in the 3rd Legislative District of
Quezon City during the elections of 1995 to
unwittingly forget the residency requirement for the
office sought.
On 15 September 1998, Lucille L. ChiongbianSolon, (hereafter INTERVENOR), the candidate

receiving the second highest number of votes, was
allowed by the Court to Intervene. 10
INTERVENOR in her Motion for Leave to Intervene
and in her Comment in Intervention 11 is asking the
Court to uphold the disqualification of petitioner
Juan Domino and to proclaim her as the duly
elected representative of Sarangani in the 11 May
1998 elections. llcd
Before us DOMINO raised the following issues for
resolution, to wit:
a. Whether or not the judgment of the Metropolitan
Trial Court of Quezon City declaring petitioner as
resident of Sarangani and not of Quezon City is
final, conclusive and binding upon the whole world,
including the Commission on Elections.
Counting, therefore, from the day after June 22,

1997 when respondent registered at Precinct No.
4400-A, up to and until the day of the elections on
May 11, 1998, respondent clearly lacks the one (1)
year residency requirement provided for candidates
for Member of the House of Representatives under
Section 6, Article VI of the Constitution.
b. Whether or not petitioner herein has resided in

the subject congressional district for at least one (1)
year immediately preceding the May 11, 1998
elections; and
All told, petitioner's evidence conspire to attest to

respondent's lack of residence in the constituency
where he seeks election and while it may be
conceded that he is a registered voter as
contemplated under Section 12 of R.A. 8189, he
lacks the qualification to run for the position of
Congressman for the Lone District of the Province
of Sarangani. 6 cda
c. Whether or not respondent COMELEC has

jurisdiction over the petition a quo for the
disqualification of petitioner. 12
The first issue.
The contention of DOMINO that the decision of the
Metropolitan Trial Court of Quezon City in the
exclusion proceedings declaring him a resident of
the Province of Sarangani and not of Quezon City
is final and conclusive upon the COMELEC cannot
be sustained.
On 11 May 1998, the day of the election, the

COMELEC
issued
Supplemental
Omnibus
Resolution No. 3046, ordering that the votes cast
for DOMINO be counted but to suspend the
proclamation if winning, considering that the
Resolution disqualifying him as candidate had not
yet become final and executory. 7
The COMELEC has jurisdiction as provided in Sec.

78, Art. IX of the Omnibus Election Code, over a
petition to deny due course to or cancel certificate
of candidacy. In the exercise of the said jurisdiction,
it is within the competence of the COMELEC to
determine whether false representation as to
material facts was made in the certificate of
candidacy, that will include, among others, the
residence of the candidate.
The result of the election, per Statement of Votes

certified by the Chairman of the Provincial Board of
Canvassers, 8 shows that DOMINO garnered the
highest number of votes over his opponents for the
position of Congressman of the Province of
Sarangani.
On 15 May 1998, DOMINO filed a motion for
reconsideration of the Resolution dated 6 May
1998, which was denied by the COMELEC en banc
The determination of the Metropolitan Trial Court of

Quezon City in the exclusion proceedings as to the
77
right of DOMINO to be included or excluded from

the list of voters in the precinct within its territorial
jurisdiction, does not preclude the COMELEC, in
the determination of DOMINO's qualification as a
candidate, to pass upon the issue of compliance
with the residency requirement.
exclusion cases is limited only to determining the

right of voter to remain in the list of voters or to
declare that the challenged voter is not qualified to
vote in the precinct in which he is registered,
specifying the ground of the voter's disqualification.
The trial court has no power to order the change or
transfer of registration from one place of residence
to another for it is the function of the election
Registration Board as provided under Section 12 of
R.A. No. 8189. 17 The only effect of the decision of
the lower court excluding the challenged voter from
the list of voters, is for the Election Registration
Board, upon receipt of the final decision, to remove
the voter's registration record from the
corresponding book of voters, enter the order of
exclusion therein, and thereafter place the record in
the inactive file. 18
The proceedings for the exclusion or inclusion of

voters in the list of voters are summary in character.
Thus, the factual findings of the trial court and its
resultant conclusions in the exclusion proceedings
on matters other than the right to vote in the
precinct within its territorial jurisdiction are not
conclusive upon the COMELEC. Although the court
in inclusion or exclusion proceedings may pass
upon any question necessary to decide the issue
raised including the questions of citizenship and
residence of the challenged voter, the authority to
order the inclusion in or exclusion from the list of
voters necessarily carries with it the power to
inquire into and settle all matters essential to the
exercise of said authority. However, except for the
right to remain in the list of voters or for being
excluded therefrom for the particular election in
relation to which the proceedings had been held, a
decision in an exclusion or inclusion proceeding,
even if final and unappealable, does not acquire the
nature of res judicata. 13 In this sense, it does not
operate as a bar to any future action that a party
may take concerning the subject passed upon in
the proceeding. 14 Thus, a decision in an exclusion
proceeding would neither be conclusive on the
voters political status, nor bar subsequent
proceedings on his right to be registered as a voter
in any other election. 15
Finally, the application of the rule on res judicata is

unavailing. Identity of parties, subject matter and
cause of action are indispensable requirements for
the application of said doctrine. Neither herein
Private Respondents nor INTERVENOR, is a party
in the exclusion proceedings. The Petition for
Exclusion was filed by DOMINO himself and his
wife, praying that he and his wife be excluded from
the Voter's List on the ground of erroneous
registration while the Petition to Deny Due Course
to or Cancel Certificate of Candidacy was filed by
private respondents against DOMINO for alleged
false representation in his certificate of candidacy.
For the decision to be a basis for the dismissal by
reason of res judicata, it is essential that there must
be between the first and the second action identity
of parties, identity of subject matter and identity of
causes of action. 19 In the present case, the
aforesaid essential requisites are not present. In
the case of Nuval v. Guray, et al., 20 the Supreme
Court in resolving a similar issue ruled that: cdasia
Thus, in Tan Cohon v. Election Registrar 16 we

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

assignment of error is whether or not the judgment
rendered in the case of the petition for the
exclusion of Norberto Guray's name from the
election list of Luna, is res judicata, so as to prevent
the institution and prosecution of an action in quo
warranto, which is now before us.
The procedure prescribed by section 437 of the
Administrative Code, as amended by Act No. 3387,
is of a summary character and the judgment
rendered therein is not appealable except when the
petition is tried before the justice of the peace of the
capital or the circuit judge, in which case it may be
appealed to the judge of first instance, with whom
said two lower judges have concurrent jurisdiction.
Moreover, the Metropolitan Trial Court of Quezon

City in its 18 January decision exceeded its
jurisdiction when it declared DOMINO a resident of
the Province of Sarangani, approved and ordered
the transfer of his voter's registration from Precinct
No. 4400-A of Barangay Old Balara, Quezon City to
precinct 14A1 of Barangay Poblacion, Alabel,
Sarangani. It is not within the competence of the
trial court, in an exclusion proceedings, to declare
the challenged voter a resident of another
municipality. The jurisdiction of the lower court over
The petition for exclusion was presented by

Gregorio Nuval in his dual capacity as qualified
voter of the municipality of Luna, and as a duly
registered candidate for the office of president of
said municipality, against Norberto Guray as a
registered voter in the election list of said
municipality. The present proceeding of quo
warranto was interposed by Gregorio Nuval in his
78
capacity as a registered candidate voted for the

office of municipal president of Luna, against
Norberto Guray, as an elected candidate for the
same office. Therefore, there is no identity of
parties in the two cases, since it is not enough that
there be an identity of persons, but there must be
an identity of capacities in which said persons
litigate. (Art. 1259 of the Civil Code; Bowler vs.
Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p.
756, par. 1165)
Records show that petitioner's domicile of origin

was Candon, Ilocos Sur 24 and that sometime in
1991, he acquired a new domicile of choice at 24
Bonifacio St. Ayala Heights, Old Balara, Quezon
City, as shown by his certificate of candidacy for the
position of representative of the 3rd District of
Quezon City in the May 1995 election. Petitioner is
now claiming that he had effectively abandoned his
"residence" in Quezon City and has established a
new "domicile" of choice at the Province of
Sarangani.
In said case of the petition for the exclusion, the

object of the litigation, or the litigious matter was
the exclusion of Norberto Guray as a voter from the
election list of the municipality of Luna, while in the
present quo warranto proceeding, the object of the
litigation, or the litigious matter is his exclusion or
expulsion from the office to which he has been
elected. Neither does there exist, then, any identity
in the object of the litigation, or the litigious matter.
In said case of the petition for exclusion, the cause
of action was that Norberto Guray had not the six
months' legal residence in the municipality of Luna
to be a qualified voter thereof, while in the present
proceeding of quo warranto, the cause of action is
that Norberto Guray has not the one year's legal
residence required for eligibility to the office of
municipal president of Luna. Neither does there
exist therefore, identity of causes of action. cdphil
A person's "domicile" once established is

considered to continue and will not be deemed lost
until a new one is established. 25 To successfully
effect a change of domicile one must demonstrate
an actual removal or an actual change of domicile;
a bona fide intention of abandoning the former
place of residence and establishing a new one and
definite acts which correspond with the purpose. 26
In other words, there must basically be animus
manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice
must be for an indefinite period of time; the change
of residence must be voluntary; and the residence
at the place chosen for the new domicile must be
actual. 27
In order that res judicata may exist the following are

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

physical presence in Alabel, Sarangani since
December 1996 was sufficiently established by the
lease of a house and lot located therein in January
1997 and by the affidavits and certifications under
oath of the residents of that place that they have
seen petitioner and his family residing in their
locality. dctai
The Second Issue.

Was DOMINO a resident of the Province of
Sarangani for at least one year immediately
preceding the 11 May 1998 election as stated in his
certificate of candidacy?
While this may be so, actual and physical is not in

itself sufficient to show that from said date he had
transferred his residence in that place. To establish
a new domicile of choice, personal presence in the
place must be coupled with conduct indicative of
that intention. While "residence" simply requires
bodily presence in a given place, "domicile"
requires not only such bodily presence in that place
but also a declared and probable intent to make it
one's fixed and permanent place of abode, one's
home. 28
We hold in the negative. cda

It is doctrinally settled that the term "residence," as
used in the law prescribing the qualifications for
suffrage and for elective office, means the same
thing as "domicile," which imports not only an
intention to reside in a fixed place but also personal
presence in that place, coupled with conduct
indicative of such intention. 21 "Domicile" denotes a
fixed permanent residence to which, whenever
absent for business, pleasure, or some other
reasons, one intends to return. 22 "Domicile" is a
question of intention and circumstances. In the
consideration of circumstances, three rules must be
borne in mind, namely: (1) that a man must have a
residence or domicile somewhere; (2) when once
established it remains until a new one is acquired;
and (3) a man can have but one residence or
domicile at a time. 23
As a general rule, the principal elements of

domicile, physical presence in the locality involved
and intention to adopt it as a domicile, must concur
in order to establish a new domicile. No change of
domicile will result if either of these elements is
absent. Intention to acquire a domicile without
actual residence in the locality does not result in
acquisition of domicile, nor does the fact of physical
presence without intention. 29
The lease contract entered into sometime in
January 1997, does not adequately support a
change of domicile. The lease contract may be
79
indicative of DOMINO's intention to reside in

Sarangani but it does not engender the kind of
permanency required to prove abandonment of
one's original domicile. The mere absence of
individual from his permanent residence, no matter
how long, without the intention to abandon it does
not result in loss or change of domicile. 30 Thus the
date of the contract of lease of a house and lot
located in the province of Sarangani, i.e., 15
January 1997, cannot be used, in the absence of
other circumstances, as the reckoning period of the
one-year residence requirement.
disqualification is voted for and receives the highest

number of votes 38 and provided further that the
winning candidate has not been proclaimed or has
taken his oath of office. 39
It has been repeatedly held in a number of cases,
that the House of Representatives Electoral
Tribunal's sole and exclusive jurisdiction over all
contests relating to the election, returns and
qualifications of members of Congress as provided
under Section 17 of Article VI of the Constitution
begins only after a candidate has become a
member of the House of Representatives. 40
Further, Domino's lack of intention to abandon his

residence in Quezon City is further strengthened by
his act of registering as voter in one of the precincts
in Quezon City. While voting is not conclusive of
residence, it does give rise to a strong presumption
of residence especially in this case where DOMINO
registered in his former barangay. Exercising the
right of election franchise is a deliberate public
assertion of the fact of residence, and is said to
have decided preponderance in a doubtful case
upon the place the elector claims as, or believes to
be, his residence. 31 The fact that a party
continuously voted in a particular locality is a strong
factor in assisting to determine the status of his
domicile. 32
The fact of obtaining the highest number of votes in

an election does not automatically vest the position
in the winning candidate. 41 A candidate must be
proclaimed and must have taken his oath of office
before he can be considered a member of the
House of Representatives.
In the instant case, DOMINO was not proclaimed
as Congressman-elect of the Lone Congressional
District of the Province of Sarangani by reason of a
Supplemental Omnibus Resolution issued by the
COMELEC on the day of the election ordering the
suspension of DOMINO's proclamation should he
obtain the winning number of votes. This resolution
was issued by the COMELEC in view of the nonfinality of its 6 May 1998 resolution disqualifying
DOMINO as candidate for the position.
His claim that his registration in Quezon City was

erroneous and was caused by events over which
he had no control cannot be sustained. The general
registration of voters for purposes of the May 1998
elections was scheduled for two (2) consecutive
weekends, viz.: June 14, 15, 21, and 22. 33
Considering that DOMINO has not been proclaimed

as Congressman-elect in the Lone Congressional
District of the Province of Sarangani he cannot be
deemed a member of the House of Representative.
Hence, it is the COMELEC and not the Electoral
Tribunal which has jurisdiction over the issue of his
ineligibility as a candidate. 42 prLL
While, Domino's intention to establish residence in

Sarangani can be gleaned from the fact that be
bought the house he was renting on November 4,
1997, that he sought cancellation of his previous
registration in Quezon City on 22 October 1997, 34
and that he applied for transfer of registration from
Quezon City to Sarangani by reason of change of
residence on 30 August 1997, 35 DOMINO still falls
short of the one year residency requirement under
the Constitution. LLpr
Issue raised by INTERVENOR.

After finding that DOMINO is disqualified as
candidate for the position of representative of the
province of Sarangani, may INTERVENOR, as the
candidate who received the next highest number of
votes, be proclaimed as the winning candidate?
In showing compliance with the residency

requirement, both intent and actual presence in the
district one intends to represent must satisfy the
length of time prescribed by the fundamental law.
36 Domino's failure to do so rendered him ineligible
and his election to office null and void. 37
The Third Issue.
DOMINO's contention that the COMELEC has no
jurisdiction in the present petition is bereft of merit.
It is now settled doctrine that the candidate who

obtains the second highest number of votes may
not be proclaimed winner in case the winning
candidate is disqualified. 43 In every election, the
people's choice is the paramount consideration and
their expressed will must, at all times, be given
effect. When the majority speaks and elects into
office a candidate by giving the highest number of
votes cast in the election for that office, no one can
be declared elected in his place. 44
As previously mentioned, the COMELEC, under

Sec. 78, Art. IX of the Omnibus Election Code, has
jurisdiction over a petition to deny due course to or
cancel certificate of candidacy. Such jurisdiction
continues even after election, if for any reason no
final judgment of disqualification is rendered before
the
election,
and
the
candidate
facing
It would be extremely repugnant to the basic

concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the
majority or plurality of votes is proclaimed a winner
and imposed as the representative of a
constituency, the majority of which have positively
declared through their ballots that they do not
80
choose him. 45 To simplistically assume that the

second placer would have received the other votes
would be to substitute our judgment for the mind of
the voters. He could not be considered the first
among qualified candidates because in a field
which excludes the qualified candidate, the
conditions would have substantially changed. 46
cast in the sincere belief that he was a qualified

candidate, without any intention to misapply their
franchise. Thus, said votes can not be treated as
stray, void, or meaningless. 53
WHEREFORE, the instant petition is DISMISSED.
The resolution dated 6 May 1998 of the COMELEC
2nd Division and the decision dated 29 May 1998
of the COMELEC En Banc, are hereby AFFIRMED.
Sound policy dictates that public elective offices are

filled by those who have received the highest
number of votes cast in the election for that office,
and it is fundamental idea in all republican forms of
government that no one can be declared elected
and no measure can be declared carried unless he
or it receives a majority or plurality of the legal
votes cast in the election. 47
SO ORDERED.
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Buena, Gonzaga-Reyes and YnaresSantiago, JJ., concur.
Panganiban, J., concurs in the result; please see
Separate Opinion.
The effect of a decision declaring a person

ineligible to hold an office is only that the election
fails entirely, that the wreath of victory cannot be
transferred 48 from the disqualified winner to the
repudiated loser because the law then as now only
authorizes a declaration of election in favor of the
person who have obtained a plurality of votes 49
and does not entitle the candidate receiving the
next highest number of votes to be declared
elected. In such case, the electors have failed to
make a choice and the election is a nullity. 50 To
allow the defeated and repudiated candidate to
take over the elective position despite his rejection
by the electorate is to disenfranchise the electorate
without any fault on their part and to undermine the
importance and meaning of democracy and the
people's right to elect officials of their choice. 51
Quisumbing, J., concurs in the result; only insofar

as petitioner Domino is adjudged disqualified.
Purisima and Pardo, JJ., took no part.
||| (Domino v. Commission on Elections, G.R. No.
134015, [July 19, 1999], 369 PHIL 798-829)
4.
PAMATONG VS. COMELEC 427 SCRA 96

(2004)
EN BANC
[G.R. No. 161872. April 13, 2004.]
REV. ELLY CHAVEZ PAMATONG, ESQUIRE,
petitioner, vs. COMMISSION ON ELECTIONS,
respondent.
INTERVENOR's plea that the votes cast in favor of

DOMINO be considered stray votes cannot be
sustained. INTERVENOR's reliance on the opinion
made in the Labo, Jr. case 52 to wit: if the
electorate, fully aware in fact and in law of a
candidate's disqualification so as to bring such
awareness within the realm of notoriety, would
nevertheless cast their votes in favor of the
ineligible candidate, the electorate may be said to
have waived the validity and efficacy of their votes
by notoriously misapplying their franchise or
throwing away their votes, in which case, the
eligible candidate obtaining the next higher number
of votes may be deemed elected, is misplaced.
cdasia
RESOLUTION
TINGA, J p:
Petitioner Rev. Elly Velez Pamatong filed his
Certificate of Candidacy for President on December
17, 2003. Respondent Commission on Elections
(COMELEC) refused to give due course to
petitioners Certificate of Candidacy in its
Resolution No. 6558 dated January 17, 2004. The
decision, however, was not unanimous since
Commissioners Luzviminda G. Tancangco and
Mehol K. Sadain voted to include petitioner as they
believed he had parties or movements to back up
his candidacy.
Contrary to the claim of INTERVENOR, petitioner

was not notoriously known by the public as an
ineligible candidate. Although the resolution
declaring him ineligible as candidate was rendered
before the election, however, the same is not yet
final and executory. In fact, it was no less than the
COMELEC
in
its
Supplemental
Omnibus
Resolution No. 3046 that allowed DOMINO to be
voted for the office and ordered that the votes cast
for him be counted as the Resolution declaring him
ineligible has not yet attained finality. Thus the
votes cast for DOMINO are presumed to have been
On January 15, 2004, petitioner moved for

reconsideration of Resolution No. 6558. Petitioners
Motion for Reconsideration was docketed as SPP
(MP) No. 04-001. The COMELEC, acting on
petitioners Motion for Reconsideration and on
similar motions filed by other aspirants for national
elective positions, denied the same under the aegis
of Omnibus Resolution No. 6604 dated February
11, 2004. The COMELEC declared petitioner and
thirty-five (35) others nuisance candidates who
could not wage a nationwide campaign and/or are
81
not nominated by a political party or are not

supported by a registered political party with a
national constituency. Commissioner Sadain
maintained his vote for petitioner. By then,
Commissioner Tancangco had retired.
provision does not give rise to any cause of action

before the courts. 4
An inquiry into the intent of the framers 5 produces
the same determination that the provision is not
self-executory. The original wording of the present
Section 26, Article II had read, The State shall
broaden opportunities to public office and prohibit
public dynasties. 6 Commissioner (now Chief
Justice) Hilario Davide, Jr. successfully brought
forth an amendment that changed the word
broaden to the phrase ensure equal access, and
the substitution of the word office to service. He
explained his proposal in this wise:
In this Petition For Writ of Certiorari, petitioner

seeks to reverse the resolutions which were
allegedly rendered in violation of his right to equal
access to opportunities for public service under
Section 26, Article II of the 1987 Constitution, 1 by
limiting the number of qualified candidates only to
those who can afford to wage a nationwide
campaign and/or are nominated by political parties.
In so doing, petitioner argues that the COMELEC
indirectly amended the constitutional provisions on
the electoral process and limited the power of the
sovereign people to choose their leaders. The
COMELEC supposedly erred in disqualifying him
since he is the most qualified among all the
presidential candidates, i.e., he possesses all the
constitutional and legal qualifications for the office
of the president, he is capable of waging a national
campaign since he has numerous national
organizations under his leadership, he also has the
capacity to wage an international campaign since
he has practiced law in other countries, and he has
a platform of government. Petitioner likewise
attacks the validity of the form for the Certificate of
Candidacy prepared by the COMELEC. Petitioner
claims that the form does not provide clear and
reasonable guidelines for determining the
qualifications of candidates since it does not ask for
the candidates bio-data and his program of
government.
I changed the word broaden to ENSURE EQUAL

ACCESS TO because what is important would be
equal access to the opportunity. If you broaden, it
would necessarily mean that the government would
be mandated to create as many offices as are
possible to accommodate as many people as are
also possible. That is the meaning of broadening
opportunities to public service. So, in order that we
should not mandate the State to make the
government the number one employer and to limit
offices only to what may be necessary and
expedient yet offering equal opportunities to access
to it, I change the word broaden. 7 (emphasis
supplied)
Obviously, the provision is not intended to compel
the State to enact positive measures that would
accommodate as many people as possible into
public office. The approval of the Davide
amendment indicates the design of the framers to
cast the provision as simply enunciatory of a
desired policy objective and not reflective of the
imposition of a clear State burden.
First, the constitutional and legal dimensions

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

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

Article II of the Constitution, entitled Declaration of
Principles and State Policies. The provisions under
the Article are generally considered not selfexecuting, 2 and there is no plausible reason for
according a different treatment to the equal
access provision. Like the rest of the policies
enumerated in Article II, the provision does not
contain any judicially enforceable constitutional
right but merely specifies a guideline for legislative
or executive action. 3 The disregard of the
As earlier noted, the privilege of equal access to

opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the
privilege to seek elective office are found in the
provisions 9 of the Omnibus Election Code on
Nuisance Candidates and COMELEC Resolution
No. 6452 10 dated December 10, 2002 outlining
the instances wherein the COMELEC may motu
proprio refuse to give due course to or cancel a
Certificate of Candidacy.
82
Candidates, Voters Information Sheet and the

Official Ballots. These would entail additional costs
to the government. For the official ballots in
automated counting and canvassing of votes, an
additional page would amount to more or less
FOUR HUNDRED FIFTY MILLION PESOS
(P450,000,000.00).
As long as the limitations apply to everybody

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

candidates to continue if they cannot wage a
decent campaign enough to project the prospect of
winning, no matter how slim. 12
Significantly, petitioner does not challenge the

constitutionality or validity of Section 69 of the
Omnibus Election Code and COMELEC Resolution
No. 6452 dated 10 December 2003. Thus, their
presumed validity stands and has to be accorded
due weight.
The preparation of ballots is but one aspect that

would be affected by allowance of nuisance
candidates to run in the elections. Our election
laws provide various entitlements for candidates for
public office, such as watchers in every polling
place, 13 watchers in the board of canvassers, 14
or even the receipt of electoral contributions. 15
Moreover, there are election rules and regulations
the formulations of which are dependent on the
number of candidates in a given election.
Clearly, therefore, petitioners reliance on the equal

access clause in Section 26, Article II of the
Constitution is misplaced.
The rationale behind the prohibition against
nuisance candidates and the disqualification of
candidates who have not evinced a bona fide
intention to run for office is easy to divine. The
State has a compelling interest to ensure that its
electoral exercises are rational, objective, and
orderly. Towards this end, the State takes into
account the practical considerations in conducting
elections. Inevitably, the greater the number of
candidates, the greater the opportunities for
logistical confusion, not to mention the increased
allocation of time and resources in preparation for
the election. These practical difficulties should, of
course, never exempt the State from the conduct of
a mandated electoral exercise. At the same time,
remedial actions should be available to alleviate
these logistical hardships, whenever necessary and
proper. Ultimately, a disorderly election is not
merely a textbook example of inefficiency, but a rot
that erodes faith in our democratic institutions. As
the United States Supreme Court held:
Given these considerations, the ignominious nature

of a nuisance candidacy becomes even more
galling. The organization of an election with bona
fide candidates standing is onerous enough. To add
into the mix candidates with no serious intentions or
capabilities to run a viable campaign would actually
impair the electoral process. This is not to mention
the candidacies which are palpably ridiculous so as
to constitute a one-note joke. The poll body would
be bogged by irrelevant minutiae covering every
step of the electoral process, most probably posed
at the instance of these nuisance candidates. It
would be a senseless sacrifice on the part of the
State.
Owing to the superior interest in ensuring a credible
and orderly election, the State could exclude
nuisance candidates and need not indulge in, as
the song goes, their trips to the moon on gossamer
wings.
[T]here is surely an important state interest in

requiring some preliminary showing of a significant
modicum of support before printing the name of a
political organization and its candidates on the
ballot the interest, if no other, in avoiding
confusion, deception and even frustration of the
democratic [process]. 11
The Omnibus Election Code and COMELEC

Resolution No. 6452 are cognizant of the
compelling State interest to ensure orderly and
credible elections by excising impediments thereto,
such as nuisance candidacies that distract and
detract from the larger purpose. The COMELEC is
mandated
by
the
Constitution
with
the
administration of elections 16 and endowed with
considerable latitude in adopting means and
methods that will ensure the promotion of free,
orderly and honest elections. 17 Moreover, the
Constitution guarantees that only bona fide
candidates for public office shall be free from any
form of harassment and discrimination. 18 The
determination of bona fide candidates is governed
by the statutes, and the concept, to our mind is,
satisfactorily defined in the Omnibus Election Code.
The COMELEC itself recognized these practical

considerations when it promulgated Resolution No.
6558 on 17 January 2004, adopting the study
Memorandum of its Law Department dated 11
January 2004. As observed in the COMELECs
Comment:
There is a need to limit the number of candidates
especially in the case of candidates for national
positions because the election process becomes a
mockery even if those who cannot clearly wage a
national campaign are allowed to run. Their names
would have to be printed in the Certified List of
83
Now, the needed factual premises.
Austria-Martinez, Corona, Carpio-Morales, Callejo,

Sr. and Azcuna, JJ ., concur.
However valid the law and the COMELEC issuance

involved are, their proper application in the case of
the petitioner cannot be tested and reviewed by this
Court on the basis of what is now before it. The
assailed resolutions of the COMELEC do not direct
the Court to the evidence which it considered in
determining that petitioner was a nuisance
candidate. This precludes the Court from reviewing
at this instance whether the COMELEC committed
grave abuse of discretion in disqualifying petitioner,
since such a review would necessarily take into
account the matters which the COMELEC
considered in arriving at its decisions.
||| (Pamatong v. Commission on Elections, G.R. No.

161872, [April 13, 2004])
5.
YRASUEGI VS. PAL 569 SCRA 467

(2008)
THIRD DIVISION
[G.R. No. 168081. October 17, 2008.]
ARMANDO G. YRASUEGUI, petitioner,
PHILIPPINE AIRLINES, INC., respondent.
vs.
Petitioner has submitted to this Court mere

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

candidate or not is both legal and factual. The basis
of the factual determination is not before this Court.
Thus, the remand of this case for the reception of
further evidence is in order.
He is now before this Court via a petition for review

on certiorari claiming that he was illegally
dismissed. To buttress his stance, he argues that
(1) his dismissal does not fall under 282 (e) of the
Labor Code; (2) continuing adherence to the weight
standards of the company is not a bona fide
occupational qualification; and (3) he was
discriminated against because other overweight
employees were promoted instead of being
disciplined.
REYES, R.T., J p:
THIS case portrays the peculiar story of an
international flight steward who was dismissed
because of his failure to adhere to the weight
standards of the airline company. CacTSI
A word of caution is in order. What is at stake is

petitioners aspiration and offer to serve in the
government. It deserves not a cursory treatment
but a hearing which conforms to the requirements
of due process.
After a meticulous consideration of all arguments

pro and con, We uphold the legality of dismissal.
Separation pay, however, should be awarded in
favor of the employee as an act of social justice or
based on equity. This is so because his dismissal is
not for serious misconduct. Neither is it reflective of
his moral character.
As to petitioners attacks on the validity of the form

for the certificate of candidacy, suffice it to say that
the form strictly complies with Section 74 of the
Omnibus Election Code. This provision specifically
enumerates what a certificate of candidacy should
contain, with the required information tending to
show that the candidate possesses the minimum
qualifications for the position aspired for as
established by the Constitution and other election
laws.
The Facts
Petitioner Armando G. Yrasuegui was a former
international flight steward of Philippine Airlines,
Inc. (PAL). He stands five feet and eight inches
(5'8") with a large body frame. The proper weight
for a man of his height and body structure is from
147 to 166 pounds, the ideal weight being 166
pounds, as mandated by the Cabin and Crew
Administration Manual 1 of PAL. cIADTC
IN VIEW OF THE FOREGOING, COMELEC Case

No. SPP (MP) No. 04-001 is hereby remanded to
the COMELEC for the reception of further
evidence, to determine the question on whether
petitioner Elly Velez Lao Pamatong is a nuisance
candidate as contemplated in Section 69 of the
Omnibus Election Code.
SO ORDERED. ACTEHI
The weight problem of petitioner dates back to

1984. Back then, PAL advised him to go on an
extended vacation leave from December 29, 1984
to March 4, 1985 to address his weight concerns.
Apparently, petitioner failed to meet the company's
weight standards, prompting another leave without
pay from March 5, 1985 to November 1985.
Davide, Jr., C .J ., Puno, Panganiban, Quisumbing,

Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
After meeting the required weight, petitioner was

allowed to return to work. But petitioner's weight
The COMELEC is directed to hold and complete

the reception of evidence and report its findings to
this Court with deliberate dispatch.
84
problem recurred. He again went on leave without

pay from October 17, 1988 to February 1989.
Again, petitioner failed to report for weight checks,

although he was seen submitting his passport for
processing at the PAL Staff Service Division.
On April 26, 1989, petitioner weighed 209 pounds,

43 pounds over his ideal weight. In line with
company policy, he was removed from flight duty
effective May 6, 1989 to July 3, 1989. He was
formally requested to trim down to his ideal weight
and report for weight checks on several dates. He
was also told that he may avail of the services of
the company physician should he wish to do so. He
was advised that his case will be evaluated on July
3, 1989. 2
On April 17, 1990, petitioner was formally warned

that a repeated refusal to report for weight check
would be dealt with accordingly. He was given
another set of weight check dates. 6 Again,
petitioner ignored the directive and did not report
for weight checks. On June 26, 1990, petitioner
was required to explain his refusal to undergo
weight checks. 7
When petitioner tipped the scale on July 30, 1990,
he weighed at 212 pounds. Clearly, he was still way
over his ideal weight of 166 pounds. EaScHT
On February 25, 1989, petitioner underwent weight

check. It was discovered that he gained, instead of
losing, weight. He was overweight at 215 pounds,
which is 49 pounds beyond the limit. Consequently,
his off-duty status was retained. DcCHTa
From then on, nothing was heard from petitioner

until he followed up his case requesting for leniency
on the latter part of 1992. He weighed at 219
pounds on August 20, 1992 and 205 pounds on
November 5, 1992.
On October 17, 1989, PAL Line Administrator Gloria

Dizon personally visited petitioner at his residence
to check on the progress of his effort to lose weight.
Petitioner weighed 217 pounds, gaining 2 pounds
from his previous weight. After the visit, petitioner
made a commitment 3 to reduce weight in a letter
addressed to Cabin Crew Group Manager Augusto
Barrios. The letter, in full, reads:
On November 13, 1992, PAL finally served

petitioner a Notice of Administrative Charge for
violation of company standards on weight
requirements. He was given ten (10) days from
receipt of the charge within which to file his answer
and submit controverting evidence. 8
Dear Sir:
On December 7, 1992, petitioner submitted his
Answer. 9 Notably, he did not deny being
overweight. What he claimed, instead, is that his
violation, if any, had already been condoned by PAL
since "no action has been taken by the company"
regarding his case "since 1988". He also claimed
that PAL discriminated against him because "the
company has not been fair in treating the cabin
crew members who are similarly situated". TcCDIS
I would like to guaranty my commitment towards a

weight loss from 217 pounds to 200 pounds from
today until 31 Dec. 1989. AaSHED
From thereon, I promise to continue reducing at a
reasonable percentage until such time that my ideal
weight is achieved.
Likewise, I promise to personally report to your
office at the designated time schedule you will set
for my weight check.
On December 8, 1992, a clarificatory hearing was

held where petitioner manifested that he was
undergoing a weight reduction program to lose at
least two (2) pounds per week so as to attain his
ideal weight. 10
Respectfully Yours,
F/S Armando Yrasuegui 4
On June 15, 1993, petitioner was formally informed

by PAL that due to his inability to attain his ideal
weight, "and considering the utmost leniency"
extended to him "which spanned a period covering
a total of almost five (5) years", his services were
considered terminated "effective immediately". 11
Despite the lapse of a ninety-day period given him

to reach his ideal weight, petitioner remained
overweight. On January 3, 1990, he was informed
of the PAL decision for him to remain grounded until
such time that he satisfactorily complies with the
weight standards. Again, he was directed to report
every two weeks for weight checks. SEcAIC
His motion for reconsideration having been denied,

12 petitioner filed a complaint for illegal dismissal
against PAL. HcSCED
Petitioner failed to report for weight checks. Despite

that, he was given one more month to comply with
the weight requirement. As usual, he was asked to
report for weight check on different dates. He was
reminded that his grounding would continue
pending satisfactory compliance with the weight
standards. 5
Labor Arbiter, NLRC and CA Dispositions

On November 18, 1998, Labor Arbiter Valentin C.
Reyes ruled 13 that petitioner was illegally
dismissed. The dispositive part of the Arbiter ruling
runs as follows:
WHEREFORE, in view of the foregoing, judgment
is hereby rendered, declaring the complainant's
85
dismissal illegal, and ordering the respondent to

reinstate him to his former position or substantially
equivalent one, and to pay him:
According to the NLRC, "obesity, or the tendency to

gain weight uncontrollably regardless of the amount
of food intake, is a disease in itself". 26 As a
consequence, there can be no intentional defiance
or serious misconduct by petitioner to the lawful
order of PAL for him to lose weight. 27
a. Backwages of Php10,500.00 per month from his

dismissal on June 15, 1993 until reinstated, which
for purposes of appeal is hereby set from June 15,
1993 up to August 15, 1998 at P651,000.00;
ITDHcA
Like the Labor Arbiter, the NLRC found the weight

standards of PAL to be reasonable. However, it
found as unnecessary the Labor Arbiter holding that
petitioner was not remiss in the performance of his
duties as flight steward despite being overweight.
According to the NLRC, the Labor Arbiter should
have limited himself to the issue of whether the
failure of petitioner to attain his ideal weight
constituted willful defiance of the weight standards
of PAL. 28
b. Attorney's fees of five percent (5%) of the total

award.
SO ORDERED. 14
The Labor Arbiter held that the weight standards of
PAL are reasonable in view of the nature of the job
of petitioner. 15 However, the weight standards
need not be complied with under pain of dismissal
since his weight did not hamper the performance of
his duties. 16 Assuming that it did, petitioner could
be transferred to other positions where his weight
would not be a negative factor. 17 Notably, other
overweight employees, i.e., Mr. Palacios, Mr. Cui,
and Mr. Barrios, were promoted instead of being
disciplined. 18
PAL moved for reconsideration to no avail. 29 Thus,

PAL elevated the matter to the Court of Appeals
(CA) via a petition for certiorari under Rule 65 of the
1997 Rules of Civil Procedure. 30
By Decision dated August 31, 2004, the CA
reversed 31 the NLRC:
Both parties appealed to the National Labor

Relations Commission (NLRC). 19
WHEREFORE, premises considered, we hereby

GRANT the petition. The assailed NLRC decision is
declared NULL and VOID and is hereby SET
ASIDE. The private respondent's complaint is
hereby DISMISSED. No costs. caITAC
On October 8, 1999, the Labor Arbiter issued a writ

of execution directing the reinstatement of
petitioner without loss of seniority rights and other
benefits. 20
SO ORDERED. 32
On February 1, 2000, the Labor Arbiter denied 21

the Motion to Quash Writ of Execution 22 of PAL.
HCEaDI
The CA opined that there was grave abuse of

discretion on the part of the NLRC because it
"looked at wrong and irrelevant considerations" 33
in evaluating the evidence of the parties. Contrary
to the NLRC ruling, the weight standards of PAL are
meant to be a continuing qualification for an
employee's position. 34 The failure to adhere to the
weight standards is an analogous cause for the
dismissal of an employee under Article 282 (e) of
the Labor Code in relation to Article 282 (a). It is not
willful disobedience as the NLRC seemed to
suggest. 35 Said the CA, "the element of willfulness
that the NLRC decision cites is an irrelevant
consideration in arriving at a conclusion on whether
the dismissal is legally proper". 36 In other words,
"the relevant question to ask is not one of
willfulness but one of reasonableness of the
standard and whether or not the employee qualifies
or continues to qualify under this standard". 37
On March 6, 2000, PAL appealed the denial of its

motion to quash to the NLRC. 23
On June 23, 2000, the NLRC rendered judgment
24 in the following tenor:
WHEREFORE, premises considered[,] the Decision
of the Arbiter dated 18 November 1998 as modified
by our findings herein, is hereby AFFIRMED and
that part of the dispositive portion of said decision
concerning complainant's entitlement to backwages
shall be deemed to refer to complainant's
entitlement to his full backwages, inclusive of
allowances and to his other benefits or their
monetary equivalent instead of simply backwages,
from date of dismissal until his actual reinstatement
or finality hereof. Respondent is enjoined to
manifests (sic) its choice of the form of the
reinstatement of complainant, whether physical or
through payroll within ten (10) days from notice
failing which, the same shall be deemed as
complainant's reinstatement through payroll and
execution in case of non-payment shall accordingly
be issued by the Arbiter. Both appeals of
respondent thus, are DISMISSED for utter lack of
merit. 25
Just like the Labor Arbiter and the NLRC, the CA

held that the weight standards of PAL are
reasonable. 38 Thus, petitioner was legally
dismissed because he repeatedly failed to meet the
prescribed weight standards. 39 It is obvious that
the issue of discrimination was only invoked by
petitioner for purposes of escaping the result of his
dismissal for being overweight. 40
86
maintain in order to qualify for and keep his or her

position in the company. In other words, they were
standards that establish continuing qualifications for
an employee's position. In this sense, the failure to
maintain these standards does not fall under Article
282 (a) whose express terms require the element of
willfulness in order to be a ground for dismissal.
The failure to meet the employer's qualifying
standards is in fact a ground that does not squarely
fall under grounds (a) to (d) and is therefore one
that falls under Article 282(e) the "other causes
analogous to the foregoing". TAIDHa
On May 10, 2005, the CA denied petitioner's motion

for reconsideration. 41 Elaborating on its earlier
ruling, the CA held that the weight standards of PAL
are a bona fide occupational qualification which, in
case of violation, "justifies an employee's
separation from the service". 42
Issues
In this Rule 45 petition for review, the following
issues are posed for resolution:
I.
By its nature, these "qualifying standards" are

norms that apply prior to and after an employee is
hired. They apply prior to employment because
these are the standards a job applicant must
initially meet in order to be hired. They apply after
hiring because an employee must continue to meet
these standards while on the job in order to keep
his job. Under this perspective, a violation is not
one of the faults for which an employee can be
dismissed pursuant to pars. (a) to (d) of Article 282;
the employee can be dismissed simply because he
no longer "qualifies" for his job irrespective of
whether or not the failure to qualify was willful or
intentional. . . . 45
WHETHER OR NOT THE COURT OF APPEALS

GRAVELY
ERRED
IN
HOLDING
THAT
PETITIONER'S OBESITY CAN BE A GROUND
FOR DISMISSAL UNDER PARAGRAPH (e) OF
ARTICLE 282 OF THE LABOR CODE OF THE
PHILIPPINES;
II.
GRAVELY
ERRED
IN
HOLDING
THAT
PETITIONER'S DISMISSAL FOR OBESITY CAN
BE PREDICATED ON THE "BONA FIDE
OCCUPATIONAL
QUALIFICATION
(BFOQ)
DEFENSE";
Petitioner, though, advances a very interesting

argument. He claims that obesity is a "physical
abnormality and/or illness". 46 Relying on Nadura v.
Benguet Consolidated, Inc., 47 he says his
dismissal is illegal:
III.
GRAVELY
ERRED
IN
HOLDING
THAT
PETITIONER
WAS
NOT
UNDULY
DISCRIMINATED AGAINST WHEN HE WAS
DISMISSED WHILE OTHER OVERWEIGHT
CABIN ATTENDANTS WERE EITHER GIVEN
FLYING DUTIES OR PROMOTED;
Conscious of the fact that Nadura's case cannot be

made to fall squarely within the specific causes
enumerated in subparagraphs 1(a) to (e), Benguet
invokes the provisions of subparagraph 1(f) and
says that Nadura's illness occasional attacks of
asthma is a cause analogous to them. IASCTD
IV.
Even a cursory reading of the legal provision under
consideration is sufficient to convince anyone that,
as the trial court said, "illness cannot be included
as an analogous cause by any stretch of
imagination".

GRAVELY ERRED WHEN IT BRUSHED ASIDE
PETITIONER'S CLAIMS FOR REINSTATEMENT
[AND] WAGES ALLEGEDLY FOR BEING MOOT
AND ACADEMIC. 43 (Underscoring supplied)
It is clear that, except the just cause mentioned in

sub-paragraph 1(a), all the others expressly
enumerated in the law are due to the voluntary
and/or willful act of the employee. How Nadura's
illness could be considered as "analogous" to any
of them is beyond our understanding, there being
no claim or pretense that the same was contracted
through his own voluntary act. 48
Our Ruling
I. The obesity of petitioner is a ground for dismissal
under Article 282 (e) 44 of the Labor Code.
A reading of the weight standards of PAL would
lead to no other conclusion than that they constitute
a continuing qualification of an employee in order to
keep the job. Tersely put, an employee may be
dismissed the moment he is unable to comply with
his ideal weight as prescribed by the weight
standards. The dismissal of the employee would
thus fall under Article 282 (e) of the Labor Code. As
explained by the CA:
The reliance on Nadura is off-tangent. The factual

milieu in Nadura is substantially different from the
case at bar. First, Nadura was not decided under
the Labor Code. The law applied in that case was
Republic Act (RA) No. 1787. Second, the issue of
flight safety is absent in Nadura, thus, the rationale
there cannot apply here. Third, in Nadura, the
employee who was a miner, was laid off from work
because of illness, i.e., asthma. Here, petitioner
. . . [T]he standards violated in this case were not

mere "orders" of the employer; they were the
"prescribed weights" that a cabin crew must
87
was dismissed for his failure to meet the weight

standards of PAL. He was not dismissed due to
illness. Fourth, the issue in Nadura is whether or
not the dismissed employee is entitled to
separation pay and damages. Here, the issue
centers on the propriety of the dismissal of
petitioner for his failure to meet the weight
standards of PAL. Fifth, in Nadura, the employee
was not accorded due process. Here, petitioner
was accorded utmost leniency. He was given more
than four (4) years to comply with the weight
standards of PAL. STcaDI
The appellate Court disagreed and held that morbid

obesity is a disability under the Rehabilitation Act
and that respondent discriminated against Cook
based on "perceived" disability. The evidence
included expert testimony that morbid obesity is a
physiological disorder. It involves a dysfunction of
both the metabolic system and the neurological
appetite suppressing signal system, which is
capable of causing adverse effects within the
musculoskeletal, respiratory, and cardiovascular
systems. Notably, the Court stated that "mutability
is relevant only in determining the substantiality of
the limitation flowing from a given impairment", thus
"mutability only precludes those conditions that an
individual can easily and quickly reverse by
behavioral alteration".
In the case at bar, the evidence on record militates

against petitioner's claims that obesity is a disease.
That he was able to reduce his weight from 1984 to
1992 clearly shows that it is possible for him to lose
weight given the proper attitude, determination, and
self-discipline. Indeed, during the clarificatory
hearing on December 8, 1992, petitioner himself
claimed that "[t]he issue is could I bring my weight
down to ideal weight which is 172, then the answer
is yes. I can do it now". 49
Unlike Cook, however, petitioner is not morbidly

obese. In the words of the District Court for the
District of Rhode Island, Cook was sometime
before 1978 "at least one hundred pounds more
than what is considered appropriate of her height".
According to the Circuit Judge, Cook weighed "over
320 pounds" in 1988. Clearly, that is not the case
here. At his heaviest, petitioner was only less than
50 pounds over his ideal weight. CEDScA
True, petitioner claims that reducing weight is

costing him "a lot of expenses". 50 However,
petitioner has only himself to blame. He could have
easily availed the assistance of the company
physician, per the advice of PAL. 51 He chose to
ignore the suggestion. In fact, he repeatedly failed
to report when required to undergo weight checks,
without offering a valid explanation. Thus, his
fluctuating weight indicates absence of willpower
rather than an illness. EScHDA
In fine, We hold that the obesity of petitioner, when

placed in the context of his work as flight attendant,
becomes an analogous cause under Article 282 (e)
of the Labor Code that justifies his dismissal from
the service. His obesity may not be unintended, but
is nonetheless voluntary. As the CA correctly puts it,
"[v]oluntariness basically means that the just cause
is solely attributable to the employee without any
external force influencing or controlling his actions.
This element runs through all just causes under
Article 282, whether they be in the nature of a
wrongful action or omission. Gross and habitual
neglect, a recognized just cause, is considered
voluntary although it lacks the element of intent
found in Article 282 (a), (c), and (d)." 54
Petitioner cites Bonnie Cook v. State of Rhode

Island, Department of Mental Health, Retardation
and Hospitals, 52 decided by the United States
Court of Appeals (First Circuit). In that case, Cook
worked from 1978 to 1980 and from 1981 to 1986
as an institutional attendant for the mentally
retarded at the Ladd Center that was being
operated by respondent. She twice resigned
voluntarily with an unblemished record. Even
respondent admitted that her performance met the
Center's legitimate expectations. In 1988, Cook reapplied for a similar position. At that time, "she
stood 5'2" tall and weighed over 320 pounds".
Respondent claimed that the morbid obesity of
plaintiff compromised her ability to evacuate
patients in case of emergency and it also put her at
greater risk of serious diseases.
II. The dismissal of petitioner can be predicated on

the bona fide occupational qualification defense.
Employment in particular jobs may not be limited to
persons of a particular sex, religion, or national
origin unless the employer can show that sex,
religion, or national origin is an actual qualification
for performing the job. The qualification is called a
bona fide occupational qualification (BFOQ). 55 In
the United States, there are a few federal and many
state job discrimination laws that contain an
exception allowing an employer to engage in an
otherwise unlawful form of prohibited discrimination
when the action is based on a BFOQ necessary to
the normal operation of a business or enterprise. 56
Cook contended that the action of respondent

amounted to discrimination on the basis of a
handicap. This was in direct violation of Section
504 (a) of the Rehabilitation Act of 1973, 53 which
incorporates the remedies contained in Title VI of
the Civil Rights Act of 1964. Respondent claimed,
however, that morbid obesity could never constitute
a handicap within the purview of the Rehabilitation
Act. Among others, obesity is a mutable condition,
thus plaintiff could simply lose weight and rid
herself of concomitant disability. cIHDaE
Petitioner contends that BFOQ is a statutory

defense. It does not exist if there is no statute
providing for it. 57 Further, there is no existing
BFOQ statute that could justify his dismissal. 58
88
imposed upon it by law by virtue of being a

common carrier. cSDHEC
Both arguments must fail.

First, the Constitution, 59 the Labor Code, 60 and
RA No. 7277 61 or the Magna Carta for Disabled
Persons 62 contain provisions similar to BFOQ.
DcAaSI
The business of PAL is air transportation. As such,

it has committed itself to safely transport its
passengers. In order to achieve this, it must
necessarily rely on its employees, most particularly
the cabin flight deck crew who are on board the
aircraft. The weight standards of PAL should be
viewed as imposing strict norms of discipline upon
its employees.
Second, in British Columbia Public Service

Employee Commission (BSPSERC) v. The British
Columbia Government and Service Employee's
Union (BCGSEU), 63 the Supreme Court of
Canada adopted the so-called "Meiorin Test" in
determining whether an employment policy is
justified. Under this test, (1) the employer must
show that it adopted the standard for a purpose
rationally connected to the performance of the job;
64 (2) the employer must establish that the
standard is reasonably necessary 65 to the
accomplishment of that work-related purpose; and
(3) the employer must establish that the standard is
reasonably necessary in order to accomplish the
legitimate work-related purpose. Similarly, in Star
Paper Corporation v. Simbol, 66 this Court held that
in order to justify a BFOQ, the employer must prove
that (1) the employment qualification is reasonably
related to the essential operation of the job
involved; and (2) that there is factual basis for
believing that all or substantially all persons
meeting the qualification would be unable to
properly perform the duties of the job. 67
In other words, the primary objective of PAL in the

imposition of the weight standards for cabin crew is
flight safety. It cannot be gainsaid that cabin
attendants must maintain agility at all times in order
to inspire passenger confidence on their ability to
care for the passengers when something goes
wrong. It is not farfetched to say that airline
companies, just like all common carriers, thrive due
to public confidence on their safety records.
People, especially the riding public, expect no less
than that airline companies transport their
passengers to their respective destinations safely
and soundly. A lesser performance is unacceptable.
aAEIHC
The task of a cabin crew or flight attendant is not
limited to serving meals or attending to the whims
and caprices of the passengers. The most
important activity of the cabin crew is to care for the
safety of passengers and the evacuation of the
aircraft when an emergency occurs. Passenger
safety goes to the core of the job of a cabin
attendant. Truly, airlines need cabin attendants who
have the necessary strength to open emergency
doors, the agility to attend to passengers in
cramped working conditions, and the stamina to
withstand grueling flight schedules.
In short, the test of reasonableness of the company

policy is used because it is parallel to BFOQ. 68
BFOQ is valid "provided it reflects an inherent
quality reasonably necessary for satisfactory job
performance". 69
In Duncan Association of Detailman-PTGWTO v.
Glaxo Wellcome Philippines, Inc., 70 the Court did
not hesitate to pass upon the validity of a company
policy which prohibits its employees from marrying
employees of a rival company. It was held that the
company policy is reasonable considering that its
purpose is the protection of the interests of the
company against possible competitor infiltration on
its trade secrets and procedures. TASCDI
On board an aircraft, the body weight and size of a

cabin attendant are important factors to consider in
case of emergency. Aircrafts have constricted cabin
space, and narrow aisles and exit doors. Thus, the
arguments of respondent that "[w]hether the
airline's flight attendants are overweight or not has
no direct relation to its mission of transporting
passengers to their destination"; and that the
weight standards "has nothing to do with
airworthiness of respondent's airlines", must fail.
DHaEAS
Verily, there is no merit to the argument that BFOQ

cannot be applied if it has no supporting statute.
Too, the Labor Arbiter, 71 NLRC, 72 and CA 73 are
one in holding that the weight standards of PAL are
reasonable. A common carrier, from the nature of
its business and for reasons of public policy, is
bound to observe extraordinary diligence for the
safety of the passengers it transports. 74 It is
bound to carry its passengers safely as far as
human care and foresight can provide, using the
utmost diligence of very cautious persons, with due
regard for all the circumstances. 75
The rationale in Western Air Lines v. Criswell 76

relied upon by petitioner cannot apply to his case.
What was involved there were two (2) airline pilots
who were denied reassignment as flight engineers
upon reaching the age of 60, and a flight engineer
who was forced to retire at age 60. They sued the
airline company, alleging that the age-60 retirement
for flight engineers violated the Age Discrimination
in Employment Act of 1967. Age-based BFOQ and
being overweight are not the same. The case of
overweight cabin attendants is another matter.
Given the cramped cabin space and narrow aisles
and emergency exit doors of the airplane, any
The law leaves no room for mistake or oversight on

the part of a common carrier. Thus, it is only logical
to hold that the weight standards of PAL show its
effort to comply with the exacting obligations
89
overweight cabin attendant would certainly have

difficulty navigating the cramped cabin area.
ADSTCI
basic rule in evidence that each party must prove

his affirmative allegation. 81
In short, there is no need to individually evaluate

their ability to perform their task. That an obese
cabin attendant occupies more space than a slim
one is an unquestionable fact which courts can
judicially recognize without introduction of
evidence. 77 It would also be absurd to require
airline companies to reconfigure the aircraft in order
to widen the aisles and exit doors just to
accommodate overweight cabin attendants like
petitioner.
Since the burden of evidence lies with the party

who asserts an affirmative allegation, petitioner has
to prove his allegation with particularity. There is
nothing on the records which could support the
finding of discriminatory treatment. Petitioner
cannot establish discrimination by simply naming
the supposed cabin attendants who are allegedly
similarly situated with him. Substantial proof must
be shown as to how and why they are similarly
situated and the differential treatment petitioner got
from PAL despite the similarity of his situation with
other employees. ICHcaD
The biggest problem with an overweight cabin

attendant is the possibility of impeding passengers
from evacuating the aircraft, should the occasion
call for it. The job of a cabin attendant during
emergencies is to speedily get the passengers out
of the aircraft safely. Being overweight necessarily
impedes mobility. Indeed, in an emergency
situation, seconds are what cabin attendants are
dealing with, not minutes. Three lost seconds can
translate into three lost lives. Evacuation might slow
down just because a wide-bodied cabin attendant is
blocking the narrow aisles. These possibilities are
not remote. IcTCHD
Indeed, except for pointing out the names of the

supposed overweight cabin attendants, petitioner
miserably failed to indicate their respective ideal
weights; weights over their ideal weights; the
periods they were allowed to fly despite their being
overweight; the particular flights assigned to them;
the discriminating treatment they got from PAL; and
other relevant data that could have adequately
established a case of discriminatory treatment by
PAL. In the words of the CA, "PAL really had no
substantial case of discrimination to meet". 82
Petitioner is also in estoppel. He does not dispute

that the weight standards of PAL were made known
to him prior to his employment. He is presumed to
know the weight limit that he must maintain at all
times. 78 In fact, never did he question the
authority of PAL when he was repeatedly asked to
trim down his weight. Bona fides exigit ut quod
convenit fiat. Good faith demands that what is
agreed upon shall be done. Kung ang tao ay tapat
kanyang tutuparin ang napagkasunduan.
We are not unmindful that findings of facts of

administrative agencies, like the Labor Arbiter and
the NLRC, are accorded respect, even finality. 83
The reason is simple: administrative agencies are
experts in matters within their specific and
specialized jurisdiction. 84 But the principle is not a
hard and fast rule. It only applies if the findings of
facts are duly supported by substantial evidence. If
it can be shown that administrative bodies grossly
misappreciated evidence of such nature so as to
compel a conclusion to the contrary, their findings
of facts must necessarily be reversed. Factual
findings of administrative agencies do not have
infallibility and must be set aside when they fail the
test of arbitrariness. 85
Too, the weight standards of PAL provide for

separate weight limitations based on height and
body frame for both male and female cabin
attendants. A progressive discipline is imposed to
allow non-compliant cabin attendants sufficient
opportunity to meet the weight standards. Thus, the
clear-cut rules obviate any possibility for the
commission of abuse or arbitrary action on the part
of PAL. HcSaTI
Here, the Labor Arbiter and the NLRC inexplicably

misappreciated evidence. We thus annul their
findings. HSIaAT
To make his claim more believable, petitioner
invokes the equal protection clause guaranty 86 of
the Constitution. However, in the absence of
governmental interference, the liberties guaranteed
by the Constitution cannot be invoked. 87 Put
differently, the Bill of Rights is not meant to be
invoked against acts of private individuals. 88
Indeed, the United States Supreme Court, in
interpreting the Fourteenth Amendment, 89 which is
the source of our equal protection guarantee, is
consistent in saying that the equal protection erects
no shield against private conduct, however
discriminatory or wrongful. 90 Private actions, no
matter how egregious, cannot violate the equal
protection guarantee. 91
III. Petitioner failed to substantiate his claim that he

was discriminated against by PAL.
Petitioner next claims that PAL is using passenger
safety as a convenient excuse to discriminate
against him. 79 We are constrained, however, to
hold otherwise. We agree with the CA that "[t]he
element of discrimination came into play in this
case as a secondary position for the private
respondent in order to escape the consequence of
dismissal that being overweight entailed. It is a
confession-and-avoidance position that impliedly
admitted the cause of dismissal, including the
reasonableness of the applicable standard and the
private respondent's failure to comply". 80 It is a
90
case moot. He asks PAL to comply with the

impossible. Time and again, the Court ruled that the
law does not exact compliance with the impossible.
100
IV. The claims of petitioner for reinstatement and

wages are moot.
As his last contention, petitioner avers that his
claims for reinstatement and wages have not been
mooted. He is entitled to reinstatement and his full
backwages, "from the time he was illegally
dismissed" up to the time that the NLRC was
reversed by the CA. 92
V. Petitioner is entitled to separation pay.

Be that as it may, all is not lost for petitioner.
Normally, a legally dismissed employee is not
entitled to separation pay. This may be deduced
from the language of Article 279 of the Labor Code
that "[a]n employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss
of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent
computed from the time his compensation was
withheld from him up to the time of his actual
reinstatement". Luckily for petitioner, this is not an
ironclad rule. caTESD
At this point, Article 223 of the Labor Code finds

relevance:
In any event, the decision of the Labor Arbiter
reinstating a dismissed or separated employee,
insofar as the reinstatement aspect is concerned,
shall immediately be executory, even pending
appeal. The employee shall either be admitted back
to work under the same terms and conditions
prevailing prior to his dismissal or separation or, at
the option of the employer, merely reinstated in the
payroll. The posting of a bond by the employer shall
not stay the execution for reinstatement provided
herein. ATaDHC
Exceptionally, separation pay is granted to a legally

dismissed employee as an act "social justice", 101
or based on "equity". 102 In both instances, it is
required that the dismissal (1) was not for serious
misconduct; and (2) does not reflect on the moral
character of the employee. 103
The law is very clear. Although an award or order of

reinstatement is self-executory and does not
require a writ of execution, 93 the option to exercise
actual reinstatement or payroll reinstatement
belongs to the employer. It does not belong to the
employee, to the labor tribunals, or even to the
courts.
Here, We grant petitioner separation pay equivalent

to one-half (1/2) month's pay for every year of
service. 104 It should include regular allowances
which he might have been receiving. 105 We are
not blind to the fact that he was not dismissed for
any serious misconduct or to any act which would
reflect on his moral character. We also recognize
that his employment with PAL lasted for more or
less a decade. HIaTDS
Contrary to the allegation of petitioner that PAL "did

everything under the sun" to frustrate his
"immediate return to his previous position", 94 there
is evidence that PAL opted to physically reinstate
him to a substantially equivalent position in
accordance with the order of the Labor Arbiter. 95
In fact, petitioner duly received the return to work
notice on February 23, 2001, as shown by his
signature. 96
WHEREFORE, the appealed Decision of the Court

of Appeals is AFFIRMED but MODIFIED in that
petitioner Armando G. Yrasuegui is entitled to
separation pay in an amount equivalent to one-half
(1/2) month's pay for every year of service, which
should include his regular allowances.
Petitioner
cannot
take
refuge
in
the
pronouncements of the Court in a case 97 that
"[t]he unjustified refusal of the employer to reinstate
the dismissed employee entitles him to payment of
his salaries effective from the time the employer
failed to reinstate him despite the issuance of a writ
of execution" 98 and "even if the order of
reinstatement of the Labor Arbiter is reversed on
appeal, it is obligatory on the part of the employer
to reinstate and pay the wages of the employee
during the period of appeal until reversal by the
higher court". 99 He failed to prove that he
complied with the return to work order of PAL.
Neither does it appear on record that he actually
rendered services for PAL from the moment he was
dismissed, in order to insist on the payment of his
full backwages. cTCEIS
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Chico-Nazario
and Nachura, JJ., concur.
||| (Yrasuegui v. Pilippine Airlines, Inc., G.R. No.
168081, [October 17, 2008], 590 PHIL 490-524)
6. DATU MICHAEL ABAS KIDA vs. SENATE
659 SCRA 270 (2011)
EN BANC
[G.R. No. 196271. October 18, 2011.]
DATU MICHAEL ABAS KIDA, in his personal
capacity, and in representation of MAGUINDANAO
FEDERATION OF AUTONOMOUS IRRIGATORS
ASSOCIATION, INC., HADJI MUHMINA J.
In insisting that he be reinstated to his actual

position despite being overweight, petitioner in
effect wants to render the issues in the present
91
USMAN, JOHN ANTHONY L. LIM, JAMILON T.

ODIN, ASRIN TIMBOL JAIYARI, MUJIB M.
KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR
DAMSIE ABDIL, and BASSAM ALUH SAUPI,
petitioners, vs. SENATE OF THE PHILIPPINES,
represented by its President JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, thru
SPEAKER
FELICIANO
BELMONTE,
COMMISSION ON ELECTIONS, thru its Chairman,
SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR.,
Office of the President Executive Secretary,
FLORENCIO ABAD, JR., Secretary of Budget, and
ROBERTO TAN, Treasurer of the Philippines,
respondents.
[G.R. No. 197454. October 18, 2011.]

JACINTO V. PARAS, petitioner, vs. EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., and the
COMMISSION ON ELECTIONS, respondents.
MINORITY RIGHTS FORUM, PHILIPPINES, INC.,
respondents-intervenor.
DECISION
BRION, J p:
On June 30, 2011, Republic Act (RA) No. 10153,
entitled "An Act Providing for the Synchronization of
the Elections in the Autonomous Region in Muslim
Mindanao (ARMM) with the National and Local
Elections and for Other Purposes" was enacted.
The law reset the ARMM elections from the 8th of
August 2011, to the second Monday of May 2013
and every three (3) years thereafter, to coincide
with the country's regular national and local
elections. The law as well granted the President the
power to "appoint officers-in-charge (OICs) for the
Office of the Regional Governor, the Regional ViceGovernor, and the Members of the Regional
Legislative Assembly, who shall perform the
functions pertaining to the said offices until the
officials duly elected in the May 2013 elections shall
have qualified and assumed office."
[G.R. No. 196305. October 18, 2011.]

BASARI D. MAPUPUNO, petitioner, vs. SIXTO
BRILLANTES, in his capacity as Chairman of the
Commission on Elections, FLORENCIO ABAD, JR.
in his capacity as Secretary of the Department of
Budget and Management, PACQUITO OCHOA,
JR., in his capacity as Executive Secretary, JUAN
PONCE ENRILE, in his capacity as Senate
President, and FELICIANO BELMONTE, in his
capacity as Speaker of the House of
Representatives, respondents.
[G.R. No. 197221. October 18, 2011.]
REP. EDCEL C. LAGMAN, petitioner, vs. PAQUITO
N. OCHOA, JR., in his capacity as the Executive
Secretary,
and
the
COMMISSION
ON
ELECTIONS, respondents.
Even before its formal passage, the bills that

became RA No. 10153 already spawned petitions
against their validity; House Bill No. 4146 and
Senate Bill No. 2756 were challenged in petitions
filed with this Court. These petitions multiplied after
RA No. 10153 was passed.
[G.R. No. 197280. October 18, 2011.]

ALMARIM CENTI TILLAH, DATU CASAN
CONDING CANA, and PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN (PDP-LABAN),
petitioners,
vs.
THE
COMMISSION
ON
ELECTIONS, through its Chairman, SIXTO
BRILLANTES, JR., HON. PAQUITO N. OCHOA,
JR., in his capacity as Executive Secretary, HON.
FLORENCIO B. ABAD, JR., in his capacity as
Secretary of the Department of Budget and
Management, and HON. ROBERTO B. TAN, in his
capacity as Treasurer of the Philippines,
respondents.
Factual Antecedents
The State, through Sections 15 to 22, Article X of
the 1987 Constitution, mandated the creation of
autonomous regions in Muslim Mindanao and the
Cordilleras. Section 15 states:
Section 15. There shall be created autonomous
regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive
historical and cultural heritage, economic and social
structures, and other relevant characteristics within
the framework of this Constitution and the national
sovereignty as well as territorial integrity of the
Republic of the Philippines.
[G.R. No. 197282. October 18, 2011.]

ATTY. ROMULO B. MACALINTAL, petitioner, vs.
COMMISSION ON ELECTIONS and THE OFFICE
OF THE PRESIDENT, through EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.,
respondents.
Section 18 of the Article, on the other hand,

directed Congress to enact an organic act for these
autonomous regions to concretely carry into effect
the granted autonomy.
[G.R. No. 197392. October 18, 2011.]

Section 18. The Congress shall enact an organic
act for each autonomous region with the assistance
and participation of the regional consultative
commission
composed
of
representatives
appointed by the President from a list of nominees
from multisectoral bodies. The organic act shall
LUIS "BAROK" BIRAOGO, petitioner, vs. THE

COMMISSION ON ELECTIONS and EXECUTIVE
respondents.
92
define the basic structure of government for the

region consisting of the executive department and
legislative assembly, both of which shall be elective
and representative of the constituent political units.
The organic acts shall likewise provide for special
courts with personal, family and property law
jurisdiction consistent with the provisions of this
Constitution and national laws.
elections and had accepted certificates of

candidacies for the various regional offices to be
elected. But on June 30, 2011, RA No. 10153 was
enacted, resetting the ARMM elections to May
2013, to coincide with the regular national and local
elections of the country.
RA No. 10153 originated in the House of
Representatives as House Bill (HB) No. 4146,
seeking the postponement of the ARMM elections
scheduled on August 8, 2011. On March 22, 2011,
the House of Representatives passed HB No.
4146, with one hundred ninety one (191) Members
voting in its favor.
The creation of the autonomous region shall be

effective when approved by a majority of the votes
cast by the constituent units in a plebiscite called
for the purpose, provided that only provinces, cities,
and geographic areas voting favorably in such
plebiscite shall be included in the autonomous
region. aSCHIT
After the Senate received HB No. 4146, it adopted

its own version, Senate Bill No. 2756 (SB No.
2756), on June 6, 2011. Thirteen (13) Senators
voted favorably for its passage. On June 7, 2011,
the House of Representative concurred with the
Senate amendments, and on June 30, 2011, the
President signed RA No. 10153 into law.
On August 1, 1989 or two years after the effectivity

of the 1987 Constitution, Congress acted through
Republic Act (RA) No. 6734 entitled "An Act
Providing for an Organic Act for the Autonomous
Region in Muslim Mindanao." A plebiscite was held
on November 6, 1990 as required by Section 18
(2), Article X of RA No. 6734, thus fully establishing
the Autonomous Region of Muslim Mindanao
(ARMM). The initially assenting provinces were
Lanao del Sur, Maguindanao, Sulu and Tawi-tawi.
RA No. 6734 scheduled the first regular elections
for the regional officials of the ARMM on a date not
earlier than 60 days nor later than 90 days after its
ratification.
As mentioned, the early challenge to RA No. 10153

came through a petition filed with this Court G.R.
No. 196271 3 assailing the constitutionality of
both HB No. 4146 and SB No. 2756, and
challenging the validity of RA No. 9333 as well for
non-compliance with the constitutional plebiscite
requirement.
Thereafter,
petitioner
Basari
Mapupuno in G.R. No. 196305 filed another petition
4 also assailing the validity of RA No. 9333.
RA No. 9054 (entitled "An Act to Strengthen and

Expand the Organic Act for the Autonomous Region
in Muslim Mindanao, Amending for the Purpose
Republic Act No. 6734, entitled An Act Providing for
the Autonomous Region in Muslim Mindanao, as
Amended") was the next legislative act passed.
This law provided further refinement in the basic
ARMM structure first defined in the original organic
act, and reset the regular elections for the ARMM
regional officials to the second Monday of
September 2001.
With the enactment into law of RA No. 10153, the

COMELEC stopped its preparations for the ARMM
elections. The law gave rise as well to the filing of
the following petitions against its constitutionality:
a) Petition for Certiorari and Prohibition 5 filed by
Rep. Edcel Lagman as a member of the House of
Representatives against Paquito Ochoa, Jr. (in his
capacity as the Executive Secretary) and the
COMELEC, docketed as G.R. No. 197221;
Congress passed the next law affecting ARMM

RA No. 9140 1 on June 22, 2001. This law reset
the first regular elections originally scheduled under
RA No. 9054, to November 26, 2001. It likewise set
the plebiscite to ratify RA No. 9054 to not later than
August 15, 2001.
b) Petition for Mandamus and Prohibition 6 filed by

Atty. Romulo Macalintal as a taxpayer against the
COMELEC, docketed as G.R. No. 197282;
c) Petition for Certiorari and Mandamus, Injunction
and Preliminary Injunction 7 filed by Louis "Barok"
Biraogo against the COMELEC and Executive
Secretary Paquito N. Ochoa, Jr., docketed as G.R.
No. 197392; and CHIaTc
RA No. 9054 was ratified in a plebiscite held on

August 14, 2001. The province of Basilan and
Marawi City voted to join ARMM on the same date.
d) Petition for Certiorari and Mandamus 8 filed by

Jacinto Paras as a member of the House of
Representatives against Executive Secretary
Paquito Ochoa, Jr. and the COMELEC, docketed
as G.R. No. 197454.
RA No. 9333 2 was subsequently passed by

Congress to reset the ARMM regional elections to
the 2nd Monday of August 2005, and on the same
date every 3 years thereafter. Unlike RA No. 6734
and RA No. 9054, RA No. 9333 was not ratified in a
plebiscite.
Petitioners Alamarim Centi Tillah and Datu Casan

Conding Cana as registered voters from the
ARMM, with the Partido Demokratiko Pilipino Lakas
ng Bayan (a political party with candidates in the
ARMM regional elections scheduled for August 8,
Pursuant to RA No. 9333, the next ARMM regional

elections should have been held on August 8, 2011.
COMELEC had begun preparations for these
93
2011), also filed a Petition for Prohibition and

Mandamus 9 against the COMELEC, docketed as
G.R. No. 197280, to assail the constitutionality of
RA No. 9140, RA No. 9333 and RA No. 10153.
II. Whether the passage of RA No. 10153 violates

Section 26 (2), Article VI of the 1987 Constitution
III. Whether the passage of RA No. 10153 requires
a supermajority vote and plebiscite
Subsequently, Anak Mindanao Party-List, Minority

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

elections constitute an amendment to Section 7,
Article XVIII of RA No. 9054?
B. Does the requirement of a supermajority vote for
amendments or revisions to RA No. 9054 violate
Section 1 and Section 16 (2), Article VI of the 1987
Constitution and the corollary doctrine on
irrepealable laws? DSHcTC
Oral arguments were held on August 9, 2011 and

August 16, 2011. Thereafter, the parties were
instructed to submit their respective memoranda
within twenty (20) days.
C. Does the requirement of a plebiscite apply only

in the creation of autonomous regions under
paragraph 2, Section 18, Article X of the 1987
Constitution?
On September 13, 2011, the Court issued a

temporary restraining order
enjoining
the
implementation of RA No. 10153 and ordering the
incumbent elective officials of ARMM to continue to
perform their functions should these cases not be
decided by the end of their term on September 30,
2011.
IV. Whether RA No. 10153 violates the autonomy

granted to the ARMM
The Arguments
The petitioners assailing RA No. 9140, RA No.
9333 and RA No. 10153 assert that these laws
amend RA No. 9054 and thus, have to comply with
the supermajority vote and plebiscite requirements
prescribed under Sections 1 and 3, Article XVII of
RA No. 9094 in order to become effective.
B. Section 16, Article X of the 1987 Constitution
V. Whether the grant of the power to appoint OICs

violates:
A. Section 15, Article X of the 1987 Constitution
C. Section 18, Article X of the 1987 Constitution

VI. Whether the proposal to hold special elections
is constitutional and legal.
We shall discuss these issues in the order they are
presented above.
The petitions assailing RA No. 10153 further

maintain that it is unconstitutional for its failure to
comply with the three-reading requirement of
Section 26 (2), Article VI of the Constitution. Also
cited as grounds are the alleged violations of the
right of suffrage of the people of ARMM, as well as
the failure to adhere to the "elective and
representative" character of the executive and
legislative departments of the ARMM. Lastly, the
petitioners challenged the grant to the President of
the power to appoint OICs to undertake the
functions of the elective ARMM officials until the
officials elected under the May 2013 regular
elections shall have assumed office. Corrolarily,
they also argue that the power of appointment also
gave the President the power of control over the
ARMM, in complete violation of Section 16, Article
X of the Constitution.
OUR RULING
We resolve to DISMISS the petitions and thereby
UPHOLD the constitutionality of RA No. 10153 in
toto.
I. Synchronization as a recognized constitutional
mandate
The respondent Office of the Solicitor General
(OSG) argues that the Constitution mandates
synchronization, and in support of this position,
cites Sections 1, 2 and 5, Article XVIII (Transitory
Provisions) of the 1987 Constitution, which
provides:
Section 1. The first elections of Members of the
Congress under this Constitution shall be held on
the second Monday of May, 1987.
The Issues
From the parties' submissions, the following issues
were recognized and argued by the parties in the
oral arguments of August 9 and 16, 2011:
The first local elections shall be held on a date to

be determined by the President, which may be
simultaneous with the election of the Members of
the Congress. It shall include the election of all
Members of the city or municipal councils in the
Metropolitan Manila area.
I. Whether the 1987 Constitution mandates the

synchronization of elections
94
Section 2. The Senators, Members of the House of

Representatives and the local officials first elected
under this Constitution shall serve until noon of
June 30, 1992.
It is likewise evident from the wording of the abovementioned

Sections
that
the
term
of
synchronization is used synonymously as the
phrase holding simultaneously since this is the
precise intent in terminating their Office Tenure on
the same day or occasion. This common
termination date will synchronize future elections to
once every three years (Bernas, the Constitution of
the Republic of the Philippines, Vol. II, p. 605).
Of the Senators elected in the election in 1992, the

first twelve obtaining the highest number of votes
shall serve for six year and the remaining twelve for
three years.
xxx xxx xxx
That the election for Senators, Members of the

House of Representatives and the local officials
(under Sec. 2, Art. XVIII) will have to be
synchronized with the election for President and
Vice President (under Sec. 5, Art. XVIII) is likewise
evident from the . . . records of the proceedings in
the
Constitutional
Commission.
[Emphasis
supplied.]
Section 5. The six-year term of the incumbent

President and Vice President elected in the
February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to
noon of June 30, 1992.
The first regular elections for President and VicePresident under this Constitution shall be held on
Although called regional elections, the ARMM

elections should be included among the elections to
be synchronized as it is a "local" election based on
the wording and structure of the Constitution.
We agree with this position.

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

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

date for all elective officials, done among others
through the shortening the terms of the twelve
winning senators with the least number of votes, is
to synchronize the holding of all future elections
whether national or local to once every three
years. 12 This intention finds full support in the
discussions during the Constitutional Commission
deliberations. 13
Understood in its ordinary sense, the word "local"

refers to something that primarily serves the needs
of a particular limited district, often a community or
minor political subdivision. 17 Regional elections in
the ARMM for the positions of governor, vicegovernor and regional assembly representatives
obviously fall within this classification, since they
pertain to the elected officials who will serve within
the limited region of ARMM.
These Constitutional Commission exchanges, read

with the provisions of the Transitory Provisions of
the Constitution, all serve as patent indicators of
the constitutional mandate to hold synchronized
national and local elections, starting the second
Monday of May, 1992 and for all the following
elections.
From the perspective of the Constitution,

autonomous regions are considered one of the
forms of local governments, as evident from Article
X of the Constitution entitled "Local Government."
Autonomous regions are established and discussed
under Sections 15 to 21 of this Article the article
wholly devoted to Local Government. That an
autonomous region is considered a form of local
government is also reflected in Section 1, Article X
of the Constitution, which provides:
This Court was not left behind in recognizing the

synchronization of the national and local elections
as a constitutional mandate. In Osmea v.
Commission on Elections, 14 we explained:
cIECaS
It is clear from the aforequoted provisions of the
1987 Constitution that the terms of office of
Senators,
Members
of
the
House
of
Representatives, the local officials, the President
and the Vice-President have been synchronized to
end on the same hour, date and year noon of
June 30, 1992.
Section 1. The territorial and political subdivisions

of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao, and the
Cordilleras as hereinafter provided.
95
Thus, we find the contention that the

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

suspension of the writ of habeas corpus or
declaration of martial law Art. VII, Section 18, or the
existence of a national emergency justifying the
delegation of extraordinary powers to the President
under Art. VI, Section 23(2) is subject to judicial
review because basic rights of individuals may be
of hazard. But the factual basis of presidential
certification of bills, which involves doing away with
procedural requirements designed to insure that
bills are duly considered by members of Congress,
certainly should elicit a different standard of review.
[Emphasis supplied.]
II. The President's Certification on the Urgency of

RA No. 10153
The petitioners in G.R. No. 197280 also challenge
the validity of RA No. 10153 for its alleged failure to
comply with Section 26 (2), Article VI of the
Constitution 18 which provides that before bills
passed by either the House or the Senate can
become laws, they must pass through three
readings on separate days. The exception is when
the President certifies to the necessity of the bill's
immediate enactment.
The House of Representatives and the Senate in

the exercise of their legislative discretion gave
full recognition to the President's certification and
promptly enacted RA No. 10153. Under the
circumstances, nothing short of grave abuse of
discretion on the part of the two houses of
Congress can justify our intrusion under our power
of judicial review. 21
The Court, in Tolentino v. Secretary of Finance, 19

explained the effect of the President's certification
of necessity in the following manner:
The petitioners, however, failed to provide us with

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

requirement not only of printing but also that of
reading the bill on separate days. The phrase
"except when the President certifies to the
necessity of its immediate enactment, etc." in Art.
VI, Section 26[2] qualifies the two stated conditions
before a bill can become a law: [i] the bill has
passed three readings on separate days and [ii] it
has been printed in its final form and distributed
three days before it is finally approved. CADacT
In any case, despite the President's certification,

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

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

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

President wrote to the Speaker of the House of
Representatives to certify the necessity of the
immediate enactment of a law synchronizing the
ARMM elections with the national and local
elections. 20 Following our Tolentino ruling, the
President's certification exempted both the House
and the Senate from having to comply with the
three separate readings requirement.
III. A. RA No. 9333 and RA No. 10153 are not

amendments to RA No. 9054
The effectivity of RA No. 9333 and RA No. 10153
has also been challenged because they did not
comply with Sections 1 and 3, Article XVII of RA
No. 9054 in amending this law. These provisions
require:
On the follow-up contention that no necessity

existed for the immediate enactment of these bills
since there was no public calamity or emergency
that had to be met, again we hark back to our ruling
in Tolentino:
Section 1. Consistent with the provisions of the

Constitution, this Organic Act may be reamended or
revised by the Congress of the Philippines upon a
vote of two-thirds (2/3) of the Members of the
96
House of Representatives and of the Senate voting

separately.
From these legislative actions, we see the clear

intention of Congress to treat the laws which fix the
date of the subsequent ARMM elections as
separate and distinct from the Organic Acts.
Congress only acted consistently with this intent
when it passed RA No. 10153 without requiring
compliance with the amendment prerequisites
embodied in Section 1 and Section 3, Article XVII of
RA No. 9054.
Section 3. Any amendment to or revision of this

Organic Act shall become effective only when
approved by a majority of the vote cast in a
plebiscite called for the purpose, which shall be
held not earlier than sixty (60) days or later than
ninety (90) days after the approval of such
amendment or revision. ISCaTE
III.
B.
Supermajority
voting
requirement
unconstitutional for giving RA No. 9054 the
character of an irrepealable law
Even assuming that RA No. 9333 and RA No.
10153 did in fact amend RA No. 9054, the
supermajority (2/3) voting requirement required
under Section 1, Article XVII of RA No. 9054 32 has
to be struck down for giving RA No. 9054 the
character of an irrepealable law by requiring more
than what the Constitution demands.
We find no merit in this contention.

In the first place, neither RA No. 9333 nor RA No.
10153 amends RA No. 9054. As an examination of
these laws will show, RA No. 9054 only provides for
the schedule of the first ARMM elections and does
not fix the date of the regular elections. A need
therefore existed for the Congress to fix the date of
the subsequent ARMM regular elections, which it
did by enacting RA No. 9333 and thereafter, RA No.
10153. Obviously, these subsequent laws RA
No. 9333 and RA No. 10153 cannot be
considered amendments to RA No. 9054 as they
did not change or revise any provision in the latter
law; they merely filled in a gap in RA No. 9054 or
supplemented the law by providing the date of the
subsequent regular elections.
Section 16 (2), Article VI of the Constitution

provides that a "majority of each House shall
constitute a quorum to do business." In other
words, as long as majority of the members of the
House of Representatives or the Senate are
present, these bodies have the quorum needed to
conduct business and hold session. Within a
quorum, a vote of majority is generally sufficient to
enact laws or approve acts.
This view that Congress thought it best to leave

the determination of the date of succeeding ARMM
elections to legislative discretion finds support in
ARMM's recent history.
In contrast, Section 1, Article XVII of RA No. 9054

requires a vote of no less than two-thirds (2/3) of
the Members of the House of Representatives and
of the Senate, voting separately, in order to
effectively amend RA No. 9054. Clearly, this 2/3
voting requirement is higher than what the
Constitution requires for the passage of bills, and
served to restrain the plenary powers of Congress
to amend, revise or repeal the laws it had passed.
The Court's pronouncement in City of Davao v.
GSIS 33 on this subject best explains the basis and
reason for the unconstitutionality:
To recall, RA No. 10153 is not the first law passed

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

democratic principles for a legislative body to have
the ability to bind the actions of future legislative
body, considering that both assemblies are
regarded with equal footing, exercising as they do
the same plenary powers. Perpetual infallibility is
not one of the attributes desired in a legislative
body, and a legislature which attempts to forestall
future amendments or repeals of its enactments
labors under delusions of omniscience. CIHAED
The Second Organic Act RA No. 9054 which

lapsed into law on March 31, 2001, provided that
the first elections would be held on the second
Monday of September 2001. Thereafter, Congress
passed RA No. 9140 30 to reset the date of the
ARMM elections. Significantly, while RA No. 9140
also scheduled the plebiscite for the ratification of
the Second Organic Act (RA No. 9054), the new
date of the ARMM regional elections fixed in RA
No. 9140 was not among the provisions ratified in
the plebiscite held to approve RA No. 9054.
Thereafter, Congress passed RA No. 9333, 31
which further reset the date of the ARMM regional
elections. Again, this law was not ratified through a
plebiscite.
xxx xxx xxx

A state legislature has a plenary law-making power
over all subjects, whether pertaining to persons or
things, within its territorial jurisdiction, either to
introduce new laws or repeal the old, unless
prohibited expressly or by implication by the federal
constitution or limited or restrained by its own. It
cannot bind itself or its successors by enacting
irrepealable laws except when so restrained. Every
97
legislative body may modify or abolish the acts

passed by itself or its predecessors. This power of
repeal may be exercised at the same session at
which the original act was passed; and even while
a bill is in its progress and before it becomes a law.
This legislature cannot bind a future legislature to a
particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing
statutes. 34 (Emphasis ours.)
The date of the ARMM elections does not fall under

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

against a repeal, it is a limitation in excess of what
the Constitution requires on the passage of bills
and is constitutionally obnoxious because it
significantly constricts the future legislators' room
for action and flexibility.
IV. The synchronization issue

As we discussed above, synchronization of national
and local elections is a constitutional mandate that
Congress must provide for and this synchronization
must include the ARMM elections. On this point, an
existing law in fact already exists RA No. 7166
as the forerunner of the current RA No. 10153.
RA No. 7166 already provides for the
synchronization of local elections with the national
and congressional elections. Thus, what RA No.
10153 provides is an old matter for local
governments (with the exception of barangay and
Sanggunian Kabataan elections where the terms
are not constitutionally provided) and is technically
a reiteration of what is already reflected in the law,
given that regional elections are in reality local
elections by express constitutional recognition. 37
III. C. Section 3, Article XVII of RA No. 9054

excessively enlarged the plebiscite requirement
found in Section 18, Article X of the Constitution
The requirements of RA No. 9054 not only required
an unwarranted supermajority, but enlarged as well
the plebiscite requirement, as embodied in its
Section 3, Article XVII of that Act. As we did on the
supermajority requirement, we find the enlargement
of the plebiscite requirement required under
Section 18, Article X of the Constitution to be
excessive to point of absurdity and, hence, a
violation of the Constitution.
To achieve synchronization, Congress necessarily

has to reconcile the schedule of the ARMM's
regular elections (which should have been held in
August 2011 based on RA No. 9333) with the fixed
schedule of the national and local elections (fixed
by RA No. 7166 to be held in May 2013).
Section 18, Article X of the Constitution states that

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

three options open to Congress in order to resolve
this problem. These options are: (1) to allow the
elective officials in the ARMM to remain in office in
a hold over capacity, pursuant to Section 7 (1),
Article VII of RA No. 9054, until those elected in the
synchronized elections assume office; 38 (2) to
hold special elections in the ARMM, with the terms
of those elected to expire when those elected in the
synchronized elections assume office; or (3) to
authorize the President to appoint OICs, pursuant
to Section 3 of RA No. 10153, also until those
elected in the synchronized elections assume
office.
Section 18, Article X of the Constitution plainly

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

Congress, in choosing to grant the President the
power to appoint OICs, chose the correct option
and passed RA No. 10153 as a completely valid
law.
V. The Constitutionality of RA No. 10153
A. Basic Underlying Premises
To fully appreciate the available options, certain
underlying material premises must be fully
understood. The first is the extent of the powers of
Congress to legislate; the second is the
constitutional mandate for the synchronization of
98
elections; and the third is on the concept of

autonomy as recognized and established under the
1987 Constitution.
Republic, as expressed in the above-quoted

Section 17 and in Section 15. 44 In other words,
the Constitution and the supporting jurisprudence,
as they now stand, reject the notion of imperium et
imperio 45 in the relationship between the national
and the regional governments.
The grant of legislative power to Congress is broad,

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

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

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

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

specifically, Sections 15 to 21 of Article X of the
Constitution constitute express limitations on
legislative power as they define autonomy, its
requirements and its parameters, thus limiting what
is otherwise the unlimited power of Congress to
legislate on the governance of the autonomous
region.
The problem, in other words, was for interim

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

case are the limitations posed by the prescribed
basic structure of government i.e., that the
government must have an executive department
and a legislative assembly, both of which must be
elective and representative of the constituent
political units; national government, too, must not
encroach on the legislative powers granted under
Section 20, Article X. Conversely and as expressly
reflected in Section 17, Article X, "all powers and
functions not granted by this Constitution or by law
to the autonomous regions shall be vested in the
National Government."
The creation of local government units also

represents instances when interim measures are
required. In the creation of Quezon del Sur 48 and
Dinagat Islands, 49 the creating statutes authorized
the President to appoint an interim governor, vicegovernor and members of the sangguniang
panlalawigan although these positions are
essentially elective in character; the appointive
officials were to serve until a new set of provincial
officials shall have been elected and qualified. 50 A
similar authority to appoint is provided in the
transition of a local government from a subprovince to a province. 51 ADCEcI
The totality of Sections 15 to 21 of Article X should

likewise serve as a standard that Congress must
observe in dealing with legislation touching on the
affairs of the autonomous regions. The terms of
these sections leave no doubt on what the
Constitution intends the idea of self-rule or selfgovernment, in particular, the power to legislate on
a wide array of social, economic and administrative
matters. But equally clear under these provisions
are the permeating principles of national
sovereignty and the territorial integrity of the
99
In all these, the need for interim measures is

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

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

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

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

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

effectively another term mandated by Congress,
the net result is for Congress to create a new term
and to appoint the occupant for the new term. This
view like the extension of the elective term is
constitutionally infirm because Congress cannot do
indirectly what it cannot do directly, i.e., to act in a
way that would effectively extend the term of the
incumbents. Indeed, if acts that cannot be legally
done directly can be done indirectly, then all laws
would be illusory. 55 Congress cannot also create a
new term and effectively appoint the occupant of
the position for the new term. This is effectively an
act of appointment by Congress and an
unconstitutional intrusion into the constitutional
appointment power of the President. 56 Hence,
holdover whichever way it is viewed is a
constitutionally infirm option that Congress could
not have undertaken.
Section 8. The term of office of elective local

officials, except barangay officials, which shall be
determined by law, shall be three years and no
such official shall serve for more than three
consecutive terms. [emphases ours]
Since elective ARMM officials are local officials,
they are covered and bound by the three-year term
limit prescribed by the Constitution; they cannot
extend their term through a holdover. As this Court
put in Osmea v. COMELEC: 52 aEACcS
It is not competent for the legislature to extend the
term of officers by providing that they shall hold
over until their successors are elected and qualified
where the constitution has in effect or by clear
implication prescribed the term and when the
Constitution fixes the day on which the official term
shall begin, there is no legislative authority to
continue the office beyond that period, even though
the successors fail to qualify within the time.
Jurisprudence, of course, is not without examples

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

follows:
"It has been broadly stated that the legislature
cannot, by an act postponing the election to fill an
office the term of which is limited by the
Constitution, extend the term of the incumbent
All these past cases refer to elective barangay or

sangguniang kabataan officials whose terms of
office are not explicitly provided for in the
100
Constitution; the present case, on the other hand,

refers to local elective officials the ARMM
Governor, the ARMM Vice-Governor, and the
members of the Regional Legislative Assembly
whose terms fall within the three-year term limit set
by Section 8, Article X of the Constitution. Because
of their constitutionally limited term, Congress
cannot legislate an extension beyond the term for
which they were originally elected.
Section 3. The Congress shall enact a local

government code which shall provide for . . . the
qualifications, election, appointment and removal,
term, salaries, powers and functions and duties of
local officials[.] [Emphases ours]
These provisions support the conclusion that no
elections may be held on any other date for the
positions of President, Vice President, Members of
Congress and local officials, except when so
provided by another Act of Congress, or upon
orders of a body or officer to whom Congress may
have delegated either the power or the authority to
ascertain or fill in the details in the execution of that
power. 63 AECDHS
Even assuming that holdover is constitutionally

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

elections by postponing the scheduled August 2011
elections and setting another date May 13, 2011
for regional elections synchronized with the
presidential, congressional and other local
elections. By so doing, Congress itself has made a
policy decision in the exercise of its legislative
wisdom that it shall not call special elections as an
adjustment measure in synchronizing the ARMM
elections with the other elections.
Congress, in passing RA No. 10153, made it

explicitly clear that it had the intention of
suppressing the holdover rule that prevailed under
RA No. 9054 by completely removing this provision.
The deletion is a policy decision that is wholly
within the discretion of Congress to make in the
exercise of its plenary legislative powers; this Court
cannot pass upon questions of wisdom, justice or
expediency of legislation, 62 except where an
attendant unconstitutionality or grave abuse of
discretion results.
After Congress has so acted, neither the Executive

nor the Judiciary can act to the contrary by ordering
special elections instead at the call of the
COMELEC. This Court, particularly, cannot make
this call without thereby supplanting the legislative
decision and effectively legislating. To be sure, the
Court is not without the power to declare an act of
Congress null and void for being unconstitutional or
for having been exercised in grave abuse of
discretion. 64 But our power rests on very narrow
ground and is merely to annul a contravening act of
Congress; it is not to supplant the decision of
Congress nor to mandate what Congress itself
should have done in the exercise of its legislative
powers. Thus, contrary to what the petition in G.R.
No. 197282 urges, we cannot compel COMELEC to
call for special elections.
C. The COMELEC has no authority to order special

elections
Another option proposed by the petitioner in G.R.
No. 197282 is for this Court to compel COMELEC
to immediately conduct special elections pursuant
to Section 5 and 6 of Batas Pambansa Bilang (BP)
881.
The power to fix the date of elections is essentially
legislative in nature, as evident from, and
exemplified by, the following provisions of the
Constitution:
Section 8, Article VI, applicable to the legislature,
provides:
Furthermore, we have to bear in mind that the

constitutional power of the COMELEC, in contrast
with the power of Congress to call for, and to set
the date of, elections, is limited to enforcing and
administering all laws and regulations relative to the
conduct of an election. 65 Statutorily, COMELEC
has no power to call for the holding of special
elections unless pursuant to a specific statutory
grant. True, Congress did grant, via Sections 5 and
6 of BP 881, COMELEC with the power to
postpone elections to another date. However, this
power is limited to, and can only be exercised
within, the specific terms and circumstances
provided for in the law. We quote:
Section 8. Unless otherwise provided by law, the

regular election of the Senators and the Members
of the House of Representatives shall be held on
the second Monday of May. [Emphasis ours]
Section 4 (3), Article VII, with the same tenor but
applicable solely to the President and VicePresident, states:
xxx xxx xxx
Section 4. . . . Unless otherwise provided by law,
the regular election for President and VicePresident shall be held on the second Monday of
May. [Emphasis ours]
Section 5. Postponement of election. When for

any serious cause such as violence, terrorism, loss
or destruction of election paraphernalia or records,
force majeure, and other analogous causes of such
a nature that the holding of a free, orderly and
while Section 3, Article X, on local government,

provides:
101
honest election should become impossible in any

political subdivision, the Commission, motu proprio
or upon a verified petition by any interested party,
and after due notice and hearing, whereby all
interested parties are afforded equal opportunity to
be heard, shall postpone the election therein to a
date which should be reasonably close to the date
of the election not held, suspended or which
resulted in a failure to elect but not later than thirty
days after the cessation of the cause for such
postponement or suspension of the election or
failure to elect.
instances where the elections do not occur or had

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

force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place
has not been held on the date fixed, or had been
suspended before the hour fixed by law for the
closing of the voting, or after the voting and during
the preparation and the transmission of the election
returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of
such cases the failure or suspension of election
would affect the result of the election, the
Commission shall, on the basis of a verified petition
by any interested party and after due notice and
hearing, call for the holding or continuation of the
election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the
date of the election not held, suspended or which
days after the cessation of the cause of such
failure to elect. [Emphasis ours]
D. The Court has no power to shorten the terms of

elective officials
Even assuming that it is legally permissible for the
Court to compel the COMELEC to hold special
elections, no legal basis likewise exists to rule that
the newly elected ARMM officials shall hold office
only until the ARMM officials elected in the
synchronized elections shall have assumed office.
In the first place, the Court is not empowered to
adjust the terms of elective officials. Based on the
Constitution, the power to fix the term of office of
elective officials, which can be exercised only in the
case of barangay officials, 67 is specifically given to
Congress. Even Congress itself may be denied
such power, as shown when the Constitution
shortened the terms of twelve Senators obtaining
the least votes, 68 and extended the terms of the
President and the Vice-President 69 in order to
synchronize elections; Congress was not granted
this same power. The settled rule is that terms fixed
by the Constitution cannot be changed by mere
statute. 70 More particularly, not even Congress
and certainly not this Court, has the authority to fix
the terms of elective local officials in the ARMM for
less, or more, than the constitutionally mandated
three years 71 as this tinkering would directly
contravene Section 8, Article X of the Constitution
as we ruled in Osmea.
A close reading of Section 5 of BP 881 reveals that

it is meant to address instances where elections
have already been scheduled to take place but
have to be postponed because of (a) violence, (b)
terrorism, (c) loss or destruction of election
paraphernalia or records, (d) force majeure, and (e)
other analogous causes of such a nature that the
holding of a free, orderly and honest election
should become impossible in any political
subdivision. Under the principle of ejusdem generis,
the term "analogous causes" will be restricted to
those unforeseen or unexpected events that
prevent the holding of the scheduled elections.
These "analogous causes" are further defined by
the phrase "of such nature that the holding of a
free, orderly and honest election should become
impossible."
Thus, in the same way that the term of elective

ARMM officials cannot be extended through a
holdover, the term cannot be shortened by putting
an expiration date earlier than the three (3) years
that the Constitution itself commands. This is what
will happen a term of less than two years if a
call for special elections shall prevail. In sum, while
synchronization is achieved, the result is at the cost
of a violation of an express provision of the
Constitution.
Similarly, Section 6 of BP 881 applies only to those

situations where elections have already been
scheduled but do not take place because of (a)
force majeure, (b) violence, (c) terrorism, (d) fraud,
or (e) other analogous causes the election in any
polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law
for the closing of the voting, or after the voting and
during the preparation and the transmission of the
election returns or in the custody or canvass
thereof, such election results in a failure to elect. As
in Section 5 of BP 881, Section 6 addresses
Neither we nor Congress can opt to shorten the

tenure of those officials to be elected in the ARMM
102
elections instead of acting on their term (where the

"term" means the time during which the officer may
claim to hold office as of right and fixes the interval
after which the several incumbents shall succeed
one another, while the "tenure" represents the term
during which the incumbent actually holds the
office). 72 As with the fixing of the elective term,
neither Congress nor the Court has any legal basis
to shorten the tenure of elective ARMM officials.
They would commit an unconstitutional act and
gravely abuse their discretion if they do so.
Fourth, officers lower in rank whose appointments

the Congress may by law vest in the President
alone. 74
Since the President's authority to appoint OICs
emanates from RA No. 10153, it falls under the
third group of officials that the President can
appoint pursuant to Section 16, Article VII of the
Constitution. Thus, the assailed law facially rests on
clear constitutional basis.
If at all, the gravest challenge posed by the
petitions to the authority to appoint OICs under
Section 3 of RA No. 10153 is the assertion that the
Constitution requires that the ARMM executive and
legislative
officials
to
be
"elective
and
representative of the constituent political units."
This requirement indeed is an express limitation
whose non-observance in the assailed law leaves
the appointment of OICs constitutionally defective.
E. The President's Power to Appoint OICs

The above considerations leave only Congress'
chosen interim measure RA No. 10153 and the
appointment by the President of OICs to govern the
ARMM during the pre-synchronization period
pursuant to Sections 3, 4 and 5 of this law as the
only measure that Congress can make. This choice
itself, however, should be examined for any
attendant constitutional infirmity.
After fully examining the issue, we hold that this

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

executive in nature, and the limitations on or
qualifications to the exercise of this power should
be strictly construed; these limitations or
qualifications must be clearly stated in order to be
recognized. 73 The appointing power is embodied
in Section 16, Article VII of the Constitution, which
states:
Section 16. The President shall nominate and, with
the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls or
officers of the armed forces from the rank of colonel
or naval captain, and other officers whose
appointments are vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint. The Congress may,
by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in
the heads of departments, agencies, commissions,
or boards. [emphasis ours] aHIDAE
As we have already established in our discussion of

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

that the President can appoint. These are:
First, the heads of the executive departments;
ambassadors; other public ministers and consuls;
officers of the Armed Forces of the Philippines,
from the rank of colonel or naval captain; and other
officers whose appointments are vested in the
President in this Constitution;
Thus, the appropriate question to ask is whether

the interim measure is an unreasonable move for
Congress to adopt, given the legal situation that the
synchronization unavoidably brought with it. In
more concrete terms and based on the above
considerations, given the plain unconstitutionality of
providing for a holdover and the unavailability of
constitutional possibilities for lengthening or
shortening the term of the elected ARMM officials,
is the choice of the President's power to appoint
Second, all other officers of the government whose

appointments are not otherwise provided for by law;
Third, those whom the President may be authorized
by law to appoint; and
103
for a fixed and specific period as an interim

measure, and as allowed under Section 16, Article
VII of the Constitution an unconstitutional or
unreasonable choice for Congress to make?
cEaCTS
law that is not violative of the Constitution

(specifically, its autonomy provisions), and one that
is reasonable as well under the circumstances.
VI. Other Constitutional Concerns
Outside of the above concerns, it has been argued
during the oral arguments that upholding the
constitutionality of RA No. 10153 would set a
dangerous precedent of giving the President the
power to cancel elections anywhere in the country,
thus allowing him to replace elective officials with
OICs.
Admittedly, the grant of the power to the President

under other situations or where the power of
appointment would extend beyond the adjustment
period for synchronization would be to foster a
government that is not "democratic and republican."
For then, the people's right to choose the leaders to
govern them may be said to be systemically
withdrawn to the point of fostering an undemocratic
regime. This is the grant that would frontally breach
the "elective and representative" governance
requirement of Section 18, Article X of the
Constitution.
This claim apparently misunderstands that an

across-the-board cancellation of elections is a
matter for Congress, not for the President, to
address. It is a power that falls within the powers of
Congress in the exercise of its legislative powers.
Even Congress, as discussed above, is limited in
what it can legislatively undertake with respect to
elections.
But this conclusion would not be true under the

very limited circumstances contemplated in RA No.
10153 where the period is fixed and, more
importantly, the terms of governance both under
Section 18, Article X of the Constitution and RA No.
9054 will not systemically be touched nor
affected at all. To repeat what has previously been
said, RA No. 9054 will govern unchanged and
continuously, with full effect in accordance with the
Constitution, save only for the interim and
temporary measures that synchronization of
elections requires.
If RA No. 10153 cancelled the regular August 2011

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

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

cannot continue to act in a holdover capacity upon
the expiration of their terms, and this Court cannot
compel the COMELEC to conduct special elections,
the Court now has to deal with the dilemma of a
vacuum in governance in the ARMM.
To emphasize the dire situation a vacuum brings, it
should not be forgotten that a period of 21 months
or close to 2 years intervenes from the time
that the incumbent ARMM elective officials' terms
expired and the time the new ARMM elective
officials begin their terms in 2013. As the lessons of
our Mindanao history past and current teach
us, many developments, some of them critical and
adverse, can transpire in the country's Muslim
areas in this span of time in the way they transpired
in the past. 78 Thus, it would be reckless to
assume that the presence of an acting ARMM
Governor, an acting Vice-Governor and a fully
functioning Regional Legislative Assembly can be
done away with even temporarily. To our mind, the
appointment of OICs under the present
circumstances is an absolute necessity. SEIDAC
Furthermore, the "representative" character of the

chosen leaders need not necessarily be affected by
the appointment of OICs as this requirement is
really a function of the appointment process; only
the "elective" aspect shall be supplanted by the
appointment of OICs. In this regard, RA No. 10153
significantly seeks to address concerns arising from
the appointments by providing, under Sections 3, 4
and 5 of the assailed law, concrete terms in the
Appointment of OIC, the Manner and Procedure of
Appointing OICs, and their Qualifications.
Significantly, the grant to the President of the power

to appoint OICs to undertake the functions of the
elective members of the Regional Legislative
Assembly is neither novel nor innovative. We hark
Based on these considerations, we hold that RA

No. 10153 viewed in its proper context is a
104
back to our earlier pronouncement in Menzon v.

Petilla, etc., et al.: 79
the Constitution is to be interpreted as a whole, 81

and one mandate should not be given importance
over the other except where the primacy of one
over the other is clear. 82 We refer to the Court's
declaration in Ang-Angco v. Castillo, et al., 83 thus:
It may be noted that under Commonwealth Act No.

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

construed in isolation from the rest. Rather, the
constitution must be interpreted as a whole, and
apparently, conflicting provisions should be
reconciled and harmonized in a manner that may
give to all of them full force and effect. [Emphasis
supplied.]
Synchronization is an interest that is as
constitutionally entrenched as regional autonomy.
They are interests that this Court should reconcile
and give effect to, in the way that Congress did in
RA No. 10153 which provides the measure to
transit to synchronized regional elections with the
least disturbance on the interests that must be
respected. Particularly, regional autonomy will be
respected instead of being sidelined, as the law
does not in any way alter, change or modify its
governing features, except in a very temporary
manner and only as necessitated by the attendant
circumstances.
Elsewhere, it has also been argued that the ARMM
elections should not be synchronized with the
national and local elections in order to maintain the
autonomy of the ARMM and insulate its own
electoral processes from the rough and tumble of
nationwide and local elections. This argument
leaves us far from convinced of its merits.
A vacancy creates an anomalous situation and

finds no approbation under the law for it deprives
the constituents of their right of representation and
governance in their own local government.
In a republican form of government, the majority
rules through their chosen few, and if one of them is
incapacitated or absent, etc., the management of
governmental affairs is, to that extent, may be
hampered. Necessarily, there will be a consequent
delay in the delivery of basic services to the people
of Leyte if the Governor or the Vice-Governor is
missing. 80 (Emphasis ours.)
As heretofore mentioned and discussed, while

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

Governor, Vice Governor, and members of the
Regional Legislative Assembly vacant for 21
months, or almost 2 years, would clearly cause
disruptions and delays in the delivery of basic
services to the people, in the proper management
of the affairs of the regional government, and in
responding to critical developments that may arise.
When viewed in this context, allowing the President
in the exercise of his constitutionally-recognized
appointment power to appoint OICs is, in our
judgment, a reasonable measure to take.
Mr. Bennagen. . . . We do not see here a complete

separation from the central government, but rather
an efficient working relationship between the
autonomous region and the central government.
We see this as an effective partnership, not a
separation.
B. Autonomy in the ARMM

It is further argued that while synchronization may
be constitutionally mandated, it cannot be used to
defeat or to impede the autonomy that the
Constitution granted to the ARMM. Phrased in this
manner, one would presume that there exists a
conflict between two recognized Constitutional
mandates synchronization and regional
autonomy such that it is necessary to choose
one over the other.
Mr. Romulo. Therefore, complete autonomy is not

really thought of as complete independence.
Mr. Ople. We define it as a measure of selfgovernment within the larger political framework of
the nation. 84 [Emphasis supplied.]
We find this to be an erroneous approach that

violates a basic principle in constitutional
construction ut magis valeat quam pereat: that
This exchange of course is fully and expressly

reflected in the above-quoted Section 17, Article X
of the Constitution, and by the express reservation
105
under Section 1 of the same Article that autonomy

shall be "within the framework of this Constitution
and the national sovereignty as well as the
territorial integrity of the Republic of the
Philippines."
Interestingly, the framers of the Constitution initially
proposed to remove Section 17 of Article X,
believing it to be unnecessary in light of the
enumeration of powers granted to autonomous
regions in Section 20, Article X of the Constitution.
Upon further reflection, the framers decided to
reinstate the provision in order to "make it clear,
once and for all, that these are the limits of the
powers of the autonomous government. Those not
enumerated are actually to be exercised by the
national government[.]"85 Of note is the Court's
pronouncement in Pimentel, Jr. v. Hon. Aguirre 86
which we quote:
asking this Court to compel COMELEC to hold

special elections despite its lack of authority to do
so, are essentially asking us to venture into the
realm of judicial legislation, which is abhorrent to
one of the most basic principles of a republican and
democratic government the separation of
powers.
Under the Philippine concept of local autonomy, the

national
government
has
not
completely
relinquished all its powers over local governments,
including autonomous regions. Only administrative
powers over local affairs are delegated to political
subdivisions. The purpose of the delegation is to
make governance more directly responsive and
effective at the local levels. In turn, economic,
political and social development at the smaller
political units are expected to propel social and
economic growth and development. But to enable
the country to develop as a whole, the programs
and policies effected locally must be integrated and
coordinated towards a common national goal.
Thus, policy-setting for the entire country still lies in
the President and Congress. [Emphasis ours.]
AIcECS
We find that Congress, in passing RA No. 10153,

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

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

unconstitutional, we can only reiterate the
established rule that every statute is presumed
valid. 91 Congress, thus, has in its favor the
presumption of constitutionality of its acts, and the
party challenging the validity of a statute has the
onerous task of rebutting this presumption. 92 Any
reasonable doubt about the validity of the law
should be resolved in favor of its constitutionality.
93 As this Court declared in Garcia v. Executive
Secretary: 94
In other words, the autonomy granted to the ARMM

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

constitutional questions and to presume that the
acts of the political departments are valid in the
absence of a clear and unmistakable showing to
the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation
of powers which enjoins upon each department a
becoming respect for the acts of the other
departments. The theory is that as the joint act of
Congress and the President of the Philippines, a
law has been carefully studied and determined to
be in accordance with the fundamental law before it
was finally enacted. 95 [Emphasis ours.]
Conclusion
Congress acted within its powers and pursuant to a
constitutional mandate the synchronization of
national and local elections when it enacted RA
No. 10153. This Court cannot question the manner
by which Congress undertook this task; the
Judiciary does not and cannot pass upon questions
of wisdom, justice or expediency of legislation. 87
As judges, we can only interpret and apply the law
and, despite our doubts about its wisdom, cannot
repeal or amend it. 88
Given the failure of the petitioners to rebut the

presumption of constitutionality in favor of RA No.
10153, we must support and confirm its validity.
Nor can the Court presume to dictate the means by

which Congress should address what is essentially
a legislative problem. It is not within the Court's
power to enlarge or abridge laws; otherwise, the
Court will be guilty of usurping the exclusive
prerogative of Congress. 89 The petitioners, in
WHEREFORE, premises considered, we DISMISS

the consolidated petitions assailing the validity of
RA No. 10153 for lack of merit, and UPHOLD the
constitutionality of this law. We likewise LIFT the
106
temporary restraining order we issued in our

Resolution of September 13, 2011. No costs.
ALMARIM CENTI TILLAH, DATU CASAN

CONDING CANA, and PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN (PDP-LABAN),
petitioners,
vs.
THE
COMMISSION
ON
ELECTIONS, through its Chairman, SIXTO
BRILLANTES, JR., HON. PAQUITO N. OCHOA,
JR., in his capacity as Executive Secretary, HON.
FLORENCIO B. ABAD, JR., in his capacity as
Secretary of the Department of Budget and
Management, and HON. ROBERTO B. TAN, in his
capacity as Treasurer of the Philippines,
respondents.
SO ORDERED. DHSCTI
Corona, C.J., Leonardo-de Castro, Peralta,
Bersamin, Del Castillo, Abad, Villarama, Jr., Perez,
Mendoza, Sereno, Reyes, and Perlas-Bernabe, JJ.,
concur.
Carpio and Velasco, Jr., JJ., with dissenting
opinion.
||| (Abas Kida v. Senate of the Philippines, G.R. No.
196271, 196305, 197221, 197280, 197282,
197392, 197454, [October 18, 2011], 675 PHIL
316-442)
[G.R. No. 197282. February 28, 2012.]

ATTY. ROMULO B. MACALINTAL, petitioner, vs.
COMMISSION ON ELECTIONS and THE OFFICE
OF THE PRESIDENT, through EXECUTIVE
respondents.
7. DATU MICHAEL ABAS KIDA vs. SENATE

667 SCRA 270 (2012)
EN BANC
[G.R. No. 197392. February 28, 2012.]

[G.R. No. 196271. February 28, 2012.]
LOUIS "BAROK" C. BIRAOGO, petitioner, vs. THE
COMMISSION ON ELECTIONS and EXECUTIVE
respondents.
DATU MICHAEL ABAS KIDA, in his personal

capacity, and in representation of MAGUINDANAO
FEDERATION OF AUTONOMOUS IRRIGATORS
ASSOCIATION, INC., HADJI MUHMINA J.
USMAN, JOHN ANTHONY L. LIM, JAMILON T.
ODIN, ASRIN TIMBOL JAIYARI, MUJIB M.
KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR
DAMSIE ABDIL, and BASSAM ALUH SAUPI,
petitioners, vs. SENATE OF THE PHILIPPINES,
represented by its President JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, thru
SPEAKER
FELICIANO
BELMONTE,
COMMISSION ON ELECTIONS, thru its Chairman,
SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR.,
Office of the President Executive Secretary,
FLORENCIO ABAD, JR., Secretary of Budget, and
ROBERTO TAN, Treasurer of the Philippines,
respondents.
[G.R. No. 197454. February 28, 2012.]

JACINTO V. PARAS, petitioner, vs. EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., and the
COMMISSION ON ELECTIONS, respondents.
MINORITY RIGHTS FORUM, PHILIPPINES, INC.,
respondents-intervenor.
RESOLUTION
BRION, J p:
We resolve: (a) the motion for reconsideration filed
by petitioners Datu Michael Abas Kida, et al. in
G.R. No. 196271; (b) the motion for reconsideration
filed by petitioner Rep. Edcel Lagman in G.R. No.
197221; (c) the ex abundante ad cautelam motion
for reconsideration filed by petitioner Basari
Mapupuno in G.R. No. 196305; (d) the motion for
reconsideration filed by petitioner Atty. Romulo
Macalintal in G.R. No. 197282; (e) the motion for
reconsideration filed by petitioners Almarim Centi
Tillah, Datu Casan Conding Cana and Partido
Demokratiko Pilipino Lakas ng Bayan in G.R. No.
197280; (f) the manifestation and motion filed by
petitioners Almarim Centi Tillah, et al. in G.R. No.
197280; and (g) the very urgent motion to issue
clarificatory resolution that the temporary
restraining order (TRO) is still existing and
effective.
[G.R. No. 196305. February 28, 2012.]

BASARI D. MAPUPUNO, petitioner, vs. SIXTO
BRILLANTES, in his capacity as Chairman of the
Commission on Elections, FLORENCIO ABAD, JR.
in his capacity as Secretary of the Department of
Budget and Management, PAQUITO OCHOA, JR.,
in his capacity as Executive Secretary, JUAN
PONCE ENRILE, in his capacity as Senate
President, and FELICIANO BELMONTE, in his
capacity as Speaker of the House of
Representatives, respondents.
[G.R. No. 197221. February 28, 2012.]
REP. EDCEL C. LAGMAN, petitioner, vs. PAQUITO
N. OCHOA, JR., in his capacity as the Executive
Secretary,
and
the
COMMISSION
ON
ELECTIONS, respondents.
These motions assail our Decision dated October

18, 2011, where we upheld the constitutionality of
Republic Act (RA) No. 10153. Pursuant to the
constitutional mandate of synchronization, RA No.
[G.R. No. 197280. February 28, 2012.]

107
10153 postponed the regional elections in the

Autonomous Region in Muslim Mindanao (ARMM)
(which were scheduled to be held on the second
Monday of August 2011) to the second Monday of
May 2013 and recognized the President's power to
appoint officers-in-charge (OICs) to temporarily
assume these positions upon the expiration of the
terms of the elected officials.
NOT EXTEND TO ELECTIVE OFFICIALS EVEN

AS THE PRESIDENT IS ONLY VESTED WITH
SUPERVISORY POWERS OVER THE ARMM,
THEREBY NEGATING THE AWESOME POWER
TO APPOINT AND REMOVE OICs OCCUPYING
ELECTIVE POSITIONS.
IV. THE CONSTITUTION DOES NOT PROSCRIBE
THE
HOLDOVER
OF
ARMM
ELECTED
OFFICIALS PENDING THE ELECTION AND
QUALIFICATION OF THEIR SUCCESSORS.
The Motions for Reconsideration

The petitioners in G.R. No. 196271 raise the
following grounds in support of their motion:
V. THE RULING IN OSMENA DOES NOT APPLY

TO ARMM ELECTED OFFICIALS WHOSE TERMS
OF OFFICE ARE NOT PROVIDED FOR BY THE
CONSTITUTION BUT PRESCRIBED BY THE
ORGANIC ACTS.
I. THE HONORABLE COURT ERRED IN

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

OF 3/4 VOTES IN THE HOUSE OF
REPRESENTATIVES AND THE SENATE FOR
THE
VALIDITY
OF
A
SUBSTANTIVE
AMENDMENT OR REVISION OF THE ORGANIC
ACTS DOES NOT IMPOSE AN IRREPEALABLE
LAW.
II. R.A. 10153 AND R.A. 9333 AMEND THE

ORGANIC ACT.
III. THE SUPERMAJORITY PROVISIONS OF THE
ORGANIC ACT (R.A. 9054) ARE NOT
IRREPEALABLE LAWS.
VII. THE REQUIREMENT OF A PLEBISCITE FOR

THE EFFECTIVITY OF A SUBSTANTIVE
AMENDMENT OR REVISION OF THE ORGANIC
ACTS DOES NOT UNDULY EXPAND THE
PLEBISCITE
REQUIREMENT
OF
THE
CONSTITUTION.
IV. SECTION 3, ARTICLE XVII OF R.A. 9054

DOES NOT VIOLATE SECTION 18, ARTICLE X
OF THE CONSTITUTION.
V. BALANCE OF INTERESTS TILT IN FAVOR OF
THE DEMOCRATIC PRINCIPLE[.] 1 ISCTcH
VIII. SYNCHRONIZATION OF THE ARMM

ELECTION WITH THE NATIONAL AND LOCAL
ELECTIONS IS NOT MANDATED BY THE
CONSTITUTION.
The petitioner in G.R. No. 197221 raises similar

grounds, arguing that:
I. THE ELECTIVE REGIONAL EXECUTIVE AND
LEGISLATIVE OFFICIALS OF ARMM CANNOT BE
CONSIDERED AS OR EQUATED WITH THE
TRADITIONAL
LOCAL
GOVERNMENT
OFFICIALS IN THE LOCAL GOVERNMENT
UNITS (LGUs) BECAUSE (A) THERE IS NO
EXPLICIT CONSTITUTIONAL PROVISION ON
SUCH PARITY; AND (B) THE ARMM IS MORE
SUPERIOR THAN LGUs IN STRUCTURE,
POWERS
AND
AUTONOMY,
AND
CONSEQUENTLY IS A CLASS OF ITS OWN
APART FROM TRADITIONAL LGUs.
IX. THE COMELEC HAS THE AUTHORITY TO

HOLD AND CONDUCT SPECIAL ELECTIONS IN
ARMM, AND THE ENACTMENT OF AN
IMPROVIDENT
AND
UNCONSTITUTIONAL
STATUTE
IS
AN
ANALOGOUS
CAUSE
WARRANTING COMELEC'S HOLDING OF
SPECIAL ELECTIONS. 2 (italics supplied)
The petitioner in G.R. No. 196305 further asserts
that:
I. BEFORE THE COURT MAY CONSTRUE OR
INTERPRET A STATUTE, IT IS A CONDITION
SINE QUA NON THAT THERE BE DOUBT OR
AMBIGUITY IN ITS LANGUAGE.
II. THE UNMISTAKABLE AND UNEQUIVOCAL

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

CLEAR AND UNAMBIGUOUS: THEY REFER TO
THE 1992 ELECTIONS AND TURN-OVER OF
ELECTIVE OFFICIALS. IN THUS RECOGNIZING
A SUPPOSED "INTENT" OF THE FRAMERS, AND
APPLYING THE SAME TO ELECTIONS 20
YEARS AFTER, THE HONORABLE SUPREME
COURT MAY HAVE VIOLATED THE FOREMOST
RULE
IN
STATUTORY
CONSTRUCTION.
HTCSDE
III. THE PRESIDENT'S APPOINTING POWER IS

LIMITED TO APPOINTIVE OFFICIALS AND DOES
108
xxx xxx xxx

C.
II. THE HONORABLE COURT SHOULD HAVE
CONSIDERED THAT RA 9054, AN ORGANIC ACT,
WAS COMPLETE IN ITSELF. HENCE, RA 10153
SHOULD BE CONSIDERED TO HAVE BEEN
ENACTED PRECISELY TO AMEND RA 9054.
THE HOLDOVER PRINCIPLE ADOPTED IN R.A.

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

III. THE HONORABLE COURT MAY HAVE
COMMITTED
A
SERIOUS
ERROR
IN
DECLARING THE 2/3 VOTING REQUIREMENT
SET
FORTH
IN
RA
9054
AS
UNCONSTITUTIONAL.
D.
xxx xxx xxx
WITH THE CANCELLATION OF THE AUGUST
2011 ARMM ELECTIONS, SPECIAL ELECTIONS
MUST IMMEDIATELY BE HELD FOR THE
ELECTIVE REGIONAL OFFICIALS OF THE ARMM
WHO
SHALL
SERVE
UNTIL
THEIR
SUCCESSORS ARE ELECTED IN THE MAY 2013
SYNCHRONIZED ELECTIONS. 4
IV. THE HONORABLE COURT MAY HAVE

COMMITTED A SERIOUS ERROR IN HOLDING
THAT A PLEBISCITE IS NOT NECESSARY IN
AMENDING THE ORGANIC ACT.
xxx xxx xxx
V. THE HONORABLE COURT COMMITTED A
SERIOUS ERROR IN DECLARING THE HOLDOVER OF ARMM ELECTIVE OFFICIALS
UNCONSTITUTIONAL.
Finally, the petitioners in G.R. No. 197280 argue

that:
a) the Constitutional mandate of synchronization
does not apply to the ARMM elections; cEDIAa
xxx xxx xxx

b) RA No. 10153 negates the basic principle of
republican democracy which, by constitutional
mandate, guides the governance of the Republic;
VI. THE HONORABLE COURT COMMITTED A

SERIOUS ERROR IN UPHOLDING THE
APPOINTMENT OF OFFICERS-IN-CHARGE. 3
(italics and underscoring supplied)
c) RA No. 10153 amends the Organic Act (RA No.

9054) and, thus, has to comply with the 2/3 vote
from the House of Representatives and the Senate,
voting separately, and be ratified in a plebiscite;
The petitioner in G.R. No. 197282 contends that:

A.
d) if the choice is between elective officials

continuing to hold their offices even after their
terms are over and non-elective individuals getting
into the vacant elective positions by appointment as
OICs, the holdover option is the better choice;
ASSUMING WITHOUT CONCEDING THAT THE

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

over autonomous regions, which does not include
the power to appoint OICs to take the place of
ARMM elective officials; and
f) it would be better to hold the ARMM elections
separately from the national and local elections as
this will make it easier for the authorities to
implement election laws.
In essence, the Court is asked to resolve the
following questions:
B.
(a) Does the Constitution mandate the
synchronization of ARMM regional elections with
national and local elections?
THE HONORABLE COURT ERRED IN RULING

THAT THE APPOINTMENT BY THE PRESIDENT
OF OICs FOR THE ARMM REGIONAL
GOVERNMENT IS NOT VIOLATIVE OF THE
CONSTITUTION.
109
(b) Does RA No. 10153 amend RA No. 9054? If so,

does RA No. 10153 have to comply with the
supermajority vote and plebiscite requirements?
To fully appreciate the constitutional intent behind

these provisions, we refer to the discussions of the
Constitutional Commission:
(c) Is the holdover provision in RA No. 9054

constitutional?
MR. MAAMBONG. For purposes of identification, I

will now read a section which we will temporarily
indicate as Section 14. It reads: "THE SENATORS,
MEMBERS
OF
THE
HOUSE
OF
REPRESENTATIVES
AND
THE
LOCAL
OFFICIALS ELECTED IN THE FIRST ELECTION
SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT
NOON OF JUNE 1992."
(d) Does the COMELEC have the power to call for

special elections in ARMM?
(e) Does granting the President the power to
appoint OICs violate the elective and representative
nature of ARMM regional legislative and executive
offices? ECaHSI
This was presented by Commissioner Davide, so

may we ask that Commissioner Davide be
recognized.
(f) Does the appointment power granted to the

President exceed the President's supervisory
powers over autonomous regions?
THE PRESIDING OFFICER (Mr.

Commissioner Davide is recognized.
The Court's Ruling

We deny the motions for lack of merit.
Rodrigo).
MR. DAVIDE. Before going to the proposed

amendment, I would only state that in view of the
action taken by the Commission on Section 2
earlier, I am formulating a new proposal. It will read
as follows: "THE SENATORS, MEMBERS OF THE
HOUSE OF REPRESENTATIVES AND THE
LOCAL OFFICIALS FIRST ELECTED UNDER
THIS CONSTITUTION SHALL SERVE UNTIL
NOON OF JUNE 30, 1992."
Synchronization mandate includes ARMM elections

The Court was unanimous in holding that the
Constitution mandates the synchronization of
national and local elections. While the Constitution
does not expressly instruct Congress to
synchronize the national and local elections, the
intention can be inferred from the following
provisions of the Transitory Provisions (Article
XVIII) of the Constitution, which state:
I proposed this because of the proposed section of

the Article on Transitory Provisions giving a term to
the incumbent President and Vice-President until
1992. Necessarily then, since the term provided by
the Commission for Members of the Lower House
and for local officials is three years, if there will be
an election in 1987, the next election for said
officers will be in 1990, and it would be very close
to 1992. We could never attain, subsequently, any
synchronization of election which is once every
three years. EAcCHI
Section 1. The first elections of Members of the

Congress under this Constitution shall be held on
The first local elections shall be held on a date to
be determined by the President, which may be
simultaneous with the election of the Members of
the Congress. It shall include the election of all
Members of the city or municipal councils in the
Metropolitan Manila area.
So under my proposal we will be able to begin

actual synchronization in 1992, and consequently,
we should not have a local election or an election
for Members of the Lower House in 1990 for them
to be able to complete their term of three years
each. And if we also stagger the Senate, upon the
first election it will result in an election in 1993 for
the Senate alone, and there will be an election for
12 Senators in 1990. But for the remaining 12 who
will be elected in 1987, if their term is for six years,
their election will be in 1993. So, consequently we
will have elections in 1990, in 1992 and in 1993.
The later election will be limited to only 12 Senators
and of course to the local officials and the Members
of the Lower House. But, definitely, thereafter we
can never have an election once every three years,
therefore defeating the very purpose of the
Commission when we adopted the term of six years
for the President and another six years for the
Senators with the possibility of staggering with 12
to serve for six years and 12 for three years insofar
as the first Senators are concerned. And so my
proposal is the only way to effect the first
Section 2. The Senators, Members of the House of

Representatives, and the local officials first elected
under this Constitution shall serve until noon of
June 30, 1992.
Of the Senators elected in the elections in 1992,
the first twelve obtaining the highest number of
votes shall serve for six years and the remaining
twelve for three years.
xxx xxx xxx
Section 5. The six-year term of the incumbent
President and Vice-President elected in the
February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to
noon of June 30, 1992.
The first regular elections for the President and
Vice-President under this Constitution shall be held
on the second Monday of May, 1992.
110
synchronized election which would mean,

necessarily, a bonus of two years to the Members
of the Lower House and a bonus of two years to the
local elective officials.
The framers of the Constitution could not have

expressed their objective more clearly there was
to be a single election in 1992 for all elective
officials from the President down to the
municipal officials. Significantly, the framers were
even willing to temporarily lengthen or shorten the
terms of elective officials in order to meet this
objective, highlighting the importance of this
constitutional mandate.
THE PRESIDING OFFICER (Mr. Rodrigo). What

does the committee say?
MR. DE CASTRO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr.
Commissioner de Castro is recognized.
Rodrigo).
We came to the same conclusion in Osmea v.
Commission on Elections, 6 where we
unequivocally stated that "the Constitution has
mandated synchronized national and local
elections." 7 Despite the length and verbosity of
their motions, the petitioners have failed to
convince us to deviate from this established ruling.
MR. DE CASTRO. Thank you.

During the discussion on the legislative and the
synchronization of elections, I was the one who
proposed that in order to synchronize the elections
every three years, which the body approved the
first national and local officials to be elected in 1987
shall continue in office for five years, the same
thing the Honorable Davide is now proposing. That
means they will all serve until 1992, assuming that
the term of the President will be for six years and
continue beginning in 1986. So from 1992, we will
again have national, local and presidential
elections. This time, in 1992, the President shall
have a term until 1998 and the first 12 Senators will
serve until 1998, while the next 12 shall serve until
1995, and then the local officials elected in 1992
will serve until 1995. From then on, we shall have
an election every three years.
Neither do we find any merit in the petitioners'

contention that the ARMM elections are not
covered by the constitutional mandate of
synchronization because the ARMM elections were
not specifically mentioned in the above-quoted
Transitory Provisions of the Constitution.
That the ARMM elections were not expressly
mentioned in the Transitory Provisions of the
Constitution on synchronization cannot be
interpreted to mean that the ARMM elections are
not covered by the constitutional mandate of
synchronization. We have to consider that the
ARMM, as we now know it, had not yet been
officially organized at the time the Constitution was
enacted and ratified by the people. Keeping in mind
that a constitution is not intended to provide merely
for the exigencies of a few years but is to endure
through generations for as long as it remains
unaltered by the people as ultimate sovereign, a
constitution should be construed in the light of what
actually is a continuing instrument to govern not
only the present but also the unfolding events of the
indefinite future. Although the principles embodied
in a constitution remain fixed and unchanged from
the time of its adoption, a constitution must be
construed as a dynamic process intended to stand
for a great length of time, to be progressive and not
static. 8
So, I will say that the proposition of Commissioner

Davide is in order, if we have to synchronize our
elections every three years which was already
approved by the body.
Thank you, Mr. Presiding Officer.
xxx xxx xxx
MR. GUINGONA. What will be synchronized,
therefore, is the election of the incumbent President
and Vice-President in 1992.
MR. DAVIDE. Yes. EHACcT
MR. GUINGONA. Not the reverse. Will the
committee not synchronize the election of the
Senators and local officials with the election of the
President?
To reiterate, Article X of the Constitution, entitled

"Local Government," clearly shows the intention of
the Constitution to classify autonomous regions,
such as the ARMM, as local governments. We refer
to Section 1 of this Article, which provides:
MR. DAVIDE. It works both ways, Mr. Presiding

Officer. The attempt here is on the assumption that
the provision of the Transitory Provisions on the
term of the incumbent President and Vice-President
would really end in 1992.
MR. GUINGONA. Yes.
Section 1. The territorial and political subdivisions

of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
MR. DAVIDE. In other words, there will be a single

election in 1992 for all, from the President up to the
municipal officials. 5 (emphases and underscoring
ours)
The inclusion of autonomous regions in the

enumeration of political subdivisions of the State
under the heading "Local Government" indicates
quite clearly the constitutional intent to consider
111
autonomous regions as one of the forms of local

governments. HSTaEC
9333 and RA No. 10153 merely filled the gap left in

RA No. 9054.
That the Constitution mentions only the "national

government" and the "local governments," and
does not make a distinction between the "local
government" and the "regional government," is
particularly revealing, betraying as it does the
intention of the framers of the Constitution to
consider the autonomous regions not as separate
forms of government, but as political units which,
while having more powers and attributes than other
local government units, still remain under the
category of local governments. Since autonomous
regions are classified as local governments, it
follows that elections held in autonomous regions
are also considered as local elections.
We reiterate our previous observations:

This view that Congress thought it best to leave
the determination of the date of succeeding ARMM
elections to legislative discretion finds support in
ARMM's recent history.
To recall, RA No. 10153 is not the first law passed
that rescheduled the ARMM elections. The First
Organic Act RA No. 6734 not only did not fix
the date of the subsequent elections; it did not even
fix the specific date of the first ARMM elections,
leaving the date to be fixed in another legislative
enactment. Consequently, RA No. 7647, RA No.
8176, RA No. 8746, RA No. 8753, and RA No. 9012
were all enacted by Congress to fix the dates of the
ARMM elections. Since these laws did not change
or modify any part or provision of RA No. 6734,
they were not amendments to this latter law.
Consequently, there was no need to submit them to
any plebiscite for ratification.
The petitioners further argue that even assuming

that the Constitution mandates the synchronization
of elections, the ARMM elections are not covered
by this mandate since they are regional elections
and not local elections.
In construing provisions of the Constitution, the first
rule is verba legis, "that is, wherever possible, the
words used in the Constitution must be given their
ordinary meaning except where technical terms are
employed." 9 Applying this principle to determine
the scope of "local elections," we refer to the
meaning of the word "local," as understood in its
ordinary sense. As defined in Webster's Third New
International Dictionary Unabridged, "local" refers
to something "that primarily serves the needs of a
particular limited district, often a community or
minor political subdivision." Obviously, the ARMM
elections, which are held within the confines of the
autonomous region of Muslim Mindanao, fall within
this definition.
The Second Organic Act RA No. 9054 which

lapsed into law on March 31, 2001, provided that
the first elections would be held on the second
Monday of September 2001. Thereafter, Congress
passed RA No. 9140 to reset the date of the ARMM
elections. Significantly, while RA No. 9140 also
scheduled the plebiscite for the ratification of the
Second Organic Act (RA No. 9054), the new date of
the ARMM regional elections fixed in RA No. 9140
was not among the provisions ratified in the
plebiscite held to approve RA No. 9054. Thereafter,
Congress passed RA No. 9333, which further reset
the date of the ARMM regional elections. Again, this
law was not ratified through a plebiscite.
To be sure, the fact that the ARMM possesses

more powers than other provinces, cities, or
municipalities is not enough reason to treat the
ARMM regional elections differently from the other
local elections. Ubi lex non distinguit nec nos
distinguire debemus. When the law does not
distinguish, we must not distinguish. 10
From these legislative actions, we see the clear

intention of Congress to treat the laws which fix the
date of the subsequent ARMM elections as
separate and distinct from the Organic Acts.
Congress only acted consistently with this intent
when it passed RA No. 10153 without requiring
compliance with the amendment prerequisites
embodied in Section 1 and Section 3, Article XVII of
RA No. 9054. 12 (emphases supplied) DEHcTI
RA No. 10153 does not amend RA No. 9054

The petitioners are adamant that the provisions of
RA No. 10153, in postponing the ARMM elections,
amend RA No. 9054.
The petitioner in G.R. No. 196305 contends,

however, that there is no lacuna in RA No. 9054 as
regards the date of the subsequent ARMM
elections. In his estimation, it can be implied from
the provisions of RA No. 9054 that the succeeding
elections are to be held three years after the date of
the first ARMM regional elections.
We cannot agree with their position.

A thorough reading of RA No. 9054 reveals that it
fixes the schedule for only the first ARMM elections;
11 it does not provide the date for the succeeding
regular ARMM elections. In providing for the date of
the regular ARMM elections, RA No. 9333 and RA
No. 10153 clearly do not amend RA No. 9054 since
these laws do not change or revise any provision in
RA No. 9054. In fixing the date of the ARMM
elections subsequent to the first election, RA No.
We find this an erroneous assertion. Well-settled is

the rule that the court may not, in the guise of
interpretation, enlarge the scope of a statute and
include therein situations not provided nor intended
by the lawmakers. An omission at the time of
enactment, whether careless or calculated, cannot
be judicially supplied however later wisdom may
112
recommend the inclusion. 13 Courts are not

authorized to insert into the law what they think
should be in it or to supply what they think the
legislature would have supplied if its attention had
been called to the omission. 14 Providing for lapses
within the law falls within the exclusive domain of
the legislature, and courts, no matter how wellmeaning, have no authority to intrude into this
clearly delineated space.
We also highlight an important point raised by

Justice Antonio T. Carpio in his dissenting opinion,
where he stated: "Section 1, Article XVII of RA 9054
erects a high vote threshold for each House of
Congress
to
surmount,
effectively
and
unconstitutionally, taking RA 9054 beyond the
reach of Congress' amendatory powers. One
Congress cannot limit or reduce the plenary
legislative power of succeeding Congresses by
requiring a higher vote threshold than what the
Constitution requires to enact, amend or repeal
laws. No law can be passed fixing such a higher
vote threshold because Congress has no power, by
ordinary legislation, to amend the Constitution." 19
Since RA No. 10153 does not amend, but merely

fills in the gap in RA No. 9054, there is no need for
RA No. 10153 to comply with the amendment
requirements set forth in Article XVII of RA No.
9054.
Plebiscite requirement in RA No. 9054 overly broad

Similarly, we struck down the petitioners' contention
that the plebiscite requirement 20 applies to all
amendments of RA No. 9054 for being an
unreasonable enlargement of the plebiscite
requirement set forth in the Constitution.
Supermajority vote requirement makes RA No.

9054 an irrepealable law
Even assuming that RA No. 10153 amends RA No.
9054, however, we have already established that
the supermajority vote requirement set forth in
Section 1, Article XVII of RA No. 9054 15 is
unconstitutional for violating the principle that
Congress cannot pass irrepealable laws.
Section 18, Article X of the Constitution provides

that "[t]he creation of the autonomous region shall
be effective when approved by majority of the votes
cast by the constituent units in a plebiscite called
for the purpose[.]" We interpreted this to mean that
only amendments to, or revisions of, the Organic
Act constitutionally-essential to the creation of
autonomous regions i.e., those aspects
specifically mentioned in the Constitution which
Congress must provide for in the Organic Act 21
require ratification through a plebiscite. We stand
by this interpretation.
The power of the legislature to make laws includes

the power to amend and repeal these laws. Where
the legislature, by its own act, attempts to limit its
power to amend or repeal laws, the Court has the
duty to strike down such act for interfering with the
plenary powers of Congress. As we explained in
Duarte v. Dade: 16
A state legislature has a plenary law-making power
over all subjects, whether pertaining to persons or
things, within its territorial jurisdiction, either to
introduce new laws or repeal the old, unless
prohibited expressly or by implication by the federal
constitution or limited or restrained by its own. It
cannot bind itself or its successors by enacting
irrepealable laws except when so restrained. Every
legislative body may modify or abolish the acts
passed by itself or its predecessors. This power of
repeal may be exercised at the same session at
which the original act was passed; and even while
a bill is in its progress and before it becomes a law.
This legislature cannot bind a future legislature to a
particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing
statutes. [emphasis ours]
The petitioners argue that to require all

amendments to RA No. 9054 to comply with the
plebiscite requirement is to recognize that
sovereignty resides primarily in the people.
While we agree with the petitioners' underlying
premise that sovereignty ultimately resides with the
people, we disagree that this legal reality
necessitates compliance with the plebiscite
requirement for all amendments to RA No. 9054.
For if we were to go by the petitioners'
interpretation of Section 18, Article X of the
Constitution that all amendments to the Organic Act
have to undergo the plebiscite requirement before
becoming effective, this would lead to impractical
and illogical results hampering the ARMM's
progress by impeding Congress from enacting laws
that timely address problems as they arise in the
region, as well as weighing down the ARMM
government with the costs that unavoidably follow
the holding of a plebiscite.
Under our Constitution, each House of Congress

has the power to approve bills by a mere majority
vote, provided there is quorum. 17 In requiring all
laws which amend RA No. 9054 to comply with a
higher voting requirement than the Constitution
provides (2/3 vote), Congress, which enacted RA
No. 9054, clearly violated the very principle which
we sought to establish in Duarte. To reiterate, the
act of one legislature is not binding upon, and
cannot tie the hands of, future legislatures. 18
HDTCSI
Interestingly, the petitioner in G.R. No. 197282

posits that RA No. 10153, in giving the President
the power to appoint OICs to take the place of the
elective officials of the ARMM, creates a
fundamental change in the basic structure of the
government, and thus requires compliance with the
plebiscite requirement embodied in RA No. 9054.
113
Again, we disagree.
occupy their offices. We have already established

that elective ARMM officials are also local officials;
they are, thus, bound by the three-year term limit
prescribed by the Constitution. It, therefore,
becomes irrelevant that the Constitution does not
expressly prohibit elective officials from acting in a
holdover capacity. Short of amending the
Constitution, Congress has no authority to extend
the three-year term limit by inserting a holdover
provision in RA No. 9054. Thus, the term of three
years for local officials should stay at three (3)
years, as fixed by the Constitution, and cannot be
extended by holdover by Congress.
The pertinent provision in this regard is Section 3 of

RA No. 10153, which reads:
Section 3. Appointment of Officers-in-Charge.
The President shall appoint officers-in-charge for
the Office of the Regional Governor, Regional Vice
qualified and assumed office.
We cannot see how the above-quoted provision
has changed the basic structure of the ARMM
regional government. On the contrary, this provision
clearly preserves the basic structure of the ARMM
regional government when it recognizes the offices
of the ARMM regional government and directs the
OICs who shall temporarily assume these offices to
"perform the functions pertaining to the said
offices."
Admittedly, we have, in the past, recognized the

validity of holdover provisions in various laws. One
significant difference between the present case and
these past cases 22 is that while these past cases
all refer to elective barangay or sangguniang
kabataan officials whose terms of office are not
explicitly provided for in the Constitution, the
present case refers to local elective officials the
ARMM Governor, the ARMM Vice Governor, and
the members of the Regional Legislative Assembly
whose terms fall within the three-year term limit
set by Section 8, Article X of the Constitution.
Unconstitutionality of the holdover provision

The petitioners are one in defending the
constitutionality of Section 7 (1), Article VII of RA
No. 9054, which allows the regional officials to
remain in their positions in a holdover capacity. The
petitioners essentially argue that the ARMM
regional officials should be allowed to remain in
their respective positions until the May 2013
elections since there is no specific provision in the
Constitution which prohibits regional elective
officials from performing their duties in a holdover
capacity.
Even assuming that a holdover is constitutionally

permissible, and there had been statutory basis for
it (namely Section 7, Article VII of RA No. 9054), the
rule of holdover can only apply as an available
option where no express or implied legislative intent
to the contrary exists; it cannot apply where such
contrary intent is evident. 23
Congress, in passing RA No. 10153 and removing
the holdover option, has made it clear that it wants
to suppress the holdover rule expressed in RA No.
9054. Congress, in the exercise of its plenary
legislative powers, has clearly acted within its
discretion when it deleted the holdover option, and
this Court has no authority to question the wisdom
of this decision, absent any evidence of
unconstitutionality or grave abuse of discretion. It is
for the legislature and the executive, and not this
Court, to decide how to fill the vacancies in the
ARMM regional government which arise from the
legislature complying with the constitutional
mandate of synchronization. aHATDI
The pertinent provision of the Constitution is

Section 8, Article X which provides:
Section 8. The term of office of elective local
officials, except barangay officials, which shall be
determined by law, shall be three years and no
such official shall serve for more than three
consecutive terms. [emphases ours]
On the other hand, Section 7 (1), Article VII of RA
No. 9054 provides:
Section 7. Terms of Office of Elective Regional
Officials. (1) Terms of Office. The terms of office
of the Regional Governor, Regional Vice Governor
and members of the Regional Assembly shall be for
a period of three (3) years, which shall begin at
noon on the 30th day of September next following
the day of the election and shall end at noon of the
same date three (3) years thereafter. The
incumbent elective officials of the autonomous
region shall continue in effect until their successors
are elected and qualified.
COMELEC has no authority to hold special

elections
Neither do we find any merit in the contention that
the Commission on Elections (COMELEC) is
sufficiently empowered to set the date of special
elections in the ARMM. To recall, the Constitution
has merely empowered the COMELEC to enforce
and administer all laws and regulations relative to
the conduct of an election. 24 Although the
legislature, under the Omnibus Election Code
(Batas Pambansa Bilang [BP] 881), has granted
the COMELEC the power to postpone elections to
another date, this power is confined to the specific
terms and circumstances provided for in the law.
The clear wording of Section 8, Article X of the

Constitution expresses the intent of the framers of
the Constitution to categorically set a limitation on
the period within which all elective local officials can
114
Specifically, this power falls within the narrow

confines of the following provisions:
can compel the COMELEC to do so, there is still

the problem of having to shorten the terms of the
newly elected officials in order to synchronize the
ARMM elections with the May 2013 national and
local elections. Obviously, neither the Court nor the
COMELEC has the authority to do this, amounting
as it does to an amendment of Section 8, Article X
of the Constitution, which limits the term of local
officials to three years.
Section 5. Postponement of election. When for

any serious cause such as violence, terrorism, loss
or destruction of election paraphernalia or records,
force majeure, and other analogous causes of such
a nature that the holding of a free, orderly and
honest election should become impossible in any
political subdivision, the Commission, motu proprio
or upon a verified petition by any interested party,
and after due notice and hearing, whereby all
interested parties are afforded equal opportunity to
be heard, shall postpone the election therein to a
date which should be reasonably close to the date
of the election not held, suspended or which
days after the cessation of the cause for such
failure to elect.
President's authority to appoint OICs

The petitioner in G.R. No. 197221 argues that the
President's power to appoint pertains only to
appointive positions and cannot extend to positions
held by elective officials.
The power to appoint has traditionally been
recognized as executive in nature. 25 Section 16,
Article VII of the Constitution describes in broad
strokes the extent of this power, thus: caCEDA
Section 6. Failure of election. If, on account of

force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place
has not been held on the date fixed, or had been
suspended before the hour fixed by law for the
closing of the voting, or after the voting and during
the preparation and the transmission of the election
returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of
such cases the failure or suspension of election
would affect the result of the election, the
Commission shall, on the basis of a verified petition
by any interested party and after due notice and
hearing, call for the holding or continuation of the
election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the
date of the election not held, suspended or which
days after the cessation of the cause of such
failure to elect. [emphases and underscoring ours]
Section 16. The President shall nominate and, with

the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint. The Congress may,
by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in
the heads of departments, agencies, commissions,
or boards. [emphasis ours]
The 1935 Constitution contained a provision similar
to the one quoted above. Section 10 (3), Article VII
of the 1935 Constitution provides:
(3) The President shall nominate and with the
consent of the Commission on Appointments, shall
appoint the heads of the executive departments
and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of
captain or commander, and all other officers of the
Government whose appointments are not herein
otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may
by law vest the appointment of inferior officers, in
the President alone, in the courts, or in the heads of
departments. [emphasis ours]
As we have previously observed in our assailed

decision, both Section 5 and Section 6 of BP 881
address instances where elections have already
been scheduled to take place but do not occur or
had to be suspended because of unexpected and
unforeseen circumstances, such as violence, fraud,
terrorism, and other analogous circumstances.
In contrast, the ARMM elections were postponed by
law, in furtherance of the constitutional mandate of
synchronization of national and local elections.
Obviously, this does not fall under any of the
circumstances contemplated by Section 5 or
Section 6 of BP 881.
The main distinction between the provision in the

1987 Constitution and its counterpart in the 1935
Constitution is the sentence construction; while in
the 1935 Constitution, the various appointments the
President can make are enumerated in a single
sentence, the 1987 Constitution enumerates the
various appointments the President is empowered
to make and divides the enumeration in two
sentences. The change in style is significant; in
providing for this change, the framers of the 1987
Constitution clearly sought to make a distinction
More importantly, RA No. 10153 has already fixed

the date for the next ARMM elections and the
COMELEC has no authority to set a different
election date.
Even assuming that the COMELEC has the
authority to hold special elections, and this Court
115
between
the
first
group
of
presidential
appointments and the second group of presidential
appointments, as made evident in the following
exchange:
autonomous regions, and the power granted to the

President, within the specific confines of RA No.
10153, to appoint OICs.
The power of supervision is defined as "the power
of a superior officer to see to it that lower officers
perform their functions in accordance with law." 31
This is distinguished from the power of control or
"the power of an officer to alter or modify or set
aside what a subordinate officer had done in the
performance of his duties and to substitute the
judgment of the former for the latter." 32
MR. FOZ. Madame President . . . I propose to put a

period (.) after "captain" and . . . delete "and all"
and substitute it with HE SHALL ALSO APPOINT
ANY.
MR.
REGALADO.
Madam
President,
the
Committee accepts the proposed amendment
because it makes it clear that those other officers
mentioned therein do not have to be confirmed by
the Commission on Appointments. 26
The petitioners' apprehension regarding the

President's alleged power of control over the OICs
is rooted in their belief that the President's
appointment power includes the power to remove
these officials at will. In this way, the petitioners
foresee that the appointed OICs will be beholden to
the President, and act as representatives of the
President and not of the people.
The first group of presidential appointments,

specified as the heads of the executive
departments, ambassadors, other public ministers
and consuls, or officers of the Armed Forces, and
other officers whose appointments are vested in the
President by the Constitution, pertains to the
appointive officials who have to be confirmed by the
Commission on Appointments.
Section 3 of RA No. 10153 expressly contradicts

the petitioners' supposition. The provision states:
The second group of officials the President can

appoint are "all other officers of the Government
whose appointments are not otherwise provided for
by law, and those whom he may be authorized by
law to appoint." 27 The second sentence acts as
the "catch-all provision" for the President's
appointment power, in recognition of the fact that
the power to appoint is essentially executive in
nature. 28 The wide latitude given to the President
to appoint is further demonstrated by the
recognition of the President's power to appoint
officials whose appointments are not even provided
for by law. In other words, where there are offices
which have to be filled, but the law does not provide
the process for filling them, the Constitution
recognizes the power of the President to fill the
office by appointment.
Section 3. Appointment of Officers-in-Charge.

The President shall appoint officers-in-charge for
the Office of the Regional Governor, Regional Vice
qualified and assumed office.
The wording of the law is clear. Once the President
has appointed the OICs for the offices of the
Governor, Vice Governor and members of the
Regional Legislative Assembly, these same officials
will remain in office until they are replaced by the
duly elected officials in the May 2013 elections.
Nothing in this provision even hints that the
President has the power to recall the appointments
he already made. Clearly, the petitioners' fears in
this regard are more apparent than real.
Any limitation on or qualification to the exercise of

the President's appointment power should be
strictly construed and must be clearly stated in
order to be recognized. 29 Given that the President
derives his power to appoint OICs in the ARMM
regional government from law, it falls under the
classification of presidential appointments covered
by the second sentence of Section 16, Article VII of
the Constitution; the President's appointment power
thus rests on clear constitutional basis.
The petitioners also jointly assert that RA No.
10153, in granting the President the power to
appoint OICs in elective positions, violates Section
16, Article X of the Constitution, 30 which merely
grants the President the power of supervision over
autonomous regions. DICSaH
RA No. 10153 as an interim measure

We reiterate once more the importance of
considering RA No. 10153 not in a vacuum, but
within the context it was enacted in. In the first
place, Congress enacted RA No. 10153 primarily to
heed the constitutional mandate to synchronize the
ARMM regional elections with the national and local
elections. To do this, Congress had to postpone the
scheduled ARMM elections for another date,
leaving it with the problem of how to provide the
ARMM with governance in the intervening period,
between the expiration of the term of those elected
in August 2008 and the assumption to office
twenty-one (21) months away of those who will
win in the synchronized elections on May 13, 2013.
This is an overly restrictive interpretation of the

President's appointment power. There is no
incompatibility between the President's power of
supervision
over
local
governments
and
In our assailed Decision, we already identified the

three possible solutions open to Congress to
address the problem created by synchronization
(a) allow the incumbent officials to remain in office
116
after the expiration of their terms in a holdover

capacity; (b) call for special elections to be held,
and shorten the terms of those to be elected so the
next ARMM regional elections can be held on May
13, 2013; or (c) recognize that the President, in the
exercise of his appointment powers and in line with
his power of supervision over the ARMM, can
appoint interim OICs to hold the vacated positions
in the ARMM regional government upon the
expiration of their terms. We have already
established the unconstitutionality of the first two
options, leaving us to consider the last available
option.
decision was based on a close vote of 8-7, and

given the numerous motions for reconsideration
filed by the parties, the President, in recognition of
the principle of judicial courtesy, should have
refrained from implementing our decision until we
have ruled with finality on this case.
We find the petitioners' reasoning specious.
Firstly, the principle of judicial courtesy is based on
the hierarchy of courts and applies only to lower
courts in instances where, even if there is no writ of
preliminary injunction or TRO issued by a higher
court, it would be proper for a lower court to
suspend its proceedings for practical and ethical
considerations. 35 In other words, the principle of
"judicial courtesy" applies where there is a strong
probability that the issues before the higher court
would be rendered moot and moribund as a result
of the continuation of the proceedings in the lower
court or court of origin. 36 Consequently, this
principle cannot be applied to the President, who
represents a co-equal branch of government. To
suggest otherwise would be to disregard the
principle of separation of powers, on which our
whole system of government is founded upon.
In this way, RA No. 10153 is in reality an interim

measure, enacted to respond to the adjustment that
synchronization requires. Given the context, we
have to judge RA No. 10153 by the standard of
reasonableness in responding to the challenges
brought about by synchronizing the ARMM
elections with the national and local elections. In
other words, "given the plain unconstitutionality of
providing for a holdover and the unavailability of
constitutional possibilities for lengthening or
shortening the term of the elected ARMM officials,
is the choice of the President's power to appoint
for a fixed and specific period as an interim
measure, and as allowed under Section 16, Article
VII of the Constitution an unconstitutional or
unreasonable choice for Congress to make?"33
STaHIC
Secondly, the fact that our previous decision was

based on a slim vote of 8-7 does not, and cannot,
have the effect of making our ruling any less
effective or binding. Regardless of how close the
voting is, so long as there is concurrence of the
majority of the members of the en banc who
actually took part in the deliberations of the case,
37 a decision garnering only 8 votes out of 15
members is still a decision of the Supreme Court en
banc and must be respected as such. The
petitioners are, therefore, not in any position to
speculate that, based on the voting, "the probability
exists that their motion for reconsideration may be
granted." 38 DTEHIA
We admit that synchronization will temporarily

disrupt the election process in a local community,
the ARMM, as well as the community's choice of
leaders. However, we have to keep in mind that the
adoption of this measure is a matter of necessity in
order to comply with a mandate that the
Constitution itself has set out for us. Moreover, the
implementation of the provisions of RA No. 10153
as an interim measure is comparable to the interim
measures traditionally practiced when, for instance,
the President appoints officials holding elective
offices upon the creation of new local government
units.
Similarly, the petitioner in G.R. No. 197282, in his

Very Urgent Motion to Issue Clarificatory
Resolution, argues that since motions for
reconsideration were filed by the aggrieved parties
challenging our October 18, 2011 decision in the
present case, the TRO we initially issued on
September 13, 2011 should remain subsisting and
effective. He further argues that any attempt by the
Executive to implement our October 18, 2011
decision pending resolution of the motions for
reconsideration "borders on disrespect if not
outright insolence" 39 to this Court.
The grant to the President of the power to appoint

OICs in place of the elective members of the
Regional Legislative Assembly is neither novel nor
innovative. The power granted to the President, via
RA No. 10153, to appoint members of the Regional
Legislative Assembly is comparable to the power
granted by BP 881 (the Omnibus Election Code) to
the President to fill any vacancy for any cause in
the Regional Legislative Assembly (then called the
Sangguniang Pampook). 34
In support of this theory, the petitioner cites Samad

v. COMELEC, 40 where the Court held that while it
had already issued a decision lifting the TRO, the
lifting of the TRO is not yet final and executory, and
can also be the subject of a motion for
reconsideration. The petitioner also cites the minute
resolution issued by the Court in Tolentino v.
Secretary of Finance, 41 where the Court
reproached the Commissioner of the Bureau of
Internal Revenue for manifesting its intention to
Executive is not bound by the principle of judicial

courtesy
The petitioners in G.R. No. 197280, in their
Manifestation and Motion dated December 21,
2011, question the propriety of the appointment by
the President of Mujiv Hataman as acting Governor
and Bainon Karon as acting Vice Governor of the
ARMM. They argue that since our previous
117
implement the decision of the Court, noting that the

Court had not yet lifted the TRO previously issued.
42 aTIAES
Sangguniang Kabataan officials, there is no legal

proscription which prevents these specific
government officials from continuing in a holdover
capacity should some exigency require the
postponement of barangay or Sangguniang
Kabataan elections. Clearly, these fears have
neither legal nor factual basis to stand on.
We agree with the petitioner that the lifting of a

TRO can be included as a subject of a motion for
reconsideration filed to assail our decision. It does
not follow, however, that the TRO remains effective
until after we have issued a final and executory
decision, especially considering the clear wording
of the dispositive portion of our October 18, 2011
decision, which states:
For the foregoing reasons, we deny the petitioners'

motions for reconsideration.
WHEREFORE, premises considered, we DENY
with FINALITY the motions for reconsideration for
lack of merit and UPHOLD the constitutionality of
RA No. 10153.

the consolidated petitions assailing the validity of
RA No. 10153 for lack of merit, and UPHOLD the
constitutionality of this law. We likewise LIFT the
temporary restraining order we issued in our
Resolution of September 13, 2011. No costs. 43
(emphases ours)
SO ORDERED.
Peralta, Bersamin, Villarama, Jr., Mendoza, Reyes
and Perlas-Bernabe, JJ., concur.
In this regard, we note an important distinction

between Tolentino and the present case. While it
may be true that Tolentino and the present case are
similar in that, in both cases, the petitions assailing
the challenged laws were dismissed by the Court,
an examination of the dispositive portion of the
decision in Tolentino reveals that the Court did not
categorically lift the TRO. In sharp contrast, in the
present case, we expressly lifted the TRO issued
on September 13, 2011. There is, therefore, no
legal impediment to prevent the President from
exercising his authority to appoint an acting ARMM
Governor and Vice Governor as specifically
provided for in RA No. 10153.
Corona, C.J., took no part.
Conclusion
As a final point, we wish to address the bleak
picture that the petitioner in G.R. No. 197282
presents in his motion, that our Decision has
virtually given the President the power and
authority to appoint 672,416 OICs in the event that
the elections of barangay and Sangguniang
Kabataan officials are postponed or cancelled.
TCAHES
Sereno, J., is on leave.
Carpio, J., I reiterate my Dissenting Opinion.

Velasco, Jr., J., I reiterate my Dissenting Opinion.
Leonardo-de Castro, J., I maintain my vote joining
the dissent of Justice Velasco.
Del Castillo, * J., is on official leave.
Abad, J., I maintain my dissent.
Perez, J., I join the Dissent of J. Carpio.
||| (Kida v. Senate of the Philippines, G.R. No.

196271, 196305, 197221, 197280, 197282,
197392, 197454 (Resolution), [February 28, 2012],
683 PHIL 198-238)
8. CHAVEZ VS. JBC 676 SCRA 579 (2012)
EN BANC
We find this speculation nothing short of fearmongering.
[G.R. No. 202242. July 17, 2012.]
This argument fails to take into consideration the

unique factual and legal circumstances which led to
the enactment of RA No. 10153. RA No. 10153 was
passed in order to synchronize the ARMM elections
with the national and local elections. In the course
of synchronizing the ARMM elections with the
national and local elections, Congress had to grant
the President the power to appoint OICs in the
ARMM, in light of the fact that: (a) holdover by the
incumbent ARMM elective officials is legally
impermissible; and (b) Congress cannot call for
special elections and shorten the terms of elective
local officials for less than three years.
FRANCISCO I. CHAVEZ, petitioner, vs. JUDICIAL

AND BAR COUNCIL, SEN. FRANCIS JOSEPH G.
ESCUDERO and REP. NIEL C. TUPAS, JR.,
respondents.
DECISION
MENDOZA, J p:
The issue at hand has been in hibernation until the
unexpected departure of Chief Justice Renato C.
Corona on May 29, 2012, and the nomination of
former Solicitor General Francisco I. Chavez
(petitioner), as his potential successor, triggered the
filing of this case. The issue has constantly been
Unlike local officials, as the Constitution does not

prescribe a term limit for barangay and
118
nagging legal minds, yet remained dormant for lack

of constitutional challenge.
(2) The regular members of the Council shall be

appointed by the President for a term of four years
with the consent of the Commission on
Appointments. Of the Members first appointed, the
representative of the Integrated Bar shall serve for
four years, the professor of law for three years, the
retired Justice for two years, and the representative
of the private sector for one year.
As the matter is of extreme urgency considering the

constitutional deadline in the process of selecting
the nominees for the vacant seat of the Chief
Justice, the Court cannot delay the resolution of the
issue a day longer. Relegating it in the meantime to
the back burner is not an option.
(3) The Clerk of the Supreme Court shall be the

Secretary ex officio of the Council and shall keep a
record of its proceedings.
Does the first paragraph of Section 8, Article VIII of

the 1987 Constitution allow more than one (1)
member of Congress to sit in the JBC? Is the
practice of having two (2) representatives from
each house of Congress with one (1) vote each
sanctioned by the Constitution? These are the
pivotal questions to be resolved in this original
action for prohibition and injunction.
(4) The regular Members of the Council shall

receive such emoluments as may be determined by
the Supreme Court. The Supreme Court shall
provide in its annual budget the appropriations for
the Council.
Long before the naissance of the present

Constitution,the annals of history bear witness to
the fact that the exercise of appointing members of
the Judiciary has always been the exclusive
prerogative of the executive and legislative
branches of the government. Like their progenitor
of American origins, both the Malolos Constitution 1
and the 1935 Constitution 2 had vested the power
to appoint the members of the Judiciary in the
President, subject to confirmation by the
Commission on Appointments. It was during these
times that the country became witness to the
deplorable
practice
of
aspirants
seeking
confirmation of their appointment in the Judiciary to
ingratiate themselves with the members of the
legislative body. 3 AEIDTc
(5) The Council shall have the principal function of

recommending appointees to the Judiciary. It may
exercise such other functions and duties as the
Supreme Court may assign to it.
In compliance therewith, Congress, from the
moment of the creation of the JBC, designated one
representative to sit in the JBC to act as one of the
ex officio members. 6 Perhaps in order to give
equal opportunity to both houses to sit in the
exclusive body, the House of Representatives and
the Senate would send alternate representatives to
the JBC. In other words, Congress had only one (1)
representative.
In 1994, the composition of the JBC was
substantially altered. Instead of having only seven
(7) members, an eighth (8th) member was added to
the JBC as two (2) representatives from Congress
began sitting in the JBC one from the House of
Representatives and one from the Senate, with
each having one-half (1/2) of a vote. 7 Then,
curiously, the JBC En Banc, in separate meetings
held in 2000 and 2001, decided to allow the
representatives from the Senate and the House of
Representatives one full vote each. 8 At present,
Senator Francis Joseph G. Escudero and
Congressman Niel C. Tupas, Jr. (respondents)
simultaneously sit in the JBC as representatives of
the legislature.
Then, with the fusion of executive and legislative

power under the 1973 Constitution, 4 the
appointment of judges and justices was no longer
subject to the scrutiny of another body. It was
absolute, except that the appointees must have all
the qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of
appointments to the Judiciary from political
pressure and partisan activities, 5 the members of
the Constitutional Commission saw the need to
create a separate, competent and independent
body to recommend nominees to the President.
Thus, it conceived of a body representative of all
the stakeholders in the judicial appointment
process and called it the Judicial and Bar Council
(JBC). Its composition, term and functions are
provided under Section 8, Article VIII of the
Constitution,viz.:
It is this practice that petitioner has questioned in

this petition, 9 setting forth the following:
GROUNDS FOR ALLOWANCE OF THE PETITION
I
Section 8. (1) A Judicial and Bar Council is hereby

created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio
Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme
Court, and a representative of the private sector.
Article VIII, Section 8, Paragraph 1 is clear, definite

and needs no interpretation in that the JBC shall
have only one representative from Congress.
II
119
The framers of the Constitution clearly envisioned,

contemplated and decided on a JBC composed of
only seven (7) members. HTacDS
established, the Framers originally envisioned a

unicameral legislative body, thereby allocating "a
representative of the National Assembly" to the
JBC. The phrase, however, was not modified to
aptly jive with the change to bicameralism, the
legislative system finally adopted by the
Constitutional Commission on July 21, 1986.
According to respondents, if the Commissioners
were made aware of the consequence of having a
bicameral legislature instead of a unicameral one,
they would have made the corresponding
adjustment in the representation of Congress in the
JBC. 18
III
Had the framers of the Constitution intended that
the JBC composed of the one member from the
Senate and one member from the House of
Representatives, they could have easily said so as
they did in the other provisions of the Constitution.
IV
The composition of the JBC providing for three exofficio members is purposely designed for a
balanced representation of each of the three
branches of the government.
The ambiguity having resulted from a plain case of

inadvertence, the respondents urge the Court to
look beyond the letter of the disputed provision
because the literal adherence to its language would
produce absurdity and incongruity to the bicameral
nature of Congress. 19 In other words, placing
either of the respondents in the JBC will effectively
deprive a house of Congress of its representation.
In the same vein, the electorate represented by
Members of Congress will lose their only
opportunity to participate in the nomination process
for the members of the Judiciary, effectively
diminishing the republican nature of the
government. 20
V
One of the two (2) members of the JBC from
Congress has no right (not even 1/2 right) to sit in
the said constitutional body and perform the duties
and functions of a member thereof.
VI
The JBC cannot conduct valid proceedings as its
composition is illegal and unconstitutional. 10
The respondents further argue that the allowance

of two (2) representatives of Congress to be
members of the JBC does not render the latter's
purpose nugatory. While they admit that the
purpose in creating the JBC was to insulate
appointments to the Judiciary from political
influence, they likewise cautioned the Court that
this constitutional vision did not intend to entirely
preclude political factor in said appointments.
Therefore, no evil should be perceived in the
current set-up of the JBC because two (2)
members
coming
from
Congress,
whose
membership to certain political parties is irrelevant,
does not necessarily amplify political partisanship in
the JBC. In fact, the presence of two (2) members
from Congress will most likely provide balance as
against the other six (6) members who are
undeniably presidential appointees. 21
On July 9, 2012, the JBC filed its Comment. 11 It,

however, abstained from recommending on how
this constitutional issue should be disposed in
gracious deference to the wisdom of the Court.
Nonetheless, the JBC was more than generous
enough to offer the insights of various personalities
previously connected with it. 12
Through the Office of the Solicitor General (OSG),
respondents defended their position as members of
the JBC in their Comment 13 filed on July 12, 2012.
According to them, the crux of the controversy is
the phrase "a representative of Congress." 14
Reverting to the basics, they cite Section 1, Article
VI of the Constitution 15 to determine the meaning
of the term "Congress." It is their theory that the two
houses, the Senate and the House of
Representatives, are permanent and mandatory
components of "Congress," such that the absence
of either divests the term of its substantive meaning
as expressed under the Constitution. In simplistic
terms, the House of Representatives, without the
Senate and vice-versa, is not Congress. 16
Bicameralism, as the system of choice by the
Framers, requires that both houses exercise their
respective powers in the performance of its
mandated duty which is to legislate. Thus, when
Section 8 (1), Article VIII of the Constitution speaks
of "a representative from Congress," it should mean
one representative each from both Houses which
comprise the entire Congress. 17 cICHTD
The Issues
In resolving the procedural and substantive issues
arising from the petition, as well as the myriad of
counter-arguments proffered by the respondents,
the Court synthesized them into two:
(1) Whether or not the conditions sine qua non for
the exercise of the power of judicial review have
been met in this case; and
(2) Whether or not the current practice of the JBC
to perform its functions with eight (8) members, two
(2) of whom are members of Congress, runs
counter to the letter and spirit of the 1987
Constitution.
Tracing the subject provision's history, the

respondents claim that when the JBC was
The Power of Judicial Review

120
In its Comment, the JBC submits that petitioner is

clothed with locus standi to file the petition, as a
citizen and taxpayer, who has been nominated to
the position of Chief Justice. 22 CIDTcH
The Courts' power of judicial review, like almost all

other powers conferred by the Constitution,is
subject to several limitations, namely: (1) there
must be an actual case or controversy calling for
the exercise of judicial power; (2) the person
challenging the act must have "standing" to
challenge; he must have a personal and substantial
interest in the case, such that he has sustained or
will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality
must be raised at the earliest possible opportunity;
and (4) the issue of constitutionality must be the
very lis mota of the case. 27 Generally, a party will
be allowed to litigate only when these conditions
sine qua non are present, especially when the
constitutionality of an act by a co-equal branch of
government is put in issue.
For the respondents, however, petitioner has no

"real interest" in questioning the constitutionality of
the JBC's current composition. 23 As outlined in
jurisprudence, it is well-settled that for locus standi
to lie, petitioner must exhibit that he has been
denied, or is about to be denied, of a personal right
or privilege to which he is entitled. Here, petitioner
failed to manifest his acceptance of his
recommendation to the position of Chief Justice,
thereby divesting him of a substantial interest in the
controversy. Without his name in the official list of
applicants for the post, the respondents claim that
there is no personal stake on the part of petitioner
that would justify his outcry of unconstitutionality.
Moreover, the mere allegation that this case is of
transcendental importance does not excuse the
waiver of the rule on locus standi, because, in the
first place, the case lacks the requisites therefor.
The respondents also question petitioner's belated
filing of the petition. 24 Being aware that the current
composition of the JBC has been in practice since
1994, petitioner's silence for eighteen (18) years
show that the constitutional issue being raised
before the Court does not comply with the "earliest
possible opportunity" requirement.
Anent locus standi, the question to be answered is

this: does the party possess a personal stake in the
outcome of the controversy as to assure that there
is real, concrete and legal conflict of rights and
duties from the issues presented before the Court?
In David v. Macapagal-Arroyo, 28 the Court
summarized the rules on locus standi as culled
from jurisprudence. There, it was held that
taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) cases involve constitutional issues; (2) for
taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax
measure is unconstitutional; (3) for voters, there
must be a showing of obvious interest in the validity
of the election law in question; (4) for concerned
citizens, there must be a showing that the issues
raised are of transcendental importance which must
be settled early; and (5) for legislators, there must
be a claim that the official action complained of
infringes upon their prerogatives as legislators.
Before addressing the above issues in seriatim, the

Court deems it proper to first ascertain the nature of
the petition. Pursuant to the rule that the nature of
an action is determined by the allegations therein
and the character of the relief sought, the Court
views the petition as essentially an action for
declaratory relief under Rule 63 of the 1997 Rules
of Civil Procedure. 25
The Constitution as the subject matter, and the
validity and construction of Section 8 (1), Article VIII
as the issue raised, the petition should properly be
considered as that which would result in the
adjudication of rights sans the execution process
because the only relief to be granted is the very
declaration of the rights under the document sought
to be construed. It being so, the original jurisdiction
over the petition lies with the appropriate Regional
Trial Court (RTC). Notwithstanding the fact that only
questions of law are raised in the petition, an action
for declaratory relief is not among those within the
original jurisdiction of this Court as provided in
Section 5, Article VIII of the Constitution. 26
In public suits, the plaintiff, representing the general

public, asserts a "public right" in assailing an
allegedly illegal official action. The plaintiff may be a
person who is affected no differently from any other
person, and can be suing as a "stranger," or as a
"citizen" or "taxpayer." Thus, taxpayers have been
allowed to sue where there is a claim that public
funds are illegally disbursed or that public money is
being deflected to any improper purpose, or that
public funds are wasted through the enforcement of
an invalid or unconstitutional law. Of greater import
than the damage caused by the illegal expenditure
of public funds is the mortal wound inflicted upon
the fundamental law by the enforcement of an
invalid statute. 29
At any rate, due to its serious implications, not only

to government processes involved but also to the
sanctity of the Constitution,the Court deems it more
prudent to take cognizance of it. After all, the
petition is also for prohibition under Rule 65
seeking to enjoin Congress from sending two (2)
representatives with one (1) full vote each to the
JBC. SDHETI
In this case, petitioner seeks judicial intervention as

a taxpayer, a concerned citizen and a nominee to
the position of Chief Justice of the Supreme Court.
As a taxpayer, petitioner invokes his right to
demand that the taxes he and the rest of the
citizenry have been paying to the government are
spent for lawful purposes. According to petitioner,
"since the JBC derives financial support for its
121
functions, operation and proceedings from taxes

paid, petitioner possesses as taxpayer both right
and legal standing to demand that the JBC's
proceedings are not tainted with illegality and that
its composition and actions do not violate the
Constitution." 30 cSaADC
societal ramifications of the issues raised. It cannot

be gainsaid that the JBC is a constitutional
innovation crucial in the selection of the magistrates
in our judicial system.
The Composition of the JBC
Central to the resolution of the foregoing petition is
an understanding of the composition of the JBC as
stated in the first paragraph of Section 8, Article VIII
of the Constitution. It reads:
Notably, petitioner takes pains in enumerating past

actions that he had brought before the Court where
his legal standing was sustained. Although this
inventory is unnecessary to establish locus standi
because obviously, not every case before the Court
exhibits similar issues and facts, the Court
recognizes the petitioner's right to sue in this case.
Clearly, petitioner has the legal standing to bring
the present action because he has a personal stake
in the outcome of this controversy.

HTScEI
The Court disagrees with the respondents'

contention that petitioner lost his standing to sue
because he is not an official nominee for the post of
Chief Justice. While it is true that a "personal stake"
on the case is imperative to have locus standi, this
is not to say that only official nominees for the post
of Chief Justice can come to the Court and
question the JBC composition for being
unconstitutional. The JBC likewise screens and
nominates other members of the Judiciary. Albeit
heavily publicized in this regard, the JBC's duty is
not at all limited to the nominations for the highest
magistrate in the land. A vast number of aspirants
to judicial posts all over the country may be
affected by the Court's ruling. More importantly, the
legality of the very process of nominations to the
positions in the Judiciary is the nucleus of the
controversy. The Court considers this a
constitutional issue that must be passed upon, lest
a constitutional process be plagued by misgivings,
doubts and worse, mistrust. Hence, a citizen has a
right to bring this question to the Court, clothed with
legal standing and at the same time, armed with
issues of transcendental importance to society. The
claim that the composition of the JBC is illegal and
unconstitutional is an object of concern, not just for
a nominee to a judicial post, but for all citizens who
have the right to seek judicial intervention for
rectification of legal blunders.
From a simple reading of the above-quoted

provision, it can readily be discerned that the
provision is clear and unambiguous. The first
paragraph calls for the creation of a JBC and
places the same under the supervision of the Court.
Then it goes to its composition where the regular
members are enumerated: a representative of the
Integrated Bar, a professor of law, a retired member
of the Court and a representative from the private
sector. On the second part lies the crux of the
present controversy. It enumerates the ex officio or
special members of the JBC composed of the Chief
Justice, who shall be its Chairman, the Secretary of
Justice and "a representative of Congress."
As petitioner correctly posits, the use of the singular
letter "a" preceding "representative of Congress" is
unequivocal and leaves no room for any other
construction. It is indicative of what the members of
the Constitutional Commission had in mind, that is,
Congress
may
designate
only
one
(1)
representative to the JBC. Had it been the intention
that more than one (1) representative from the
legislature would sit in the JBC, the Framers could
have, in no uncertain terms, so provided.
One of the primary and basic rules in statutory
construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be
given its literal meaning and applied without
attempted interpretation. 32 It is a well-settled
principle of constitutional construction that the
language employed in the Constitution must be
given their ordinary meaning except where
technical terms are employed. As much as
possible, the words of the Constitution should be
understood in the sense they have in common use.
What it says according to the text of the provision to
be construed compels acceptance and negates the
power of the courts to alter it, based on the
postulate that the framers and the people mean
what they say. 33 Verba legis non est recedendum
from the words of a statute there should be no
departure. 34
With respect to the question of transcendental

importance, it is not difficult to perceive from the
opposing arguments of the parties that the
determinants established in jurisprudence are
attendant in this case: (1) the character of the funds
or other assets involved in the case; (2) the
presence of a clear case of disregard of a
constitutional or statutory prohibition by the public
respondent agency or instrumentality of the
government; and (3) the lack of any other party with
a more direct and specific interest in the questions
being raised. 31 The allegations of constitutional
violations in this case are not empty attacks on the
wisdom of the other branches of the government.
The allegations are substantiated by facts and,
therefore, deserve an evaluation from the Court.
The Court need not elaborate on the legal and
122
JBC be composed of seven (7) members only.

Thus:
The raison d' tre for the rule is essentially twofold: First, because it is assumed that the words in
which constitutional provisions are couched
express the objective sought to be attained; 35 and
second, because the Constitution is not primarily a
lawyer's document but essentially that of the
people, in whose consciousness it should ever be
present as an important condition for the rule of law
to prevail. 36 EHASaD
MR. RODRIGO:
Let me go to another point then.
On page 2, Section 5, there is a novel provision
about the appointments of members of the
Supreme Court and judges of the lower courts. At
present it is the President who appoints them. If
there is a Commission on Appointments, then it is
the President with the confirmation of the
Commission on Appointment. In this proposal, we
would like to establish a new office, a sort of a
board composed of seven members called the
Judicial and Bar Council. And while the President
will still appoint the member of the judiciary, he will
be limited to the recommendees of this Council.
TAcDHS
Moreover, under the maxim noscitur a sociis, where

a particular word or phrase is ambiguous in itself or
is equally susceptible of various meanings, its
correct construction may be made clear and
specific by considering the company of words in
which it is founded or with which it is associated. 37
This is because a word or phrase in a statute is
always used in association with other words or
phrases, and its meaning may, thus, be modified or
restricted by the latter. 38 The particular words,
clauses and phrases should not be studied as
detached and isolated expressions, but the whole
and every part of the statute must be considered in
fixing the meaning of any of its parts and in order to
produce a harmonious whole. A statute must be so
construed as to harmonize and give effect to all its
provisions whenever possible. 39 In short, every
meaning to be given to each word or phrase must
be ascertained from the context of the body of the
statute since a word or phrase in a statute is always
used in association with other words or phrases
and its meaning may be modified or restricted by
the latter.
xxx xxx xxx

MR. RODRIGO.
Of the seven members of the Judicial and Bar
Council, the President appoints four of them who
are regular members.
xxx xxx xxx
MR. CONCEPCION.
The only purpose of the Committee is to eliminate
partisan politics. 43
Applying the foregoing principle to this case, it

becomes apparent that the word "Congress" used
in Article VIII, Section 8 (1) of the Constitution is
used in its generic sense. No particular allusion
whatsoever is made on whether the Senate or the
House of Representatives is being referred to, but
that, in either case, only a singular representative
may be allowed to sit in the JBC. The foregoing
declaration is but sensible, since, as pointed out by
an esteemed former member of the Court and
consultant of the JBC in his memorandum, 40 "from
the enumeration of the membership of the JBC, it is
patent that each category of members pertained to
a single individual only." 41
xxx xxx xxx

MR. RODRIGO.
If my amendment is approved, then the provision
will be exactly the same as the provision in the
1935 Constitution, Article VIII, Section 5.
xxx xxx xxx
If we do not remove the proposed amendment on
the creation of the Judicial and Bar Council, this will
be a diminution of the appointing power of the
highest magistrate of the land, of the President of
the Philippines elected by all the Filipino people.
The appointing power will be limited by a group of
seven people who are not elected by the people but
only appointed. TEcADS
Indeed, the spirit and reason of the statute may be

passed upon where a literal meaning would lead to
absurdity, contradiction, injustice, or defeat the
clear purpose of the lawmakers. 42 Not any of
these instances, however, is present in the case at
bench. Considering that the language of the subject
constitutional provision is plain and unambiguous,
there is no need to resort extrinsic aids such as
records of the Constitutional Commission.
Mr. Presiding Officer, if this Council is created,

there will be no uniformity in our constitutional
provisions on appointments. The members of the
Judiciary will be segregated from the rest of the
government. Even a municipal judge cannot be
appointed by the President except upon
recommendation or nomination of the three names
by this Committee of seven people, commissioners
of the Commission on Elections, the COA and the
Commission on Civil Service . . . even
Nevertheless, even if the Court should proceed to

look into the minds of the members of the
Constitutional Commission, it is undeniable from
the records thereof that it was intended that the
123
ambassadors, generals of the Army will not come

under this restriction. Why are we going to
segregate the Judiciary from the rest of our
government in the appointment of high-ranking
officials?
the Council consist of representatives from the

three main branches of government while the
regular members are composed of various
stakeholders in the judiciary. The unmistakeable
tenor of Article VIII, Section 8(1) was to treat each
ex-officio member as representing one co-equal
branch of government. . . . Thus, the JBC was
designed to have seven voting members with the
three ex-officio members having equal say in the
choice of judicial nominees.
Another reason is that this Council will be

ineffective. It will just besmirch the honor of our
President without being effective at all because this
Council will be under the influence of the President.
Four out of seven are appointees of the President
and they can be reappointed when their term ends.
Therefore, they would be kowtow the President. A
fifth member is the Minister of Justice, an alter ego
of the President. Another member represents the
Legislature. In all probability, the controlling part in
the legislature belongs to the President and,
therefore, this representative form the National
Assembly is also under the influence of the
President. And may I say, Mr. Presiding Officer, that
event the Chief Justice of the Supreme Court is an
appointee of the President. So it is futile he will be
influence anyway by the President. 44 [Emphases
supplied]
xxx xxx xxx

No parallelism can be drawn between the
representative of Congress in the JBC and the
exercise by Congress of its legislative powers
under Article VI and constituent powers under
Article XVII of the Constitution. Congress, in
relation to the executive and judicial branches of
government, is constitutionally treated as another
co-equal branch of in the matter of its
representative in the JBC. On the other hand, the
exercise of legislative and constituent powers
requires the Senate and House of Representatives
to coordinate and act as distinct bodies in
furtherance of Congress' role under our
constitutional scheme. While the latter justifies and,
in fact, necessitates the separateness of the two
houses of Congress as they relate inter se, no such
dichotomy need be made when Congress interacts
with the other two co-equal branches of
government.
At this juncture, it is worthy to note that the sevenmember composition of the JBC serves a practical
purpose, that is, to provide a solution should there
be a stalemate in voting. This underlying reason
leads the Court to conclude that a single vote may
not be divided into half (1/2), between two
representatives of Congress, or among any of the
sitting members of the JBC for that matter. This
unsanctioned practice can possibly cause disorder
and eventually muddle the JBC's voting process,
especially in the event a tie is reached. The
aforesaid purpose would then be rendered illusory,
defeating the precise mechanism which the
Constitution itself created. While it would be
unreasonable to expect that the Framers provide
for every possible scenario, it is sensible to
presume that they knew that an odd composition is
the best means to break a voting deadlock. aDSTIC
It is more in keeping with the co-equal nature of the

three governmental branches to assign the same
weight to considerations that any of its
representatives may have regarding aspiring
nominees to the judiciary. The representatives of
the Senate and the House of Representatives act
as such for one branch and should not have any
more quantitative influence as the other branches
in the exercise of prerogatives evenly bestowed
upon the three. Sound reason and principle of
equality among the three branches support this
conclusion. [Emphases and underscoring supplied]
The respondents insist that owing to the bicameral

nature of Congress, the word "Congress" in Section
8 (1), Article VIII of the Constitution should be read
as including both the Senate and the House of
Representatives. They theorize that it was so
worded because at the time the said provision was
being drafted, the Framers initially intended a
unicameral form of Congress. Then, when the
Constitutional Commission eventually adopted a
bicameral form of Congress, the Framers, through
oversight, failed to amend Article VIII, Section 8 of
the Constitution. 45 On this score, the Court cites
the insightful analysis of another member of the
Court and JBC consultant, retired Justice Consuelo
Ynares-Santiago. 46 Thus:
More than the reasoning provided in the above

discussed rules of constitutional construction, the
Court finds the above thesis as the paramount
justification of the Court's conclusion that
"Congress," in the context of JBC representation,
should be considered as one body. It is evident that
the definition of "Congress" as a bicameral body
refers to its primary function in government to
legislate. 47 In the passage of laws, the
Constitution is explicit in the distinction of the role of
each house in the process. The same holds true in
Congress' non-legislative powers such as, inter
alia, the power of appropriation, 48 the declaration
of an existence of a state of war, 49 canvassing of
electoral returns for the President and VicePresident, 50 and impeachment. 51 In the exercise
of these powers, the Constitution employs precise
language in laying down the roles which a particular
house plays, regardless of whether the two houses
A perusal of the records of the Constitutional

Commission reveals that the composition of the
JBC reflects the Commission's desire "to have in
the Council a representation for the major elements
of the community." . . . The ex-officio members of
124
consummate an official act by voting jointly or

separately. An inter-play between the two houses is
necessary in the realization of these powers
causing a vivid dichotomy that the Court cannot
simply
discount.
Verily,
each
house
is
constitutionally granted with powers and functions
peculiar to its nature and with keen consideration to
1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and
balances, to the other branches of government.
HSTAcI
against that mandate. Section 8 (1), Article VIII of

the Constitution,providing Congress with an equal
voice with other members of the JBC in
recommending appointees to the Judiciary is
explicit. Any circumvention of the constitutional
mandate should not be countenanced for the
Constitution is the supreme law of the land. The
Constitution is the basic and paramount law to
which all other laws must conform and to which all
persons, including the highest officials of the land,
must defer. Constitutional doctrines must remain
steadfast no matter what may be the tides of time.
It cannot be simply made to sway and
accommodate the call of situations and much more
tailor itself to the whims and caprices of the
government and the people who run it. 55 Hence,
any act of the government or of a public official or
employee which is contrary to the Constitution is
illegal, null and void.
This, however, cannot be said in the case of JBC

representation because no liaison between the two
houses exists in the workings of the JBC. No
mechanism is required between the Senate and the
House of Representatives in the screening and
nomination of judicial officers. Hence, the term
"Congress" must be taken to mean the entire
legislative department. A fortiori, a pretext of
oversight cannot prevail over the more pragmatic
scheme which the Constitution laid with firmness,
that is, that the JBC has a seat for a single
representative of Congress, as one of the co-equal
branches of government.
As to the effect of the Court's finding that the

current composition of the JBC is unconstitutional,
it bears mentioning that as a general rule, an
unconstitutional act is not a law; it confers no rights;
it imposes no duties; it affords no protection; it
creates no office; it is inoperative as if it has not
been passed at all. 56 This rule, however, is not
absolute. In the interest of fair play under the
doctrine of operative facts, actions previous to the
declaration of unconstitutionality are legally
recognized. They are not nullified. In Planters
Products, Inc. v. Fertiphil Corporation, 57 the Court
explained: CEDHTa
Doubtless, the Framers of our Constitution intended

to create a JBC as an innovative solution in
response to the public clamor in favor of eliminating
politics in the appointment of members of the
Judiciary. 52 To ensure judicial independence, they
adopted a holistic approach and hoped that, in
creating a JBC, the private sector and the three
branches of government would have an active role
and equal voice in the selection of the members of
the Judiciary.
The doctrine of operative fact, as an exception to

the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an
unconstitutional law by recognizing that the
existence of a statute prior to a determination of
unconstitutionality is an operative fact and may
have consequences which cannot always be
ignored. The past cannot always be erased by a
new judicial declaration.
Therefore, to allow the Legislature to have more

quantitative influence in the JBC by having more
than one voice speak, whether with one full vote or
one-half (1/2) a vote each, would, as one former
congressman and member of the JBC put it,
"negate the principle of equality among the three
branches of government which is enshrined in the
Constitution." 53 EAISDH
The doctrine is applicable when a declaration of

unconstitutionality will impose an undue burden on
those who have relied on the invalid law. Thus, it
was applied to a criminal case when a declaration
of unconstitutionality would put the accused in
double jeopardy or would put in limbo the acts done
by a municipality in reliance upon a law creating it.
To quote one former Secretary of Justice:

The present imbalance in voting power between the
Legislative and the other sectors represented in the
JBC must be corrected especially when considered
vis- -vis the avowed purpose for its creation, i.e.,
to insulate the appointments in the Judiciary
against political influence. By allowing both houses
of Congress to have a representative in the JBC
and by giving each representative one (1) vote in
the Council, Congress, as compared to the other
members of the JBC, is accorded greater and
unwarranted influence in the appointment of
judges. 54 [Emphasis supplied]
Considering the circumstances, the Court finds the

exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in
the current composition of the JBC, all its prior
official actions are nonetheless valid.
At this point, the Court takes the initiative to clarify
that it is not in a position to determine as to who
should remain as the sole representative of
Congress in the JBC. This is a matter beyond the
province of the Court and is best left to the
determination of Congress.
It is clear, therefore, that the Constitution mandates

that the JBC be composed of seven (7) members
only. Thus, any inclusion of another member,
whether with one whole vote or half (1/2) of it, goes
125
Finally, while the Court finds wisdom in

respondents' contention that both the Senate and
the House of Representatives should be equally
represented in the JBC, the Court is not in a
position to stamp its imprimatur on such a
construction at the risk of expanding the meaning of
the Constitution as currently worded. Needless to
state, the remedy lies in the amendment of this
constitutional provision. The courts merely give
effect to the lawgiver's intent. The solemn power
and duty of the Court to interpret and apply the law
does not include the power to correct, by reading
into the law what is not written therein.
This resolves the Motion for Reconsideration 1 filed

by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph
G. Escudero and Congressman Niel C. Tupas, Jr.
(respondents), duly opposed 2 by the petitioner,
former Solicitor General Francisco I. Chavez
(petitioner).
By way of recapitulation, the present action
stemmed from the unexpected departure of former
Chief Justice Renato C. Corona on May 29, 2012,
and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner
asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987
Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of
having two (2) representatives from each House of
Congress with one (1) vote each is sanctioned by
the Constitution.

current numerical composition of the Judicial and
Bar Council is declared UNCONSTITUTIONAL.
The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of
Congress will sit as a representative in its
proceedings, in accordance with Section 8 (1),
Article VIII of the 1987 Constitution. HIcTDE
On July 17, 2012, the Court handed down the

assailed subject decision, disposing the same in
the following manner:
This disposition is immediately executory.

SO ORDERED.

current numerical composition of the Judicial and
Bar Council is declared UNCONSTITUTIONAL.
The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of
Congress will sit as a representative in its
proceedings, in accordance with Section 8(1),
Article VIII of the 1987 Constitution.
Peralta, Bersamin, Villarama, Jr., Perez, Reyes and

Perlas-Bernabe, JJ., concur.
Carpio, * J., took no part. I am a nominee to the CJ
position.
Velasco, Jr., * J., took no part. I am being
considered for nomination by the JBC.
This disposition is immediately executory.

Leonardo-de Castro, * J., took no part. I am one of
the incumbent Justices being considered by the
JBC for nomination to CJ position.
SO ORDERED.
On July 31, 2012, following respondents' motion for
reconsideration and with due regard to Senate
Resolution Nos. 111, 3 112, 4 113, 5 and 114, 6 the
Court set the subject motion for oral arguments on
August 2, 2012. 7 On August 3, 2012, the Court
discussed the merits of the arguments and agreed,
in the meantime, to suspend the effects of the
second paragraph of the dispositive portion of the
July 17, 2012 Decision which decreed that it was
immediately executory. The decretal portion of the
August 3, 2012 Resolution 8 reads: SDTIaE
Brion, ** J., took no part.

Del Castillo, J., I join the dissent of J. Abad.
Abad, J., see my dissenting opinion.
Sereno, L* J., took no part a nominee for CJ.
||| (Chavez v. Judicial and Bar Council, G.R. No.
202242, [July 17, 2012], 691 PHIL 173-216)
9. CHAVEZ VS. JBC 696 SCRA 496 (2013)
WHEREFORE, the parties are hereby directed to

submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court
hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court's
July 17, 2012 Decision, which reads: "This
disposition is immediately executory." 9
EN BANC
[G.R. No. 202242. April 16, 2013.]
FRANCISCO I. CHAVEZ, petitioner, vs. JUDICIAL
AND BAR COUNCIL, SEN. FRANCIS JOSEPH G.
ESCUDERO and REP. NIEL C. TUPAS, JR.,
respondents.
Pursuant to the same resolution, petitioner and

respondents filed their respective memoranda. 10
RESOLUTION
Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the
birth of the Philippine Republic, the exercise of
MENDOZA, J p:
126
appointing members of the Judiciary has always

been the exclusive prerogative of the executive and
legislative branches of the government. Like their
progenitor of American origins, both the Malolos
Constitution 11 and the 1935 Constitution 12 vested
the power to appoint the members of the Judiciary
in the President, subject to confirmation by the
Commission on Appointments. It was during these
times that the country became witness to the
deplorable
practice
of
aspirants
seeking
confirmation of their appointment in the Judiciary to
ingratiate themselves with the members of the
legislative body. 13
Through the subject motion, respondents pray that

the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing
only one representative from Congress in the JBC
would lead to absurdity considering its bicameral
nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from
unilateralism to bicameralism was a plain oversight;
3] that two representatives from Congress would
not subvert the intention of the Framers to insulate
the JBC from political partisanship; and 4] that the
rationale of the Court in declaring a seven-member
composition would provide a solution should there
be a stalemate is not exactly correct. ASaTHc
Then, under the 1973 Constitution, 14 with the

fusion of the executive and legislative powers in
one body, the appointment of judges and justices
ceased to be subject of scrutiny by another body.
The power became exclusive and absolute to the
Executive, subject only to the condition that the
appointees must have all the qualifications and
none of the disqualifications.
While the Court may find some sense in the

reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself
unable to reverse the assailed decision on the
principal issues covered by the first and second
grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and
second grounds, carries greater bearing in the final
resolution of this case.
Prompted by the clamor to rid the process of

appointments to the Judiciary of the evils of political
pressure and partisan activities, 15 the members of
the Constitutional Commission saw it wise to create
a separate, competent and independent body to
recommend nominees to the President. Thus, it
conceived of a body, representative of all the
stakeholders in the judicial appointment process,
and called it the Judicial and Bar Council (JBC).
The Framers carefully worded Section 8, Article VIII
of the 1987 Constitution in this wise: EcDSHT
As these two issues are interrelated, the Court shall

discuss them jointly. ISCHET
Ruling of the Court
The Constitution evinces the direct action of the
Filipino people by which the fundamental powers of
government are established, limited and defined
and by which those powers are distributed among
the several departments for their safe and useful
exercise for the benefit of the body politic. 19 The
Framers reposed their wisdom and vision on one
suprema lex to be the ultimate expression of the
principles and the framework upon which
government and society were to operate. Thus, in
the interpretation of the constitutional provisions,
the Court firmly relies on the basic postulate that
the Framers mean what they say. The language
used in the Constitution must be taken to have
been deliberately chosen for a definite purpose.
Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must
be maintained inviolate against disobedience and
defiance. What the Constitution clearly says,
according to its text, compels acceptance and bars
modification even by the branch tasked to interpret
it.

From the moment of the creation of the JBC,
Congress designated one (1) representative to sit
in the JBC to act as one of the ex-officio members.
16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each
House sent a representative to the JBC, not
together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC
was substantially altered. An eighth member was
added to the JBC as the two (2) representatives
from Congress began sitting simultaneously in the
JBC, with each having one-half (1/2) of a vote. 17
For this reason, the Court cannot accede to the

argument of plain oversight in order to justify
constitutional construction. As stated in the July 17,
2012 Decision, in opting to use the singular letter
"a" to describe "representative of Congress," the
Filipino people through the Framers intended that
Congress be entitled to only one (1) seat in the
JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so
provided, as can be read in its other provisions.
In 2001, the JBC En Banc decided to allow the

representatives from the Senate and the House of
Representatives one full vote each. 18 It has been
the situation since then.
Grounds relied upon by Respondents
A reading of the 1987 Constitution would reveal that

several provisions were indeed adjusted as to be in
127
tune with the shift to bicameralism. One example is

Section 4, Article VII, which provides that a tie in
the presidential election shall be broken "by a
majority of all the Members of both Houses of the
Congress, voting separately." 20 Another is Section
8 thereof which requires the nominee to replace the
Vice-President to be confirmed "by a majority of all
the Members of both Houses of the Congress,
voting separately." 21 Similarly, under Section 18,
the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus may be
revoked or continued by the Congress, voting
separately, by a vote of at least a majority of all its
Members." 22 In all these provisions, the bicameral
nature of Congress was recognized and, clearly,
the corresponding adjustments were made as to
how a matter would be handled and voted upon by
its two Houses. CaSHAc
representatives from the major branches of

government the Chief Justice as ex-officio
Chairman (representing the Judicial Department),
the Secretary of Justice (representing the Executive
Department), and a representative of the Congress
(representing the Legislative Department). The total
is seven (7), not eight. In so providing, the Framers
simply gave recognition to the Legislature, not
because it was in the interest of a certain
constituency, but in reverence to it as a major
branch of government. DCSTAH
On this score, a Member of Congress, Hon.
Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered
position 28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be
only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the
1987 Constitution . . . .
Thus, to say that the Framers simply failed to adjust

Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the
legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a
conclusion favorable to them. It is very clear that
the Framers were not keen on adjusting the
provision on congressional representation in the
JBC because it was not in the exercise of its
primary function to legislate. JBC was created to
support the executive power to appoint, and
Congress, as one whole body, was merely
assigned a contributory non-legislative function.
The aforesaid provision is clear and unambiguous

and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated
doctrine that "construction and interpretation come
only after it has been demonstrated that application
is impossible or inadequate without them."
Further, to allow Congress to have two
representatives in the Council, with one vote each,
is to negate the principle of equality among the
three branches of government which is enshrined in
the Constitution.
The underlying reason for such a limited

participation can easily be discerned. Congress has
two (2) Houses. The need to recognize the
existence and the role of each House is essential
considering that the Constitution employs precise
language in laying down the functions which
particular House plays, regardless of whether the
two Houses consummate an official act by voting
jointly or separately. Whether in the exercise of its
legislative 23 or its non-legislative functions such as
inter alia, the power of appropriation, 24 the
declaration of an existence of a state of war, 25
canvassing of electoral returns for the President
and Vice-President, 26 and impeachment, 27 the
dichotomy of each House must be acknowledged
and recognized considering the interplay between
these two Houses. In all these instances, each
House is constitutionally granted with powers and
functions peculiar to its nature and with keen
consideration to 1) its relationship with the other
chamber; and 2) in consonance with the principle of
checks and balances, as to the other branches of
government.
In view of the foregoing, I vote for the proposition

that the Council should adopt the rule of single
representation of Congress in the JBC in order to
respect and give the right meaning to the abovequoted provision of the Constitution. (Emphases
and underscoring supplied)
On March 14, 2007, then Associate Justice
Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC
Chairman his opinion, 29 which reads: EScAID
8. Two things can be gleaned from the excerpts
and citations above: the creation of the JBC is
intended to curtail the influence of politics in
Congress in the appointment of judges, and the
understanding is that seven (7) personswill
compose the JBC. As such, the interpretation of
two votes for Congress runs counter to the
intendment of the framers. Such interpretation
actually gives Congress more influence in the
appointment of judges. Also, two votes for
Congress would increase the number of JBC
members to eight, which could lead to voting
deadlock
by
reason
of
even-numbered
membership, and a clear violation of 7 enumerated
members in the Constitution. (Emphases and
underscoring supplied)
In checkered contrast, there is essentially no

interaction between the two Houses in their
participation in the JBC. No mechanism is required
between the Senate and the House of
Representatives in the screening and nomination of
judicial officers. Rather, in the creation of the JBC,
the Framers arrived at a unique system by adding
to the four (4) regular members, three (3)
128
In an undated position paper, 30 then Secretary of

Justice Agnes VST Devanadera opined:
the Senate and the House of Representatives act

as such for one branch and should not have any
more quantitative influence as the other branches
in the exercise of prerogatives evenly bestowed
upon the three. Sound reason and principle of
equality among the three branches support this
conclusion. [Emphases and underscoring supplied]
As can be gleaned from the above constitutional

provision, the JBC is composed of seven (7)
representatives coming from different sectors. From
the enumeration it is patent that each category of
members pertained to a single individual only.
Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond
dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress"
shall have only ". . . a representative." Thus, two (2)
representatives from Congress would increase the
number of JBC members to eight (8), a number
beyond what the Constitution has contemplated.
(Emphases and underscoring supplied)
The argument that a senator cannot represent a

member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC,
any member of Congress, whether from the Senate
or the House of Representatives, is constitutionally
empowered to represent the entire Congress. It
may be a constricted constitutional authority, but it
is not an absurdity. aSDHCT
From this score stems the conclusion that the lone
representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the
scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only
can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence
of what the Constitution authorized. After all, basic
and reasonable is the rule that what cannot be
legally done directly cannot be done indirectly. To
permit or tolerate the splitting of one vote into two
or more is clearly a constitutional circumvention
that cannot be countenanced by the Court.
Succinctly put, when the Constitution envisioned
one member of Congress sitting in the JBC, it is
sensible to presume that this representation carries
with him one full vote.
In this regard, the scholarly dissection on the matter

by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating. 31
Thus:
A perusal of the records of the Constitutional
Commission reveals that the composition of the
JBC reflects the Commission's desire "to have in
the Council a representation for the major elements
of the community." . . . The ex-officio members of
the Council consist of representatives from the
three main branches of government while the
regular members are composed of various
stakeholders in the judiciary. The unmistakeable
tenor of Article VIII, Section 8(1) was to treat each
ex-officio member as representing one co-equal
branch of government. . . . Thus, the JBC was
designed to have seven voting members with the
three ex-officio members having equal say in the
choice of judicial nominees. SEHaTC
It is also an error for respondents to argue that the

President, in effect, has more influence over the
JBC simply because all of the regular members of
the JBC are his appointees. The principle of checks
and balances is still safeguarded because the
appointment of all the regular members of the JBC
is subject to a stringent process of confirmation by
the Commission on Appointments, which is
composed of members of Congress.
xxx xxx xxx

No parallelism can be drawn between the
representative of Congress in the JBC and the
exercise by Congress of its legislative powers
under Article VI and constituent powers under
Article XVII of the Constitution. Congress, in
relation to the executive and judicial branches of
government, is constitutionally treated as another
co-equal branch in the matter of its representative
in the JBC. On the other hand, the exercise of
legislative and constituent powers requires the
Senate and the House of Representatives to
coordinate and act as distinct bodies in furtherance
of Congress' role under our constitutional scheme.
While the latter justifies and, in fact, necessitates
the separateness of the two Houses of Congress
as they relate inter se, no such dichotomy need be
made when Congress interacts with the other two
co-equal branches of government.
Respondents' contention that the current irregular

composition of the JBC should be accepted, simply
because it was only questioned for the first time
through the present action, deserves scant
consideration. Well-settled is the rule that acts done
in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain
acceptance under the doctrine of estoppel or
laches, because once an act is considered as an
infringement of the Constitution it is void from the
very beginning and cannot be the source of any
power or authority. EaHcDS
It would not be amiss to point out, however, that as
a general rule, an unconstitutional act is not a law;
it confers no rights; it imposes no duties; it affords
no protection; it creates no office; it is inoperative
as if it has not been passed at all. This rule,
however, is not absolute. Under the doctrine of
operative facts, actions previous to the declaration
It is more in keeping with the co-equal nature of the

three governmental branches to assign the same
weight to considerations that any of its
representatives may have regarding aspiring
nominees to the judiciary. The representatives of
129
of unconstitutionality are legally recognized. They

are not nullified. This is essential in the interest of
fair play. To reiterate the doctrine enunciated in
Planters Products, Inc. v. Fertiphil Corporation: 32
should never be allowed to become judicial

exuberance. 38 In cases like this, no amount of
practical logic or convenience can convince the
Court to perform either an excision or an insertion
that will change the manifest intent of the Framers.
To broaden the scope of congressional
representation in the JBC is tantamount to the
inclusion of a subject matter which was not
included in the provision as enacted. True to its
constitutional mandate, the Court cannot craft and
tailor constitutional provisions in order to
accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To
the exercise of this intrusion, the Court declines.
The doctrine of operative fact, as an exception to

the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an
unconstitutional law by recognizing that the
existence of a statute prior to a determination of
unconstitutionality is an operative fact and may
have consequences which cannot always be
ignored. The past cannot always be erased by a
new judicial declaration. The doctrine is applicable
when a declaration of unconstitutionality will impose
an undue burden on those who have relied on the
invalid law. Thus, it was applied to a criminal case
when a declaration of unconstitutionality would put
the accused in double jeopardy or would put in
limbo the acts done by a municipality in reliance
upon a law creating it. 33
WHEREFORE, the Motion for Reconsideration filed

by respondents is hereby DENIED. SIaHTD
The suspension of the effects of the second
paragraph of the dispositive portion of the July 17,
2012 Decision of the Court, which reads, "This
disposition is immediately executory," is hereby
LIFTED.
Under the circumstances, the Court finds the

exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in
the current composition of the JBC, all its prior
official actions are nonetheless valid.
SO ORDERED.
Carpio, Leonardo-de Castro, Peralta, Bersamin,
Villarama, Jr., Perez, Reyes and Perlas-Bernabe,
JJ., concur.
Considering that the Court is duty bound to protect

the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what
respondents perceive as a mistake in its mandate.
Neither can the Court, in the exercise of its power
to interpret the spirit of the Constitution, read into
the law something that is contrary to its express
provisions and justify the same as correcting a
perceived inadvertence. To do so would otherwise
sanction the Court action of making amendment to
the Constitution through a judicial pronouncement.
IEDaAc
Sereno, C.J., took no part as I am chairperson of

JBC.
Velasco, Jr., J., took no part due to participation in
JBC.
Brion, J., took no part.
Del Castillo, J., I join the dissent of J. Abad.
Abad, J., see my dissenting opinion.
In other words, the Court cannot supply the

legislative omission. According to the rule of casus
omissus "a case omitted is to be held as
intentionally omitted." 34 "The principle proceeds
from a reasonable certainty that a particular person,
object or thing has been omitted from a legislative
enumeration." 35 Pursuant to this, "the Court
cannot under its power of interpretation supply the
omission even though the omission may have
resulted from inadvertence or because the case in
question was not foreseen or contemplated." 36
"The Court cannot supply what it thinks the
legislature would have supplied had its attention
been called to the omission, as that would be
judicial legislation." 37
Leonen, J., see separate dissenting opinion.

||| (Chavez v. Judicial and Bar Council, G.R. No.
202242 (Resolution), [April 16, 2013], 709 PHIL
478-523)
B. Basic Principles on the Fundamental Powers of
the State, their characteristics, similarities and
distinctions, and their limitations
C. DUE PROCESS IN GENERAL Article III,
Section 1, 1987 Constitution
Annotation on Due Process 627 SCRA 558
Stated differently, the Court has no power to add

another member by judicial construction.
AN N O TAT I O N
DUE PROCESS
The call for judicial activism fails to stir the

sensibilities of the Court tasked to guard the
Constitution against usurpation. The Court remains
steadfast in confining its powers in the sphere
granted by the Constitution itself. Judicial activism
By
ALICIA GONZALEZ-DECANO*
___________________
I.
Preliminary Statement, p. 558
II.
Due Process Defined, p. 559
130
III. Jurisprudence on Due Process, p. 560

IV.
Illustrative Cases, p. 560
___________________
I.Preliminary Statement
The following cases are illustrative of all these

kinds of due process:
1.In the case of Manuel Roxas, et al. vs.
Vasquez, G.R. No. 114944, May 29, 2002, 382
SCRA 396, the Supreme Court held:
x x x It appears that petitioners were deprived of
due process when the Special Prosecutor
reinstated the complaint against them without their
knowledge. Due process of law requires that every
litigant must be given an opportunity to be heard.
He has the right to be present and defend himself
in person at every stage of the proceedings. x x x
The Highest Tribunal continued:
x x x It did not give petitioners notice of the
reinvestigation, which would have enabled them to
participate in the proceedings. But when it later
found probable cause against petitioners, it should
have first given them notice and afforded them an
opportunity to be heard before ordering their
inclusion in Criminal Case No. 18956. The finding
of probable cause against petitioners in
proceedings which they had neither knowledge of
nor participation in (sic) violated their right to
procedural due process. At the very least, they
should have been notified that the complaint
against them has not yet been finally disposed of;
or that the fight was not yet over, so to speak. They
should have been apprised of their possible
implication in the criminal case to enable them to
meet any new accusations against them head-on,
and to prepare for their defense. x x x
2.People vs. Lacson, G.R. No. 149453, May 28,
2002, 382 SCRA 365, postulates the doctrine of
due process when the Highest Tribunal decreed:
x x x Fundamental fairness requires that both the
prosecution and the accused should be afforded
the opportunity to be heard and to adduce evidence
on the presence or absence of the predicate facts
upon which the application of the new rule
depends. In the light of the lack of or the conflicting
evidence in the various requirements to determine
the applicability of Section 8, Rule 117, this Court is
not in a position to rule whether or not the refiling of
the cases for multiple murder against respondent
Lacson should be enjoined. The predicate facts
involved disputed facts and arguable questions of
law. The reception of evidence on these various
issues cannot be done in this Court but before the
trial court. x x x
3.People vs. Alcalde, G.R. Nos. 139225-28, May
29, 2002, 382 SCRA 621, elucidates the violation of
due process.
Said the Supreme Court:
x x x The constitutional right to be informed of the
nature and cause of the accusation against him
under the Bill of Rights carries with it the correlative
obligation to effectively convey to the accused the
information to enable him to effectively prepare for
his defense. At the bottom is the issue of fair trial.
While not every aberration of the mind or exhibition
of mental deficiency on the part of the accused is
sufficient to justify suspension of the proceedings,
the trial court must be fully satisfied that the
accused would have a fair trial with the assistance
the law secures or gives. Under the circumstances
Our countrymen clamor for justice as many of them

are deprived of such priceless jewel of democracy.
As we looked around, we see various shocking
incidents of life such as: carefree innocent young
children being locked up in jail; bystanders,
protesters, demonstrators, being picked up and
ganged up; young boys and girls in school being
kidnapped; women roaming around the cities of
Metro Manila, either for the purpose of looking for
odd jobs or wandering just to view the cities of
pleasure, money and sins; and men and women
languishing in jail, whose cases have never been
terminated due to the snail pace of justice, without
due process.
It is on this scenario that this article is thought of.
Before going into the doctrines or jurisprudence on
due process, a definition of term is in order.
II.Due Process Defined
Due process is a law which hears before it
condemns; which proceeds upon inquiry, and
renders judgment only after trial (Raquiza vs.
Bradford, 75 Phil. 50, cited by Sibal, Philippine
Legal Encyclopedia, Central Book Supply, Inc.,
Q.C., 1986, p. 257)
Due process of law does not necessarily mean a
judicial proceeding in the regular courts. The
guarantee of due process, viewed in its procedural
aspect, requires no particular form of procedure. It
implies due notice to the individual of the
proceedings, an opportunity to defend himself and
the problem of the propriety of the deprivations,
under the circumstances presented, must be
resolved in a manner consistent with essential
fairness. It means essentially a fair and imported
trust and reasonable opportunity for the preparation
of defense. (Aquino, Jr. vs. Military Commission,
No. 2, 63 SCRA 546 [1975], cited by Sibal, supra)
Procedure is merely means to an end, and rules of
procedure must be construed liberally so as to
afford litigants a speedy and inexpensive means of
resolving their controversy. On the other hand, the
principle of due process, in general means simply
that before a party may be held bound by court
proceedings, he must have been impleaded therein
or notified thereof and thus given an opportunity to
defend his rights. (Torres vs. Caluag, 17 SCRA 808
[1966], cited by Sibal, supra)
III.Jurisprudence on Due Process
Due process may be procedural, or may be a
denial of the constitutional processes. Procedural,
when the regular rules of law are complied with.
Constitutional due process, when the elements or
the material requirements of the Constitution are
complied with.
Due process may likewise be criminal due process
which requires that the accused must be proceeded
against under the orderly processes of law. There is
likewise known due process in labor cases.
IV.Illustrative Cases
131
in these cases, the trial court gravely failed in this

regard. x x x
The Highest Tribunal decreed further:
x x x Even if the zeal of an accuseds lawyer fell
short of that required of him, that is, for him to have
asked the court to suspend the arraignment of his
client on the ground of the latters unsound mental
health, the greater demand of due process
overwhelms such inadequate zeal. It is also worthy
to maintain Atty. Vasquezs apparent lackadaisical
attitude in these cases which amounted to
disregard of the strict demand of fidelity to his oath
as a lawyer, duty to his client, and responsibility as
an officer of the court. He knew from the very
beginning that Arnel was hospitalized for mental
disorder. The latters strange appearance at his
arraignment was enough reason for a counsel to
ask for the deferment of arraignment and for leave
of court to have Arnel subjected to psychological
examination and psychiatric evaluation. Then, too,
he should have presented the doctor who treated
Arnel in the UST hospital for his recurring mental
illness. Irrefutably, Atty. Vasquezs behavior in the
defense of Arnel, fell short of the demanding duty to
present every defense that the law permits to the
end that no person may be deprived of life or liberty
but by due process of law. Even if Atty. Vasquezs
zeal for Arnels case fell short of that required of
him, that is, for him to have asked the court to
suspend the arraignment of Arnel, on the ground of
the latters unsound mental health, the greater
demand of due process overwhelms such
inadequate zeal.
4.People vs. Bernas, G.R. Nos. 133583-85,
February 20, 2002, 377 SCRA 391, illustrates the
details of due process when an accused pleads
guilty to a capital offense before the court. Due
process dictates that the ruling of the Supreme
Court in the above-entitled case should be followed
to the latter. The Supreme Court held:
x x x The trial must observe the following rules
when an accused desires to plead guilty to a capital
offense: (1) the court must conduct a searching
inquiry into the voluntariness and full compensation
of the consequences of the pleas; (2) the court
must require the prosecution to present evidence to
prove the guilt of the accused and the precise
degree of his culpability; and (3) The court must
ask the accused if he desires to present evidence
in his behalf and allow him to do so if he desires.
The Supreme Court continued to explain the
meaning of Searching Inquiry and how it is done:
x x x Searching Inquiry should be conducted as
follows: (1) ascertain from the accused himself (a)
how he was brought into the custody of the law; (b)
whether he had the assistance of a competent
inadequate zeal. It is also worthy to maintain Atty.
Vasquezs apparent lackadaisical attitude in these
cases which amounted to disregard of the strict
demand of fidelity to his oath as a lawyer, duty to
his client, and responsibility as an officer of the
court. He knew from the very beginning that Arnel
was hospitalized for mental disorder. The latters
strange appearance at his arraignment was enough
reason for a counsel to ask for the deferment of
arraignment and for leave of court to have Arnel

subjected to psychological examination and
psychiatric evaluation. Then, too, he should have
presented the doctor who treated Arnel in the UST
hospital for his recurring mental illness. Irrefutably,
Atty. Vasquezs behavior in the defense of Arnel, fell
short of the demanding duty to present every
defense that the law permits to the end that no
person may be deprived of life or liberty but by due
process of law. Even if Atty. Vasquezs zeal for
Arnels case fell short of that required of him, that
is, for him to have asked the court to suspend the
arraignment of Arnel, on the ground of the latters
unsound mental health, the greater demand of due
process overwhelms such inadequate zeal.
4.People vs. Bernas, G.R. Nos. 133583-85,
February 20, 2002, 377 SCRA 391, illustrates the
details of due process when an accused pleads
guilty to a capital offense before the court. Due
process dictates that the ruling of the Supreme
Court in the above-entitled case should be followed
to the latter. The Supreme Court held:
x x x The trial must observe the following rules
when an accused desires to plead guilty to a capital
offense: (1) the court must conduct a searching
inquiry into the voluntariness and full compensation
of the consequences of the pleas; (2) the court
must require the prosecution to present evidence to
prove the guilt of the accused and the precise
degree of his culpability; and (3) The court must
ask the accused if he desires to present evidence
in his behalf and allow him to do so if he desires.
The Supreme Court continued to explain the
meaning of Searching Inquiry and how it is done:
x x x Searching Inquiry should be conducted as
follows: (1) ascertain from the accused himself (a)
how he was brought into the custody of the law; (b)
whether he had the assistance of a competent x x
x In fulfillment of the aforesaid constitutional
guarantee, Rule 116, Section 1(a) of the Rules of
Court mandates that an accused be arraigned in
open court and asked to enter a plea of guilty or not
guilty of the crime charged. The purpose of
arraignment is to apprise the accused of the
possible loss of freedom, even of his life,
depending on the nature of the crime imputed to
him, or at the very least to inform him of why the
prosecuting arm of the state is mobilized against
him. Consequently, when accused-appelant
entered a negative plea during his arraignment, the
same was not binding on the court as an indication
of his innocence. Rather, it is a general denial of
the charges impugned against him and an exercise
of his right to be heard of his plea. x x x
6.People vs. Dumalahay, G.R. Nos. 131837-38,
April 2, 2002, 380 SCRA 37, speaks of due process
as followed in the taking of extrajudicial confessors
and the invoking of the Miranda doctrine.
x x x Where it is shown that extrajudicial
confessions were given with all the safeguards
required under the Miranda Doctrine, the
admissible in evidence. The sworn statements of
the three accused show that they were properly
apprised of their right to remain silent and right to
132
counsel, in accordance with the constitutional

guarantee. At 8:00 in the morning of the next day,
the three accused proceeded to the office of Atty.
Rexel Pacuribot, Clerk of Court of the Regional
Trial Court of Cagayan de Oro City. All of the three
accused, still accompanied by Atty. Ubay-ubay,
subscribed and swore to their respective written
confessions. Before administering the oaths, Atty.
Pacuribot reminded the three accused of the
constitutional rights under the Miranda Doctrine and
verified that their statements were voluntarily given.
Atty. Pacuribot also translated the contents of each
confession in the Visayan dialect, to ensure that
each accused understood the same before signing
it. No ill-motive was imputed on these two lawyers
to testify falsely against the accused. Their
participation in these cases merely involved the
performance of their legal duties as officers of the
court. x x x More importantly, the confessions are
replete with details which could only be supplied by
the accused, reflecting spontaneity and coherence
which psychologically can not be associated with a
mood to which violence and torture have been
applied. These factors are clear indicia that the
confessions were voluntarily given. x x x
7.People vs. Orbita, G.R. No. 136591, July 11,
2002, 384 SCRA 393, speaks of due process. In
more specific terms, the Supreme Court
expounded:
x x x The accused can not complain that he was
denied due process when the trial court convicted
him of raping the complainant, a mental retardate, under an information that did not allege her mental
state, where he had notice that the prosecution
would prove that the complainant had a mental age
of a child below ten (10) and was given all the
opportunity to meet the evidence of the prosecution
on the issue. He could not say he was taken by
surprise and was not able to defend himself.
Indeed, he has never taken this posture.
x x x
8.Philippine Airlines, Inc. vs. NLRC (4th Division),
G.R. No. 115785, August 4, 2000, 337 SCRA 286,
explains Constitutional due process in this wise:
x x x The essence of due process is simply an
opportunity to be heard, or as applied to
administrative proceedings, an opportunity to
explain ones sidewith respect to the procedural
aspect of private respondents dismissal, he was
given ample opportunity to present his side and to
defend himself against the charges against him. He
had every opportunity to be heard. x x x The fact
that respondent Diamante was not able to confront
Pineda did not mean that he was deprived of his
right to due process. x x x
9.Romualdez vs. Sandiganbayan, G.R. Nos.
143618-41, May 30, 2002, 385 SCRA 436 deals
with Criminal due process.
The Supreme Court postulated:
x x x Criminal due process requires that the
accused must be proceeded against under the
orderly processes of law. In all criminal cases, the
judge should follow the step-by-step procedure
required by the Rules. The reason for this is to
assure that the state makes no mistake in taking

the life or liberty except that of the guilty. x x x
10.Gerken vs. Quintos, A.M. No. MTJ-02-1441,
July 31, 2002, 386 SCRA 520, discusses right to
Bail and Preliminary Investigation. The Supreme
Court decreed:
x x x Respondent Judge, possibly through
ignorance, disregarded the procedure for
preliminary investigation as provided in Rule 112,
Section 3 of the Revised Rules of Criminal
Procedure and thereby deprived complainants of
their right to due process. x x x
The Supreme Court further mentioned:
x x x The right to preliminary investigation is a
substantive right, a denial of which constitutes a
deprivation of the accuseds right to due process,
and such denial is aggravated where the accused
is detained without bail for his provisional liberty. It
is important that those charged with the duty of
conducting preliminary investigations do so
scrupulously in accordance with the procedure
provided in the Revised Rules of Criminal
Procedure. x x x
11.Government of the United States of America
vs. Purganan, G.R. No. 148571, October 14, 2002,
389 SCRA 623, explains among others, the
meaning of due process. The Supreme Court
articulated:
x x x The detention of a potential extraditee prior to
the conclusion of the extradition proceedings does
not amount to a violation of his right to due process
while the essence of due process is the
opportunity to be heard, it does not always call for a
prior opportunity to be heardcontrary to his
intention, his detention prior to the conclusion of the
extradition proceedings does not amount to a
violation of his right to due process. We iterate the
familiar doctrine that the essence of due process is
the opportunity to be heard but, at the same time,
point out that the doctrine does not call for a prior
opportunity to be heard. Where the circumstances
such as those present in an extradition case
call for it, a subsequent opportunity to be heard is
enough. In the present case, respondent will be
given full opportunity to be heard subsequently,
when the extradition court hears the Petition for
Extradition. Hence, there is no violation of his right
to due process and fundamental fairness. x x x
12.Mariveles Shipping Corp. vs. Court of
Appeals, G.R. No. 144134, November 11, 2003,
415 SCRA 573, speaks among others of due
process. The Supreme Court expounded:
opportunity to be heard, or, as applied to
explain ones side or an opportunity to seek a
reconsideration of the action or ruling complained
of. The requirement of the due process in labor
cases before a Labor Arbiter is satisfied when the
parties are given the opportunity to submit their
position papers to which they are supposed to
attach all the supporting documents or
documentary evidence that would prove their
respective claims, in the event the Labor Arbiter
determines that no formal hearing would be
133
conducted or that such hearing was not necessary.

Not all cases require a trial type hearing. In any
event, as found by the NLRC, petitioner was given
ample opportunity to present its side in several
hearings conducted before the Labor Arbiter and in
the position papers and other supporting
documents that it had submitted, We find that such
opportunity more than satisfies the requirement of
due process in labor cases. x x x
13.Allied Banking Corporation vs. Court of
Appeals, G.R. No. 144412, November 18, 2003,
416 SCRA 65, discusses among others, due
process in labor cases.
opportunity to be heard. On the requirement of
hearing, this court has held that the essence of due
process is simply an opportunity to be heard. An
actual hearing is not necessary. The exchange of
several letters, in which Galanidas wife, a lawyer
with the City Prosecutors Office, assisted him,
gave Galanida an opportunity to respond to the
charges against him. x x x
14.Republic vs. Sandiganbayan, G.R. No.
152454, November 18, 2003, 416 SCRA 133,
speaks of the two aspects of due process. The
Supreme Court expounded:
x x x Due process of law has two aspects:
substantive and procedural due process. In order
that a particular act may not be impugned as
violative of due process clause, there must be
compliance with both substantive and the
procedural requirements thereof.
In the present context, substantive due process
refers to the intrinsic validity of a law that interfere
with the right of a person to his property. On the
other hand, procedural due process means
compliance with the procedure or steps, even
periods, prescribed by the statute in conformity with
the standards of fair play and without arbitrariness
on the part of those who are called upon to
administer it.
Insofar as substantive due process is concerned,
there is no showing that R.A. 1379 is unfair,
unreasonable, or unjust. In other words, respondent
Marcoses are not being deprived of their property
through forfeiture for arbitrary reasons on or flimsy
grounds. x x x
A careful study of the Provision of R.A. 1379 readily
discloses that the forfeiture proceedings in the
Sandiganbayan did not violate the substantive
rights of respondent Marcoses. These processes
are civil in nature, not criminal as contended by the
Marcoses.
The Supreme Court continued:
x x x Due process, a constitutional precept, does
not therefore always and in all situations require a
trial type proceeding. The essence of due process
is found in the reasonable opportunity to be heard
and submit ones evidence in support of his
defense. What the law prohibits is not merely the
absence of a provisions notice but the absence
thereof and the lack of opportunity to be heard. This
opportunity was made completely available to
respondents who participated in all stages of the

litigation. x x x
o0o
Procedural and Substantive
Publication of Laws TAADA RULINGS,
E.O. 200
TAADA VS. TUVERA (1985)
EN BANC
[G.R. No. 63915. April 24, 1985.]
LORENZO
M.
TAADA,
ABRAHAM
F.
SARMIENTO, and MOVEMENT OF ATTORNEYS
FOR
BROTHERHOOD,
INTEGRITY
AND
NATIONALISM, INC. [MABINI], petitioners, vs.
HON. JUAN C. TUVERA, in his capacity as
Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy
Executive
Assistant
to
the
President,
MELQUIADES P. DE LA CRUZ, in his capacity as
Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director,
Bureau of Printing, respondents.
Lorenzo M. Taada, Abraham F. Sarmiento, Mabini
Legal Aid Committee for petitioners
Solicitor General for respondents.
SYLLABUS
1.
CONSTITUTIONAL
LAW;
STATUTES;
PUBLICATION IN THE OFFICIAL GAZETTE;
LEGAL PERSONALITY OF PETITIONERS TO
FILE MANDAMUS TO COMPEL PUBLICATION,
RECOGNIZED. The subject of the petition is to
compel the performance of a public duty and
petitioners maintain they need not show any
specific interest for their petition to be given due
course. The right sought to be enforced by
petitioners is a public right recognized by no less
than the fundamental law of the land. If petitioners
were not allowed to institute this proceeding, it
would indeed be difficult to conceive of any other
person to initiate the same, considering that the
Solicitor General, the government officer generally
empowered to represent the people, has entered
his appearance for respondents in this case.
2. ID.; ID.; ID.; ARTICLE 2 CIVIL CODE DOES
NOT PRECLUDE PUBLICATION IN THE
OFFICIAL GAZETTE EVEN IF THE LAW ITSELF
PROVIDES FOR DATE OF ITS EFFECTIVITY.
That publication in the Official Gazette is not a sine
qua non requirement for the effectivity of laws
where the laws themselves provide for their own
effectivity dates is correct only insofar as it equates
the effectivity of laws with the fact of publication.
Considered in the light of other statutes applicable
to the issue at hand, the conclusion is easily
reached that said Article 2 does not preclude the
requirement of publication in the Official Gazette,
134
even if the law itself provides for the date of its

effectivity.
having the force and effect of law. But such

publication required need not be confined to the
Official Gazette. From the pragmatic standpoint,
there is an advantage to be gained. It conduces to
certainty. That is to be admitted. It does not follow,
however, that failure to do so would in all cases and
under all circumstances result in a statute,
presidential decree, or any other executive act of
the same category being bereft of any binding force
and effect. To so hold would raise a constitutional
question. Such a pronouncement would lend itself
to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity
unless published in the Official Gazette. There is no
such requirement in the Constitution.
3. ID.; ID.; ID.; RATIONALE. The clear object of

Article 2 of the Civil Code is to give the general
public adequate notice of the various laws which
are to regulate their actions and conduct as
citizens. Without such notice and publication, there
would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the
height of injustice to punish or otherwise burden a
citizen for the transgression of a law of which he
had no notice whatsoever, not even a constructive
one.
4. ID.; ID.; ID.; PUBLICATION OF PRESIDENTIAL
ISSUANCES "OF A PUBLIC NATURE" OR "OF
GENERAL APPLICABILITY," A REQUIREMENT OF
DUE PROCESS; UNPUBLISHED PRESIDENTIAL
ISSUANCES WITHOUT FORCE AND EFFECT.
The publication of all presidential issuances "of a
public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees
that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden on the
people, such as tax and revenue measures, fall
within this category. Other presidential issuances
which apply only to particular persons such as
administrative and executive orders need not be
published on the assumption that they have been
circularized to all concerned. (People vs. Que Po
Lay, 94 Phil. 640; Balbuena, et al. vs. Secretary of
Education, et al., 110 Phil. 150) It is needless to
add that the publication of presidential issuances
"of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that
before a person may be bound by law, he must first
be officially and specifically informed of its contents.
The Court therefore declares that presidential
issuances of general application, which have not
been published, shall have no force and effect.
2. ID.; ID.; ID.; ID.; REQUIREMENT IN ART. 2

CIVIL CODE DOES NOT HAVE THE JUDICIAL
FORCE OF A CONSTITUTIONAL COMMAND.
The Chief Justice's qualified concurrence goes no
further than to affirm that publication is essential to
the effectivity of a legislative or executive act of a
general application. He is not in agreement with the
view that such publication must be in the Official
Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking
effect after fifteen days following the completion of
their publication in the Official Gazette is subject to
this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative
enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional
command. A later legislative or executive act which
has the force and effect of law can legally provide
for a different rule.
3. ID.; ID.; ID.; TO DECLARE UNPUBLISHED
PRESIDENTIAL ISSUANCES WITHOUT LEGAL
FORCE AND EFFECT WOULD RESULT IN
UNDESIRABLE CONSEQUENCES. Nor does
the Chief Justice agree with the rather sweeping
conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus
previously published in the Official Gazette would
be devoid of any legal character. That would be, in
his opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. He
finds himself therefore unable to yield assent to
such a pronouncement.
5. ID.; ID.; ID.; DECLARATION OF INVALIDITY OF

UNPUBLISHED PRESIDENTIAL DECREES DOES
NOT AFFECT THOSE WHICH HAVE BEEN
ENFORCED OR IMPLEMENTED PRIOR TO
THEIR
PUBLICATION.
The
implementation/enforcement
of
presidential
decrees prior to their publication in the Official
Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The
past cannot always be erased by a new judicial
declaration . . .that an all inclusive statement of a
principle of absolute retroactive invalidity cannot be
justified."
TEEHANKEE, J., concurring:

1.
CONSTITUTIONAL
LAW;
STATUTES,
NECESSARY PURSUANT TO THE BASIC
CONSTITUTIONAL REQUIREMENTS OF DUE
PROCESS. The Rule of Law connotes a body of
norms and laws published and ascertainable and of
equal application to all similarly circumstanced and
not subject to arbitrary change but only under
certain set procedure. The Court had consistently
stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be
informed must be afforded to the people who are
commanded to obey before they can be punished
FERNANDO, C.J., concurring with qualification:

1.
CONSTITUTIONAL
LAW;
STATUTES;
PUBLICATION REQUIREMENT NEED NOT BE
CONFINED TO THE OFFICIAL GAZETTE. It is
of course true that without the requisite publication,
a due process question would arise if made to
apply adversely to a party who is not even aware of
the existence of any legislative or executive act
135
for its violation," (People vs. de Dios, G.R. No. L11003, August 31, 1959, per the late Chief Justice
Paras) citing the settled principle based on due
process enunciated in earlier cases that "before the
public is bound by its contents. especially its penal
provisions, a law, regulation or circular must first be
published and the people officially and specially
informed of said contents and its penalties."
Without official publication in the Official Gazette as
required by Article 2 of the Civil Code and Revised
Administrative Code, there would be no basis nor
justification for the corollary rule of Article 3 of the
Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the
public and official repository where they are duly
published) that "Ignorance of the law excuses no
one from compliance therewith."
PLANA, J., separate opinion:

1.
CONSTITUTIONAL
LAW;
STATUTES;
PUBLICATION IN THE OFFICIAL GAZETTE NOT
ESSENTIAL
FOR
EFFECTIVITY
FOR
EFFECTIVITY OF LAWS. The Philippine
Constitution does not require the publication of laws
as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that
the guarantee of due process requires notice of
laws to affected parties before they can be bound
thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process
clause is not that precise. Neither is the publication
in the Official Gazette required by any statute as a
prerequisite for their effectivity, if said laws already
provide for their effectivity date.
2. ID.; ID.; ID.; RESPONDENTS' CONTENTION

THAT "ONLY LAWS WHICH ARE SILENT AS TO
THEIR EFFECTIVITY DATE NEED TO BE
PUBLISHED IN THE OFFICIAL GAZETTE FOR
THEIR EFFECTIVITY," UNTENABLE. The plain
text and meaning of the Civil Code is that "laws
shall take effect after fifteen days following the
completion of their publication in the Official
Gazette, unless it is otherwise provided," i.e. a
different effectivity date is provided by the law itself.
This proviso perforce refers to a law that had been
duly published pursuant to the basic constitutional
requirements of due process. The best example of
this is the Civil Code itself: the same Article 2
provides otherwise that it "shall take effect (only)
one year (not 15 days) after such publication." To
sustain respondents misreading that "most laws or
decrees specify the date of their effectivity and for
this reason, publication in the Official Gazette is not
necessary for their effectivity" would be to nullify
and render nugatory the Civil Code's indispensable
and essential requirement of prior publication in the
Official Gazette by the simple expedient of
providing for immediate effectivity or an earlier
effectivity date in the law itself before the
completion of 15 days following its publication
which is the period generally fixed by the Civil Code
for its proper dissemination.
2. ID.; ID.; PUBLICATION MAY BE MADE

ELSEWHERE THAN IN THE OFFICIAL GAZETTE.
Article 2 of the Civil Code provides that "laws
shall take effect after fifteen days following the
completion of their publication in the Official
Gazette, unless it is otherwise provided." Two
things may be said of this provision: Firstly, it
obviously does not apply to a law with a built-in
provision as to when it will take effect. Secondly, it
clearly recognizes that each law may provide not
only a different period for reckoning its effectivity
date but also a different mode of notice. Thus, a
law may prescribe that it shall be published
elsewhere than in the Official Gazette.
3. ID.; ID.; COMMONWEALTH ACT 638 CANNOT
NULLIFY OR RESTRICT OPERATION OF A
STATUTE WITH A PROVISION AS TO ITS
EFFECTIVITY. Not all legislative acts are
required to be published in the Official Gazette but
only "important" ones "of a public nature."
Moreover, Commonwealth Act No. 638 does not
provide that publication in the Official Gazette is
essential for the effectivity of laws. This is as it
should be, for all statutes are equal and stand on
the same footing. A law, especially an earlier one of
general application such as Commonwealth Act No.
638, cannot nullify or restrict the operation of a
subsequent statute that has a provision of its own
as to when and how it will take effect. Only a higher
law, which is the Constitution, can assume the role.
MELENCIO-HERRERA, J., concurring:

CONSTITUTIONAL
LAW;
STATUTES;
RETROACTIVITY IN EFFECTIVITY DATE NOT
ALLOWED WHERE IT WILL RUN COUNTER TO
CONSTITUTIONAL RIGHTS OR DESTROY
VESTED RIGHTS. There cannot be any
question but that even if a decree provides for a
date of effectivity, it has to be published. When a
date effectivity is mentioned in the decree but the
decree becomes effective only fifteen (15) days
after its publication in the Official Gazette, it will not
mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself.
There should be no retroactivity if the retroactivity
will run counter to constitutional rights or shall
destroy vested rights.
DECISION
ESCOLIN, J p:
Invoking the people's right to be informed on
matters of public concern, a right recognized in
Section 6, Article IV of the 1973 Philippine
Constitution, 1 as well as the principle that laws to
be valid and enforceable must be published in the
Official
Gazette
or
otherwise
effectively
promulgated, petitioners seek a writ of mandamus
to compel respondent public officials to publish, and
136
or cause the publication in the Official Gazette of

various presidential decrees, letters of instructions,
general orders, proclamations, executive orders,
letter of implementation and administrative orders.
Specifically, the publication of
presidential issuances is sought:
the
The respondents, through the Solicitor General,

would have this case dismissed outright on the
ground that petitioners have no legal personality or
standing to bring the instant petition. The view is
submitted that in the absence of any showing that
petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the
presidential issuances in question 2 said petitioners
are without the requisite legal personality to
institute this mandamus proceeding, they are not
being "aggrieved parties" within the meaning of
Section 3, Rule 65 of the Rules of Court, which we
quote: Cdpr
following
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64,

103, 171, 179, 184, 197, 200, 234, 265, 286, 298,
303, 312, 324, 325, 326, 337, 355, 358, 359, 360,
361, 368, 404, 406, 415, 427, 429, 445, 447, 473,
486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800,
802, 835, 836, 923, 935, 961, 1017-1030, 1050,
1060-1061, 1085, 1143, 1165, 1166, 1242, 1246,
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810,
1813-1817, 1819-1826, 1829-1840, 1842-1847.
"SEC. 3. Petition for Mandamus. When any

tribunal, corporation, board or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or
office to which such other is entitled, and there is
no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper
court alleging the facts with certainty and praying
that judgment be rendered commanding the
defendant, immediately or at some other specified
time, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the
wrongful acts of the defendant."
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107,

108, 116, 130, 136, 141, 150, 153, 155, 161, 173,
180, 187, 188, 192, 193, 199, 202, 204, 205, 209,
211-213, 215-224, 226-228, 231-239, 241-245,
248-251, 253-261, 263-269, 271-273, 275-283,
285-289, 291, 293, 297-299, 301-303, 309, 312315, 325, 327, 343, 346, 349, 357, 358, 362, 367,
370, 382, 385, 386, 396-397, 405, 438-440, 444445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615,
641, 642, 665, 702, 712-713, 726, 837-839, 878879, 881, 882, 939-940, 964, 997, 1149-1178,
1180-1278.
Upon the other hand, petitioners maintain that since

the subject of the petition concerns a public right
and its object is to compel the performance of a
public duty, they need not show any specific
interest for their petition to be given due course.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63,
64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151,
1196, 1270, 1281, 1319-1526, 1529, 1532, 1535,
1538, 1540-1547, 1550-1558, 1561-1588, 15901595, 1594-1600, 1606-1609, 1612-1628, 16301649, 1694-1695, 1697-1701, 1705-1723, 17311734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 18021804, 1806-1807, 1812-1814, 1816, 1825-1826,
1829, 1831-1832, 1835-1836, 1839-1840, 18431844, 1846-1847, 1849, 1853-1858, 1860, 1866,
1868, 1870, 1876-1889, 1892, 1900, 1918, 1923,
1933, 1952, 1963, 1965-1966, 1968-1984, 19862028, 2030-2044, 2046-2145, 2147-2161, 21632244.
The issue posed is not one of first impression. As

early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general
rule is that "a writ of mandamus would be granted
to a private individual only in those cases where he
has some private or particular interest to be
subserved, or some particular right to be protected,
independent of that which he holds with the public
at large," and "it is for the public officers exclusively
to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public
right and the object of the mandamus is to procure
the enforcement of a public duty, the people are
regarded as the real party in interest and the relator
at whose instigation the proceedings are instituted
need not show that he has any legal or special
interest in the result, it being sufficient to show that
he is a citizen and as such interested in the
execution of the laws [High, Extraordinary Legal
Remedies, 3rd ed., sec. 431]."
e] Executive Orders Nos.: 411, 413, 414, 427, 429454, 457-471, 474-492, 494-507, 509-510, 522,
524-528, 531-532, 536, 538, 543-544, 549, 551553, 560, 563, 567-568, 570, 574, 593, 594, 598604, 609, 611-647, 649-677, 679-703, 705-707,
712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22,
25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107,
120, 122, 123.
Thus, in said case, this Court recognized the relator

Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to
compel the Governor General to call a special
election for the position of municipal president in
g] Administrative Orders Nos.: 347, 348, 352-354,

360-378, 380-433, 436-439.
137
the town of Silay, Negros Occidental. Speaking for

this Court, Mr. Justice Grant T. Trent said: Cdpr
effectivity, which is the fifteenth day following its

publication but not when the law itself provides
for the date when it goes into effect.
"We are therefore of the opinion that the weight of

authority supports the proposition that the relator is
a proper party to proceedings of this character
when a public right is sought to be enforced. If the
general rule in America were otherwise, we think
that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a
general rule to a particular case without keeping in
mind the reason for the rule, because, if under the
particular circumstances the reason for the rule
does not exist, the rule itself is not applicable and
reliance upon the rule may well lead to error.'
Respondents' argument, however, is logically

correct only insofar as it equates the effectivity of
laws with the fact of publication. Considered in the
light of other statutes applicable to the issue at
hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law
itself provides for the date of its effectivity. Thus,
Section 1 of Commonwealth Act 638 provides as
follows:
"Section 1. There shall be published in the Official
Gazette [1] all important legislative acts and
resolutions of a public nature of the Congress of the
Philippines; [2] all executive and administrative
orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of
Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such
documents or classes of documents as may be
required so to be published by law; and [5] such
documents or classes of documents as the
President of the Philippines shall determine from
time to time to have general applicability and legal
effect, or which he may authorize so to be
published. . . ."
"No reason exists in the case at bar for applying the

general rule insisted upon by counsel for the
respondent. The circumstances which surround this
case are different from those in the United States,
inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we
have seen that it is not the duty of the law officer of
the Government to appear and represent the
people in cases of this character."
The reasons given by the Court in recognizing a
private citizen's legal personality in the
aforementioned case apply squarely to the present
petition. Clearly, the right sought to be enforced by
petitioners herein is a public right recognized by no
less than the fundamental law of the land. If
petitioners were not allowed to institute this
proceeding, it would indeed be difficult to conceive
of any other person to initiate the same,
considering that the Solicitor General, the
government officer generally empowered to
represent the people, has entered his appearance
for respondents in this case.
The clear object of the above quoted provision is to

give the general public adequate notice of the
various laws which are to regulate their actions and
conduct as citizens. Without such notice and
publication, there would be no basis for the
application of the maxim "ignorantia legis non
excusat." It would be the height of injustice to
punish or otherwise burden a citizen for the
transgression of a law of which he had no notice
whatsoever, not even a constructive one. cdphil
Respondents further contend that publication in the

Official Gazette is not a sine qua non requirement
for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It
is thus submitted that since the presidential
issuances in question contain special provisions as
to the date they are to take effect, publication in the
Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article
2 of the Civil Code:
Perhaps at no time since the establishment of the

Philippine Republic has the publication of laws
taken so vital significance that at this time when the
people have bestowed upon the President a power
heretofore enjoyed solely by the legislature. While
the people are kept abreast by the mass media of
the debates and deliberations in the Batasan
Pambansa and for the diligent ones, ready
access to the legislative records no such
publicity accompanies the law-making process of
the President. Thus, without publication, the people
have no means of knowing what presidential
decrees have actually been promulgated, much
less a definite way of informing themselves of the
specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la
denominacion genrica de leyes, se comprenden
tambin los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas
de conformidad con las mismas por el Gobierno en
uso de su potestad." 5
"Art. 2. Laws shall take effect after fifteen days

following the completion of their publication in the
Official
Gazette,
unless
it
is
otherwise
provided, . . ."
The interpretation given by respondent is in accord
with this Court's construction of said article. In a
long line of decisions, 4 this Court has ruled that
publication in the Official Gazette is necessary in
those cases where the legislation itself does not
provide for its effectivity date for then the date of
publication is material for determining its date of
138
The very first clause of Section 1 of Commonwealth

Act 638 reads: "There shall be published in the
Official Gazette . . ." The word "shall" used therein
imposes upon respondent officials an imperative
duty. That duty must be enforced if the
Constitutional right of the people to be informed on
matters of public concern is to be given substance
and reality. The law itself makes a list of what
should be published in the official Gazette. Such
listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be included
or excluded from such publication.
U.S. 425, 442; Chicago, I. & L. Ry. Co. v. Hackett,

228 U.S. 559, 566. It is quite clear, however, that
such broad statements as to the effect of a
determination of unconstitutionality must be taken
with qualifications. The actual existence of a
statute, prior to such a determination, is an
operative fact and may have consequences which
cannot justly be ignored. The past cannot always
be erased by a new judicial declaration. The effect
of the subsequent ruling as to invalidity may have
to be considered in various aspects with respect
to particular conduct, private and official. Questions
of rights claimed to have become vested, of status,
of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light
of the nature both of the statute and of its previous
application, demand examination. These questions
are among the most difficult of those which have
engaged the attention of courts, state and federal,
and it is manifest from numerous decisions that an
all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified."
The publication of all presidential issuances "of a

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

Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had
accrued in his favor before said law was declared
unconstitutional by this Court.
It is needless to add that the publication of

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

presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may
have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial
declaration . . . that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be
justified."
"In a time of proliferating decrees, orders and

letters of instructions which all form part of the law
of the land, the requirement of due process and the
Rule of Law demand that the Official Gazette as the
official government repository promulgate and
publish the texts of all such decrees, orders and
instructions so that the people may know where to
obtain their official and specific contents."
From the report submitted to the Court by the Clerk

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

issuances of general application, which have not
been published, shall have no force and effect.
Some members of the Court, quite apprehensive
about the possible unsettling effect this decision
might have on acts done in reliance of the validity
of those presidential decrees which were published
only during the pendency of this petition, have put
the question as to whether the Court's declaration
of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The
answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and
realistic course set forth in Chicot County Drainage
District vs. Baxter Bank 8 to wit: LLjur
"The courts below have proceeded on the theory
that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no
duties, and hence affording no basis for the
challenged decree. Norton v. Shelby County, 118
139
WHEREFORE,
the
Court
hereby
orders
respondents to publish in the Official Gazette all
unpublished presidential issuances which are of
general application, and unless so published, they
shall have no binding force and effect.
been published as required by law. The

government argued that while publication was
necessary as a rule, it was not so when it was
"otherwise provided," as when the decrees
themselves declared that they were to become
effective immediately upon their approval. In the
decision of this case on April 24, 1985, the Court
affirmed the necessity for the publication of some of
these decrees, declaring in the dispositive portion
as follows:
SO ORDERED.
Relova, J., concur.
Aquino, J., took no part.
"WHEREFORE,
the
Court
hereby orders
respondents to publish to the Official Gazette all
unpublished presidential issuances which are of
general application, and unless so published, they
shall have no binding force and effect."
Concepcion, Jr., J., is on leave.

Gutierrez, Jr., J., I concur insofar as publication is
necessary but reserve my vote as to the necessity
of such publication being in the Official Gazette.
The petitioners are now before us again, this time

to move for reconsideration/clarification of that
decision. 1 Specifically, they ask the following
questions:
De la Fuente, J., Insofar as the opinion declares the

unpublished decrees and issuances of a public
nature or general applicability ineffective, until due
publication thereof.
1.What is meant by "law of public nature" or

"general applicability"?
||| (Taada v. Tuvera, G.R. No. 63915, [April 24,

1985], 220 PHIL 422-444)
TAADA VS. TUVERA (1986)
2.Must a distinction be made between laws of

general applicability and laws which are not?
EN BANC
3.What is meant by "publication"?
[G.R. No. L-63915. December 29, 1986.]
4.Where is the publication to be made?
LORENZO
M.
TAADA,
ABRAHAM
F.
SARMIENTO, and MOVEMENT OF ATTORNEYS
FOR
BROTHERHOOD,
INTEGRITY
AND
NATIONALISM, INC. (MABINI), petitioners, vs.
HON. JUAN C. TUVERA. in his capacity as
Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy
Executive
Assistant
to
the
President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL.,
respondents.
5.When is the publication to be made?

Resolving their own doubts, the petitioners suggest
that there should be no distinction between laws of
general applicability and those which are not; that
publication means complete publication; and that
the publication must be made forthwith in the
Official Gazette. 2
In the Comment 3 required of the then Solicitor
General, he claimed first that the motion was a
request for an advisory opinion and should
therefore be dismissed, and, on the merits, that the
clause "unless it is otherwise provided" in Article 2
of the Civil Code meant that the publication
required therein was not always imperative; that
publication, when necessary, did not have to be
made in the Official Gazette; and that in any case
the subject decision was concurred in only by three
justices and consequently not binding. This elicited
a Reply 4 refuting these arguments. Came next the
February Revolution and the Court required the
new Solicitor General to file a Rejoinder in view of
the supervening events, under Rule 3, Section 18,
of the Rules of Court. Responding, he submitted
that issuances intended only for the interval
administration of a government agency or for
particular persons did not have to be published;
that publication when necessary must be in full and
in the Official Gazette; and that, however, the
decision under reconsideration was not binding
because it was not supported by eight members of
this Court. 5
SYLLABUS
FERNAN, J., concurring:
1.CIVIL LAW; EFFECT AND APPLICATION OF
LAWS; ARTICLE 2, CIVIL CODE; PUBLICATION
OF LAWS MADE TO ENSURE CONSTITUTIONAL
RIGHT
TO
DUE
PROCESS
AND
TO
INFORMATION. The categorical statement by
this Court on the need for publication before any
law be made effective seeks to prevent abuses on
the part if the lawmakers and, at the time, ensure to
the people their constitutional right to due process
and to information on matter of public concern. cda
RESOLUTION
CRUZ, J p:
Due process was invoked by the petitioners in
demanding the disclosure or a number of
presidential decrees which they claimed had not
140
The term "laws" should refer to all laws and not

only to those of general application, for strictly
speaking all laws relate to the people in general
albeit there are some that do not apply to them
directly. An example is a law granting citizenship to
a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It
surely cannot be said that such a law does not
affect the public although it unquestionably does
not apply directly to all the people. The subject of
such law is a matter of public interest which any
member of the body politic may question in the
political forums or, if he is a proper party, even in
the courts of justice. In fact, a law without any
bearing on the public would be invalid as an
intrusion of privacy or as class legislation or as an
ultra vires act of the legislature. To be valid, the law
must invariably affect the public interest even if it
might be directly applicable only to one individual,
or some of the people only, and not to the public as
a whole.
The subject of contention is Article 2 of the Civil

Code providing as follows:
"ART. 2.Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided.
This Code shall take effect one year after such
publication."
After a careful study of this provision and of the
arguments of the parties, both on the original
petition and on the instant motion, we have come to
the conclusion, and so hold, that the clause "unless
it is otherwise provided" refers to the date of
effectivity and not to the requirement of publication
itself, which cannot in any event be omitted. This
clause does not mean that the legislature may
make the law effective immediately upon approval,
or on any other date, without its previous
publication. cdphil
Publication is indispensable in every case, but the
legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or
extended. An example, as pointed out by the
present Chief Justice in his separate concurrence
in the original decision, 6 is the Civil Code which
did not become effective after fifteen days from its
publication in the Official Gazette but "one year
after such publication." The general rule did not
apply because it was "otherwise provided."
We hold therefore that all statutes, including those

of local application and private laws, shall be
published as a condition for their effectivity, which
shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
LibLex
Covered by this rule are presidential decrees and
executive orders promulgated by the President in
the exercise of legislative powers whenever the
same are validly delegated by the legislature or, at
present, directly conferred by the Constitution.
Administrative rules and regulations must also be
published if their purpose is to enforce or
implement existing law pursuant also to a valid
delegation.
It is not correct to say that under the disputed

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

in nature, that is, regulating only the personnel of
the administrative agency and not the public, need
not be published. Neither is publication required of
the so-called letters of instructions issued by
administrative superiors concerning the rules or
guidelines to be followed by their subordinates in
the performance of their duties. cdasia
Accordingly, even the charter of a city must be
published notwithstanding that it applies to only a
portion of the national territory and directly affects
only the inhabitants of that place. All presidential
decrees must be published, including even, say,
those naming a public place after a favored
individual or exempting him from certain
prohibitions or requirements. The circulars issued
by the Monetary Board must be published if they
are meant not merely to interpret but to "fill in the
details" of the Central Bank Act which that body is
supposed to enforce.
We note at this point the conclusive presumption

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

instructions issued by, say, the Minister of Social
Welfare on the case studies to be made in petitions
for adoption or the rules laid down by the head of a
141
government agency on the assignments or

workload of his personnel or the wearing of office
uniforms. Parenthetically, municipal ordinances are
not covered by this rule but by the Local
Government Code.
their effectivity after fifteen days from such

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

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

that the instant motion is a request for an advisory
opinion is untenable, to say the least, and deserves
no further comment.
The days of the secret laws and the unpublished
decrees are over. This is once again an open
society, with all the acts of the government subject
to public scrutiny and available always to public
cognizance. This has to be so if our country is to
remain democratic, with sovereignty residing in the
people and all government authority emanating
from them.
Coming now to the original decision, it is true that

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

legislation, they retain the authority to review the
work of their delegates and to ratify or reject it
according to their lights, through their freedom of
expression and their right of suffrage. This they
cannot do if the acts of the legislature are
concealed.
Laws must come out in the open in the clear light of
the sun instead of skulking in the shadows with
their
dark,
deep
secrets.
Mysterious
pronouncements and rumored rules cannot be
recognized as binding unless their existence and
contents are confirmed by a valid publication
intended to make full disclosure and give proper
notice to the people. The furtive law is like a
scabbarded saber that cannot feint, parry or cut
unless the naked blade is drawn.
There is much to be said of the view that the

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

above defined shall immediately upon their
approval, or as soon thereafter as possible, be
published in full in the Official Gazette, to become
effective only after fifteen days from their
publication, or on another date specified by the
legislature, in accordance with Article 2 of the Civil
Code. dctai
At any rate, this Court is not called upon to rule

upon the wisdom of a law or to repeal or modify it if
we find it impractical. That is not our function. That
function belongs to the legislature. Our task is
merely to interpret and apply the law as conceived
and approved by the political departments of the
government in accordance with the prescribed
procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the
publication of laws must be made in the Official
Gazette, and not elsewhere, as a requirement for
SO ORDERED.
Teehankee, C .J ., Feria, Yap, Narvasa, MelencioHerrera, Alampay, Gutierrez, Jr ., and Paras, JJ .,
concur.
||| (Taada v. Tuvera, G.R. No. L-63915
(Resolution), [December 29, 1986], 230 PHIL 528540)
142
EXECUTIVE ORDER NO. 200
PEOPLE
OF
THE
PHILIPPINES,
petitioner,vs.EVANGELINE SITON y SACIL and
KRYSTEL KATE SAGARANO y MEFANIA,
respondents.
PROVIDING FOR THE PUBLICATION OF LAWS

EITHER IN THE OFFICIAL GAZETTE OR IN A
NEWSPAPER OF GENERAL CIRCULATION IN
THE PHILIPPINES AS A REQUIREMENT FOR
THEIR EFFECTIVITY
DECISION
YNARES-SANTIAGO, J p:
WHEREAS, Article 2 of the Civil Code partly

provides that "laws shall take effect after fifteen
days following the completion of their publication in
the Official Gazette, unless it is otherwise
provided . . . ;" cdasia
WHEREAS, the requirement that for laws to be
effective only a publication thereof in the Official
Gazette will suffice has entailed some problems, a
point recognized by the Supreme Court in Taada,
et al. vs. Tuvera, et al. (G.R. No. 63915, December
29, 1986), when it observed that "[t]here is much to
be said of the view that the publication need not be
made in the Official Gazette, considering its erratic
release and limited readership;"
WHEREAS, it was likewise observed that
"[u]ndoubtedly, newspapers of general circulation
could better perform the function of communicating
the laws to the people as such periodicals are more
easily available, have a wider readership, and
come out regularly;" and
WHEREAS, in view of the foregoing premises
Article 2 of the Civil Code should accordingly be
amended so the laws to be effective must be
published either in the Official Gazette or in a
newspaper of general circulation in the country;
NOW, THEREFORE, I, CORAZON C. AQUINO,
President of the Philippines, by virtue of the powers
vested in me by the Constitution, do hereby order:
SECTION 1. Laws shall take effect after fifteen
days following the completion of their publication
either in the Official Gazette or in a newspaper of
general circulation in the Philippines, unless it is
otherwise provided. cdtai
SECTION 2. Article 2 of Republic Act No. 386,
otherwise known as the "Civil Code of the
Philippines," and all other laws inconsistent with
this Executive Order are hereby repealed or
modified accordingly.
SECTION 3. This Executive Order shall take effect
immediately after its publication in the Official
Gazette.
DONE in the City of Manila, this 18th day of June,
in the year of Our Lord, Nineteen Hundred and
Eighty-Seven.
Published in the Official Gazette, Vol. 83 No. 26
Page 3038-A on June 29, 1987.
If a man is called to be a street sweeper, he should

sweep streets even as Michelangelo painted, or
Beethoven composed music, or Shakespeare wrote
poetry. He should sweep streets so well that all the
hosts of Heaven and Earth will pause to say, here
lived a great street sweeper who did his job well.
Martin Luther King, Jr.
Assailed in this petition for review on certiorari is
the July 29, 2005 Order 1 of Branch 11, Davao City
Regional Trial Court in Special Civil Case No. 30500-2004 granting respondents' Petition for
Certiorari and declaring paragraph 2 of Article 202
of the Revised Penal Code unconstitutional.
IASTDE
Respondents Evangeline Siton and Krystel Kate
Sagarano were charged with vagrancy pursuant to
Article 202 (2) of the Revised Penal Code in two
separate Informations dated November 18, 2003,
docketed as Criminal Case Nos. 115,716-C-2003
and 115,717-C-2003 and raffled to Branch 3 of the
Municipal Trial Court in Cities, Davao City. The
Informations, read:
That on or about November 14, 2003, in the City of
Davao, Philippines, and within the jurisdiction of
this Honorable Court, the above-mentioned
accused, willfully, unlawfully and feloniously
wandered and loitered around San Pedro and
Legaspi Streets, this City, without any visible
means to support herself nor lawful and justifiable
purpose. 2
Article 202 of the Revised Penal Code provides:
Art. 202. Vagrants and prostitutes; penalty. The
following are vagrants:
1. Any person having no apparent means of
subsistence, who has the physical ability to work
and who neglects to apply himself or herself to
some lawful calling;
2. Any person found loitering about public or semipublic buildings or places or tramping or wandering
about the country or the streets without visible
means of support;
||| (Publication of Laws as Requirement for Their

Effectivity, EXECUTIVE ORDER NO. 200, [June
18, 1987])
3. Any idle or dissolute person who lodges in

houses of ill fame; ruffians or pimps and those who
habitually associate with prostitutes;
1. PEOPLE VS. SITON 600 SCRA 476 (2009)

4. Any person who, not being included in the
provisions of other articles of this Code, shall be
found loitering in any inhabited or uninhabited place
THIRD DIVISION
[G.R. No. 169364. September 18, 2009.]
143
belonging to another without any lawful or justifiable

purpose;
prosecution should be given the opportunity to

prove the crime, and the defense to rebut the
evidence.
Respondents thus filed an original petition for
certiorari and prohibition with the Regional Trial
Court of Davao City, 6 directly challenging the
constitutionality of the anti-vagrancy law, claiming
that the definition of the crime of vagrancy under
Article 202 (2), apart from being vague, results as
well in an arbitrary identification of violators, since
the definition of the crime includes in its coverage
persons who are otherwise performing ordinary
peaceful acts. They likewise claimed that Article
202 (2) violated the equal protection clause under
the Constitution because it discriminates against
the poor and unemployed, thus permitting an
arbitrary and unreasonable classification.
The State, through the Office of the Solicitor
General, argued that pursuant to the Court's ruling
in Estrada v. Sandiganbayan, 7 the overbreadth
and vagueness doctrines apply only to free speech
cases and not to penal statutes. It also asserted
that Article 202 (2) must be presumed valid and
constitutional, since the respondents failed to
overcome this presumption. CITaSA
On July 29, 2005, the Regional Trial Court issued
the assailed Order granting the petition, the
dispositive portion of which reads:
WHEREFORE, PRESCINDING FROM THE
FOREGOING, the instant Petition is hereby
GRANTED. Paragraph 2 of Article 202 of the
Revised Penal Code is hereby declared
unconstitutional and the Order of the court a quo,
dated April 28, 2004, denying the petitioners'
Motion to Quash is set aside and the said court is
ordered to dismiss the subject criminal cases
against the petitioners pending before it.
5. Prostitutes.
For the purposes of this article, women who, for
money or profit, habitually indulge in sexual
intercourse or lascivious conduct, are deemed to be
prostitutes.
Any person found guilty of any of the offenses
covered by this articles shall be punished by
arresto menor or a fine not exceeding 200 pesos,
and in case of recidivism, by arresto mayor in its
medium period to prision correccional in its
minimum period or a fine ranging from 200 to 2,000
pesos, or both, in the discretion of the court.
Instead of submitting their counter-affidavits as
directed, respondents filed separate Motions to
Quash 3 on the ground that Article 202 (2) is
unconstitutional for being vague and overbroad.
In an Order 4 dated April 28, 2004, the municipal
trial court denied the motions and directed
respondents anew to file their respective counteraffidavits. The municipal trial court also declared
that the law on vagrancy was enacted pursuant to
the State's police power and justified by the Latin
maxim "salus populi est suprem(a) lex", which calls
for the subordination of individual benefit to the
interest of the greater number, thus:
Our law on vagrancy was enacted pursuant to the
police power of the State. An authority on police
power, Professor Freund describes laconically
police power "as the power of promoting public
welfare by restraining and regulating the use of
liberty and property".(Citations omitted).In fact the
person's acts and acquisitions are hemmed in by
the police power of the state. The justification found
in the Latin maxim, "salus populi est supreme (sic)
lex" (the god of the people is the Supreme
Law).This calls for the subordination of individual
benefit to the interests of the greater number. In the
case at bar the affidavit of the arresting police
officer, SPO1 JAY PLAZA with Annex "A" lucidly
shows that there was a prior surveillance
conducted in view of the reports that vagrants and
prostitutes proliferate in the place where the two
accused (among other women) were wandering
and in the wee hours of night and soliciting male
customer. Thus, on that basis the prosecution
should be given a leeway to prove its case. Thus, in
the interest of substantial justice, both prosecution
and defense must be given their day in Court: the
prosecution proof of the crime, and the author
thereof; the defense, to show that the acts of the
accused in the indictment can't be categorized as a
crime. 5
SO ORDERED. 8
In declaring Article 202 (2) unconstitutional, the trial
court opined that the law is vague and it violated
the equal protection clause. It held that the "void for
vagueness" doctrine is equally applicable in testing
the validity of penal statutes. Citing Papachristou v.
City of Jacksonville, 9 where an anti-vagrancy
ordinance was struck down as unconstitutional by
the Supreme Court of the United States, the trial
court ruled:
The U.S. Supreme Court's justifications for striking
down the Jacksonville Vagrancy Ordinance are
equally applicable to paragraph 2 of Article 202 of
the Revised Penal Code.
Indeed, to authorize a police officer to arrest a
person for being "found loitering about public or
semi-public buildings or places or tramping or
wandering about the country or the streets without
visible means of support" offers too wide a latitude
for arbitrary determinations as to who should be
arrested and who should not.
The municipal trial court also noted that in the

affidavit of the arresting police officer, SPO1 Jay
Plaza, it was stated that there was a prior
surveillance conducted on the two accused in an
area reported to be frequented by vagrants and
prostitutes who solicited sexual favors. Hence, the
Loitering about and wandering have become

national pastimes particularly in these times of
recession when there are many who are "without
144
visible means of support" not by reason of choice

but by force of circumstance as borne out by the
high unemployment rate in the entire country.
The Court finds for petitioner.

The power to define crimes and prescribe their
corresponding penalties is legislative in nature and
inherent in the sovereign power of the state to
maintain social order as an aspect of police power.
The legislature may even forbid and penalize acts
formerly considered innocent and lawful provided
that no constitutional rights have been abridged. 14
However, in exercising its power to declare what
acts constitute a crime, the legislature must inform
the citizen with reasonable precision what acts it
intends to prohibit so that he may have a certain
understandable rule of conduct and know what acts
it is his duty to avoid. 15 This requirement has
come to be known as the void-for-vagueness
doctrine which states that "a statute which either
forbids or requires the doing of an act in terms so
vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application, violates the first essential of due
process of law".16
In Spouses Romualdez v. COMELEC, 17 the Court
recognized the application of the void-forvagueness doctrine to criminal statutes in
appropriate cases. The Court therein held:
At the outset, we declare that under these terms,
the opinions of the dissent which seek to bring to
the fore the purported ambiguities of a long list of
provisions in Republic Act No. 8189 can be deemed
as a facial challenge. An appropriate "as applied"
challenge in the instant Petition should be limited
only to Section 45 (j) in relation to Sections 10 (g)
and (j) of Republic Act No. 8189 the provisions
upon which petitioners are charged. An expanded
examination of the law covering provisions which
are alien to petitioners' case would be antagonistic
to the rudiment that for judicial review to be
exercised, there must be an existing case or
controversy that is appropriate or ripe for
determination, and not conjectural or anticipatory.
18
To authorize law enforcement authorities to arrest

someone for nearly no other reason than the fact
that he cannot find gainful employment would
indeed be adding insult to injury. 10
On its pronouncement that Article 202 (2) violated
the equal protection clause of the Constitution, the
trial court declared:
The application of the Anti-Vagrancy Law, crafted in
the 1930s, to our situation at present runs afoul of
the equal protection clause of the constitution as it
offers no reasonable classification between those
covered by the law and those who are not.
Class legislation is such legislation which denies
rights to one which are accorded to others, or
inflicts upon one individual a more severe penalty
than is imposed upon another in like case
offending.
Applying this to the case at bar, since the definition
of Vagrancy under Article 202 of the Revised Penal
Code offers no guidelines or any other reasonable
indicators to differentiate those who have no visible
means of support by force of circumstance and
those who choose to loiter about and bum around,
who are the proper subjects of vagrancy legislation,
it cannot pass a judicial scrutiny of its
constitutionality. 11
Hence, this petition for review on certiorari raising
the sole issue of:
WHETHER THE REGIONAL TRIAL COURT
COMMITTED A REVERSIBLE ERROR IN
DECLARING UNCONSTITUTIONAL ARTICLE 202
(2) OF THE REVISED PENAL CODE 12
Petitioner argues that every statute is presumed
valid and all reasonable doubts should be resolved
in favor of its constitutionality; that, citing
Romualdez v. Sandiganbayan, 13 the overbreadth
and vagueness doctrines have special application
to free-speech cases only and are not appropriate
for testing the validity of penal statutes; that
respondents failed to overcome the presumed
validity of the statute, failing to prove that it was
vague under the standards set out by the Courts;
and that the State may regulate individual conduct
for the promotion of public welfare in the exercise of
its police power. caDTSE
On the other hand, respondents argue against the
limited application of the overbreadth and
vagueness doctrines. They insist that Article 202 (2)
on its face violates the constitutionally-guaranteed
rights to due process and the equal protection of
the laws; that the due process vagueness standard,
as distinguished from the free speech vagueness
doctrine, is adequate to declare Article 202 (2)
unconstitutional and void on its face; and that the
presumption of constitutionality was adequately
overthrown.
The first statute punishing vagrancy Act No. 519

was modeled after American vagrancy statutes
and passed by the Philippine Commission in 1902.
The Penal Code of Spain of 1870 which was in
force in this country up to December 31, 1931 did
not contain a provision on vagrancy. 19 While
historically an Anglo-American concept of crime
prevention, the law on vagrancy was included by
the Philippine legislature as a permanent feature of
the Revised Penal Code in Article 202 thereof
which, to repeat, provides:
ART. 202. Vagrants and prostitutes; penalty. The
following are vagrants:
1. Any person having no apparent means of
subsistence, who has the physical ability to work
and who neglects to apply himself or herself to
some lawful calling;
2. Any person found loitering about public or semipublic buildings or places, or tramping or wandering
about the country or the streets without visible
means of support;
145
The poor among us, the minorities, the average

householder, are not in business and not alerted to
the regulatory schemes of vagrancy laws; and we
assume they would have no understanding of their
meaning and impact if they read them. Nor are they
protected from being caught in the vagrancy net by
the necessity of having a specific intent to commit
an unlawful act. See Screws v. United States, 325
U.S. 91; Boyce Motor Lines, Inc. v. United States,
supra.
3. Any idle or dissolute person who lodges in

houses of ill-fame; ruffians or pimps and those who
habitually associate with prostitutes;
4. Any person who, not being included in the
provisions of other articles of this Code, shall be
found loitering in any inhabited or uninhabited place
belonging to another without any lawful or justifiable
purpose;
5. Prostitutes.
The Jacksonville ordinance makes criminal

activities which, by modern standards, are normally
innocent. "Nightwalking" is one. Florida construes
the ordinance not to make criminal one night's
wandering, Johnson v. State, 202 So.2d at 855,
only the "habitual" wanderer or, as the ordinance
describes it, "common night walkers".We know,
however, from experience that sleepless people
often walk at night, perhaps hopeful that sleepinducing relaxation will result.
For the purposes of this article, women who, for

money or profit, habitually indulge in sexual
intercourse or lascivious conduct, are deemed to be
prostitutes.
Any person found guilty of any of the offenses
covered by this article shall be punished by arresto
menor or a fine not exceeding 200 pesos, and in
case of recidivism, by arresto mayor in its medium
period to prision correccional in its minimum period
or a fine ranging from 200 to 2,000 pesos, or both,
in the discretion of the court. HCaDET
Luis Munoz-Marin, former Governor of Puerto Rico,

commented once that "loafing" was a national
virtue in his Commonwealth, and that it should be
encouraged. It is, however, a crime in Jacksonville.
In the instant case, the assailed provision is

paragraph (2),which defines a vagrant as any
person found loitering about public or semi-public
buildings or places, or tramping or wandering about
the country or the streets without visible means of
support. This provision was based on the second
clause of Section 1 of Act No. 519 which defined
"vagrant" as "every person found loitering about
saloons or dramshops or gambling houses, or
tramping or straying through the country without
visible means of support". The second clause was
essentially retained with the modification that the
places under which the offense might be committed
is now expressed in general terms public or
semi-public places.
The Regional Trial Court, in asserting the
unconstitutionality of Article 202 (2),take support
mainly from the U.S. Supreme Court's opinion in
the Papachristou v. City of Jacksonville 20 case,
which in essence declares:
Living under a rule of law entails various
suppositions, one of which is that "[all persons] are
entitled to be informed as to what the State
commands or forbids". Lanzetta v. New Jersey, 306
U.S. 451, 306 U.S. 453. IDcTEA
xxx xxx xxx

Persons "wandering or strolling" from place to place
have been extolled by Walt Whitman and Vachel
Lindsay. The qualification "without any lawful
purpose or object" may be a trap for innocent acts.
Persons "neglecting all lawful business and
habitually spending their time by frequenting
...places where alcoholic beverages are sold or
served'' would literally embrace many members of
golf clubs and city clubs.
Walkers and strollers and wanderers may be going
to or coming from a burglary. Loafers or loiterers
may be "casing" a place for a holdup. Letting one's
wife support him is an intra-family matter, and
normally of no concern to the police. Yet it may, of
course, be the setting for numerous crimes.
The difficulty is that these activities are historically
part of the amenities of life as we have known
them. They are not mentioned in the Constitution or
in the Bill of Rights. These unwritten amenities
have been, in part, responsible for giving our
people the feeling of independence and selfconfidence, the feeling of creativity. These
amenities have dignified the right of dissent, and
have honored the right to be nonconformists and
the right to defy submissiveness. They have
encouraged lives of high spirits, rather than
hushed, suffocating silence.
Lanzetta is one of a well recognized group of cases

insisting that the law give fair notice of the offending
conduct. See Connally v. General Construction Co.,
269 U.S. 385, 269 U.S. 391; Cline v. Frink Dairy
Co., 274 U.S. 445; United States v. Cohen Grocery
Co., 255 U.S. 81. In the field of regulatory statutes
governing business activities, where the acts
limited are in a narrow category, greater leeway is
allowed. Boyce Motor Lines, Inc. v. United States,
342 U.S. 337; United States v. National Dairy
Products Corp.,372 U.S. 29; United States v.
Petrillo, 332 U.S. 1.
xxx xxx xxx

Where the list of crimes is so all-inclusive and
generalized as the one in this ordinance, those
convicted may be punished for no more than
vindicating affronts to police authority:
146
thereof, which are not found in Article 202 (2).The

ordinance (Jacksonville Ordinance Code 257)
provided, as follows:
Rogues and vagabonds, or dissolute persons who
go about begging; common gamblers, persons who
use juggling or unlawful games or plays, common
drunkards, common night walkers, thieves, pilferers
or pickpockets, traders in stolen property, lewd,
wanton and lascivious persons, keepers of
gambling places, common railers and brawlers,
persons wandering or strolling around from place to
place without any lawful purpose or object, habitual
loafers, disorderly persons, persons neglecting all
lawful business and habitually spending their time
by frequenting houses of ill fame, gaming houses,
or places where alcoholic beverages are sold or
served, persons able to work but habitually living
upon the earnings of their wives or minor children
shall be deemed vagrants and, upon conviction in
the Municipal Court shall be punished as provided
for Class D offenses.
"The common ground which brings such a motley

assortment of human troubles before the
magistrates in vagrancy-type proceedings is the
procedural laxity which permits 'conviction' for
almost any kind of conduct and the existence of the
House of Correction as an easy and convenient
dumping-ground for problems that appear to have
no other immediate solution." Foote, VagrancyType Law and Its Administration, 104 U.Pa.L.Rev.
603, 631.
xxx xxx xxx
Another aspect of the ordinance's vagueness
appears when we focus not on the lack of notice
given a potential offender, but on the effect of the
unfettered discretion it places in the hands of the
Jacksonville police. Caleb Foote, an early student
of this subject, has called the vagrancy-type law as
offering "punishment by analogy".Such crimes,
though long common in Russia, are not compatible
with our constitutional system.
Thus, the U.S. Supreme Court in Jacksonville

declared the ordinance unconstitutional, because
such activities or habits as nightwalking, wandering
or strolling around without any lawful purpose or
object, habitual loafing, habitual spending of time at
places where alcoholic beverages are sold or
served,and living upon the earnings of wives or
minor children,which are otherwise common and
normal, were declared illegal. But these are specific
acts or activities not found in Article 202 (2).The
closest to Article 202 (2) "any person found
loitering about public or semi-public buildings or
places, or tramping or wandering about the country
or the streets without visible means of support"
from the Jacksonville ordinance, would be "persons
wandering or strolling around from place to place
without any lawful purpose or object". But these two
acts are still not the same: Article 202 (2) is
qualified by "without visible means of support" while
the Jacksonville ordinance prohibits wandering or
strolling "without any lawful purpose or
object",which was held by the U.S. Supreme Court
to constitute a "trap for innocent acts".
Under the Constitution, the people are guaranteed
the right to be secure in their persons, houses,
papers and effects against unreasonable searches
and seizures of whatever nature and for any
purpose, and no search warrant or warrant of arrest
shall issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized. 24 Thus, as
with any other act or offense, the requirement of
probable cause provides an acceptable limit on
police or executive authority that may otherwise be
abused in relation to the search or arrest of persons
found to be violating Article 202 (2).The fear
exhibited by the respondents, echoing Jacksonville,
that unfettered discretion is placed in the hands of
the police to make an arrest or search, is therefore
assuaged by the constitutional requirement of
xxx xxx xxx

A presumption that people who might walk or loaf
or loiter or stroll or frequent houses where liquor is
sold, or who are supported by their wives or who
look suspicious to the police are to become future
criminals is too precarious for a rule of law. The
implicit presumption in these generalized vagrancy
standards that crime is being nipped in the bud
is too extravagant to deserve extended
treatment. Of course, vagrancy statutes are useful
to the police. Of course, they are nets making easy
the roundup of so-called undesirables. But the rule
of law implies equality and justice in its application.
Vagrancy laws of the Jacksonville type teach that
the scales of justice are so tipped that even-handed
administration of the law is not possible. The rule of
law, evenly applied to minorities as well as
majorities, to the poor as well as the rich, is the
great mucilage that holds society together. 21
The underlying principles in Papachristou are that:
1) the assailed Jacksonville ordinance "fails to give
a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the
statute";and 2) it encourages or promotes
opportunities for the application of discriminatory
law enforcement. TCDHIc
The said underlying principle in Papachristou that
the Jacksonville ordinance, or Article 202 (2) in this
case, fails to give fair notice of what constitutes
forbidden conduct, finds no application here
because under our legal system, ignorance of the
law excuses no one from compliance therewith. 22
This principle is of Spanish origin, and we adopted
it to govern and limit legal conduct in this
jurisdiction. Under American law, ignorance of the
law is merely a traditional rule that admits of
exceptions. 23
Moreover, the Jacksonville ordinance was declared
unconstitutional on account of specific provisions
147
probable cause, which is one less than certainty or

proof, but more than suspicion or possibility. 25
Evidently, the requirement of probable cause
cannot be done away with arbitrarily without pain of
punishment, for, absent this requirement, the
authorities are necessarily guilty of abuse. The
grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably
guilty of committing the offense, is based on actual
facts, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause
of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable
cause, coupled with good faith of the peace officers
making the arrest. 26
The State cannot in a cavalier fashion intrude into
the persons of its citizens as well as into their
houses, papers and effects. The constitutional
provision sheathes the private individual with an
impenetrable armor against unreasonable searches
and seizures. It protects the privacy and sanctity of
the person himself against unlawful arrests and
other forms of restraint, and prevents him from
being irreversibly cut off from that domestic security
which renders the lives of the most unhappy in
some measure agreeable. 27
As applied to the instant case, it appears that the
police authorities have been conducting previous
surveillance operations on respondents prior to
their arrest. On the surface, this satisfies the
probable cause requirement under our Constitution.
For this reason, we are not moved by respondents'
trepidation that Article 202 (2) could have been a
source of police abuse in their case. ACIEaH
Since the Revised Penal Code took effect in 1932,
no challenge has ever been made upon the
constitutionality of Article 202 except now. Instead,
throughout the years, we have witnessed the
streets and parks become dangerous and unsafe, a
haven for beggars, harassing "watch-your-car"
boys, petty thieves and robbers, pickpockets,
swindlers, gangs, prostitutes, and individuals
performing acts that go beyond decency and
morality, if not basic humanity. The streets and
parks have become the training ground for petty
offenders who graduate into hardened and battlescarred criminals. Everyday, the news is rife with
reports of innocent and hardworking people being
robbed, swindled, harassed or mauled if not
killed by the scourge of the streets. Blue collar
workers are robbed straight from withdrawing hardearned money from the ATMs (automated teller
machines);students are held up for having to use
and thus exhibit publicly their mobile phones; frail
and helpless men are mauled by thrill-seeking
gangs; innocent passers-by are stabbed to death
by rowdy drunken men walking the streets; fairlooking or pretty women are stalked and harassed,
if not abducted, raped and then killed; robbers,
thieves, pickpockets and snatchers case streets
and parks for possible victims; the old are swindled
of their life savings by conniving streetsmart bilkers
and con artists on the prowl; beggars endlessly
pester and panhandle pedestrians and commuters,
posing a health threat and putting law-abiding

drivers and citizens at risk of running them over. All
these happen on the streets and in public places,
day or night.
The streets must be protected. Our people should
never dread having to ply them each day, or else
we can never say that we have performed our task
to our brothers and sisters. We must rid the streets
of the scourge of humanity, and restore order,
peace, civility, decency and morality in them.
This is exactly why we have public order laws,to
which Article 202 (2) belongs. These laws were
crafted to maintain minimum standards of decency,
morality and civility in human society. These laws
may be traced all the way back to ancient times,
and today, they have also come to be associated
with the struggle to improve the citizens' quality of
life, which is guaranteed by our Constitution. 28
Civilly,they are covered by the "abuse of rights"
doctrine embodied in the preliminary articles of the
Civil Code concerning Human Relations, to the
end, in part, that any person who willfully causes
loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall
compensate the latter for the damage. 29 This
provision is, together with the succeeding articles
on human relations, intended to embody certain
basic principles "that are to be observed for the
rightful relationship between human beings and for
the stability of the social order".30
In civil law, for example, the summary remedy of
ejectment is intended to prevent criminal disorder
and breaches of the peace and to discourage those
who, believing themselves entitled to the
possession of the property, resort to force rather
than to some appropriate action in court to assert
their claims. 31 Any private person may abate a
public nuisance which is specially injurious to him
by removing, or if necessary, by destroying the
thing which constitutes the same, without
committing a breach of the peace, or doing
unnecessary injury. 32
Criminally, public order laws encompass a whole
range of acts from public indecencies and
immoralities, to public nuisances, to disorderly
conduct. The acts punished are made illegal by
their offensiveness to society's basic sensibilities
and their adverse effect on the quality of life of the
people of society. For example, the issuance or
making of a bouncing check is deemed a public
nuisance, a crime against public order that must be
abated. 33 As a matter of public policy, the failure to
turn over the proceeds of the sale of the goods
covered by a trust receipt or to return said goods, if
not sold, is a public nuisance to be abated by the
imposition of penal sanctions. 34 Thus, public
nuisances must be abated because they have the
effect of interfering with the comfortable enjoyment
of life or property by members of a community.
cETCID
Article 202 (2) does not violate the equal protection
clause; neither does it discriminate against the poor
and the unemployed. Offenders of public order laws
are punished not for their status, as for being poor
or unemployed, but for conducting themselves
148
under such circumstances as to endanger the

public peace or cause alarm and apprehension in
the community. Being poor or unemployed is not a
license or a justification to act indecently or to
engage in immoral conduct.
Vagrancy must not be so lightly treated as to be
considered constitutionally offensive. It is a public
order crime which punishes persons for conducting
themselves, at a certain place and time which
orderly society finds unusual, under such conditions
that are repugnant and outrageous to the common
standards and norms of decency and morality in a
just, civilized and ordered society, as would
engender a justifiable concern for the safety and
well-being of members of the community.
Instead of taking an active position declaring public
order laws unconstitutional, the State should train
its eye on their effective implementation, because it
is in this area that the Court perceives difficulties.
Red light districts abound, gangs work the streets in
the wee hours of the morning, dangerous robbers
and thieves ply their trade in the trains stations,
drunken men terrorize law-abiding citizens late at
night and urinate on otherwise decent corners of
our streets. Rugby-sniffing individuals crowd our
national parks and busy intersections. Prostitutes
wait for customers by the roadside all around the
metropolis, some even venture in bars and
restaurants. Drug-crazed men loiter around dark
avenues waiting to pounce on helpless citizens.
Dangerous groups wander around, casing homes
and establishments for their next hit. The streets
must be made safe once more. Though a man's
house is his castle, 35 outside on the streets, the
king is fair game.
The dangerous streets must surrender to orderly
society.
Finally, we agree with the position of the State that
first and foremost, Article 202 (2) should be
presumed
valid
and constitutional.
When
confronted with a constitutional question, it is
elementary that every court must approach it with
grave care and considerable caution bearing in
mind that every statute is presumed valid and every
reasonable doubt should be resolved in favor of its
constitutionality. 36 The policy of our courts is to
avoid ruling on constitutional questions and to
presume that the acts of the political departments
are valid in the absence of a clear and
unmistakable showing to the contrary. To doubt is
to sustain, this presumption is based on the
doctrine of separation of powers which enjoins
upon each department a becoming respect for the
acts of the other departments. The theory is that as
the joint act of Congress and the President of the
Philippines, a law has been carefully studied,
crafted and determined to be in accordance with
the fundamental law before it was finally enacted.
37
It must not be forgotten that police power is an
inherent attribute of sovereignty. It has been
defined as the power vested by the Constitution in
the legislature to make, ordain, and establish all
manner of wholesome and reasonable laws,
statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they

shall judge to be for the good and welfare of the
commonwealth, and for the subjects of the same.
The power is plenary and its scope is vast and
pervasive, reaching and justifying measures for
public health, public safety, public morals, and the
general welfare. 38 As an obvious police power
measure, Article 202 (2) must therefore be viewed
in a constitutional light. cASIED
WHEREFORE,the petition is GRANTED.The
Decision of Branch 11 of the Regional Trial Court of
Davao City in Special Civil Case No. 30-500-2004
declaring Article 202, paragraph 2 of the Revised
Penal Code UNCONSTITUTIONAL is REVERSED
and SET ASIDE.
Let the proceedings in Criminal Cases Nos.
115,716-C-2003
and
115,717-C-2003
thus
continue.
No costs.
SO ORDERED.
Chico-Nazario, Velasco, Jr.,Peralta and Bersamin, *
JJ., concur.
||| (People v. Siton y Sacil, G.R. No. 169364,
[September 18, 2009], 616 PHIL 449-473)
2. DLSU VS. CA 541 SCRA 22 (2007)
THIRD DIVISION
[G.R. No. 127980. December 19, 2007.]
DE LA SALLE UNIVERSITY, INC., EMMANUEL
SALES, RONALD HOLMES, JUDE DELA TORRE,
AMPARO RIO, CARMELITA QUEBENGCO,
AGNES YUHICO and JAMES YAP, petitioners, vs.
THE COURT OF APPEALS, HON. WILFREDO D.
REYES, in his capacity as Presiding Judge of
Branch 36, Regional Trial Court of Manila, THE
COMMISSION ON HIGHER EDUCATION, THE
DEPARTMENT OF EDUCATION CULTURE AND
SPORTS, ALVIN AGUILAR, JAMES PAUL
BUNGUBUNG, RICHARD REVERENTE and
ROBERTO VALDES, JR., respondents.
DECISION
REYES, R.T., J p:
NAGTATAGIS sa kasong ito ang karapatang magaral ng apat na estudyante na nasangkot sa away
ng dalawang fraternity at ang karapatang
akademiko ng isang pamantasan.
PRIVATE respondents Alvin Aguilar, James Paul
Bungubung, Richard Reverente and Roberto
Valdes, Jr. are members of Tau Gamma Phi
Fraternity who were expelled by the De La Salle
University (DLSU) and College of Saint Benilde
(CSB) 1 Joint Discipline Board because of their
involvement in an offensive action causing injuries
to petitioner James Yap and three other student
149
members of Domino Lux Fraternity. This is the

backdrop of the controversy before Us pitting
private respondents' right to education vis-a-vis the
University's right to academic freedom.
Came March 29, 1995 and the following events.

Ten minutes before his next class at 6:00 p.m., Mr.
James Yap went out of the campus using the
Engineering Gate to buy candies across Taft
Avenue. As he was about to re-cross Taft Avenue,
he heard heavy footsteps at his back. Eight to ten
guys were running towards him. He panicked. He
did not know what to do. Then, respondent
Bungubung punched him in the head with
something heavy in his hands "parang
knuckles." Respondents Reverente and Lee were
behind
Yap,
punching
him.
Respondents
Bungubung and Valdes who were in front of him,
were also punching him. As he was lying on the
street, respondent Aguilar kicked him. People
shouted; guards arrived; and the group of attackers
left.
ASSAILED in this Petition for Certiorari, Prohibition

and Mandamus under Rule 65 of the Rules of Court
are the following: (1) Resolution of the Court of
Appeals (CA) dated July 30, 1996 dismissing
DLSU's petition for certiorari against respondent
Judge
and
private
respondents
Aguilar,
Bungubung, Reverente, and Valdes, Jr.; 2 (2)
Resolution of the CA dated October 15, 1996
denying the motion for reconsideration; 3 (3) Order
dated January 7, 1997 of the Regional Trial Court
(RTC), Branch 36 Manila granting private
respondent Aguilar's motion to reiterate writ of
preliminary injunction; 4 and (4) Resolution No.
181-96 dated May 14, 1996 of the Commission on
Higher Education (CHED) exonerating private
respondent Aguilar and lowering the penalties for
the other private respondents from expulsion to
exclusion. 5
Mr. Yap could not recognize the other members of

the group who attacked him. With respect to
respondent Papio, Mr. Yap said "hindi ko nakita ang
mukha niya, hindi ko nakita sumuntok siya." What
Mr. Yap saw was a long haired guy also running
with the group.
Factual Antecedents
Gleaned from the May 3, 1995 Decision of the
DLSU-CSB Joint Discipline Board, two violent
incidents on March 29, 1995 involving private
respondents occurred:
Two guards escorted Mr. Yap inside the campus. At

this point, Mr. Dennis Pascual was at the
Engineering Gate. Mr. Pascual accompanied Yap to
the university clinic; reported the incident to the
Discipline Office; and informed his fraternity brods
at their tambayan. According to Mr. Pascual, their
head of the Domino Lux Fraternity said: "Walang
gagalaw. Uwian na lang." DTAIaH
. . . From the testimonies of the complaining

witnesses, it appears that one week prior to March
29, 1995, Mr. James Yap was eating his dinner
alone in Manang's Restaurant near La Salle, when
he overheard two men bad-mouthing and
apparently angry at Domino Lux. He ignored the
comments of the two. When he arrived at his
boarding house, he mentioned the remarks to his
two other brods while watching television. These
two brods had earlier finished eating their dinner at
Manang's. Then, the three, together with four other
persons went back to Manang's and confronted the
two who were still in the restaurant. By admission
of respondent Bungubung in his testimony, one of
the two was a member of the Tau Gamma Phi
Fraternity. There was no rumble or physical
violence then.
Mr. Ericson Cano, who was supposed to hitch a

ride with Dennis Pascual, saw him under the clock
in Miguel Building. However, they did not proceed
directly for home. With a certain Michael Perez,
they went towards the direction of Dagonoy Street
because Mr. Pascual was supposed to pick up a
book for his friend from another friend who lives
somewhere in the area.
As they were along Dagonoy Street, and before
they could pass the Kolehiyo ng Malate Restaurant,
Mr. Cano first saw several guys inside the
restaurant. He said not to mind them and just keep
on walking. However, the group got out of the
restaurant, among them respondents Reverente,
Lee and Valdes. Mr. Cano told Mr. Lee: "Ayaw
namin ng gulo." But, respondent Lee hit Mr. Cano
without provocation. Respondent Reverente kicked
Mr. Pascual and respondent Lee also hit Mr.
Pascual. Mr. Cano and Mr. Perez managed to run
from the mauling and they were chased by
respondent Lee and two others.
After this incident, a meeting was conducted

between the two heads of the fraternity through the
intercession of the Student Council. The Tau
Gamma Phi Fraternity was asking for an apology.
"Kailangan ng apology" in the words of respondent
Aguilar. But no apology was made.
Then, 5 members of the Tau Gamma Phi Fraternity
went to the tambayan of the Domino Lux Fraternity
in the campus. Among them were respondents
Bungubung, Reverente and Papio. They were
looking for a person whose description matched
James Yap. According to them, this person
supposedly "nambastos ng brod." As they could not
find Mr. Yap, one of them remarked "Paano ba iyan.
Pasensiya na lang."
Mr. Pascual was left behind. After respondent

Reverente first kicked him, Mr. Pascual was
ganged-upon by the rest. He was able to run, but
the group was able to catch up with him. His shirt
was torn and he was hit at the back of his head with
a lead pipe. Respondent Lee who was chasing
Cano and Perez, then returned to Mr. Pascual.
150
CHED Order No. 4 arising from the written

complaints of James Yap, Dennis C. Pascual, and
Ericson Y. Cano.
Mr. Pascual identified respondents Reverente and

Lee, as among those who hit him. Although Mr.
Pascual did not see respondent Valdes hit him, he
identified respondent Valdez (sic) as also one of the
members of the group. HCTaAS
You are directed to appear at the hearing of the

Board scheduled on April 19, 1995 at 9:00 a.m. at
the Bro. Connon Hall for you and your witnesses to
give testimony and present evidence in your behalf.
You may be assisted by a lawyer when you give
your testimony or those of your witnesses.
In fact, Mr. Cano saw respondent Valdes near Mr.

Pascual. He was almost near the corner of Leon
Guinto and Estrada; while respondent Pascual who
managed to run was stopped at the end of
Dagonoy along Leon Guinto. Respondent Valdes
shouted: "Mga putang-ina niyo." Respondent
Reverente hit Mr. Pascual for the last time.
Apparently being satisfied with their handiwork, the
group left. The victims, Cano, Perez and Pascual
proceeded to a friend's house and waited for
almost two hours, or at around 8:00 in the evening
before they returned to the campus to have their
wounds treated. Apparently, there were three cars
roaming the vicinity. 6
On or before April 18, 1995, you are further directed

to provide the Board, through the Discipline Office,
with a list of your witnesses as well as the sworn
statement of their proposed testimony.
Your failure to appear at the scheduled hearing or
your failure to submit the list of witnesses and the
sworn statement of their proposed testimony will be
considered a waiver on your part to present
evidence and as an admission of the principal act
complained of.
The mauling incidents were a result of a fraternity

war. The victims, namely: petitioner James Yap and
Dennis Pascual, Ericson Cano, and Michael Perez,
are members of the "Domino Lux Fraternity," while
the alleged assailants, private respondents Alvin
Aguilar, James Paul Bungubung, Richard
Reverente and Roberto Valdes, Jr. are members of
"Tau Gamma Phi Fraternity," a rival fraternity.
For your strict compliance. 13

During the proceedings before the Board on April
19 and 28, 1995, private respondents interposed
the common defense of alibi, summarized by the
DLSU-CSB Joint Discipline Board as follows:
The next day, March 30, 1995, petitioner Yap

lodged a complaint 7 with the Discipline Board of
DLSU charging private respondents with "direct
assault." Similar complaints 8 were also filed by
Dennis Pascual and Ericson Cano against Alvin
Lee and private respondents Valdes and
Reverente. Thus, cases entitled "De La Salle
University and College of St. Benilde v. Alvin
Aguilar
(AB-BSM/9152105),
James
Paul
Bungubung (AB-PSM/9234403), Robert R. Valdes,
Jr.
(BS-BS-APM/9235086),
Alvin
Lee
(EDD/9462325),
Richard
Reverente
(ABMGT/9153837) and Malvin A. Papio (ABMGT/9251227)" were docketed as Discipline Case
No. 9495-3-25121.
First, in the case of respondent Bungubung, March

29, 1995 was one of the few instances when he
was picked-up by a driver, a certain Romeo S.
Carillo. Most of the time, respondent Bungubung
goes home alone sans driver. But on this particular
date, respondent Bungubung said that his dad
asked his permission to use the car and thus, his
dad instructed this driver Carillo to pick-up his son.
Mr. Carillo is not a family driver, but works from
8:00 a.m. to 5:00 p.m. for the Philippine Ports
Authority where the elder Bungubung is also
employed.
Thus, attempting to corroborate the alibi of
respondent Bungubung, Mr. Carillo said that he
arrived at La Salle at 4:56 p.m.; picked-up
respondent at 5:02 p.m.; took the Roxas Blvd. route
towards respondent's house in BF Paraaque (on a
Wednesday in Baclaran); and arrived at the house
at 6:15 p.m. Respondent Bungubung was droppedoff in his house, and taking the same route back,
Mr. Carillo arrived at the South Harbor at 6:55 p.m.
the Philippine Ports Authority is located at the
South Harbor. 14
The Director of the DLSU Discipline Office sent

separate notices to private respondents Aguilar,
Bungubung and Valdes, Jr. and Reverente
informing them of the complaints and requiring
them to answer. Private respondents filed their
respective answers. 9
As it appeared that students from DLSU and CSB
10 were involved in the mauling incidents, a joint
DLSU-CSB Discipline Board 11 was formed to
investigate the incidents. Thus, petitioner Board
Chairman Emmanuel Sales sent notices of hearing
12 to private respondents on April 12, 1995. Said
notices uniformly stated as follows:
xxx xxx xxx

Secondly, respondent Valdes said that he was with
his friends at McDonald's Taft just before 6:00 p.m.
of March 29, 1995. He said that he left McDonald at
5:50 p.m. together to get some medicine at the
university clinic for his throat irritation. He said that
Please be informed that a joint and expanded

Discipline Board had been constituted to hear and
deliberate the charge against you for violation of
151
he was at the clinic at 5:52 p.m. and went back to

McDonald, all within a span of 3 or even 4 minutes.
assigned to respondent Judge of Branch 36. The

petition essentially sought to annul the May 3, 1995
Resolution of the DLSU-CSB Joint Discipline Board
and the June 1, 1995 Letter-Resolution of the
Office of the Senior Vice-President for Internal
Affairs.
Two witnesses, a certain Sharon Sia and the

girlfriend of respondent Valdes, a certain Jorgette
Aquino, attempted to corroborate Valdez' alibi. 15
xxx xxx xxx
The following day, June 6, 1995, respondent Judge

issued a TRO 24 directing DLSU, its subordinates,
agents, representatives and/or other persons acting
for and in its behalf to refrain and desist from
implementing Resolution dated May 3, 1995 and
Letter-Resolution dated June 1, 1995 and to
immediately desist from barring the enrollment of
Aguilar for the second term of school year (SY)
1995.
Third, respondent Reverente told that (sic) the

Board that he was at his home at 5:00 p.m. of
March 29, 1995. He said that he was given the
responsibility to be the paymaster of the
construction workers who were doing some works
in the apartment of his parents. Although he had
classes in the evening, the workers according to
him would wait for him sometimes up to 9:00 p.m.
when he arrives from his classes. The workers get
paid everyday.
Subsequently, private respondent Aguilar filed an

ex parte motion to amend his petition to correct an
allegation in paragraph 3.21 25 of his original
petition. Respondent Judge amended the TRO 26
to conform to the correction made in the amended
petition. 27
Respondent Reverente submitted an affidavit,

unsigned by the workers listed there, supposedly
attesting to the fact that he paid the workers at the
date and time in question. 16
On June 7, 1995, the CHED directed DLSU to

furnish it with copies of the case records of
Discipline Case No. 9495-3-25121, 28 in view of
the authority granted to it under Section 77 (c) of
the Manual of Regulations for Private Schools
(MRPS).
xxx xxx xxx

Fourth, respondent Aguilar "solemnly sw[ore] that
[he] left DLSU at 5:00 p.m. for Camp Crame for a
meeting with some of the officers that we were
preparing." 17
On the other hand, private respondents Bungubung

and Reverente, and later, Valdes, filed petitions-inintervention 29 in Civil Case No. 95-74122.
Respondent Judge also issued corresponding
temporary restraining orders to compel petitioner
DLSU to admit said private respondents.
On May 3, 1995, the DLSU-CSB Joint Discipline

Board issued a Resolution 18 finding private
respondents guilty. They were meted the supreme
penalty of automatic expulsion, 19 pursuant to
CHED Order No. 4. 20 The dispositive part of the
resolution reads:
On June 19, 1995, petitioner Sales filed a motion to

dismiss 30 in behalf of all petitioners, except James
Yap. On June 20, 1995, petitioners filed a
supplemental motion to dismiss 31 the petitions-inintervention.
WHEREFORE, considering all the foregoing, the

Board finds respondents ALVIN AGUILAR (ABBSM/9152105), JAMES PAUL BUNGUBUNG (ABPSM/9234403), ALVIN LEE (EDD/94623250) and
RICHARD V. REVERENTE (AB-MGT/9153837)
guilty of having violated CHED Order No. 4 and
thereby orders their automatic expulsion.
On September 20, 1995, respondent Judge issued

an Order 32 denying petitioners' (respondents
there) motion to dismiss and its supplement, and
granted private respondents' (petitioners there)
prayer for a writ of preliminary injunction. The
pertinent part of the Order reads:
In the case of respondent MALVIN A. PAPIO (ABMGT/9251227), the Board acquits him of the
charge.
SO ORDERED. 21
For this purpose, respondent, its agents,

representatives or any and all other persons acting
for and in its behalf is/are restrained and enjoined
from
Private respondents separately moved for

reconsideration 22 before the Office of the Senior
Vice-President for Internal Operations of DLSU.
The motions were all denied in a Letter-Resolution
23 dated June 1, 1995.

petitioner and the petitioners-in-intervention from
the De La Salle University and the letter-resolution
dated June 1, 1995, affirming the Resolution dated
May 3, 1995; and
On June 5, 1995, private respondent Aguilar filed

with the RTC, Manila, against petitioners a petition
for certiorari and injunction under Rule 65 of the
Rules of Court with prayer for temporary restraining
order (TRO) and/or writ of preliminary injunction. It
was docketed as Civil Case No. 95-74122 and
2. Barring the enrolment of petitioner and

152
respondent De La Salle University and to

immediately allow them to enroll and complete their
respective courses/degrees until their graduation
thereat in accordance with the standards set by the
latter.
3, 1995 and to immediately desist from barring the

enrolment of petitioner and intervenors in the
courses offered at DLSU and to allow them to enroll
and complete their degree courses until their
graduation from said school. 36
WHEREFORE, the ancillary remedy prayed for is

granted. Respondent, its agents, representatives,
or any and all persons acting for and its behalf are
hereby restrained and enjoyed from:
On October 16, 1995, petitioner DLSU filed with the

CA a petition for certiorari 37 (CA-G.R. SP No.
38719) with prayer for a TRO and/or writ of
preliminary injunction to enjoin the enforcement of
respondent Judge's September 20, 1995 Order and
writ of preliminary injunction dated September 25,
1995.

petitioner and petitioners-in-intervention and the
Letter-Resolution dated June 1, 1995; and
On April 12, 1996, the CA granted petitioners'

prayer for preliminary injunction.
2. Barring the enrollment of petitioner and

respondent (De La Salle University) and to forthwith
allow all said petitioner and petitioners-inintervention to enroll and complete their respective
courses/degrees until their graduation thereat.
On May 14, 1996, the CHED issued its questioned

Resolution No. 181-96, summarily disapproving the
penalty of expulsion for all private respondents. As
for Aguilar, he was to be reinstated, while other
private respondents were to be excluded. 38 The
Resolution states:
The Writ of Preliminary Injunction shall take effect

upon petitioner and petitioners-in-intervention
posting an injunctive bond in the amount of
P15,000.00 executed in favor of respondent to the
effect that petitioner and petitioners-in-intervention
will pay to respondent all damages that the latter
may suffer by reason of the injunction if the Court
will finally decide that petitioner and petitioners-inintervention are not entitled thereto.
RESOLUTION 181-96
RESOLVED THAT THE REQUEST OF THE DE LA
SALLE UNIVERSITY (DLSU), TAFT AVENUE,
MANILA FOR THE APPROVAL OF THE PENALTY
OF EXPULSION IMPOSED ON MR. ALVIN
AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT
R. VALDES, JR., ALVIN LEE AND RICHARD V.
REVERENTE BE, AS IT IS HEREBY IS,
DISAPPROVED.
The motion to dismiss and the supplement thereto

is denied for lack of merit. Respondents are
directed to file their Answer to the Petition not later
than fifteen (15) days from receipt thereof.
RESOLVED FURTHER, THAT THE COMMISSION

DIRECT THE DLSU TO IMMEDIATELY EFFECT
THE REINSTATEMENT OF MR. AGUILAR AND
THE LOWERING OF THE PENALTY OF MR.
JAMES PAUL BUNGUBUNG, MR. ROBER R.
VALDEZ, JR., (sic) MR. ALVIN LEE AND MR.
RICHARD V. REVERENTE FROM EXPULSION
TO EXCLUSION. 39
SO ORDERED. 33
Despite the said order, private respondent Aguilar
was refused enrollment by petitioner DLSU when
he attempted to enroll on September 22, 1995 for
the second term of SY 1995-1996. Thus, on
September 25, 1995, Aguilar filed with respondent
Judge an urgent motion to cite petitioners
(respondents there) in contempt of court. 34 Aguilar
also prayed that petitioners be compelled to enroll
him at DLSU in accordance with respondent
Judge's Order dated September 20, 1995. On
September 25, 1995, respondent Judge issued 35
a writ of preliminary injunction, the relevant portion
of which reads:
Despite the directive of CHED, petitioner DLSU

again prevented private respondent Aguilar from
enrolling and/or attending his classes, prompting
his lawyer to write several demand letters 40 to
petitioner DLSU. In view of the refusal of petitioner
DLSU to enroll private respondent Aguilar, CHED
wrote a letter dated June 26, 1996 addressed to
petitioner Quebengco requesting that private
respondent Aguilar be allowed to continue
attending his classes pending the resolution of its
motion for reconsideration of Resolution No. 18196. However, petitioner Quebengco refused to do
so, prompting CHED to promulgate an Order dated
September 23, 1996 which states:
IT IS HEREBY ORDERED by the undersigned of

the REGIONAL TRIAL COURT OF MANILA that
until further orders, you the said DE LA SALLE
University as well as your subordinates, agents,
representatives, employees and any other person
assisting or acting for or on your behalf, to
immediately desist from implementing the
Resolution dated May 3, 1995 ordering the
automatic expulsion of petitioner and the
intervenors in DLSU, and the letter-resolution dated
June 1, 1995 affirming the said Resolution of May
Acting on the above-mentioned request of Mr.

Aguilar through counsel enjoining De La Salle
University (DLSU) to comply with CHED Resolution
181-96 (Re: Expulsion Case of Alvin Aguilar, et al.
153
v. DLSU) directing DLSU to reinstate Mr. Aguilar

and finding the urgent request as meritorious, there
being no other plain and speedy remedy available,
considering the set deadline for enrollment this
current TRIMESTER, and in order to prevent
further prejudice to his rights as a student of the
institution, DLSU, through the proper school
authorities, is hereby directed to allow Mr. Alvin
Aguilar to provisionally enroll, pending the
Commission's Resolution of the instant Motion for
Reconsideration filed by DLSU.
On January 7, 1997, respondent Judge issued its

questioned order granting private respondent
Aguilar's urgent motion to reiterate preliminary
injunction. The pertinent portion of the order reads:
In light of the foregoing, petitioner Aguilar's urgent
motion to reiterate writ of preliminary injunction is
hereby granted, and respondents' motion to
dismiss is denied.
The writ of preliminary injunction dated September
25, 1995 is declared to be in force and effect.
SO ORDERED. 41
Notwithstanding the said directive, petitioner DLSU,
through petitioner Quebengco, still refused to allow
private respondent Aguilar to enroll. Thus, private
respondent Aguilar's counsel wrote another
demand letter to petitioner DLSU. 42
Let a copy of this Order and the writ be served

personally by the Court's sheriff upon the
respondents at petitioners' expense.
Meanwhile, on June 3, 1996, private respondent

Aguilar, using CHED Resolution No. 181-96, filed a
motion to dismiss 43 in the CA, arguing that CHED
Resolution No. 181-96 rendered the CA case moot
and academic.
Accordingly, private respondent Aguilar was

allowed to conditionally enroll in petitioner DLSU,
subject to the continued effectivity of the writ of
and to the outcome of Civil Case No. 95-74122.
On July 30, 1996, the CA issued its questioned

resolution granting the motion to dismiss of private
respondent Aguilar, disposing thus:
On February 17, 1997, petitioners filed the instant

petition.
SO ORDERED. 48
On June 15, 1998, We issued a TRO 49 as prayed

for by the urgent motion for the issuance of a TRO
50 dated June 4, 1998 of petitioners, and enjoined
respondent Judge from implementing the writ of
issued in Civil Case No. 95-74122, effective
immediately and until further orders from this Court.
THE FOREGOING CONSIDERED, dismissal of

herein petition is hereby directed.
SO ORDERED. 44
On October 15, 1996, the CA issued its resolution
denying petitioners' motion for reconsideration, as
follows:
On March 27, 2006, private respondent Aguilar filed

his manifestation 51 stating that he has long
completed his course at petitioner DLSU. He
finished and passed all his enrolled subjects for the
second trimester of 1997-1998, as indicated in his
transcript of records 52 issued by DLSU. However,
despite having completed all the academic
requirements for his course, DLSU has not issued a
certificate of completion/graduation in his favor.
It is obvious to Us that CHED Resolution No. 18196 is immediately executory in character, the
pendency of a Motion for Reconsideration
notwithstanding.
After considering the Opposition and for lack of
merit, the Motion for Reconsideration is hereby
denied.
Issues
We are tasked to resolve the following issues:
SO ORDERED. 45
On October 28, 1996, petitioners requested transfer
of case records to the Department of Education,
Culture and Sports (DECS) from the CHED. 46
Petitioners claimed that it is the DECS, not CHED,
which has jurisdiction over expulsion cases, thus,
necessitating the transfer of the case records of
Discipline Case No. 9495-3-25121 to the DECS.
1. Whether it is the DECS or the CHED which has

legal authority to review decisions of institutions of
higher learning that impose disciplinary action on
their students found violating disciplinary rules.
On November 4, 1996, in view of the dismissal of

the petition for certiorari in CA-G.R. SP No. 38719
and the automatic lifting of the writ of preliminary
injunction, private respondent Aguilar filed an
urgent motion to reiterate writ of preliminary
injunction dated September 25, 1995 before
respondent RTC Judge of Manila. 47
2.a Were private respondents accorded due

process of law?
2. Whether or not petitioner DLSU is within its rights

in expelling private respondents.
2.b Can petitioner DLSU invoke its right to

academic freedom?
154
2.c Was the guilt of private respondents proven by

substantial evidence?
development of academic plans, programs and

standards for institutions of higher learning. The
enumeration of CHED's powers and functions
under
Section
8
does
not
include
supervisory/review powers in student disciplinary
cases. The reference in Section 3 to CHED's
"coverage" of institutions of higher education is
limited to the powers and functions specified in
Section 8. The Bureau of Higher Education, which
the CHED has replaced and whose functions and
responsibilities it has taken over, never had any
authority over student disciplinary cases.
3. Whether or not the penalty imposed by DLSU on

private respondents is proportionate to their
misdeed.
Our Ruling
Prefatorily, there is merit in the observation of
petitioners 53 that while CHED Resolution No. 18196 disapproved the expulsion of other private
respondents, it nonetheless authorized their
exclusion from petitioner DLSU. However, because
of the dismissal of the CA case, petitioner DLSU is
now faced with the spectacle of having two different
directives from the CHED and the respondent
Judge CHED ordering the exclusion of private
respondents Bungubung, Reverente, and Valdes,
Jr., and the Judge ordering petitioner DLSU to allow
them to enroll and complete their degree courses
until their graduation.
We cannot agree.
On May 18, 1994, Congress approved R.A. No.
7722, otherwise known as "An Act Creating the
Commission on Higher Education, Appropriating
Funds Thereof and for other purposes."
Section 3 of the said law, which paved the way for
the creation of the CHED, provides:
This is the reason We opt to decide the whole case

on the merits, brushing aside technicalities, in order
to settle the substantial issues involved. This Court
has the power to take cognizance of the petition at
bar due to compelling reasons, and the nature and
importance of the issues raised warrant the
immediate exercise of Our jurisdiction. 54 This is in
consonance with our case law now accorded nearreligious reverence that rules of procedure are but
tools designed to facilitate the attainment of justice,
such that when its rigid application tends to
frustrate rather than promote substantial justice,
this Court has the duty to suspend their operation.
55
Section 3. Creation of the Commission on Higher

Education. In pursuance of the abovementioned
policies, the Commission on Higher Education is
hereby created, hereinafter referred to as
Commission.
The Commission shall be independent and
separate from the Department of Education,
Culture and Sports (DECS) and attached to the
office of the President for administrative purposes
only. Its coverage shall be both public and private
institutions of higher education as well as degreegranting programs in all post secondary educational
institutions, public and private.
I. It is the CHED, not DECS, which has

the power of supervision and review
over disciplinary cases decided by
Ang CHED, hindi ang DECS, ang may
kapangyarihan ng pagsubaybay at pagrepaso sa
mga desisyong pandisiplina ng mga institusyon ng
mas mataas na pag-aaral.
The powers and functions of the CHED are

enumerated in Section 8 of R.A. No. 7722. They
include the following:
Sec. 8. Powers and functions of the Commission.
The Commission shall have the following powers
and functions:
Petitioners posit that the jurisdiction and duty to

review student expulsion cases, even those
involving students in secondary and tertiary levels,
is vested in the DECS not in the CHED. In support
of their stance, petitioners cite Sections 4, 56 15 (2)
& (3), 57 54, 58 57 (3) 59 and 70 60 of Batas
Pambansa (B.P.) Blg. 232, otherwise known as the
"Education Act of 1982."
xxx xxx xxx

n) promulgate such rules and regulations and
exercise such other powers and functions as may
be necessary to carry out effectively the purpose
and objectives of this Act; and
o) perform such other functions as may be
necessary for its effective operations and for the
continued enhancement of growth or development
of higher education.
According to them, Republic Act (R.A.) No. 7722

did not transfer to the CHED the DECS' power of
supervision/review over expulsion cases involving
institutions of higher learning. They say that unlike
B.P. Blg. 232, R.A. No. 7722 makes no reference to
the right and duty of learning institutions to develop
moral character and instill discipline among its
students. The clear concern of R.A. No. 7722 in the
creation of the CHED was academic, i.e., the
formulation,
recommendation,
setting,
and
Clearly, there is no merit in the contention of

petitioners that R.A. No. 7722 did not transfer to the
CHED the DECS' power of supervision/review over
expulsion cases involving institutions of higher
learning.
155
First, the foregoing provisions are all-embracing.

They make no reservations of powers to the DECS
insofar as institutions of higher learning are
concerned. They show that the authority and
supervision over all public and private institutions of
higher education, as well as degree-granting
programs in all post-secondary educational
institutions, public and private, belong to the CHED,
not the DECS.
distinguish that what is being transferred to the

CHED is merely the formulation, recommendation,
setting and development of academic plans,
programs and standards for institutions of higher
learning, as what petitioners would have us believe
as the only concerns of R.A. No. 7722. Ubi lex non
distinguit nec nos distinguere debemus: Where the
law does not distinguish, neither should we.
To Our mind, this provision, if not an explicit grant
of jurisdiction to the CHED, necessarily includes the
transfer to the CHED of any jurisdiction which the
DECS might have possessed by virtue of B.P. Blg.
232 or any other law or rule for that matter.
Second, to rule that it is the DECS which has

authority to decide disciplinary cases involving
students on the tertiary level would render nugatory
the coverage of the CHED, which is "both public
and private institutions of higher education as well
as degree granting programs in all post secondary
educational institutions, public and private." That
would be absurd.
IIa. Private respondents were accorded

due process of law.
Ang mga private respondents ay nabigyan ng
tamang proseso ng batas.
It is of public knowledge that petitioner DLSU is a

private educational institution which offers tertiary
degree programs. Hence, it is under the CHED
authority.
The Due Process Clause in Article III, Section 1 of

the Constitution embodies a system of rights based
on moral principles so deeply imbedded in the
traditions and feelings of our people as to be
deemed fundamental to a civilized society as
conceived by our entire history. 64 The
constitutional behest that no person shall be
deprived of life, liberty or property without due
process of law is solemn and inflexible. 65
Third, the policy of R.A. No. 7722 61 is not only the

protection, fostering and promotion of the right of all
citizens to affordable quality education at all levels
and the taking of appropriate steps to ensure that
education shall be accessible to all. The law is
likewise concerned with ensuring and protecting
academic freedom and with promoting its exercise
and observance for the continued intellectual
growth of students, the advancement of learning
and research, the development of responsible and
effective leadership, the education of high-level and
middle-level professionals, and the enrichment of
our historical and cultural heritage.
In administrative cases, such as investigations of

students found violating school discipline, "[t]here
are withal minimum standards which must be met
before to satisfy the demands of procedural due
process and these are: that (1) the students must
be informed in writing of the nature and cause of
any accusation against them; (2) they shall have
the right to answer the charges against them and
with the assistance if counsel, if desired; (3) they
shall be informed of the evidence against them; (4)
they shall have the right to adduce evidence in their
own behalf; and (5) the evidence must be duly
considered by the investigating committee or official
designated by the school authorities to hear and
decide the case." 66
It is thus safe to assume that when Congress

passed R.A. No. 7722, its members were aware
that disciplinary cases involving students on the
tertiary level would continue to arise in the future,
which would call for the invocation and exercise of
institutions of higher learning of their right to
academic freedom.
Fourth, petitioner DLSU cited no authority in its
bare claim that the Bureau of Higher Education,
which CHED replaced, never had authority over
student
disciplinary
cases.
In
fact,
the
responsibilities of other government entities having
functions similar to those of the CHEDwere
transferred to the CHED. 6 2
Where a party was afforded an opportunity to

participate in the proceedings but failed to do so, he
cannot complain of deprivation of due process. 67
Notice and hearing is the bulwark of administrative
due process, the right to which is among the
primary rights that must be respected even in
administrative proceedings. 68 The essence of due
process is simply an opportunity to be heard, or as
applied to administrative proceedings, an
opportunity to explain one's side or an opportunity
to seek reconsideration of the action or ruling
complained of. 69 So long as the party is given the
opportunity to advocate her cause or defend her
interest in due course, it cannot be said that there
was denial of due process. 70
Section 77 of the MRPS 63 on the process of

review in student discipline cases should therefore
be read in conjunction with the provisions of R.A.
No. 7722.
Fifth, Section 18 of R.A. No. 7722 is very clear in
stating that "[j]urisdiction over DECS-supervised or
chartered state-supported post-secondary degreegranting vocational and tertiary institutions shall be
transferred to the Commission [On Higher
Education]." This provision does not limit or
A formal trial-type hearing is not, at all times and in

all instances, essential to due process it is
enough that the parties are given a fair and
156
reasonable opportunity to explain their respective

sides of the controversy and to present supporting
evidence on which a fair decision can be based. 71
"To be heard" does not only mean presentation of
testimonial evidence in court one may also be
heard through pleadings and where the opportunity
to be heard through pleadings is accorded, there is
no denial of due process. 72
learning. By instilling discipline, the school teaches

discipline. Accordingly, the right to discipline the
student likewise finds basis in the freedom "what to
teach." 76 Indeed, while it is categorically stated
under the Education Act of 1982 that students have
a right "to freely choose their field of study, subject
to existing curricula and to continue their course
therein up to graduation," 77 such right is subject to
the established academic and disciplinary
Petitioner DLSU, therefore, can very well exercise
its academic freedom, which includes its free
choice of students for admission to its school.
Private respondents were duly informed in writing

of the charges against them by the DLSU-CSB
Joint Discipline Board through petitioner Sales.
They were given the opportunity to answer the
charges against them as they, in fact, submitted
their respective answers. They were also informed
of the evidence presented against them as they
attended all the hearings before the Board.
Moreover, private respondents were given the right
to adduce evidence on their behalf and they did.
Lastly, the Discipline Board considered all the
pieces of evidence submitted to it by all the parties
before rendering its resolution in Discipline Case
No. 9495-3-25121.
IIc. The guilt of private respondents

Bungubung, Reverente and Valdes,
Jr. was proven by substantial evidence.
Ang pagkakasala ng private respondents na sina
Bungubung, Reverente at Valdes, Jr. ay
napatunayan ng ebidensiyang substansyal.
As has been stated earlier, private respondents
interposed the common defense of alibi. However,
in order that alibi may succeed as a defense, "the
accused must establish by clear and convincing
evidence (a) his presence at another place at the
time of the perpetration of the offense and (b) the
physical impossibility of his presence at the scene
of the crime." 78
Private respondents cannot claim that they were

denied due process when they were not allowed to
cross-examine the witnesses against them. This
argument was already rejected in Guzman v.
National University 73 where this Court held that ". .
. the imposition of disciplinary sanctions requires
observance of procedural due process. And it bears
stressing that due process in disciplinary cases
involving students does not entail proceedings and
hearings similar to those prescribed for actions and
proceedings in courts of justice. The proceedings in
student discipline cases may be summary; and
cross examination is not, . . . an essential part
thereof."
On the other hand, the defense of alibi may not be

successfully invoked where the identity of the
assailant has been established by witnesses. 79
Positive identification of accused where categorical
and consistent, without any showing of ill motive on
the part of the eyewitness testifying, should prevail
over the alibi and denial of appellants whose
testimonies are not substantiated by clear and
convincing evidence. 80 Well-settled is the rule that
denial and alibi, being weak defenses, cannot
overcome the positive testimonies of the offended
parties. 81
IIb. Petitioner DLSU, as an institution of

higher learning, possesses academic
freedom which includes determination
of who to admit for study.
Ang petitioner DLSU, bilang institusyon ng mas
mataas na pag-aaral, ay nagtataglay ng kalayaang
akademiko na sakop ang karapatang pumili ng mga
mag-aaral dito.
Courts reject alibi when there are credible

eyewitnesses to the crime who can positively
identify the accused. 82 Alibi is an inherently weak
defense and courts must receive it with caution
because one can easily fabricate an alibi. 83
Jurisprudence holds that denial, like alibi, is
inherently weak and crumbles in light of positive
declarations of truthful witnesses who testified on
affirmative matters that accused were at the scene
of the crime and were the victim's assailants. As
between categorical testimonies that ring of truth on
one hand and a bare denial on the other, the former
must prevail. 84 Alibi is the weakest of all defenses
for it is easy to fabricate and difficult to disprove,
and it is for this reason that it cannot prevail over
the positive identification of accused by the
witnesses. 85
Section 5 (2), Article XIV of the Constitution

guaranties all institutions of higher learning
academic freedom. This institutional academic
freedom includes the right of the school or college
to decide for itself, its aims and objectives, and how
best to attain them free from outside coercion or
interference save possibly when the overriding
public interest calls for some restraint. 74 According
to present jurisprudence, academic freedom
encompasses the independence of an academic
institution to determine for itself (1) who may teach,
(2) what may be taught, (3) how it shall teach, and
(4) who may be admitted to study. 75
It cannot be gainsaid that "the school has an
interest in teaching the student discipline, a
necessary, if not indispensable, value in any field of
The required proof in administrative cases, such as

in student discipline cases, is neither proof beyond
157
reasonable doubt nor preponderance of evidence

but only substantial evidence. According to Ang
Tibay v. Court of Industrial Relations, 86 it means
"such reasonable evidence as a reasonable mind
might accept as adequate to support a conclusion."
sponsorship of TAU GAMMA PHI from said Batch

'89 affair.
That the meeting was terminated at about 6:30 P.M.
that evening and Alvin Aguilar had asked our
permission to leave and we saw him leave Camp
Crame, in his car with the driver.
Viewed from the foregoing, We reject the alibi of

private respondents Bungubung, Valdes Jr., and
Reverente. They were unable to show convincingly
that they were not at the scene of the crime on
March 29, 1995 and that it was impossible for them
to have been there. Moreover, their alibi cannot
prevail over their positive identification by the
victims.
April 18, 1995, Camp Crame, Quezon City. 90

The said certification was duly signed by PO3
Nicanor R. Faustino (Anti-Organized Crime CIC,
NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp
Crame, Quezon City), PO2 Severino C. Filler
(TNTSC, Camp Crame, Quezon City), and PO3
Ireneo M. Desesto (Supply Center, PNPLSS). The
rule is that alibi assumes significance or strength
when it is amply corroborated by credible and
disinterested witnesses. 91 It is true that alibi is a
weak defense which an accused can easily
fabricate to escape criminal liability. But where the
prosecution evidence is weak, and betrays lack of
credibility as to the identification of defendant, alibi
assumes commensurate strength. This is but
consistent with the presumption of innocence in
favor of accused. 92
We hark back to this Court's pronouncement

affirming the expulsion of several students found
guilty of hazing:
No one can be so myopic as to doubt that the
immediate reinstatement of respondent students
who have been investigated and found guilty by the
Disciplinary Board to have violated petitioner
university's disciplinary rules and standards will
certainly undermine the authority of the
administration of the school. This we would be most
loathe to do.
Alibi is not always undeserving of credit, for there

are times when accused has no other possible
defense for what could really be the truth as to his
whereabouts at the crucial time, and such defense
may, in fact, tilt the scales of justice in his favor. 93
More importantly, it will seriously impair petitioner

university's academic freedom which has been
enshrined in the 1935, 1973 and the present 1987
Constitution. 87
Certainly,
private
respondents
Bungubung,
Reverente and Valdes, Jr. do not deserve to claim a
venerable institution as their own, for they may
foreseeably cast a malevolent influence on the
students currently enrolled, as well as those who
come after them. 88 It must be borne in mind that
universities are established, not merely to develop
the intellect and skills of the studentry, but to
inculcate lofty values, ideals and attitudes; nay, the
development, or flowering if you will, of the total
man. 89
III. The penalty of expulsion imposed by DLSU

on private respondents is disproportionate
to their misdeed.
Ang parusang expulsion na ipinataw ng DLSU sa
private respondents ay hindi angkop sa kanilang
pagkakasala.
It is true that schools have the power to instill
discipline in their students as subsumed in their
academic freedom and that "the establishment of
rules governing university-student relations,
particularly those pertaining to student discipline,
may be regarded as vital, not merely to the smooth
and efficient operation of the institution, but to its
very survival." 94 This power, however, does not
give them the untrammeled discretion to impose a
penalty which is not commensurate with the gravity
of the misdeed. If the concept of proportionality
between the offense committed and the sanction
imposed is not followed, an element of arbitrariness
intrudes. That would give rise to a due process
question. 95
As for private respondent Aguilar, however, We are

inclined to give credence to his alibi that he was at
Camp Crame in Quezon City at the time of the
incident in question on March 29, 1995. This claim
was amply corroborated by the certification that he
submitted before the DLSU-CSB Joint Discipline
Board, to wit:
CERTIFICATION
TO WHOM THIS MAY CONCERN:
We agree with respondent CHED that under the

circumstances, the penalty of expulsion is grossly
disproportionate to the gravity of the acts
committed by private respondents Bungubung,
Reverente, and Valdes, Jr. Each of the two mauling
incidents lasted only for few seconds and the
victims did not suffer any serious injury. Disciplinary
measures
especially
where
they
involve
suspension, dismissal or expulsion, cut significantly
We, the undersigned, hereby declare and affirm by

way of this Certification that sometime on March
29, 1995, at about and between 4:30 P.M. and 5:30
P.M., we were together with Alvin A. Aguilar, at
Kiangan Hall, inside Camp Crame, Quezon City,
meeting in connection with an affair of our class
known as Class 7, Batch 89 of the Philippine
Constabulary discussing on the proposed
158
into the future of a student. They attach to him for

life and become a mortgage of his future, hardly
redeemable in certain cases. Officials of colleges
and universities must be anxious to protect it,
conscious of the fact that, appropriately construed,
a disciplinary action should be treated as an
educational tool rather than a punitive measure. 96
We find that petitioner has not raised substantially

new grounds to justify the reconsideration sought.
Instead, petitioner presents averments that are
mere rehashes of arguments already considered by
the Court. There is, thus, no cogent reason to
warrant a reconsideration of this Court's Decision.
Similarly, we reject the contentions put forth by
esteemed colleagues Mr. Justice Dante O. Tinga in
his Dissent, dated 2 September 2008, which are
also mere reiterations of his earlier dissent against
the majority opinion. Mr. Justice Tinga's incessant
assertions proceed from the wrong premise. To be
clear, this Court did not intimate that penal statutes
are beyond scrutiny. In our Decision, dated 30 April
2008, this Court emphasized the critical limitations
by which a criminal statute may be challenged. We
drew a lucid boundary between an "on-its-face"
invalidation and an "as applied" challenge.
Unfortunately, this is a distinction which Mr. Justice
Tinga has refused to understand. Let it be
underscored that "on-its-face" invalidation of penal
statutes, as is sought to be done by petitioners in
this case, may not be allowed. Thus, we said:
Accordingly, We affirm the penalty of exclusion 97

only, not expulsion, 98 imposed on them by the
CHED. As such, pursuant to Section 77 (b) of the
MRPS, petitioner DLSU may exclude or drop the
names of the said private respondents from its rolls
for being undesirable, and transfer credentials
immediately issued.
WHEREFORE, the petition is PARTIALLY
GRANTED. The Court of Appeals Resolutions
dated July 30, 1996 and dated October 15, 1996,
and Regional Trial Court of Manila, Branch 36,
Order dated January 7, 1997 are ANNULLED AND
SET ASIDE, while CHED Resolution 181-96 dated
May 14, 1996 is AFFIRMED.
Petitioner DLSU is ordered to issue a certificate of
completion/graduation
in
favor
of
private
respondent Aguilar. On the other hand, it may
exclude or drop the names of private respondents
Bungubung, Reverente, and Valdes, Jr. from its
rolls, and their transfer credentials immediately
issued.
The void-for-vagueness doctrine holds that a law is

facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its
application. However, this Court has imposed
certain limitations by which a criminal statute, as in
the challenged law at bar, may be scrutinized. This
Court has declared that facial invalidation or an
"on-its-face" invalidation of criminal statutes is not
appropriate. We have so enunciated in no uncertain
terms in Romualdez v. Sandiganbayan, thus:
SO ORDERED.
Ynares-Santiago, Quisumbing,* Chico-Nazario and
Velasco, Jr.,** JJ., concur.
In sum, the doctrines of strict scrutiny, overbreadth,

and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech
cases or, as they are called in American law, First
Amendment cases. They cannot be made to do
service when what is involved is a criminal statute.
With respect to such statute, the established rule is
that 'one to whom application of a statute is
constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken
as applying to other persons or other situations in
which its application might be unconstitutional'. As
has been pointed out, 'vagueness challenges in the
First Amendment context, like overbreadth
challenges typically produce facial invalidation,
while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied'
to a particular defendant.'" (underscoring supplied)
EDCcaS
||| (De La Salle University, Inc. v. Court of Appeals,

G.R. No. 127980, [December 19, 2007], 565 PHIL
330-365)
3. ROMUALDEZ VS. COMELEC 573 SCRA
639 (2008)
EN BANC
[G.R. No. 167011. December 11, 2008.]
SPOUSES CARLOS S. ROMUALDEZ and
ERLINDA R. ROMUALDEZ, petitioners, vs.
COMMISSION ON ELECTIONS and DENNIS
GARAY, respondents.
RESOLUTION
CHICO-NAZARIO, J p:
"To this date, the Court has not declared any penal
law unconstitutional on the ground of ambiguity".
While mentioned in passing in some cases, the
void-for-vagueness concept has yet to find direct
application in our jurisdiction. In Yu Cong Eng v.
Trinidad, the Bookkeeping Act was found
unconstitutional because it violated the equal
protection clause, not because it was vague.
Adiong v. Comelec decreed as void a mere
For resolution is the Motion for Reconsideration

filed by petitioner Spouses Carlos Romualdez and
Erlinda Romualdez on 26 May 2008 from the
Decision of this Court dated 30 April 2008, affirming
the Resolutions, dated 11 June 2004 and 27
January 2005 of the COMELEC En Banc. TDCcAE
159
Comelec Resolution, not a statute. Finally, Santiago

v. Comelec held that a portion of RA 6735 was
unconstitutional because of undue delegation of
legislative powers, not because of vagueness.
In conclusion, I reiterate that the doctrine embodied

in Romualdez and Estrada remains good law. The
rule established in our jurisdiction is, only statutes
on free speech, religious freedom, and other
fundamental rights may be facially challenged.
Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is
permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A
strong criticism against employing a facial
challenge in the case of penal statutes, if the same
is allowed, would effectively go against the grain of
the doctrinal requirement of an existing and
concrete controversy before judicial power may be
appropriately exercised. A facial challenge against
a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to
consider third parties who are not before it. As I
have said in my opposition to the allowance of a
facial challenge to attack penal statutes, such a test
will impair the State's ability to deal with crime. If
warranted, there would be nothing that can hinder
an accused from defeating the State's power to
prosecute on a mere showing that, as applied to
third parties, the penal statute is vague or
overbroad, notwithstanding that the law is clear as
applied to him.
Indeed, an "on-its-face" invalidation of criminal

statutes would result in a mass acquittal of parties
whose cases may not have even reached the
courts. Such invalidation would constitute a
departure from the usual requirement of "actual
case and controversy" and permit decisions to be
made in a sterile abstract context having no factual
concreteness. In Younger v. Harris, this evil was
aptly pointed out by the U.S. Supreme Court in
these words:
"[T]he task of analyzing a proposed statute,
pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative
remoteness of the controversy, the impact on the
legislative process of the relief sought, and above
all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . .
. ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions,
whichever way they might be decided."
For this reason, generally disfavored is an on-itsface invalidation of statutes, described as a
"manifestly strong medicine" to be employed
"sparingly and only as a last resort." In determining
the constitutionality of a statute, therefore, its
provisions that have allegedly been violated must
be examined in the light of the conduct with which
the defendant has been charged. (Emphasis
supplied.) 1
As structured, Section 45 enumerates acts deemed

election offenses under Republic Act No. 8189. The
evident intent of the legislature in including in the
catena of election offenses the violation of any of
the provisions of Republic Act No. 8189 is to
subsume as punishable, not only the commission of
proscribed acts, but also the omission of acts
enjoined to be observed. On this score, the
declared policy of Republic Act No. 8189 is
illuminating. The law articulates the policy of the
State to systematize the present method of
registration in order to establish a clean, complete,
permanent and updated list of voters. cCESaH
Neither does the listing by Mr. Justice Tinga of what

he condemns as offenses under Republic Act No.
8189 convince this Court to overturn its ruling.
What is crucial in this case is the rule set in our
case books and precedents that a facial challenge
is not the proper avenue to challenge the statute
under consideration. In our Decision of 30 April
2008, we enunciated that "the opinions of the
dissent which seek to bring to the fore the
purported ambiguities of a long list of provisions in
Republic Act No. 8189 can be deemed as a facial
challenge." 2 On this matter, we held: acADIT
In People v. Gatchalian, the Court had the occasion

to rule on the validity of the provision of the
Minimum Wage Law, which in like manner speaks
of a willful violation of "any of the provisions of this
Act". This Court upheld the assailed law, and in no
uncertain terms declared that the provision is allembracing, and the same must include what is
enjoined in the Act which embodies the very
fundamental purpose for which the law has been
adopted.
An appropriate "as applied" challenge in the instant

Petition should be limited only to Section 45 (j) in
relation to Sections 10 (g) and (j) of Republic Act
No. 8189 the provisions upon which petitioners
are charged. An expanded examination of the law
covering provisions which are alien to petitioners'
case would be antagonistic to the rudiment that for
judicial review to be exercised, there must be an
existing case or controversy that is appropriate or
ripe for determination, and not conjectural or
anticipatory. 3
Finally, as the records would show, petitioners

managed to set up an intelligent defense against
the informations filed below. By clearly enunciating
their defenses against the accusations hurled at
them and denying their commission thereof,
petitioners' allegation of vagueness must
necessarily be rejected. Petitioners failed to
overcome
the
heavy
presumption
of
constitutionality in favor of the law. The
constitutionality must prevail in the absence of
substantial grounds for overthrowing the same.
160
||| (Spouses Romualdez v. Commission on

Elections, G.R. No. 167011, [December 11, 2008],
594 PHIL 305-343)
The phraseology in Section 45 (j) has been

employed by Congress in a number of laws which
have not been declared unconstitutional: SEIacA
4. GARCILLANO VS. COMMITTEES 575

SCRA 170 (2008)
1) The Cooperative Code

Section 124 (4) of Republic Act No. 6938 reads:
EN BANC
"Any violation of any provision of this Code for

which no penalty is imposed shall be punished by
imprisonment of not less than six (6) months nor
more than one (1) year and a fine of not less than
One Thousand Pesos (P1,000.00) or both at the
discretion of the Court."
[G.R. No. 170338. December 23, 2008.]

VIRGILIO O. GARCILLANO, petitioner, vs. THE
HOUSE OF REPRESENTATIVES COMMITTEES
ON PUBLIC INFORMATION, PUBLIC ORDER
AND SAFETY, NATIONAL DEFENSE AND
SECURITY,
INFORMATION
AND
COMMUNICATIONS
TECHNOLOGY,
and
SUFFRAGE AND ELECTORAL REFORMS,
respondents.
2) The Indigenous Peoples Rights Act

Section 72 of Republic Act No. 8371 reads in part:
"Any person who commits violation of any of the
provisions of this Act, such as, but not limited
to . . ."
[G.R. No. 179275. December 23, 2008.]

SANTIAGO JAVIER RANADA and OSWALDO D.
AGCAOILI, petitioners, vs. THE SENATE OF THE
REPUBLIC
OF
THE
PHILIPPINES,
REPRESENTED BY THE SENATE PRESIDENT
THE HONORABLE MANUEL VILLAR, respondent.
3) The Retail Trade Liberalization Act

Section 12, Republic Act No. 8762, reads:
"Any person who would be found guilty of violation
of any provisions of this Act shall be punished by
imprisonment of not less than six (6) years and one
(1) day but not more than eight (8) years, and a fine
of at least One Million (P1,000,000.00) but not
more than Twenty Million (P20,000,000.00).
MAJ. LINDSAY
intervention.
For reasons so stated, we deny the Motion for

Reconsideration.
DECISION
REX
SAGGE,
petitioner-in-
AQUILINO Q. PIMENTEL, JR., BENIGNO

NOYNOY C. AQUINO, RODOLFO G. BIAZON,
PANFILO M. LACSON, LOREN B. LEGARDA, M.A.
JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors.
NACHURA, J p:
SO ORDERED.
More than three years ago, tapes ostensibly

containing a wiretapped conversation purportedly
between the President of the Philippines and a
high-ranking official of the Commission on Elections
(COMELEC)
surfaced.
They
captured
unprecedented public attention and thrust the
country into a controversy that placed the
legitimacy of the present administration on the line,
and resulted in the near-collapse of the Arroyo
government. The tapes, notoriously referred to as
the "Hello Garci" tapes, allegedly contained the
President's
instructions
to
COMELEC
Commissioner Virgilio Garcillano to manipulate in
her favor results of the 2004 presidential elections.
These recordings were to become the subject of
heated legislative hearings conducted separately
by committees of both Houses of Congress. 1
cCSDTI
Ynares-Santiago, Azcuna, Velasco, Jr., Reyes and

Brion, JJ., concur.
Puno, C.J., Quisumbing and Nachura, JJ., join in J.
Tinga's dissenting opinion.
Carpio, J., I dissent and I reiterate my dissent of
April 30, 2008.
Austria-Martinez, J., I join Justices Tinga and
Carpio in their existing opinion.
Corona, J., I certify that J. Corona concurred with
the resolution of J. Nazario RSP.
Carpio-Morales, J., my position concurring with the
dissent of Justices Carpio and Tinga remains.
Tinga, J., please see dissenting opinion.
In the House of Representatives (House), on June

8, 2005, then Minority Floor Leader Francis G.
Escudero delivered a privilege speech, "Tale of Two
Tapes", and set in motion a congressional
investigation jointly conducted by the Committees
Leonardo-de Castro, J., please see concurring

opinion.
161
on Public Information, Public Order and Safety,

National Defense and Security, Information and
Communications Technology, and Suffrage and
Electoral
Reforms
(respondent
House
Committees). During the inquiry, several versions of
the wiretapped conversation emerged. But on July
5, 2005, National Bureau of Investigation (NBI)
Director Reynaldo Wycoco, Atty. Alan Paguia and
the lawyer of former NBI Deputy Director Samuel
Ong submitted to the respondent House
Committees seven alleged "original" tape
recordings of the supposed three-hour taped
conversation. After prolonged and impassioned
debate by the committee members on the
admissibility and authenticity of the recordings, the
tapes were eventually played in the chambers of
the House. 2
In the Senate's plenary session the following day, a

lengthy debate ensued when Senator Richard
Gordon aired his concern on the possible
transgression of Republic Act (R.A.) No. 4200 8 if
the body were to conduct a legislative inquiry on
the matter. On August 28, 2007, Senator Miriam
Defensor-Santiago delivered a privilege speech,
articulating her considered view that the
Constitution absolutely bans the use, possession,
replay or communication of the contents of the
"Hello Garci" tapes. However, she recommended a
legislative investigation into the role of the
Intelligence Service of the AFP (ISAFP), the
Philippine National Police or other government
entities in the alleged illegal wiretapping of public
officials. 9
On September 6, 2007, petitioners Santiago
Ranada and Oswaldo Agcaoili, retired justices of
the Court of Appeals, filed before this Court a
Petition for Prohibition with Prayer for the Issuance
of a Temporary Restraining Order and/or Writ of
Preliminary Injunction, 10 docketed as G.R. No.
179275, seeking to bar the Senate from conducting
its scheduled legislative inquiry. They argued in the
main that the intended legislative inquiry violates
R.A. No. 4200 and Section 3, Article III of the
Constitution. 11
On August 3, 2005, the respondent House

Committees decided to suspend the hearings
indefinitely. Nevertheless, they decided to prepare
committee reports based on the said recordings
and the testimonies of the resource persons. 3
Alarmed by these developments, petitioner Virgilio
O. Garcillano (Garcillano) filed with this Court a
Petition for Prohibition and Injunction, with Prayer
for Temporary Restraining Order and/or Writ of
Preliminary Injunction 4 docketed as G.R. No.
170338. He prayed that the respondent House
Committees be restrained from using these tape
recordings of the "illegally obtained" wiretapped
conversations in their committee reports and for
any other purpose. He further implored that the said
recordings and any reference thereto be ordered
stricken off the records of the inquiry, and the
respondent House Committees directed to desist
from further using the recordings in any of the
House proceedings. 5
As the Court did not issue an injunctive writ, the

Senate proceeded with its public hearings on the
"Hello Garci" tapes on September 7, 12 17 13 and
October 1, 14 2007.
Intervening as respondents, 15 Senators Aquilino
Q. Pimentel, Jr., Benigno Noynoy C. Aquino,
Rodolfo G. Biazon, Panfilo M. Lacson, Loren B.
Legarda, M.A. Jamby A.S. Madrigal and Antonio F.
Trillanes filed their Comment 16 on the petition on
September 25, 2007. aAIcEH
Without reaching its denouement, the House

discussion and debates on the "Garci tapes"
abruptly stopped. AECacS
The Court subsequently heard the case on oral

argument. 17
After more than two years of quiescence, Senator

Panfilo Lacson roused the slumbering issue with a
privilege speech, "The Lighthouse that Brought
Darkness". In his discourse, Senator Lacson
promised to provide the public "the whole
unvarnished truth the what's, when's, where's,
who's and why's" of the alleged wiretap, and sought
an inquiry into the perceived willingness of
telecommunications providers to participate in
nefarious wiretapping activities.
On October 26, 2007, Maj. Lindsay Rex Sagge, a

member of the ISAFP and one of the resource
persons summoned by the Senate to appear and
testify at its hearings, moved to intervene as
petitioner in G.R. No. 179275. 18
On November 20, 2007, the Court resolved to
consolidate G.R. Nos. 170338 and 179275. 19
It may be noted that while both petitions involve the
"Hello Garci" recordings, they have different
objectives the first is poised at preventing the
playing of the tapes in the House and their
subsequent inclusion in the committee reports, and
the second seeks to prohibit and stop the conduct
of the Senate inquiry on the wiretapped
conversation.
On motion of Senator Francis Pangilinan, Senator

Lacson's speech was referred to the Senate
Committee on National Defense and Security,
chaired by Senator Rodolfo Biazon, who had
previously filed two bills 6 seeking to regulate the
sale, purchase and use of wiretapping equipment
and to prohibit the Armed Forces of the Philippines
(AFP) from performing electoral duties. 7
The Court dismisses the first petition, G.R. No.

170338, and grants the second, G.R. No. 179275.
162
I
Before delving into the merits of the case, the Court
shall first resolve the issue on the parties' standing,
argued at length in their pleadings.
are concerned citizens, taxpayers, and members of

the IBP. They are of the firm conviction that any
attempt to use the "Hello Garci" tapes will further
divide the country. They wish to see the legal and
proper use of public funds that will necessarily be
defrayed in the ensuing public hearings. They are
worried by the continuous violation of the laws and
individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of
legislative inquiries purportedly in aid of legislation.
28
In Tolentino v. COMELEC, 20 we explained that

"'[l]egal standing' or locus standi refers to a
personal and substantial interest in a case such
that the party has sustained or will sustain direct
injury because of the challenged governmental act .
. .," thus,
generally, a party will be allowed to litigate only
when (1) he can show that he has personally
suffered some actual or threatened injury because
of the allegedly illegal conduct of the government;
(2) the injury is fairly traceable to the challenged
action; and (3) the injury is likely to be redressed by
a favorable action. 21
Intervenor Sagge alleges violation of his right to

due process considering that he is summoned to
attend the Senate hearings without being apprised
not only of his rights therein through the publication
of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation, but also of the
intended
legislation
which
underpins
the
investigation. He further intervenes as a taxpayer
bewailing the useless and wasteful expenditure of
public funds involved in the conduct of the
questioned hearings. 29 CAaSHI
The gist of the question of standing is whether a

party has "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". 22 HTcDEa
However, considering that locus standi is a mere
procedural technicality, the Court, in recent cases,
has relaxed the stringent direct injury test. David v.
Macapagal-Arroyo 23 articulates that a "liberal
policy has been observed, allowing ordinary
citizens, members of Congress, and civic
organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and
rulings". 24 The fairly recent Chavez v. Gonzales
25 even permitted a non-member of the broadcast
media, who failed to allege a personal stake in the
outcome of the controversy, to challenge the acts of
the Secretary of Justice and the National
Telecommunications Commission. The majority, in
the said case, echoed the current policy that "this
Court has repeatedly and consistently refused to
wield procedural barriers as impediments to its
addressing and resolving serious legal questions
that greatly impact on public interest, in keeping
with the Court's duty under the 1987 Constitution to
determine whether or not other branches of
government have kept themselves within the limits
of the Constitution and the laws, and that they have
not abused the discretion given to them". 26
Given that petitioners Ranada and Agcaoili allege

an interest in the execution of the laws and that
intervenor Sagge asserts his constitutional right to
due process, 30 they satisfy the requisite personal
stake in the outcome of the controversy by merely
being citizens of the Republic.
Following the Court's ruling in Francisco, Jr. v. The
House of Representatives, 31 we find sufficient
petitioners Ranada's and Agcaoili's and intervenor
Sagge's allegation that the continuous conduct by
the Senate of the questioned legislative inquiry will
necessarily involve the expenditure of public funds.
32 It should be noted that in Francisco, rights
personal to then Chief Justice Hilario G. Davide, Jr.
had been injured by the alleged unconstitutional
acts of the House of Representatives, yet the Court
granted standing to the petitioners therein for, as in
this case, they invariably invoked the vindication of
their own rights as taxpayers, members of
Congress, citizens, individually or in a class suit,
and members of the bar and of the legal profession
which were also supposedly violated by the
therein assailed unconstitutional acts. 33
Likewise, a reading of the petition in G.R. No.
179275 shows that the petitioners and intervenor
Sagge advance constitutional issues which deserve
the attention of this Court in view of their
seriousness, novelty and weight as precedents.
The issues are of transcendental and paramount
importance not only to the public but also to the
Bench and the Bar, and should be resolved for the
guidance of all. 34
In G.R. No. 170338, petitioner Garcillano justifies

his standing to initiate the petition by alleging that
he is the person alluded to in the "Hello Garci"
tapes. Further, his was publicly identified by the
members of the respondent committees as one of
the voices in the recordings. 27 Obviously,
therefore, petitioner Garcillano stands to be directly
injured by the House committees' actions and
charges of electoral fraud. The Court recognizes
his standing to institute the petition for prohibition.
Thus, in the exercise of its sound discretion and

given the liberal attitude it has shown in prior cases
climaxing in the more recent case of Chavez, the
Court recognizes the legal standing of petitioners
In G.R. No. 179275, petitioners Ranada and

Agcaoili justify their standing by alleging that they
163
Ranada
cHATSI
and Agcaoili and
intervenor
Sagge.
the transgression of a law or rule of which he had

no notice whatsoever, not even a constructive one.
43 What constitutes publication is set forth in Article
2 of the Civil Code, which provides that "[l]aws shall
take effect after 15 days following the completion of
their publication either in the Official Gazette, or in
a newspaper of general circulation in the
Philippines." 44 EScaIT
II
The Court, however, dismisses G.R. No. 170338 for
being moot and academic. Repeatedly stressed in
our prior decisions is the principle that the exercise
by this Court of judicial power is limited to the
determination and resolution of actual cases and
controversies. 35 By actual cases, we mean
existing conflicts appropriate or ripe for judicial
determination, not conjectural or anticipatory, for
otherwise the decision of the Court will amount to
an advisory opinion. The power of judicial inquiry
does not extend to hypothetical questions because
any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. 36 Neither will
the Court determine a moot question in a case in
which no practical relief can be granted. A case
becomes moot when its purpose has become stale.
37 It is unnecessary to indulge in academic
discussion of a case presenting a moot question as
a judgment thereon cannot have any practical legal
effect or, in the nature of things, cannot be
enforced. 38
The respondents in G.R. No. 179275 admit in their

pleadings and even on oral argument that the
Senate Rules of Procedure Governing Inquiries in
Aid of Legislation had been published in
newspapers of general circulation only in 1995 and
in 2006. 45 With respect to the present Senate of
the 14th Congress, however, of which the term of
half of its members commenced on June 30, 2007,
no effort was undertaken for the publication of
these rules when they first opened their session.
Recently, the Court had occasion to rule on this
very same question. In Neri v. Senate Committee
on Accountability of Public Officers and
Investigations, 46 we said:
Fourth, we find merit in the argument of the OSG
that respondent Committees likewise violated
Section 21 of Article VI of the Constitution, requiring
that the inquiry be in accordance with the "duly
published rules of procedure". We quote the OSG's
explanation:
In G.R. No. 170338, petitioner Garcillano implores

from the Court, as aforementioned, the issuance of
an injunctive writ to prohibit the respondent House
Committees from playing the tape recordings and
from including the same in their committee report.
He likewise prays that the said tapes be stricken off
the records of the House proceedings. But the
Court notes that the recordings were already
played in the House and heard by its members. 39
There is also the widely publicized fact that the
committee reports on the "Hello Garci" inquiry were
completed and submitted to the House in plenary
by the respondent committees. 40 Having been
overtaken by these events, the Garcillano petition
has to be dismissed for being moot and academic.
After all, prohibition is a preventive remedy to
restrain the doing of an act about to be done, and
not intended to provide a remedy for an act already
accomplished. 41
The phrase "duly published rules of procedure"

requires the Senate of every Congress to publish
its rules of procedure governing inquiries in aid of
legislation because every Senate is distinct from
the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half
of the Senate's membership, the composition of the
Senate also changes by the end of each term.
Each Senate may thus enact a different set of rules
as it may deem fit. Not having published its Rules
of Procedure, the subject hearings in aid of
legislation conducted by the 14th Senate, are
therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and
Concurring Opinion, reinforces this ruling with the
following rationalization: CcSEIH
III
As to the petition in G.R. No. 179275, the Court
grants the same. The Senate cannot be allowed to
continue with the conduct of the questioned
legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional
requirement.
The present Senate under the 1987 Constitution is

no longer a continuing legislative body. The present
Senate has twenty-four members, twelve of whom
are elected every three years for a term of six years
each. Thus, the term of twelve Senators expires
every three years, leaving less than a majority of
Senators to continue into the next Congress. The
1987 Constitution, like the 1935 Constitution,
requires a majority of Senators to "constitute a
quorum to do business". Applying the same
reasoning in Arnault v. Nazareno, the Senate under
the 1987 Constitution is not a continuing body
because less than majority of the Senators
continue into the next Congress. The consequence
is that the Rules of Procedure must be republished
Section 21, Article VI of the 1987 Constitution

explicitly provides that "[t]he Senate or the House
of Representatives, or any of its respective
committees may conduct inquiries in aid of
legislation in accordance with its duly published
rules of procedure." The requisite of publication of
the rules is intended to satisfy the basic
requirements of due process. 42 Publication is
indeed imperative, for it will be the height of
injustice to punish or otherwise burden a citizen for
164
by the Senate after every expiry of the term of

twelve Senators. 47
begin their term of office, the President may

endorse the Rules to the appropriate committee for
amendment or revision.
The subject was explained with greater lucidity in

our Resolution 48 (On the Motion for
Reconsideration) in the same case, viz.:
The Rules may also be amended by means of a

motion which should be presented at least one day
before its consideration, and the vote of the
majority of the Senators present in the session shall
be required for its approval. DCTSEA
On the nature of the Senate as a "continuing body",

this Court sees fit to issue a clarification. Certainly,
there is no debate that the Senate as an institution
is "continuing", as it is not dissolved as an entity
with each national election or change in the
composition of its members. However, in the
conduct of its day-to-day business the Senate of
each Congress acts separately and independently
of the Senate of the Congress before it. The Rules
of the Senate itself confirms this when it states:
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the
date of their adoption and shall remain in force until
they are amended or repealed.
Section 136 of the Senate Rules quoted above
takes into account the new composition of the
Senate after an election and the possibility of the
amendment or revision of the Rules at the start of
each session in which the newly elected Senators
shall begin their term.
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the
session shall be taken up at the next session in the
same status.
However, it is evident that the Senate has

determined that its main rules are intended to be
valid from the date of their adoption until they are
amended or repealed. Such language is
conspicuously absent from the Rules. The Rules
simply state "(t)hese Rules shall take effect seven
(7) days after publication in two (2) newspapers of
general circulation." The latter does not explicitly
provide for the continued effectivity of such rules
until they are amended or repealed. In view of the
difference in the language of the two sets of Senate
rules, it cannot be presumed that the Rules (on
legislative inquiries) would continue into the next
Congress. The Senate of the next Congress may
easily adopt different rules for its legislative
inquiries which come within the rule on unfinished
business.
All pending matters and proceedings shall

terminate upon the expiration of one (1) Congress,
but may be taken by the succeeding Congress as if
present for the first time.
Undeniably from the foregoing, all pending matters
and proceedings, i.e., unpassed bills and even
legislative investigations, of the Senate of a
particular Congress are considered terminated
upon the expiration of that Congress and it is
merely optional on the Senate of the succeeding
Congress to take up such unfinished matters, not in
the same status, but as if presented for the first
time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the
succeeding Congress (which will typically have a
different composition as that of the previous
Congress) should not be bound by the acts and
deliberations of the Senate of which they had no
part. If the Senate is a continuing body even with
respect to the conduct of its business, then pending
matters will not be deemed terminated with the
expiration of one Congress but will, as a matter of
course, continue into the next Congress with the
same status. HSCAIT
The language of Section 21, Article VI of the

Constitution requiring that the inquiry be conducted
in accordance with the duly published rules of
procedure is categorical. It is incumbent upon the
Senate to publish the rules for its legislative
inquiries in each Congress or otherwise make the
published rules clearly state that the same shall be
effective in subsequent Congresses or until they
are amended or repealed to sufficiently put public
on notice.
This dichotomy of the continuity of the Senate as

an institution and of the opposite nature of the
conduct of its business is reflected in its Rules. The
Rules of the Senate (i.e. the Senate's main rules of
procedure) states:
If it was the intention of the Senate for its present

rules on legislative inquiries to be effective even in
the next Congress, it could have easily adopted the
same language it had used in its main rules
regarding effectivity.
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE
RULES
Respondents justify their non-observance of the

constitutionally mandated publication by arguing
that the rules have never been amended since
1995 and, despite that, they are published in
booklet form available to anyone for free, and
SEC. 136. At the start of each session in which the

Senators elected in the preceding elections shall
165
accessible to the public at the Senate's internet

web page. 49 HIESTA
does not cure the infirmity of the inquiry sought to

be prohibited by the instant petitions. Insofar as the
consolidated cases are concerned, the legislative
investigation subject thereof still could not be
undertaken by the respondent Senate Committees,
because no published rules governed it, in clear
contravention of the Constitution.
The Court does not agree. The absence of any

amendment to the rules cannot justify the Senate's
defiance of the clear and unambiguous language of
Section 21, Article VI of the Constitution. The
organic law instructs, without more, that the Senate
or its committees may conduct inquiries in aid of
legislation only in accordance with duly published
rules of procedure, and does not make any
distinction whether or not these rules have
undergone
amendments
or
revision. The
constitutional mandate to publish the said rules
prevails over any custom, practice or tradition
followed by the Senate.
With the foregoing disquisition, the Court finds it

unnecessary to discuss the other issues raised in
the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is
DISMISSED, and the petition in G.R. No. 179275 is
GRANTED. Let a writ of prohibition be issued
enjoining the Senate of the Republic of the
Philippines and/or any of its committees from
conducting any inquiry in aid of legislation centered
on the "Hello Garci" tapes.
Justice Carpio's response to the same argument

raised by the respondents is illuminating:
The publication of the Rules of Procedure in the
website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the
Taada v. Tuvera ruling which requires publication
either in the Official Gazette or in a newspaper of
general circulation. The Rules of Procedure even
provide that the rules "shall take effect seven (7)
days after publication in two (2) newspapers of
general circulation", precluding any other form of
publication. Publication in accordance with Taada
is mandatory to comply with the due process
requirement because the Rules of Procedure put a
person's liberty at risk. A person who violates the
Rules of Procedure could be arrested and detained
by the Senate.
SO ORDERED.
The invocation by the respondents of the provisions

of R.A. No. 8792, 50 otherwise known as the
Electronic Commerce Act of 2000, to support their
claim of valid publication through the internet is all
the more incorrect. R.A. 8792 considers an
electronic data message or an electronic document
as the functional equivalent of a written document
only for evidentiary purposes. 51 In other words,
the law merely recognizes the admissibility in
evidence (for their being the original) of electronic
data messages and/or electronic documents. 52 It
does not make the internet a medium for publishing
laws, rules and regulations.
||| (Garcillano v. House of Representatives

Committees on Public Information, G.R. No.
170338, 179275, [December 23, 2008], 595 PHIL
775-844)
Quisumbing,
Carpio,
Tinga,
Chico-Nazario,
Velasco, Jr., Leonardo-de Castro and Brion, JJ.,
concur.
Puno, C.J., pls. see dissent.
Ynares-Santiago, Austria-Martinez, Carpio-Morales
and Azcuna, JJ., join the dissent of Chief Justice
Puno.
Corona, J., is on leave.
Reyes, J., see concurring and dissenting opinion.
5. PLACIDO VS. NLRC 600 SCRA 697 (2009)

SECOND DIVISION
[G.R. No. 180888. September 18, 2009.]
ROLANDO PLACIDO and EDGARDO CARAGAY,
petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION and PHILIPPINE LONG DISTANCE
TELEPHONE
COMPANY,
INCORPORATED,
respondents.
Given this discussion, the respondent Senate

Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the
legislative inquiry subject of these consolidated
cases. The conduct of inquiries in aid of legislation
by the Senate has to be deferred until it shall have
caused the publication of the rules, because it can
do so only "in accordance with its duly published
rules of procedure". ECaSIT
DECISION
CARPIO MORALES, ** J p:
Petitioners Rolando Placido (Placido) and Edgardo
Caragay (Caragay) had been employed since
January 22, 1981 and June 1, 1983, respectively,
both as cable splicers by respondent Philippine
Long Distance Telephone Company, Incorporated
(PLDT).
It appears that since August 2000, PLDT had been
receiving reports of theft and destruction of its
Very recently, the Senate caused the publication of

the Senate Rules of Procedure Governing Inquiries
in Aid of Legislation in the October 31, 2008 issues
of Manila Bulletin and Malaya. While we take
judicial notice of this fact, the recent publication
166
cables. 1 On March 13, 2001, PLDT Duty Inspector

Ricardo Mojica (Mojica) and PLDT Security
Guard/Driver Mark Anthony Cruto (Cruto),
responding to a report that cables were being
stripped and burned in one of the residences along
Alley 2 Street, Project 6, Quezon City, proceeded to
the said area where they saw petitioners' service
vehicle parked infront of the house at No. 162.
They likewise saw petitioners stripping and burning
cables inside the compound of the house which
turned out to belong to Caragay's mother. With the
assistance of police and barangay officials, PLDT
recovered the cables bearing the "PLDT" marking.
The incident spawned the filing, on complaint of
PLDT, of an Information for Qualified Theft against
petitioners before the Regional Trial Court (RTC) of
Quezon City, docketed as Criminal Case No.
99467. ESDHCa
In a related move, PLDT required petitioners to
explain within 72 hours why no severe disciplinary
action should be taken against them for Serious
Misconduct and Dishonesty. 2 After several
requests for extension to submit their explanations,
petitioners submitted a joint explanation 3 on June
11, 2001 denying the charges against them. By
their claim, they were on their way back from the
house of one Jabenz Quezada (Quezada) from
whom they were inquiring about a vehicle when
they were detained by Mojica.
On petitioners' request, a formal hearing was
scheduled. Their request for a copy of the Security
Investigation was denied, however, on the ground
that they are only entitled to "be informed of the
charges, and they cannot demand for the report as
it is still on the confidential stage".
During the June 25, 2001 formal hearing scheduled
by PLDT, representatives from petitioners' union
Manggagawa ng Komunikasyon sa Pilipinas (MKP)
were present. As petitioners' counsel could not
attend the hearing due to a previously scheduled
hearing at the RTC Makati, petitioners requested
for another setting 5 but it was denied. Petitioners
were, however, given a non-extendible period of
three days to submit their evidence. 6 HcSaTI
Mojica testified during the hearing that when
petitioners saw him as they were stripping and
burning the cables, they fled but surfaced thirty
minutes later from Alley 6 Street wearing different
clothes; and that according to Rodolfo R. Anor,
PLDT Work Order Supervisor, the cables could be
dead cables that were not recovered by
contractors. 7
Petitioners' counsel later reiterated the request for
a setting of a hearing and an audiotape of the June
25, 2001 hearing, but the same was denied. A third
time request for another hearing was likewise
denied. 9
On May 17, 2002, PLDT sent notices of termination
10 to petitioners, prompting them to file on May 24,
2002 a complaint 11 for illegal dismissal before the
Labor Arbiter.
By Decision of January 12, 2004, Labor Arbiter
Catalino R. Laderas held that petitioners were
illegally dismissed, there being no provision in
PLDT's rules and regulations that stripping and
burning of PLDT cables and wires constitute

Serious Misconduct and Dishonesty; that PLDT's
seeming lack of urgency in taking any disciplinary
action against petitioners negates the charges; 12
and that dismissal is too harsh, given petitioners'
years of service and lack of previous derogatory
record.
On appeal, 13 the National Labor Relations
Commission (NLRC), by Decision dated February
28, 2005, reversed the Labor Arbiter's Decision and
dismissed petitioners' complaint for lack of merit, 14
it holding that they were validly dismissed for just
cause "theft of company property". 15
In brushing aside petitioners' disclaimer of the acts
attributed to them, the NLRC noted that, inter alia,
they failed to present any affidavit of Quezada to
prove that they were indeed at his house inquiring
about a vehicle. ICESTA
Petitioners appealed to the Court of Appeals.
In the meantime or on February 15, 2007, Branch
104 of the Quezon City RTC acquitted petitioners in
Criminal Case No. 99467 on the ground of
reasonable doubt, it holding that the prosecution
failed to prove that the cables were in fact stolen
from PLDT. 16
By Decision of September 28, 2007, the appellate
court affirmed the NLRC Decision, 17 it holding that
since the cables bore the "PLDT" marking, they
were presumed to be owned by PLDT, hence, the
burden of evidence shifted on petitioners to prove
that they were no longer owned by PLDT, but they
failed.
Ruling out petitioners' claim that they were denied
due process, the appellate court held that they
were given ample opportunity to defend themselves
during the administrative hearing during which they
were furnished with written invitations for their
appearance before the investigating unit on several
dates, but they refused to submit themselves to the
investigation. Petitioners' motion for reconsideration
having been denied by Resolution 18 of December
17, 2007, the present petition was filed. 19
Petitioners insist that the presence of the "PLDT"
marking on the cables does not prove that PLDT
owned them at the time. They aver that PLDT
disposes of used and unserviceable materials,
including cables and telephone wires which had
been declared junked and classified as scrap a
substantial amount of which remains insulated
and once disposed of, these cables, although still
bearing the "PLDT" marking, are no longer its
property. ETDAaC
In fine, petitioners contend that PLDT's ownership
of cables or wires bearing the "PLDT" marking on
the insulation cannot be presumed, hence, a
person's possession thereof does not give rise to
the presumption that he obtained or stole them
from PLDT. 20
Additionally, petitioners aver that they were denied
due process when PLDT refused to furnish them a
copy of the Investigation Report and grant them a
formal hearing in which they could be represented
by counsel of their choice.
The petition is bereft of merit.
167
As did the NLRC and the Court of Appeals, 21 the

Court finds that as the cables bore the "PLDT"
marking, the presumption is that PLDT owned
them. The burden of evidence thus lay on
petitioners to prove that they acquired the cables
lawfully. This they failed to discharge.
And as also did the NLRC and the Court of
Appeals, the Court finds that petitioners were not
denied due process.
Article 277 of the Labor Code provides:
(iii) A written notice of termination served on the

employee, indicating that upon due consideration of
all the circumstances, grounds have been
established to justify his termination. (Emphasis
and underscoring supplied)
(d) In all cases of termination of employment, the

following standards of due process shall be
substantially observed:
The abovequoted provision of Section 2 (d) should

not be taken to mean, however, that holding an
actual hearing or conference is a condition sine qua
non for compliance with the due process
requirement in case of termination of employment.
For the test for the fair procedure guaranteed under
the above-quoted Article 277 (b) of the Labor Code
is not whether there has been a formal
pretermination confrontation between the employer
and the employee. The "ample opportunity to be
heard" standard is neither synonymous nor similar
to a formal hearing. To confine the employee's right
to be heard to a solitary form narrows down that
right. 29
The essence of due process is simply an
opportunity to be heard or, as applied to
explain one's side or an opportunity to seek a
of. What the law prohibits is absolute absence of
the opportunity to be heard, hence, a party cannot
feign denial of due process where he had been
afforded the opportunity to present his side. A
formal or trial type hearing is not at all times and in
all instances essential to due process, the
requirements of which are satisfied where the
parties are afforded fair and reasonable opportunity
to explain their side of the controversy. 30 EHSIcT
In the present case, petitioners were, among other
things, given several written invitations to submit
themselves to PLDT's Investigation Unit to explain
their side, but they failed to heed them. A hearing,
which petitioners attended along with their union
MKP representatives, was conducted on June 25,
2001 during which the principal witnesses to the
incident were presented. Petitioners were thus
afforded the opportunity to confront those
witnesses and present evidence in their behalf, but
they failed to do so.
WHEREFORE, the petition is DENIED. The
Decision of the Court of Appeals dated September
28, 2007 is AFFIRMED.
SO ORDERED.
For termination of employment based on just

causes as defined in Article 282 of the Labor Code:
Ynares-Santiago, * Brion, Del Castillo and Abad,

JJ., concur.
(i) A written notice served on the employee

specifying the ground or grounds for termination,
and giving said employee reasonable opportunity
within which to explain his side.
||| (Placido v. National Labor Relations

Commission, G.R. No. 180888, [September 18,
2009], 616 PHIL 668-676)
xxx xxx xxx

(b) Subject to the constitutional right of workers to
security of tenure and their right to be protected
against dismissal except for a just or authorized
cause and without prejudice to the requirement of
notice under Article 283 of this Code, the employer
shall furnish the workers whose employment is
sought to be terminated a written notice containing
a statement of the causes for termination and shall
afford the latter ample opportunity to be heard and
defend himself with the assistance of his
representative if he so desires in accordance with
company rules and regulations promulgated
pursuant to the guidelines set by the Department of
Labor and Employment. Any decision taken by the
employer shall be without prejudice to the right of
the worker to contest the validity or legality of his
dismissal by filing a complaint with the regional
branch of the National Labor Relations
Commission. The burden of proving that the
termination was for a valid or authorized cause
shall rest on the employer. (Emphasis supplied)
ASTIED
And the Omnibus Rules Implementing the Labor
Code require a hearing and conference during
which the employee concerned is given the
opportunity to respond to the charge, and present
his evidence or rebut the evidence presented
against him. Thus Rule I, Section 2 (d), provides:
Section 2. Security of Tenure.
xxx xxx xxx
6. MENDOZA VS. COMELEC 603 SCRA 692

(2009)
(ii) A hearing or conference during which the

employee concerned, with the assistance of
counsel if he so desires, is given opportunity to
respond to the charge, present his evidence or
rebut the evidence presented against him.
EN BANC
[G.R. No. 188308. October 15, 2009.]
168
JOSELITO
R.
MENDOZA,
petitioner,vs.COMMISSION ON ELECTIONS and
ROBERTO M. PAGDANGANAN, respondents.
2009. These inter-related Resolutions led to the

COMELEC's continued action specifically, the
appreciation of ballots on the provincial election
contest at the SET offices.
Allegedly alarmed by information on COMELEC
action on the provincial election contest within the
SET premises without notice to him and without his
participation, the petitioner's counsel wrote the SET
Secretary, Atty. Irene Guevarra, a letter dated June
10, 2009 to confirm the veracity of the reported
conduct of proceedings. 2 The SET Secretary
responded on June 17, 2009 as follows:
...please be informed that the conduct of
proceedings in COMELEC EPC No. 2007-44
(Pagdanganan vs. Mendoza) within the Tribunal
Premises was authorized by then Acting Chairman
of the Tribunal, Justice Antonio T. Carpio, upon
formal request of the Office of Commissioner
Lucenito N. Tagle. EDCcaS
DECISION
BRION, J p:
The present case involves a clash between the
power under the Philippine Constitution of the
respondent Commission on Elections (COMELEC)
in the handling of a provincial election contest, and
the claimed due process rights of a party to the
contest. The petitioner Joselito R. Mendoza (the
petitioner) essentially asserts in his petition for
certiorari 1 that the COMELEC conducted
proceedings in the election contest for the
gubernatorial position of the Province of Bulacan,
between him and the respondent Roberto M.
Pagdanganan (the respondent),without due regard
to his fundamental due process rights. The
COMELEC, on the other hand, claims that its
decision-making
deliberations
are
internal,
confidential and do not require notice to and the
participation of the contending parties. EcHIDT
THE ANTECEDENTS
The petitioner and the respondent vied for the
position of Governor of the Province of Bulacan in
the May 14, 2007 elections. The petitioner was
proclaimed winning candidate and assumed the
office of Governor.
The respondent seasonably filed an election protest
with the COMELEC, which was raffled to the
Second Division and docketed as EPC No. 200744. Revision of ballots involving the protested and
counter-protested precincts in Angat, Bocaue,
Calumpit, Doa Remedios Trinidad, Guiginto,
Malolos,
Meycauayan,
Norzagaray,
Pandi,
Paombong, Plaridel, Pulilan, San Rafael and San
Jose del Monte soon followed. The revision was
conducted at the COMELEC's office in Intramuros.
After revision, the parties presented their other
evidence, leading to the parties' formal offer of their
respective evidence.
The COMELEC approved the parties' formal offer
of evidence and then required the parties to submit
their respective memoranda. The parties complied
with the COMELEC's order. The case was
thereafter submitted for resolution.
On March 2, 2009 the COMELEC transferred the
Bulacan ballot boxes, including those involved in
the provincial election contest, to the Senate
Electoral Tribunal (SET) in connection with the
protest filed by Aquilino Pimentel III against Juan
Miguel Zubiri. In light of this development, the
petitioner moved to suspend further proceedings.
The COMELEC's Second Division denied the
petitioner's motion in its Order of April 29, 2009,
ruling that the COMELEC has plenary powers to
find alternative methods to facilitate the resolution
of the election protest; thus, it concluded that it
would continue the proceedings after proper
coordination with the SET. The petitioner moved to
reconsider this Order, but the COMELEC's Second
Division denied the motion in its Order of May 26,
Basis of such grant is Section 3, Comelec

Resolution No. 2812 dated 17 October 1995,
stating that "(t)he Tribunals, the Commission and
the Courts shall coordinate and make arrangement
with each other so as not to delay or interrupt the
revision of ballots being conducted. The
synchronization of revision of ballots shall be such
that the expeditious disposition of the respective
protest case shall be the primary concern". While
the said provision speaks only of revision, it has
been the practice of the Tribunal to allow the
conduct of other proceedings in local election
protest cases within its premises as may be
requested. [emphasis supplied] 3
THE PETITION
The SET Secretary's response triggered the filing of
the present petition raising the following ISSUES
A. WHETHER OR NOT THE COMELEC
VIOLATED DUE PROCESS BY CONDUCTING
PROCEEDINGS WITHOUT GIVING DUE NOTICE
TO THE PETITIONER.
B. WHETHER OR NOT THE COMELEC GRAVELY
ABUSED ITS DISCRETION TANTAMOUNT TO AN
EXCESS OF JURISDICTION IN APPRECIATING
BALLOTS WHICH ARE NOT IN ITS OFFICIAL
CUSTODY AND ARE OUTSIDE ITS OWN
PREMISES, AUTHORITY AND CONTROL.
The petitioner argues that the election protest
involves his election as Governor; thus, its subject
matter involves him and the people of the Province
of Bulacan who elected him. On this basis, he
claims entitlement to notice and participation in all
matters that involve or are related to the election
protest. He further asserts that he had the
legitimate expectation that no further proceedings
would be held or conducted in the case after its
submission for decision.
Citing the commentaries of Father Joaquin Bernas,
4 the petitioner argues that the proceedings before
the COMELEC in election protests are judicial in
nature and character. Thus, the strictures of judicial
due process specifically, (a) opportunity to be
169
heard and (b) that judgment be rendered only after

lawful hearing apply. Notices in judicial dispute,
he claims, are not really just a matter of courtesy;
they are elementary fundamental element of due
process, they are part and parcel of a right of a
party to be heard. He further cites Justice Isagani
A. Cruz, 5 who wrote:
...Every litigant is entitled to his day in court. He has
a right to be notified of every incident of the
proceeding and to be present at every stage
thereof so that he may be heard by himself and
counsel for the protection of his interest. IcSEAH
while Cabagnot involves the issue of change of

venue, the petitioner finds parallel applicability in
the present case which also involves a deviation
from COMELEC rules and usual practice. The
petitioner adds that the act of the Second Division
is effectively an arrogation of the authority to
promulgate rules of procedure a power that
solely belongs to the COMELEC en banc.
After a preliminary finding of a genuine due process
issue, we issued a Status Quo Order on July 14,
2009. cDSaEH
THE RESPONDENTS' COMMENTS
In his Comment to the Petition with Extremely
Urgent Motion to Lift/Dissolve Status Quo Ante
Order, the private respondent asserts that the
petition contains deliberate falsehoods and
misleading allegations that led the Court to grant
the injunctive relief the petitioner had asked. He
asserts that the "proceeding" the petitioner stated in
his petition was actually the COMELEC's decisionmaking process, i.e., the appreciation of ballots,
which is a procedure internal to the Members of the
Second Division of the COMELEC and their staff
members; no revision of ballots took place as
revision had long been finished. What was
therefore undertaken within the SET's premises
was unilateral COMELEC action that is exclusive to
the COMELEC and an internal matter that is
confidential in nature. In this light, no due process
violation ever arose.
The private respondent also asserts that the
petitioner cannot claim that he was not notified of
and denied participation in the revision
proceedings, as the petitioner himself is fully aware
that the revision of the ballots was completed as
early as July 28, 2008 and the petitioner was
present and actively participated in the entire
proceedings, all the way to the filing of the required
memoranda. Thus, the petitioner's right to due
process was duly satisfied.
The petitioner claims that without notice to him of

the proceedings, the due process element of the
right to have judgment only after lawful hearing is
absent. There is no way, he claims, that a judicial
proceeding held without notice to the parties could
be described as a lawful hearing, especially a
proceeding which has as its subject matter the
sovereign will of an entire province.
He was therefore denied his day in court, he
claims, when the COMELEC conducted the
examination and appreciation of ballots. The
proceedings should be stopped and declared null
and void; its future results, too, should be nullified,
as nothing derived from the anomalous and
unconstitutional
clandestine
and
unilateral
proceedings should ever be part of any decision
that the COMELEC may subsequently render. The
poisonous fruits (derived from the proceedings)
should have no part and should not be admitted for
any purpose and/or in any judicial proceeding.
Other than his due process concern, the petitioner
takes issue with the COMELEC's appreciation of
ballots even when the ballots and other election
materials were no longer in its official custody and
were outside its premises, authority and control. He
asserts that an important element of due process is
that the judicial body should have jurisdiction over
the property that is the subject matter of the
proceedings. In this case, the COMELEC has
transferred possession, custody and jurisdiction
over the ballots to the SET, a tribunal separate and
independent from the COMELEC and over which
the COMELEC exercises no authority or
jurisdiction. For the COMELEC to still conduct
proceedings on property, materials and evidence
no longer in its custody violates the principle of
separation of powers.
The petitioner also points out that the COMELEC's
unilateral appreciation of the ballots in the SET
premises deviates from the Commission's usual
and time honored practice and procedure of
conducting proceedings within its premises and
while it has custody over the ballots. There is no
precedent, according to the petitioner, for this
deviation, nor is there any compelling reason to
make the present case an exception. Citing
Cabagnot v. Commission on Elections (G.R. No.
124383, August 9, 1996) which involves a transfer
or change of venue of the revision of ballots, the
petitioner alleges that this Court has been very
emphatic in denouncing the COMELEC for its
departure from its own rules and usual practice;
The private respondent implores us to commence

contempt proceedings against the petitioner who,
the respondent claims, has not been forthright in
his submissions and was not guided by the highest
standards of truthfulness, fair play and nobility in
his conduct as a party and in his relations with the
opposing party, the other counsel and the Court.
Lastly, the private respondent posits that the
present petition was filed out of time i.e., beyond
the reglementary period provided under Rule 64. All
these reasons, the petitioner argues, constitute
sufficient basis for the lifting of the status quo order
and the dismissal of the petition.
Public respondent COMELEC, for its part, claims
that the petition is without basis in fact and in law
and ought to be dismissed outright. Given the
possibility of simultaneous election contests
involving national and local officials, it has
institutionalized an order of preference in the
custody and revision of ballots in contested ballot
boxes. The established order of preference is not
without exception, as the expeditious disposition of
protest cases is a primary concern. Additionally, the
170
order of preference does not prevent the

COMELEC from proceeding with pending protest
cases, particularly those already submitted for
decision. It claims that it has wide latitude to
employ means to effectively perform its duty in
safeguarding the sanctity of the elections and the
integrity of the ballot. TCaEIc
The COMELEC further argues that in the absence
of a specific rule on whether it can conduct
appreciation of ballots outside its premises or
official custody, the issue boils down to one of
discretion the authority of the COMELEC to
control as it deems fit the processes or incidents of
a pending election protest. Under Section 4 of the
COMELEC Rules of Procedure, the COMELEC
may use all auxiliary writs, processes and other
means to carry into effect its powers or jurisdiction;
if the procedure to be followed in the exercise of
such power or jurisdiction is not specifically
provided for by law or the Rules of Procedure, any
suitable process or proceeding not prohibited by
law or by its rules may be adopted.
The COMELEC lastly submits that while due
process requires giving the parties an opportunity
to intervene in all stages of the proceedings, the
COMELEC in the present case is not actually
conducting further proceedings requiring notice to
the parties; there is no revision or correction of the
ballots, as the election protest had already been
submitted for resolution. When the COMELEC
coordinated with the SET, it was simply for
purposes of resolving the submitted provincial
election contest before it; the parties do not take
part in this aspect of the case which necessarily
requires utmost secrecy. On the whole, the
petitioner was afforded every opportunity to present
his case. To now hold the election protest hostage
until the conclusion of the protest pending before
the SET defeats the COMELEC's mandate of
ensuring free, orderly and honest election.
THE COURT'S RULING
We review the present petition on the basis of the
combined application of Rules 64 and 65 of the
Rules of Court. While COMELEC jurisdiction over
the Bulacan election contest is not disputed, the
legality of subsequent COMELEC action is assailed
for having been undertaken with grave abuse of
jurisdiction. Thus, our standard of review is "grave
abuse of discretion", a term that defies exact
definition, but generally refers to "capricious or
whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be
patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and
hostility". 6 Mere abuse of discretion is not enough;
the abuse must be grave to merit our positive
action. 7
After due consideration, we find the petition devoid
of merit.
The petition is anchored on the alleged conduct of
proceedings in the election protest following the
completed revision of ballots at the SET

premises without notice to and without the
participation of the petitioner. Significantly, "the
conduct of proceedings" is confirmed by the SET
Secretary in the letter we quoted above. 8 As the
issues raised show the petitioner's focus is not
really on the COMELEC Orders denying the
suspension of proceedings when the ballot boxes
and other election materials pertinent to the
election contest were transferred to the SET; the
focus is on what the COMELEC did after to the
issuance of the Resolutions. We read the petition in
this context as these COMELEC Orders are now
unassailable as the period to challenge them has
long passed. 9 cDECIA
The substantive issue we are primarily called upon
to resolve is whether there were proceedings within
the SET premises, entitling the petitioner to notice
and participation, which were denied to him; in
other words, the issue is whether the petitioner's
right to due process has been violated. A finding of
due process violation, because of the inherent
arbitrariness it carries, necessarily amounts to
grave abuse of discretion.
As a preliminary matter, we note that the petitioner
has claimed that COMELEC exercises judicial
power in its action over provincial election contests
and has argued its due process position from this
view. We take this opportunity to clarify that judicial
power in our country is "vested in one Supreme
Court and in such lower courts as may be
established by law".10 This exclusive grant of
authority to the Judiciary is reinforced under the
second paragraph of Section 1, Article VIII of the
Constitution which further states that "Judicial
power includes the duty of the courts of justice to
settle actual controversies involving rights which
are legally demandable and enforceable ...," thus
constitutionally locating the situs of the exercise of
judicial power in the courts.
In contrast with the above definitions, Section 2,
Article IX (C) of the Constitution lists the
COMELEC's powers and functions, among others,
as follows:
(1) Enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all
contests relating to the elections, returns and
qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all
contests involving elective municipal officials
decided by trial courts of general jurisdiction, or
involving elective barangay officials by trial courts
of limited jurisdiction.
Decisions, final orders, or rulings of the
Commission on election contests involving elective
municipal and barangay officials shall be final,
executory, and not appealable.
(3) Decide, except those involving the right to vote,
all questions affecting elections, including
determination of the number and location of polling
171
places, appointment of election officials and

inspectors, and registration of voters.
of a judicial nature; 12 it receives evidence,

ascertain the facts from these submissions,
determine the law and the legal rights of the
parties, and on the basis of all these decides on the
merits of the case and renders judgment. 13
Despite the exercise of discretion that is essentially
judicial in character, particularly with respect to
election contests, COMELEC is not a tribunal within
the judicial branch of government and is not a court
exercising judicial power in the constitutional sense;
14 hence, its adjudicative function, exercised as it
is in the course of administration and enforcement,
is quasi-judicial. SDHCac
Under these terms, the COMELEC under our

governmental structure is a constitutional
administrative agency and its powers are
essentially executive in nature (i.e., to enforce and
administer election laws), 11 quasi-judicial (to
exercise original jurisdiction over election contests
of regional, provincial and city officials and
appellate jurisdiction over election contests of other
lower ranking officials), and quasi-legislative
(rulemaking on all questions affecting elections and
the promulgation of its rules of procedure). SHIETa
Historically, the COMELEC has always been an
administrative agency whose powers have been
increased from the 1935 Constitution to the present
one, to reflect the country's awareness of the need
to provide greater regulation and protection to our
electoral processes to ensure their integrity. In the
1935 Constitution, the powers and functions of the
COMELEC were defined as follows:
SECTION 2. The Commission on Elections shall
have exclusive charge of the enforcement and
administration of all laws relative to the conduct of
elections and shall exercise all other functions
which may be conferred upon it by law. It shall
decide, save those involving the right to vote, all
administrative questions affecting elections,
including the determination of the number and
location of polling places, and the appointment of
election inspectors and of other election officials. All
law enforcement agencies and instrumentalities of
the Government, when so required by the
Commission, shall act as its deputies for the
purpose of insuring free, orderly, and honest
election. The decisions, orders, and rulings of the
Commission shall be subject to review by the
Supreme Court. [emphasis supplied]
As will be seen on close examination, the 1973

Constitution used the unique wording that the
COMELEC shall "be the sole judge of all contests",
thus giving the appearance that judicial power had
been conferred. This phraseology, however, was
changed in the 1987 Constitution to give the
COMELEC "exclusive jurisdiction over all contests",
thus removing any vestige of exercising its
adjudicatory power as a court and correctly aligning
it with what it is a quasi-judicial body. 15
Consistent with the characterization of its
adjudicatory power as quasi-judicial, the judicial
review of COMELEC en banc decisions (together
with the review of Civil Service Commission
decisions) is via the prerogative writ of certiorari,not
through an appeal, as the traditional mode of
review of quasi-judicial decisions of administrative
tribunals in the exercise the Court's supervisory
authority. This means that the Court will not
supplant the decision of the COMELEC as a quasijudicial body except where a grave abuse of
discretion or any other jurisdictional error exists.
The appropriate due process standards that apply
to the COMELEC, as an administrative or quasijudicial tribunal, are those outlined in the seminal
case of Ang Tibay v. Court of Industrial Relations,
16 quoted below:
(1) The first of these rights is the right to a hearing,
which includes the right of the party interested or
affected to present his own case and submit
evidence in support thereof. ...
These evolved into the following powers and

functions under the 1973 Constitution:
(1) Enforce and administer all laws relative to the
conduct of elections.
(2) Be the sole judge of all contests relating to the
elections, returns, and qualifications of all members
of the National Assembly and elective provincial
and city officials.
(2) Not only must the party be given an opportunity

to present his case and to adduce evidence tending
to establish the rights which he asserts but the
tribunal must consider the evidence presented.
(3) Decide, save those involving the right to vote,

administrative questions affecting elections,
including the determination of the number and
location of polling places, the appointment of
election officials and inspectors, and the
registration of voters.
(3) While the duty to deliberate does not impose the

obligation to decide right, it does imply a necessity
which cannot be disregarded, namely, that of
having something to support its decision. A decision
with absolutely nothing to support it is a nullity, a
place when directly attached.
These powers have been enhanced in scope and

details under the 1987 Constitution, but retained all
the while the character of an administrative agency.
The COMELEC's adjudicative function is quasijudicial since it is a constitutional body, other than a
court, vested with authority to decide election
contests, and in the course of the exercise of its
jurisdiction, to hold hearings and exercise discretion
(4) Not only must there be some evidence to

support a finding or conclusion, but the evidence
must be "substantial"."Substantial evidence is more
than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as
adequate to support a conclusion".
172
(5) The decision must be rendered on the evidence

presented at the hearing, or at least contained in
the record and disclosed to the parties affected.
deliberative stages and alleges that these

component rights have all been violated. We
discuss all these allegations below.
The Right to Notice and to be Heard.
a. At the Hearing and Revision of Ballots.
Based on the pleadings filed, we see no factual and
legal basis for the petitioner to complain of denial of
his hearing stage rights. In the first place, he does
not dispute that he fully participated in the
proceedings of the election protest until the case
was deemed submitted for resolution; he had
representation at the revision of the ballots, duly
presented his evidence, and summed up his case
through a memorandum. These various phases of
the proceedings constitute the hearing proper of the
election contest and the COMELEC has more than
satisfied the opportunity to be heard that the Ang
Tibay hearing stage rights require. In these
proceedings, the petitioner stood head-to-head with
the respondent in an adversarial contest where
both sides were given their respective rights to
speak, make their presentations, and controvert
each other's submission, subject only to
established COMELEC rules of procedures. Under
these undisputed facts, both parties had their day in
court, so to speak, and neither one can complain of
any denial of notice or of the right to be heard.
HDIATS
b. At the "Proceedings" at the SET.
A critical question to be answered in passing upon
due process questions at this stage of the election
contest is the nature of the so-called "proceedings"
after the ballots and other materials pertinent to the
provincial election contest were transferred to the
SET.
In the petition, the petitioner alleged that there were
"strange proceedings" 20 which were "unilateral,
clandestine and surreptitious" within the premises
of the SET, on "documents, ballots and election
materials whose possession and custody have
been transferred" to the SET, and the "petitioner
was NEVER OFFICIALLY NOTIFIED of the strange
on-goings" at the SET. 21 Attached to the petition
was the letter of the Secretary of the SET
confirming the "conduct of proceedings" in the
provincial election contest, and citing as basis the
authority of Acting SET Chairman, Justice Antonio
T. Carpio, upon the formal request of the Office of
Commissioner Lucenito N. Tagle, and citing Section
3, COMELEC Resolution No. 2812 dated 17
October 1995 on the coordination envisioned
among the COMELEC, the SET and the courts "so
as not to delay or interrupt the revision of ballots
being conducted".While the SET letter made the
reservation that "While the said provision speaks
only of revision, it has been the practice of the
Tribunal to allow the conduct of other proceedings
in local election protest cases within its premises as
may be requested",no mention whatsoever was
made of the kind of proceedings taking place.
It was at this point that this Court intervened, in
response to the petitioner's prayer for the issuance
of temporary injunctive relief, through the issuance
of a Status Quo Order with a non-extendible
directive for the respondents to file their comments
(6) The Court of Industrial Relations or any of its

judges, therefore, must act on its or his own
independent consideration of the law and facts of
the controversy, and not simply accept the views of
a subordinate in arriving at a decision. IDCcEa
(7) The Court of Industrial Relations should, in all
controversial questions, render its decision in such
a manner that the parties to the proceeding can
know the various issues involved, and the reasons
for the decisions rendered. The performance of this
duty is inseparable from the authority conferred
upon it.
These are now commonly referred to as cardinal
primary rights in administrative proceedings.
The first of the enumerated rights pertain to the
substantive rights of a party at hearing stage of the
proceedings. The essence of this aspect of due
process, we have consistently held, is simply the
of. 17 A formal or trial-type hearing is not at all
times and in all instances essential; in the case of
COMELEC, Rule 17 of its Rules of Procedure
defines the requirements for a hearing and these
serve as the standards in the determination of the
presence or denial of due process.
The second, third, fourth, fifth, and sixth aspects of
the Ang Tibay requirements are reinforcements of
the right to a hearing and are the inviolable rights
applicable at the deliberative stage,as the decisionmaker decides on the evidence presented during
the hearing. These standards set forth the guiding
considerations in deliberating on the case and are
the material and substantial components of
decision-making. Briefly, the tribunal must consider
the totality of the evidence presented which must all
be found in the records of the case (i.e.,those
presented or submitted by the parties);the
conclusion, reached by the decision-maker himself
and not by a subordinate, must be based on
substantial evidence. 18
Finally, the last requirement, relating to the form
and substance of the decision of a quasi-judicial
body, further complements the hearing and
decision-making due process rights and is similar in
substance to the constitutional requirement that a
decision of a court must state distinctly the facts
and the law upon which it is based. 19 As a
component of the rule of fairness that underlies due
process, this is the "duty to give reason" to enable
the affected person to understand how the rule of
fairness has been administered in his case, to
expose the reason to public scrutiny and criticism,
and to ensure that the decision will be thought
through by the decision-maker.
In the present case, the petitioner invokes both the
due process component rights at the hearing and
173
on the petition; for indeed, any further revision of

ballots or other adversarial proceedings after the
case has been submitted for resolution, would not
only be strange and unusual but would indicate a
gross violation of due process rights.
After consideration of the respondents' Comments
and the petitioner's petition and Reply, we hold that
the contested proceedings at the SET ("contested
proceedings") are no longer part of the adversarial
aspects of the election contest that would require
notice of hearing and the participation of the
parties. As the COMELEC stated in its Comment
and without any contrary or disputing claim in the
petitioner's Reply: 22
"However, contrary to the claim of petitioner, public
respondent in the appreciation of the contested
ballots in EPC No. 2007-44 simultaneously with the
SET in SET Case No. 001-07 is not conducting
"further proceedings" requiring notice to the parties.
There is no revision or correction of the ballots
because EPC No. 2007-04 was already submitted
for resolution. Public respondent, in coordinating
with the SET, is simply resolving the submitted
protest case before it. The parties necessarily take
no part in said deliberation, which require utmost
secrecy. Needless to state, the actual decisionmaking process is supposed to be conducted only
by the designated members of the Second Division
of the public respondent in strict confidentiality."
cADSCT
On the basis of the above conclusion, we see no

point in discussing any alleged violation of the
deliberative stage rights. First, no illegal proceeding
ever took place that would bear the "poisonous
fruits" that the petitioner fears. Secondly, in the
absence of the results of the COMELEC
deliberations through its decision on the election
protest, no basis exists to apply the Ang Tibay
deliberative stage rights; there is nothing for us to
test under the standards of the due process
deliberative stages rights before the COMELEC
renders its decision. Expressed in terms of our
standard of review, we have as yet no basis to
determine the existence of any grave abuse of
discretion.
Conduct of COMELEC
Deliberations at the SET Premises
We turn to the issue of the propriety of the
COMELEC's consideration of the provincial election
contest (specifically its appreciation of the
contested ballots) at the SET premises and while
the same ballots are also under consideration by
the SET for another election contest legitimately
within the SET's own jurisdiction. HSDCTA
We state at the outset that the COMELEC did not
lose jurisdiction over the provincial election contest,
as the petitioner seems to imply, because of the
transmittal of the provincial ballot boxes and other
election materials to the SET. The Constitution
conferred upon the COMELEC jurisdiction over
election protests involving provincial officials. The
COMELEC in this case has lawfully acquired
jurisdiction over the subject matter, i.e., the
provincial election contest, as well as over the
parties. After its jurisdiction attached, this
jurisdiction cannot be ousted by subsequent events
such as the temporary transfer of evidence and
material records of the proceedings to another
tribunal exercising its own jurisdiction over another
election contest pursuant to the Constitution. This is
the rule of adherence of jurisdiction. 24
Thus, the jurisdiction of the COMELEC over
provincial election contest exists side by side with
the jurisdiction of the Senate Electoral Tribunal,
with each tribunal being supreme in their respective
areas of concern (the Senate election contests for
the SET, and the regional, provincial and city
election contests for the COMELEC),and with
neither one being higher than the other in terms of
precedence so that the jurisdiction of one must
yield to the other.
But while no precedence in jurisdiction exists, the
COMELEC, vowing to the reality that only a single
ballot exists in an election for national and local
officials, saw it fit to lay down the rule on the "order
of preference in the custody and revision of ballots
and other documents contained in the ballot
boxes".The order, in terms of the adjudicatory
tribunal and as provided in COMELEC Resolution
No. 2812, runs:
1. Presidential Electoral Tribunal;
In other words, what took place at the SET were

the internal deliberations of the COMELEC, as a
quasi-judicial body, in the course of appreciating
the evidence presented and deciding the provincial
election contest on the merits. These deliberations
are no different from judicial deliberations which are
considered confidential and privileged. 23 We find it
significant that the private respondent's Comment
fully supported the COMELEC's position and
disavowed any participation in the contested
proceeding the petitioner complained about. The
petitioner, on the other hand, has not shown that
the private respondent was ever present in any
proceeding at the SET relating to the provincial
election contest.
To conclude, the rights to notice and to be heard
are not material considerations in the COMELEC's
handling of the Bulacan provincial election contest
after the transfer of the ballot boxes to the SET; no
proceedings at the instance of one party or of
COMELEC has been conducted at the SET that
would require notice and hearing because of the
possibility of prejudice to the other party. The
COMELEC is under no legal obligation to notify
either party of the steps it is taking in the course of
deliberating on the merits of the provincial election
contest. In the context of our standard of review for
the petition, we see no grave abuse of discretion
amounting to lack or excess of jurisdiction
committed by the COMELEC in its deliberation on
the Bulacan election contest and the appreciation
of ballots this deliberation entailed.
Alleged Violations of
Deliberation Stage Rights.
2. Senate Electoral Tribunal;

3. House of Representatives Electoral Tribunal;
174
jurisdiction is not specifically provided for by law or

these rules, any suitable process or proceeding
may be adopted.
4. Commission on Elections; and

5. Regional Trial Courts.
This rule is by no means unusual and unique to the

COMELEC as the courts have the benefit of this
same type of rule under Section 6, Rule 136 of the
Rules of Court. The courts' own rule provides:
Means to Carry Jurisdiction into Effect.When by law
jurisdiction is conferred o n a court or judicial
officer, all auxiliary writs, writs, processes and other
means necessary to carry it into effect may be
employed by such court or officer; and if the
procedure to be followed in the exercise of such
jurisdiction is not specifically pointed out by law or
by these rules, any suitable process or mode of
proceeding may be adopted which appears
conformable to the spirit of said law or rules.
This order of preference dictated that the ballot

boxes and other election materials in Bulacan's
provincial election contest, had to be transferred to
the SET when the latter needed these materials for
its revision of ballots. The transfer to the SET,
however, did not mean that the Bulacan provincial
election contest at that time already submitted
for decision had to be suspended as the
COMELEC held in its Orders of 29 April 2009 and
26 May 2009 in EPC No. 2007-44. 25 This is
particularly true in Bulacan's case as no revision
had to be undertaken, the revision having been
already terminated.
With the COMELEC retaining its jurisdiction over
the Bulacan provincial election contest, the legal
effect of the physical transfer of the ballots and
other election materials to the SET for purposes of
its own revision becomes a non-issue, given the
arrangement between the COMELEC and the SET,
pursuant to COMELEC Resolution No. 2812, to
"coordinate and make arrangements with each
other so as not to delay or interrupt the revision of
ballots being conducted", all for the purpose of the
expeditious disposition of their respective protest
cases. The SET itself honored this arrangement as
shown by the letter of the SET Secretary that the
COMELEC could "conduct proceedings" within the
Tribunal premises as authorized by the Acting
Chairman of the Tribunal, Justice Antonio T. Carpio.
26 This arrangement recognized the COMELEC's
effective authority over the Bulacan ballots and
other election materials, although these were
temporarily located at the SET premises. This
arrangement, too, together with the side by side
and non-conflicting existence of the COMELEC and
SET jurisdictions, negate the validity of the
petitioner's argument that the COMELEC
transgressed the rule on separation of powers
when it acted on the Bulacan provincial election
contest while the ballot boxes were at the SET
premises. Rather than negate, this arrangement
reinforced the separate but co-existing nature of
these tribunals' respective jurisdictions. EDISTc
As the petitioner argues and the COMELEC
candidly admits, "there is no specific rule which
allows the COMELEC to conduct an appreciation of
ballots outside its premises and of those which are
outside its own custody". 27 But while this is true,
there is likewise nothing to prohibit the COMELEC
from undertaking the appreciation of ballot side by
side with the SET's own revision of ballots for the
senatorial votes, in light especially of the
COMELEC's general authority to adopt means to
effect its powers and jurisdiction under its Rules of
Procedure. Section 4 of these Rules states:
Sec. 4. Means to Effect Jurisdiction. All auxiliary
writs, processes and other means necessary to
carry into effect its powers or jurisdiction may be
employed by the Commission; and if the procedure
to be followed in the exercise of such power or
Incidentally, the COMELEC authority to promulgate

the above rule enjoys constitutional moorings; in
the grant to the COMELEC of its jurisdiction, the
Constitution provided it with the accompanying
authority to promulgate its own rules concerning
pleadings and practice before it or before any of its
offices, provided that these rules shall not diminish,
increase or modify substantive rights. 28 The
Constitution additionally requires that the rules of
procedure that the COMELEC will promulgate must
expedite the disposition of election cases, including
pre-proclamation
controversies.
29
This
constitutional standard is authority, no less, that the
COMELEC can cite in defending its action. For
ultimately, the appreciation of the Bulacan ballots
that the COMELEC undertook side by side with the
SET's own revision of ballots, constitutes an
exercise of discretion made under the authority of
the above-cited COMELEC rule of procedure.
On the basis of the standards set by Section 4 of
the COMELEC Rules of Procedure, and of the
Constitution itself in the handling of election cases,
we rule that the COMELEC action is a valid
exercise of discretion as it is a suitable and
reasonable process within the exercise of its
jurisdiction over provincial election contests, aimed
at expediting the disposition of this case, and with
no adverse, prejudicial or discriminatory effects on
the parties to the contest that would render the rule
unreasonable. SHTcDE
Since the COMELEC action, taken by its Second
Division, is authorized under the COMELEC Rules
of Procedure, the Second Division cannot in any
sense be said to be intruding into the COMELEC
en banc rule-making prerogative when the Second
Division chose to undertake ballot appreciation
within the SET premises side by side with the SET
revision of ballots. To be exact, the Second Division
never laid down any new rule; it merely acted
pursuant to a rule that the COMELEC en banc itself
had previously enacted.
In light of these conclusions, we need not discuss
the other issues raised.
the petition for certiorari for lack of merit. We
175
accordingly LIFT the STATUS QUO ORDER we

issued, effective immediately.
SO ORDERED.
Carpio, Corona, Carpio Morales, Chico-Nazario,
Nachura, Leonardo-de Castro, Peralta, Bersamin,
and Abad, JJ., concur.
Puno, C.J.,Velasco, Jr. and Del Castillo, JJ., are on
official leave.
Quisumbing, J.,Acting Chief Justice from October
12 to 16, 2009 per Special Order No. 721 dated
October 5, 2009.
||| (Mendoza v. Commission on Elections, G.R. No.
188308, [October 15, 2009], 618 PHIL 706-735)
(i) Twenty-two percent (22%) at the end of the first

year following the effectivity of this Act;
(ii) Twenty percent (20%) at the end of the second
(iii) Eighteen percent (18%) at the end of the third
(iv) Sixteen percent (16%) at the end of the fourth
year following the effectivity of this Act; and
(v) Fourteen percent (14%) at the end of the fifth
year following the effectivity of this Act.
7. SURIGAO ELECTRIC VS. ERC 632 SCRA

96 (2010)
SURIGAO
DEL
NORTE
ELECTRIC
COOPERATIVE, INC. (SURNECO), petitioner, vs.
ENERGY
REGULATORY
COMMISSION,
respondent.
Provided, that the ERB is hereby authorized to

determine at the end of the fifth year following the
effectivity of this Act, and as often as is necessary,
taking into account the viability of rural electric
cooperatives and the interest of consumers,
whether the caps herein or theretofore established
shall be reduced further which shall, in no case, be
lower than nine percent (9%) and accordingly fix
the date of the effectivity of the new caps.
DECISION
xxx xxx xxx
NACHURA, ** J p:
Sec. 14. Rules and Regulations. The ERB shall,

within thirty (30) working days after the conduct of
hearings which must commence within thirty (30)
working days upon the effectivity of this Act, issue
the rules and regulation as may be necessary to
ensure the efficient and effective implementation of
the provisions of this Act, to include but not limited
to, the development of methodologies for
computing the amount of electricity illegally used
and the amount of payment or deposit
contemplated in Section 7 hereof as a result of the
presence of the prima facie evidence discovered.
SECOND DIVISION
[G.R. No. 183626. October 4, 2010.]
Assailed in this petition for review on certiorari 1

under Rule 45 of the Rules of Court are the
Decision dated April 17, 2008 2 and the Resolution
dated June 25, 2008 3 of the Court of Appeals (CA)
in CA-G.R. SP No. 99781.
The antecedent facts and proceedings follow
Petitioner Surigao del Norte Electric Cooperative,
Inc. (SURNECO) is a rural electric cooperative
organized and existing by virtue of Presidential
Decree No. 269.
On February 8, 1996, the Association of Mindanao
Rural Electric Cooperatives, as representative of
SURNECO and of the other 33 rural electric
cooperatives in Mindanao, filed a petition before the
then Energy Regulatory Board (ERB) for the
approval of the formula for automatic cost
adjustment and adoption of the National Power
Corporation (NPC) restructured rate adjustment to
comply with Republic Act (R.A.) No. 7832. 4 The
case was docketed as ERB Case No. 96-49, and
later consolidated with identical petitions of other
associations of electric cooperatives in the
Philippines.
The relevant provisions of R.A. No. 7832 for
compliance are Sections 10 and 14, which provide
Sec. 10. Rationalization of System Losses by

Phasing Out Pilferage Losses as a Component
Thereof. There is hereby established a cap on
the recoverable rate of system losses as follows:
SCADIT
Corollary thereto, Sections 4 and 5 of Rule IX of the

Implementing Rules and Regulations (IRR) of R.A.
No. 7832 provide
Section 4. Caps on System Loss allowed to Rural
Electric Cooperatives. The maximum rate of
system loss that the cooperative can pass on to its
customers shall be as follows:
a. Twenty-two percent (22%) effective on February
1996 billing. EcHIDT
b. Twenty percent (20%) effective on February
1997 billing.
c. Eighteen percent (18%) effective on February
1998 billing.
d. Sixteen percent (16%) effective on February
1999 billing.
e. Fourteen percent (14%) effective on February
2000 billing.
xxx xxx xxx

(b) For rural electric cooperatives:
176
Section 5. Automatic Cost Adjustment Formula.

Each and every cooperative shall file with the ERB,
on or before September 30, 1995, an application for
approval of an amended Purchased Power
Adjustment Clause that would reflect the new
system loss cap to be included in its schedule of
rates.
To attain uniformity in the implementation of the

PPA formula, the Commission has resolved that:
1. In the confirmation of past PPAs, the power cost
shall still be based on "gross," and
2. In the confirmation of future PPAs, the power
cost shall be based on "net."
The automatic cost adjustment of every electric

cooperative shall be guided by the following
formula:
The electric cooperatives filed their respective

motions for clarification and/or reconsideration.
Hence, the ERC issued an Order 7 dated January
14, 2005, stating that the PPA was a cost-recovery
mechanism, not a revenue-generating scheme, so
that the distribution utilities or the electric
cooperatives must recover from their customers
only the actual cost of purchased power. The ERC
thus adopted a new PPA policy, to wit
A. The computation and confirmation of the PPA
prior to the Commission's Order dated June 17,
2003 shall be based on the approved PPA Formula;
Purchased Power Adjustment Clause

A
(PPA) =E
B - (C + D)
Where:
A = Cost of electricity purchased and generated for
the previous month
B = Total Kwh purchased and generated for the
previous month
B. The computation and confirmation of the PPA

after the Commission's Order dated June 17, 2003
shall be based on the power cost "net" of discount;
and
C = The actual system loss but not to exceed the

maximum recoverable rate of system loss in Kwh
plus actual company use in kwhrs but not to exceed
1% of total kwhrs purchased and generated
C. If the approved PPA Formula is silent on the

terms of discount, the computation and
confirmation of the PPA shall be based on the
power cost at "gross," subject to the submission of
proofs that said discounts are being extended to
the end-users. 8
D = kwh consumed by subsidized consumers

E = Applicable base cost of power equal to the
amount incorporated into their basic rate per kwh.
Thereafter, the ERC continued its review,

verification, and confirmation of the electric
cooperatives' implementation of the PPA formula
based on the available data and information
submitted by the latter.
On March 19, 2007, the ERC issued its assailed
Order, 9 mandating that the discounts earned by
SURNECO from its power supplier should be
deducted from the computation of the power cost,
disposing in this wise
WHEREFORE, the foregoing premises considered,
the Commission hereby confirms the Purchased
Power Adjustment (PPA) of Surigao del Norte
Electric Cooperative, Inc. (SURNECO) for the
period February 1996 to July 2004 which resulted
to an over-recovery amounting to EIGHTEEN
MILLION ONE HUNDRED EIGHTY EIGHT
THOUSAND SEVEN HUNDRED NINETY FOUR
PESOS
(PhP18,188,794.00)
equivalent
to
PhP0.0500/kwh. In this connection, SURNECO is
hereby directed to refund the amount of
PhP0.0500/kwh to its Main Island consumers
starting the next billing cycle from receipt of this
Order until such time that the full amount shall have
been refunded. AIaSTE
In an Order 5 dated February 19, 1997, the ERB

granted SURNECO and other rural electric
cooperatives provisional authority to use and
implement the Purchased Power Adjustment (PPA)
formula pursuant to the mandatory provisions of
R.A. No. 7832 and its IRR, with a directive to
submit relevant and pertinent documents for the
Board's review, verification, and confirmation.
In the meantime, the passage of R.A. No. 9136 6
led to the creation of the Energy Regulatory
Commission (ERC), replacing and succeeding the
ERB. All pending cases before the ERB were
transferred to the ERC. ERB Case No. 96-49 was
re-docketed as ERC Case No. 2001-343. SDHTEC
In the Order dated June 17, 2003, the ERC clarified
ERB's earlier policy regarding the PPA formula to
be used by the electric cooperatives, viz.
After a careful evaluation of the records, the
Commission noted that the PPA formula which was
approved by the ERB was silent on whether the
calculation of the cost of electricity purchased and
generated in the formula should be "gross" or "net"
of the discounts.
Let it be noted that the power cost is said to be at
"gross" if the discounts are not passed-on to the
end-users whereas it is said to be at "net" if the
said discounts are passed-on to the end-users.
The Commission likewise confirms the PPA of

SURNECO for its Hikdop Island consumers for the
period February 1996 to July 2004 which resulted
to an under-recovery amounting to TWO MILLION
FOUR HUNDRED SEVENTY EIGHT THOUSAND
177
FORTY
FIVE
PESOS
(PhP2,478,045.00).
SURNECO is hereby authorized to collect from its
Hikdop Island consumers the amount of
PhP0.0100/kwh starting the next billing cycle from
receipt of this Order until such time that the full
amount shall have been collected.
item in their consumer's bill. Thus, the cooperatives

charged their consumer-members "System Loss
Levy" for system losses in excess of the 15% cap.
SURNECO states that, in January 1984, it was
authorized by the NEA that all increases in the NPC
power cost (in case of NPC-connected
cooperatives) shall be uniformly passed on to the
member-consumers using the 1.4 multiplier, which
is divided into 1.3 as allowance for 23% system
loss and 0.1 as provision for the corresponding
increase in operating expenses to partly offset the
effects of inflation. 14 Subsequently, the NEA,
through NEA Memorandum No. 1-A dated March
30, 1992, revised the aforesaid issuance as follows
Pursuant to NEA Board Resolution No. 98, Series

of 1991, . . ., the revised cooperatives' multiplier will
be as follows:
Accordingly, SURNECO is directed to:

a) Reflect the PPA refund/collection as a separate
item in the bill using the phrase "Previous Years'
Adjustment on Power Cost";
b) Submit, within ten (10) days from its initial
implementation of the refund/collection, a sworn
statement indicating its compliance with the
aforecited directive; and
c) Accomplish and submit a report in accordance
with the attached prescribed format, on or before
the 30th day of January of the succeeding year and
every year thereafter until the amount shall have
been fully refunded/collected.
1.2
Rural Electric Cooperatives (RECs) with
system loss of 15% and below;
1.3 RECs with system loss ranging from 16% to
22%;
SO ORDERED. 10
1.4 RECs with system loss of 23% and above.
SURNECO filed a motion for reconsideration, but it
was denied by the ERC in its Order 11 dated May
29, 2007 on the ground that the motion did not
raise any new matter which was not already passed
upon by the ERC.
Aggrieved, SURNECO went to the CA via a petition
for review, 12 with prayer for the issuance of a
temporary restraining order and preliminary
injunction, seeking the annulment of the ERC
Orders dated March 19, 2007 and May 29, 2007.
In its Decision dated April 17, 2008, the CA denied
SURNECO's petition and affirmed the assailed
Orders of the ERC.
On June 25, 2008, upon motion for reconsideration
13 of SURNECO, the CA issued its Resolution
denying the same.
Hence, this petition, with SURNECO ascribing error
to the CA and the ERC in: (1) disallowing its use of
the multiplier scheme to compute its system's loss;
(2) ordering it to deduct from the power cost or
refund to its consumers the discounts extended to it
by its power supplier, NPC; and (3) ordering it to
refund alleged over-recoveries arrived at by the
ERC without giving SURNECO the opportunity to
be heard. cCAaHD
The petition should be denied.
First. SURNECO points out that the National
Electrification Administration (NEA), which used to
be the government authority charged by law with
the power to fix rates of rural electric cooperatives,
entered into a loan agreement with the Asian
Development Bank (ADB). The proceeds of the
loan were intended for use by qualified rural electric
cooperatives, SURNECO included, in their
rehabilitation and expansion projects. The loan
agreement imposed a 15% system loss cap, but
provided a Power Cost Adjustment Clause
authorizing cooperatives to charge and show
"system losses in excess of 15%" as a separate
SURNECO posits that, per NEA Memorandum No.

1-A, the NEA had authorized it to adopt a multiplier
scheme as the method to recover system loss. It
claims that this cannot be abrogated, revoked, or
superseded by any order, resolution, or issuance by
the ERC prescribing a certain formula to implement
the caps of recoverable rate of system loss under
R.A. No. 7832 without violating the non-impairment
clause 15 of the Constitution.
We disagree. SURNECO cannot insist on using the
multiplier scheme even after the imposition of the
system loss caps under Section 10 of R.A. No.
7832. The law took effect on January 17, 1995.
Perusing Section 10, and also Section 11, 16
providing for the application of the caps as of the
date of the effectivity of R.A. No. 7832, readily
shows that the imposition of the caps was selfexecutory and did not require the issuance of any
enabling set of rules or any action by the then ERB,
now ERC. Thus, the caps should have been
applied as of January 17, 1995 when R.A. No. 7832
took effect. aAIcEH
Indeed, under NEA Memorandum No. 1-A, the use
of the multiplier scheme allows the recovery of
system losses even beyond the caps mandated in
R.A. No. 7832, which is intended to gradually
phase out pilferage losses as a component of the
recoverable system losses by the distributing
utilities such as SURNECO. However, it is totally
repugnant to and incompatible with the system loss
caps established in R.A. No. 7832, and is repealed
by Section 16 17 of the law. As between NEA
Memorandum No. 1-A, a mere administrative
issuance, and R.A. No. 7832, a legislative
enactment, the latter must prevail. 18
Second. The ERC was merely implementing the
system loss caps in R.A. No. 7832 when it
reviewed and confirmed SURNECO'S PPA
178
charges, and ordered the refund of the amount

collected in excess of the allowable system loss
caps through its continued use of the multiplier
scheme. As the ERC held in its March 19, 2007
Order
On January 14, 2005, the Commission issued an
Order adopting a new PPA policy as follows: (a) the
computation and confirmation of the PPA prior to
the Commission's Order dated June 17, 2003 shall
be based on the approved PPA Formula; (b) the
computation and confirmation of the PPA after the
Commission's Order dated June 17, 2003 shall be
based on the power cost "net" of discount; and (c) if
the approved PPA Formula is silent in terms of
discount, the computation and confirmation of the
PPA shall be based on the power cost at "gross"
reduced by the amount of discounts extended to
customers, subject to the submission of proofs that
said discounts are indeed being extended to
customers.
b. On actual PPA computed at gross:

b.1. If a DU bills at gross (i.e., gross power cost not
reduced by discounts from power supplier/s) and
the DU is extending discounts to end-users, the
actual revenue shall be calculated as: gross power
revenue less discounts extended to end-users. The
result shall then be compared to the allowable
power cost; and
b.2. If a DU bills at gross (i.e., gross power cost not
reduced by discounts from power supplier/s) and
the DU is not extending discounts to end-users, the
actual revenue shall be taken as is which shall be
compared to the allowable power cost.
IV. In the calculation of the DU's actual revenues,
the amount of discounts extended to end-users
shall, in no case, be higher than the discounts
availed by the DU from its power supplier/s.
SCEDAI
However, the Commission deemed it appropriate to

clarify its PPA confirmation process particularly on
the treatment of the Prompt Payment Discount
(PPD) granted to distribution utilities (DUs) by their
power suppliers, to wit:
The foregoing clarification was intended to ensure

that only the actual costs of purchased power are
recovered by the DUs.
I. The over-or-under recovery will be determined

by comparing the allowable power cost with the
actual revenue billed to end-users.
In the meantime, SURNECO submitted reports on

its monthly implementation of the PPA covering the
period January 1998 to July 2004 and attended the
conferences conducted by the Commission on
December 11, 2003 and May 4, 2005 relative
thereto.
II. Calculation of the DU's allowable power cost as

prescribed in the PPA formula:
a. If the PPA formula explicitly provides the manner
by which discounts availed from the power
supplier/s shall be treated, the allowable power cost
will be computed based on the specific provision of
the formula, which may either be at "net" or "gross";
and
The Commission evaluated SURNECO's monthly

PPA implementation covering the period February
1996 to July 2004, which disclosed the following:
Schedule 1, Main Island
Period Covered
Over
Over
b. If the PPA formula is silent in terms of discounts,

the allowable power cost will be computed at "net"
of discounts availed from the power supplier/s, if
there be any. SIaHDA
(Under)
(Under)
III. Calculation of DU's actual revenues/actual

amount billed to end-users.
Recoveries
Recoveries
a. On actual PPA computed at net of discounts

availed from power supplier/s:
(In PhP)
(In kWh)
February 1996 to
December 1998
20,737,074
0.2077
January 1999 to
a.1. If a DU bills at net of discounts availed from

the power supplier/s (i.e., gross power cost minus
discounts from power supplier/s) and the DU is not
extending discounts to end-users, the actual
revenue should be equal to the allowable power
cost; and
July 2004
(2,548,280)
(0.0097)
a.2. If a DU bills at net of discounts availed from

the power supplier/s (i.e., gross power cost minus
discounts from power supplier/s) and the DU is
extending discounts to end-users, the discount
extended to end-users shall be added back to the
actual revenue.
TOTAL
179
18,188,794
0.0500
mechanism and not a revenue-generating scheme

for the electric cooperatives, the ERC merely
exercised its authority to regulate and approve the
rates imposed by the electric cooperatives on their
consumers. The ERC simply performed its
mandate to protect the public interest imbued in
those rates.
It is beyond cavil that the State, in the exercise of
police power, can regulate the rates imposed by a
public utility such as SURNECO. As we held in
Republic of the Philippines v. Manila Electric
Company 20
The regulation of rates to be charged by public
utilities is founded upon the police powers of the
State and statutes prescribing rules for the control
and regulation of public utilities are a valid exercise
thereof. When private property is used for a public
purpose and is affected with public interest, it
ceases to be juris privati only and becomes subject
to regulation. The regulation is to promote the
common good. Submission to regulation may be
withdrawn by the owner by discontinuing use; but
as long as use of the property is continued, the
same is subject to public regulation.
Schedule 2, Municipality of Hikdop

February 1996 to
December 1998
PPA Plus Basic
Cha[r]ge
70,235
0.3190
January 1999 to
July 2004
(2,548,280)
(0.0097)
TOTAL
(2,478,045)
(0.0100)
The over-recoveries were due to the following:
Likewise, SURNECO cannot validly assert that the

caps set by R.A. No. 7832 are arbitrary, or that they
violate the non-impairment clause of the
Constitution for allegedly traversing the loan
agreement between NEA and ADB. Striking down a
legislative enactment, or any of its provisions, can
be done only by way of a direct action, not through
a collateral attack, and more so, not for the first
time on appeal in order to avoid compliance. The
challenge to the law's constitutionality should also
be raised at the earliest opportunity. 21
Even assuming, merely for argument's sake, that
the ERC issuances violated the NEA and ADB
covenant, the contract had to yield to the greater
authority of the State's exercise of police power. It
has long been settled that police power legislation,
adopted by the State to promote the health, morals,
peace, education, good order, safety, and general
welfare of the people prevail not only over future
contracts but even over those already in existence,
for all private contracts must yield to the superior
and legitimate measures taken by the State to
promote public welfare. 22 HSAcaE
SURNECO also avers that the Electric Power
Industry Reform Act of 2001 (EPIRA)removed the
alleged arbitrary caps in R.A. No. 7832. We differ.
The EPIRA allows the caps to remain until replaced
by the caps to be determined by the ERC, pursuant
to its delegated authority under Section 43 23 of
R.A. No. 9136 to prescribe new system loss caps,
based on technical parameters such as load
density, sales mix, cost of service, delivery voltage,
and other technical considerations it may
promulgate.
Third. We also disagree with SURNECO in its
insistence that the PPA confirmation policies
constituted an amendment to the IRR of R.A. No.
7832 and must, therefore, comply with the
publication requirement for the effectivity of
administrative issuances.
1. For the period February 1996 to December 1998,

SURNECO's PPA computation included the power
cost and the corresponding kWh purchased from
Hikdop end-users. The Commission excluded those
months which SURNECO did not impose variable
charges to Hikdop end-user which resulted to a
total net over-recovery of PhP21,245,034.00; and
2. SURNECO's basic charge for Hikdop end-users
were beyond the approved basic charge for the
period February 1996 to September 1998 resulting
to a net over-recovery of PhP128,489.00. HCDAac
SURNECO's under recoveries for the period
January 1999 to June 2004 were due to the
following:
1. For the period August 2001 to June 2004,
SURNECO erroneously deducted the Power Act
Reduction Adjustments (PARA) in the total
purchased power cost of its PPA computation
resulting to an under-recovery of PhP1,377,763.00;
2. SURNECO's power cost and kWh computation
includes Dummy Load resulting to an under
recovery amounting to PhP226,196.00; and
3. The new grossed-up factor scheme adopted by
the Commission which provided a true-up
mechanism to allow the DUs to recover the actual
costs of purchased power. 19
In directing SURNECO to refund its over-recoveries
based on PPA policies, which only ensured that the
PPA mechanism remains a purely cost-recovery
180
The PPA formula provided in the IRR of R.A. No.

7832 was only a model to be used as a guide by
the electric cooperatives in proposing their own
PPA formula for approval by the then ERB.
Sections 4 and 5, Rule IX of the IRR directed the
electric cooperatives to apply for approval of such
formula with the ERB so that the system loss caps
under the law would be incorporated in their
computation of power cost adjustments. The IRR
did not provide for a specific formula; therefore,
there was nothing in the IRR that was amended or
could have been amended relative to the PPA
formula. The IRR left to the ERB, now the ERC, the
authority
to
approve
and
oversee
the
implementation of the electric cooperatives' PPA
formula in the exercise of its rate-making power
over them.
We likewise differ from SURNECO's stance that it
was denied due process when the ERC issued its
questioned Orders. Administrative due process
simply requires an opportunity to explain one's side
or to seek reconsideration of the action or ruling
complained of. 24 It means being given the
opportunity to be heard before judgment, and for
this purpose, a formal trial-type hearing is not even
essential. It is enough that the parties are given a
fair and reasonable chance to demonstrate their
respective positions and to present evidence in
support thereof. 25
Verily, the PPA confirmation necessitated a review
of the electric cooperatives' monthly documentary
submissions to substantiate their PPA charges. The
cooperatives were duly informed of the need for
other required supporting documents and were
allowed to submit them accordingly. In fact,
hearings were conducted. Moreover, the ERC
conducted exit conferences with the electric
cooperatives' representatives, SURNECO included,
to discuss preliminary figures and to double-check
these figures for inaccuracies, if there were any. In
addition, after the issuance of the ERC Orders, the
electric cooperatives were allowed to file their
respective motions for reconsideration. It cannot be
gainsaid, therefore, that SURNECO was not denied
due process.
Finally, the core of the issues raised is factual in
character. It needs only to be reiterated that factual
findings of administrative bodies on technical
matters within their area of expertise should be
accorded not only respect but even finality if they
are supported by substantial evidence even if not
overwhelming or preponderant, 26 more so if
affirmed by the CA. Absent any grave abuse of
discretion on the part of ERC, we must sustain its
findings. Hence, its assailed Orders, following the
rule of non-interference on matters addressed to
the sound discretion of government agencies
entrusted with the regulation of activities coming
their special technical knowledge and training, must
be upheld. 27 EIDTAa
Decision dated April 17, 2008 and the Resolution
dated June 25, 2008 of the Court of Appeals in CAG.R. SP No. 99781 are AFFIRMED. Costs against
petitioner.
SO ORDERED.
Velasco, Jr., * Peralta, Mendoza and Sereno, ***
JJ., concur.
||| (Surigao del Norte Electric Cooperative, Inc. v.
Energy Regulatory Commission, G.R. No. 183626,
[October 4, 2010], 646 PHIL 402-421)
8. HERITAGE HOTEL VS. NUNHRAIN 639
SCRA 420 (2011)
SECOND DIVISION
[G.R. No. 178296. January 12, 2011.]
THE HERITAGE HOTEL MANILA, acting through
its
owner,
GRAND
PLAZA
HOTEL
CORPORATION, petitioner, vs. NATIONAL UNION
OF WORKERS IN THE HOTEL, RESTAURANT
AND ALLIED INDUSTRIES-HERITAGE HOTEL
MANILA SUPERVISORS CHAPTER (NUWHRAINHHMSC), respondent.
DECISION
NACHURA, J p:
Before the Court is a petition for review on certiorari
of the Decision 1 of the Court of Appeals (CA)
dated May 30, 2005 and Resolution dated June 4,
2007. The assailed Decision affirmed the dismissal
of a petition for cancellation of union registration
filed by petitioner, Grand Plaza Hotel Corporation,
owner of Heritage Hotel Manila, against
respondent, National Union of Workers in the Hotel,
Restaurant and Allied Industries-Heritage Hotel
Manila
Supervisors
Chapter
(NUWHRAINHHMSC), a labor organization of the supervisory
employees of Heritage Hotel Manila.
The case stemmed from the following antecedents:
On October 11, 1995, respondent filed with the
Department of Labor and Employment-National
Capital Region (DOLE-NCR) a petition for
certification election. 2 The Med-Arbiter granted the
petition on February 14, 1996 and ordered the
holding of a certification election. 3 On appeal, the
DOLE Secretary, in a Resolution dated August 15,
1996, affirmed the Med-Arbiter's order and
remanded the case to the Med-Arbiter for the
holding of a preelection conference on February 26,
1997. Petitioner filed a motion for reconsideration,
but it was denied on September 23, 1996.
The preelection conference was not held as initially
scheduled; it was held a year later, or on February
20, 1998. Petitioner moved to archive or to dismiss
the petition due to alleged repeated nonappearance of respondent. The latter agreed to
suspend proceedings until further notice. The
preelection conference resumed on January 29,
2000.
Subsequently,
petitioner
discovered
that
respondent had failed to submit to the Bureau of
Labor Relations (BLR) its annual financial report for
several years and the list of its members since it
filed its registration papers in 1995. Consequently,
on May 19, 2000, petitioner filed a Petition for
181
Cancellation of Registration of respondent, on the

ground of the non-submission of the said
documents. Petitioner prayed that respondent's
Certificate of Creation of Local/Chapter be
cancelled and its name be deleted from the list of
legitimate labor organizations. It further requested
the suspension of the certification election
proceedings. 4 ECTIcS
On June 1, 2000, petitioner reiterated its request by
filing a Motion to Dismiss or Suspend the
[Certification Election] Proceedings, 5 arguing that
the dismissal or suspension of the proceedings is
warranted, considering that the legitimacy of
respondent is seriously being challenged in the
petition for cancellation of registration. Petitioner
maintained that the resolution of the issue of
whether respondent is a legitimate labor
organization is crucial to the issue of whether it may
exercise rights of a legitimate labor organization,
which include the right to be certified as the
bargaining agent of the covered employees.
Nevertheless, the certification election pushed
through on June 23, 2000. Respondent emerged as
the winner. 6
On June 28, 2000, petitioner filed a Protest with
Motion to Defer Certification of Election Results and
Winner, 7 stating that the certification election held
on June 23, 2000 was an exercise in futility
because, once respondent's registration is
cancelled, it would no longer be entitled to be
certified as the exclusive bargaining agent of the
supervisory employees. Petitioner also claimed that
some of respondent's members were not qualified
to join the union because they were either
confidential employees or managerial employees. It
then prayed that the certification of the election
results and winner be deferred until the petition for
cancellation shall have been resolved, and that
respondent's members who held confidential or
managerial positions be excluded from the
supervisors' bargaining unit.
Meanwhile, respondent filed its Answer 8 to the
petition for the cancellation of its registration. It
averred that the petition was filed primarily to delay
the conduct of the certification election, the
respondent's certification as the exclusive
bargaining representative of the supervisory
employees, and the commencement of bargaining
negotiations. Respondent prayed for the dismissal
of the petition for the following reasons: (a)
petitioner
is
estopped
from
questioning
respondent's status as a legitimate labor
organization as it had already recognized
respondent as such during the preelection
conferences; (b) petitioner is not the party-ininterest, as the union members are the ones who
would be disadvantaged by the non-submission of
financial reports; (c) it has already complied with
the reportorial requirements, having submitted its
financial statements for 1996, 1997, 1998, and
1999, its updated list of officers, and its list of
members for the years 1995, 1996, 1997, 1998,
and 1999; (d) the petition is already moot and
academic, considering that the certification election
had already been held, and the members had
manifested their will to be represented by

respondent.
Citing National Union of Bank Employees v.
Minister of Labor, et al. 9 and Samahan ng
Manggagawa sa Pacific Plastic v. Hon. Laguesma,
10 the Med-Arbiter held that the pendency of a
petition for cancellation of registration is not a bar to
the holding of a certification election. Thus, in an
Order 11 dated January 26, 2001, the Med-Arbiter
dismissed petitioner's protest, and certified
respondent as the sole and exclusive bargaining
agent of all supervisory employees. aHIDAE
Petitioner subsequently appealed the said Order to
the DOLE Secretary. 12 The appeal was later
dismissed by DOLE Secretary Patricia A. Sto.
Tomas (DOLE Secretary Sto. Tomas) in the
Resolution of August 21, 2002. 13 Petitioner moved
for reconsideration, but the motion was also denied.
14
In the meantime, Regional Director Alex E. Maraan
(Regional Director Maraan) of DOLE-NCR finally
resolved the petition for cancellation of registration.
While finding that respondent had indeed failed to
file financial reports and the list of its members for
several years, he, nonetheless, denied the petition,
ratiocinating that freedom of association and the
employees' right to self-organization are more
substantive considerations. He took into account
the fact that respondent won the certification
election and that it had already been certified as the
exclusive bargaining agent of the supervisory
employees. In view of the foregoing, Regional
Director Maraan while emphasizing that the noncompliance with the law is not viewed with favor
considered the belated submission of the annual
financial reports and the list of members as
sufficient compliance thereof and considered them
as having been submitted on time. The dispositive
portion of the decision 15 dated December 29,
2001 reads:
WHEREFORE, premises considered, the instant
petition to delist the National Union of Workers in
the Hotel, Restaurant and Allied Industries-Heritage
Hotel Manila Supervisors Chapter from the roll of
legitimate labor organizations is hereby DENIED.
SO ORDERED. 16
Aggrieved, petitioner appealed the decision to the
BLR. 17 BLR Director Hans Leo Cacdac inhibited
himself from the case because he had been a
former counsel of respondent.
In view of Director Cacdac's inhibition, DOLE
Secretary Sto. Tomas took cognizance of the
appeal. In a resolution 18 dated February 21, 2003,
she dismissed the appeal, holding that the
constitutionally guaranteed freedom of association
and right of workers to self-organization outweighed
respondent's noncompliance with the statutory
requirements to maintain its status as a legitimate
labor organization.
Petitioner filed a motion for reconsideration, 19 but
the motion was likewise denied in a resolution 20
dated May 30, 2003. DOLE Secretary Sto. Tomas
admitted that it was the BLR which had jurisdiction
182
over the appeal, but she pointed out that the BLR
Director had voluntarily inhibited himself from the
case because he used to appear as counsel for
respondent. In order to maintain the integrity of the
decision and of the BLR, she therefore accepted
the motion to inhibit and took cognizance of the
appeal.
Petitioner filed a petition for certiorari with the CA,
raising the issue of whether the DOLE Secretary
acted with grave abuse of discretion in taking
cognizance of the appeal and affirming the
dismissal of its petition for cancellation of
respondent's registration. SCaIcA
In a Decision dated May 30, 2005, the CA denied
the petition. The CA opined that the DOLE
Secretary may legally assume jurisdiction over an
appeal from the decision of the Regional Director in
the event that the Director of the BLR inhibits
himself from the case. According to the CA, in the
absence of the BLR Director, there is no person
more competent to resolve the appeal than the
DOLE Secretary. The CA brushed aside the
allegation of bias and partiality on the part of the
DOLE Secretary, considering that such allegation
was not supported by any evidence.
The CA also found that the DOLE Secretary did not
commit grave abuse of discretion when she
affirmed the dismissal of the petition for
cancellation of respondent's registration as a labor
organization. Echoing the DOLE Secretary, the CA
held that the requirements of registration of labor
organizations are an exercise of the overriding
police power of the State, designed for the
protection of workers against potential abuse by the
union that recruits them. These requirements, the
CA opined, should not be exploited to work against
the workers' constitutionally protected right to selforganization.
Petitioner filed a motion for reconsideration,
invoking this Court's ruling in Abbott Labs. Phils.,
Inc. v. Abbott Labs. Employees Union, 21 which
categorically declared that the DOLE Secretary has
no authority to review the decision of the Regional
Director in a petition for cancellation of union
registration, and Section 4, 22 Rule VIII, Book V of
the Omnibus Rules Implementing the Labor Code.
In its Resolution 23 dated June 4, 2007, the CA
denied petitioner's motion, stating that the BLR
Director's inhibition from the case was a peculiarity
not present in the Abbott case, and that such
inhibition justified the assumption of jurisdiction by
the DOLE Secretary.
In this petition, petitioner argues that:
The Court of Appeals seriously erred in ruling that
the Labor Secretary properly assumed jurisdiction
over Petitioner's appeal of the Regional Director's
Decision in the Cancellation Petition . . . .
B. The unilateral inhibition by the BLR Director

cannot justify the Labor Secretary's exercise of
jurisdiction over the Appeal.
C. The Labor Secretary's assumption of jurisdiction
over the Appeal without notice violated Petitioner's
right to due process.
II.
The Court of Appeals gravely erred in affirming the
dismissal of the Cancellation Petition despite the
mandatory and unequivocal provisions of the Labor
Code and its Implementing Rules. 24 cCAIaD
The petition has no merit.
Jurisdiction to review the decision of the Regional
Director lies with the BLR. This is clearly provided
in the Implementing Rules of the Labor Code and
enunciated by the Court in Abbott. But as pointed
out by the CA, the present case involves a peculiar
circumstance that was not present or covered by
the ruling in Abbott. In this case, the BLR Director
inhibited himself from the case because he was a
former counsel of respondent. Who, then, shall
resolve the case in his place?
In Abbott, the appeal from the Regional Director's
decision was directly filed with the Office of the
DOLE Secretary, and we ruled that the latter has no
appellate jurisdiction. In the instant case, the
appeal was filed by petitioner with the BLR, which,
undisputedly, acquired jurisdiction over the case.
Once jurisdiction is acquired by the court, it remains
with it until the full termination of the case. 25
Thus, jurisdiction remained with the BLR despite
the BLR Director's inhibition. When the DOLE
Secretary resolved the appeal, she merely stepped
into the shoes of the BLR Director and performed a
function that the latter could not himself perform.
She did so pursuant to her power of supervision
and control over the BLR. 26
Expounding on the extent of the power of control,
the Court, in Araneta, et al. v. Hon. M. Gatmaitan,
et al., 27 pronounced that, if a certain power or
authority is vested by law upon the Department
Secretary, then such power or authority may be
exercised directly by the President, who exercises
supervision and control over the departments. This
principle was incorporated in the Administrative
Code of 1987, which defines "supervision and
control" as including the authority to act directly
whenever a specific function is entrusted by law or
regulation to a subordinate. 28 Applying the
foregoing to the present case, it is clear that the
DOLE Secretary, as the person exercising the
power of supervision and control over the BLR, has
the authority to directly exercise the quasi-judicial
function entrusted by law to the BLR Director.
It is true that the power of control and supervision
does not give the Department Secretary unbridled
authority to take over the functions of his or her
subordinate. Such authority is subject to certain
guidelines which are stated in Book IV, Chapter 8,
Section 39 (1) (a) of the Administrative Code of
1987. 29 However, in the present case, the DOLE
A. Jurisdiction is conferred only by law. The Labor

Secretary had no jurisdiction to review the decision
of the Regional Director in a petition for
cancellation. Such jurisdiction is conferred by law to
the BLR.
183
Secretary's act of taking over the function of the

BLR Director was warranted and necessitated by
the latter's inhibition from the case and the
objective to "maintain the integrity of the decision,
as well as the Bureau itself." 30
Petitioner insists that the BLR Director's
subordinates should have resolved the appeal,
citing the provision under the Administrative Code
of 1987 which states, "in case of the absence or
disability of the head of a bureau or office, his
duties shall be performed by the assistant head."
31 The provision clearly does not apply considering
that the BLR Director was neither absent nor
suffering from any disability; he remained as head
of the BLR. Thus, to dispel any suspicion of bias,
the DOLE Secretary opted to resolve the appeal
herself.
Petitioner was not denied the right to due process
when it was not notified in advance of the BLR
Director's inhibition and the DOLE Secretary's
assumption of the case. Well-settled is the rule that
the essence of due process is simply an
opportunity to be heard, or, as applied to
of. 32 Petitioner had the opportunity to question the
BLR Director's inhibition and the DOLE Secretary's
taking cognizance of the case when it filed a motion
for reconsideration of the latter's decision. It would
be well to state that a critical component of due
process is a hearing before an impartial and
disinterested tribunal, for all the elements of due
process, like notice and hearing, would be
meaningless if the ultimate decision would come
from a partial and biased judge. 33 It was precisely
to ensure a fair trial that moved the BLR Director to
inhibit himself from the case and the DOLE
Secretary to take over his function.
Petitioner also insists that respondent's registration
as a legitimate labor union should be cancelled.
Petitioner posits that once it is determined that a
ground enumerated in Article 239 of the Labor
Code is present, cancellation of registration should
follow; it becomes the ministerial duty of the
Regional Director to cancel the registration of the
labor organization, hence, the use of the word
"shall." Petitioner points out that the Regional
Director has admitted in its decision that
respondent failed to submit the required documents
for a number of years; therefore, cancellation of its
registration should have followed as a matter of
course. ECcaDT
We are not persuaded.
Articles 238 and 239 of the Labor Code read:
ART. 238. CANCELLATION OF REGISTRATION;
APPEAL
ART. 239. GROUNDS FOR CANCELLATION OF

UNION REGISTRATION
The following shall constitute
cancellation of union registration:
grounds
for
xxx xxx xxx

(d) Failure to submit the annual financial report to
the Bureau within thirty (30) days after the closing
of every fiscal year and misrepresentation, false
entries or fraud in the preparation of the financial
report itself;
xxx xxx xxx
(i) Failure to submit list of individual members to the
Bureau once a year or whenever required by the
Bureau. 35
These provisions give the Regional Director ample
discretion in dealing with a petition for cancellation
of a union's registration, particularly, determining
whether the union still meets the requirements
prescribed by law. It is sufficient to give the
Regional Director license to treat the late filing of
required documents as sufficient compliance with
the requirements of the law. After all, the law
requires the labor organization to submit the annual
financial report and list of members in order to
verify if it is still viable and financially sustainable as
an organization so as to protect the employer and
employees from fraudulent or fly-by-night unions.
With the submission of the required documents by
respondent, the purpose of the law has been
achieved, though belatedly.
We cannot ascribe abuse of discretion to the
Regional Director and the DOLE Secretary in
denying the petition for cancellation of respondent's
registration. The union members and, in fact, all the
employees belonging to the appropriate bargaining
unit should not be deprived of a bargaining agent,
merely because of the negligence of the union
officers who were responsible for the submission of
the documents to the BLR. THCASc
Labor authorities should, indeed, act with
circumspection in treating petitions for cancellation
of union registration, lest they be accused of
interfering with union activities. In resolving the
petition, consideration must be taken of the
fundamental rights guaranteed by Article XIII,
Section 3 of the Constitution, i.e., the rights of all
workers to self-organization, collective bargaining
and negotiations, and peaceful concerted activities.
Labor authorities should bear in mind that
registration confers upon a union the status of
legitimacy and the concomitant right and privileges
granted by law to a legitimate labor organization,
particularly the right to participate in or ask for
certification election in a bargaining unit. 36 Thus,
the cancellation of a certificate of registration is the
equivalent of snuffing out the life of a labor
organization. For without such registration, it loses
as a rule its rights under the Labor Code. 37
The certificate of registration of any legitimate labor

organization, whether national or local, shall be
canceled by the Bureau if it has reason to believe,
after due hearing, that the said labor organization
no longer meets one or more of the requirements
herein prescribed. 34
184
It is worth mentioning that the Labor Code's

provisions on cancellation of union registration and
on reportorial requirements have been recently
amended by Republic Act (R.A.) No. 9481, An Act
Strengthening the Workers' Constitutional Right to
Self-Organization, Amending for the Purpose
Presidential Decree No. 442, As Amended,
Otherwise Known as the Labor Code of the
Philippines, which lapsed into law on May 25, 2007
and became effective on June 14, 2007. The
amendment sought to strengthen the workers' right
to self-organization and enhance the Philippines'
compliance with its international obligations as
embodied in the International Labour Organization
(ILO) Convention No. 87, 38 pertaining to the nondissolution
of
workers'
organizations
by
administrative authority. 39 Thus, R.A. No. 9481
amended Article 239 to read:
ART. 239. Grounds for Cancellation of Union
Registration. The following may constitute
grounds for cancellation of union registration:
ILO Convention No. 87, which we have ratified in

1953, provides that "workers' and employers'
organizations shall not be liable to be dissolved or
suspended by administrative authority." The ILO
has expressed the opinion that the cancellation of
union registration by the registrar of labor unions,
which in our case is the BLR, is tantamount to
dissolution of the organization by administrative
authority when such measure would give rise to the
loss of legal personality of the union or loss of
advantages necessary for it to carry out its
activities, which is true in our jurisdiction. Although
the ILO has allowed such measure to be taken,
provided that judicial safeguards are in place, i.e.,
the right to appeal to a judicial body, it has
nonetheless reminded its members that dissolution
of a union, and cancellation of registration for that
matter, involve serious consequences for
occupational representation. It has, therefore,
deemed it preferable if such actions were to be
taken only as a last resort and after exhausting
other possibilities with less serious effects on the
organization. 40
The aforesaid amendments and the ILO's opinion
on this matter serve to fortify our ruling in this case.
We therefore quote with approval the DOLE
Secretary's rationale for denying the petition, thus:
It is undisputed that appellee failed to submit its
annual financial reports and list of individual
members in accordance with Article 239 of the
Labor Code.However, the existence of this ground
should not necessarily lead to the cancellation of
union registration. Article 239 recognizes the
regulatory authority of the State to exact
compliance with reporting requirements. Yet there
is more at stake in this case than merely monitoring
union
activities
and
requiring
periodic
documentation thereof.
(a) Misrepresentation, false statement or fraud in

connection with the adoption or ratification of the
constitution and by-laws or amendments thereto,
the minutes of ratification, and the list of members
who took part in the ratification;
(b) Misrepresentation, false statements or fraud in
connection with the election of officers, minutes of
the election of officers, and the list of voters;
(c) Voluntary dissolution by the members.
R.A. No. 9481 also inserted in the Labor Code
Article 242-A, which provides:
ART. 242-A. Reportorial Requirements. The
following are documents required to be submitted
to the Bureau by the legitimate labor organization
concerned:
The more substantive considerations involve the

constitutionally guaranteed freedom of association
and right of workers to self-organization. Also
involved is the public policy to promote free trade
unionism and collective bargaining as instruments
of industrial peace and democracy. An overly
stringent interpretation of the statute governing
cancellation of union registration without regard to
surrounding circumstances cannot be allowed.
Otherwise, it would lead to an unconstitutional
application of the statute and emasculation of
public policy objectives. Worse, it can render
nugatory the protection to labor and social justice
clauses that pervades the Constitution and the
Labor Code. DECcAS
(a) Its constitution and by-laws, or amendments

thereto, the minutes of ratification, and the list of
members who took part in the ratification of the
constitution and by-laws within thirty (30) days from
adoption or ratification of the constitution and bylaws or amendments thereto; cTIESa
(b) Its list of officers, minutes of the election of
officers, and list of voters within thirty (30) days
from election;
(c) Its annual financial report within thirty (30) days
after the close of every fiscal year; and
(d) Its list of members at least once a year or
whenever required by the Bureau.
Moreover, submission of the required documents is

the duty of the officers of the union. It would be
unreasonable for this Office to order the
cancellation of the union and penalize the entire
union membership on the basis of the negligence of
its officers. In National Union of Bank Employees
vs. Minister of Labor, L-53406, 14 December 1981,
110 SCRA 296, the Supreme Court ruled:
Failure to comply with the above requirements shall

not be a ground for cancellation of union
registration but shall subject the erring officers or
members
to
suspension,
expulsion
from
membership, or any appropriate penalty.
185
As aptly ruled by respondent Bureau of Labor

Relations Director Noriel: "The rights of workers to
self-organization finds general and specific
constitutional guarantees. . . . Such constitutional
guarantees should not be lightly taken much less
nullified. A healthy respect for the freedom of
association demands that acts imputable to officers
or members be not easily visited with capital
punishments against the association itself."
unconstitutional, and the implementation thereof be

enjoined permanently.
The Facts
On January 25, 2005, former President Gloria
Macapagal-Arroyo signed into law R.A. No. 9335
which took effect on February 11, 2005.
In Abakada Guro Party List v. Purisima 4
(Abakada), we said of R.A. No. 9335:
RA [No.] 9335 was enacted to optimize the
revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau
of Customs (BOC). The law intends to encourage
BIR and BOC officials and employees to exceed
their revenue targets by providing a system of
rewards and sanctions through the creation of a
Rewards and Incentives Fund (Fund) and a
Revenue Performance Evaluation Board (Board). It
covers all officials and employees of the BIR and
the BOC with at least six months of service,
regardless of employment status.
At any rate, we note that on 19 May 2000, appellee

had submitted its financial statement for the years
1996-1999. With this submission, appellee has
substantially complied with its duty to submit its
financial report for the said period. To rule
differently would be to preclude the union, after
having failed to meet its periodic obligations
promptly, from taking appropriate measures to
correct its omissions. For the record, we do not
view with favor appellee's late submission.
Punctuality on the part of the union and its officers
could have prevented this petition. 41
The Fund is sourced from the collection of the BIR

and the BOC in excess of their revenue targets for
the year, as determined by the Development
Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and
allocated to the BIR and the BOC in proportion to
their contribution in the excess collection of the
targeted amount of tax revenue.
WHEREFORE, premises considered, the Court of

Appeals Decision dated May 30, 2005 and
Resolution dated June 4, 2007 are AFFIRMED.
SO ORDERED.
Carpio, Leonardo-de Castro, * Abad and Mendoza,
JJ., concur.
||| (Heritage Hotel Manila v. National Union of
Workers in the Hotel, Restaurant and Allied
Industries-Heritage Hotel Manila Supervisors
Chapter, G.R. No. 178296, [January 12, 2011], 654
PHIL 395-413)
The Boards in the BIR and the BOC are composed

of the Secretary of the Department of Finance
(DOF) or his/her Undersecretary, the Secretary of
the Department of Budget and Management (DBM)
or his/her Undersecretary, the Director General of
the National Economic Development Authority
(NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their
Deputy Commissioners, two representatives from
the rank-and-file employees and a representative
from the officials nominated by their recognized
organization.
9. BOCEA VS. TEVES 661 SCRA 589 (2011)

EN BANC
[G.R. No. 181704. December 6, 2011.]
BUREAU
OF
CUSTOMS
EMPLOYEES
ASSOCIATION (BOCEA), represented by its
National President (BOCEA National Executive
Council) Mr. Romulo A. Pagulayan, petitioner, vs.
HON. MARGARITO B. TEVES, in his capacity as
Secretary of the Department of Finance, HON.
NAPOLEON L. MORALES, in his capacity as
Commissioner of the Bureau of Customs, HON.
LILIAN B. HEFTI, in her capacity as Commissioner
of the Bureau of Internal Revenue, respondents.
Each Board has the duty to (1) prescribe the rules

and guidelines for the allocation, distribution and
release of the Fund; (2) set criteria and procedures
for removing from the service officials and
employees whose revenue collection falls short of
the target; (3) terminate personnel in accordance
with the criteria adopted by the Board; (4) prescribe
a system for performance evaluation; (5) perform
other functions, including the issuance of rules and
regulations and (6) submit an annual report to
Congress. aCTcDH
DECISION
VILLARAMA, JR., J p:
The DOF, DBM, NEDA, BIR, BOC and the Civil

Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and
regulations of RA [No.] 9335, to be approved by a
Joint Congressional Oversight Committee created
for such purpose. 5
Before this Court is a petition 1 for certiorari and

prohibition with prayer for injunctive relief/s under
Rule 65 of the 1997 Rules of Civil Procedure, as
amended, to declare Republic Act (R.A.) No. 9335,
2 otherwise known as the Attrition Act of 2005, and
its Implementing Rules and Regulations 3 (IRR)
The Joint Congressional Oversight Committee

approved the assailed IRR on May 22, 2006.
186
Subsequently, the IRR was published on May 30,

2006 in two newspapers of general circulation, the
Philippine Star and the Manila Standard, and
became effective fifteen (15) days later. 6
Contending that the enactment and implementation
of R.A. No. 9335 are tainted with constitutional
infirmities in violation of the fundamental rights of its
members, petitioner Bureau of Customs Employees
Association (BOCEA), an association of rank-andfile employees of the Bureau of Customs (BOC),
duly registered with the Department of Labor and
Employment (DOLE) and the Civil Service
Commission (CSC), and represented by its
National President, Mr. Romulo A. Pagulayan
(Pagulayan), directly filed the present petition
before this Court against respondents Margarito B.
Teves, in his capacity as Secretary of the
Department of Finance (DOF), Commissioner
Napoleon L. Morales (Commissioner Morales), in
his capacity as BOC Commissioner, and Lilian B.
Hefti, in her capacity as Commissioner of the
Bureau of Internal Revenue (BIR). In its petition,
BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the
BOC pursuant to the mandate of R.A. No. 9335 and
its IRR, and in order to comply with the stringent
deadlines thereof, started to disseminate Collection
District Performance Contracts 7 (Performance
Contracts) for the lower ranking officials and rankand-file employees to sign. The Performance
Contract pertinently provided:
xxx xxx xxx
b.) That he/she will cascade and/or allocate to

respective Appraisers/Examiners or Employees
under his/her section the said Revenue Collection
Target and require them to execute a Performance
Contract, and direct them to accept their individual
target. The Performance Contract executed by the
respective Examiners/Appraisers/Employees shall
be submitted to the Office of the Commissioner
through the LAIC on or before March 31, 2008.
xxx xxx xxx 8
BOCEA opined that the revenue target was
impossible to meet due to the Government's own
policies on reduced tariff rates and tax breaks to big
businesses, the occurrence of natural calamities
and because of other economic factors. BOCEA
claimed that some BOC employees were coerced
and forced to sign the Performance Contract. The
majority of them, however, did not sign. In
particular, officers of BOCEA were summoned and
required to sign the Performance Contracts but
they also refused. To ease the brewing tension,
BOCEA claimed that its officers sent letters, and
sought several dialogues with BOC officials but the
latter refused to heed them.
In addition, BOCEA alleged that Commissioner
Morales exerted heavy pressure on the District
Collectors, Chiefs of Formal Entry Divisions,
Principal Customs Appraisers and Principal
Customs Examiners of the BOC during command
conferences to make them sign their Performance
Contracts. Likewise, BOC Deputy Commissioner
Reynaldo Umali (Deputy Commissioner Umali)
individually spoke to said personnel to convince
them to sign said contracts. Said personnel were
threatened that if they do not sign their respective
Performance Contracts, they would face possible
reassignment, reshuffling, or worse, be placed on
floating status. Thus, all the District Collectors,
except a certain Atty. Carlos So of the Collection
District III of the Ninoy Aquino International Airport
(NAIA), signed the Performance Contracts.
ESCDHA
BOCEA further claimed that Pagulayan was
constantly harassed and threatened with lawsuits.
Pagulayan approached Deputy Commissioner
Umali to ask the BOC officials to stop all forms of
harassment, but the latter merely said that he
would look into the matter. On February 5, 2008,
BOCEA through counsel wrote the Revenue
Performance Evaluation Board (Board) to desist
from implementing R.A. No. 9335 and its IRR and
from requiring rank-and-file employees of the BOC
and BIR to sign Performance Contracts. 9 In his
letter-reply 10 dated February 12, 2008, Deputy
Commissioner Umali denied having coerced any
BOC employee to sign a Performance Contract. He
also defended the BOC, invoking its mandate of
merely implementing the law. Finally, Pagulayan
and BOCEA's counsel, on separate occasions,
requested for a certified true copy of the
Performance Contract from Deputy Commissioner
Umali but the latter failed to furnish them a copy. 11
WHEREAS, pursuant to the provisions of Sec. 25

(b) of the Implementing Rules and Regulations
(IRR) of the Attrition Act of 2005, that provides for
the setting of criteria and procedures for removing
from the service Officials and Employees whose
revenue collection fall short of the target in
accordance with Section 7 of Republic Act 9335.
xxx xxx xxx
NOW, THEREFORE, for and in consideration of the
foregoing premises, parties unto this Agreement
hereby agree and so agreed to perform the
following:
xxx xxx xxx
2. The "Section 2, PA/PE" hereby accepts the
allocated Revenue Collection Target and further
accepts/commits to meet the said target under the
following conditions:
a.) That he/she will meet the allocated Revenue
Collection Target and thereby undertakes and binds
himself/herself that in the event the revenue
collection falls short of the target with due
consideration of all relevant factors affecting the
level of collection as provided in the rules and
regulations promulgated under the Act and its IRR,
he/she will voluntarily submit to the provisions of
Sec. 25 (b) of the IRR and Sec. 7 of the Act; and
187
This petition was filed directly with this Court on

March 3, 2008. BOCEA asserted that in view of the
unconstitutionality of R.A. No. 9335 and its IRR,
and their adverse effects on the constitutional rights
of BOC officials and employees, direct resort to this
Court is justified. BOCEA argued, among others,
that its members and other BOC employees are in
great danger of losing their jobs should they fail to
meet the required quota provided under the law, in
clear violation of their constitutional right to security
of tenure, and at their and their respective families'
prejudice.
In their Comment, 12 respondents, through the
Office of the Solicitor General (OSG), countered
that R.A. No. 9335 and its IRR do not violate the
right to due process and right to security of tenure
of BIR and BOC employees. The OSG stressed
that the guarantee of security of tenure under the
1987 Constitution is not a guarantee of perpetual
employment. R.A. No. 9335 and its IRR provided a
reasonable and valid ground for the dismissal of an
employee which is germane to the purpose of the
law. Likewise, R.A. No. 9335 and its IRR provided
that an employee may only be separated from the
service upon compliance with substantive and
procedural due process. The OSG added that R.A.
No. 9335 and its IRR must enjoy the presumption
of constitutionality.
In its Reply, 13 BOCEA claimed that R.A. No. 9335
employs means that are unreasonable to achieve
its stated objectives; that the law is unduly
oppressive of BIR and BOC employees as it shifts
the extreme burden upon their shoulders when the
Government itself has adopted measures that
make collection difficult such as reduced tariff rates
to almost zero percent and tax exemption of big
businesses; and that the law is discriminatory of
BIR and BOC employees. BOCEA manifested that
only the high-ranking officials of the BOC benefited
largely from the reward system under R.A. No.
9335 despite the fact that they were not the ones
directly toiling to collect revenue. Moreover, despite
the BOCEA's numerous requests, 14 BOC
continually refused to provide BOCEA the
Expenditure Plan on how such reward was
distributed.
Since BOCEA was seeking similar reliefs as that of
the petitioners in Abakada Guro Party List v.
Purisima, BOCEA filed a Motion to Consolidate 15
the present case with Abakada on April 16, 2008.
However, pending action on said motion, the Court
rendered its decision in Abakada on August 14,
2008. Thus, the consolidation of this case with
Abakada was rendered no longer possible. 16
In Abakada, this Court, through then Associate
Justice, now Chief Justice Renato C. Corona,
declared Section 12 17 of R.A. No. 9335 creating a
Joint Congressional Oversight Committee to
approve the IRR as unconstitutional and violative of
the principle of separation of powers. However, the
constitutionality of the remaining provisions of R.A.
No. 9335 was upheld pursuant to Section 13 18 of
R.A. No. 9335. The Court also held that until the
contrary is shown, the IRR of R.A. No. 9335 is
presumed valid and effective even without the
approval of the Joint Congressional Oversight

Committee. 19
Notwithstanding our ruling in Abakada, both parties
complied with our Resolution 20 dated February 10,
2009, requiring them to submit their respective
Memoranda.
The Issues
BOCEA raises the following issues:
I.
WHETHER OR NOT THE ATTRITION LAW,
REPUBLIC ACT [NO.]
9335, AND
ITS
IMPLEMENTING RULES AND REGULATIONS
ARE UNCONSTITUTIONAL AS THESE VIOLATE
THE RIGHT TO DUE PROCESS OF THE
COVERED BIR AND BOC OFFICIALS AND
EMPLOYEES[;]
II.
REPUBLIC ACT [NO.]
9335, AND
ITS
THE RIGHT OF BIR AND BOC OFFICIALS AND
EMPLOYEES TO THE EQUAL PROTECTION OF
THE LAWS[;] AECDHS
III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335
AND
ITS
IMPLEMENTING
RULES
AND
REGULATIONS VIOLATE THE RIGHT TO
SECURITY OF TENURE OF BIR AND BOC
OFFICIALS AND EMPLOYEES AS ENSHRINED
UNDER SECTION 2 (3), ARTICLE IX (B) OF THE
CONSTITUTION[;]
IV.
AND
ITS
IMPLEMENTING
RULES
AND
REGULATIONS ARE UNCONSTITUTIONAL AS
THEY CONSTITUTE UNDUE DELEGATION OF
LEGISLATIVE POWERS TO THE REVENUE
PERFORMANCE EVALUATION BOARD IN
VIOLATION
OF
THE
PRINCIPLE
OF
SEPARATION OF POWERS ENSHRINED IN THE
CONSTITUTION[; AND]
V.
IS A BILL OF ATTAINDER AND HENCE[,]
UNCONSTITUTIONAL BECAUSE IT INFLICTS
PUNISHMENT THROUGH LEGISLATIVE FIAT
UPON A PARTICULAR GROUP OR CLASS OF
OFFICIALS AND EMPLOYEES WITHOUT TRIAL.
21
BOCEA manifested that while waiting for the Court
to give due course to its petition, events unfolded
showing the patent unconstitutionality of R.A. No.
9335. It narrated that during the first year of the
implementation of R.A. No. 9335, BOC employees
188
exerted commendable efforts to attain their revenue

target of P196 billion which they surpassed by as
much as P2 billion for that year alone. However,
this was attained only because oil companies made
advance tax payments to BOC. Moreover, BOC
employees were given their "reward" for surpassing
said target only in 2008, the distribution of which
they described as unjust, unfair, dubious and
fraudulent because only top officials of BOC got the
huge sum of reward while the employees, who did
the hard task of collecting, received a mere pittance
of around P8,500.00. In the same manner, the
Bonds Division of BOC-NAIA collected 400+% of its
designated target but the higher management gave
out to the employees a measly sum of P8,500.00
while the top level officials partook of millions of the
excess collections. BOCEA relies on a piece of
information revealed by a newspaper showing the
list of BOC officials who apparently earned huge
amounts of money by way of reward. 22 It claims
that the recipients thereof included lawyers, support
personnel and other employees, including a dentist,
who performed no collection functions at all. These
alleged anomalous selection, distribution and
allocation of rewards was due to the failure of R.A.
No. 9335 to set out clear guidelines. 23
In addition, BOCEA avers that the Board initiated
the first few cases of attrition for the Fiscal Year
2007 by subjecting five BOC officials from the Port
of Manila to attrition despite the fact that the Port of
Manila substantially complied with the provisions of
R.A. No. 9335. It is thus submitted that the
selection of these officials for attrition without
proper investigation was nothing less than arbitrary.
Further, the legislative and executive departments'
promulgation of issuances and the Government's
accession to regional trade agreements have
caused a significant diminution of the tariff rates,
thus, decreasing over-all collection. These
unrealistic settings of revenue targets seriously
affect BIR and BOC employees tasked with the
burden of collection, and worse, subjected them to
attrition. 24
BOCEA assails the constitutionality of R.A. No.
9335 and its IRR on the following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and
BOC employees' right to due process because the
termination of employees who had not attained
their revenue targets for the year is peremptory and
done without any form of hearing to allow said
employees to ventilate their side. Moreover, R.A.
No. 9335 and its IRR do not comply with the
requirements under CSC rules and regulations as
the dismissal in this case is immediately executory.
Such immediately executory nature of the Board's
decision negates the remedies available to an
employee as provided under the CSC rules.
of Transportation and Communication, the Air

Transportation Office, the Land Transportation
Office, and the Philippine Charity Sweepstakes
Office, among others, which are not subject to
attrition.
BOC employees' right to security of tenure because
R.A. No. 9335 and its IRR effectively removed
remedies provided in the ordinary course of
administrative procedure afforded to government
employees. The law likewise created another
ground for dismissal, i.e., non-attainment of
revenue collection target, which is not provided
under CSC rules and which is, by its nature,
unpredictable and therefore arbitrary and
unreasonable. SDaHEc
4. R.A. No. 9335 and its IRR violate the 1987
Constitution because Congress granted to the
Revenue Performance Evaluation Board (Board)
the unbridled discretion of formulating the criteria
for termination, the manner of allocating targets, the
distribution of rewards and the determination of
relevant factors affecting the targets of collection,
which is tantamount to undue delegation of
legislative power.
5. R.A. No. 9335 is a bill of attainder because it
inflicts punishment upon a particular group or class
of officials and employees without trial. This is
evident from the fact that the law confers upon the
Board the power to impose the penalty of removal
upon employees who do not meet their revenue
targets; that the same is without the benefit of
hearing; and that the removal from service is
immediately executory. Lastly, it disregards the
presumption of regularity in the performance of the
official functions of a public officer. 25
On the other hand, respondents through the OSG
stress that except for Section 12 of R.A. No. 9335,
R.A. No. 9335 and its IRR are constitutional, as per
our ruling in Abakada. Nevertheless, the OSG
argues that the classification of BIR and BOC
employees as public officers under R.A. No. 9335
is based on a valid and substantial distinction since
the revenue generated by the BIR and BOC is
essentially in the form of taxes, which is the
lifeblood of the State, while the revenue produced
by other agencies is merely incidental or secondary
to their governmental functions; that in view of their
mandate, and for purposes of tax collection, the
BIR and BOC are sui generis; that R.A. No. 9335
complies with the "completeness" and "sufficient
standard" tests for the permissive delegation of
legislative power to the Board; that the Board
exercises its delegated power consistent with the
policy laid down in the law, that is, to optimize the
revenue generation capability and collection of the
BIR and the BOC; that parameters were set in
order that the Board may identify the officials and
employees subject to attrition, and the proper
procedure for their removal in case they fail to meet
the targets set in the Performance Contract were
BOC employees' right to equal protection of the law
because R.A. No. 9335 and its IRR unduly
discriminates against BIR and BOC employees as
compared to employees of other revenue
generating government agencies like the Philippine
Amusement and Gaming Corporation, Department
189
provided; and that the rights of BIR and BOC

employees to due process of law and security of
tenure are duly accorded by R.A. No. 9335. The
OSG likewise maintains that there was no
encroachment of judicial power in the enactment of
R.A. No. 9335 amounting to a bill of attainder since
R.A. No. 9335 and its IRR merely defined the
offense and provided for the penalty that may be
imposed. Finally, the OSG reiterates that the
separation from the service of any BIR or BOC
employee under R.A. No. 9335 and its IRR shall be
done only upon due consideration of all relevant
factors affecting the level of collection, subject to
Civil Service laws, rules and regulations, and in
compliance with substantive and procedural due
process. The OSG opines that the Performance
Contract, far from violating the BIR and BOC
employees' right to due process, actually serves as
a notice of the revenue target they have to meet
and the possible consequences of failing to meet
the same. More, there is nothing in the law which
prevents the aggrieved party from appealing the
unfavorable decision of dismissal. 26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative
power to the Board;
delegated power constitutes not only a right but a

duty to be performed by the delegate through the
instrumentality of his own judgment and not through
the intervening mind of another. 29 However, this
principle of non-delegation of powers admits of
numerous exceptions, 30 one of which is the
delegation of legislative power to various
specialized administrative agencies like the Board
in this case. cDACST
The rationale for the aforementioned exception was
clearly explained in our ruling in Gerochi v.
Department of Energy, 31 to wit:
In the face of the increasing complexity of modern
life, delegation of legislative power to various
specialized administrative agencies is allowed as
an exception to this principle. Given the volume and
variety of interactions in today's society, it is
doubtful if the legislature can promulgate laws that
will deal adequately with and respond promptly to
the minutiae of everyday life. Hence, the need to
delegate to administrative bodies the principal
agencies tasked to execute laws in their specialized
fields the authority to promulgate rules and
regulations to implement a given statute and
effectuate its policies. All that is required for the
valid exercise of this power of subordinate
legislation is that the regulation be germane to the
objects and purposes of the law and that the
regulation be not in contradiction to, but in
conformity with, the standards prescribed by the
law. These requirements are denominated as the
completeness test and the sufficient standard test.
32
2. Whether R.A. No. 9335 and its IRR violate the

rights of BOCEA's members to: (a) equal protection
of laws, (b) security of tenure and (c) due process;
and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact
uncontroverted, that BOCEA has locus standi.
BOCEA impugns the constitutionality of R.A. No.
9335 and its IRR because its members, who are
rank-and-file employees of the BOC, are actually
covered by the law and its IRR. BOCEA's members
have a personal and substantial interest in the
case, such that they have sustained or will sustain,
direct injury as a result of the enforcement of R.A.
No. 9335 and its IRR. 27
However, we find no merit in the petition and
perforce dismiss the same.
It must be noted that this is not the first time the
constitutionality of R.A. No. 9335 and its IRR are
being challenged. The Court already settled the
majority of the same issues raised by BOCEA in
our decision in Abakada, which attained finality on
September 17, 2008. As such, our ruling therein is
worthy of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that
each of the three great branches of government
has exclusive cognizance of and is supreme in
matters falling within its own constitutionally
allocated sphere. 28 Necessarily imbedded in this
doctrine is the principle of non-delegation of
powers, as expressed in the Latin maxim potestas
delegata non delegari potest, which means "what
has been delegated, cannot be delegated." This
doctrine is based on the ethical principle that such
Thus, in Abakada, we held,

Two tests determine the validity of delegation of
legislative power: (1) the completeness test and (2)
the sufficient standard test. A law is complete when
it sets forth therein the policy to be executed,
carried out or implemented by the delegate. It lays
down a sufficient standard when it provides
adequate guidelines or limitations in the law to map
out the boundaries of the delegate's authority and
prevent the delegation from running riot. To be
sufficient, the standard must specify the limits of the
delegate's authority, announce the legislative policy
and identify the conditions under which it is to be
implemented.
RA [No.] 9335 adequately states the policy and
standards to guide the President in fixing revenue
targets and the implementing agencies in carrying
out the provisions of the law. Section 2 spells out
the policy of the law:
"SEC. 2. Declaration of Policy. It is the policy of
the State to optimize the revenue-generation
capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC)
by providing for a system of rewards and sanctions
through the creation of a Rewards and Incentives
Fund and a Revenue Performance Evaluation
Board in the above agencies for the purpose of
encouraging their officials and employees to
exceed their revenue targets."
190
(b) To set the criteria and procedures for removing

from service officials and employees whose
revenue collection falls short of the target by at
least seven and a half percent (7.5%), with due
regulations promulgated under this Act, subject to
civil service laws, rules and regulations and
process: Provided, That the following exemptions
shall apply:
Section 4 "canalized within banks that keep it from

overflowing" the delegated power to the President
to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. A
Rewards and Incentives Fund, hereinafter referred
to as the Fund, is hereby created, to be sourced
from the collection of the BIR and the BOC in
excess of their respective revenue targets of the
year, as determined by the Development Budget
and Coordinating Committee (DBCC), in the
following percentages:
1. Where the district or area of responsibility is

newly-created, not exceeding two years in
operation, and has no historical record of collection
performance that can be used as basis for
evaluation; and
Excess of Collection
Percent (%) of the
Excess
[Over] the Revenue
Collection to Accrue
to the
Targets
Fund
30% or below
15%
More than 30%
15% of the first 30%

plus
20% of the remaining excess
2. Where the revenue or customs official or

employee is a recent transferee in the middle of the
period under consideration unless the transfer was
due to nonperformance of revenue targets or
potential nonperformance of revenue targets:
Provided, however, That when the district or area of
responsibility covered by revenue or customs
officials or employees has suffered from economic
difficulties brought about by natural calamities or
force majeure or economic causes as may be
determined by the Board, termination shall be
considered only after careful and proper review by
the Board.
The Fund shall be deemed automatically

appropriated the year immediately following the
year when the revenue collection target was
exceeded and shall be released on the same fiscal
year.
Revenue targets shall refer to the original estimated
revenue collection expected of the BIR and the
BOC for a given fiscal year as stated in the Budget
of Expenditures and Sources of Financing (BESF)
submitted by the President to Congress. The BIR
and the BOC shall submit to the DBCC the
distribution of the agencies' revenue targets as
allocated among its revenue districts in the case of
the BIR, and the collection districts in the case of
the BOC.
(c) To terminate personnel in accordance with the

criteria adopted in the preceding paragraph:
Provided, That such decision shall be immediately
executory: Provided, further, That the application of
the criteria for the separation of an official or
employee from service under this Act shall be
without prejudice to the application of other relevant
laws on accountability of public officers and
employees, such as the Code of Conduct and
Ethical Standards of Public Officers and Employees
and the Anti-Graft and Corrupt Practices Act;
xxx xxx xxx"

Revenue targets are based on the original
estimated revenue collection expected respectively
of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF
submitted by the President to Congress. Thus, the
determination of revenue targets does not rest
solely on the President as it also undergoes the
scrutiny of the DBCC.
xxx xxx xxx"

At any rate, this Court has recognized the following
as sufficient standards: "public interest", "justice
and equity", "public convenience and welfare" and
"simplicity, economy and welfare". In this case, the
declared policy of optimization of the revenuegeneration capability and collection of the BIR and
the BOC is infused with public interest. 33
On the other hand, Section 7 specifies the limits of

the Board's authority and identifies the conditions
under which officials and employees whose
least 7.5% may be removed from the service:
We could not but deduce that the completeness

test and the sufficient standard test were fully
satisfied by R.A. No. 9335, as evident from the
aforementioned Sections 2, 4 and 7 thereof.
Moreover, Section 5 34 of R.A. No. 9335 also
provides for the incentives due to District Collection
Offices. While it is apparent that the last paragraph
of Section 5 provides that "[t]he allocation,
distribution and release of the district reward shall
likewise be prescribed by the rules and regulations
of the Revenue Performance and Evaluation
"SEC. 7. Powers and Functions of the Board.

The Board in the agency shall have the following
powers and functions: DACIHc
xxx xxx xxx
191
Board," Section 7 (a) 35 of R.A. No. 9335 clearly

mandates and sets the parameters for the Board by
providing that such rules and guidelines for the
allocation, distribution and release of the fund shall
be in accordance with Sections 4 and 5 of R.A. No.
9335. In sum, the Court finds that R.A. No. 9335,
read and appreciated in its entirety, is complete in
all its essential terms and conditions, and that it
contains sufficient standards as to negate BOCEA's
supposition of undue delegation of legislative power
to the Board.
Similarly, we resolve the second issue in the
negative.
Equal protection simply provides that all persons or
things similarly situated should be treated in a
similar manner, both as to rights conferred and
responsibilities imposed. The purpose of the equal
protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express
terms of a statute or by its improper execution
through the state's duly constituted authorities. In
other words, the concept of equal justice under the
law requires the state to govern impartially, and it
may not draw distinctions between individuals
solely on differences that are irrelevant to a
legitimate governmental objective. 36
Thus, on the issue on equal protection of the laws,
we held in Abakada:
The equal protection clause recognizes a valid
classification, that is, a classification that has a
reasonable foundation or rational basis and not
arbitrary. With respect to RA [No.] 9335, its
expressed public policy is the optimization of the
BIR and the BOC. Since the subject of the law is
the revenue-generation capability and collection of
the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically
pertain to the said agencies. Moreover, the law
concerns only the BIR and the BOC because they
have the common distinct primary function of
generating revenues for the national government
through the collection of taxes, customs duties,
fees and charges.
(4) Exercise supervision and control over its

constituent and subordinate units; and
(5) Perform such other functions as may be
provided by law.
xxx xxx xxx"
On the other hand, the BOC has the following
functions:
"Sec. 23. The Bureau of Customs. The Bureau
of Customs which shall be headed and subject to
the management and control of the Commissioner
of Customs, who shall be appointed by the
President upon the recommendation of the
Secretary [of the DOF] and hereinafter referred to
as Commissioner, shall have the following
functions:
(1) Collect custom duties, taxes and
corresponding fees, charges and penalties;
the
(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of
tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and
all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign
mails and the clearance of vessels and aircrafts in
all ports of entry;
(6) Administer all legal requirements that are
appropriate;
(7) Prevent and prosecute smuggling and other
illegal activities in all ports under its jurisdiction;
constituent units;
provided by law.
The BIR performs the following functions: CDaSAE

xxx xxx xxx"
"Sec. 18. The Bureau of Internal Revenue. The
Bureau of Internal Revenue, which shall be headed
by and subject to the supervision and control of the
Commissioner of Internal Revenue, who shall be
appointed
by
the
President
upon
the
recommendation of the Secretary [of the DOF],
shall have the following functions:
Both the BIR and the BOC are bureaus under the
DOF. They principally perform the special function
of being the instrumentalities through which the
State exercises one of its great inherent functions
taxation. Indubitably, such substantial distinction
is germane and intimately related to the purpose of
the law. Hence, the classification and treatment
accorded to the BIR and the BOC under RA [No.]
9335 fully satisfy the demands of equal protection.
37
(1) Assess and collect all taxes, fees and charges

and account for all revenues collected;
(2) Exercise duly delegated police powers for the
proper performance of its functions and duties;
As it was imperatively correlated to the issue on

equal protection, the issues on the security of
tenure of affected BIR and BOC officials and
employees and their entitlement to due process
were also settled in Abakada:
(3) Prevent and prosecute tax evasions and all

other illegal economic activities;
192
Clearly, RA [No.] 9335 in no way violates the

security of tenure of officials and employees of the
BIR and the BOC. The guarantee of security of
tenure only means that an employee cannot be
dismissed from the service for causes other than
those provided by law and only after due process is
accorded the employee. In the case of RA [No.]
9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of
the target by at least 7.5%) with due consideration
of all relevant factors affecting the level of
collection. This standard is analogous to
inefficiency and incompetence in the performance
of official duties, a ground for disciplinary action
under civil service laws. The action for removal is
also subject to civil service laws, rules and
regulations and compliance with substantive and
procedural due process. 38 HCTAEc
[1867]). In more modern terms, a bill of attainder is

essentially a usurpation of judicial power by a
legislative body. It envisages and effects the
imposition of a penalty the deprivation of life or
liberty or property not by the ordinary processes
of judicial trial, but by legislative fiat. While cast in
the form of special legislation, a bill of attainder (or
bill of pains and penalties, if it prescribed a penalty
other than death) is in intent and effect a penal
judgment visited upon an identified person or group
of persons (and not upon the general community)
without a prior charge or demand, without notice
and hearing, without an opportunity to defend,
without any of the civilized forms and safeguards of
the judicial process as we know it (People v. Ferrer,
48 SCRA 382 [1972]; Cummings and Missouri, 4
Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328,
U.S. 303, 90 L.Ed. 1252 [1945]; U.S. v. Brown, 381
U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the
archetypal bill of attainder wielded as a means of
legislative oppression. . . . 47
In addition, the essence of due process is simply an

administrative proceedings, a fair and reasonable
opportunity to explain one's side. 39 BOCEA's
apprehension of deprivation of due process finds its
answer in Section 7 (b) and (c) of R.A. No. 9335.
40 The concerned BIR or BOC official or employee
is not simply given a target revenue collection and
capriciously left without any quarter. R.A. No. 9335
and its IRR clearly give due consideration to all
relevant factors 41 that may affect the level of
collection. In the same manner, exemptions 42
were set, contravening BOCEA's claim that its
members may be removed for unattained target
collection even due to causes which are beyond
their control. Moreover, an employee's right to be
heard is not at all prevented and his right to appeal
is not deprived of him. 43 In fine, a BIR or BOC
official or employee in this case cannot be
arbitrarily removed from the service without
according him his constitutional right to due
process. No less than R.A. No. 9335 in accordance
with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid
to rest. Now, the Court proceeds to resolve the last,
but new issue raised by BOCEA, that is, whether
R.A. No. 9335 is a bill of attainder proscribed under
Section 22, 44 Article III of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a
bill of attainder. A bill of attainder is a legislative act
which inflicts punishment on individuals or
members of a particular group without a judicial
trial. Essential to a bill of attainder are a
specification of certain individuals or a group of
individuals, the imposition of a punishment, penal
or otherwise, and the lack of judicial trial. 45
In his Concurring Opinion in Tuason v. Register of
Deeds, Caloocan City, 46 Justice Florentino P.
Feliciano traces the roots of a Bill of Attainder, to
wit:
Bills of attainder are an ancient instrument of
tyranny. In England a few centuries back,
Parliament would at times enact bills or statutes
which declared certain persons attainted and their
blood corrupted so that it lost all heritable quality
(Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366
R.A. No. 9335 does not possess the elements of a

bill of attainder. It does not seek to inflict
punishment without a judicial trial. R.A. No. 9335
merely lays down the grounds for the termination of
a BIR or BOC official or employee and provides for
the consequences thereof. The democratic
processes are still followed and the constitutional
rights of the concerned employee are amply
protected.
A final note.
We find that BOCEA's petition is replete with
allegations of defects and anomalies in allocation,
distribution and receipt of rewards. While BOCEA
intimates that it intends to curb graft and corruption
in the BOC in particular and in the government in
general which is nothing but noble, these intentions
do not actually pertain to the constitutionality of
R.A. No. 9335 and its IRR, but rather in the faithful
implementation thereof. R.A. No. 9335 itself does
not tolerate these pernicious acts of graft and
corruption. 48 As the Court is not a trier of facts, the
investigation on the veracity of, and the proper
action on these anomalies are in the hands of the
Executive branch. Correlatively, the wisdom for the
enactment of this law remains within the domain of
the Legislative branch. We merely interpret the law
as it is. The Court has no discretion to give statutes
a meaning detached from the manifest intendment
and language thereof. 49 Just like any other law,
R.A. No. 9335 has in its favor the presumption of
constitutionality, and to justify its nullification, there
must be a clear and unequivocal breach of the
Constitution and not one that is doubtful,
speculative, or argumentative. 50 We have so
declared in Abakada, and we now reiterate that
R.A. No. 9335 and its IRR are constitutional.
WHEREFORE, the present petition for certiorari
and prohibition with prayer for injunctive relief/s is
DISMISSED.
No costs. cCESaH
SO ORDERED.
193
Corona, C.J., Carpio, Leonardo-De Castro, Brion,

Peralta, Bersamin, Del Castillo, Abad, Perez,
Mendoza, Sereno, Reyes and Perlas-Bernabe, JJ.,
concur.
Velasco, Jr., J., is on official leave.
||| (Bureau of Customs Employees Association v.
Teves, G.R. No. 181704, [December 6, 2011], 677
PHIL 636-671)
years 1998, 1999, 2000 and 2001 was then

discovered by the investigators.
According to the investigators, a total of 106
receipts were tampered. The scheme was done by
detaching the Plate Release and Owner's copy
from the set of official receipts then typing thereon
the correct details corresponding to the vehicle
registered, the owner's name and address, and the
correct amount of registration fees. The other
copies, consisting of the copies for the Collector,
EDP, Record, Auditor, and Regional Office,
meanwhile, were typed on to make it appear that
the receipts were issued mostly for the registration
of motorcycles with much lower registration
charges. Incorrect names and/or addresses were
also used on said file copies. The difference
between the amounts paid by the vehicle owners
and the amounts appearing on the file copies were
then pocketed by the perpetrators, and only the
lower amounts appearing on the retained duplicate
file copies were reported in the Report of
Collections. 5 According to State Auditors Cabalit
and Coloma in their Joint-Affidavit, the scheme was
perpetrated by LTO employees Leonardo G.
Olaivar, Gemma P. Cabalit, Filadelfo S. Apit and
Samuel T. Alabat, and resulted in an unreported
income totaling P169,642.50. 6 aCTcDH
On August 8, 2002, COA Regional Cluster Director
Atty. Roy L. Ursal reported the tampering of official
receipts to Deputy Ombudsman Primo C. Miro. 7
According to Atty. Ursal, the irregularity is penalized
under Article 217, in relation to Article 171 of the
Revised Penal Code; 8 Section 3 (e) 9 of the AntiGraft and Corrupt Practices Act, and likewise
violates Republic Act (R.A.) No. 6713. 10
In a Joint Evaluation Report, Graft Investigators Pio
R. Dargantes and Virginia Palanca-Santiago found
grounds to conduct a preliminary investigation. 11
Hence, a formal charge for dishonesty was filed
against Olaivar, Cabalit, Apit and Alabat before the
Office of the Ombudsman-Visayas, and the parties
were required to submit their counter-affidavits.
In compliance, Olaivar, Cabalit, Apit and Alabat
submitted separate counter-affidavits, all essentially
denying knowledge and responsibility for the
anomalies. As to Olaivar, he maintained that the
receipts were typed outside his office by regular
and casual employees. He claimed that the receipts
were presented to him only for signature and he
does not receive the payment when he signs the
receipts. 12 Cabalit, for her part, claimed that her
duty as cashier was to receive collections turned
over to her and to deposit them in the Land Bank of
the Philippines in Tagbilaran City. She claimed that
she was not even aware of any anomaly in the
collection of fees prior to the investigation. 13 As to
Apit, he admitted that he countersigned the official
receipts, but he too denied being aware of any
illegal activity in their office. He claimed that upon
being informed of the charge, he verified the
photocopies of the tampered receipts and was
surprised to find that the signatures above his
name were falsified. 14 Alabat, meanwhile, claimed
he did not tamper, alter or falsify any public
document in the performance of his duties. He
10. CABALIT VS. COA 663 SCRA 133 (2012)

EN BANC
[G.R. No. 180236. January 17, 2012.]
GEMMA P. CABALIT, petitioner, vs. COMMISSION
ON AUDIT-REGION VII, respondent.
[G.R. No. 180341 January 17, 2012]
FILADELFO S. APIT, petitioner, vs. COMMISSION
ON AUDIT (COA) Legal and Adjudication, Region
VII, respondent.
[G.R. No. 180342 January 17, 2012]
LEONARDO G. OLAIVAR, in his capacity as
Transportation Regulation Officer and Officer-InCharge of Land Transportation Office, Jagna,
Province of Bohol, petitioner, vs. HON. PRIMO C.
MIRO, in his official capacity as Deputy
Ombudsman for Visayas, EDGARDO G. CANTON,
in his capacity as Graft Investigator Officer, ATTY.
ROY L. URSAL, in his capacity as Regional Cluster
Director, Commission on Audit, Cebu City,
respondents.
DECISION
Three employees from the Land Transportation
Office (LTO) in Jagna, Bohol were found by the
Ombudsman to have perpetrated a scheme to
defraud the government of proper motor vehicle
registration fees. They now seek in the present
consolidated petitions a judgment from this Court
annulling the January 18, 2006 Decision 1 and
September 21, 2007 Resolution 2 of the Court of
Appeals (CA) which affirmed with modification the
Decision 3 of the Office of the OmbudsmanVisayas dismissing them from government service.
The facts follow:
On September 4, 2001, the Philippine Star News, a
local newspaper in Cebu City, reported that
employees of the LTO in Jagna, Bohol, are
shortchanging the government by tampering with
their income reports. 4 Accordingly, Regional
Director Ildefonso T. Deloria of the Commission on
Audit (COA) directed State Auditors Teodocio D.
Cabalit and Emmanuel L. Coloma of the Provincial
Revenue Audit Group to conduct a fact-finding
investigation. A widespread tampering of official
receipts of Motor Vehicle Registration during the
194
insisted that the initial above his name on Official

Receipt No. 64056082 was Apit's, while the initial
on Official Receipt No. 64056813 was that of
Olaivar. 15
During the hearing before Graft Investigator Pio R.
Dargantes, State Auditor Cabalit testified on the
investigation he conducted in the LTO in Jagna,
Bohol. He testified that he was furnished with the
owner's and duplicate copies of the tampered
receipts. Upon comparison of the Owner's copy
with the Collector or Record's copy, he noticed that
the amounts shown in the original copies were
much bigger than those appearing in the file copies.
State Auditor Cabalit also declared that the basis
for implicating Olaivar is the fact that his signature
appears in all the 106 tampered official receipts and
he signed as verified correct the Report of
Collections, which included the tampered receipts.
As to Apit and Cabalit, they are the other
signatories of the official receipts. 16 In some
official receipts, the Owner's copy is signed by F.S.
Apit as Computer Evaluator, G.P. Cabalit as
Cashier, and Leonardo Olaivar as District Head, but
their signatures do not appear on the file copies. 17
On February 12, 2004, the Office of the
Ombudsman-Visayas directed 18 the parties to
submit their position papers pursuant to
Administrative Order (A.O.) No. 17, dated
September 7, 2003, amending the Rules of
Procedure of the Office of the Ombudsman. 19 No
cross-examination of State Auditor Cabalit was
therefore conducted. SIEHcA
Complying with the above Order, the COA
submitted its position paper on March 18, 2004.
Olaivar, Cabalit and Apit, for their part, respectively
submitted their position papers on April 29, 2004,
March 18, 2004 and March 15, 2004.
In its position paper, 20 the COA pointed out that
the signatures of Cabalit, Apit and Olaivar were
indispensable to the issuance of the receipts. As to
Olaivar, the original receipts bear his signature,
thereby showing that he approved of the amounts
collected for the registration charges. However,
when the receipts were reported in the Report of
Collections, the data therein were already tampered
reflecting a much lesser amount. By affixing his
signature on the Report of Collections and thereby
attesting that the entries therein were verified by
him as correct, he allowed the scheme to be
perpetrated. As to Cabalit, the COA pointed out that
as cashier, Cabalit's signature on the receipts
signified that she received the registration fees. The
correct amounts should have therefore appeared in
the Report of Collections, but as already stated,
lesser amounts appeared on the Report of
Collections, which she prepares. In the same
manner, Apit, as computer evaluator, also signed
the subject receipts allowing the irregularities to be
perpetuated.
In his position paper, 21 Olaivar meanwhile insisted
that he had no participation in the anomalies. He
stressed that his only role in the issuance of the
official receipts was to review and approve the
applications, and that he was the last one to sign
the official receipts. He argued that based on the
standard procedure for the processing of

applications for registration of motor vehicles, it
could be deduced that there was a concerted effort
or conspiracy among the evaluator, typist and
cashier, while he was kept blind of their modus
operandi.
Cabalit, for her part, questioned the findings of the
investigators. She stressed in her position paper 22
that had there been a thorough investigation of the
questioned official receipts, the auditors would have
discovered that the signatures appearing above her
name were actually that of Olaivar. She outlined the
standard paper flow of a regular transaction at the
LTO. It begins when the registrant goes to the
computer evaluator for the computation of
applicable fees and proceeds to the cashier for
payment. After paying, the typist will prepare the
official receipts consisting of seven (7) copies,
which will be routed to the computer evaluator, to
the district head, and to the cashier for signature.
The cashier retains the copies for the EDP,
Regional Office, Collector and Auditor, while the
remaining copies (Owner, Plate Release and
Record's copy) will be forwarded to the Releasing
Section for distribution and release.
Cabalit insisted that on several occasions Olaivar
disregarded the standard procedure and directly
accommodated some registrants who were either
his friends or referred to him by friends. For such
transactions, Olaivar assumes the functions of
computer evaluator, typist and cashier, as he is the
one who computes the fees, receives the payment
and prepares the official receipts. Olaivar would
then remit the payment to her. As the cashier, she
has to accept the payment as a matter of ministerial
duty.
Apit, meanwhile, stressed in his position paper 23
that the strokes of the signatures appearing above
his typewritten name on the official receipts are
different, indicating that the same are falsified. He
also explained that considering that the LTO in
Jagna issues around 20 to 25 receipts a day, he
signed the receipts relying on the faith that his coemployees had properly accomplished the forms.
He also pointed out that Engr. Dano admitted
signing accomplished official receipts when the
regular computer encoder is out, which just shows
that other personnel could have signed above the
name of F.S. Apit. IHAcCS
On May 3, 2004, the Office of the OmbudsmanVisayas rendered judgment finding petitioners liable
for dishonesty for tampering the official receipts to
make it appear that they collected lesser amounts
than they actually collected. The OMB-Visayas
ruled:
WHEREFORE, premises considered, it is hereby
resolved that the following respondents be found
guilty of the administrative infraction of
DISHONESTY and accordingly be meted out the
penalty of DISMISSAL FROM THE SERVICE with
the accessory penalties of cancellation of civil
service eligibility, forfeiture of retirement benefits
and disqualification from re-employment in the
government service:
195
1. Leonardo G. Olaivar Transportation Regulation

Officer II/Office[r]-In-Charge
ADMINISTRATIVE ORDER NO. 17 IN THE

PROCEEDINGS BELOW THAT WAS ALREADY
ON
TRIAL
IN
ACCORDANCE
WITH
ADMINISTRATIVE ORDER NO. 07.
LTO Jagna District Office

Jagna, Bohol;
II. THE HONORABLE COURT OF APPEALS

GRAVELY
ERRED
IN
HOLDING
THAT
ALTHOUGH THE TRIAL TYPE HEARING UNDER
ADMINISTRATIVE ORDER NO. 07 DID NOT
PUSH
THRU,
PETITIONER
WAS
STILL
ACCORDED HER RIGHT TO DUE PROCESS
UNDER
THE
SUMMARY
PROCEEDINGS
PURSUANT TO ADMINISTRATIVE ORDER NO.
17.
2. Gemma P. Cabalit Cashier II, LTO Jagna

District Office Jagna, Bohol;
3. Filadelpo S. Apit Clerk II, LTO Jagna District
Office Jagna, Bohol;
The complaint against respondent Samuel T.
Alabat, presently the Head of Apprehension Unit of
the Tagbilaran City LTO, is hereby DISMISSED for
insufficiency of evidence.
III. THE HONORABLE COURT OF APPEALS

COMMITTED A REVERSIBLE ERROR WHEN IT
AFFIRMED THE DECISION OF RESPONDENT
OMBUDSMAN DESPITE HAVING FAILED TO
MAKE A CATEGORICAL RULING ON THE ISSUE
OF WHETHER THE QUESTIONED AND/OR
FORGED
SIGNATURES
BELONG
TO
PETITIONER GEMMA CABALIT.
The complaint regarding the LTO official

receipts/MVRRs issued by the LTO Jagna District
Office, which are not covered by original copies are
hereby DISMISSED without prejudice to the filing of
the appropriate charges upon the recovery of the
original copies thereof.
IV. THE HONORABLE COURT OF APPEALS

COMMITTED A REVERSIBLE ERROR WHEN IT
FAILED TO RULE ON THE DOCTRINAL VALUE
AND/OR APPLICABILITY OF THE TAPIADOR VS.
OFFICE OF THE OMBUDSMAN (G.R. [129124],
MARCH 15, 2002) RULING HERE IN THE
INSTANT CASE. 28
SO DECIDED. 24
Petitioners sought reconsideration of the decision,
but their motions were denied by the Ombudsman.
25 Thus, they separately sought recourse from the
CA.
On January 18, 2006, the CA promulgated the
assailed Decision in CA-G.R. SP. Nos. 86256,
86394 and 00047. The dispositive portion of the CA
decision reads,
WHEREFORE, premises considered, judgment is
hereby rendered by US DISMISSING the instant
consolidated petitions. The assailed decision of the
Office of the Ombudsman-Visayas dated May 3,
2004 in OMB-V-A-02-0415-H is hereby AFFIRMED
with a modification that petitioner Olaivar be held
administratively liable for gross neglect of duty
which carries the same penalty as provided for
dishonesty. No pronouncement as to costs.
Meanwhile, Apit interposes the following arguments

in his petition:
I. THE COURT OF APPEALS ERRED IN LIMITING
ADMINISTRATIVE DUE PROCESS AS AN
OPPORTUNITY TO BE HEARD ONLY.
II. THE COURT OF APPEALS ERRED IN
CONCLUDING THE DEFENSE OF PETITIONER
APIT AS MERE DENIAL.
III. THE COURT OF APPEALS ERRED IN ITS
FAILURE TO RECONSIDER THE EVIDENCE
THAT
CLEARLY
PROVED
THAT
THE
SIGNATURES
ABOVE
THE
NAME
OF
PETITIONER APIT IN THE QUESTIONED
RECEIPTS ARE ALL FORGED AND FALSIFIED.
29
SO ORDERED. 26
According to the CA, it was unbelievable that from
1998 to 2001, Cabalit and Apit performed vital
functions by routinely signing LTO official receipts
but did not have any knowledge of the irregularity in
their office. With regard to Olaivar, the CA believed
that the tampering of the receipts could have been
avoided had he exercised the required diligence in
the performance of his duties. Thus, the CA held
him liable merely for gross neglect of duty. ACTEHI
Petitioners sought reconsideration of the CA
decision, but the CA denied their motions. 27
Hence, they filed the instant petitions before the
Court.
In her petition, petitioner Cabalit argues that
I. THE HONORABLE COURT OF APPEALS
GRAVELY
ERRED
IN
AFFIRMING
THE
OMBUDSMAN'S
DECISION
WHICH
GAVE
RETROACTIVE
EFFECT
TO
THE
NEW
As for Olaivar, he assails the CA Decision raising

the following issues:
I. WHETHER THE HONORABLE COURT OF
APPEALS
ERRED
IN
FINDING
THAT
PETITIONER LEONARDO G. OLAIVAR IS
ADMINISTRATIVELY LIABLE FOR GROSS
NEGLIGENCE.
II. WHETHER THE HONORABLE COURT OF
APPEALS ERRED WHEN IT HELD THAT
PETITIONER LEONARDO G. OLAIVAR WAS NOT
DENIED DUE PROCESS WHEN THE OFFICE OF
THE OMBUDSMAN VISAYAS FOUND HIM
GUILTY FOR DISHONESTY AND METED OUT
196
THE PENALTY OF DISMISSAL FROM SERVICE.

30
Statutes regulating the procedure of the courts will

be construed as applicable to actions pending and
undetermined at the time of their passage.
Procedural laws are retroactive in that sense and to
that extent. The fact that procedural statutes may
somehow affect the litigants' rights may not
preclude their retroactive application to pending
actions. The retroactive application of procedural
laws is not violative of any right of a person who
may feel that he is adversely affected. Nor is the
retroactive application of procedural statutes
constitutionally objectionable. The reason is that as
a general rule no vested right may attach to, nor
arise from, procedural laws. It has been held that a
person has no vested right in any particular
remedy, and a litigant cannot insist on the
application to the trial of his case, whether civil or
criminal, of any other than the existing rules of
procedure. (Emphasis supplied.)
On January 15, 2008, said petitions were

consolidated. 31
Essentially, the issues for our resolution are: (1)
whether there was a violation of the right to due
process when the hearing officer at the Office of the
Ombudsman-Visayas adopted the procedure under
A.O. No. 17 notwithstanding the fact that the said
amendatory order took effect after the hearings had
started; and (2) whether Cabalit, Apit and Olaivar
are administratively liable.
As regards the first issue, petitioners claim that they
were denied due process of law when the
investigating lawyer proceeded to resolve the case
based only on the affidavits and other evidence on
record without conducting a formal hearing. They
lament that the case was submitted for decision
without giving them opportunity to present
witnesses and cross-examine the witnesses
against them. Petitioner Cabalit also argues that
the Office of the Ombudsman erred in applying the
amendments under A.O. No. 17 to the trial of the
case, which was already in progress under the old
procedures under A.O. No. 07. She stressed that
under A.O. No. 07, she had the right to choose
whether to avail of a formal investigation or to
submit the case for resolution on the basis of the
evidence on record. Here, she was not given such
option and was merely required to submit her
position paper.
Petitioners'
arguments
deserve
scant
consideration.
Suffice to say, petitioners were not denied due
process of law when the investigating lawyer
proceeded to resolve the case based on the
affidavits and other evidence on record. Section 5
(b) (1) 32 Rule 3, of the Rules of Procedure of the
Office of the Ombudsman, as amended by A.O. No.
17, plainly provides that the hearing officer may
issue an order directing the parties to file, within ten
days from receipt of the order, their respective
verified position papers on the basis of which, along
with the attachments thereto, the hearing officer
may consider the case submitted for decision. It is
only when the hearing officer determines that
based on the evidence, there is a need to conduct
clarificatory hearings or formal investigations under
Section 5 (b) (2) and Section 5 (b) (3) that such
further proceedings will be conducted. But the
determination of the necessity for further
proceedings rests on the sound discretion of the
hearing officer. As the petitioners have utterly failed
to show any cogent reason why the hearing
officer's determination should be overturned, the
determination will not be disturbed by this Court.
We likewise find no merit in their contention that the
new procedures under A.O. No. 17, which took
effect while the case was already undergoing trial
before the hearing officer, should not have been
applied. SCEHaD
The rule in this jurisdiction is that one does not
have a vested right in procedural rules. In Tan, Jr. v.
Court of Appeals, 33 the Court elucidated:
While the rule admits of certain exceptions, such as

when the statute itself expressly or by necessary
implication provides that pending actions are
excepted from its operation, or where to apply it
would impair vested rights, petitioners failed to
show that application of A.O. No. 17 to their case
would cause injustice to them. Indeed, in this case,
the Office of the Ombudsman afforded petitioners
every opportunity to defend themselves by allowing
them to submit counter-affidavits, position papers,
memoranda and other evidence in their defense.
Since petitioners have been afforded the right to be
heard and to defend themselves, they cannot
rightfully complain that they were denied due
process of law. Well to remember, due process, as
a constitutional precept, does not always and in all
situations require a trial-type proceeding. It is
satisfied when a person is notified of the charge
against him and given an opportunity to explain or
defend himself. In administrative proceedings, the
filing of charges and giving reasonable opportunity
for the person so charged to answer the
accusations against him constitute the minimum
requirements of due process. More often, this
opportunity is conferred through written pleadings
that the parties submit to present their charges and
defenses. 34 But as long as a party is given the
opportunity to defend his or her interests in due
course, said party is not denied due process. 35
Neither is there merit to Cabalit's assertion that she
should have been investigated under the old rules
of procedure of the Office of the Ombudsman, and
not under the new rules. In Marohomsalic v. Cole,
36 we clarified that the Office of the Ombudsman
has only one set of rules of procedure and that is
A.O. No. 07, series of 1990, as amended. There
have been various amendments made thereto but it
has remained, to date, the only set of rules of
procedure governing cases filed in the Office of the
Ombudsman. Hence, the phrase as amended is
correctly appended to A.O. No. 7 every time it is
invoked. A.O. No. 17 is just one example of these
amendments.
197
But did the CA correctly rule that petitioners Cabalit

and Apit are liable for dishonesty while petitioner
Olaivar is liable for gross neglect of duty?
Cabalit argues that the CA erred in affirming the
decision of the Ombudsman finding her liable for
dishonesty. She asserts that it was not established
by substantial evidence that the forged signatures
belong to her. Meanwhile, Apit contends that the
CA erred in not considering evidence which proves
that the signatures appearing above his name are
falsified. However, we note that both Cabalit and
Apit raise essentially factual issues which are not
proper in petitions filed under Rule 45. Settled
jurisprudence dictates that subject to a few
exceptions, only questions of law may be brought
before the Court via a petition for review on
certiorari. In Diokno v. Cacdac, 37 the Court held:
. . . [T]he scope of this Court's judicial review of
decisions of the Court of Appeals is generally
confined only to errors of law, and questions of fact
are not entertained. We elucidated on our fidelity to
this rule, and we said:
the factual findings of the Ombudsman which are

affirmed by the CA.
As for Olaivar, he insists that the CA erred in
holding him administratively liable for gross
negligence when he relied to a reasonable extent
and in good faith on the actions of his subordinates
in the preparation of the applications for
registration. He questions the appellate court's
finding that he failed to exercise the required
diligence in the performance of his duties.
While as stated above, the general rule is that
factual findings of the CA are not reviewable by this
Court, we find that Olaivar's case falls in one of the
recognized exceptions laid down in jurisprudence
since the CA's findings regarding his liability are
premised on the supposed absence of evidence but
contradicted by the evidence on record. 42
The Office of the Ombudsman-Visayas found
Olaivar administratively liable for dishonesty while
the CA ruled that he may not be held liable for
dishonesty supposedly for lack of sufficient
evidence. The CA ruled that there was no
substantial evidence to show that Olaivar
participated in the scheme, but the tampering of the
official receipts could have been avoided had he
exercised the required diligence in the performance
of his duties as officer-in-charge of the Jagna
District Office. Thus, the CA found him liable only
for gross neglect of duty. This, however, is clear
error on the part of the CA.
For one, there is clear evidence that Olaivar was
involved in the anomalies. Witness Joselito Taladua
categorically declared in his affidavit 43 that he
personally paid Olaivar the sum of P2,675 for the
renewal of registration of a jeep for which he was
issued Official Receipt No. 47699853. Much to his
dismay, Taladua later found out that his payment
was not reflected correctly in the Report of
Collections, and that the vehicle was deemed
unregistered for the year 2000. HSCATc
More, Cabalit pointed to Olaivar as the person
behind the anomaly in the LTO-Jagna District
Office. She narrated in her position paper that on
several times, Olaivar directly accommodated some
registrants and assumed the functions of computer
evaluator, typist and cashier, and computed the
fees, received payment and prepared the official
receipts for those transactions. She also revealed
that Olaivar would ask her for unused official
receipts and would later return the duplicate copies
to her with the cash collections. Later, he would
verify the Report of Collections as correct. 44
Likewise, Motor Vehicle Inspector Engr. Lowell A.
Dano confirmed that in several instances, he
witnessed Olaivar type the data himself in the
official receipts even if they have a typist in the
office to do the job. Engr. Dano added that after
typing,
Olaivar
personally
brought
the
accomplished official receipts for him (Engr. Dano)
to sign. 45
Moreover, Jacinto Jalop, the records officer of the
LTO in Jagna, Bohol, illustrated how the official
receipts were tampered. He disclosed that the
correct charges were typed in the Owner's copy
and the Plate Release copy of the official receipts,
Thus, only questions of law may be brought by the

parties and passed upon by this Court in the
exercise of its power to review. Also, judicial review
by this Court does not extend to a reevaluation of
the sufficiency of the evidence upon which the
proper . . . tribunal has based its determination.
(Emphasis supplied.)
It is aphoristic that a re-examination of factual
findings cannot be done through a petition for
review on certiorari under Rule 45 of the Rules of
Court because this Court is not a trier of facts; it
reviews only questions of law. The Supreme Court
is not duty-bound to analyze and weigh again the
evidence considered in the proceedings below. 38
Here, the CA affirmed the findings of fact of the
Office of the Ombudsman-Visayas which are
supported by substantial evidence such as
affidavits of witnesses and copies of the tampered
official receipts. 39 The CA found that a perusal of
the questioned receipts would easily reveal the
discrepancies between the date, name and vehicle
in the Owner's or Plate Release copies and the
File, Auditor, and Regional Office copies. It upheld
the factual findings of the Ombudsman that
petitioners Cabalit and Apit tampered with the
duplicates of the official receipts to make it appear
that they collected a lesser amount. Their
participation was found to have been indispensable
as the irregularities could not have been committed
without their participation. They also concealed the
misappropriation of public funds by falsifying the
receipts.
Now, superior courts are not triers of facts. When
the findings of fact of the Ombudsman are
supported by substantial evidence, it should be
considered as conclusive. 40 This Court recognizes
the expertise and independence of the
Ombudsman and will avoid interfering with its
findings absent a finding of grave abuse of
discretion. 41 Hence, being supported by
substantial evidence, we find no reason to disturb
198
but a much lower charge and an incorrect address

were indicated in the other copies. He asserted that
Olaivar was responsible for tampering the official
receipts. 46
Neglect of duty implies only the failure to give
proper attention to a task expected of an employee
arising from either carelessness or indifference. 47
However, the facts of this case show more than a
failure to mind one's task. Rather, they manifest
that Olaivar committed acts of dishonesty, which is
defined as the concealment or distortion of truth in
a matter of fact relevant to one's office or
connected with the performance of his duty. It
implies a disposition to lie, cheat, deceive, or
defraud; untrustworthiness; lack of integrity; lack of
honesty, probity, or integrity in principle. 48 Hence,
the CA should have found Olaivar liable for
dishonesty.
But be that as it may, still, the CA correctly imposed
the proper penalty upon Olaivar. Under Section 52,
Rule IV of the Uniform Rules on Administrative
Cases in the Civil Service, dishonesty, like gross
neglect of duty, is classified as a grave offense
punishable by dismissal even if committed for the
first time. 49 Under Section 58, 50 such penalty
likewise carries with it the accessory penalties of
cancellation of civil service eligibility, forfeiture of
retirement benefits and disqualification from reemployment in the government service.
One final note. Cabalit contends that pursuant to
the obiter in Tapiador v. Office of the Ombudsman,
51 the Office of the Ombudsman can only
recommend administrative sanctions and not
directly impose them. However, in Office of the
Ombudsman v. Masing, 52 this Court has already
settled the issue when we ruled that the power of
the Ombudsman to determine and impose
administrative
liability
is
not
merely
recommendatory but actually mandatory. We held,
We reiterated this ruling in Office of the
Ombudsman v. Laja, where we emphasized that
the Ombudsman's order to remove, suspend,
demote, fine, censure, or prosecute an officer or
employee
is
not
merely
advisory
or
recommendatory but is actually mandatory.
Implementation of the order imposing the penalty
is, however, to be coursed through the proper
officer. Recently, in Office of the Ombudsman v.
Court of Appeals, we also held
In Office of the Ombudsman v. Court of Appeals,

we held that the exercise of such power is well
founded in the Constitution and R.A. No. 6770,
otherwise known as The Ombudsman Act of 1989,
thus:
The Court further explained in Ledesma that the
mandatory character of the Ombudsman's order
imposing a sanction should not be interpreted as
usurpation of the authority of the head of office or
any officer concerned. This is because the power of
the Ombudsman to investigate and prosecute any
illegal act or omission of any public official is not an
exclusive authority but a shared or concurrent
authority in respect of the offense charged. By
stating
therefore
that
the
Ombudsman
recommends the action to be taken against an
erring officer or employee, the provisions in the
Constitution and in Republic Act No. 6770 intended
that the implementation of the order be coursed
through the proper officer.
'While Section 15(3) of RA 6770 states that the

Ombudsman has the power to recommend . . .
removal, suspension, demotion . . . of government
officials and employees, the same Section 15(3)
also states that the Ombudsman in the alternative
may enforce its disciplinary authority as provided
in Section 21 of RA 6770.' (emphasis supplied.) 53
(3) Direct the officer concerned to take appropriate

action against a public officer or employee at fault
or who neglects to perform an act or discharge a
duty required by law, and recommend his removal,
suspension,
demotion,
fine,
censure,
or
prosecution, and ensure compliance therewith; or
enforce its disciplinary authority as provided in
Section 21 of this Act: Provided, That the refusal by
any officer without just cause to comply with an
order of the Ombudsman to remove, suspend,
demote, fine, censure or prosecute an officer or
employee who is at fault or who neglects to perform
an act or discharge a duty required by law shall be
a ground for disciplinary action against said officer.
DHcEAa
Consequently in Ledesma, the Court affirmed the

appellate court's decision which had, in turn,
affirmed an order of the Office of the Ombudsman
imposing the penalty of suspension on the erring
public official. 56
The duty and privilege of the Ombudsman to act as
protector of the people against the illegal and unjust
acts of those who are in the public service emanate
from no less than the 1987 Constitution. Section 12
of Article XI thereof states:
Section 12. The Ombudsman and his Deputies, as
protectors of the people, shall act promptly on
complaints filed in any form or manner against
public officials or employees of the Government, or
any subdivision, agency or instrumentality thereof,
including
government-owned
or
controlled
corporations, and shall, in appropriate cases, notify
the complainants of the action taken and the result
thereof.
In addition, Section 15 (3) of R.A. No. 6770,
provides:
SEC. 15. Powers, Functions and Duties. The
Office of the Ombudsman shall have the following
powers, functions and duties:
xxx xxx xxx
Subsequently, in Ledesma v. Court of Appeals, 54

and Office of the Ombudsman v. Court of Appeals,
55 the Court upheld the Ombudsman's power to
impose the penalty of removal, suspension,
demotion, fine, censure, or prosecution of a public
officer or employee found to be at fault in the
exercise of its administrative disciplinary authority.
199
WHEREFORE, the petitions for review on certiorari

are DENIED. The assailed Decision dated January
18, 2006 and Resolution dated September 21,
2007 of the Court of Appeals in CA-G.R. SP. Nos.
86256, 86394 and 00047 are AFFIRMED with
MODIFICATION. Petitioner Leonardo G. Olaivar is
held administratively liable for DISHONESTY and
meted the penalty of dismissal from the service as
well as the accessory penalties inherent to said
penalty.
With costs against petitioners.
SO ORDERED.
Corona, C.J., Carpio, Velasco, Jr., Leonardo-de
Castro, Peralta, Bersamin, Del Castillo, Abad,
Villarama, Jr., Perez, Mendoza, Sereno, Reyes,
and Perlas-Bernabe, JJ., concur.
Brion, J., on official leave.
||| (Cabalit v. Commission on Audit - Region VII,
G.R. Nos. 180236, 180341 & 180342, [January 17,
2012], 679 PHIL 138-165)
xxx xxx xxx

Section 19 of R.A. No. 6770 grants to the
Ombudsman the authority to act on all
administrative complaints:
SEC. 19. Administrative Complaints. The
Ombudsman shall act on all complaints relating, but
not limited to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable,
discriminatory;
unfair,
oppressive
or
(3) Are inconsistent with the general course of an

agency's functions, though in accordance with law;
(4) Proceed from a mistake of law or an arbitrary
ascertainment of facts;
(5) Are in the exercise of discretionary powers but
for an improper purpose; or
11. YLAYA VS. GACOTT 689 SCRA 452

(2013)
(6) Are otherwise irregular, immoral or devoid of

justification.
SECOND DIVISION
[A.C. No. 6475. January 30, 2013.]
In the exercise of his duties, the Ombudsman is

given full administrative disciplinary authority. His
power is not limited merely to receiving, processing
complaints, or recommending penalties. He is to
conduct investigations, hold hearings, summon
witnesses and require production of evidence and
place respondents under preventive suspension.
This includes the power to impose the penalty of
removal, suspension, demotion, fine, or censure of
a public officer or employee. 57
The provisions in R.A. No. 6770 taken together
reveal the manifest intent of the lawmakers to
bestow on the Office of the Ombudsman full
administrative
disciplinary
authority.
These
provisions cover the entire gamut of administrative
adjudication which entails the authority to, inter alia,
receive complaints, conduct investigations, hold
hearings in accordance with its rules of procedure,
summon witnesses and require the production of
documents, place under preventive suspension
public officers and employees pending an
investigation, determine the appropriate penalty
imposable on erring public officers or employees as
warranted by the evidence, and, necessarily,
impose the said penalty. 58 Thus, it is settled that
the Office of the Ombudsman can directly impose
administrative sanctions.
We find it worthy to state at this point that public
service requires integrity and discipline. For this
reason, public servants must exhibit at all times the
highest sense of honesty and dedication to duty. By
the very nature of their duties and responsibilities,
public officers and employees must faithfully
adhere to hold sacred and render inviolate the
constitutional principle that a public office is a public
trust; and must at all times be accountable to the
people, serve them with utmost responsibility,
integrity, loyalty and efficiency. 59
FE A. YLAYA, complainant, vs. ATTY. GLENN

CARLOS GACOTT, respondent.
DECISION
BRION, J p:
For the Court's consideration is the disbarment
complaint 1 filed by Fe A. Ylaya (complainant)
against Atty. Glenn Carlos Gacott (respondent) who
allegedly deceived the complainant and her late
husband, Laurentino L. Ylaya, into signing a
"preparatory" Deed of Sale that the respondent
converted into a Deed of Absolute Sale in favor of
his relatives.
After the submission of the respondent's comment
to the complaint, the Court referred the complaint to
the Commission on Bar Discipline of the Integrated
Bar of the Philippines (IBP) for investigation,
evaluation and recommendation.
The complainant alleged that she and her late
husband are the registered owners of two (2)
parcels of land covered by Transfer Certificate of
Title (TCT) Nos. 162632 and 162633 located at
Barangay Sta. Lourdes, Puerto Princesa City. Prior
to the acquisition of these properties, TCT No.
162632 (property) was already the subject of
expropriation proceedings filed by the City
Government of Puerto Princesa (City Government)
on May 23, 1996 against its former registered
owner, Cirilo Arellano. The expropriation case was
filed with the Regional Trial Court (RTC) of Palawan
and Puerto Princesa, Branch 95, and was docketed
as Civil Case No. 2902. The RTC already fixed the
price and issued an order for the City Government
200
to deposit P6,000,000.00 as just compensation for

the property. 2
office. 17 Lastly, he denied violating the Rules on

Notarial Practice. 18
The respondent briefly represented the complainant

and her late husband in the expropriation case as
intervenors for being the new registered owners of
the property. The complainant alleged that the
respondent convinced them to sign a "preparatory
deed of sale" for the sale of the property, but he left
blank the space for the name of the buyer and for
the amount of consideration. The respondent
further alleged that the deed would be used in the
sale to the City Government when the RTC issues
the order to transfer the titles. 3 The respondent
then fraudulently without their knowledge and
consent, and contrary to their understanding
converted the "preparatory deed of sale" into a
Deed of Absolute Sale dated June 4, 2001, 4
selling the subject property to Reynold So and
Sylvia Carlos So for P200,000.00. 5
On September 4, 2006, the respondent filed a

Motion to Resolve or Decide the Case dated
August 24, 2006 praying for the early resolution of
the complaint. 19
On December 5, 2006, the complainant filed an Ex
Parte Motion to Withdraw the Verified Complaint
and to Dismiss the Case dated November 14,
2006. 20 IcCEDA
On February 28, 2008, the complainant executed
an Affidavit 21 affirming and confirming the
existence, genuineness and due execution of the
Deed of Absolute Sale notarized on March 6, 2000;
22 the Memorandum of Agreement (MOA) dated
April 19, 2000; 23 and the Deed of Absolute Sale
notarized in 2001. 24 The respondent submitted
this Affidavit to the IBP as an attachment to his
Motion for Reconsideration of April 21, 2008. 25
The complainant denied that she and Laurentino

were paid the P200,000.00 purchase price or that
they would sell the property "for such a measly
sum" when they stood to get at least P6,000,000.00
as just compensation. 6 aDcHIC
The IBP's Findings

In her Report and Recommendation dated
November 19, 2007, IBP Commissioner Anna
Caridad Sazon-Dupaya found the respondent
administratively liable for violating Canon 1, Rule
1.01 (A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct) and Canon
16 ("A lawyer shall hold in trust all moneys and
properties of his client that may come into his
possession) of the Code of Professional
Responsibility, and Section 3 (c), Rule IV of A.M.
No. 02-8-13-SC (2004 Rules on Notarial Practice).
26 She recommended his suspension from the
practice of law for a period of six (6) months. 27
The complainant also claimed that the respondent

notarized the Deed of Absolute Sale dated June 4,
2001 even though Reynold and Sylvia (his mother's
sister) are his uncle and his aunt, respectively. 7
The respondent denied all the allegations in the
complaint. 8
The respondent argued that the complainant's
greed to get the just compensation 9 caused her to
file this "baseless, unfounded [and] malicious"
disbarment case. 10 He claimed that the sale was
their voluntary transaction and that he "simply
ratified the document." 11 He also claimed that
Reynold and Laurentino had originally jointly
purchased the properties from Cirilo Arellano on
July 10, 2000; that they were co-owners for some
time; and that Laurentino subsequently sold his
share to Reynold under a Deed of Absolute Sale
dated June 4, 2001. 12
In its Resolution No. XVIII-2007-302 28 dated

December 14, 2007, the IBP Board of Governors
adopted the IBP Commissioner's finding, but
increased the penalty imposed to two (2) years
suspension and a warning:
RESOLVED to ADOPT and APPROVE, as it is
hereby unanimously ADOPTED and APPROVED,
with modification, the Report and Recommendation
of the Investigating Commissioner [in] the aboveentitled case, herein made part of this Resolution
as Annex "A"; and, finding the recommendation
fully supported by the evidence on record and the
applicable laws and rules, and considering
respondent's violations of Canon 1, [Rule] 1.01 and
Canon 16 of the Code of Professional
Responsibility and Rule IV, Sec. 39(c) of A.M. No.
02-8-13-SC (2004 Rules on Notarial Practice), Atty.
Glenn Carlos Gacott is hereby SUSPENDED from
practice of law for two (2) years with a Warning that
commission of a similar offense will be dealt with
more severely. [emphases supplied] cCTAIE
The respondent specifically denied asking the

complainant and her late husband to execute any
"preparatory deed of sale" in favor of the City
Government. 13 He also denied that the Deed of
Absolute Sale contained blanks when they signed
it. 14 That he filed for the spouses Ylaya and
Reynold an opposition to the just compensation the
RTC fixed proved that there was no agreement to
use the document for the expropriation case. 15 He
also argued that it was clear from the document
that the intended buyer was a natural person, not a
juridical person, because there were spaces for the
buyer's legal age, marital status, and citizenship, 16
and he was even constrained to file a subsequent
Motion to Intervene on behalf of Reynold because
the complainant "maliciously retained" the TCTs to
the subject properties after borrowing them from his
On May 8, 2008, the respondent filed a Motion for

Reconsideration dated April 21, 2008, attaching,
among others, a copy of the complainant's Affidavit
dated February 27, 2008, admitting the existence,
201
genuineness and due execution of the Deed of

Absolute Sale between Cirilo and Laurentino; the
MOA between Laurentino and Reynold; the Deed of
Absolute Sale between Laurentino and Reynold;
and the Compromise Agreement between Reynold
and the complainant dated November 14, 2006 for
the expropriation case. 29
The Court's Ruling

We set aside the findings and recommendations of
the IBP Commissioner and those of the IBP Board
of Governors finding the respondent liable for
violating Canon 1, Rules 1.01 and Section 3 (c),
Rule IV of A.M. No. 02-8-13-SC. 34
We however hold the respondent liable for violating
Canon 16 of the Code of Professional
Responsibility for being remiss in his obligation to
hold in trust his client's properties. We likewise find
him liable for violation of (1) Canon 15, Rule 15.03
for representing conflicting interests without the
written consent of the represented parties, thus,
violating the rule on conflict of interests; and (2)
Canon 18, Rule 18.03 for neglecting a legal matter
entrusted to him. ScaATD
On September 4, 2008, the respondent filed a

Manifestation with the Supreme Court, requesting
that the IBP be directed to resolve his Motion for
Reconsideration. 30
By Resolution No. XIX-2010-545 dated October 8,
2010, 31 the IBP Board of Governors denied the
respondent's Motion for Reconsideration for failing
to raise any new substantial matter or any cogent
reason to warrant a reversal or even a modification
of its Resolution No. XVIII-2007-302. 32
a. Due process violation

The most basic tenet of due process is the right to
be heard. Denial of due process means the total
lack of opportunity to be heard or to have one's day
in court. As a rule, no denial of due process takes
place where a party has been given an opportunity
to be heard and to present his case; 35 what is
prohibited is the absolute lack of opportunity to be
heard.
On March 14, 2012, the respondent filed a Petition

for Review (on appeal) assailing the IBP's findings,
as follows: 33
a) In conveniently concluding that the Deed of
Absolute Sale was pre-signed and fraudulently
notarized without requiring Fe Ylaya to adduce
evidence in a formal hearing thus, violated the
respondent's right to due process as he was not
able to cross-examine her. This is not to mention
that the complainant failed to offer corroborative
proof to prove her bare allegations;
The respondent claims that the IBP violated his

right to due process because he was not given the
"amplest opportunity to defend himself, to cross
examine the witness [complainant], to object to the
admissibility of documents or present controverting
evidence" 36 when the IBP rendered its conclusion
without requiring the complainant to adduce
evidence in a formal hearing and despite the
absence of corroborative proof. He insists that
these defects rendered the complainant's
allegations as hearsay, and the IBP's report,
recommendation or resolution null and void.
b) In sweepingly and arbitrarily disregarded/skirted

(sic) the public documents (MOA and 2 other
DOAS) duly executed by the parties therein and
notarized by the respondent;
c) In totally ignoring the complainant's Affidavit
admitting the genuineness and due execution of the
Deed of Absolute Sale in issue;
Although the respondent failed to have a face-toface confrontation with the complainant when she
failed to appear at the required mandatory
conference on October 6, 2005, 37 the records
reveal that the respondent fully participated during
the entire proceedings and submitted numerous
pleadings, including evidence, before the IBP. He
was even allowed to file a motion for
reconsideration supported by his submitted
evidence, which motion the IBP considered and
ruled upon in its Resolution No. XIX-2010-545
dated October 8, 2010. 38
d) In arbitrarily concluding the absence of coownership by Reynold So and Fe Ylaya of the

subject lots despite the existence of a notarized
MOA clearly showing the co-ownership of Ylaya
and So; and
e) In finding the respondent/appellant's act of
notarizing the DOAS as contrary to the notarial
rules[.]
The Issues
From the assigned errors, the complainant poses
the following issues:
In Alliance of Democratic Free Labor Organization

v. Laguesma, 39 we held that due process, as
applied to administrative proceedings, is the
opportunity to explain one's side. In Samalio v.
Court of Appeals, 40 due process in an
administrative context does not require trial-type
proceedings similar to those in courts of justice.
Where the opportunity to be heard, either through
oral arguments or through pleadings, is accorded,
no denial of procedural due process takes place.
The requirements of due process are satisfied
(1) whether the IBP violated the respondent's right

to due process; and
(2) whether the evidence presented supports a
finding that the respondent is administratively liable
for violating Canon 1, Rule 1.01 and Canon 16 of
the Code of Professional Responsibility, and
Section 3 (c), Rule IV of A.M. No. 02-8-13-SC.
202
where the parties are afforded a fair and

reasonable opportunity to explain their side of the
controversy at hand. EcTDCI
has not filed her verified position paper thus,

waived her right to file the same; DSCIEa
4. There being no other genuine issues to be heard
in this case as all the defenses and counterarguments are supported by documentary
evidence, it is most respectfully prayed that the
instant case be resolved on its merits or be ordered
dismissed for lack of merit without further hearing;
Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the

President, 41 we held that "[d]ue process, as a
constitutional precept, does not always, and in all
situations, require a trial-type proceeding. Litigants
may be heard through pleadings, written
explanations, position papers, memoranda or oral
arguments. The standard of due process that must
be met in administrative tribunals allows a certain
degree of latitude[, provided that] fairness is not
ignored. It is, therefore, not legally objectionable for
being violative of due process, for an administrative
agency to resolve a case based solely on position
papers, affidavits or documentary evidence
submitted by the parties." 42
5. Further, considering that there is an on-going

case in Branch 52 of the Regional Trial Court of
Palawan in Civil Case No. 2902 for Expropriation
involving the same property, and such fact was
deliberately omitted by the complainant in her
Verified Complaint as shown in the certification of
non-forum shopping, the outright dismissal of this
case is warranted, hence, this motion; and
In this case, the respondent's failure to crossexamine the complainant is not a sufficient ground
to support the claim that he had not been afforded
due process. The respondent was heard through
his pleadings, his submission of alleged
controverting evidence, and his oral testimony
during the October 6, 2005 mandatory conference.
These pleadings, evidence and testimony were
received and considered by the IBP Commissioner
when she arrived at her findings and
recommendation, and were the bases for the IBP
Board's Resolution.
6. This is meant to expedite the termination of this

case. 44 (underscore ours; italics supplied)
Finally, we note Section 11, Rule 139-B of the
Rules of Court which provides that:
No defect in a complaint, notice, answer, or in the
proceeding or the Investigator's Report shall be
considered as substantial unless the Board of
Governors, upon considering the whole record,
finds that such defect has resulted or may result in
a miscarriage of justice, in which event the Board
shall take such remedial action as the
circumstances may warrant, including invalidation
of the entire proceedings.
Moreover, "any seeming defect in the observance

[of due process] is cured by the filing of a motion for
reconsideration. [A] [d]enial of due process cannot
be successfully invoked by a party who has had the
opportunity to be heard on his motion for
reconsideration. Undoubtedly [in this case], the
requirement of the law was afforded to [the]
respondent." 43
In this case, the IBP Commissioner's findings were

twice reviewed by the IBP Board of Governors
the first review resulted in Resolution No. XVIII2007-302 45 dated December 14, 2007, affirming
the IBP Commissioner's findings, but modifying the
penalty; the second review resulted in Resolution
No. XIX-2010-545 dated October 8, 2010, 46
denying
the
respondent's
motion
for
reconsideration. In both instances, the IBP Board of
Governors found no defect or miscarriage of justice
warranting a remedial action or the invalidation of
the proceedings.
We also note that the respondent, on a Motion to

Resolve or Decide the Case dated August 24,
2006, submitted his case to the IBP for its
resolution without any further hearings. The motion,
filed almost one year after the mandatory
conference on October 6, 2005, significantly did not
contain any statement regarding a denial of due
process. In effect, the respondent himself waived
his cross-examination of the complainant when he
asked the IBP Board of Governors to resolve the
case based on the pleadings and the evidence on
record. To quote his own submission:
We emphasize that disciplinary proceedings

against lawyers are sui generis in that they are
neither purely civil nor purely criminal; they involve
investigations by the Court into the conduct of one
of its officers, 47 not the trial of an action or a suit.
EIAHcC
1. On June 30, 2004[,] a complaint was filed in this

case;
Disciplinary proceedings against lawyers are sui

generis. Neither purely civil nor purely criminal, they
do not involve a trial of an action or a suit, but is
rather an investigation by the Court into the conduct
of one of its officers. Not being intended to inflict
punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a
prosecutor therein. It may be initiated by the Court
motu proprio. Public interest is its primary objective,
and the real question for determination is whether
2. On October 19, 2004[,] the respondent filed his

comment with all its attachments denying all the
allegations in the complaint;
3. On June 23, 2005[,] the respondent filed his
position paper. On April 28, 2006[,] the respondent
also filed his supplemental position paper. By
contrast, up to this date, the complainant/petitioner
203
or not the attorney is still a fit person to be allowed

the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a
member of the Bar to account for his actuations as
an officer of the Court with the end in view of
preserving the purity of the legal profession and the
proper and honest administration of justice by
purging the profession of members who by their
misconduct have proved themselves no longer
worthy to be entrusted with the duties and
responsibilities pertaining to the office of an
attorney. In such posture, there can thus be no
occasion to speak of a complainant or a prosecutor.
[emphases deleted]
The undersigned, after a careful evaluation of the

evidence presented by both parties, finds that the
charges of the complainant against the respondent
are worthy of belief based on the following:
First, the allegation of the respondent that Reynold
So was actually co-owner of spouses Ylanas (sic)
in the properties subject of the Deed of Sale
between Felix Arellano and Spouses Ylanas (sic) is
hard to believe despite the presentation of the
Memorandum of Agreement.
It is elementary in Rules of Evidence that when the
contents of a written document are put in issue, the
best evidence would be the document itself. In the
Deed of Sale between Felix Arellano and Spouses
Ylanas (sic), the buyer of the subject properties is
only Laurentino L. Ylaya married to Fe A. Ylaya.
The document does not state that Reynold So was
likewise a buyer together with Laurentino Ylaya, or
that the former paid half of the purchase price.
The complainant in disbarment cases is not a direct

party to the case but a witness who brought the
matter to the attention of the Court. 48 Flowing from
its sui generis character, it is not mandatory to have
a formal hearing in which the complainant must
adduce evidence.
From all these, we find it clear that the complainant
is not indispensable to the disciplinary proceedings
and her failure to appear for cross-examination or
to provide corroborative evidence of her allegations
is of no merit. What is important is whether, upon
due investigation, the IBP Board of Governors finds
sufficient evidence of the respondent's misconduct
to warrant the exercise of its disciplinary powers.
Also, it is hard for this Commission to believe that

Reynold So, assisted by a lawyer at that and who
allegedly paid half of the purchase price, would not
insist for the inclusion of his name in the Deed of
Sale as well as the Transfer Certificate of Title
subsequently issued.
The Memorandum of Agreement between [the]
spouses Ylaya and Reynold So produced by the
respondent [cannot] overturn the belief of this
Commission considering that the Memorandum of
Agreement was executed more than a month
AFTER the Deed of Sale between Felix Arellano
and the Ylayas was notarized. This is not to
mention the fact that the complainant denied ever
having executed the Memorandum of Agreement. A
close examination of the signatories in the said
Memorandum of Agreement would reveal that
indeed, the alleged signatures of the complainant
and her husband are not the same with their
signatures in other documents.
b. Merits of the Complaint

"In administrative cases against lawyers, the
quantum of proof required is preponderance of
evidence which the complainant has the burden to
discharge." 49 Preponderance of evidence means
that the evidence adduced by one side is, as a
whole, superior to or has a greater weight than that
of the other. It means evidence which is more
convincing to the court as worthy of belief
compared to the presented contrary evidence.
Under Section 1, Rule 133 of the Rules of Court,in
determining whether preponderance of evidence
exists, the court may consider the following: (a) all
the facts and circumstances of the case; (b) the
witnesses' manner of testifying, their intelligence,
their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts to
which they testify, and the probability or
improbability of their testimony; (c) the witnesses'
interest or want of interest, and also their personal
credibility so far as the same may ultimately appear
in the trial; and (d) the number of witnesses,
although it does not mean that preponderance is
necessarily with the greater number. 50 By law, a
lawyer enjoys the legal presumption that he is
innocent of the charges against him until the
contrary is proven, and that as an officer of the
court, he is presumed to have performed his duties
in accordance with his oath. 51 CSDAIa
Assuming, for the sake of argument, that the

Memorandum of Agreement is valid, thereby
making Laurentino Ylaya and co-owner Reynold So
co-owners of the subject properties (Please see
Annex "B" of respondent's Comment), this
Commission finds it hard to believe Laurentino
Ylaya would sell it to Reynold So for P200,000 . . .
when his minimum expenses for the purchase
thereof is already P225,000.00 and he was
expecting to receive P7,000,000.00, more or less.
That would mean that if Reynold So and the
complainant were co-owners, the P7,000,000.00
would then be equally divided among them at
P3,500,000.00 each, far above the P200,000.00
selling price reflected in the pre-signed Deed of
Sale.
As to the second issue, this Commission believes
that the respondent committed serious error in
notarizing the Deed of Sale and the Memorandum
of Agreement between his uncle Reynold So and
The IBP Commissioner set out her findings as

follows:
204
Laurentino Ylaya based on Rule IV, Section 3 (c) of

A.M. No. 02-8-13-SC which provides as follows:
Reynold, in his Affidavit dated October 11, 2004,

confirms that there was a co-ownership between
him and Laurentino; that Laurentino decided to sell
his half of the property to Reynold because he
(Laurentino) had been sickly and in dire need of
money to pay for his medical bills; that Laurentino
agreed to the price of P200,000.00 as this was
almost the same value of his investment when he
and Reynold jointly acquired the property; and that
the sale to Reynold was with the agreement and
consent of the complainant who voluntarily signed
the Deed of Sale. 60
"Sec. 3. Disqualifications. a notary public is

disqualified from performing a notarial act if he:
(a) . . . .
(b) . . . .
(c) is a spouse, common-law partner, ancestor,
descendant, or relative by affinity or consanguinity
of the principal within the fourth civil degree."
After examining the whole record of the case, we

agree with the respondent and find the evidence
insufficient to prove the charge that he violated
Canon 1, Rule 1.01 of the Code of Professional
Responsibility and Section 3 (c), Rule IV of A.M.
No. 02-8-13-SC. Specifically, (1) the evidence
against the respondent fails to show the alleged
fraudulent and deceitful acts he has taken to
mislead the complainant and her husband into
signing a "preparatory deed of sale" and the
conversion into a Deed of Absolute Sale dated
June 4, 2001 in favor of Reynold; and (2) no
prohibition exists against the notarization of a
document in which any of the parties interested is
the notary's relative within the 4th civil degree, by
affinity or consanguinity, at that time the respondent
notarized the documents.
The defense therefore of the respondent that he did

not violate the aforementioned Rule because his
uncle Reynold So, the buyer is not the principal in
the Subject Deed of Sale but the seller Laurentino
Ylaya (please see page 3 of the respondent's
Supplemental Position Paper) is misplaced.
Clearly[,] both the buyer and the seller in the instant
case are considered principals in the contract
entered into.
Furthermore, if we are to consider the argument of
the respondent that his uncle was not a principal so
as to apply the afore-quoted provision of the Rules,
the respondent still violated the Rules when he
notarized the subject Memorandum of Agreement
between Laurentino Ylaya and his uncle Reynold
So. Clearly, both complainant and Reynold So were
principal parties in the said Memorandum of
Agreement. 52
In her Report and Recommendation, 61 the IBP

Commissioner concluded that the respondent is
liable for deceit and fraud because he failed to
prove the existence of a co-ownership between
Laurentino and Reynold; in her opinion, the
signatures of the complainant and of her husband
on the MOA "are not the same with their signatures
in other documents." 62 THIASE
The
respondent
argues
that
the
IBP
Commissioner's findings are contrary to the
presented evidence, specifically to the MOA
executed
by
Laurentino
and
Reynold
acknowledging the existence of a co-ownership; 53
to the complainant's Ex Parte Motion to Withdraw
the Verified Complaint and to Dismiss the Case
dated November 14, 2006 where she stated that
the parties have entered into a compromise
agreement in Civil Case No. 2902, and that the
disbarment
complaint
arose
from
a
misunderstanding, miscommunication and improper
appreciation of facts; 54 to her Affidavit dated
February 27, 2008 55 affirming and confirming the
existence, genuineness and due execution of the
Deed of Absolute Sale notarized on March 6, 2000;
56 and to the Deed of Absolute Sale notarized in
2001. 57 IHSTDE
We do not agree with this finding. While the facts of

this case may raise some questions regarding the
respondent's legal practice, we nevertheless found
nothing constituting clear evidence of the
respondent's specific acts of fraud and deceit. His
failure to prove the existence of a co-ownership
does not lead us to the conclusion that the MOA
and the Deed of Absolute Sale dated June 4, 2001
are spurious and that the respondent was
responsible for creating these spurious documents.
We are further persuaded, after noting that in
disregarding the MOA, the IBP Commissioner failed
to specify what differences she observed in the
spouses Ylaya's signatures in the MOA and what
documents were used in comparison.
In all, the respondent claims that these cited pieces

of evidence prove that this administrative complaint
against him is fabricated, false and untrue. He also
points to Atty. Robert Peneyra, the complainant's
counsel in this administrative case, as the hand
behind the complaint. 58 According to the
respondent, Atty. Peneyra harbors ill-will against
him and his family after his father filed several
administrative cases against Atty. Peneyra, one of
which resulted in the imposition of a warning and a
reprimand on Atty. Peneyra. 59
Apart from her allegations, the complainant's

pieces of evidence consist of TCT Nos. 162632 and
162633; 63 her Motion for Leave to Intervene in
Civil Case No. 2902 dated May 17, 2000; 64 the
RTC order in Civil Case No. 2902 dated November
6, 2000 fixing the price of just compensation; 65 the
Deed of Absolute Sale dated June 4, 2001; 66 the
spouses Ylaya's Verified Manifestation dated
September 2, 2002, filed with the RTC in Civil Case
205
No. 2902, assailing the Motion to Deposit Just

Compensation filed by the respondent on behalf of
Reynold and manifesting the sale between
Laurentino and Reynold; 67 the Provincial
Prosecutor's Subpoena to the complainant in
connection with the respondent's complaint for libel;
68 the respondent's complaint for libel against the
complainant dated August 27, 2003; 69 the
complainant's Counter Affidavit dated March 26,
2004 against the charge of libel; 70 and the
respondent's letter to the Provincial Attorney of
Palawan dated April 5, 2004, requesting for "official
information regarding the actual attendance of Atty.
ROBERT Y. PENEYRA" at an MCLE seminar. 71
or consanguinity. Thus, we must likewise dismiss

the charge for violation of A.M. No. 02-8-13-SC.
STcEaI
We do not see these documentary pieces of

evidence as proof of specific acts constituting
deceit or fraud on the respondent's part. The
documents by themselves are neutral and, at the
most, show the breakdown of the attorney-client
relationship between the respondent and the
complainant. It is one thing to allege deceit and
misconduct, and it is another to demonstrate by
evidence the specific acts constituting these
allegations. 72
A lawyer shall not represent conflicting interests

except by written consent of all concerned given
after a full disclosure of the facts. [emphasis ours]
c. Liability under Canons 15, 16 and 18

We find the respondent liable under Canon 15,
Rule 15.03 for representing conflicting interests
without the written consent of all concerned,
particularly the complainant; under Canon 16 for
being remiss in his obligation to hold in trust his
client's properties; and under Canon 18, Rule 18.03
for neglecting a legal matter entrusted to him.
Canon 15, Rule 15.03 states:
The relationship between a lawyer and his client

should ideally be imbued with the highest level of
trust and confidence. Necessity and public interest
require that this be so. Part of the lawyer's duty to
his client is to avoid representing conflicting
interests. He is duty bound to decline professional
employment, no matter how attractive the fee
offered may be, if its acceptance involves a
violation of the proscription against conflict of
interest, or any of the rules of professional conduct.
Thus, a lawyer may not accept a retainer from a
defendant after he has given professional advice to
the plaintiff concerning his claim; nor can he accept
employment from another in a matter adversely
affecting any interest of his former client. It is his
duty to decline employment in any of these and
similar circumstances in view of the rule prohibiting
representation of conflicting interests. 78
We reiterate that in disbarment proceedings, the

burden of proof is on the complainant; the Court
exercises its disciplinary power only if the
complainant establishes her case by clear,
convincing, and satisfactory evidence. 73
Preponderance of evidence means that the
evidence adduced by one side is, as a whole,
superior to or has a greater weight than that of the
other party. When the pieces of evidence of the
parties are evenly balanced or when doubt exists
on the preponderance of evidence, the equipoise
rule dictates that the decision be against the party
carrying the burden of proof. 74
The proscription against representation of

conflicting interest applies "even if the lawyer would
not be called upon to contend for one client that
which the lawyer has to oppose for the other, or
that there would be no occasion to use the
confidential information acquired from one to the
disadvantage of the other as the two actions are
wholly unrelated." 79 The sole exception is
provided in Canon 15, Rule 15.03 of the Code of
Professional Responsibility if there is a written
consent from all the parties after full disclosure.
In this case, we find that the complainant's

evidence and the records of the case do not show
the respondent's deliberate fraudulent and deceitful
acts. In the absence of such proof, the complaint
for fraud and deceit under Canon 1, Rule 1.01 of
the Code of Professional Responsibility must
perforce be dismissed.
We note that the respondent has not squarely
addressed the issue of his relationship with
Reynold, whom the complainant alleges to be the
respondent's uncle because Reynold is married to
the respondent's maternal aunt. 75 However, this is
of no moment as the respondent cannot be held
liable for violating Section 3 (c), Rule IV of A.M. No.
02-8-13-SC because the Deed of Absolute Sale
dated June 4, 2001 76 and the MOA dated April 19,
2000 77 were notarized by the respondent prior to
the effectivity of A.M. No. 02-8-13-SC on July 6,
2004. The notarial law in force in the years 20002001 was Chapter 11 of Act No. 2711 (the Revised
Administrative Code of 1917) which did not contain
the present
prohibition
against
notarizing
documents where the parties are related to the
notary public within the 4th civil degree, by affinity
Based on the records, we find substantial evidence

to hold the respondent liable for violating Canon 15,
Rule 15.03 of the Code of Professional
Responsibility. The facts of this case show that the
respondent retained clients who had close dealings
with each other. The respondent admits to acting as
legal counsel for Cirilo Arellano, the spouses Ylaya
and Reynold at one point during the proceedings in
Civil Case No. 2902. 80 Subsequently, he
represented only Reynold in the same proceedings,
81 asserting Reynold's ownership over the property
against all other claims, including that of the
spouses Ylaya. 82
206
We find no record of any written consent from any

of the parties involved and we cannot give the
respondent the benefit of the doubt in this regard.
We find it clear from the facts of this case that the
respondent retained Reynold as his client and
actively opposed the interests of his former client,
the complainant. He thus violated Canon 15, Rule
15.03 of the Code of Professional Responsibility.
ETHaDC
Responsibility. Similar to Canoy, the respondent

clearly failed in this case in his duty to his client
when, without any explanation, he failed to file the
Motion for Leave to Intervene on behalf of the
spouses Ylaya. Under the circumstances, we find
that there was want of diligence; without sufficient
justification, this is sufficient to hold the respondent
liable for violating Canon 18, Rule 18.03 of the
Code of Professional Responsibility.
We affirm the IBP Commissioner's finding that the

respondent violated Canon 16. The respondent
admits to losing certificates of land titles that were
entrusted to his care by Reynold. 83 According to
the respondent, the complainant "maliciously
retained" the TCTs over the properties sold by
Laurentino to Reynold after she borrowed them
from his office. 84 Reynold confirms that the TCTs
were taken by the complainant from the
respondent's law office. 85
d. The Complainant's Ex Parte Motion to Withdraw

the Verified Complaint and to Dismiss the Case and
her Affidavit
We are aware of the complainant's Ex Parte Motion
to Withdraw the Verified Complaint and to Dismiss
the Case dated November 14, 2006 90 and her
Affidavit 91 affirming and confirming the existence,
genuineness and due execution of the Deed of
Absolute Sale notarized on March 6, 2000. 92 The
complainant explains that the parties have entered
into a compromise agreement in Civil Case No.
2902, and that this disbarment complaint was filed
because
of
a
"misunderstanding,
miscommunication and improper appreciation of
facts"; 93 she erroneously accused the respondent
of ill motives and bad intentions, but after being
enlightened, she is convinced that he has no
personal or pecuniary interests over the properties
in Civil Case No. 2902; that such misunderstanding
was due to her unfamiliarity with the transactions of
her late husband during his lifetime. 94 The
complainant now pleads for the respondent's
forgiveness, stating that he has been her and her
late husband's lawyer for over a decade and affirms
her trust and confidence in him. 95 We take note
that under their Compromise Agreement dated
November 14, 2006 for the expropriation case, 96
the complainant and Reynold equally share the just
compensation, which have since increased to
P10,000,000.00. CSaIAc
The respondent is reminded that his duty under

Canon 16 is to "hold in trust all moneys and
properties of his client that may come into his
possession." Allowing a party to take the original
TCTs of properties owned by another an act that
could result in damage should merit a finding of
legal malpractice. While we note that it was his
legal staff who allowed the complainant to borrow
the TCTs and it does not appear that the
respondent was aware or present when the
complainant borrowed the TCTs, 86 we
nevertheless hold the respondent liable, as the
TCTs were entrusted to his care and custody; he
failed to exercise due diligence in caring for his
client's properties that were in his custody.
We likewise find the respondent liable for violating
Canon 18, Rule 18.03 for neglecting a legal matter
entrusted to him. Despite the respondent's
admission that he represented the complainant and
her late husband in Civil Case No. 2902 and that he
purportedly filed a Motion for Leave to Intervene in
their behalf, the records show that he never filed
such a motion for the spouses Ylaya. The
complainant herself states that she and her late
husband were forced to file the Motion for Leave to
Intervene on their own behalf. The records of the
case, which include the Motion for Leave to
Intervene filed by the spouses Ylaya, support this
conclusion. 87
While the submitted Ex Parte Motion to Withdraw

the Verified Complaint and to Dismiss the Case and
the Affidavit appear to exonerate the respondent,
complete exoneration is not the necessary legal
effect as the submitted motion and affidavit are
immaterial for purposes of the present proceedings.
Section 5, Rule 139-B of the Rules of Court states
that, "No investigation shall be interrupted or
terminated by reason of the desistance, settlement,
compromise, restitution, withdrawal of charges, or
failure of the complainant to prosecute the same."
Canon 18, Rule 18.03 requires that a lawyer "shall

not neglect a legal matter entrusted to him, and his
negligence in connection [therewith] shall render
him liable." What amounts to carelessness or
negligence in a lawyer's discharge of his duty to his
client is incapable of an exact formulation, but the
Court has consistently held that the mere failure of
a lawyer to perform the obligations due his client is
per se a violation. 88
In Angalan v. Delante, 97 despite the Affidavit of

Desistance, we disbarred the respondent therein
for taking advantage of his clients and for
transferring the title of their property to his name. In
Bautista v. Bernabe, 98 we revoked the lawyer's
notarial commission, disqualified him from
reappointment as a notary public for two years, and
suspended him from the practice of law for one
year for notarizing a document without requiring the
affiant to personally appear before him. In this cited
case, we said:
In Canoy v. Ortiz, 89 we held that a lawyer's failure

to file a position paper was per se a violation of
207
Complainant's desistance or withdrawal of the

complaint does not exonerate respondent or put an
end to the administrative proceedings. A case of
suspension or disbarment may proceed regardless
of interest or lack of interest of the complainant.
What matters is whether, on the basis of the facts
borne out by the record, the charge of deceit and
grossly immoral conduct has been proven. This rule
is premised on the nature of disciplinary
proceedings. A proceeding for suspension or
disbarment is not a civil action where the
complainant is a plaintiff and the respondent lawyer
is a defendant. Disciplinary proceedings involve no
private interest and afford no redress for private
grievance. They are undertaken and prosecuted
solely for the public welfare. They are undertaken
for the purpose of preserving courts of justice from
the official ministration of persons unfit to practice
in them. The attorney is called to answer to the
court for his conduct as an officer of the court. The
complainant or the person who called the attention
of the court to the attorney's alleged misconduct is
in no sense a party, and has generally no interest in
the outcome except as all good citizens may have
in the proper administration of justice. 99
The Supreme Court exercises exclusive jurisdiction

to regulate the practice of law. 102 It exercises
such disciplinary functions through the IBP, but it
does not relinquish its duty to form its own
judgment. Disbarment proceedings are exercised
under the sole jurisdiction of the Supreme Court,
and the IBP's recommendations imposing the
penalty of suspension from the practice of law or
disbarment are always subject to this Court's
review and approval.
In sum, in administrative proceedings against

lawyers,
the
complainant's
desistance
or
withdrawal does not terminate the proceedings.
This is particularly true in the present case where
pecuniary consideration has been given to the
complainant as a consideration for her desistance.
We note in this regard that she would receive
P5,000,000.00, or half of the just compensation
under the Compromise Agreement, 100 and thus
agreed to withdraw all charges against the
respondent. 101 From this perspective, we
consider the complainant's desistance to be
suspect; it is not grounded on the fact that the
respondent did not commit any actual misconduct;
rather, because of the consideration, the
complainant is now amenable to the position of the
respondent and/or Reynold. TICDSc
WHEREFORE, premises considered, we set aside

Resolution No. XVIII-2007-302 dated December 14,
2007 and Resolution No. XIX-2010-545 dated
October 8, 2010 of the IBP Board of Governors,
and find respondent Atty. Glenn Carlos Gacott
GUILTY of violating Rule 15.03 of Canon 15,
Canon 16, and Rule 18.03 of Canon 18 of the Code
of Professional Responsibility. As a penalty, he is
SUSPENDED from the practice of law for one (1)
year, with a WARNING that a repetition of the same
or similar act will be dealt with more severely.
The Penalty
In Solidon v. Macalalad, 103 we imposed the
penalty of suspension of six (6) months from the
practice of law on the respondent therein for his
violation of Canon 18, Rule 18.03 and Canon 16,
Responsibility. In Josefina M. Anion v. Atty.
Clemencio Sabitsana, Jr., 104 we suspended the
respondent therein from the practice of law for one
(1) year, for violating Canon 15, Rule 15.03 of the
Code of Professional Responsibility. Under the
circumstances, we find a one (1) year suspension
to be a sufficient and appropriate sanction against
the respondent.
SO ORDERED.
Carpio, Del Castillo, Perez and Perlas-Bernabe,
JJ., concur.
||| (Ylaya v. Gacott, A.C. No. 6475, [January 30,
2013], 702 PHIL 390-421)
e. Procedural aspect
We remind all parties that resolutions from the IBP
Board of Governors are merely recommendatory
and do not attain finality without a final action from
this Court. Section 12, Rule 139-B is clear on this
point that:
D. DUE PROCESS AND POLICE POWER

1. WHITE LIGHT CORP. VS. CITY OF
MANILA 576 SCRA 1416 (2009)
Section 12. Review and decision by the Board of

Governors.
EN BANC
[G.R. No. 122846. January 20, 2009.]
xxx xxx xxx

WHITE LIGHT CORPORATION, TITANIUM
CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, petitioners, vs.
CITY OF MANILA, represented by MAYOR
ALFREDO S. LIM, respondent.
(b) If the Board, by the vote of a majority of its total

membership, determines that the respondent
should be suspended from the practice of law or
disbarred, it shall issue a resolution setting forth its
findings and recommendations which, together with
the whole record of the case, shall forthwith be
transmitted to the Supreme Court for final action.
DECISION
TINGA, J p:
208
With another city ordinance of Manila also

principally involving the tourist district as subject,
the Court is confronted anew with the incessant
clash between government power and individual
liberty in tandem with the archetypal tension
between law and morality. CcaASE
In City of Manila v. Laguio, Jr., 1 the Court affirmed
the nullification of a city ordinance barring the
operation of motels and inns, among other
establishments, within the Ermita-Malate area. The
petition at bar assails a similarly-motivated city
ordinance that prohibits those same establishments
from offering short-time admission, as well as prorated or "wash up" rates for such abbreviated stays.
Our earlier decision tested the city ordinance
against our sacred constitutional rights to liberty,
due process and equal protection of law. The same
parameters apply to the present petition.
This Petition 2 under Rule 45 of the Revised Rules
on Civil Procedure, which seeks the reversal of the
Decision 3 in C.A.-G.R. S.P. No. 33316 of the Court
of Appeals, challenges the validity of Manila City
Ordinance No. 7774 entitled, "An Ordinance
Prohibiting Short-Time Admission, Short-Time
Admission Rates, and Wash-Up Rate Schemes in
Hotels, Motels, Inns, Lodging Houses, Pension
Houses, and Similar Establishments in the City of
Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim
(Mayor Lim) signed into law the Ordinance. 4 The
Ordinance is reproduced in full, hereunder:
SEC. 1. Declaration of Policy. It is hereby the
declared policy of the City Government to protect
the best interest, health and welfare, and the
morality of its constituents in general and the youth
in particular.
exceeding one (1) year or both such fine and

imprisonment at the discretion of the court;
Provided, That in case of [a] juridical person, the
president, the manager, or the persons in charge of
the operation thereof shall be liable: Provided,
further, That in case of subsequent conviction for
the same offense, the business license of the guilty
party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions
of City ordinances not consistent with or contrary to
this measure or any portion hereof are hereby
deemed repealed.
SEC. 7. Effectivity. This ordinance shall take
effect immediately upon approval.
Enacted by the city Council of Manila at its regular
session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3,
1992.
On December 15, 1992, the Malate Tourist and
Development Corporation (MTDC) filed a complaint
for declaratory relief with prayer for a writ of
preliminary injunction and/or temporary restraining
order (TRO) 5 with the Regional Trial Court (RTC)
of Manila, Branch 9 impleading as defendant,
herein respondent City of Manila (the City)
represented by Mayor Lim. 6 MTDC prayed that the
Ordinance, insofar as it includes motels and inns as
among its prohibited establishments, be declared
invalid and unconstitutional. MTDC claimed that as
owner and operator of the Victoria Court in Malate,
Manila it was authorized by Presidential Decree
(P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates
for stays of only three hours. DACTSa
On December 21, 1992, petitioners White Light
Corporation (WLC), Titanium Corporation (TC) and
Sta. Mesa Tourist and Development Corporation
(STDC) filed a motion to intervene and to admit
attached complaint-in-intervention 7 on the ground
that the Ordinance directly affects their business
interests as operators of drive-in hotels and motels
in Manila. 8 The three companies are components
of the Anito Group of Companies which owns and
operates several hotels and motels in Metro Manila.
9
On December 23, 1992, the RTC granted the
motion to intervene. 10 The RTC also notified the
Solicitor General of the proceedings pursuant to
then Rule 64, Section 4 of the Rules of Court. On
the same date, MTDC moved to withdraw as
plaintiff. 11 ADTCaI
On December 28, 1992, the RTC granted MTDC's
motion to withdraw. 12 The RTC issued a TRO on
January 14, 1993, directing the City to cease and
desist from enforcing the Ordinance. 13 The City
filed an Answer dated January 22, 1993 alleging
that the Ordinance is a legitimate exercise of police
power. 14
On February 8, 1993, the RTC issued a writ of
preliminary injunction ordering the city to desist
SEC. 2. Title. This ordinance shall be known as

"An Ordinance" prohibiting short time admission in
hotels, motels, lodging houses, pension houses
and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time
admission and rate [sic], wash-up rate or other
similarly concocted terms, are hereby prohibited in
hotels, motels, inns, lodging houses, pension
houses and similar establishments in the City of
Manila. aDECHI
SEC. 4. Definition of Term[s]. Short-time
admission shall mean admittance and charging of
room rate for less than twelve (12) hours at any
given time or the renting out of rooms more than
twice a day or any other term that may be
concocted by owners or managers of said
establishments but would mean the same or would
bear the same meaning.
SEC. 5. Penalty Clause. Any person or
corporation who shall violate any provision of this
ordinance shall upon conviction thereof be
punished by a fine of Five Thousand (P5,000.00)
Pesos or imprisonment for a period of not
209
from the enforcement of the Ordinance. 15 A month

later, on March 8, 1993, the Solicitor General filed
his Comment arguing that the Ordinance is
constitutional.
During the pre-trial conference, the WLC, TC and
STDC agreed to submit the case for decision
without trial as the case involved a purely legal
question. 16 On October 20, 1993, the RTC
rendered a decision declaring the Ordinance null
and void. The dispositive portion of the decision
reads:
WHEREFORE, in view of all the foregoing,
[O]rdinance No. 7774 of the City of Manila is
hereby declared null and void.
pesos fine or six months imprisonment, or both

such fine and imprisonment for a single offense. 23
Petitioners argued that the Ordinance is
unconstitutional and void since it violates the right
to privacy and the freedom of movement; it is an
invalid exercise of police power; and it is an
unreasonable and oppressive interference in their
business. acIHDA
The Court of Appeals reversed the decision of the
RTC and affirmed the constitutionality of the
Ordinance. 24 First, it held that the Ordinance did
not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or
operators of establishments that admit individuals
for short time stays. Second, the virtually limitless
reach of police power is only constrained by having
a lawful object obtained through a lawful method.
The lawful objective of the Ordinance is satisfied
since it aims to curb immoral activities. There is a
lawful method since the establishments are still
allowed to operate. Third, the adverse effect on the
establishments is justified by the well-being of its
constituents in general. Finally, as held in ErmitaMalate Motel Operators Association v. City Mayor
of Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via petition
for review on certiorari. 25 In their petition and
Memorandum, petitioners in essence repeat the
assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an
invalid exercise of police power.
Accordingly, the preliminary injunction heretofor

issued is hereby made permanent.
SO ORDERED. 17
The RTC noted that the ordinance "strikes at the
personal liberty of the individual guaranteed and
jealously guarded by the Constitution." 18
Reference was made to the provisions of the
Constitution encouraging private enterprises and
the incentive to needed investment, as well as the
right to operate economic enterprises. Finally, from
the observation that the illicit relationships the
Ordinance sought to dissuade could nonetheless
be consummated by simply paying for a 12-hour
stay, the RTC likened the law to the ordinance
annulled in Ynot v. Intermediate Appellate Court, 19
where the legitimate purpose of preventing
indiscriminate slaughter of carabaos was sought to
be effected through an inter-province ban on the
transport of carabaos and carabeef. ITSCED
The City later filed a petition for review on certiorari
with the Supreme Court. 20 The petition was
docketed as G.R. No. 112471. However in a
resolution dated January 26, 1994, the Court
treated the petition as a petition for certiorari and
referred the petition to the Court of Appeals. 21
Before the Court of Appeals, the City asserted that
the Ordinance is a valid exercise of police power
pursuant to Section 458 (4) (iv) of the Local
Government Code which confers on cities, among
other local government units, the power:
[To] regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging
houses and other similar establishments, including
tourist guides and transports. 22
II.
We must address the threshold issue of petitioners'
standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their
business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the
equal protection rights of their clients are also being
interfered with. Thus, the crux of the matter is
whether or not these establishments have the
requisite standing to plead for protection of their
patrons' equal protection rights. aTcSID
Standing or locus standi is the ability of a party to
demonstrate to the court sufficient connection to
and harm from the law or action challenged to
support that party's participation in the case. More
importantly, the doctrine of standing is built on the
principle of separation of powers, 26 sparing as it
does unnecessary interference or invalidation by
the judicial branch of the actions rendered by its coequal branches of government.
The requirement of standing is a core component of
the judicial system derived directly from the
Constitution. 27 The constitutional component of
standing doctrine incorporates concepts which
concededly are not susceptible of precise definition.
28 In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious
cause, as well as the standard test for a petitioner's
standing. 29 In a similar vein, the United States
Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing
The Ordinance, it is argued, is also a valid exercise

of the power of the City under Article III, Section 18
(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and
proper for the sanitation and safety, the furtherance
of the prosperity and the promotion of the morality,
peace, good order, comfort, convenience and
general welfare of the city and its inhabitants, and
such others as be necessary to carry into effect and
discharge the powers and duties conferred by this
Chapter; and to fix penalties for the violation of
ordinances which shall not exceed two hundred
210
requirements of injury, causation, and redressability

in Allen v. Wright. 30
Nonetheless, the general rules on standing admit of
several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and,
especially in the Philippines, the doctrine of
transcendental importance. 31
For this particular set of facts, the concept of third
party standing as an exception and the overbreadth
doctrine are appropriate. In Powers v. Ohio, 32 the
United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on
behalf of third parties, provided three important
criteria are satisfied: the litigant must have suffered
an 'injury-in-fact', thus giving him or her a
"sufficiently concrete interest" in the outcome of the
issue in dispute; the litigant must have a close
relation to the third party; and there must exist
some hindrance to the third party's ability to protect
his or her own interests". 33 Herein, it is clear that
the business interests of the petitioners are likewise
injured by the Ordinance. They rely on the
patronage of their customers for their continued
viability which appears to be threatened by the
enforcement of the Ordinance. The relative silence
in constitutional litigation of such special interest
groups in our nation such as the American Civil
Liberties Union in the United States may also be
construed as a hindrance for customers to bring
suit. 34
American jurisprudence is replete with examples
where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or
equal protection claims of other persons or classes
of persons injured by state action. In Griswold v.
Connecticut, 35 the United States Supreme Court
held that physicians had standing to challenge a
reproductive health statute that would penalize
them as accessories as well as to plead the
constitutional protections available to their patients.
The Court held that:
"The rights of husband and wife, pressed here, are
likely to be diluted or adversely affected unless
those rights are considered in a suit involving those
who have this kind of confidential relation to them."
36
freedom of speech, the overbreadth doctrine

applies when a statute needlessly restrains even
constitutionally guaranteed rights. 39 In this case,
the petitioners claim that the Ordinance makes a
sweeping intrusion into the right to liberty of their
clients. We can see that based on the allegations in
the petition, the Ordinance suffers from
overbreadth.
We thus recognize that the petitioners have a right
to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate"
time frame.
III.
To students of jurisprudence, the facts of this case
will recall to mind not only the recent City of Manila
ruling, but our 1967 decision in Ermita-Malate Hotel
and Motel Operations Association, Inc. v. Hon. City
Mayor of Manila. 40 Ermita-Malate concerned the
City ordinance requiring patrons to fill up a
prescribed form stating personal information such
as name, gender, nationality, age, address and
occupation before they could be admitted to a
motel, hotel or lodging house. This earlier
ordinance was precisely enacted to minimize
certain practices deemed harmful to public morals.
A purpose similar to the annulled ordinance in City
of Manila which sought a blanket ban on motels,
inns and similar establishments in the ErmitaMalate area. However, the constitutionality of the
ordinance in Ermita-Malate was sustained by the
Court.
The common thread that runs through those
decisions and the case at bar goes beyond the
singularity of the localities covered under the
respective ordinances. All three ordinances were
enacted with a view of regulating public morals
including particular illicit activity in transient lodging
establishments. This could be described as the
middle case, wherein there is no wholesale ban on
motels and hotels but the services offered by these
establishments have been severely restricted. At its
core, this is another case about the extent to which
the State can intrude into and regulate the lives of
its citizens. ESDHCa
The test of a valid ordinance is well established. A
long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not
only be within the corporate powers of the local
government unit to enact and pass according to the
procedure prescribed by law, it must also conform
to the following substantive requirements: (1) must
not contravene the Constitution or any statute; (2)
must not be unfair or oppressive; (3) must not be
partial or discriminatory; (4) must not prohibit but
may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be
unreasonable. 41
The Ordinance prohibits two specific and distinct
business practices, namely wash rate admissions
and renting out a room more than twice a day. The
ban is evidently sought to be rooted in the police
power as conferred on local government units by
the Local Government Code through such
implements as the general welfare clause.
A.
An even more analogous example may be found in

Craig v. Boren, 37 wherein the United States
Supreme Court held that a licensed beverage
vendor has standing to raise the equal protection
claim of a male customer challenging a statutory
scheme prohibiting the sale of beer to males under
the age of 21 and to females under the age of 18.
The United States High Court explained that the
vendors had standing "by acting as advocates of
the rights of third parties who seek access to their
market or function". 38 HacADE
Assuming arguendo that petitioners do not have a
relationship with their patrons for the former to
assert the rights of the latter, the overbreadth
doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect
permitted to raise the rights of third parties.
Generally applied to statutes infringing on the
211
Police power, while incapable of an exact definition,

has been purposely veiled in general terms to
underscore its comprehensiveness to meet all
exigencies and provide enough room for an
efficient and flexible response as the conditions
warrant. 42 Police power is based upon the
concept of necessity of the State and its
corresponding right to protect itself and its people.
43 Police power has been used as justification for
numerous and varied actions by the State. These
range from the regulation of dance halls, 44 movie
theaters, 45 gas stations 46 and cockpits. 47 The
awesome scope of police power is best
demonstrated by the fact that in its hundred or so
years of presence in our nation's legal system, its
use has rarely been denied.
The apparent goal of the Ordinance is to minimize if
not eliminate the use of the covered establishments
for illicit sex, prostitution, drug use and alike. These
goals, by themselves, are unimpeachable and
certainly fall within the ambit of the police power of
the State. Yet the desirability of these ends do not
sanctify any and all means for their achievement.
Those means must align with the Constitution, and
our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands
as a rebuke to the seductive theory of Macchiavelli,
and, sometimes even, the political majorities
animated by his cynicism. ETDHaC
Even as we design the precedents that establish
the framework for analysis of due process or equal
protection questions, the courts are naturally
inhibited by a due deference to the co-equal
branches of government as they exercise their
political functions. But when we are compelled to
nullify executive or legislative actions, yet another
form of caution emerges. If the Court were
animated by the same passing fancies or turbulent
emotions that motivate many political decisions,
judicial integrity is compromised by any perception
that the judiciary is merely the third political branch
of government. We derive our respect and good
standing in the annals of history by acting as
judicious and neutral arbiters of the rule of law, and
there is no surer way to that end than through the
development of rigorous and sophisticated legal
standards through which the courts analyze the
most fundamental and far-reaching constitutional
questions of the day.
B.
The primary constitutional question that confronts
us is one of due process, as guaranteed under
Section 1, Article III of the Constitution. Due
process evades a precise definition. 48 The
purpose of the guaranty is to prevent arbitrary
governmental encroachment against the life, liberty
and property of individuals. The due process
guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and
partnerships are protected by the guaranty insofar
as their property is concerned. cAaTED
restrictions on government, "procedural due

process"
and
"substantive
due
process".
Procedural due process refers to the procedures
that the government must follow before it deprives
a person of life, liberty, or property. 49 Procedural
due process concerns itself with government action
adhering to the established process when it makes
an intrusion into the private sphere. Examples
range from the form of notice given to the level of
formality of a hearing.
If due process were confined solely to its
procedural aspects, there would arise absurd
situation of arbitrary government action, provided
the proper formalities are followed. Substantive due
process completes the protection envisioned by the
due process clause. It inquires whether the
government has sufficient justification for depriving
a person of life, liberty, or property. 50
The question of substantive due process, moreso
than most other fields of law, has reflected
dynamism in progressive legal thought tied with the
expanded acceptance of fundamental freedoms.
Police power, traditionally awesome as it may be, is
now confronted with a more rigorous level of
analysis before it can be upheld. The vitality though
of constitutional due process has not been
predicated on the frequency with which it has been
utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the
prerogatives of the State. Instead, the due process
clause has acquired potency because of the
sophisticated methodology that has emerged to
determine the proper metes and bounds for its
application.
C.
The general test of the validity of an ordinance on
substantive due process grounds is best tested
when assessed with the evolved footnote 4 test laid
down by the U.S. Supreme Court in U.S. v.
Carolene Products. 51 Footnote 4 of the Carolene
Products case acknowledged that the judiciary
would defer to the legislature unless there is a
discrimination against a "discrete and insular"
minority or infringement of a "fundamental right". 52
Consequently, two standards of judicial review were
established: strict scrutiny for laws dealing with
freedom of the mind or restricting the political
process, and the rational basis standard of review
for economic legislation. aITECA
A third standard, denominated as heightened or
immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based
on gender 53 and legitimacy. 54 Immediate scrutiny
was adopted by the U.S. Supreme Court in Craig,
55 after the Court declined to do so in Reed v.
Reed. 56 While the test may have first been
articulated in equal protection analysis, it has in the
United States since been applied in all substantive
due process cases as well.
We ourselves have often applied the rational basis
test mainly in analysis of equal protection
challenges. 57 Using the rational basis
examination, laws or ordinances are upheld if they
rationally further a legitimate governmental interest.
58 Under intermediate review, governmental
The due process guaranty has traditionally been

interpreted as imposing two related but distinct
212
interest is extensively examined and the availability

of less restrictive measures is considered. 59
Applying strict scrutiny, the focus is on the
presence of compelling, rather than substantial,
governmental interest and on the absence of less
restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances,
strict scrutiny refers to the standard for determining
the quality and the amount of governmental interest
brought to justify the regulation of fundamental
freedoms. 60 Strict scrutiny is used today to test
the validity of laws dealing with the regulation of
speech, gender, or race as well as other
fundamental rights as expansion from its earlier
applications to equal protection. 61 The United
States Supreme Court has expanded the scope of
strict scrutiny to protect fundamental rights such as
suffrage, 62 judicial access 63 and interstate travel.
64
If we were to take the myopic view that an
Ordinance should be analyzed strictly as to its
effect only on the petitioners at bar, then it would
seem that the only restraint imposed by the law
which we are capacitated to act upon is the injury to
property sustained by the petitioners, an injury that
would warrant the application of the most
deferential standard the rational basis test. Yet
as earlier stated, we recognize the capacity of the
petitioners to invoke as well the constitutional rights
of their patrons those persons who would be
deprived of availing short time access or wash-up
rates to the lodging establishments in question.
HEaCcD
Viewed cynically, one might say that the infringed
rights of these customers are trivial since they
seem shorn of political consequence. Concededly,
these are not the sort of cherished rights that, when
proscribed, would impel the people to tear up their
cedulas. Still, the Bill of Rights does not shelter
gravitas alone. Indeed, it is those "trivial" yet
fundamental freedoms which the people
reflexively exercise any day without the impairing
awareness of their constitutional consequence
that accurately reflect the degree of liberty enjoyed
by the people. Liberty, as integrally incorporated as
a fundamental right in the Constitution, is not a Ten
Commandments-style enumeration of what may or
what may not be done; but rather an atmosphere of
freedom where the people do not feel labored
under a Big Brother presence as they interact with
each other, their society and nature, in a manner
innately understood by them as inherent, without
doing harm or injury to others.
D.
The rights at stake herein fall within the same
fundamental rights to liberty which we upheld in
City of Manila v. Hon. Laguio, Jr. We expounded on
that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was
defined by Justice Malcolm to include "the right to
exist and the right to be free from arbitrary restraint
or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the
citizen, but is deemed to embrace the right of man
to enjoy the faculties with which he has been
endowed by his Creator, subject only to such

restraint as are necessary for the common welfare."
[ 65 ] In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful
ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept
of liberty. [ 66 ]
The U.S. Supreme Court in the case of Roth v.
Board of Regents, sought to clarify the meaning of
"liberty". It said:
While the Court has not attempted to define with
exactness the liberty . . . guaranteed [by the Fifth
and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the
right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates
of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the
orderly pursuit of happiness by free men. In a
Constitution for a free people, there can be no
doubt that the meaning of "liberty" must be broad
indeed. 67 [Citations omitted] DHSaCA
It cannot be denied that the primary animus behind
the ordinance is the curtailment of sexual behavior.
The City asserts before this Court that the subject
establishments "have gained notoriety as venue of
'prostitution, adultery and fornications' in Manila
since they provide the necessary atmosphere for
clandestine entry, presence and exit and thus
became the 'ideal haven for prostitutes and thrillseekers'". 68 Whether or not this depiction of a
mise-en-scene of vice is accurate, it cannot be
denied that legitimate sexual behavior among
consenting married or consenting single adults
which is constitutionally protected 69 will be
curtailed as well, as it was in the City of Manila
case. Our holding therein retains significance for
our purposes:
The concept of liberty compels respect for the
individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc,
borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing
reduction to unity. His separateness, his isolation,
are indefeasible; indeed, they are so fundamental
that they are the basis on which his civic obligations
are built. He cannot abandon the consequences of
his isolation, which are, broadly speaking, that his
experience is private, and the will built out of that
experience personal to himself. If he surrenders his
will to others, he surrenders himself. If his will is set
by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a
master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right
was recognized in Morfe, the invasion of which
should be justified by a compelling state interest.
213
Morfe accorded recognition to the right to privacy

independently of its identification with liberty; in
itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain
intrusions into the personal life of the citizen. 70
SDIaHE
subjects them without exception to the unjustified

prohibition.
The Court has professed its deep sentiment and
tenderness of the Ermita-Malate area, its longtime
home, 76 and it is skeptical of those who wish to
depict our capital city the Pearl of the Orient
as a modern-day Sodom or Gomorrah for the Third
World set. Those still steeped in Nick Joaquindreams of the grandeur of Old Manila will have to
accept that Manila like all evolving big cities, will
have its problems. Urban decay is a fact of mega
cities such as Manila, and vice is a common
problem confronted by the modern metropolis
wherever in the world. The solution to such
perceived decay is not to prevent legitimate
businesses from offering a legitimate product.
Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus
attracting the dynamism of individuals that would
bring a new grandeur to Manila. IDCcEa
The behavior which the Ordinance seeks to curtail
is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less
intrusive measures such as curbing the proliferation
of prostitutes and drug dealers through active
police work would be more effective in easing the
situation. So would the strict enforcement of
existing laws and regulations penalizing prostitution
and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and
other legitimate merchants. Further, it is apparent
that the Ordinance can easily be circumvented by
merely paying the whole day rate without any
hindrance to those engaged in illicit activities.
Moreover, drug dealers and prostitutes can in fact
collect "wash rates" from their clientele by charging
their customers a portion of the rent for motel
rooms and even apartments.
IV.
We reiterate that individual rights may be adversely
affected only to the extent that may fairly be
required by the legitimate demands of public
interest or public welfare. The State is a leviathan
that must be restrained from needlessly intruding
into the lives of its citizens. However wellintentioned the Ordinance may be, it is in effect an
arbitrary and whimsical intrusion into the rights of
the establishments as well as their patrons. The
Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting
the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash
rates and renting out a room more than twice a day
with immorality without accommodating innocuous
intentions.
The promotion of public welfare and a sense of
morality among citizens deserves the full
endorsement of the judiciary provided that such
measures do not trample rights this Court is sworn
to protect. 77 The notion that the promotion of
public morality is a function of the State is as old as
Aristotle. 78 The advancement of moral relativism
as a school of philosophy does not de-legitimize the
role of morality in law, even if it may foster wider
debate on which particular behavior to penalize. It
We cannot discount other legitimate activities which

the Ordinance would proscribe or impair. There are
very legitimate uses for a wash rate or renting the
room out for more than twice a day. Entire families
are known to choose to pass the time in a motel or
hotel whilst the power is momentarily out in their
homes. In transit passengers who wish to wash up
and rest between trips have a legitimate purpose
for abbreviated stays in motels or hotels. Indeed
any person or groups of persons in need of
comfortable private spaces for a span of a few
hours with purposes other than having sex or using
illegal drugs can legitimately look to staying in a
motel or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a
wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another
constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must
appear that the interests of the public generally, as
distinguished from those of a particular class,
require an interference with private rights and the
means must be reasonably necessary for the
accomplishment of the purpose and not unduly
oppressive of private rights. 71 It must also be
evident that no other alternative for the
accomplishment of the purpose less intrusive of
private rights can work. More importantly, a
reasonable relation must exist between the
purposes of the measure and the means employed
for its accomplishment, for even under the guise of
protecting the public interest, personal rights and
those pertaining to private property will not be
permitted to be arbitrarily invaded. 72
Lacking a concurrence of these requisites, the
police measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v.
Mutuc, the exercise of police power is subject to
judicial review when life, liberty or property is
affected. 73 However, this is not in any way meant
to take it away from the vastness of State police
power whose exercise enjoys the presumption of
validity. 74
Similar to the Comelec resolution requiring
newspapers to donate advertising space to
candidates, this Ordinance is a blunt and heavy
instrument. 75 The Ordinance makes no distinction
between places frequented by patrons engaged in
illicit activities and patrons engaged in legitimate
actions. Thus it prevents legitimate use of places
where illicit activities are rare or even unheard of. A
plain reading of section 3 of the Ordinance shows it
makes no classification of places of lodging, thus
deems them all susceptible to illicit patronage and
214
is conceivable that a society with relatively little

shared morality among its citizens could be
functional so long as the pursuit of sharply variant
moral
perspectives
yields
an
adequate
accommodation of different interests. 79
To be candid about it, the oft-quoted American
maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as
explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts to
legislate morality will fail if they are widely at
variance with public attitudes about right and
wrong. 80 Our penal laws, for one, are founded on
age-old moral traditions, and as long as there are
widely accepted distinctions between right and
wrong, they will remain so oriented. EcHIDT
Yet the continuing progression of the human story
has seen not only the acceptance of the rightwrong distinction, but also the advent of
fundamental liberties as the key to the enjoyment of
life to the fullest. Our democracy is distinguished
from non-free societies not with any more extensive
elaboration on our part of what is moral and
immoral, but from our recognition that the individual
liberty to make the choices in our lives is innate,
and protected by the State. Independent and fairminded judges themselves are under a moral duty
to uphold the Constitution as the embodiment of the
rule of law, by reason of their expression of consent
to do so when they take the oath of office, and
because they are entrusted by the people to uphold
the law. 81
Even as the implementation of moral norms
remains an indispensable complement to
governance, that prerogative is hardly absolute,
especially in the face of the norms of due process
of liberty. And while the tension may often be left to
the courts to relieve, it is possible for the
government to avoid the constitutional conflict by
employing more judicious, less drastic means to
promote morality.
WHEREFORE, the Petition is GRANTED. The
Decision of the Court of Appeals is REVERSED,
and the Decision of the Regional Trial Court of
Manila, Branch 9, is REINSTATED. Ordinance No.
7774 is hereby declared UNCONSTITUTIONAL.
No pronouncement as to costs.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, AustriaMartinez, Corona, Carpio-Morales, Azcuna, ChicoNazario, Velasco, Jr., Nachura and Leonardo-de
Castro, JJ., concur.
Carpio and Peralta, JJ., are on official leave.
THE OFFICE OF THE SOLICITOR GENERAL,

petitioner, vs. AYALA LAND INCORPORATED,
ROBINSON'S LAND CORPORATION, SHANGRILA PLAZA CORPORATION and SM PRIME
HOLDINGS, INC., respondents.
DECISION
CHICO-NAZARIO, J p:
Before this Court is a Petition for Review on
Certiorari, 1 under Rule 45 of the Revised Rules of
Court, filed by petitioner Office of the Solicitor
General (OSG), seeking the reversal and setting
aside of the Decision 2 dated 25 January 2007 of
the Court of Appeals in CA-G.R. CV No. 76298,
which affirmed in toto the Joint Decision 3 dated 29
May 2002 of the Regional Trial Court (RTC) of
Makati City, Branch 138, in Civil Cases No. 001208 and No. 00-1210; and (2) the Resolution 4
dated 14 March 2007 of the appellate court in the
same case which denied the Motion for
Reconsideration of the OSG. The RTC adjudged
that respondents Ayala Land Incorporated (Ayala
Land), Robinsons Land Corporation (Robinsons),
Shangri-la Plaza Corporation (Shangri-la), and SM
Prime Holdings, Inc. (SM Prime) could not be
obliged to provide free parking spaces in their malls
to their patrons and the general public.
Respondents Ayala Land, Robinsons, and Shangrila maintain and operate shopping malls in various
locations in Metro Manila. Respondent SM Prime
constructs, operates, and leases out commercial
buildings and other structures, among which, are
SM City, Manila; SM Centerpoint, Sta. Mesa,
Manila; SM City, North Avenue, Quezon City; and
SM Southmall, Las Pias.
The shopping malls operated or leased out by
respondents have parking facilities for all kinds of
motor vehicles, either by way of parking spaces
inside the mall buildings or in separate buildings
and/or adjacent lots that are solely devoted for use
as parking spaces. Respondents Ayala Land,
Robinsons, and SM Prime spent for the
construction of their own parking facilities.
Respondent Shangri-la is renting its parking
facilities, consisting of land and building specifically
used as parking spaces, which were constructed
for the lessor's account.
Respondents expend for the maintenance and
administration of their respective parking facilities.
They provide security personnel to protect the
vehicles parked in their parking facilities and
maintain order within the area. In turn, they collect
the following parking fees from the persons making
use of their parking facilities, regardless of whether
said persons are mall patrons or not:
Respondent
Parking Fees
Brion, J., is on sick leave.

||| (White Light Corp. v. City of Manila, G.R. No.
122846, [January 20, 2009], 596 PHIL 444-472)
2. OFFICE OF THE SOLICITOR VS. AYALA
600 SCRA 617 (2009)
Ayala Land
On weekdays, P25.00 for the first
four
hours and P10.00 for every succeeding
hour; on weekends, flat rate of P25.00 per
THIRD DIVISION
[G.R. No. 177056. September 18, 2009.]
215
day
the State to protect the interest of the consumers,

promote the general welfare and establish
standards of conduct for business and industry".
Obviously, a contrary interpretation (i.e., justifying
the collection of parking fees) would be going
against the declared policy of R.A. 7394.
Robinsons
P20.00 for the first three hours and
P10.00
for every succeeding hour
Shangri-la
Flat rate of P30.00 per day
SM Prime
P10.00 to P20.00 (depending on
whether
the parking space is outdoors or indoors)
for the first three hours and 59 minutes,
and P10.00 for every succeeding hour or
fraction thereof
The parking tickets or cards issued by respondents
to vehicle owners contain the stipulation that
respondents shall not be responsible for any loss or
damage to the vehicles parked in respondents'
parking facilities.
In 1999, the Senate Committees on Trade and
Commerce and on Justice and Human Rights
conducted a joint investigation for the following
purposes: (1) to inquire into the legality of the
prevalent practice of shopping malls of charging
parking fees; (2) assuming arguendo that the
collection of parking fees was legally authorized, to
find out the basis and reasonableness of the
parking rates charged by shopping malls; and (3) to
determine the legality of the policy of shopping
malls of denying liability in cases of theft, robbery,
or carnapping, by invoking the waiver clause at the
back of the parking tickets. Said Senate
Committees invited the top executives of
respondents, who operate the major malls in the
country; the officials from the Department of Trade
and Industry (DTI), Department of Public Works
and Highways (DPWH), Metro Manila Development
Authority (MMDA), and other local government
officials; and the Philippine Motorists Association
(PMA) as representative of the consumers' group.
After three public hearings held on 30 September, 3
November, and 1 December 1999, the aforementioned Senate Committees jointly issued
Senate Committee Report No. 225 5 on 2 May
2000, in which they concluded:
In view of the foregoing, the Committees find that
the collection of parking fees by shopping malls is
contrary to the National Building Code and is
therefor [sic] illegal. While it is true that the Code
merely requires malls to provide parking spaces,
without specifying whether it is free or not, both
Committees believe that the reasonable and logical
interpretation of the Code is that the parking spaces
are for free. This interpretation is not only
reasonable and logical but finds support in the
actual practice in other countries like the United
States of America where parking spaces owned
and operated by mall owners are free of charge.
Section 201 of the National Building Code gives the

responsibility
for
the
administration
and
enforcement of the provisions of the Code,
including the imposition of penalties for
administrative violations thereof to the Secretary of
Public Works. This set up, however, is not being
carried out in reality.
In the position paper submitted by the Metropolitan
Manila Development Authority (MMDA), its
chairman, Jejomar C. Binay, accurately pointed out
that the Secretary of the DPWH is responsible for
the implementation/enforcement of the National
Building Code. After the enactment of the Local
Government Code of 1991, the local government
units (LGU's) were tasked to discharge the
regulatory powers of the DPWH. Hence, in the local
level,
the
Building
Officials
enforce
all
rules/regulations formulated by the DPWH relative
to all building plans, specifications and designs
including parking space requirements. There is,
however, no single national department or agency
directly tasked to supervise the enforcement of the
provisions of the Code on parking, notwithstanding
the national character of the law. 6
Senate Committee Report No. 225, thus, contained
the following recommendations:
In light of the foregoing, the Committees on Trade
and Commerce and Justice and Human Rights
hereby recommend the following:
1. The Office of the Solicitor General should
institute the necessary action to enjoin the
collection of parking fees as well as to enforce the
penal sanction provisions of the National Building
Code. The Office of the Solicitor General should
likewise study how refund can be exacted from mall
owners who continue to collect parking fees.
2. The Department of Trade and Industry pursuant
to the provisions of R.A. No. 7394, otherwise
known as the Consumer Act of the Philippines
should enforce the provisions of the Code relative
to parking. Towards this end, the DTI should
formulate the necessary implementing rules and
regulations on parking in shopping malls, with prior
consultations with the local government units where
these are located. Furthermore, the DTI, in
coordination with the DPWH, should be empowered
to regulate and supervise the construction and
maintenance of parking establishments.
Figuratively speaking, the Code has "expropriated"

the land for parking something similar to the
subdivision law which require developers to devote
so much of the land area for parks.
3. Finally, Congress should amend and update the

National Building Code to expressly prohibit
shopping malls from collecting parking fees by at
the same time, prohibit them from invoking the
waiver of liability. 7
Moreover, Article II of R.A. No. 9734 (Consumer Act

of the Philippines) provides that "it is the policy of
216
Respondent SM Prime thereafter received

information that, pursuant to Senate Committee
Report No. 225, the DPWH Secretary and the local
building officials of Manila, Quezon City, and Las
Pias intended to institute, through the OSG, an
action to enjoin respondent SM Prime and similar
establishments from collecting parking fees, and to
impose upon said establishments penal sanctions
under Presidential Decree No. 1096, otherwise
known as the National Building Code of the
Philippines (National Building Code), and its
Implementing Rules and Regulations (IRR). With
the threatened action against it, respondent SM
Prime filed, on 3 October 2000, a Petition for
Declaratory Relief 8 under Rule 63 of the Revised
Rules of Court, against the DPWH Secretary and
local building officials of Manila, Quezon City, and
Las Pias. Said Petition was docketed as Civil
Case No. 00-1208 and assigned to the RTC of
Makati City, Branch 138, presided over by Judge
Sixto Marella, Jr. (Judge Marella). In its Petition,
respondent SM Prime prayed for judgment:
a) Declaring Rule XIX of the Implementing Rules
and Regulations of the National Building Code as
ultra vires, hence, unconstitutional and void;
On 23 October 2000, Judge Ibay of the RTC of

Makati City, Branch 135, issued an Order
consolidating Civil Case No. 00-1210 with Civil
Case No. 00-1208 pending before Judge Marella of
RTC of Makati, Branch 138.
As a result of the pre-trial conference held on the
morning of 8 August 2001, the RTC issued a PreTrial Order 12 of even date which limited the issues
to be resolved in Civil Cases No. 00-1208 and No.
00-1210 to the following:
1. Capacity of the plaintiff [OSG] in Civil Case No.
00-1210 to institute the present proceedings and
relative thereto whether the controversy in the
collection of parking fees by mall owners is a matter
of public welfare.
b) Declaring [herein respondent SM Prime]'s clear

legal right to lease parking spaces appurtenant to
its department stores, malls, shopping centers and
other commercial establishments; and
On 29 May 2002, the RTC rendered its Joint

Decision in Civil Cases No. 00-1208 and No. 001210.
The RTC resolved the first two issues affirmatively.
It ruled that the OSG can initiate Civil Case No. 001210 under Presidential Decree No. 478 and the
Administrative Code of 1987. 14 It also found that
all the requisites for an action for declaratory relief
were present, to wit:
The requisites for an action for declaratory relief
are: (a) there is a justiciable controversy; (b) the
controversy is between persons whose interests
are adverse; (c) the party seeking the relief has a
legal interest in the controversy; and (d) the issue
involved is ripe for judicial determination.
2. Whether declaratory relief is proper.

3. Whether respondent Ayala Land, Robinsons,
Shangri-La and SM Prime are obligated to provide
parking spaces in their malls for the use of their
patrons or the public in general, free of charge.
4. Entitlement of the parties of [sic] award of
damages. 13
c) Declaring the National Building Code of the

Philippines Implementing Rules and Regulations as
ineffective, not having been published once a week
for three (3) consecutive weeks in a newspaper of
general circulation, as prescribed by Section 211 of
Presidential Decree No. 1096.
[Respondent SM Prime] further prays for such other
reliefs as may be deemed just and equitable under
the premises. 9
The very next day, 4 October 2000, the OSG filed a
Petition for Declaratory Relief and Injunction (with
Prayer for Temporary Restraining Order and Writ of
Preliminary Injunction) 10 against respondents.
This Petition was docketed as Civil Case No. 001210 and raffled to the RTC of Makati, Branch 135,
presided over by Judge Francisco B. Ibay (Judge
Ibay). Petitioner prayed that the RTC:
1. After summary hearing, a temporary restraining
order and a writ of preliminary injunction be issued
restraining respondents from collecting parking fees
from their customers; and
SM, the petitioner in Civil Case No. 001-1208 [sic]

is a mall operator who stands to be affected directly
by the position taken by the government officials
sued namely the Secretary of Public Highways and
the Building Officials of the local government units
where it operates shopping malls. The OSG on the
other hand acts on a matter of public interest and
has taken a position adverse to that of the mall
owners whom it sued. The construction of new and
bigger malls has been announced, a matter which
the Court can take judicial notice and the unsettled
issue of whether mall operators should provide
parking facilities, free of charge needs to be
resolved. 15
2. After hearing, judgment be rendered declaring

that the practice of respondents in charging parking
fees is violative of the National Building Code and
its Implementing Rules and Regulations and is
therefore invalid, and making permanent any
injunctive writ issued in this case.
As to the third and most contentious issue, the RTC

pronounced that:
The Building Code, which is the enabling law and
the Implementing Rules and Regulations do not
impose that parking spaces shall be provided by
the mall owners free of charge. Absent such
directive[,] Ayala Land, Robinsons, Shangri-la and
Other reliefs just and equitable under the premises

are likewise prayed for. 11
217
SM [Prime] are under no obligation to provide them

for free. Article 1158 of the Civil Code is clear:
CA-G.R. CV No. 76298 involved the separate

appeals of the OSG 18 and respondent SM Prime
19 filed with the Court of Appeals. The sole
assignment of error of the OSG in its Appellant's
Brief was:
THE TRIAL COURT ERRED IN HOLDING THAT
THE NATIONAL BUILDING CODE DID NOT
INTEND MALL PARKING SPACES TO BE FREE
OF CHARGE[;]20
"Obligations derived from law are not presumed.

Only those expressly determined in this Code or in
special laws are demandable and shall be
regulated by the precepts of the law which
establishes them; and as to what has not been
foreseen, by the provisions of this Book (1090).["]
xxx xxx xxx
while the four errors assigned by respondent SM

Prime in its Appellant's Brief were:
I
The provision on ratios of parking slots to several

variables, like shopping floor area or customer area
found in Rule XIX of the Implementing Rules and
Regulations cannot be construed as a directive to
provide free parking spaces, because the enabling
law, the Building Code does not so provide. . . . .
THE TRIAL COURT ERRED IN FAILING TO

DECLARE RULE XIX OF THE IMPLEMENTING
RULES AS HAVING BEEN ENACTED ULTRA
VIRES, HENCE, UNCONSTITUTIONAL AND
VOID.
To compel Ayala Land, Robinsons, Shangri-La and

SM [Prime] to provide parking spaces for free can
be considered as an unlawful taking of property
right without just compensation.
II
DECLARE
THE
IMPLEMENTING
RULES
INEFFECTIVE FOR NOT HAVING BEEN
PUBLISHED AS REQUIRED BY LAW.
Parking spaces in shopping malls are privately

owned and for their use, the mall operators collect
fees. The legal relationship could be either lease or
deposit. In either case[,] the mall owners have the
right to collect money which translates into income.
Should parking spaces be made free, this right of
mall owners shall be gone. This, without just
compensation. Further, loss of effective control over
their property will ensue which is frowned upon by
law.
III
DISMISS
THE
OSG'S
PETITION
FOR
DECLARATORY RELIEF AND INJUNCTION FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES.
The presence of parking spaces can be viewed in

another light. They can be looked at as necessary
facilities to entice the public to increase patronage
of their malls because without parking spaces,
going to their malls will be inconvenient. These
are[,] however[,] business considerations which
mall operators will have to decide for themselves.
They are not sufficient to justify a legal conclusion,
as the OSG would like the Court to adopt that it is
the obligation of the mall owners to provide parking
spaces for free. 16
IV
DECLARE THAT THE OSG HAS NO LEGAL
CAPACITY TO SUE AND/OR THAT IT IS NOT A
REAL PARTY-IN-INTEREST IN THE INSTANT
CASE. 21
Respondent Robinsons filed a Motion to Dismiss
Appeal of the OSG on the ground that the lone
issue raised therein involved a pure question of law,
not reviewable by the Court of Appeals.
The Court of Appeals promulgated its Decision in
CA-G.R. CV No. 76298 on 25 January 2007. The
appellate court agreed with respondent Robinsons
that the appeal of the OSG should suffer the fate of
dismissal, since "the issue on whether or not the
National Building Code and its implementing rules
require shopping mall operators to provide parking
facilities to the public for free" was evidently a
question of law. Even so, since CA-G.R. CV No.
76298 also included the appeal of respondent SM
Prime, which raised issues worthy of consideration,
and in order to satisfy the demands of substantial
justice, the Court of Appeals proceeded to rule on
the merits of the case.
In its Decision, the Court of Appeals affirmed the
capacity of the OSG to initiate Civil Case No. 001210 before the RTC as the legal representative of
the government, 22 and as the one deputized by
The RTC then held that there was no sufficient

evidence to justify any award for damages.
The RTC finally decreed in its 29 May 2002 Joint
Decision in Civil Cases No. 00-1208 and No. 001210 that:
FOR THE REASONS GIVEN, the Court declares
that Ayala Land[,] Inc., Robinsons Land
Corporation, Shangri-la Plaza Corporation and SM
Prime Holdings[,] Inc. are not obligated to provide
parking spaces in their malls for the use of their
patrons or public in general, free of charge.
All counterclaims in Civil Case No. 00-1210 are
dismissed.
No pronouncement as to costs. 17
218
the Senate of the Republic of the Philippines

through Senate Committee Report No. 225.
The Court of Appeals rejected the contention of
respondent SM Prime that the OSG failed to
exhaust administrative remedies. The appellate
court explained that an administrative review is not
a condition precedent to judicial relief where the
question in dispute is purely a legal one, and
nothing of an administrative nature is to be or can
be done.
The Court of Appeals likewise refused to rule on the
validity of the IRR of the National Building Code, as
such issue was not among those the parties had
agreed to be resolved by the RTC during the pretrial conference for Civil Cases No. 00-1208 and
No. 00-1210. Issues cannot be raised for the first
time on appeal. Furthermore, the appellate court
found that the controversy could be settled on other
grounds, without touching on the issue of the
validity of the IRR. It referred to the settled rule that
courts should refrain from passing upon the
constitutionality of a law or implementing rules,
because of the principle that bars judicial inquiry
into a constitutional question, unless the resolution
thereof is indispensable to the determination of the
case.
Lastly, the Court of Appeals declared that Section
803 of the National Building Code and Rule XIX of
the IRR were clear and needed no further
construction. Said provisions were only intended to
control the occupancy or congestion of areas and
structures. In the absence of any express and clear
provision of law, respondents could not be obliged
and expected to provide parking slots free of
charge.
The fallo of the 25 January 2007 Decision of the
Court of Appeals reads:
appeals are DENIED. Accordingly, appealed
Decision is hereby AFFIRMED in toto. 23
(a) Maximum site occupancy shall be governed by

the use, type of construction, and height of the
building and the use, area, nature, and location of
the site; and subject to the provisions of the local
zoning requirements and in accordance with the
rules and regulations promulgated by the Secretary.
In connection therewith, Rule XIX of the old IRR, 25
provides:
RULE XIX PARKING AND LOADING SPACE
REQUIREMENTS
Pursuant to Section 803 of the National Building
Code (PD 1096)providing for maximum site
occupancy, the following provisions on parking and
loading space requirements shall be observed:
1. The parking space ratings listed below are
minimum off-street requirements for specific
uses/occupancies for buildings/structures:
1.1 The size of an average automobile parking slot
shall be computed as 2.4 meters by 5.00 meters for
perpendicular or diagonal parking, 2.00 meters by
6.00 meters for parallel parking. A truck or bus
parking/loading slot shall be computed at a
minimum of 3.60 meters by 12.00 meters. The
parking slot shall be drawn to scale and the total
number of which shall be indicated on the plans
and
specified
whether
or
not
parking
accommodations, are attendant-managed. (See
Section 2 for computation of parking requirements).
xxx xxx xxx
1.7 Neighborhood shopping center 1 slot/100 sq.
m. of shopping floor area
The OSG avers that the aforequoted provisions
should be read together with Section 102 of the
National Building Code, which declares:
SECTION 102. Declaration of Policy.
In its Resolution issued on 14 March 2007, the

Court of Appeals denied the Motion for
Reconsideration of the OSG, finding that the
grounds relied upon by the latter had already been
carefully considered, evaluated, and passed upon
by the appellate court, and there was no strong and
cogent reason to modify much less reverse the
assailed judgment.
The OSG now comes before this Court, via the
instant Petition for Review, with a single
assignment of error:
THE COURT OF APPEALS SERIOUSLY ERRED
IN AFFIRMING THE RULING OF THE LOWER
COURT THAT RESPONDENTS ARE NOT
OBLIGED TO PROVIDE FREE PARKING SPACES
TO THEIR CUSTOMERS OR THE PUBLIC. 24
It is hereby declared to be the policy of the State to

safeguard life, health, property, and public welfare,
consistent with the principles of sound
environmental management and control; and to this
end, make it the purpose of this Code to provide for
all buildings and structures, a framework of
minimum standards and requirements to regulate
and control their location, site, design, quality of
materials, construction, use, occupancy, and
maintenance.
The requirement of free-of-charge parking, the
OSG argues, greatly contributes to the aim of
safeguarding "life, health, property, and public
welfare, consistent with the principles of sound
environmental management and control". Adequate
parking spaces would contribute greatly to
alleviating traffic congestion when complemented
by quick and easy access thereto because of freecharge parking. Moreover, the power to regulate
and control the use, occupancy, and maintenance
of buildings and structures carries with it the power
The OSG argues that respondents are mandated to

provide free parking by Section 803 of the National
Building Code and Rule XIX of the IRR.
According to Section 803 of the National Building
Code:
SECTION 803. Percentage of Site Occupancy.
219
to impose fees and, conversely, to control

partially or, as in this case, absolutely the
imposition of such fees.
The Court finds no merit in the present Petition.
The explicit directive of the afore-quoted statutory
and regulatory provisions, garnered from a plain
reading thereof, is that respondents, as
operators/lessors of neighborhood shopping
centers, should provide parking and loading
spaces, in accordance with the minimum ratio of
one slot per 100 square meters of shopping floor
area. There is nothing therein pertaining to the
collection (or non-collection) of parking fees by
respondents. In fact, the term "parking fees" cannot
even be found at all in the entire National Building
Code and its IRR.
Statutory construction has it that if a statute is clear
and unequivocal, it must be given its literal meaning
and applied without any attempt at interpretation.
26 Since Section 803 of the National Building Code
and Rule XIX of its IRR do not mention parking
fees, then simply, said provisions do not regulate
the collection of the same. The RTC and the Court
of Appeals correctly applied Article 1158 of the New
Civil Code, which states:
Art. 1158. Obligations derived from law are not
presumed. Only those expressly determined in this
Code or in special laws are demandable, and shall
be regulated by the precepts of the law which
establishes them; and as to what has not been
foreseen, by the provisions of this Book. (Emphasis
ours.)
as set forth in the National Building Code, are

complied with.
Consequently, the OSG cannot claim that in
addition to fixing the minimum requirements for
parking spaces for buildings, Rule XIX of the IRR
also mandates that such parking spaces be
provided by building owners free of charge. If Rule
XIX is not covered by the enabling law, then it
cannot be added to or included in the implementing
rules. The rule-making power of administrative
agencies must be confined to details for regulating
the mode or proceedings to carry into effect the law
as it has been enacted, and it cannot be extended
to amend or expand the statutory requirements or
to embrace matters not covered by the statute.
Administrative regulations must always be in
harmony with the provisions of the law because any
resulting discrepancy between the two will always
be resolved in favor of the basic law. 27
From the RTC all the way to this Court, the OSG
repeatedly referred to Republic v. Gonzales 28 and
City of Ozamis v. Lumapas 29 to support its
position that the State has the power to regulate
parking spaces to promote the health, safety, and
welfare of the public; and it is by virtue of said
power that respondents may be required to provide
free parking facilities. The OSG, though, failed to
consider the substantial differences in the factual
and legal backgrounds of these two cases from
those of the Petition at bar.
In Republic, the Municipality of Malabon sought to
eject the occupants of two parcels of land of the
public domain to give way to a road-widening
project. It was in this context that the Court
pronounced:
Indiscriminate parking along F. Sevilla Boulevard
and other main thoroughfares was prevalent; this,
of course, caused the build up of traffic in the
surrounding area to the great discomfort and
inconvenience of the public who use the streets.
Traffic congestion constitutes a threat to the health,
welfare, safety and convenience of the people and
it can only be substantially relieved by widening
streets and providing adequate parking areas.
Hence, in order to bring the matter of parking fees

within the ambit of the National Building Code and
its IRR, the OSG had to resort to specious and
feeble argumentation, in which the Court cannot
concur.
The OSG cannot rely on Section 102 of the
National Building Code to expand the coverage of
Section 803 of the same Code and Rule XIX of the
IRR, so as to include the regulation of parking fees.
The OSG limits its citation to the first part of Section
102 of the National Building Code declaring the
policy of the State "to safeguard life, health,
property, and public welfare, consistent with the
principles of sound environmental management
and control"; but totally ignores the second part of
said provision, which reads, "and to this end, make
it the purpose of this Code to provide for all
buildings and structures, a framework of minimum
standards and requirements to regulate and control
their location, site, design, quality of materials,
construction, use, occupancy, and maintenance".
While the first part of Section 102 of the National
Building Code lays down the State policy, it is the
second part thereof that explains how said policy
shall be carried out in the Code. Section 102 of the
National Building Code is not an all-encompassing
grant of regulatory power to the DPWH Secretary
and local building officials in the name of life,
health, property, and public welfare. On the
contrary, it limits the regulatory power of said
officials to ensuring that the minimum standards
and requirements for all buildings and structures,
The Court, in City of Ozamis, declared that the City

had been clothed with full power to control and
regulate its streets for the purpose of promoting
public health, safety and welfare. The City can
regulate the time, place, and manner of parking in
the streets and public places; and charge minimal
fees for the street parking to cover the expenses for
supervision, inspection and control, to ensure the
smooth flow of traffic in the environs of the public
market, and for the safety and convenience of the
public.
Republic and City of Ozamis involved parking in the
local streets; in contrast, the present case deals
with privately owned parking facilities available for
use by the general public. In Republic and City of
Ozamis, the concerned local governments
regulated parking pursuant to their power to control
and regulate their streets; in the instant case, the
DPWH Secretary and local building officials
regulate parking pursuant to their authority to
220
ensure compliance with the minimum standards

and requirements under the National Building Code
and its IRR. With the difference in subject matters
and the bases for the regulatory powers being
invoked, Republic and City of Ozamis do not
constitute precedents for this case.
Indeed, Republic and City of Ozamis both contain
pronouncements that weaken the position of the
OSG in the case at bar. In Republic, the Court,
instead of placing the burden on private persons to
provide parking facilities to the general public,
mentioned the trend in other jurisdictions wherein
the municipal governments themselves took the
initiative to make more parking spaces available so
as to alleviate the traffic problems, thus:
Under the Land Transportation and Traffic Code,
parking in designated areas along public streets or
highways is allowed which clearly indicates that
provision for parking spaces serves a useful
purpose. In other jurisdictions where traffic is at
least as voluminous as here, the provision by
municipal governments of parking space is not
limited to parking along public streets or highways.
There has been a marked trend to build off-street
parking facilities with the view to removing parked
cars from the streets. While the provision of offstreet parking facilities or carparks has been
commonly undertaken by private enterprise,
municipal governments have been constrained to
put up carparks in response to public necessity
where private enterprise had failed to keep up with
the growing public demand. American courts have
upheld the right of municipal governments to
construct off-street parking facilities as clearly
redounding to the public benefit. 30
involve the imposition by the DPWH Secretary and

local building officials of regulatory fees upon
respondents; but the collection by respondents of
parking fees from persons who use the mall parking
facilities. Secondly, assuming arguendo that the
DPWH Secretary and local building officials do
have regulatory powers over the collection of
parking fees for the use of privately owned parking
facilities, they cannot allow or prohibit such
collection arbitrarily or whimsically. Whether
allowing or prohibiting the collection of such parking
fees, the action of the DPWH Secretary and local
building officials must pass the test of classic
reasonableness and propriety of the measures or
means in the promotion of the ends sought to be
accomplished. 32
Keeping in mind the aforementioned test of
reasonableness and propriety of measures or
means, the Court notes that Section 803 of the
National Building Code falls under Chapter 8 on
Light and Ventilation. Evidently, the Code deems it
necessary to regulate site occupancy to ensure that
there is proper lighting and ventilation in every
building. Pursuant thereto, Rule XIX of the IRR
requires that a building, depending on its specific
use and/or floor area, should provide a minimum
number of parking spaces. The Court, however,
fails to see the connection between regulating site
occupancy to ensure proper light and ventilation in
every building vis--vis regulating the collection by
building owners of fees for the use of their parking
spaces. Contrary to the averment of the OSG, the
former does not necessarily include or imply the
latter. It totally escapes this Court how lighting and
ventilation conditions at the malls could be affected
by the fact that parking facilities thereat are free or
paid for.
The OSG attempts to provide the missing link by
arguing that:
Under Section 803 of the National Building Code,
complimentary parking spaces are required to
enhance light and ventilation, that is, to avoid traffic
congestion in areas surrounding the building, which
certainly affects the ventilation within the building
itself, which otherwise, the annexed parking spaces
would have served. Free-of-charge parking avoids
traffic congestion by ensuring quick and easy
access of legitimate shoppers to off-street parking
spaces annexed to the malls, and thereby removing
the vehicles of these legitimate shoppers off the
busy streets near the commercial establishments.
33
In City of Ozamis, the Court authorized the

collection by the City of minimal fees for the parking
of vehicles along the streets: so why then should
the Court now preclude respondents from collecting
from the public a fee for the use of the mall parking
facilities? Undoubtedly, respondents also incur
expenses in the maintenance and operation of the
mall parking facilities, such as electric consumption,
compensation for parking attendants and security,
and upkeep of the physical structures.
It is not sufficient for the OSG to claim that "the
power to regulate and control the use, occupancy,
and maintenance of buildings and structures carries
with it the power to impose fees and, conversely, to
control, partially or, as in this case, absolutely, the
imposition of such fees". Firstly, the fees within the
power of regulatory agencies to impose are
regulatory fees. It has been settled law in this
jurisdiction that this broad and all-compassing
governmental competence to restrict rights of
liberty and property carries with it the undeniable
power to collect a regulatory fee. It looks to the
enactment of specific measures that govern the
relations not only as between individuals but also
as between private parties and the political society.
31 True, if the regulatory agencies have the power
to impose regulatory fees, then conversely, they
also have the power to remove the same. Even so,
it is worthy to note that the present case does not
The Court is unconvinced. The National Building

Code regulates buildings, by setting the minimum
specifications and requirements for the same. It
does not concern itself with traffic congestion in
areas surrounding the building. It is already a
stretch to say that the National Building Code and
its IRR also intend to solve the problem of traffic
congestion around the buildings so as to ensure
that the said buildings shall have adequate lighting
and ventilation. Moreover, the Court cannot simply
assume, as the OSG has apparently done, that the
traffic congestion in areas around the malls is due
221
to the fact that respondents charge for their parking

facilities, thus, forcing vehicle owners to just park in
the streets. The Court notes that despite the fees
charged by respondents, vehicle owners still use
the mall parking facilities, which are even fully
occupied on some days. Vehicle owners may be
parking in the streets only because there are not
enough parking spaces in the malls, and not
because they are deterred by the parking fees
charged by respondents. Free parking spaces at
the malls may even have the opposite effect from
what the OSG envisioned: more people may be
encouraged by the free parking to bring their own
vehicles, instead of taking public transport, to the
malls; as a result, the parking facilities would
become full sooner, leaving more vehicles without
parking spaces in the malls and parked in the
streets instead, causing even more traffic
congestion.
Without using the term outright, the OSG is actually
invoking police power to justify the regulation by the
State, through the DPWH Secretary and local
building officials, of privately owned parking
facilities, including the collection by the
owners/operators of such facilities of parking fees
from the public for the use thereof. The Court finds,
however, that in totally prohibiting respondents from
collecting parking fees from the public for the use of
the mall parking facilities, the State would be acting
beyond the bounds of police power.
Police power is the power of promoting the public
welfare by restraining and regulating the use of
liberty and property. It is usually exerted in order to
merely regulate the use and enjoyment of the
property of the owner. The power to regulate,
however, does not include the power to prohibit. A
fortiori, the power to regulate does not include the
power to confiscate. Police power does not involve
the taking or confiscation of property, with the
exception of a few cases where there is a necessity
to confiscate private property in order to destroy it
for the purpose of protecting peace and order and
of promoting the general welfare; for instance, the
confiscation of an illegally possessed article, such
as opium and firearms. 34
When there is a taking or confiscation of private
property for public use, the State is no longer
exercising police power, but another of its inherent
powers, namely, eminent domain. Eminent domain
enables the State to forcibly acquire private lands
intended for public use upon payment of just
compensation to the owner. 35
Normally, of course, the power of eminent domain
results in the taking or appropriation of title to, and
possession of, the expropriated property; but no
cogent reason appears why the said power may not
be availed of only to impose a burden upon the
owner of condemned property, without loss of title
and possession. 36 It is a settled rule that neither
acquisition of title nor total destruction of value is
essential to taking. It is usually in cases where title
remains with the private owner that inquiry should
be made to determine whether the impairment of a
property is merely regulated or amounts to a
compensable taking. A regulation that deprives any
person of the profitable use of his property

constitutes a taking and entitles him to
compensation, unless the invasion of rights is so
slight as to permit the regulation to be justified
under the police power. Similarly, a police
regulation that unreasonably restricts the right to
use business property for business purposes
amounts to a taking of private property, and the
owner may recover therefor. 37
Although in the present case, title to and/or
possession of the parking facilities remain/s with
respondents, the prohibition against their collection
of parking fees from the public, for the use of said
facilities, is already tantamount to a taking or
confiscation of their properties. The State is not
only requiring that respondents devote a portion of
the latter's properties for use as parking spaces,
but is also mandating that they give the public
access to said parking spaces for free. Such is
already an excessive intrusion into the property
rights of respondents. Not only are they being
deprived of the right to use a portion of their
properties as they wish, they are further prohibited
from profiting from its use or even just recovering
therefrom the expenses for the maintenance and
operation of the required parking facilities.
The ruling of this Court in City Government of
Quezon City v. Judge Ericta 38 is edifying. Therein,
the City Government of Quezon City passed an
ordinance obliging private cemeteries within its
jurisdiction to set aside at least six percent of their
total area for charity, that is, for burial grounds of
deceased paupers. According to the Court, the
ordinance in question was null and void, for it
authorized the taking of private property without just
compensation:
There is no reasonable relation between the setting
aside of at least six (6) percent of the total area of
all private cemeteries for charity burial grounds of
deceased paupers and the promotion of health,
morals, good order, safety, or the general welfare of
the people. The ordinance is actually a taking
without compensation of a certain area from a
private cemetery to benefit paupers who are
charges of the municipal corporation. Instead of
building or maintaining a public cemetery for this
purpose, the city passes the burden to private
cemeteries.
'The expropriation without compensation of a
portion of private cemeteries is not covered by
Section 12(t) of Republic Act 537, the Revised
Charter of Quezon City which empowers the city
council to prohibit the burial of the dead within the
center of population of the city and to provide for
their burial in a proper place subject to the
provisions of general law regulating burial grounds
and cemeteries. When the Local Government
Code, Batas Pambansa Blg. 337 provides in
Section 177(q) that a sangguniang panlungsod may
"provide for the burial of the dead in such place and
in such manner as prescribed by law or ordinance"
it simply authorizes the city to provide its own city
owned land or to buy or expropriate private
properties to construct public cemeteries. This has
222
been the law, and practise in the past. It continues

to the present. Expropriation, however, requires
payment of just compensation. The questioned
ordinance is different from laws and regulations
requiring owners of subdivisions to set aside certain
areas for streets, parks, playgrounds, and other
public facilities from the land they sell to buyers of
subdivision lots. The necessities of public safety,
health, and convenience are very clear from said
requirements which are intended to insure the
development of communities with salubrious and
wholesome environments. The beneficiaries of the
regulation, in turn, are made to pay by the
subdivision developer when individual lots are sold
to homeowners.
RURAL BANK OF SAN JOSE (BATANGAS), INC.;

RURAL BANK OF CARMEN (CEBU), INC.;
PILIPINO RURAL BANK, INC.; PHILIPPINE
COUNTRYSIDE RURAL BANK, INC.; RURAL
BANK OF CALATAGAN (BATANGAS), INC. (now
DYNAMIC RURAL BANK); RURAL BANK OF
DARBCI, INC.; RURAL BANK OF KANANGA
(LEYTE), INC. (now FIRST INTERSTATE RURAL
BANK); RURAL BANK OF BISAYAS MINGLANILLA
(now BANK OF EAST ASIA); and SAN PABLO
CITY DEVELOPMENT BANK, INC., respondents.
In conclusion, the total prohibition against the

collection by respondents of parking fees from
persons who use the mall parking facilities has no
basis in the National Building Code or its IRR. The
State also cannot impose the same prohibition by
generally invoking police power, since said
prohibition amounts to a taking of respondents'
property without payment of just compensation.
Given the foregoing, the Court finds no more need
to address the issue persistently raised by
respondent
SM
Prime
concerning
the
unconstitutionality of Rule XIX of the IRR. In
addition, the said issue was not among those that
the parties, during the pre-trial conference for Civil
Cases No. 12-08 and No. 00-1210, agreed to
submit for resolution of the RTC. It is likewise
axiomatic that the constitutionality of a law, a
regulation, an ordinance or an act will not be
resolved by courts if the controversy can be, as in
this case it has been, settled on other grounds. 39
WHEREFORE, the instant Petition for Review on
Certiorari is hereby DENIED. The Decision dated
25 January 2007 and Resolution dated 14 March
2007 of the Court of Appeals in CA-G.R. CV No.
76298, affirming in toto the Joint Decision dated 29
May 2002 of the Regional Trial Court of Makati City,
Branch 138, in Civil Cases No. 00-1208 and No.
00-1210 are hereby AFFIRMED. No costs.
SO ORDERED.
The Case
This is a Petition for Review on Certiorari under
Rule 45 with Prayer for Issuance of a Temporary
Restraining Order (TRO)/Writ of Preliminary
Injunction, questioning the Decision dated
September 30, 2008 1 of the Court of Appeals (CA)
in CA-G.R. SP No. 103935. The CA Decision
upheld the Order 2 dated June 4, 2008 of the
Regional Trial Court (RTC), Branch 28 in Manila,
issuing writs of preliminary injunction in Civil Case
Nos. 08-119243, 08-119244, 08-119245, 08119246, 08-119247, 08-119248, 08-119249, 08119250, 08-119251, and 08-119273, and the Order
dated May 21, 2008 that consolidated the civil
cases. IcCEDA
The Facts
In September of 2007, the Supervision and
Examination Department (SED) of the Bangko
Sentral ng Pilipinas (BSP) conducted examinations
of the books of the following banks: Rural Bank of
Paraaque, Inc. (RBPI), Rural Bank of San Jose
(Batangas), Inc., Rural Bank of Carmen (Cebu),
Inc., Pilipino Rural Bank, Inc., Philippine
Countryside Rural Bank, Inc., Rural Bank of
Calatagan (Batangas), Inc. (now Dynamic Rural
Bank), Rural Bank of Darbci, Inc., Rural Bank of
Kananga (Leyte), Inc. (now First Interstate Rural
Bank), Rural Bank de Bisayas Minglanilla (now
Bank of East Asia), and San Pablo City
Development Bank, Inc.
After the examinations, exit conferences were held
with the officers or representatives of the banks
wherein the SED examiners provided them with
copies of Lists of Findings/Exceptions containing
the
deficiencies
discovered
during
the
examinations. These banks were then required to
comment and to undertake the remedial measures
stated in these lists within 30 days from their receipt
of the lists, which remedial measures included the
infusion of additional capital. Though the banks
claimed that they made the additional capital
infusions, petitioner Chuchi Fonacier, officer-incharge of the SED, sent separate letters to the
Board of Directors of each bank, informing them
that the SED found that the banks failed to carry
out the required remedial measures. In response,
the banks requested that they be given time to
obtain BSP approval to amend their Articles of
Incorporation, that they have an opportunity to seek
Ynares-Santiago, Velasco,
Peralta, JJ., concur.
Jr.,
Nachura
DECISION
VELASCO, JR., J p:
and
||| (Office of the Solicitor General v. Ayala Land,

Inc., G.R. No. 177056, [September 18, 2009], 616
PHIL 587-616)
3. BSP MB VS. ANTONIO-VALENZUELA 602
SCRA 638 (2009)
THIRD DIVISION
[G.R. No. 184778. October 2, 2009.]
BANGKO SENTRAL NG PILIPINAS MONETARY
BOARD and CHUCHI FONACIER, petitioners, vs.
HON. NINA G. ANTONIO-VALENZUELA, in her
capacity as Regional Trial Court Judge of Manila,
Branch 28; RURAL BANK OF PARAAQUE, INC.;
223
investors. They requested as well that the basis for

the capital infusion figures be disclosed, and noted
that none of them had received the Report of
Examination (ROE) which finalizes the audit
findings. They also requested meetings with the
BSP audit teams to reconcile audit figures. In
response, Fonacier reiterated the banks' failure to
comply with the directive for additional capital
infusions.
On May 12, 2008, the RBPI filed a complaint for
nullification of the BSP ROE with application for a
TRO and writ of preliminary injunction before the
RTC docketed as Civil Case No. 08-119243 against
Fonacier, the BSP, Amado M. Tetangco, Jr.,
Romulo L. Neri, Vicente B. Valdepenas, Jr., Raul A.
Boncan, Juanita D. Amatong, Alfredo C. Antonio,
and Nelly F. Villafuerte. RBPI prayed that Fonacier,
her subordinates, agents, or any other person
acting in her behalf be enjoined from submitting the
ROE or any similar report to the Monetary Board
(MB), or if the ROE had already been submitted,
the MB be enjoined from acting on the basis of said
ROE, on the allegation that the failure to furnish the
bank with a copy of the ROE violated its right to
due process.
The Rural Bank of San Jose (Batangas), Inc., Rural
Bank of Carmen (Cebu), Inc., Pilipino Rural Bank,
Inc., Philippine Countryside Rural Bank, Inc., Rural
Bank of Calatagan (Batangas), Inc., Rural Bank of
Darbci, Inc., Rural Bank of Kananga (Leyte), Inc.,
and Rural Bank de Bisayas Minglanilla followed
suit, filing complaints with the RTC substantially
similar to that of RBPI, including the reliefs prayed
for, which were raffled to different branches and
docketed as Civil Cases Nos. 08-119244, 08119245, 08-119246, 08-119247, 08-119248, 08119249, 08-119250, and 08-119251, respectively.
On May 13, 2008, the RTC denied the prayer for a
TRO of Pilipino Rural Bank, Inc. The bank filed a
motion for reconsideration the next day.
On May 14, 2008, Fonacier and the BSP filed their
opposition to the application for a TRO and writ of
preliminary injunction in Civil Case No. 08-119243
with the RTC. Respondent Judge Nina AntonioValenzuela of Branch 28 granted RBPI's prayer for
the issuance of a TRO. ATaDHC
The other banks separately filed motions for
consolidation of their cases in Branch 28, which
motions were granted. Judge Valenzuela set the
complaint of Rural Bank of San Jose (Batangas),
Inc. for hearing on May 15, 2008. Petitioners
assailed the validity of the consolidation of the nine
cases before the RTC, alleging that the court had
already prejudged the case by the earlier issuance
of a TRO in Civil Case No. 08-119243, and moved
for the inhibition of respondent judge. Petitioners
filed a motion for reconsideration regarding the
consolidation of the subject cases.
On May 16, 2008, San Pablo City Development
Bank, Inc. filed a similar complaint against the
same defendants with the RTC, and this was
docketed as Civil Case No. 08-119273 that was
later on consolidated with Civil Case No. 08119243. Petitioners filed an Urgent Motion to
Lift/Dissolve the TRO and an Opposition to the
earlier motion for reconsideration of Pilipino Rural

Bank, Inc.
On May 19, 2008, Judge Valenzuela issued an
Order granting the prayer for the issuance of TROs
for the other seven cases consolidated with Civil
Case No. 08-119243. On May 21, 2008, Judge
Valenzuela issued an Order denying petitioners'
motion
for
reconsideration
regarding
the
consolidation of cases in Branch 28. On May 22,
2008, Judge Valenzuela granted the urgent motion
for reconsideration of Pilipino Rural Bank, Inc. and
issued a TRO similar to the ones earlier issued.
On May 26, 2008, petitioners filed a Motion to
Dismiss against all the complaints (except that of
the San Pablo City Development Bank, Inc.), on the
grounds that the complaints stated no cause of
action and that a condition precedent for filing the
cases had not been complied with. On May 29,
2008, a hearing was conducted on the application
for a TRO and for a writ of preliminary injunction of
San Pablo City Development Bank, Inc.
The Ruling of the RTC
After the parties filed their respective memoranda,
the RTC, on June 4, 2008, ruled that the banks
were entitled to the writs of preliminary injunction
prayed for. It held that it had been the practice of
the SED to provide the ROEs to the banks before
submission to the MB. It further held that as the
banks are the subjects of examinations, they are
entitled to copies of the ROEs. The denial by
petitioners of the banks' requests for copies of the
ROEs was held to be a denial of the banks' right to
due process.
The dispositive portion of the RTC's order reads:
WHEREFORE, the Court rules as follows:
1) Re: Civil Case No. 08-119243. Pursuant to Rule
58, Section 4(b) of the Revised Rules of Court,
plaintiff Rural Bank of Paranaque Inc. is directed to
post a bond executed to the defendants, in the
amount of P500,000.00 to the effect that the
plaintiff will pay to the defendants all damages
which they may sustain by reason of the injunction
if the Court should finally decide that the plaintiff
was not entitled thereto. After posting of the bond
and approval thereof, let a writ of preliminary
injunction be issued to enjoin and restrain the
defendants from submitting the Report of
Examination or any other similar report prepared in
connection with the examination conducted on the
plaintiff, to the Monetary Board. In case such a
Report on Examination [sic] or any other similar
report prepared in connection with the examination
conducted on the plaintiff has been submitted to the
Monetary Board, the latter and its members (i.e.,
defendants Tetangco, Neri, Valdepenas, Boncan,
Amatong, Antonio, and Villafuerte) are enjoined and
restrained from acting on the basis of said report.
plaintiff Rural Bank of San Jose (Batangas), Inc. is
directed to post a bond executed to the defendants,
in the amount of P500,000.00 to the effect that the
224

ESIcaC
plaintiff Philippine Countryside Rural Bank Inc. is


plaintiff Rural Bank of Carmen (Cebu), Inc. is

plaintiff Dynamic Bank Inc. (Rural Bank of
Calatagan) is directed to post a bond executed to
the defendants, in the amount of P500,000.00 to
the effect that the plaintiff will pay to the defendants
all damages which they may sustain by reason of
the injunction if the Court should finally decide that
the plaintiff was not entitled thereto. After posting of
the bond and approval thereof, let a writ of
preliminary injunction be issued to enjoin and
restrain the defendants from submitting the Report
of Examination or any other similar report prepared
in connection with the examination conducted on
the plaintiff, to the Monetary Board. In case such a

plaintiff Pilipino Rural Bank Inc. is directed to post a
bond executed to the defendants, in the amount of
P500,000.00 to the effect that the plaintiff will pay to
the defendants all damages which they may sustain
by reason of the injunction if the Court should finally
decide that the plaintiff was not entitled thereto.
After posting of the bond and approval thereof, let a
writ of preliminary injunction be issued to enjoin and

plaintiff Rural Bank of DARBCI, Inc. is directed to
post a bond executed to the defendants, in the
amount of P500,000.00 to the effect that the

225

cIDHSC

restrained from acting on the basis of said report. 3

plaintiff Rural Bank of Kananga Inc. (First Intestate
Bank), is directed to post a bond executed to the
defendants, in the amount of P500,000.00 to the
effect that the plaintiff will pay to the defendants all
damages which they may sustain by reason of the
injunction if the Court should finally decide that the
plaintiff was not entitled thereto. After posting of the
bond and approval thereof, let a writ of preliminary
The Ruling of the CA

Petitioners then brought the matter to the CA via a
petition for certiorari under Rule 65 claiming grave
abuse of discretion on the part of Judge Valenzuela
when she issued the orders dated May 21, 2008
and June 4, 2008.
The CA ruled that the RTC committed no grave
abuse of discretion when it ordered the issuance of
a writ of preliminary injunction and when it ordered
the consolidation of the 10 cases.
It held that petitioners should have first filed a
motion for reconsideration of the assailed orders,
and failed to justify why they resorted to a special
civil action of certiorari instead.
The CA also found that aside from the technical
aspect, there was no grave abuse of discretion on
the part of the RTC, and if there was a mistake in
the assessment of evidence by the trial court, that
should be characterized as an error of judgment,
and should be correctable via appeal. HcACTE
The CA held that the principles of fairness and
transparency dictate that the respondent banks are
entitled to copies of the ROE.
Regarding the consolidation of the 10 cases, the
CA found that there was a similarity of facts, reliefs
sought, issues raised, defendants, and that
plaintiffs and defendants were represented by the
same sets of counsels. It found that the joint trial of
these cases would prejudice any substantial right of
petitioners.
Finding that no grave abuse of discretion attended
the issuance of the orders by the RTC, the CA
denied the petition.
On November 24, 2008, a TRO was issued by this
Court, restraining the CA, RTC, and respondents
from implementing and enforcing the CA Decision
dated September 30, 2008 in CA-G.R. SP No.
103935. 4
By reason of the TRO issued by this Court, the
SED was able to submit their ROEs to the MB. The
MB then prohibited the respondent banks from
transacting business and placed them under
receivership under Section 53 of Republic Act No.
(RA) 8791 5 and Sec. 30 of RA 7653 6 through MB
Resolution No. 1616 dated December 9, 2008;
Resolution Nos. 1637 and 1638 dated December
11, 2008; Resolution Nos. 1647, 1648, and 1649
dated December 12, 2008; Resolution Nos. 1652
and 1653 dated December 16, 2008; and
Resolution Nos. 1692 and 1695 dated December
19, 2008, with the Philippine Deposit Insurance
Corporation as the appointed receiver.

plaintiff Banco Rural De Bisayas Minglanilla (Cebu)
Inc. (Bank of East Asia) is directed to post a bond
executed to the defendants, in the amount of
P500,000.00 to the effect that the plaintiff will pay to
the defendants all damages which they may sustain
by reason of the injunction if the Court should finally
decide that the plaintiff was not entitled thereto.
After posting of the bond and approval thereof, let a
writ of preliminary injunction be issued to enjoin and
10) Re: Civil Case No. 08-119273. Pursuant to
Rule 58, Section 4(b) of the Revised Rules of
Court, plaintiff San Pablo City Development Bank,
Inc. is directed to post a bond executed to the
defendants, in the amount of P500,000.00 to the
effect that the plaintiff will pay to the defendants all
damages which they may sustain by reason of the
injunction if the Court should finally decide that the
plaintiff was not entitled thereto. After posting of the
bond and approval thereof, let a writ of preliminary
Now we resolve the main petition.

Grounds in Support of Petition
I.
THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN NOT FINDING THAT THE
226
INJUNCTION ISSUED BY THE REGIONAL TRIAL

COURT VIOLATED SECTION 25 OF THE NEW
CENTRAL BANK ACT AND EFFECTIVELY
HANDCUFFED THE BANGKO SENTRAL FROM
DISCHARGING ITS FUNCTIONS TO THE GREAT
AND
IRREPARABLE
DAMAGE
OF
THE
COUNTRY'S BANKING SYSTEM;
the MB before the respondent banks would violate

the right to due process of said banks. cHDEaC
This is erroneous.
The respondent banks have failed to show that they
are entitled to copies of the ROEs. They can point
to no provision of law, no section in the procedures
of the BSP that shows that the BSP is required to
give them copies of the ROEs. Sec. 28 of RA 7653,
or the New Central Bank Act, which governs
examinations of banking institutions, provides that
the ROE shall be submitted to the MB; the bank
examined is not mentioned as a recipient of the
ROE.
The respondent banks cannot claim a violation of
their right to due process if they are not provided
with copies of the ROEs. The same ROEs are
based on the lists of findings/exceptions containing
the deficiencies found by the SED examiners when
they examined the books of the respondent banks.
As found by the RTC, these lists of
findings/exceptions were furnished to the officers or
representatives of the respondent banks, and the
respondent banks were required to comment and to
undertake remedial measures stated in said lists.
Despite these instructions, respondent banks failed
to comply with the SED's directive.
Respondent banks are already aware of what is
required of them by the BSP, and cannot claim
violation of their right to due process simply
because they are not furnished with copies of the
ROEs. Respondent banks were held by the CA to
be entitled to copies of the ROEs prior to or
simultaneously with their submission to the MB, on
the principles of fairness and transparency. Further,
the CA held that if the contents of the ROEs are
essentially the same as those of the lists of
findings/exceptions provided to said banks, there is
no reason not to give copies of the ROEs to the
banks. This is a flawed conclusion, since if the
banks are already aware of the contents of the
ROEs, they cannot say that fairness and
transparency are not present. If sanctions are to be
imposed upon the respondent banks, they are
already well aware of the reasons for the sanctions,
having been informed via the lists of
findings/exceptions, demolishing that particular
argument. The ROEs would then be superfluities to
the respondent banks, and should not be the basis
for a writ of preliminary injunction. Also, the reliance
of the RTC on Banco Filipino v. Monetary Board 9
is misplaced. The petitioner in that case was held to
be entitled to annexes of the Supervision and
Examination Sector's reports, as it already had a
copy of the reports themselves. It was not the
subject of the case whether or not the petitioner
was entitled to a copy of the reports. And the ruling
was made after the petitioner bank was ordered
closed, and it was allowed to be supplied with
annexes of the reports in order to better prepare its
defense. In this instance, at the time the
respondent banks requested copies of the ROEs,
no action had yet been taken by the MB with regard
to imposing sanctions upon said banks.
The issuance by the RTC of writs of preliminary
injunction is an unwarranted interference with the
II. THE HONORABLE COURT OF APPEALS

GRAVELY
ERRED
IN
FINDING
THAT
RESPONDENTS ARE ENTITLED TO BE
FURNISHED COPIES OF THEIR RESPECTIVE
ROEs BEFORE THE SAME IS SUBMITTED TO
THE MONETARY BOARD IN VIEW OF THE
PRINCIPLES
OF
FAIRNESS
AND
TRANSPARENCY DESPITE LACK OF EXPRESS
PROVISION IN THE NEW CENTRAL BANK ACT
REQUIRING BSP TO DO THE SAME;
III. THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN DEPARTING FROM WELLESTABLISHED PRECEPTS OF LAW AND
JURISPRUDENCE:
A. THE EXCEPTIONS CITED BY PETITIONER
JUSTIFIED RESORT TO PETITION FOR
CERTIORARI UNDER RULE 65 INSTEAD OF
FIRST
FILING
A
MOTION
FOR
RECONSIDERATION
B. RESPONDENT BANKS' ACT OF RESORTING
IMMEDIATELY
TO
THE
COURT
WAS
PREMATURE SINCE IT WAS MADE IN UTTER
DISREGARD OF THE PRINCIPLE OF PRIMARY
JURISDICTION
AND
EXHAUSTION
OF
ADMINISTRATIVE REMEDY
C.
THE ISSUANCE OF A WRIT OF
PRELIMINARY INJUNCTION BY THE REGIONAL
TRIAL COURT WAS NOT ONLY IMPROPER BUT
AMOUNTED TO GRAVE ABUSE OF DISCRETION
7
Our Ruling
The petition is meritorious.
In Lim v. Court of Appeals it was stated:
The requisites for preliminary injunctive relief are:
(a) the invasion of right sought to be protected is
material and substantial; (b) the right of the
complainant is clear and unmistakable; and (c)
there is an urgent and paramount necessity for the
writ to prevent serious damage.
As such, a writ of preliminary injunction may be
issued only upon clear showing of an actual
existing right to be protected during the pendency
of the principal action. The twin requirements of a
valid injunction are the existence of a right and its
actual or threatened violations. Thus, to be entitled
to an injunctive writ, the right to be protected and
the violation against that right must be shown. 8
These requirements are absent in the present case.
In granting the writs of preliminary injunction, the
trial court held that the submission of the ROEs to
227
powers of the MB. Secs. 29 and 30 of RA 7653 10

refer to the appointment of a conservator or a
receiver for a bank, which is a power of the MB for
which they need the ROEs done by the supervising
or examining department. The writs of preliminary
injunction issued by the trial court hinder the MB
from fulfilling its function under the law. The actions
of the MB under Secs. 29 and 30 of RA 7653 "may
not be restrained or set aside by the court except
on petition for certiorari on the ground that the
action taken was in excess of jurisdiction or with
such grave abuse of discretion as to amount to lack
or excess of jurisdiction". The writs of preliminary
injunction order are precisely what cannot be done
under the law by preventing the MB from taking
action under either Sec. 29 or Sec. 30 of RA 7653.
As to the third requirement, the respondent banks
have shown no necessity for the writ of preliminary
injunction to prevent serious damage. The serious
damage contemplated by the trial court was the
possibility of the imposition of sanctions upon
respondent banks, even the sanction of closure.
Under the law, the sanction of closure could be
imposed upon a bank by the BSP even without
notice and hearing. The apparent lack of procedural
due process would not result in the invalidity of
action by the MB. This was the ruling in Central
Bank of the Philippines v. Court of Appeals. 11 This
"close now, hear later" scheme is grounded on
practical and legal considerations to prevent
unwarranted dissipation of the bank's assets and
as a valid exercise of police power to protect the
depositors, creditors, stockholders, and the general
public. The writ of preliminary injunction cannot,
thus, prevent the MB from taking action, by
preventing the submission of the ROEs and worse,
by preventing the MB from acting on such ROEs.
IaDcTC
The trial court required the MB to respect the
respondent banks' right to due process by allowing
the respondent banks to view the ROEs and act
upon them to forestall any sanctions the MB might
impose. Such procedure has no basis in law and
does in fact violate the "close now, hear later"
doctrine. We held in Rural Bank of San Miguel, Inc.
v. Monetary Board, Bangko Sentral ng Pilipinas:
It is well-settled that the closure of a bank may be
considered as an exercise of police power. The
action of the MB on this matter is final and
executory. Such exercise may nonetheless be
subject to judicial inquiry and can be set aside if
found to be in excess of jurisdiction or with such
grave abuse of discretion as to amount to lack or
excess of jurisdiction. 12
not violate their right to due process, and cannot be

the basis for a writ of preliminary injunction.
The "close now, hear later" doctrine has already
been justified as a measure for the protection of the
public interest. Swift action is called for on the part
of the BSP when it finds that a bank is in dire
straits. Unless adequate and determined efforts are
taken by the government against distressed and
mismanaged banks, public faith in the banking
system is certain to deteriorate to the prejudice of
the national economy itself, not to mention the
losses suffered by the bank depositors, creditors,
and stockholders, who all deserve the protection of
the government. 13
The respondent banks have failed to show their
entitlement to the writ of preliminary injunction. It
must be emphasized that an application for
injunctive relief is construed strictly against the
pleader. 14 The respondent banks cannot rely on a
simple appeal to procedural due process to prove
entitlement. The requirements for the issuance of
the writ have not been proved. No invasion of the
rights of respondent banks has been shown, nor is
their right to copies of the ROEs clear and
unmistakable. There is also no necessity for the
writ to prevent serious damage. Indeed the
issuance of the writ of preliminary injunction
tramples upon the powers of the MB and prevents it
from fulfilling its functions. There is no right that the
writ of preliminary injunction would protect in this
particular case. In the absence of a clear legal right,
the issuance of the injunctive writ constitutes grave
abuse of discretion. 15 In the absence of proof of a
legal right and the injury sustained by the plaintiff,
an order for the issuance of a writ of preliminary
injunction will be nullified. 16
Courts are hereby reminded to take greater care in
issuing injunctive relief to litigants, that it would not
violate any law. The grant of a preliminary
injunction in a case rests on the sound discretion of
the court with the caveat that it should be made
with great caution. 17 Thus, the issuance of the writ
of preliminary injunction must have basis in and be
in accordance with law. All told, while the grant or
denial of an injunction generally rests on the sound
discretion of the lower court, this Court may and
should intervene in a clear case of abuse. 18
WHEREFORE, the petition is hereby GRANTED.
The assailed CA Decision dated September 30,
2008 in CA-G.R. SP No. 103935 is hereby
REVERSED. The assailed order and writ of
preliminary injunction of respondent Judge
Valenzuela in Civil Case Nos. 08-119243, 08119244, 08-119245, 08-119246, 08-119247, 08119248, 08-119249, 08-119250, 08-119251, and
08-119273 are hereby declared NULL and VOID.
SO ORDERED.
Ynares-Santiago, Chico-Nazario, Nachura and
Peralta, JJ., concur.
||| (Bangko Sentral ng Pilipinas Monetary Board v.
Antonio-Valenzuela, G.R. No. 184778, [October 2,
2009], 617 PHIL 916-939)
The respondent banks cannot through seeking a

writ of preliminary injunction by appealing to lack of
due process, in a roundabout manner prevent
their closure by the MB. Their remedy, as stated, is
a subsequent one, which will determine whether
the closure of the bank was attended by grave
abuse of discretion. Judicial review enters the
picture only after the MB has taken action; it cannot
prevent such action by the MB. The threat of the
imposition of sanctions, even that of closure, does
4. ROXAS & CO. VS. DAMBA-NFSW 607

SCRA 33 (2009)
228
& Co., Inc. v. Court of Appeals, 1 the Court

presented the facts as follows:
. . . Roxas & Co. is a domestic corporation and is
the registered owner of three haciendas, namely,
Haciendas Palico, Banilad and Caylaway, all
located in the Municipality of Nasugbu, Batangas.
Hacienda Palico is 1,024 hectares in area and is
registered under Transfer Certificate of Title (TCT)
No. 985. This land is covered by Tax Declaration
Nos. 0465, 0466, 0468, 0470, 0234 and 0354.
Hacienda Banilad is 1,050 hectares in area,
registered under TCT No. 924 and covered by Tax
Declaration Nos. 0236, 0237 and 0390. Hacienda
Caylaway is 867.4571 hectares in area and is
registered under TCT Nos. T-44662, T-44663, T44664 and T-44665.
EN BANC
[G.R. No. 149548. December 4, 2009.]
ROXAS & COMPANY, INC., petitioner, vs. DAMBANFSW and the DEPARTMENT OF AGRARIAN
REFORM, * respondents.
[G.R. No. 167505. December 4, 2009.]
DAMAYAN NG MGA MANGGAGAWANG BUKID
SA ASYENDA ROXAS-NATIONAL FEDERATION
OF
SUGAR
WORKERS
(DAMBA-NFSW),
petitioner, vs. SECRETARY OF THE DEPT. OF
AGRARIAN REFORM, ROXAS & CO., INC.
AND/OR ATTY. MARIANO AMPIL, respondents.
xxx xxx xxx

[G.R. No. 167540. December 4, 2009.]
On July 27, 1987, the Congress of the Philippines
formally convened and took over legislative power
from the President. This Congress passed Republic
Act No. 6657, the Comprehensive Agrarian Reform
Law (CARL) of 1988. The Act was signed by the
President on June 10, 1988 and took effect on June
15, 1988.
KATIPUNAN NG MGA MAGBUBUKID SA

HACIENDA ROXAS, INC. (KAMAHARI), rep. by its
President CARLITO CAISIP, and DAMAYAN NG
MANGGAGAWANG BUKID SA ASYENDA ROXASNATIONAL FEDERATION OF SUGAR WORKERS
(DAMBA-NFSW), represented by LAURO MARTIN,
petitioners, vs. SECRETARY OF THE DEPT. OF
AGRARIAN REFORM, ROXAS & CO., INC.,
respondents.
Before the law's effectivity, on May 6, 1988, [Roxas

& Co.] filed with respondent DAR a voluntary offer
to sell [VOS] Hacienda Caylaway pursuant to the
provisions of E.O. No. 229. Haciendas Palico and
Banilad were later placed under compulsory
acquisition by . . . DAR in accordance with the
CARL.
[G.R. No. 167543. December 4, 2009.]

DEPARTMENT OF LAND REFORM, FORMERLY
DEPARTMENT OF AGRARIAN REFORM (DAR),
petitioner, vs. ROXAS & CO, INC., respondent.
xxx xxx xxx

[G.R. No. 167845. December 4, 2009.]
Nevertheless, on August 6, 1992, [Roxas & Co.],
through its President, Eduardo J. Roxas, sent a
letter to the Secretary of . . . DAR withdrawing its
VOS of Hacienda Caylaway. The Sangguniang
Bayan of Nasugbu, Batangas allegedly authorized
the reclassification of Hacienda Caylaway from
agricultural to non-agricultural. As a result,
petitioner informed respondent DAR that it was
applying for conversion of Hacienda Caylaway from
agricultural to other uses.
ROXAS & CO., INC., petitioner, vs. DAMBA-NFSW,

respondent.
[G.R. No. 169163. December 4, 2009.]
DAMBA-NFSW REPRESENTED BY LAURO V.
MARTIN, petitioner, vs. ROXAS & CO., INC.,
respondent.
[G.R. No. 179650. December 4, 2009.]
xxx xxx xxx 2 (emphasis and underscoring

supplied)
DAMBA-NFSW, petitioner, vs. ROXAS & CO., INC.,

respondent.
The petitions in G.R. Nos. 167540 and 167543 nub

on the interpretation of Presidential Proclamation
(PP) 1520 which was issued on November 28,
1975 by then President Ferdinand Marcos. The PP
reads:
DECLARING
THE
MUNICIPALITIES
OF
MARAGONDON AND TERNATE IN CAVITE
PROVINCE AND THE MUNICIPALITY OF
NASUGBU IN BATANGAS AS A TOURIST ZONE,
AND FOR OTHER PURPOSES
DECISION
CARPIO MORALES, J p:
The main subject of the seven consolidated
petitions is the application of petitioner Roxas &
Co., Inc. (Roxas & Co.) for conversion from
agricultural to non-agricultural use of its three
haciendas located in Nasugbu, Batangas
containing a total area of almost 3,000 hectares.
The facts are not new, the Court having earlier
resolved intimately-related issues dealing with
these haciendas. Thus, in the 1999 case of Roxas
WHEREAS, certain areas in the sector comprising

the Municipalities of Maragondon and Ternate in
Cavite Province and Nasugbu in Batangas have
229
potential tourism value after being developed into

resort complexes for the foreign and domestic
market; and
May 16, 2000, Roxas & Co. filed with the DAR an
application for exemption from the coverage of the
Comprehensive Agrarian Reform Program (CARP)
of 1988 on the basis of PP 1520 and of DAR
Administrative Order (AO) No. 6, Series of 1994 3
which states that all lands already classified as
commercial, industrial, or residential before the
effectivity of CARP no longer need conversion
clearance from the DAR.
It bears mentioning at this juncture that on April 18,
1982, the Sangguniang Bayan of Nasugbu enacted
Municipal Zoning Ordinance No. 4 (Nasugbu MZO
No. 4) which was approved on May 4, 1983 by the
Human Settlements Regulation Commission, now
the Housing and Land Use Regulatory Board
(HLURB).
The records show that Sangguniang Bayan and
Association of Barangay Captains of Nasugbu filed
before this Court petitions for intervention which
were, however, denied by Resolution of June 5,
2006 for lack of standing. 4
After the seven present petitions were consolidated
and referred to the Court en banc, 5 oral arguments
were conducted on July 7, 2009.
The core issues are:
1. Whether PP 1520 reclassified in 1975 all lands in
the Maragondon-Ternate-Nasugbu tourism zone to
non-agricultural use to exempt Roxas & Co.'s three
haciendas in Nasugbu from CARP coverage;
HSAcaE
WHEREAS, it is necessary to conduct the

necessary studies and to segregate specific
geographic areas for concentrated efforts of both
the government and private sectors in developing
their tourism potential; HIaSDc
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers
vested in me by the Constitution, do hereby declare
the area comprising the Municipalities of
Maragondon and Ternate in Cavite Province and
Nasugbu in Batangas Province as a tourist zone
under the administration and control of the
Philippine Tourism Authority (PTA) pursuant to
Section 5 (D) of P.D. 564.
The PTA shall identify well-defined geographic
areas within the zone with potential tourism value,
wherein optimum use of natural assets and
attractions, as well as existing facilities and
concentration of efforts and limited resources of
both government and private sector may be
affected and realized in order to generate foreign
exchange as well as other tourist receipts.
Any duly established military reservation existing
within the zone shall be excluded from this
proclamation.
2. Whether Nasugbu MSO No. 4, Series of 1982

exempted certain lots in Hacienda Palico from
CARP coverage; and
All proclamation, decrees or executive orders

inconsistent herewith are hereby revoked or
modified accordingly. (emphasis and underscoring
supplied).
3. Whether the partial and complete cancellations

by the DAR of CLOA No. 6654 subject of G.R. No.
167505 is valid.
The incidents which spawned the filing of the

petitions in G.R. Nos. 149548, 167505, 167845,
169163 and 179650 are stated in the dissenting
opinion of Justice Minita Chico-Nazario, the original
draft of which was made the basis of the Court's
deliberations.
Essentially, Roxas & Co. filed its application for
conversion of its three haciendas from agricultural
to non-agricultural on the assumption that the
issuance of PP 1520 which declared Nasugbu,
Batangas as a tourism zone, reclassified them to
non-agricultural uses. Its pending application
notwithstanding, the Department of Agrarian
Reform (DAR) issued Certificates of Land
Ownership Award (CLOAs) to the farmerbeneficiaries in the three haciendas including
CLOA No. 6654 which was issued on October 15,
1993 covering 513.983 hectares, the subject of
G.R. No. 167505.
The application for conversion of Roxas & Co. was
the subject of the above-stated Roxas & Co., Inc. v.
Court of Appeals which the Court remanded to the
DAR for the observance of proper acquisition
proceedings. As reflected in the above-quoted
statement of facts in said case, during the
pendency before the DAR of its application for
conversion following its remand to the DAR or on
The Court shall discuss the issues in seriatim.

I. PP 1520 DID NOT AUTOMATICALLY CONVERT
THE AGRICULTURAL LANDS IN THE THREE
MUNICIPALITIES INCLUDING NASUGBU TO
NON-AGRICULTURAL LANDS.
Roxas & Co. contends that PP 1520 declared the
three municipalities as each constituting a tourism
zone, reclassified all lands therein to tourism and,
therefore, converted their use to non-agricultural
purposes.
To determine the chief intent of PP 1520, reference
to the "whereas clauses" is in order. By and large, a
reference to the congressional deliberation records
would provide guidance in dissecting the intent of
legislation. But since PP 1520 emanated from the
legislative powers of then President Marcos during
martial rule, reference to the whereas clauses
cannot be dispensed with. 6
The perambulatory clauses of PP 1520 identified
only "certain areas in the sector comprising the
[three Municipalities that] have potential tourism
value" and mandated the conduct of "necessary
studies" and the segregation of specific
geographic areas to achieve its purpose. Which is
why the PP directed the Philippine Tourism
230
Authority (PTA) to identify what those potential

tourism areas are. If all the lands in those tourism
zones were to be wholly converted to nonagricultural use, there would have been no need for
the PP to direct the PTA to identify what those
"specific geographic areas" are.
The Court had in fact passed upon a similar matter
before. Thus in DAR v. Franco, 7 it pronounced:
Thus, the DAR Regional Office VII, in coordination
with the Philippine Tourism Authority, has to
determine precisely which areas are for tourism
development and excluded from the Operation
Land Transfer and the Comprehensive Agrarian
Reform Program. And suffice it to state here that
the Court has repeatedly ruled that lands already
classified as non-agricultural before the enactment
of RA 6657 on 15 June 1988 do not need any
conversion
clearance.
8
(emphasis
and
underscoring supplied).
(2) recognize the potential value of identified spots

located within the general area declared as tourist
zone (i.e. . . .) and direct the Philippine Tourism
Authority to coordinate said areas' development;
could not be regarded as effecting an automatic
reclassification of the entirety of the land area
declared as tourist zone. This is so because
"reclassification of lands" denotes their allocation
into some specific use and "providing for the
manner of their utilization and disposition" (Sec. 20,
Local Government Code) or the "act of specifying
how agricultural lands shall be utilized for nonagricultural uses such as residential, industrial, or
commercial, as embodied in the land use plan."
(Joint HLURB, DAR, DA, DILG Memo. Circular
Prescribing Guidelines for MC 54, S. 1995, Sec. 2)
A proclamation that merely recognizes the potential
tourism value of certain areas within the general
area declared as tourist zone clearly does not
allocate, reserve, or intend the entirety of the land
area of the zone for non-agricultural purposes.
Neither does said proclamation direct that
otherwise CARPable lands within the zone shall
already be used for purposes other than
agricultural.
While the above pronouncement in Franco is an

obiter, it should not be ignored in the resolution of
the present petitions since it reflects a more rational
and just interpretation of PP 1520. There is no
prohibition in embracing the rationale of an obiter
dictum in settling controversies, or in considering
related proclamations establishing tourism zones.
In the above-cited case of Roxas & Co. v. CA, 9 the
Court made it clear that the "power to determine
whether Haciendas Palico, Banilad and Caylaway
are non-agricultural, hence, exempt from the
coverage of the [Comprehensive Agrarian Reform
Law] lies with the [Department of Agrarian Reform],
not with this Court." 10 The DAR, an administrative
body of special competence, denied, by Order of
October 22, 2001, the application for CARP
exemption of Roxas & Co., it finding that PP 1520
did not automatically reclassify all the lands in the
affected municipalities from their original uses. It
appears that the PTA had not yet, at that time,
identified the "specific geographic areas" for
tourism development and had no pending tourism
development projects in the areas. Further, report
from the Center for Land Use Policy Planning and
Implementation (CLUPPI) indicated that the areas
were planted with sugar cane and other crops. 11
Relatedly, the DAR, by Memorandum Circular No.
7, Series of 2004, 12 came up with clarificatory
guidelines and therein decreed that
A. . . .
Moreover, to view these kinds of proclamation as a

reclassification for non-agricultural purposes of
entire provinces, municipalities, barangays, islands,
or peninsulas would be unreasonable as it amounts
to an automatic and sweeping exemption from
CARP in the name of tourism development. The
same would also undermine the land use
reclassification powers vested in local government
units in conjunction with pertinent agencies of
government.
C. There being no reclassification, it is clear that
said proclamations/issuances, assuming [these]
took effect before June 15, 1988, could not supply
a basis for exemption of the entirety of the lands
embraced therein from CARP coverage . . . .
D. . . . . (underscoring in the original; emphasis and
italics supplied)
The
DAR's
reading
into
these
general
proclamations of tourism zones deserves utmost
consideration, more especially in the present
petitions which involve vast tracts of agricultural
land. To reiterate, PP 1520 merely recognized the
"potential tourism value" of certain areas within the
general area declared as tourism zones. It did not
reclassify the areas to non-agricultural use.
Apart from PP 1520, there are similarly worded
proclamations declaring the whole of Ilocos Norte
and Bataan Provinces, Camiguin, Puerto Prinsesa,
Siquijor, Panglao Island, parts of Cebu City and
Municipalities of Argao and Dalaguete in Cebu
Province as tourism zones. 13
Indubitably, these proclamations, particularly those
pertaining to the Provinces of Ilocos Norte and
Bataan, did not intend to reclassify all agricultural
lands into non-agricultural lands in one fell swoop.
B. Proclamations declaring general areas such as

whole provinces, municipalities, barangays, islands
or peninsulas as tourist zones that merely:
ASETHC
(1) recognize certain still unidentified areas within
the covered provinces, municipalities, barangays,
islands, or peninsulas to be with potential tourism
value and charge the Philippine Tourism Authority
with the task to identify/delineate specific
geographic areas within the zone with potential
tourism value and to coordinate said areas'
development; or
231
The Court takes notice of how the agrarian reform

program was and still is implemented in these
provinces since there are lands that do not have
any tourism potential and are more appropriate for
agricultural utilization.
Relatedly, a reference to the Special Economic
Zone Act of 1995 14 provides a parallel orientation
on the issue. Under said Act, several towns and
cities encompassing the whole Philippines were
readily identified as economic zones. 15 To uphold
Roxas & Co.'s reading of PP 1520 would see a total
reclassification of practically all the agricultural
lands in the country to non-agricultural use.
Propitiously, the legislature had the foresight to
include a bailout provision in Section 31 of said Act
for land conversion. 16 The same cannot be said of
PP 1520, despite the existence of Presidential
Decree (PD) No. 27 or the Tenant Emancipation
Decree, 17 which is the precursor of the CARP.
HCITcA
Interestingly, then President Marcos also issued on
September 26, 1972 PD No. 2 which declared the
entire Philippines as land reform area. 18 Such
declaration did not intend to reclassify all lands in
the entire country to agricultural lands. President
Marcos, about a month later or on October 21,
1972, issued PD 27 which decreed that all private
agricultural lands primarily devoted to rice and corn
were deemed awarded to their tenant-farmers.
Given these martial law-era decrees and
considering the socio-political backdrop at the time
PP 1520 was issued in 1975, it is inconceivable
that PP 1520, as well as other similarly worded
proclamations which are completely silent on the
aspect of reclassification of the lands in those
tourism zones, would nullify the gains already then
achieved by PD 27.
Even so, Roxas & Co. turns to Natalia Realty v.
DAR and NHA v. Allarde to support its position.
These cases are not even closely similar to the
petitions in G.R. Nos. 167540 and 167543. The
only time that these cases may find application to
said petitions is when the PTA actually identifies
"well-defined geographic areas within the zone with
potential tourism value."
In remotely tying these two immediately-cited cases
that involve specific and defined townsite
reservations for the housing program of the
National Housing Authority to the present petitions,
Roxas & Co. cites Letter of Instructions No. 352
issued on December 22, 1975 which states that the
survey and technical description of the tourism
zones shall be considered an integral part of PP
1520. There were, however, at the time no surveys
and technical delineations yet of the intended
tourism areas.
On hindsight, Natalia and Allarde find application in
the petitions in G.R. Nos. 179650 & 167505, which
petitions are anchored on the extenuating effects of
Nasugbu MZO No. 4, but not in the petitions in G.R.
Nos. 167540 & 167543 bearing on PP 1520, as will
later be discussed.
Of significance also in the present petitions is the
issuance on August 3, 2007 of Executive Order No.
647 19 by President Arroyo which proclaimed the
areas in the Nasugbu Tourism Development Plan

as Special Tourism Zone. Pursuant to said
Executive Order, the PTA completed its validation
of 21 out of 42 barangays as tourism priority areas,
hence, it is only after such completion that these
identified lands may be subjected to reclassification
proceedings.
It bears emphasis that a mere reclassification of an
agricultural land does not automatically allow a
landowner to change its use since there is still that
process of conversion before one is permitted to
use it for other purposes. 20
The recent passage of the Tourism Act of 2009 21
also impacts on the present petitions since Section
32 thereof states that:
Sec. 32. . . . . Any other area specifically defined
as a tourism area, zone or spot under any special
or general law, decree or presidential issuance
shall, as far as practicable, be organized into a TEZ
under the provisions of this Act. . . . . (italics and
emphasis supplied)
Furthermore, it is only under this same Act that it is
explicitly declared that lands identified as part of a
tourism zone shall qualify for exemption from CARP
coverage. 22
The dissenting opinion ignores the supervening
issuances mentioned above during the pendency of
the present petitions because they came after the
effectivity of the CARP on June 15, 1988. It labors
on the supposition that PP 1520 had already
reclassified the lands encompassing the tourism
zones; and that those subsequent issuances, even
if applied in the present cases, cannot be applied
retroactively.
Relevantly, while it may be argued that a remand to
the DAR would be proper in light of the recent
formulation of a tourism development plan, which
was validated by the PTA, that would put the cases
within the ambit of PP 1520, the Court sees
otherwise. Roxas & Co. can only look to the
provisions of the Tourism Act, and not to PP 1520,
for possible exemption.
II ROXAS & CO.'S APPLICATION IN DAR
Administrative Case No. A-9999-142-97 FOR
CARP EXEMPTION IN HACIENDA PALICO
SUBJECT OF G.R. NO. 179650 CANNOT BE
GRANTED IN VIEW OF DISCREPANCIES IN THE
LOCATION AND IDENTITY OF THE SUBJECT
PARCELS OF LAND. DcICEa
Since PP 1520 did not automatically convert
Haciendas Caylaway, Banilad and Palico into nonagricultural estates, can Roxas & Co. invoke in the
alternative Nasugbu MZO No. 4, which reclassified
in 1982 the haciendas to non-agricultural use to
exclude six parcels of land in Hacienda Palico from
CARP coverage?
By Roxas & Co.'s contention, the affected six
parcels of land which are the subject of DAR
Administrative Case No. A-9999-142-97 and nine
parcels of land which are the subject of DAR
Administrative Case No. A-9999-008-98 involved in
G.R. No. 167505, all in Hacienda Palico, have been
232
reclassified to non-agricultural uses via Nasugbu

MZO No. 4 which was approved by the forerunner
of HLURB.
Roxas & Co.'s contention fails.
To be sure, the Court had on several occasions
decreed that a local government unit has the power
to classify and convert land from agricultural to nonagricultural prior to the effectivity of the CARL. 23 In
Agrarian Reform Beneficiaries Association v.
Nicolas, 24 it reiterated that
. . . the facts obtaining in this case are similar to
those in Natalia Realty. Both subject lands form
part of an area designated for non-agricultural
purposes. Both were classified as non-agricultural
lands prior to June 15, 1988, the date of effectivity
of CARL.
1997 issued by the National Irrigation Authority. The

certifications were issued for Lot Nos. 21, 24, 28,
31, 32 and 34. Thus, it was not even possible to
issue exemption clearance over the lots covered by
TCT Nos. 60019 to 60023.
Furthermore, we also note the discrepancies
between the certifications issued by the HLURB
and the Municipal Planning Development
Coordinator as to the area of the specific lots. 28
(emphasis and underscoring supplied)
In affirming the DAR Secretary's denial of Roxas &
Co.'s application for exemption, the Court of
Appeals, in CA-G.R. SP No. 63146 subject of G.R.
No. 179650, observed:
In the instant case, a perusal of the documents
before us shows that there is no indication that the
said TCTs refer to the same properties applied for
exemption by [Roxas & Co.] It is true that the
certifications . . . refer, among others, to DAR Lot
Nos. 21, 24, 28, 31, 32 and 34 . . . But these
certifications contain nothing to show that these lots
are the same as Lots 125-A, 125-B, 125-C, 125-D
and 125-E covered by TCT Nos. 60019, 60020,
60021, 60022 and 60023, respectively. While
[Roxas & Co.] claims that DAR Lot Nos. 21, 24 and
31 correspond to the aforementioned TCTs
submitted to the DAR no evidence was presented
to substantiate such allegation.
xxx xxx xxx

In the case under review, the subject parcels of
lands were reclassified within an urban zone as per
approved Official Comprehensive Zoning Map of
the City of Davao. The reclassification was
embodied in City Ordinance No. 363, Series of
1982. As such, the subject parcels of land are
considered "non-agricultural" and may be utilized
for residential, commercial, and industrial purposes.
The reclassification was later approved by the
HLURB. 25 (emphasis, italics and underscoring
supplied)
The DAR Secretary 26 denied the application for
exemption of Roxas & Co., however, in this wise:
Initially, CLUPPI-2 based [its] evaluation on the lot
nos. as appearing in CLOA No. 6654. However, for
purposes of clarity and to ensure that the area
applied for exemption is indeed part of TCT No. T60034, CLUPPI-2 sought to clarify with [Roxas &
Co.] the origin of TCT No. T-60034. In a letter dated
May 28, 1998, [Roxas & Co.] explains that portions
of TCT No. T-985, the mother title, was
subdivided into 125 lots pursuant to PD 27. A total
of 947.8417 was retained by the landowners and
was subsequently registered under TCT No. 49946.
[[Roxas & Co.] further explains that TCT No. 49946
was further subdivided into several lots (Lot 125-A
to Lot 125-P) with Lot No. 125-N registered under
TCT No. 60034. [A] review of the titles, however,
shows that the origin of T-49946 is T-783 and not T985. On the other hand, the origin of T-60034 is
listed as 59946, and not T-49946. The
discrepancies were attributed by [Roxas & Co.] to
typographical errors which were "acknowledged
and initialled" [sic] by the ROD. Per verification . . .,
the discrepancies . . . cannot be ascertained. 27
(emphasis and underscoring supplied)
Moreover, [Roxas & Co.] failed to submit TCT 634

which it claims covers DAR Lot Nos. 28, 32 and 24.
(TSN, April 24, 2001, pp. 43-44)
xxx xxx xxx
[Roxas & Co.] also claims that subject properties
are located at Barangay Cogunan and Lumbangan
and that these properties are part of the zone
classified as Industrial under Municipal Ordinance
No. 4, Series of 1982 of the Municipality of
Nasugbu, Batangas. . . . a scrutiny of the said
Ordinance shows that only Barangays Talangan
and Lumbangan of the said municipality were
classified as Industrial ZonesBarangay Cogunan
was not included. . . . . In fact, the TCTs submitted
by [Roxas & Co.] show that the properties covered
by said titles are all located at Barrio Lumbangan.
29 (emphasis and underscoring supplied) DICSaH
Its foregoing findings notwithstanding, the appellate
court still allowed Roxas & Co. to adduce additional
evidence to support its application for exemption
under Nasugbu MZO No. 4.
Meanwhile, Roxas & Co. appealed the appellate
court's decision in CA-G.R. No. SP No. 63146
affirming the DAR Secretary's denial of its
application for CARP exemption in Hacienda Palico
(now the subject of G.R. No. 149548).
When Roxas & Co. sought the re-opening of the
proceedings in DAR Administrative Case No. A9999-142-97 (subject of G.R. No. 179650), and
offered additional evidence in support of its
application for CARP exemption, the DAR
In denying Roxas & Co.'s motion for

reconsideration, the DAR Secretary held:
The landholdings covered by the aforesaid titles do
not correspond to the Certification dated February
11, 1998 of the [HLURB], the Certification dated
September 12, 1996 issued by the Municipal
Planning and Development Coordinator, and the
Certifications dated July 31, 1997 and May 27,
233
Secretary, this time, granted its application for the

six lots including Lot No. 36 since the additional
documents offered by Roxas & Co. mentioned the
said lot.
In granting the application, the DAR Secretary 30
examined anew the evidence submitted by Roxas
& Co. which consisted mainly of certifications from
various local and national government agencies. 31
Petitioner in G.R. Nos. 167505, 167540, 169163
and 179650, Damayan ng mga Manggagawang
Bukid sa Asyenda Roxas-National Federation of
Sugar Workers (DAMBA-NFSW), the organization
of the farmer-beneficiaries, moved to have the
grant of the application reconsidered but the same
was denied by the DAR by Order of December 12,
2003, hence, it filed a petition for certiorari before
the Court of Appeals, docketed as CA-G.R. SP No.
82225, on grounds of forum-shopping and grave
abuse of discretion. The appellate court, by
Decision of October 31, 2006, ruled that DAMBANFSW availed of the wrong mode of appeal. At all
events, it dismissed its petition as it upheld the
DAR Secretary's ruling that Roxas & Co. did not
commit forum-shopping, hence, the petition of
DAMBA-NGSW in G.R. No. 179650.
While ordinarily findings of facts of quasi-judicial
agencies are generally accorded great weight and
even finality by the Court if supported by substantial
evidence in recognition of their expertise on the
specific matters under their consideration, 32 this
legal precept cannot be made to apply in G.R. No.
179650.
Even as the existence and validity of Nasugbu
MZO No. 4 had already been established, there
remains in dispute the issue of whether the parcels
of land involved in DAR Administrative Case No. A9999-142-97 subject of G.R. No. 179650 are
actually within the said zoning ordinance.
The Court finds that the DAR Secretary indeed
committed grave abuse of discretion when he
ignored the glaring inconsistencies in the
certifications submitted early on by Roxas & Co. in
support of its application vis--vis the certifications
it later submitted when the DAR Secretary
reopened DAR Administrative Case No. A-9999142-97.
Notably, then DAR Secretary Horacio Morales, on
one hand, observed that the "landholdings covered
by the aforesaid titles do not correspond to the
Certification dated February 11, 1998 of the
[HLURB], the Certification dated September 12,
1996 issued by the Municipal Planning and
Development Coordinator, and the Certifications
dated July 31, 1997 and May 27, 1997 issued by
the National Irrigation Authority." On the other hand,
then Secretary Hernani Braganza relied on a
different set of certifications which were issued later
or on September 19, 1996.
In this regard, the Court finds in order the
observation of DAMBA-NFSW that Roxas & Co.
should have submitted the comprehensive land use
plan and pointed therein the exact locations of the
properties to prove that indeed they are within the
area of coverage of Nasugbu MZO No. 4.
The petitions in G.R. Nos. 179650 & 149548 must

be distinguished from Junio v. Garilao 33 wherein
the certifications submitted in support of the
application for exemption of the therein subject lot
were mainly considered on the presumption of
regularity in their issuance, there being no doubt on
the location and identity of the subject lot. 34 In
G.R. No. 179650, there exist uncertainties on the
location and identities of the properties being
applied for exemption.
G.R. No. 179650 & G.R. No. 149548 must
accordingly be denied for lack of merit.
III. ROXAS & CO.'S APPLICATION FOR CARP
EXEMPTION IN DAR Administrative Case No. A9999-008-98 FOR THE NINE PARCELS OF LAND
IN HACIENDA PALICO SUBJECT OF G.R. NO.
167505 SHOULD BE GRANTED.
The Court, however, takes a different stance with
respect to Roxas & Co.'s application for CARP
exemption in DAR Administrative Case No. A-9999008-98 over nine parcels of land identified as Lot
Nos. 20, 13, 37, 19-B, 45, 47, 49, 48-1 and 48-2
which are portions of TCT No. 985 covering
45.9771 hectares in Hacienda Palico, subject of
G.R. No. 167505.
In its application, Roxas & Co. submitted the
following documents:
1. Letter-application dated 29 September 1997
signed by Elino SJ. Napigkit, for and on behalf of
Roxas & Company, Inc., seeking exemption from
CARP coverage of subject landholdings;
2. Secretary's Certificate dated September 2002
executed by Mariano M. Ampil III, Corporate
Secretary of Roxas & Company, Inc., indicating a
Board Resolution authorizing him to represent the
corporation in its application for exemption with the
DAR. The same Board Resolution revoked the
authorization previously granted to the Sierra
Management & Resources Corporation;
3. Photocopy of TCT No. 985 and its corresponding
Tax Declaration No. 0401; TaISEH
4. Location
landholdings;
and
vicinity
maps
of
subject
5. Certification dated 10 July 1997 issued by

Reynaldo Garcia, Municipal Planning and
Development Coordinator (MPDC) and Zoning
Administrator of Nasugbu, Batangas, stating that
the subject parcels of land are within the Urban
Core Zone as specified in Zone A. VII of Municipal
Zoning Ordinance No. 4, Series of 1982, approved
by the Human Settlements Regulatory Commission
(HSRC), now the Housing and Land Use
Regulatory Board (HLURB), under Resolution No.
123, Series of 1983, dated 4 May 1983;
6. Two (2) Certifications both dated 31 August
1998, issued by Alfredo Tan II, Director, HLURB,
Region IV, stating that the subject parcels of land
appear to be within the Residential cluster Area as
specified in Zone VII of Municipal Zoning Ordinance
No. 4, Series of 1982, approved under HSRC
234
Resolution No. 123, Series of 1983, dated 4 May

1983; 35
situation of the above-quoted Supreme Court

Decision, oppositors-movants only hold the
property in trust for the rightful owners of the land
and are not the owners of subject landholding who
should be notified of the exemption application of
applicant Roxas & Company, Incorporated.
xxx xxx xxx (emphasis and underscoring supplied)

By Order of November 6, 2002, the DAR Secretary
granted the application for exemption but issued
the following conditions:
1. The farmer-occupants within subject parcels of
land shall be maintained in their peaceful
possession and cultivation of their respective areas
of tillage until a final determination has been made
on the amount of disturbance compensation due
and entitlement of such farmer-occupants thereto
by the PARAD of Batangas;
Finally, this Office finds no substantial basis to

reverse the assailed Orders since there is
substantial compliance by the applicant with the
requirements for the issuance of exemption
clearance under DAR AO 6 (1994). 37
On DAMBA-NSFW's petition for certiorari, the
Court of Appeals, noting that the petition was
belatedly filed, sustained, by Decision of December
20, 1994 and Resolution of May 7, 2007, 38 the
DAR Secretary's finding that Roxas & Co. had
substantially complied with the prerequisites of
DAR AO 6, Series of 1994. Hence, DAMBANFSW's petition in G.R. No. 167505.
The Court finds no reversible error in the Court of
Appeals' assailed issuances, the orders of the DAR
Secretary which it sustained being amply supported
by evidence.
IV. THE CLOAs ISSUED BY THE DAR in
ADMINISTRATIVE CASE NO. A-9999-008-98
SUBJECT OF G.R. No. 179650 TO THE FARMERBENEFICIARIES
INVOLVING
THE
NINE
PARCELS OF LAND IN HACIENDA PALICO MUST
BE CANCELLED. TAacIE
Turning now to the validity of the issuance of
CLOAs in Hacienda Palico vis--vis the present
dispositions: It bears recalling that in DAR
Administrative Case Nos. A-9999-008-98 and A9999-142-97 (G.R. No. 179650), the Court ruled for
Roxas & Co.'s grant of exemption in DAR
Administrative Case No. A-9999-008-98 but denied
the grant of exemption in DAR Administrative Case
No. A-9999-142-97 for reasons already discussed.
It follows that the CLOAs issued to the farmerbeneficiaries in DAR Administrative Case No. A9999-008-98 must be cancelled.
But first, the Court digresses. The assertion of
DAMBA-NSFW that the petitions for partial and
complete cancellations of the CLOAs subject of
DARAB Case Nos. R-401-003-2001 to R-401-0052001 and No. 401-239-2001 violated the earlier
order in Roxas v. Court of Appeals does not lie.
Nowhere did the Court therein pronounce that the
CLOAs issued "cannot and should not be
cancelled," what was involved therein being the
legality of the acquisition proceedings. The Court
merely reiterated that it is the DAR which has
primary jurisdiction to rule on the validity of CLOAs.
Thus it held:
. . . [t]he failure of respondent DAR to comply with
the requisites of due process in the acquisition
proceedings does not give this Court the power to
nullify the [CLOAs] already issued to the farmerbeneficiaries. To assume the power is to shortcircuit the administrative process, which has yet to
run its regular course. Respondent DAR must be
given the chance to correct its procedural lapses in
the acquisition proceedings. . . . . Anyhow, the
2. No development shall be undertaken within the

subject parcels of land until the appropriate
disturbance compensation has been paid to the
farmer-occupants who are determined by the
PARAD to be entitled thereto. Proof of payment of
disturbance compensation shall be submitted to
this Office within ten (10) days from such payment;
and
3. The cancellation of the CLOA issued to the
farmer-beneficiaries shall be subject of a separate
proceeding before the PARAD of Batangas. 36
DAMBA-NSFW moved for reconsideration but the
DAR Secretary denied the same and explained
further why CLOA holders need not be informed of
the pending application for exemption in this wise:
As regards the first ground raised by [DAMBANSFW], it should be remembered that an
application for CARP-exemption pursuant to DOJ
Opinion No. 44, series of 1990, as implemented by
DAR Administrative Order No. 6, series of 1994, is
non-adversarial or non-litigious in nature. Hence,
applicant is correct in saying that nowhere in the
rules is it required that occupants of a landholding
should be notified of an initiated or pending
exemption application.
xxx xxx xxx
With regard [to] the allegation that oppositorsmovants are already CLOA holders of subject
propert[ies] and deserve to be notified, as owners,
of the initiated questioned exemption application, is
of no moment. The Supreme Court in the case of
Roxas [&] Co., Inc. v. Court of Appeals, 321 SCRA
106, held:
"We stress that the failure of respondent DAR to
comply with the requisites of due process in the
acquisition proceedings does not give this Court the
power to nullify the CLOA's already issued to the
farmer beneficiaries. . . . . Anyhow, the
farmer[-]beneficiaries hold the property in trust for
the rightful owner of the land."
Since subject landholding has been validly
determined to be CARP-exempt, therefore, the
previous issuance of the CLOA of oppositorsmovants is erroneous. Hence, similar to the
235
farmer beneficiaries hold the property in trust for

the rightful owner of the land. 39
Roxas & Co. is thus mandated to first satisfy the

disturbance compensation of affected farmerbeneficiaries in the areas covered by the nine
parcels of lands in DAR AO No. A-9999-008-98
before the CLOAs covering them can be cancelled.
And it is enjoined to strictly follow the instructions of
R.A. No. 3844.
Finally then, and in view of the Court's dispositions
in G.R. Nos. 179650 and 167505, the May 27, 2001
Decision of the Provincial Agrarian Reform
Adjudicator (PARAD) 44 in DARAB Case No. 401239-2001 ordering the total cancellation of CLOA
No. 6654, subject of G.R. No. 169163, is SET
ASIDE except with respect to the CLOAs issued for
Lot Nos. 20, 13, 37, 19-B, 45, 47, 49, 48-1 and 48-2
which are portions of TCT No. 985 covering
45.9771 hectares in Hacienda Palico (or those
covered by DAR Administrative Case No. A-9999008-98). It goes without saying that the motion for
reconsideration of DAMBA-NFSW is granted to
thus vacate the Court's October 19, 2005
Resolution dismissing DAMBA-NFSW's petition for
review of the appellate court's Decision in CA-G.R.
SP No. 75952; 45
WHEREFORE,
1) In G.R. No. 167540, the Court REVERSES and
SETS ASIDE the November 24, 2003 Decision 46
and March 18, 2005 Resolution of the Court of
Appeals in CA-G.R. SP No. 72131 which declared
that Presidential Proclamation No. 1520 reclassified
the lands in the municipalities of Nasugbu in
Batangas and Maragondon and Ternate in Cavite to
non-agricultural use;
2) The Court accordingly GRANTS the Motion for
Reconsideration of the Department of Agrarian
Reform in G.R. No. 167543 and REVERSES and
SETS ASIDE its Resolution of June 20, 2005;
3) In G.R. No. 149548, the Court DENIES the
petition for review of Roxas & Co. for lack of merit;
4) In G.R. No. 179650, the Court GRANTS the
petition for review of DAMBA-NSFW and
REVERSES and SETS ASIDE the October 31,
2006 Decision and August 16, 2007 Resolution of
the Court of Appeals in CA-G.R. SP No. 82225;
5) In G.R. No. 167505, the Court DENIES the
petition for review of DAMBA-NSFW and AFFIRMS
the December 20, 2004 Decision and March 7,
2005 Resolution of the Court of Appeals in CA-G.R.
SP No. 82226;
6) In G.R. No. 167845, the Court DENIES Roxas &
Co.'s petition for review for lack of merit and
AFFIRMS the September 10, 2004 Decision and
April 14, 2005 Resolution of the Court of Appeals;
7) In G.R. No. 169163, the Court SETS ASIDE the
Decisions of the Provincial Agrarian Reform
Adjudicator in DARAB Case No. 401-239-2001
ordering the cancellation of CLOA No. 6654 and
DARAB Cases Nos. R-401-003-2001 to No. R-401005-2001 granting the partial cancellation of CLOA
No. 6654. The CLOAs issued for Lots No. 21 No.
24, No. 26, No. 31, No. 32 and No. 34 or those
covered by DAR Administrative Case No. A-9999142-97) remain; and
8) Roxas & Co. is ORDERED to pay the
disturbance compensation of affected farmer-
On the procedural question raised by Roxas & Co.

on the appellate court's relaxation of the rules by
giving due course to DAMBA-NFSW's appeal in CA
G.R. SP No. 72198, the subject of G.R. No.
167845:
Indeed, the perfection of an appeal within the
statutory period is jurisdictional and failure to do so
renders the assailed decision final and executory.
40 A relaxation of the rules may, however, for
meritorious reasons, be allowed in the interest of
justice. 41 The Court finds that in giving due course
to DAMBA-NSFW's appeal, the appellate court
committed no reversible error. Consider its
ratiocination:
. . . . To deny [DAMBA-NSFW]'s appeal with the
PARAD will not only affect their right over the parcel
of land subject of this petition with an area of
103.1436 hectares, but also that of the whole area
covered by CLOA No. 6654 since the PARAD
rendered a Joint Resolution of the Motion for
Reconsideration filed by the [DAMBA-NSFW] with
regard to [Roxas & Co.]'s application for partial and
total cancellation of the CLOA in DARAB Cases No.
R-401-003-2001 to R-401-005-2001 and No. 401239-2001. There is a pressing need for an
extensive discussion of the issues as raised by
both parties as the matter of canceling CLOA No.
6654 is of utmost importance, involving as it does
the probable displacement of hundreds of farmerbeneficiaries and their families. . . . (underscoring
supplied)
Unlike courts of justice, the DARAB, as a quasijudicial body, is not bound to strictly observe rules
of procedure and evidence. To strictly enforce rules
on appeals in this case would render to naught the
Court's dispositions on the other issues in these
consolidated petitions.
In the main, there is no logical recourse except to
cancel the CLOAs issued for the nine parcels of
land identified as Lot Nos. 20, 13, 37, 19-B, 45, 47,
49, 48-1 and 48-2 which are portions of TCT No.
985 covering 45.9771 hectares in Hacienda Palico
(or those covered by DAR Administrative Case No.
A-9999-008-98). As for the rest of the CLOAs, they
should be respected since Roxas & Co., as shown
in the discussion in G.R. Nos. 167540, 167543 and
167505, failed to prove that the other lots in
Hacienda Palico and the other two haciendas,
aside from the above-mentioned nine lots, are
CARP-exempt.
Conformably, Republic Act No. 3844 (R.A. No.
3844), as amended, 42 mandates that disturbance
compensation be given to tenants of parcels of land
upon finding that "(t)he landholding is declared by
the department head upon recommendation of the
National Planning Commission to be suited for
residential, commercial, industrial or some other
urban purposes." 43 In addition, DAR AO No. 6,
Series of 1994 directs the payment of disturbance
compensation before the application for exemption
may be completely granted. HDTCSI
236
beneficiaries in the areas covered by the nine

parcels of lands in DAR Administrative Case No. A9999-008-98 before the CLOAs therein can be
cancelled, and is ENJOINED to strictly follow the
mandate of R.A. No. 3844.
3. Royalty Fees
Suppliers delivering fuel from outside sources shall
be assessed the following royalty fees:
SO ORDERED. CacTSI
- Php0.50 per liter those delivering Coastal

petroleum fuel to CSEZ locators not sanctioned by
CDC
Carpio, Corona, Velasco, Jr., Peralta, Del Castillo,

Abad and Villarama, Jr., JJ., concur.
- Php1.00 per liter those bringing-in petroleum

fuel (except Jet A-1) from outside sources
Puno, C.J., see separate opinion.
xxx xxx xxx
Chico-Nazario, J., please see dissenting opinion.
4. Gate Pass Fee
Nachura, Brion and Bersamin, JJ., took no part.
xxx xxx xxx 5
Leonardo-de Castro, J., I join the dissent of Justice

Minita Chico-Nazario.
The above policy guidelines were implemented

effective July 27, 2002. On October 1, 2002, CDC
sent a letter 6 to herein petitioner Chevron
Philippines, Inc. (formerly Caltex Philippines, Inc.),
a domestic corporation which has been supplying
fuel to Nanox Philippines, a locator inside the CSEZ
since 2001, informing the petitioner that a royalty
fee of P0.50 per liter shall be assessed on its
deliveries to Nanox Philippines effective August 1,
2002. Thereafter, on October 21, 2002 a Statement
of Account 7 was sent by CDC billing the petitioner
for royalty fees in the amount of P115,000.00 for its
fuel sales from Coastal depot to Nanox Philippines
from August 1-31 to September 3-21, 2002.
Claiming that nothing in the law authorizes CDC to
impose royalty fees or any fees based on a per unit
measurement of any commodity sold within the
special economic zone, petitioner sent a letter 8
dated October 30, 2002 to the President and Chief
Executive Officer of CDC, Mr. Emmanuel Y.
Angeles, to protest the assessment for royalty fees.
Petitioner nevertheless paid the said fees under
protest on November 4, 2002. CcTIDH
On August 18, 2003, CDC again wrote a letter 9 to
petitioner regarding the latter's unsettled royalty
fees covering the period of December 2002 to July
2003. Petitioner responded through a letter 10
dated September 8, 2003 reiterating its continuing
objection over the assessed royalty fees and
requested a refund of the amount paid under
protest on November 4, 2002. The letter also asked
CDC to revoke the imposition of such royalty fees.
The request was denied by CDC in a letter 11
dated September 29, 2003.
Petitioner elevated its protest before respondent
Bases Conversion Development Authority (BCDA)
arguing that the royalty fees imposed had no
reasonable relation to the probable expenses of
regulation and that the imposition on a per unit
measurement of fuel sales was for a revenue
generating purpose, thus, akin to a "tax". The
protest was however denied by BCDA in a letter 12
dated March 3, 2004.
Petitioner appealed to the Office of the President
which dismissed 13 the appeal for lack of merit on
August 2, 2004 and denied 14 petitioner's motion
for reconsideration thereof on September 30, 2004.
||| (Roxas & Co., Inc. v. DAMBA-NFSW, G.R. No.

149548, 167505, 167540, 167543, 167845,
169163, 179650, [December 4, 2009], 622 PHIL
37-200)
5. CHEVRON VS. BCDA 630 SCRA 519
(2010)
THIRD DIVISION
[G.R. No. 173863. September 15, 2010.]
CHEVRON PHILIPPINES, INC. (Formerly CALTEX
PHILIPPINES, INC.), petitioner, vs. BASES
CONVERSION DEVELOPMENT AUTHORITY and
CLARK
DEVELOPMENT
CORPORATION,
respondents.
DECISION
This petition for review on certiorari assails the
Decision 1 dated November 30, 2005 of the Court
of Appeals (CA) in CA-G.R. SP No. 87117, which
affirmed the Resolution 2 dated August 2, 2004 and
the Order 3 dated September 30, 2004 of the Office
of the President in O.P. Case No. 04-D-170.
SaCIDT
The facts follow.
On June 28, 2002, the Board of Directors of
respondent Clark Development Corporation (CDC)
issued and approved Policy Guidelines on the
Movement of Petroleum Fuel to and from the Clark
Special Economic Zone (CSEZ) 4 which provided,
among others, for the following fees and charges:
1. Accreditation Fee
xxx xxx xxx
2. Annual Inspection Fee
xxx xxx xxx
237
Aggrieved, petitioner elevated the case to the CA

which likewise dismissed 15 the appeal for lack of
merit on November 30, 2005 and denied 16 the
motion for reconsideration on July 26, 2006.
The CA held that in imposing the challenged royalty
fees, respondent CDC was exercising its right to
regulate the flow of fuel into CSEZ, which is
bolstered by the fact that it possesses exclusive
right to distribute fuel within CSEZ pursuant to its
Joint Venture Agreement (JVA) 17 with Subic Bay
Metropolitan Authority (SBMA) and Coastal Subic
Bay Terminal, Inc. (CSBTI) dated April 11, 1996.
The appellate court also found that royalty fees
were assessed on fuel delivered, not on the sale,
by petitioner and that the basis of such imposition
was petitioner's delivery receipts to Nanox
Philippines. The fact that revenue is incidentally
also obtained does not make the imposition a tax
as long as the primary purpose of such imposition
is regulation. 18
Petitioner filed a motion for reconsideration but the
CA denied the same in its Resolution 19 dated July
26, 2006.
Hence, this petition raising the following grounds:
I. THE ISSUE RAISED BEFORE THE COURT A
QUO IS A QUESTION OF SUBSTANCE NOT
HERETOFORE
DETERMINED
BY
THE
HONORABLE SUPREME COURT.
no power to impose. Petitioner stresses that the

royalty fee imposed by CDC is not regulatory in
nature but a revenue generating measure to
increase its profits and to further enhance its
exclusive right to market and distribute fuel in
CSEZ. 21
Petitioner would also like this Court to note that the
fees imposed, assuming arguendo they are
regulatory in nature, are unreasonable and are
grossly in excess of regulation costs. It adds that
the amount of the fees should be presumed to be
unreasonable and that the burden of proving that
the fees are not unreasonable lies with the
respondents. 22
On the part of the respondents, they argue that the
purpose of the royalty fees is to regulate the flow of
fuel to and from the CSEZ. Such being its main
purpose, and revenue (if any) just an incidental
product, the imposition cannot be considered a tax.
It is their position that the regulation is a valid
exercise of police power since it is aimed at
promoting the general welfare of the public. They
claim that being the administrator of the CSEZ,
CDC is responsible for the safe distribution of fuel
products inside the CSEZ. 23
The petition has no merit.
In distinguishing tax and regulation as a form of
police power, the determining factor is the purpose
of the implemented measure. If the purpose is
primarily to raise revenue, then it will be deemed a
tax even though the measure results in some form
of regulation. On the other hand, if the purpose is
primarily to regulate, then it is deemed a regulation
and an exercise of the police power of the state,
even though incidentally, revenue is generated.
Thus, in Gerochi v. Department of Energy, 24 the
Court stated:
The conservative and pivotal distinction between
these two (2) powers rests in the purpose for which
the charge is made. If generation of revenue is the
primary purpose and regulation is merely incidental,
the imposition is a tax; but if regulation is the
primary purpose, the fact that revenue is
incidentally raised does not make the imposition a
tax.
II. THE RULING OF THE COURT OF APPEALS

THAT THE CDC HAS THE POWER TO IMPOSE
THE QUESTIONED "ROYALTY FEES" IS
CONTRARY TO LAW.
III. THE COURT OF APPEALS WAS MANIFESTLY
MISTAKEN AND COMMITTED GRAVE ABUSE OF
DISCRETION
AND
A
CLEAR
MISUNDERSTANDING OF FACTS WHEN IT
RULED CONTRARY TO THE EVIDENCE THAT: (i)
THE
QUESTIONED
"ROYALTY
FEE"
IS
PRIMARILY FOR REGULATION; AND (ii) ANY
REVENUE EARNED THEREFROM IS MERELY
INCIDENTAL
TO
THE
PURPOSE
OF
REGULATION.
IV. THE COURT OF APPEALS FAILED TO GIVE
DUE WEIGHT AND CONSIDERATION TO THE
EVIDENCE PRESENTED BY CPI SUCH AS THE
LETTERS COMING FROM RESPONDENT CDC
ITSELF PROVING THAT THE QUESTIONED
ROYALTY FEES ARE IMPOSED ON THE BASIS
OF FUEL SALES (NOT DELIVERY OF FUEL) AND
NOT FOR REGULATION BUT PURELY FOR
INCOME GENERATION, I.E., AS PRICE OR
CONSIDERATION FOR THE RIGHT TO MARKET
AND DISTRIBUTE FUEL INSIDE THE CSEZ. 20
SECHIA
In the case at bar, we hold that the subject royalty

fee was imposed primarily for regulatory purposes,
and not for the generation of income or profits as
petitioner claims. The Policy Guidelines on the
Movement of Petroleum Fuel to and from the Clark
Special Economic Zone 25 provides: EDcICT
DECLARATION OF POLICY
It is hereby declared the policy of CDC to develop
and maintain the Clark Special Economic Zone
(CSEZ) as a highly secured zone free from threats
of any kind, which could possibly endanger the
lives and properties of locators, would-be investors,
visitors, and employees.
Petitioner argues that CDC does not have any

power to impose royalty fees on sale of fuel inside
the CSEZ on the basis of purely income generating
functions and its exclusive right to market and
distribute goods inside the CSEZ. Such imposition
of royalty fees for revenue generating purposes
would amount to a tax, which the respondents have
It is also declared the policy of CDC to operate and

manage the CSEZ as a separate customs territory
ensuring free flow or movement of goods and
238
capital within, into and exported out of the CSEZ.

26 (Emphasis supplied.)
other facilities and services necessary or useful in

the conduct of commerce or in the attainment of the
purposes and objectives of this Decree;
From the foregoing, it can be gleaned that the

Policy Guidelines was issued, first and foremost, to
ensure the safety, security, and good condition of
the petroleum fuel industry within the CSEZ. The
questioned royalty fees form part of the regulatory
framework to ensure "free flow or movement" of
petroleum fuel to and from the CSEZ. The fact that
respondents have the exclusive right to distribute
and market petroleum products within CSEZ
pursuant to its JVA with SBMA and CSBTI does not
diminish the regulatory purpose of the royalty fee
for fuel products supplied by petitioner to its client
at the CSEZ.
As pointed out by the respondents in their
Comment, from the time the JVA took effect up to
the time CDC implemented its Policy Guidelines on
the Movement of Petroleum Fuel to and from the
CSEZ, suppliers/distributors were allowed to bring
in petroleum products inside CSEZ without any
charge at all. But this arrangement clearly negates
CDC's mandate under the JVA as exclusive
distributor of CSBTI's fuel products within CSEZ
and respondents' ownership of the Subic-Clark
Pipeline. 27 On this score, respondents were
justified in charging royalty fees on fuel delivered by
outside suppliers.
However, it was erroneous for petitioner to argue
that such exclusive right of respondent CDC to
market and distribute fuel inside CSEZ is the sole
basis of the royalty fees imposed under the Policy
Guidelines. Being the administrator of CSEZ, the
responsibility of ensuring the safe, efficient and
orderly distribution of fuel products within the Zone
falls on CDC. Addressing specific concerns
demanded by the nature of goods or products
involved is encompassed in the range of services
which respondent CDC is expected to provide
under the law, in pursuance of its general power of
supervision and control over the movement of all
supplies and equipment into the CSEZ.
Section 2 of Executive Order No. 80 28 provides:
SEC. 2. Powers and Functions of the Clark
Development Corporation. The BCDA, as the
incorporator and holding company of its Clark
subsidiary, shall determine the powers and
functions of the CDC. Pursuant to Section 15 of RA
7227, the CDC shall have the specific powers of
the Export Processing Zone Authority as provided
for in Section 4 of Presidential Decree No. 66
(1972) as amended. IHSTDE
xxx xxx xxx

(g) To fix, assess and collect storage charges and
fees, including rentals for the lease, use or
occupancy
of
lands,
buildings,
structure,
warehouses, facilities and other properties owned
and administered by the Authority; and to fix and
collect the fees and charges for the issuance of
permits, licenses and the rendering of services not
enumerated herein, the provisions of law to the
contrary notwithstanding;
(h) For the due and effective exercise of the powers
conferred by law and to the extend (sic) [extent]
requisite therefor, to exercise exclusive jurisdiction
and sole police authority over all areas owned or
administered by the Authority. For this purpose, the
Authority shall have supervision and control over
the bringing in or taking out of the Zone, including
the movement therein, of all cargoes, wares,
articles, machineries, equipment, supplies or
merchandise of every type and description;
xxx xxx xxx (Emphasis supplied.)
In relation to the regulatory purpose of the imposed
fees, this Court in Progressive Development
Corporation v. Quezon City, 29 stated that ". . . the
imposition questioned must relate to an occupation
or activity that so engages the public interest in
health, morals, safety and development as to
require regulation for the protection and promotion
of such public interest; the imposition must also
bear a reasonable relation to the probable
expenses of regulation, taking into account not only
the costs of direct regulation but also its incidental
consequences as well."
In the case at bar, there can be no doubt that the oil
industry is greatly imbued with public interest as it
vitally affects the general welfare. 30 In addition,
fuel is a highly combustible product which, if left
unchecked, poses a serious threat to life and
property. Also, the reasonable relation between the
royalty fees imposed on a "per liter" basis and the
regulation sought to be attained is that the higher
the volume of fuel entering CSEZ, the greater the
extent and frequency of supervision and inspection
required to ensure safety, security, and order within
the Zone. aEACcS
Respondents submit that increased administrative
costs were triggered by security risks that have
recently emerged, such as terrorist strikes in
airlines
and
military/government
facilities.
Explaining the regulatory feature of the charges
imposed under the Policy Guidelines, then BCDA
President Rufo Colayco in his letter dated March 3,
2004 addressed to petitioner's Chief Corporate
Counsel, stressed:
The need for regulation is more evident in the light
of the 9/11 tragedy considering that what is being
moved from one location to another are highly
Among those specific powers granted to CDC

under Section 4 of Presidential Decree No. 66 are:
(a) To operate, administer and manage the export
processing zone established in the Port of
Mariveles, Bataan, and such other export
processing zones as may be established under this
Decree; to construct, acquire, own, lease, operate
and maintain infrastructure facilities, factory
building, warehouses, dams, reservoir, water
distribution, electric light and power system,
telecommunications and transportation, or such
239
combustible fuel products that could cause loss of

lives and damage to properties, hence, a set of
guidelines was promulgated on 28 June 2002. It
must be emphasized also that greater security
measure must be observed in the CSEZ because
of the presence of the airport which is a vital public
infrastructure.
mandate for the development of a self-reliant and

independent
national
economy
effectively
The Facts and the Case
On March 7, 2000 President Joseph E. Estrada
signed into law Republic Act (R.A.) 8762, also
known as the Retail Trade Liberalization Act of
2000. It expressly repealed R.A. 1180, which
absolutely prohibited foreign nationals from
engaging in the retail trade business. R.A. 8762
now allows them to do so under four categories:
Category A
Less
than
US$2,500,000.00
Exclusively for Filipino citizens
and corporations wholly owned by
Filipino citizens.
We are therefore constrained to sustain the

imposition of the royalty fees on deliveries of CPI's
fuel products to Nanox Philippines. 31
As to the issue of reasonableness of the amount of
the fees, we hold that no evidence was adduced by
the petitioner to show that the fees imposed are
unreasonable.
Administrative issuances have the force and effect
of law. 32 They benefit from the same presumption
of validity and constitutionality enjoyed by statutes.
These two precepts place a heavy burden upon
any party assailing governmental regulations. 33
Petitioner's plain allegations are simply not enough
to overcome the presumption of validity and
reasonableness of the subject imposition.
WHEREFORE, the petition is DENIED for lack of
merit and the Decision of the Court of Appeals
dated November 30, 2005 in CA-G.R. SP No.
87117 is hereby AFFIRMED.
With costs against the petitioner. THAICD
SO ORDERED.
Carpio Morales, Peralta, * Bersamin and Sereno,
JJ., concur.
||| (Chevron Philippines, Inc. v. Bases Conversion
Development Authority, G.R. No. 173863,
[September 15, 2010], 645 PHIL 84-96)
Category B
US$2,500,000.00 up but less For the
first two years of R.A.
than US$7,500,000.00
8762's
effectivity, foreign
ownership is allowed up to 60%.
After the two-year period, 100%
foreign equity shall be allowed.
Category C US$7,500,000.00 or more
May
be wholly owned by
foreigners. Foreign investments
for establishing a store in
Categories B and C shall not be
less than the equivalent in
Philippine Pesos of
US$830,000.00.
Category D US$250,000.00 per store of May
be wholly owned by
foreign
enterprises
specializing
foreigners.
in high-end or luxury products
R.A. 8762 also allows natural-born Filipino citizens,
who had lost their citizenship and now reside in the
Philippines, to engage in the retail trade business
with the same rights as Filipino citizens. CIAacS
On October 11, 2000 petitioners Magtanggol T.
Gunigundo I, Michael T. Defensor, Gerardo S.
Espina, Benjamin S. Lim, Orlando Fua, Jr.,
Prospero Amatong, Sergio Apostol, Robert Ace S.
Barbers, Enrique Garcia, Jr., Raul M. Gonzales,
Jaime Jacob, Apolinario Lozada, Jr., Leonardo
Montemayor, Ma. Elena Palma-Gil, Prospero
Pichay, Juan Miguel Zubiri and Franklin Bautista, all
members of the House of Representatives, filed the
present petition, assailing the constitutionality of
R.A. 8762 on the following grounds:
First, the law runs afoul of Sections 9, 19, and 20 of
Article II of the Constitution which enjoins the State
to place the national economy under the control of
Filipinos to achieve equal distribution of
opportunities, promote industrialization and full
employment, and protect Filipino enterprise against
unfair competition and trade policies.
Second, the implementation of R.A. 8762 would
lead to alien control of the retail trade, which taken
together with alien dominance of other areas of
business, would result in the loss of effective
Filipino control of the economy.
6. ESPINA VS. ZAMORA 631 SCRA 17

(2010)
EN BANC
[G.R. No. 143855. September 21, 2010.]
REPRESENTATIVES GERARDO S. ESPINA,
ORLANDO FUA, JR., PROSPERO AMATONG,
ROBERT ACE S. BARBERS, RAUL M.
GONZALES, PROSPERO PICHAY, JUAN MIGUEL
ZUBIRI and FRANKLIN BAUTISTA, petitioners, vs.
HON. RONALDO ZAMORA, JR. (Executive
Secretary), HON. MAR ROXAS (Secretary of Trade
and Industry), HON. FELIPE MEDALLA (Secretary
of National Economic and Development Authority),
GOV. RAFAEL BUENAVENTURA (Bangko Sentral
ng Pilipinas) and HON. LILIA BAUTISTA
(Chairman, Securities and Exchange Commission),
respondents.
DECISION
ABAD, J p:
This case calls upon the Court to exercise its power
of judicial review and determine the constitutionality
of the Retail Trade Liberalization Act of 2000, which
has been assailed as in breach of the constitutional
240
Third, foreign retailers like Walmart and K-Mart

would crush Filipino retailers and sari-sari store
vendors, destroy self-employment, and bring about
more unemployment.
Fourth, the World Bank-International Monetary
Fund had improperly imposed the passage of R.A.
8762 on the government as a condition for the
release of certain loans.
Fifth, there is a clear and present danger that the
law would promote monopolies or combinations in
restraint of trade.
Respondents
Executive
Secretary
Ronaldo
Zamora, Jr., Trade and Industry Secretary Mar
Roxas, National Economic and Development
Authority (NEDA) Secretary Felipe Medalla,
Bangko Sentral ng Pilipinas Gov. Rafael
Buenaventura, and Securities and Exchange
Commission Chairman Lilia Bautista countered
that:
First, petitioners have no legal standing to file the
petition. They cannot invoke the fact that they are
taxpayers since R.A. 8762 does not involve the
disbursement of public funds. Nor can they invoke
the fact that they are members of Congress since
they made no claim that the law infringes on their
right as legislators.
Second, the petition does not involve any justiciable
controversy. Petitioners of course claim that, as
members of Congress, they represent the small
retail vendors in their respective districts but the
petition does not allege that the subject law violates
the rights of those vendors.
Third, petitioners have failed to overcome the
presumption of constitutionality of R.A. 8762.
Indeed, they could not specify how the new law
violates the constitutional provisions they cite.
Sections 9, 19, and 20 of Article II of the
Constitution are not self-executing provisions that
are judicially demandable.
Fourth, the Constitution mandates the regulation
but not the prohibition of foreign investments. It
directs Congress to reserve to Filipino citizens
certain
areas
of
investments
upon
the
recommendation of the NEDA and when the
national interest so dictates. But the Constitution
leaves to the discretion of the Congress whether or
not to make such reservation. It does not prohibit
Congress from enacting laws allowing the entry of
foreigners into certain industries not reserved by
the Constitution to Filipino citizens.
The Issues Presented
Simplified, the case presents two issues:
substantial interest in that he has suffered or will

suffer direct injury as a result of the passage of that
law. 2 To put it another way, he must show that he
has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties
by reason of the law he complains of. 3
Here, there is no clear showing that the
implementation of the Retail Trade Liberalization
Act prejudices petitioners or inflicts damages on
them, either as taxpayers 4 or as legislators. 5 Still
the Court will resolve the question they raise since
the rule on standing can be relaxed for
nontraditional plaintiffs like ordinary citizens,
taxpayers, and legislators when as in this case the
public interest so requires or the matter is of
transcendental
importance,
of
overarching
significance to society, or of paramount public
interest. 6 EHCDSI
Two. Petitioners mainly argue that R.A. 8762
violates the mandate of the 1987 Constitution for
the State to develop a self-reliant and independent
national economy effectively controlled by Filipinos.
They invoke the provisions of the Declaration of
Principles and State Policies under Article II of the
1987 Constitution, which read as follows:
Section 9. The State shall promote a just and
dynamic social order that will ensure the prosperity
and independence of the nation and free the people
from poverty through policies that provide adequate
social services, promote full employment, a rising
standard of living, and an improved quality of life for
all.
xxx xxx xxx
Section 19. The State shall develop a self-reliant
and independent national economy effectively
Section 20. The State recognizes the indispensable
role of the private sector, encourages private
enterprise, and provides incentives to needed
investments.
Petitioners also invoke the provisions of the
National Economy and Patrimony under Article XII
of the 1987 Constitution, which reads:
Section
10.
The
Congress
shall,
upon
recommendation of the economic and planning
agency, when the national interest dictates, reserve
to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose
capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain
areas of investments. The Congress shall enact
measures that will encourage the formation and
operation of enterprises whose capital is wholly
owned by Filipinos.
1. Whether or not petitioner lawmakers have the

legal standing to challenge the constitutionality of
R.A. 8762; and
2. Whether or not R.A. 8762 is unconstitutional.
The Court's Ruling
One. The long settled rule is that he who
challenges the validity of a law must have a
standing to do so. 1 Legal standing or locus standi
refers to the right of a party to come to a court of
justice and make such a challenge. More
particularly, standing refers to his personal and
In the grant of rights, privileges, and concessions

State shall give preference to qualified Filipinos.
241
The State shall regulate and exercise authority over

foreign investments within its national jurisdiction
and in accordance with its national goals and
priorities.
them either. In fact, it allows an exchange on the

basis of equality and reciprocity, frowning only on
foreign competition that is unfair. 10 The key, as in
all economies in the world, is to strike a balance
between protecting local businesses and allowing
the entry of foreign investments and services.
More importantly, Section 10, Article XII of the 1987
Constitution gives Congress the discretion to
reserve to Filipinos certain areas of investments
upon the recommendation of the NEDA and when
the national interest requires. Thus, Congress can
determine what policy to pass and when to pass it
depending on the economic exigencies. It can
enact laws allowing the entry of foreigners into
certain industries not reserved by the Constitution
to Filipino citizens. In this case, Congress has
decided to open certain areas of the retail trade
business to foreign investments instead of
reserving them exclusively to Filipino citizens. The
NEDA has not opposed such policy.
The control and regulation of trade in the interest of
the public welfare is of course an exercise of the
police power of the State. A person's right to
property, whether he is a Filipino citizen or foreign
national, cannot be taken from him without due
process of law. In 1954, Congress enacted the
Retail Trade Nationalization Act or R.A. 1180 that
restricts the retail business to Filipino citizens. In
denying the petition assailing the validity of such
Act for violation of the foreigner's right to
substantive due process of law, the Supreme Court
held that the law constituted a valid exercise of
police power. 11 The State had an interest in
preventing alien control of the retail trade and R.A.
1180 was reasonably related to that purpose. That
law is not arbitrary.
Here, to the extent that R.A. 8762, the Retail Trade
Liberalization Act, lessens the restraint on the
foreigners' right to property or to engage in an
ordinarily lawful business, it cannot be said that the
law amounts to a denial of the Filipinos' right to
property and to due process of law. Filipinos
continue to have the right to engage in the kinds of
retail business to which the law in question has
permitted the entry of foreign investors.
Certainly, it is not within the province of the Court to
inquire into the wisdom of R.A. 8762 save when it
blatantly violates the Constitution. But as the Court
has said, there is no showing that the law has
contravened any constitutional mandate. The Court
is not convinced that the implementation of R.A.
8762 would eventually lead to alien control of the
retail trade business. Petitioners have not mustered
any concrete and strong argument to support its
thesis. The law itself has provided strict safeguards
on foreign participation in that business. Thus
First, aliens can only engage in retail trade
business subject to the categories aboveenumerated; Second, only nationals from, or
juridical entities formed or incorporated in countries
which allow the entry of Filipino retailers shall be
allowed to engage in retail trade business; and
Third, qualified foreign retailers shall not be allowed
to engage in certain retailing activities outside their
accredited stores through the use of mobile or
xxx xxx xxx

Section 12. The State shall promote the preferential
produced goods, and adopt measures that help
make them competitive.
Section 13. The State shall pursue a trade policy
that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis
of equality and reciprocity.
But, as the Court explained in Taada v. Angara, 7
the provisions of Article II of the 1987 Constitution,
the declarations of principles and state policies, are
not self-executing. Legislative failure to pursue
such policies cannot give rise to a cause of action
in the courts.
The Court further explained in Taada that Article
XII of the 1987 Constitution lays down the ideals of
economic nationalism: (1) by expressing preference
in favor of qualified Filipinos in the grant of rights,
privileges and concessions covering the national
economy and patrimony and in the use of Filipino
labor, domestic materials and locally-produced
goods; (2) by mandating the State to adopt
measures that help make them competitive; and (3)
by requiring the State to develop a self-reliant and
independent
national
economy
effectively
controlled by Filipinos. 8
In other words, while Section 19, Article II of the
1987 Constitution requires the development of a
self-reliant and independent national economy
effectively controlled by Filipino entrepreneurs, it
does not impose a policy of Filipino monopoly of
the economic environment. The objective is simply
to prohibit foreign powers or interests from
maneuvering our economic policies and ensure that
Filipinos are given preference in all areas of
development.
Indeed, the 1987 Constitution takes into account
the realities of the outside world as it requires the
pursuit of a trade policy that serves the general
welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity;
and speaks of industries which are competitive in
both domestic and foreign markets as well as of the
protection of Filipino enterprises against unfair
foreign competition and trade practices. Thus, while
the Constitution mandates a bias in favor of Filipino
goods, services, labor and enterprises, it also
recognizes the need for business exchange with
the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino
enterprises only against foreign competition and
trade practices that are unfair. 9 cEATSI
In other words, the 1987 Constitution does not rule
out the entry of foreign investments, goods, and
services. While it does not encourage their
unlimited entry into the country, it does not prohibit
242
rolling stores or carts, the use of sales

representatives, door-to-door selling, restaurants
and sari-sari stores and such other similar retailing
activities.
In sum, petitioners have not shown how the retail
trade liberalization has prejudiced and can
prejudice the local small and medium enterprises
since its implementation about a decade ago.
WHEREFORE, the Court DISMISSES the petition
for lack of merit. No costs.
Transfer Certificate Title (TCT) No. 91537. Located

within the property are SSA-Marikina, the residence
of the sisters of the Benedictine Order, the
formation house of the novices, and the retirement
house for the elderly sisters. The property is
enclosed by a tall concrete perimeter fence built
some thirty (30) years ago. Abutting the fence along
the West Drive are buildings, facilities, and other
improvements. 3
The petitioners are the officials of the City
Government of Marikina. On September 30, 1994,
the Sangguniang Panlungsod of Marikina City
enacted Ordinance No. 192, 4 entitled "Regulating
the Construction of Fences and Walls in the
Municipality of Marikina." In 1995 and 1998,
Ordinance Nos. 217 5 and 200 6 were enacted to
amend Sections 7 and 5, respectively. Ordinance
No. 192, as amended, is reproduced hereunder, as
follows: ITSacC
SO ORDERED. ScHADI
Corona, C.J., Carpio, Carpio Morales, Peralta,
Bersamin, Del Castillo, Villarama, Jr.and Perez, JJ.,
concur.
Velasco, Jr., Nachura, Leonardo-de Castro, Brion
and Mendoza, JJ., are on official leave.
Sereno, J., is on leave.
ORDINANCE No. 192

||| (Espina v. Zamora, Jr., G.R. No. 143855,
[September 21, 2010], 645 PHIL 269-281)
Series of 1994
7. FERNANDO VS. ST. SCHOLASTICA 693

SCRA 141 (2013)
ORDINANCE
REGULATING
THE
CONSTRUCTION OF FENCES AND WALLS IN
THE MUNICIPALITY OF MARIKINA
EN BANC
WHEREAS, under Section 447.2 of Republic Act
No. 7160 otherwise known as the Local
Government Code of 1991 empowers the
Sangguniang Bayan as the local legislative body of
the municipality to ". . . Prescribe reasonable limits
and restraints on the use of property within the
jurisdiction of the municipality, . . .";
[G.R. No. 161107. March 12, 2013.]

HON. MA. LOURDES C. FERNANDO, in her
capacity as City Mayor of Marikina City,
JOSEPHINE C. EVANGELISTA, in her capacity as
Chief, Permit Division, Office of the City Engineer,
and ALFONSO ESPIRITU, in his capacity as City
Engineer of Marikina City, petitioners, vs. ST.
SCHOLASTICA'S
COLLEGE
and
ST.
SCHOLASTICA'S ACADEMY-MARIKINA, INC.,
respondents.
WHEREAS the effort of the municipality to

accelerate its economic and physical development,
coupled with urbanization and modernization,
makes imperative the adoption of an ordinance
which shall embody up-to-date and modern
technical design in the construction of fences of
residential, commercial and industrial buildings;
DECISION
MENDOZA, J p:
WHEREAS, Presidential Decree No. 1096,

otherwise known as the National Building Code of
the Philippines, does not adequately provide
technical guidelines for the construction of fences,
in terms of design, construction, and criteria;
Before this Court is a petition for review on

certiorari under Rule 45 of the Rules of Court,
which seeks to set aside the December 1, 2003
Decision 1 of the Court of Appeals (CA) in CA-G.R.
SP No. 75691.
WHEREAS, the adoption of such technical

standards shall provide more efficient and effective
enforcement of laws on public safety and security;
The Facts
Respondents St. Scholastica's College (SSC) and
St. Scholastica's Academy-Marikina, Inc. (SSAMarikina) are educational institutions organized
under the laws of the Republic of the Philippines,
with principal offices and business addresses at
Leon Guinto Street, Malate, Manila, and at West
Drive, Marikina Heights, Marikina City, respectively.
2
WHEREAS, it has occurred in not just a few

occasions that high fences or walls did not actually
discourage but, in fact, even protected burglars,
robbers, and other lawless elements from the view
of outsiders once they have gained ingress into
these walls, hence, fences not necessarily
providing security, but becomes itself a "security
problem";
Respondent SSC is the owner of four (4) parcels of

land measuring a total of 56,306.80 square meters,
located in Marikina Heights and covered by
243
WHEREAS, to discourage, suppress or prevent the

concealment of prohibited or unlawful acts earlier
enumerated, and as guardian of the people of
Marikina, the municipal government seeks to enact
and implement rules and ordinances to protect and
promote the health, safety and morals of its
constituents; ITaCEc
d. Front gate refers to the gate which serves as

a passage of persons or vehicles fronting a street,
alley, or public thoroughfare.
Section 3. The standard height of fences or walls
allowed under this ordinance are as follows:
(1) Fences on the front yard shall be no more
than one (1) meter in height. Fences in excess of
one (1) meter shall be of an open fence type, at
least eighty percent (80%) see-thru; and
WHEREAS, consistent too, with the "Clean and

Green Program" of the government, lowering of
fences and walls shall encourage people to plant
more trees and ornamental plants in their yards,
and when visible, such trees and ornamental plants
are expected to create an aura of a clean, green
and beautiful environment for Marikeos;
(2) Fences on the side and back yard shall be in

accordance with the provisions of P.D. 1096
otherwise known as the National Building Code.
WHEREAS, high fences are unsightly that, in the

past, people planted on sidewalks to "beautify" the
faade of their residences but, however, become
hazards and obstructions to pedestrians;
Section 4. No fence of any kind shall be allowed in

areas specifically reserved or classified as parks.
Section 5. In no case shall walls and fences be built
within the five (5) meter parking area allowance
located between the front monument line and the
building line of commercial and industrial
establishments and educational and religious
institutions. 7
WHEREAS, high and solid walls as fences are

considered "un-neighborly" preventing community
members to easily communicate and socialize and
deemed to create "boxed-in" mentality among the
populace;
Section 6. Exemption.
WHEREAS, to gather as wide-range of opinions
and comments on this proposal, and as a
requirement of the Local Government Code of 1991
(R.A. 7160), the Sangguniang Bayan of Marikina
invited presidents or officers of homeowners
associations, and commercial and industrial
establishments in Marikina to two public hearings
held on July 28, 1994 and August 25, 1994;
(1) The Ordinance does not cover perimeter walls

of residential subdivisions.
(2) When public safety or public welfare requires,
the Sangguniang Bayan may allow the construction
and/or maintenance of walls higher than as
prescribed herein and shall issue a special permit
or exemption. SICDAa
WHEREAS, the rationale and mechanics of the

proposed ordinance were fully presented to the
attendees and no vehement objection was
presented to the municipal government;
Section 7. Transitory Provision. Real property

owners whose existing fences and walls do not
conform to the specifications herein are allowed
adequate period of time from the passage of this
Ordinance within which to conform, as follows:
NOW, THEREFORE, BE IT ORDAINED BY THE

SANGGUNIANG BAYAN OF MARIKINA IN
SESSION DULY ASSEMBLED:
(1) Residential houses eight (8) years
Section 1. Coverage. This Ordinance regulates

the construction of all fences, walls and gates on
lots classified or used for residential, commercial,
industrial, or special purposes.
(2) Commercial establishments five (5) years

(3) Industrial establishments three (3) years
(4) Educational institutions five (5) years 8
(public and privately owned)
Section 2. Definition of Terms.

a. Front Yard refers to the area of the lot fronting
a street, alley or public thoroughfare.
Section 8. Penalty. Walls found not conforming

to the provisions of this Ordinance shall be
demolished by the municipal government at the
expense of the owner of the lot or structure.
b. Back Yard the part of the lot at the rear of the

structure constructed therein. AcDaEH
Section 9. The Municipal Engineering Office is

tasked to strictly implement this ordinance,
including the issuance of the necessary
implementing guidelines, issuance of building and
fencing permits, and demolition of non-conforming
walls at the lapse of the grace period herein
provided.
c. Open fence type of fence which allows a view

of "thru-see" of the inner yard and the
improvements therein. (Examples: wrought iron,
wooden lattice, cyclone wire)
244
Section 10. Repealing Clause. All existing

Ordinances
and
Resolutions,
Rules
and
Regulations inconsistent with the foregoing
provisions are hereby repealed, amended or
modified.
The petitioners, on the other hand, countered that

the ordinance was a valid exercise of police power,
by virtue of which, they could restrain property
rights for the protection of public safety, health,
morals, or the promotion of public convenience and
general prosperity. 13
Section 11. Separability Clause. If for any reason

or reasons, local executive orders, rules and
regulations or parts thereof in conflict with this
Ordinance are hereby repealed and/or modified
accordingly.
On June 30, 2000, the RTC issued a writ of

preliminary injunction, enjoining the petitioners from
implementing the demolition of the fence at SSC's
Marikina property. 14
Section 12. Effectivity. This ordinance takes

effect after publication. THcaDA
Ruling of the RTC

On the merits, the RTC rendered a Decision, 15
dated October 2, 2002, granting the petition and
ordering the issuance of a writ of prohibition
commanding the petitioners to permanently desist
from enforcing or implementing Ordinance No. 192
on the respondents' property.
APPROVED: September 30, 1994

(Emphases supplied)
On April 2, 2000, the City Government of Marikina
sent a letter to the respondents ordering them to
demolish and replace the fence of their Marikina
property to make it 80% see-thru, and, at the same
time, to move it back about six (6) meters to
provide parking space for vehicles to park. 9 On
April 26, 2000, the respondents requested for an
extension of time to comply with the directive. 10 In
response, the petitioners, through then City Mayor
Bayani F. Fernando, insisted on the enforcement of
the subject ordinance.
The RTC agreed with the respondents that the

order of the petitioners to demolish the fence at the
SSC property in Marikina and to move it back six
(6) meters would amount to an appropriation of
property which could only be done through the
exercise of eminent domain. It held that the
petitioners could not take the respondents' property
under the guise of police power to evade the
payment of just compensation.
It did not give weight to the petitioners' contention
that the parking space was for the benefit of the
students and patrons of SSA-Marikina, considering
that the respondents were already providing for
sufficient parking in compliance with the standards
under Rule XIX of the National Building Code.
Not in conformity, the respondents filed a petition

for prohibition with an application for a writ of
preliminary injunction and temporary restraining
order before the Regional Trial Court, Marikina,
Branch 273 (RTC), docketed as SCA Case No.
2000-381-MK. 11
It further found that the 80% see-thru fence

requirement could run counter to the respondents'
right to privacy, considering that the property also
served as a residence of the Benedictine sisters,
who were entitled to some sense of privacy in their
affairs. It also found that the respondents were able
to prove that the danger to security had no basis in
their case. Moreover, it held that the purpose of
beautification could not be used to justify the
exercise of police power.
The respondents argued that the petitioners were

acting in excess of jurisdiction in enforcing
Ordinance No. 192, asserting that such
contravenes Section 1, Article III of the 1987
Constitution. That demolishing their fence and
constructing it six (6) meters back would result in
the loss of at least 1,808.34 square meters, worth
about P9,041,700.00, along West Drive, and at
least 1,954.02 square meters, worth roughly
P9,770,100.00, along East Drive. It would also
result in the destruction of the garbage house,
covered walk, electric house, storage house,
comfort rooms, guards' room, guards' post, waiting
area for visitors, waiting area for students, Blessed
Virgin Shrine, P.E. area, and the multi-purpose hall,
resulting in the permanent loss of their beneficial
use. The respondents, thus, asserted that the
implementation of the ordinance on their property
would be tantamount to an appropriation of
property without due process of law; and that the
petitioners could only appropriate a portion of their
property through eminent domain. They also
pointed out that the goal of the provisions to deter
lawless elements and criminality did not exist as the
solid concrete walls of the school had served as
sufficient protection for many years. 12 aTEAHc
It also observed that Section 7 of Ordinance No.

192, as amended, provided for retroactive
application. It held, however, that such retroactive
effect should not impair the respondents' vested
substantive rights over the perimeter walls, the sixmeter strips of land along the walls, and the
building, structures, facilities, and improvements,
which would be destroyed by the demolition of the
walls and the seizure of the strips of land. CaASIc
The RTC also found untenable the petitioners'
argument that Ordinance No. 192 was a remedial
or curative statute intended to correct the defects of
buildings and structures, which were brought about
by the absence or insufficiency of laws. It ruled that
the assailed ordinance was neither remedial nor
curative in nature, considering that at the time the
245
respondents' perimeter wall was built, the same

was valid and legal, and the ordinance did not refer
to any previous legislation that it sought to correct.
invalidity in the provisions of the National Building

Code that required correction or cure. It noted that
any correction in the Code should be properly
undertaken by the Congress and not by the City
Council of Marikina through an ordinance.
The RTC noted that the petitioners could still take

action to expropriate the subject property through
eminent domain.
The CA, thus, disposed:
The RTC, thus, disposed:
WHEREFORE, all foregoing premises considered,

the instant appeal is DENIED. The October 2, 2002
Decision and the January 13, 2003 Order of the
Regional Trial Court (RTC) of Marikina City, Branch
273, granting petitioners-appellees' petition for
Prohibition in SCA Case No. 2000-381-MK are
hereby AFFIRMED.
WHEREFORE, the petition is GRANTED. The writ

of prohibition is hereby issued commanding the
respondents to permanently desist from enforcing
or implementing Ordinance No. 192, Series of
1994, as amended, on petitioners' property in
question located at Marikina Heights, Marikina,
Metro Manila.
SO ORDERED. 18
Aggrieved by the decision of the CA, the petitioners

are now before this Court presenting the following:
CHEIcS
SO ORDERED. 16
Ruling of the CA
In its December 1, 2003 Decision, the CA
dismissed the petitioners' appeal and affirmed the
RTC decision.
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE
COURT OF APPEALS ERRED IN DECLARING
THAT CITY ORDINANCE NO. 192, SERIES OF
1994 IS NOT A VALID EXERCISE OF POLICE
POWER;
The CA reasoned out that the objectives stated in

Ordinance No. 192 did not justify the exercise of
police power, as it did not only seek to regulate, but
also involved the taking of the respondents'
property without due process of law. The
respondents were bound to lose an unquantifiable
sense of security, the beneficial use of their
structures, and a total of 3,762.36 square meters of
property. It, thus, ruled that the assailed ordinance
could not be upheld as valid as it clearly invaded
the personal and property rights of the respondents
and "[f]or being unreasonable, and undue restraint
of trade." 17 cDCEIA

COURT OF APPEALS ERRED IN RULING THAT
THE AFOREMENTIONED ORDINANCE IS AN
EXERCISE OF THE CITY OF THE POWER OF
EMINENT DOMAIN;
COURT OF APPEALS ERRED IN DECLARING
THAT THE CITY VIOLATED THE DUE PROCESS
CLAUSE IN IMPLEMENTING ORDINANCE NO.
192, SERIES OF 1994; AND
It noted that although the petitioners complied with

procedural due process in enacting Ordinance No.
192, they failed to comply with substantive due
process. Hence, the failure of the respondents to
attend the public hearings in order to raise
objections did not amount to a waiver of their right
to question the validity of the ordinance.

COURT OF APPEALS ERRED IN RULING THAT
THE ABOVE-MENTIONED ORDINANCE CANNOT
BE GIVEN RETROACTIVE APPLICATION. 19
In this case, the petitioners admit that Section 5 of
the assailed ordinance, pertaining to the five-meter
setback requirement is, as held by the lower courts,
invalid. 20 Nonetheless, the petitioners argue that
such invalidity was subsequently cured by Zoning
Ordinance No. 303, series of 2000. They also
contend that Section 3, relating to the 80% see-thru
fence requirement, must be complied with, as it
remains to be valid.
The CA also shot down the argument that the fivemeter setback provision for parking was a legal
easement, the use and ownership of which would
remain with, and inure to, the benefit of the
respondents for whom the easement was primarily
intended. It found that the real intent of the setback
provision was to make the parking space free for
use by the public, considering that such would
cease to be for the exclusive use of the school and
its students as it would be situated outside school
premises and beyond the school administration's
control.
Ruling of the Court

The ultimate question before the Court is whether
Sections 3.1 and 5 of Ordinance No. 192 are valid
exercises of police power by the City Government
of Marikina. DCASIT
In affirming the RTC ruling that the ordinance was

not a curative statute, the CA found that the
petitioner failed to point out any irregularity or
"Police power is the plenary power vested in the

legislature to make statutes and ordinances to
246
promote the health, morals, peace, education, good

order or safety and general welfare of the people."
21 The State, through the legislature, has
delegated the exercise of police power to local
government units, as agencies of the State. This
delegation of police power is embodied in Section
16 22 of the Local Government Code of 1991 (R.A.
No. 7160), known as the General Welfare Clause,
23 which has two branches. "The first, known as
the general legislative power, authorizes the
municipal council to enact ordinances and make
regulations not repugnant to law, as may be
necessary to carry into effect and discharge the
powers and duties conferred upon the municipal
council by law. The second, known as the police
power proper, authorizes the municipality to enact
ordinances as may be necessary and proper for the
health and safety, prosperity, morals, peace, good
order, comfort, and convenience of the municipality
and its inhabitants, and for the protection of their
property." 24
necessary to accomplish the City's purpose. More

importantly, it is oppressive of private rights.
Under the rational relationship test, an ordinance
must pass the following requisites as discussed in
Social Justice Society (SJS) v. Atienza, Jr.: 28
As with the State, local governments may be
considered as having properly exercised their
police power only if the following requisites are met:
(1) the interests of the public generally, as
distinguished from those of a particular class,
require its exercise and (2) the means employed
are reasonably necessary for the accomplishment
of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence
of a lawful subject and lawful method. 29
Lacking a concurrence of these two requisites, the
police power measure shall be struck down as an
arbitrary intrusion into private rights and a violation
of the due process clause. 30
White Light Corporation v. City of Manila, 25

discusses the test of a valid ordinance:
Section 3.1 and 5 of the assailed ordinance are

pertinent to the issue at hand, to wit: cDAISC
The test of a valid ordinance is well established. A

long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not
only be within the corporate powers of the local
government unit to enact and pass according to the
unreasonable. 26
Section 3. The standard height of fences of walls

allowed under this ordinance are as follows:
(1) Fences on the front yard shall be no more
than one (1) meter in height. Fences in excess of
one (1) meter shall be an open fence type, at least
eighty percent (80%) see-thru;
xxx xxx xxx
Section 5.In no case shall walls and fences be built
within the five (5) meter parking area allowance
located between the front monument line and the
building line of commercial and industrial
establishments and educational and religious
institutions.
Ordinance No. 192 was passed by the City Council

of Marikina in the apparent exercise of its police
power. To successfully invoke the exercise of police
power as the rationale for the enactment of an
ordinance and to free it from the imputation of
constitutional infirmity, two tests have been used by
the Court the rational relationship test and the
strict scrutiny test: ASEcHI
The respondents, thus, sought to prohibit the

petitioners from requiring them to (1) demolish their
existing concrete wall, (2) build a fence (in excess
of one meter) which must be 80% see-thru, and (3)
build the said fence six meters back in order to
provide a parking area.
We ourselves have often applied the rational basis

test mainly in analysis of equal protection
challenges. Using the rational basis examination,
laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under
intermediate review, governmental interest is
extensively examined and the availability of less
restrictive measures is considered. Applying strict
scrutiny, the focus is on the presence of compelling,
rather than substantial, governmental interest and
on the absence of less restrictive means for
achieving that interest. 27
Setback Requirement
The Court first turns its attention to Section 5 which
requires the five-meter setback of the fence to
provide for a parking area. The petitioners initially
argued that the ownership of the parking area to be
created would remain with the respondents as it
would primarily be for the use of its students and
faculty, and that its use by the public on non-school
days would only be incidental. In their Reply,
however, the petitioners admitted that Section 5
was, in fact, invalid for being repugnant to the
Constitution. 31
Even without going to a discussion of the strict

scrutiny test, Ordinance No. 192, series of 1994
must be struck down for not being reasonably
The Court agrees with the latter position.

247
The Court joins the CA in finding that the real intent

of the setback requirement was to make the
parking space free for use by the public,
considering that it would no longer be for the
exclusive use of the respondents as it would also
be available for use by the general public. Section 9
of Article III of the 1987 Constitution, a provision on
eminent domain, provides that private property
shall not be taken for public use without just
compensation. IDCHTE
court. It should be the same theory under which the

review on appeal is conducted. Points of law,
theories, issues, and arguments not adequately
brought to the attention of the lower court will not
be ordinarily considered by a reviewing court,
inasmuch as they cannot be raised for the first time
on appeal. This will be offensive to the basic rules
of fair play, justice, and due process. 35
Furthermore, the two ordinances have completely
different purposes and subjects. Ordinance No. 192
aims to regulate the construction of fences, while
Ordinance No. 303 is a zoning ordinance which
classifies the city into specific land uses. In fact, the
five-meter setback required by Ordinance No. 303
does not even appear to be for the purpose of
providing a parking area.
The petitioners cannot justify the setback by

arguing that the ownership of the property will
continue to remain with the respondents. It is a
settled rule that neither the acquisition of title nor
the total destruction of value is essential to taking.
In fact, it is usually in cases where the title remains
with the private owner that inquiry should be made
to determine whether the impairment of a property
is merely regulated or amounts to a compensable
taking. 32 The Court is of the view that the
implementation of the setback requirement would
be tantamount to a taking of a total of 3,762.36
square meters of the respondents' private property
for public use without just compensation, in
contravention to the Constitution.
By no stretch of the imagination, therefore, can

Ordinance No. 303, "cure" Section 5 of Ordinance
No. 192.
In any case, the clear subject of the petition for
prohibition filed by the respondents is Ordinance
No. 192 and, as such, the precise issue to be
determined is whether the petitioners can be
prohibited from enforcing the said ordinance, and
no other, against the respondents.
Anent the objectives of prevention of concealment

of unlawful acts and "un-neighborliness," it is
obvious that providing for a parking area has no
logical connection to, and is not reasonably
necessary for, the accomplishment of these goals.
80% See-Thru Fence Requirement

The petitioners argue that while Section 5 of
Ordinance No. 192 may be invalid, Section 3.1
limiting the height of fences to one meter and
requiring fences in excess of one meter to be at
least 80% see-thru, should remain valid and
enforceable against the respondents.
Regarding the beautification purpose of the setback

requirement, it has long been settled that the State
may not, under the guise of police power,
permanently divest owners of the beneficial use of
their property solely to preserve or enhance the
aesthetic appearance of the community. 33 The
Court, thus, finds Section 5 to be unreasonable and
oppressive as it will substantially divest the
respondents of the beneficial use of their property
solely for aesthetic purposes. Accordingly, Section
5 of Ordinance No. 192 is invalid.
The Court cannot accommodate the petitioner.

HDcaAI
For Section 3.1 to pass the rational relationship
test, the petitioners must show the reasonable
relation between the purpose of the police power
measure and the means employed for its
accomplishment, for even under the guise of
protecting the public interest, personal rights and
those pertaining to private property will not be
permitted to be arbitrarily invaded. 36
The petitioners, however, argue that the invalidity of

Section 5 was properly cured by Zoning Ordinance
No. 303, 34 Series of 2000, which classified the
respondents' property to be within an institutional
zone, under which a five-meter setback has been
required.
The principal purpose of Section 3.1 is "to

discourage, suppress or prevent the concealment
of prohibited or unlawful acts." The ultimate goal of
this objective is clearly the prevention of crime to
ensure public safety and security. The means
employed by the petitioners, however, is not
reasonably necessary for the accomplishment of
this purpose and is unduly oppressive to private
rights.
The petitioners are mistaken. Ordinance No. 303,

Series of 2000, has no bearing to the case at hand.
AcSHCD
The Court notes with displeasure that this argument
was only raised for the first time on appeal in this
Court in the petitioners' Reply. Considering that
Ordinance No. 303 was enacted on December 20,
2000, the petitioners could very well have raised it
in their defense before the RTC in 2002. The
settled rule in this jurisdiction is that a party cannot
change the legal theory of this case under which
the controversy was heard and decided in the trial
The petitioners have not adequately shown, and it

does not appear obvious to this Court, that an 80%
see-thru fence would provide better protection and
a higher level of security, or serve as a more
satisfactory criminal deterrent, than a tall solid
concrete wall. It may even be argued that such
248
exposed premises could entice and tempt would-be

criminals to the property, and that a see-thru fence
would be easier to bypass and breach. It also
appears that the respondents' concrete wall has
served as more than sufficient protection over the
last 40 years.
certain legal requirements. They are intended to

supply defects, abridge superfluities and curb
certain evils. They are intended to enable persons
to carry into effect that which they have designed or
intended, but has failed of expected legal
consequence by reason of some statutory disability
or irregularity in their own action. They make valid
that which, before the enactment of the statute was
invalid. Their purpose is to give validity to acts done
that would have been invalid under existing laws,
as if existing laws have been complied with.
Curative statutes, therefore, by their very essence,
are retroactive." 41
As to the beautification purpose of the assailed

ordinance, as previously discussed, the State may
not, under the guise of police power, infringe on
private rights solely for the sake of the aesthetic
appearance of the community. Similarly, the Court
cannot perceive how a see-thru fence will foster
"neighborliness"
between
members
of
a
community.
The petitioners argue that Ordinance No. 192 is a

curative statute as it aims to correct or cure a
defect in the National Building Code, namely, its
failure to provide for adequate guidelines for the
construction of fences. They ultimately seek to
remedy an insufficiency in the law. In aiming to cure
this insufficiency, the petitioners attempt to add
lacking provisions to the National Building Code.
This is not what is contemplated by curative
statutes, which intend to correct irregularities or
invalidity in the law. The petitioners fail to point out
any irregular or invalid provision. As such, the
assailed ordinance cannot qualify as curative and
retroactive in nature. aIcHSC
Compelling the respondents to construct their fence

in accordance with the assailed ordinance is, thus,
a clear encroachment on their right to property,
which necessarily includes their right to decide how
best to protect their property.
It also appears that requiring the exposure of their
property via a see-thru fence is violative of their
right to privacy, considering that the residence of
the Benedictine nuns is also located within the
property. The right to privacy has long been
considered a fundamental right guaranteed by the
Constitution that must be protected from intrusion
or constraint. The right to privacy is essentially the
right to be let alone, 37 as governmental powers
should stop short of certain intrusions into the
personal life of its citizens. 38 It is inherent in the
concept of liberty, enshrined in the Bill of Rights
(Article III) in Sections 1, 2, 3 (1), 6, 8, and 17,
Article III of the 1987 Constitution. 39 CSaITD
At any rate, there appears to be no insufficiency in

the National Building Code with respect to parking
provisions in relation to the issue of the
respondents. Paragraph 1.16.1, Rule XIX of the
Rules and Regulations of the said code requires an
educational institution to provide one parking slot
for every ten classrooms. As found by the lower
courts, the respondents provide a total of 76
parking slots for their 80 classrooms and, thus, had
more than sufficiently complied with the law.
The enforcement of Section 3.1 would, therefore,

result in an undue interference with the
respondents' rights to property and privacy. Section
3.1 of Ordinance No. 192 is, thus, also invalid and
cannot be enforced against the respondents.
Ordinance No. 192, as amended, is, therefore, not

a curative statute which may be applied
retroactively.
No Retroactivity
Ordinance No. 217 amended Section 7 of
Ordinance No. 192 by including the regulation of
educational institutions which was unintentionally
omitted, and giving said educational institutions five
(5) years from the passage of Ordinance No. 192
(and not Ordinance No. 217) to conform to its
provisions. 40 The petitioners argued that the
amendment could be retroactively applied because
the assailed ordinance is a curative statute which is
retroactive in nature.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as
amended, are, thus, invalid and cannot be enforced
against the respondents. Nonetheless, "the general
rule is that where part of a statute is void as
repugnant to the Constitution, while another part is
valid, the valid portion, if susceptible to being
separated from the invalid, may stand and be
enforced." 42 Thus, the other sections of the
assailed ordinance remain valid and enforceable.
Considering that Sections 3.1 and 5 of Ordinance

No. 192 cannot be enforced against the
respondents, it is no longer necessary to rule on
the issue of retroactivity. The Court shall,
nevertheless, pass upon the issue for the sake of
clarity.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is
clear that the petitioners were acting in excess of
their jurisdiction in enforcing Ordinance No. 192
against the respondents. The CA was correct in
affirming the decision of the RTC in issuing the writ
of prohibition. The petitioners must permanently
desist from enforcing Sections 3.1 and 5 of the
assailed ordinance on the respondents' property in
Marikina City.
"Curative statutes are enacted to cure defects in a

prior law or to validate legal proceedings which
would otherwise be void for want of conformity with
249
powers subject to constitutional and statutory

limitations.

October 2, 2002 Decision of the Regional Trial
Court in SCA Case No. 2000-381-MK is AFFIRMED
but MODIFIED to read as follows:
In particular, the Local Government Code (LGC)

has expressly empowered the LGUs to enact and
adopt ordinances to regulate vehicular traffic and to
prohibit illegal parking within their jurisdictions. Now
challenged before the Court are the constitutionality
and validity of one such ordinance on the ground
that the ordinance constituted a contravention of
the guaranty of due process under the Constitution
by authorizing the immobilization of offending
vehicles through the clamping of tires. The
challenge originated in the Regional Trial Court
(RTC) at the instance of the petitioners vehicle
owners who had borne the brunt of the
implementation of the ordinance with the RTC
declaring the ordinance unconstitutional, but it has
now reached the Court as a consolidated appeal
taken in due course by the petitioners after the
Court of Appeals (CA) reversed the judgment of the
RTC.
WHEREFORE, the petition is GRANTED. The writ

of prohibition is hereby issued commanding the
respondents to permanently desist from enforcing
or implementing Sections 3.1 and 5 of Ordinance
No. 192, Series of 1994, as amended, on the
petitioners' property in question located in Marikina
Heights, Marikina, Metro Manila. HDITCS
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de
Castro, Brion, Peralta, Bersamin, Del Castillo,
Abad, Villarama, Jr., Reyes, Perlas-Bernabe and
Leonen, JJ., concur.
Perez, J., is on official leave.
Antecedents
On January 27, 1997 the Sangguniang Panlungsod
of the City of Cebu enacted Ordinance No. 1664 to
authorize the traffic enforcers of Cebu City to
immobilize any motor vehicle violating the parking
restrictions and prohibitions defined in Ordinance
No. 801 (Traffic Code of Cebu City). 1 The pertinent
provisions of Ordinance No. 1664 read:
||| (Fernando v. St. Scholastica's College, G.R. No.

161107, [March 12, 2013], 706 PHIL 138-166)
8. LEGASPI VS. CITY OF CEBU 711 SCRA
771 (2013)
EN BANC
Section 1. POLICY. It is the policy of the

government of the City of Cebu to immobilize any
motor vehicle violating any provision of any City
Ordinance on Parking Prohibitions or Restrictions,
more particularly Ordinance No. 801, otherwise
known as the Traffic Code of Cebu City, as
amended, in order to have a smooth flow of
vehicular traffic in all the streets in the City of Cebu
at all times.
[G.R. No. 159110. December 10, 2013.]

VALENTINO L. LEGASPI, petitioner, vs. CITY OF
CEBU, T.C. (TITO) SAYSON AND RICARDO
HAPITAN, respondents.
[G.R. No. 159692. December 10, 2013.]
BIENVENIDO P. JABAN, SR., AND BIENVENIDO
DOUGLAS LUKE BRADBURY JABAN, petitioners,
vs. COURT OF APPEALS, CITY OF CEBU, CITY
MAYOR
ALVIN
GARCIA,
SANGGUNIANG
PANLUNSOD OF CITY OF CEBU, HON. RENATO
V. OSMEA, AS PRESIDING OFFICER OF THE
SANGGUNIANG PANLUNSOD, AND CITOM
CHAIRMAN ALAN GAVIOLA, AS CITOM CHIEF,
CITOM TRAFFIC ENFORCER E. A. ROMERO,
AND LITO GILBUENA, respondents.
Section 2. IMMOBILIZATION OF VEHICLES.

Any vehicle found violating any provision of any
existing ordinance of the City of Cebu which
prohibits, regulates or restricts the parking of
vehicles shall be immobilized by clamping any tire
of the said violating vehicle with the use of a denver
boot vehicle immobilizer or any other special
gadget designed to immobilize motor vehicles. For
this particular purpose, any traffic enforcer of the
City (regular PNP Personnel or Cebu City Traffic
Law Enforcement Personnel) is hereby authorized
to immobilize any violating vehicle as hereinabove
provided.
DECISION
BERSAMIN, J p:
The goal of the decentralization of powers to the
local government units (LGUs) is to ensure the
enjoyment by each of the territorial and political
subdivisions of the State of a genuine and
meaningful local autonomy. To attain the goal, the
National Legislature has devolved the three great
inherent powers of the State to the LGUs. Each
political subdivision is thereby vested with such
Section 3. PENALTIES. Any motor vehicle,

owner or driver violating any ordinance on parking
prohibitions, regulations and/or restrictions, as may
be provided under Ordinance No. 801, as
amended, or any other existing ordinance, shall be
penalized in accordance with the penalties imposed
in the ordinance so violated, provided that the
vehicle immobilizer may not be removed or
released without its owner or driver paying first to
250
the City Treasurer of Cebu City through the Traffic

Violations Bureau (TVB) all the accumulated
penalties for all prior traffic law violations that
remain unpaid or unsettled, plus the administrative
penalty of Five Hundred Pesos (P500.00) for the
immobilization of the said vehicle, and receipts of
such payments presented to the concerned
personnel of the bureau responsible for the release
of the immobilized vehicle, unless otherwise
ordered released by any of the following officers:
a steel clamp, and a notice being posted on the car

to the effect that it would be a criminal offense to
break the clamp; 5 that he had been infuriated by
the immobilization of his car because he had been
thereby rendered unable to meet an important
client on that day; that his car was impounded for
three days, and was informed at the office of the
CITOM that he had first to pay P4,200.00 as a fine
to the City Treasurer of Cebu City for the release of
his car; 6 that the fine was imposed without any
court hearing and without due process of law, for he
was not even told why his car had been
immobilized; that he had undergone a similar
incident of clamping of his car on the early morning
of November 20, 1997 while his car was parked
properly in a parking lot in front of the San Nicolas
Pasil Market in Cebu City without violating any
traffic regulation or causing any obstruction; that he
was compelled to pay P1,500.00 (itemized as
P500.00 for the clamping and P1,000.00 for the
violation) without any court hearing and final
judgment; that on May 19, 1997, Jaban, Jr. parked
his car in a very secluded place where there was
no sign prohibiting parking; that his car was
immobilized by CITOM operative Lito Gilbuena; and
that he was compelled to pay the total sum of
P1,400.00 for the release of his car without a court
hearing and a final judgment rendered by a court of
justice. 7 cSCTEH
a) Chairman, CITOM
b) Chairman, Committee on Police, Fire and
Penology
c) Asst. City Fiscal Felipe Belcina
3.1 Any person who tampers or tries to release an
immobilized or clamped motor vehicle by
destroying the denver boot vehicle immobilizer or
other such special gadgets, shall be liable for its
loss or destruction and shall be prosecuted for such
loss or destruction under pain or penalty under the
Revised Penal Code and any other existing
ordinance of the City of Cebu for the criminal act, in
addition to his/her civil liabilities under the Civil
Code of the Philippines; Provided that any such act
may not be compromised nor settled amicably
extrajudicially.
On August 11, 1997, Valentino Legaspi (Legaspi)

likewise sued in the RTC the City of Cebu, T.C.
Sayson, Ricardo Hapitan and John Does to
demand the delivery of personal property,
declaration of nullity of the Traffic Code of Cebu
City, and damages. 8 He averred that on the
morning of July 29, 1997, he had left his car
occupying a portion of the sidewalk and the street
outside the gate of his house to make way for the
vehicle of the anay exterminator who had asked to
be allowed to unload his materials and equipment
from the front of the residence inasmuch as his
daughter's car had been parked in the carport, with
the assurance that the unloading would not take too
long; 9 that while waiting for the anay exterminator
to finish unloading, the phone in his office inside the
house had rung, impelling him to go into the house
to answer the call; that after a short while, his sonin-law informed him that unknown persons had
clamped the front wheel of his car; 10 that he
rushed outside and found a traffic citation stating
that his car had been clamped by CITOM
representatives with a warning that the
unauthorized removal of the clamp would subject
the remover to criminal charges; 11 and that in the
late afternoon a group headed by Ricardo Hapitan
towed the car even if it was not obstructing the flow
of traffic. 12
3.2 Any immobilized vehicle which is unattended

and constitute an obstruction to the free flow of
traffic or a hazard thereof shall be towed to the city
government impounding area for safekeeping and
may be released only after the provision of Section
3 hereof shall have been fully complied with.
3.3 Any person who violates any provision of this
ordinance shall, upon conviction, be penalized with
imprisonment of not less than one (1) month nor
more than six (6) months or of a fine of not less
than Two Thousand Pesos (P2,000.00) nor more
than Five Thousand Pesos (P5,000.00), or both
such imprisonment and fine at the discretion of the
court. 2
On July 29, 1997, Atty. Bienvenido Jaban (Jaban,
Sr.) and his son Atty. Bienvenido Douglas Luke
Bradbury Jaban (Jaban, Jr.) brought suit in the RTC
in Cebu City against the City of Cebu, then
represented by Hon. Alvin Garcia, its City Mayor,
the Sangguniang Panlungsod of Cebu City and its
Presiding Officer, Hon. Renato V. Osmea, and the
chairman and operatives or officers of the City
Traffic Operations Management (CITOM), seeking
the declaration of Ordinance No. 1644 as
unconstitutional for being in violation of due
process and for being contrary to law, and
damages. 3 Their complaint alleged that on June
23, 1997, Jaban Sr. had properly parked his car in
a paying parking area on Manalili Street, Cebu City
to get certain records and documents from his
office; 4 that upon his return after less than 10
minutes, he had found his car being immobilized by
In separate answers for the City of Cebu and its codefendants, 13 the City Attorney of Cebu presented
similar defenses, essentially stating that the traffic
enforcers had only upheld the law by clamping the
vehicles of the plaintiffs; 14 and that Ordinance No.
251
1664 enjoyed the presumption of constitutionality

and validity. 15
value of his car, and to all the plaintiffs, Valentino L.

Legaspi, Bienvenido P. Jaban and Bienvenido
Douglas Luke Bradbury Jaban, the sum of
P100,000.00 each or P300,000.00 all as nominal
damages and another P100,000.00 each or
P300,000.00 all as temperate or moderate
damages. With costs against defendant City of
Cebu.
The cases were consolidated before Branch 58 of

the RTC, which, after trial, rendered on January 22,
1999 its decision declaring Ordinance No. 1664 as
null and void upon the following ratiocination:
In clear and simple phrase, the essence of due
process was expressed by Daniel Webster as a
"law which hears before it condemns". In another
case[s], "procedural due process is that which
hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial." It
contemplate(s) notice and opportunity to be heard
before judgment is rendered affecting ones (sic)
person or property." In both procedural and
substantive due process, a hearing is always a prerequisite, hence, the taking or deprivation of one's
life, liberty or property must be done upon and with
observance of the "due process" clause of the
Constitution and the non-observance or violation
thereof is, perforce, unconstitutional.
SO ORDERED. 16 (citations omitted)

The City of Cebu and its co-defendants appealed to
the CA, assigning the following errors to the RTC,
namely: (a) the RTC erred in declaring that
Ordinance No. 1664 was unconstitutional; (b)
granting, arguendo, that Ordinance No. 1664 was
unconstitutional, the RTC gravely erred in holding
that any violation prior to its declaration as being
unconstitutional was irrelevant; (c) granting,
arguendo, that Ordinance No. 1664 was
unconstitutional, the RTC gravely erred in awarding
damages to the plaintiffs; (d) granting, arguendo,
that the plaintiffs were entitled to damages, the
damages awarded were excessive and contrary to
law; and (e) the decision of the RTC was void,
because the Office of the Solicitor General (OSG)
had not been notified of the proceedings.
Under Ordinance No. 1664, when a vehicle is

parked in a prohibited, restrycted (sic) or regulated
area in the street or along the street, the vehicle is
immobilized by clamping any tire of said vehicle
with the use of a denver boot vehicle immobilizer or
any other special gadget which immobilized the
motor vehicle. The violating vehicle is immobilized,
thus, depriving its owner of the use thereof at the
sole determination of any traffic enforcer or regular
PNP personnel or Cebu City Traffic Law
Enforcement Personnel. The vehicle immobilizer
cannot be removed or released without the owner
or driver paying first to the City Treasurer of Cebu
through the Traffic Violations Bureau all the
accumulated penalties of all unpaid or unsettled
traffic law violations, plus the administrative penalty
of P500.00 and, further, the immobilized vehicle
shall be released only upon presentation of the
receipt of said payments and upon release order by
the Chairman, CITOM, or Chairman, Committee on
Police, Fire and Penology, or Asst. City Fiscal
Felipe Belcina. It should be stressed that the owner
of the immobilized vehicle shall have to undergo all
these ordeals at the mercy of the Traffic Law
Enforcer who, as the Ordinance in question
mandates, is the arresting officer, prosecutor,
Judge and collector. Otherwise stated, the owner of
the immobilized motor vehicle is deprived of his
right to the use of his/her vehicle and penalized
without a hearing by a person who is not legally or
duly vested with such rights, power or authority.
The Ordinance in question is penal in nature, and it
has been held;
On June 16, 2003, the CA promulgated its assailed

decision, 17 overturning the RTC and declaring
Ordinance No. 1664 valid, to wit:
The principal thrust of this appeal is the
constitutionality of Ordinance 1664. Defendantsappellants contend that the passage of Ordinance
1664 is in accordance with the police powers
exercised by the City of Cebu through the
Sangguniang Panlungsod and granted by RA 7160,
otherwise known as the Local Government Code. A
thematic analysis of the law on municipal
corporations confirms this view. As in previous
legislation, the Local Government Code delegates
police powers to the local governments in two
ways. Firstly, it enumerates the subjects on which
the Sangguniang Panlungsod may exercise these
powers. Thus, with respect to the use of public
streets, Section 458 of the Code states: HIAcCD
Section 458 (a) The sangguniang panlungsod, as
the legislative branch of the city, . . . shall . . .
(5) (v) Regulate the use of streets, avenues, alleys,
sidewalks, bridges, park and other public places
and approve the construction, improvement, repair
and maintenance of the same; establish bus and
vehicle stops and terminals or regulate the use of
the same by privately owned vehicles which serve
the public; regulate garages and the operation of
conveyances for hire; designate stands to be
occupied by public vehicles when not in use;
regulate the putting up of signs, signposts, awnings
and awning posts on the streets; and provide for
the lighting, cleaning and sprinkling of streets and
public places;
xxx xxx xxx

WHEREFORE,
premised
(sic)
considered,
judgment is hereby rendered declaring Ordinance
No. 1664 unconstitutional and directing the
defendant City of Cebu to pay the plaintiff Valentino
Legaspi the sum of P110,000.00 representing the
252
(vi) Regulate traffic on all streets and bridges;

prohibit encroachments or obstacles thereon and,
when necessary in the interest of public welfare,
authorize the removal of encroachments and illegal
constructions in public places.
restrictions to an ordinance passed under the

general welfare clause, as declared in Salaveria, is
that the regulation must be reasonable, consonant
with the general powers and purposes of the
corporation, consistent with national laws and
policies, and not unreasonable or discriminatory.
The measure in question undoubtedly comes within
these parameters. HCEaDI
It then makes a general grant of the police power.

The scope of the legislative authority of the local
government is set out in Section 16, to wit:
Upon the denial of their respective motions for

reconsideration on August 4, 2003, the Jabans and
Legaspi came to the Court via separate petitions for
review on certiorari. The appeals were
consolidated.
Section 16.
General Welfare. Every local
government unit shall exercise the powers
expressly granted, those necessarily implied
therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and
effective governance, and those which are
essential to the promotion of the general welfare.
Issues
Based on the submissions of the parties, the
following issues are decisive of the challenge, to
wit:
This provision contains what is traditionally known

as the general welfare clause. As expounded in
United States vs. Salaveria, 39 Phil. 102, the
general welfare clause has two branches. One
branch attaches itself to the main trunk of municipal
authority, and relates to such ordinances and
regulations as may be necessary to carry into effect
and discharge the powers and duties conferred
upon the municipal council by law. The second
branch of the clause is much more independent of
the specific functions of the council, and authorizes
such ordinances as shall seem necessary and
proper to provide for health, safety, prosperity and
convenience of the municipality and its inhabitants.
1. Whether Ordinance No. 1664 was enacted

within the ambit of the legislative powers of the City
of Cebu; and
2. Whether Ordinance No. 1664 complied with the
requirements for validity and constitutionality,
particularly the limitations set by the Constitution
and the relevant statutes.
Ruling
The petitions for review have no merit.
A.
Tests for a valid ordinance
In City of Manila v. Laguio, Jr., 18 the Court
restates the tests of a valid ordinance thusly:
In a vital and critical way, the general welfare

clause complements the more specific powers
granted a local government. It serves as a catch-all
provision that ensures that the local government
will be equipped to meet any local contingency that
bears upon the welfare of its constituents but has
not been actually anticipated. So varied and
protean are the activities that affect the legitimate
interests of the local inhabitants that it is well-nigh
impossible to say beforehand what may or may not
be done specifically through law. To ensure that a
local government can react positively to the
people's needs and expectations, the general
welfare clause has been devised and interpreted to
allow the local legislative council to enact such
measures as the occasion requires.
The tests of a valid ordinance are well established.

A long line of decisions has held that for an
ordinance to be valid, it must not only be within the
corporate powers of the local government unit to
enact and must be passed according to the
unreasonable. 19
Founded on clear authority and tradition, Ordinance

1664 may be deemed a legitimate exercise of the
police powers of the Sangguniang Panlungsod of
the City of Cebu. This local law authorizes traffic
enforcers to immobilize and tow for safekeeping
vehicles on the streets that are illegally parked and
to release them upon payment of the announced
penalties. As explained in the preamble, it has
become necessary to resort to these measures
because of the traffic congestion caused by illegal
parking and the inability of existing penalties to curb
it. The ordinance is designed to improve traffic
conditions in the City of Cebu and thus shows a
real and substantial relation to the welfare, comfort
and convenience of the people of Cebu. The only
As jurisprudence indicates, the tests are divided

into the formal (i.e., whether the ordinance was
enacted within the corporate powers of the LGU,
and whether it was passed in accordance with the
procedure prescribed by law), and the substantive
(i.e., involving inherent merit, like the conformity of
the ordinance with the limitations under the
Constitution and the statutes, as well as with the
requirements of fairness and reason, and its
consistency with public policy).
B.
Compliance of Ordinance No. 1664
with the formal requirements
253
Was the enactment of Ordinance No. 1664 within

the corporate powers of the LGU of the City of
Cebu?
Section 458 of the LGC relevantly states:

Section 458.
Powers, Duties, Functions and
Composition. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and
in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this
Code, and shall:
The answer is in the affirmative. Indeed, with no

issues being hereby raised against the formalities
attendant to the enactment of Ordinance No. 1664,
we presume its full compliance with the test in that
regard. Congress enacted the LGC as the
implementing law for the delegation to the various
LGUs of the State's great powers, namely: the
police power, the power of eminent domain, and the
power of taxation. The LGC was fashioned to
delineate the specific parameters and limitations to
be complied with by each LGU in the exercise of
these delegated powers with the view of making
each LGU a fully functioning subdivision of the
State subject to the constitutional and statutory
limitations. TcIAHS
xxx xxx xxx

(5) Approve ordinances which shall ensure the
efficient and effective delivery of the basic services
and facilities as provided for under Section 17 of
this Code, and in addition to said services and
facilities, shall:
In particular, police power is regarded as "the most

essential, insistent and the least limitable of
powers, extending as it does 'to all the great public
needs.'" 20 It is unquestionably "the power vested
in the legislature by the constitution, to make,
ordain and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either
with penalties or without, not repugnant to the
constitution, as they shall judge to be for the good
and welfare of the commonwealth, and of the
subject of the same." 21 According to Cooley: "[The
police power] embraces the whole system of
internal regulation by which the state seeks not only
to preserve the public order and to prevent offences
against itself, but also to establish for the
intercourse of citizens with citizens, those rules of
good manners and good neighborhood which are
calculated to prevent the conflict of rights and to
insure to each the uninterrupted enjoyment of his
own, so far as it is reasonably consistent with the
right enjoyment of rights by others." 22
xxx xxx xxx

(v) Regulate the use of streets, avenues, alleys,
sidewalks, bridges, parks and other public places
and approve the construction, improvement repair
and maintenance of the same; establish bus and
vehicle stops and terminals or regulate the use of
the same by privately-owned vehicles which serve
the public; regulate garages and operation of
conveyances for hire; designate stands to be
occupied by public vehicles when not in use;
regulate the putting up of signs, signposts, awnings
and awning posts on the streets; and provide for
the lighting, cleaning and sprinkling of streets and
public places;
(vi) Regulate traffic on all streets and bridges;
prohibit encroachments or obstacles thereon and,
when necessary in the interest of public welfare,
authorize the removal of encroachments and illegal
constructions in public places; (emphasis supplied)
aDcTHE
In point is the exercise by the LGU of the City of

Cebu of delegated police power. In Metropolitan
Manila Development Authority v. Bel-Air Village
Association, Inc., 23 the Court cogently observed:
The foregoing delegation reflected the desire of

Congress to leave to the cities themselves the task
of confronting the problem of traffic congestions
associated with development and progress
because they were directly familiar with the
situations in their respective jurisdictions. Indeed,
the LGUs would be in the best position to craft their
traffic codes because of their familiarity with the
conditions peculiar to their communities. With the
broad latitude in this regard allowed to the LGUs of
the cities, their traffic regulations must be held valid
and effective unless they infringed the constitutional
limitations and statutory safeguards.
It bears stressing that police power is lodged

primarily in the National Legislature. It cannot be
exercised by any group or body of individuals not
possessing legislative power. The National
Legislature, however, may delegate this power to
the President and administrative boards as well as
the lawmaking bodies of municipal corporations or
local government units. Once delegated, the agents
can exercise only such legislative powers as are
conferred on them by the national lawmaking body.
(emphasis supplied)
C.
Compliance of Ordinance No. 1664
with the substantive requirements
The first substantive requirement for a valid
ordinance is the adherence to the constitutional
guaranty of due process of law. The guaranty is
The CA opined, and correctly so, that vesting cities

like the City of Cebu with the legislative power to
enact traffic rules and regulations was expressly
done through Section 458 of the LGC, and also
generally by virtue of the General Welfare Clause
embodied in Section 16 of the LGC. 24
254
embedded in Article III,

Constitution, which ordains:
Section
of
the
process only if it can prove that the law is

necessary to achieve a compelling government
purpose.
Section 1. No person shall be deprived of life,

liberty or property without due process of law, nor
shall any person be denied the equal protection of
the laws.
The police power granted to local government units

must always be exercised with utmost observance
of the rights of the people to due process and equal
protection of the law. Such power cannot be
exercised whimsically, arbitrarily or despotically as
its exercise is subject to a qualification, limitation or
restriction demanded by the respect and regard
due to the prescription of the fundamental law,
particularly those forming part of the Bill of Rights.
Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly
be required by the legitimate demands of public
interest or public welfare. Due process requires the
intrinsic validity of the law in interfering with the
rights of the person to his life, liberty and property.
27
The guaranty of due process of law is a

constitutional safeguard against any arbitrariness
on the part of the Government, whether committed
by the Legislature, the Executive, or the Judiciary. It
is a protection essential to every inhabitant of the
country, for, as a commentator on Constitutional
Law has vividly written: 25
. . . If the law itself unreasonably deprives a person
of his life, liberty, or property, he is denied the
protection of due process. If the enjoyment of his
rights is conditioned on an unreasonable
requirement, due process is likewise violated.
Whatsoever be the source of such rights, be it the
Constitution itself or merely a statute, its unjustified
withholding would also be a violation of due
process. Any government act that militates against
the ordinary norms of justice or fair play is
considered an infraction of the great guaranty of
due process; and this is true whether the denial
involves violation merely of the procedure
prescribed by the law or affects the very validity of
the law itself.
The Jabans contend that Ordinance No. 1664, by

leaving the confiscation and immobilization of the
motor vehicles to the traffic enforcers or the regular
personnel of the Philippine National Police (PNP)
instead of to officials exercising judicial authority,
was violative of the constitutional guaranty of due
process; that such confiscation and immobilization
should only be after a hearing on the merits by
courts of law; and that the immobilization and the
clamping of the cars and motor vehicles by the
police or traffic enforcers could be subject to abuse.
In City of Manila v. Laguio, Jr., 26 the Court

expounded on the aspects of the guaranty of due
process of law as a limitation on the acts of
government, viz.:
On his part, Legaspi likewise contends that

Ordinance No. 1664 violated the constitutional
guaranty of due process for being arbitrary and
oppressive; and that its provisions conferring upon
the traffic enforcers the absolute discretion to be
the enforcers, prosecutors, judges and collectors all
at the same time were vague and ambiguous. 28
He reminds that the grant of police powers for the
general welfare under the LGC was not unlimited
but subj ect to constitutional limitations; 29 and that
these consolidated cases should not be resolved
differently from the resolution of a third case
assailing the validity of Ordinance No. 1664
(Astillero case), in which the decision of the same
RTC declaring Ordinance No. 1664 as
unconstitutional had attained finality following the
denial of due course to the appeal of the City of
Cebu and its co-defendants.
This clause has been interpreted as imposing two

separate limits on government, usually called
"procedural due process" and "substantive due
process".
Procedural due process, as the phrase implies,
refers to the procedures that the government must
follow before it deprives a person of life, liberty, or
property. Classic procedural due process issues
are concerned with that kind of notice and what
form of hearing the government must provide when
it takes a particular action.
Substantive due process, as that phrase connotes,
asks whether the government has an adequate
reason for taking away a person's life, liberty, or
property. In other words, substantive due process
looks to whether there is sufficient justification for
the government's action. Case law in the United
States (U.S.) tells us that whether there is such a
justification depends very much on the level of
scrutiny used. For example, if a law is in an area
where only rational basis review is applied,
substantive due process is met so long as the law
is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is
used, such as for protecting fundamental rights,
then the government will meet substantive due
Judged according to the foregoing enunciation of

the guaranty of due process of law, the contentions
of the petitioners cannot be sustained. Even under
strict scrutiny review, Ordinance No. 1664 met the
substantive tests of validity and constitutionality by
its conformity with the limitations under the
Constitution and the statutes, as well as with the
requirements of fairness and reason, and its
consistency with public policy.
To us, the terms encroachment and obstacles used
in Section 458 of the LGC, supra, were broad
enough to include illegally parked vehicles or
255
whatever else obstructed the streets, alleys and

sidewalks, which were precisely the subject of
Ordinance No. 1664 in avowedly aiming to ensure
"a smooth flow of vehicular traffic in all the streets
in the City of Cebu at all times" (Section 1). This
aim was borne out by its Whereas Clauses, viz.:
AICEDc
Firstly, Ordinance No. 1664 was far from

oppressive and arbitrary. Any driver or vehicle
owner whose vehicle was immobilized by clamping
could protest such action of a traffic enforcer or
PNP personnel enforcing the ordinance. Section 3
of Ordinance No. 1664, supra, textually afforded an
administrative escape in the form of permitting the
release of the immobilized vehicle upon a protest
directly made to the Chairman of CITOM; or to the
Chairman of the Committee on Police, Fire and
Penology of the City of Cebu; or to Asst. City
Prosecutor Felipe Belcia officials named in the
ordinance itself. The release could be ordered by
any of such officials even without the payment of
the stipulated fine. That none of the petitioners,
albeit lawyers all, resorted to such recourse did not
diminish the fairness and reasonableness of the
escape clause written in the ordinance. Secondly,
the immobilization of a vehicle by clamping
pursuant to the ordinance was not necessary if the
driver or vehicle owner was around at the time of
the apprehension for illegal parking or obstruction.
In that situation, the enforcer would simply either
require the driver to move the vehicle or issue a
traffic citation should the latter persist in his
violation. The clamping would happen only to
prevent the transgressor from using the vehicle
itself to escape the due sanctions. And, lastly, the
towing away of the immobilized vehicle was not
equivalent to a summary impounding, but designed
to prevent the immobilized vehicle from obstructing
traffic in the vicinity of the apprehension and
thereby ensure the smooth flow of traffic. The
owner of the towed vehicle would not be deprived
of his property.
WHEREAS, the City of Cebu enacted the Traffic

Code (Ordinance No. 801) as amended, provided
for Parking Restrictions and Parking Prohibitions in
the streets of Cebu City;
WHEREAS,
despite
the
restrictions
and
prohibitions of parking on certain streets of Cebu
City, violations continued unabated due, among
others, to the very low penalties imposed under the
Traffic Code of Cebu City;
WHEREAS, City Ordinance 1642 was enacted in
order to address the traffic congentions caused by
illegal parkings in the streets of Cebu City;
WHEREAS, there is a need to amend City
Ordinance No. 1642 in order to fully address and
solve the problem of illegal parking and other
violations of the Traffic Code of Cebu City; 30
(emphasis supplied)
Considering that traffic congestions were already
retarding the growth and progress in the population
and economic centers of the country, the plain
objective of Ordinance No. 1664 was to serve the
public interest and advance the general welfare in
the City of Cebu. Its adoption was, therefore, in
order to fulfill the compelling government purpose
of immediately addressing the burgeoning traffic
congestions caused by illegally parked vehicles
obstructing the streets of the City of Cebu.
In fine, the circumstances set forth herein indicate

that Ordinance No. 1664 complied with the
elements of fairness and reasonableness. ITAaHc
Legaspi's attack against the provisions of

Ordinance No. 1664 for being vague and
ambiguous cannot stand scrutiny. As can be readily
seen, its text was forthright and unambiguous in all
respects. There could be no confusion on the
meaning and coverage of the ordinance. But should
there be any vagueness and ambiguity in the
provisions, which the OSG does not concede, 31
there was nothing that a proper application of the
basic rules of statutory construction could not justly
rectify.
Did Ordinance No. 1664 meet the requirements of

procedural due process?
Notice and hearing are the essential requirements
of procedural due process. Yet, there are many
instances under our laws in which the absence of
one or both of such requirements is not necessarily
a denial or deprivation of due process. Among the
instances are the cancellation of the passport of a
person being sought for the commission of a crime,
the preventive suspension of a civil servant facing
administrative charges, the distraint of properties to
answer for tax delinquencies, the padlocking of
restaurants found to be unsanitary or of theaters
showing obscene movies, and the abatement of
nuisance per se. 32 Add to them the arrest of a
person in flagrante delicto. 33
The petitioners further assert that drivers or vehicle

owners affected by Ordinance No. 1664 like
themselves were not accorded the opportunity to
protest the clamping, towing, and impounding of the
vehicles, or even to be heard and to explain their
side prior to the immobilization of their vehicles;
and that the ordinance was oppressive and
arbitrary for that reason.
The clamping of the petitioners' vehicles pursuant

to Ordinance No. 1664 (and of the vehicles of
others similarly situated) was of the same character
as the aforecited established exceptions dispensing
with notice and hearing. As already said, the
immobilization of illegally parked vehicles by
clamping the tires was necessary because the
The adverse assertions against Ordinance No.

1664 are unwarranted.
256
transgressors were not around at the time of

apprehension. Under such circumstance, notice
and hearing would be superfluous. Nor should the
lack of a trial-type hearing prior to the clamping
constitute a breach of procedural due process, for
giving the transgressors the chance to reverse the
apprehensions through a timely protest could
equally satisfy the need for a hearing. In other
words, the prior intervention of a court of law was
not indispensable to ensure a compliance with the
guaranty of due process.
||| (Legaspi v. Cebu City, G.R. No. 159110, 159692,

[December 10, 2013])
9. MANILA MEMORIAL VS. DSWD 711
SCRA 302 (2013)
EN BANC
[G.R. No. 175356. December 3, 2013.]
MANILA MEMORIAL PARK, INC. AND LA
FUNERARIA
PAZ-SUCAT,
INC.,
petitioners,vs.SECRETARY
OF
THE
DEPARTMENT OF SOCIAL WELFARE AND
DEVELOPMENT and THE SECRETARY OF THE
DEPARTMENT OF FINANCE, respondents.
To reiterate, the clamping of the illegally parked

vehicles was a fair and reasonable way to enforce
the ordinance against its transgressors; otherwise,
the transgressors would evade liability by simply
driving away.
DECISION
Finally, Legaspi's position, that the final decision of
the RTC rendered in the Astillero case declaring
Ordinance No. 1664 unconstitutional bound the City
of Cebu, thereby precluding these consolidated
appeals from being decided differently, is utterly
untenable. For one, Legaspi undeservedly extends
too much importance to an irrelevant decision of
the RTC irrelevant, because the connection
between that case to these cases was not at all
shown. For another, he ignores that it should be the
RTC that had improperly acted for so deciding the
Astillero case despite the appeals in these cases
being already pending in the CA. Being the same
court in the three cases, the RTC should have
anticipated that in the regular course of
proceedings the outcome of the appeal in these
cases then pending before the CA would ultimately
be elevated to and determined by no less than the
Court itself. Such anticipation should have made it
refrain from declaring Ordinance No. 1664
unconstitutional, for a lower court like itself,
appreciating its position in the "interrelation and
operation of the integrated judicial system of the
nation," should have exercised a "becoming
modesty" on the issue of the constitutionality of the
same ordinance that the Constitution required the
majority vote of the Members of the Court sitting en
banc to determine. 34 Such "becoming modesty"
also forewarned that any declaration of
unconstitutionality by an inferior court was binding
only on the parties, but that a declaration of
unconstitutionality by the Court would be a
precedent binding on all. 35
DEL CASTILLO, J p:
When a party challenges the constitutionality of a
law, the burden of proof rests upon him. 1
Before us is a Petition for Prohibition 2 under Rule
65 of the Rules of Court filed by petitioners Manila
Memorial Park, Inc. and La Funeraria Paz-Sucat,
Inc., domestic corporations engaged in the
business of providing funeral and burial services,
against public respondents Secretaries of the
Department of Social Welfare and Development
(DSWD) and the Department of Finance (DOF).
Petitioners assail the constitutionality of Section 4
of Republic Act (RA) No. 7432, 3 as amended by
RA 9257, 4 and the implementing rules and
regulations issued by the DSWD and DOF insofar
as these allow business establishments to claim the
20% discount given to senior citizens as a tax
deduction. TECcHA
Factual Antecedents
On April 23, 1992, RA 7432 was passed into law,
granting senior citizens the following privileges:
SECTION 4. Privileges for the Senior Citizens.
The senior citizens shall be entitled to the following:
a) the grant of twenty percent (20%) discount from
all establishments relative to utilization of
transportation services, hotels and similar lodging
establishment[s],restaurants and recreation centers
and purchase of medicine anywhere in the country:
Provided, That private establishments may claim
the cost as tax credit;
WHEREFORE, the Court DENIES the petitions for

review on certiorari for their lack of merit; AFFIRMS
the decision promulgated on June 16, 2003 by the
Court of Appeals; and ORDERS the petitioners to
pay the costs of suit.
b) a minimum of twenty percent (20%) discount on

admission fees charged by theaters, cinema
houses and concert halls, circuses, carnivals and
other similar places of culture, leisure, and
amusement;
SO ORDERED. IaHCAD
c) exemption from the payment of individual

income taxes: Provided, That their annual taxable
income does not exceed the property level as
determined by the National Economic and
Development Authority (NEDA) for that year;
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de

Castro, Brion, Peralta, Del Castillo, Abad,
Villarama, Jr., Perez, Mendoza, Reyes, PerlasBernabe and Leonen, JJ., concur.
257
d) exemption from training fees for socioeconomic

programs undertaken by the OSCA as part of its
work;
grant. In turn, the Implementing Rules and

Regulations, issued pursuant thereto, provide the
procedures for its availment. To deny such credit,
despite the plain mandate of the law and the
regulations carrying out that mandate, is
indefensible.
e) free medical and dental services in government

establishment[s] anywhere in the country, subject to
guidelines to be issued by the Department of
Health, the Government Service Insurance System
and the Social Security System; EaHATD
First, the definition given by petitioner is erroneous.

It refers to tax credit as the amount representing
the 20 percent discount that "shall be deducted by
the said establishments from their gross income for
income tax purposes and from their gross sales for
value-added tax or other percentage tax purposes."
In ordinary business language, the tax credit
represents the amount of such discount. However,
the manner by which the discount shall be credited
against taxes has not been clarified by the revenue
regulations. aHcACT
f) to the extent practicable and feasible, the

continuance of the same benefits and privileges
given by the Government Service Insurance
System (GSIS),Social Security System (SSS) and
PAG-IBIG, as the case may be, as are enjoyed by
those in actual service.
On August 23, 1993, Revenue Regulations (RR)
No. 02-94 was issued to implement RA 7432.
Sections 2 (i) and 4 of RR No. 02-94 provide:
Sec. 2. DEFINITIONS. For purposes of these
regulations:
By ordinary acceptation, a discount is an

"abatement or reduction made from the gross
amount or value of anything." To be more precise, it
is in business parlance "a deduction or lowering of
an amount of money;" or "a reduction from the full
amount or value of something, especially a price."
In business there are many kinds of discount, the
most common of which is that affecting the income
statement or financial report upon which the income
tax is based.
i. Tax Credit refers to the amount representing

the 20% discount granted to a qualified senior
citizen by all establishments relative to their
utilization of transportation services, hotels and
similar
lodging
establishments,
restaurants,
drugstores, recreation centers, theaters, cinema
houses, concert halls, circuses, carnivals and other
similar places of culture, leisure and amusement,
which discount shall be deducted by the said
establishments from their gross income for income
tax purposes and from their gross sales for valueadded tax or other percentage tax purposes.
xxx xxx xxx

Sections 2.i and 4 of Revenue Regulations No.
(RR) 2-94 define tax credit as the 20 percent
discount deductible from gross income for income
tax purposes, or from gross sales for VAT or other
percentage tax purposes. In effect, the tax credit
benefit under RA 7432 is related to a sales
discount. This contrived definition is improper,
considering that the latter has to be deducted from
gross sales in order to compute the gross income in
the income statement and cannot be deducted
again, even for purposes of computing the income
tax.
xxx xxx xxx

Sec.
4.
RECORDING/BOOKKEEPING
REQUIREMENTS
FOR
PRIVATE
ESTABLISHMENTS. Private establishments,
i.e.,transport services, hotels and similar lodging
establishments, restaurants, recreation centers,
drugstores, theaters, cinema houses, concert halls,
circuses, carnivals and other similar places of
culture[,] leisure and amusement, giving 20%
discounts to qualified senior citizens are required to
keep separate and accurate record[s] of sales
made to senior citizens, which shall include the
name, identification number, gross sales/receipts,
discounts, dates of transactions and invoice
number for every transaction. cISDHE
When the law says that the cost of the discount

may be claimed as a tax credit, it means that the
amount when claimed shall be treated as a
reduction from any tax liability, plain and simple.
The option to avail of the tax credit benefit depends
upon the existence of a tax liability, but to limit the
benefit to a sales discount which is not even
identical to the discount privilege that is granted by
law does not define it at all and serves no useful
purpose. The definition must, therefore, be stricken
down. DcSTaC
The amount of 20% discount shall be deducted

from the gross income for income tax purposes and
from gross sales of the business enterprise
concerned for purposes of the VAT and other
percentage taxes.
Laws Not Amended

by Regulations
In Commissioner of Internal Revenue v. Central

Luzon Drug Corporation, 5 the Court declared
Sections 2 (i) and 4 of RR No. 02-94 as erroneous
because these contravene RA 7432, 6 thus:
RA 7432 specifically allows private establishments
to claim as tax credit the amount of discounts they
Second, the law cannot be amended by a mere

regulation. In fact, a regulation that "operates to
create a rule out of harmony with the statute is a
mere nullity;" it cannot prevail.
258
It is a cardinal rule that courts "will and should

respect the contemporaneous construction placed
upon a statute by the executive officers whose duty
it is to enforce it ...." In the scheme of judicial tax
administration, the need for certainty and
predictability in the implementation of tax laws is
crucial. Our tax authorities fill in the details that
"Congress may not have the opportunity or
competence to provide." The regulations these
authorities issue are relied upon by taxpayers, who
are certain that these will be followed by the courts.
Courts, however, will not uphold these authorities'
interpretations when clearly absurd, erroneous or
improper.
SEC. 8. AVAILMENT BY ESTABLISHMENTS OF

SALES DISCOUNTS AS DEDUCTION FROM
GROSS INCOME. Establishments enumerated
in subparagraph (6) hereunder granting sales
discounts to senior citizens on the sale of goods
and/or services specified thereunder are entitled to
deduct the said discount from gross income subject
to the following conditions: caIDSH
(1)
Only that portion of the gross sales
EXCLUSIVELY
USED,
CONSUMED
OR
ENJOYED BY THE SENIOR CITIZEN shall be
eligible for the deductible sales discount.
(2) The gross selling price and the sales discount
MUST BE SEPARATELY INDICATED IN THE
OFFICIAL RECEIPT OR SALES INVOICE issued
by the establishment for the sale of goods or
services to the senior citizen.
In the present case, the tax authorities have given

the term tax credit in Sections 2.i and 4 of RR 2-94
a meaning utterly in contrast to what RA 7432
provides. Their interpretation has muddled . . . the
intent of Congress in granting a mere discount
privilege, not a sales discount. The administrative
agency issuing these regulations may not enlarge,
alter or restrict the provisions of the law it
administers;
it
cannot
engraft
additional
requirements not contemplated by the legislature.
(3) Only the actual amount of the discount granted

or a sales discount not exceeding 20% of the gross
selling price can be deducted from the gross
income, net of value added tax, if applicable, for
income tax purposes, and from gross sales or
gross receipts of the business enterprise
concerned, for VAT or other percentage tax
purposes.
In case of conflict, the law must prevail. A

"regulation adopted pursuant to law is law."
Conversely, a regulation or any portion thereof not
adopted pursuant to law is no law and has neither
the force nor the effect of law. 7
(4) The discount can only be allowed as deduction

from gross income for the same taxable year that
the discount is granted.
On February 26, 2004, RA 9257 8 amended certain

provisions of RA 7432, to wit: HSCATc
(5)
The business establishment giving sales
discounts to qualified senior citizens is required to
keep separate and accurate record[s] of sales,
which shall include the name of the senior citizen,
TIN, OSCA ID, gross sales/receipts, sales discount
granted, [date] of [transaction] and invoice number
for every sale transaction to senior citizen.
(a) the grant of twenty percent (20%) discount from

all establishments relative to the utilization of
services
in
hotels
and
similar
lodging
establishments, restaurants and recreation centers,
and purchase of medicines in all establishments for
the exclusive use or enjoyment of senior citizens,
including funeral and burial services for the death of
senior citizens;
(6) Only the following business establishments

which granted sales discount to senior citizens on
their sale of goods and/or services may claim the
said discount granted as deduction from gross
income, namely:
xxx xxx xxx

xxx xxx xxx
The establishment may claim the discounts granted
under (a),(f),(g) and (h) as tax deduction based on
the net cost of the goods sold or services rendered:
Provided, That the cost of the discount shall be
allowed as deduction from gross income for the
same taxable year that the discount is granted.
Provided, further, That the total amount of the
claimed tax deduction net of value added tax if
applicable, shall be included in their gross sales
receipts for tax purposes and shall be subject to
proper documentation and to the provisions of the
National Internal Revenue Code, as amended.
(i) Funeral parlors and similar establishments

The beneficiary or any person who shall shoulder
the funeral and burial expenses of the deceased
senior citizen shall claim the discount, such as
casket, embalmment, cremation cost and other
related services for the senior citizen upon payment
and presentation of [his] death certificate. TSEHcA
The DSWD likewise issued its own Rules and
Regulations Implementing RA 9257, to wit: SCEDAI
RULE VI
To implement the tax provisions of RA 9257, the

Secretary of Finance issued RR No. 4-2006, the
pertinent provision of which provides:
DISCOUNTS
AS
ESTABLISHMENTS
259
TAX
DEDUCTION
OF
Article 8. Tax Deduction of Establishments. The

establishment may claim the discounts granted
under Rule V, Section 4 Discounts for
Establishments, Section 9, Medical and Dental
Services in Private Facilities and Sections 10 and
11 Air, Sea and Land Transportation as tax
deduction based on the net cost of the goods sold
or services rendered. Provided, That the cost of the
discount shall be allowed as deduction from gross
income for the same taxable year that the discount
is granted; Provided, further, That the total amount
of the claimed tax deduction net of value added tax
if applicable, shall be included in their gross sales
National Internal Revenue Code, as amended;
Provided, finally, that the implementation of the tax
deduction shall be subject to the Revenue
Regulations to be issued by the Bureau of Internal
Revenue (BIR) and approved by the Department of
Finance (DOF).
the 20% discount privilege constitutes taking of

private property for public use which requires the
payment of just compensation, 13 and Carlos
Superdrug Corporation v. Department of Social
Welfare and Development, 14 where it was
acknowledged that the tax deduction scheme does
not meet the definition of just compensation. 15
Petitioners likewise seek a reversal of the ruling in
Carlos Superdrug Corporation 16 that the tax
deduction scheme adopted by the government is
justified by police power. 17 They assert that
"[a]lthough both police power and the power of
eminent domain have the general welfare for their
object, there are still traditional distinctions between
the two" 18 and that "eminent domain cannot be
made less supreme than police power." 19
Petitioners further claim that the legislature, in
amending RA 7432, relied on an erroneous
contemporaneous construction that prior payment
of taxes is required for tax credit. 20
Petitioners also contend that the tax deduction
scheme violates Article XV, Section 4 21 and Article
XIII, Section 11 22 of the Constitution because it
shifts the State's constitutional mandate or duty of
improving the welfare of the elderly to the private
sector. 23 Under the tax deduction scheme, the
private sector shoulders 65% of the discount
because only 35% 24 of it is actually returned by
the
government.
25
Consequently,
the
implementation of the tax deduction scheme
prescribed under Section 4 of RA 9257 affects the
businesses of petitioners. 26 Thus, there exists an
actual case or controversy of transcendental
importance which deserves judicious disposition on
the merits by the highest court of the land. 27
DEcSaI
Respondents' Arguments
Respondents, on the other hand, question the filing
of the instant Petition directly with the Supreme
Court as this disregards the hierarchy of courts. 28
They likewise assert that there is no justiciable
controversy as petitioners failed to prove that the
tax deduction treatment is not a "fair and full
equivalent of the loss sustained" by them. 29 As to
the constitutionality of RA 9257 and its
implementing rules and regulations, respondents
contend that petitioners failed to overturn its
presumption of constitutionality. 30 More important,
respondents maintain that the tax deduction
scheme is a legitimate exercise of the State's police
power. 31
Our Ruling
The Petition lacks merit. EICSDT
There exists an actual case or
controversy.
We shall first resolve the procedural issue.
When the constitutionality of a law is put in issue,
judicial review may be availed of only if the
following requisites concur: "(1) the existence of an
actual and appropriate case; (2) the existence of
personal and substantial interest on the part of the
party raising the [question of constitutionality];(3)
recourse to judicial review is made at the earliest
opportunity;
and
(4)
the
[question
of
constitutionality] is the lis mota of the case." 32
Feeling aggrieved by the tax deduction scheme,

petitioners filed the present recourse, praying that
Section 4 of RA 7432, as amended by RA 9257,
and the implementing rules and regulations issued
by the DSWD and the DOF be declared
unconstitutional insofar as these allow business
establishments to claim the 20% discount given to
senior citizens as a tax deduction; that the DSWD
and the DOF be prohibited from enforcing the
same; and that the tax credit treatment of the 20%
discount under the former Section 4 (a) of RA 7432
be reinstated.
Issues
Petitioners raise the following issues:
A.
WHETHER THE PETITION PRESENTS
ACTUAL CASE OR CONTROVERSY.
AN
B.
WHETHER SECTION 4 OF REPUBLIC ACT NO.
9257 AND . . . ITS IMPLEMENTING RULES AND
REGULATIONS, INSOFAR AS THEY PROVIDE
THAT THE TWENTY PERCENT (20%) DISCOUNT
TO SENIOR CITIZENS MAY BE CLAIMED AS A
TAX
DEDUCTION
BY
THE
PRIVATE
ESTABLISHMENTS,
ARE
INVALID
AND
UNCONSTITUTIONAL. 9 IaECcH
Petitioners' Arguments
Petitioners emphasize that they are not questioning
the 20% discount granted to senior citizens but are
only assailing the constitutionality of the tax
deduction scheme prescribed under RA 9257 and
the implementing rules and regulations issued by
the DSWD and the DOF. 10
Petitioners posit that the tax deduction scheme
contravenes Article III, Section 9 of the Constitution,
which provides that: "[p]rivate property shall not be
taken for public use without just compensation." 11
In support of their position, petitioners cite Central
Luzon Drug Corporation, 12 where it was ruled that
260
In this case, petitioners are challenging the

constitutionality of the tax deduction scheme
provided in RA 9257 and the implementing rules
and regulations issued by the DSWD and the DOF.
Respondents, however, oppose the Petition on the
ground that there is no actual case or controversy.
We do not agree with respondents.
An actual case or controversy exists when there is
"a conflict of legal rights" or "an assertion of
opposite legal claims susceptible of judicial
resolution." 33 The Petition must therefore show
that "the governmental act being challenged has a
direct adverse effect on the individual challenging
it." 34 In this case, the tax deduction scheme
challenged by petitioners has a direct adverse
effect on them. Thus, it cannot be denied that there
exists an actual case or controversy. cTECHI
The validity of the 20% senior citizen
discount and tax deduction scheme
under RA 9257, as an exercise of police
power of the State, has already been
settled in Carlos Superdrug
Corporation.
Petitioners posit that the resolution of this case lies
in the determination of whether the legally
mandated 20% senior citizen discount is an
exercise of police power or eminent domain. If it is
police power, no just compensation is warranted.
But if it is eminent domain, the tax deduction
scheme is unconstitutional because it is not a peso
for peso reimbursement of the 20% discount given
to senior citizens. Thus, it constitutes taking of
private property without payment of just
compensation.
At the outset, we note that this question has been
settled in Carlos Superdrug Corporation. 35 In that
case, we ruled:
Petitioners assert that Section 4(a) of the law is
unconstitutional because it constitutes deprivation
of private property. Compelling drugstore owners
and establishments to grant the discount will result
in a loss of profit and capital because 1) drugstores
impose a mark-up of only 5% to 10% on branded
medicines; and 2) the law failed to provide a
scheme whereby drugstores will be justly
compensated for the discount. HcDATC
owed on a peso for peso basis but merely offers a

fractional reduction in taxes owed.
Theoretically, the treatment of the discount as a
deduction reduces the net income of the private
establishments concerned. The discounts given
would have entered the coffers and formed part of
the gross sales of the private establishments, were
it not for R.A. No. 9257.
The permanent reduction in their total revenues is a
forced subsidy corresponding to the taking of
private property for public use or benefit. This
constitutes compensable taking for which
petitioners would ordinarily become entitled to a
just compensation.
Just compensation is defined as the full and fair
equivalent of the property taken from its owner by
the expropriator. The measure is not the taker's
gain but the owner's loss. The word just is used to
intensify
the
meaning
of
the
word
compensation,and to convey the idea that the
equivalent to be rendered for the property to be
taken shall be real, substantial, full and ample.
TcHCDI
A tax deduction does not offer full reimbursement of
the senior citizen discount. As such, it would not
meet the definition of just compensation.
Having said that, this raises the question of whether
the State, in promoting the health and welfare of a
special group of citizens, can impose upon private
establishments the burden of partly subsidizing a
government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to
maximize the contribution of senior citizens to
nation-building, and to grant benefits and privileges
to them for their improvement and well-being as the
State considers them an integral part of our society.
The priority given to senior citizens finds its basis in
the Constitution as set forth in the law itself. Thus,
the Act provides:
Examining petitioners' arguments, it is apparent

that what petitioners are ultimately questioning is
the validity of the tax deduction scheme as a
reimbursement mechanism for the twenty percent
(20%) discount that they extend to senior citizens.
SEC. 2. Republic Act No. 7432 is hereby amended

to read as follows: TaDSCA
SECTION 1.
Declaration of Policies and
Objectives. Pursuant to Article XV, Section 4 of
the Constitution, it is the duty of the family to take
care of its elderly members while the State may
design programs of social security for them. In
addition to this, Section 10 in the Declaration of
Principles and State Policies provides: "The State
shall provide social justice in all phases of national
development." Further, Article XIII, Section 11,
provides: "The State shall adopt an integrated and
comprehensive approach to health development
which shall endeavor to make essential goods,
health and other social services available to all the
Based on the afore-stated DOF Opinion, the tax

deduction scheme does not fully reimburse
petitioners for the discount privilege accorded to
senior citizens. This is because the discount is
treated as a deduction, a tax-deductible expense
that is subtracted from the gross income and
results in a lower taxable income. Stated otherwise,
it is an amount that is allowed by law to reduce the
income prior to the application of the tax rate to
compute the amount of tax which is due. Being a
tax deduction, the discount does not reduce taxes
261
people at affordable cost. There shall be priority for

the needs of the underprivileged sick, elderly,
disabled, women and children." Consonant with
these constitutional principles the following are the
declared policies of this Act: DacASC
Given these, it is incorrect for petitioners to insist

that the grant of the senior citizen discount is
unduly oppressive to their business, because
petitioners have not taken time to calculate
correctly and come up with a financial report, so
that they have not been able to show properly
whether or not the tax deduction scheme really
works greatly to their disadvantage.
xxx xxx xxx

(f) To recognize the important role of the private
sector in the improvement of the welfare of senior
citizens and to actively seek their partnership.
In treating the discount as a tax deduction,

petitioners insist that they will incur losses because,
referring to the DOF Opinion, for every P1.00
senior citizen discount that petitioners would give,
P0.68 will be shouldered by them as only P0.32 will
be refunded by the government by way of a tax
deduction. HIaAED
To implement the above policy, the law grants a

twenty percent discount to senior citizens for
medical and dental services, and diagnostic and
laboratory fees; admission fees charged by
theaters, concert halls, circuses, carnivals, and
other similar places of culture, leisure and
amusement; fares for domestic land, air and sea
travel; utilization of services in hotels and similar
lodging establishments, restaurants and recreation
centers; and purchases of medicines for the
exclusive use or enjoyment of senior citizens. As a
form of reimbursement, the law provides that
business establishments extending the twenty
percent discount to senior citizens may claim the
discount as a tax deduction.
To illustrate this point, petitioner Carlos Super Drug

cited the anti-hypertensive maintenance drug
Norvasc as an example. According to the latter, it
acquires Norvasc from the distributors at P37.57
per tablet, and retails it at P39.60 (or at a margin of
5%).If it grants a 20% discount to senior citizens or
an amount equivalent to P7.92, then it would have
to sell Norvasc at P31.68 which translates to a loss
from capital of P5.89 per tablet. Even if the
government will allow a tax deduction, only P2.53
per tablet will be refunded and not the full amount
of the discount which is P7.92. In short, only 32% of
the 20% discount will be reimbursed to the
drugstores.
The law is a legitimate exercise of police power

which, similar to the power of eminent domain, has
general welfare for its object. Police power is not
capable of an exact definition, but has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and
provide enough room for an efficient and flexible
response to conditions and circumstances, thus
assuring the greatest benefits. Accordingly, it has
been described as "the most essential, insistent
and the least limitable of powers, extending as it
does to all the great public needs." It is "[t]he power
vested in the legislature by the constitution to
make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to
be for the good and welfare of the commonwealth,
and of the subjects of the same." HCaIDS
Petitioners' computation is flawed. For purposes of

reimbursement, the law states that the cost of the
discount shall be deducted from gross income, the
amount of income derived from all sources before
deducting allowable expenses, which will result in
net income. Here, petitioners tried to show a loss
on a per transaction basis, which should not be the
case. An income statement, showing an accounting
of petitioners' sales, expenses, and net profit (or
loss) for a given period could have accurately
reflected the effect of the discount on their income.
Absent any financial statement, petitioners cannot
substantiate their claim that they will be operating
at a loss should they give the discount. In addition,
the computation was erroneously based on the
assumption that their customers consisted wholly of
senior citizens. Lastly, the 32% tax rate is to be
imposed on income, not on the amount of the
discount.
For this reason, when the conditions so demand as

determined by the legislature, property rights must
bow to the primacy of police power because
property rights, though sheltered by due process,
must yield to general welfare.
Furthermore, it is unfair for petitioners to criticize

the law because they cannot raise the prices of
their medicines given the cutthroat nature of the
players in the industry. It is a business decision on
the part of petitioners to peg the mark-up at
5%.Selling the medicines below acquisition cost, as
alleged by petitioners, is merely a result of this
decision. Inasmuch as pricing is a property right,
petitioners cannot reproach the law for being
oppressive, simply because they cannot afford to
raise their prices for fear of losing their customers
to competition. DIETHS
Police power as an attribute to promote the

common good would be diluted considerably if on
the mere plea of petitioners that they will suffer loss
of earnings and capital, the questioned provision is
invalidated. Moreover, in the absence of evidence
demonstrating the alleged confiscatory effect of the
provision in question, there is no basis for its
nullification in view of the presumption of validity
which every law has in its favor.
262
The Court is not oblivious of the retail side of the

pharmaceutical industry and the competitive pricing
component of the business. While the Constitution
protects property rights, petitioners must accept the
realities of business and the State, in the exercise
of police power, can intervene in the operations of a
business which may result in an impairment of
property rights in the process.
public welfare,and public convenience.The discount

privilege to which our senior citizens are entitled is
actually a benefit enjoyed by the general public to
which these citizens belong. The discounts given
the gross sales of the private establishments
concerned, were it not for RA 7432. The permanent
reduction in their total revenues is a forced subsidy
corresponding to the taking of private property for
public use or benefit. HDTcEI
Moreover, the right to property has a social

dimension. While Article XIII of the Constitution
provides the precept for the protection of property,
various laws and jurisprudence, particularly on
agrarian reform and the regulation of contracts and
public utilities, continuously serve as . . .
reminder[s] that the right to property can be
relinquished upon the command of the State for the
promotion of public good.
As a result of the 20 percent discount imposed by

RA 7432, respondent becomes entitled to a just
compensation.This term refers not only to the
issuance of a tax credit certificate indicating the
correct amount of the discounts given, but also to
the promptness in its release. Equivalent to the
payment of property taken by the State, such
issuance when not done within a reasonable
time from the grant of the discounts cannot be
considered as just compensation.In effect,
respondent is made to suffer the consequences of
being immediately deprived of its revenues while
awaiting actual receipt, through the certificate, of
the equivalent amount it needs to cope with the
reduction in its revenues.
Undeniably, the success of the senior citizens

program rests largely on the support imparted by
petitioners and the other private establishments
concerned. This being the case, the means
employed in invoking the active participation of the
private sector, in order to achieve the purpose or
objective of the law, is reasonably and directly
related. Without sufficient proof that Section 4 (a) of
R.A. No. 9257 is arbitrary, and that the continued
implementation
of
the
same
would
be
unconscionably detrimental to petitioners, the Court
will refrain from quashing a legislative act. 36 (Bold
in the original; underline supplied)
Besides, the taxation power can also be used as an

implement for the exercise of the power of eminent
domain. Tax measures are but "enforced
contributions exacted on pain of penal sanctions"
and "clearly imposed for a public purpose." In
recent years, the power to tax has indeed become
a most effective tool to realize social justice, public
welfare,and the equitable distribution of wealth.
We, thus, found that the 20% discount as well as

the tax deduction scheme is a valid exercise of the
police power of the State. ATcaEH
No compelling reason has been
proffered to overturn, modify or
abandon the ruling in Carlos
Superdrug Corporation.
Petitioners argue that we have previously ruled in
Central Luzon Drug Corporation 37 that the 20%
discount is an exercise of the power of eminent
domain, thus, requiring the payment of just
compensation. They urge us to re-examine our
ruling in Carlos Superdrug Corporation 38 which
allegedly reversed the ruling in Central Luzon Drug
Corporation. 39 They also point out that Carlos
Superdrug Corporation 40 recognized that the tax
deduction scheme under the assailed law does not
provide for sufficient just compensation.
We agree with petitioners' observation that there
are statements in Central Luzon Drug Corporation
41 describing the 20% discount as an exercise of
the power of eminent domain, viz.:
[T]he privilege enjoyed by senior citizens does not
come directly from the State, but rather from the
private establishments concerned. Accordingly, the
tax credit benefit granted to these establishments
can be deemed as their just compensation for
private property taken by the State for public use.
While it is a declared commitment under Section 1

of RA 7432, social justice "cannot be invoked to
trample on the rights of property owners who under
our Constitution and laws are also entitled to
protection. The social justice consecrated in our
[C]onstitution [is] not intended to take away rights
from a person and give them to another who is not
entitled thereto." For this reason, a just
compensation for income that is taken away from
respondent becomes necessary. It is in the tax
credit that our legislators find support to realize
social justice, and no administrative body can alter
that fact. DHESca
To put it differently, a private establishment that
merely breaks even without the discounts yet
will surely start to incur losses because of such
discounts. The same effect is expected if its markup is less than 20 percent, and if all its sales come
from retail purchases by senior citizens. Aside from
the observation we have already raised earlier, it
will also be grossly unfair to an establishment if the
discounts will be treated merely as deductions from
either its gross income or its gross sales.Operating
at a loss through no fault of its own, it will realize
that the tax credit limitation under RR 2-94 is inutile,
if not improper. Worse, profit-generating businesses
will be put in a better position if they avail
themselves of tax credits denied those that are
The concept of public use is no longer confined to

the traditional notion of use by the public, but held
synonymous with public interest, public benefit,
263
losing, because no taxes are due from the latter. 42

(Italics in the original; emphasis supplied)

government program.
The above was partly incorporated in our ruling in

Carlos Superdrug Corporation 43 when we stated
preliminarily that
compensated for the discount. STEacI
The Court believes so. 44 TaEIAS

This, notwithstanding, we went on to rule in Carlos
Superdrug Corporation 45 that the 20% discount
and tax deduction scheme is a valid exercise of the
police power of the State.
The present case, thus, affords an opportunity for
us to clarify the above-quoted statements in Central
Luzon Drug Corporation 46 and Carlos Superdrug
Corporation. 47
First, we note that the above-quoted disquisition on
eminent domain in Central Luzon Drug Corporation
48 is obiter dicta and, thus, not binding precedent.
As stated earlier, in Central Luzon Drug
Corporation, 49 we ruled that the BIR acted ultra
vires when it effectively treated the 20% discount
as a tax deduction, under Sections 2.i and 4 of RR
No. 2-94, despite the clear wording of the previous
law that the same should be treated as a tax credit.
We were, therefore, not confronted in that case with
the issue as to whether the 20% discount is an
exercise of police power or eminent domain.
Second, although we adverted to Central Luzon
Drug Corporation 50 in our ruling in Carlos
Superdrug Corporation, 51 this referred only to
preliminary matters. A fair reading of Carlos
Superdrug Corporation 52 would show that we
categorically ruled therein that the 20% discount is
a valid exercise of police power. Thus, even if the
current law, through its tax deduction scheme
(which abandoned the tax credit scheme under the
previous law), does not provide for a peso for peso
reimbursement of the 20% discount given by
private establishments, no constitutional infirmity
obtains because, being a valid exercise of police
power, payment of just compensation is not
warranted.
We have carefully reviewed the basis of our ruling
in Carlos Superdrug Corporation 53 and we find no
cogent reason to overturn, modify or abandon it.
We also note that petitioners' arguments are a
mere reiteration of those raised and resolved in
Carlos Superdrug Corporation. 54 Thus, we sustain
Carlos Superdrug Corporation. 55 EAIcCS
Nonetheless, we deem it proper, in what follows, to
amplify our explanation in Carlos Superdrug
Corporation 56 as to why the 20% discount is a
valid exercise of police power and why it may not,
under the specific circumstances of this case,be
considered as an exercise of the power of eminent
domain contrary to the obiter in Central Luzon Drug
Corporation. 57 IaAScD
Police power versus eminent domain.
Police power is the inherent power of the State to
regulate or to restrain the use of liberty and
property for public welfare. 58 The only limitation is
that the restriction imposed should be reasonable,
not oppressive. 59 In other words, to be a valid
exercise of police power, it must have a lawful
subject or objective and a lawful method of
accomplishing the goal. 60 Under the police power

just compensation.
intensify
the
meaning
of
the
word
264
of the State, "property rights of individuals may be

subjected to restraints and burdens in order to fulfill
the objectives of the government." 61 The State
"may interfere with personal liberty, property, lawful
businesses and occupations to promote the general
welfare [as long as] the interference [is] reasonable
and not arbitrary." 62 Eminent domain, on the other
hand, is the inherent power of the State to take or
appropriate private property for public use. 63 The
Constitution, however, requires that private property
shall not be taken without due process of law and
the payment of just compensation. 64
Traditional distinctions exist between police power
and eminent domain.
In the exercise of police power, a property right is
impaired by regulation, 65 or the use of property is
merely prohibited, regulated or restricted 66 to
promote public welfare. In such cases, there is no
compensable taking, hence, payment of just
compensation is not required. Examples of these
regulations are property condemned for being
noxious or intended for noxious purposes (e.g., a
building on the verge of collapse to be demolished
for public safety, or obscene materials to be
destroyed in the interest of public morals) 67 as
well as zoning ordinances prohibiting the use of
property for purposes injurious to the health, morals
or safety of the community (e.g., dividing a city's
territory into residential and industrial areas). 68 It
has, thus, been observed that, in the exercise of
police power (as distinguished from eminent
domain), although the regulation affects the right of
ownership, none of the bundle of rights which
constitute ownership is appropriated for use by or
for the benefit of the public. 69 HASTCa
On the other hand, in the exercise of the power of
eminent
domain,
property
interests
are
appropriated and applied to some public purpose
which necessitates the payment of just
compensation therefor. Normally, the title to and
possession of the property are transferred to the
expropriating authority. Examples include the
acquisition of lands for the construction of public
highways as well as agricultural lands acquired by
the government under the agrarian reform law for
redistribution to qualified farmer beneficiaries.
However, it is a settled rule that the acquisition of
title or total destruction of the property is not
essential for "taking" under the power of eminent
domain to be present. 70 Examples of these
include establishment of easements such as where
the land owner is perpetually deprived of his
proprietary rights because of the hazards posed by
electric transmission lines constructed above his
property 71 or the compelled interconnection of the
telephone system between the government and a
private company. 72 In these cases, although the
private property owner is not divested of ownership
or possession, payment of just compensation is
warranted because of the burden placed on the
property for the use or benefit of the public.
The 20% senior citizen discount is an
It may not always be easy to determine whether a
challenged governmental act is an exercise of
police power or eminent domain. The very nature of

police power as elastic and responsive to various
social conditions 73 as well as the evolving
meaning and scope of public use 74 and just
compensation 75 in eminent domain evinces that
these are not static concepts. Because of the
exigencies of rapidly changing times, Congress
may be compelled to adopt or experiment with
different measures to promote the general welfare
which may not fall squarely within the traditionally
recognized categories of police power and eminent
domain. The judicious approach, therefore, is to
look at the nature and effects of the challenged
governmental act and decide, on the basis thereof,
whether the act is the exercise of police power or
eminent domain. Thus, we now look at the nature
and effects of the 20% discount to determine if it
constitutes an exercise of police power or eminent
domain. ASHaDT
The 20% discount is intended to improve the
welfare of senior citizens who, at their age, are less
likely to be gainfully employed, more prone to
illnesses and other disabilities, and, thus, in need of
subsidy in purchasing basic commodities. It may
not be amiss to mention also that the discount
serves to honor senior citizens who presumably
spent the productive years of their lives on
contributing to the development and progress of the
nation. This distinct cultural Filipino practice of
honoring the elderly is an integral part of this law.
As to its nature and effects, the 20% discount is a
regulation affecting the ability of private
establishments to price their products and services
relative to a special class of individuals, senior
citizens, for which the Constitution affords
preferential concern. 76 In turn, this affects the
amount of profits or income/gross sales that a
private establishment can derive from senior
citizens. In other words, the subject regulation
affects the pricing, and, hence, the profitability of a
private establishment. However, it does not purport
to appropriate or burden specific properties, used in
the operation or conduct of the business of private
establishments, for the use or benefit of the public,
or senior citizens for that matter, but merely
regulates the pricing of goods and services relative
to, and the amount of profits or income/gross sales
that such private establishments may derive from,
senior citizens. ITEcAD
The subject regulation may be said to be similar to,
but with substantial distinctions from, price control
or rate of return on investment control laws which
are traditionally regarded as police power
measures. 77 These laws generally regulate public
utilities or industries/enterprises imbued with public
interest in order to protect consumers from
exorbitant or unreasonable pricing as well as
temper corporate greed by controlling the rate of
return on investment of these corporations
considering that they have a monopoly over the
goods or services that they provide to the general
public. The subject regulation differs therefrom in
that (1) the discount does not prevent the
establishments from adjusting the level of prices of
their goods and services, and (2) the discount does
265
not apply to all customers of a given establishment

but only to the class of senior citizens.
Nonetheless, to the degree material to the
resolution of this case, the 20% discount may be
properly viewed as belonging to the category of
price regulatory measures which affect the
profitability of establishments subjected thereto.
On its face, therefore, the subject regulation is a
police power measure.
The obiter in Central Luzon Drug Corporation, 78
however, describes the 20% discount as an
exercise of the power of eminent domain and the
tax credit, under the previous law, equivalent to the
amount of discount given as the just compensation
therefor. The reason is that (1) the discount would
have formed part of the gross sales of the
establishment were it not for the law prescribing the
20% discount, and (2) the permanent reduction in
total revenues is a forced subsidy corresponding to
the taking of private property for public use or
benefit. DTEScI
The flaw in this reasoning is in its premise. It
presupposes that the subject regulation, which
impacts the pricing and, hence, the profitability of a
private establishment, automatically amounts to a
deprivation of property without due process of law.
If this were so, then all price and rate of return on
investment control laws would have to be
invalidated because they impact, at some level, the
regulated establishment's profits or income/gross
sales, yet there is no provision for payment of just
compensation. It would also mean that government
cannot set price or rate of return on investment
limits, which reduce the profits or income/gross
sales of private establishments, if no just
compensation is paid even if the measure is not
confiscatory. The obiter is, thus, at odds with the
settled doctrine that the State can employ police
power measures to regulate the pricing of goods
and services, and, hence, the profitability of
business establishments in order to pursue
legitimate State objectives for the common good,
provided that the regulation does not go too far as
to amount to "taking." 79
In City of Manila v. Laguio, Jr., 80 we recognized
that
...a taking also could be found if government
regulation of the use of property went "too far."
When regulation reaches a certain magnitude, in
most if not in all cases there must be an exercise of
eminent domain and compensation to support the
act. While property may be regulated to a certain
extent, if regulation goes too far it will be
recognized as a taking. cHSIAC
economic loss caused by public action must be

compensated by the government and thus borne by
the public as a whole, or whether the loss should
remain concentrated on those few persons subject
to the public action. 81
The impact or effect of a regulation, such as the
one under consideration, must, thus, be determined
on a case-to-case basis. Whether that line between
permissible regulation under police power and
"taking" under eminent domain has been crossed
must, under the specific circumstances of this case,
be subject to proof and the one assailing the
constitutionality of the regulation carries the heavy
burden of proving that the measure is
unreasonable, oppressive or confiscatory. The
time-honored rule is that the burden of proving the
unconstitutionality of a law rests upon the one
assailing it and "the burden becomes heavier when
police power is at issue." 82
The 20% senior citizen discount has not
been shown to be unreasonable,
oppressive or confiscatory.
In Alalayan v. National Power Corporation, 83
petitioners, who were franchise holders of electric
plants, challenged the validity of a law limiting their
allowable net profits to no more than 12% per
annum of their investments plus two-month
operating expenses. In rejecting their plea, we ruled
that, in an earlier case, it was found that 12% is a
reasonable rate of return and that petitioners failed
to prove that the aforesaid rate is confiscatory in
view of the presumption of constitutionality. 84
aESHDA
We adopted a similar line of reasoning in Carlos
Superdrug Corporation 85 when we ruled that
petitioners therein failed to prove that the 20%
discount is arbitrary, oppressive or confiscatory. We
noted that no evidence, such as a financial report,
to establish the impact of the 20% discount on the
overall profitability of petitioners was presented in
order to show that they would be operating at a loss
due to the subject regulation or that the continued
implementation of the law would be unconscionably
detrimental to the business operations of
petitioners. In the case at bar, petitioners
proceeded with a hypothetical computation of the
alleged loss that they will suffer similar to what the
petitioners in Carlos Superdrug Corporation 86 did.
Petitioners went directly to this Court without first
establishing the factual bases of their claims.
Hence, the present recourse must, likewise, fail.
Because all laws enjoy the presumption of
constitutionality, courts will uphold a law's validity if
any set of facts may be conceived to sustain it. 87
On its face, we find that there are at least two
conceivable bases to sustain the subject
regulation's validity absent clear and convincing
proof that it is unreasonable, oppressive or
confiscatory. Congress may have legitimately
concluded that business establishments have the
capacity to absorb a decrease in profits or
income/gross sales due to the 20% discount
without substantially affecting the reasonable rate
of return on their investments considering (1) not all
No formula or rule can be devised to answer the

questions of what is too far and when regulation
becomes a taking. In Mahon,Justice Holmes
recognized that it was "a question of degree and
therefore cannot be disposed of by general
propositions." On many other occasions as well,
the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of
considering the facts in each case. The Court asks
whether justice and fairness require that the
266
customers of a business establishment are senior

citizens and (2) the level of its profit margins on
goods and services offered to the general public.
Concurrently, Congress may have, likewise,
legitimately concluded that the establishments,
which will be required to extend the 20% discount,
have the capacity to revise their pricing strategy so
that whatever reduction in profits or income/gross
sales that they may sustain because of sales to
senior citizens, can be recouped through higher
mark-ups or from other products not subject of
discounts. As a result, the discounts resulting from
sales to senior citizens will not be confiscatory or
unduly oppressive. aESICD
In sum, we sustain our ruling in Carlos Superdrug
Corporation 88 that the 20% senior citizen discount
and tax deduction scheme are valid exercises of
police power of the State absent a clear showing
that it is arbitrary, oppressive or confiscatory.
Conclusion
In closing, we note that petitioners hypothesize,
consistent with our previous ratiocinations, that the
discount will force establishments to raise their
prices in order to compensate for its impact on
overall profits or income/gross sales. The general
public, or those not belonging to the senior citizen
class, are, thus, made to effectively shoulder the
subsidy for senior citizens. This, in petitioners' view,
is unfair.
As already mentioned, Congress may be
reasonably assumed to have foreseen this
eventuality. But, more importantly, this goes into the
wisdom, efficacy and expediency of the subject law
which is not proper for judicial review. In a way, this
law pursues its social equity objective in a nontraditional manner unlike past and existing direct
subsidy programs of the government for the poor
and marginalized sectors of our society. Verily,
Congress must be given sufficient leeway in
formulating welfare legislations given the enormous
challenges that the government faces relative to,
among
others,
resource
adequacy
and
administrative capability in implementing social
reform measures which aim to protect and uphold
the interests of those most vulnerable in our
society. In the process, the individual, who enjoys
the rights, benefits and privileges of living in a
democratic polity, must bear his share in supporting
measures intended for the common good. This is
only fair.
In fine, without the requisite showing of a clear and
unequivocal breach of the Constitution, the validity
of the assailed law must be sustained. cSDHEC
Refutation of the Dissent
The main points of Justice Carpio's Dissent may be
summarized as follows: (1) the discussion on
89 is not obiter dicta; (2) allowable taking, in police
power, is limited to property that is destroyed or
placed outside the commerce of man for public
welfare; (3) the amount of mandatory discount is
private property within the ambit of Article III,
Section 9 90 of the Constitution; and (4) the
permanent reduction in a private establishment's
total revenue, arising from the mandatory discount,
is a taking of private property for public use or

benefit, hence, an exercise of the power of eminent
domain
requiring
the
payment
of
just
compensation.
I
We maintain that the discussion on eminent domain
in Central Luzon Drug Corporation 91 is obiter
dicta.
As previously discussed, in Central Luzon Drug
Corporation, 92 the BIR, pursuant to Sections 2.i
and 4 of RR No. 2-94, treated the senior citizen
discount in the previous law, RA 7432, as a tax
deduction instead of a tax credit despite the clear
provision in that law which stated
a) The grant of twenty percent (20%) discount from
establishment, restaurants and recreation centers
and purchase of medicines anywhere in the
country: Provided, That private establishments may
claim the cost as tax credit;(Emphasis supplied)
Thus, the Court ruled that the subject revenue
regulation violated the law, viz.:
The 20 percent discount required by the law to be
given to senior citizens is a tax credit, not merely a
tax deduction from the gross income or gross sale
of the establishment concerned. A tax credit is used
by a private establishment only after the tax has
been computed; a tax deduction, before the tax is
computed. RA 7432 unconditionally grants a tax
credit to all covered entities. Thus, the provisions of
the revenue regulation that withdraw or modify such
grant are void. Basic is the rule that administrative
regulations cannot amend or revoke the law. 93
As can be readily seen, the discussion on eminent
domain was not necessary in order to arrive at this
conclusion. All that was needed was to point out
that the revenue regulation contravened the law
which it sought to implement. And, precisely, this
was done in Central Luzon Drug Corporation 94 by
comparing the wording of the previous law vis-
-vis the revenue regulation; employing the rules of
statutory construction; and applying the settled
principle that a regulation cannot amend the law it
seeks to implement. IcTEaC
A close reading of Central Luzon Drug Corporation
95 would show that the Court went on to state that
the tax credit "can be deemed" as just
compensation only to explain why the previous law
provides for a tax credit instead of a tax deduction.
The Court surmised that the tax credit was a form
of just compensation given to the establishments
covered by the 20% discount. However, the reason
why the previous law provided for a tax credit and
not a tax deduction was not necessary to resolve
the issue as to whether the revenue regulation
contravenes the law. Hence, the discussion on
eminent domain is obiter dicta.
A court, in resolving cases before it, may look into
the possible purposes or reasons that impelled the
267
enactment of a particular statute or legal provision.

However, statements made relative thereto are not
always necessary in resolving the actual
controversies presented before it. This was the
case in Central Luzon Drug Corporation 96
resulting in that unfortunate statement that the tax
credit "can be deemed" as just compensation. This,
in turn, led to the erroneous conclusion, by
deductive reasoning, that the 20% discount is an
exercise of the power of eminent domain. The
Dissent essentially adopts this theory and
reasoning which, as will be shown below, is
contrary to settled principles in police power and
eminent domain analysis.
II
The Dissent discusses at length the doctrine on
"taking" in police power which occurs when private
property is destroyed or placed outside the
commerce of man. Indeed, there is a whole class of
police power measures which justify the destruction
of private property in order to preserve public
health, morals, safety or welfare. As earlier
mentioned, these would include a building on the
verge of collapse or confiscated obscene materials
as well as those mentioned by the Dissent with
regard to property used in violating a criminal
statute or one which constitutes a nuisance. In such
cases, no compensation is required.
However, it is equally true that there is another
class of police power measures which do not
involve the destruction of private property but
merely regulate its use. The minimum wage law,
zoning ordinances, price control laws, laws
regulating the operation of motels and hotels, laws
limiting the working hours to eight, and the like
would fall under this category. The examples cited
by the Dissent, likewise, fall under this category:
Article 157 of the Labor Code, Sections 19 and 18
of the Social Security Law, and Section 7 of the
Pag-IBIG Fund Law. These laws merely regulate or,
to use the term of the Dissent, burden the conduct
of the affairs of business establishments. In such
cases, payment of just compensation is not
required because they fall within the sphere of
permissible police power measures. The senior
citizen discount law falls under this latter category.
cIECTH
III
The Dissent proceeds from the theory that the
permanent reduction of profits or income/gross
sales, due to the 20% discount, is a "taking" of
private property for public purpose without payment
of just compensation.
At the outset, it must be emphasized that
petitioners never presented any evidence to
establish that they were forced to suffer enormous
losses or operate at a loss due to the effects of the
assailed law. They came directly to this Court and
provided a hypothetical computation of the loss
they would allegedly suffer due to the operation of
the assailed law. The central premise of the
Dissent's argument that the 20% discount results in
a permanent reduction in profits or income/gross
sales, or forces a business establishment to
operate at a loss is, thus, wholly unsupported by
competent evidence. To be sure, the Court can

invalidate a law which, on its face, is arbitrary,
oppressive or confiscatory. 97 But this is not the
case here.
In the case at bar, evidence is indispensable before
a determination of a constitutional violation can be
made because of the following reasons.
First, the assailed law, by imposing the senior
citizen discount, does not take any of the properties
used by a business establishment like, say, the
land on which a manufacturing plant is constructed
or the equipment being used to produce goods or
services.
Second, rather than taking specific properties of a
business establishment, the senior citizen discount
law merely regulates the prices of the goods or
services being sold to senior citizens by mandating
a 20% discount. Thus, if a product is sold at P10.00
to the general public, then it shall be sold at P8.00
(i.e.,P10.00 less 20%) to senior citizens. Note that
the law does not impose at what specific price the
product shall be sold, only that a 20% discount
shall be given to senior citizens based on the price
set by the business establishment. A business
establishment is, thus, free to adjust the prices of
the goods or services it provides to the general
public. Accordingly, it can increase the price of the
above product to P20.00 but is required to sell it at
P16.00 (i.e.,P20.00 less 20%) to senior citizens.
DaIAcC
Third, because the law impacts the prices of the
goods or services of a particular establishment
relative to its sales to senior citizens, its profits or
income/gross sales are affected. The extent of the
impact would, however, depend on the profit margin
of the business establishment on a particular good
or service. If a product costs P5.00 to produce and
is sold at P10.00, then the profit 98 is P5.00 99 or a
profit margin 100 of 50%. 101 Under the assailed
law, the aforesaid product would have to be sold at
P8.00 to senior citizens yet the business would still
earn P3.00 102 or a 30% 103 profit margin. On the
other hand, if the product costs P9.00 to produce
and is required to be sold at P8.00 to senior
citizens, then the business would experience a loss
of P1.00. 104 But note that since not all customers
of a business establishment are senior citizens, the
business establishment may continue to earn P1.00
from non-senior citizens which, in turn, can offset
any loss arising from sales to senior citizens.
Fourth, when the law imposes the 20% discount in
favor of senior citizens, it does not prevent the
business establishment from revising its pricing
strategy. By revising its pricing strategy, a business
establishment can recoup any reduction of profits
or income/gross sales which would otherwise arise
from the giving of the 20% discount. To illustrate,
suppose A has two customers: X, a senior citizen,
and Y, a non-senior citizen. Prior to the law, A sells
his products at P10.00 a piece to X and Y resulting
in income/gross sales of P20.00 (P10.00 +
P10.00).With the passage of the law, A must now
sell his product to X at P8.00 (i.e.,P10.00 less 20%)
so that his income/gross sales would be P18.00
(P8.00 + P10.00) or lower by P2.00. To prevent this
268
from happening, A decides to increase the price of

his products to P11.11 per piece. Thus, he sells his
product to X at P8.89 (i.e., P11.11 less 20%) and to
Y at P11.11. As a result, his income/gross sales
would still be P20.00 105 (P8.89 + P11.11). The
capacity, then, of business establishments to revise
their pricing strategy makes it possible for them not
to suffer any reduction in profits or income/gross
sales, or, in the alternative, mitigate the reduction of
their profits or income/gross sales even after the
passage of the law. In other words, business
establishments have the capacity to adjust their
prices so that they may remain profitable even
under the operation of the assailed law. acADIT
The Dissent, however, states that
The explanation by the majority that private
establishments can always increase their prices to
recover the mandatory discount will only encourage
private establishments to adjust their prices
upwards to the prejudice of customers who do not
enjoy the 20% discount. It was likewise suggested
that if a company increases its prices, despite the
application of the 20% discount, the establishment
becomes more profitable than it was before the
implementation of R.A. 7432. Such an economic
justification is self-defeating, for more consumers
will suffer from the price increase than will benefit
from the 20% discount. Even then, such ability to
increase prices cannot legally validate a violation of
the eminent domain clause. 106
the Dissent would have this Court nullify the law

without any proof of such nature. DCIEac
Further, this Court is not the proper forum to debate
the economic theories or realities that impelled
Congress to shift from the tax credit to the tax
deduction scheme. It is not within our power or
competence to judge which scheme is more or less
burdensome to business establishments or the
consuming public and, thereafter, to choose which
scheme the State should use or pursue. The shift
from the tax credit to tax deduction scheme is a
policy determination by Congress and the Court will
respect it for as long as there is no showing, as
here, that the subject regulation has transgressed
constitutional limitations.
Unavoidably, the lack of evidence constrains the
Dissent to rely on speculative and hypothetical
argumentation when it states that the 20% discount
is a significant amount and not a minimal loss
(which erroneously assumes that the discount
automatically results in a loss when it is possible
that the profit margin is greater than 20% and/or the
pricing strategy can be revised to prevent or
mitigate any reduction in profits or income/gross
sales as illustrated above), 108 and not all private
establishments make a 20% profit margin (which
conversely implies that there are those who make
more and, thus, would not be greatly affected by
this regulation). 109
In fine, because of the possible scenarios
discussed above, we cannot assume that the 20%
discount results in a permanent reduction in profits
or income/gross sales, much less that business
establishments are forced to operate at a loss
under the assailed law. And, even if we gratuitously
assume that the 20% discount results in some
degree of reduction in profits or income/gross
sales, we cannot assume that such reduction is
arbitrary, oppressive or confiscatory. To repeat,
there is no actual proof to back up this claim, and it
could be that the loss suffered by a business
establishment was occasioned through its fault or
negligence in not adapting to the effects of the
assailed law. The law uniformly applies to all
business establishments covered thereunder.
There is, therefore, no unjust discrimination as the
aforesaid business establishments are faced with
the same constraints.
The necessity of proof is all the more pertinent in
this case because, as similarly observed by Justice
Velasco in his Concurring Opinion,the law has been
in operation for over nine years now. However, the
grim picture painted by petitioners on the
unconscionable losses to be indiscriminately
suffered by business establishments, which should
have led to the closure of numerous business
establishments, has not come to pass. ScaEIT
Verily, we cannot invalidate the assailed law based
on assumptions and conjectures. Without adequate
proof, the presumption of constitutionality must
prevail.
IV
At this juncture, we note that the Dissent modified
its original arguments by including a new
paragraph, to wit:
But, if it is possible that the business establishment,

by adjusting its prices, will suffer no reduction in its
profits or income/gross sales (or suffer some
reduction but continue to operate profitably) despite
giving the discount, what would be the basis to
strike down the law? If it is possible that the
business establishment, by adjusting its prices, will
not be unduly burdened, how can there be a finding
that the assailed law is an unconstitutional exercise
of police power or eminent domain?
That there may be a burden placed on business
establishments or the consuming public as a result
of the operation of the assailed law is not, by itself,
a ground to declare it unconstitutional for this goes
into the wisdom and expediency of the law. The
cost of most, if not all, regulatory measures of the
government on business establishments is
ultimately passed on to the consumers but that, by
itself, does not justify the wholesale nullification of
these measures. It is a basic postulate of our
democratic system of government that the
Constitution is a social contract whereby the people
have surrendered their sovereign powers to the
State for the common good. 107 All persons may
be burdened by regulatory measures intended for
the common good or to serve some important
governmental interest, such as protecting or
improving the welfare of a special class of people
for which the Constitution affords preferential
concern. Indubitably, the one assailing the law has
the heavy burden of proving that the regulation is
unreasonable, oppressive or confiscatory, or has
gone "too far" as to amount to a "taking." Yet, here,
269
Section 9, Article III of the 1987 Constitution speaks

of private property without any distinction. It does
not state that there should be profit before the
taking of property is subject to just compensation.
The private property referred to for purposes of
taking could be inherited, donated, purchased,
mortgaged, or as in this case, part of the gross
sales of private establishments. They are all private
property and any taking should be attended by
corresponding payment of just compensation. The
20% discount granted to senior citizens belong to
private
establishments,
whether
these
establishments make a profit or suffer a loss. In
fact, the 20% discount applies to non-profit
establishments like country, social, or golf clubs
which are open to the public and not only for
exclusive membership. The issue of profit or loss to
the establishments is immaterial. 110
income/gross sales are not private property,

specifically cash or money, already belonging to the
business establishment. They are a mere
expectancy because they are potential fruits of the
successful conduct of the business.
Prior to the sale of goods or services, a business
establishment may be subject to State regulations,
such as the 20% senior citizen discount, which may
impact the level or amount of profits or
income/gross sales that can be generated by such
establishment. For this reason, the validity of the
discount is to be determined based on its overall
effects on the operations of the business
establishment. DcCEHI
Again, as previously discussed, the 20% discount
does not automatically result in a 20% reduction in
profits, or, to align it with the term used by the
Dissent, the 20% discount does not mean that a
20% reduction in gross sales necessarily results.
Because (1) the profit margin of a product is not
necessarily less than 20%,(2) not all customers of a
business establishment are senior citizens, and (3)
the establishment may revise its pricing strategy,
such reduction in profits or income/gross sales may
be prevented or, in the alternative, mitigated so that
the business establishment continues to operate
profitably. Thus, even if we gratuitously assume
that some degree of reduction in profits or
income/gross sales occurs because of the 20%
discount, it does not follow that the regulation is
unreasonable, oppressive or confiscatory because
the business establishment may make the
necessary adjustments to continue to operate
profitably. No evidence was presented by
petitioners to show otherwise. In fact, no evidence
was presented by petitioners at all.
Justice Leonen, in his Concurring and Dissenting
Opinion, characterizes "profits" (or income/gross
sales) as an inchoate right. Another way to view it,
as stated by Justice Velasco in his Concurring
Opinion, is that the business establishment merely
has a right to profits. The Constitution adverts to it
as the right of an enterprise to a reasonable return
on investment. 115 Undeniably, this right, like any
other right, may be regulated under the police
power of the State to achieve important
governmental objectives like protecting the
interests and improving the welfare of senior
citizens.
It should be noted though that potential profits or
income/gross sales are relevant in police power
and eminent domain analyses because they may,
in appropriate cases, serve as an indicia when a
regulation has gone "too far" as to amount to a
"taking" under the power of eminent domain. When
the deprivation or reduction of profits or
income/gross sales is shown to be unreasonable,
oppressive or confiscatory, then the challenged
governmental regulation may be nullified for being
a "taking" under the power of eminent domain. In
such a case, it is not profits or income/gross sales
which are actually taken and appropriated for public
use. Rather, when the regulation causes an
establishment to incur losses in an unreasonable,
oppressive or confiscatory manner, what is actually
Two things may be said of this argument. HDcaAI

First, it contradicts the rest of the arguments of the
Dissent. After it states that the issue of profit or loss
is immaterial, the Dissent proceeds to argue that
the 20% discount is not a minimal loss 111 and that
the 20% discount forces business establishments
to operate at a loss. 112 Even the obiter in Central
Luzon Drug Corporation, 113 which the Dissent
essentially adopts and relies on, is premised on the
permanent reduction of total revenues and the loss
that business establishments will be forced to suffer
in arguing that the 20% discount constitutes a
"taking" under the power of eminent domain. Thus,
when the Dissent now argues that the issue of
profit or loss is immaterial, it contradicts itself
because it later argues, in order to justify that there
is a "taking" under the power of eminent domain in
this case, that the 20% discount forces business
establishments to suffer a significant loss or to
operate at a loss.
Second, this argument suffers from the same flaw
as the Dissent's original arguments. It is an
erroneous characterization of the 20% discount.
According to the Dissent, the 20% discount is part
of the gross sales and, hence, private property
belonging to business establishments. However, as
previously discussed, the 20% discount is not
private property actually owned and/or used by the
business establishment. It should be distinguished
from properties like lands or buildings actually used
in the operation of a business establishment which,
if appropriated for public use, would amount to a
"taking" under the power of eminent domain.
Instead, the 20% discount is a regulatory measure
which impacts the pricing and, hence, the
profitability of business establishments. At the time
the discount is imposed, no particular property of
the business establishment can be said to be
"taken." That is, the State does not acquire or take
anything from the business establishment in the
way that it takes a piece of private land to build a
public road. While the 20% discount may form part
of the potential profits or income/gross sales 114 of
the
business
establishment,
as
similarly
characterized by Justice Bersamin in his
Concurring
Opinion,
potential
profits
or
270
taken is capital and the right of the business

establishment to a reasonable return on
investment. If the business losses are not halted
because of the continued operation of the
regulation, this eventually leads to the destruction
of the business and the total loss of the capital
invested therein. But, again, petitioners in this case
failed to prove that the subject regulation is
unreasonable, oppressive or confiscatory. ECHSDc
V.
The Dissent further argues that we erroneously
used price and rate of return on investment control
laws to justify the senior citizen discount law.
According to the Dissent, only profits from
industries imbued with public interest may be
regulated because this is a condition of their
franchises. Profits of establishments without
franchises cannot be regulated permanently
because there is no law regulating their profits. The
Dissent concludes that the permanent reduction of
total revenues or gross sales of business
establishments without franchises is a taking of
private property under the power of eminent
domain.
In making this argument, it is unfortunate that the
Dissent quotes only a portion of the ponencia
measures. These laws generally regulate public
but only to the class of senior citizens. ...116

price regulatory measures which affects the
(Emphasis supplied)
The point of this paragraph is to simply show that
the State has, in the past, regulated prices and
profits of business establishments. In other words,
this type of regulatory measures is traditionally
recognized as police power measures so that the
senior citizen discount may be considered as a
police power measure as well. What is more, the
substantial distinctions between price and rate of
return on investment control laws vis- -vis the
senior citizen discount law provide greater reason
to uphold the validity of the senior citizen discount
law. As previously discussed, the ability to adjust
prices allows the establishment subject to the
senior citizen discount to prevent or mitigate any
reduction of profits or income/gross sales arising
from the giving of the discount. In contrast,
establishments subject to price and rate of return
on investment control laws cannot adjust prices
accordingly.
Certainly, there is no intention to say that price and
rate of return on investment control laws are the
justification for the senior citizen discount law. Not
at all. The justification for the senior citizen discount
law is the plenary powers of Congress. The
legislative
power
to
regulate
business
establishments is broad and covers a wide array of
areas and subjects. It is well within Congress'
legislative powers to regulate the profits or
income/gross sales of industries and enterprises,
even those without franchises.For what are
franchises but mere legislative enactments?
SaDICE
There is nothing in the Constitution that prohibits
Congress from regulating the profits or
income/gross sales of industries and enterprises
without franchises. On the contrary, the social
justice provisions of the Constitution enjoin the
State to regulate the "acquisition, ownership, use,
and disposition" of property and its increments. 117
This may cover the regulation of profits or
income/gross sales of all businesses, without
qualification, to attain the objective of diffusing
wealth in order to protect and enhance the right of
all the people to human dignity. 118 Thus, under the
social justice policy of the Constitution, business
establishments may be compelled to contribute to
uplifting the plight of vulnerable or marginalized
groups in our society provided that the regulation is
not arbitrary, oppressive or confiscatory, or is not in
breach of some specific constitutional limitation.
When the Dissent, therefore, states that the "profits
of private establishments which are nonfranchisees cannot be regulated permanently, and
there is no such law regulating their profits
permanently," 119 it is assuming what it ought to
prove. First, there are laws which, in effect,
permanently regulate profits or income/gross sales
of establishments without franchises, and RA 9257
is one such law. And, second, Congress can
The above paragraph, in full, states

temper. corporate greed by controlling the rate of
271
regulate such profits or income/gross sales

because, as previously noted, there is nothing in
the Constitution to prevent it from doing so. Here,
again, it must be emphasized that petitioners failed
to present any proof to show that the effects of the
assailed law on their operations has been
unreasonable, oppressive or confiscatory. SCHATc
The
permanent
regulation
of
profits
or
income/gross sales of business establishments,
even those without franchises, is not as uncommon
as the Dissent depicts it to be.
For instance, the minimum wage law allows the
State to set the minimum wage of employees in a
given region or geographical area. Because of the
added labor costs arising from the minimum wage,
a permanent reduction of profits or income/gross
sales would result, assuming that the employer
does not increase the prices of his goods or
services. To illustrate, suppose it costs a company
P5.00 to produce a product and it sells the same at
P10.00 with a 50% profit margin. Later, the State
increases the minimum wage. As a result, the
company incurs greater labor costs so that it now
costs P7.00 to produce the same product. The
profit per product of the company would be reduced
to P3.00 with a profit margin of 30%.The net effect
would be the same as in the earlier example of
granting a 20% senior citizen discount. As can be
seen, the minimum wage law could, likewise, lead
to a permanent reduction of profits. Does this mean
that the minimum wage law should, likewise, be
declared unconstitutional on the mere plea that it
results in a permanent reduction of profits? Taking it
a step further, suppose the company decides to
increase the price of its product in order to offset
the effects of the increase in labor cost; does this
mean that the minimum wage law, following the
reasoning of the Dissent, is unconstitutional
because the consuming public is effectively made
to subsidize the wage of a group of laborers,
i.e.,minimum wage earners?
The same reasoning can be adopted relative to the
examples cited by the Dissent which, according to
it, are valid police power regulations. Article 157 of
the Labor Code, Sections 19 and 18 of the Social
Security Law, and Section 7 of the Pag-IBIG Fund
Law would effectively increase the labor cost of a
business establishment. This would, in turn, be
integrated as part of the cost of its goods or
services. Again, if the establishment does not
increase its prices, the net effect would be a
permanent reduction in its profits or income/gross
sales. Following the reasoning of the Dissent that
"any form of permanent taking of private property
(including profits or income/gross sales) 120 is an
exercise of eminent domain that requires the State
to pay just compensation," 121 then these statutory
provisions would, likewise, have to be declared
unconstitutional. It does not matter that these
benefits are deemed part of the employees'
legislated wages because the net effect is the
same, that is, it leads to higher labor costs and a
permanent reduction in the profits or income/gross
sales of the business establishments. 122 HcTEaA
The point then is this most, if not all, regulatory

measures imposed by the State on business
establishments impact, at some level, the latter's
prices and/or profits or income/gross sales. 123 If
the Court were to sustain the Dissent's theory, then
a wholesale nullification of such measures would
inevitably result. The police power of the State and
the social justice provisions of the Constitution
would, thus, be rendered nugatory.
There is nothing sacrosanct about profits or
income/gross sales. This, we made clear in Carlos
Superdrug Corporation: 124
xxx xxx xxx
public utilities, continuously serve as a reminder
that the right to property can be relinquished upon
the command of the State for the promotion of
public good. ASIDTa
related. Without sufficient proof that Section 4(a) of
implementation
of
the
same
would
be
will refrain from quashing a legislative act. 125
In conclusion, we maintain that the correct rule in
determining whether the subject regulatory
measure has amounted to a "taking" under the
power of eminent domain is the one laid down in
Alalayan v. National Power Corporation 126 and
followed in Carlos Superdrug Corporation 127
consistent with long standing principles in police
power and eminent domain analysis. Thus, the
deprivation or reduction of profits or income/gross
272
sales must be clearly shown to be unreasonable,

oppressive or confiscatory. Under the specific
circumstances of this case, such determination can
only be made upon the presentation of competent
proof which petitioners failed to do. A law, which
has been in operation for many years and promotes
the welfare of a group accorded special concern by
the Constitution, cannot and should not be
summarily invalidated on a mere allegation that it
reduces the profits or income/gross sales of
business establishments. cDSaEH
WHEREFORE,the Petition is hereby DISMISSED
for lack of merit.
SO ORDERED.
Sereno, C.J.,Abad, Villarama, Jr.,Perez, Mendoza,
Reyes and Perlas-Bernabe, JJ., concur.
Carpio, J.,see dissenting opinion.
For a fuller and clearer presentation and

appreciation of this Resolution, we hark back to the
roots of this case.
Factual Antecedents
Apo Fruits Corporation (AFC) and Hijo Plantation,
Inc. (HPI), together also referred to as petitioners,
were registered owners of vast tracks of land; AFC
owned 640.3483 hectares, while HPI owned
805.5308 hectares. On October 12, 1995, they
voluntarily offered to sell these landholdings to the
government via Voluntary Offer to Sell applications
filed with the Department of Agrarian Reform
(DAR).
On October 16, 1996, AFC and HPI received
separate notices of land acquisition and valuation
of their properties from the DAR's Provincial
Agrarian Reform Officer (PARO). At the assessed
valuation of P165,484.47 per hectare, AFC's land
was valued at P86,900,925.88, while HPI's property
was valued at P164,478,178.14. HPI and AFC
rejected these valuations for being very low.
In its follow through action, the DAR requested the
Land Bank of the Philippines (LBP) to deposit
P26,409,549.86 in AFC's bank account and
P45,481,706.76 in HPI's bank account, which
amounts the petitioners then withdrew. The titles
over AFC and HPI's properties were thereafter
cancelled, and new ones were issued on December
9, 1996 in the name of the Republic of the
Philippines. THDIaC
On February 14, 1997, AFC and HPI filed separate
petitions for determination of just compensation
with the DAR Adjudication Board (DARAB). When
the DARAB failed to act on these petitions for more
than three years, AFC and HPI filed separate
complaints for determination and payment of just
compensation with the Regional Trial Court (RTC)
of Tagum City, acting as a Special Agrarian Court.
These complaints were subsequently consolidated.
On September 25, 2001, the RTC resolved the
consolidated cases, fixing the just compensation for
the petitioners' 1,338.6027 hectares of land 1 at
P1,383,179,000.00, with interest on this amount at
the prevailing market interest rates, computed from
the taking of the properties on December 9, 1996
until fully paid, minus the amounts the petitioners
already received under the initial valuation. The
RTC also awarded attorney's fees.
LBP moved for the reconsideration of the decision.
The RTC, in its order of December 5, 2001,
modified its ruling and fixed the interest at the rate
of 12% per annum from the time the complaint was
filed until finality of the decision. The Third Division
of this Court, in its Decision of February 6, 2007,
affirmed this RTC decision.
On motion for reconsideration, the Third Division
issued its Resolution of December 19, 2007,
modifying its February 6, 2007 Decision by deleting
the 12% interest due on the balance of the awarded
just compensation. The Third Division justified the
deletion by the finding that the LBP did not delay
the payment of just compensation as it had
deposited the pertinent amounts due to AFC and
HPI within fourteen months after they filed their
complaints for just compensation with the RTC. The
Velasco, Jr., J.,pls. see concurring opinion.

Leonardo-de Castro, J.,C.J., Sereno certifies that J.
De Castro left her vote concurring w/ ponencia of J.
Del Castillo.
Peralta, J., C.J.,Sereno certifies that J. Peralta left
his vote concurring w/ ponencia of J. Del Castillo.
Bersamin, J.,with concurring opinion.
Leonen, J.,see separate concurring opinion.
||| (Manila Memorial Park, Inc. v. Secretary of Social
Welfare and Development, G.R. No. 175356,
[December 3, 2013])
E. DUE PROCESS AND EMINENT DOMAIN
Article III, Section 9, 1987 Constitution
1. APO FRUITS VS. LBP 632 SCRA 727
EN BANC
[G.R. No. 164195. October 12, 2010.]
APO FRUITS CORPORATION and HIJO
PLANTATION, INC., petitioners, vs. LAND BANK
OF THE PHILIPPINES, respondent.
RESOLUTION
BRION, J p:
We
resolve
the
petitioners'
motion
for
reconsideration addressing our Resolution of
December 4, 2009 whose dispositive portion
directs:
WHEREFORE, the Court denies the petitioners'
second motion for reconsideration (with respect to
the denial of the award of legal interest and
attorney's fees), and reiterates the decision dated
February 6, 2007 and the resolution dated
December 19, 2007 of the Third Division.
273
Court also considered that AFC had already

collected approximately P149.6 million, while HPI
had already collected approximately P262 million
from the LBP. The Third Division also deleted the
award of attorney's fees.
All parties moved for the reconsideration of the
modified ruling. The Court uniformly denied all the
motions in its April 30, 2008 Resolution. Entry of
Judgment followed on May 16, 2008.
Notwithstanding the Entry of Judgment, AFC and
HPI filed the following motions on May 28, 2008: (1)
Motion for Leave to File and Admit Second Motion
for Reconsideration; (2) Second Motion for
Reconsideration, with respect to the denial of the
award of legal interest and attorney's fees; and (3)
Motion to Refer the Second Motion for
Reconsideration to the Honorable Court En Banc.
ICcaST
The Third Division found the motion to admit the
Second Motion for Reconsideration and the motion
to refer this second motion to the Court En Banc
meritorious, and accordingly referred the case to
the Court En Banc. On September 8, 2009, the
Court En Banc accepted the referral.
The Court En Banc Resolution
On December 4, 2009, the Court En Banc, by a
majority vote, denied the petitioners' second motion
for reconsideration based on two considerations.
First, the grant of the second motion for
reconsideration runs counter to the immutability of
final decisions. Moreover, the Court saw no reason
to recognize the case as an exception to the
immutability principle as the petitioners' private
claim for the payment of interest does not qualify as
either a substantial or transcendental matter or an
issue of paramount public interest.
Second, on the merits, the petitioners are not
entitled to recover interest on the just compensation
and attorney's fees because they caused the delay
in the payment of the just compensation due them;
they erroneously filed their complaints with the
DARAB when they should have directly filed these
with the RTC acting as an agrarian court.
Furthermore, the Court found it significant that the
LBP deposited the pertinent amounts in the
petitioners' favor within fourteen months after the
petitions were filed with the RTC. Under these
circumstances, the Court found no unreasonable
delay on the part of LBP to warrant the award of
12% interest.
The Chico-Nazario Dissent
Justice Minita V. Chico-Nazario, 2 the ponente of
the original December 19, 2007 Resolution
(deleting the 12% interest), dissented from the
Court En Banc's December 4, 2009 Resolution.
On the issue of immutability of judgment, Justice
Chico-Nazario pointed out that under extraordinary
circumstances, this Court has recalled entries of
judgment on the ground of substantial justice.
Given the special circumstances involved in the
present case, the Court En Banc should have taken
a second hard look at the petitioners' positions in
their second motion for reconsideration, and acted
to correct the clearly erroneous December 19, 2007
Resolution.
Specifically, Justice Chico-Nazario emphasized the

obligation of the State, in the exercise of its
inherent power of eminent domain, to pay just
compensation to the owner of the expropriated
property. To be just, the compensation must not
only be the correct amount to be paid; it must also
be paid within a reasonable time from the time the
land is taken from the owner. If not, the State must
pay the landowner interest, by way of damages,
from the time the property was taken until just
compensation is fully paid. This interest, deemed a
part of just compensation due, has been
established by prevailing jurisprudence to be 12%
per annum.
On these premises, Justice Nazario pointed out
that the government deprived the petitioners of their
property on December 9, 1996, and paid the
balance of the just compensation due them only on
May 9, 2008. The delay of almost twelve years
earned the petitioners interest in the total amount of
P1,331,124,223.05. IDSaAH
Despite this finding, Justice Chico-Nazario did not
see it fit to declare the computed interest to be
totally due; she found it unconscionable to apply
the full force of the law on the LBP because of the
magnitude of the amount due. She thus reduced
the awarded interest to P400,000,000.00, or
approximately 30% of the computed interest.
The Present Motion for Reconsideration
In their motion to reconsider the Court En Banc's
December 4, 2009 Resolution (the present Motion
for Reconsideration), the petitioners principally
argue that: (a) the principle of immutability of
judgment does not apply since the Entry of
Judgment was issued even before the lapse of
fifteen days from the parties' receipt of the April 30,
2008 Resolution and the petitioners timely filed
their second motion for reconsideration within
fifteen days from their receipt of this resolution; (b)
the April 30, 2008 Resolution cannot be considered
immutable considering the special and compelling
circumstances attendant to the present case which
fall within the exceptions to the principle of
immutability of judgments; (c) the legal interest due
is at 12% per annum, reckoned from the time of the
taking of the subject properties and this rate is not
subject to reduction. The power of the courts to
equitably reduce interest rates applies solely to
liquidated damages under a contract and not to
interest set by the Honorable Court itself as due
and owing in just compensation cases; and (d) the
Honorable Court's fears that the interest payments
due to the petitioners will produce more harm than
good to the system of agrarian reform are
misplaced and are based merely on conjectures.
The Comment of the Land Bank of the Philippines
The LBP commented on the petitioners' motion for
reconsideration on April 28, 2010. It maintained
that: (a) the doctrine of immutability of the decisions
of the Supreme Court clearly applies to the present
case; (b) the LBP is not guilty of undue delay in the
payment of just compensation as the petitioners
were promptly paid once the Court had determined
the final value of the properties expropriated; (c) the
Supreme Court rulings invoked by the petitioners
274
are inapplicable to the present case; (d) since the

obligation to pay just compensation is not a
forbearance of money, interest should commence
only after the amount due becomes ascertainable
or liquidated, and the 12% interest per annum
applies only to the liquidated amount, from the date
of finality of judgment; (e) the imposition of 12%
interest on the balance of P971,409,831.68 is
unwarranted because there was no unjustified
refusal by LBP to pay just compensation, and no
contractual breach is involved; (f) the deletion of the
attorney's fees equivalent to 10% of the amount
finally awarded as just compensation is proper; (g)
this case does not involve a violation of substantial
justice to justify the alteration of the immutable
resolution dated December 19, 2007 that deleted
the award of interest and attorney's fees.
The Court's Ruling
We find the petitioners' arguments meritorious and
accordingly GRANT the present motion for
reconsideration.
Just compensation a Basic
Limitation on the State's
Power of Eminent Domain
At the heart of the present controversy is the Third
Division's December 19, 2007 Resolution which
held that the petitioners are not entitled to 12%
interest on the balance of the just compensation
belatedly paid by the LBP. In the presently assailed
December 4, 2009 Resolution, we affirmed the
December 19, 2007 Resolution's findings that: (a)
the LBP deposited "pertinent amounts" in favor of
the petitioners within fourteen months after they
filed their complaint for determination of just
compensation; and (b) the LBP had already paid
the petitioners P411,769,168.32. We concluded
then that these circumstances refuted the
petitioners' assertion of unreasonable delay on the
part of the LBP.
A re-evaluation of the circumstances of this case
and the parties' arguments, viewed in light of the
just compensation requirement in the exercise of
the State's inherent power of eminent domain,
compels us to re-examine our findings and
conclusions.
Eminent domain is the power of the State to take
private property for public use. 3 It is an inherent
power of State as it is a power necessary for the
State's existence; it is a power the State cannot do
without. 4 As an inherent power, it does not need at
all to be embodied in the Constitution; if it is
mentioned at all, it is solely for purposes of limiting
what is otherwise an unlimited power. The limitation
is found in the Bill of Rights 5 that part of the
Constitution whose provisions all aim at the
protection of individuals against the excessive
exercise of governmental powers.
Section 9, Article III of the 1987 Constitution (which
reads "No private property shall be taken for public
use without just compensation.") provides two
essential limitations to the power of eminent
domain, namely, that (1) the purpose of taking must
be for public use and (2) just compensation must
be given to the owner of the private property.
cCSDaI
It is not accidental that Section 9 specifies that

compensation should be "just" as the safeguard is
there to ensure a balance property is not to be
taken for public use at the expense of private
interests; the public, through the State, must
balance the injury that the taking of property causes
through compensation for what is taken, value for
value.
Nor is it accidental that the Bill of Rights is
interpreted liberally in favor of the individual and
strictly against the government. The protection of
the individual is the reason for the Bill of Rights'
being; to keep the exercise of the powers of
government within reasonable bounds is what it
seeks. 6
The concept of "just compensation" is not new to
Philippine constitutional law, 7 but is not original to
the Philippines; it is a transplant from the American
Constitution. 8 It found fertile application in this
country particularly in the area of agrarian reform
where the taking of private property for distribution
to landless farmers has been equated to the "public
use" that the Constitution requires. In Land Bank of
the Philippines v. Orilla, 9 a valuation case under
our agrarian reform law, this Court had occasion to
state:
Constitutionally, "just compensation" is the sum
equivalent to the market value of the property,
broadly described as the price fixed by the seller in
open market in the usual and ordinary course of
legal action and competition, or the fair value of the
property as between the one who receives and the
one who desires to sell, it being fixed at the time of
the actual taking by the government. Just
compensation is defined as the full and fair
the expropriator. It has been repeatedly stressed by
this Court that the true measure is not the taker's
gain but the owner's loss. The word "just" is used to
modify the meaning of the word "compensation" to
convey the idea that the equivalent to be given for
the property to be taken shall be real, substantial,
full and ample. 10 [Emphasis supplied.]
In the present case, while the DAR initially valued
the petitioners' landholdings at a total of
P251,379,104.02, 11 the RTC, acting as a special
agrarian court, determined the actual value of the
petitioners' landholdings to be P1,383,179,000.00.
This valuation, a finding of fact, has subsequently
been affirmed by this Court, and is now beyond
question. In eminent domain terms, this amount is
the "real, substantial, full and ample" compensation
the government must pay to be "just" to the
landowners.
Significantly, this final judicial valuation is far
removed from the initial valuation made by the
DAR; their values differ by P1,131,799,897.00 in
itself a very substantial sum that is roughly four
times the original DAR valuation. We mention these
valuations as they indicate to us how undervalued
the petitioners' lands had been at the start,
particularly at the time the petitioners' landholdings
were "taken". This reason apparently compelled the
275
petitioners to relentlessly pursue their valuation

claims all they way up to the level of this Court.
While the LBP deposited the total amount of
P71,891,256.62 into the petitioners' accounts
(P26,409,549.86 for AFC and P45,481,706.76 for
HPI) at the time the landholdings were taken, these
amounts were mere partial payments that only
amounted to 5% of the P1,383,179,000.00 actual
value of the expropriated properties. We point this
aspect out to show that the initial payments made
by the LBP when the petitioners' landholdings were
taken, although promptly withdrawn by the
petitioners, could not by any means be considered
a fair exchange of values at the time of taking; in
fact, the LBP's actual deposit could not be said to
be substantial even from the original LBP valuation
of P251,379,103.90. IaEASH
Thus, the deposits might have been sufficient for
purposes of the immediate taking of the
landholdings but cannot be claimed as amounts
that would excuse the LBP from the payment of
interest on the unpaid balance of the compensation
due. As discussed at length below, they were not
enough to compensate the petitioners for the
potential income the landholdings could have
earned for them if no immediate taking had taken
place. Under the circumstances, the State acted
oppressively and was far from "just" in their position
to deny the petitioners of the potential income that
the immediate taking of their properties entailed.
Just Compensation from the
Prism of the Element of Taking.
Apart from the requirement that compensation for
expropriated land must be fair and reasonable,
compensation, to be "just," must also be made
without delay. 12 Without prompt payment,
compensation cannot be considered "just" if the
property is immediately taken as the property
owner suffers the immediate deprivation of both his
land and its fruits or income.
This is the principle at the core of the present case
where the petitioners were made to wait for more
than a decade after the taking of their property
before they actually received the full amount of the
principal of the just compensation due them. 13
What they have not received to date is the income
of their landholdings corresponding to what they
would have received had no uncompensated taking
of these lands been immediately made. This
income, in terms of the interest on the unpaid
principal, is the subject of the current litigation.
We recognized in Republic v. Court of Appeals 14
the need for prompt payment and the necessity of
the payment of interest to compensate for any
delay in the payment of compensation for property
already taken. We ruled in this case that:
The constitutional limitation of "just compensation"
is considered to be the sum equivalent to the
market value of the property, broadly described to
be the price fixed by the seller in open market in the
usual and ordinary course of legal action and
competition or the fair value of the property as
between one who receives, and one who desires to
sell, i[f] fixed at the time of the actual taking by the
government. Thus, if property is taken for public
use before compensation is deposited with the

court having jurisdiction over the case, the final
compensation must include interest[s] on its just
value to be computed from the time the property is
taken to the time when compensation is actually
paid or deposited with the court. In fine, between
the taking of the property and the actual payment,
legal interest[s] accrue in order to place the owner
in a position as good as (but not better than) the
position he was in before the taking occurred. 15
Aside from this ruling, Republic notably overturned
the Court's previous ruling in National Power
Corporation v. Angas 16 which held that just
compensation due for expropriated properties is not
a loan or forbearance of money but indemnity for
damages for the delay in payment; since the
interest involved is in the nature of damages rather
than earnings from loans, then Art. 2209 of the Civil
Code, which fixes legal interest at 6%, shall apply.
In Republic, the Court recognized that the just
compensation due to the landowners for their
expropriated property amounted to an effective
forbearance on the part of the State. Applying the
Eastern Shipping Lines ruling, 17 the Court fixed
the applicable interest rate at 12% per annum,
computed from the time the property was taken
until the full amount of just compensation was paid,
in order to eliminate the issue of the constant
fluctuation and inflation of the value of the currency
over time. In the Court's own words:
The Bulacan trial court, in its 1979 decision, was
correct in imposing interest[s] on the zonal value of
the property to be computed from the time
petitioner instituted condemnation proceedings and
"took" the property in September 1969. This
allowance of interest on the amount found to be the
value of the property as of the time of the taking
computed, being an effective forbearance, at 12%
per annum should help eliminate the issue of the
constant fluctuation and inflation of the value of the
currency over time. 18 [Emphasis supplied.]
CAIHTE
We subsequently upheld Republic's 12% per
annum interest rate on the unpaid expropriation
compensation in the following cases: Reyes v.
National Housing Authority, 19 Land Bank of the
Philippines v. Wycoco, 20 Republic v. Court of
Appeals, 21 Land Bank of the Philippines v.
Imperial, 22 Philippine Ports Authority v. RosalesBondoc, 23 and Curata v. Philippine Ports Authority.
24
These were the established rulings that stood
before this Court issued the currently assailed
Resolution of December 4, 2009. These would be
the rulings this Court shall reverse and de-establish
if we maintain and affirm our ruling deleting the
12% interest on the unpaid balance of
compensation due for properties already taken.
Under the circumstances of the present case, we
see no compelling reason to depart from the rule
that Republic firmly established. Let it be
remembered that shorn of its eminent domain and
276
social justice aspects, what the agrarian land

reform program involves is the purchase by the
government, through the LBP, of agricultural lands
for sale and distribution to farmers. As a purchase,
it involves an exchange of values the
landholdings in exchange for the LBP's payment. In
determining the just compensation for this
exchange, however, the measure to be borne in
mind is not the taker's gain but the owner's loss 25
since what is involved is the takeover of private
property under the State's coercive power. As
mentioned above, in the value-for-value exchange
in an eminent domain situation, the State must
ensure that the individual whose property is taken
is not shortchanged and must hence carry the
burden of showing that the "just compensation"
requirement of the Bill of Rights is satisfied.
The owner's loss, of course, is not only his property
but also its income-generating potential. Thus,
when property is taken, full compensation of its
value must immediately be paid to achieve a fair
exchange for the property and the potential income
lost. The just compensation is made available to
the property owner so that he may derive income
from this compensation, in the same manner that
he would have derived income from his
expropriated property. If full compensation is not
paid for property taken, then the State must make
up for the shortfall in the earning potential
immediately lost due to the taking, and the absence
of replacement property from which income can be
derived; interest on the unpaid compensation
becomes due as compliance with the constitutional
mandate on eminent domain and as a basic
measure of fairness.
In the context of this case, when the LBP took the
petitioners' landholdings without the corresponding
full payment, it became liable to the petitioners for
the income the landholdings would have earned
had they not immediately been taken from the
petitioners. What is interesting in this interplay,
under the developments of this case, is that the
LBP, by taking landholdings without full payment
while holding on at the same time to the interest
that it should have paid, effectively used or retained
funds that should go to the landowners and thereby
took advantage of these funds for its own account.
From this point of view, the December 19, 2007
Resolution deleting the award of 12% interest is not
only patently and legally wrong, but is also morally
unconscionable for being grossly unfair and unjust.
If the interest on the just compensation due in
reality the equivalent of the fruits or income of the
landholdings would have yielded had these lands
not been taken would be denied, the result is
effectively a confiscatory action by this Court in
favor of the LBP. We would be allowing the LBP, for
twelve long years, to have free use of the interest
that should have gone to the landowners.
Otherwise stated, if we continue to deny the
petitioners' present motion for reconsideration, we
would illogically and without much thought to the
fairness that the situation demands uphold the
interests of the LBP, not only at the expense of the
landowners but also that of substantial justice as

well.
Lest this Court be a party to this monumental
unfairness in a social program aimed at fostering
balance in our society, we now have to ring the bell
that we have muted in the past, and formally
declare that the LBP's position is legally and
morally wrong. To do less than this is to leave the
demands of the constitutional just compensation
standard (in terms of law) and of our own
conscience (in terms of morality) wanting and
unsatisfied.
The Delay in Payment Issue
Separately from the demandability of interest
because of the failure to fully pay for property
already taken, a recurring issue in the case is the
attribution of the delay. ITSCED
That delay in payment occurred is not and cannot
at all be disputed. While the LBP claimed that it
made initial payments of P411,769,168.32 (out of
the principal sum due of P1,383,179,000.00), the
undisputed fact is that the petitioners were deprived
of their lands on December 9, 1996 (when titles to
their landholdings were cancelled and transferred
to the Republic of the Philippines), and received full
payment of the principal amount due them only on
May 9, 2008.
In the interim, they received no income from their
landholdings because these landholdings had been
taken. Nor did they receive adequate income from
what should replace the income potential of their
landholdings because the LBP refused to pay
interest while withholding the full amount of the
principal of the just compensation due by claiming a
grossly low valuation. This sad state continued for
more than a decade. In any language and by any
measure, a lengthy delay in payment occurred.
An important starting point in considering attribution
for the delay is that the petitioners voluntarily
offered to sell their landholdings to the
government's
land
reform
program;
they
themselves submitted their Voluntary Offer to Sell
applications to the DAR, and they fully cooperated
with the government's program. The present case
therefore is not one where substantial conflict arose
on the issue of whether expropriation is proper; the
petitioners voluntarily submitted to expropriation
and surrendered their landholdings, although they
contested the valuation that the government made.
Presumably, had the landholdings been properly
valued, the petitioners would have accepted the
payment of just compensation and there would
have been no need for them to go to the extent of
filing a valuation case. But, as borne by the
records, the petitioners' lands were grossly
undervalued by the DAR, leaving the petitioners
with no choice but to file actions to secure what is
justly due them.
The DAR's initial gross undervaluation started the
cycle of court actions that followed, where the LBP
eventually claimed that it could not be faulted for
seeking judicial recourse to defend the
government's and its own interests in light of the
petitioners' valuation claims. This LBP claim, of
course, conveniently forgets that at the root of all
277
these valuation claims and counterclaims was the

initial gross undervaluation by DAR that the LBP
stoutly defended. At the end, this undervaluation
was proven incorrect by no less than this Court; the
petitioners were proven correct in their claim, and
the correct valuation more than five-fold the
initial DAR valuation was decreed and became
final.
All these developments cannot now be disregarded
and reduced to insignificance. In blunter terms, the
government and the LBP cannot now be heard to
claim that they were simply protecting their
interests when they stubbornly defended their
undervalued positions before the courts. The more
apt and accurate statement is that they adopted a
grossly unreasonable position and the adverse
developments that followed, particularly the
concomitant delay, should be directly chargeable to
them.
To be sure, the petitioners were not completely
correct in the legal steps they took in their valuation
claims. They initially filed their valuation claim
before the DARAB instead of immediately seeking
judicial intervention. The DARAB, however,
contributed its share to the petitioners' error when it
failed or refused to act on the valuation petitions for
more than three (3) years. Thus, on top of the DAR
undervaluation was the DARAB inaction after the
petitioners' landholdings had been taken. This
Court's Decision of February 6, 2007 duly noted
this and observed: EIDaAH
It is not controverted that this case started way
back on 12 October 1995, when AFC and HPI
voluntarily offered to sell the properties to the DAR.
In view of the failure of the parties to agree on the
valuation of the properties, the Complaint for
Determination of Just Compensation was filed
before the DARAB on 14 February 1997. Despite
the lapse of more than three years from the filing of
the complaint, the DARAB failed to render a
decision on the valuation of the land. Meantime, the
titles over the properties of AFC and HPI had
already been cancelled and in their place a new
certificate of title was issued in the name of the
Republic of the Philippines, even as far back as 9
December 1996. A period of almost 10 years has
lapsed. For this reason, there is no dispute that this
case has truly languished for a long period of time,
the delay being mainly attributable to both official
inaction and indecision, particularly on the
determination of the amount of just compensation,
to the detriment of AFC and HPI, which to date,
have yet to be fully compensated for the properties
which are already in the hands of farmerbeneficiaries, who, due to the lapse of time, may
have already converted or sold the land awarded to
them.
cases before the RTC. We underscore the

pronouncement of the RTC that "the delay by
DARAB in the determination of just compensation
could only mean the reluctance of the Department
of Agrarian Reform and the Land Bank of the
Philippines to pay the claim of just compensation by
corporate landowners."
To allow the taking of landowners' properties, and
to leave them empty-handed while government
withholds compensation is undoubtedly oppressive.
These statements cannot but be true today as they
were when we originally decided the case and
awarded 12% interest on the balance of the just
compensation due. While the petitioners were
undisputedly mistaken in initially seeking recourse
through the DAR, this agency itself hence, the
government committed a graver transgression
when it failed to act at all on the petitioners'
complaints for determination of just compensation.
In sum, in a balancing of the attendant delayrelated circumstances of this case, delay should be
laid at the doorsteps of the government, not at the
petitioners'. We conclude, too, that the government
should not be allowed to exculpate itself from this
delay and should suffer all the consequences the
delay caused.
The LBP's arguments on the
applicability of cases imposing
12% interest
The LBP claims in its Comment that our rulings in
Republic v. Court of Appeals, 26 Reyes v. National
Housing Authority, 27 and Land Bank of the
Philippines v. Imperial, 28 cannot be applied to the
present case.
According to the LBP, Republic is inapplicable
because, first, the landowners in Republic
remained unpaid, notwithstanding the fact that the
award for just compensation had already been fixed
by final judgment; in the present case, the Court
already acknowledged that "pertinent amounts"
were deposited in favor of the landowners within 14
months from the filing of their complaint. Second,
while Republic involved an ordinary expropriation
case, the present case involves expropriation for
agrarian reform. Finally, the just compensation in
Republic remained unpaid notwithstanding the
finality of judgment, while the just compensation in
the present case was immediately paid in full after
LBP received a copy of the Court's resolution.
We find no merit in these assertions. SHECcD
As we discussed above, the "pertinent amounts"
allegedly deposited by LBP were mere partial
payments that amounted to a measly 5% of the
actual value of the properties expropriated. They
could be the basis for the immediate taking of the
expropriated property but by no stretch of the
imagination can these nominal amounts be
considered "pertinent" enough to satisfy the full
requirement of just compensation i.e., the full
and fair equivalent of the expropriated property,
taking into account its income potential and the
Verily, these two cases could have been disposed

with dispatch were it not for LBP's counsel causing
unnecessary delay. At the inception of this case,
DARAB, an agency of the DAR which was
commissioned by law to determine just
compensation, sat on the cases for three years,
which was the reason that AFC and HPI filed the
278
foregone income lost because of the immediate

taking.
We likewise find no basis to support the LBP's
theory that Republic and the present case have to
be treated differently because the first involves a
"regular" expropriation case, while the present case
involves expropriation pursuant to the country's
agrarian reform program. In both cases, the power
of eminent domain was used and private property
was taken for public use. Why one should be
different from the other, so that the just
compensation ruling in one should not apply to the
other, truly escapes us. If there is to be a
difference, the treatment of agrarian reform
expropriations should be stricter and on a higher
plane because of the government's societal
concerns and objectives. To be sure, the
government cannot attempt to remedy the ills of
one sector of society by sacrificing the interests of
others within the same society.
Finally, we note that the finality of the decision (that
fixed the value of just compensation) in Republic
was not a material consideration for the Court in
awarding the landowners 12% interest. The Court,
in Republic, simply affirmed the RTC ruling
imposing legal interest on the amount of just
compensation due. In the process, the Court
determined that the legal interest should be 12%
after recognizing that the just compensation due
was effectively a forbearance on the part of the
government. Had the finality of the judgment been
the critical factor, then the 12% interest should have
been imposed from the time the RTC decision
fixing just compensation became final. Instead, the
12% interest was imposed from the time that the
Republic commenced condemnation proceedings
and "took" the property.
The LBP additionally asserts that the petitioners
erroneously relied on the ruling in Reyes v. National
Housing Authority. The LBP claims that we cannot
apply Reyes because it involved just compensation
that remained unpaid despite the finality of the
expropriation decision. LBP's point of distinction is
that just compensation was immediately paid in the
present case upon the Court's determination of the
actual value of the expropriated properties. LBP
claims, too, that in Reyes, the Court established
that the refusal of the NHA to pay just
compensation was unfounded and unjustified,
whereas the LBP in the present case clearly
demonstrated its willingness to pay just
compensation. Lastly, in Reyes, the records
showed that there was an outstanding balance that
ought to be paid, while the element of an
outstanding balance is absent in the present case.
Contrary to the LBP's opinion, the imposition of the
12% interest in Reyes did not depend on either the
finality of the decision of the expropriation court, or
on the finding that the NHA's refusal to pay just
compensation was unfounded and unjustified.
Quite clearly, the Court imposed 12% interest
based on the ruling in Republic v. Court of Appeals
that ". . . if property is taken for public use before
compensation is deposited with the court having
jurisdiction over the case,the final compensation
must include interest[s] on its just value to be

computed from the time the property is taken to the
time when compensation is actually paid or
deposited with the court. In fine, between the taking
of the property and the actual payment, legal
interest[s] accrue in order to place the owner in a
position as good as (but not better than) the
position he was in before the taking occurred." 29
This is the same legal principle applicable to the
present case, as discussed above.
While the LBP immediately paid the remaining
balance on the just compensation due to the
petitioners after this Court had fixed the value of the
expropriated properties, it overlooks one essential
fact from the time that the State took the
petitioners' properties until the time that the
petitioners were fully paid, almost 12 long years
passed. This is the rationale for imposing the 12%
interest in order to compensate the petitioners
for the income they would have made had they
been properly compensated for their properties at
the time of the taking. DaScAI
Finally, the LBP insists that the petitioners quoted
our ruling in Land Bank of the Philippines v.
Imperial out of context. According to the LBP, the
Court imposed legal interest of 12% per annum
only after December 31, 2006, the date when the
decision on just compensation became final.
The LBP is again mistaken. The Imperial case
involved land that was expropriated pursuant to
Presidential Decree No. 27, 30 and fell under the
coverage of DAR Administrative Order (AO) No. 13.
31 This AO provided for the payment of a 6%
annual interest if there is any delay in payment of
just compensation. However, Imperial was decided
in 2007 and AO No. 13 was only effective up to
December 2006. Thus, the Court, relying on our
ruling in the Republic case, applied the prevailing
12% interest ruling to the period when the just
compensation remained unpaid after December
2006. It is for this reason that December 31, 2006
was important, not because it was the date of
finality of the decision on just compensation.
The 12% Interest Rate and
the Chico-Nazario Dissent
To fully reflect the concerns raised in this Court's
deliberations on the present case, we feel it
appropriate to discuss the Justice Minita ChicoNazario's dissent from the Court's December 4,
2009 Resolution.
While Justice Chico-Nazario admitted that the
petitioners were entitled to the 12% interest, she
saw it appropriate to equitably reduce the interest
charges
from
P1,331,124,223.05
to
P400,000,000.00. In support of this proposal, she
enumerated various cases where the Court,
pursuant to Article 1229 of the Civil Code, 32
equitably reduced interest charges.
We differ with our esteemed colleague's views on
the application of equity.
While we have equitably reduced the amount of
interest awarded in numerous cases in the past,
those cases involved interest that was essentially
consensual in nature, i.e., interest stipulated in
signed agreements between the contracting
279
parties. In contrast, the interest involved in the

present case "runs as a matter of law and follows
as a matter of course from the right of the
landowner to be placed in as good a position as
money can accomplish, as of the date of taking." 33
Furthermore, the allegedly considerable payments
made by the LBP to the petitioners cannot be a
proper premise in denying the landowners the
interest due them under the law and established
jurisprudence. If the just compensation for the
landholdings is considerable, this compensation is
not undue because the landholdings the owners
gave up in exchange are also similarly considerable
AFC gave up an aggregate landholding of
640.3483 hectares, while HPI's gave up 805.5308
hectares. When the petitioners surrendered these
sizeable landholdings to the government, the
incomes they gave up were likewise sizeable and
cannot in any way be considered miniscule. The
incomes due from these properties, expressed as
interest, are what the government should return to
the petitioners after the government took over their
lands without full payment of just compensation. In
other words, the value of the landholdings
themselves should be equivalent to the principal
sum of the just compensation due; interest is due
and should be paid to compensate for the unpaid
balance of this principal sum after taking has been
completed. This is the compensation arrangement
that should prevail if such compensation is to
satisfy the constitutional standard of being "just."
TEAcCD
Neither can LBP's payment of the full
compensation due before the finality of the
judgment of this Court justify the reduction of the
interest due them. To rule otherwise would be to
forget that the petitioners had to wait twelve years
from the time they gave up their lands before the
government fully paid the principal of the just
compensation due them. These were twelve years
when they had no income from their landholdings
because these landholdings have immediately
been taken; no income, or inadequate income,
accrued to them from the proceeds of
compensation payment due them because full
payment has been withheld by government.
If the full payment of the principal sum of the just
compensation is legally significant at all under the
circumstances of this case, the significance is only
in putting a stop to the running of the interest due
because the principal of the just compensation due
has been paid. To close our eyes to these realities
is to condone what is effectively a confiscatory
action in favor of the LBP.
That the legal interest due is now almost equivalent
to the principal to be paid is not per se an
inequitable or unconscionable situation, considering
the length of time the interest has remained unpaid
almost twelve long years. From the perspective
of interest income, twelve years would have been
sufficient for the petitioners to double the principal,
even if invested conservatively, had they been
promptly paid the principal of the just compensation
due them. Moreover, the interest, however
enormous it may be, cannot be inequitable and
unconscionable because it resulted directly from

the application of law and jurisprudence
standards that have taken into account fairness and
equity in setting the interest rates due for the use or
forebearance of money.
If the LBP sees the total interest due to be
immense, it only has itself to blame, as this interest
piled up because it unreasonably acted in its
valuation of the landholdings and consequently
failed to promptly pay the petitioners. To be sure,
the consequences of this failure i.e., the
enormity of the total interest due and the alleged
financial hemorrhage the LBP may suffer should
not be the very reason that would excuse it from full
compliance. To so rule is to use extremely flawed
logic. To so rule is to disregard the question of how
the LBP, a government financial institution that now
professes difficulty in paying interest at 12% per
annum, managed the funds that it failed to pay the
petitioners for twelve long years.
It would be utterly fallacious, too, to argue that this
Court should tread lightly in imposing liabilities on
the LBP because this bank represents the
government and, ultimately, the public interest.
Suffice it to say that public interest refers to what
will benefit the public, not necessarily the
government and its agencies whose task is to
contribute to the benefit of the public. Greater
public benefit will result if government agencies like
the LBP are conscientious in undertaking its tasks
in order to avoid the situation facing it in this case.
Greater public interest would be served if it can
contribute to the credibility of the government's land
reform program through the conscientious handling
of its part of this program.
As our last point, equity and equitable principles
only come into full play when a gap exists in the law
and jurisprudence. 34 As we have shown above,
established rulings of this Court are in place for full
application to the present case. There is thus no
occasion for the equitable consideration that
Justice Chico-Nazario suggested.
The Amount Due the Petitioners
as Just Compensation
As borne by the records, the 12% interest claimed
is only on the difference between the price of the
expropriated lands (determined with finality to be
P1,383,179,000.00)
and
the
amount
of
P411,769,168.32 already paid to the petitioners.
The difference between these figures amounts to
the remaining balance of P971,409,831.68 that was
only paid on May 9, 2008. DITEAc
As above discussed, this amount should bear
interest at the rate of 12% per annum from the time
the petitioners' properties were taken on December
9, 1996 up to the time of payment. At this rate, the
LBP now owes the petitioners the total amount of
One Billion Three Hundred Thirty-One Million One
Hundred Twenty-Four Thousand Two Hundred
Twenty-Three
and
05/100
Pesos
(P1,331,124,223.05), computed as follows:
Just Compensation
P971,409,831.68
Legal Interest from 12/09/1996
280
dilatory, and (f) the other party will not be unjustly

prejudiced thereby.
To 05/09/2008 @ 12%/annum
12/09/1996 to 12/31/1996
7,345,455.17
23 days
01/01/1997 to 12/31/2007
1,282,260,977.82
11 years
01/01/2008 to 05/09/2008
41,517,790.07
130 days
Invariably, rules of procedure should be viewed as

mere tools designed to facilitate the attainment 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. Even the Rules of Court
reflects this principle. The power to suspend or
even disregard rules can be so pervasive and
compelling as to alter even that which this Court
itself had already declared to be final. 48 [Emphasis
supplied.]
That the issues posed by this case are of
transcendental importance is not hard to discern
from these discussions. A constitutional limitation,
guaranteed under no less than the all-important Bill
of Rights, is at stake in this case: how can
compensation in an eminent domain be "just" when
the payment for the compensation for property
already taken has been unreasonably delayed? To
claim, as the assailed Resolution does, that only
private interest is involved in this case is to forget
that an expropriation involves the government as a
necessary actor. It forgets, too, that under eminent
domain, the constitutional limits or standards apply
to government who carries the burden of showing
that these standards have been met. Thus, to
simply dismiss this case as a private interest matter
is an extremely shortsighted view that this Court
should not leave uncorrected. CaTSEA
As duly noted in the above discussions, this issue
is not one of first impression in our jurisdiction; the
consequences of delay in the payment of just
compensation have been settled by this Court in
past rulings. Our settled jurisprudence on the issue
alone accords this case primary importance as a
contrary ruling would unsettle, on the flimsiest of
grounds, all the rulings we have established in the
past.
More than the stability of our jurisprudence, the
matter before us is of transcendental importance to
the nation because of the subject matter involved
agrarian reform, a societal objective that the
government has unceasingly sought to achieve in
the past half century. This reform program and its
objectives would suffer a major setback if the
government falters or is seen to be faltering,
wittingly or unwittingly, through lack of good faith in
implementing the needed reforms. Truly, agrarian
reform is so important to the national agenda that
the Solicitor General, no less, pointedly linked
agricultural lands, its ownership and abuse, to the
idea of revolution. 49 This linkage, to our mind,
remains valid even if the landowner, not the
landless farmer, is at the receiving end of the
distortion of the agrarian reform program.
As we have ruled often enough, rules of procedure
should not be applied in a very rigid, technical
sense; rules of procedure are used only to help
secure, not override, substantial justice. 50 As we
explained in Ginete v. Court of Appeals: 51
P1,331,124,223.05 35
=============
The Immutability of Judgment Issue
As a rule, a final judgment may no longer be
altered, amended or modified, even if the alteration,
amendment or modification is meant to correct
what is perceived to be an erroneous conclusion of
fact or law and regardless of what court, be it the
highest Court of the land, rendered it. 36 In the
past, however, we have recognized exceptions to
this rule by reversing judgments and recalling their
entries in the interest of substantial justice and
where special and compelling reasons called for
such actions.
Notably, in San Miguel Corporation v. National
Labor Relations Commission, 37 Galman v.
Sandiganbayan,
38
Philippine
Consumers
Foundation v. National Telecommunications
Commission, 39 and Republic v. de los Angeles, 40
we reversed our judgment on the second motion for
reconsideration, while in Vir-Jen Shipping and
Marine Services v. National Labor Relations
Commission, 41 we did so on a third motion for
reconsideration. In Cathay Pacific v. Romillo 42 and
Cosio v. de Rama, 43 we modified or amended our
ruling on the second motion for reconsideration.
More recently, in the cases of Muoz v. Court of
Appeals, 44 Tan Tiac Chiong v. Hon. Cosico, 45
Manotok IV v. Barque, 46 and Barnes v. Padilla, 47
we recalled entries of judgment after finding that
doing so was in the interest of substantial justice. In
Barnes, we said:
. . . Phrased elsewise, a final and executory
judgment can no longer be attacked by any of the
parties or be modified, directly or indirectly, even by
the highest court of the land.
However, this Court has relaxed this rule in order to
serve substantial justice considering (a) matters of
life, liberty, honor or property, (b) the existence of
special or compelling circumstances, (c) the merits
of the case, (d) a cause not entirely attributable to
the fault or negligence of the party favored by the
suspension of the rules, (e) a lack of any showing
that the review sought is merely frivolous and
281
Let it be emphasized that the rules of procedure

should be viewed as mere tools designed to
facilitate the attainment 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.
Even the Rules of Court reflect this principle. The
power to suspend or even disregard rules can be
so pervasive and compelling as to alter even that
which this Court itself has already declared to be
final, as we are now constrained to do in the instant
case.
WHEREFORE, premises considered, we GRANT

the petitioners' motion for reconsideration. The
Court En Banc's Resolution dated December 4,
2009, as well as the Third Division's Resolutions
dated April 30, 2008 and December 19, 2007, are
hereby REVERSED and SET ASIDE.
The respondent Land Bank of the Philippines is
hereby ORDERED to pay petitioners Apo Fruits
Corporation and Hijo Plantation, Inc. interest at the
rate of 12% per annum on the unpaid balance of
the just compensation, computed from the date the
Government took the properties on December 9,
1996, until the respondent Land Bank of the
Philippines paid on May 9, 2008 the balance on the
principal amount.
Unless the parties agree to a shorter payment
period, payment shall be in monthly installments at
the rate of P60,000,000.00 per month until the
whole amount owing, including interest on the
outstanding balance, is fully paid.
Costs against the respondent Land Bank of the
Philippines.
SO ORDERED.
xxx xxx xxx

The emerging trend in the rulings of this Court is to
afford every party litigant the amplest opportunity
for the proper and just determination of his cause,
free from the constraints of technicalities. Time and
again, this Court has consistently held that rules
must not be applied rigidly so as not to override
substantial justice. 52 [Emphasis supplied.]
Similarly, in de Guzman v. Sandiganbayan, 53 we
had occasion to state:
The Rules of Court was conceived and
promulgated to set forth guidelines in the
dispensation of justice but not to bind and chain the
hand that dispenses it, for otherwise, courts will be
mere slaves to or robots of technical rules, shorn of
judicial discretion. That is precisely why courts in
rendering justice have always been, as they ought
to be, conscientiously guided by the norm that
when on the balance, technicalities take a backseat
against substantive rights, and not the other way
around. Truly then, technicalities, in the appropriate
language of Justice Makalintal, "should give way to
the realities of the situation". 54 [Emphasis
supplied.]
Carpio Morales, Velasco, Jr., Del Castillo,

Villarama, Jr., Perez, Mendoza and Sereno, JJ.,
concur.
Corona, C.J. and Nachura, J., join the dissent of J.
Bersamin.
Carpio and Abad, JJ., are on wellness leave.
Leonardo-de Castro, J., I maintain my vote in the
December 4, 2009 Resolution.
Peralta, J., is on leave.
Bersamin, J., I dissent.
||| (Apo Fruits Corporation v. Land Bank of the
Phils., G.R. No. 164195 (Resolution), [October 12,
2010], 647 PHIL 251-298)
2. ABAD VS. FILHOMES REALTY 636 SCRA
247 (2010)
THIRD DIVISION
We made the same recognition in Barnes, 55 on

the underlying premise that a court's primordial and
most important duty is to render justice; in
discharging the duty to render substantial justice, it
is permitted to re-examine even a final and
executory judgment. aSTHDc
Based on all these considerations, particularly the
patently illegal and erroneous conclusion that the
petitioners are not entitled to 12% interest, we find
that we are duty-bound to re-examine and overturn
the assailed Resolution. We shall completely and
inexcusably be remiss in our duty as defenders of
justice if, given the chance to make the rectification,
we shall let the opportunity pass.
Attorney's Fees
We are fully aware that the RTC has awarded the
petitioners attorney's fees when it fixed the just
compensation due and decreed that interest of 12%
should be paid on the balance outstanding after the
taking of the petitioners' landholdings took place.
The petitioners, however, have not raised the
award of attorney's fees as an issue in the present
motion for reconsideration. For this reason, we
shall not touch on this issue at all in this Resolution.
[G.R. No. 189239. November 24, 2010.]

SPOUSES LETICIA & JOSE ERVIN ABAD, SPS.
ROSARIO AND ERWIN COLLANTES, SPS.
RICARDO AND FELITA ANN, SPS. ELSIE AND
ROGER LAS PIAS, LINDA LAYDA, RESTITUTO
MARIANO, SPS. ARNOLD AND MIRIAM
MERCINES, SPS. LUCITA AND WENCESLAO A.
RAPACON,
SPS.
ROMEO AND
EMILYN
HULLEZA, LUZ MIPANTAO, SPS. HELEN AND
ANTHONY TEVES, MARLENE TUAZON, SPS.
ZALDO AND MIA SALES, SPS. JOSEFINA AND
JOEL YBERA, SPS. LINDA AND JESSIE
CABATUAN,
SPS.
WILMA
AND
MARIO
ANDRADA, SPS. RAYMUNDO AND ARSENIA
LELIS, FREDY AND SUSANA PILONEO,
petitioners, vs. FIL-HOMES REALTY and
DEVELOPMENT
CORPORATION
and
MAGDIWANG
REALTY
CORPORATION,
respondents.
DECISION
282
CARPIO MORALES, J p:
On appeal, the Regional Trial Court (RTC), by

Decision of September 4, 2008, 2 reversed the
MeTC decision and dismissed respondents'
complaint in this wise:
. . . The court a quo ruled that the case filed by
plaintiffs (respondents herein) is unlawful detainer
as shown by the allegations of the Complaint. The
ruling of the court a quo is not accurate. It is not the
allegations of the Complaint that finally determine
whether a case is unlawful detainer, rather it is the
evidence in the case.
Fil-Homes Realty and Development Corporation

and Magdiwang Realty Corporation (respondents),
co-owners of two lots situated in Sucat, Paraaque
City and covered by Transfer Certificates of Title
Nos. 21712 and 21713, filed a complaint for
unlawful detainer on May 7, 2003 against abovenamed
petitioners
before
the
Paraaque
Metropolitan Trial Court (MeTC).
Respondents alleged that petitioners, through
tolerance, had occupied the subject lots since 1980
but ignored their repeated demands to vacate
them.
Petitioners countered that there is no possession
by tolerance for they have been in adverse,
continuous and uninterrupted possession of the lots
for more than 30 years; and that respondent's
predecessor-in-interest, Pilipinas Development
Corporation, had no title to the lots. In any event,
they contend that the question of ownership must
first be settled before the issue of possession may
be resolved.
During the pendency of the case or on June 30,
2004, the City of Paraaque filed expropriation
proceedings covering the lots before the Regional
Trial Court of Paraaque with the intention of
establishing a socialized housing project therein for
distribution to the occupants including petitioners. A
writ of possession was consequently issued and a
Certificate of Turn-over given to the City.
Branch 77 of the MeTC, by Decision of March 3,
2008, rendered judgment in the unlawful detainer
case against petitioners, disposing as follows:
WHEREFORE, judgment is hereby rendered in
favor of the plaintiff and against the defendants
Leticia and Ervin Abad et als. ordering the latter
and all persons claiming rights under them to
VACATE and SURRENDER possession of the
premises (Lots covered by TCT NOS. (71065)
21712 and (71066) 21713 otherwise known as
Purok I Silverio Compound, Barangay San Isidro,
Paraaque City to plaintiff and to PAY the said
plaintiff as follows: aSEDHC
Unlawful detainer requires the significant element

of "tolerance". Tolerance of the occupation of the
property must be present right from the start of the
defendants' possession. The phrase "from the start
of defendants' possession" is significant. When
there is no "tolerance" right from the start of the
possession sought to be recovered, the case of
unlawful detainer will not prosper. 3 (emphasis in
the original; underscoring supplied)
The RTC went on to rule that the issuance of a writ
of possession in favor of the City bars the
continuation of the unlawful detainer proceedings,
and since the judgment had already been rendered
in the expropriation proceedings which effectively
turned over the lots to the City, the MeTC has no
jurisdiction to "disregard the . . . final judgment and
writ of possession" due to non-payment of just
compensation:
The Writ of Possession shows that possession over
the properties subject of this case had already been
given to the City of Paraaque since January 19,
2006 after they were expropriated. It is serious
error for the court a quo to rule in the unlawful
detainer case that Magdiwang Realty Corporation
and
Fil-Homes
Realty
and
Development
Corporation could still be given possession of the
properties which were already expropriated in favor
of the City of Paraaque.
There is also another serious lapse in the ruling of
the court a quo that the case for expropriation in the
Regional Trial Court would not bar, suspend or
abate the ejectment proceedings. The court a quo
had failed to consider the fact that the case for
expropriation was already decided by the Regional
Trial Court, Branch 196 way back in the year 2006
or 2 years before the court a quo rendered its
judgment in the unlawful detainer case in the year
2008. In fact, there was already a Writ of
Possession way back in the year 1996 (sic) issued
in the expropriation case by the Regional Trial
Court, Branch 196. The court a quo has no valid
reason to disregard the said final judgment and the
writ of possession already issued by the Regional
Trial Court in favor of the City of Paraaque and
against Magdiwang Realty Corporation and FilHomes Realty Development Corporation and make
another judgment concerning possession of the
subject properties contrary to the final judgment of
the Regional Trial Court, Branch 196. 4 (emphasis
in the original) DACcIH
1. The reasonable compensation in the amount of

P20,000.00 a month commencing November 20,
2002 and every month thereafter until the
defendants shall have finally vacated the premises
and surrender peaceful possession thereof to the
plaintiff;
2. P20,000.00 as and for attorney's fees, and
finally;
3. Costs of suit.
SO ORDERED. 1 (emphasis in the original)
The MeTC held that as no payment had been made
to respondents for the lots, they still maintain
ownership thereon. It added that petitioners cannot
claim a better right by virtue of the issuance of a
Writ of Possession for the project beneficiaries
have yet to be named.
283
Before the Court of Appeals where respondents

filed a petition for review, they maintained that
respondents' "act of allowing several years to pass
without requiring [them] to vacate nor filing an
ejectment case against them amounts to
acquiescence or tolerance of their possession." 5
By Decision of May 27, 2009, 6 the appellate court,
noting that petitioners did not present evidence to
rebut respondents' allegation of possession by
tolerance, and considering petitioners' admission
that they commenced occupation of the property
without the permission of the previous owner
Pilipinas Development Corporation as indicium
of tolerance by respondents' predecessor-ininterest, ruled in favor of respondents. Held the
appellate court:
Where the defendant's entry upon the land was
with plaintiff's tolerance from the date and fact of
entry, unlawful detainer proceedings may be
instituted within one year from the demand on him
to vacate upon demand. The status of such
defendant is analogous to that of a tenant or
lessee, the term of whose lease, has expired but
whose occupancy is continued by the tolerance of
the lessor. The same rule applies where the
defendant purchased the house of the former
lessee, who was already in arrears in the payment
of rentals, and thereafter occupied the premises
without a new lease contract with the landowner. 7
tenants occupying said lands shall be automatically

suspended, for such time as may be required by
the expropriation proceedings or the necessary
negotiations for the purchase of the lands, in which
latter case, the period of suspension shall not
exceed one year. TICaEc
To avail himself of the benefits of the suspension,
the tenants shall pay to the landowner the current
rents as they become due or deposit the same with
the court where the action for ejectment has been
instituted. (emphasis and underscoring supplied)
Petitioners did not comply with any of the acts
mentioned in the law to avail of the benefits of the
suspension. They nevertheless posit that since the
lots are the subject of expropriation proceedings,
respondents can no longer assert a better right of
possession; and that the City Ordinance authorizing
the initiation of expropriation proceedings
designated them as beneficiaries of the lots, hence,
they are entitled to continue staying there.
Petitioners' position does not lie.
The exercise of expropriation by a local
government unit is covered by Section 19 of the
Local Government Code (LGC):
SEC. 19. Eminent Domain. A local government
unit may, through its chief executive and acting
pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or
welfare for the benefit of the poor and the landless,
upon payment of just compensation, pursuant to
the provisions of the Constitution and pertinent
laws: Provided, however, That the power of
eminent domain may not be exercised unless a
valid and definite offer has been previously made to
the owner, and such offer was not accepted:
Provided, further, That the local government unit
may immediately take possession of the property
upon the filing of the expropriation proceedings and
upon making a deposit with the proper court of at
least fifteen percent (15%) of the fair market value
of the property based on the current tax declaration
of the property to be expropriated: Provided, finally,
That the amount to be paid for the expropriated
property shall be determined by the proper court,
based on the fair market value of the property.
Respecting the issuance of a writ of possession in

the expropriation proceedings, the appellate court,
citing Republic v. Gingoyon, 8 held the same does
not signify the completion of the expropriation
proceedings. Thus it disposed:
Petition is GRANTED. The assailed Decision of the
Court a quo is REVOKED and SET ASIDE. The
Decision of the Metropolitan Trial Court dated
March 3, 2008 is hereby REINSTATED with
MODIFICATION [by] deleting the award for
attorney's fees.
SO ORDERED. (underscoring supplied)
Petitioners' motion for reconsideration was denied
by Resolution dated August 26, 2009, hence, the
filing of the present petition for review.
The petition fails.
In the exercise of the power of eminent domain, the
State expropriates private property for public use
upon payment of just compensation. A socialized
housing project falls within the ambit of public use
as it is in furtherance of the constitutional provisions
on social justice. 9
As a general rule, ejectment proceedings, due to its
summary nature, are not suspended or their
resolution held in abeyance despite the pendency
of a civil action regarding ownership.
Section 1 of Commonwealth Act No. 538 10
enlightens, however:
Section 1. When the Government seeks to acquire,
through purchase or expropriation proceedings,
lands belonging to any estate or chaplaincy
(cappellania), any action for ejectment against the
Lintag v. National Power Corporation 11 clearly

outlines the stages of expropriation, viz.:
Expropriation of lands consists of two stages:
The first is concerned with the determination of the
authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise in
the context of the facts involved in the suit. It ends
with an order, if not of dismissal of the action, "of
condemnation declaring that the plaintiff has a
lawful right to take the property sought to be
condemned, for the public use or purpose
described in the complaint, upon the payment of
just compensation to be determined as of the date
of the filing of the complaint . . . .
284
The second phase of the eminent domain action is

concerned with the determination by the court of
"the just compensation for the property sought to
be taken." This is done by the court with the
assistance of not more than three (3)
commissioners . . . .
against petitioners to eject them from the lots, they

thereby merely maintained the status quo
allowed petitioners' possession by tolerance.
WHEREFORE, the petition for review is DENIED.
Brion, Bersamin, Villarama, Jr. and Sereno, JJ.,
concur.
It is only upon the completion of these two stages

that expropriation is said to have been completed.
The process is not complete until payment of just
compensation. Accordingly, the issuance of the writ
of possession in this case does not write finis to the
expropriation proceedings. To effectuate the
transfer of ownership, it is necessary for the NPC to
pay the property owners the final just
compensation. 12 (emphasis and underscoring
supplied) DcCHTa
||| (Spouses Abad v. Fil-Homes Realty and

Development Corp., G.R. No. 189239, [November
24, 2010], 650 PHIL 608-618)
3. VDA. DE OUANO VS. REPUBLIC 642
SCRA 384 (2011)
FIRST DIVISION
In the present case, the mere issuance of a writ of

possession in the expropriation proceedings did not
transfer ownership of the lots in favor of the City.
Such issuance was only the first stage in
expropriation. There is even no evidence that
judicial deposit had been made in favor of
respondents prior to the City's possession of the
lots, contrary to Section 19 of the LGC.
Respecting petitioners' claim that they have been
named beneficiaries of the lots, the city ordinance
authorizing
the
initiation
of
expropriation
proceedings does not state so. 13 Petitioners
cannot thus claim any right over the lots on the
basis of the ordinance.
Even if the lots are eventually transferred to the
City, it is non sequitur for petitioners to claim that
they are automatically entitled to be beneficiaries
thereof. For certain requirements must be met and
complied with before they can be considered to be
beneficiaries.
In another vein, petitioners posit that respondents
failed to prove that their possession is by mere
tolerance. This too fails. Apropos is the ruling in
Calubayan v. Pascual: 14
In allowing several years to pass without requiring
the occupant to vacate the premises nor filing an
action to eject him, plaintiffs have acquiesced to
defendant's possession and use of the premises. It
has been held that a person who occupies the land
of another at the latter's tolerance or permission,
without any contract between them, is necessarily
bound by an implied promise that he will vacate
upon demand, failing which a summary action for
ejectment is the proper remedy against them. The
status of the defendant is analogous to that of a
lessee or tenant whose term of lease has expired
but whose occupancy continued by tolerance of the
owner. In such a case, the unlawful deprivation or
withholding of possession is to be counted from the
date of the demand to vacate. (emphasis and
underscoring supplied)
[G.R. No. 1687702. February 9, 2011.]

ANUNCIACION VDA. DE OUANO, MARIO P.
OUANO, LETICIA OUANO ARNAIZ, and CIELO
OUANO MARTINEZ, petitioners, vs. THE
REPUBLIC OF THE PHILIPPINES, THE MACTANCEBU INTERNATIONAL AIRPORT AUTHORITY,
and THE REGISTER OF DEEDS FOR THE CITY
OF CEBU, respondents.
[G.R. No. 168812. February 9, 2011.]
MACTAN-CEBU
INTERNATIONAL
AIRPORT
AUTHORITY (MCIAA), petitioner, vs. RICARDO L.
INOCIAN, in his personal capacity and as Attorneyin-Fact of OLYMPIA E. ESTEVES, EMILIA E.
BACALLA, RESTITUTA E. MONTANA, and RAUL
L. INOCIAN; and ALETHA SUICO MAGAT, in her
personal capacity and as Attorney-in-Fact of
PHILIP M. SUICO, DORIS S. DELA CRUZ, JAMES
M. SUICO, EDWARD M. SUICO, ROSELYN
SUICO-LAWSIN, REX M. SUICO, KHARLA
SUICO-GUTIERREZ, ALBERT CHIONGBIAN, and
JOHNNY CHAN, respondents.
DECISION
VELASCO, JR., J p:
At the center of these two (2) Petitions for Review
on Certiorari under Rule 45 is the issue of the right
of the former owners of lots acquired for the
expansion of the Lahug Airport in Cebu City to
repurchase or secure reconveyance of their
respective properties.
In the first petition, docketed as G.R. No. 1687702,
petitioners Anunciacion vda. de Ouano, Mario
Ouano, Leticia Ouano Arnaiz and Cielo Ouano
Martinez (the Ouanos) seek to nullify the Decision 1
dated September 3, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 78027, affirming the Order
dated December 9, 2002 of the Regional Trial Court
(RTC), Branch 57 in Cebu City, in Civil Case No.
CEB-20743, a suit to compel the Republic of the
Philippines and/or the Mactan-Cebu International
Airport Authority (MCIAA) to reconvey to the
Ouanos a parcel of land.
Respondents bought the lots from Pilipinas

Development Corporation in 1983. They stepped
into the shoes of the seller with respect to its
relationship with petitioners. Even if early on
respondents made no demand or filed no action
285
The second petition, docketed as G.R. No. 168812,

has the MCIAA seeking principally to annul and set
aside the Decision 2 and Resolution 3 dated
of the CA in CA-G.R. CV No. 64356, sustaining the
RTC, Branch 13 in Cebu City in its Decision of
October 7, 1988 in Civil Case No. CEB-18370.
Per its October 19, 2005 Resolution, the Court
ordered the consolidation of both cases.
Except for the names of the parties and the specific
lot designation involved, the relevant factual
antecedents which gave rise to these consolidated
petitions are, for the most part, as set forth in the
Court's Decision 4 of October 15, 2003, as
reiterated in a Resolution 5 dated August 9, 2005,
in G.R. No. 156273 entitled Heirs of Timoteo
Moreno and Maria Rotea v. Mactan-Cebu
International Airport Authority (Heirs of Moreno),
and in other earlier related cases. 6
In 1949, the National Airport Corporation (NAC),
MCIAA's predecessor agency, pursued a program
to expand the Lahug Airport in Cebu City. Through
its team of negotiators, NAC met and negotiated
with the owners of the properties situated around
the airport, which included Lot Nos. 744-A, 745-A,
746, 747, 761-A, 762-A, 763-A, 942, and 947 of the
Banilad Estate. As the landowners would later
claim, the government negotiating team, as a
sweetener, assured them that they could
repurchase their respective lands should the Lahug
Airport expansion project do not push through or
once the Lahug Airport closes or its operations
transferred to Mactan-Cebu Airport. Some of the
landowners accepted the assurance and executed
deeds of sale with a right of repurchase. Others,
however,
including
the
owners
of
the
aforementioned lots, refused to sell because the
purchase price offered was viewed as way below
market, forcing the hand of the Republic,
represented by the then Civil Aeronautics
Administration (CAA), as successor agency of the
NAC, to file a complaint for the expropriation of Lot
Nos. 744-A, 745-A, 746, 747, 761-A, 762-A, 763-A,
942, and 947, among others, docketed as Civil
Case No. R-1881 entitled Republic v. Damian
Ouano, et al.
On December 29, 1961, the then Court of First
Instance (CFI) of Cebu rendered judgment for the
Republic, disposing, in part, as follows:
IN VIEW OF THE FOREGOING, judgment is
hereby rendered: aTHASC
Certificates of Title to their respective lots; and

upon the presentation of the said titles to the
Register of Deeds, ordering the latter to cancel the
same and to issue, in lieu thereof, new Transfer
Certificates of Title in the name of the plaintiff. 7
1.Declaring the expropriation of Lots Nos. 75, 76,

76, 89, 90, 91, 92, 105, 106, 107, 108, 104, 921-A,
88, 93, 913-B, 72, 77, 916, 777-A, 918, 919, 920,
764-A, 988, 744-A, 745-A, 746, 747, 762-A, 763-A,
951, 942, 720-A, . . . and 947, included in the
Lahug Airport, Cebu City, justified in and in lawful
exercise of the right of eminent domain.
3. That the old Lahug Airport was closed sometime

in June 1992;
In view of the adverted buy-back assurance made

by the government, the owners of the lots no longer
appealed the decision of the trial court. 8 Following
the finality of the judgment of condemnation,
certificates of title for the covered parcels of land
were issued in the name of the Republic which,
pursuant to Republic Act No. 6958, 9 were
subsequently transferred to MCIAA.
At the end of 1991, or soon after the transfer of the
aforesaid lots to MCIAA, Lahug Airport completely
ceased operations, Mactan Airport having opened
to
accommodate
incoming
and
outgoing
commercial flights. On the ground, the expropriated
lots were never utilized for the purpose they were
taken as no expansion of Lahug Airport was
undertaken. This development prompted the former
lot owners to formally demand from the government
that they be allowed to exercise their promised right
to repurchase. The demands went unheeded. Civil
suits followed.
G.R. No. 168812 (MCIAA Petition)
On February 8, 1996, Ricardo L. Inocian and four
others (all children of Isabel Limbaga who originally
owned six [6] of the lots expropriated); and Aletha
Suico Magat and seven others, successors-ininterest of Santiago Suico, the original owner of two
(2) of the condemned lots (collectively, the
Inocians), filed before the RTC in Cebu City a
complaint for reconveyance of real properties and
damages against MCIAA. The complaint, docketed
as Civil Case No. CEB-18370, was eventually
raffled to Branch 13 of the court.
On September 29, 1997, one Albert Chiongbian
(Chiongbian), alleging to be the owner of Lot Nos.
761-A and 762-A but which the Inocians were now
claiming, moved and was later allowed to intervene.
During the pre-trial, MCIAA admitted the following
facts: ADaEIH
1. That the properties, which are the subject matter
of Civil Case No. CEB-18370, are also the
properties involved in Civil Case R-1881;
2. That the purpose of the expropriation was for the
expansion of the old Lahug Airport; that the Lahug
Airport was not expanded;
4. That the price paid to the lot owners in the

expropriation case is found in the decision of the
court; and
5. That some properties were reconveyed by the
MCIAA because the previous owners were able to
secure express waivers or riders wherein the
government agreed to return the properties should
the expansion of the Lahug Airport not materialize.
xxx xxx xxx

3.After the payment of the foregoing financial
obligation to the landowners, directing the latter to
deliver to the plaintiff the corresponding Transfer
286
During trial, the Inocians adduced evidence which

included the testimony of Ricardo Inocian (Inocian)
and Asterio Uy (Uy). Uy, an employee of the CAA,
testified that he was a member of the team which
negotiated for the acquisition of certain lots in
Lahug for the proposed expansion of the Lahug
Airport. He recalled that he acted as the
interpreter/spokesman of the team since he could
speak the Cebuano dialect. He stated that the other
members of the team of negotiators were Atty.
Pedro Ocampo, Atty. Lansang, and Atty.
Saligumba. He recounted that, in the course of the
negotiation, their team assured the landowners that
their landholdings would be reconveyed to them in
the event the Lahug Airport would be abandoned or
if its operation were transferred to the Mactan
Airport. Some landowners opted to sell, while
others were of a different bent owing to the
inadequacy of the offered price.
Inocian testified that he and his mother, Isabel
Lambaga, attended a meeting called by the NAC
team of negotiators sometime in 1947 or 1949
where he and the other landowners were given the
assurance that they could repurchase their lands at
the same price in the event the Lahug Airport
ceases to operate. He further testified that they
rejected the NAC's offer. However, he said that they
no longer appealed the decree of expropriation due
to the repurchase assurance adverted to.
The MCIAA presented Michael Bacarizas
(Bacarizas), who started working for MCIAA as
legal assistant in 1996. He testified that, in the
course of doing research work on the lots subject of
Civil Case No. CEB-18370, he discovered that the
same lots were covered by the decision in Civil
Case No. R-1881. He also found out that the said
decision did not expressly contain any condition on
the matter of repurchase.
Ruling of the RTC
On October 7, 1998, the RTC rendered a Decision
in Civil Case No. CEB-18370, the dispositive
portion of which reads as follows: DHSEcI
is hereby rendered directing defendant Mactan
Cebu International Airport Authority (MCIAA) to
reconvey (free from liens and encumbrances) to
plaintiffs Ricardo Inocian, Olimpia E. Esteves,
Emilia E. Bacalla, Restituta E. Montana and Raul
Inocian Lots No. 744-A, 745-A, 746, 762-A, 747,
761-A and to plaintiffs Aletha Suico Magat, Philip M.
Suico, Doris S. dela Cruz, James M. Suico, Edward
M. Suico, Roselyn S. Lawsin, Rex M. Suico and
Kharla Suico-Gutierrez Lots No. 942 and 947, after
plaintiffs shall have paid MCIAA the sums indicated
in the decision in Civil Case No. R-1881. Defendant
MCIAA is likewise directed to pay the
aforementioned plaintiffs the sum or P50,000.00 as
and for attorney's fees and P10,000.00 for litigation
expenses.
Therefrom, MCIAA went to the CA on appeal,

docketed as CA-G.R. CV No. 64356.
Ruling of the CA
On January 14, 2005, the CA rendered judgment
for the Inocians, declaring them entitled to the
reconveyance of the questioned lots as the
successors-in-interest of the late Isabel Limbaga
and Santiago Suico, as the case may be, who were
the former registered owners of the said lots. The
decretal portion of the CA's Decision reads:
WHEREFORE, in view of the foregoing premises,
judgment is hereby rendered by us DISMISSING
the appeal filed in this case and AFFIRMING the
decision rendered by the court a quo on October 7,
1998 in Civil Case No. CEB-18370.
SO ORDERED.
The CA, citing and reproducing excerpts from Heirs
of Moreno, 11 virtually held that the decision in Civil
Case No. R-1881 was conditional, stating "that the
expropriation of [plaintiff-appellees'] lots for the
proposed expansion of the Lahug Airport was
ordered by the CFI of Cebu under the impression
that Lahug Airport would continue in operation." 12
The condition, as may be deduced from the CFI's
decision, was that should MCIAA, or its precursor
agency, discontinue altogether with the operation of
Lahug Airport, then the owners of the lots
expropriated may, if so minded, demand of MCIAA
to make good its verbal assurance to allow the
repurchase of the properties. To the CA, this
assurance,
a
demandable
agreement
of
repurchase by itself, has been adequately
established.
On September 21, 2005, the MCIAA filed with Us a
petition for review of the CA's Decision, docketed
as G.R. No. 168812. TIaCHA
G.R. No. 1687702 (Ouano Petition)
Soon after the MCIAA jettisoned the Lahug Airport
expansion project, informal settlers entered and
occupied Lot No. 763-A which, before its
expropriation, belonged to the Ouanos. The
Ouanos then formally asked to be allowed to
exercise
their
right
to
repurchase
the
aforementioned lot, but the MCIAA ignored the
demand. On August 18, 1997, the Ouanos
instituted a complaint before the Cebu City RTC
against the Republic and the MCIAA for
reconveyance, docketed as Civil Case No. CEB20743.
Answering, the Republic and MCIAA averred that
the Ouanos no longer have enforceable rights
whatsoever over the condemned Lot No. 763-A, the
decision in Civil Case No. R-1881 not having found
any reversionary condition.
Ruling of the RTC
By a Decision dated November 28, 2000, the RTC,
Branch 57 in Cebu City ruled in favor of the
Ouanos, disposing as follows:
WHEREFORE, in the light of the foregoing, the
Court hereby renders judgment in favor of the
plaintiffs, Anunciacion Vda. De Ouano, Mario P.
Ouano, Leticia Ouano Arnaiz and Cielo Ouano
Martinez and against the Republic of the
Albert Chiongbian's intervention should be, as it is

hereby DENIED for utter lack of factual basis.
With costs against defendant MCIAA. 10
287
Philippines and Mactan Cebu International Airport

Authority (MCIAA) to restore to plaintiffs, the
possession and ownership of their land, Lot No.
763-A upon payment of the expropriation price to
defendants; and
II. THE IMPUGNED DISPOSITIONS INVALIDLY

OVERTURNED THIS HONORABLE COURT'S
FINAL RULINGS IN FERY V. MUNICIPALITY OF
CABANATUAN, MCIAA V. COURT OF APPEALS
AND
REYES
V.
NATIONAL
HOUSING
AUTHORITY.
2. Ordering the Register of Deeds to effect the

transfer of the Certificate of Title from defendant
Republic of the Philippines on Lot 763-A, canceling
TCT No. 52004 in the name of defendant Republic
of the Philippines and to issue a new title on the
same lot in the names of Anunciacion Vda. De
Ouano, Mario P. Ouano, Leticia Ouano Arnaiz and
Cielo Ouano Martinez.
III. THE COURT OF APPEALS GRAVELY ERRED

IN APPLYING THIS HONORABLE COURT'S
RULING IN MORENO, ALBEIT IT HAS NOT YET
ATTAINED FINALITY. 18
G.R. No. 1687702
No pronouncement as to costs. 13
Questions of law presented in this Petition
Acting on the motion of the Republic and MCIAA for

reconsideration, however, the RTC, Branch 57 in
Cebu City, presided this time by Judge Enriqueta L.
Belarmino, issued, on December 9, 2002, an Order
14 that reversed its earlier decision of November
28, 2000 and dismissed the Ouanos' complaint.
Ruling of the CA
In time, the Ouanos interposed an appeal to the
CA, docketed as CA-G.R. CV No. 78027.
Eventually, the appellate court rendered a Decision
15 dated September 3, 2004, denying the appeal,
thus:
WHEREFORE, premises considered, the Order
dated December 9, 2002, of the Regional Trial
Court, 7th Judicial Region, Branch 57, Cebu City, in
Civil Case No. CEB-20743, is hereby AFFIRMED.
No pronouncement as to costs. ScaEIT
Whether or not the testimonial evidence of the

petitioners proving the promises, assurances and
representations by the airport officials and lawyers
are inadmissible under the Statute of Frauds.
Whether or not under the ruling of this Honorable
Court in the heirs of Moreno Case, and pursuant to
the principles enunciated therein, petitioners herein
are entitled to recover their litigated property.
Reasons for Allowances of this Petition
Respondents did not object during trial to the
admissibility of petitioners' testimonial evidence
under the Statute of Frauds and have thus waived
such objection and are now barred from raising the
same. In any event, the Statute of Frauds is not
applicable herein. Consequently, petitioners'
evidence is admissible and should be duly given
weight and credence, as initially held by the trial
court in its original Decision. 19
SO ORDERED.
Explaining its case disposition, the CA stated that
the decision in Civil Case No. R-1881 did not state
any condition that Lot No. 763-A of the Ouanos
and all covered lots for that matter would be
returned to them or that they could repurchase the
same property if it were to be used for purposes
other than for the Lahug Airport. The appellate
court also went on to declare the inapplicability of
the Court's pronouncement in MCIAA v. Court of
Appeals, RTC, Branch 9, Cebu City, Melba
Limbago, et al., 16 to support the Ouanos' cause,
since the affected landowners in that case, unlike
the Ouanos, parted with their property not through
expropriation but via a sale and purchase
transaction.
The Ouanos filed a motion for reconsideration of
the CA's Decision, but was denied per the CA's
May 26, 2005 Resolution. 17 Hence, they filed this
petition in G.R. No. 1687702.
The Issues
G.R. No. 168812
While their respective actions against MCIAA below

ended differently, the Ouanos and the Inocians'
proffered arguments presented before this Court
run along parallel lines, both asserting entitlement
to recover the litigated property on the strength of
the Court's ruling in Heirs of Moreno. MCIAA has,
however,
formulated
in
its
Consolidated
Memorandum the key interrelated issues in these
consolidated cases, as follows:
I
WHETHER ABANDONMENT OF THE PUBLIC
USE FOR WHICH THE SUBJECT PROPERTIES
WERE
EXPROPRIATED
ENTITLES
PETITIONERS
OUANOS,
ET
AL.,
AND
RESPONDENTS
INOCIAN,
ET
AL.,
TO
REACQUIRE THEM. aDIHTE
II
GROUNDS FOR ALLOWANCE OF THE PETITION
WHETHER PETITIONERS OUANOS, ET AL., AND

RESPONDENTS INOCIAN, ET AL., ARE
ENTITLED TO RECONVEYANCE OF THE
SUBJECT PROPERTIES SIMPLY ON THE BASIS
OF AN ALLEGED VERBAL PROMISE OR
ASSURANCE OF SOME NAC OFFICIALS THAT
I. THE ASSAILED ISSUANCES ILLEGALLY

STRIPPED THE REPUBLIC OF ITS ABSOLUTE
AND UNCONDITIONAL TITLE TO THE SUBJECT
EXPROPRIATED PROPERTIES. aSEHDA
288
THE
SUBJECT
PROPERTIES
WILL
BE
RETURNED IF THE AIRPORT PROJECT WOULD
BE ABANDONED.
assurance when they parted with ownership of their

land. 25 (Emphasis supplied; citations omitted.)
For perspective, Heirs of Moreno later followed
by MCIAA v. Tudtud (Tudtud) 26 and the
consolidated cases at bar is cast under the
same factual setting and centered on the
expropriation of privately-owned lots for the public
purpose of expanding the Lahug Airport and the
alleged promise of reconveyance given by the
negotiating NAC officials to the private lot owners.
All the lots being claimed by the former owners or
successors-in-interest of the former owners in the
Heirs of Moreno, Tudtud, and the present cases
were similarly adjudged condemned in favor of the
Republic in Civil Case No. R-1881. All the claimants
sought was or is to have the condemned lots
reconveyed to them upon the payment of the
condemnation price since the public purpose of the
expropriation was never met. Indeed, the
expropriated lots were never used and were, in
fact, abandoned by the expropriating government
agencies. DcAaSI
In all then, the issues and supporting arguments
presented by both sets of petitioners in these
consolidated cases have already previously been
passed upon, discussed at length, and practically
peremptorily resolved in Heirs of Moreno and the
November 2008 Tudtud ruling. The Ouanos, as
petitioners in G.R. No. 1687702, and the Inocians,
as respondents in G.R. No. 168812, are similarly
situated as the heirs of Moreno in Heirs of Moreno
and Benjamin Tudtud in Tudtud. Be that as it may,
there is no reason why the ratio decidendi in Heirs
of Moreno and Tudtud should not be made to apply
to petitioners Ouanos and respondents Inocians
such that they shall be entitled to recover their or
their predecessors' respective properties under the
same manner and arrangement as the heirs of
Moreno and Tudtud. Stare decisis et non quieta
movere (to adhere to precedents, and not to
unsettle things which are established). 27
Just like in Tudtud and earlier in Heirs of Moreno,
MCIAA would foist the theory that the judgment of
condemnation in Civil Case No. R-1881 was
without qualification and was unconditional. It
would, in fact, draw attention to the fallo of the
expropriation court's decision to prove that there is
nothing in the decision indicating that the
government gave assurance or undertook to
reconvey the covered lots in case the Lahug airport
expansion project is aborted. Elaborating on this
angle, MCIAA argues that the claim of the Ouanos
and the Inocians regarding the alleged verbal
assurance of the NAC negotiating team that they
can reacquire their landholdings is barred by the
Statute of Frauds. 28
Under the rule on the Statute of Frauds, as
expressed in Article 1403 of the Civil Code, a
contract for the sale or acquisition of real property
shall be unenforceable unless the same or some
note of the contract be in writing and subscribed by
the party charged. Subject to defined exceptions,
evidence of the agreement cannot be received
The Court's Ruling

The Republic and MCIAA's petition in G.R. No.
168812 is bereft of merit, while the Ouano petition
in G.R. No. 1687702 is meritorious.
At the outset, three (3) fairly established factual
premises ought to be emphasized:
First, the MCIAA and/or its predecessor agency had
not actually used the lots subject of the final decree
of expropriation in Civil Case No. R-1881 for the
purpose they were originally taken by the
government, i.e., for the expansion and
development of Lahug Airport.
Second, the Lahug Airport had been closed and
abandoned. A significant portion of it had, in fact,
been purchased by a private corporation for
development as a commercial complex. 20 HCITcA
Third, it has been preponderantly established by
evidence that the NAC, through its team of
negotiators, had given assurance to the affected
landowners that they would be entitled to
repurchase their respective lots in the event they
are no longer used for airport purposes. 21 "No
less than Asterio Uy," the Court noted in Heirs of
Moreno, "one of the members of the CAA Mactan
Legal Team, which interceded for the acquisition of
the lots for the Lahug Airport's expansion, affirmed
that persistent assurances were given to the
landowners to the effect that as soon as the Lahug
Airport is abandoned or transferred to Mactan, the
lot owners would be able to reacquire their
properties." 22 In Civil Case No. CEB-20743,
Exhibit "G," the transcript of the deposition 23 of
Anunciacion vda. de Ouano covering the assurance
made had been formally offered in evidence and
duly considered in the initial decision of the RTC
Cebu City. In Civil Case No. CEB-18370, the trial
court, on the basis of testimonial evidence, and
later the CA, recognized the reversionary rights of
the suing former lot owners or their successors in
interest 24 and resolved the case accordingly. In
point with respect to the representation and
promise of the government to return the lots taken
should the planned airport expansion do not
materialize is what the Court said in Heirs of
Moreno, thus:
This is a difficult case calling for a difficult but just
solution. To begin with there exists an undeniable
historical narrative that the predecessors of
respondent MCIAA had suggested to the
landowners of the properties covered by the Lahug
Airport expansion scheme that they could
repurchase their properties at the termination of the
airport's venue. Some acted on this assurance and
sold their properties; other landowners held out and
waited for the exercise of eminent domain to take
its course until finally coming to terms with
respondent's predecessors that they would not
appeal nor block further judgment of condemnation
if the right of repurchase was extended to them. A
handful failed to prove that they acted on such
289
without the writing, or secondary evidence of its

contents.
MCIAA's invocation of the Statute of Frauds is
misplaced primarily because the statute applies
only to executory and not to completed, executed,
or partially consummated contracts. 29 Carbonnel
v. Poncio, et al., quoting Chief Justice Moran,
explains the rationale behind this rule, thusly:
. . . "The reason is simple. In executory contracts
there is a wide field for fraud because unless they
may be in writing there is no palpable evidence of
the intention of the contracting parties. The statute
has been precisely been enacted to prevent
fraud." . . . However, if a contract has been totally
or partially performed, the exclusion of parol
evidence would promote fraud or bad faith, for it
would enable the defendant to keep the benefits
already derived by him from the transaction in
litigation, and at the same time, evade the
obligations, responsibilities or liabilities assumed or
contracted by him thereby. 30 (Emphasis in the
original.) EacHSA
take away the actual usefulness and importance of

the Lahug Airport: it is handling the air traffic of 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 judgments 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. 32
We went on to state as follows:
While the trial court in Civil Case No. R-1881 could
have simply acknowledged the presence of public
purpose for the exercise of eminent domain
regardless of the survival of the 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 . . . 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. 33 DEHaTC
Analyzing the situation of the cases at bar, there

can be no serious objection to the proposition that
the agreement package between the government
and the private lot owners was already partially
performed by the government through the
acquisition of the lots for the expansion of the
Lahug airport. The parties, however, failed to
accomplish the more important condition in the CFI
decision decreeing the expropriation of the lots
litigated upon: the expansion of the Lahug Airport.
The project the public purpose behind the forced
property taking was, in fact, never pursued and,
as a consequence, the lots expropriated were
abandoned. Be that as it may, the two groups of
landowners can, in an action to compel MCIAA to
make good its oral undertaking to allow repurchase,
adduce parol evidence to prove the transaction.
At any rate, the objection on the admissibility of
evidence on the basis of the Statute of Frauds may
be waived if not timely raised. Records tend to
support the conclusion that MCIAA did not, as the
Ouanos and the Inocians posit, object to the
introduction of parol evidence to prove its
commitment to allow the former landowners to
repurchase their respective properties upon the
occurrence of certain events.
In a bid to deny the lot owners the right to
repurchase, MCIAA, citing cases, 31 points to the
dispositive part of the decision in Civil Case R-1881
which, as couched, granted the Republic absolute
title to the parcels of land declared expropriated.
The MCIAA is correct about the unconditional tone
of the dispositive portion of the decision, but that
actuality would not carry the day for the agency.
Addressing the matter of the otherwise absolute
tenor of the CFI's disposition in Civil Case No. R1881, the Court, in Heirs of Moreno, after taking
stock of the ensuing portion of the body of the CFI's
decision, said:
As for the public purpose of the expropriation
proceeding, it cannot now be doubted. Although
Mactan Airport is being constructed, it does not
Not to be overlooked of course is what the Court

said in its Resolution disposing of MCIAA's motion
to reconsider the original ruling in Heirs of Moreno.
In that resolution, We stated that the fallo of the
decision in Civil Case R-1881 should be viewed
and understood in connection with the entire text,
which contemplated a return of the property taken if
the airport expansion project were abandoned. For
ease of reference, following is what the Court
wrote:
Moreover, we do not subscribe to the [MCIAA's]
contention that since the possibility of the Lahug
Airport's closure was actually considered by the
trial court, a stipulation on reversion or repurchase
was so material that it should not have been
discounted by the court a quo in its decision in Civil
Case No. R-1881, if, in fact, there was one. We find
it proper to cite, once more, this Court's ruling that
the fallo of the decision in Civil Case No. R-1881
must be read in reference to the other portions of
the decision in which it forms a part. A reading of
the Court's judgment must not be confined to the
290
dispositive portion alone; rather it should be

meaningfully construed in unanimity with the ratio
decidendi thereof to grasp the true intent and
meaning of a decision. 34
was authorized. In effect, the government merely

held the properties condemned in trust until the
proposed public use or purpose for which the lots
were condemned was actually consummated by
the government. Since the government failed to
perform the obligation that is the basis of the
transfer of the property, then the lot owners Ouanos
and Inocians can demand the reconveyance of
their old properties after the payment of the
condemnation price.
Constructive trusts are fictions of equity that courts
use as devices to remedy any situation in which the
holder of the legal title, MCIAA in this case, may
not, in good conscience, retain the beneficial
interest. We add, however, as in Heirs of Moreno,
that the party seeking the aid of equity the
landowners in this instance, in establishing the trust
must himself do equity in a manner as the court
may deem just and reasonable.
The Court, in the recent MCIAA v. Lozada, Sr.,
revisited and abandoned the Fery ruling that the
former owner is not entitled to reversion of the
property even if the public purpose were not
pursued and were abandoned, thus:
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 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.
cAHDES
The Court has, to be sure, taken stock of Fery v.

Municipality of Cabanatuan, 35 a case MCIAA cites
at every possible turn, where the Court made these
observations:
If, for example, 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,
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 . . . and in that case the
non-user does not have the effect of defeating the
title acquired by the expropriation proceedings . . . .
Fery notwithstanding, MCIAA cannot really rightfully
say that it has absolute title to the lots decreed
expropriated in Civil Case No. R-1881. The correct
lesson of Fery is captured by what the Court said in
that case, thus: "the government acquires only
such rights in expropriated parcels of land as may
be allowed by the character of its title over the
properties." In light of our disposition in Heirs of
Moreno and Tudtud, the statement immediately
adverted to means that in the event the particular
public use for which a parcel of land is expropriated
is abandoned, the owner shall not be entitled to
recover or repurchase it as a matter of right, unless
such recovery or repurchase is expressed in or
irresistibly deducible from the condemnation
judgment. But as has been determined below, the
decision in Civil Case No. R-1881 enjoined MCIAA,
as a condition of approving expropriation, to allow
recovery or repurchase upon abandonment of the
Lahug airport project. To borrow from our
underlying decision in Heirs of Moreno, "[n]o doubt,
the return or repurchase of the condemned
properties of petitioners could readily be justified as
the manifest legal effect of consequence of the trial
court's underlying presumption that 'Lahug Airport
will continue to be in operation' when it granted the
complaint for eminent domain and the airport
discontinued its activities." 36 aIcHSC
Providing added support to the Ouanos and the
Inocians' right to repurchase is what in Heirs of
Moreno was referred to as constructive trust, one
that is akin to the implied trust expressed in Art.
1454 of the Civil Code, 37 the purpose of which is
to prevent unjust enrichment. 38 In the case at
bench, the Ouanos and the Inocians parted with
their respective lots in favor of the MCIAA, the latter
obliging itself to use the realties for the expansion
of Lahug Airport; failing to keep its end of the
bargain, MCIAA can be compelled by the former
landowners to reconvey the parcels of land to them,
otherwise, they would be denied the use of their
properties upon a state of affairs that was not
conceived nor contemplated when the expropriation
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
291
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.
another public use very much different from the

original or deviates from the declared purpose to
benefit another private person. It has been said that
the direct use by the state of its power to oblige
landowners
to
renounce
their
productive
possession to another citizen, who will use it
predominantly for that citizen's own private gain, is
offensive to our laws. 42
A condemnor should commit to use the property
pursuant to the purpose stated in the petition for
expropriation, failing which it should file another
petition for the new purpose. If not, then it
behooves the condemnor to return the said
property to its private owner, if the latter so desires.
The government cannot plausibly keep the property
it expropriated in any manner it pleases and, in the
process, dishonor the judgment of expropriation.
This is not in keeping with the idea of fair play.
The notion, therefore, that the government, via
expropriation proceedings, acquires unrestricted
ownership over or a fee simple title to the covered
land, is no longer tenable. We suggested as much
in Heirs of Moreno and in Tudtud and more recently
in Lozada, Sr. Expropriated lands should be
differentiated from a piece of land, ownership of
which was absolutely transferred by way of an
unconditional purchase and sale contract freely
entered by two parties, one without obligation to
buy and the other without the duty to sell. In that
case, the fee simple concept really comes into play.
There is really no occasion to apply the "fee simple
concept" if the transfer is conditional. The taking of
a private land in expropriation proceedings is
always conditioned on its continued devotion to its
public purpose. As a necessary corollary, once the
purpose is terminated or peremptorily abandoned,
then the former owner, if he so desires, may seek
its reversion, subject of course to the return, at the
very least, of the just compensation received.
To be compelled to renounce dominion over a piece
of land is, in itself, an already bitter pill to swallow
for the owner. But to be asked to sacrifice for the
common good and yield ownership to the
government which reneges on its assurance that
the private property shall be for a public purpose
may be too much. But it would be worse if the
power of eminent domain were deliberately used as
a subterfuge to benefit another with influence and
power in the political process, including
development firms. The mischief thus depicted is
not at all far-fetched with the continued application
of Fery. Even as the Court deliberates on these
consolidated cases, there is an uncontroverted
allegation that the MCIAA is poised to sell, if it has
not yet sold, the areas in question to Cebu Property
Ventures, Inc. This provides an added dimension to
abandon Fery.
Given the foregoing disquisitions, equity and justice
demand the reconveyance by MCIAA of the
litigated lands in question to the Ouanos and
Inocians. In the same token, justice and fair play
also dictate that the Ouanos and Inocian return to
MCIAA what they received as just compensation for
the expropriation of their respective properties plus
legal interest to be computed from default, which in
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. 39 (Emphasis
supplied.)
Clinging to Fery, specifically the fee simple concept
underpinning it, is no longer compelling,
considering the ensuing inequity such application
entails. Too, the Court resolved Fery not under the
cover of any of the Philippine Constitutions, each
decreeing that private property shall not be taken
for public use without just compensation. The twin
elements of just compensation and public purpose
are, by themselves, direct limitations to the exercise
of eminent domain, arguing, in a way, against the
notion of fee simple title. The fee does not vest until
payment of just compensation. 40
In esse, expropriation is forced private property
taking, the landowner being really without a ghost
of a chance to defeat the case of the expropriating
agency. In other words, in expropriation, the private
owner is deprived of property against his will.
Withal, the mandatory requirement of due process
ought to be strictly followed, such that the state
must show, at the minimum, a genuine need, an
exacting public purpose to take private property, the
purpose to be specifically alleged or least
reasonably deducible from the complaint. DTAIaH
Public use, as an eminent domain concept, has
now acquired an expansive meaning to include any
use that is of "usefulness, utility, or advantage, or
what is productive of general benefit [of the public]."
41 If the genuine public necessity the very
reason or condition as it were allowing, at the
first instance, the expropriation of a private land
ceases or disappears, then there is no more cogent
point for the government's retention of the
expropriated land. The same legal situation should
hold if the government devotes the property to
292
this case should run from the time MCIAA complies

with the reconveyance obligation. 43 They must
likewise pay MCIAA the necessary expenses it
might have incurred in sustaining their respective
lots and the monetary value of its services in
managing the lots in question to the extent that
they, as private owners, were benefited thereby.
CSHcDT
In accordance with Art. 1187 of the Civil Code on
mutual compensation, MCIAA may keep whatever
income or fruits it may have obtained from the
parcels of land expropriated. In turn, the Ouanos
and Inocians need not require the accounting of
interests earned by the amounts they received as
just compensation. 44
Following Art. 1189 of the Civil Code providing that
"[i]f the thing is improved by its nature, or by time,
the improvement shall inure to the benefit of the
creditor . . .," the Ouanos and Inocians do not have
to settle the appreciation of the values of their
respective lots as part of the reconveyance
process, since the value increase is merely the
natural effect of nature and time.
Finally, We delete the award of PhP50,000 and
PhP10,000, as attorney's fees and litigation
expenses, respectively, made in favor of the
Inocians by the Cebu City RTC in its judgment in
Civil Case No. CEB-18370, as later affirmed by the
CA. As a matter of sound policy, no premium
should be set on the right to litigate where there is
no doubt about the bona fides of the exercise of
such right, 45 as here, albeit the decision of MCIAA
to resist the former landowners' claim eventually
turned out to be untenable.
WHEREFORE, the petition in G.R. No. 1687702 is
GRANTED. Accordingly, the CA Decision dated
September 3, 2004 in CA-G.R. CV No. 78027 is
REVERSED and SET ASIDE. Mactan-Cebu
International Airport Authority is ordered to
reconvey subject Lot No. 763-A to petitioners
Anunciacion vda. de Ouano, Mario P. Ouano,
Leticia Ouano Arnaiz, and Cielo Ouano Martinez.
The Register of Deeds of Cebu City is ordered to
effect the necessary cancellation of title and
transfer it in the name of the petitioners within
fifteen (15) days from finality of judgment.
The petition of the Mactan-Cebu International
Airport Authority in G.R. No. 168812 is DENIED,
and the CA's Decision and Resolution dated
in CA-G.R. CV No. 64356 are AFFIRMED, except
insofar as they awarded attorney's fees and
litigation expenses that are hereby DELETED.
Accordingly, Mactan-Cebu International Airport
Authority is ordered to reconvey to respondents
Ricardo L. Inocian, Olympia E. Esteves, Emilia E.
Bacalla, Restituta E. Montana, and Raul L. Inocian
the litigated Lot Nos. 744-A, 745-A, 746, 762-A,
747, and 761-A; and to respondents Aletha Suico
Magat, Philip M. Suico, Dolores S. dela Cruz,
James M. Suico, Edward M. Suico, Roselyn S.
Lawsin, Rex M. Suico, and Kharla Suico-Gutierrez
the litigated Lot Nos. 942 and 947. The Register of
Deeds of Cebu City is ordered to effect the
necessary cancellation of title and transfer it in the
name of respondents within a period of fifteen (15)

days from finality of judgment.
The foregoing dispositions are subject to
QUALIFICATIONS, to apply to these consolidated
petitions, when appropriate, as follows:
(1) Petitioners Ouano, et al., in G.R. No. 1687702
and respondents Ricardo L. Inocian, et al., in G.R.
No. 168812 are ordered to return to the MCIAA the
just compensation they or their predecessors-ininterest received for the expropriation of their
respective lots as stated in Civil Case No. R-1881,
within a period of sixty (60) days from finality of
judgment;
(2) The MCIAA shall be entitled to RETAIN
whatever fruits and income it may have obtained
from the subject expropriated lots without any
obligation to refund the same to the lot owners; and
(3) Petitioners Ouano, et al., in G.R. No. 1687702
and respondents Ricardo L. Inocian, et al., in G.R.
No. 168812 shall RETAIN whatever interests the
amounts they received as just compensation may
have earned in the meantime without any obligation
to refund the same to MCIAA.
SO ORDERED.
Corona, C.J., Leonardo-de Castro, Del Castillo and
Perez, JJ., concur.
||| (Vda de Ouano v. Republic, G.R. No. 168770 &
168812, [February 9, 2011], 657 PHIL 391-422)
4. NPC VS. HEIRS OF SANGKAY 656 SCRA
60 (2011)
FIRST DIVISION
[G.R. No. 165828. August 24, 2011.]
NATIONAL POWER CORPORATION, petitioner,
vs. HEIRS OF MACABANGKIT SANGKAY, namely:
CEBU, BATOWA-AN, SAYANA, NASSER, MANTA,
EDGAR, PUTRI, MONGKOY, * and AMIR, all
surnamed MACABANGKIT, respondents.
DECISION
BERSAMIN, J p:
Private property shall not be taken for public use
without just compensation.
Section 9, Article III, 1987 Constitution
The application of this provision of the Constitution
is the focus of this appeal.
Petitioner National Power Corporation (NPC) seeks
the review on certiorari of the decision promulgated
on October 5, 2004, 1 whereby the Court of
Appeals (CA) affirmed the decision dated August
13, 1999 and the supplemental decision dated
August 18, 1999, ordering NPC to pay just
compensation to the respondents, both rendered by
the Regional Trial Court, Branch 1, in Iligan City
(RTC).
Antecedents
Pursuant to its legal mandate under Republic Act
No. 6395 (An Act Revising the Charter of the
293
National Power Corporation), NPC undertook the

Agus River Hydroelectric Power Plant Project in the
1970s to generate electricity for Mindanao. The
project included the construction of several
underground tunnels to be used in diverting the
water flow from the Agus River to the hydroelectric
plants. 2
On November 21, 1997, the respondents, namely:
Cebu, Bangowa-an, Sayana, Nasser, Manta,
Edgar, Putri, Mongkoy and Amir, all surnamed
Macabangkit (Heirs of Macabangkit), as the owners
of land with an area of 221,573 square meters
situated in Ditucalan, Iligan City, sued NPC in the
RTC for the recovery of damages and of the
property, with the alternative prayer for the payment
of just compensation. 3 They alleged that they had
belatedly discovered that one of the underground
tunnels of NPC that diverted the water flow of the
Agus River for the operation of the Hydroelectric
Project in Agus V, Agus VI and Agus VII traversed
their land; that their discovery had occurred in 1995
after Atty. Saidali C. Gandamra, President of the
Federation of Arabic Madaris School, had rejected
their offer to sell the land because of the danger the
underground tunnel might pose to the proposed
Arabic Language Training Center and Muslims
Skills Development Center; that such rejection had
been followed by the withdrawal by Global Asia
Management and Resource Corporation from
developing the land into a housing project for the
same reason; that Al-Amanah Islamic Investment
Bank of the Philippines had also refused to accept
their land as collateral because of the presence of
the underground tunnel; that the underground
tunnel had been constructed without their
knowledge and consent; that the presence of the
tunnel deprived them of the agricultural,
commercial, industrial and residential value of their
land; and that their land had also become an
unsafe place for habitation because of the loud
sound of the water rushing through the tunnel and
the constant shaking of the ground, forcing them
and their workers to relocate to safer grounds.
EHSTDA
In its answer with counterclaim, 4 NPC countered
that the Heirs of Macabangkit had no right to
compensation under section 3 (f) of Republic Act
No. 6395, under which a mere legal easement on
their land was established; that their cause of
action, should they be entitled to compensation,
already prescribed due to the tunnel having been
constructed in 1979; and that by reason of the
tunnel being an apparent and continuous
easement, any action arising from such easement
prescribed in five years.
Ruling of the RTC
On July 23, 1998, an ocular inspection of the land
that was conducted by RTC Judge Mamindiara P.
Mangotara and the representatives of the parties
resulted in the following observations and findings:
a. That a concrete post which is about two feet in
length from the ground which according to the
claimants is the middle point of the tunnel.
b. That at least three fruit bearing durian trees were

uprooted and as a result of the construction by the
defendant of the tunnel and about one hundred
coconuts planted died.
c. That underground tunnel was constructed
therein. 5
After trial, the RTC ruled in favor of the plaintiffs
(Heirs of Macabangkit), 6 decreeing:
WHEREFORE, premises considered:
1. The prayer for the removal or dismantling of
defendant's tunnel is denied. However, defendant is
hereby directed and ordered:
a) To pay plaintiffs' land with a total area of 227,065
square meters, at the rate of FIVE HUNDRED
(P500.00) PESOS per square meter, or a total of
ONE HUNDRED THIRTEEN MILLION FIVE
HUNDRED THIRTY TWO THOUSAND AND FIVE
HUNDRED (P113,532,500.00) PESOS, plus
interest, as actual damages or just compensation;
ETDaIC
b) To pay plaintiff a monthly rental of their land in
the amount of THIRTY THOUSAND (P30,000.00)
PESOS from 1979 up to July 1999 with 12%
interest per annum;
c) To pay plaintiffs the sum of TWO HUNDRED
THOUSAND (P200,000.00) PESOS, as moral
damages;
d) To pay plaintiffs, the sum of TWO HUNDRED
THOUSAND (P200,000.00) PESOS, as exemplary
damages;
e) To pay plaintiffs, the sum equivalent to 15% of
the total amount awarded, as attorney's fees, and
to pay the cost.
SO ORDERED.
The RTC found that NPC had concealed the
construction of the tunnel in 1979 from the Heirs of
Macabangkit, and had since continuously denied its
existence; that NPC had acted in bad faith by
taking possession of the subterranean portion of
their land to construct the tunnel without their
knowledge and prior consent; that the existence of
the tunnel had affected the entire expanse of the
land, and had restricted their right to excavate or to
construct a motorized deep well; and that they, as
owners, had lost the agricultural, commercial,
industrial and residential value of the land.
The RTC fixed the just compensation at
P500.00/square meter based on the testimony of
Dionisio Banawan, OIC-City Assessor of Iligan City,
to the effect that the appraised value of the
adjoining properties ranged from P700.00 to
P750.00, while the appraised value of their affected
land ranged from P400.00 to P500.00. The RTC
also required NPC to pay rentals from 1979 due to
294
its bad faith in concealing the construction of the

tunnel from the Heirs of Macabangkit.
On August 18, 1999, the RTC issued a
supplemental decision, 7 viz.:
Upon a careful review of the original decision dated
August 13, 1999, a sentence should be added to
paragraph 1(a) of the dispositive portion thereof, to
bolster, harmonize, and conform to the findings of
the Court, which is quoted hereunder, to wit:
THE COURT A QUO SERIOUSLY ERRED IN

GRANTING APPELLEES' CLAIMS IN THEIR
ENTIRETY FOR GRANTING ARGUENDO THAT
NAPOCOR'S UNDERGROUND TUNNEL INDEED
TRAVERSED APPELLEE'S PROPERTY, THEIR
CAUSE OF ACTION HAD ALREADY BEEN
BARRED BY PRESCRIPTION, ESTOPPEL AND
LACHES
"Consequently, plaintiffs' land or properties are

hereby condemned in favor of defendant National
Power Corporation, upon payment of the aforesaid
sum."
On October 5, 2004, the CA affirmed the decision

of the RTC, holding that the testimonies of NPC's
witness Gregorio Enterone and of the respondents'
witness Engr. Pete Sacedon, the topographic
survey map, the sketch map, and the ocular
inspection report sufficiently established the
existence of the underground tunnel traversing the
land of the Heirs of Macabangkit; that NPC did not
substantiate its defense that prescription already
barred the claim of the Heirs of Macabangkit; and
that Section 3 (i) of R.A. No. 6395, being silent
about tunnels, did not apply, viz.:
As regard Section 3(i) of R.A. No. 6395 (An Act
Revising the Charter of the National Power
Corporation), it is submitted that the same provision
is not applicable. There is nothing in Section 3(i) of
said law governing claims involving tunnels. The
same provision is applicable to those projects or
facilities on the surface of the land, that can easily
be discovered, without any mention about the
claims involving tunnels, particularly those
surreptitiously constructed beneath the surface of
the land, as in the instant case. SCDaHc
Therefore, paragraph 1(a) of the dispositive portion

of the original decision should read, as follows:
a) To pay plaintiffs' land with a total area of 227,065
square meters, at the rate of FIVE HUNDRED
(P500.00) PESOS per square meter, or a total of
ONE HUNDRED THIRTEEN MILLION FIVE
HUNDRED THIRTY TWO THOUSAND AND FIVE
HUNDRED (P113,532,500.00) PESOS, plus
interest, as actual damages or just compensation;
Consequently, plaintiffs' land or properties are
hereby condemned in favor of defendant National
Power Corporation, upon payment of the aforesaid
sum; TADCSE
This supplemental decision shall be considered as
part of paragraph 1(a) of the dispositive portion of
the original decision.
Furnish copy of this supplemental decision to all
parties immediately.
Now, while it is true that Republic Act No. 6395

authorizes NAPOCOR to take water from any
public stream, river, creek, lake, spring or waterfall
in the Philippines for the realization of the purposes
specified therein for its creation; to intercept and
divert the flow of waters from lands of riparian
owners (in this case, the "Heirs"), and from persons
owning or interested in water which are or may be
necessary to said purposes, the same Act
expressly mandates the payment of just
compensation.
SO ORDERED.
On its part, NPC appealed to the CA on August 25,
1999. 8
Earlier, on August 18, 1999, the Heirs of
Macabangkit filed an urgent motion for execution of
judgment pending appeal. 9 The RTC granted the
motion and issued a writ of execution, 10 prompting
NPC to assail the writ by petition for certiorari in the
CA. On September 15, 1999, the CA issued a
temporary restraining order (TRO) to enjoin the
RTC from implementing its decision. The Heirs of
Macabangkit elevated the ruling of the CA (G.R.
No. 141447), but the Court upheld the CA on May
4, 2006. 11
Ruling of the CA
NPC raised only two errors in the CA, namely:
I

appeal is hereby DENIED for lack of merit.
Accordingly, the appealed Decision dated August
13, 1999, and the supplemental Decision dated
August 18, 1999, are hereby AFFIRMED in toto.
SO ORDERED. 12
Issue
NPC has come to the Court, assigning the lone
error that:
THE APPELLATE COURT ERRED ON A
QUESTION OF LAW WHEN IT AFFIRMED THE
DECISION AND SUPPLEMENTAL DECISION OF
THE COURT A QUO DIRECTING AND
ORDERING PETITIONER TO PAY JUST
COMPENSATION TO RESPONDENTS.
THE COURT A QUO SERIOUSLY ERRED IN

RULING THAT NAPOCOR'S UNDERGROUND
TUNNEL IN ITS AGUS RIVER HYDRO-ELECTRIC
PLANT
PROJECT
TRAVERSED
AND/OR
AFFECTED APPELLEES' PROPERTY AS THERE
IS NO CLEAR EVIDENCE INDUBITABLY
ESTABLISHING THE SAME
II
295
NPC reiterates that witnesses Enterone and

Sacedon lacked personal knowledge about the
construction and existence of the tunnel and were
for that reason not entitled to credence; and that
the topographic and relocation maps prepared by
Sacedon should not be a basis to prove the
existence and location of the tunnel due to being
self-serving. cCTIaS
NPC contends that the CA should have applied
Section 3 (i) of Republic Act No. 6395, which
provided a period of only five years from the date of
the construction within which the affected
landowner could bring a claim against it; and that
even if Republic Act No. 6395 should be
inapplicable, the action of the Heirs of Macabangkit
had already prescribed due to the underground
tunnel being susceptible to acquisitive prescription
after the lapse of 10 years pursuant to Article 620 of
the Civil Code due to its being a continuous and
apparent legal easement under Article 634 of the
Civil Code.
The issues for resolution are, therefore, as follows:
(1) Whether the CA and the RTC erred in holding
that there was an underground tunnel traversing
the Heirs of Macabangkit's land constructed by
NPC; and
construction) to the question on the existence of the

tunnel was strong, as the CA correctly projected in
its assailed decision, viz.:
Among the pieces of documentary evidence
presented showing the existence of the said tunnel
beneath the subject property is the topographic
survey map. The topographic survey map is one
conducted to know about the location and elevation
of the land and all existing structures above and
underneath it. Another is the Sketch Map which
shows the location and extent of the land traversed
or affected by the said tunnel. These two (2) pieces
of documentary evidence readily point the extent
and presence of the tunnel construction coming
from the power cavern near the small man-made
lake which is the inlet and approach tunnel, or at a
distance of about two (2) kilometers away from the
land of the plaintiffs-appellees, and then traversing
the entire and the whole length of the plaintiffsappellees' property, and the outlet channel of the
tunnel is another small man-made lake. This is a
sub-terrain construction, and considering that both
inlet and outlet are bodies of water, the tunnel can
hardly be noticed. All constructions done were
beneath the surface of the plaintiffs-appellees'
property. This explains why they could never obtain
any knowledge of the existence of such tunnel
during the period that the same was constructed
and installed beneath their property. 14
(2) Whether the Heirs of Macabangkit's right to

claim just compensation had prescribed under
section 3 (i) of Republic Act No. 6395, or,
alternatively, under Article 620 and Article 646 of
the Civil Code.
The power cavern and the inlet and outlet channels

established the presence of the underground
tunnel, based on the declaration in the RTC by
Sacedon, a former employee of the NPC. 15 It is
worthy to note that NPC did not deny the existence
of the power cavern, and of the inlet and outlet
channels adverted to and as depicted in the
topographic survey map and the sketch map. The
CA cannot be faulted for crediting the testimony of
Sacedon despite the effort of NPC to discount his
credit due to his not being an expert witness, simply
because Sacedon had personal knowledge based
on his being NPC's principal engineer and
supervisor tasked at one time to lay out the tunnels
and transmission lines specifically for the
hydroelectric projects, 16 and to supervise the
construction of the Agus 1 Hydroelectric Plant itself
17 from 1978 until his retirement from NPC. 18
Besides, he declared that he personally
experienced the vibrations caused by the rushing
currents in the tunnel, particularly near the outlet
channel. 19 Under any circumstances, Sacedon
was a credible and competent witness.
The ocular inspection actually confirmed the
existence of the tunnel underneath the land of the
Heirs of Macabangkit. Thus, the CA observed:
More so, the Ocular inspection conducted on July
23, 1998 further bolstered such claim of the
existence and extent of such tunnel. This was
conducted by a team composed of the Honorable
Presiding Judge of the Regional Trial Court, Branch
01, Lanao del Norte, herself and the respective
lawyers of both of the parties and found that,
among others, said underground tunnel was
constructed beneath the subject property. 20
Ruling
We uphold the liability of NPC for payment of just
compensation.
1.
Factual findings of the RTC,
when affirmed by the CA, are binding
The existence of the tunnel underneath the land of
the Heirs of Macabangkit, being a factual matter,
cannot now be properly reviewed by the Court, for
questions of fact are beyond the pale of a petition
for review on certiorari. Moreover, the factual
findings and determinations by the RTC as the trial
court are generally binding on the Court,
particularly after the CA affirmed them. 13 Bearing
these doctrines in mind, the Court should rightly
dismiss NPC's appeal. CIScaA
NPC argues, however, that this appeal should not
be dismissed because the Heirs of Macabangkit
essentially failed to prove the existence of the
underground tunnel. It insists that the topographic
survey map and the right-of-way reap presented by
the Heirs of Macabangkit did not at all establish the
presence of any underground tunnel.
NPC still fails to convince.
Even assuming, for now, that the Court may review
the factual findings of the CA and the RTC, for NPC
to insist that the evidence on the existence of the
tunnel was not adequate and incompetent remains
futile. On the contrary, the evidence on the tunnel
was substantial, for the significance of the
topographic survey map and the sketch map (as
indicative of the extent and presence of the tunnel
296
filed within five years after the rights of way,

transmission lines, substations, plants or other
facilities shall have been established; Provided,
finally, That after said period, no suit shall be
brought to question the said rights of way,
transmission lines, substations, plants or other
facilities; EDaHAT
It bears noting that NPC did not raise any issue

against or tender any contrary comment on the
ocular inspection report. CEIHcT
2.
Five-year prescriptive period under Section 3 (i) of
Republic
Act No. 6395 does not apply to claims for just
compensation
The CA held that Section 3 (i) of Republic Act No.
6395 had no application to this action because it
covered facilities that could be easily discovered,
not tunnels that were inconspicuously constructed
beneath the surface of the land. 21
NPC disagrees, and argues that because Article
635 22 of the Civil Code directs the application of
special laws when an easement, such as the
underground tunnel, was intended for public use,
the law applicable was Section 3 (i) of Republic Act
No. 6395, as amended, which limits the action for
recovery of compensation to five years from the
date of construction. It posits that the five-year
prescriptive period already set in due to the
construction of the underground tunnel having been
completed in 1979 yet.
Without necessarily adopting the reasoning of the
CA, we uphold its conclusion that prescription did
not bar the present action to recover just
compensation.
Section 3 (i) of Republic Act No. 6395, the cited
law, relevantly provides:
Section 3. Powers and General Functions of the
Corporation. The powers, functions, rights and
activities of the Corporation shall be the following:
A cursory reading shows that Section 3 (i) covers

the construction of "works across, or otherwise, any
stream, watercourse, canal, ditch, flume, street,
avenue, highway or railway of private and public
ownership, as the location of said works may
require." It is notable that Section 3 (i) includes no
limitation except those enumerated after the term
works. Accordingly, we consider the term works as
embracing all kinds of constructions, facilities, and
other developments that can enable or help NPC to
meet its objectives of developing hydraulic power
expressly provided under paragraph (g) of Section
3. 23 The CA's restrictive construal of Section 3 (i)
as exclusive of tunnels was obviously unwarranted,
for the provision applies not only to development
works easily discoverable or on the surface of the
earth but also to subterranean works like tunnels.
Such interpretation accords with the fundamental
guideline in statutory construction that when the law
does not distinguish, so must we not. 24 Moreover,
when the language of the statute is plain and free
from ambiguity, and expresses a single, definite,
and sensible meaning, that meaning is conclusively
presumed to be the meaning that the Congress
intended to convey. 25
Even so, we still cannot side with NPC.
We rule that the prescriptive period provided under
Section 3 (i) of Republic Act No. 6395 is applicable
only to an action for damages, and does not extend
to an action to recover just compensation like this
case. Consequently, NPC cannot thereby bar the
right of the Heirs of Macabangkit to recover just
compensation for their land.
The action to recover just compensation from the
State or its expropriating agency differs from the
action for damages. The former, also known as
inverse condemnation, has the objective to recover
the value of property taken in fact by the
governmental defendant, even though no formal
exercise of the power of eminent domain has been
attempted by the taking agency. 26 Just
compensation is the full and fair equivalent of the
property taken from its owner by the expropriator.
The measure is not the taker's gain, but the owner's
loss. The word just is used to intensify the meaning
of the word compensation in order to convey the
idea that the equivalent to be rendered for the
property to be taken shall be real, substantial, full,
and ample. 27 On the other hand, the latter action
seeks to vindicate a legal wrong through damages,
which may be actual, moral, nominal, temperate,
liquidated, or exemplary. When a right is exercised
in a manner not conformable with the norms
enshrined in Article 19 28 and like provisions on
human relations in the Civil Code, and the exercise
results to the damage of another, a legal wrong is
xxx xxx xxx

(i) To construct works across, or otherwise, any
stream, watercourse, canal, ditch, flume, street,
avenue, highway or railway of private and public
ownership, as the location of said works may
require: Provided, That said works be constructed
in such a manner as not to endanger life or
property; And provided, further, That the stream,
watercourse, canal ditch, flume, street, avenue,
highway or railway so crossed or intersected be
restored as near as possible to their former state,
or in a manner not to impair unnecessarily their
usefulness. Every person or entity whose right of
way or property is lawfully crossed or intersected by
said works shall not obstruct any such crossings or
intersection and shall grant the Board or its
representative, the proper authority for the
execution of such work. The Corporation is hereby
given the right of way to locate, construct and
maintain such works over and throughout the lands
owned by the Republic of the Philippines or any of
its branches and political subdivisions. The
Corporation or its representative may also enter
upon private property in the lawful performance or
prosecution of its business and purposes, including
the construction of the transmission lines thereon;
Provided, that the owner of such property shall be
indemnified for any actual damage caused thereby;
Provided, further, That said action for damages is
297
committed and the wrongdoer is held responsible.

29
The two actions are radically different in nature and
purpose. The action to recover just compensation is
based on the Constitution 30 while the action for
damages is predicated on statutory enactments.
Indeed, the former arises from the exercise by the
State of its power of eminent domain against
private property for public use, but the latter
emanates from the transgression of a right. The
fact that the owner rather than the expropriator
brings the former does not change the essential
nature of the suit as an inverse condemnation, 31
for the suit is not based on tort, but on the
constitutional prohibition against the taking of
property without just compensation. 32 It would
very well be contrary to the clear language of the
Constitution to bar the recovery of just
compensation for private property taken for a public
use solely on the basis of statutory prescription.
aTSEcA
Due to the need to construct the underground
tunnel, NPC should have first moved to acquire the
land from the Heirs of Macabangkit either by
voluntary tender to purchase or through formal
expropriation proceedings. In either case, NPC
would have been liable to pay to the owners the fair
market value of the land, for Section 3 (h) of
Republic Act No. 6395 expressly requires NPC to
pay the fair market value of such property at the
time of the taking, thusly:
(h) To acquire, promote, hold, transfer, sell, lease,
rent, mortgage, encumber and otherwise dispose of
property incident to, or necessary, convenient or
proper to carry out the purposes for which the
Corporation was created: Provided, That in case a
right of way is necessary for its transmission lines,
easement of right of way shall only be sought:
Provided, however, That in case the property itself
shall be acquired by purchase, the cost thereof
shall be the fair market value at the time of the
taking of such property.
not go through proper expropriation proceedings.

Petitioner could have, at any time, validly exercised
the power of eminent domain to acquire the
easement over respondents' property as this power
encompasses not only the taking or appropriation
of title to and possession of the expropriated
property but likewise covers even the imposition of
a mere burden upon the owner of the condemned
property. Significantly, though, landowners cannot
be deprived of their right over their land until
expropriation proceedings are instituted in court.
The court must then see to it that the taking is for
public use, that there is payment of just
compensation and that there is due process of law.
34
3.
NPC's construction of the tunnel
constituted taking of the land, and
entitled owners to just compensation
The Court held in National Power Corporation v.
Ibrahim that NPC was "liable to pay not merely an
easement fee but rather the full compensation for
land" traversed by the underground tunnels, viz.:
In disregarding this procedure and failing to
recognize respondents' ownership of the subterrain portion, petitioner took a risk and exposed
itself to greater liability with the passage of time. It
must be emphasized that the acquisition of the
easement is not without expense. The underground
tunnels impose limitations on respondents' use of
the property for an indefinite period and deprive
them of its ordinary use. Based upon the foregoing,
respondents are clearly entitled to the payment of
just compensation. Notwithstanding the fact that
petitioner only occupies the sub-terrain portion, it is
liable to pay not merely an easement fee but rather
the full compensation for land. This is so because
in this case, the nature of the easement practically
deprives the owners of its normal beneficial use.
Respondents, as the owner of the property thus
expropriated, are entitled to a just compensation
which should be neither more nor less, whenever it
is possible to make the assessment, than the
money equivalent of said property. 35
This was what NPC was ordered to do in National

Power Corporation v. Ibrahim, 33 where NPC had
denied the right of the owners to be paid just
compensation despite their land being traversed by
the underground tunnels for siphoning water from
Lake Lanao needed in the operation of Agus II,
Agus III, Agus IV, Agus VI and Agus VII
Hydroelectric Projects in Saguiran, Lanao del Sur,
in Nangca and Balo-I in Lanao del Norte and in
Ditucalan and Fuentes in Iligan City. There, NPC
similarly argued that the underground tunnels
constituted a mere easement that did not involve
any loss of title or possession on the part of the
property owners, but the Court resolved against
NPC, to wit:
Petitioner contends that the underground tunnels in
this case constitute an easement upon the property
of the respondents which does not involve any loss
of title or possession. The manner in which the
easement was created by petitioner, however,
violates the due process rights of respondents as it
was without notice and indemnity to them and did
Here, like in National Power Corporation v. Ibrahim,

NPC constructed a tunnel underneath the land of
the Heirs of Macabangkit without going through
formal expropriation proceedings and without
procuring their consent or at least informing them
beforehand of the construction. NPC's construction
adversely affected the owners' rights and interests
because the subterranean intervention by NPC
prevented them from introducing any developments
on the surface, and from disposing of the land or
any portion of it, either by sale or mortgage.
STHAaD
Did such consequence constitute taking of the land
as to entitle the owners to just compensation?
We agree with both the RTC and the CA that there
was a full taking on the part of NPC,
notwithstanding that the owners were not
completely and actually dispossessed. It is settled
that the taking of private property for public use, to
298
be compensable, need not be an actual physical

taking or appropriation. 36 Indeed, the
expropriator's action may be short of acquisition of
title, physical possession, or occupancy but may
still amount to a taking. 37 Compensable taking
includes destruction, restriction, diminution, or
interruption of the rights of ownership or of the
common and necessary use and enjoyment of the
property in a lawful manner, lessening or destroying
its value. 38 It is neither necessary that the owner
be wholly deprived of the use of his property, 39 nor
material whether the property is removed from the
possession of the owner, or in any respect changes
hands. 40
As a result, NPC should pay just compensation for
the entire land. In that regard, the RTC pegged just
compensation at P500.00/square meter based on
its finding on what the prevailing market value of
the property was at the time of the filing of the
complaint, and the CA upheld the RTC.
We affirm the CA, considering that NPC did not
assail the valuation in the CA and in this Court.
NPC's silence was probably due to the correctness
of the RTC's valuation after careful consideration
and weighing of the parties' evidence, as follows:
The matter of what is just compensation for these
parcels of land is a matter of evidence. These
parcels of land is (sic) located in the City of Iligan,
the Industrial City of the South. Witness Dionisio
Banawan, OIC-City Assessor's Office, testified,
"Within that area, that area is classified as industrial
and residential. That plaintiffs' land is adjacent to
many subdivisions and that is within the industrial
classification. He testified and identified Exhibits
"AA" and "AA-1", a Certification, dated April 4,
1997, showing that the appraised value of plaintiffs
land ranges from P400.00 to P500.00 per square
meter (see, TSN, testimony of Dionisio Banawan,
pp. 51, 57, and 71, February 9, 1999). Also, witness
Banawan, testified and identified Two (2) Deeds of
Sale, marked as Exhibits "AA-2" and "AA-3,["]
showing that the appraised value of the land
adjoining or adjacent to plaintiff land ranges from
P700.00 to P750.00 per square meter. As between
the much lower price of the land as testified by
defendant's witness Gregorio Enterone, and that of
the City Assessor of Iligan City, the latter is more
credible. Considering however, that the appraised
value of the land in the area as determined by the
City Assessor's Office is not uniform, this Court, is
of the opinion that the reasonable amount of just
compensation of plaintiff's land should be fixed at
FIVE HUNDRED (500.00) PESOS, per square
meter. . . . . 41
provided in its decision. Compensation that is

reckoned on the market value prevailing at the time
either when NPC entered or when it completed the
tunnel, as NPC submits, would not be just, for it
would compound the gross unfairness already
caused to the owners by NPC's entering without
the intention of formally expropriating the land, and
without the prior knowledge and consent of the
Heirs of Macabangkit. NPC's entry denied
elementary due process of law to the owners since
then until the owners commenced the inverse
condemnation proceedings. The Court is more
concerned with the necessity to prevent NPC from
unjustly profiting from its deliberate acts of denying
due process of law to the owners. As a measure of
simple justice and ordinary fairness to them,
therefore, reckoning just compensation on the
value at the time the owners commenced these
inverse condemnation proceedings is entirely
warranted.
In National Power Corporation v. Court of Appeals,
42 a case that involved the similar construction of
an underground tunnel by NPC without the prior
consent and knowledge of the owners, and in which
we held that the basis in fixing just compensation
when the initiation of the action preceded the entry
into the property was the time of the filing of the
complaint, not the time of taking, 43 we pointed out
that there was no taking when the entry by NPC
was made "without intent to expropriate or was not
made under warrant or color of legal authority."
4.
Awards for rentals, moral damages, exemplary
damages, and attorney's fees are deleted
for insufficiency of factual and legal bases
The CA upheld the RTC's granting to the Heirs of
Macabangkit of rentals of P30,000.00/month "from
1979 up to July 1999 with 12% interest per annum"
by finding NPC guilty of bad faith in taking
possession of the land to construct the tunnel
without their knowledge and consent. TAcSCH
Granting rentals is legally and factually bereft of
justification, in light of the taking of the land being
already justly compensated. Conformably with the
ruling in Manila International Airport Authority v.
Rodriguez, 44 in which the award of interest was
held to render the grant of back rentals
unwarranted, we delete the award of back rentals
and in its place prescribe interest of 12% interest
per annum from November 21, 1997, the date of
the filing of the complaint, until the full liability is
paid by NPC. The imposition of interest of 12%
interest per annum follows a long line of pertinent
jurisprudence, 45 whereby the Court has fixed the
rate of interest on just compensation at 12% per
annum whenever the expropriator has not
immediately paid just compensation.
The RTC did not state any factual and legal
justifications for awarding to the Heirs of
Macabangkit moral and exemplary damages each
in the amount of P200,000.00. The awards just
appeared in the fallo of its decision. Neither did the
CA proffer any justifications for sustaining the RTC
on the awards. We consider the omissions of the
lower courts as pure legal error that we feel bound
The RTC based its fixing of just compensation

ostensibly on the prevailing market value at the
time of the filing of the complaint, instead of
reckoning from the time of the taking pursuant to
Section 3 (h) of Republic Act No. 6395. The CA did
not dwell on the reckoning time, possibly because
NPC did not assign that as an error on the part of
the RTC. ScaAET
We rule that the reckoning value is the value at the
time of the filing of the complaint, as the RTC
299
to correct even if NPC did not submit that for our

consideration. There was, to begin with, no factual
and legal bases mentioned for the awards. It is
never trite to remind that moral and exemplary
damages, not by any means liquidated or assessed
as a matter of routine, always require evidence that
establish the circumstances under which the
claimant is entitled to them. Moreover, the failure of
both the RTC and the CA to render the factual and
legal justifications for the moral and exemplary
damages in the body of their decisions immediately
demands the striking out of the awards for being in
violation of the fundamental rule that the decision
must clearly state the facts and the law on which it
is based. Without the factual and legal justifications,
the awards are exposed as the product of
conjecture and speculation, which have no place in
fair judicial adjudication.
We also reverse and set aside the decree of the
RTC for NPC to pay to the Heirs of Macabangkit
"the sum equivalent to 15% of the total amount
awarded, as attorney's fees, and to pay the cost."
The body of the decision did not state the factual
and legal reasons why NPC was liable for
attorney's fees. The terse statement found at the
end of the body of the RTC's decision, stating: ". . .
The contingent attorney's fee is hereby reduced
from 20% to only 15% of the total amount of the
claim that may be awarded to plaintiffs," without
more, did not indicate or explain why and how the
substantial liability of NPC for attorney's fees could
have arisen and been determined.
In assessing attorney's fees against NPC and in
favor of the respondents, the RTC casually
disregarded the fundamental distinction between
the two concepts of attorney's fees the ordinary
and the extraordinary. These concepts were aptly
distinguished in Traders Royal Bank Employees
Union-Independent v. NLRC, 46 thuswise:
There are two commonly accepted concepts of
attorney's fees, the so-called ordinary and
extraordinary. In its ordinary concept, an attorney's
fee is the reasonable compensation paid to a
lawyer by his client for the legal services he has
rendered to the latter. The basis of this
compensation is the fact of his employment by and
his agreement with the client. DHSCEc
among the liabilities of NPC converted the fees to

extraordinary. We have to disagree with the RTC
thereon, and we express our discomfort that the CA
did not do anything to excise the clearly erroneous
and unfounded grant.
An award of attorney's fees has always been the
exception rather than the rule. To start with,
attorney's fees are not awarded every time a party
prevails in a suit. 47 Nor should an adverse
decision ipso facto justify an award of attorney's
fees to the winning party. 48 The policy of the Court
is that no premium should be placed on the right to
litigate. 49 Too, such fees, as part of damages, are
assessed only in the instances specified in Art.
2208, Civil Code. 50 Indeed, attorney's fees are in
the nature of actual damages. 51 But even when a
claimant is compelled to litigate with third persons
or to incur expenses to protect his rights, attorney's
fees may still be withheld where no sufficient
showing of bad faith could be reflected in a party's
persistence in a suit other than an erroneous
conviction of the righteousness of his cause. 52
And, lastly, the trial court must make express
findings of fact and law that bring the suit within the
exception. What this demands is that the factual,
legal or equitable justifications for the award must
be set forth not only in the fallo but also in the text
of the decision, or else, the award should be thrown
out for being speculative and conjectural. 53
Sound policy dictates that even if the NPC failed to
raise the issue of attorney's fees, we are not
precluded from correcting the lower courts' patently
erroneous application of the law. 54 Indeed, the
Court, in supervising the lower courts, possesses
the ample authority to review legal matters like this
one even if not specifically raised or assigned as
error by the parties. aIETCA
5.
Attorney's fees under quantum meruit principle
are fixed at 10% of the judgment award
Based on the pending motions of Atty. Macarupung
Dibaratun and Atty. Manuel D. Ballelos to assert
their respective rights to attorney's fees, both
contending that they represented the Heirs of
Macabangkit in this case, a conflict would ensue
from the finality of the judgment against NPC.
A look at the history of the legal representation of
the Heirs of Macabangkit herein provides a helpful
predicate for resolving the conflict.
Atty. Dibaratun was the original counsel of the Heirs
of Macabangkit. When the appeal was submitted
for decision in the CA, 55 Atty. Ballelos filed his
entry of appearance, 56 and a motion for early
decision. 57 Atty. Ballelos subsequently filed also a
manifestation, 58 supplemental manifestation, 59
reply, 60 and ex parte motion reiterating the motion
for early decision. 61 It appears that a copy of the
CA's decision was furnished solely to Atty. Ballelos.
However, shortly before the rendition of the
decision, Atty. Dibaratun filed in the CA a motion to
register attorney's lien, 62 alleging that he had not
withdrawn his appearance and had not been aware
of the entry of appearance by Atty. Ballelos. A
similar motion was also received by the Court from
Atty. Dibaratun a few days after the petition for
In its extraordinary concept, an attorney's fee is an

indemnity for damages ordered by the court to be
paid by the losing party in a litigation. The basis of
this is any of the cases provided by law where such
award can be made, such as those authorized in
Article 2208, Civil Code,and is payable not to the
lawyer but to the client, unless they have agreed
that the award shall pertain to the lawyer as
additional compensation or as part thereof.
By referring to the award as contingency fees, and
reducing the award from 20% to 15%, the RTC was
really referring to a supposed agreement on
attorney's fees between the Heirs of Macabangkit
and their counsel. As such, the concept of
attorney's fees involved was the ordinary. Yet, the
inclusion of the attorney's fees in the judgment
300
review was filed. 63 Thus, on February 14, 2005,

64 the Court directed Atty. Dibaratun to enter his
appearance herein. He complied upon filing the
comment. 65
Amir Macabangkit confirmed Atty. Dibaratun's
representation through an ex parte manifestation
that he filed in his own behalf and on behalf of his
siblings Mongkoy and Putri. 66 Amir reiterated his
manifestation on March 6, 2006, 67 and further
imputed malpractice to Atty. Ballelos for having filed
an entry of appearance bearing Amir's forged
signature and for plagiarism, i.e., copying verbatim
the arguments contained in the pleadings
previously filed by Atty. Dibaratun. 68
On September 11, 2008, Atty. Ballelos submitted
two motions, to wit: (a) a manifestation and motion
authorizing a certain Abdulmajeed Djamla to
receive his attorney's fees equivalent of 15% of the
judgment award, 69 and (b) a motion to register his
attorney's lien that he claimed was contingent. 70
Both Atty. Dibaratun and Atty. Ballelos posited that
their entitlement to attorney's fees was contingent.
Yet, a contract for a contingent fees is an
agreement in writing by which the fees, usually a
fixed percentage of what may be recovered in the
action, are made to depend upon the success in
the effort to enforce or defend a supposed right.
Contingent fees depend upon an express contract,
without which the attorney can only recover on the
basis of quantum meruit. 71 With neither Atty.
Dibaratun nor Atty. Ballelos presenting a written
agreement bearing upon their supposed contingent
fees, the only way to determine their right to
appropriate attorney's fees is to apply the principle
of quantum meruit.
Quantum meruit literally meaning as much as he
deserves is used as basis for determining an
attorney's professional fees in the absence of an
express agreement. 72 The recovery of attorney's
fees on the basis of quantum meruit is a device that
prevents an unscrupulous client from running away
with the fruits of the legal services of counsel
without paying for it and also avoids unjust
enrichment on the part of the attorney himself. 73
An attorney must show that he is entitled to
reasonable compensation for the effort in pursuing
the client's cause, taking into account certain
factors in fixing the amount of legal fees. 74
Responsibility lists the guidelines for determining
the proper amount of attorney fees, to wit:
Rule 20.1 A lawyer shall be guided by the
following factors in determining his fees:
e) The probability of losing other employment as a

result of acceptance of the proffered case;
f) The customary charges for similar services and
the schedule of fees of the IBP chapter to which he
belongs;
g) The amount involved in the controversy and the
benefits resulting to the client from the service;
h) The contingency or certainty of compensation;
i) The character of the employment, whether
occasional or established; and ECDaTI
j) The professional standing of the lawyer.
In the event of a dispute as to the amount of fees
between the attorney and his client, and the
intervention of the courts is sought, the
determination requires that there be evidence to
prove the amount of fees and the extent and value
of the services rendered, taking into account the
facts determinative thereof. 75 Ordinarily, therefore,
the determination of the attorney's fees on quantum
meruit is remanded to the lower court for the
purpose. However, it will be just and equitable to
now assess and fix the attorney's fees of both
attorneys in order that the resolution of "a
comparatively simple controversy," as Justice
Regalado put it in Traders Royal Bank Employees
Union-Independent v. NLRC, 76 would not be
needlessly prolonged, by taking into due
consideration the accepted guidelines and so much
of the pertinent data as are extant in the records.
Atty. Dibaratun and Atty. Ballelos each claimed
attorney's fees equivalent to 15% of the principal
award of P113,532,500.00, which was the amount
granted by the RTC in its decision. Considering that
the attorney's fees will be defrayed by the Heirs of
Macabangkit out of their actual recovery from NPC,
giving to each of the two attorney's 15% of the
principal award as attorney's fees would be
excessive and unconscionable from the point of
view of the clients. Thus, the Court, which holds
and exercises the power to fix attorney's fees on a
quantum meruit basis in the absence of an express
written agreement between the attorney and the
client, now fixes attorney's fees at 10% of the
principal award of P113,532,500.00.
Whether it is Atty. Dibaratun or Atty. Ballelos, or
both, who should receive attorney's fees from the
Heirs of Macabangkit is a question that the Court
must next determine and settle by considering the
amount and quality of the work each performed and
the results each obtained. HcSDIE
Atty. Dibaratun, the attorney from the outset,
unquestionably carried the bulk of the legal
demands of the case. He diligently prepared and
timely filed in behalf of the Heirs of Macabangkit
every pleading and paper necessary in the full
resolution of the dispute, starting from the
complaint until the very last motion filed in this
Court. He consistently appeared during the trial,
and examined and cross-examined all the
a) The time spent and the extent of the services

rendered or required; IaAScD
b) The novelty and difficult of the questions
involved;
c) The important of the subject matter;
d) The skill demanded;
301
witnesses presented at that stage of the

proceedings. The nature, character, and substance
of each pleading and the motions he prepared for
the Heirs of Macabangkit indicated that he devoted
substantial time and energy in researching and
preparing the case for the trial. He even advanced
P250,000.00 out of his own pocket to defray
expenses from the time of the filing of the motion to
execute pending appeal until the case reached the
Court. 77 His representation of all the Heirs of
Macabangkit was not denied by any of them.
We note that Atty. Dibaratun possessed some
standing in the legal profession and in his local
community. He formerly served as a member of the
Board of Director of the Integrated Bar of the
Philippines (IBP), Lanao del Norte-Iligan City
Chapter, and was an IBP national awardee as Best
Legal Aid Committee Chairman. He taught at
Mindanao State University College of Law
Extension. He was a Municipal Mayor of Matungao,
Lanao del Norte, and was enthroned Sultan a
Gaus.
In contrast, not much about the character and
standing of Atty. Ballelos, as well as the nature and
quality of the legal services he rendered for the
Heirs of Macabangkit are in the records. The
motions he filed in the Court and in the CA lacked
enlightening research and were insignificant to the
success of the clients' cause. His legal service, if it
can be called that, manifested no depth or
assiduousness, judging from the quality of the
pleadings from him. His written submissions in the
case appeared either to have been lifted verbatim
from the pleadings previously filed by Atty.
Dibaratun, or to have been merely quoted from the
decisions and resolutions of the RTC and the CA.
Of the Heirs of Macabangkit, only Cebu, Batowaan, Sayana, Nasser, Manta, Mongkoy 78 and
Edgar gave their consent to Atty. Ballelos to appear
in their behalf in the CA, which he did despite Atty.
Dibaratun not having yet filed any withdrawal of his
appearance. The Court did not receive any notice
of appearance for the Heirs of Macabangkit from
Atty. Ballelos, but that capacity has meanwhile
become doubtful in the face of Amir's strong denial
of having retained him.
In fairness and justice, the Court accords full
recognition to Atty. Dibaratun as the counsel de
parte of the Heirs of Macabangkit who discharged
his responsibility in the prosecution of the clients'
cause to its successful end. It is he, not Atty.
Ballelos, who was entitled to the full amount of
attorney's fees that the clients ought to pay to their
attorney. Given the amount and quality of his legal
work, his diligence and the time he expended in
ensuring the success of his prosecution of the
clients' cause, he deserves the recognition,
notwithstanding that some of the clients might
appear to have retained Atty. Ballelos after the
rendition of a favorable judgment. 79
Atty. Ballelos may claim only from Cebu, Batowaan, Sayana, Nasser, Manta and Edgar, the only
parties who engaged him. The Court considers his
work in the case as very minimal. His
compensation under the quantum meruit principle
is fixed at P5,000.00, and only the Heirs of

Macabangkit earlier named are liable to him.
EDHTAI
WHEREFORE, the Court AFFIRMS the decision
promulgated on October 5, 2004 by the Court of
Appeals, subject to the following MODIFICATIONS,
to wit:
(a) Interest at the rate of 12% per annum is
IMPOSED
on
the
principal
amount
of
P113,532,500.00 as just compensation, reckoned
from the filing of the complaint on November 21,
1997 until the full liability is paid;
(b) The awards of P30,000.00 as rental fee,
P200,000.00 as moral damages, and P200,000.00
as exemplary damages are DELETED; and
(c) The award of 15% attorney's fees decreed to be
paid by National Power Corporation to the Heirs of
Macabangkit is DELETED. aEcADH
The Court PARTLY GRANTS the motion to register
attorney's lien filed by Atty. Macarupung Dibaratun,
and FIXES Atty. Dibaratun's attorney's fees on the
basis of quantum meruit at 10% of the principal
award of P113,532,500.00.
The motion to register attorney's lien of Atty.
Manuel D. Ballelos is PARTLY GRANTED, and Atty.
Ballelos is DECLARED ENTITLED TO RECOVER
from Cebu, Batowa-an, Sayana, Nasser, Manta and
Edgar, all surnamed Macabangkit, the amount of
P5,000.00 as attorney's fees on the basis of
quantum meruit.
Costs of suit to be paid by the petitioner.
SO ORDERED.
Corona, C.J., Leonardo-de Castro, Del Castillo and
Villarama, Jr., JJ., concur.
||| (National Power Corp. v. Heirs of Sangkay, G.R.
No. 165828, [August 24, 2011], 671 PHIL 569-609)
5. REPUBLIC VS.
SCRA 809 (2013)
SAMSON-TATAD
696
FIRST DIVISION
[G.R. No. 187677. April 17, 2013.]
REPUBLIC OF THE PHILIPPINES, represented by
the DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS (DPWH), petitioner, vs. HON. ROSA
SAMSON-TATAD, as Presiding Judge of the
Regional Trial Court, Branch 105, Quezon City, and
SPOUSES WILLIAM AND REBECCA GENATO,
respondents.
DECISION
SERENO, C.J p:
This is an appeal via a Petition for Review on
Certiorari 1 dated 19 June 2009 assailing the
Decision 2 and Resolution 3 of the Court of Appeals
(CA) in C.A. G.R. SP No. 93227 which affirmed the
Orders 4 of the Regional Trial Court (RTC), Branch
105, Quezon City in Civil Case No. Q-01-44595.
302
The RTC barred petitioner from presenting

evidence to prove its claim of ownership over the
subject property, as the presentation thereof would
constitute a collateral attack on private
respondents' title.
the release to respondents the amount of eighteen

million four hundred thousand pesos (P18,400,000)
deposited in the bank, equivalent to the current
zonal valuation of the land, and declared the
property as the subject of conflicting claims.
The antecedent facts are as follows:
While petitioner was presenting evidence to show

that the subject property actually belonged to the
Government, private respondents interposed
objections saying that petitioner was barred from
presenting the evidence, as it constituted a
collateral attack on the validity of their TCT No. RT11603 (383648). The RTC then required the parties
to submit their respective Memoranda.
On 13 July 2001, petitioner Republic of the

Philippines, represented by the Department of
Public Works and Highways (DPWH), filed a
Complaint against several defendants, including
private respondents, for the expropriation of several
parcels of land affected by the construction of the
EDSA-Quezon Avenue Flyover. 5 Private
respondents, Spouses William and Rebecca
Genato, are the registered owners of a piece of
land ("subject property") covered by Transfer
Certificate of Title (TCT) No. RT-11603 (383648) 6
and having an area of 460 square meters.
Upon receipt of the Memoranda, the trial court

issued on 12 July 2005 an Order 11 as follows:
WHEREFORE, premises considered, the Court
finds that the issue of the validity of the TCT No.
11603 (383648) can only be raised in an action
expressly instituted for that purpose and not in this
instant proceeding. Accordingly, plaintiff is barred
from presenting evidence as they [sic] constitute
collateral attack on the validity of the title to the
subject lot in violation of Sec. 48 of P.D. 1529.
During the pendency of the proceedings, petitioner

received a letter dated 14 June 2002 from Engr.
Patrick B. Gatan, Project Manager IV of the DPWHNCR, reporting that the subject property was
"government land and that the transfer certificate of
title of the said claimant [respondent] . . . is of
dubious origin and of fabrication as it encroached
or overlapped on a government property." 7 As a
result, petitioner filed an Amended Complaint on 24
June 2002, 8 seeking to limit the coverage of the
proceedings to an area conforming to the findings
of the DPWH:
On 4 August 2005, petitioner seasonably filed a

Motion for Reconsideration, 12 but the motion was
denied by the RTC in an Order dated 17 November
2005. 13
On 4 January 2006, private respondents filed a
Motion for the payment of just compensation
amounting to twenty million seven hundred
thousand pesos (P20,700,000) and for the release
of eighteen million four hundred thousand pesos
(P18,400,000) deposited in the Land Bank-South
Harbor Branch as partial payment. 14 This Motion
remains pending in the RTC to date.
4. To accomplish said project, which is to be

undertaken by the Department of Public Works and
Highways [DPWH], it is necessary and urgent for
plaintiff to acquire in fee simple portions of the
following parcels of land belonging to, occupied,
possessed, and/or the ownership of which are
being claimed by the defendants, to wit:
On 9 February 2006, petitioner filed with the CA a

Petition for Certiorari with Prayer for the Issuance
of a Temporary Restraining Order and/or Writ of
Preliminary Injunction. 15
xxx xxx xxx

[c] Defendants William O. Genato and Rebecca G.
Genato.
The appellate court ruled that since the subject

property was covered by a Torrens title,
Presidential Decree No. 1529, or the Property
Registration Decree (P.D. 1529), necessarily finds
significance. Thus, it held that the RTC rightly
applied Sec. 48. Accordingly, the CA issued its 29
September 2008 Decision, 16 the dispositive
portion of which reads:
xxx xxx xxx

5. The portion of the above properties that are
affected by the project and shaded green in the
sketch plan hereto attached and made integral part
hereof as Annex E, consisting of an area of: . . . [c]
460 square meters of the aforedescribed property
registered in the name of defendants spouses
William and Rebecca Genato; . . . . (Emphasis in
the original)
WHEREFORE, the Petition for Certiorari is

DISMISSED. The prayer for the issuance of a Writ
of Preliminary Injunction is accordingly DENIED.
On 18 July 2002, petitioner filed a Manifestation

and Motion 9 to have the subject property "declared
or considered of uncertain ownership or subject to
conflicting claims."
On 29 October 2008, petitioner filed a Motion for

Reconsideration, 17 but the motion was also
denied in a Resolution dated 27 April 2009. 18
In an Order dated 10 December 2002, 10 the RTC

admitted petitioner's Amended Complaint, deferred
Hence, the instant Petition.

303
A Comment 19 on the Petition was filed by private

respondents on 1 September 2009, and a Reply 20
thereto by petitioner on 27 January 2010.
It is their contention that by allowing petitioner to

present adversarial evidence, the court is in effect
allowing respondents' Torrens title to be collaterally
attacked an action prohibited by P.D. 1529.
ISSUE
From the foregoing, the sole issue submitted for
resolution before this Court is whether petitioner
may be barred from presenting evidence to assail
the validity of respondents' title under TCT No. RT11603 (383648).
We rule that petitioner may be allowed to present

evidence to assert its ownership over the subject
property, but for the sole purpose of determining
who is entitled to just compensation.
THE COURT'S RULING

Petitioner argues that under Section 9, Rule 67 of
the Rules of Court, if the ownership of a property to
be expropriated is uncertain, the court in the same
expropriation proceeding is also given authority to
make a proper adjudication of the matter. Section 9
of Rule 67 reads:
I
Proper interpretation of Section 9, Rule 67
Proceeding from the principle of jus regalia, the
right to eminent domain has always been
considered as a fundamental state power that is
inseparable from sovereignty. 23 It is described as
the State's inherent power that need not be granted
even by the Constitution, 24 and as the
government's right to appropriate, in the nature of
compulsory sale to the State, private property for
public use or purpose. 25
SECTION 9. Uncertain Ownership. Conflicting

Claims. If the ownership of the property taken is
uncertain, or there are conflicting claims to any part
thereof, the court may order any sum or sums
awarded as compensation for the property to be
paid to the clerk of the court for the benefit of the
persons adjudged in the same proceeding to be
entitled thereto. But the judgment shall require the
payment of the sum or sums awarded to either the
defendant or the clerk before the plaintiff can enter
upon the property, or retain it for the public use or
purpose if entry has already been made.
Expropriation, or the exercise of the State's right to

eminent domain, is proscribed by the restraints of
public use and just compensation. 26 It is governed
by Rule 67 of the Rules of Court, which presents
procedural guidelines for the court to ensure that
due process is observed and just compensation
rightly paid to the private owners.
Indeed, this Court first had the occasion to interpret
Section 9, Rule 67 in the case of Republic. In
addressing the issue of "whether or not the court
that hears the expropriation case has also
jurisdiction to determine, in the same proceeding,
the issue of ownership of the land sought to be
condemned," the Court answered in the affirmative:
This view is allegedly supported by Republic v.

Court of First Instance of Pampanga, presided
formerly by Judge L. Pasicolan 21 (Republic) in
which the trial court hearing the expropriation
proceeding was also allowed to resolve the issue of
ownership.
Petitioner further argues that the original Complaint
was amended "precisely to reflect the fact that
herein private respondents, albeit ostensibly
appearing as registered owners, are to be
considered as mere claimants of one of the
properties subject of the expropriation." This is the
reason why the RTC issued an Order declaring the
property subject of conflicting claims.
The sole issue in this case, i.e., whether or not the

court that hears the expropriation case has also
jurisdiction to determine, in the same proceeding,
the issue of ownership of the land sought to be
condemned, must be resolved in the affirmative.
That the court is empowered to entertain the
conflicting claims of ownership of the condemned
or sought to be condemned property and adjudge
the rightful owner thereof, in the same expropriation
case, is evident from Section 9 of the Revised Rule
69, which provides:
Moreover, this being an in rem proceeding, "plaintiff

Republic of the Philippines seeks the relief, both in
the original and amended complaints, to transfer to
plaintiff the titles to said parcels of land together
with their improvements free from all liens and
encumbrances. For this particular purpose, the
expropriation suit is essentially a direct
proceeding." 22
SEC. 9. Uncertain ownership. Conflicting claims.

If the ownership of the property taken is uncertain,
or there are conflicting claims to any part thereof,
the court may order any sum or sums awarded as
compensation for the property to be paid to the
clerk of court for the benefit of the persons
adjudged in the same proceeding to be entitled
thereto. But the judgment shall require the payment
of the sum or sums awarded to either the defendant
or the clerk before the plaintiff can enter upon the
property, or retain it for the public use or purpose if
entry has already been made.
Private respondents, on the other hand, invoke

Section 48 of P.D. 1529, viz.:
SECTION 48. Certificate Not Subject to Collateral
Attack. A certificate of title shall not be subject to
collateral attack. It cannot be altered, modified, or
cancelled except in a direct proceeding in
accordance with law.
304
In fact, the existence of doubt or obscurity in the

title of the person or persons claiming ownership of
the properties to be expropriated would not
preclude the commencement of the action nor
prevent the court from assuming jurisdiction
thereof. The Rules merely require, in such
eventuality, that the entity exercising the right of
eminent domain should state in the complaint that
the true ownership of the property cannot be
ascertained or specified with accuracy. 27
as final and binding on the parties. By filing an

action for expropriation, the condemnor (petitioner),
merely serves notice that it is taking title to and
possession of the property, and that the defendant
is asserting title to or interest in the property, not to
prove a right to possession, but to prove a right to
compensation for the taking. 30
If at all, this situation is akin to ejectment cases in
which a court is temporarily authorized to determine
ownership, if only to determine who is entitled to
possession. This is not conclusive, and it remains
open to challenge through proper actions. 31 The
consequences of Sec. 9, Rule 67 cannot be
avoided, as they are due to the intimate relationship
of the issue of ownership with the claim for the
expropriation payment. 32
We arrived at the same conclusion in Republic v.

Rural Bank of Kabacan, Inc., 28 in which we held
thus:
The trial court should have been guided by Rule 67,
Section 9 of the 1997 Rules of Court, which
provides thus:
II
Inapplicability of Section 48, P.D. 1529
Verily, our interpretation of Sec. 9, Rule 67 does not
run counter to Section 48 of P.D. 1529. Under Sec.
48, collateral attacks on a Torrens title are
prohibited. We have explained the concept in Oo
v. Lim, 33 to wit:
SEC. 9. Uncertain ownership; conflicting claims.

If the ownership of the property taken is uncertain,
or there are conflicting claims to any part thereof,
the court may order any sum or sums awarded as
compensation for the property to be paid to the
court for the benefit of the person adjudged in the
same proceeding to be entitled thereto. But the
judgment shall require the payment of the sum or
sums awarded to either the defendant or the court
before the plaintiff can enter upon the property, or
retain it for the public use or purpose if entry has
already been made.
An action or proceeding is deemed an attack on a

title when its objective is to nullify the title, thereby
challenging the judgment pursuant to which the title
was decreed. The attack is direct when the
objective is to annul or set aside such judgment, or
enjoin its enforcement. On the other hand, the
attack is indirect or collateral when, in an action to
obtain a different relief, an attack on the judgment
is nevertheless made as an incident thereof.
Hence, the appellate court erred in affirming the

trial court's Order to award payment of just
compensation to the defendants-intervenors. There
is doubt as to the real owner of Lot No. 3080.
Despite the fact that the lot was covered by TCT
No. T-61963 and was registered under its name,
the Rural Bank of Kabacan manifested that the
owner of the lot was no longer the bank, but the
defendants-intervenors; however, it presented no
proof as to the conveyance thereof. In this regard,
we deem it proper to remand this case to the trial
court for the reception of evidence to establish the
present owner of Lot No. 3080 who will be entitled
to receive the payment of just compensation.
(Emphases supplied)
In several instances, we have considered an

Answer praying for the cancellation of the plaintiff's
Torrens title as a form of a collateral attack. 34 We
have afforded the similar treatment in a petition
questioning the validity of a deed of sale for a
registered land, 35 and in a reformation of a deed
of sale to include areas registered under the name
of another party. 36 But a resolution on the issue of
ownership in a partition case was deemed neither
to be a direct or collateral attack, for "until and
unless this issue of co-ownership is definitely and
finally resolved, it would be premature to effect a
partition of the disputed properties." 37
However, the authority to resolve ownership should

be taken in the proper context. The discussion in
Republic was anchored on the question of who
among the respondents claiming ownership of the
property must be indemnified by the Government:
Here, the attempt of petitioner to present evidence

cannot be characterized as an "attack." It must be
emphasized that the objective of the case is to
appropriate private property, and the contest on
private respondents' title arose only as an incident
to the issue of whom should be rightly
compensated.
Now, to determine the person who is to be

indemnified for the expropriation of Lot 6, Block 6,
Psd-2017, the court taking cognizance of the
expropriation must necessarily determine if the sale
to the Punzalan spouses by Antonio Feliciano is
valid or not. For if valid, said spouses must be the
ones to be paid by the condemnor; but if invalid, the
money will be paid to someone else. . . . . 29
Contrary to petitioner's allegations, the Complaint

and Amended Complaint cannot also be considered
as a direct attack. The amendment merely limited
the coverage of the expropriation proceedings to
the uncontested portion of the subject property. The
RTC's Order declaring the property as subject of
conflicting claims is a recognition that there are
Thus, such findings of ownership in an

expropriation proceeding should not be construed
305
varying claimants to the sums to be awarded as

just compensation. This serves as an authority for
the court to conduct a limited inquiry on the
property's ownership.
Ordinance No. Sp-181, s-94, was enacted on April

12, 1994. 7
On March 18, 1997, pursuant to Section 19 8 of
Republic Act No. 7160 (RA 7160), otherwise known
as the "Local Government Code of 1991," the City
deposited the amount of P241,090.00 with the
Office of the Clerk of Court, representing 15% of
the fair market value of the subject property based
on its tax declaration. 9 TcSHaD
WHEREFORE, the Court GRANTS the Petition for

Review on Certiorari and the prayer for a Writ of
Preliminary Injunction. The assailed Decision and
Resolution of the Court of Appeals in CA-G.R. SP
No. 93227, as well as the Decision of the Regional
Trial Court, Branch 105, Quezon City in Civil Case
No. Q-01-44595, are hereby REVERSED and SET
ASIDE. This case is REMANDED to the RTC to
hear the issue of ownership for the purpose of just
compensation.
During the preliminary conference on November 8,

2006, Sy did not question the City's right to
expropriate the subject property. Thus, only the
amount of just compensation remained at issue. 10
SO ORDERED.
On July 6, 2006, the RTC appointed Edgardo

Ostaco (Commissioner Ostaco), Engr. Victor
Salinas (Commissioner Salinas) and Atty. Carlo
Alcantara
(Commissioner
Alcantara)
as
commissioners to determine the proper amount of
just compensation to be paid by the City for the
subject property. Subsequently, Commissioners
Ostaco and Alcantara, in a Report dated February
11, 2008, recommended the payment of P5,500.00
per sq. m., to be computed from the date of the
filing of the expropriation complaint, or on
November 7, 1996. On the other hand,
Commissioner Salinas filed a separate Report
dated March 7, 2008, recommending the higher
amount of P13,500.00 per sq. m. as just
compensation. 11
Leonardo-de Castro, Bersamin, Villarama, Jr. and

Reyes, JJ., concur.
||| (Republic v. Samson-Tatad, G.R. No. 187677,
[April 17, 2013], 709 PHIL 771-783)
6. SY VS. LG OF QUEZON CITY 697 SCRA
621 (2013)
SECOND DIVISION
[G.R. No. 202690. June 5, 2013.]
HENRY
L.
SY,
petitioner,
vs.
LOCAL
GOVERNMENT OF QUEZON CITY, respondent.
The RTC Ruling

In the Order dated August 22, 2008, 12 the RTC,
citing the principle that just compensation must be
fair not only to the owner but to the expropriator as
well, adopted the findings of Commissioners
Ostaco and Alcantara and thus, held that the just
compensation for the subject property should be
set at P5,500.00 per sq. m. 13 Further, it found no
basis for the award of damages and back rentals in
favor of Sy. 14 Finally, while legal interest was not
claimed, for equity considerations, it awarded six
percent (6%) legal interest, computed from
November 7, 1996 until full payment of just
compensation. 15
DECISION
PERLAS-BERNABE, J p:
Assailed in this petition for review on certiorari 1 are
the January 20, 2012 Decision 2 and July 16, 2012
Resolution 3 of the Court of Appeals (CA) in CAG.R. CV No. 91964 which affirmed with
modification the August 22, 2008 Order 4 of the
Regional Trial Court of Quezon City, Branch 80
(RTC) in Civil Case No. Q-96-29352, ordering
respondent Local Government of Quezon City (the
City) to pay petitioner Henry L. Sy (Sy) just
compensation set at P5,500.00 per square meter
(sq. m.), including P200,000.00 as exemplary
damages and attorney's fees equivalent to one
percent (1%) of the total amount due.
Dissatisfied, Sy filed an appeal with the CA. 16

The CA Ruling
In the Decision dated January 20, 2012, 17 the CA
affirmed the RTC's ruling but modified the same,
ordering the City to pay Sy the amount of
P200,000.00 as exemplary damages and attorney's
fees equivalent to one percent (1%) of the total
amount due. ADcSHC
The Facts
On November 7, 1996, the City, through then
Mayor Ismael Mathay, Jr., filed a complaint for
expropriation with the RTC in order to acquire a
1,000 sq. m. parcel of land, owned and registered
under the name of Sy (subject property), 5 which
was intended to be used as a site for a multipurpose barangay hall, day-care center, playground
and community activity center for the benefit of the
residents of Barangay Balingasa, Balintawak,
Quezon City. 6 The requisite ordinance to
undertake the aforesaid expropriation namely,
It found the appraisal of Commissioners Ostaco

and Alcantara for the subject property to be more
believable than the P13,000.00 per sq. m. valuation
made by independent appraisers Cuervo and Asian
Appraisers in 1995 and 1996, respectively,
considering that it was arrived at after taking into
account: (a) the fair market value of the subject
306
property in the amount of P4,000.00 per sq. m.

based on the September 4, 1996 recommendation
of the City Appraisal Committee; 18 (b) the market
value of the subject lot in the amount of P2,000.00
per sq. m. based on several sworn statements
made by Sy himself; 19 and (c) Sy's own tax
declaration for 1996, 20 stating that the subject
property has a total market value of P2,272,050.00.
Accordingly, it held that the fair market value of
P5,500.00 per sq. m., or P5,500,000.00 in total, for
the 1,000 sq. m. subject property arrived at by
Commissioners Ostaco and Alcantara was more
than fair and reasonable. 21
on February 10, 2012. 30 However, Sy filed his

motion for reconsideration (subject motion) a day
late, or on February 13, 2012, 31 which thus,
renders the CA decision final and executory. 32
In this regard, it is apt to mention that Sy's counsel,
Atty. Tranquilino F. Meris (Atty. Meris), claims that
his secretary's inadvertent placing of the date
January 27, 2012, instead of January 26, 2012, on
the Notice of Decision 33 constitutes excusable
negligence which should therefore, justify a
relaxation of the rules. acAIES
The assertion is untenable.
The CA also denied Sy's assertion that he should

be entitled to damages on account of the purported
shelving of his housing project, finding no sufficient
evidence to support the same. Likewise, it
observed that the expropriation would not leave the
rest of Sy's properties useless as they would still be
accessible through a certain Lot 8 based on the
Property Identification Map. 22
A claim of excusable negligence does not loosely

warrant a relaxation of the rules. Verily, the party
invoking such should be able to show that the
procedural oversight or lapse is attended by a
genuine
miscalculation
or
unforeseen
fortuitousness which ordinary prudence could not
have guarded against so as to justify the relief
sought. 34 The standard of care required is that
which an ordinarily prudent man bestows upon his
important business. 35 In this accord, the duty rests
on every counsel to see to adopt and strictly
maintain a system that will efficiently take into
account all court notices sent to him. 36
Nonetheless, citing the case of Manila International

Airport Authority v. Rodriguez (MIAA), 23 it awarded
exemplary damages in the amount of P200,000.00
and attorney's fees equivalent to one percent (1%)
of the amount due because of the City's taking of
the subject property without even initiating
expropriation proceedings. 24 It, however, denied
Sy's claim of back rentals considering that the RTC
had already granted legal interest in his favor. 25
Applying these principles, the Court cannot excuse

Atty. Meris' misstep based on his proffered reasons.
Evidently, the erroneous stamping of the Notice of
Decision could have been averted if only he had
instituted a credible filing system in his office to
account for oversights such as that committed by
his secretary. Indeed, ordinary prudence could
have prevented such mistake.
Aggrieved, Sy moved for reconsideration which

was denied in the Resolution dated July 16, 2012
26 for being filed out of time. 27 The City also filed
a motion for reconsideration which was equally
denied for lack of merit. 28 cIADTC
Be that as it may, procedural rules may,

nonetheless, be relaxed for the most persuasive of
reasons in order to relieve a litigant of an injustice
not commensurate with the degree of his
thoughtlessness in not complying with the
procedure prescribed. 37 Corollarily, the rule, which
states that the mistakes of counsel bind the client,
may not be strictly followed where observance of it
would result in the outright deprivation of the
client's liberty or property, or where the interest of
justice so requires. 38
Hence, this petition.

Issues Before the Court
The present controversy revolves around the issue
of whether the CA correctly: (a) dismissed Sy's
motion for reconsideration for being filed out of
time; (b) upheld the amount of just compensation
as determined by the RTC as well as its grant of six
percent (6%) legal interest; and (c) awarded
exemplary damages and attorney's fees.
The Court's Ruling
The petition is partly meritorious.
As applied in this case, the Court finds that the

procedural consequence of the above-discussed
one-day delay in the filing of the subject motion
which, as a matter of course, should render the
CA's January 20, 2012 Decision already final and
executory and hence, bar the instant petition is
incommensurate to the injustice which Sy may
suffer. This is in line with the Court's observation
that the amount of just compensation, the rate of
legal interest, as well as the time of its accrual,
were incorrectly adjudged by both the RTC and the
CA, contrary to existing jurisprudence. In this
respect, the Court deems it proper to relax the rules
of procedure and thus, proceed to resolve these
substantive issues. TcEaAS
A. Failure to seasonably move for

reconsideration; excusable
negligence; relaxation of procedural
rules
At the outset, the Court observes that Sy's motion
for reconsideration was filed out of time and thus,
was properly dismissed by the CA. Records show
that, as per the Postmaster's Certification, the CA's
January 20, 2012 Decision was received by Sy on
January 26, 2012 and as such, any motion for
reconsideration therefrom should have been filed
not later than fifteen (15) days from receipt, 29 or
307
the time of the taking of the subject property in

1986 and not from the filing of the complaint for
expropriation on November 7, 1996.
B. Rate of legal interest and time

of accrual
Based on a judicious review of the records and
application of jurisprudential rulings, the Court
holds that the correct rate of legal interest to be
applied is twelve percent (12%) and not six percent
(6%) per annum, owing to the nature of the City's
obligation as an effective forbearance.
Records show that the City itself admitted in its

Appellee's Brief filed before the CA that as early as
1986, "a burden was already imposed upon the
owner of the [subject] property . . ., considering that
the expropriated property was already being used
as Barangay day care and office." 42 Thus, the
property was actually taken during that time and
from thereon, legal interest should have already
accrued. In this light, the Court has held that: 43
In the case of Republic v. CA, 39 the Court ruled

that the debt incurred by the government on
account of the taking of the property subject of an
expropriation constitutes an effective forbearance
which therefore, warrants the application of the
12% legal interest rate, viz.:
. . . [T]he final compensation must include interests

on its just value to be computed from the time the
property is taken to the time when compensation is
actually paid or deposited with the court[.] . . .
(Emphasis supplied) CTSDAI
The constitutional limitation of "just compensation"

is considered to be the sum equivalent to the
market value of the property, broadly described to
be the price fixed by the seller in open market in the
usual and ordinary course of legal action and
competition or the fair value of the property as
between one who receives, and one who desires to
sell, it fixed at the time of the actual taking by the
government. Thus, if property is taken for public
use before compensation is deposited with the
court having jurisdiction over the case, the final
compensation must include interests on its just
value to be computed from the time the property is
taken to the time when compensation is actually
paid or deposited with the court. In fine, between
the taking of the property and the actual payment,
legal interests accrue in order to place the owner in
a position as good as (but not better than) the
position he was in before the taking occurred.
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." 44
Notably, the lack of proper authorization, i.e.,
resolution to effect expropriation, 45 did not affect
the character of the City's taking of the subject
property in 1986 as the CA, in its January 20, 2012
Decision, suggests. Case law dictates that there is
"taking" when the owner is actually deprived or
dispossessed of his property; when there is a
practical destruction or a material impairment of the
value of his property or when he is deprived of the
ordinary use thereof. 46 Therefore, notwithstanding
the lack of proper authorization, the legal character
of the City's action as one of "taking" did not
change. In this relation, the CA noted that the City
enacted Ordinance No. Sp-181, s-94, only on April
12, 1994 and filed its expropriation complaint on
November 7, 1996. However, as it previously
admitted, it already commenced with the taking of
the subject property as early as 1986. Accordingly,
interest must run from such time.
The Bulacan trial court, in its 1979 decision, was

correct in imposing interests on the zonal value of
the property to be computed from the time
petitioner instituted condemnation proceedings and
"took" the property in September 1969. This
allowance of interest on the amount found to be the
value of the property as of the time of the taking
computed, being an effective forbearance, at 12%
per annum should help eliminate the issue of the
constant fluctuation and inflation of the value of the
currency over time. . . . (Emphasis and
underscoring supplied) CSEHIa
This irregularity does not, however, proceed without

any consequence. As correctly observed by the CA,
citing as basis the MIAA case, exemplary damages
and attorney's fees should be awarded to the
landowner if the government takes possession of
the property for a prolonged period of time without
properly initiating expropriation proceedings. The
MIAA ruling was applied in the more recent case of
City of Iloilo v. Judge Lolita Contreras-Besana, 47
wherein the Court said:
In similar regard, the Court, in Land Bank of the

Philippines v. Rivera, 40 pronounced that:
In many cases decided by this Court, 41 it has
been repeated time and again that the award of
12% interest is imposed in the nature of damages
for delay in payment which in effect makes the
obligation on the part of the government one of
forbearance. This is to ensure prompt payment of
the value of the land and limit the opportunity loss
of the owner that can drag from days to decades.
(Emphasis and underscoring supplied)
We stress, however, that the City of Iloilo should be

held liable for damages for taking private
respondent's property without payment of just
compensation. In Manila International Airport
Authority v. Rodriguez, the Court held that a
government agency's prolonged occupation of
private property without the benefit of expropriation
As to the reckoning point on which the legal interest

should accrue, the same should be computed from
308
proceedings undoubtedly entitled the landowner to

damages: TCEaDI
of P200,000.00 and attorney's fees equivalent to

one percent (1%) of the amount due, after final
determination of the amount of just compensation.
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 . . . .
SO ORDERED.
Brion, * Del Castillo, Perez and Leonen, ** JJ.,
concur.
||| (Sy v. Local Government of Quezon City, G.R.
No. 202690, [June 5, 2013], 710 PHIL 549-563)
7. SEC. OF DPWH VS. TECSON 700 SCRA
243 (2013)
xxx xxx xxx

THIRD DIVISION
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. . . . .
(Emphasis and underscoring supplied; citations
omitted) HEcTAI
[G.R. No. 179334. July 1, 2013.]

SECRETARY OF THE DEPARTMENT OF PUBLIC
WORKS AND HIGHWAYS and DISTRICT
ENGINEER CELESTINO R. CONTRERAS,
petitioners, vs. SPOUSES HERACLEO and
RAMONA TECSON, respondents.
DECISION
PERALTA, J p:
All told, the Court finds the grant of exemplary

damages in the amount of P200,000.00 as well as
attorney's fees equivalent to 1% of the total amount
due amply justified, square as it is with existing
jurisprudence.
This is a petition for review on certiorari under Rule

45 of the Rules of Court, assailing the Court of
Appeals (CA) Decision 1 dated July 31, 2007 in
CA-G.R. CV No. 77997. The assailed decision
affirmed with modification the Regional Trial Court
(RTC) 2 Decision 3 dated March 22, 2002 in Civil
Case No. 208-M-95.
C. Amount of just compensation

Finally, the Court cannot sustain the amount of
P5,500.00/sq. m. as just compensation which was
set by the RTC and upheld by the CA. The said
valuation was actually arrived at after considering:
(a) the September 4, 1996 recommendation of the
City Appraisal Committee; (b) several sworn
statements made by Sy himself; and (c) Sy's own
tax declaration for 1996. 48 It is well-settled that the
amount of just compensation is to be ascertained
as of the time of the taking. 49 However, the abovestated documents do not reflect the value of the
subject property at the time of its taking in 1986 but
rather, its valuation in 1996. Consequently, the case
must be remanded to the RTC in order to properly
determine the amount of just compensation during
such time the subject property was actually taken.
The case stemmed from the following factual and

procedural antecedents:
Respondent spouses Heracleo and Ramona
Tecson (respondents) are co-owners of a parcel of
land with an area of 7,268 square meters located in
San Pablo, Malolos, Bulacan and covered by
Transfer Certificate of Title (TCT) No. T-43006 4 of
the Register of Deeds of Bulacan. Said parcel of
land was among the properties taken by the
government sometime in 1940 without the owners'
consent and without the necessary expropriation
proceedings and used for the construction of the
MacArthur Highway. 5
WHEREFORE, the petition is PARTLY GRANTED.

The January 20, 2012 Decision and July 16, 2012
Resolution of the Court of Appeals in CA-G.R. CV
No. 91964 are hereby SET ASIDE. Accordingly, the
case is REMANDED to the trial court for the proper
determination of the amount of just compensation
in accordance with this Decision. To forestall any
further delay in the resolution of this case, the trial
court is hereby ordered to fix the just compensation
for petitioner Henry L. Sy's property with dispatch
and report to the Court its compliance. Finally,
respondent Local Government of Quezon City is
ordered to PAY exemplary damages in the amount
In a letter 6 dated December 15, 1994, respondents

demanded the payment of the fair market value of
the subject parcel of land. Petitioner Celestino R.
Contreras (petitioner Contreras), then District
Engineer of the First Bulacan Engineering District
of petitioner Department of Public Works and
Highways (DPWH), offered to pay the subject land
at the rate of P0.70 per square meter per
Resolution of the Provincial Appraisal Committee
(PAC) of Bulacan. 7 Unsatisfied with the offer,
respondents demanded for the return of their
property or the payment of compensation at the
current fair market value. 8 TcHCDI
309
SO ORDERED. 20
As their demand remained unheeded, respondents
filed a Complaint 9 for recovery of possession with
damages against petitioners, praying that they be
restored to the possession of the subject parcel of
land and that they be paid attorney's fees. 10
Respondents claimed that the subject parcel of
land was assessed at P2,543,800.00. 11
On appeal, the CA affirmed the above decision with

the modification that the just compensation stated
above should earn interest of six percent (6%) per
annum computed from the filing of the action on
March 17, 1995 until full payment. 21
In its appeal before the CA, petitioners raised the
issues of prescription and laches, which the CA
brushed aside on two grounds: first, that the issue
had already been raised by petitioners when the
case was elevated before the CA in CA-G.R. CV
No. 51454. Although it was not squarely ruled upon
by the appellate court as it did not find any reason
to delve further on such issues, petitioners did not
assail said decision barring them now from raising
exactly the same issues; and second, the issues
proper for resolution had been laid down in the pretrial order which did not include the issues of
prescription and laches. Thus, the same can no
longer be further considered. As to the propriety of
the property's valuation as determined by the PAC
and adopted by the RTC, while recognizing the rule
that the just compensation should be the
reasonable value at the time of taking which is
1940, the CA found it necessary to deviate from the
general rule. It opined that it would be obviously
unjust and inequitable if respondents would be
compensated based on the value of the property in
1940 which is P0.70 per sq m, but the
compensation would be paid only today. Thus, the
appellate court found it just to award compensation
based on the value of the property at the time of
payment. It, therefore, adopted the RTC's
determination of just compensation of P1,500.00
per sq m as recommended by the PAC. The CA
further ordered the payment of interest at the rate
of six percent (6%) per annum reckoned from the
time of taking, which is the filing of the complaint on
March 17, 1995. IAaCST
Instead of filing their Answer, petitioners moved for

the dismissal of the complaint on the following
grounds: (1) that the suit is against the State which
may not be sued without its consent; (2) that the
case has already prescribed; (3) that respondents
have no cause of action for failure to exhaust
administrative remedies; and (4) if respondents are
entitled to compensation, they should be paid only
the value of the property in 1940 or 1941. 12
On June 28, 1995, the RTC issued an Order 13
granting respondents' motion to dismiss based on
the doctrine of state immunity from suit. As
respondents' claim includes the recovery of
damages, there is no doubt that the suit is against
the State for which prior waiver of immunity is
required. When elevated to the CA, 14 the
appellate court did not agree with the RTC and
found instead that the doctrine of state immunity
from suit is not applicable, because the recovery of
compensation is the only relief available to the
landowner. To deny such relief would undeniably
cause injustice to the landowner. Besides,
petitioner Contreras, in fact, had earlier offered the
payment of compensation although at a lower rate.
Thus, the CA reversed and set aside the dismissal
of the complaint and, consequently, remanded the
case to the trial court for the purpose of determining
the just compensation to which respondents are
entitled to recover from the government. 15 With
the finality of the aforesaid decision, trial proceeded
in the RTC. EHSTDA
The Branch Clerk of Court was initially appointed
as the Commissioner and designated as the
Chairman of the Committee that would determine
just compensation, 16 but the case was later
referred to the PAC for the submission of a
recommendation report on the value of the subject
property. 17 In PAC Resolution No. 99-007, 18 the
PAC recommended the amount of P1,500.00 per
square meter as the just compensation for the
subject property.
Aggrieved, petitioners come before the Court

assailing the CA decision based on the following
grounds:
I.
THE COURT OF APPEALS GRAVELY ERRED IN
GRANTING
JUST
COMPENSATION
TO
RESPONDENTS CONSIDERING THE HIGHLY
DUBIOUS
AND
QUESTIONABLE
CIRCUMSTANCES
OF
THEIR
ALLEGED
OWNERSHIP OF THE SUBJECT PROPERTY.
On March 22, 2002, the RTC rendered a Decision,

19 the dispositive portion of which reads:
II.
WHEREFORE,
premises
considered,
the
Department of Public Works and Highways or its
duly assigned agencies are hereby directed to pay
said Complainants/Appellants the amount of One
Thousand Five Hundred Pesos (P1,500.00) per
square meter for the lot subject matter of this case
in accordance with the Resolution of the Provincial
Appraisal Committee dated December 19, 2001.

AWARDING
JUST
COMPENSATION
TO
RESPONDENTS BECAUSE THEIR COMPLAINT
FOR RECOVERY OF POSSESSION AND
DAMAGES
IS
ALREADY
BARRED
BY
PRESCRIPTION AND LACHES.
III.
310
subsequent course of the action unless modified

before trial to prevent manifest injustice. 26 ICAcTa
Even if we squarely deal with the issues of laches
and prescription, the same must still fail. Laches is
principally a doctrine of equity which is applied to
avoid recognizing a right when to do so would
result in a clearly inequitable situation or in an
injustice. 27 This doctrine finds no application in
this case, since there is nothing inequitable in
giving due course to respondents' claim. Both
equity and the law direct that a property owner
should be compensated if his property is taken for
public use. 28 Neither shall prescription bar
respondents' claim following the long-standing rule
"that where private property is taken by the
Government for public use without first acquiring
title thereto either through expropriation or
negotiated sale, the owner's action to recover the
land or the value thereof does not prescribe." 29

AFFIRMING THE TRIAL COURT'S DECISION
ORDERING
THE
PAYMENT
OF
JUST
COMPENSATION BASED ON THE CURRENT
MARKET VALUE OF THE ALLEGED PROPERTY
OF RESPONDENTS. 22
Petitioners insist that the action is barred by
prescription having been filed fifty-four (54) years
after the accrual of the action in 1940. They explain
that the court can motu proprio dismiss the
complaint if it shows on its face that the action had
already prescribed. Petitioners likewise aver that
respondents slept on their rights for more than fifty
years; hence, they are guilty of laches. Lastly,
petitioners claim that the just compensation should
be based on the value of the property at the time of
taking in 1940 and not at the time of payment. 23
The petition is partly meritorious. ATHCDa
When a property is taken by the government for

public use, jurisprudence clearly provides for the
remedies available to a landowner. The owner may
recover his property if its return is feasible or, if it is
not, the aggrieved owner may demand payment of
just compensation for the land taken. 30 For failure
of respondents to question the lack of expropriation
proceedings for a long period of time, they are
deemed to have waived and are estopped from
assailing the power of the government to
expropriate or the public use for which the power
was exercised. What is left to respondents is the
right of compensation. 31 The trial and appellate
courts found that respondents are entitled to
compensation. The only issue left for determination
is the propriety of the amount awarded to
respondents.
The instant case stemmed from an action for

recovery of possession with damages filed by
respondents against petitioners. It, however,
revolves around the taking of the subject lot by
petitioners for the construction of the MacArthur
Highway. There is taking when the expropriator
enters private property not only for a momentary
period but for a permanent duration, or for the
purpose of devoting the property to public use in
such a manner as to oust the owner and deprive
him of all beneficial enjoyment thereof. 24
It is undisputed that the subject property was taken
by petitioners without the benefit of expropriation
proceedings for the construction of the MacArthur
Highway. After the lapse of more than fifty years,
the property owners sought recovery of the
possession of their property. Is the action barred by
prescription or laches? If not, are the property
owners entitled to recover possession or just
compensation?
Just compensation is "the fair value of the property

as between one who receives, and one who
desires to sell, . . . fixed at the time of the actual
taking by the government." This rule holds true
when the property is taken before the filing of an
expropriation suit, and even if it is the property
owner who brings the action for compensation. 32
As aptly noted by the CA, the issues of prescription

and laches are not proper issues for resolution as
they were not included in the pre-trial order. We
quote with approval the CA's ratiocination in this
wise:
The issue in this case is not novel. TaCDcE

In Forfom Development Corporation [Forfom] v.
Philippine National Railways [PNR], 33 PNR
entered the property of Forfom in January 1973 for
public use, that is, for railroad tracks, facilities and
appurtenances for use of the Carmona Commuter
Service without initiating expropriation proceedings.
34 In 1990, Forfom filed a complaint for recovery of
possession of real property and/or damages
against PNR. In Eusebio v. Luis, 35 respondent's
parcel of land was taken in 1980 by the City of
Pasig and used as a municipal road now known as
A. Sandoval Avenue in Pasig City without the
appropriate expropriation proceedings. In 1994,
respondent demanded payment of the value of the
property, but they could not agree on its valuation
prompting respondent to file a complaint for
reconveyance and/or damages against the city
Procedurally, too, prescription and laches are no

longer proper issues in this appeal. In the pre-trial
order issued on May 17, 2001, the RTC
summarized the issues raised by the defendants, to
wit: (a) whether or not the plaintiffs were entitled to
just compensation; (b) whether or not the valuation
would be based on the corresponding value at the
time of the taking or at the time of the filing of the
action; and (c) whether or not the plaintiffs were
entitled to damages. Nowhere did the pre-trial order
indicate that prescription and laches were to be
considered in the adjudication of the RTC. 25
To be sure, the pre-trial order explicitly defines and
limits the issues to be tried and controls the
311
government and the mayor. In Manila International

Airport Authority v. Rodriguez, 36 in the early
1970s, petitioner implemented expansion programs
for its runway necessitating the acquisition and
occupation of some of the properties surrounding
its premises. As to respondent's property, no
expropriation proceedings were initiated. In 1997,
respondent demanded the payment of the value of
the property, but the demand remained unheeded
prompting him to institute a case for accion
reivindicatoria with damages against petitioner. In
Republic v. Sarabia, 37 sometime in 1956, the Air
Transportation Office (ATO) took possession and
control of a portion of a lot situated in Aklan,
registered in the name of respondent, without
initiating expropriation proceedings. Several
structures were erected thereon including the
control tower, the Kalibo crash fire rescue station,
the Kalibo airport terminal and the headquarters of
the PNP Aviation Security Group. In 1995, several
stores and restaurants were constructed on the
remaining portion of the lot. In 1997, respondent
filed a complaint for recovery of possession with
damages against the storeowners where ATO
intervened claiming that the storeowners were its
lessees.
by the public purpose for which it is taken; the entry

by the plaintiff upon the property may have
depreciated its value thereby; or, there may have
been a natural increase in the value of the property
from the time it is taken to the time the complaint is
filed, due to general economic conditions. The
owner of private property should be compensated
only for what he actually loses; it is not intended
that his compensation shall extend beyond his loss
or injury. And what he loses is only the actual value
of his property at the time it is taken . . . . 39
Both the RTC and the CA recognized that the fair
market value of the subject property in 1940 was
P0.70/sq m. 40 Hence, it should, therefore, be used
in determining the amount due respondents instead
of the higher value which is P1,500.00. While
disparity in the above amounts is obvious and may
appear inequitable to respondents as they would be
receiving such outdated valuation after a very long
period, it is equally true that they too are remiss in
guarding against the cruel effects of belated claim.
The concept of just compensation does not imply
fairness
to
the
property
owner
alone.
Compensation must be just not only to the property
owner, but also to the public which ultimately bears
the cost of expropriation. 41 SHDAEC
The Court in the above-mentioned cases was

confronted with common factual circumstances
where the government took control and possession
of the subject properties for public use without
initiating expropriation proceedings and without
payment of just compensation, while the
landowners failed for a long period of time to
question such government act and later instituted
actions for recovery of possession with damages.
The Court thus determined the landowners' right to
the payment of just compensation and, more
importantly, the amount of just compensation. The
Court has uniformly ruled that just compensation is
the value of the property at the time of taking that is
controlling for purposes of compensation. In
Forfom, the payment of just compensation was
reckoned from the time of taking in 1973; in
Eusebio, the Court fixed the just compensation by
determining the value of the property at the time of
taking in 1980; in MIAA, the value of the lot at the
time of taking in 1972 served as basis for the award
of compensation to the owner; and in Republic, the
Court was convinced that the taking occurred in
1956 and was thus the basis in fixing just
compensation. As in said cases, just compensation
due respondents in this case should, therefore, be
fixed not as of the time of payment but at the time
of taking, that is, in 1940.
Clearly, petitioners had been occupying the subject

property for more than fifty years without the benefit
of
expropriation
proceedings.
In
taking
respondents' property without the benefit of
expropriation proceedings and without payment of
just compensation, petitioners clearly acted in utter
disregard of respondents' proprietary rights which
cannot be countenanced by the Court. 42 For said
illegal taking, respondents are entitled to adequate
compensation in the form of actual or
compensatory damages which in this case should
be the legal interest of six percent (6%) per annum
on the value of the land at the time of taking in
1940 until full payment. 43 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 taking. 44
WHEREFORE, premises considered, the petition is
PARTIALLY GRANTED. The Court of Appeals
Decision dated July 31, 2007 in CA-G.R. CV No.
77997 is MODIFIED, in that the valuation of the
subject property owned by respondents shall be
P0.70 instead of P1,500.00 per square meter, with
interest at six percent (6%) per annum from the
date of taking in 1940 instead of March 17, 1995,
until full payment.
The reason for the rule has been clearly explained

in Republic v. Lara, et al., 38 and repeatedly held
by the Court in recent cases, thus:
SO ORDERED.
Abad and Mendoza, JJ., concur.
. . . "[T]he value of the property should be fixed as

of the date when it was taken and not the date of
the filing of the proceedings." For where property is
taken ahead of the filing of the condemnation
proceedings, the value thereof may be enhanced
Velasco, Jr., J., with separate dissenting and

concurring opinion.
Leonen, J., see separate opinion.
312
Malolos, Bulacan, Branch 15, in Civil Case No. 111M-97.
||| (Secretary of the Department of Public Works

and Highways v. Spouses Tecson, G.R. No.
179334, [July 1, 2013])
THE FACTS
Civil Case No. 111-M-97 was an expropriation
proceeding commenced by Napocor against
respondents Spouses Salvador and Nenita Cruz,
Spouses Edmundo and Merla Barzaga, Spouses
Crisanto and Julieta dela Cruz, Spouses Lorenzo
and Rosalina Palaganas, Spouses Ricardo and
Lolita Saguid, Spouses Carmelita and Restituto
Alcid, Hipolita Nasalga, Criselda and Redentor
Reyes, Iluminada Alipio, Reynaldo Alipio, Corazon
Pelayo, Spouses Rolando and Felicidad Boanguis,
Spouses Joselito and Caroline Mendoza, Spouses
Erlinda and Celso de Guzman, Spouses Miguel
and Virginia Casas, Spouses Erlinda and Celso
Diccion, Ma. Renita Mariano, Victoria Espiritu,
Spouses Victor and Rosarion Sotelo, Renato
Guieb, Daniel Sta. Maria, Spouses Melanin and
Soteria Torres, Spouses Ciriaco and Perlita
Bendijo, Spouses Lilia and Domingo Torres, Pacita
Torres and Gregoria Castillo, Spouses Hilario and
Amanda Doniza, Spouses Jeremias and Isabel
Garcia, Spouses Eduardo and Ma. Marin Calderon,
Spouses Ernesto and Pelagia Lucas, Corazon
Acosta, Teresita Lacson and Juliana de Guzman,
Perla Reyes, Spouses Esmeliton and Remedios
Espiritu, Spouses Rogelio and Aurora Abalon, Ditas
Garcia, Teresita Capati, Spouses Efren and
Mercedes Martin, Spouses Hipolito and Antonia
Sta. Maria, Dionisio and Atanacia Domondon,
Jaoquin and Ma. Theresa dela Rosa, Spouses
Romulo and Norma Ducusin, Genoveva Cruz and
A. Bautista, Purita Sunico, Spouses Minerva and
Roque Nualla, and Spouses Gabino, Jr. and
Crisping Alipio, who are the owners of individual
lots located in Del Monte Park Subdivision, Dulong
Bayan, San Jose Del Monte, Bulacan. The
complaint, filed on February 17, 1997, primarily
sought the determination of just compensation due
the respondents after the negotiations for the
purchase of the lots failed. AHDaET
8. NPC VS. CRUZ 702 SCRA 359 (2013)

SECOND DIVISION
[G.R. No. 165386. July 29, 2013.]
NATIONAL POWER CORPORATION, petitioner,
vs. SPOUSES SALVADOR and NENITA CRUZ,
SPOUSES EDMUNDO and MERLA BARZAGA,
SPOUSES CRISANTO and JULIETA DELA CRUZ,
SPOUSES
LORENZO
and
ROSALINA
PALAGANAS, SPOUSES RICARDO and LOLITA
SAGUID,
SPOUSES
CARMELITA
and
RESTITUTO
ALCID,
HIPOLITA NASALGA,
CRISELDA and REDENTOR REYES, ILUMINADA
ALIPIO, REYNALDO ALIPIO, CORAZON PELAYO,
SPOUSES
ROLANDO
and
FELICIDAD
BOANGUIS,
SPOUSES
JOSELITO
and
CAROLINE MENDOZA, SPOUSES ERLINDA and
CELSO DE GUZMAN, SPOUSES MIGUEL and
VIRGINIA CASAS, SPOUSES ERLINDA and
CELSO DICCION, MA. RENITA MARIANO,
VICTORIA ESPIRITU, SPOUSES VICTOR and
ROSARION SOTELO, RENATO GUIEB, DANIEL
STA. MARIA, SPOUSES MELANIO and SOTERIA
TORRES, SPOUSES CIRIACO and PERLITA
BENDIJO, SPOUSES LILIA and DOMINGO
TORRES, PACITA TORRES and GREGORIA
CASTILLO, SPOUSES HILARIO and AMANDA
DONIZA, SPOUSES JEREMIAS and ISABEL
GARCIA, SPOUSES EDUARDO and MA. MARIN
CALDERON, SPOUSES ERNESTO and PELAGIA
LUCAS, CORAZON ACOSTA, TERESITA LACSON
and JULIANA DE GUZMAN, PERLA REYES,
SPOUSES
ESMELITON
and
REMEDIOS
ESPIRITU, SPOUSES ROGELIO and AURORA
ABALON, DITAS GARCIA, TERESITA CAPATI,
SPOUSES EFREN and MERCEDES MARTIN,
SPOUSES HIPOLITO and ANTONIA STA. MARIA,
DIONISIO and ATANACIA DOMONDON, JAOQUIN
and MA. THERESA DELA ROSA, SPOUSES
ROMULO and NORMA DUCUSIN, GENOVEVA
CRUZ and A. BAUTISTA, PURITA SUNICO,
SPOUSES MINERVA and ROQUE NUALLA, and
SPOUSES GABINO, JR. and CRISPINA ALIPIO,
respondents.
BRION, J p:
In its order dated September 17, 1997, the RTC

directed the Bulacan Provincial Appraisal
Committee (PAC) "to review and submit an updated
appraisal report on the properties to be acquired by
[Napocor] in order 'to judicially guide the Court in
fixing the amount to be paid by the plaintiff to the
defendants.'" 4 In the meantime, the RTC allowed
Napocor to take possession of the lots, after
Napocor deposited an amount equivalent to their
assessed value pursuant to Section 2, Rule 67 of
the Rules of Court. 5
For the Court's resolution is the petition for review

on certiorari 1 filed under Rule 45 of the Rules of
Court by the National Power Corporation
(Napocor). Napocor seeks to annul and set aside
the decision 2 dated February 10, 2004 and the
resolution 3 dated September 13, 2004 of the Court
of Appeals (CA) in CA-G.R. CV No. 62911, which
affirmed with modification the order dated March
31, 1998 of the Regional Trial Court (RTC) of
On October 22, 1997, the PAC submitted its report

6 to the RTC which pegged the just compensation
at P2,200.00 per square meter. After considering
the PAC's report, the RTC issued an order dated
March 31, 1998 fixing the just compensation at
P3,000.00 per square meter. Although the RTC
found the PAC's recommended amount of
P2,200.00 reasonable, it noted that an additional
amount of P800.00 was necessary in view of the
DECISION
313
then prevailing economic

devaluation of the peso.
crises
and
the
Napocor further alleges that the CA erred in

disregarding the compromise agreement it entered
into with the respondents. The agreement was
executed during the pendency of the appeal with
the CA and fixed the amount of just compensation
at P1,900.00 per square meter. As the agreement
was validly entered into by the parties, Napocor
claims it is binding on the parties and could not be
disregarded by the CA.
Napocor appealed the RTC's March 31, 1998 order

with the CA. It assailed the appointment of the
PAC, claiming that its appointment was contrary to
Rule 67 of the Rules of Court. It also alleged that
the determination of the amount of just
compensation was without basis.
THE CA RULING
The CA affirmed the RTC's March 31, 1998 order,
subject to a modification. It upheld the appointment
of the PAC and the recommendation to set the just
compensation at P2,200.00 per square meter, but
removed the additional P800.00 that the RTC
imposed. The CA instead imposed legal interest at
12% per annum on the amount of just
compensation, to compensate for the constant
fluctuation and inflation of the value of the currency.
The respondents, on the other hand, assert that

Napocor's allegations are unmeritorious. They
claim that the appointment of the PAC constituted
substantial compliance with Section 5, Rule 67 of
the Rules of Court,since the PAC was composed of
three members (the provincial assessor, the
provincial engineer, and the provincial treasurer)
who are government officials without interest in the
outcome of the litigation, and who are competent to
evaluate and assess valuation of the properties.
They have been specifically tasked "to guide the
Court in fixing the amount to be paid by the plaintiff
to the defendants," 9 which is the same task
required of the commissioners by Rule 67 of the
Rules of Court.
Its motion for reconsideration of the CA decision

having been denied, 7 Napocor elevates the case
to us through the present petition. DCaEAS
THE PARTIES' ARGUMENTS
Napocor asserts that the appointment of the PAC
as commissioners was contrary to Rule 67 of the
Rules of Court,specifically, Section 5 thereof which
states:
They further claim that it was Napocor's inaction

itself that denied it the opportunity to present
evidence due to its own failure to question the
appointment of the commissioners and the
commissioners' report within the period provided
under the Rules. Likewise, it was Napocor which
should be faulted for the CA's refusal to take
cognizance of the compromise agreement.
Although Napocor manifested that an agreement
was entered into by the parties, it consistently failed
to submit a copy to the CA for the latter's approval.
For over a year, the CA granted Napocor's
numerous motions for extension to submit a copy,
but Napocor failed to comply. Consequently, the CA
should not be faulted for refusing to consider and
approve the agreement. At any rate, the
respondents claim that the agreement does not
bind them, as they were made to sign it without the
benefit of counsel during the pendency of the case.
HADTEC
Section 5. Ascertainment of compensation. Upon

the rendition of the order of expropriation, the court
shall appoint not more than three (3) competent
and disinterested persons as commissioners to
ascertain and report to the court the just
compensation for the property sought to be taken.
The order of appointment shall designate the time
and place of the first session of the hearing to be
held by the commissioners and specify the time
within which their report shall be submitted to the
court.
Copies of the order shall be served on the parties.
Objections to the appointment of any of the
commissioners shall be filed with the court within
ten (10) days from service, and shall be resolved
within thirty (30) days after all the commissioners
shall have received copies of the objections. [italics
supplied; emphases ours]
Finally, the respondents allege that the amount of

P2,200.00 as just compensation is fully supported
not only by the findings in the report, but also by the
Appraisal Report, which Napocor obtained from the
Land Bank of the Philippines (LBP). The LBP
Appraisal Report fixed the market value of the
expropriated properties at P2,200.00. 10
It contends that Rule 67 requires the trial court to

appoint three persons, and not a committee like the
PAC. The members of the PAC also did not
subscribe to an oath which is required under
Section 6, Rule 67 of the Rules of Court. 8
Napocor also points out that the RTC's March 31,
1998 order did not specify the time and place for
the first hearing of the commissioners and the time
the commissioners' report should be submitted. No
notice of hearing on the commissioners' report was,
in fact, given to Napocor, depriving it of its right to
present evidence to controvert the findings of the
PAC. STaHIC
Incidental Matters
The majority of the respondents who filed the
Comment dated February 16, 2005 are represented
by Atty. Reynaldo B. Hernandez. 11 During the
pendency of the case, Atty. Hernandez submitted
before the Court an Omnibus Motion 12 (1) seeking
clarification on the participation of one Atty. Pedro
S. Principe of Principe, Villano, Villacorta, Clemente
and Associates in the present proceeding, and (2)
praying for an order from the Court enjoining the
314
RTC from hearing and resolving Atty. Principe's

Motion to Enter Attorney's Charging Lien into the
Records of This Case Even Before Final Judgment
is Rendered.
In this case, the Court finds that the appointment of

the PAC as commissioners substantially complies
with Section 5, Rule 67 of the Rules of Court. It is
immaterial that the RTC appointed a committee
instead of three persons to act as commissioners,
since the PAC is composed of three members
the Provincial Assessor, the Provincial Engineer,
and the Provincial Treasurer. Considering their
positions, we find each member of the PAC
competent to perform the duty required of them,
i.e., to appraise the valuation of the affected lots. As
correctly found by the CA, they "are government
officials entrusted with the updating and time-totime determination of currently assessed, as well
as, market value of properties within their
jurisdiction[.]" 17 The mere fact that they are
government officials does not disqualify them as
disinterested persons, as the provincial government
has no significant interest in the case.
According to Atty. Hernandez, Atty. Principe claims

to be the counsel of the same respondents that he
(Atty. Hernandez) is representing. However, the
respondents themselves have repudiated Atty.
Principe's claim. Atty. Hernandez also states that,
as borne by the records, the RTC has already
denied Atty. Principe's appearance and motion to
intervene in the expropriation proceedings. Atty.
Principe wanted to intervene, supposedly to protect
his 40% share in the expropriated properties, which
he (Atty. Principe) claimed constituted part of his
legal fees. CHTAIc
In response to Atty. Hernandez's allegations, Atty.
Principe denies that he is a "nuisance interloper."
Atty. Principe claims that he is the counsel for
SANDAMA, 13 an organization formed by owners
of the affected expropriated properties, of which the
respondents are members. It was SANDAMA,
through its President, Danilo Elfa, which engaged
his and his firm's legal services; to date, his
authority has not been withdrawn or revoked.
Hence, Atty. Principe should be recognized as the
counsel of record for the respondents. As counsel
for the respondents, Atty. Principe claims that there
is nothing improper with his motion to enter into the
records his charging lien, adding that the lien will
not anyway be enforced until final judgment in this
case.
Instead, what we find material is that the PAC was

tasked to perform precisely the same duty that the
commissioners, under Section 5, Rule 67 of the
Rules of Court,are required to discharge. The RTC
order dated September 17, 1997 directed the PAC
"to review and submit an updated appraisal report
on the property to be acquired by the plaintiff
NAPOCOR from the defendants to judicially guide
the [c]ourt in fixing the amount to be paid [by] the
plaintiff to the defendants." 18 The appointment of
the PAC served the same function as an
appointment of three persons as commissioners
under the Rules. HTSIEa
If Napocor found the appointment of the PAC to be
objectionable, it should have filed its objections
early on and not belatedly raise them in its appeal
with the CA. The second paragraph of Section 5,
Rule 67 states that
Also, during the pendency of this case, Napocor

filed a Motion to Approve Attached Compromise
Agreement, 14 which it entered into with
respondent Ditas C. Garcia on July 3, 2006. In light
of the compromise agreement, the Court issued a
Resolution 15 dated March 28, 2011 and
considered the case closed and terminated insofar
as respondent Ditas was concerned.
Copies of the order [of appointment] shall be

served on the parties. Objections to the
appointment of any of the commissioners shall be
filed with the court within ten (10) days from
service, and shall be resolved within thirty (30) days
after all the commissioners shall have received
copies of the objections. [emphasis ours]
THE COURT'S RULING

The Court denies the petition.
The appointment of the PAC as
commissioners
The settled rule in expropriation proceedings is that
the determination of just compensation is a judicial
function. 16 To assist the courts in this task, Section
5, Rule 67 of the Rules of Court requires the
appointment of "not more than three (3) competent
and disinterested persons as commissioners to
ascertain and report to the court the just
compensation for the property sought to be taken."
Although the appointment of commissioners is
mandatory, the Rules do not impose any
qualifications or restrictions on the appointment,
other than that the commissioners should not
number more than three and that they should be
competent and disinterested parties. IcAaSD
We find nothing in the records indicating that

Napocor seasonably objected to the appointment of
the PAC or to any aspect in the order of
appointment (e.g., the supposed failure of the order
to state the time and place of the first session of the
hearing, and the time which the commissioners'
report shall be submitted). Instead, Napocor
belatedly raised its objections only in its appeal with
the CA. For its failure to comply with the Rules, we
consider Napocor to have waived its objections
against any supposed irregularity in the
appointment of the PAC. HSTaEC
The determination of just
compensation
Neither do we find significant Napocor's claim that it
was denied due process in the determination of the
amount of just compensation. As against Napocor's
315
bare allegation that it was not notified of the PAC's

hearing, the obtaining circumstances, set out
below, lead us to believe otherwise.
with the respondents and would be filing a copy

thereof with the CA.
The CA initially gave Napocor 60 days to submit a
copy of the agreement, but Napocor requested for
(and was granted) an extension of 30 days. Days
before the extension expired, Napocor requested
for another 30-day extension. Napocor would
repeat these requests for extension whenever the
deadline loomed, without it filing a copy of the
agreement. All in all, Napocor requested for an
extension of 180 days. The long delay compelled
the CA to finally resolve the appeal on the basis of
the available records, notwithstanding Napocor's
manifestation of a compromise agreement. IAETDc
The PAC members, upon their appointment and

oath, are considered officers of the court, and we
can extend to them the presumption of regularity in
the performance of their official functions. 19 It is
hard to believe that Napocor was completely left in
the dark in the proceedings conducted by the PAC
to determine just compensation, considering its
interest in the case. acIASE
Likewise, we find untenable Napocor's claim that
the amount of just compensation was without
factual and legal basis. That the properties were
valued at P427.76 per square meter in August
1996, then at P2,200.00 in October 1997 does not
necessarily indicate that the assessment by the
PAC was manipulated. Napocor itself acknowledge
an increase in the value of the properties when it
modified its offered settlement from P427.76 to
P1,900.00. Also, the LBP Appraisal Report, which
Napocor itself commissioned, has pegged the fair
market value of the properties at P2,200.00 per
square meter. The report considered important
improvements in the vicinity, among them, the
construction of a school, a church and several
public buildings.
Significantly, the execution of the compromise

agreement, by itself, did not enjoin the CA from
resolving the appeal. By its terms and as found out
by the CA, the compromise agreement required the
approval of the CA for it to take effect. Thus,
Napocor can no longer assail the CA's authority to
resolve the appeal after it consistently failed to
furnish the CA a copy of the agreement.
The representation of Atty. Principe
We take note of the respondents' misgivings on the
claims of Atty. Principe. However, we point out that
the Court has resolved the issue of Atty. Principe's
interest in the expropriation proceedings in Malonso
v. Principe. 20 Julian Malonso is the owner of one
of the expropriated properties and a member of
SANDAMA. 21 He assailed the authority of Atty.
Principe to represent him in the same expropriation
proceedings that is the subject of the present case
and the latter's claim of 40% of the amount to be
paid by Napocor. On the basis of these contentions,
he sought Atty. Principe's disbarment. ADcSHC
If Napocor had any objections on the amount of just

compensation fixed in the commissioners' report,
its remedy was to file its objections within ten (10)
days from receipt of the notice of the report.
Section 7, Rule 67 of the Rules of Court states:
Section 7. Report by commissioners and judgment
thereupon. . . . Except as otherwise expressly
ordered by the court, such report shall be filed
within sixty (60) days from the date the
commissioners were notified of their appointment,
which time may be extended in the discretion of the
court. Upon the filing of such report, the clerk of the
court shall serve copies thereof on all interested
parties, with notice that they are allowed ten (10)
days within which to file objections to the findings of
the report, if they so desire. [italics supplied;
emphasis ours]
Ruling in favor of Atty. Principe, we found

reasonable grounds supporting his claim that he
possessed authority to represent SANDAMA and its
members in the expropriation proceedings 22 and
could not validly be accused of misrepresentation.
Since Atty. Principe and his law firm have already
rendered legal and even extra-legal services for
SANDAMA, they rightfully moved to recover the
attorney's fees due them and to protect this
interest. However, the Court refrained from ruling
on Atty. Principe's entitlement to the claimed
attorney's fees of 40% of the purchase price since
Malonso only involved a disbarment proceeding.
However, as with the objections to the appointment

of the PAC, Napocor failed to make a timely
objection to the report of the commissioners and
raised them only before the CA. HASDcC
The compromise agreement
It appears to us that Napocor has demonstrated a
pattern of procrastination in this case. We note that
not only did it belatedly file its objections to the
appointment of the PAC and to the commissioners'
report; it also failed to submit copies of the
compromise agreement with the CA despite the
numerous extensions it requested.
Although the Court's ruling in Malonso has become

final, we cannot fully adopt it in the present case so
as to make a conclusive finding on the question of
Atty. Principe's representation and entitlement to
attorney's fees as far as the present respondents
are concerned. The available documents in the
records disclose that only a few of the respondents
have executed a special power of attorney, similar
to the one Malonso executed in favor of Danilo Elfa
(then SANDAMA President), that would authorize
Elfa to hire Atty. Principe and his law firm to
represent them. The same documents do not show
As early as August 2001, during the pendency of its

appeal with the CA, Napocor already manifested
that it had entered into a compromise agreement
316
if these respondents are members of SANDAMA,

which Atty. Principe claims he represents. Also,
nothing in the records would show the extent of
services that Atty. Principe has performed for the
respondents. In the absence of these pertinent
facts, we deem it prudent to remand the matter to
the RTC the determination of Atty. Principe's
authority to represent the respondents and his
entitlement to attorney's fees, taking into
consideration the Court's ruling in Malonso.
Talagtag and Pablo Bonde, Sr. were also named

respondents in the complaint. 4 IDAaCc
In their complaint, petitioner-spouses alleged that
they are the absolute and registered owners of Lot
No. 216, a 38,157 sq.m.-parcel of land situated at
Bonbon, Libon, Albay, covered by Original
Certificate of Title (OCT) No. VH-5187 of the
Register of Deeds of Albay. According to them, the
respondents named in the complaint took
advantage of the liberality of petitioner-spouses,
entered the subject property, successfully
registered themselves as tenants for agrarian
reform purposes, and occupied and cultivated the
property to the prejudice of petitioner-spouses. Said
respondents deprived petitioner-spouses of the
enjoyment and possession of the property without
paying petitioner-spouses or the Land Bank the
rentals due thereon. Moreover, in violation of
agrarian reform laws, said respondents subleased
their respective landholdings to other persons. 5
WHEREFORE, in view of the foregoing, the

assailed decision dated February 10, 2004 and the
resolution dated September 13, 2004 of the Court
of Appeals in CA-G.R. CV No. 62911 are
AFFIRMED. aIcSED
The questions of Atty. Pedro Principe's
representation and his entitlement to attorney's
fees, insofar as the respondents are concerned, are
REMANDED to the Regional Trial Court of Malolos,
Bulacan, Branch 15, for resolution. The trial court is
hereby ordered to resolve these matters with due
haste.
Petitioner-spouses reiterated these matters in their

position paper. 6
SO ORDERED.
All seven respondents named in the complaint were

summoned but only Bonde and Rogelio submitted
their answer and position paper. 7 Bonde and
Rogelio showed that they already own their
portions of the property through Operation Land
Transfer under Presidential Decree No. 27.
Pursuant to the said law, petitioner-spouses
executed deeds of transfer in their favor which
resulted in the issuance to them of emancipation
patents and, subsequently, OCT No. E-2333 and
OCT No. E-2334, respectively. 8
Carpio, Villarama, Jr., * Perez and Perlas-Bernabe,

JJ., concur.
||| (National Power Corp. v. Spouses Cruz, G.R. No.
165386, [July 29, 2013], 715 PHIL 348-366)
9. DYCOCO VS. CA 702 SCRA 566 (2013)
FIRST DIVISION
[G.R. No. 147257. July 31, 2013.]
Thereafter, the Provincial Adjudicator rendered a

decision dated June 27, 1995 finding private
respondents "not worthy to become beneficiaries"
under Presidential Decree No. 27. 9 The dispositive
portion of the decision reads: CcHDaA
SPOUSES JESUS DYCOCO and JOELA E.

DYCOCO, petitioners, vs. THE HONORABLE
COURT OF APPEALS, NELLY SIAPNO-SANCHEZ
and INOCENCIO BERMA, 1 respondents.
WHEREFORE, finding for the complainants,

respondents Nelly Siapno-Sanchez, Leonora
Talagtag and Inocencio Berma are hereby
adjudged not worthy to become beneficiaries under
PD 27[;] hence[,] judgment is hereby issued:
DECISION
LEONARDO-DE CASTRO, J p:
This Petition for Certiorari under Rule 65 of the
Rules of Court questions, for having been rendered
with grave abuse of discretion, the Resolution 2
dated June 2, 2000 of the Court of Appeals
dismissing the appeal of petitioner-spouses Jesus
and Joela Dycoco in CA-G.R. SP No. 58504, and
the Resolution 3 dated January 10, 2001 denying
reconsideration.
1. Ordering the ejectment of Nelly Siapno-Sanchez,

Leonora Talagtag, and Inocencio Berma from their
respective tillage;
2. Ordering Rogelio Siapno and Pablo Bonde, Sr. to
comply with their obligation under the Deed[s] of
Transfer in their favor;
On November 23, 1994, petitioner-spouses filed a

complaint for ejectment, cancellation of certificates
of land transfer, damages and injunction against
private respondents Nelly Siapno-Sanchez and
Inocencio Berma in the Office of the Provincial
Adjudicator of the Department of Agrarian Reform
Adjudication Board (DARAB) in Albay. Eusebio
Siapno, Rogelio Siapno, Felix Sepato, Sr., Leonora
3. Ordering the dismissal of the case against

Eusebio Siapno, for lack of evidence; and
4. Ordering the respondents under paragraph 1 to
pay complainants jointly and severally nominal
damages in the amount of P10,000.00 and
attorney's fee[s] in the amount of P10,000.00. 10
317
On motion of petitioner-spouses, the Provincial

Adjudicator issued a writ of execution dated
November 22, 1995 ordering, among others, the
ejectment of private respondents from their
respective tillage. 11 Subsequently, petitionerspouses filed a Motion for Issuance of Alias Writ of
Execution and to Cite Respondents in Contempt,
claiming that private respondents returned to the
subject property although they have already been
ordered ejected. 12 Private respondents filed a
Motion to Quash or Suspend Implementation of the
Writ of Execution. They explained that they are
already the owners of their respective portions of
the property in question by virtue of the Operation
Land Transfer under Presidential Decree No. 27.
According to private respondents, petitionerspouses executed deeds of transfer in their favor
which resulted to the issuance to them of
emancipation patents and, afterwards, OCT No. E2332 in the name of private respondent SiapnoSanchez and OCT Nos. E-2335 and E-2336 in the
name of private respondent Berma. Private
respondents further asserted that the decision
ordering their ejectment from their tillage is not yet
executory as they have filed a notice of appeal on
August 29, 1996. 13 EScHDA
filed by private respondent Siapno-Sanchez in the

DARAB. 17 On the other hand, petitioner-spouses
filed a Counter-Memorandum With Motion to
Dismiss Appeal dated February 9, 1997, reiterating
that private respondents' appeal was filed out of
time. 18
In a decision dated March 20, 2000, 19 the DARAB
found that both private respondents were
beneficiaries of Presidential Decree No. 27 and that
they are no longer tenants but owners of their
respective portions of the property as evidenced by
OCT No. E-2332 in the name of private respondent
Siapno-Sanchez and OCT Nos. E-2335 and E2336 in the name of private respondent Berma.
Ejectment would therefore not lie as against them
as landholdings covered by the Operation Land
Transfer under Presidential Decree No. 27 do not
revert to the original owner. Thus, the DARAB
reversed and set aside the decision dated June 27,
1995 in so far as private respondents were
concerned. The immediate reinstatement of private
respondents to their respective landholdings was
ordered, as well as their restoration to their original
status as owner-beneficiaries of the landholdings
awarded to them pursuant to Presidential Decree
No. 27. 20
Petitioner-spouses submitted their Comments

[on]/Opposition to the Motion to Quash/Suspend
Implementation of Writ of Execution and Notice of
Appeal Filed by Respondents dated September 16,
1996 and Supplemental Comments [on]/Opposition
to the Motion to Quash/Suspend Implementation of
Writ of Execution and Notice of Appeal Filed by
Respondents dated October 3, 1996 where they
countered private respondents' motion by arguing
that both the motion to quash and the notice of
appeal were filed beyond the prescribed period. 14
Petitioner-spouses received a copy of the DARAB

decision on April 3, 2000 and had until April 18,
2000 to file an appeal. They filed a motion in the
Court of Appeals praying for an extension of 30
days within which to file their intended petition. 21
The Court of Appeals granted them an extension of
15 days, with warning that no further extension will
be given. 22 Thus, petitioner-spouses had until May
3, 2000 to file their petition. AHCcET
Petitioner-spouses filed the petition by registered
mail on May 8, 2000. The petition was denied due
course and dismissed by the Court of Appeals in a
Resolution dated June 2, 2000. In its entirety, the
said resolution reads:
In an order dated October 16, 1996, the Provincial

Adjudicator found that the copy of the decision
dated June 27, 1995 was sent by registered mail to
and, on July 10, 1995, received by Crispina Berma
Penaranda, daughter of private respondent Berma,
who resided in a different barangay. Still, the
Provincial Adjudicator ruled that private respondent
Berma was bound by his daughter's receipt and the
decision is already final and executory as against
him. Thus, with respect to him, the notice of appeal
was filed out of time. On the other hand, there was
no showing that private respondent SiapnoSanchez has been served a copy of the decision
before she procured a copy of it from the Office of
the Provincial Adjudicator on August 26, 1996.
Hence, as regards her, the notice of appeal was
filed on time. Therefore, the Provincial Adjudicator
denied the Motion to Quash or Suspend
Implementation of the Writ of Execution with
respect to private respondent Berma, and approved
and granted the same motion with respect to
private respondent Siapno-Sanchez. 15 SCaTAc
The petition (for review), filed under Rule 43 of the

1997 Rules of Civil Procedure is DENIED DUE
COURSE and, as a consequence, DISMISSED, for
late filing, as the petition was filed beyond the
extended period of fifteen (15) days granted under
Resolution dated May 5, 2000, which resolution
was issued pursuant to Section 4 of Rule 43, as
follows:
xxx xxx xxx
"Sec. 4. Period of appeal. The appeal shall be
taken within fifteen (15) days from notice of the
award, judgment, final order or resolution, or from
the date of its last publication, if publication is
required by law for its effectivity, or of the denial of
petitioner's motion for new trial or reconsideration
duly filed in accordance with the governing law of
the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper
motion and the payment of the full amount of the
Private
respondent
Berma
moved
for
reconsideration but his motion was denied. 16
Nevertheless, he joined the appeal memorandum
318
docket fee before the expiration of the reglementary

period, the Court of Appeals may grant an
additional period of fifteen (15) days only within
which to file the petition for review. No further
extension shall be granted except for the most
compelling reason and in no case to exceed fifteen
(15) days" . . . . 23 IEaCDH
by verified motion filed in the same action or

proceeding at any time during its pendency.
HSIDTE
The Resolutions dated June 2, 2000 and January
1, 2001 of the Court of Appeals were final and
appealable judgments. In particular, the Resolution
dated June 2, 2000 denied due course to the
petition and dismissed it, while the Resolution
dated January 1, 2001 denied the motion for
reconsideration of the former Resolution. The said
Resolutions disposed of the appeal of petitionerspouses in a manner that left nothing more to be
done by the Court of Appeals in respect to the said
appeal. Thus, petitioner-spouses should have filed
an appeal by petition for review on certiorari under
Rule 45, not a petition for certiorari under Rule 65,
in this Court.
Petitioner-spouses moved for reconsideration but it

was denied in a resolution dated January 10, 2001.
Hence, this petition.
Petitioner-spouses invoke the rule of liberality in the
construction of the provisions of the Rules of Court.
The petition was filed after the period granted by
the Court of Appeals because, on April 10, 2000,
they secured the services of a new counsel who
still had to study the voluminous records. They
claim that the petition they filed with the Court of
Appeals is supported by compelling reasons.
According to petitioner-spouses, they were
deprived of their property without just compensation
either from the tenant-beneficiaries or from the
government. They were also deprived of due
process when the DARAB took cognizance of
private respondents' appeal although it was filed
more than one year after the decision of the
Provincial Adjudicator had become final and
executory. In view of the said reasons, the Court of
Appeals should have given their petition due course
although it was filed five days after the lapse of the
extended period.
The proper remedy to obtain a reversal of judgment

on the merits, final order or resolution is appeal.
This holds true even if the error ascribed to the
court rendering the judgment is its lack of
jurisdiction over the subject matter, or the exercise
of power in excess thereof, or grave abuse of
discretion in the findings of fact or of law set out in
the decision, order or resolution. The existence and
availability of the right of appeal prohibits the resort
to certiorari because one of the requirements for
the latter remedy is the unavailability of appeal. 25
The failure of petitioner-spouses to file an appeal
by certiorari under Rule 45 of the Rules of Court
cannot be remedied by the mere expedient of
conjuring grave abuse of discretion to avail of a
petition for certiorari under Rule 65. In Balayan v.
Acorda 26 the Court ruled:
Petitioner-spouses are wrong.

Firstly, petitioner-spouses are before this Court with
a petition for certiorari under Rule 65 of the Rules
of Court which is a wrong remedy.
It bears emphasis that the special civil action for

certiorari is a limited form of review and is a remedy
of last recourse. The Court has often reminded
members of the bench and bar that this
extraordinary action lies only where there is no
appeal nor plain, speedy and adequate remedy in
the ordinary course of law. It cannot be allowed
when a party to a case fails to appeal a judgment
despite the availability of that remedy, certiorari not
being a substitute for a lapsed or lost appeal.
Where an appeal is available, certiorari will not
prosper, even if the ground therefor is grave abuse
of discretion. . . . . (Citations omitted.)
A petition for certiorari under Rule 65 of the Rules

of Court is a special civil action that may be
resorted to only in the absence of appeal or any
plain, speedy and adequate remedy in the ordinary
course of law. 24 Contrary to the claim of petitionerspouses in the opening paragraph of their petition
that there was no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law
other than this petition, the right recourse was to
appeal to this Court in the form of a petition for
review on certiorari under Rule 45 of the Rules of
Court. HIACEa
Certiorari is not and cannot be made a substitute

for an appeal where the latter remedy is available
but was lost through fault or negligence. In this
case, petitioner-spouses received the Resolution
dated January 1, 2001 on January 19, 2001 27
and, under the rules, 28 had until February 5, 2001
to file an appeal by way of a petition for review on
certiorari in this Court. Petitioner-spouses allowed
this period to lapse without filing an appeal and,
instead, filed this petition for certiorari on March 16,
2001. 29 IcSADC
Section 1. Filing of petition with Supreme Court.

A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of
Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the
Supreme Court a verified petition for review on
certiorari. The petition may include an application
for a writ of preliminary injunction or other
provisional remedies and shall raise only questions
of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies
319
Secondly, petitioner-spouses claim that the Court of

Appeals committed grave abuse of discretion in
dismissing their appeal on the ground of late filing.
This is also wrong.
WHETHER OR NOT THE HONORABLE COURT

OF APPEALS ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN DENYING DUE
COURSE TO THE PETITION FOR REVIEW FILED
BY
PETITIONERS
AND
SUBSEQUENTLY
DENYING
PETITIONERS'
MOTION
FOR
RECONSIDERATION. 33 HSTCcD
The Court of Appeals granted petitioner-spouses a

15-day extension, within which to file their intended
petition. The action of the Court of Appeals was in
accordance with Section 4, Rule 43 of the Rules of
Court. Thus, as the original deadline of petitionerspouses was April 18, 2000, they had until May 3,
2000 to file their intended petition. Petitionerspouses, however, filed the petition on May 8,
2000. Petitioner-spouses even admit that their
petition in the Court of Appeals was filed five days
after the extended period. 30 It is therefore clear
that the Court of Appeals simply applied the rules,
while petitioner-spouses concededly failed to
observe the very same rules. As such, the Court of
Appeals' dismissal of the petition of petitionerspouses was discretion duly exercised, not
misused or abused.
They did not, however, address the issue. It is

noteworthy that aside from a cursory claim in the
opening paragraph and paragraph 25 of the petition
that the Resolutions dated June 2, 2000 and
January 1, 2001 of the Court of Appeals were
"unjust and arbitrary" and "issued in grave abuse of
judicial discretion amounting to lack or excess of
jurisdiction," 34 petitioner-spouses failed to
establish grave abuse of discretion on the part of
the Court of Appeals. They have not advanced any
argument to show that the Court of Appeals
exercised its judgment capriciously, whimsically,
arbitrarily or despotically by reason of passion and
hostility. Thus, they failed in their duty to
demonstrate with definiteness the grave abuse of
discretion that would justify the proper availment of
a petition for certiorari under Rule 65 of the Rules
of Court.
Thirdly, petitioner-spouses make it appear that
there are compelling reasons to support their
petition deprivation of property without just
compensation and denial of due process. The
petitioner-spouses, however, belatedly raised these
issues and failed to substantiate the same.
ESAHca
Where a petition for certiorari under Rule 65 of the

Rules of Court alleges grave abuse of discretion,
the petitioner should establish that the respondent
court or tribunal acted in a capricious, whimsical,
arbitrary or despotic manner in the exercise of its
jurisdiction as to be equivalent to lack of
jurisdiction. 31 This is so because "grave abuse of
discretion" is well-defined and not an amorphous
concept that may easily be manipulated to suit
one's purpose. In this connection, Yu v. Judge
Reyes-Carpio 32 is instructive: aEcSIH
The term "grave abuse of discretion" has a specific
meaning. An act of a court or tribunal can only be
considered as with grave abuse of discretion when
such act is done in a "capricious or whimsical
exercise of judgment as is equivalent to lack of
jurisdiction." The abuse of discretion must be so
patent and gross as to amount to an "evasion of a
positive duty or to a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and
hostility." Furthermore, the use of a petition for
certiorari is restricted only to "truly extraordinary
cases wherein the act of the lower court or quasijudicial body is wholly void." From the foregoing
definition, it is clear that the special civil action of
certiorari under Rule 65 can only strike an act down
for having been done with grave abuse of discretion
if the petitioner could manifestly show that such act
was patent and gross. . . . . (Citations omitted.)
There is no question that petitioner-spouses are

entitled under the law to receive just compensation
for the property taken from them and transferred to
private respondents by virtue of Presidential
Decree No. 27. 35 Due process guarantees that
taking of private property by the State for public use
should be with payment of just compensation. 36
Unfortunately, petitioner-spouses themselves did
not consider the issue of just compensation as
compelling enough because they did not raise it in
the complaint or in the position paper which they
filed in the Office of the Provincial Adjudicator. 37
They only claimed just compensation for the first
time on appeal, that is, when they filed their petition
for review with the Court of Appeals. The settled
rule that issues not raised in the proceedings below
cannot be raised for the first time on appeal bursts
the bubble that is the alleged compelling nature of
petitioner-spouses' claim. Petitioner-spouses ask
for due process, but fairness and due process
dictate that evidence and issues not presented
below cannot be taken up for the first time on
appeal. 38 cAaTED
In this case, nowhere in the petition did petitionerspouses show that the issuance of the Resolutions
dated June 2, 2000 and January 1, 2001 was
patent and gross that would warrant striking them
down through a petition for certiorari under Rule 65
of the Rules of Court. Petitioner-spouses simply
framed the issue in this case as follows:
On jurisdictional grounds, petitioner-spouses could

not validly present for the first time the issue of
nonpayment of just compensation in the Court of
Appeals. Under the law, the DARAB has primary,
original and exclusive jurisdiction over cases
320
involving payments for lands awarded under

Presidential Decree No. 27. 39
such service shall be filed with the records of the

case; and
In any event, the right of petitioner-spouses to

payment of just compensation does not include
reacquisition of ownership and possession of the
property transferred to private respondents
pursuant to Presidential Decree No. 27. Lands
acquired under Presidential Decree No. 27 do not
revert to the landowner. 40
b) Summons, notices and copies of resolutions,

orders or decisions shall be served personally as
far as practicable, or by registered mail upon the
party himself, his counsel, or his duly authorized
representative. However, notice to the counsel is
notice to the party himself whether he be a
complainant or petitioner, or a defendant or
respondent. CHcETA
The due process claim of petitioner-spouses has no

leg to stand on. They have had ample opportunity
to defend their interests in due course. 41 Stripped
to its basic concept, due process is simply the
opportunity to be heard or, as applied to
administrative proceedings, the opportunity to
explain one's side or the opportunity to seek a
of. 42 Petitioner-spouses were given the chance to
sufficiently state their case concerning the
timeliness of the notice of appeal filed by private
respondents. In particular, they submitted to the
Office of the Provincial Adjudicator their Comments
[on]/Opposition to the Motion to Quash/Suspend
Implementation of Writ of Execution and Notice of
Appeal Filed by Respondents dated September 16,
1996 and Supplemental Comments [on]/Opposition
to the Motion to Quash/Suspend Implementation of
Writ of Execution and Notice of Appeal Filed by
Respondents dated October 3, 1996 where they
argued that both the motion to quash and the notice
of appeal of private respondents were filed beyond
the prescribed period. 43 In the DARAB level,
petitioner-spouses filed a Counter-Memorandum
With Motion to Dismiss Appeal dated February 9,
1997 where they again pointed out that the appeal
of private respondents was filed out of time. 44
Thus, petitioner-spouses cannot correctly claim that
they were not heard on the matter. ITDHSE
xxx xxx xxx

SECTION 9. Proof of Completeness of Service.
The return is a prima facie proof of the facts
indicated therein. Service by registered mail is
completed upon receipt by the addressee, his
counsel, or by the duly authorized representative or
agent. (Emphases supplied.)
At that time, private respondent Berma had neither
counsel nor duly authorized representative.
Therefore, the copy of the Provincial Adjudicator's
decision should have been served on Berma
personally or by registered mail. As it was sent by
registered mail to private respondent Berma as the
addressee, service thereof could only have been
completed upon receipt by Berma. As it was not
received by private respondent Berma but by his
daughter who resided in another barangay, there
was no proper and completed service of the
Provincial Adjudicator's decision on Berma. Thus,
with respect to him, the notice of appeal was also
filed on time.
Petitioner-spouses primarily anchor this petition on
an invocation of the rule on liberality in the
construction of procedural rules. However, the
"liberal construction rule" is not a license to
disregard procedural requirements. Like all rules,
procedural rules should be followed except only
when, for the most persuasive of reasons, they may
be relaxed to relieve a litigant of an injustice not
commensurate
with
the
degree
of
his
thoughtlessness in not complying with the
prescribed procedure. 49 Petitioner-spouses
caused their own predicament when they decided
to change horses in midstream and engaged the
services of their present counsel on April 10, 2000
or just a week before the expiration of the period to
appeal in the Court of Appeals, discharging the
services of their former counsel who handled the
case from the level of the Provincial Adjudicator to
the
DARAB.
They
cannot
escape
the
consequences of a belated appeal caused by the
need of their new counsel for more time to study
voluminous records and familiarize himself with the
case. Moreover, as shown above, petitionerspouses not only failed to show any persuasive
reason why they should be exempted from strictly
abiding by the rules when they filed their petition for
review in the Court of Appeals beyond the
prescribed period. They again disregarded the rules
More importantly, it has already been found that the

notice of appeal was filed on time, particularly with
respect to private respondent Siapno-Sanchez. 45
To question such finding is to raise a question of
fact. However, it is settled that questions of fact
cannot be raised in an original action for certiorari.
46 Only established or admitted facts can be
considered. 47 In this connection, it has been
established that the copy of the Provincial
Adjudicator's decision dated June 27, 1995 was
sent by registered mail to and received by private
respondent Berma's daughter who lived in another
barangay. 48 Such receipt by Berma's daughter
cannot be validly considered as service of the
Provincial Adjudicator's decision on Berma.
Sections 4 and 9, Rule V of the DARAB New Rules
of Procedure, which became effective on June 22,
1994, provides:
SECTION 4. Service of Pleadings, Notices and
Resolutions. a) The party filing the pleading shall
serve the opposing party with a copy thereof in the
manner provided for in these Rules and proof of
321
in various ways absent any compelling reason

when they filed this petition.
37.7013 hectares were also covered, with an

average valuation of P62,660.10 per hectare or for
a total amount of P1,604,141.34. The total area
acquired by DAR was 888.6489 hectares valued by
petitioner at P55,682,832.67. 6
WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED. aHcACI
Since respondent rejected DAR's offer based on

petitioner's valuation, the Provincial Agrarian
Reform Office (PARO) endorsed the claim folder to
the Department of Agrarian Reform Adjudication
Board (DARAB) Central Office for summary
administrative proceedings. 7 DAR also requested
petitioner to deposit the amount fixed as
compensation for respondent's land. On February
22, 2000, petitioner deposited in cash and agrarian
reform bonds the sum of P53,685,570.62. 8 Upon
orders of the DAR Secretary, respondent's titles
were partially cancelled and new transfer
certificates of title were issued over the areas taken
in the name of the Republic of the Philippines on
August 7, 2000. Thereafter, DAR issued
Certificates of Land Ownership Award (CLOAs) in
favor of the agrarian reform beneficiaries. 9
Sereno, C.J., Bersamin, Villarama, Jr. and Reyes,

JJ., concur.
||| (Spouses Dycoco v. Court of Appeals, G.R. No.
147257, [July 31, 2013], 715 PHIL 550-569)
10. LBP VS. AMERICAN RUBBER CORP 702
SCRA 166 (2013)
FIRST DIVISION
[G.R. No. 188046. July 24, 2013.]
LAND BANK OF THE PHILIPPINES, petitioner, vs.
AMERICAN
RUBBER
CORPORATION,
respondent.
DECISION
Exasperated by DARAB's inaction for more than

two years, respondent filed in the Regional Trial
Court (SAC) a suit 10 for judicial determination of
just compensation (Civil Case No. 4401-2K2).
Petitioner filed a motion to dismiss 11 on the
ground of non-exhaustion of administrative
remedies, citing the pendency of administrative
proceedings and respondent's admission that it had
withdrawn and collected the preliminary amount of
compensation deposited by petitioner. On January
28, 2003, the SAC denied the motion to dismiss. 12
Petitioner's motion for reconsideration was likewise
denied. 13 SDHCac
Before us is a petition for review on certiorari filed
by Land Bank of the Philippines (LBP) assailing the
August 26, 2008 Decision 1 and May 12, 2009
Resolution 2 of the Court of Appeals (CA)Mindanao Station in CA-G.R. SP No. 00990-MIN
which affirmed with modification the Orders 3 dated
June 16, 2005 and March 14, 2006 of the Regional
Trial Court (Special Agrarian Court [SAC]) of
Pagadian City, Branch 18. ESTCHa
The facts follow:
Pursuant to the Rules of Court, the SAC designated

three commissioners nominated by the parties: an
IBP member (Ret. Judge Cecilio G. Martin) as
Chairman, and Engr. Sean C. Collantes from the
Development Bank of the Philippines and BIR
Revenue Officer Cesar P. Dayagdag as Members.
American Rubber Corporation (respondent) is the

registered owner of two parcels of land with a
combined area of 940.7276 hectares situated in
Barangay Baluno, Isabela City, Basilan. The first
parcel with an area of 927.9366 hectares is
covered by Transfer Certificate of Title (TCT) No. T1286, while the second parcel consists of 12.7910
hectares under TCT No. T-1285. 4
On July 29, 2004, the Commissioners' Report 14

was submitted to the Court, with the following
findings and recommendation:
Sometime in January 1998, respondent voluntarily

offered to sell the two parcels and another property
(TCT No. T-4747) together with all improvements
for
the
total
price
of
P105,732,921.00.
Subsequently, respondent offered to sell only the
properties covered by TCT Nos. T-1285 and T-1286
at the higher amount of P83,346.77 per hectare, for
the total price of P1,066,588.60 (12.7970 hectares)
and
P76,928,492.00
(922.9930
hectares),
respectively. 5
INVESTIGATIONS TAKEN
On March 8, 2004[,] we conducted an ocular
inspection. The entire membership of the Court
appointed commissioners were all present and both
the contending parties also sent their duly
authorized representatives.
Our ocular inspection reveal that both parcels of
land are pre-dominantly planted to rubber with an
approximate density of 290-295 rubber trees per
hectare. There are relatively smaller portions
thereof which are devoted to the production of rice,
cacao, coffee, black pepper, and coconuts. Also
found inside the rubber plantation are plant
nurseries, office buildings and other infrastructures.
The Department of Agrarian Reform (DAR) initially

acquired 835.0771 hectares of respondent's
landholding, with an average valuation of
P64,288.16 per hectare or for a total amount of
P53,685,570.62. Subsequently, an additional
322
The land has an airstrip of about 10 hectares and is

likewise traversed and criss-crossed by plantation
roads, which were built by plaintiff, American
Rubber, containing an area of 27 hectares more or
less. The location [of] the rubber plantation is
approximately 8 kilometers to the city proper of
Isabela, Basilan.
VALUE/
TOTAL
TAKEN
HECTARE
VALUE
Rubberland
814.6625
P130,342
P106,184,739
Riceland
14.8470
P126,000
P1,870,722
Coconutland
5.5676
P98,430
P548,018
Cacaoland
0.8971
P157,063
P140,901
Idle/Rawland
13.4160
P80,000
P1,073,280
Black Pepper land
0.5918
P218,013
P129,020
Plant Nursery
1.5574
P200,000
P311,480
Plantation road
27.5043
P130,342
P3,584,496
Airstrip
10.1970
P150,000
P1,529,550
During the course of ocular inspection, some of our

members inquired from occupants/workers of the
rubber plantation and adjoining owners to get
information on the probable selling price of land
particularly rubberland. Our inquiry revealed that
rubberland commands a selling price of between
P120,000 to P150,000 depending on the size of the
land and condition of the rubber trees.
xxx xxx xxx
. . . we conducted inquiries from the different
government agency/officials such as the City
Assessors Office of Isabela, Department of
Agriculture, Register of Deeds, Department of
Agrarian Reform, and the Bureau of Internal
Revenue for the purpose of obtaining information
on the approximate selling price of rubberland in
the Isabela City area. Our investigation reveal that
the reasonable selling price of rubber [land] within
the City of Isabela ranges from P90,000 to
P150,000.
During the March 26, 2004 hearing, defendant LBP
submitted a Valuation Summary for plaintiff's
property while the plaintiff submitted a copy of the
appraisal report prepared by Cuervo Appraisers,
Inc. . . . cCaSHA
xxx xxx xxx
RECOMMENDATIONS
xxx xxx xxx
In VIEW of all the foregoing considerations, this
Commission hereby recommends that just
compensation of the [plaintiff's] property be fixed at
ONE HUNDRED FIFTEEN MILLION THREE
HUNDRED SEVENTY TWO THOUSAND TWO
HUNDRED SIX PESOS (P115,372,206) . . . . 15
GRAND TOTAL
P115,372,206
On June 16, 2005, the SAC issued an Order 16

adopting the Commissioners' recommendation:
WHEREFORE, judgment is hereby rendered
ordering defendant LBP and DAR to jointly and
severally pay [plaintiff] the following:
===========
2. Interest based on the 91-day treasury bills rate
as provided for under Section 18 of R.A. 6657 be
reckoned from the [date] when [plaintiff's] property
was taken and/or transferred to the Republic of the
Philippines;
3. Commissioners fees to be taxed as part of the
costs pursuant to Section 12, Rule 67, of the 1997
RCP, as amended, which shall be claimed in a Bill
of Costs to be submitted to the Court for its
evaluation and proper action thereto; SETaHC
1. Just compensation of [plaintiff's] property

amounting to ONE HUNDRED FIFTEEN MILLION
THREE HUNDRED SEVENTY TWO THOUSAND
TWO HUNDRED SIX PESOS (P115,372,206)
which amount is broken down below:
LAND USE
AREA
323
4. Reasonable attorney's fees amounting to One

Hundred Fifty Thousand Pesos (P150,000.00);
Cuervo Appraisers, Inc. in this case, "conformed to

statutory and regulatory requirements." 21
Accordingly, we sustained in said case the
valuation made by LBP, which was patterned after
the applicable administrative order issued by the
DAR. HIAEcT
5. Costs of suit.
SO ORDERED. 17
After the SAC denied its motion for reconsideration,
petitioner filed a petition for review under Rule 43
with the CA.
Petitioner further points out that the SAC's

valuation violated AO 5 guidelines stating that "the
computed value using the applicable formula shall
in no case exceed the [Landowner's] offer in case
of VOs." 22 In this case, respondent's revised offer
was only P83,346.77 per hectare but the SAC
arrived at an average value of P129,742.38 per
hectare which is 55.66% more than the landowner's
offer.
On August 26, 2008, the CA rendered the assailed

decision, the dispositive portion of which reads:
WHEREFORE, premises foregoing, the instant
petition is PARTIALLY GRANTED. The assailed
Orders dated June 16, 2005 and March 14, 2006 of
Branch 18 of the Regional Trial Court of Pagadian
City is hereby AFFIRMED with MODIFICATION that
the award of interest based on the 91-day treasury
bill is deleted.
Respondent, on the other hand, distinguished the

factual setting of this case from that of Land Bank v.
Kumassie Plantation Company, Inc. 23 It points out
that in Kumassie, the SAC merely cited the location
of the land and nature of the trees planted, and
relied heavily on the appraisal report of the private
appraiser which pegged the value of the land on its
potential benefits of land ownership. But here,
respondent claims that the SAC through its
appointed commissioners, "appeared to have dwelt
on the Market Data Approach, Income Approach
and Residual Value Approach, in determining just
compensation of respondent's property, the data
gathered under the said approaches to valuation
basically encompassed/embraced most, if not all, of
the factors enumerated in Section 17, R.A. 6657 in
relation to the relevant DAR Administrative Orders."
24 It cannot be said, therefore, that the SAC herein
had no basis in fixing the just compensation of
respondent's property after having taken into
consideration the factors enumerated in Section 17
of R.A. No. 6657.
SO ORDERED. 18
The CA also denied
reconsideration.
petitioner's
motion
for
Hence, this petition asserting that

1. THE COURT OF APPEALS COMMITTED A
SERIOUS ERROR OF LAW IN AFFIRMING WITH
MODIFICATION THE ORDERS DATED JUNE 16,
2005 AND MARCH 14, 2006 OF THE SPECIAL
AGRARIAN COURT (SAC), THE COMPENSATION
FIXED BY THE SAC NOT BEING IN
ACCORDANCE
WITH
THE
LEGALLY
PRESCRIBED VALUATION FACTORS UNDER
SECTION 17 OF R.A. 6657 AS TRANSLATED
INTO
A
BASIC
FORMULA
IN
DAR
ADMINISTRATIVE ORDER NO. 05, SERIES OF
1998 AND JOINT DAR-LBP MEMORANDUM
CIRCULAR NO. 7, SERIES OF 1999, AND AS
RULED BY THE SUPREME COURT IN THE
CASES OF SPS. BANAL, G.R. NO. 143276 (JULY
20, 2004); CELADA, G.R. NO. 164876 (JANUARY
23, 2006); AND LUZ LIM, G.R. NO. 171941
(AUGUST 2, 2007).
Respondent further invokes our ruling in Apo Fruits

Corporation v. Court of Appeals, 25 where this
Court upheld the valuation made by the RTC which
did not merely rely on the report of Commissioners
nor on the Cuervo appraiser's report but also took
into account the nature of the property as irrigated
land, location along the highway, market value,
assessor's value and the volume and value of its
produce, such valuation was considered to be in
accordance with R.A. No. 6657.
2. THE HONORABLE COURT OF APPEALS

[ERRED] IN HOLDING PETITIONER LBP LIABLE
FOR COMMISSIONERS' FEE AS THE LATTER IS
PERFORMING GOVERNMENTAL FUNCTION
AND, THEREFORE, NOT LIABLE FOR COST. 19
Section 17 of the law enumerates the factors to be

considered by the RTC in determining just
compensation to be paid to the landowner:
Petitioner assails the CA in affirming the SAC

valuation
which
merely
adopted
the
Commissioners' Report which, in turn, is based
solely on the recommended valuation by
respondent's private appraiser, Cuervo Appraisers,
Inc. using a different criteria. It cites our ruling in
Land Bank of the Philippines v. Kumassie
Plantation Company, Inc. 20 where this Court noted
that no basis had been shown in the appraisal
report for concluding that the market data approach
and income approach, the same criteria used by
Section 17. Determination of Just Compensation.

In determining just compensation, the cost of
acquisition of the land, the current value of like
properties, its nature, actual use and income, the
sworn valuation by the owner, the tax declarations,
and the assessment made by government
assessors, shall be considered. The social and
economic benefits contributed by the farmers and
the farmworkers and by the Government to the
property as well as the non-payment of taxes or
324
loans secured from any government financing

institution on the said land shall be considered as
additional factors to determine its valuation.
CEaDAc
DAR's duty to issue rules and regulations to carry

out the object of the law. [The] DAR [Administrative
Order] precisely "filled in the details" of Section 17,
R.A. No. 6657 by providing a basic formula by
which the factors mentioned therein may be taken
into account. The [RTC] was at no liberty to
disregard the formula which was devised to
implement the said provision. DEICHc
Thus, the RTC shall be guided by the following

factors in just compensation cases: (1) the
acquisition cost of the land; (2) the current value of
the properties; (3) its nature, actual use, and
income; (4) the sworn valuation by the owner; (5)
the tax declarations; (6) the assessment made by
government assessors; (7) the social and economic
benefits contributed by the farmers and the
farmworkers, and by the government to the
property; and (8) the non-payment of taxes or loans
secured from any government financing institution
on the said land, if any. 26 These factors have been
translated into the following basic formula under
relevant issuances 27 by the DAR:
It is elementary that rules and regulations issued by

administrative bodies to interpret the law which they
are entrusted to enforce, have the force of law, and
are entitled to great respect. Administrative
issuances partake of the nature of a statute and
have in their favor a presumption of legality. As
such, courts cannot ignore administrative issuances
especially when, as in this case, its validity was not
put in issue. Unless an administrative order is
declared invalid, courts have no option but to apply
the same." [emphases ours]
LV = (CNI x 0.6) +(CS x 0.3)+(MV x 0.1)

Where:LV = Land Value
CNI = Capitalized Net Income
CS = Comparable Sales
MV = Market Value per Tax Declaration 28
The mandatory application by the RTC of the above
formula in accordance with DAR administrative
orders and circulars had been settled by this Court.
In Land Bank of the Philippines v. Honeycomb
Farms Corporation, 29 we cited a long line of
jurisprudence and reiterated the standing rule on
the matter:
We reiterated the mandatory application of the

formula in the applicable DAR administrative
regulations in Land Bank of the Philippines v. Lim,
Land Bank of the Philippines v. Heirs of Eleuterio
Cruz, and Land Bank of the Philippines v. Barrido.
In Barrido, we were explicit in stating that:
"While the determination of just compensation is
essentially a judicial function vested in the RTC
acting as a Special Agrarian Court, the judge
cannot abuse his discretion by not taking into full
consideration the factors specifically identified by
law and implementing rules. Special Agrarian
Courts are not at liberty to disregard the formula
laid down in DAR A.O. No. 5, series of 1998,
because unless an administrative order is declared
invalid, courts have no option but to apply it. The
courts cannot ignore, without violating the agrarian
law, the formula provided by the DAR for the
determination of just compensation." (emphases
ours)
In Land Bank of the Philippines v. Sps. Banal, we

recognized that the DAR, as the administrative
agency tasked with the implementation of the
agrarian reform program, already came up with a
formula to determine just compensation which
incorporated the factors enumerated in Section 17
of RA 6657. We said:
"These factors [enumerated in Section 17] have
been translated into a basic formula in DAR
Administrative Order No. 6, Series of 1992, as
amended by DAR Administrative Order No. 11,
Series of 1994, issued pursuant to the DAR's rulemaking power to carry out the object and purposes
of R.A. 6657, as amended." [emphases ours]
These rulings plainly impose on the RTC the duty

to apply the formula laid down in the pertinent DAR
administrative regulations to determine just
compensation. Clearly, the CA and the RTC acted
with grievous error when they disregarded the
formula laid down by the DAR, and chose instead
to come up with their own basis for the valuation of
the subject land. 30 [Additional emphasis and
underscoring supplied; citations omitted.]
In Landbank of the Philippines v. Celada, we

emphasized the duty of the RTC to apply the
formula provided in the applicable DAR AO to
determine just compensation, stating that:
In ruling for the respondent, the CA ruled that the

RTC is not bound to adopt exclusively the formula
set by DAR's issuances, citing this Court's ruling in
Apo Fruits Corporation v. Court of Appeals, 31 and
that the SAC "may in the exercise of its judicial
discretion use other factors and alternative formula
in fixing the proper valuation of just compensation.
ICTaEH
"While [the RTC] is required to consider the

acquisition cost of the land, the current value of like
properties, its nature, actual use and income, the
sworn valuation by the owner, the tax declaration
and the assessments made by the government
assessors to determine just compensation, it is
equally true that these factors have been translated
into a basic formula by the DAR pursuant to its rulemaking power under Section 49 of R.A. No. 6657.
As the government agency principally tasked to
implement the agrarian reform program, it is the
As already mentioned, the SAC is duty-bound to

apply the formula laid down in DAR AO No. 5. The
CA clearly erred in affirming the valuation by the
325
SAC in this case based on the private appraiser's

correlated income, market data and residual value
approaches which did not conform to the guidelines
set forth in DAR AO No. 5 and Joint DAR-LBP
Memorandum Circular (MC) No. 7, Series of 1999.
It must be stressed that MC No. 7 was issued to
provide revised guidelines in determining the
Capitalized Net Income (CNI) specifically for
rubberlands:
law and are entitled to great respect, courts

interpret administrative regulations in harmony with
the law that authorized them and avoid as much as
possible any construction that would annul them as
invalid exercise of legislative power. 33
This Court has defined "just compensation" for
parcels of land taken pursuant to the agrarian
reform program as "the full and fair equivalent of
the property taken from its owner by the
expropriator." The measure of compensation is not
the taker's gain but the owner's loss. 34 Just
compensation means the equivalent for the value of
the property at the time of its taking. It means a fair
and full equivalent value for the loss sustained. All
the facts as to the condition of the property and its
surroundings, its improvements and capabilities
should be considered. 35 Thus, the current value of
like properties should have been considered by
petitioner to accurately determine the value of the
land at the time of taking, that is, in August 2000
when respondent's title was transferred to the
Government.
1. PREFATORY STATEMENT
The rubber plantation income models presented
under the old rubber Land Valuation Guideline
(LVG No. 6, Series of 1990) recognized the income
of rubber plantations based on processed crumb
rubber. However, recent consultations with rubber
authorities (industry, research, etc.) disclosed that
the standard income approach to valuation should
measure the net income or productivity of the land
based on the farm produce (in their raw forms) and
not on the entire agri-business income enhanced
by the added value of farm products due to
processing. Hence, it is more appropriate to
determine the Capitalized Net Income (CNI) of
rubber plantations based on the actual yield and
farm gate prices of raw products (field latex and
cuplump) and the corresponding cost of production.
In Land Bank of the Philippines v. Heirs of Salvador

Encinas we said that:
The "taking of private lands under the agrarian
reform program partakes of the nature of an
expropriation proceeding." In computing the just
compensation for expropriation proceedings, the
RTC should take into consideration the "value of
the land at the time of the taking, not at the time of
the rendition of judgment." "The 'time of taking' is
the time when the landowner was deprived of the
use and benefit of his property, such as when title is
transferred to the Republic. 36
There is also a growing market for old rubber trees

which are estimated to generate net incomes
ranging between P20,000 and P30,000 per hectare
or an average of about P100 per tree, depending
on the remaining stand of old trees at the end of its
economic life. This market condition for old rubber
trees was not present at the time LVG No. 6, Series
of 1990, was being prepared. (The terminal or
salvage value of old rubber trees was at that time
pegged at only P6,000 per hectare, representing
the amount then being paid by big landholders to
contractors for clearing and uprooting old trees.
However, while the CA correctly observed that

petitioner's valuation omitted an integral factor
mandated by Section 17, the records are bereft of
any supporting evidence to compute the CS. The
documents submitted by the respondent to the
Commissioners consisted merely of sworn
affidavits of adjacent owners/sellers and not
registerable deeds of sale. The SAC's decision
actually did not contain any discussion of its
application of any formula to the facts established
by evidence, as it merely adopted the
Commissioners' Report, which in turn was based
solely on the findings and computation of the
Cuervo Appraisal Report. EIDATc
LVG No. 6, Series of 1990, was therefore revised to

address the foregoing considerations and in
accordance with DAR Administrative Order (AO)
No. 05, Series of 1998.
Petitioner, however, admits that it did not consider
data on comparative sales transactions (CS) which
it said are not applicable since under DAR AO 5,
the sales transactions should have been executed
"within the period January 1, 1985 to June 15, 1988
and registered within the period January 1, 1985 to
September 13, 1988." 32 SECcIH
Considering, therefore, that the SAC based its

valuation on a different formula, 37 while petitioner
failed to take into full consideration the factors set
forth in Section 17, and in the absence of sufficient
evidence
for
the
determination
of
just
compensation, 38 we are constrained to remand
the present case to the SAC for the determination
of just compensation in accordance with Section 17
of RA 6657, DAR AO 5, Series of 1998 and Joint
DAR-LBP MC No. 7, Series of 1999. The said trial
court may, motu proprio or at the instance of any of
the parties, again appoint one or more
We cannot accept petitioner's valuation as it failed

to consider the value of the property at the time of
taking, the current value of like properties being
among those factors enumerated in Section 17.
Indeed, these administrative issuances or orders,
though they enjoy the presumption of legalities, are
still subject to the interpretation by the Supreme
Court pursuant to its power to interpret the law.
While rules and regulation issued by the
administrative bodies have the force and effect of
326
commissioners to ascertain facts relevant to the

dispute and file a written report thereof. 39
(TCT) No. T-59156 and 177 square meters from

Villanueva's lot covered by TCT No. T-64556 for the
construction of the Zapote-Alabang Fly-Over. 5

August 26, 2008 Decision and May 12, 2009
Resolution of the Court of Appeals-Mindanao
Station in CA-GR. SP No. 00990-MIN are
REVERSED and SET ASIDE. The case is hereby
REMANDED to the Regional Trial Court (Special
Agrarian Court) of Pagadian City, Branch 18, which
is directed to determine with dispatch, and with the
assistance of at least three commissioners, the just
compensation due to the respondent American
Rubber Corporation, in accordance with Section 17
of R.A. No. 6657, DAR AO 5, Series of 1998, Joint
DAR-LBP MC No. 7, Series of 1999 and other
applicable DAR issuances.
Neither BPI nor Villanueva objected to the propriety

of the expropriation; 6 hence, the trial court
constituted a Board of Commissioners to determine
the just compensation. 7 In their Report dated 29
September 1998, 8 the Board of Commissioners
recommended the amount of P40,000.00 per
square meter as the fair market value. On 25
November 1998, the trial court in its Decision set
the fair market value at P40,000.00 per square
meter: 9
The property of BPI, which was affected, consists
of 281 square meters and that of Defendant
Villanueva consists of 177 square meters. Hence
the amount to be awarded to the defendants shall
be computed as follows: ICAcTa
SO ORDERED.
BPI 281 sq. meters

P11,240,000.00; and
Sereno, C.J., Leonardo-de Castro, Bersamin and

Reyes, JJ., concur.
P40,000.00
Villanueva 177 sq. meters x P40,000.00 =

P7,080,000.00
||| (Land Bank of the Phils. v. American Rubber

Corp., G.R. No. 188046, [July 24, 2013], 715 PHIL
154-171)
Considering that the plaintiff has deposited the

amount of P632,250.00 with respect to the property
of BPI, the latter should receive the amount of
P10,607,750.00.
11. REPUBLIC VS. BPI 705 SCRA 560 (2013)

SECOND DIVISION
With respect to Defendant Villanueva, the plaintiff

deposited the provisional amount of P2,655,000.00,
hence, the remaining amount to be paid is
P4,425,000.00.
[G.R. No. 203039. September 11, 2013.]

REPUBLIC OF THE PHILIPPINES, represented by
the DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS (DPWH), petitioner, vs. BANK OF THE
PHILIPPINE ISLANDS (BPI), respondent.

is hereby rendered ordering the plaintiff Republic of
the Philippines as represented by the Department
of Public Works and Highways to pay defendant
Bank of the Philippine Islands the amount of TEN
MILLION SIX HUNDRED SEVEN THOUSAND
AND
SEVEN
HUNDRED
FIFTY
PESOS
(P10,607,750.00) and Defendant Bayani Villanueva
the amount of FOUR MILLION FOUR HUNDRED
TWENTY FIVE THOUSAND (P4,425,000.00), as
just compensation for their properties which were
expropriated. 10
DECISION
CARPIO, J p:
The Case
Before the Court is a petition for review 1 assailing
the Decision 2 dated 14 September 2011 and
Resolution 3 dated 06 August 2012 of the Court of
Appeals in CA-G.R. CV No. 79843, affirming the
Order 4 dated 03 February 2003 of the Regional
Trial Court of Las Pias City in Civil Case No. LP
98-0031.
On 15 December 1998, the acting branch clerk of

court issued a Certification 11 stating that:
. . . the Decision in this case dated November 25,
1998 has become FINAL, EXECUTORY and
UNAPPEALABLE as of December 11, 1998
considering that the Office of the Solicitor General
failed to file any Notice of Appeal or Motion for
Reconsideration despite receipt of a copy thereof
on November 26, 1998.
The Antecedent Facts

On 12 February 1998, the Department of Public
Works and Highways (DPWH) filed with the
Regional Trial Court, National Capital Region, Las
Pias City, Branch 275 (trial court), a case for
expropriation against portions of the properties of
Bank of the Philippine Islands (BPI) and of Bayani
Villanueva (Villanueva) situated in Pamplona, Las
Pias City. DPWH needed 281 square meters of
BPI's lot covered by Transfer Certificate of Title

of Atty. Jansen Rodriguez for whatever legal
purpose it may serve.
327
Meanwhile, BPI filed on 16 December 1998 a

Motion for Partial New Trial 12 to determine the just
compensation of its building, which was not
included in the Decision dated 25 November 1998
that fixed the just compensation for the parcels of
land. In the motion, BPI claimed that its motion was
timely filed since it received a copy of the Decision
on 01 December 1998. 13 The trial court granted
partial new trial in an Order dated 06 January 1999.
DAEIHT
On 19 September 2000, the trial court appointed

Atty. Edgar Allan C. Morante, the branch clerk of
court, as the chairman of the Board of
Commissioners, and gave petitioner and BPI ten
days to submit their respective nominees and their
oaths of office. 25 On 28 September 2000, BPI
nominated Roland Savellano (Savellano), and
submitted his oath of office. 26
Instead of submitting its nominee, petitioner filed on
13 October 2000 a Manifestation and Motion 27
objecting to the propriety of paying just
compensation for BPI's building and praying that
BPI's claim for additional just compensation be
denied. Petitioner claimed that the building was
never taken by the government. 28 In support,
petitioner attached a letter dated 12 September
2000 from the DPWH, addressed to the Solicitor
General. The letter states, in part: DHSCEc
Due to the failure of counsel for petitioner, despite

notice, to appear during the scheduled hearing for
the determination of the just compensation of the
building, the trial court allowed BPI to present its
evidence ex parte. 14 On O1 September 1999, the
trial court admitted the exhibits presented by BPI.
15 On the same day, the trial court also appointed
as commissioner the Officer-in-Charge of the trial
court, Leticia B. Agbayani (Agbayani), and ordered
her to conduct an ocular inspection of the building.
16 Agbayani reported the following findings:
. . . the original plan affecting the subject property

was not implemented. The width of the sidewalk at
the premises under consideration was actually
reduced from 2.50 m to 2.35 m . . . to avoid the
costly structure of that bank. 29
a) That the undersigned found out that a new

building was constructed and a picture of said
building is hereto attached and made as an integral
part hereof as Annex "A" and;
In its opposition, 30 BPI claimed that it was not

aware that the original plan was not implemented. It
received no correspondence from the DPWH on
the matter, except for the letter dated 12 August
1997 from DPWH addressed to BPI, stating in part
that:
b) That the building was moved back when it was

constructed to conform with the requirement of the
Building Code; and
c) Improvements were introduced around the
building. 17
We regret to inform you that adjustment of the

RROW limit of our project along this section is not
possible as it will affect the effective width of the
sidewalk designated at 2.50 m. wide. 31 (Emphasis
in the original)
In its Decision dated 10 September 1999, 18 the

trial court held that just compensation for the
building was due and ordered petitioner to pay BPI
the amount of P2,633,000.00. The dispositive
portion of the Decision reads:
BPI also argued that even "if a 3-meter setback is

observed, only 75% of the old building could be
utilized . . . [and] cutting the support system of the
building . . . would affect the building's structural
integrity." 32
WHEREFORE, IN VIEW OF THE FOREGOING,

judgment is hereby rendered ordering the plaintiff
Republic of the Philippines represented by the
Department of Public Works and Highways to pay
defendant Bank of the Philippine Island (sic) the
amount of TWO MILLION SIX HUNDRED THIRTY
THREE [THOUSAND] PESOS (PHP2,633,000.00).
19
On 07 May 2001, the trial court denied 33

petitioner's motion dated 09 October 2000, and
ruled that the demolition of the old building of BPI
can be construed as a consequential damage
suffered by BPI as a result of the expropriation.
Petitioner was thus ordered to submit its nominee
to the Board of Commissioners.
Petitioner moved for the reconsideration 20 of the

10 September 1999 Decision on the ground that
the proceeding fixing the just compensation of the
building is null and void for not complying with the
mandatory procedure set forth in Sections 5 to 8 of
Rule 67 of the Rules of Court. 21
Petitioner nominated Romulo C. Gervacio

(Gervacio), the Officer-in-Charge of the City
Assessor's Office in Las Pias City. The Board thus
constituted,
the
trial
court
ordered
the
Commissioners to submit their recommendation.
After due hearing, the trial court granted on 14

February
2000
petitioner's
motion
for
reconsideration and ordered that the Decision
dated 10 September 1999 be set aside and
vacated. 22 From this order, BPI filed a motion for
reconsideration, 23 on the ground that there was
substantial compliance with the Rules. The trial
court denied BPI's motion for reconsideration. 24
Commissioner for BPI Savellano recommended the

amount of P2,633,000.00, which was based on the
appraisal
conducted
by
an
independent
professional business and property consultant. 34
On the other hand, Commissioner for petitioner
328
Gervacio
recommended
the
amount
of
P1,905,600.00, which was the market value
indicated on the tax declaration of said building.
The Commissioner's Report 35 presented both the
recommendations of Savellano and Gervacio for
the trial court's consideration.
Guided by the foregoing provisions of law, the

crucial fact in which the finality of the decision
dated November 25, 1998 with respect to
defendant-appellee, depends in the determination
of the date of its receipt of the copy of the said
decision in order to ascertain whether its motion for
partial new trial was filed within the 15-day period
allowed by law.
The Trial Court's Ruling

The trial court issued the Order 36 dated 03
February 2003, adopting the recommendation of
Gervacio of P1,905,600.00, thus: HSAcaE
In this case, records bear that a copy of the

decision dated November 25, 1998, ordering the
payment of just compensation for the expropriated
land was received in behalf of defendant Bayani
Villanueva on the same day of its promulgation. A
copy of the said decision was also served upon
plaintiff-appellant through the OSG on November
26, 1998. However, there is no showing, that
defendant-appellee through its counsel received a
copy of the trial court's decision on a definite date.
No official return nor affidavit of the party serving
the decision was attached to the records of the
case. Neither was the presence of a registry receipt
issued by the mailing office nor a registry return
card containing the date of receipt of the decision
be found among its records. Since there was no
showing as to the exact date of receipt of
defendant-appellee of the said decision, the
running of the period of 15 days within which to file
a motion for new trial did not begin to run.
Therefore, the filing of defendant-appellee of a
motion for partial new trial on December 16, 1998
was never delayed but timely filed thus preventing
the decision dated November 25, 1998 from
attaining finality as against them. Moreover, We find
the admission of defendant-appellee in its brief filed
on June 2, 2005, that it received a copy of the trial
court's decision on December 1, 1998, sufficient to
comply with the requirement of a written admission
of a party served with a judgment as provided in
Sec. 13 of Rule 13, of the Rules of Civil Procedure.
It should also be noted that the certification issued
by Edgar Allan C. Morante, the acting clerk of court,
as to the finality of judgment as of December 11,
1998 will not stand against defendant-appellee
because the 15-day period to file an appeal will
only start to commence upon the receipt of the
decision which is on December 1, 1998. Counting
the 15-day period from the first of December, the
period within which to file an appeal will expire on
December 16, 1998. Thus, the trial court did not err
in granting the motion for partial new trial of the
defendant-appellee as the same was amply filed
with the reglementary period prescribed by law.
The Court approves the Recommendation dated

October 22, 2001 of ONE MILLION NINE
HUNDRED FIVE THOUSAND SIX HUNDRED
PESOS
(P1,905,600.00)
by
Commissioner
ROMULO C. GERVACIO as the just compensation
of the building of the Bank of the Philippine Islands
(BPI) Zapote affected by the construction of the
Zapote-Alabang Fly-over, it appearing that such
amount is the existing market value of the property
pursuant to the Declaration by BPI as the market
value of the building affected by the project as
contained in Tax Declaration D-006-02044.
Let the same amount be paid by the Republic of the
Philippines through the Department of Public Works
and Highways as the just compensation for the
property. 37
Petitioner filed an appeal with the Court of Appeals
docketed as CA-G.R. CV No. 79843. 38
The Court of Appeals' Ruling
On 14 September 2011, the Court of Appeals
dismissed the appeal and affirmed the order of the
trial court. The relevant portions of the decision
state:
We cannot sustain plaintiff-appellant's proposition
that the decision dated November 25, 1998 has
already attained finality there being no appeal filed
within the reglementary period as provided in
Section 3, Rule 41 of the 1997 Rules of Civil
Procedure.
Pursuant to Section l, Rule 37 of the Rules of Civil
Procedure, the period within which an aggrieved
party may move the trial court to set aside the
judgment or final order and file a motion for new
trial is within the period to file an appeal, which is
fifteen (15) days from receipt of the judgment or
final order. It is explicit from the stated provision
that the fifteen day period to file a motion for new
trial will start to run from receipt of judgment or final
order. A judgment, final order or resolution shall be
served upon a party either personally or through
registered mail. Moreover, Section 13 of Rule 13 of
the Rules of Civil Procedure specifically provides
for the proof of service of judgments, final orders or
resolution . . . . CIAacS
Having settled that the motion for partial new trial

was timely filed, We now rule that the trial court did
not lose its jurisdiction when it conducted
subsequent
proceedings
determining
just
compensation and later on directed plaintiffappellant to pay additional just compensation in the
amount of P1,905,600.00 for the building of
defendant-appellee.
xxx xxx xxx

Lastly, as to the argument of plaintiff-appellant that
the award of additional just compensation for the
329
building of defendant-appellee is erroneous and

without legal basis because the building was never
taken by the government in the expropriation
proceeding conducted by the trial court nor was it
affected by the construction of the Zapote-Alabang
Flyover, We find the ruling of Republic of the
Philippines through the DPWH vs. CA and Rosario
R. Reyes appropriate to apply in this case, to wit:
TcEAIH
December 1998. It argues that the appellate court

erred in reckoning the 15-day reglementary period
from a mere admission of the date of receipt by
BPI. Petitioner further argues that the Certification
issued by the acting branch clerk of the trial court
enjoys a presumption of regularity and that BPI had
not been able to overcome the presumption. Both
the trial and appellate courts found that BPI's
motion for partial new trial was filed on time.
Petitioner contends that no consequential damages

may be awarded as the remaining lot was not
"actually taken" by the DPWH, and to award
consequential damages for the lot which was
retained by the owner is tantamount to unjust
enrichment on the part of the latter.
A perusal of the Certification reveals that it certifies

that the 25 November 1998 Decision had already
become final, executory and unappealable as to
petitioner:
. . . the Decision in this case dated November 25,
1998 has become FINAL, EXECUTORY and
UNAPPEALABLE as of December 11, 1998
considering that the Office of the Solicitor General
failed to file any Notice of Appeal or Motion for
Reconsideration despite receipt of a copy thereof
on November 26, 1998.
Petitioner's contention is unmeritorious.

No actual taking of the remaining portion of the real
property is necessary to grant consequential
damages. If as a result of the expropriation made
by petitioner, the remaining lot (i.e., the 297-square
meter lot) of private respondent suffers from an
impairment or decrease in value, consequential
damages may be awarded to private respondent.

of Atty. Jansen Rodriguez for whatever legal
purpose it may serve. 43 (Emphasis supplied)
WHEREFORE, in view of the foregoing

considerations, the instant appeal is hereby
DISMISSED. The assailed order of the Regional
Trial Court of Las Pias, Branch 275 dated
February 3, 2003 is AFFIRMED in toto. 39
(Emphasis and underscoring supplied; italicization
in the original.)
There can be no other reading of this certificate that

would be supported by the record.
Section 9 of Rule 13 of the Rules of Court states
that judgments, final orders or resolutions shall be
served either personally or by registered mail.
Section 13 of the same Rule provides what consists
proof of service:
Petitioner filed a Motion for Reconsideration. 40

This was denied by the appellate court in a
Resolution dated 06 August 2012. 41
Proof of personal service shall consist of a written

admission of the party served, or the official return
of the server, or the affidavit of the party serving,
containing a full statement of the date, place and
manner of service. . . . If service is made by
registered mail, proof shall be made by such
affidavit and the registry receipt issued by the
mailing office. The registry return card shall be filed
immediately upon its receipt by the sender . . . .
AaCcST
The Issues
The issues for our resolution are: (1) whether the
trial court's Decision dated 25 November 1998 had
become final and executory before BPI filed its
motion for partial new trial; and (2) whether the
award of additional just compensation for BPI's
building in the amount fixed therefor is unfounded
and without legal basis.
A careful review of the record shows the absence of

any proof that the Decision of 25 November 1998
was served upon BPI. Hence, the Court of Appeals
correctly held that absent any proof of service to
BPI of the Decision, the period of 15 days within
which to file its motion for partial new trial did not
begin to run against BPI. However, BPI's admission
that it received a copy of the Decision on 01
December 1998 is binding on it, and was correctly
considered by the Court of Appeals as the
reckoning date to count the 15-day period.
The Court's Ruling

We find the appeal unmeritorious.
On whether BPI's motion for partial new
trial was filed out of time
Petitioner contends that the trial court's Decision
dated 25 November 1998 had already become final
and executory as of 11 December 1998, as stated
in the Certification 42 issued by the acting branch
clerk of court. On the other hand, BPI asserts that
its motion for partial new trial filed on 16 December
1998 was timely filed because it received a copy of
the Decision on 01 December 1998. aCASEH
On whether the award of additional just

compensation and the amount fixed therefor
was unfounded and without legal basis
Eminent domain is the authority and right of the
State, as sovereign, to take private property for
public use upon observance of due process of law
and payment of just compensation. 44 The State's
Petitioner argues that the Court of Appeals erred in

holding that the 25 November 1998 Decision did
not become final and executory for BPI on 11
330
power of eminent domain is limited by the

constitutional mandate that private property shall
not be taken for public use without just
compensation. 45
consequential damages after deducting therefrom

the consequential benefits which may arise from
the expropriation. If the consequential benefits
exceed the consequential damages, these items
should be disregarded altogether as the basic value
of the property should be paid in every case.
Just compensation is the full and fair equivalent of

the property sought to be expropriated. 46 The
general rule is that the just compensation to which
the owner of the condemned property is entitled to
is the market value. 47 Market value is that sum of
money which a person desirous but not compelled
to buy, and an owner willing but not compelled to
sell, would agree on as a price to be paid by the
buyer and received by the seller. The general rule,
however, is modified where only a part of a certain
property is expropriated. 48 In such a case, the
owner is not restricted to compensation for the
portion actually taken, he is also entitled to recover
the consequential damage, if any, to the remaining
part of the property. 49
We quote with approval the ruling of the Court of

Appeals:
Lastly, as to the argument of plaintiff-appellant that
the award of additional just compensation for the
building of defendant-appellee is erroneous and
without legal basis because the building was never
taken by the government in the expropriation
proceeding conducted by the trial court nor was it
affected by the construction of the Zapote-Alabang
Flyover, We find the ruling of Republic of the
Philippines through the DPWH vs. CA and Rosario
R. Reyes appropriate to apply in this case, to wit:
In this case, petitioner questions the appellate

court's Decision affirming the trial court's Order of
03 February 2003 granting additional just
compensation for consequential damages for BPI's
building. Petitioner contends that BPI's building was
"never taken" by petitioner, and that to award
consequential damages for the building was
unfounded and without legal basis. In support of its
contention, petitioner relies on the letter dated 12
September 2000 of the DPWH to the Office of the
Solicitor General 50 stating that the proposed
sidewalk of 2.50 meters was reduced to 2.35
meters, thus leaving BPI's building intact.
Petitioner contends that no consequential damages

may be awarded as the remaining lot was not
"actually taken" by the DPWH, and to award
consequential damages for the lot which was
retained by the owner is tantamount to unjust
enrichment on the part of the latter.
Petitioner's contention is unmeritorious.
No actual taking of the remaining portion of the real
property is necessary to grant consequential
damages. If as a result of the expropriation made
by petitioner, the remaining lot (i.e., the 297-square
meter lot) of private respondent suffers from an
impairment or decrease in value, consequential
damages may be awarded to private respondent.
53 (Italicization in the original) cAHIST
Petitioner's argument is untenable.

No actual taking of the building is necessary to
grant consequential damages. Consequential
damages are awarded if as a result of the
expropriation, the remaining property of the owner
suffers from an impairment or decrease in value. 51
The rules on expropriation clearly provide a legal
basis for the award of consequential damages.
Section 6 of Rule 67 of the Rules of Court provides:
Petitioner would also have us review the bases of

the courts below in awarding just compensation for
the building for consequential damages. The
uniform findings of the trial court and the appellate
court are entitled to the greatest respect. They are
binding on the Court in the absence of a strong
showing by petitioner that the courts below erred in
appreciating the established facts and in drawing
inferences from such facts. 54 We find no cogent
reason to deviate from this.
. . . The commissioners shall assess the

consequential damages to the property not taken
and deduct from such consequential damages the
consequential benefits to be derived by the owner
from the public use or public purpose of the
property taken, the operation of its franchise by the
corporation or the carrying on of the business of the
corporation or person taking the property. But in no
case shall the consequential benefits assessed
exceed the consequential damages assessed, or
the owner be deprived of the actual value of his
property so taken. EHSTDA
The Court would like to stress that there is a stark

absence in the records of any proof that DPWH
communicated its amended plan to BPI or to the
trial court. On the other hand, the trial court found
that BPI was not notified of the reduction and had
relied only on the DPWH letter dated 12 August
1997 saying that it was not possible to reduce the
width of the sidewalk. Petitioner had actively
participated in the expropriation proceedings of the
portion of BPI's lot according to the original plan,
the decision for which was promulgated on 25
November 1998. The trial court had also ruled that
additional just compensation for the building was in
order in its Decision dated 10 September 1999,
from which petitioner moved for reconsideration but
In B.H. Berkenkotter & Co. v. Court of Appeals, 52

we held that:
To determine just compensation, the trial court
should first ascertain the market value of the
property, to which should be added the
331
only as to the procedure in the determination of the

amount. Further, the records show that by 07
September 1999, when Officer-in-Charge Agbayani
conducted an ocular inspection, a new building had
already been constructed replacing the old one;
whereas the amended plan was communicated by
DPWH to the OSG only in September 2000, when
the trial court was constituting anew the Board of
Commissioners to determine the amount of just
compensation for the building. The findings of the
lower courts are borne by the records. Hence, there
was proper basis for the determination of just
compensation for the building for consequential
damages.
On April 23, 1992, RA 7432 was passed into law,

granting senior citizens the following privileges:
a) the grant of twenty percent (20%) discount from
establishment[s],restaurants and recreation centers
and purchase of medicine anywhere in the country:
Provided, That private establishments may claim
the cost as tax credit;
b) a minimum of twenty percent (20%) discount on
admission fees charged by theaters, cinema
houses and concert halls, circuses, carnivals and
other similar places of culture, leisure, and
amusement;
WHEREFORE, we DENY the petition. We AFFIRM

the Court of Appeals' Decision dated 14 September
2011 and Resolution dated 06 August 2012 in CAG.R. CV No. 79843.
c) exemption from the payment of individual

income taxes: Provided, That their annual taxable
income does not exceed the property level as
determined by the National Economic and
Development Authority (NEDA) for that year;
SO ORDERED.
Brion, Del Castillo, Perez and Perlas-Bernabe, JJ.,
concur.
||| (Republic v. Bank of the Philippine Islands, G.R.
No. 203039, [September 11, 2013])
12. MANILA MEMORIAL
SCRA 302 (2013)
VS.
DSWD
d) exemption from training fees for socioeconomic

programs undertaken by the OSCA as part of its
work;
711
[G.R. No. 175356. December 3, 2013.]
e) free medical and dental services in government

establishment[s] anywhere in the country, subject to
guidelines to be issued by the Department of
Health, the Government Service Insurance System
and the Social Security System; EaHATD
MANILA MEMORIAL PARK, INC. AND LA

FUNERARIA
PAZ-SUCAT,
INC.,
petitioners,vs.SECRETARY
OF
THE
DEPARTMENT OF SOCIAL WELFARE AND
DEVELOPMENT and THE SECRETARY OF THE
DEPARTMENT OF FINANCE, respondents.
f) to the extent practicable and feasible, the

continuance of the same benefits and privileges
given by the Government Service Insurance
System (GSIS),Social Security System (SSS) and
PAG-IBIG, as the case may be, as are enjoyed by
those in actual service.
DECISION
On August 23, 1993, Revenue Regulations (RR)

No. 02-94 was issued to implement RA 7432.
Sections 2 (i) and 4 of RR No. 02-94 provide:
Sec. 2. DEFINITIONS. For purposes of these
regulations:
EN BANC
DEL CASTILLO, J p:
When a party challenges the constitutionality of a
law, the burden of proof rests upon him. 1
Before us is a Petition for Prohibition 2 under Rule
65 of the Rules of Court filed by petitioners Manila
Memorial Park, Inc. and La Funeraria Paz-Sucat,
Inc., domestic corporations engaged in the
business of providing funeral and burial services,
against public respondents Secretaries of the
Department of Social Welfare and Development
(DSWD) and the Department of Finance (DOF).
Petitioners assail the constitutionality of Section 4
of Republic Act (RA) No. 7432, 3 as amended by
RA 9257, 4 and the implementing rules and
regulations issued by the DSWD and DOF insofar
as these allow business establishments to claim the
20% discount given to senior citizens as a tax
deduction. TECcHA
Factual Antecedents
i. Tax Credit refers to the amount representing

the 20% discount granted to a qualified senior
citizen by all establishments relative to their
utilization of transportation services, hotels and
similar
lodging
establishments,
restaurants,
drugstores, recreation centers, theaters, cinema
houses, concert halls, circuses, carnivals and other
similar places of culture, leisure and amusement,
which discount shall be deducted by the said
establishments from their gross income for income
tax purposes and from their gross sales for valueadded tax or other percentage tax purposes.
xxx xxx xxx
Sec.
4.
REQUIREMENTS
332
RECORDING/BOOKKEEPING
FOR
PRIVATE
ESTABLISHMENTS. Private establishments,

i.e.,transport services, hotels and similar lodging
establishments, restaurants, recreation centers,
drugstores, theaters, cinema houses, concert halls,
circuses, carnivals and other similar places of
culture[,] leisure and amusement, giving 20%
discounts to qualified senior citizens are required to
keep separate and accurate record[s] of sales
made to senior citizens, which shall include the
name, identification number, gross sales/receipts,
discounts, dates of transactions and invoice
number for every transaction. cISDHE
gross sales in order to compute the gross income in

the income statement and cannot be deducted
again, even for purposes of computing the income
tax.
When the law says that the cost of the discount
may be claimed as a tax credit, it means that the
amount when claimed shall be treated as a
reduction from any tax liability, plain and simple.
The option to avail of the tax credit benefit depends
upon the existence of a tax liability, but to limit the
benefit to a sales discount which is not even
identical to the discount privilege that is granted by
law does not define it at all and serves no useful
purpose. The definition must, therefore, be stricken
down. DcSTaC
The amount of 20% discount shall be deducted

from the gross income for income tax purposes and
from gross sales of the business enterprise
concerned for purposes of the VAT and other
percentage taxes.
Laws Not Amended

by Regulations
In Commissioner of Internal Revenue v. Central

Luzon Drug Corporation, 5 the Court declared
Sections 2 (i) and 4 of RR No. 02-94 as erroneous
because these contravene RA 7432, 6 thus:
RA 7432 specifically allows private establishments
to claim as tax credit the amount of discounts they
grant. In turn, the Implementing Rules and
Regulations, issued pursuant thereto, provide the
procedures for its availment. To deny such credit,
despite the plain mandate of the law and the
regulations carrying out that mandate, is
indefensible.
Second, the law cannot be amended by a mere

regulation. In fact, a regulation that "operates to
create a rule out of harmony with the statute is a
mere nullity;" it cannot prevail.
It is a cardinal rule that courts "will and should
respect the contemporaneous construction placed
upon a statute by the executive officers whose duty
it is to enforce it ...." In the scheme of judicial tax
administration, the need for certainty and
predictability in the implementation of tax laws is
crucial. Our tax authorities fill in the details that
"Congress may not have the opportunity or
competence to provide." The regulations these
authorities issue are relied upon by taxpayers, who
are certain that these will be followed by the courts.
Courts, however, will not uphold these authorities'
interpretations when clearly absurd, erroneous or
improper.
First, the definition given by petitioner is erroneous.

It refers to tax credit as the amount representing
the 20 percent discount that "shall be deducted by
the said establishments from their gross income for
income tax purposes and from their gross sales for
value-added tax or other percentage tax purposes."
In ordinary business language, the tax credit
represents the amount of such discount. However,
the manner by which the discount shall be credited
against taxes has not been clarified by the revenue
regulations. aHcACT
In the present case, the tax authorities have given

the term tax credit in Sections 2.i and 4 of RR 2-94
a meaning utterly in contrast to what RA 7432
provides. Their interpretation has muddled . . . the
intent of Congress in granting a mere discount
privilege, not a sales discount. The administrative
agency issuing these regulations may not enlarge,
alter or restrict the provisions of the law it
administers;
it
cannot
engraft
additional
requirements not contemplated by the legislature.
By ordinary acceptation, a discount is an

"abatement or reduction made from the gross
amount or value of anything." To be more precise, it
is in business parlance "a deduction or lowering of
an amount of money;" or "a reduction from the full
amount or value of something, especially a price."
In business there are many kinds of discount, the
most common of which is that affecting the income
statement or financial report upon which the income
tax is based.
In case of conflict, the law must prevail. A

"regulation adopted pursuant to law is law."
Conversely, a regulation or any portion thereof not
adopted pursuant to law is no law and has neither
the force nor the effect of law. 7
xxx xxx xxx

Sections 2.i and 4 of Revenue Regulations No.
(RR) 2-94 define tax credit as the 20 percent
discount deductible from gross income for income
tax purposes, or from gross sales for VAT or other
percentage tax purposes. In effect, the tax credit
benefit under RA 7432 is related to a sales
discount. This contrived definition is improper,
considering that the latter has to be deducted from
On February 26, 2004, RA 9257 8 amended certain

provisions of RA 7432, to wit: HSCATc
(a) the grant of twenty percent (20%) discount from
all establishments relative to the utilization of
services
in
hotels
and
similar
lodging
333
establishments, restaurants and recreation centers,

and purchase of medicines in all establishments for
the exclusive use or enjoyment of senior citizens,
including funeral and burial services for the death of
senior citizens;
(6) Only the following business establishments

which granted sales discount to senior citizens on
their sale of goods and/or services may claim the
said discount granted as deduction from gross
income, namely:
xxx xxx xxx
xxx xxx xxx
The establishment may claim the discounts granted

under (a),(f),(g) and (h) as tax deduction based on
the net cost of the goods sold or services rendered:
Provided, That the cost of the discount shall be
allowed as deduction from gross income for the
same taxable year that the discount is granted.
Provided, further, That the total amount of the
claimed tax deduction net of value added tax if
applicable, shall be included in their gross sales
National Internal Revenue Code, as amended.
(i) Funeral parlors and similar establishments

The beneficiary or any person who shall shoulder
the funeral and burial expenses of the deceased
senior citizen shall claim the discount, such as
casket, embalmment, cremation cost and other
related services for the senior citizen upon payment
and presentation of [his] death certificate. TSEHcA
The DSWD likewise issued its own Rules and
Regulations Implementing RA 9257, to wit: SCEDAI
RULE VI
DISCOUNTS
AS
ESTABLISHMENTS
To implement the tax provisions of RA 9257, the

Secretary of Finance issued RR No. 4-2006, the
pertinent provision of which provides:
SEC. 8. AVAILMENT BY ESTABLISHMENTS OF
SALES DISCOUNTS AS DEDUCTION FROM
GROSS INCOME. Establishments enumerated
in subparagraph (6) hereunder granting sales
discounts to senior citizens on the sale of goods
and/or services specified thereunder are entitled to
deduct the said discount from gross income subject
to the following conditions: caIDSH
TAX
DEDUCTION
OF
Article 8. Tax Deduction of Establishments. The

establishment may claim the discounts granted
under Rule V, Section 4 Discounts for
Establishments, Section 9, Medical and Dental
Services in Private Facilities and Sections 10 and
11 Air, Sea and Land Transportation as tax
deduction based on the net cost of the goods sold
or services rendered. Provided, That the cost of the
discount shall be allowed as deduction from gross
income for the same taxable year that the discount
is granted; Provided, further, That the total amount
of the claimed tax deduction net of value added tax
if applicable, shall be included in their gross sales
National Internal Revenue Code, as amended;
Provided, finally, that the implementation of the tax
deduction shall be subject to the Revenue
Regulations to be issued by the Bureau of Internal
Revenue (BIR) and approved by the Department of
Finance (DOF).
(1)
Only that portion of the gross sales
EXCLUSIVELY
USED,
CONSUMED
OR
ENJOYED BY THE SENIOR CITIZEN shall be
eligible for the deductible sales discount.
(2) The gross selling price and the sales discount
MUST BE SEPARATELY INDICATED IN THE
OFFICIAL RECEIPT OR SALES INVOICE issued
by the establishment for the sale of goods or
services to the senior citizen.
(3) Only the actual amount of the discount granted
or a sales discount not exceeding 20% of the gross
selling price can be deducted from the gross
income, net of value added tax, if applicable, for
income tax purposes, and from gross sales or
gross receipts of the business enterprise
concerned, for VAT or other percentage tax
purposes.
Feeling aggrieved by the tax deduction scheme,

petitioners filed the present recourse, praying that
Section 4 of RA 7432, as amended by RA 9257,
and the implementing rules and regulations issued
by the DSWD and the DOF be declared
unconstitutional insofar as these allow business
establishments to claim the 20% discount given to
senior citizens as a tax deduction; that the DSWD
and the DOF be prohibited from enforcing the
same; and that the tax credit treatment of the 20%
discount under the former Section 4 (a) of RA 7432
be reinstated.
Issues
Petitioners raise the following issues:
A.
(4) The discount can only be allowed as deduction

from gross income for the same taxable year that
the discount is granted.
(5)
The business establishment giving sales
discounts to qualified senior citizens is required to
keep separate and accurate record[s] of sales,
which shall include the name of the senior citizen,
TIN, OSCA ID, gross sales/receipts, sales discount
granted, [date] of [transaction] and invoice number
for every sale transaction to senior citizen.
WHETHER THE PETITION PRESENTS

ACTUAL CASE OR CONTROVERSY.
B.
334
AN
tax deduction treatment is not a "fair and full

equivalent of the loss sustained" by them. 29 As to
the constitutionality of RA 9257 and its
implementing rules and regulations, respondents
contend that petitioners failed to overturn its
presumption of constitutionality. 30 More important,
respondents maintain that the tax deduction
scheme is a legitimate exercise of the State's police
power. 31
Our Ruling
The Petition lacks merit. EICSDT
There exists an actual case or
controversy.
We shall first resolve the procedural issue.
When the constitutionality of a law is put in issue,
judicial review may be availed of only if the
following requisites concur: "(1) the existence of an
actual and appropriate case; (2) the existence of
personal and substantial interest on the part of the
party raising the [question of constitutionality];(3)
recourse to judicial review is made at the earliest
opportunity;
and
(4)
the
[question
of
constitutionality] is the lis mota of the case." 32
In this case, petitioners are challenging the
constitutionality of the tax deduction scheme
provided in RA 9257 and the implementing rules
and regulations issued by the DSWD and the DOF.
Respondents, however, oppose the Petition on the
ground that there is no actual case or controversy.
We do not agree with respondents.
An actual case or controversy exists when there is
"a conflict of legal rights" or "an assertion of
opposite legal claims susceptible of judicial
resolution." 33 The Petition must therefore show
that "the governmental act being challenged has a
direct adverse effect on the individual challenging
it." 34 In this case, the tax deduction scheme
challenged by petitioners has a direct adverse
effect on them. Thus, it cannot be denied that there
exists an actual case or controversy. cTECHI
The validity of the 20% senior citizen
discount and tax deduction scheme
under RA 9257, as an exercise of police
power of the State, has already been
settled in Carlos Superdrug
Corporation.
Petitioners posit that the resolution of this case lies
in the determination of whether the legally
mandated 20% senior citizen discount is an
exercise of police power or eminent domain. If it is
police power, no just compensation is warranted.
But if it is eminent domain, the tax deduction
scheme is unconstitutional because it is not a peso
for peso reimbursement of the 20% discount given
to senior citizens. Thus, it constitutes taking of
private property without payment of just
compensation.
At the outset, we note that this question has been
settled in Carlos Superdrug Corporation. 35 In that
case, we ruled:
WHETHER SECTION 4 OF REPUBLIC ACT NO.

9257 AND . . . ITS IMPLEMENTING RULES AND
REGULATIONS, INSOFAR AS THEY PROVIDE
THAT THE TWENTY PERCENT (20%) DISCOUNT
TO SENIOR CITIZENS MAY BE CLAIMED AS A
TAX
DEDUCTION
BY
THE
PRIVATE
ESTABLISHMENTS,
ARE
INVALID
AND
UNCONSTITUTIONAL. 9 IaECcH
Petitioners' Arguments
Petitioners emphasize that they are not questioning
the 20% discount granted to senior citizens but are
only assailing the constitutionality of the tax
deduction scheme prescribed under RA 9257 and
the implementing rules and regulations issued by
the DSWD and the DOF. 10
Petitioners posit that the tax deduction scheme
contravenes Article III, Section 9 of the Constitution,
which provides that: "[p]rivate property shall not be
taken for public use without just compensation." 11
In support of their position, petitioners cite Central
Luzon Drug Corporation, 12 where it was ruled that
the 20% discount privilege constitutes taking of
private property for public use which requires the
payment of just compensation, 13 and Carlos
Superdrug Corporation v. Department of Social
Welfare and Development, 14 where it was
acknowledged that the tax deduction scheme does
not meet the definition of just compensation. 15
Petitioners likewise seek a reversal of the ruling in
Carlos Superdrug Corporation 16 that the tax
deduction scheme adopted by the government is
justified by police power. 17 They assert that
"[a]lthough both police power and the power of
eminent domain have the general welfare for their
object, there are still traditional distinctions between
the two" 18 and that "eminent domain cannot be
made less supreme than police power." 19
Petitioners further claim that the legislature, in
amending RA 7432, relied on an erroneous
contemporaneous construction that prior payment
of taxes is required for tax credit. 20
Petitioners also contend that the tax deduction
scheme violates Article XV, Section 4 21 and Article
XIII, Section 11 22 of the Constitution because it
shifts the State's constitutional mandate or duty of
improving the welfare of the elderly to the private
sector. 23 Under the tax deduction scheme, the
private sector shoulders 65% of the discount
because only 35% 24 of it is actually returned by
the
government.
25
Consequently,
the
implementation of the tax deduction scheme
prescribed under Section 4 of RA 9257 affects the
businesses of petitioners. 26 Thus, there exists an
actual case or controversy of transcendental
importance which deserves judicious disposition on
the merits by the highest court of the land. 27
DEcSaI
Respondents' Arguments
Respondents, on the other hand, question the filing
of the instant Petition directly with the Supreme
Court as this disregards the hierarchy of courts. 28
They likewise assert that there is no justiciable
controversy as petitioners failed to prove that the
335

compensated for the discount. HcDATC
to them for their improvement and well-being as the

State considers them an integral part of our society.
The priority given to senior citizens finds its basis in
the Constitution as set forth in the law itself. Thus,
the Act provides:

SEC. 2. Republic Act No. 7432 is hereby amended

to read as follows: TaDSCA
SECTION 1.
Declaration of Policies and
Objectives. Pursuant to Article XV, Section 4 of
the Constitution, it is the duty of the family to take
care of its elderly members while the State may
design programs of social security for them. In
addition to this, Section 10 in the Declaration of
Principles and State Policies provides: "The State
shall provide social justice in all phases of national
development." Further, Article XIII, Section 11,
provides: "The State shall adopt an integrated and
comprehensive approach to health development
which shall endeavor to make essential goods,
health and other social services available to all the
people at affordable cost. There shall be priority for
the needs of the underprivileged sick, elderly,
disabled, women and children." Consonant with
these constitutional principles the following are the
declared policies of this Act: DacASC

xxx xxx xxx

(f) To recognize the important role of the private
sector in the improvement of the welfare of senior
citizens and to actively seek their partnership.

just compensation.
To implement the above policy, the law grants a

twenty percent discount to senior citizens for
medical and dental services, and diagnostic and
laboratory fees; admission fees charged by
theaters, concert halls, circuses, carnivals, and
other similar places of culture, leisure and
amusement; fares for domestic land, air and sea
travel; utilization of services in hotels and similar
lodging establishments, restaurants and recreation
centers; and purchases of medicines for the
exclusive use or enjoyment of senior citizens. As a
form of reimbursement, the law provides that
business establishments extending the twenty
percent discount to senior citizens may claim the
discount as a tax deduction.

intensify
the
meaning
of
the
word
TcHCDI
The law is a legitimate exercise of police power

which, similar to the power of eminent domain, has
general welfare for its object. Police power is not
capable of an exact definition, but has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and
provide enough room for an efficient and flexible
response to conditions and circumstances, thus
assuring the greatest benefits. Accordingly, it has
been described as "the most essential, insistent
and the least limitable of powers, extending as it
does to all the great public needs." It is "[t]he power
vested in the legislature by the constitution to
make, ordain, and establish all manner of

government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to
maximize the contribution of senior citizens to
nation-building, and to grant benefits and privileges
336
wholesome and reasonable laws, statutes, and

ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to
be for the good and welfare of the commonwealth,
and of the subjects of the same." HCaIDS
Absent any financial statement, petitioners cannot

substantiate their claim that they will be operating
at a loss should they give the discount. In addition,
the computation was erroneously based on the
assumption that their customers consisted wholly of
senior citizens. Lastly, the 32% tax rate is to be
imposed on income, not on the amount of the
discount.
For this reason, when the conditions so demand as

determined by the legislature, property rights must
bow to the primacy of police power because
property rights, though sheltered by due process,
must yield to general welfare.
Furthermore, it is unfair for petitioners to criticize

the law because they cannot raise the prices of
their medicines given the cutthroat nature of the
players in the industry. It is a business decision on
the part of petitioners to peg the mark-up at
5%.Selling the medicines below acquisition cost, as
alleged by petitioners, is merely a result of this
decision. Inasmuch as pricing is a property right,
petitioners cannot reproach the law for being
oppressive, simply because they cannot afford to
raise their prices for fear of losing their customers
to competition. DIETHS
Given these, it is incorrect for petitioners to insist

that the grant of the senior citizen discount is
unduly oppressive to their business, because
petitioners have not taken time to calculate
correctly and come up with a financial report, so
that they have not been able to show properly
whether or not the tax deduction scheme really
works greatly to their disadvantage.

In treating the discount as a tax deduction,

petitioners insist that they will incur losses because,
referring to the DOF Opinion, for every P1.00
senior citizen discount that petitioners would give,
P0.68 will be shouldered by them as only P0.32 will
be refunded by the government by way of a tax
deduction. HIaAED

public utilities, continuously serve as . . .
reminder[s] that the right to property can be
relinquished upon the command of the State for the
promotion of public good.
To illustrate this point, petitioner Carlos Super Drug

cited the anti-hypertensive maintenance drug
Norvasc as an example. According to the latter, it
acquires Norvasc from the distributors at P37.57
per tablet, and retails it at P39.60 (or at a margin of
5%).If it grants a 20% discount to senior citizens or
an amount equivalent to P7.92, then it would have
to sell Norvasc at P31.68 which translates to a loss
from capital of P5.89 per tablet. Even if the
government will allow a tax deduction, only P2.53
per tablet will be refunded and not the full amount
of the discount which is P7.92. In short, only 32% of
the 20% discount will be reimbursed to the
drugstores.

related. Without sufficient proof that Section 4 (a) of
implementation
of
the
same
would
be
will refrain from quashing a legislative act. 36 (Bold
in the original; underline supplied)
Petitioners' computation is flawed. For purposes of

reimbursement, the law states that the cost of the
discount shall be deducted from gross income, the
amount of income derived from all sources before
deducting allowable expenses, which will result in
net income. Here, petitioners tried to show a loss
on a per transaction basis, which should not be the
case. An income statement, showing an accounting
of petitioners' sales, expenses, and net profit (or
loss) for a given period could have accurately
reflected the effect of the discount on their income.
We, thus, found that the 20% discount as well as

the tax deduction scheme is a valid exercise of the
police power of the State. ATcaEH
No compelling reason has been
proffered to overturn, modify or
abandon the ruling in Carlos
Superdrug Corporation.
Petitioners argue that we have previously ruled in
Central Luzon Drug Corporation 37 that the 20%
discount is an exercise of the power of eminent
337
domain, thus, requiring the payment of just

compensation. They urge us to re-examine our
ruling in Carlos Superdrug Corporation 38 which
allegedly reversed the ruling in Central Luzon Drug
Corporation. 39 They also point out that Carlos
Superdrug Corporation 40 recognized that the tax
deduction scheme under the assailed law does not
provide for sufficient just compensation.
We agree with petitioners' observation that there
are statements in Central Luzon Drug Corporation
41 describing the 20% discount as an exercise of
the power of eminent domain, viz.:
[T]he privilege enjoyed by senior citizens does not
come directly from the State, but rather from the
private establishments concerned. Accordingly, the
tax credit benefit granted to these establishments
can be deemed as their just compensation for
private property taken by the State for public use.
entitled thereto." For this reason, a just

compensation for income that is taken away from
respondent becomes necessary. It is in the tax
credit that our legislators find support to realize
social justice, and no administrative body can alter
that fact. DHESca
To put it differently, a private establishment that
merely breaks even without the discounts yet
will surely start to incur losses because of such
discounts. The same effect is expected if its markup is less than 20 percent, and if all its sales come
from retail purchases by senior citizens. Aside from
the observation we have already raised earlier, it
will also be grossly unfair to an establishment if the
discounts will be treated merely as deductions from
either its gross income or its gross sales.Operating
at a loss through no fault of its own, it will realize
that the tax credit limitation under RR 2-94 is inutile,
if not improper. Worse, profit-generating businesses
will be put in a better position if they avail
themselves of tax credits denied those that are
losing, because no taxes are due from the latter. 42
(Italics in the original; emphasis supplied)
The concept of public use is no longer confined to

the traditional notion of use by the public, but held
synonymous with public interest, public benefit,
public welfare,and public convenience.The discount
privilege to which our senior citizens are entitled is
actually a benefit enjoyed by the general public to
which these citizens belong. The discounts given
the gross sales of the private establishments
concerned, were it not for RA 7432. The permanent
reduction in their total revenues is a forced subsidy
corresponding to the taking of private property for
public use or benefit. HDTcEI
The above was partly incorporated in our ruling in

Carlos Superdrug Corporation 43 when we stated
preliminarily that
compensated for the discount. STEacI
As a result of the 20 percent discount imposed by

RA 7432, respondent becomes entitled to a just
compensation.This term refers not only to the
issuance of a tax credit certificate indicating the
correct amount of the discounts given, but also to
the promptness in its release. Equivalent to the
payment of property taken by the State, such
issuance when not done within a reasonable
time from the grant of the discounts cannot be
considered as just compensation.In effect,
respondent is made to suffer the consequences of
being immediately deprived of its revenues while
awaiting actual receipt, through the certificate, of
the equivalent amount it needs to cope with the
reduction in its revenues.

Besides, the taxation power can also be used as an

implement for the exercise of the power of eminent
domain. Tax measures are but "enforced
contributions exacted on pain of penal sanctions"
and "clearly imposed for a public purpose." In
recent years, the power to tax has indeed become
a most effective tool to realize social justice, public
welfare,and the equitable distribution of wealth.
While it is a declared commitment under Section 1
of RA 7432, social justice "cannot be invoked to
trample on the rights of property owners who under
our Constitution and laws are also entitled to
protection. The social justice consecrated in our
[C]onstitution [is] not intended to take away rights
from a person and give them to another who is not

338

just compensation.
cogent reason to overturn, modify or abandon it.

We also note that petitioners' arguments are a
mere reiteration of those raised and resolved in
Carlos Superdrug Corporation. 54 Thus, we sustain
Carlos Superdrug Corporation. 55 EAIcCS
Nonetheless, we deem it proper, in what follows, to
amplify our explanation in Carlos Superdrug
Corporation 56 as to why the 20% discount is a
valid exercise of police power and why it may not,
under the specific circumstances of this case,be
considered as an exercise of the power of eminent
domain contrary to the obiter in Central Luzon Drug
Corporation. 57 IaAScD
Police power versus eminent domain.
Police power is the inherent power of the State to
regulate or to restrain the use of liberty and
property for public welfare. 58 The only limitation is
that the restriction imposed should be reasonable,
not oppressive. 59 In other words, to be a valid
exercise of police power, it must have a lawful
subject or objective and a lawful method of
accomplishing the goal. 60 Under the police power
of the State, "property rights of individuals may be
subjected to restraints and burdens in order to fulfill
the objectives of the government." 61 The State
"may interfere with personal liberty, property, lawful
businesses and occupations to promote the general
welfare [as long as] the interference [is] reasonable
and not arbitrary." 62 Eminent domain, on the other
hand, is the inherent power of the State to take or
appropriate private property for public use. 63 The
Constitution, however, requires that private property
shall not be taken without due process of law and
the payment of just compensation. 64
Traditional distinctions exist between police power
and eminent domain.
In the exercise of police power, a property right is
impaired by regulation, 65 or the use of property is
merely prohibited, regulated or restricted 66 to
promote public welfare. In such cases, there is no
compensable taking, hence, payment of just
compensation is not required. Examples of these
regulations are property condemned for being
noxious or intended for noxious purposes (e.g., a
building on the verge of collapse to be demolished
for public safety, or obscene materials to be
destroyed in the interest of public morals) 67 as
well as zoning ordinances prohibiting the use of
property for purposes injurious to the health, morals
or safety of the community (e.g., dividing a city's
territory into residential and industrial areas). 68 It
has, thus, been observed that, in the exercise of
police power (as distinguished from eminent
domain), although the regulation affects the right of
ownership, none of the bundle of rights which
constitute ownership is appropriated for use by or
for the benefit of the public. 69 HASTCa
On the other hand, in the exercise of the power of
eminent
domain,
property
interests
are
appropriated and applied to some public purpose
which necessitates the payment of just
compensation therefor. Normally, the title to and
possession of the property are transferred to the
expropriating authority. Examples include the
acquisition of lands for the construction of public

intensify
the
meaning
of
the
word
government program.
The Court believes so. 44 TaEIAS
This, notwithstanding, we went on to rule in Carlos
Superdrug Corporation 45 that the 20% discount
and tax deduction scheme is a valid exercise of the
police power of the State.
The present case, thus, affords an opportunity for
us to clarify the above-quoted statements in Central
Luzon Drug Corporation 46 and Carlos Superdrug
Corporation. 47
First, we note that the above-quoted disquisition on
48 is obiter dicta and, thus, not binding precedent.
As stated earlier, in Central Luzon Drug
Corporation, 49 we ruled that the BIR acted ultra
vires when it effectively treated the 20% discount
as a tax deduction, under Sections 2.i and 4 of RR
No. 2-94, despite the clear wording of the previous
law that the same should be treated as a tax credit.
We were, therefore, not confronted in that case with
the issue as to whether the 20% discount is an
exercise of police power or eminent domain.
Second, although we adverted to Central Luzon
Drug Corporation 50 in our ruling in Carlos
Superdrug Corporation, 51 this referred only to
preliminary matters. A fair reading of Carlos
Superdrug Corporation 52 would show that we
categorically ruled therein that the 20% discount is
a valid exercise of police power. Thus, even if the
current law, through its tax deduction scheme
(which abandoned the tax credit scheme under the
previous law), does not provide for a peso for peso
reimbursement of the 20% discount given by
private establishments, no constitutional infirmity
obtains because, being a valid exercise of police
power, payment of just compensation is not
warranted.
We have carefully reviewed the basis of our ruling
in Carlos Superdrug Corporation 53 and we find no
339
highways as well as agricultural lands acquired by

the government under the agrarian reform law for
redistribution to qualified farmer beneficiaries.
However, it is a settled rule that the acquisition of
title or total destruction of the property is not
essential for "taking" under the power of eminent
domain to be present. 70 Examples of these
include establishment of easements such as where
the land owner is perpetually deprived of his
proprietary rights because of the hazards posed by
electric transmission lines constructed above his
property 71 or the compelled interconnection of the
telephone system between the government and a
private company. 72 In these cases, although the
private property owner is not divested of ownership
or possession, payment of just compensation is
warranted because of the burden placed on the
property for the use or benefit of the public.
The 20% senior citizen discount is an
It may not always be easy to determine whether a
challenged governmental act is an exercise of
police power or eminent domain. The very nature of
police power as elastic and responsive to various
social conditions 73 as well as the evolving
meaning and scope of public use 74 and just
compensation 75 in eminent domain evinces that
these are not static concepts. Because of the
exigencies of rapidly changing times, Congress
may be compelled to adopt or experiment with
different measures to promote the general welfare
which may not fall squarely within the traditionally
recognized categories of police power and eminent
domain. The judicious approach, therefore, is to
look at the nature and effects of the challenged
governmental act and decide, on the basis thereof,
whether the act is the exercise of police power or
eminent domain. Thus, we now look at the nature
and effects of the 20% discount to determine if it
constitutes an exercise of police power or eminent
domain. ASHaDT
The 20% discount is intended to improve the
welfare of senior citizens who, at their age, are less
likely to be gainfully employed, more prone to
illnesses and other disabilities, and, thus, in need of
subsidy in purchasing basic commodities. It may
not be amiss to mention also that the discount
serves to honor senior citizens who presumably
spent the productive years of their lives on
contributing to the development and progress of the
nation. This distinct cultural Filipino practice of
honoring the elderly is an integral part of this law.
As to its nature and effects, the 20% discount is a
regulation affecting the ability of private
establishments to price their products and services
relative to a special class of individuals, senior
citizens, for which the Constitution affords
preferential concern. 76 In turn, this affects the
amount of profits or income/gross sales that a
private establishment can derive from senior
citizens. In other words, the subject regulation
affects the pricing, and, hence, the profitability of a
private establishment. However, it does not purport
to appropriate or burden specific properties, used in
the operation or conduct of the business of private
establishments, for the use or benefit of the public,

or senior citizens for that matter, but merely
regulates the pricing of goods and services relative
to, and the amount of profits or income/gross sales
that such private establishments may derive from,
senior citizens. ITEcAD
measures. 77 These laws generally regulate public
price regulatory measures which affect the
On its face, therefore, the subject regulation is a
police power measure.
The obiter in Central Luzon Drug Corporation, 78
however, describes the 20% discount as an
exercise of the power of eminent domain and the
tax credit, under the previous law, equivalent to the
amount of discount given as the just compensation
therefor. The reason is that (1) the discount would
have formed part of the gross sales of the
establishment were it not for the law prescribing the
20% discount, and (2) the permanent reduction in
total revenues is a forced subsidy corresponding to
the taking of private property for public use or
benefit. DTEScI
The flaw in this reasoning is in its premise. It
presupposes that the subject regulation, which
impacts the pricing and, hence, the profitability of a
private establishment, automatically amounts to a
deprivation of property without due process of law.
If this were so, then all price and rate of return on
investment control laws would have to be
invalidated because they impact, at some level, the
regulated establishment's profits or income/gross
sales, yet there is no provision for payment of just
compensation. It would also mean that government
cannot set price or rate of return on investment
limits, which reduce the profits or income/gross
sales of private establishments, if no just
compensation is paid even if the measure is not
confiscatory. The obiter is, thus, at odds with the
settled doctrine that the State can employ police
power measures to regulate the pricing of goods
and services, and, hence, the profitability of
business establishments in order to pursue
legitimate State objectives for the common good,
340
provided that the regulation does not go too far as

to amount to "taking." 79
In City of Manila v. Laguio, Jr., 80 we recognized
that
...a taking also could be found if government
regulation of the use of property went "too far."
When regulation reaches a certain magnitude, in
most if not in all cases there must be an exercise of
eminent domain and compensation to support the
act. While property may be regulated to a certain
extent, if regulation goes too far it will be
recognized as a taking. cHSIAC
due to the subject regulation or that the continued

implementation of the law would be unconscionably
detrimental to the business operations of
petitioners. In the case at bar, petitioners
proceeded with a hypothetical computation of the
alleged loss that they will suffer similar to what the
petitioners in Carlos Superdrug Corporation 86 did.
Petitioners went directly to this Court without first
establishing the factual bases of their claims.
Hence, the present recourse must, likewise, fail.
Because all laws enjoy the presumption of
constitutionality, courts will uphold a law's validity if
any set of facts may be conceived to sustain it. 87
On its face, we find that there are at least two
conceivable bases to sustain the subject
regulation's validity absent clear and convincing
proof that it is unreasonable, oppressive or
confiscatory. Congress may have legitimately
concluded that business establishments have the
capacity to absorb a decrease in profits or
income/gross sales due to the 20% discount
without substantially affecting the reasonable rate
of return on their investments considering (1) not all
customers of a business establishment are senior
citizens and (2) the level of its profit margins on
goods and services offered to the general public.
Concurrently, Congress may have, likewise,
legitimately concluded that the establishments,
which will be required to extend the 20% discount,
have the capacity to revise their pricing strategy so
that whatever reduction in profits or income/gross
sales that they may sustain because of sales to
senior citizens, can be recouped through higher
mark-ups or from other products not subject of
discounts. As a result, the discounts resulting from
sales to senior citizens will not be confiscatory or
unduly oppressive. aESICD
In sum, we sustain our ruling in Carlos Superdrug
Corporation 88 that the 20% senior citizen discount
and tax deduction scheme are valid exercises of
police power of the State absent a clear showing
that it is arbitrary, oppressive or confiscatory.
Conclusion
In closing, we note that petitioners hypothesize,
consistent with our previous ratiocinations, that the
discount will force establishments to raise their
prices in order to compensate for its impact on
overall profits or income/gross sales. The general
public, or those not belonging to the senior citizen
class, are, thus, made to effectively shoulder the
subsidy for senior citizens. This, in petitioners' view,
is unfair.
As already mentioned, Congress may be
reasonably assumed to have foreseen this
eventuality. But, more importantly, this goes into the
wisdom, efficacy and expediency of the subject law
which is not proper for judicial review. In a way, this
law pursues its social equity objective in a nontraditional manner unlike past and existing direct
subsidy programs of the government for the poor
and marginalized sectors of our society. Verily,
Congress must be given sufficient leeway in
formulating welfare legislations given the enormous
challenges that the government faces relative to,
among
others,
resource
adequacy
and
No formula or rule can be devised to answer the

questions of what is too far and when regulation
becomes a taking. In Mahon,Justice Holmes
recognized that it was "a question of degree and
therefore cannot be disposed of by general
propositions." On many other occasions as well,
the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of
considering the facts in each case. The Court asks
whether justice and fairness require that the
economic loss caused by public action must be
compensated by the government and thus borne by
the public as a whole, or whether the loss should
remain concentrated on those few persons subject
to the public action. 81
The impact or effect of a regulation, such as the
one under consideration, must, thus, be determined
on a case-to-case basis. Whether that line between
permissible regulation under police power and
"taking" under eminent domain has been crossed
must, under the specific circumstances of this case,
be subject to proof and the one assailing the
constitutionality of the regulation carries the heavy
burden of proving that the measure is
unreasonable, oppressive or confiscatory. The
time-honored rule is that the burden of proving the
unconstitutionality of a law rests upon the one
assailing it and "the burden becomes heavier when
police power is at issue." 82
The 20% senior citizen discount has not
been shown to be unreasonable,
oppressive or confiscatory.
In Alalayan v. National Power Corporation, 83
petitioners, who were franchise holders of electric
plants, challenged the validity of a law limiting their
allowable net profits to no more than 12% per
annum of their investments plus two-month
operating expenses. In rejecting their plea, we ruled
that, in an earlier case, it was found that 12% is a
reasonable rate of return and that petitioners failed
to prove that the aforesaid rate is confiscatory in
view of the presumption of constitutionality. 84
aESHDA
We adopted a similar line of reasoning in Carlos
Superdrug Corporation 85 when we ruled that
petitioners therein failed to prove that the 20%
discount is arbitrary, oppressive or confiscatory. We
noted that no evidence, such as a financial report,
to establish the impact of the 20% discount on the
overall profitability of petitioners was presented in
order to show that they would be operating at a loss
341
administrative capability in implementing social

reform measures which aim to protect and uphold
the interests of those most vulnerable in our
society. In the process, the individual, who enjoys
the rights, benefits and privileges of living in a
democratic polity, must bear his share in supporting
measures intended for the common good. This is
only fair.
In fine, without the requisite showing of a clear and
unequivocal breach of the Constitution, the validity
of the assailed law must be sustained. cSDHEC
Refutation of the Dissent
The main points of Justice Carpio's Dissent may be
summarized as follows: (1) the discussion on
89 is not obiter dicta; (2) allowable taking, in police
power, is limited to property that is destroyed or
placed outside the commerce of man for public
welfare; (3) the amount of mandatory discount is
private property within the ambit of Article III,
Section 9 90 of the Constitution; and (4) the
permanent reduction in a private establishment's
total revenue, arising from the mandatory discount,
is a taking of private property for public use or
benefit, hence, an exercise of the power of eminent
domain
requiring
the
payment
of
just
compensation.
I
We maintain that the discussion on eminent domain
in Central Luzon Drug Corporation 91 is obiter
dicta.
As previously discussed, in Central Luzon Drug
Corporation, 92 the BIR, pursuant to Sections 2.i
and 4 of RR No. 2-94, treated the senior citizen
discount in the previous law, RA 7432, as a tax
deduction instead of a tax credit despite the clear
provision in that law which stated
that the revenue regulation contravened the law

which it sought to implement. And, precisely, this
was done in Central Luzon Drug Corporation 94 by
comparing the wording of the previous law vis-
-vis the revenue regulation; employing the rules of
statutory construction; and applying the settled
principle that a regulation cannot amend the law it
seeks to implement. IcTEaC
A close reading of Central Luzon Drug Corporation
95 would show that the Court went on to state that
the tax credit "can be deemed" as just
compensation only to explain why the previous law
provides for a tax credit instead of a tax deduction.
The Court surmised that the tax credit was a form
of just compensation given to the establishments
covered by the 20% discount. However, the reason
why the previous law provided for a tax credit and
not a tax deduction was not necessary to resolve
the issue as to whether the revenue regulation
contravenes the law. Hence, the discussion on
eminent domain is obiter dicta.
A court, in resolving cases before it, may look into
the possible purposes or reasons that impelled the
enactment of a particular statute or legal provision.
However, statements made relative thereto are not
always necessary in resolving the actual
controversies presented before it. This was the
case in Central Luzon Drug Corporation 96
resulting in that unfortunate statement that the tax
credit "can be deemed" as just compensation. This,
in turn, led to the erroneous conclusion, by
deductive reasoning, that the 20% discount is an
exercise of the power of eminent domain. The
Dissent essentially adopts this theory and
reasoning which, as will be shown below, is
contrary to settled principles in police power and
eminent domain analysis.
II
The Dissent discusses at length the doctrine on
"taking" in police power which occurs when private
property is destroyed or placed outside the
commerce of man. Indeed, there is a whole class of
police power measures which justify the destruction
of private property in order to preserve public
health, morals, safety or welfare. As earlier
mentioned, these would include a building on the
verge of collapse or confiscated obscene materials
as well as those mentioned by the Dissent with
regard to property used in violating a criminal
statute or one which constitutes a nuisance. In such
cases, no compensation is required.
However, it is equally true that there is another
class of police power measures which do not
involve the destruction of private property but
merely regulate its use. The minimum wage law,
zoning ordinances, price control laws, laws
regulating the operation of motels and hotels, laws
limiting the working hours to eight, and the like
would fall under this category. The examples cited
by the Dissent, likewise, fall under this category:
Article 157 of the Labor Code, Sections 19 and 18
of the Social Security Law, and Section 7 of the
Pag-IBIG Fund Law. These laws merely regulate or,
to use the term of the Dissent, burden the conduct
of the affairs of business establishments. In such
a) The grant of twenty percent (20%) discount from

establishment, restaurants and recreation centers
and purchase of medicines anywhere in the
country: Provided, That private establishments may
claim the cost as tax credit;(Emphasis supplied)
Thus, the Court ruled that the subject revenue
regulation violated the law, viz.:
The 20 percent discount required by the law to be
given to senior citizens is a tax credit, not merely a
tax deduction from the gross income or gross sale
of the establishment concerned. A tax credit is used
by a private establishment only after the tax has
been computed; a tax deduction, before the tax is
computed. RA 7432 unconditionally grants a tax
credit to all covered entities. Thus, the provisions of
the revenue regulation that withdraw or modify such
grant are void. Basic is the rule that administrative
regulations cannot amend or revoke the law. 93
As can be readily seen, the discussion on eminent
domain was not necessary in order to arrive at this
conclusion. All that was needed was to point out
342
cases, payment of just compensation is not

required because they fall within the sphere of
permissible police power measures. The senior
citizen discount law falls under this latter category.
cIECTH
III
The Dissent proceeds from the theory that the
permanent reduction of profits or income/gross
sales, due to the 20% discount, is a "taking" of
private property for public purpose without payment
of just compensation.
At the outset, it must be emphasized that
petitioners never presented any evidence to
establish that they were forced to suffer enormous
losses or operate at a loss due to the effects of the
assailed law. They came directly to this Court and
provided a hypothetical computation of the loss
they would allegedly suffer due to the operation of
the assailed law. The central premise of the
Dissent's argument that the 20% discount results in
a permanent reduction in profits or income/gross
sales, or forces a business establishment to
operate at a loss is, thus, wholly unsupported by
competent evidence. To be sure, the Court can
invalidate a law which, on its face, is arbitrary,
oppressive or confiscatory. 97 But this is not the
case here.
In the case at bar, evidence is indispensable before
a determination of a constitutional violation can be
made because of the following reasons.
First, the assailed law, by imposing the senior
citizen discount, does not take any of the properties
used by a business establishment like, say, the
land on which a manufacturing plant is constructed
or the equipment being used to produce goods or
services.
Second, rather than taking specific properties of a
business establishment, the senior citizen discount
law merely regulates the prices of the goods or
services being sold to senior citizens by mandating
a 20% discount. Thus, if a product is sold at P10.00
to the general public, then it shall be sold at P8.00
(i.e.,P10.00 less 20%) to senior citizens. Note that
the law does not impose at what specific price the
product shall be sold, only that a 20% discount
shall be given to senior citizens based on the price
set by the business establishment. A business
establishment is, thus, free to adjust the prices of
the goods or services it provides to the general
public. Accordingly, it can increase the price of the
above product to P20.00 but is required to sell it at
P16.00 (i.e.,P20.00 less 20%) to senior citizens.
DaIAcC
Third, because the law impacts the prices of the
goods or services of a particular establishment
relative to its sales to senior citizens, its profits or
income/gross sales are affected. The extent of the
impact would, however, depend on the profit margin
of the business establishment on a particular good
or service. If a product costs P5.00 to produce and
is sold at P10.00, then the profit 98 is P5.00 99 or a
profit margin 100 of 50%. 101 Under the assailed
law, the aforesaid product would have to be sold at
P8.00 to senior citizens yet the business would still
earn P3.00 102 or a 30% 103 profit margin. On the
other hand, if the product costs P9.00 to produce

and is required to be sold at P8.00 to senior
citizens, then the business would experience a loss
of P1.00. 104 But note that since not all customers
of a business establishment are senior citizens, the
business establishment may continue to earn P1.00
from non-senior citizens which, in turn, can offset
any loss arising from sales to senior citizens.
Fourth, when the law imposes the 20% discount in
favor of senior citizens, it does not prevent the
business establishment from revising its pricing
strategy. By revising its pricing strategy, a business
establishment can recoup any reduction of profits
or income/gross sales which would otherwise arise
from the giving of the 20% discount. To illustrate,
suppose A has two customers: X, a senior citizen,
and Y, a non-senior citizen. Prior to the law, A sells
his products at P10.00 a piece to X and Y resulting
in income/gross sales of P20.00 (P10.00 +
P10.00).With the passage of the law, A must now
sell his product to X at P8.00 (i.e.,P10.00 less 20%)
so that his income/gross sales would be P18.00
(P8.00 + P10.00) or lower by P2.00. To prevent this
from happening, A decides to increase the price of
his products to P11.11 per piece. Thus, he sells his
product to X at P8.89 (i.e., P11.11 less 20%) and to
Y at P11.11. As a result, his income/gross sales
would still be P20.00 105 (P8.89 + P11.11). The
capacity, then, of business establishments to revise
their pricing strategy makes it possible for them not
to suffer any reduction in profits or income/gross
sales, or, in the alternative, mitigate the reduction of
their profits or income/gross sales even after the
passage of the law. In other words, business
establishments have the capacity to adjust their
prices so that they may remain profitable even
under the operation of the assailed law. acADIT
The Dissent, however, states that
The explanation by the majority that private
establishments can always increase their prices to
recover the mandatory discount will only encourage
private establishments to adjust their prices
upwards to the prejudice of customers who do not
enjoy the 20% discount. It was likewise suggested
that if a company increases its prices, despite the
application of the 20% discount, the establishment
becomes more profitable than it was before the
implementation of R.A. 7432. Such an economic
justification is self-defeating, for more consumers
will suffer from the price increase than will benefit
from the 20% discount. Even then, such ability to
increase prices cannot legally validate a violation of
the eminent domain clause. 106
But, if it is possible that the business establishment,
by adjusting its prices, will suffer no reduction in its
profits or income/gross sales (or suffer some
reduction but continue to operate profitably) despite
giving the discount, what would be the basis to
strike down the law? If it is possible that the
business establishment, by adjusting its prices, will
not be unduly burdened, how can there be a finding
that the assailed law is an unconstitutional exercise
of police power or eminent domain?
343
That there may be a burden placed on business

establishments or the consuming public as a result
of the operation of the assailed law is not, by itself,
a ground to declare it unconstitutional for this goes
into the wisdom and expediency of the law. The
cost of most, if not all, regulatory measures of the
government on business establishments is
ultimately passed on to the consumers but that, by
itself, does not justify the wholesale nullification of
these measures. It is a basic postulate of our
democratic system of government that the
Constitution is a social contract whereby the people
have surrendered their sovereign powers to the
State for the common good. 107 All persons may
be burdened by regulatory measures intended for
the common good or to serve some important
governmental interest, such as protecting or
improving the welfare of a special class of people
for which the Constitution affords preferential
concern. Indubitably, the one assailing the law has
the heavy burden of proving that the regulation is
unreasonable, oppressive or confiscatory, or has
gone "too far" as to amount to a "taking." Yet, here,
the Dissent would have this Court nullify the law
without any proof of such nature. DCIEac
Further, this Court is not the proper forum to debate
the economic theories or realities that impelled
Congress to shift from the tax credit to the tax
deduction scheme. It is not within our power or
competence to judge which scheme is more or less
burdensome to business establishments or the
consuming public and, thereafter, to choose which
scheme the State should use or pursue. The shift
from the tax credit to tax deduction scheme is a
policy determination by Congress and the Court will
respect it for as long as there is no showing, as
here, that the subject regulation has transgressed
constitutional limitations.
Unavoidably, the lack of evidence constrains the
Dissent to rely on speculative and hypothetical
argumentation when it states that the 20% discount
is a significant amount and not a minimal loss
(which erroneously assumes that the discount
automatically results in a loss when it is possible
that the profit margin is greater than 20% and/or the
pricing strategy can be revised to prevent or
mitigate any reduction in profits or income/gross
sales as illustrated above), 108 and not all private
establishments make a 20% profit margin (which
conversely implies that there are those who make
more and, thus, would not be greatly affected by
this regulation). 109
In fine, because of the possible scenarios
discussed above, we cannot assume that the 20%
discount results in a permanent reduction in profits
or income/gross sales, much less that business
establishments are forced to operate at a loss
under the assailed law. And, even if we gratuitously
assume that the 20% discount results in some
degree of reduction in profits or income/gross
sales, we cannot assume that such reduction is
arbitrary, oppressive or confiscatory. To repeat,
there is no actual proof to back up this claim, and it
could be that the loss suffered by a business
establishment was occasioned through its fault or
negligence in not adapting to the effects of the

assailed law. The law uniformly applies to all
business establishments covered thereunder.
There is, therefore, no unjust discrimination as the
aforesaid business establishments are faced with
the same constraints.
The necessity of proof is all the more pertinent in
this case because, as similarly observed by Justice
Velasco in his Concurring Opinion,the law has been
in operation for over nine years now. However, the
grim picture painted by petitioners on the
unconscionable losses to be indiscriminately
suffered by business establishments, which should
have led to the closure of numerous business
establishments, has not come to pass. ScaEIT
Verily, we cannot invalidate the assailed law based
on assumptions and conjectures. Without adequate
proof, the presumption of constitutionality must
prevail.
IV
At this juncture, we note that the Dissent modified
its original arguments by including a new
paragraph, to wit:
Section 9, Article III of the 1987 Constitution speaks
of private property without any distinction. It does
not state that there should be profit before the
taking of property is subject to just compensation.
The private property referred to for purposes of
taking could be inherited, donated, purchased,
mortgaged, or as in this case, part of the gross
sales of private establishments. They are all private
property and any taking should be attended by
corresponding payment of just compensation. The
20% discount granted to senior citizens belong to
private
establishments,
whether
these
establishments make a profit or suffer a loss. In
fact, the 20% discount applies to non-profit
establishments like country, social, or golf clubs
which are open to the public and not only for
exclusive membership. The issue of profit or loss to
the establishments is immaterial. 110
Two things may be said of this argument. HDcaAI
First, it contradicts the rest of the arguments of the
Dissent. After it states that the issue of profit or loss
is immaterial, the Dissent proceeds to argue that
the 20% discount is not a minimal loss 111 and that
the 20% discount forces business establishments
to operate at a loss. 112 Even the obiter in Central
Luzon Drug Corporation, 113 which the Dissent
essentially adopts and relies on, is premised on the
permanent reduction of total revenues and the loss
that business establishments will be forced to suffer
in arguing that the 20% discount constitutes a
"taking" under the power of eminent domain. Thus,
when the Dissent now argues that the issue of
profit or loss is immaterial, it contradicts itself
because it later argues, in order to justify that there
is a "taking" under the power of eminent domain in
this case, that the 20% discount forces business
establishments to suffer a significant loss or to
operate at a loss.
Second, this argument suffers from the same flaw
as the Dissent's original arguments. It is an
erroneous characterization of the 20% discount.
344
According to the Dissent, the 20% discount is part

of the gross sales and, hence, private property
belonging to business establishments. However, as
previously discussed, the 20% discount is not
private property actually owned and/or used by the
business establishment. It should be distinguished
from properties like lands or buildings actually used
in the operation of a business establishment which,
if appropriated for public use, would amount to a
"taking" under the power of eminent domain.
Instead, the 20% discount is a regulatory measure
which impacts the pricing and, hence, the
profitability of business establishments. At the time
the discount is imposed, no particular property of
the business establishment can be said to be
"taken." That is, the State does not acquire or take
anything from the business establishment in the
way that it takes a piece of private land to build a
public road. While the 20% discount may form part
of the potential profits or income/gross sales 114 of
the
business
establishment,
as
similarly
characterized by Justice Bersamin in his
Concurring
Opinion,
potential
profits
or
income/gross sales are not private property,
specifically cash or money, already belonging to the
business establishment. They are a mere
expectancy because they are potential fruits of the
successful conduct of the business.
Prior to the sale of goods or services, a business
establishment may be subject to State regulations,
such as the 20% senior citizen discount, which may
impact the level or amount of profits or
income/gross sales that can be generated by such
establishment. For this reason, the validity of the
discount is to be determined based on its overall
effects on the operations of the business
establishment. DcCEHI
Again, as previously discussed, the 20% discount
does not automatically result in a 20% reduction in
profits, or, to align it with the term used by the
Dissent, the 20% discount does not mean that a
20% reduction in gross sales necessarily results.
Because (1) the profit margin of a product is not
necessarily less than 20%,(2) not all customers of a
business establishment are senior citizens, and (3)
the establishment may revise its pricing strategy,
such reduction in profits or income/gross sales may
be prevented or, in the alternative, mitigated so that
the business establishment continues to operate
profitably. Thus, even if we gratuitously assume
that some degree of reduction in profits or
income/gross sales occurs because of the 20%
discount, it does not follow that the regulation is
unreasonable, oppressive or confiscatory because
the business establishment may make the
necessary adjustments to continue to operate
profitably. No evidence was presented by
petitioners to show otherwise. In fact, no evidence
was presented by petitioners at all.
Justice Leonen, in his Concurring and Dissenting
Opinion, characterizes "profits" (or income/gross
sales) as an inchoate right. Another way to view it,
as stated by Justice Velasco in his Concurring
Opinion, is that the business establishment merely
has a right to profits. The Constitution adverts to it
as the right of an enterprise to a reasonable return

on investment. 115 Undeniably, this right, like any
other right, may be regulated under the police
power of the State to achieve important
governmental objectives like protecting the
interests and improving the welfare of senior
citizens.
It should be noted though that potential profits or
income/gross sales are relevant in police power
and eminent domain analyses because they may,
in appropriate cases, serve as an indicia when a
regulation has gone "too far" as to amount to a
"taking" under the power of eminent domain. When
the deprivation or reduction of profits or
income/gross sales is shown to be unreasonable,
oppressive or confiscatory, then the challenged
governmental regulation may be nullified for being
a "taking" under the power of eminent domain. In
such a case, it is not profits or income/gross sales
which are actually taken and appropriated for public
use. Rather, when the regulation causes an
establishment to incur losses in an unreasonable,
oppressive or confiscatory manner, what is actually
taken is capital and the right of the business
establishment to a reasonable return on
investment. If the business losses are not halted
because of the continued operation of the
regulation, this eventually leads to the destruction
of the business and the total loss of the capital
invested therein. But, again, petitioners in this case
failed to prove that the subject regulation is
unreasonable, oppressive or confiscatory. ECHSDc
V.
The Dissent further argues that we erroneously
used price and rate of return on investment control
laws to justify the senior citizen discount law.
According to the Dissent, only profits from
industries imbued with public interest may be
regulated because this is a condition of their
franchises. Profits of establishments without
franchises cannot be regulated permanently
because there is no law regulating their profits. The
Dissent concludes that the permanent reduction of
total revenues or gross sales of business
establishments without franchises is a taking of
private property under the power of eminent
domain.
In making this argument, it is unfortunate that the
Dissent quotes only a portion of the ponencia
345

but only to the class of senior citizens. ...116
justice provisions of the Constitution enjoin the

State to regulate the "acquisition, ownership, use,
and disposition" of property and its increments. 117
This may cover the regulation of profits or
income/gross sales of all businesses, without
qualification, to attain the objective of diffusing
wealth in order to protect and enhance the right of
all the people to human dignity. 118 Thus, under the
social justice policy of the Constitution, business
establishments may be compelled to contribute to
uplifting the plight of vulnerable or marginalized
groups in our society provided that the regulation is
not arbitrary, oppressive or confiscatory, or is not in
breach of some specific constitutional limitation.
When the Dissent, therefore, states that the "profits
of private establishments which are nonfranchisees cannot be regulated permanently, and
there is no such law regulating their profits
permanently," 119 it is assuming what it ought to
prove. First, there are laws which, in effect,
permanently regulate profits or income/gross sales
of establishments without franchises, and RA 9257
is one such law. And, second, Congress can
regulate such profits or income/gross sales
because, as previously noted, there is nothing in
the Constitution to prevent it from doing so. Here,
again, it must be emphasized that petitioners failed
to present any proof to show that the effects of the
assailed law on their operations has been
unreasonable, oppressive or confiscatory. SCHATc
The
permanent
regulation
of
profits
or
income/gross sales of business establishments,
even those without franchises, is not as uncommon
as the Dissent depicts it to be.
For instance, the minimum wage law allows the
State to set the minimum wage of employees in a
given region or geographical area. Because of the
added labor costs arising from the minimum wage,
a permanent reduction of profits or income/gross
sales would result, assuming that the employer
does not increase the prices of his goods or
services. To illustrate, suppose it costs a company
P5.00 to produce a product and it sells the same at
P10.00 with a 50% profit margin. Later, the State
increases the minimum wage. As a result, the
company incurs greater labor costs so that it now
costs P7.00 to produce the same product. The
profit per product of the company would be reduced
to P3.00 with a profit margin of 30%.The net effect
would be the same as in the earlier example of
granting a 20% senior citizen discount. As can be
seen, the minimum wage law could, likewise, lead
to a permanent reduction of profits. Does this mean
that the minimum wage law should, likewise, be
declared unconstitutional on the mere plea that it
results in a permanent reduction of profits? Taking it
a step further, suppose the company decides to
increase the price of its product in order to offset
the effects of the increase in labor cost; does this
mean that the minimum wage law, following the
reasoning of the Dissent, is unconstitutional
because the consuming public is effectively made
to subsidize the wage of a group of laborers,
i.e.,minimum wage earners?
The above paragraph, in full, states

temper. corporate greed by controlling the rate of
price regulatory measures which affects the
(Emphasis supplied)
The point of this paragraph is to simply show that
the State has, in the past, regulated prices and
profits of business establishments. In other words,
this type of regulatory measures is traditionally
recognized as police power measures so that the
senior citizen discount may be considered as a
police power measure as well. What is more, the
substantial distinctions between price and rate of
return on investment control laws vis- -vis the
senior citizen discount law provide greater reason
to uphold the validity of the senior citizen discount
law. As previously discussed, the ability to adjust
prices allows the establishment subject to the
senior citizen discount to prevent or mitigate any
reduction of profits or income/gross sales arising
from the giving of the discount. In contrast,
establishments subject to price and rate of return
on investment control laws cannot adjust prices
accordingly.
Certainly, there is no intention to say that price and
rate of return on investment control laws are the
justification for the senior citizen discount law. Not
at all. The justification for the senior citizen discount
law is the plenary powers of Congress. The
legislative
power
to
regulate
business
establishments is broad and covers a wide array of
areas and subjects. It is well within Congress'
legislative powers to regulate the profits or
income/gross sales of industries and enterprises,
even those without franchises.For what are
franchises but mere legislative enactments?
SaDICE
There is nothing in the Constitution that prohibits
Congress from regulating the profits or
income/gross sales of industries and enterprises
without franchises. On the contrary, the social
346
The same reasoning can be adopted relative to the

examples cited by the Dissent which, according to
it, are valid police power regulations. Article 157 of
the Labor Code, Sections 19 and 18 of the Social
Security Law, and Section 7 of the Pag-IBIG Fund
Law would effectively increase the labor cost of a
business establishment. This would, in turn, be
integrated as part of the cost of its goods or
services. Again, if the establishment does not
increase its prices, the net effect would be a
permanent reduction in its profits or income/gross
sales. Following the reasoning of the Dissent that
"any form of permanent taking of private property
(including profits or income/gross sales) 120 is an
exercise of eminent domain that requires the State
to pay just compensation," 121 then these statutory
provisions would, likewise, have to be declared
unconstitutional. It does not matter that these
benefits are deemed part of the employees'
legislated wages because the net effect is the
same, that is, it leads to higher labor costs and a
permanent reduction in the profits or income/gross
sales of the business establishments. 122 HcTEaA
The point then is this most, if not all, regulatory
measures imposed by the State on business
establishments impact, at some level, the latter's
prices and/or profits or income/gross sales. 123 If
the Court were to sustain the Dissent's theory, then
a wholesale nullification of such measures would
inevitably result. The police power of the State and
the social justice provisions of the Constitution
would, thus, be rendered nugatory.
There is nothing sacrosanct about profits or
income/gross sales. This, we made clear in Carlos
Superdrug Corporation: 124

related. Without sufficient proof that Section 4(a) of
implementation
of
the
same
would
be
will refrain from quashing a legislative act. 125
In conclusion, we maintain that the correct rule in
determining whether the subject regulatory
measure has amounted to a "taking" under the
power of eminent domain is the one laid down in
Alalayan v. National Power Corporation 126 and
followed in Carlos Superdrug Corporation 127
consistent with long standing principles in police
power and eminent domain analysis. Thus, the
deprivation or reduction of profits or income/gross
sales must be clearly shown to be unreasonable,
oppressive or confiscatory. Under the specific
circumstances of this case, such determination can
only be made upon the presentation of competent
proof which petitioners failed to do. A law, which
has been in operation for many years and promotes
the welfare of a group accorded special concern by
the Constitution, cannot and should not be
summarily invalidated on a mere allegation that it
reduces the profits or income/gross sales of
business establishments. cDSaEH
WHEREFORE,the Petition is hereby DISMISSED
for lack of merit.
SO ORDERED.
Sereno, C.J.,Abad, Villarama, Jr.,Perez, Mendoza,
Carpio, J.,see dissenting opinion.
Velasco, Jr., J.,pls. see concurring opinion.
Leonardo-de Castro, J.,C.J., Sereno certifies that J.
De Castro left her vote concurring w/ ponencia of J.
Del Castillo.
xxx xxx xxx


Peralta, J., C.J.,Sereno certifies that J. Peralta left
his vote concurring w/ ponencia of J. Del Castillo.
Bersamin, J.,with concurring opinion.
Leonen, J.,see separate concurring opinion.
||| (Manila Memorial Park, Inc. v. Secretary of Social
Welfare and Development, G.R. No. 175356,
[December 3, 2013])

public utilities, continuously serve as a reminder
that the right to property can be relinquished upon
the command of the State for the promotion of
public good. ASIDTa
Annotation: JUST COMPENSATION IN EMINENT

DOMAIN 686 SCRA 869
AN N O TAT I O N
OURS FOR THE TAKING:
JUST COMPENSATION IN EMINENT DOMAIN
347
By
must be met: (1) the taking must be for public use

and (2) just compensation must be paid to the
owner of the private property.5
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.6
In expropriation proceedings, just compensation is
defined as the full and fair equivalent of the
property taken from its owner by the expropriator.
The measure is not the takers gain, but the
owners loss. The word just is used to intensify the
meaning of the word compensation and to convey
thereby the idea that the equivalent to be rendered
for the property to be taken shall be real,
substantial, full and ample. The constitutional
limitation of just compensation is considered to be
a sum equivalent to the market value of the
property, broadly defined as the price fixed by the
seller in open market in the usual and ordinary
course of legal action and competition; or the fair
value of the property; as between one who receives
and one who desires to sell it, fixed at the time of
the actual taking by the government. The justness of the compensation could only be attained by
using reliable and actual data as bases for fixing
the value of the condemned property.7
Moreover, the payment of just compensation is the
requirement or action needed before ownership of
the appropriated property can rightfully be
transferred to the government.
Thus, in the case of Heirs of Deleste vs. Land Bank
of the Philippines,8 which dealt with the
emancipation program of the government of tenantfarmers, the High Court had the occasion to declare
that certain requirements must also be complied
with, such as payment of just compensation, before
full ownership is vested upon the tenant-farmers.
It further noted that while the law expressly ordered
the emancipation of tenant-farmer and declared
that he shall be deemed the owner of a portion of
land consisting of a family-sized farm except that
no title to the land owned by him was to be actually
issued to him unless and until he had become a
full-fledged member of a duly recognized farmers
cooperative compliance with the prescribed
requirements, tenant-farmers have, at most, an
inchoate right over the land they were tilling. In
recognition of this, a CLT is issued to a tenantfarmer to serve as a provisional title of ownership
over the landholding while the lot owner is awaiting
full payment of or for as long as the tenant-farmer is
an amortizing owner. This certificate proves
inchoate ownership of an agricultural land primarily
devoted to rice and corn production. It is issued in
order for the tenant-farmer to acquire the land he
was tilling. It was understood, however, that full
payment of the just compensation also had to be
made first, conformably to the constitutional
requirement.
2.Determination of Value
DAVID ROBERT C. AQUINO, CSEE*

___________________
1.Nature of compensation, p. 871
2.Determination of Value, p. 873
3.Judicial Function, p. 875
___________________
Just compensation sits at the core of every eminent
domain proceedings. Rightly so because without
the concept of just compensation, the process of
appropriating private property for public use
translates to a tyrannical act by the state devoid of
any rule of law.
The case under annotationLand Bank of the
Philippines vs. Emiliano Santiago1provides us
with the opportunity to examine this concept of just
compensation and how it snugly fits into the entire
scheme of due process.
Yet the concept of just compensation, according to
a study made by William Michael Treanor in his
Treatise2The Origins and Original Significance of
the Just Compensation Clause of the Fifth
Amendmentwas nowhere to be found in the early
constitutions. According to this scholarly work, the
concept of receiving compensation from the state
for the taking of ones private property was never
an issue and such taking was always premised on
the prerogative of the state for the common good of
the manythat property right could be
compromised in order to advance the common
good.
For a short while, this policy of non-compensated
taking by the state served the public good. Lands
that were not developed by its owners were
transferred to those who tilled or developed it for
good use. Most of the time property was taken for
use as public roads which spurred economic and
social development at low cost to the government.
It was only through the Vermont charter of 1777,
that the concept of just compensation took its first
real constitutional footing. With new focus on
private rights, other states followed suit.
This concept thereafter found its way into our
fundamental law which was largely copied from our
American counterpart. Note, however, that Section
6 of Article II, of the 1973 Constitution, which is a
modified version of the original provision of the
1935 Constitution, emphasizes the stewardship
concept, under which private property is supposed
to be held by the individual only as a trustee for the
people in general, who are its real owners. As a
mere steward, the individual must exercise his
rights to the property not for his own exclusive and
selfish benefit but for the good of the entire
community or nation3 In our current constitution, it
now carries the concept we are now familiar
providing that private property shall not be taken for
public use without just compensation.4
1.Nature of compensation
The power of eminent domain is the inherent right
of the State to condemn private property for public
use upon payment of just compensation. Thus, for
expropriation to be valid, the following requirements
348
Just compensation is the fair market value of the

property. Fair market value is that sum of money
which a person desirous but not compelled to buy,
and an owner willing but not compelled to sell,
would agree on as a price to be given and received
therefor.9 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.10 For purposes of just
compensation, the fair market value of an
expropriated property is determined by its character
and its price at the time of taking.11
What is illuminating in the case under annotation is
that the Supreme Court had the opportunity to
delve into several issues as to the determination of
the value and its attendant concerns. It held that
when the agrarian reform process is still incomplete
as the just compensation due the landowner has
yet to be settled, such just compensation should be
determined and the process concluded under
Republic Act No. 6657. The ruling it applied in Land
Bank of the Philippines v. Natividad was likewise
applied in Land Bank of the Philippines v. Heirs of
Angel T. Domingo, when the landowner filed a
Petition for the Determination and Payment of Just
Compensation despite his receipt of LBPs partial
payment. The High Court held that since the
amount of just compensation to be paid had yet to
be settled, then the agrarian reform process was
still incomplete; thus, it should be completed under
Republic Act No. 6657.
Based on the foregoing, when the agrarian reform
process is still incomplete as the just compensation
due the land-owner has yet to be settled, such just
compensation should be determined and the
process concluded under Republic Act No. 6657. It
also declared under the case being annotated that
the interest imposed in case of delay in payments
in agrarian cases is 12% per annum and not 6% as
the imposition is in the nature of damages for delay
in payment which in effect makes the obligation on
the part of the government one of forbearance.
Moreover, the Court has allowed the grant of
interest in expropriation cases where there is delay
in the payment of just compensation. As to the
interest of such amount in the event it is held in
deposit, the High Court had the occasion to state
that the owner of the deposited amount is the one
entitled to the interest which accrue thereon.12
As to the efficacy of Republic Act No. 6657, it
should be remembered that the High Court had
already resolved this issue and declared that if just
compensation is not settled prior to the passage of
this law, it should be computed in accordance with
the said law, although the property was acquired
under Presidential Decree No. 27.13 The taking of
private lands under the agrarian reform program
partakes of the nature of an expropriation
proceeding.
In computing just compensation for expropriation
proceedings, the RTC should take into
consideration the value of the land at the time of
taking, not at the time of the rendition of judgment.

The time of taking is the time when the landowner
was deprived of the use and benefit of his property,
such as when the title is transferred to the
Republic.14 Note, however, that the Court has also
declared in no uncertain terms that R.A. No. 6657
is the relevant law for determining just
compensation after noting several decided cases
where the Court found it more equitable to
determine just compensation based on the value of
the property at the time of payment. This was a
clear departure from the Courts earlier stance in
Gabatin vs. Land Bank of the Philippines where it
declared that the reckoning period for the
determination of just compensation is the time
when the land was taken applying P.D. No. 27 and
E.O. No. 228.15
3.Judicial Function
The mandate of just compensation is a judicial
function.16
The determination of just compensation is a judicial
function; hence, courts cannot be unduly restricted
in their determination thereof. To do so would
deprive the courts of their judicial prerogatives and
reduce them to the bureaucratic function of
inputting data and arriving at the valuation. While
the courts should be mindful of the different
formulae created by the DAR in arriving at just
compensation, they are not strictly bound to adhere
thereto if the situation before them do not warrant
it.17
Judicial determination is needed to arrive at the
exact amount due to the property owner.18 The
valuation of property or determination of just
compensation in eminent domain proceedings is
essentially a judicial function which is vested with
the courts and not with the administrative
agencies.19 It is also interesting to note that courts
may take judicial notice of a decision or the facts
involved in another case tried by the same court if
the parties introduce the same in evidence or the
court as a matter of convenience.20
In sum, just compensation is simply the mechanism
that prevents the state from overstepping its
constitutional bounds and keeps it at bay from any
abuse of its powers. It ensures that peoples rights
in general, and their right to own property in
particular are protected from arbitrary and
whimsical taking. That private property may only be
taken subject to the condition that it shall be for a
public purpose and with just compensation.
After all, the taking of private property and the
deprivation of its rightful owners of the benefit and
use thereof, may only be justified if the taking is for
a purpose higher than individual benefit and
comfort. That the taking be for purposes that best
serve the greater good and for a higher purpose.
Nor should the government resort to underhanded
methods in order to deprive its citizens of their use
of property under the guise of regulation. As held in
one caseprivate property which is not noxious
nor intended for noxious purposes may not, by
zoning, be destroyed without compensation. Such
principle finds no support in the principles of justice
as we know them. The police powers of local
349
government units which have always received

broad and liberal interpretation cannot be stretched
to cover this particular taking. Distinction should be
made between destruction from necessity and
eminent domain.21
o0o
Petitioner Dumlao specifically questions the

constitutionality of section 4 of Batas Pambansa
Blg. 52 as discriminatory and contrary to the equal
protection and due process guarantees of the
Constitution. Said Section 4 provides:
F. EQUAL PROTECTION - Article III, Section 1,

1987 Constitution
1.
2.
"Sec. 4. Special Disqualification. In addition to

violation of section 10 of Art. XII-C of the
Constitution and disqualification mentioned in
existing laws, which are hereby declared as
disqualification for any of the elective officials
enumerated in section 1 hereof.
Economic Equality
Art. II, Sec. 14
Art. III, Sec. 11 (free access)
Art. VIII, Sec. 5 [5] (legal aid)
Art. XII, Sec. 2 (Marine resources)
o Sec. 10 (nationalization)
Art. XIII, Secs. 1-2 (social justice)
o Sec. 3 (protection to labor)
Any retired elective provincial, city of municipal

official who has received payment of the retirement
benefits to which he is entitled under the law and
who shall have been 65 years of age at the
commencement of the term of office to which he
seeks to be elected, shall not be qualified to run for
the same elective local office from which he has
retired." (Paragraphing and emphasis supplied)
Political Equality
Art. IX-C, Sec. 10 (discrimination)
Art. XIII, Sec. 1 (social justice)
Petitioner Dumlao alleges that the aforecited

provision is directed insidiously against him, and
that the classification provided therein is based on
"purely arbitrary grounds and, therefore, class
legislation."
CASES:
1.
DUMLAO VS. COMELEC 95 SCRA 392

(1980)
EN BANC
For their part, petitioners Igot and Salapantan, Jr.

assail the validity of the following statutory
provisions:
[G.R. No. L-52245. January 22, 1980.]

PATRICIO DUMLAO, ROMEO B. IGOT, and
ALFREDO SALAPANTAN, JR., petitioners, vs.
COMMISSION ON ELECTIONS, respondent.
"Sec. 7. Term of office. Unless sooner removed

for cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6)
years. which shall commence on the first Monday
of March 1980."
Raul M . Gonzales for petitioners.

Office of the Solicitor General for respondent.
. . ." Batas Pambansa Blg. 51

"Sec. 4. . . .
"Any person who has committed any act of
disloyalty to the State, including acts amounting to
subversion, insurrection, rebellion or other similar
crimes, shall not be qualified to be a candidate for
any of the offices covered by this Act, or to
participate in any partisan political activity therein:
DECISION
MELENCIO-HERRERA, J p:
This is a Petition for Prohibition with Preliminary
Injunction and/or Restraining Order filed by
petitioners, in their own behalf and all others
allegedly similarly situated, seeking to enjoin
respondent Commission on Elections (COMELEC)
from implementing certain provisions of Batas
Pambansa Blg. 51, 52, and 53 for being
unconstitutional.
provided, that a judgment of conviction for any of

the aforementioned crimes shall be conclusive
evidence of such fact and.
the filing of charges for the commission of such
crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie
evidence of such fact.
The Petition alleges that petitioner, Patricio

Dumlao, is a former Governor of Nueva Vizcaya,
who has filed his certificate of candidacy for said
position of Governor in the forthcoming elections of
January 30, 1980. Petitioner, Romeo B. Igot, is a
taxpayer, a qualified voter and a member of the Bar
who, as such, has taken his oath to support the
Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a
taxpayer, a qualified voter, and a resident of San
Miguel, Iloilo. cdasia
". . . (Batas Pambansa Blg. 52) (Paragraphing and

emphasis supplied).
"Section 1. Election of certain Local Officials. . . .
The election shall be held on January 30, 1980."
(Batas Pambansa, Blg. 52).
350
"Section 6. Election and Campaign Period. The

election period shall be fixed by the Commission on
Elections in accordance with Section 6, Art. XII-C of
the Constitution. The period of campaign shall
commence on December 29, 1979 and terminate
on January 28, 1980." (ibid.)
This Petition, however, has fallen far short of the

other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited
to the determination of actual cases and
controversies.
In addition to the above-cited provisions, petitioners

Igot and Salapantan, Jr. also question the
accreditation of some political parties by
respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary
to section 9(1), Art. XII(C) of the Constitution, which
provides that a "bona fide candidate for any public
office shall be free from any form of harassment
and discrimination."
Petitioner Dumlao assails the constitutionality of the

first paragraph of section 4 of Batas Pambansa Blg.
52, quoted earlier, as being contrary to the equal
protection clause guaranteed by the Constitution,
and seeks to prohibit respondent COMELEC from
implementing said provision. Yet, Dumlao has not
been adversely affected by the application of that
provision.
No
petition
seeking
Dumlao's
disqualification has been filed before the
COMELEC. There is no ruling of that constitutional
body on the matter, which this Court is being asked
to review on Certiorari. His is a question posed in
the abstract, a hypothetical issue, and in effect, a
petition for an advisory opinion from this Court to be
"rendered without the benefit of a detailed factual
record." Petitioner Dumlao's case is clearly within
the primary jurisdiction (see concurring Opinion of
now Chief Justice Fernando in Peralta vs.
Comelec, 82 SCRA 30, 96 [1978]) of respondent
COMELEC as provided for in section 2, Art. XII-C,
for the Constitution the pertinent portion of which
reads:
The question of accreditation will not be taken up in

this case but in that of Bacalso, et als., vs.
COMELEC et als. (G.R. No. L-52232) where the
issue has been squarely raised. cdasia
Petitioners then pray that the statutory provisions
they have challenged be declared null and void for
being violative of the Constitution.
I. The procedural aspect.
At the outset, it should be stated that this Petition
suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For
one, there is a misjoinder of parties and actions.
Petitioner Dumlao's interest is alien to that of
petitioners Igot and Salapantan. Petitioner Dumlao
does not join petitioners Igot and Salapantan in the
burden of their complaint, nor do the latter join
Dumlao in his. They, respectively, contest
completely different statutory provisions. Petitioner
Dumlao has joined this suit in his individual
capacity as a candidate. The action of petitioners
Igot and Salapantan is more in the nature of a
taxpayer's suit. Although petitioners plead time
constraints as the reason of their joint Petition, it
would have required only a modicum more of effort
for petitioner Dumlao, on one hand, and petitioners
Igot and Salapantan, on the other, to have filed
separate suits, in the interest of orderly procedure.
"Section 2. The Commission on Elections shall

have the following power and functions.
1) . . .
2) Be the sole judge of all contests relating to the
elections, returns and qualifications of all members
of the National Assembly and elective provincial
and city officials." (Emphasis supplied)
The aforequoted provision must also be related to
section 11 of Art. XII-C, which provides:
"Section 11. Any decision, order, or ruling of the
Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty
days from his receipt of a copy thereof."
For another, there are standards that have to be

followed in the exercise of the function of judicial
review, namely: (1) the existence of an appropriate
case; (2) an interest personal and substantial by
the party raising the constitutional question; (3) the
plea that the function be exercised at the earliest
opportunity; and (4) the necessity that the
constitutional question be passed upon in order to
decide the case (People vs. Vera, 65 Phil. 56
[1937]).
B. Proper party.
The long-standing rule has been that "the person
who impugns the validity of a statute 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" (People vs. Vera,
supra).
In the case of petitioners Igot and Salapantan, it
was only during the hearing, not in their Petition,
that Igot is said to be a candidate for Councilor.
Even then, it cannot be denied that neither one has
been convicted nor charged with acts of disloyalty
to the State, nor disqualified from being candidates
for local elective positions. Neither one of them has
It may be conceded that the third requisite has

been complied with, which is, that the parties have
raised the issue of constitutionality early enough in
their pleadings.
351
been alleged to have been adversely affected by

the operation of the statutory provisions they assail
as unconstitutional. Theirs is a generalized
grievance. They have no personal nor substantial
interest at stake. In the absence of any litigate
interest, they can claim no locus standi in seeking
judicial redress. LibLex
speaking through our present Chief Justice, this

Court is vested with discretion as to whether or not
a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a
well-settled ruled that the constitutionality of an act
of the legislature will not be determined by the
courts unless that question is properly raised an
presented in appropriate cases and is necessary to
a determination of the case; i.e., the issue of
constitutionality must be the very lis mota
presented."
It is true that petitioners Igot and Salapantan have

instituted this case as a taxpayer's suit, and that the
rule enunciated in People vs. Vera, above stated,
has been relaxed in Pascual vs. The Secretary of
Public Works (110 Phil. 331 [1960], thus:
". . . it is well settled that the validity of a statute
may be contested only by one who will sustain a
direct injury in consequence of its enforcement. Yet,
there are many decisions nullifying, at the instance
of taxpayers, laws providing for the disbursement of
public funds, upon the theory that 'the expenditure
of public funds, by an officer of the State for the
purpose of administering an unconstitutional act
constitutes a misapplication of such funds,' which
may be enjoined at the request of a taxpayer."
We have already stated that, by the standards set

forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or
for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the
necessity for resolving the issue of constitutionality
is absent, and procedural regularity would require
that his suit be dismissed.
II. The substantive viewpoint.
In the same vein, it has been held:

We have resolved, however, to rule squarely on two
of the challenged provisions, the Courts not being
entirely without discretion in the matter. Thus,
adherence to the strict procedural standard was
relaxed in Tinio vs. Mina (26 SCRA 512 [1968]);
Edu vs. Ericta (35 SCRA 481 [1970]); and in
Gonzalez vs. Comelec (27 SCRA 835 [1969]), the
Opinion in the Tinio and Gonzales cases having
been penned by our present Chief Justice. The
reasons which have impelled us are the paramount
public interest involved and the proximity of the
elections which will be held only a few days hence.
"In the determination of the degree of interest

essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that
not only persons individually affected, but also
taxpayers have sufficient interest in preventing the
illegal expenditure of moneys raised by taxation
and
they
may,
therefore,
question
the
constitutionality of statutes requiring expenditure of
public
moneys."
(Philippine
Constitution
Association, Inc., et als., vs. Gimenez, et als. 15
SCRA 479 [1965]).
Petitioner Dumlao's contention that section 4 of BP

Blg. 52 is discriminatory against him personally is
belied by the fact that several petitions for the
disqualification of other candidates for local
positions based on the challenged provision have
already been filed with the COMELEC (as listed in
p. 15, respondent's Comment). This tellingly
overthrows Dumlao's contention of intentional or
purposeful discrimination. LexLib
However, the statutory provisions questioned in this

case, namely, sec. 7, BP Blg. 51, and sections 4, 1,
and 6 BP Blg. 52, do not directly involve the
disbursement of public funds. While, concededly,
the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being
extracted and spent in violation of specific
constitutional protections against abuses of
legislative power" (Flast v. Cohen, 392 U.S., 83
[1960]), or that there is a misapplication of such
funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or
that public money is being deflected to any
improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds
through the enforcement of an invalid or
unconstitutional law. (Philippine Constitution
Association vs. Mathay, 18 SCRA 300 [1966]),
citing Philippine Constitution Association vs.
Gimenez, 15 SCRA 479 [1965]). Besides, the
institution of a taxpayer's suit, per se, is no
assurance of judicial review. As held by this Court
in Tan vs. Macapagal (43 SCRA 677 [1972]),
The assertion that Section 4 of BP Blg. 52 is

contrary to the safeguard of equal protection is
neither well taken. The constitutional guarantee of
equal protection of the laws is subject to rational
classification. If the groupings are based on
reasonable and real differentiations, one class can
be treated and regulated differently from another
class. For purposes of public service, employees
65 years of age, have been validly classified
differently from younger employees. Employees
attaining that age are subject to compulsory
retirement, while those of younger ages are not so
compulsorily retirable.
In respect of election to provincial, city, or municipal
positions, to require that candidates should not be
352
more than 65 years of age at the time they assume

office, if applicable to everyone, might or might not
be a reasonable classification although, as the
Solicitor General has intimated, a good policy of the
law should be to promote the emergence of
younger blood in our political elective echelons. On
the other hand, it might be that persons more than
65 years old may also be good elective local
officials.
doubtful and equivocal breach. Courts are

practically unanimous in the pronouncement that
laws shall not be declared invalid unless the conflict
with the Constitution is clear beyond reasonable
doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978],
citing Cooper vs. Telfair, 4 Dall. 14; Dodd, Cases on
Constitutional Law, 3rd ed. 1942, 56). Lastly, it is
within the competence of the legislature to
prescribe qualifications for one who desires to
become a candidate for office provided they are
reasonable, as in this case.
Coming now to the case of retirees. Retirement

from government service may or may not be a
reasonable disqualification for elective local
officials. For one thing, there can also be retirees
from government service at ages, say below 65. It
may neither be reasonable to disqualify retirees,
aged 65, for a 65-year old retiree could be a good
local official just like one, aged 65, who is not a
retiree.
In so far as the petition of Igot and Salapantan are

concerned, the second paragraph of section 4 of
Batas Pambansa Blg. 52, quoted in full earlier, and
which they challenged, may be divided in two parts.
The first provides:
"a judgment of conviction for any of the
aforementioned crimes shall be conclusive
evidence of such fact. . . . "
But, in the case of a 65-year old elective local

official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him
from running for the same office from which he had
retired, as provided for in the challenged provision.
The need for new blood assumes relevance. The
tiredness of the retiree for government work is
present, and what is emphatically significant is that
the retired employee has already declared himself
tired an unavailable for the same government work,
but, which, by virtue of a change of mind, he would
like to assume again. It is for the very reason that
inequality will neither result from the application of
the challenged provision. Just as that provision
does not deny equal protection, neither does it
permit such denial (see People vs. Vera, 65 Phil. 56
[1933]). Persons similarly situated are similarly
treated.
The supremacy of the Constitution stands out as

the cardinal principle. We are aware of the
presumption of validity that attached to a
challenged statute, of the well-settled principle that
"all reasonable doubts should be resolved in favor
of constitutionality," and that Courts will not set
aside a statute as constitutionally defective "except
in a clear case." (People vs. Vera, supra). We are
constrained to hold that this in one such clear case.
Cdphil
Explicit is the constitutional provision that, in all
criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel (Article IV, section 19, 1973 Constitution).
An accusation, according to the fundamental law, is
not synonymous with guilt. The challenged proviso
contravenes the constitutional presumption of
innocence, as a candidate is disqualified from
running from public office on the ground alone that
charges have been filed against him before a civil
or military tribunal. It condemns before one is fully
heard. In ultimate effect, except as to the degree of
proof, no distinction is made between a person
convicted of acts of disloyalty and one against
whom charges have been filed for such acts, as
both of them would be ineligible to run for public
office. A person disqualified to run for public office
on the ground that charges have been filed against
him is virtually placed in the same category as a
person already convicted of a crime with the
penalty of arresto, which carries with it the
accessory penalty of suspension of the right to hold
office during the term of the sentence (Art. 44,
Revised Penal Code).
In fine, it bears reiteration that the equal protection

clause does not forbid all legal classification. What
is proscribes is a classification which is arbitrary
and unreasonable. That constitutional guarantee is
not violated by a reasonable classification is
germane to the purpose of the law and applies to
all those belonging to the same class (Peralta vs.
Comelec, 82 SCRA 30 [1978] citing Felwa vs.
Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery
and Apparel Control and Inspection Board, 21
SCRA 336 [1967]; Inchong, etc., et al. vs.
Hernandez, 101 Phil. 1155 [1957]). The purpose of
the law is to allow the emergence of younger blood
in local governments. The classification in question
being pursuant to that purpose, it cannot be
considered invalid "even if at times, it may be
susceptible to the objection that it is marred by
theoretical
inconsistencies:
(Chief
Justice
Fernando, The Constitution of the Philippines, 1977
ed., p. 547).
And although the filing of charges is considered as

but prima facie evidence, and therefore, may be
rebutted, yet, there is "clear and present danger"
that because the proximity of the elections, time
constraints will prevent one charged with acts of
There is an additional consideration. Absent herein

is a showing of the clear invalidity of the questioned
provision. Well accepted is the rule that to justify
the nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a
353
disloyalty from offering contrary proof to overcome

the prima facie evidence against him.
[G.R. No. 189698. December 1, 2009.]

ELEAZAR P. QUINTO and GERINO A.
TOLENTINO, JR., petitioners,vs.COMMISSION ON
ELECTIONS, respondent.
Additionally, it is best that evidence pro and con of

acts of disloyalty be aired before the Courts rather
than before an administrative body such as the
COMELEC. A highly possible conflict of finding
between two government bodies, to the extreme
detriment of a person charged, will thereby be
avoided. Furthermore, a legislative/administrative
determination of guilt should not be allowed to be
substituted for a judicial determination.
DECISION
NACHURA, J p:
"In our predisposition to discover the 'original intent'
of a statute, courts become the unfeeling pillars of
the status quo. Little do we realize that statutes or
even constitutions are bundles of compromises
thrown our way by their framers. Unless we
exercise vigilance, the statute may already be out
of tune and irrelevant to our day". 1 It is in this light
that we should address the instant case.
Before the Court is a petition for prohibition and
certiorari, with prayer for the issuance of a
temporary restraining order and a writ of
preliminary injunction, assailing Section 4 (a) of
Resolution No. 8678 of the Commission on
Elections (COMELEC).In view of pressing
contemporary events, the petition begs for
immediate resolution.
The Antecedents
This controversy actually stems from the law
authorizing the COMELEC to use an automated
election system (AES).
On December 22, 1997, Congress enacted
Republic Act (R.A.) No. 8436, entitled "AN ACT
AUTHORIZING
THE
COMMISSION
ON
ELECTIONS
TO
USE
AN
AUTOMATED
ELECTION SYSTEM IN THE MAY 11, 1998
NATIONAL OR LOCAL ELECTIONS AND IN
SUBSEQUENT
NATIONAL
AND
LOCAL
ELECTORAL EXERCISES, PROVIDING FUNDS
THEREFOR AND FOR OTHER PURPOSES".
Section 11 thereof reads:
SEC. 11. Official Ballot. The Commission shall
prescribe the size and form of the official ballot
which shall contain the titles of the positions to be
filled and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed
using the same type size. A fixed space where the
chairman of the Board of Election inspectors shall
affix his/her signature to authenticate the official
ballot shall be provided. cHCSDa
Being infected with constitutional infirmity, a partial

declaration of nullity of only that objectionable
portion is mandated. It is separable from the first
portion of the second paragraph of section 4 of
Batas Pambansa Blg. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of
Batas Pambansa Bilang 52 is hereby declared
valid. Said paragraph reads:
"SEC. 4. Special disqualification. In addition to
violation of Section 10 of Article XII(C) of the
Constitution and disqualifications mentioned in
existing laws which are hereby declared as
disqualifications for any of the elective officials
enumerated in Section 1 hereof, any retired elective
provincial, city or municipal official, who has
received payment of the retirement benefits to
which he is entitled under the law and who shall
have been 65 years of age at the commencement
of the term of office to which he seeks to be
elected, shall not be qualified to run for the same
elective local office from which he has retired."
2) That portion of the second paragraph of section
4 of Batas Pambansa Bilang 52 providing that ". . .
the filing of charges for the commission of such
crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie
evidence of such fact", is hereby declared null and
void, for being violative of the constitutional
presumption of innocence guaranteed to an
accused.
SO ORDERED.
Makasiar, Antonio, Concepcion Jr., Fernandez and
Guerrero, JJ ., concur.
Both sides of the ballots may be used when

necessary.
De Castro, J ., abstain as far as petitioner Dumlao

is concerned.
For this purpose, the deadline for the filing of

certificate
of
candidacy/petition
for
registration/manifestation to participate in the
election shall not be later than one hundred twenty
(120) days before the elections: Provided, That,
any elective official, whether national or local,
running for any office other than the one which
he/she is holding in a permanent capacity, except
for president and vice president, shall be deemed
resigned only upon the start of the campaign period
||| (Dumlao v. Commission on Elections, G.R. No.

L-52245, [January 22, 1980], 184 PHIL 369-395)
2.
QUINTO VS. COMELEC 606 SCRA

258 (2009)
EN BANC
354
corresponding to the position for which he/she is

running: Provided, further, That, unlawful acts or
omissions applicable to a candidate shall take
effect upon the start of the aforesaid campaign
period: Provided, finally, That, for purposes of the
May 11, 1998 elections, the deadline for filing of the
certificate of candidacy for the positions of
President, Vice President, Senators and candidates
under the Party-List System as well as petitions for
registration and/or manifestation to participate in
the Party-List System shall be on February 9, 1998
while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27,
1998.
"Section 15. Official Ballot. The Commission

shall prescribe the format of the electronic display
and/or the size and form of the official ballot, which
shall contain the titles of the position to be filled
and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Where
practicable, electronic displays must be constructed
to present the names of all candidates for the same
position in the same page or screen, otherwise, the
electronic displays must be constructed to present
the entire ballot to the voter, in a series of
sequential pages, and to ensure that the voter sees
all of the ballot options on all pages before
completing his or her vote and to allow the voter to
review and change all ballot choices prior to
completing and casting his or her ballot. Under
each position to be filled, the names of candidates
shall be arranged alphabetically by surname and
uniformly indicated using the same type size. The
maiden or married name shall be listed in the
official ballot, as preferred by the female candidate.
Under each proposition to be vote upon, the
choices should be uniformly indicated using the
same font and size.
The official ballots shall be printed by the National

Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private
printers under proper security measures which the
Commission shall adopt. The Commission may
contract the services of private printers upon
certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and
deputized citizens' arms of the Commission may
assign watchers in the printing, storage and
distribution of official ballots.
"A fixed space where the chairman of the board of

election inspectors shall affix his/her signature to
authenticate the official ballot shall be provided.
To prevent the use of fake ballots, the Commission

through the Committee shall ensure that the serial
number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to
reproduce on a photocopying machine and that
identification marks, magnetic strips, bar codes and
other technical and security markings, are provided
on the ballot.
"For this purpose, the Commission shall set the

deadline for the filing of certificate of
candidacy/petition of registration/manifestation to
participate in the election. Any person who files his
certificate of candidacy within this period shall only
be considered as a candidate at the start of the
campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or
effect only upon the start of the aforesaid campaign
period: Provided, finally, That any person holding a
public appointive office or position, including active
members of the armed forces, and officers and
employees in government-owned or -controlled
corporations, shall be considered ipso facto
resigned from his/her office and must vacate the
same at the start of the day of the filing of his/her
certificate of candidacy.
The official ballots shall be printed and distributed

to each city/municipality at the rate of one (1) ballot
for every registered voter with a provision of
additional four (4) ballots per precinct. 2
Almost a decade thereafter, Congress amended the
law on January 23, 2007 by enacting R.A. No.
9369, entitled "AN ACT AMENDING REPUBLIC
ACT
NO.
8436,
ENTITLED
'AN
ACT
AUTHORIZING
THE
COMMISSION
ON
ELECTIONS
TO
USE
AN
AUTOMATED
ELECTION SYSTEM IN THE MAY 11, 1998
NATIONAL OR LOCAL ELECTIONS AND IN
SUBSEQUENT
NATIONAL
AND
LOCAL
ELECTORAL EXERCISES, TO ENCOURAGE
TRANSPARENCY, CREDIBILITY, FAIRNESS AND
ACCURACY OF ELECTIONS, AMENDING FOR
THE PURPOSE BATAS PAMPANSA BLG. 881, AS
AMEMDED, REPUBLIC ACT NO. 7166 AND
OTHER RELATED ELECTION LAWS, PROVIDING
FUNDS
THEREFOR
AND
FOR
OTHER
PURPOSES'". Section 13 of the amendatory law
modified Section 11 of R.A. No. 8436, thus:
cSaATC
SEC. 13. Section 11 of Republic Act No. 8436 is
hereby amended to read as follows:
"Political parties may hold political conventions to

nominate their official candidates within thirty (30)
days before the start of the period for filing a
"With respect to a paper-based election system, the
official ballots shall be printed by the National
Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private
printers under proper security measures which the
Commission shall adopt. The Commission may
contract the services of private printers upon
certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and
deputized citizens' arms of the Commission shall
355
assign watchers in the printing, storage and

distribution of official ballots. HEITAD
not yet treated by law as candidates. They should

be considered resigned from their respective offices
only at the start of the campaign period when they
are, by law, already considered as candidates. 6
ECaHSI
Petitioners also contend that Section 13 of R.A. No.
9369, the basis of the assailed COMELEC
resolution, contains two conflicting provisions.
These must be harmonized or reconciled to give
effect to both and to arrive at a declaration that they
are not ipso facto resigned from their positions
upon the filing of their CoCs. 7
Petitioners further posit that the provision
considering them as ipso facto resigned from office
upon the filing of their CoCs is discriminatory and
violates the equal protection clause in the
Constitution. 8
The Respondent's Arguments
On the procedural aspect of the petition, the Office
of the Solicitor General (OSG),representing
respondent COMELEC, argues that petitioners
have no legal standing to institute the suit.
Petitioners have not yet filed their CoCs, hence,
they are not yet affected by the assailed provision
in the COMELEC resolution. The OSG further
claims that the petition is premature or unripe for
judicial determination. Petitioners have admitted
that they are merely planning to file their CoCs for
the coming 2010 elections. Their interest in the
present controversy is thus merely speculative and
contingent upon the filing of the same. The OSG
likewise contends that petitioners availed of the
wrong remedy. They are questioning an issuance of
the COMELEC made in the exercise of the latter's
rule-making power. Certiorari under Rule 65 is then
an improper remedy. 9
On the substantive aspect, the OSG maintains that
the COMELEC did not gravely abuse its discretion
in phrasing Section 4 (a) of Resolution No. 8678 for
it merely copied what is in the law. The OSG,
however, agrees with petitioners that there is a
conflict in Section 13 of R.A. No. 9369 that should
be resolved. According to the OSG, there seems to
be no basis to consider appointive officials as ipso
facto resigned and to require them to vacate their
positions on the same day that they file their CoCs,
because they are not yet considered as candidates
at that time. Further, this "deemed resigned"
provision existed in Batas Pambansa Bilang (B.P.
Blg.) 881, and no longer finds a place in our
present election laws with the innovations brought
about by the automated system. 10
Our Ruling
I.
At first glance, the petition suffers from an incipient
procedural defect. What petitioners assail in their
petition is a resolution issued by the COMELEC in
the exercise of its quasi-legislative power. Certiorari
under Rule 65, in relation to Rule 64, cannot be
availed of, because it is a remedy to question
decisions, resolutions and issuances made in the
exercise of a judicial or quasi-judicial function. 11
Prohibition is also an inappropriate remedy,
because what petitioners actually seek from the
Court is a determination of the proper construction
"To prevent the use of fake ballots, the Commission

through the Committee shall ensure that the
necessary safeguards, such as, but not limited to,
bar codes, holograms, color shifting ink,
microprinting, are provided on the ballot.
"The official ballots shall be printed and distributed
to each city/municipality at the rate of one ballot for
every registered voter with a provision of additional
three ballots per precinct." 3
Pursuant to its constitutional mandate to enforce
and administer election laws, COMELEC issued
Resolution No. 8678, 4 the Guidelines on the Filing
of Certificates of Candidacy (CoC) and Nomination
of Official Candidates of Registered Political Parties
in Connection with the May 10, 2010 National and
Local Elections. Sections 4 and 5 of Resolution No.
8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy.
a) Any person holding a public appointive office
or position including active members of the Armed
Forces of the Philippines, and other officers and
employees in government-owned or controlled
resigned from his office upon the filing of his
b) Any person holding an elective office or position
shall not be considered resigned upon the filing of
his certificate of candidacy for the same or any
other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.
The certificate of candidacy shall be filed on regular
days, from November 20 to 30, 2009, during office
hours, except on the last day, which shall be until
midnight.
Alarmed that they will be deemed ipso facto
resigned from their offices the moment they file
their CoCs, petitioners Eleazar P. Quinto and
Gerino A. Tolentino, Jr., who hold appointive
positions in the government and who intend to run
in the coming elections, 5 filed the instant petition
for prohibition and certiorari, seeking the
declaration of the afore-quoted Section 4 (a) of
Resolution No. 8678 as null and void.
The Petitioners' Contention
Petitioners contend that the COMELEC gravely
abused its discretion when it issued the assailed
Resolution. They aver that the advance filing of
CoCs for the 2010 elections is intended merely for
the purpose of early printing of the official ballots in
order to cope with time limitations. Such advance
filing does not automatically make the person who
filed the CoC a candidate at the moment of filing. In
fact, the law considers him a candidate only at the
start of the campaign period. Petitioners then assert
that this being so, they should not be deemed ipso
facto resigned from their government offices when
they file their CoCs, because at such time they are
356
of a statute and a declaration of their rights

thereunder. Obviously, their petition is one for
declaratory relief, 12 over which this Court does not
exercise original jurisdiction. 13 aTICAc
However, petitioners raise a challenge on the
constitutionality of the questioned provisions of both
the COMELEC resolution and the law. Given this
scenario, the Court may step in and resolve the
instant petition.
The transcendental nature and paramount
importance of the issues raised and the compelling
state interest involved in their early resolution
the period for the filing of CoCs for the 2010
elections has already started and hundreds of civil
servants intending to run for elective offices are to
lose their employment, thereby causing imminent
and irreparable damage to their means of livelihood
and, at the same time, crippling the government's
manpower further dictate that the Court must, for
propriety, if only from a sense of obligation,
entertain the petition so as to expedite the
adjudication of all, especially the constitutional,
issues.
In any event, the Court has ample authority to set
aside errors of practice or technicalities of
procedure and resolve the merits of a case.
Repeatedly stressed in our prior decisions is the
principle that the Rules were promulgated to
provide guidelines for the orderly administration of
justice, not to shackle the hand that dispenses it.
Otherwise, the courts would be consigned to being
mere slaves to technical rules, deprived of their
judicial discretion. 14
II.
To put things in their proper perspective, it is
imperative that we trace the brief history of the
assailed provision. Section 4 (a) of COMELEC
Resolution No. 8678 is a reproduction of the
second proviso in the third paragraph of Section 13
of R.A. No. 9369, which for ready reference is
quoted as follows:
For this purpose, the Commission shall set the
deadline for the filing of certificate of
candidacy/petition for registration/manifestation to
participate in the election. Any person who files his
certificate of candidacy within this period shall only
be considered as a candidate at the start of the
campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or
effect only upon the start of the aforesaid campaign
period: Provided, finally, That any person holding a
members of the armed forces, and officers and
employees in government-owned or -controlled
resigned from his/her office and must vacate the
same at the start of the day of the filing of his/her
certificate of candidacy.15
Sec. 66. Candidates holding appointive office or

position. Any person holding a public appointive
office or position, including active members of the
Armed Forces of the Philippines, and officers and
employees in government-owned or controlled
resigned from his office upon the filing of his
certificate of candidacy. acCTSE
It may be recalled in inverse chronology that
earlier, Presidential Decree No. 1296, or the 1978
Election Code, contained a similar provision, thus
SECTION 29. Candidates holding appointive office

or position. Every person holding a public
appointive office or position, including active
members of the Armed Forces of the Philippines,
and officers and employees in government-owned
or controlled corporations, shall ipso facto cease in
his office or position on the date he files his
certificate of candidacy. Members of the Cabinet
shall continue in the offices they presently hold
notwithstanding the filing of certificate of candidacy,
subject to the pleasure of the President of the
Philippines.
Much earlier, R.A. No. 6388, or the Election Code
of 1971, likewise stated in its Section 23 the
following:
SECTION 23. Candidates Holding Appointive Office
or Position. Every person holding a public
appointive office or position, including active
members of the Armed Forces of the Philippines
and every officer or employee in governmentowned or controlled corporations, shall ipso facto
cease in his office or position on the date he files
his certificate of candidacy: Provided, That the filing
of a certificate of candidacy shall not affect
whatever civil, criminal or administrative liabilities
which he may have incurred.
Going further back in history, R.A. No. 180, or the
Revised Election Code approved on June 21, 1947,
also provided that
SECTION 26. Automatic cessation of appointive
officers and employees who are candidates.
Every person holding a public appointive office or
position shall ipso facto cease in his office or
position on the date he files his certificate of
candidacy.
During the Commonwealth era, Commonwealth Act
(C.A.) No. 725, entitled "AN ACT TO PROVIDE
FOR THE NEXT ELECTION FOR PRESIDENT
AND VICE-PRESIDENT OF THE PHILIPPINES,
SENATORS AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, AND APPROPRIATING THE
NECESSARY FUNDS THEREFOR",approved on
January 5, 1946, contained, in the last paragraph of
its Section 2, the following:
A person occupying any civil office by appointment
in the government or any of its political subdivisions
or agencies or government-owned or controlled
corporations, whether such office by appointive or
elective, shall be considered to have resigned from
Notably, this proviso is not present in Section 11 of

R.A. No. 8436, the law amended by R.A. No. 9369.
The proviso was lifted from Section 66 of B.P. Blg.
881 or the Omnibus Election Code (OEC) of the
Philippines, which reads:
357
such office from the moment of the filing of such

PERSON HOLDING [means currently] A PUBLIC

APPOINTIVE
POSITION.
..SHALL
BE
CONSIDERED IPSO FACTO RESIGNED" [which
means that the prohibition extends only to
appointive
officials]
"INCLUDING
ACTIVE
MEMBERS OF THE ARMED FORCES, OFFICERS
AND EMPLOYEES"...This is a prohibition, Mr.
President. This means if one is chairman of SSS or
PDIC, he is deemed ipso facto resigned when he
files his certificate of candidacy. Is that the
intention?
Significantly, however, C.A. No. 666, entitled "AN

ACT TO PROVIDE FOR THE FIRST ELECTION
FOR PRESIDENT AND VICE-PRESIDENT OF
THE PHILIPPINES, SENATORS, AND MEMBERS
OF THE HOUSE OF REPRESENTATIVES,
UNDER THE CONSTITUTION AND THE
AMENDMENTS THEREOF", enacted without
executive approval on June 22, 1941, the precursor
of C.A. No. 725, only provided for automatic
resignation of elective, but not appointive, officials.
cCaDSA
Nevertheless, C.A. No. 357, or the Election Code
approved on August 22, 1938, had, in its Section
22, the same verbatim provision as Section 26 of
R.A. No. 180.
The earliest recorded Philippine law on the subject
is Act No. 1582, or the Election Law enacted by the
Philippine Commission in 1907, the last paragraph
of Section 29 of which reads:
Sec. 29. Penalties upon officers. ....
Senator Gordon.
This is really an old provision, Mr. President.
Senator Osmea.
It is in bold letters, so I think it was a Committee
amendment. DAcSIC
Senator Gordon.
No, it has always been there.
No public officer shall offer himself as a candidate

for election, nor shall he be eligible during the time
that he holds said public office to election, at any
municipal, provincial or Assembly election, except
for reelection to the position which he may be
holding, and no judge of the Court of First Instance,
justice of the peace, provincial fiscal, or officer or
employee of the Bureau of Constabulary or of the
Bureau of Education shall aid any candidate or
influence in any manner or take any part in any
municipal, provincial, or Assembly election under
penalty of being deprived of his office and being
disqualified to hold any public office whatever for a
term of five years: Provided, however, That the
foregoing provisions shall not be construed to
deprive any person otherwise qualified of the right
to vote at any election.
Senator Osmea.
I see.
Senator Gordon.
I guess the intention is not to give them undue
advantage, especially certain people.
Senator Osmea.
All right. 16
In that Senate deliberation, however, Senator
Miriam Defensor-Santiago expressed her concern
over the inclusion of the said provision in the new
law, given that the same would be disadvantageous
and unfair to potential candidates holding
appointive positions, while it grants a consequent
preferential treatment to elective officials, thus
Senator Santiago. On page 15, line 31, I know that
this is a losing cause, so I make this point more as
a matter of record than of any feasible hope that it
can possibly be either accepted or if we come to a
division of the House, it will be upheld by the
majority.
From this brief historical excursion, it may be

gleaned that the second proviso in the third
paragraph of Section 13 of R.A. No. 9369 that
any person holding a public appointive office or
position, including active members of the armed
forces, and officers, and employees in governmentowned or controlled corporations, shall be
considered ipso facto resigned from his/her office
and must vacate the same at the start of the day of
the filing of his/her certificate of candidacy traces
its roots to the period of the American occupation.
In fact, during the deliberations of Senate Bill No.
2231, the bill later to be consolidated with House
Bill No. 5352 and enacted as R.A. No. 9369,
Senator Richard Gordon, the principal author of the
bill, acknowledged that the said proviso in the
proposed legislative measure is an old provision
which was merely copied from earlier existing
legislation, thus
Senator Osmea.
I am referring to page 15, line 21. The proviso

begins: "PROVIDED FINALLY, THAT ANY
PERSON HOLDING A PUBLIC APPOINTIVE
OFFICE. ..SHALL BE CONSIDERED IPSO FACTO
RESIGNED FROM HIS/HER OFFICE".
The point that I made during the appropriate debate
in the past in this Hall is that there is, for me, no
valid reason for exempting elective officials from
this inhibition or disqualification imposed by the law.
If we are going to consider appointive officers of the
government, including AFP members and officers
of government-owned and controlled corporations,
May I just opine here and perhaps obtain the

opinion of the good Sponsor. This reads like, "ANY
358
or any other member of the appointive sector of the

civil service, why should it not apply to the elective
sector for, after all, even senators and
congressmen are members of the civil service as
well?
This situation was incidentally addressed by the

Court in Farias v. The Executive Secretary 21
when it ruled that
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution
Further, it is self-serving for the Senate, or for the

Congress in general, to give an exception to itself
which is not available to other similarly situated
officials of government. Of course, the answer is,
the reason why we are special is that we are
elected. Since we are imposing a disqualification on
all other government officials except ourselves, I
think, it is the better part of delicadeza to inhibit
ourselves as well, so that if we want to stay as
senators, we wait until our term expires. But if we
want to run for some other elective office during our
term, then we have to be considered resigned just
like everybody else. That is my proposed
amendment. But if it is unacceptable to the
distinguished Sponsor, because of sensitivity to the
convictions of the rest of our colleagues, I will
understand.
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 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.
Senator Gordon. Mr. President, I think the

suggestion is well-thought of. It is a good policy.
However, this is something that is already in the old
law which was upheld by the Supreme court in a
recent case that the rider was not upheld and that it
was valid. 17
The obvious inequality brought about by the
provision on automatic resignation of appointive
civil servants must have been the reason why
Senator Recto proposed the inclusion of the
following during the period of amendments: "ANY
PERSON WHO FILES HIS CERTIFICATE OF
CANDIDACY WITHIN THIS PERIOD SHALL ONLY
BE CONSIDERED AS A CANDIDATE AT THE
START OF THE CAMPAIGN PERIOD FOR WHICH
HE FILED HIS COC". 18 The said proviso seems to
mitigate the situation of disadvantage afflicting
appointive officials by considering persons who
filed their CoCs as candidates only at the start of
the campaign period, thereby, conveying the tacit
intent that persons holding appointive positions will
only be considered as resigned at the start of the
campaign period when they are already treated by
law as candidates.
Parenthetically, it may be remembered that Section
67 of the OEC and Section 11 of R.A. No. 8436
contained a similar provision on automatic
resignation of elective officials upon the filing of
their CoCs for any office other than that which they
hold in a permanent capacity or for President or
Vice-President. However, with the enactment of
R.A. No. 9006, or the Fair Election Act, 19 in 2001,
this provision was repealed by Section 14 20 of the
said act. There was, thus, created a situation of
obvious discrimination against appointive officials
who were deemed ipso facto resigned from their
offices upon the filing of their CoCs, while elective
officials were not. EcAHDT
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 part in any election except
to vote. Under the same provision, elective officials,
or officers or employees holding political offices,
359
are obviously expressly allowed to take part in

political and electoral activities.
directly affected by the assailed provision in the

COMELEC resolution.
The Court, nevertheless, finds that, while
petitioners are not yet candidates, they have the
standing to raise the constitutional challenge,
simply because they are qualified voters. A
restriction on candidacy, such as the challenged
measure herein, affects the rights of voters to
choose their public officials. The rights of voters
and the rights of candidates do not lend themselves
to neat separation; laws that affect candidates
always have at least some theoretical, correlative
effect on voters. 24 The Court believes that both
candidates and voters may challenge, on grounds
of equal protection, the assailed measure because
of its impact on voting rights. 25 DcHSEa
In any event, in recent cases, this Court has
relaxed the stringent direct injury test and has
observed a liberal policy allowing ordinary citizens,
members of Congress, and civil organizations to
prosecute actions involving the constitutionality or
validity of laws, regulations and rulings. 26
We have also stressed in our prior decisions that
the exercise by this Court of judicial power is limited
to the determination and resolution of actual cases
and controversies. 27 The Court, in this case, finds
that an actual case or controversy exists between
the petitioners and the COMELEC, the body
charged with the enforcement and administration of
all election laws. Petitioners have alleged in a
precise manner that they would engage in the very
acts that would trigger the enforcement of the
provision they would file their CoCs and run in
the 2010 elections. Given that the assailed
provision provides for ipso facto resignation upon
the filing of the CoC, it cannot be said that it
presents only a speculative or hypothetical obstacle
to petitioners' candidacy. 28
IV.
Having hurdled what the OSG posed as obstacles
to judicial review, the Court now delves into the
constitutional challenge.
It is noteworthy to point out that the right to run for
public office touches on two fundamental freedoms,
those of expression and of association. This
premise is best explained in Mancuso v. Taft, 29
viz.:
Freedom of expression guarantees to the individual
the opportunity to write a letter to the local
newspaper, speak out in a public park, distribute
handbills advocating radical reform, or picket an
official building to seek redress of grievances. All of
these activities are protected by the First
Amendment if done in a manner consistent with a
narrowly defined concept of public order and safety.
The choice of means will likely depend on the
amount of time and energy the individual wishes to
expend and on his perception as to the most
effective method of projecting his message to the
public. But interest and commitment are evolving
phenomena. What is an effective means for protest
at one point in time may not seem so effective at a
later date. The dilettante who participates in a
picket line may decide to devote additional time and
resources to his expressive activity. As his
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. TEHIaA
Since the classification justifying Section 14 of Rep.
Act No. 9006, i.e.,elected officials vis-a-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. 22
However, it must be remembered that the Court, in
Farias, was intently focused on the main issue of
whether the repealing clause in the Fair Election
Act was a constitutionally proscribed rider, in that it
unwittingly failed to ascertain with stricter scrutiny
the impact of the retention of the provision on
automatic resignation of persons holding appointive
positions (Section 66) in the OEC, vis--vis the
equal protection clause. Moreover, the Court's
vision in Farias was shrouded by the fact that
petitioners therein, Farias et al., never posed a
direct challenge to the constitutionality of Section
66 of the OEC. Farias et al. rather merely
questioned, on constitutional grounds, the repealing
clause, or Section 14 of the Fair Election Act. The
Court's afore-quoted declaration inFarias may
then very well be considered as an obiter dictum.
III.
The instant case presents a rare opportunity for the
Court, in view of the constitutional challenge
advanced by petitioners, once and for all, to settle
the issue of whether the second proviso in the third
paragraph of Section 13 of R.A. No. 9369, a
reproduction of Section 66 of the OEC, which, as
shown above, was based on provisions dating back
to the American occupation, is violative of the equal
protection clause.
But before delving into the constitutional issue, we
shall first address the issues on legal standing and
on the existence of an actual controversy.
Central to the determination of locus standi is the
question of whether a party has 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. 23 In this case, petitioners
allege that they will be directly affected by
COMELEC Resolution No. 8678 for they intend,
and they all have the qualifications, to run in the
2010 elections. The OSG, for its part, contends that
since petitioners have not yet filed their CoCs, they
are not yet candidates; hence, they are not yet
360
commitment increases, the means of effective

expression changes, but the expressive quality
remains constant. He may decide to lead the picket
line, or to publish the newspaper. At one point in
time he may decide that the most effective way to
give expression to his views and to get the attention
of an appropriate audience is to become a
candidate for public office-means generally
considered among the most appropriate for those
desiring to effect change in our governmental
systems. He may seek to become a candidate by
filing in a general election as an independent or by
seeking the nomination of a political party. And in
the latter instance, the individual's expressive
activity has two dimensions: besides urging that his
views be the views of the elected public official, he
is also attempting to become a spokesman for a
political party whose substantive program extends
beyond the particular office in question. But
Cranston has said that a certain type of its citizenry,
the public employee, may not become a candidate
and may not engage in any campaign activity that
promotes himself as a candidate for public office.
Thus the city has stifled what may be the most
important expression an individual can summon,
namely that which he would be willing to effectuate,
by means of concrete public action, were he to be
selected by the voters. aEAcHI
to discuss his views on radio talk shows; he may be

able to secure equal time on television to elaborate
his campaign program; the newspapers may cover
his candidacy; he may be invited to debate before
various groups that had theretofore never heard of
him or his views. In short, the fact of candidacy
opens up a variety of communicative possibilities
that are not available to even the most diligent of
picketers or the most loyal of party followers. A view
today, that running for public office is not an interest
protected by the First Amendment, seems to us an
outlook stemming from an earlier era when public
office was the preserve of the professional and the
wealthy. Consequently we hold that candidacy is
both a protected First Amendment right and a
fundamental interest. Hence any legislative
classification that significantly burdens that interest
must be subjected to strict equal protection review.
30 EAISDH
Here, petitioners' interest in running for public
office, an interest protected by Sections 4 and 8 of
Article III of the Constitution, is breached by the
proviso in Section 13 of R.A. No. 9369. It is now the
opportune time for the Court to strike down the said
proviso for being violative of the equal protection
clause and for being overbroad.
In considering persons holding appointive positions
as ipso facto resigned from their posts upon the
filing of their CoCs, but not considering as resigned
all other civil servants, specifically the elective
ones, the law unduly discriminates against the first
class. The fact alone that there is substantial
distinction between those who hold appointive
positions and those occupying elective posts, does
not justify such differential treatment.
In order that there can be valid classification so that
a discriminatory governmental act may pass the
constitutional norm of equal protection, it is
necessary that the four (4) requisites of valid
classification be complied with, namely:
(1) It must be based upon substantial distinctions;
It is impossible to ignore the additional fact that the

right to run for office also affects the freedom to
associate. In Williams v. Rhodes, supra, the Court
used strict review to invalidate an Ohio election
system that made it virtually impossible for third
parties to secure a place on the ballot. The Court
found that the First Amendment protected the
freedom to associate by forming and promoting a
political party and that that freedom was infringed
when the state effectively denied a party access to
its electoral machinery. The Cranston charter
provision before us also affects associational rights,
albeit in a slightly different way. An individual may
decide to join or participate in an organization or
political party that shares his beliefs. He may even
form a new group to forward his ideas. And at some
juncture his supporters and fellow party members
may decide that he is the ideal person to carry the
group's standard into the electoral fray. To thus
restrict the options available to political organization
as the Cranston charter provision has done is to
limit the effectiveness of association; and the
freedom to associate is intimately related with the
concept of making expression effective. Party
access to the ballot becomes less meaningful if
some of those selected by party machinery to carry
the party's programs to the people are precluded
from doing so because those nominees are civil
servants.
(2) It must be germane to the purposes of the law;

(3) It must not be limited to existing conditions only;
and
(4) It must apply equally to all members of the
class.
The first requirement means that there must be real
and substantial differences between the classes
treated differently. As illustrated in the fairly recent
Mirasol v. Department of Public Works and
Highways, 31 a real and substantial distinction
exists between a motorcycle and other motor
vehicles sufficient to justify its classification among
those prohibited from plying the toll ways. Not all
motorized vehicles are created equal a twowheeled vehicle is less stable and more easily
overturned than a four-wheel vehicle.
Nevertheless, the classification would still be invalid
if it does not comply with the second requirement
if it is not germane to the purpose of the law.
Whether the right to run for office is looked at from

the point of view of individual expression or
associational effectiveness, wide opportunities exist
for the individual who seeks public office. The fact
of candidacy alone may open previously closed
doors of the media. The candidate may be invited
361
Justice Isagani A. Cruz (Ret.),in his treatise on

constitutional law, explains,
The classification, even if based on substantial
distinctions, will still be invalid if it is not germane to
the purpose of the law. To illustrate, the accepted
difference in physical stamina between men and
women will justify the prohibition of the latter from
employment as miners or stevedores or in other
heavy and strenuous work. On the basis of this
same classification, however, the law cannot
provide for a lower passing average for women in
the bar examinations because physical strength is
not the test for admission to the legal profession.
Imported cars may be taxed at a higher rate than
locally assembled automobiles for the protection of
the national economy, but their difference in origin
is no justification for treating them differently when
it comes to punishing violations of traffic
regulations. The source of the vehicle has no
relation to the observance of these rules. 32
DHIaTS
foreign affairs).With the fact that they both head

executive offices, there is no valid justification to
treat them differently when both file their CoCs for
the elections. Under the present state of our law,
the Vice-President, 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.
As to the danger of neglect, inefficiency or
partisanship in the discharge of the functions of his
appointive office, the inverse could be just as true
and compelling. The public officer who files his
certificate of candidacy would be driven by a
greater impetus for excellent performance to show
his fitness for the position aspired for.
Mancuso v. Taft, 35 cited above, explains that the
measure on automatic resignation, which restricts
the rights of civil servants to run for office a right
inextricably linked to their freedom of expression
and association, is not reasonably necessary to the
satisfaction of the state interest. Thus, in striking
down a similar measure in the United States,
Mancuso succinctly declares
In proceeding to the second stage of active equal
protection review, however, we do see some
contemporary relevance of the Mitchell decision.
National Ass'n of Letter Carriers, supra. In order for
the Cranston charter provision to withstand strict
scrutiny, the city must show that the exclusion of all
government employees from candidacy is
necessary to achieve a compelling state interest.
And, as stated in Mitchell and other cases dealing
with similar statutes, see Wisconsin State
Employees, supra; Broadrick, supra, government at
all levels has a substantial interest in protecting the
integrity of its civil service. It is obviously
conceivable that the impartial character of the civil
service would be seriously jeopardized if people in
positions of authority used their discretion to
forward their electoral ambitions rather than the
public welfare. Similarly if a public employee
pressured other fellow employees to engage in
corrupt practices in return for promises of postelection reward, or if an employee invoked the
power of the office he was seeking to extract
special favors from his superiors, the civil service
would be done irreparable injury. Conversely,
members of the public, fellow-employees, or
supervisors might themselves request favors from
the candidate or might improperly adjust their own
official behavior towards him. Even if none of these
abuses actually materialize, the possibility of their
occurrence might seriously erode the public's
confidence in its public employees. For the
reputation of impartiality is probably as crucial as
the impartiality itself; the knowledge that a clerk in
the assessor's office who is running for the local
zoning board has access to confidential files which
could provide "pressure" points for furthering his
campaign is destructive regardless of whether the
clerk actually takes advantage of his opportunities.
For all of these reasons we find that the state
indeed has a compelling interest in maintaining the
honesty and impartiality of its public work force.
HTaSEA
The third requirement means that the classification

must be enforced not only for the present but as
long as the problem sought to be corrected
continues to exist. And, under the last requirement,
the classification would be regarded as invalid if all
the members of the class are not treated similarly,
both as to rights conferred and obligations
imposed. 33
Applying the four requisites to the instant case, the
Court finds that the differential treatment of persons
holding appointive offices as opposed to those
holding elective ones is not germane to the
purposes of the law.
The obvious reason for the challenged provision is
to prevent the use of a governmental position to
promote one's candidacy, or even to wield a
dangerous or coercive influence on the electorate.
The measure is further aimed at promoting the
efficiency, integrity, and discipline of the public
service by eliminating the danger that the discharge
of official duty would be motivated by political
considerations rather than the welfare of the public.
34 The restriction is also justified by the proposition
that the entry of civil servants to the electoral arena,
while still in office, could result in neglect or
inefficiency in the performance of duty because
they would be attending to their campaign rather
than to their office work.
If we accept these as the underlying objectives of
the law, then the assailed provision cannot be
constitutionally rescued on the ground of valid
classification. Glaringly absent is the requisite that
the classification must be germane to the purposes
of the law. Indeed, whether one holds an appointive
office or an elective one, the evils sought to be
prevented by the measure remain. 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
362
Specific evils require specific treatments, not

through overly broad measures that unduly restrict
guaranteed freedoms of the citizenry. After all,
sovereignty resides in the people, and all
governmental power emanates from them.
Mancuso v. Taft, 37 on this point, instructs
As to approaches less restrictive than a
prophylactic rule, there exists the device of the
leave of absence. Some system of leaves of
absence would permit the public employee to take
time off to pursue his candidacy while assuring him
his old job should his candidacy be unsuccessful.
Moreover, a leave of absence policy would
eliminate many of the opportunities for engaging in
the questionable practices that the statute is
designed to prevent. While campaigning, the
candidate would feel no conflict between his desire
for election and his publicly entrusted discretion,
nor any conflict between his efforts to persuade the
public and his access to confidential documents.
But instead of adopting a reasonable leave of
absence policy, Cranston has chosen a provision
that makes the public employee cast off the
security of hard-won public employment should he
desire to compete for elected office.
We do not, however, consider the exclusionary

measure taken by Cranston-a flat prohibition on
office-seeking of all kinds by all kinds of public
employees-as even reasonably necessary to
satisfaction of this state interest. As Justice
Marshall pointed out in Dunn v. Blumstein,
"[s]tatutes affecting constitutional rights must be
drawn with 'precision'".For three sets of reasons we
conclude that the Cranston charter provision
pursues its objective in a far too heavy-handed
manner and hence must fall under the equal
protection clause. First, we think the nature of the
regulation-a broad prophylactic rule-may be
unnecessary to fulfillment of the city's objective.
Second, even granting some sort of prophylactic
rule may be required, the provision here prohibits
candidacies for all types of public office, including
many which would pose none of the problems at
which the law is aimed. Third, the provision
excludes the candidacies of all types of public
employees, without any attempt to limit exclusion to
those employees whose positions make them
vulnerable to corruption and conflicts of interest.
There is thus no valid justification to treat
appointive officials differently from the elective
ones. The classification simply fails to meet the test
that it should be germane to the purposes of the
law. The measure encapsulated in the second
proviso of the third paragraph of Section 13 of R.A.
No. 9369 and in Section 66 of the OEC violates the
equal protection clause.
V.
The challenged provision also suffers from the
infirmity of being overbroad.
First, the provision pertains to all civil servants
holding appointive posts without distinction as to
whether they occupy high positions in government
or not. Certainly, a utility worker in the government
will also be considered as ipso facto resigned once
he files his CoC for the 2010 elections. This
scenario is absurd for, indeed, it is unimaginable
how he can use his position in the government to
wield influence in the political world.
While it may be admitted that most appointive
officials who seek public elective office are those
who occupy relatively high positions in government,
laws cannot be legislated for them alone, or with
them alone in mind. For the right to seek public
elective office is universal, open and unrestrained,
subject only to the qualification standards
prescribed in the Constitution and in the laws.
These qualifications are, as we all know, general
and basic so as to allow the widest participation of
the citizenry and to give free rein for the pursuit of
one's highest aspirations to public office. Such is
the essence of democracy.
Second, the provision is directed to the activity of
seeking any and all public offices, whether they be
partisan or nonpartisan in character, whether they
be in the national, municipal or barangay level.
Congress has not shown a compelling state interest
to restrict the fundamental right involved on such a
sweeping scale. 36 cCAaHD
The city might also promote its interest in the

integrity of the civil service by enforcing, through
dismissal, discipline, or criminal prosecution, rules
or statutes that treat conflict of interests, bribery, or
other forms of official corruption. By thus attacking
the problem directly, instead of using a broad
prophylactic rule, the city could pursue its objective
without unduly burdening the First Amendment
rights of its employees and the voting rights of its
citizens. Last term in Dunn v. Blumstein, the
Supreme Court faced an analogous question when
the State of Tennessee asserted that the interest of
"ballot box purity" justified its imposition of one year
and three month residency requirements before a
citizen could vote. Justice Marshall stated, inter
alia, that Tennessee had available a number of
criminal statutes that could be used to punish voter
fraud without unnecessary infringement on the
newcomer's right to vote. Similarly, it appears from
the record in this case that the Cranston charter
contains some provisions that might be used
against opportunistic public employees.
Even if some sort of prophylactic rule is necessary,
we cannot say that Cranston has put much effort
into tailoring a narrow provision that attempts to
match the prohibition with the problem. The charter
forbids a Cranston public employee from running
for any office, anywhere. The prohibition is not
limited to the local offices of Cranston, but rather
extends to statewide offices and even to national
offices. It is difficult for us to see that a public
employee running for the United States Congress
poses quite the same threat to the civil service as
would the same employee if he were running for a
local office where the contacts and information
provided by his job related directly to the position
he was seeking, and hence where the potential for
various abuses was greater. Nor does the Cranston
363
charter except the public employee who works in

Cranston but aspires to office in another local
jurisdiction, most probably his town of residence.
Here again the charter precludes candidacies
which can pose only a remote threat to the civil
service. Finally, the charter does not limit its
prohibition to partisan office-seeking, but sterilizes
also those public employees who would seek
nonpartisan elective office. The statute reviewed in
Mitchell was limited to partisan political activity, and
since that time other courts have found the
partisan-nonpartisan distinction a material one. See
Kinnear, supra; Wisconsin State Employees, supra;
Gray v. Toledo, supra. While the line between
nonpartisan and partisan can often be blurred by
systems whose true characters are disguised by
the names given them by their architects, it seems
clear 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 to warrant distinctive treatment
in a charter of this sort. ScEaAD
exclusion is not well-tailored to effectuate that

interest. Presumably the city could fire the
individual if he clearly shirks his employment
responsibilities or disrupts the work of others. Also,
the efficiency rationale common to both arguments
is significantly underinclusive. It applies equally well
to a number of non-political, extracurricular
activities that are not prohibited by the Cranston
charter. Finally, the connection between after-hours
campaigning and the state interest seems tenuous;
in many cases a public employee would be able to
campaign aggressively and still continue to do his
job well. 38
Incidentally, Clements v. Fashing 39 sustained as
constitutional a provision on the automatic
resignation of District Clerks, County Clerks,
County Judges, County Treasurers, Criminal
District Attorneys, County Surveyors, Inspectors of
Hides and Animals, County Commissioners,
Justices of the Peace, Sheriffs, Assessors and
Collectors of Taxes, District Attorneys, County
Attorneys, Public Weighers, and Constables if they
announce their candidacy or if they become
candidates in any general, special or primary
election. TCHcAE
In Clements, it may be readily observed that a
provision treating differently particular officials, as
distinguished from all others, under a classification
that is germane to the purposes of the law, merits
the stamp of approval from American courts. Not,
however, a general and sweeping provision, and
more so one violative of the second requisite for a
valid classification, which is on its face
unconstitutional.
On a final note, it may not be amiss to state that 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 and, thus, uphold
fundamental liberties over age-old, but barren,
restrictions to such freedoms.
WHEREFORE,premises considered, the petition is
GRANTED. 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
are declared as UNCONSTITUTIONAL.
SO ORDERED.
Corona, Chico-Nazario, Velasco, Jr.,Leonardo-de
Castro, Brion, Bersamin, and Del Castillo, JJ.,
concur.
Puno, C.J., please see dissent.
Carpio, J., see dissenting opinion.
Carpio Morales, J., see dissenting opinion.
Peralta, Abad and Villarama, Jr., JJ.,join the dissent
of C.J. Puno.
||| (Quinto v. Commission on Elections, G.R. No.
189698, [December 1, 2009], 621 PHIL 236-375)
The third and last area of excessive and

overinclusive coverage of the Cranston charter
relates not to the type of office sought, but to the
type of employee seeking the office. As Justice
Douglas pointed out in his dissent in Mitchell, 330
U.S. at 120-126, 67 S.Ct. 556, restrictions on
administrative employees who either participate in
decision-making or at least have some access to
information concerning policy matters are much
more justifiable than restrictions on industrial
employees, who, but for the fact that the
government owns the plant they work in, are, for
purposes of access to official information,
identically situated to all other industrial workers.
Thus, a worker in the Philadelphia mint could be
distinguished from a secretary in an office of the
Department of Agriculture; so also could a janitor in
the public schools of Cranston be distinguished
from an assistant comptroller of the same city. A
second line of distinction that focuses on the type of
employee is illustrated by the cases of Kinnear and
Minielly, supra. In both of these cases a civil service
deputy decided to run for the elected office of
sheriff. The courts in both cases felt that the nocandidacy laws in question were much too broad
and indicated that perhaps the only situation
sensitive enough to justify a flat rule was one in
which an inferior in a public office electorally
challenged his immediate superior. Given all these
considerations, we think Cranston has not given
adequate attention to the problem of narrowing the
terms of its charter to deal with the specific kinds of
conflict-of-interest problems it seeks to avoid.
We also do not find convincing the arguments that
after-hours campaigning will drain the energy of the
public employee to the extent that he is incapable
of performing his job effectively and that inevitable
on-the-job campaigning and discussion of his
candidacy will disrupt the work of others. Although it
is indisputable that the city has a compelling
interest in the performance of official work, the
3.
EN BANC
364
QUINTO VS. COMELEC February

2010 Decision
[G.R. No. 189698. February 22, 2010.]
Pursuant to Section 2, Rule 56-A of the 1997 Rules

of Court, 5 in relation to Section 1, Rule 52 of the
same rules, 6 COMELEC had a period of fifteen
days from receipt of notice of the assailed Decision
within which to move for its reconsideration.
COMELEC received notice of the assailed Decision
on December 2, 2009, hence, had until December
17, 2009 to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was
timely filed. It was filed on December 14, 2009. The
corresponding Affidavit of Service (in substitution of
the one originally submitted on December 14,
2009) was subsequently filed on December 17,
2009 still within the reglementary period.
ii. Propriety of the Motions for Reconsideration-inIntervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in
litigation or in the success of either of the parties, or
an interest against both, or is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the court or
of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of
the original parties, and whether or not the
intervenor's rights may be fully protected in a
separate proceeding.
ELEAZAR P. QUINTO and GERINO A.

TOLENTINO, JR., petitioners,vs.COMMISSION ON
ELECTIONS, respondent.
RESOLUTION
PUNO, C.J p:
Upon a careful review of the case at bar, this Court
resolves to grant the respondent Commission on
Elections' (COMELEC) motion for reconsideration,
and the movants-intervenors' motions for
reconsideration-in-intervention, of this Court's
December 1, 2009 Decision (Decision). 1
The assailed Decision granted the Petition for
Certiorari and Prohibition filed by Eleazar P. Quinto
and Gerino A. Tolentino, Jr. and declared as
unconstitutional the second proviso in the third
paragraph of Section 13 of Republic Act No. 9369,
2 Section 66 of the Omnibus Election Code 3 and
Section 4 (a) of COMELEC Resolution No. 8678, 4
mainly on the ground that they violate the equal
protection clause of the Constitution and suffer from
overbreadth. The assailed Decision thus paved the
way for public appointive officials to continue
discharging the powers, prerogatives and functions
of their office notwithstanding their entry into the
political arena.
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;
Pursuant to the foregoing rule, this Court has held

that a motion for intervention shall be entertained
when the following requisites are satisfied: (1) the
would-be intervenor shows that he has a
substantial right or interest in the case; and (2)
such right or interest cannot be adequately pursued
and protected in another proceeding. 7 SCIacA
Upon the other hand, Section 2, Rule 19 of the
Rules of Court provides the time within which a
motion for intervention may be filed, viz.:
SECTION 2. Time to intervene. The motion for
intervention may be filed at any time before
rendition of judgment by the trial court. A copy of
the pleading-in-intervention shall be attached to the
motion and served on the original parties. (italics
supplied)
(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; cDaEAS
(3) The assailed provisions do not suffer from the
infirmity of overbreadth; and
This rule, however, is not inflexible. Interventions

have been allowed even beyond the period
prescribed in the Rule, when demanded by the
higher interest of justice. Interventions have also
been granted to afford indispensable parties, who
have not been impleaded, the right to be heard
even after a decision has been rendered by the trial
court, 8 when the petition for review of the
judgment has already been submitted for decision
before the Supreme Court, 9 and even where the
assailed order has already become final and
executory. 10 In Lim v. Pacquing, 11 the motion for
intervention filed by the Republic of the Philippines
was allowed by this Court to avoid grave injustice
and injury and to settle once and for all the
substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion
for intervention rests on the sound discretion of the
(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.
I.
Procedural Issues
First, we shall resolve the procedural issues on the
timeliness of the COMELEC's motion for
reconsideration which was filed on December 15,
2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed
after the Court had rendered its December 1, 2009
Decision.
i. Timeliness of COMELEC's Motion for
Reconsideration
365
court 12 after consideration of the appropriate

circumstances. 13 We stress again that Rule 19 of
the Rules of Court is a rule of procedure whose
object is to make the powers of the court fully and
completely available for justice. 14 Its purpose is
not to hinder or delay, but to facilitate and promote
the administration of justice. 15
We rule that, with the exception of the IBP-Cebu
City Chapter, all the movants-intervenors may
properly intervene in the case at bar.
First, the movants-intervenors have each
sufficiently established a substantial right or interest
in the case.
As a Senator of the Republic, Senator Manuel A.
Roxas has a right to challenge the December 1,
2009 Decision, which nullifies a long established
law; as a voter, he has a right to intervene in a
matter that involves the electoral process; and as a
public officer, he has a personal interest in
maintaining the trust and confidence of the public in
its system of government.
On the other hand, former Senator Franklin M.
Drilon and Tom V. Apacible are candidates in the
May 2010 elections running against appointive
officials who, in view of the December 1, 2009
Decision, have not yet resigned from their posts
and are not likely to resign from their posts. They
stand to be directly injured by the assailed
Decision, unless it is reversed.
Moreover, the rights or interests of said movantsintervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their
rights will be foreclosed if this Court's Decision
attains finality and forms part of the laws of the
land.
With regard to the IBP-Cebu City Chapter, it
anchors its standing on the assertion that "this case
involves the constitutionality of elections laws for
this coming 2010 National Elections," and that
"there is a need for it to be allowed to intervene . . .
so that the voice of its members in the legal
profession would also be heard before this Highest
Tribunal as it resolves issues of transcendental
importance." 16 SDHacT
Prescinding from our rule and ruling case law, we
find that the IBP-Cebu City Chapter has failed to
present a specific and substantial interest sufficient
to clothe it with standing to intervene in the case at
bar. Its invoked interest is, in character, too
indistinguishable to justify its intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed 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;
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.
III.
Section 4 (a) of COMELEC Resolution 8678
Compliant with Law
Section 4 (a) of COMELEC Resolution 8678 is a
faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:
Incumbent Appointive Official. Under Section 13
of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a
members of the Armed Forces of the Philippines,
and officers and employees in government-owned
or -controlled corporations, shall be considered ipso
facto resigned from his office upon the filing of his
Incumbent Elected Official. Upon the other hand,
pursuant to Section 14 of RA 9006 or the Fair
Election Act, 17 which repealed Section 67 of the
Omnibus Election Code 18 and rendered ineffective
Section 11 of R.A. 8436 insofar as it considered an
elected official as resigned only upon the start of
the campaign period corresponding to the positions
for which they are running, 19 an elected official is
not deemed to have resigned from his office upon
the filing of his certificate of candidacy for the same
or any other elected office or position. In fine, an
elected official may run for another position without
forfeiting his seat. ADEHTS
These laws and regulations implement Section 2
(4), Article IX-B of the 1987 Constitution, which
prohibits civil service officers and employees from
engaging in any electioneering or partisan political
campaign.
The intention to impose a strict limitation on the
participation of civil service officers and employees
in partisan political campaigns is unmistakable. The
exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the
Constitutional Commission is instructive:
MS. QUESADA.
xxx xxx xxx
Secondly, I would like to address the issue here as
provided in Section 1 (4), line 12, and I quote: "No
officer or employee in the civil service shall engage,
(2) They are overbroad insofar as they prohibit the

candidacy of all civil servants holding appointive
366
directly or indirectly, in any partisan political

activity." This is almost the same provision as in the
1973 Constitution. However, we in the government
service have actually experienced how this
provision has been violated by the direct or indirect
partisan political activities of many government
officials.
activities but it shall be unlawful for them to solicit

contributions from their subordinates or subject
them to any of the acts involving subordinates
prohibited in the Election Code.
So, is the Committee willing to include certain

clauses that would make this provision more strict,
and which would deter its violation?
Section 261 (i) of Batas Pambansa Blg. 881 (the

Omnibus Election Code) further makes intervention
by civil service officers and employees in partisan
political activities an election offense, viz.:
SECTION 261. Prohibited Acts. The following
shall be guilty of an election offense:
MR. FOZ.
xxx xxx xxx
Madam President, the existing Civil Service Law

and the implementing rules on the matter are more
than exhaustive enough to really prevent officers
and employees in the public service from engaging
in any form of partisan political activity. But the
problem really lies in implementation because, if
the head of a ministry, and even the superior
officers of offices and agencies of government will
themselves violate the constitutional injunction
against partisan political activity, then no string of
words that we may add to what is now here in this
draft will really implement the constitutional intent
against partisan political activity. ...20 (italics
supplied)
(i) Intervention of public officers and employees.

Any officer or employee in the civil service, except
those holding political offices; any officer,
employee, or member of the Armed Forces of the
Philippines, or any police force, special forces,
home defense forces, barangay self-defense units
and all other para-military units that now exist or
which may hereafter be organized who, directly or
indirectly, intervenes in any election campaign or
engages in any partisan political activity, except to
vote or to preserve public order, if he is a peace
officer.
The intent of both Congress and the framers of our
Constitution to limit the participation of civil service
officers and employees in partisan political activities
is too plain to be mistaken.
But Section 2 (4), Article IX-B of the 1987
Constitution and the implementing statutes apply
only to civil servants holding apolitical offices.
Stated differently, the constitutional ban does not
cover elected officials, notwithstanding the fact that
"[t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or
controlled corporations with original charters." 21
This is because elected public officials, by the very
nature of their office, engage in partisan political
activities almost all year round, even outside of the
campaign period. 22 Political partisanship is the
inevitable essence of a political office, elective
positions included. 23
The prohibition notwithstanding, civil service
officers and employees are allowed to vote, as well
as express their views on political issues, or
mention the names of certain candidates for public
office whom they support. This is crystal clear from
the deliberations of the Constitutional Commission,
viz.:
MS. AQUINO:
To emphasize its importance, this constitutional ban

on civil service officers and employees is presently
reflected and implemented by a number of statutes.
Section 46 (b) (26), Chapter 7 and Section 55,
Chapter 8 both of Subtitle A, Title I, Book V of
the Administrative Code of 1987 respectively
provide in relevant part:
Section 44. Discipline: General Provisions:
xxx xxx xxx
(b) The following shall be grounds for disciplinary
action:
xxx xxx xxx
(26) Engaging directly or indirectly in partisan
political activities by one holding a non-political
office. TCacIE
xxx xxx xxx
Section 55. Political Activity. No officer or
employee in the Civil Service including members of
the Armed Forces, shall engage directly or
indirectly in any partisan political activity or take
part in any election except to vote nor shall he use
his official authority or influence to coerce the
political activity of any other person or body.
Nothing herein provided shall be understood to
prevent any officer or employee from expressing
his views on current political problems or issues, or
from mentioning the names of his candidates for
public office whom he supports: Provided, That
public officers and employees holding political
offices may take part in political and electoral
Mr. Presiding Officer, my proposed amendment is

on page 2, Section 1, subparagraph 4, lines 13 and
14. On line 13, between the words "any" and
"partisan," add the phrase ELECTIONEERING
AND OTHER; and on line 14, delete the word
"activity" and in lieu thereof substitute the word
CAMPAIGN. AaITCS
May I be allowed to explain my proposed
amendment?
367
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 PRESIDING OFFICER (Mr. Treas):

Commissioner Aquino may proceed.
MS. AQUINO:
The draft as presented by the Committee deleted
the phrase "except to vote" which was adopted in
both the 1935 and 1973 Constitutions. The phrase
"except to vote" was not intended as a guarantee to
the right to vote but as a qualification of the general
prohibition against taking part in elections.
Voting is a partisan political activity. Unless it is
explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement.
We know that suffrage, although plenary, is not an
unconditional right. In other words, the Legislature
can always pass a statute which can withhold from
any class the right to vote in an election, if public
interest so required. I would only like to reinstate
the qualification by specifying the prohibited acts so
that those who may want to vote but who are
likewise prohibited from participating in partisan
political campaigns or electioneering may vote.
MR. FOZ:
There is really no quarrel over this point, but
please understand that there was no intention on
the part of the Committee to disenfranchise any
government official or employee. The elimination of
the last clause of this provision was precisely
intended to protect the members of the civil service
in the sense that they are not being deprived of the
freedom of expression in a political contest. The
last phrase or clause might have given the
impression that a government employee or worker
has no right whatsoever in an election campaign
except to vote, which is not the case. They are still
free to express their views although the intention is
not really to allow them to take part actively in a
political campaign. 24
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:
who do not. ADTEaI
IV.
Section 4(a) of Resolution 8678, Section 13 of RA
9369, and
Section 66 of the Omnibus Election Code Do Not
Violate the
Equal Protection Clause
We now hold that Section 4 (a) of Resolution 8678,
Section 66 of the Omnibus Election Code, and the
of RA 9369 are not violative of the equal protection
clause of the Constitution. DcTSHa
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. 25
In Farias, the constitutionality of Section 14 of the
Fair Election Act, in relation to Sections 66 and 67
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,
368
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.
faith in the even-handed administration of justice in

the courts. 28 CaHAcT
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. 29 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. 30 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. 31 As we held in Villanueva, Jr. v. Court
of Appeals, et al.: 32
...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. 33 (italics supplied)
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. 26
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. 27 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:
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
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. 34 What it
simply requires is equality among equals as
determined according to a valid classification. 35
The test developed by jurisprudence here and
yonder is that of reasonableness, 36 which has four
requisites:
(1) The classification rests on substantial
distinctions;
(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. 37
369
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.: SCEDaT
...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. 38
that there is no reasonably rational reason for the

differing treatment. 48
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. 49 It involves the choice or
selection of candidates to public office by popular
vote. 50 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. CaSHAc
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. 51 (emphasis in the
original)
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." 39 In addressing a societal
concern, it must invariably draw lines and make
choices, thereby creating some inequity as to those
included or excluded. 40 Nevertheless, as long as
"the bounds of reasonable choice" are not
exceeded, the courts must defer to the legislative
judgment. 41 We may not strike down a law merely
because the legislative aim would have been more
fully achieved by expanding the class. 42 Stated
differently, the fact that a legislative classification,
by itself, is underinclusive will not render it
unconstitutionally arbitrary or invidious. 43 There is
no constitutional requirement that regulation must
reach each and every class to which it might be
applied; 44 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." 45 He must refute all possible rational
bases for the differing treatment, whether or not the
Legislature cited those bases as reasons for the
enactment, 46 such that the constitutionality of the
law must be sustained even if the reasonableness
of the classification is "fairly debatable." 47 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 statute's distinction is unfair,
underinclusive, unwise, or not the best solution
from a public-policy standpoint; rather, we must find
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 self-evident, 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 Legislature's 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
370
Finding no Philippine jurisprudence to prop up its

equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft.
52 This was a 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;
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,
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.
(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.
But, as the Court held in Pickering v. Board of

Education, 59 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. HTSIEa
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." TCHcAE
Our assailed Decision's 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. 53 and Broadrick, et al. v.
State of Oklahoma, et al., 54 the United States
Supreme Court was faced with the issue of whether
statutory provisions prohibiting federal 55 and state
56 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. 57 Therefore, insofar as government
employees are concerned, the correct standard of
review is an interest-balancing approach, a meansend scrutiny that examines the closeness of fit
between the governmental interests and the
prohibitions in question. 58
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.
371
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 the thousands or
hundreds of thousands of federal employees, paid
for at public expense, to man its political structure
and political campaigns. HIDCTA
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.
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.
We have held today that the Hatch Act is not

impermissibly vague. 61 We have little doubt that s
818 is similarly not so vague that 'men of common
intelligence must necessarily guess at its meaning.'
62 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.' ... IAEcCT
xxx xxx xxx
Neither the right to associate nor the right to

participate in political activities is absolute in any
event. 60 ...
[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.
xxx xxx xxx

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)
xxx xxx xxx
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
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
372
the overbreadth doctrine in this manner is,

manifestly, strong medicine. It has been employed
by the Court sparingly and only as a last resort. ...
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.
HAIaEc
...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 conducteven if expressive-falls 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 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.
...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.:
In Letter Carriers, the plaintiffs alleged that the Civil
Service Commission was enforcing, or threatening
to enforce, the Hatch Act's 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.
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 evenhanded 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;
In Broadrick, the appellants sought the invalidation

for being vague and overbroad a provision in the
(sic) Oklahoma's Merit System of Personnel
Administration Act restricting the political activities
of the State's 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
373
Broadrick cannot be interpreted to mean a reversal

of Mancuso. ...(italics in the original)
Section 9 (b) requires the immediate removal of

violators and forbids the use of appropriated funds
thereafter to pay compensation to these persons.
64
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."
(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 Oklahoma's 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.
(2) Letter Carriers involved plaintiffs who alleged

that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act's prohibition
against
"active
participation
in
political
management or political campaigns" 63 with
respect to certain defined activities in which they
desired to engage. The plaintiffs relevant to this
discussion are: THEcAS
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 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 65 that Mancuso is no longer good law.As
we priorly explained:
Magill involved Pawtucket, Rhode Island firemen
who ran for city office in 1975. Pawtucket's "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, 66 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 government's 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. 67 aIcCTA
(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)
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
374
their official power to help political friends and hurt

political foes. Ruled the court:
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, 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. CScaDH
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
elections would not be constitutional. Letter
Carriers and Broadrick compel new analysis.
xxx xxx xxx
What we are obligated to do in this case, as the
district court recognized, is to apply the Court's
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".68 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. ...(italics supplied)
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
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
375
systematic. Instead of a handful of employees

pressured into advancing their immediate superior's
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 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 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.
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 farfetched 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 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.
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 discussion, cliques, and
political bargaining, should an employee gather
substantial political support, are considerable.
(citations omitted) TEaADS
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
The court, however, remanded the case to the

district court for further proceedings in respect of
376
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)
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, 78 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)
Clearly, Letter Carriers, Broadrick, and Magill

demonstrate beyond doubt that Mancuso v. Taft,
heavily relied upon by the ponencia, has effectively
been overruled.69 As it is no longer good law, the
ponencia's 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.
70
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 resignto-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. TcSICH
Accordingly, our assailed Decision's 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 one's
political views through candidacy, 71 as to invoke a
rigorous standard of review. 72 Bart v. Telford 73
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, one's interest in seeking
office, by itself, is not entitled to constitutional
protection. 74 Moreover, one cannot bring one's
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. 75 HTSAEa
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 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 76 and Morial,
et al. v. Judiciary Commission of the State of
Louisiana, et al. 77 to buttress his dissent.
Maintaining that resign-to-run provisions are valid
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 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
377
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.
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)
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)
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; 79 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.
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) cTCEIS
Again, on second look, we have to revise our

assailed Decision.
i. Limitation on Candidacy Regardless of
Incumbent Appointive Official's 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.
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." 80 As elucidated in our prior
exposition: 81 EHTSCD
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
Indeed, the Morial court even quoted Broadrick and

stated that:
378
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.
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. 84
...[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)
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:
ii. Limitation on Candidacy

Regardless of Type of Office Sought, Valid
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," 82 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. 83 Obviously,
these rules and guidelines, including the restriction
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. aIcDCH
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.
xxx xxx xxx
Any elective or appointive municipal, city, provincial
or national official or employee, or those in the civil
or military service, including those in governmentowned or-controlled 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 overbreadth challenge raised against
Section 66 of the Omnibus Election Code and the
pertinent proviso in Section 13 of RA 9369 must
also fail. 85
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. 86
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
379
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 statute's plainly legitimate
sweep. 87 DaTEIc
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. 97 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. 98
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. 99 Several COMELEC
election officers had likewise filed their Certificates
of Candidacy in their respective provinces. 100
Even the Secretary of Justice had filed her
certificate of substitution for representative of the
first district of Quezon province last December 14,
2009 101 even as her position as Justice
Secretary includes supervision over the City and
Provincial Prosecutors, 102 who, in turn, act as
Vice-Chairmen of the respective Boards of
Canvassers. 103 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.
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 respondent's and the intervenors'
Motions for Reconsideration; REVERSE and SET
ASIDE this Court's 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
of Republic Act No. 9369, and (3) Section 66 of the
Omnibus Election Code. IDCHTE
SO ORDERED.
In operational terms, measuring the substantiality of

a statute's overbreadth would entail, among other
things, a rough balancing of the number of valid
applications compared to the number of potentially
invalid applications. 88 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. 89 The question is a matter
of degree. 90 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. 91
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, 92
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.' 93
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. 94 EcIaTA
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. 95 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. 96
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
Carpio, Corona, Carpio Morales, Velasco,

Jr.,Nachura, Leonardo-de Castro, Brion, Peralta,
Bersamin, Del Castillo, Abad, Villarama, Jr.,Perez
and Mendoza, JJ., concur.
||| (Quinto v. Commission on Elections, G.R. No.
189698 (Resolution), [February 22, 2010])
4.
ANG LADLAD VS. COMELEC 618

SCRA 32 (2010)
EN BANC
[G.R. No. 190582. April 8, 2010.]
380
ANG LADLAD LGBT PARTY represented herein by

its
Chair,
DANTON
REMOTO,
petitioner,vs.COMMISSION
ON
ELECTIONS,
respondent.
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 5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the
LGBT community is a marginalized and underrepresented
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
Bayani-OFW Labor Party v. Commission on
Elections. 6 Ang Ladlad laid out its national
membership base consisting of individual members
and organizational supporters, and outlined its
platform of governance. 7
On November 11, 2009, after admitting the
petitioner's evidence, the COMELEC (Second
Division) dismissed the Petition on moral grounds,
stating that:
...This Petition is dismissible on moral grounds.
Petitioner defines the Filipino Lesbian, Gay,
Bisexual and Transgender (LGBT) Community,
thus:
DECISION
DEL CASTILLO, J p:
...[F]reedom to differ is not limited to things that do
not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to
differ as to things that touch the heart of the
existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette
1
One unavoidable consequence of everyone having
the freedom to choose is that others may make
different choices choices we would not make for
ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us.
However, choices are not to be legally prohibited
merely because they are different, and the right to
disagree and debate about important questions of
public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine
recognition of, and respect for, diversity and
difference in opinion.
Since ancient times, society has grappled with
deep disagreements about the definitions and
demands of morality. In many cases, where moral
convictions are concerned, harmony among those
theoretically opposed is an insurmountable goal.
Yet herein lies the paradox philosophical
justifications about what is moral are indispensable
and yet at the same time powerless to create
agreement. This Court recognizes, however, that
practical solutions are preferable to ideological
stalemates; accommodation is better than
intransigence; reason more worthy than rhetoric.
This will allow persons of diverse viewpoints to live
together, if not harmoniously, then, at least, civilly.
Factual Background
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 2 (the First
Assailed Resolution) and December 16, 2009 3
(the Second Assailed Resolution) in SPP No. 09228 (PL) (collectively, the Assailed Resolutions).
The case has its roots in the COMELEC's refusal to
accredit Ang Ladlad as a party-list organization
under Republic Act (RA) No. 7941, otherwise
known as the Party-List System Act. 4 CDAHaE
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.
...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:
...refers to a person's 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. In Romans 1:26, 27, Paul
wrote:
For this cause God gave them up into vile
affections, for even their women did change the
natural use into that which is against nature: And
likewise also the men, leaving the natural use of the
woman, burned in their lust one toward another;
men with men working that which is unseemly, and
receiving in themselves that recompense of their
error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to
women "ye are indeed a people transgressing
beyond bounds." (7.81) "And we rained down on
them a shower (of brimstone):Then see what was
the end of those who indulged in sin and crime!"
(7:84) "He said: "O my Lord! Help Thou me against
people who do mischief" (29:30).
381
violence, lust or pornography;(3) offend any race or

religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public
order, morals, good customs,established policies,
lawful orders, decrees and edicts.
As correctly pointed out by the Law Department in

its Comment dated October 2, 2008: CcADHI
The ANG LADLAD apparently advocates sexual
immorality as indicated in the Petition's 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).
3. Those who shall sell, give away or exhibit films,

prints, engravings, sculpture or literature which are
offensive to morals. THADEI
Petitioner should likewise be denied accreditation
not only for advocating immoral doctrines but
likewise for not being truthful when it said that it "or
any of its nominees/party-list representatives have
not violated or failed to comply with laws, rules, or
regulations relating to the elections."
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.
Furthermore, should this Commission grant the

petition, we will be exposing our youth to an
environment that does not conform to the teachings
of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article
that "older practicing homosexuals are a threat to
the youth." As an agency of the government, ours
too is the State's avowed duty under Section 13,
Article II of the Constitution to protect our youth
from moral and spiritual degradation. 8
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 . . . (3) shocks,
defies; or disregards decency or morality ...
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, morals, good customs,public order
or public policy' are inexistent and void from the
beginning.
When Ang Ladlad sought reconsideration, 9 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 Ladlad's
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:
I. The Spirit of Republic Act No. 7941
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:
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 Ladlad's
expressed sexual orientations per se would benefit
the nation as a whole.
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;
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 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.
2. (a) The authors of obscene literature, published

with their knowledge in any form; the editors
publishing
such
literature;
and
the
owners/operators of the establishment selling the
same;
(b) Those who, in theaters, fairs, cinematographs or
any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which
are prescribed by virtue hereof, shall include those
which: (1) glorify criminals or condone crimes; (2)
serve no other purpose but to satisfy the market for
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
382
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 nation's 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.
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. Moreoever, * Article
694 of the Civil Code defines "nuisance" as any act,
omission . . . or anything else . . . which shocks,
defies or disregards decency or morality . . . ."
These are all unlawful. 10
On January 4, 2010, Ang Ladlad filed this Petition,
praying that the Court annul the Assailed
Resolutions and direct the COMELEC to grant Ang
Ladlad's 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, we ordered the Office of the
Solicitor General (OSG) to file its Comment on
behalf of COMELEC not later than 12:00 noon of
January 11, 2010. 11 Instead of filing a Comment,
however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to
Comment. 12 Somewhat surprisingly, the OSG
later filed a Comment in support of petitioner's
application. 13 Thus, in order to give COMELEC
the opportunity to fully ventilate its position, we
required it to file its own comment. 14 The
COMELEC, through its Law Department, filed its
Comment on February 2, 2010. 15
In the meantime, due to the urgency of the petition,
we issued a temporary restraining order 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. 16
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. 17 The CHR opined that
the denial of Ang Ladlad's 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 CHR's motion to intervene.
DcaECT
On January 26, 2010, Epifanio D. Salonga, Jr. filed
his Motion to Intervene 18 which motion was
granted on February 2, 2010. 19
The Parties' Arguments
Ang Ladlad argued that the denial of accreditation,
insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees
against the establishment of religion. Petitioner also
claimed that the Assailed Resolutions contravened
its constitutional rights to privacy, freedom of
speech and assembly, and equal protection of laws,
as well as constituted violations of the Philippines'
international obligations against discrimination
based on sexual orientation.
The OSG concurred with Ang Ladlad's petition and
argued that the COMELEC erred in denying
II. No substantial differentiation

In the United States, whose equal protection
doctrine pervades Philippine jurisprudence, courts
do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a "special class" of individuals.
. . . Significantly, it has also been held that
homosexuality is not a constitutionally protected
fundamental right, and that "nothing in the U.S.
Constitution discloses a comparable intent to
protect or promote the social or legal equality of
homosexual relations," as in the case of race or
religion or belief. EcHTCD
xxx xxx xxx
Thus, even if society's understanding, tolerance,
and acceptance of LGBT's 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.
xxx xxx xxx
IV. Public Morals
...There is no question about not imposing on
Ladlad Christian or Muslim religious practices.
Neither is there any attempt to any particular
religious group's moral rules on Ladlad. Rather,
what are being adopted as moral parameters and
precepts are generally accepted public morals.
They are possibly religious-based, but as a society,
the Philippines cannot ignore its more than 500
years of Muslim and Christian upbringing, such that
some moral precepts espoused by said religions
have sipped [sic] into society and these are not
publicly accepted moral norms.
V.Legal Provisions
But above morality and social norms, they have
become part of the law of the land. Article 201 of
the Revised Penal Code imposes the penalty of
prision mayor upon "Those who shall publicly
expound or proclaim doctrines openly contrary to
public morals." It penalizes "immoral doctrines,
obscene publications and exhibition and indecent
shows." "Ang Ladlad" apparently falls under these
legal provisions. This is clear from its Petition's
paragraph 6F: "Consensual partnerships or
383
petitioner's application for registration since there

was no basis for COMELEC's allegations of
immorality. It also opined that LGBTs have their
own special interests and concerns which should
have been recognized by the COMELEC as a
separate classification. However, insofar as the
purported violations of petitioner's freedom of
speech,
expression,
and
assembly
were
concerned, the OSG maintained that there had
been no restrictions on these rights.
In its Comment, the COMELEC reiterated that
petitioner does not have a concrete and genuine
national political agenda to benefit the nation and
that the petition was validly dismissed on moral
grounds. It also argued for the first time that the
LGBT sector is not among the sectors enumerated
by the Constitution and RA 7941, and that petitioner
made untruthful statements in its petition when it
alleged its national existence contrary to actual
verification reports by COMELEC's field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of
the Constitution and Republic Act No.
7941
The COMELEC denied Ang Ladlad's 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 registered under the party-list system. As
we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections, 20 "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.
Respondent also argues that Ang Ladlad made
untruthful statements in its petition when it alleged
that it had nationwide existence through its
members and affiliate organizations. The
COMELEC claims that upon verification by its field
personnel, it was shown that "save for a few
isolated places in the country, petitioner does not
exist in almost all provinces in the country." 21
EaISTD
This argument that "petitioner made untruthful
statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC
claimed that petitioner was "not being truthful when
it said that it or any of its nominees/party-list
representatives have not violated or failed to
comply with laws, rules, or regulations relating to
the elections." Nowhere was this ground for denial
of petitioner's accreditation mentioned or even
alluded to in the Assailed Resolutions. This, in
itself, is quite curious, considering that the reports

of petitioner's alleged non-existence were already
available to the COMELEC prior to the issuance of
the First Assailed Resolution. At best, this is
irregular procedure; at worst, a belated
afterthought, a change in respondent's theory, and
a serious violation of petitioner's right to procedural
due process.
Nonetheless, we find that there has been no
misrepresentation. A cursory perusal of Ang
Ladlad's 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. 22 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)
Can't 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 Men's Support Group (GMSG)-Metro Manila
Gay United for Peace and Solidarity (GUPS)Lanao del Norte
Iloilo City Gay Association-Iloilo City
Kabulig Writer's Group-Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA-Baguio City
Marikina Gay Association-Metro Manila
Metropolitan Community Church (MCC)-Metro
Manila
384
Naga City Gay Association-Naga City
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: 26
...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.
ONE BACARDI AaITCS

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
Soul Jive-Antipolo, Rizal
The Link-Davao City
Tayabas Gay Association-Quezon
Women's Bisexual Network-Metro Manila
Zamboanga Gay Association-Zamboanga City 23
Since the COMELEC only searched for the names
ANG LADLAD LGBT or LADLAD LGBT, it is no
surprise that they found that petitioner had no
presence in any of these regions. In fact, if
COMELEC's findings are to be believed, petitioner
does not even exist in Quezon City, which is
registered as Ang Ladlad's principal place of
business.
Against this backdrop, we find that Ang Ladlad has
sufficiently demonstrated its compliance with the
legal requirements for accreditation. Indeed, aside
from COMELEC's 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 Ladlad's
morality, or lack thereof.
Religion as the Basis for Refusal to
Accept Ang Ladlad's Petition for
Registration
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 nonestablishment clause calls for is "government
neutrality in religious matters." 24 Clearly,
"governmental reliance on religious justification is
inconsistent with this policy of neutrality." 25 We
thus find that it was grave violation of the nonestablishment clause for the COMELEC to utilize
the Bible and the Koran to justify the exclusion of
Ang Ladlad.
In other words, government action, including its

proscription of immorality as expressed in criminal
law like concubinage, must have a secular purpose.
That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and
progress of human society" and not because the
conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments
based on religion might have a compelling
influence on those engaged in public deliberations
over what actions would be considered a moral
disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have
religious opinions and moral codes with a
compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual
institutions of society in a uniform manner,
harmonizing earth with heaven. Succinctly put, a
law could be religious or Kantian or Aquinian or
utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and
justification to pass scrutiny of the religion
clauses. . . . Recognizing the religious nature of the
Filipinos and the elevating influence of religion in
society, however, the Philippine constitution's
religion clauses prescribe not a strict but a
benevolent
neutrality.
Benevolent
neutrality
recognizes that government must pursue its secular
goals and interests but at the same time strive to
uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is
385
secular, benevolent neutrality could allow for

accommodation of morality based on religion,
provided it does not offend compelling state
interests. 27
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 COMELEC's 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. 32 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. SDIaCT
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 Ladlad's
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. Respondent's 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 provision as an absolute
prohibition on classification. "Equality," said
Aristotle, "consists in the same treatment of similar
persons." 33 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. 34
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. 35 In Central Bank
Employees Association, Inc. v. Banko Sentral ng
Pilipinas, 36 we declared that "[i]n our jurisdiction,
the standard of analysis of equal protection
challenges . . . have followed the 'rational basis'
test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law
Public Morals as a Ground to Deny

Ang Ladlad's Petition for Registration
Respondent suggests that although the moral
condemnation of homosexuality and homosexual
conduct may be religion-based, it has long been
transplanted into generally accepted public morals.
The COMELEC argues: aIcCTA
Petitioner's
accreditation
was
denied
not
necessarily because their group consists of LGBTs
but because of the danger it poses to the people
especially the youth. Once it is recognized by the
government, a sector which believes that there is
nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It
will bring down the standard of morals we cherish in
our civilized society. Any society without a set of
moral precepts is in danger of losing its own
existence. 28
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 homosexual conduct.
Evidently, therefore, these "generally accepted
public morals" have not been convincingly
transplanted into the realm of law. 29
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
group's members have committed or are
committing immoral acts." 30 The OSG argues:
...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. 31
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
petitioner's 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
386
unless there is a showing of a clear and

unequivocal breach of the Constitution." 37
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 COMELEC's 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.
From the standpoint of the political process, the
lesbian, gay, bisexual, and transgender have the
same interest in participating in the party-list
system on the same basis as other political parties
similarly situated. State intrusion in this case is
equally burdensome. Hence, laws of general
application should apply with equal force to LGBTs,
and they deserve to participate in the party-list
system on the same basis as other marginalized
and under-represented sectors.
It bears stressing that our finding that COMELEC's
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 OSG's position that homosexuals are a
class in themselves for the purposes of the equal
protection clause. 38 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
Under our system of laws, every group has the right
to promote its agenda and attempt to persuade
society of the validity of its position through normal
democratic means. 39 It is in the public square that
deeply held convictions and differing opinions
should be distilled and deliberated upon. As we
held in Estrada v. Escritor: 40
In a democracy, this common agreement on
political and moral ideas is distilled in the public
square. Where citizens are free, every opinion,
every prejudice, every aspiration, and every moral
discernment has access to the public square where
people deliberate the order of their life together.

Citizens are the bearers of opinion, including
opinion shaped by, or espousing religious belief,
and these citizens have equal access to the public
square. In this representative democracy, the state
is prohibited from determining which convictions
and moral judgments may be proposed for public
deliberation. Through a constitutionally designed
process, the people deliberate and decide. Majority
rule is a necessary principle in this democratic
governance. Thus, when public deliberation on
moral judgments is finally crystallized into law, the
laws will largely reflect the beliefs and preferences
of the majority, i.e., the mainstream or median
groups. Nevertheless, in the very act of adopting
and accepting a constitution and the limits it
specifies including protection of religious
freedom "not only for a minority, however small
not only for a majority, however large but for
each of us" the majority imposes upon itself a
self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the
dissenting minorities.
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. aAcDSC
This position gains even more force if one
considers that homosexual conduct is not illegal in
this country. It follows that both expressions
concerning one's homosexuality and the activity of
forming a political association that supports LGBT
individuals are protected as well.
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. 41 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. 42 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 Court's 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
387
avoid the discomfort and unpleasantness that

always accompany an unpopular viewpoint." 43
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. 44 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.
45 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. 46
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.
The OSG argues that since there has been neither
prior restraint nor subsequent punishment imposed
on Ang Ladlad, and its members have not been
deprived of their right to voluntarily associate, then
there has been no restriction on their freedom of
expression or association. The OSG argues that:
There was no utterance restricted, no publication
censored, or any assembly denied. [COMELEC]
simply exercised its authority to review and verify
the qualifications of petitioner as a sectoral party
applying to participate in the party-list system. This
lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the
Constitution.
A denial of the petition for registration ...does not

deprive the members of the petitioner to freely take
part in the conduct of elections. Their right to vote
will not be hampered by said denial. In fact, the
right to vote is a constitutionally-guaranteed right
which cannot be limited.
As to its right to be elected in a genuine periodic
election, petitioner contends that the denial of Ang
Ladlad's petition has the clear and immediate effect
of limiting, if not outrightly nullifying the capacity of
its members to fully and equally participate in public
life through engagement in the party list elections.
This argument is puerile. The holding of a public
office is not a right but a privilege subject to
limitations imposed by law. ...47
The OSG fails to recall that petitioner has, in fact,
established its qualifications to participate in the
party-list system, and as advanced by the OSG
itself the moral objection offered by the
COMELEC was not a limitation imposed by law. To
the extent, therefore, that the petitioner has been
precluded, because of COMELEC's action, from
publicly expressing its views as a political party and
participating on an equal basis in the political
process with other equally-qualified party-list
candidates, we find that there has, indeed, been a
transgression of petitioner's fundamental rights.
Non-Discrimination and International
Law
In an age that has seen international law evolve
geometrically in scope and promise, international
human rights law, in particular, has grown
dynamically in its attempt to bring about a more just
and humane world order. For individuals and
groups struggling with inadequate structural and
governmental support, international human rights
norms are particularly significant, and should be
effectively enforced in domestic legal systems so
that such norms may become actual, rather than
ideal, standards of conduct.
Our Decision today is fully in accord with our
international obligations to protect and promote
human rights. In particular, we explicitly recognize
the principle of non-discrimination as it relates to
the right to electoral participation, enunciated in the
UDHR and the ICCPR. SIaHDA
The principle of non-discrimination is laid out in
Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are
entitled without any discrimination to the equal
protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all
persons equal and effective protection against
discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion,
national or social origin, property, birth or other
status.
xxx xxx xxx

388
In this context, the principle of non-discrimination

requires that laws of general application relating to
elections be applied equally to all persons,
regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a
status or ratio for discrimination in Article 26 of the
ICCPR, the ICCPR Human Rights Committee has
opined that the reference to "sex" in Article 26
should be construed to include "sexual orientation."
48 Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual
orientation to be prohibited under various
international agreements. 49
The UDHR provides:
Article 21.
candidates. Any restrictions on the right to stand for

election, such as minimum age, must be justifiable
on objective and reasonable criteria. Persons who
are otherwise eligible to stand for election should
not be excluded by unreasonable or discriminatory
requirements such as education, residence or
descent, or by reason of political affiliation. No
person should suffer discrimination or disadvantage
of any kind because of that person's candidacy.
States parties should indicate and explain the
legislative provisions which exclude any group or
category of persons from elective office. 50
We stress, however, that although this Court stands
willing to assume the responsibility of giving effect
to the Philippines' international law obligations, the
blanket invocation of international law is not the
panacea for all social ills. We refer now to the
petitioner's invocation of the Yogyakarta Principles
(the Application of International Human Rights Law
In Relation to Sexual Orientation and Gender
Identity), 51 which petitioner declares to reflect
binding principles of international law.
At this time, we are not prepared to declare that
these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are
declarations and obligations outlined in said
Principles which are not reflective of the current
state of international law, and do not find basis in
any of the sources of international law enumerated
under Article 38 (1) of the Statute of the
International Court of Justice. 52 Petitioner has not
undertaken any objective and rigorous analysis of
these alleged principles of international law to
ascertain their true status. ATDHSC
We also hasten to add that not everything that
society or a certain segment of society wants
or demands is automatically a human right. This is
not an arbitrary human intervention that may be
added to or subtracted from at will. It is unfortunate
that much of what passes for human rights today is
a much broader context of needs that identifies
many social desires as rights in order to further
claims that international law obliges states to
sanction these innovations. This has the effect of
diluting real human rights, and is a result of the
notion that if "wants" are couched in "rights"
language, then they are no longer controversial.
Using even the most liberal of lenses, these
Yogyakarta Principles, consisting of a declaration
formulated by various international law professors,
are at best de lege ferenda and do not
constitute binding obligations on the Philippines.
Indeed, so much of contemporary international law
is characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote
international cooperation, harmony, and respect for
human rights, most of which amount to no more
than well-meaning desires, without the support of
either State practice or opinio juris. 53
As a final note, we cannot help but observe that the
social issues presented by this case are
emotionally charged, societal attitudes are in flux,
even the psychiatric and religious communities are
divided in opinion. This Court's role is not to impose
(1) Everyone has the right to take part in the

government of his country, directly or through freely
chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the
opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable
restrictions:
(a) To take part in the conduct of public affairs,
directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic
elections which shall be by universal and equal
suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the
electors;
(c) To have access, on general terms of equality, to
public service in his country.
As stated by the CHR in its Comment-inIntervention, the scope of the right to electoral
participation is elaborated by the Human Rights
Committee in its General Comment No. 25
(Participation in Public Affairs and the Right to Vote)
as follows:
1. Article 25 of the Covenant recognizes and
protects the right of every citizen to take part in the
conduct of public affairs, the right to vote and to be
elected and the right to have access to public
service. Whatever form of constitution or
government is in force, the Covenant requires
States to adopt such legislative and other
measures as may be necessary to ensure that
citizens have an effective opportunity to enjoy the
rights it protects. Article 25 lies at the core of
democratic government based on the consent of
the people and in conformity with the principles of
the Covenant.
xxx xxx xxx
15. The effective implementation of the right and
the opportunity to stand for elective office ensures
that persons entitled to vote have a free choice of
389
its own view of acceptable behavior. Rather, it is to

apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the
knowledge that our democracy is resilient enough
to withstand vigorous debate.
WHEREFORE,the
Petition
is
hereby
GRANTED.The Resolutions of the Commission on
Elections dated November 11, 2009 and December
16, 2009 in SPP No. 09-228 (PL) are hereby SET
ASIDE.The Commission on Elections is directed to
GRANT petitioner's application for party-list
accreditation.
SO ORDERED.
Puno, C.J.,Carpio, Velasco, Jr.,Leonardo-de
Castro,
Bersamin,
Villarama,
Jr.,Perezand
Mendoza, JJ., concur.
Corona, J., Pls. see dissenting opinion.
Carpio Morales, Nachura and Peralta, JJ., join
concurring opinion of J. Abad.
Brion, J., joins dissent of J. Corona.
Abad, J., I certify that J. Abad wrote a separate
concurring opinion.
||| (Ang Ladlad LGBT Party v. Commission on
Elections, G.R. No. 190582, [April 8, 2010], 632
PHIL 32-142)
PRESIDING JUDGE, REGIONAL TRIAL COURTBRANCH

148,
MAKATI
CITY;
GEN.
HERMOGENES ESPERON, VICE ADM. ROGELIO
I. CALUNSAG, MGEN. BENJAMIN DOLORFINO,
AND LT. COL. LUCIARDO OBEA, respondents.
3.
In the aftermath of this eventful episode dubbed as

the "Oakwood Incident", petitioner Antonio F.
Trillanes IV was charged, along with his comrades,
with coup d'etat defined under Article 134-A of the
Revised Penal Code before the Regional Trial
Court (RTC) of Makati. The case was docketed as
Criminal Case No. 03-2784, "People v. Capt. Milo
D. Maestrecampo, et al."
DECISION
CARPIO-MORALES, J p:
At the wee hours of July 27, 2003, a group of more
than 300 heavily armed soldiers led by junior
officers of the Armed Forces of the Philippines
(AFP) stormed into the Oakwood Premier
Apartments in Makati City and publicly demanded
the resignation of the President and key national
officials. SICDAa
Later in the day, President Gloria Macapagal Arroyo
issued Proclamation No. 427 and General Order
No. 4 declaring a state of rebellion and calling out
the Armed Forces to suppress the rebellion. 1 A
series of negotiations quelled the teeming tension
and eventually resolved the impasse with the
surrender of the militant soldiers that evening.
Social Equality Art. XIII, Sec. 1
Annotation SOCIAL JUSTICE 645 SCRA 401

(2011)
Constitutional Law; Social Justice; Never is it
justified to give preference to the poor simply
because they are poor, or to reject the rich simply
because they are rich, for justice must always be
served for poor and rich alike, according to the
mandate of the law.It is true that, in case of
reasonable doubt, the Court is called upon to tilt the
balance in favor of the poor to whom the
Constitution fittingly extends its sympathy and
compassion. But never is it justified to give
preference to the poor simply because they are
poor, or to reject the rich simply because they are
rich, for justice must always be served for poor and
rich alike, according to the mandate of the law.
Vigilance over the rights of the landowners is
equally important because social justice cannot be
invoked to trample on the rights of property owners,
who under our Constitution and laws are also
entitled to protection. (Buklod nang Magbubukid sa
Lupaing Ramos, Inc. vs. E.M. Ramos and Sons,
Inc., 645 SCRA 401, G.R. No.
131481 March 16, 2011)
4.
Close to four years later, petitioner, who has

remained in detention, 2 threw his hat in the
political arena and won a seat in the Senate with a
six-year term commencing at noon on June 30,
2007. 3
Before the commencement of his term or on June
22, 2007, petitioner filed with the RTC, Makati City,
Branch 148, an "Omnibus Motion for Leave of
Court to be Allowed to Attend Senate Sessions and
Related Requests" 4 (Omnibus Motion). Among his
requests were: ITcCaS
(a) To be allowed to go to the Senate to attend all
official functions of the Senate (whether at the
Senate or elsewhere) particularly when the Senate
is in session, and to attend the regular and plenary
sessions of the Senate, committee hearings,
committee meetings, consultations, investigations
and hearings in aid of legislation, caucuses, staff
meetings, etc., which are normally held at the
Senate of the Philippines located at the GSIS
Financial Center, Pasay City (usually from Mondays
to Thursdays from 8:00 a.m. to 7:00 p.m.);
OTHER CASES
1. TRILLANES VS. PIMENTEL 556 SCRA
471
EN BANC
(b) To be allowed to set up a working area at his

place of detention at the Marine Brig, Marine
Barracks Manila, Fort Bonifacio, Taguig City, with a
personal desktop computer and the appropriate
communications equipment (i.e., a telephone line
[G.R. No. 179817. June 27, 2008.]

ANTONIO F. TRILLANES IV, petitioner, vs. HON.
OSCAR PIMENTEL, SR., IN HIS CAPACITY AS
390
and internet access) in order that he may be able to

work there when there are no sessions, meetings
or hearings at the Senate or when the Senate is not
in session. The costs of setting up the said working
area and the related equipment and utility costs can
be charged against the budget/allocation of the
Office of the accused from the Senate; AEIHCS
prayed for the maintenance of the status quo ante

of having been able hitherto to convene his staff,
resource persons and guests 9 at the Marine Brig.
CETDHA
Impleaded as co-respondents of Judge Oscar
Pimentel, Sr. are AFP Chief of Staff, Gen.
Hermogenes Esperon (Esperon); Philippine Navy's
Flag Officer-in-Command, Vice Admiral Rogelio
Calunsag; Philippine Marines' Commandant, Major
Gen. Benjamin Dolorfino; and Marine Barracks
Manila Commanding Officer, Lt. Col. Luciardo
Obea (Obea).
(c) To be allowed to receive members of his staff at

the said working area at his place of detention at
the Marine Brig, Marine Barracks Manila, Fort
Bonifacio, Taguig City, at reasonable times of the
day particularly during working days for purposes of
meetings,
briefings,
consultations
and/or
coordination, so that the latter may be able to
assists (sic) him in the performance and discharge
of his duties as a Senator of the Republic;
Petitioner later manifested, in his Reply of February

26, 2008, that he has, since November 30, 2007,
been in the custody of the Philippine National
Police (PNP) Custodial Center following the foiled
take-over of the Manila Peninsula Hotel 10 the day
before or on November 29, 2007.
(d) To be allowed to give interviews and to air his

comments, reactions and/or opinions to the press
or the media regarding the important issues
affecting the country and the public while at the
Senate or elsewhere in the performance of his
duties as Senator to help shape public policy and in
the light of the important role of the Senate in
maintaining the system of checks and balance
between the three (3) co-equal branches of
Government;
Such change in circumstances thus dictates the

discontinuation of the action as against the abovenamed military officers-respondents. The issues
raised in relation to them had ceased to present a
justiciable controversy, so that a determination
thereof would be without practical value and use.
Meanwhile, against those not made parties to the
case, petitioner cannot ask for reliefs from this
Court. 11 Petitioner did not, by way of substitution,
implead the police officers currently exercising
custodial responsibility over him; and he did not
satisfactorily show that they have adopted or
continued the assailed actions of the former
custodians. 12 CTEaDc
(e) With prior notice to the Honorable Court and to

the accused and his custodians, to be allowed to
receive, on Tuesdays and Fridays, reporters and
other members of the media who may wish to
interview him and/or to get his comments, reactions
and/or opinion at his place of confinement at the
Marine Brig, Marine Barracks Manila, Fort
Bonifacio, Taguig City, particularly when there are
no sessions, meetings or hearings at the Senate or
when the Senate is not in session; and ScCIaA
Petitioner reiterates the following grounds which

mirror those previously raised in his Motion for
Reconsideration filed with the trial court:
(f) To be allowed to attend the organizational

meeting and election of officers of the Senate and
related activities scheduled in the morning (9:00 or
10:00 a.m.) of 23 July 2007 at the Senate of the
Philippines located at the GSIS Financial Center,
Pasay City. 5
I.
By Order of July 25, 2007, 6 the trial court denied

all the requests in the Omnibus Motion. Petitioner
moved for reconsideration in which he waived his
requests in paragraphs (b), (c) and (f) to thus trim
them down to three. 7 The trial court just the same
denied the motion by Order of September 18, 2007.
8
A.
THE
JURISPRUDENCE
CITED
BY
THE
HONORABLE COURT A QUO IS CLEARLY
INAPPLICABLE TO THE INSTANT CASE
BECAUSE OF THE FOLLOWING REASONS:
UNLIKE IN THIS CASE, THE ACCUSED IN THE

JALOSJOS CASE WAS ALREADY CONVICTED
AT THE TIME HE FILED HIS MOTION. IN THE
INSTANT CASE, ACCUSED/PETITIONER HAS
NOT BEEN CONVICTED AND, THEREFORE,
STILL ENJOYS THE PRESUMPTION OF
INNOCENCE; cDTaSH
Hence, the present petition for certiorari to set

aside the two Orders of the trial court, and for
prohibition and mandamus to (i) enjoin respondents
from banning the Senate staff, resource persons
and guests from meeting with him or transacting
business with him in his capacity as Senator; and
(ii) direct respondents to allow him access to the
Senate staff, resource persons and guests and
permit him to attend all sessions and official
functions of the Senate. Petitioner preliminarily
B.
THE ACCUSED IN THE JALOJOS (SIC) CASE
WAS CHARGED WITH TWO (2) COUNTS OF
STATUTORY RAPE AND SIX (6) COUNTS OF
ACTS
OF
LASCIVIOUSNESS,
CRIMES
INVOLVING MORAL TURPITUDE. HEREIN
ACCUSED/PETITIONER IS CHARGED WITH THE
391
OFFENSE OF "COUP D'ETAT", A CHARGE

WHICH IS COMMONLY REGARDED AS A
POLITICAL OFFENSE;
institutionalized practice of graft and corruption in

the AFP. CASaEc
In sum, petitioner's first ground posits that there is a
world of difference between his case and that of
Jalosjos respecting the type of offense involved, the
stage of filing of the motion, and other
circumstances
which
demonstrate
the
inapplicability of Jalosjos. 14
C.
THE ACCUSED IN THE JALOSJOS CASE
ATTEMPTED TO FLEE PRIOR TO BEING
ARRESTED.
THE
ACCUSED/PETITIONER
VOLUNTARILY
SURRENDERED
TO
THE
AUTHORITIES AND AGREED
TO
TAKE
RESPONSIBILITY FOR HIS ACTS AT OAKWOOD;
A plain reading of Jalosjos suggests otherwise,

however.
II.
The distinctions cited by petitioner were not

elemental in the pronouncement in Jalosjos that
election to Congress is not a reasonable
classification in criminal law enforcement as the
functions and duties of the office are not substantial
distinctions which lift one from the class of
prisoners interrupted in their freedom and restricted
in liberty of movement. 15
GEN. ESPERON DID NOT OVERRULE THE

RECOMMENDATION OF THE MARINE BRIG'S
COMMANDING
OFFICER
TO
ALLOW
PETITIONER TO ATTEND THE SENATE
SESSIONS; TIHCcA
III.
ACCUSED/PETITIONER SUBMITS THAT THE
FACT THAT THE PEOPLE, IN THEIR SOVEREIGN
CAPACITY, ELECTED HIM TO THE POSITION OF
SENATOR OF THE REPUBLIC PROVIDES THE
PROPER LEGAL JUSTIFICATION TO ALLOW HIM
TO WORK AND SERVE HIS MANDATE AS A
SENATOR;
It cannot be gainsaid that a person charged with a

crime is taken into custody for purposes of the
administration of justice. No less than the
Constitution provides:
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. The right
to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required. 16
(Underscoring supplied) ASTDCH
- AND IV.
MOREOVER,
THERE
ARE
ENOUGH
PRECEDENTS TO ALLOW LIBERAL TREATMENT
OF DETENTION PRISONERS WHO ARE HELD
WITHOUT BAIL AS IN THE CASE OF FORMER
PRESIDENT JOSEPH "ERAP" ESTRADA AND
FORMER ARMM GOV. NUR MISUARI. 13
HSaCcE
The Rules also state that no person charged with a

capital offense, 17 or an offense punishable by
reclusion perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is strong,
regardless of the stage of the criminal action. 18
The petition is bereft of merit.
That the cited provisions apply equally to rape and

coup d'etat cases, both being punishable by
reclusion perpetua, 19 is beyond cavil. Within the
class of offenses covered by the stated range of
imposable penalties, there is clearly no distinction
as to the political complexion of or moral turpitude
involved in the crime charged.
In attempting to strike a distinction between his

case and that of Jalosjos, petitioner chiefly points
out that former Rep. Romeo Jalosjos (Jalosjos) was
already convicted, albeit his conviction was pending
appeal, when he filed a motion similar to
petitioner's Omnibus Motion, whereas he
(petitioner) is a mere detention prisoner. He asserts
that he continues to enjoy civil and political rights
since the presumption of innocence is still in his
favor.
In the present case, it is uncontroverted that

petitioner's application for bail and for release on
recognizance was denied. 20 The determination
that the evidence of guilt is strong, whether
ascertained in a hearing of an application for bail 21
or imported from a trial court's judgment of
conviction, 22 justifies the detention of an accused
as a valid curtailment of his right to provisional
liberty. This accentuates the proviso that the denial
of the right to bail in such cases is "regardless of
the stage of the criminal action." Such justification
for confinement with its underlying rationale of
Further, petitioner illustrates that Jalosjos was

charged with crimes involving moral turpitude, i.e.,
two counts of statutory rape and six counts of acts
of lasciviousness, whereas he is indicted for coup
d'etat which is regarded as a "political offense".
Furthermore, petitioner justifies in his favor the
presence of noble causes in expressing legitimate
grievances
against
the
rampant
and
392
public self-defense 23 applies equally to detention

prisoners like petitioner or convicted prisonersappellants like Jalosjos. TEDaAc
authorities and such can be proven by the

numerous times he was allowed to travel outside
his place of detention.
As the Court observed in Alejano v. Cabuay, 24 it is

impractical to draw a line between convicted
prisoners and pre-trial detainees for the purpose of
maintaining jail security; and while pre-trial
detainees do not forfeit their constitutional rights
upon confinement, the fact of their detention makes
their rights more limited than those of the public.
Subsequent events reveal the contrary, however.

The assailed Orders augured well when on
November 29, 2007 petitioner went past security
detail for some reason and proceeded from the
courtroom to a posh hotel to issue certain
statements. The account, dubbed this time as the
"Manila Pen Incident", 30 proves that petitioner's
argument bites the dust. The risk that he would
escape ceased to be neither remote nor nil as, in
fact, the cause for foreboding became real.
The Court was more emphatic in People v. Hon.

Maceda: 25
As a matter of law, when a person indicted for an
offense is arrested, he is deemed placed under the
custody of the law. He is placed in actual restraint
of liberty in jail so that he may be bound to answer
for the commission of the offense. He must be
detained in jail during the pendency of the case
against him, unless he is authorized by the court to
be released on bail or on recognizance. Let it be
stressed that all prisoners whether under
preventive detention or serving final sentence can
not practice their profession nor engage in any
business or occupation, or hold office, elective or
appointive, while in detention. This is a necessary
consequence of arrest and detention. 26
(Underscoring supplied) ADaEIH
Moreover, circumstances indicating probability of

flight find relevance as a factor in ascertaining the
reasonable amount of bail and in canceling a
discretionary grant of bail. 31 In cases involving
non-bailable offenses, what is controlling is the
determination of whether the evidence of guilt is
strong. Once it is established that it is so, bail shall
be denied as it is neither a matter of right nor of
discretion. 32 HTIEaS
Petitioner cannot find solace in Montano v. Ocampo
33 to buttress his plea for leeway because unlike
petitioner, the therein petitioner, then Senator
Justiniano Montano, who was charged with multiple
murder and multiple frustrated murder, 34 was able
to rebut the strong evidence for the prosecution.
Notatu dignum is this Court's pronouncement
therein that "if denial of bail is authorized in capital
cases, it is only on the theory that the proof being
strong, the defendant would flee, if he has the
opportunity, rather than face the verdict of the jury."
35 At the time Montano was indicted, when only
capital offenses were non-bailable where evidence
of guilt is strong, 36 the Court noted the obvious
reason that "one who faces a probable death
sentence has a particularly strong temptation to
flee." 37 Petitioner's petition for bail having earlier
been denied, he cannot rely on Montano to
reiterate his requests which are akin to bailing him
out.
These inherent limitations, however, must be taken

into account only to the extent that confinement
restrains the power of locomotion or actual physical
movement. It bears noting that in Jalosjos, which
was decided en banc one month after Maceda, the
Court recognized that the accused could somehow
accomplish legislative results. 27
The trial court thus correctly concluded that the
presumption of innocence does not carry with it the
full enjoyment of civil and political rights.
Petitioner is similarly situated with Jalosjos with
respect to the application of the presumption of
innocence during the period material to the
resolution of their respective motions. The Court in
Jalosjos did not mention that the presumption of
innocence no longer operates in favor of the
accused pending the review on appeal of the
judgment of conviction. The rule stands that until a
promulgation of final conviction is made, the
constitutional mandate of presumption of innocence
prevails. 28
Second, petitioner posits that, contrary to the trial

court's findings, Esperon did not overrule Obea's
recommendation to allow him to attend Senate
sessions. Petitioner cites the Comment 38 of
Obea that he interposed no objection to such
request but recommended that he be transported
by the Senate Sergeant-at-Arms with adequate
Senate security. And petitioner faults the trial court
for deeming that Esperon, despite professing nonobstruction to the performance of petitioner's
duties, flatly rejected all his requests, when what
Esperon only disallowed was the setting up of a
political office inside a military installation owing to
AFP's a political nature. 39 HAaDTE
In addition to the inherent restraints, the Court

notes that petitioner neither denied nor disputed his
agreeing to a consensus with the prosecution that
media access to him should cease after his
proclamation by the Commission on Elections. 29
aSCHcA
The effective management of the detention facility

has been recognized as a valid objective that may
justify the imposition of conditions and restrictions
of pre-trial detention. 40 The officer with custodial
Petitioner goes on to allege that unlike Jalosjos

who attempted to evade trial, he is not a flight risk
since he voluntarily surrendered to the proper
393
responsibility over a detainee may undertake such

reasonable measures as may be necessary to
secure the safety and prevent the escape of the
detainee. 41 Nevertheless, while the comments of
the detention officers provide guidance on security
concerns, they are not binding on the trial court in
the same manner that pleadings are not
impositions upon a court.
few of its members. . . . Never has the call of a

particular duty lifted a prisoner into a different
classification from those others who are validly
restrained by law. 46 (Underscoring supplied)
aECTcA
Lastly, petitioner pleads for the same liberal

treatment accorded certain detention prisoners who
have also been charged with non-bailable offenses,
like former President Joseph Estrada and former
Governor Nur Misuari who were allowed to attend
"social functions." Finding no rhyme and reason in
the denial of the more serious request to perform
the duties of a Senator, petitioner harps on an
alleged violation of the equal protection clause.
Third, petitioner posits that his election provides the

legal justification to allow him to serve his mandate,
after the people, in their sovereign capacity, elected
him as Senator. He argues that denying his
Omnibus Motion is tantamount to removing him
from office, depriving the people of proper
representation,
denying
the people's will,
repudiating the people's choice, and overruling the
mandate of the people.
In arguing against maintaining double standards in

the treatment of detention prisoners, petitioner
expressly admits that he intentionally did not seek
preferential treatment in the form of being placed
under Senate custody or house arrest, 47 yet he at
the same time, gripes about the granting of house
arrest to others.
Petitioner's contention hinges on the doctrine in

administrative law that "a public official can not be
removed for administrative misconduct committed
during a prior term, since his re-election to office
operates as a condonation of the officer's previous
misconduct to the extent of cutting off the right to
remove him therefor." 42 aCSDIc
Emergency or compelling temporary leaves from

imprisonment are allowed to all prisoners, at the
discretion of the authorities or upon court orders. 48
That this discretion was gravely abused, petitioner
failed to establish. In fact, the trial court previously
allowed petitioner to register as a voter in
December 2006, file his certificate of candidacy in
February 2007, cast his vote on May 14, 2007, be
proclaimed as senator-elect, and take his oath of
office 49 on June 29, 2007. In a seeming attempt to
bind or twist the hands of the trial court lest it be
accused of taking a complete turn-around, 50
petitioner largely banks on these prior grants to him
and insists on unending concessions and blanket
authorizations. CSEHcT
The assertion is unavailing. The case against

petitioner is not administrative in nature. And there
is no "prior term" to speak of. In a plethora of
cases, 43 the Court categorically held that the
doctrine of condonation does not apply to criminal
cases. Election, or more precisely, re-election to
office, does not obliterate a criminal charge.
Petitioner's electoral victory only signifies
pertinently that when the voters elected him to the
Senate, "they did so with full awareness of the
limitations on his freedom of action [and] . . . with
the knowledge that he could achieve only such
legislative results which he could accomplish within
the confines of prison." 44
Petitioner's position fails. On the generality and

permanence of his requests alone, petitioner's case
fails to compare with the species of allowable
leaves. Jaloslos succinctly expounds:
In once more debunking the disenfranchisement

argument, 45 it is opportune to wipe out the
lingering misimpression that the call of duty
conferred by the voice of the people is louder than
the litany of lawful restraints articulated in the
Constitution and echoed by jurisprudence. The
apparent discord may be harmonized by the
overarching tenet that the mandate of the people
yields to the Constitution which the people
themselves ordained to govern all under the rule of
law.
. . . Allowing accused-appellant to attend

congressional sessions and committee meetings
for five (5) days or more in a week will virtually
make him a free man with all the privileges
appurtenant to his position. Such an aberrant
situation not only elevates accused-appellant's
status to that of a special class, it also would be a
mockery of the purposes of the correction system.
51
The performance of legitimate and even essential

duties by public officers has never been an excuse
to free a person validly in prison. The duties
imposed by the "mandate of the people" are
multifarious. The accused-appellant asserts that the
duty to legislate ranks highest in the hierarchy of
government. The accused-appellant is only one of
250 members of the House of Representatives, not
to mention the 24 members of the Senate, charged
with the duties of legislation. Congress continues to
function well in the physical absence of one or a
WHEREFORE, the petition is DISMISSED.

SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio,
Austria-Martinez, Corona, Azcuna, Tinga, ChicoNazario, Velasco, Jr., Nachura, Reyes, Leonardode Castro and Brion, JJ., concur.
394
Two days after, before the MTRCB, separate but

almost identical affidavit-complaints were lodged by
Jessie L. Galapon and seven other private
respondents, all members of the Iglesia ni Cristo
(INC), 2 against petitioner in connection with the
above broadcast. Respondent Michael M.
Sandoval, who felt directly alluded to in petitioner's
remark, was then a minister of INC and a regular
host of the TV program Ang Tamang Daan. 3
Forthwith, the MTRCB sent petitioner a notice of
the hearing on August 16, 2004 in relation to the
alleged use of some cuss words in the August 10,
2004 episode of Ang Dating Daan. 4 cDAISC
After a preliminary conference in which petitioner
appeared, the MTRCB, by Order of August 16,
2004, preventively suspended the showing of Ang
Dating Daan program for 20 days, in accordance
with Section 3 (d) of Presidential Decree No. (PD)
1986, creating the MTRCB, in relation to Sec. 3,
Chapter XIII of the 2004 Implementing Rules and
Regulations (IRR) of PD 1986 and Sec. 7, Rule VII
of the MTRCB Rules of Procedure. 5 The same
order also set the case for preliminary investigation.
The following day, petitioner sought reconsideration
of the preventive suspension order, praying that
Chairperson Consoliza P. Laguardia and two other
members of the adjudication board recuse
themselves from hearing the case. 6 Two days
after, however, petitioner sought to withdraw 7 his
motion for reconsideration, followed by the filing
with this Court of a petition for certiorari and
prohibition, 8 docketed as G.R. No. 164785, to
nullify the preventive suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04,
the MTRCB issued a decision, disposing as follows:
WHEREFORE, in view of all the foregoing, a
Decision is hereby rendered, finding respondent
Soriano liable for his utterances and thereby
imposing on him a penalty of three (3) months
suspension from his program, "Ang Dating Daan".
||| (Trillanes IV v. Pimentel, Sr., G.R. No. 179817,

[June 27, 2008], 578 PHIL 1002-1021)
2.
SORIANO VS. LAGUARDIA 587 SCRA 79

(2009)
EN BANC
[G.R. No. 164785. April 29, 2009.]
ELISEO
F.
SORIANO,
petitioner,vs.MA.
CONSOLIZA P. LAGUARDIA, in her capacity as
Chairperson of the Movie and Television Review
and
Classification
Board,
MOVIE
AND
TELEVISION REVIEW AND CLASSIFICATION
BOARD, JESSIE L. GALAPON, ANABEL M. DELA
CRUZ, MANUEL M. HERNANDEZ, JOSE L.
LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR.,MICHAEL M. SANDOVAL, and
ROLDAN A. GAVINO, respondents.
[G.R. No. 165636. April 29, 2009.]
ELISEO F. SORIANO,petitioner, vs. MOVIE AND
TELEVISION REVIEW AND CLASSIFICATION
BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINOGAVINO, NOEL R. DEL PRADO, EMMANUEL
BORLAZA, JOSE E. ROMERO IV, and
FLORIMONDO C. ROUS, in their capacity as
members of the Hearing and Adjudication
Committee of the MTRCB, JESSIE L. GALAPON,
ANABEL M. DELA CRUZ, MANUEL M.
HERNANDEZ, JOSE L. LOPEZ, CRISANTO
SORIANO, BERNABE S. YARIA, JR.,MICHAEL M.
SANDOVAL, and ROLDAN A. GAVINO, in their
capacity
as
complainants
before
the
MTRCB,respondents.
DECISION
VELASCO, JR.,J p:
Co-respondents Joselito Mallari, Luzviminda Cruz

and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.
In these two petitions for certiorari and prohibition

under Rule 65, petitioner Eliseo F. Soriano seeks to
nullify and set aside an order and a decision of the
Movie and Television Review and Classification
Board (MTRCB) in connection with certain
utterances he made in his television show, Ang
Dating Daan.
Facts of the Case
On August 10, 2004, at around 10:00
p.m.,petitioner, as host of the program Ang Dating
Daan, aired on UNTV 37, made the following
remarks:
Lehitimong anak ng demonyo; sinungaling;
SO ORDERED. 9
Petitioner then filed this petition for certiorari and
prohibition with prayer for injunctive relief, docketed
as G.R. No. 165636.
In a Resolution dated April 4, 2005, the Court
consolidated G.R. No. 164785 with G.R. No.
165636.
In G.R. No. 164785, petitioner raises the following
issues:
THE ORDER OF PREVENTIVE SUSPENSION
PROMULGATED BY RESPONDENT [MTRCB]
DATED 16 AUGUST 2004 AGAINST THE
TELEVISION PROGRAM ANG DATING DAAN ...IS
NULL AND VOID FOR BEING ISSUED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION
Gago ka talaga Michael, masahol ka pa sa putang

babae o di ba. Yung putang babae ang gumagana
lang doon yung ibaba, [dito] kay Michael ang
gumagana ang itaas, o di ba! O, masahol pa sa
putang babae yan. Sabi ng lola ko masahol pa sa
putang babae yan. Sobra ang kasinungalingan ng
mga demonyong ito. 1 ...
395
(A) BY REASON THAT THE [IRR] IS INVALID

INSOFAR AS IT PROVIDES FOR THE ISSUANCE
OF PREVENTIVE SUSPENSION ORDERS;
ACTS OF THE MTRCB PURSUANT THERETO,

I.E. DECISION DATED 27 SEPTEMBER 2004 AND
ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH 11
(B) BY REASON OF LACK OF DUE HEARING IN

THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE
PROTECTION UNDER THE LAW;
OF
G.R. No. 164785

We shall first dispose of the issues in G.R. No.
164785, regarding the assailed order of preventive
suspension, although its implementability had
already been overtaken and veritably been
rendered moot by the equally assailed September
27, 2004 decision.
It is petitioner's threshold posture that the
preventive suspension imposed against him and
the relevant IRR provision authorizing it are invalid
inasmuch as PD 1986 does not expressly authorize
the MTRCB to issue preventive suspension.
Petitioner's contention is untenable.
Administrative agencies have powers and functions
which may be administrative, investigatory,
regulatory, quasi-legislative, or quasi-judicial, or a
mix of the five, as may be conferred by the
Constitution or by statute. 12 They have in fine only
such powers or authority as are granted or
delegated, expressly or impliedly, by law. 13 And in
determining whether an agency has certain powers,
the inquiry should be from the law itself. But once
ascertained as existing, the authority given should
be liberally construed. 14
A perusal of the MTRCB's basic mandate under PD
1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged
order of preventive suspension. And this authority
stems naturally from, and is necessary for the
exercise of, its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the
following:
Section 3. Powers and Functions. The BOARD
shall have the following functions, powers and
duties:
EQUAL
(D) FOR BEING VIOLATIVE OF FREEDOM OF

RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF
SPEECH AND EXPRESSION. 10
In G.R. No. 165636, petitioner relies on the
following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY
UNCONSTITUTIONAL AND ENACTED WITHOUT
OR
IN
EXCESS
OF
JURISDICTION
...CONSIDERING THAT:
I
SECTION 3(C) OF [PD] 1986, AS APPLIED TO
PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF FREEDOM
OF RELIGION, SPEECH, AND EXPRESSION AS
IT PARTAKES OF THE NATURE OF A
SUBSEQUENT PUNISHMENT CURTAILING THE
SAME; CONSEQUENTLY, THE IMPLEMENTING
RULES AND REGULATIONS, RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER
DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN
THE CASE AT BENCH; SEcADa
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO
PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE
PROCESS OF LAW AND EQUAL PROTECTION
UNDER THE LAW; CONSEQUENTLY, THE
[IRR],RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT THERETO,
I.E.,DECISION DATED 27 SEPTEMBER 2004 AND
ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH; AND
xxx xxx xxx

c) To approve or disapprove, delete objectionable
portions from and/or prohibit the ...production,
...exhibition and/or television broadcast of the
motion pictures, television programs and publicity
materials subject of the preceding paragraph,
which, in the judgment of the board applying
contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines or its
people, or with a dangerous tendency to encourage
the commission of violence or of wrong or crime
such as but not limited to:
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND
DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD
FOR
ITS
IMPLEMENTATION
THEREBY
RESULTING
IN
AN
UNDUE
DELEGATION OF LEGISLATIVE POWER BY
REASON THAT IT DOES NOT PROVIDE FOR
THE PENALTIES FOR VIOLATIONS OF ITS
PROVISIONS.
CONSEQUENTLY,
THE
[IRR],RULES OF PROCEDURE, AND OFFICIAL
xxx xxx xxx

vi) Those which are libelous or defamatory to the
good name and reputation of any person, whether
living or dead;
xxx xxx xxx
396
(d) To supervise, regulate, and grant, deny or

cancel, permits for the ...production, copying,
distribution, sale, lease, exhibition, and/or television
broadcast of all motion pictures, television
programs and publicity materials, to the end that no
such pictures, programs and materials as are
determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be
...produced, copied, reproduced, distributed, sold,
leased, exhibited and/or broadcast by television;
issued shall have a life of not more than twenty (20)

days from the date of issuance.
But the mere absence of a provision on preventive
suspension in PD 1986, without more, would not
work to deprive the MTRCB a basic disciplinary
tool, such as preventive suspension. Recall that the
MTRCB is expressly empowered by statute to
regulate and supervise television programs to
obviate the exhibition or broadcast of, among
others, indecent or immoral materials and to
impose sanctions for violations and, corollarily, to
prevent further violations as it investigates.
Contrary to petitioner's assertion, the aforequoted
Sec. 3 of the IRR neither amended PD 1986 nor
extended the effect of the law. Neither did the
MTRCB, by imposing the assailed preventive
suspension, outrun its authority under the law. Far
from it. The preventive suspension was actually
done in furtherance of the law, imposed pursuant,
to repeat, to the MTRCB's duty of regulating or
supervising television programs, pending a
determination of whether or not there has actually
been a violation. In the final analysis, Sec. 3,
Chapter XIII of the 2004 IRR merely formalized a
power which PD 1986 bestowed, albeit impliedly,
on MTRCB.
Sec. 3 (c) and (d) of PD 1986 finds application to
the present case, sufficient to authorize the
MTRCB's assailed action. Petitioner's restrictive
reading of PD 1986, limiting the MTRCB to
functions within the literal confines of the law, would
give the agency little leeway to operate, stifling and
rendering it inutile, when Sec. 3 (k) of PD 1986
clearly intends to grant the MTRCB a wide room for
flexibility in its operation. Sec. 3 (k), we reiterate,
provides, "To exercise such powers and functions
as may be necessary or incidental to the attainment
of the purposes and objectives of this Act . . .."
Indeed, the power to impose preventive suspension
is one of the implied powers of MTRCB. As
distinguished from express powers, implied powers
are those that can be inferred or are implicit in the
wordings or conferred by necessary or fair
implication of the enabling act. 17 As we held in
Angara v. Electoral Commission, when a general
grant of power is conferred or a duty enjoined,
every particular power necessary for the exercise of
one or the performance of the other is also
conferred by necessary implication. 18 Clearly, the
power to impose preventive suspension pending
investigation is one of the implied or inherent
powers of MTRCB.
We cannot agree with petitioner's assertion that the
aforequoted
IRR
provision
on
preventive
suspension is applicable only to motion pictures
and publicity materials. The scope of the MTRCB's
authority extends beyond motion pictures. What the
acronym MTRCB stands for would suggest as
much. And while the law makes specific reference
to the closure of a television network, the
suspension of a television program is a far less
punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986.
Again, the MTRCB would regretfully be rendered
xxx xxx xxx

k) To exercise such powers and functions as may
be necessary or incidental to the attainment of the
purposes and objectives of this Act ....(Emphasis
added.)
The issuance of a preventive suspension comes
well within the scope of the MTRCB's authority and
functions expressly set forth in PD 1986, more
particularly under its Sec. 3 (d), as quoted above,
which empowers the MTRCB to "supervise,
regulate, and grant, deny or cancel, permits for
the . . . exhibition, and/or television broadcast of all
motion pictures, television programs and publicity
materials, to the end that no such pictures,
programs and materials as are determined by the
BOARD to be objectionable in accordance with
paragraph (c) hereof shall be . . . exhibited and/or
broadcast by television".
Surely, the power to issue preventive suspension
forms part of the MTRCB's express regulatory and
supervisory statutory mandate and its investigatory
and disciplinary authority subsumed in or implied
from such mandate. Any other construal would
render its power to regulate, supervise, or discipline
illusory.
Preventive suspension, it ought to be noted, is not
a penalty by itself, being merely a preliminary step
in an administrative investigation. 15 And the power
to discipline and impose penalties, if granted,
carries with it the power to investigate
administrative complaints and, during such
investigation, to preventively suspend the person
subject of the complaint. 16 ECaTDc
To reiterate, preventive suspension authority of the
MTRCB springs from its powers conferred under
PD 1986. The MTRCB did not, as petitioner
insinuates, empower itself to impose preventive
suspension through the medium of the IRR of PD
1986. It is true that the matter of imposing
preventive suspension is embodied only in the IRR
of PD 1986. Sec. 3, Chapter XIII of the IRR
provides:
Sec. 3. PREVENTIVE SUSPENSION ORDER.
Any time during the pendency of the case, and in
order to prevent or stop further violations or for the
interest and welfare of the public, the Chairman of
the Board may issue a Preventive Suspension
Order mandating the preventive ...suspension of
the permit/permits involved, and/or closure of
the ...television network, cable TV station
...provided that the temporary/preventive order thus
397
ineffective should it be subject to the restrictions

petitioner envisages.
Just as untenable is petitioner's argument on the
nullity of the preventive suspension order on the
ground of lack of hearing. As it were, the MTRCB
handed out the assailed order after petitioner, in
response to a written notice, appeared before that
Board for a hearing on private respondents'
complaint. No less than petitioner admitted that the
order was issued after the adjournment of the
hearing, 19 proving that he had already appeared
before the MTRCB. Under Sec. 3, Chapter XIII of
the IRR of PD 1986, preventive suspension shall
issue "[a]ny time during the pendency of the case".
In this particular case, it was done after MTRCB
duly apprised petitioner of his having possibly
violated PD 1986 20 and of administrative
complaints that had been filed against him for such
violation. 21
At any event, that preventive suspension can
validly be meted out even without a hearing. 22
Petitioner next faults the MTRCB for denying him
his right to the equal protection of the law, arguing
that, owing to the preventive suspension order, he
was unable to answer the criticisms coming from
the INC ministers.
Petitioner's position does not persuade. The equal
protection clause demands that "all persons subject
to legislation should be treated alike, under like
circumstances and conditions both in the privileges
conferred and liabilities imposed". 23 It guards
against undue favor and individual privilege as well
as hostile discrimination. 24 Surely, petitioner
cannot, under the premises, place himself in the
same shoes as the INC ministers, who, for one, are
not facing administrative complaints before the
MTRCB. For another, he offers no proof that the
said ministers, in their TV programs, use language
similar to that which he used in his own,
necessitating the MTRCB's disciplinary action. If
the immediate result of the preventive suspension
order is that petitioner remains temporarily gagged
and is unable to answer his critics, this does not
become a deprivation of the equal protection
guarantee. The Court need not belabor the fact that
the circumstances of petitioner, as host of Ang
Dating Daan, on one hand, and the INC ministers,
as hosts of Ang Tamang Daan, on the other, are,
within the purview of this case, simply too different
to even consider whether or not there is a prima
facie indication of oppressive inequality.
Petitioner next injects the notion of religious
freedom, submitting that what he uttered was
religious speech, adding that words like "putang
babae" were said in exercise of his religious
freedom.
The argument has no merit.
The Court is at a loss to understand how
petitioners utterances in question can come within
the pale of Sec. 5, Article III of the 1987
Constitution on religious freedom. The section
reads as follows:
No law shall be made respecting the establishment
of a religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious
profession and worship, without discrimination or

preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or
political rights. TcEaDS
There is nothing in petitioner's statements subject
of the complaints expressing any particular
religious belief, nothing furthering his avowed
evangelical mission. The fact that he came out with
his statements in a televised bible exposition
program does not automatically accord them the
character of a religious discourse. Plain and simple
insults directed at another person cannot be
elevated to the status of religious speech. Even
petitioner's attempts to place his words in context
show that he was moved by anger and the need to
seek retribution, not by any religious conviction. His
claim, assuming its veracity, that some INC
ministers distorted his statements respecting
amounts Ang Dating Daan owed to a TV station
does not convert the foul language used in
retaliation as religious speech. We cannot accept
that petitioner made his statements in defense of
his reputation and religion, as they constitute no
intelligible defense or refutation of the alleged lies
being spread by a rival religious group. They simply
illustrate that petitioner had descended to the level
of name-calling and foul-language discourse.
Petitioner could have chosen to contradict and
disprove his detractors, but opted for the low road.
Petitioner, as a final point in G.R. No. 164785,
would have the Court nullify the 20-day preventive
suspension order, being, as insisted, an
unconstitutional abridgement of the freedom of
speech and expression and an impermissible prior
restraint. The main issue tendered respecting the
adverted violation and the arguments holding such
issue dovetails with those challenging the threemonth suspension imposed under the assailed
September 27, 2004 MTRCB decision subject of
review under G.R. No. 165636. Both overlapping
issues and arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision
suspending him from hosting Ang Dating Daan for
three months on the main ground that the decision
violates, apart from his religious freedom, his
freedom of speech and expression guaranteed
under Sec. 4, Art. III of the Constitution, which
reads:
No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition
the government for redress of grievance.
He would also have the Court declare PD 1986, its
Sec. 3 (c) in particular, unconstitutional for reasons
articulated in this petition.
We are not persuaded as shall be explained
shortly. But first, we restate certain general
concepts and principles underlying the freedom of
speech and expression.
It is settled that expressions by means of
newspapers, radio, television, and motion pictures
come within the broad protection of the free speech
398
and expression clause. 25 Each method though,

because of its dissimilar presence in the lives of
people and accessibility to children, tends to
present its own problems in the area of free speech
protection, with broadcast media, of all forms of
communication, enjoying a lesser degree of
protection. 26 Just as settled is the rule that
restrictions, be it in the form of prior restraint, e.g.,
judicial injunction against publication or threat of
cancellation of license/franchise, or subsequent
liability, whether in libel and damage suits,
prosecution for sedition, or contempt proceedings,
are anathema to the freedom of expression. Prior
restraint means official government restrictions on
the press or other forms of expression in advance
of actual publication or dissemination. 27 The
freedom of expression, as with the other freedoms
encased in the Bill of Rights, is, however, not
absolute. It may be regulated to some extent to
serve important public interests, some forms of
speech not being protected. As has been held, the
limits of the freedom of expression are reached
when the expression touches upon matters of
essentially private concern. 28 In the oft-quoted
expression of Justice Holmes, the constitutional
guarantee "obviously was not intended to give
immunity for every possible use of language". 29
From Lucas v. Royo comes this line: "[T]he freedom
to express one's sentiments and belief does not
grant one the license to vilify in public the honor
and integrity of another. Any sentiments must be
expressed within the proper forum and with proper
regard for the rights of others". 30
Indeed, as noted in Chaplinsky v. State of New
Hampshire, 31 "there are certain well-defined and
narrowly limited classes of speech that are harmful,
the prevention and punishment of which has never
been thought to raise any Constitutional problems".
In net effect, some forms of speech are not
protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed
without running afoul of the freedom of speech
clause. 32 A speech would fall under the
unprotected type if the utterances involved are "no
essential part of any exposition of ideas, and are of
such slight social value as a step of truth that any
benefit that may be derived from them is clearly
outweighed by the social interest in order and
morality". 33 Being of little or no value, there is, in
dealing with or regulating them, no imperative call
for the application of the clear and present danger
rule or the balancing-of-interest test, they being
essentially modes of weighing competing values,
34 or, with like effect, determining which of the
clashing interests should be advanced.
Petitioner asserts that his utterance in question is a
protected form of speech.
The Court rules otherwise. It has been established
in this jurisdiction that unprotected speech or lowvalue expression refers to libelous statements,
obscenity or pornography, false or misleading
advertisement,
insulting
or
"fighting
words",i.e.,those which by their very utterance
inflict injury or tend to incite an immediate breach of
peace and expression endangering national

security.
The Court finds that petitioner's statement can be
treated as obscene, at least with respect to the
average child. Hence, it is, in that context,
unprotected speech. In Fernando v. Court of
Appeals, the Court expressed difficulty in
formulating a definition of obscenity that would
apply to all cases, but nonetheless stated the
ensuing observations on the matter:
There is no perfect definition of "obscenity" but the
latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to
the average person, applying contemporary
standards would find the work, taken as a whole,
appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic,
political, or scientific value. But, it would be a
serious misreading of Miller to conclude that the
trier of facts has the unbridled discretion in
determining what is "patently offensive"....What
remains clear is that obscenity is an issue proper
for judicial determination and should be treated on
a case to case basis and on the judge's sound
discretion. 35
Following the contextual lessons of the cited case
of Miller v. California, 36 a patently offensive
utterance would come within the pale of the term
obscenity should it appeal to the prurient interest of
an average listener applying contemporary
standards. HAaDTE
A cursory examination of the utterances
complained of and the circumstances of the case
reveal that to an average adult, the utterances
"Gago ka talaga ...,masahol ka pa sa putang babae
....Yung putang babae ang gumagana lang doon
yung ibaba, [dito] kay Michael ang gumagana ang
itaas, o di ba!" may not constitute obscene but
merely indecent utterances. They can be viewed as
figures of speech or merely a play on words. In the
context they were used, they may not appeal to the
prurient interests of an adult. The problem with the
challenged statements is that they were uttered in a
TV program that is rated "G" or for general
viewership, and in a time slot that would likely
reach even the eyes and ears of children.
While adults may have understood that the terms
thus used were not to be taken literally, children
could hardly be expected to have the same
discernment. Without parental guidance, the
unbridled use of such language as that of petitioner
in
a television
broadcast
could
corrupt
impressionable young minds. The term "putang
babae" means "a female prostitute",a term wholly
inappropriate for children, who could look it up in a
dictionary and just get the literal meaning, missing
the context within which it was used. Petitioner
further used the terms, "ang gumagana lang doon
yung ibaba", making reference to the female sexual
organ and how a female prostitute uses it in her
trade, then stating that Sandoval was worse than
399
that by using his mouth in a similar manner.

Children could be motivated by curiosity and ask
the meaning of what petitioner said, also without
placing the phrase in context. They may be
inquisitive as to why Sandoval is different from a
female prostitute and the reasons for the
dissimilarity. And upon learning the meanings of the
words used, young minds, without the guidance of
an adult, may, from their end, view this kind of
indecent speech as obscene, if they take these
words literally and use them in their own speech or
form their own ideas on the matter. In this particular
case, where children had the opportunity to hear
petitioner's words, when speaking of the average
person in the test for obscenity, we are speaking of
the average child, not the average adult. The
average child may not have the adult's grasp of
figures of speech, and may lack the understanding
that language may be colorful, and words may
convey more than the literal meaning. Undeniably
the subject speech is very suggestive of a female
sexual organ and its function as such. In this sense,
we find petitioner's utterances obscene and not
entitled to protection under the umbrella of freedom
of speech.
Even if we concede that petitioner's remarks are
not obscene but merely indecent speech, still the
Court rules that petitioner cannot avail himself of
the constitutional protection of free speech. Said
statements were made in a medium easily
accessible to children. With respect to the young
minds, said utterances are to be treated as
unprotected speech.
No doubt what petitioner said constitutes indecent
or offensive utterances. But while a jurisprudential
pattern involving certain offensive utterances
conveyed in different mediums has emerged, this
case is veritably one of first impression, it being the
first time that indecent speech communicated via
television and the applicable norm for its regulation
are, in this jurisdiction, made the focal point.
Federal Communications Commission (FCC) v.
Pacifica Foundation, 37 a 1978 American landmark
case cited in Eastern Broadcasting Corporation v.
Dans, Jr. 38 and Chavez v. Gonzales, 39 is a rich
source of persuasive lessons. Foremost of these
relates to indecent speech without prurient appeal
component coming under the category of protected
speech depending on the context within which it
was made, irresistibly suggesting that, within a
particular context, such indecent speech may
validly be categorized as unprotected, ergo,
susceptible to restriction.
In FCC, seven of what were considered "filthy"
words 40 earlier recorded in a monologue by a
satiric humorist later aired in the afternoon over a
radio station owned by Pacifica Foundation. Upon
the complaint of a man who heard the pre-recorded
monologue while driving with his son, FCC
declared the language used as "patently offensive"
and "indecent" under a prohibiting law, though not
necessarily obscene. FCC added, however, that its
declaratory order was issued in a "special factual
context",referring, in gist, to an afternoon radio
broadcast when children were undoubtedly in the
audience. Acting on the question of whether the

FCC could regulate the subject utterance, the US
Supreme Court ruled in the affirmative, owing to
two special features of the broadcast medium, to
wit: (1) radio is a pervasive medium and (2)
broadcasting is uniquely accessible to children. The
US Court, however, hastened to add that the
monologue would be protected speech in other
contexts, albeit it did not expound and identify a
compelling state interest in putting FCC's contentbased regulatory action under scrutiny.
The Court in Chavez 41 elucidated on the
distinction between regulation or restriction of
protected speech that is content-based and that
which is content-neutral. A content-based restraint
is aimed at the contents or idea of the expression,
whereas a content-neutral restraint intends to
regulate the time, place, and manner of the
expression under well-defined standards tailored to
serve a compelling state interest, without restraint
on the message of the expression. Courts subject
content-based restraint to strict scrutiny.
With the view we take of the case, the suspension
MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this
disposition against the backdrop of the following
interplaying factors: First, the indecent speech was
made via television, a pervasive medium that, to
borrow from Gonzales v. Kalaw Katigbak, 42 easily
"reaches every home where there is a set [and
where] [c]hildren will likely be among the avid
viewers of the programs therein shown";second,
the broadcast was aired at the time of the day when
there was a reasonable risk that children might be
in the audience; and third, petitioner uttered his
speech on a "G" or "for general patronage" rated
program. Under Sec. 2 (A) of Chapter IV of the IRR
of the MTRCB, a show for general patronage is
"[s]uitable for all ages",meaning that the "material
for television ...in the judgment of the BOARD, does
not contain anything unsuitable for children and
minors, and may be viewed without adult guidance
or supervision".The words petitioner used were, by
any civilized norm, clearly not suitable for children.
Where a language is categorized as indecent, as in
petitioner's utterances on a general-patronage
rated TV program, it may be readily proscribed as
unprotected speech. aEcTDI
A view has been advanced that unprotected speech
refers only to pornography, 43 false or misleading
advertisement, 44 advocacy of imminent lawless
action, and expression endangering national
security. But this list is not, as some members of
the Court would submit, exclusive or carved in
stone. Without going into specifics, it may be stated
without fear of contradiction that US decisional law
goes beyond the aforesaid general exceptions. As
the Court has been impelled to recognize
exceptions to the rule against censorship in the
past, this particular case constitutes yet another
exception, another instance of unprotected speech,
created by the necessity of protecting the welfare of
our children. As unprotected speech, petitioners
utterances can be subjected to restraint or
regulation.
400
Despite the settled ruling in FCC which has

remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear
and present danger of bringing about a substantive
evil the State has a right and duty to prevent and
such danger must be grave and imminent. 45
Petitioner's invocation of the clear and present
danger doctrine, arguably the most permissive of
speech tests, would not avail him any relief, for the
application of said test is uncalled for under the
premises. The doctrine, first formulated by Justice
Holmes, accords protection for utterances so that
the printed or spoken words may not be subject to
prior restraint or subsequent punishment unless its
expression creates a clear and present danger of
bringing about a substantial evil which the
government has the power to prohibit. 46 Under the
doctrine, freedom of speech and of press is
susceptible of restriction when and only when
necessary to prevent grave and immediate danger
to interests which the government may lawfully
protect. As it were, said doctrine evolved in the
context of prosecutions for rebellion and other
crimes involving the overthrow of government. 47 It
was originally designed to determine the latitude
which should be given to speech that espouses
anti-government action, or to have serious and
substantial deleterious consequences on the
security and public order of the community. 48 The
clear and present danger rule has been applied to
this jurisdiction. 49 As a standard of limitation on
free speech and press, however, the clear and
present danger test is not a magic incantation that
wipes out all problems and does away with analysis
and judgment in the testing of the legitimacy of
claims to free speech and which compels a court to
release a defendant from liability the moment the
doctrine is invoked, absent proof of imminent
catastrophic disaster. 50 As we observed in Eastern
Broadcasting Corporation, the clear and present
danger test "does not lend itself to a simplistic and
all embracing interpretation applicable to all
utterances in all forums". 51
To be sure, the clear and present danger doctrine is
not the only test which has been applied by the
courts. Generally, said doctrine is applied to cases
involving the overthrow of the government and
even other evils which do not clearly undermine
national security. Since not all evils can be
measured in terms of "proximity and degree" the
Court, however, in several cases Ayer
Productions v. Capulong 52 and Gonzales v.
COMELEC, 53 applied the balancing of interests
test. Former Chief Justice Fred Ruiz Castro, in
Gonzales v. COMELEC, elucidated in his Separate
Opinion that "where the legislation under
constitutional attack interferes with the freedom of
speech and assembly in a more generalized way
and where the effect of the speech and assembly in
terms of the probability of realization of a specific
danger is not susceptible even of impressionistic
calculation", 54 then the "balancing of interests"
test can be applied.
The Court explained also in Gonzales v. COMELEC
the "balancing of interests" test:
When particular conduct is regulated in the interest

of public order, and the regulation results in an
indirect, conditional, partial abridgment of speech,
the duty of the courts is to determine which of the
two conflicting interests demands the greater
protection under the particular circumstances
presented. ...We must, therefore, undertake the
"delicate and difficult task ...to weigh the
circumstances and to appraise the substantiality of
the reasons advanced in support of the regulation
of the free enjoyment of rights ....
In enunciating standard premised on a judicial
balancing of the conflicting social values and
individual interests competing for ascendancy in
legislation which restricts expression, the court in
Douds laid the basis for what has been called the
"balancing-of-interests" test which has found
application in more recent decisions of the U.S.
Supreme Court. Briefly stated, the "balancing" test
requires a court to take conscious and detailed
consideration of the interplay of interests
observable in a given situation or type of situation.
xxx xxx xxx
Although the urgency of the public interest sought
to be secured by Congressional power restricting
the individual's freedom, and the social importance
and value of the freedom so restricted, "are to be
judged in the concrete, not on the basis of
abstractions",a wide range of factors are
necessarily relevant in ascertaining the point or line
of equilibrium. Among these are (a) the social value
and importance of the specific aspect of the
particular freedom restricted by the legislation; (b)
the specific thrust of the restriction, i.e.,whether the
restriction is direct or indirect, whether or not the
persons affected are few; (c) the value and
importance of the public interest sought to be
secured by the legislation the reference here is
to the nature and gravity of the evil which Congress
seeks to prevent; (d) whether the specific restriction
decreed by Congress is reasonably appropriate
and necessary for the protection of such public
interest; and (e) whether the necessary
safeguarding of the public interest involved may be
achieved by some other measure less restrictive of
the protected freedom. 55
This balancing of interest test, to borrow from
Professor Kauper, 56 rests on the theory that it is
the court's function in a case before it when it finds
public interests served by legislation, on the one
hand, and the free expression clause affected by it,
on the other, to balance one against the other and
arrive at a judgment where the greater weight shall
be placed. If, on balance, it appears that the public
interest served by restrictive legislation is of such
nature that it outweighs the abridgment of freedom,
then the court will find the legislation valid. In short,
the balance-of-interests theory rests on the basis
that constitutional freedoms are not absolute, not
even those stated in the free speech and
expression clause, and that they may be abridged
401
to some extent to serve appropriate and important

interests. 57 To the mind of the Court, the balancing
of interest doctrine is the more appropriate test to
follow. ASIDTa
In the case at bar, petitioner used indecent and
obscene language and a three (3)-month
suspension was slapped on him for breach of
MTRCB rules. In this setting, the assertion by
petitioner of his enjoyment of his freedom of speech
is ranged against the duty of the government to
protect and promote the development and welfare
of the youth.
After a careful examination of the factual milieu and
the arguments raised by petitioner in support of his
claim to free speech, the Court rules that the
government's interest to protect and promote the
interests and welfare of the children adequately
buttresses the reasonable curtailment and valid
restraint on petitioner's prayer to continue as
program host of Ang Dating Daan during the
suspension period.
No doubt, one of the fundamental and most vital
rights granted to citizens of a State is the freedom
of speech or expression, for without the enjoyment
of such right, a free, stable, effective, and
progressive democratic state would be difficult to
attain. Arrayed against the freedom of speech is the
right of the youth to their moral, spiritual,
intellectual, and social being which the State is
constitutionally tasked to promote and protect.
Moreover, the State is also mandated to recognize
and support the vital role of the youth in nation
building as laid down in Sec. 13, Art. II of the 1987
Constitution.
The Constitution has, therefore, imposed the
sacred obligation and responsibility on the State to
provide protection to the youth against illegal or
improper activities which may prejudice their
general well-being. The Article on youth, approved
on second reading by the Constitutional
Commission, explained that the State shall "extend
social protection to minors against all forms of
neglect, cruelty, exploitation, immorality, and
practices which may foster racial, religious or other
forms of discrimination". 58
Indisputably, the State has a compelling interest in
extending social protection to minors against all
forms of neglect, exploitation, and immorality which
may pollute innocent minds. It has a compelling
interest in helping parents, through regulatory
mechanisms, protect their children's minds from
exposure to undesirable materials and corrupting
experiences. The Constitution, no less, in fact
enjoins the State, as earlier indicated, to promote
and protect the physical, moral, spiritual,
intellectual, and social well-being of the youth to
better prepare them fulfill their role in the field of
nation-building. 59 In the same way, the State is
mandated to support parents in the rearing of the
youth for civic efficiency and the development of
moral character. 60
Petitioner's offensive and obscene language
uttered in a television broadcast, without doubt,
was easily accessible to the children. His
statements could have exposed children to a
language that is unacceptable in everyday use. As

such, the welfare of children and the State's
mandate to protect and care for them, as parens
patriae, 61 constitute a substantial and compelling
government interest in regulating petitioner's
utterances in TV broadcast as provided in PD 1986.
FCC explains the duty of the government to act as
parens patriae to protect the children who, because
of age or interest capacity, are susceptible of being
corrupted or prejudiced by offensive language,
thus:
[B]roadcasting is uniquely accessible to children,
even those too young to read. Although Cohen's
written message, ["Fuck the Draft"],might have
been incomprehensible to a first grader, Pacifica's
broadcast could have enlarged a child's vocabulary
in an instant. Other forms of offensive expression
may be withheld from the young without restricting
the expression at its source. Bookstores and
motion picture theaters, for example, may be
prohibited from making indecent material available
to children. We held in Ginsberg v. New York that
the government's interest in the "well-being of its
youth" and in supporting "parents' claim to authority
in their own household" justified the regulation of
otherwise protected expression. The ease with
which children may obtain access to broadcast
material, coupled with the concerns recognized in
Ginsberg, amply justify special treatment of
indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise
stressed the duty of the State to attend to the
welfare of the young:
...It is the consensus of this Court that where
television is concerned, a less liberal approach
calls for observance. This is so because unlike
motion pictures where the patrons have to pay their
way, television reaches every home where there is
a set. Children then will likely will be among the
avid viewers of the programs therein shown. As
was observed by Circuit Court of Appeals Judge
Jerome Frank, it is hardly the concern of the law to
deal with the sexual fantasies of the adult
population. It cannot be denied though that the
State as parens patriae is called upon to manifest
an attitude of caring for the welfare of the young. 62
The compelling need to protect the young impels us
to sustain the regulatory action MTRCB took in the
narrow confines of the case. To reiterate, FCC
justified the restraint on the TV broadcast grounded
on the following considerations: (1) the use of
television with its unique accessibility to children, as
a medium of broadcast of a patently offensive
speech; (2) the time of broadcast; and (3) the "G"
rating of the Ang Dating Daan program. And in
agreeing with MTRCB, the court takes stock of and
cites with approval the following excerpts from
FCC:
It is appropriate, in conclusion, to emphasize the
narrowness of our holding. This case does not
involve a two-way radio conversation between a
cab driver and a dispatcher, or a telecast of an
Elizabethan comedy. We have not decided that an
402
occasional expletive in either setting would justify

any sanction. ...The [FFC's] decision rested entirely
on a nuisance rationale under which context is all
important. The concept requires consideration of a
host of variables. The time of day was emphasized
by the [FFC].The content of the program in which
the language is used will affect the composition of
the audience ....As Mr. Justice Sutherland wrote a
'nuisance may be merely a right thing in the wrong
place, like a pig in the parlor instead of the
barnyard'.We simply hold that when the [FCC] finds
that a pig has entered the parlor, the exercise of its
regulatory power does not depend on proof that the
pig is obscene. (Citation omitted.)
internal belief. Television is a medium that reaches

even the eyes and ears of children. The Court
iterates the rule that the exercise of religious
freedom can be regulated by the State when it will
bring about the clear and present danger of some
substantive evil which the State is duty bound to
prevent, i.e.,serious detriment to the more
overriding interest of public health, public morals, or
public welfare. ...
xxx xxx xxx
While the thesis has a lot to commend itself, we are
not ready to hold that [PD 1986] is unconstitutional
for Congress to grant an administrative body quasijudicial power to preview and classify TV programs
and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this setup in
Sotto vs. Ruiz, viz.:
There can be no quibbling that the remarks in

question petitioner uttered on prime-time television
are blatantly indecent if not outright obscene. It is
the kind of speech that PD 1986 proscribes
necessitating the exercise by MTRCB of statutory
disciplinary powers. It is the kind of speech that the
State has the inherent prerogative, nay duty, to
regulate and prevent should such action served
and further compelling state interests. One who
utters indecent, insulting, or offensive words on
television when unsuspecting children are in the
audience is, in the graphic language of FCC, a "pig
in the parlor".Public interest would be served if the
"pig" is reasonably restrained or even removed
from the "parlor".ADEacC
Ergo, petitioner's offensive and indecent language
can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month
suspension is either prior restraint or subsequent
punishment that, however, includes prior restraint,
albeit indirectly.
After a review of the facts, the Court finds that what
MTRCB imposed on petitioner is an administrative
sanction or subsequent punishment for his
offensive and obscene language in Ang Dating
Daan.
To clarify, statutes imposing prior restraints on
speech are generally illegal and presumed
unconstitutional breaches of the freedom of
speech. The exceptions to prior restraint are
movies, television, and radio broadcast censorship
in view of its access to numerous people, including
the young who must be insulated from the
prejudicial effects of unprotected speech. PD 1986
was passed creating the Board of Review for
Motion Pictures and Television (now MTRCB) and
which requires prior permit or license before
showing a motion picture or broadcasting a TV
program. The Board can classify movies and
television programs and can cancel permits for
exhibition of films or television broadcast.
The power of MTRCB to regulate and even impose
some prior restraint on radio and television shows,
even religious programs, was upheld in Iglesia Ni
Cristo v. Court of Appeals. Speaking through Chief
Justice Reynato S. Puno, the Court wrote:
We thus reject petitioner's postulate that its
religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its
religious program brings it out of the bosom of
"The use of the mails by private persons is in the

nature of a privilege which can be regulated in
order to avoid its abuse. Persons possess no
absolute right to put into the mail anything they
please, regardless of its character." 63
Bernas adds:
Under the decree a movie classification board is
made the arbiter of what movies and television
programs or parts of either are fit for public
consumption. It decides what movies are "immoral,
indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the
Philippines or its people",and what "tend to incite
subversion, insurrection, rebellion or sedition",or
"tend to undermine the faith and confidence of the
people in their government and/or duly constituted
authorities",etc. Moreover, its decisions are
executory unless stopped by a court. 64
Moreover, in MTRCB v. ABS-CBN Broadcasting
Corporation, 65 it was held that the power of review
and prior approval of MTRCB extends to all
television programs and is valid despite the
freedom of speech guaranteed by the Constitution.
Thus, all broadcast networks are regulated by the
MTRCB since they are required to get a permit
before they air their television programs.
Consequently, their right to enjoy their freedom of
speech is subject to that requirement. As lucidly
explained by Justice Dante O. Tinga, government
regulations through the MTRCB became "a
necessary evil" with the government taking the role
of assigning bandwidth to individual broadcasters.
The stations explicitly agreed to this regulatory
scheme; otherwise, chaos would result in the
television broadcast industry as competing
broadcasters will interfere or co-opt each other's
signals. In this scheme, station owners and
broadcasters in effect waived their right to the full
enjoyment of their right to freedom of speech in
radio and television programs and impliedly agreed
that said right may be subject to prior restraint
403
denial of permit or subsequent punishment, like

suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not
a prior restraint on the right of petitioner to continue
with the broadcast of Ang Dating Daan as a permit
was already issued to him by MTRCB for such
broadcast. Rather, the suspension is in the form of
permissible administrative sanction or subsequent
punishment for the offensive and obscene remarks
he uttered on the evening of August 10, 2004 in his
television program, Ang Dating Daan. It is a
sanction that the MTRCB may validly impose under
its charter without running afoul of the free speech
clause. And the imposition is separate and distinct
from the criminal action the Board may take
pursuant to Sec. 3 (i) of PD 1986 and the remedies
that may be availed of by the aggrieved private
party under the provisions on libel or tort, if
applicable. As FCC teaches, the imposition of
sanctions on broadcasters who indulge in profane
or indecent broadcasting does not constitute
forbidden censorship. Lest it be overlooked, the
sanction imposed is not per se for petitioner's
exercise of his freedom of speech via television, but
for the indecent contents of his utterances in a "G"
rated TV program.
More importantly, petitioner is deemed to have
yielded his right to his full enjoyment of his freedom
of speech to regulation under PD 1986 and its IRR
as television station owners, program producers,
and hosts have impliedly accepted the power of
MTRCB to regulate the broadcast industry.
Neither can petitioner's virtual inability to speak in
his program during the period of suspension be
plausibly treated as prior restraint on future speech.
For viewed in its proper perspective, the
suspension is in the nature of an intermediate
penalty for uttering an unprotected form of speech.
It is definitely a lesser punishment than the
permissible cancellation of exhibition or broadcast
permit or license. In fine, the suspension meted
was simply part of the duties of the MTRCB in the
enforcement and administration of the law which it
is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past
speech made on prime-time "G" rated TV program;
it does not bar future speech of petitioner in other
television programs; it is a permissible subsequent
administrative sanction; it should not be confused
with a prior restraint on speech. While not on all
fours, the Court, in MTRCB, 66 sustained the
power of the MTRCB to penalize a broadcast
company for exhibiting/airing a pre-taped TV
episode without Board authorization in violation of
Sec. 7 of PD 1986. IcDHaT
Any simplistic suggestion, however, that the
MTRCB would be crossing the limits of its authority
were it to regulate and even restrain the prime-time
television broadcast of indecent or obscene speech
in a "G" rated program is not acceptable. As made
clear in Eastern Broadcasting Corporation, "the
freedom of television and radio broadcasting is
somewhat lesser in scope than the freedom
accorded to newspaper and print media".The
MTRCB, as a regulatory agency, must have the
wherewithal to enforce its mandate, which would

not be effective if its punitive actions would be
limited to mere fines. Television broadcasts should
be subject to some form of regulation, considering
the ease with which they can be accessed, and
violations of the regulations must be met with
appropriate and proportional disciplinary action.
The suspension of a violating television program
would be a sufficient punishment and serve as a
deterrent for those responsible. The prevention of
the broadcast of petitioner's television program is
justified, and does not constitute prohibited prior
restraint. It behooves the Court to respond to the
needs of the changing times, and craft
jurisprudence to reflect these times.
Petitioner, in questioning the three-month
suspension, also tags as unconstitutional the very
law creating the MTRCB, arguing that PD 1986, as
applied to him, infringes also upon his freedom of
religion. The Court has earlier adequately explained
why petitioner's undue reliance on the religious
freedom cannot lend justification, let alone an
exempting dimension to his licentious utterances in
his program. The Court sees no need to address
anew the repetitive arguments on religious
freedom. As earlier discussed in the disposition of
the petition in G.R. No. 164785, what was uttered
was in no way a religious speech. Parenthetically,
petitioner's attempt to characterize his speech as a
legitimate defense of his religion fails miserably. He
tries to place his words in perspective, arguing
evidently as an afterthought that this was his
method of refuting the alleged distortion of his
statements by the INC hosts of Ang Tamang Daan.
But on the night he uttered them in his television
program, the word simply came out as profane
language, without any warning or guidance for
undiscerning ears.
As to petitioner's other argument about having
been denied due process and equal protection of
the law, suffice it to state that we have at length
debunked similar arguments in G.R. No. 164785.
There is no need to further delve into the fact that
petitioner was afforded due process when he
attended the hearing of the MTRCB, and that he
was unable to demonstrate that he was unjustly
discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue
delegation of legislative power, as PD 1986 does
not provide for the range of imposable penalties
that may be applied with respect to violations of the
provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of
undue delegation of legislative power in the
following wise:
It is a fundamental principle flowing from the
doctrine of separation of powers that Congress may
not delegate its legislative power to the two other
branches of the government, subject to the
exception that local governments may over local
affairs participate in its exercise. What cannot be
delegated is the authority under the Constitution to
make laws and to alter and repeal them; the test is
the completeness of the statute in all its term and
404
provisions when it leaves the hands of the

legislature. To determine whether or not there is an
undue delegation of legislative power, the inquiry
must be directed to the scope and definiteness of
the measure enacted. The legislature does not
abdicate its functions when it describes what job
must be done, who is to do it, and what is the
scope of his authority. For a complex economy, that
may indeed be the only way in which the legislative
process can go forward. A distinction has rightfully
been made between delegation of power to make
laws which necessarily involves a discretion as to
what it shall be, which constitutionally may not be
done, and delegation of authority or discretion as to
its execution to be exercised under and in
pursuance of the law, to which no valid objection
can be made. The Constitution is thus not to be
regarded as denying the legislature the necessary
resources of flexibility and practicability.
meaningless grant if it did not carry with it the

power to penalize the supervised or the regulated
as may be proportionate to the offense committed,
charged, and proved. As the Court said in Chavez
v. National Housing Authority: cDSAEI
...[W]hen a general grant of power is conferred or
duty enjoined, every particular power necessary for
the exercise of the one or the performance of the
other is also conferred. ...[W]hen the statute does
not specify the particular method to be followed or
used by a government agency in the exercise of the
power vested in it by law, said agency has the
authority to adopt any reasonable method to carry
out its function. 68
Given the foregoing perspective, it stands to reason
that the power of the MTRCB to regulate and
supervise the exhibition of TV programs carries
with it or necessarily implies the authority to take
effective punitive action for violation of the law
sought to be enforced. And would it not be logical
too to say that the power to deny or cancel a permit
for the exhibition of a TV program or broadcast
necessarily includes the lesser power to suspend?
To avoid the taint of unlawful delegation, there must

be a standard, which implies at the very least that
the legislature itself determines matters of principle
and lays down fundamental policy. Otherwise, the
charge of complete abdication may be hard to
repel. A standard thus defines legislative policy,
marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates
the circumstances under which the legislative
command is to be effected. It is the criterion by
which legislative purpose may be carried out.
Thereafter, the executive or administrative office
designated may in pursuance of the above
guidelines promulgate supplemental rules and
regulations. 67
The MTRCB promulgated the IRR of PD 1986 in

accordance with Sec. 3(a) which, for reference,
provides that agency with the power "[to]
promulgate such rules and regulations as are
necessary or proper for the implementation of this
Act, and the accomplishment of its purposes and
objectives . . . ". And Chapter XIII, Sec. 1 of the IRR
providing:
Section 1.VIOLATIONS AND ADMINISTRATIVE
SANCTIONS. Without prejudice to the
immediate filing of the appropriate criminal action
and the immediate seizure of the pertinent articles
pursuant to Section 13, any violation of PD 1986
and its Implementing Rules and Regulations
governing motion pictures, television programs, and
related promotional materials shall be penalized
with suspension or cancellation of permits and/or
licenses issued by the Board and/or with the
imposition of fines and other administrative
penalty/penalties. The Board recognizes the
existing Table of Administrative Penalties attached
without prejudice to the power of the Board to
amend it when the need arises. In the meantime
the existing revised Table of Administrative
Penalties shall be enforced. (Emphasis added.)
Based on the foregoing pronouncements and

analyzing the law in question, petitioner's
protestation about undue delegation of legislative
power for the sole reason that PD 1986 does not
provide for a range of penalties for violation of the
law is untenable. His thesis is that MTRCB, in
promulgating the IRR of PD 1986, prescribing a
schedule of penalties for violation of the provisions
of the decree, went beyond the terms of the law.
Petitioner's posture is flawed by the erroneous
assumptions holding it together, the first
assumption being that PD 1986 does not prescribe
the imposition of, or authorize the MTRCB to
impose, penalties for violators of PD 1986. As
earlier indicated, however, the MTRCB, by express
and direct conferment of power and functions, is
charged with supervising and regulating, granting,
denying, or canceling permits for the exhibition
and/or television broadcast of all motion pictures,
television programs, and publicity materials to the
end that no such objectionable pictures, programs,
and materials shall be exhibited and/or broadcast
by television. Complementing this provision is Sec.
3 (k) of the decree authorizing the MTRCB "to
exercise such powers and functions as may be
necessary or incidental to the attainment of the
purpose and objectives of [the law]". As earlier
explained, the investiture of supervisory, regulatory,
and disciplinary power would surely be a
This is, in the final analysis, no more than a

measure to specifically implement the aforequoted
provisions of Sec. 3 (d) and (k).Contrary to what
petitioner implies, the IRR does not expand the
mandate of the MTRCB under the law or partake of
the nature of an unauthorized administrative
legislation. The MTRCB cannot shirk its
responsibility to regulate the public airwaves and
employ such means as it can as a guardian of the
public.
In Sec. 3 (c), one can already find the permissible
actions of the MTRCB, along with the standards to
be applied to determine whether there have been
405
statutory breaches. The MTRCB may evaluate

motion pictures, television programs, and publicity
materials "applying contemporary Filipino cultural
values as standard", and, from there, determine
whether these audio and video materials "are
objectionable for being immoral, indecent, contrary
to law and/or good customs, [etc.] . . ." and apply
the sanctions it deems proper. The lawmaking body
cannot possibly provide for all the details in the
enforcement of a particular statute. 69 The grant of
the rule-making power to administrative agencies is
a relaxation of the principle of separation of powers
and is an exception to the non-delegation of
legislative powers. 70 Administrative regulations or
"subordinate legislation" calculated to promote the
public interest are necessary because of "the
growing complexity of modern life, the multiplication
of the subjects of governmental regulations, and
the increased difficulty of administering the law". 71
Allowing the MTRCB some reasonable elbow-room
in its operations and, in the exercise of its statutory
disciplinary functions, according it ample latitude in
fixing, by way of an appropriate issuance,
administrative penalties with due regard for the
severity of the offense and attending mitigating or
aggravating circumstances, as the case may be,
would be consistent with its mandate to effectively
and efficiently regulate the movie and television
industry.
But even as we uphold the power of the MTRCB to
review and impose sanctions for violations of PD
1986, its decision to suspend petitioner must be
modified, for nowhere in that issuance, particularly
the power-defining Sec. 3 nor in the MTRCB
Schedule of Administrative Penalties effective
January 1, 1999 is the Board empowered to
suspend the program host or even to prevent
certain people from appearing in television
programs. The MTRCB, to be sure, may prohibit
the broadcast of such television programs or cancel
permits for exhibition, but it may not suspend
television personalities, for such would be beyond
its jurisdiction. The MTRCB cannot extend its
exercise of regulation beyond what the law
provides. Only persons, offenses, and penalties
clearly falling clearly within the letter and spirit of
PD 1986 will be considered to be within the
decree's penal or disciplinary operation. And when
it exists, the reasonable doubt must be resolved in
favor of the person charged with violating the
statute and for whom the penalty is sought. Thus,
the MTRCB's decision in Administrative Case No.
01-04 dated September 27, 2004 and the
subsequent order issued pursuant to said decision
must be modified. The suspension should cover
only the television program on which petitioner
appeared and uttered the offensive and obscene
language, which sanction is what the law and the
facts obtaining call for.
In ending, what petitioner obviously advocates is an
unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioner's flawed
belief that he may simply utter gutter profanity on
television without adverse consequences, under
the guise of free speech, does not lend itself to
acceptance in this jurisdiction. We repeat: freedoms

of speech and expression are not absolute
freedoms. To say "any act that restrains speech
should be greeted with furrowed brows" is not to
say that any act that restrains or regulates speech
or expression is per se invalid. This only recognizes
the importance of freedoms of speech and
expression, and indicates the necessity to carefully
scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm.
Case No. 01-04 dated September 27, 2004 is
hereby AFFIRMED with the MODIFICATION of
limiting the suspension to the program Ang Dating
Daan. As thus modified, the fallo of the MTRCB
shall read as follows:
WHEREFORE, in view of all the foregoing, a
Decision is hereby rendered, imposing a penalty of
THREE (3) MONTHS SUSPENSION on the
television program, Ang Dating Daan, subject of the
instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz,
and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence. DIEAHc
Costs against petitioner.
SO ORDERED.
Ynares-Santiago,
Chico-Nazario,
Nachura,
Leonardo-de Castro, Peralta and Bersamin, JJ.,
concur.
Puno, C.J.,see Dissent.
Quisumbing, J.,certifies that J. Quisumbing joined
J. Carpio.
Carpio, J.,see Dissenting Opinion.
Austria-Martinez, J.,joins Justice Tinga in his
concurring opinion.
Corona, J.,please see separate opinion.
Carpio Morales, J.,joins J. Puno and J. Carpio in
their separate dissents.
Tinga, J.,please see concurring opinion.
Brion, J.,joins separate opinion of Justice Renato
Corona.
||| (Soriano v. Laguardia, G.R. No. 164785, 165636,
[April 29, 2009], 605 PHIL 43-193)
3. CHAMBER OF REAL VS. ROMULO 614
SCRA 605 (2010)
EN BANC
[G.R. No. 160756. March 9, 2010.]
CHAMBER OF REAL ESTATE AND BUILDERS'
ASSOCIATIONS, INC., petitioner, vs. THE HON.
406
EXECUTIVE SECRETARY ALBERTO ROMULO,

THE HON. ACTING SECRETARY OF FINANCE
JUANITA D. AMATONG, and THE HON.
COMMISSIONER OF INTERNAL REVENUE
GUILLERMO PARAYNO, JR., respondents.
(3) whether or not the imposition of CWT on income

from sales of real properties classified as ordinary
assets under RRs 2-98, 6-2001 and 7-2003, is
unconstitutional.
OVERVIEW OF THE ASSAILED PROVISIONS
Under the MCIT scheme, a corporation, beginning
on its fourth year of operation, is assessed an MCIT
of 2% of its gross income when such MCIT is
greater than the normal corporate income tax
imposed under Section 27 (A). 4 If the regular
income tax is higher than the MCIT, the corporation
does not pay the MCIT. Any excess of the MCIT
over the normal tax shall be carried forward and
credited against the normal income tax for the three
immediately succeeding taxable years. Section 27
(E) of RA 8424 provides:
Section 27 (E). [MCIT] on Domestic Corporations.
DECISION
CORONA, J p:
In this original petition for certiorari and mandamus,
1 petitioner Chamber of Real Estate and Builders'
Associations,
Inc.
is
questioning
the
constitutionality of Section 27 (E) of Republic Act
(RA) 8424 2 and the revenue regulations (RRs)
issued by the Bureau of Internal Revenue (BIR) to
implement said provision and those involving
creditable withholding taxes. 3
Petitioner is an association of real estate
developers and builders in the Philippines. It
impleaded former Executive Secretary Alberto
Romulo, then acting Secretary of Finance Juanita
D. Amatong and then Commissioner of Internal
Revenue Guillermo Parayno, Jr. as respondents.
Petitioner assails the validity of the imposition of
minimum corporate income tax (MCIT) on
corporations and creditable withholding tax (CWT)
on sales of real properties classified as ordinary
assets.
Section 27 (E) of RA 8424 provides for MCIT on
domestic corporations and is implemented by RR
9-98. Petitioner argues that the MCIT violates the
due process clause because it levies income tax
even if there is no realized gain.
Petitioner also seeks to nullify Sections 2.57.2 (J)
(as amended by RR 6-2001) and 2.58.2 of RR 298, and Section 4 (a) (ii) and (c) (ii) of RR 7-2003,
all of which prescribe the rules and procedures for
the collection of CWT on the sale of real properties
categorized as ordinary assets. Petitioner contends
that these revenue regulations are contrary to law
for two reasons: first, they ignore the different
treatment by RA 8424 of ordinary assets and
capital assets and second, respondent Secretary of
Finance has no authority to collect CWT, much
less, to base the CWT on the gross selling price or
fair market value of the real properties classified as
ordinary assets. TCIEcH
Petitioner also asserts that the enumerated
provisions of the subject revenue regulations
violate the due process clause because, like the
MCIT, the government collects income tax even
when the net income has not yet been determined.
They contravene the equal protection clause as
well because the CWT is being levied upon real
estate enterprises but not on other business
enterprises, more particularly those in the
manufacturing sector.
The issues to be resolved are as follows:
(1) whether or not this Court should take
cognizance of the present case;
(1) Imposition of Tax. A [MCIT] of two percent

(2%) of the gross income as of the end of the
taxable year, as defined herein, is hereby imposed
on a corporation taxable under this Title, beginning
on the fourth taxable year immediately following the
year in which such corporation commenced its
business operations, when the minimum income
tax is greater than the tax computed under
Subsection (A) of this Section for the taxable year.
(2) Carry Forward of Excess Minimum Tax. Any
excess of the [MCIT] over the normal income tax as
computed under Subsection (A) of this Section
shall be carried forward and credited against the
normal income tax for the three (3) immediately
succeeding taxable years.
(3) Relief from the [MCIT] under certain conditions.
The Secretary of Finance is hereby authorized to
suspend the imposition of the [MCIT] on any
corporation which suffers losses on account of
prolonged labor dispute, or because of force
majeure, or because of legitimate business
reverses.
The Secretary of Finance is hereby authorized to
promulgate, upon recommendation of the
Commissioner, the necessary rules and regulations
that shall define the terms and conditions under
which he may suspend the imposition of the [MCIT]
in a meritorious case.
(4) Gross Income Defined. For purposes of
applying the [MCIT] provided under Subsection (E)
hereof, the term 'gross income' shall mean gross
sales less sales returns, discounts and allowances
and cost of goods sold. "Cost of goods sold" shall
include all business expenses directly incurred to
produce the merchandise to bring them to their
present location and use.
For trading or merchandising concern, "cost of
goods sold" shall include the invoice cost of the
goods sold, plus import duties, freight in
transporting the goods to the place where the
(2) whether or not the imposition of the MCIT on

domestic corporations is unconstitutional and
407
goods are actually sold including insurance while

the goods are in transit. cSTHaE
Meanwhile, on April 17, 1998, respondent

Secretary, upon recommendation of respondent
CIR, promulgated RR 2-98 implementing certain
provisions of RA 8424 involving the withholding of
taxes. 6 Under Section 2.57.2 (J) of RR No. 2-98,
income payments from the sale, exchange or
transfer of real property, other than capital assets,
by persons residing in the Philippines and
habitually engaged in the real estate business were
subjected to CWT:
Sec. 2.57.2. Income payment subject to [CWT] and
rates prescribed thereon:
For a manufacturing concern, "cost of goods

manufactured and sold" shall include all costs of
production of finished goods, such as raw materials
used, direct labor and manufacturing overhead,
freight cost, insurance premiums and other costs
incurred to bring the raw materials to the factory or
warehouse.
In the case of taxpayers engaged in the sale of
service, "gross income" means gross receipts less
sales returns, allowances, discounts and cost of
services. "Cost of services" shall mean all direct
costs and expenses necessarily incurred to provide
the services required by the customers and clients
including (A) salaries and employee benefits of
personnel, consultants and specialists directly
rendering the service and (B) cost of facilities
directly utilized in providing the service such as
depreciation or rental of equipment used and cost
of supplies: Provided, however, that in the case of
banks, "cost of services" shall include interest
expense.
xxx xxx xxx

(J) Gross selling price or total amount of
consideration or its equivalent paid to the
seller/owner for the sale, exchange or transfer of.
Real property, other than capital assets, sold by
an individual, corporation, estate, trust, trust fund or
pension fund and the seller/transferor is habitually
engaged in the real estate business in accordance
with the following schedule
Those which are exempt from a
Exempt
xxx
xxx
xxx
withholding tax at source as
On August 25, 1998, respondent Secretary of

Finance (Secretary), on the recommendation of the
Commissioner of Internal Revenue (CIR),
promulgated RR 9-98 implementing Section 27 (E).
5 The pertinent portions thereof read:
Sec. 2.27(E). [MCIT] on Domestic Corporations.
prescribed in Sec. 2.57.5 of

Gross selling price shall mean
these regulations.
(1) Imposition of the Tax. A [MCIT] of two percent

(2%) of the gross income as of the end of the
taxable year (whether calendar or fiscal year,
depending on the accounting period employed) is
hereby imposed upon any domestic corporation
beginning the fourth (4th) taxable year immediately
following the taxable year in which such corporation
commenced its business operations. The MCIT
shall be imposed whenever such corporation has
zero or negative taxable income or whenever the
amount of minimum corporate income tax is greater
than the normal income tax due from such
corporation.
the consideration stated in the

sales document or the fair
With a selling price of five
1.5%
market value determined in
hundred thousand pesos
accordance with Section 6 (E)
(P500,000.00) or less.
of the Code, as amended,
For purposes of these Regulations, the term,

"normal income tax" means the income tax rates
prescribed under Sec. 27 (A) and Sec. 28 (A) (1) of
the Code xxx at 32% effective January 1, 2000 and
thereafter.
whichever is higher. In an
With a selling price of more
3.0%
exchange, the fair market
than five hundred thousand
xxx xxx xxx

(2) Carry forward of excess [MCIT]. Any excess
of the [MCIT] over the normal income tax as
computed under Sec. 27(A) of the Code shall be
carried forward on an annual basis and credited
against the normal income tax for the three (3)
immediately succeeding taxable years.
value of the property received

pesos (P500,000.00) but not
in exchange, as determined
more than two million pesos
in the Income Tax
(P2,000,000.00).
xxx xxx xxx
Regulations shall be used.

408
With selling price of more

5.0%
Where the consideration or part
than two million pesos
thereof
is
payable on installment,
(P2,000,000.00)
no withholding tax is
required to
be made on the periodic installment
payments where the buyer is an
individual not engaged in trade or
business. In such a case, the
applicable rate of tax based on
the entire consideration shall be
withheld on the last installment
or installments to be paid to the
seller.
However, if the buyer is engaged
in trade or business, whether a
corporation or otherwise, the tax
shall be deducted and withheld
by the buyer on every installment.
This provision was amended by RR 6-2001 on July
31, 2001:
Sec. 2.57.2. Income payment subject to [CWT] and
rates prescribed thereon:
an exchange, the fair market value of the property

received in exchange shall be considered as the
consideration.
xxx xxx xxx
However, if the buyer is engaged in trade or
business, whether a corporation or otherwise, these
rules shall apply:
(i) If the sale is a sale of property on the installment
plan (that is, payments in the year of sale do not
exceed 25% of the selling price), the tax shall be
deducted and withheld by the buyer on every
installment.
(ii) If, on the other hand, the sale is on a "cash
basis" or is a "deferred-payment sale not on the
installment plan" (that is, payments in the year of
sale exceed 25% of the selling price), the buyer
shall withhold the tax based on the gross selling
price or fair market value of the property, whichever
is higher, on the first installment.
In any case, no Certificate Authorizing Registration
(CAR) shall be issued to the buyer unless the
[CWT] due on the sale, transfer or exchange of real
property other than capital asset has been fully
paid. (Underlined amendments in the original)
xxx xxx xxx

(J) Gross selling price or total amount of
consideration or its equivalent paid to the
seller/owner for the sale, exchange or transfer of
real property classified as ordinary asset. A
[CWT] based on the gross selling price/total
amount of consideration or the fair market value
determined in accordance with Section 6(E) of the
Code, whichever is higher, paid to the seller/owner
for the sale, transfer or exchange of real property,
other than capital asset, shall be imposed upon the
withholding agent,/buyer, in accordance with the
following schedule: CIcEHS
Section 2.58.2 of RR 2-98 implementing Section 58

(E) of RA 8424 provides that any sale, barter or
exchange subject to the CWT will not be recorded
by the Registry of Deeds until the CIR has certified
that such transfers and conveyances have been
reported and the taxes thereof have been duly paid:
7
Sec. 2.58.2. Registration with the Register of
Deeds. Deeds of conveyances of land or land
and building/improvement thereon arising from
sales, barters, or exchanges subject to the
creditable expanded withholding tax shall not be
recorded by the Register of Deeds unless the [CIR]
or his duly authorized representative has certified
that such transfers and conveyances have been
reported and the expanded withholding tax,
inclusive of the documentary stamp tax, due
thereon have been fully paid . . . .
Where the seller/transferor is exempt from [CWT] in

accordance with Sec. 2.57.5 of these regulations.
Exempt
Upon the following values of real property, where
the seller/transferor is habitually engaged in the
real estate business.
With a selling price of Five Hundred Thousand
Pesos (P500,000.00) or less. 1.5%
On February 11, 2003, RR No. 7-2003 8 was

promulgated, providing for the guidelines in
determining whether a particular real property is a
capital or an ordinary asset for purposes of
imposing the MCIT, among others. The pertinent
portions thereof state:
Section 4. Applicable taxes on sale, exchange or
other disposition of real property. Gains/Income
derived from sale, exchange, or other disposition of
real properties shall, unless otherwise exempt, be
subject to applicable taxes imposed under the
Code, depending on whether the subject properties
are classified as capital assets or ordinary assets;
With a selling price of more than Five Hundred

Thousand Pesos (P500,000.00) but not more than
Two Million Pesos (P2,000,000.00). 3.0%
With a selling price of more than two Million Pesos
(P2,000,000.00). 5.0%
xxx xxx xxx
Gross selling price shall remain the consideration
stated in the sales document or the fair market
value determined in accordance with Section 6 (E)
of the Code, as amended, whichever is higher. In
409
a. In the case of individual citizen (including estates

and trusts), resident aliens, and non-resident aliens
engaged in trade or business in the Philippines;
actually and adversely affected it. Lacking empirical

data on which to base any conclusion, any
discussion on the constitutionality of the MCIT or
CWT on sales of real property is essentially an
academic exercise.
xxx xxx xxx

(ii) The sale of real property located in the
Philippines, classified as ordinary assets, shall be
subject to the [CWT] (expanded) under Sec.
2.57.2(J) of [RR 2-98], as amended, based on the
gross selling price or current fair market value as
determined in accordance with Section 6(E) of the
Code, whichever is higher, and consequently, to the
ordinary income tax imposed under Sec. 24(A)(1)
(c) or 25(A)(1) of the Code, as the case may be,
based on net taxable income.
Perceived or alleged hardship to taxpayers alone is

not an adequate justification for adjudicating
abstract issues. Otherwise, adjudication would be
no different from the giving of advisory opinion that
does not really settle legal issues. 10
An actual case or controversy involves a conflict of
legal rights or an assertion of opposite legal claims
which is susceptible of judicial resolution as
distinguished from a hypothetical or abstract
difference or dispute. 11 On the other hand, a
question is considered ripe for adjudication when
the act being challenged has a direct adverse effect
on the individual challenging it. 12
Contrary to respondents' assertion, we do not have
to wait until petitioner's members have shut down
their operations as a result of the MCIT or CWT.
The assailed provisions are already being
implemented. As we stated in Didipio Earth-Savers'
Multi-Purpose Association, Incorporated (DESAMA)
v. Gozun: 13
By the mere enactment of the questioned law or the
approval of the challenged act, the dispute is said
to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is
enough to awaken judicial duty. 14
xxx xxx xxx

c. In the case of domestic corporations.
xxx xxx xxx
(ii) The sale of land and/or building classified as
ordinary asset and other real property (other than
land and/or building treated as capital asset),
regardless of the classification thereof, all of which
are located in the Philippines, shall be subject to
the [CWT] (expanded) under Sec. 2.57.2(J) of [RR
2-98], as amended, and consequently, to the
ordinary income tax under Sec. 27(A) of the Code.
In lieu of the ordinary income tax, however,
domestic corporations may become subject to the
[MCIT] under Sec. 27(E) of the Code, whichever is
applicable.
If
the
assailed
provisions
are
indeed
unconstitutional, there is no better time than the
present to settle such question once and for all.
Respondents next argue that petitioner has no legal
standing to sue:
Petitioner is an association of some of the real
estate developers and builders in the Philippines.
Petitioners did not allege that [it] itself is in the real
estate business. It did not allege any material
interest or any wrong that it may suffer from the
enforcement of [the assailed provisions]. 15
xxx xxx xxx

We shall now tackle the issues raised.
EXISTENCE OF A JUSTICIABLE CONTROVERSY
Courts will not assume jurisdiction over a
constitutional question unless the following
requisites are satisfied: (1) there must be an actual
case calling for the exercise of judicial review; (2)
the question before the court must be ripe for
adjudication; (3) the person challenging the validity
of the act must have standing to do so; (4) the
question of constitutionality must have been raised
at the earliest opportunity and (5) the issue of
constitutionality must be the very lis mota of the
case. 9 SCETHa
Respondents aver that the first three requisites are
absent in this case. According to them, there is no
actual case calling for the exercise of judicial power
and it is not yet ripe for adjudication because
[petitioner] did not allege that CREBA, as a
corporate entity, or any of its members, has been
assessed by the BIR for the payment of [MCIT] or
[CWT] on sales of real property. Neither did
petitioner allege that its members have shut down
their businesses as a result of the payment of the
MCIT or CWT. Petitioner has raised concerns in
mere abstract and hypothetical form without any
actual, specific and concrete instances cited that
the assailed law and revenue regulations have
Legal standing or locus standi is a party's personal

and substantial interest in a case such that it has
sustained or will sustain direct injury as a result of
the governmental act being challenged. 16 In Holy
Spirit Homeowners Association, Inc. v. Defensor, 17
we held that the association had legal standing
because its members stood to be injured by the
enforcement of the assailed provisions:
Petitioner association has the legal standing to
institute the instant petition . . . . There is no dispute
that the individual members of petitioner
association are residents of the NGC. As such they
are covered and stand to be either benefited or
injured by the enforcement of the IRR, particularly
as regards the selection process of beneficiaries
and lot allocation to qualified beneficiaries. Thus,
petitioner association may assail those provisions
in the IRR which it believes to be unfavorable to the
rights of its members. . . . Certainly, petitioner and
410
its members have sustained direct injury arising

from the enforcement of the IRR in that they have
been disqualified and eliminated from the selection
process. 18
been losing for the past five years to ten years,

then that corporation has no business to be in
business. It is dead. Why continue if you are losing
year in and year out? So, we have this provision to
avoid this type of tax shelters, Your Honor. 24
In any event, this Court has the discretion to take

cognizance of a suit which does not satisfy the
requirements of an actual case, ripeness or legal
standing when paramount public interest is
involved. 19 The questioned MCIT and CWT affect
not only petitioners but practically all domestic
corporate taxpayers in our country. The
transcendental importance of the issues raised and
their overreaching significance to society make it
proper for us to take cognizance of this petition. 20
CONCEPT AND RATIONALE OF THE MCIT
The MCIT on domestic corporations is a new
concept introduced by RA 8424 to the Philippine
taxation system. It came about as a result of the
perceived inadequacy of the self-assessment
system in capturing the true income of
corporations. 21 It was devised as a relatively
simple and effective revenue-raising instrument
compared to the normal income tax which is more
difficult to control and enforce. It is a means to
ensure that everyone will make some minimum
contribution to the support of the public sector. The
congressional deliberations on this are illuminating:
Senator Enrile.
The primary purpose of any legitimate business is

to earn a profit. Continued and repeated losses
after operations of a corporation or consistent
reports of minimal net income render its financial
statements and its tax payments suspect. For sure,
certain tax avoidance schemes resorted to by
corporations are allowed in our jurisdiction. The
MCIT serves to put a cap on such tax shelters. As a
tax on gross income, it prevents tax evasion and
minimizes tax avoidance schemes achieved
through sophisticated and artful manipulations of
deductions and other stratagems. Since the tax
base was broader, the tax rate was lowered.
To further emphasize the corrective nature of the
MCIT, the following safeguards were incorporated
into the law: TAECSD
First, recognizing the birth pangs of businesses and
the reality of the need to recoup initial major capital
expenditures, the imposition of the MCIT
commences only on the fourth taxable year
immediately following the year in which the
corporation commenced its operations. 25 This
grace period allows a new business to stabilize first
and make its ventures viable before it is subjected
to the MCIT. 26
Second, the law allows the carrying forward of any
excess of the MCIT paid over the normal income
tax which shall be credited against the normal
income tax for the three immediately succeeding
years. 27
Third, since certain businesses may be incurring
genuine repeated losses, the law authorizes the
Secretary of Finance to suspend the imposition of
MCIT if a corporation suffers losses due to
prolonged labor dispute, force majeure and
legitimate business reverses. 28
Even before the legislature introduced the MCIT to
the Philippine taxation system, several other
countries already had their own system of minimum
corporate income taxation. Our lawmakers noted
that most developing countries, particularly Latin
American and Asian countries, have the same form
of safeguards as we do. As pointed out during the
committee hearings:
[Mr. Medalla:] Note that most developing countries
where you have of course quite a bit of room for
underdeclaration of gross receipts have this same
form of safeguards.
Mr. President, we are not unmindful of the practice

of certain corporations of reporting constantly a loss
in their operations to avoid the payment of taxes,
and thus avoid sharing in the cost of government.
In this regard, the Tax Reform Act introduces for the
first time a new concept called the [MCIT] so as to
minimize tax evasion, tax avoidance, tax
manipulation in the country and for administrative
convenience. . . . This will go a long way in
ensuring that corporations will pay their just share
in supporting our public life and our economic
advancement. 22
Domestic corporations owe their corporate
existence and their privilege to do business to the
government. They also benefit from the efforts of
the government to improve the financial market and
to ensure a favorable business climate. It is
therefore fair for the government to require them to
make a reasonable contribution to the public
expenses.
Congress intended to put a stop to the practice of
corporations which, while having large turn-overs,
report minimal or negative net income resulting in
minimal or zero income taxes year in and year out,
through under-declaration of income or overdeduction of expenses otherwise called tax
shelters. 23
Mr. Javier (E.)
In the case of Thailand, half a percent (0.5%),

there's a minimum of income tax of half a percent
(0.5%) of gross assessable income. In Korea a
25% of taxable income before deductions and
exemptions. Of course the different countries have
different basis for that minimum income tax.
. . . [This] is what the Finance Dept. is trying to

remedy, that is why they have proposed the [MCIT].
Because from experience too, you have
corporations which have been losing year in and
year out and paid no tax. So, if the corporation has
The other thing you'll notice is the preponderance

of Latin American countries that employed this
411
method. Okay, those are additional Latin American

countries. 29
considering that it is not a fixed rule but rather a

broad standard, there is a need for proof of such
persuasive character. 43
Petitioner is correct in saying that income is distinct
from capital. 44 Income means all the wealth which
flows into the taxpayer other than a mere return on
capital. Capital is a fund or property existing at one
distinct point in time while income denotes a flow of
wealth during a definite period of time. 45 Income is
gain derived and severed from capital. 46 For
income to be taxable, the following requisites must
exist:
(1) there must be gain;
At present, the United States of America, Mexico,

Argentina, Tunisia, Panama and Hungary have
their own versions of the MCIT. 30
MCIT IS NOT VIOLATIVE OF DUE PROCESS
Petitioner claims that the MCIT under Section 27
(E) of RA 8424 is unconstitutional because it is
highly oppressive, arbitrary and confiscatory which
amounts to deprivation of property without due
process of law. It explains that gross income as
defined under said provision only considers the
cost of goods sold and other direct expenses; other
major expenditures, such as administrative and
interest expenses which are equally necessary to
produce gross income, were not taken into account.
31 Thus, pegging the tax base of the MCIT to a
corporation's gross income is tantamount to a
confiscation of capital because gross income,
unlike net income, is not "realized gain." 32
We disagree.
Taxes are the lifeblood of the government. Without
taxes, the government can neither exist nor endure.
The exercise of taxing power derives its source
from the very existence of the State whose social
contract with its citizens obliges it to promote public
interest and the common good. 33
Taxation is an inherent attribute of sovereignty. 34 It
is a power that is purely legislative. 35 Essentially,
this means that in the legislature primarily lies the
discretion to determine the nature (kind), object
(purpose), extent (rate), coverage (subjects) and
situs (place) of taxation. 36 It has the authority to
prescribe a certain tax at a specific rate for a
particular public purpose on persons or things
within its jurisdiction. In other words, the legislature
wields the power to define what tax shall be
imposed, why it should be imposed, how much tax
shall be imposed, against whom (or what) it shall
be imposed and where it shall be imposed.
As a general rule, the power to tax is plenary and
unlimited in its range, acknowledging in its very
nature no limits, so that the principal check against
its abuse is to be found only in the responsibility of
the legislature (which imposes the tax) to its
constituency who are to pay it. 37 Nevertheless, it
is circumscribed by constitutional limitations. At the
same time, like any other statute, tax legislation
carries a presumption of constitutionality.
The constitutional safeguard of due process is
embodied in the fiat "[no] person shall be deprived
of life, liberty or property without due process of
law." In Sison, Jr. v. Ancheta, et al., 38 we held that
the due process clause may properly be invoked to
invalidate, in appropriate cases, a revenue
measure 39 when it amounts to a confiscation of
property. 40 But in the same case, we also
explained that we will not strike down a revenue
measure as unconstitutional (for being violative of
the due process clause) on the mere allegation of
arbitrariness by the taxpayer. 41 There must be a
factual foundation to such an unconstitutional taint.
42 This merely adheres to the authoritative doctrine
that, where the due process clause is invoked,
(2) the gain must be realized or received and

(3) the gain must not be excluded by law or treaty
from taxation. 47
Certainly, an income tax is arbitrary and
confiscatory if it taxes capital because capital is not
income. In other words, it is income, not capital,
which is subject to income tax. However, the MCIT
is not a tax on capital.
The MCIT is imposed on gross income which is
arrived at by deducting the capital spent by a
corporation in the sale of its goods, i.e., the cost of
goods 48 and other direct expenses from gross
sales. Clearly, the capital is not being taxed.
Furthermore, the MCIT is not an additional tax
imposition. It is imposed in lieu of the normal net
income tax, and only if the normal income tax is
suspiciously low. The MCIT merely approximates
the amount of net income tax due from a
corporation, pegging the rate at a very much
reduced 2% and uses as the base the corporation's
gross income.
Besides, there is no legal objection to a broader tax
base or taxable income by eliminating all deductible
items and at the same time reducing the applicable
tax rate. 49
Statutes taxing the gross "receipts," "earnings," or
"income" of particular corporations are found in
many jurisdictions. Tax thereon is generally held to
be within the power of a state to impose; or
constitutional, unless it interferes with interstate
commerce or violates the requirement as to
uniformity of taxation. 50 cSDHEC
The United States has a similar alternative
minimum tax (AMT) system which is generally
characterized by a lower tax rate but a broader tax
base. 51 Since our income tax laws are of
American origin, interpretations by American courts
of our parallel tax laws have persuasive effect on
the interpretation of these laws. 52 Although our
MCIT is not exactly the same as the AMT, the policy
behind them and the procedure of their
implementation are comparable. On the question of
the AMT's constitutionality, the United States Court
of Appeals for the Ninth Circuit stated in Okin v.
Commissioner: 53
In enacting the minimum tax, Congress attempted
to remedy general taxpayer distrust of the system
412
growing from large numbers of taxpayers with large

incomes who were yet paying no taxes.
the law also states that the MCIT is to be paid only

if it is greater than the normal net income.
Obviously, it may well be the case that the MCIT
would be less than the net income of the
corporation which posts a zero or negative taxable
income.
We now proceed to the issues involving the CWT.
The withholding tax system is a procedure through
which taxes (including income taxes) are collected.
61 Under Section 57 of RA 8424, the types of
income subject to withholding tax are divided into
three categories: (a) withholding of final tax on
certain incomes; (b) withholding of creditable tax at
source and (c) tax-free covenant bonds. Petitioner
is concerned with the second category (CWT) and
maintains that the revenue regulations on the
collection of CWT on sale of real estate categorized
as ordinary assets are unconstitutional.
Petitioner, after enumerating the distinctions
between capital and ordinary assets under RA
8424, contends that Sections 2.57.2 (J) and 2.58.2
of RR 2-98 and Sections 4 (a) (ii) and (c) (ii) of RR
7-2003 were promulgated "with grave abuse of
discretion amounting to lack of jurisdiction" and
"patently in contravention of law" 62 because they
ignore such distinctions. Petitioner's conclusion is
based on the following premises: (a) the revenue
regulations use gross selling price (GSP) or fair
market value (FMV) of the real estate as basis for
determining the income tax for the sale of real
estate classified as ordinary assets and (b) they
mandate the collection of income tax on a per
transaction basis, i.e., upon consummation of the
sale via the CWT, contrary to RA 8424 which calls
for the payment of the net income at the end of the
taxable period. 63
Petitioner theorizes that since RA 8424 treats
capital assets and ordinary assets differently,
respondents cannot disregard the distinctions set
by the legislators as regards the tax base, modes of
collection and payment of taxes on income from the
sale of capital and ordinary assets.
Petitioner's arguments have no merit.
AUTHORITY OF THE SECRETARY OF FINANCE
TO ORDER THE COLLECTION OF CWT ON
SALES OF REAL PROPERTY CONSIDERED AS
ORDINARY ASSETS
The Secretary of Finance is granted, under Section
244 of RA 8424, the authority to promulgate the
necessary rules and regulations for the effective
enforcement of the provisions of the law. Such
authority is subject to the limitation that the rules
and regulations must not override, but must remain
consistent and in harmony with, the law they seek
to apply and implement. 64 It is well-settled that an
administrative agency cannot amend an act of
Congress. 65
We have long recognized that the method of
withholding tax at source is a procedure of
collecting income tax which is sanctioned by our tax
laws. 66 The withholding tax system was devised
for three primary reasons: first, to provide the
taxpayer a convenient manner to meet his probable
income tax liability; second, to ensure the collection
of income tax which can otherwise be lost or
xxx xxx xxx

We thus join a number of other courts in upholding
the constitutionality of the [AMT]. . . . [It] is a
rational means of obtaining a broad-based tax, and
therefore is constitutional. 54
The U.S. Court declared that the congressional
intent to ensure that corporate taxpayers would
contribute a minimum amount of taxes was a
legitimate governmental end to which the AMT bore
a reasonable relation. 55
American courts have also emphasized that
Congress has the power to condition, limit or deny
deductions from gross income in order to arrive at
the net that it chooses to tax. 56 This is because
deductions are a matter of legislative grace. 57
Absent any other valid objection, the assignment of
gross income, instead of net income, as the tax
base of the MCIT, taken with the reduction of the
tax rate from 32% to 2%, is not constitutionally
objectionable.
Moreover, petitioner does not cite any actual,
specific and concrete negative experiences of its
members nor does it present empirical data to
show that the implementation of the MCIT resulted
in the confiscation of their property.
In sum, petitioner failed to support, by any factual
or legal basis, its allegation that the MCIT is
arbitrary and confiscatory. The Court cannot strike
down a law as unconstitutional simply because of
its yokes. 58 Taxation is necessarily burdensome
because, by its nature, it adversely affects property
rights. 59 The party alleging the law's
unconstitutionality has the burden to demonstrate
the supposed violations in understandable terms.
60
RR 9-98 MERELY CLARIFIES
SECTION 27 (E) OF RA 8424
Petitioner alleges that RR 9-98 is a deprivation of
property without due process of law because the
MCIT is being imposed and collected even when
there is actually a loss, or a zero or negative
taxable income:
Sec. 2.27(E). [MCIT] on Domestic Corporations.
(1) Imposition of the Tax. . . . The MCIT shall be
imposed whenever such corporation has zero or
negative taxable income or whenever the amount
of [MCIT] is greater than the normal income tax due
from such corporation. (Emphasis supplied)
RR 9-98, in declaring that MCIT should be imposed
whenever such corporation has zero or negative
taxable income, merely defines the coverage of
Section 27 (E). This means that even if a
corporation incurs a net loss in its business
operations or reports zero income after deducting
its expenses, it is still subject to an MCIT of 2% of
its gross income. This is consistent with the law
which imposes the MCIT on gross income
notwithstanding the amount of the net income. But
413
substantially reduced through failure to file the

corresponding returns and third, to improve the
government's cash flow. 67 This results in
administrative savings, prompt and efficient
collection of taxes, prevention of delinquencies and
reduction of governmental effort to collect taxes
through more complicated means and remedies. 68
Respondent Secretary has the authority to require
the withholding of a tax on items of income payable
to any person, national or juridical, residing in the
Philippines. Such authority is derived from Section
57 (B) of RA 8424 which provides: ICTDEa
SEC. 57. Withholding of Tax at Source.
subject to applicable taxes imposed under the

Code, depending on whether the subject properties
are classified as capital assets or ordinary assets;
xxx xxx xxx
a. In the case of individual citizens (including
estates and trusts), resident aliens, and nonresident aliens engaged in trade or business in the
Philippines;
xxx xxx xxx
(ii) The sale of real property located in the
Philippines, classified as ordinary assets, shall be
subject to the [CWT] (expanded) under Sec.
2.57.2(j) of [RR 2-98], as amended, based on the
[GSP] or current [FMV] as determined in
accordance with Section 6(E) of the Code,
whichever is higher, and consequently, to the
ordinary income tax imposed under Sec. 24(A)(1)
(c) or 25(A)(1) of the Code, as the case may be,
based on net taxable income.
xxx xxx xxx

(B) Withholding of Creditable Tax at Source. The
[Secretary] may, upon the recommendation of the
[CIR], require the withholding of a tax on the items
of income payable to natural or juridical persons,
residing
in
the
Philippines,
by
payorcorporation/persons as provided for by law, at the
rate of not less than one percent (1%) but not more
than thirty-two percent (32%) thereof, which shall
be credited against the income tax liability of the
taxpayer for the taxable year.
xxx xxx xxx

c. In the case of domestic corporations.
The questioned provisions of RR 2-98, as

amended, are well within the authority given by
Section 57(B) to the Secretary, i.e., the graduated
rate of 1.5%-5% is between the 1%-32% range; the
withholding tax is imposed on the income payable
and the tax is creditable against the income tax
liability of the taxpayer for the taxable year.
EFFECT OF RRS ON THE TAX BASE FOR THE
INCOME
TAX
OF
INDIVIDUALS
OR
CORPORATIONS ENGAGED IN THE REAL
ESTATE BUSINESS
Petitioner maintains that RR 2-98, as amended,
arbitrarily shifted the tax base of a real estate
business' income tax from net income to GSP or
FMV of the property sold.
Petitioner is wrong.
The taxes withheld are in the nature of advance tax
payments by a taxpayer in order to extinguish its
possible tax obligation. 69 They are installments on
the annual tax which may be due at the end of the
taxable year. 70
Under RR 2-98, the tax base of the income tax from
the sale of real property classified as ordinary
assets remains to be the entity's net income
imposed under Section 24 (resident individuals) or
Section 27 (domestic corporations) in relation to
Section 31 of RA 8424, i.e. gross income less
allowable deductions. The CWT is to be deducted
from the net income tax payable by the taxpayer at
the end of the taxable year. 71 Precisely, Section 4
(a) (ii) and (c) (ii) of RR 7-2003 reiterate that the tax
base for the sale of real property classified as
ordinary assets remains to be the net taxable
income:
Section 4. Applicable taxes on sale, exchange or
other disposition of real property. Gains/Income
derived from sale, exchange, or other disposition of
real properties shall unless otherwise exempt, be
The sale of land and/or building classified as

ordinary asset and other real property (other than
land and/or building treated as capital asset),
regardless of the classification thereof, all of which
are located in the Philippines, shall be subject to
the [CWT] (expanded) under Sec. 2.57.2(J) of [RR
2-98], as amended, and consequently, to the
ordinary income tax under Sec. 27(A) of the Code.
In lieu of the ordinary income tax, however,
domestic corporations may become subject to the
[MCIT] under Sec. 27(E) of the same Code,
whichever is applicable. (Emphasis supplied)
Accordingly, at the end of the year, the
taxpayer/seller shall file its income tax return and
credit the taxes withheld (by the withholding
agent/buyer) against its tax due. If the tax due is
greater than the tax withheld, then the taxpayer
shall pay the difference. If, on the other hand, the
tax due is less than the tax withheld, the taxpayer
will be entitled to a refund or tax credit.
Undoubtedly, the taxpayer is taxed on its net
income.
The use of the GSP/FMV as basis to determine the
withholding taxes is evidently for purposes of
practicality and convenience. Obviously, the
withholding agent/buyer who is obligated to
withhold the tax does not know, nor is he privy to,
how much the taxpayer/seller will have as its net
income at the end of the taxable year. Instead, said
withholding agent's knowledge and privity are
limited only to the particular transaction in which he
is a party. In such a case, his basis can only be the
GSP or FMV as these are the only factors
reasonably known or knowable by him in
connection with the performance of his duties as a
withholding agent.
414
NO BLURRING OF DISTINCTIONS BETWEEN

ORDINARY ASSETS AND CAPITAL ASSETS
RR 2-98 imposes a graduated CWT on income
based on the GSP or FMV of the real property
categorized as ordinary assets. On the other hand,
Section 27 (D) (5) of RA 8424 imposes a final tax
and flat rate of 6% on the gain presumed to be
realized from the sale of a capital asset based on
its GSP or FMV. This final tax is also withheld at
source. 72
The differences between the two forms of
withholding tax, i.e., creditable and final, show that
ordinary assets are not treated in the same manner
as capital assets. Final withholding tax (FWT) and
CWT are distinguished as follows: caHASI
manner and time of filing of the return, payment

and assessment of income tax involving ordinary
assets. 75
The fact that the tax is withheld at source does not
automatically mean that it is treated exactly the
same way as capital gains. As aforementioned, the
mechanics of the FWT are distinct from those of the
CWT. The withholding agent/buyer's act of
collecting the tax at the time of the transaction by
withholding the tax due from the income payable is
the essence of the withholding tax method of tax
collection.
NO RULE THAT ONLY PASSIVE
INCOMES CAN BE SUBJECT TO CWT
Petitioner submits that only passive income can be
subjected to withholding tax, whether final or
creditable. According to petitioner, the whole of
Section 57 governs the withholding of income tax
on passive income. The enumeration in Section 57
(A) refers to passive income being subjected to
FWT. It follows that Section 57 (B) on CWT should
also be limited to passive income:
SEC. 57. Withholding of Tax at Source.
FWT
CWT
a)
The amount of income tax
a)
withheld on certain
withheld by the withholding
payments are intended
agent is constituted as a full
equal or at least approximate
and final payment of the
due of the payee on
income tax due from the
income.
payee on the said income.
Taxes
income
to
(A) Withholding of Final Tax on Certain Incomes.

Subject to rules and regulations, the [Secretary]
may promulgate, upon the recommendation of the
[CIR], requiring the filing of income tax return by
certain income payees, the tax imposed or
prescribed by Sections 24(B)(1), 24(B)(2), 24(C),
24(D)(1); 25(A)(2), 25(A)(3), 25(B), 25(C), 25(D),
25(E); 27(D)(1), 27(D)(2), 27(D)(3), 27(D)(5); 28(A)
(4), 28(A)(5), 28(A)(7)(a), 28(A)(7)(b), 28(A)(7)(c),
28(B)(1), 28(B)(2), 28(B)(3), 28(B)(4), 28(B)(5)(a),
28(B)(5)(b), 28(B)(5)(c); 33; and 282 of this Code
on specified items of income shall be withheld by
payor-corporation and/or person and paid in the
same manner and subject to the same conditions
as provided in Section 58 of this Code.
the tax
said
b)
The liability for payment of b)
Payee
of income is required to
the tax rests primarily on the
report
the income and/or pay
payor as a withholding agent.
the
difference between the tax
withheld and the tax due on
the
income. The payee also has
the
right to ask for a refund if the
tax
withheld is more than the tax
due.
(B) Withholding of Creditable Tax at Source. The

[Secretary] may, upon the recommendation of the
[CIR], require the withholding of a tax on the items
of income payable to natural or juridical persons,
residing
in
the
Philippines,
by
payorcorporation/persons as provided for by law, at the
rate of not less than one percent (1%) but not more
than thirty-two percent (32%) thereof, which shall
be credited against the income tax liability of the
taxpayer for the taxable year. (Emphasis supplied)
c)
The payee is not required to c)
The
income recipient is still required
file an income tax return for
to file
an income tax return, as
the particular income. 73
prescribed in Sec. 51 and Sec. 52
of the NIRC,as amended. 74
This line of reasoning is non sequitur.

Section 57 (A) expressly states that final tax can be
imposed on certain kinds of income and
enumerates these as passive income. The BIR
defines passive income by stating what it is not:
. . . if the income is generated in the active pursuit
and performance of the corporation's primary
purposes, the same is not passive income. . . 76
As previously stated, FWT is imposed on the sale

of capital assets. On the other hand, CWT is
imposed on the sale of ordinary assets. The
inherent and substantial differences between FWT
and CWT disprove petitioner's contention that
ordinary assets are being lumped together with,
and treated similarly as, capital assets in
contravention of the pertinent provisions of RA
8424.
Petitioner insists that the levy, collection and
payment of CWT at the time of transaction are
contrary to the provisions of RA 8424 on the
It is income generated by the taxpayer's assets.

These assets can be in the form of real properties
that return rental income, shares of stock in a
corporation that earn dividends or interest income
received from savings.
415
On the other hand, Section 57 (B) provides that the

Secretary can require a CWT on "income payable
to natural or juridical persons, residing in the
Philippines." There is no requirement that this
income be passive income. If that were the intent of
Congress, it could have easily said so.
Indeed, Section 57 (A) and (B) are distinct. Section
57 (A) refers to FWT while Section 57 (B) pertains
to CWT. The former covers the kinds of passive
income enumerated therein and the latter
encompasses any income other than those listed in
57 (A). Since the law itself makes distinctions, it is
wrong to regard 57 (A) and 57 (B) in the same way.
To repeat, the assailed provisions of RR 2-98, as
amended, do not modify or deviate from the text of
Section 57 (B). RR 2-98 merely implements the law
by specifying what income is subject to CWT. It has
been held that, where a statute does not require
any particular procedure to be followed by an
administrative agency, the agency may adopt any
reasonable method to carry out its functions. 77
Similarly, considering that the law uses the general
term "income," the Secretary and CIR may specify
the kinds of income the rules will apply to based on
what is feasible. In addition, administrative rules
and regulations ordinarily deserve to be given
weight and respect by the courts 78 in view of the
rule-making authority given to those who formulate
them and their specific expertise in their respective
fields.
NO DEPRIVATION OF PROPERTY
WITHOUT DUE PROCESS
Petitioner avers that the imposition of CWT on
GSP/FMV of real estate classified as ordinary
assets deprives its members of their property
without due process of law because, in their line of
business, gain is never assured by mere receipt of
the selling price. As a result, the government is
collecting tax from net income not yet gained or
earned.
Again, it is stressed that the CWT is creditable
against the tax due from the seller of the property at
the end of the taxable year. The seller will be able
to claim a tax refund if its net income is less than
the taxes withheld. Nothing is taken that is not due
so there is no confiscation of property repugnant to
the constitutional guarantee of due process. More
importantly, the due process requirement applies to
the power to tax. 79 The CWT does not impose
new taxes nor does it increase taxes. 80 It relates
entirely to the method and time of payment.
cDCHaS
Petitioner protests that the refund remedy does not
make the CWT less burdensome because
taxpayers have to wait years and may even resort
to litigation before they are granted a refund. 81
This argument is misleading. The practical
problems encountered in claiming a tax refund do
not affect the constitutionality and validity of the
CWT as a method of collecting the tax.
Petitioner complains that the amount withheld
would have otherwise been used by the enterprise
to pay labor wages, materials, cost of money and
other expenses which can then save the entity from
having to obtain loans entailing considerable
interest expense. Petitioner also lists the expenses

and pitfalls of the trade which add to the burden of
the realty industry: huge investments and
borrowings; long gestation period; sudden and
unpredictable interest rate surges; continually
spiraling development/construction costs; heavy
taxes and prohibitive "up-front" regulatory fees from
at least 20 government agencies. 82
Petitioner's lamentations will not support its attack
on the constitutionality of the CWT. Petitioner's
complaints are essentially matters of policy best
addressed to the executive and legislative
branches of the government. Besides, the CWT is
applied only on the amounts actually received or
receivable by the real estate entity. Sales on
installment are taxed on a per-installment basis. 83
Petitioner's desire to utilize for its operational and
capital expenses money earmarked for the
payment of taxes may be a practical business
option but it is not a fundamental right which can be
demanded from the court or from the government.
NO VIOLATION OF EQUAL PROTECTION
Petitioner claims that the revenue regulations are
violative of the equal protection clause because the
CWT is being levied only on real estate enterprises.
Specifically, petitioner points out that manufacturing
enterprises are not similarly imposed a CWT on
their sales, even if their manner of doing business
is not much different from that of a real estate
enterprise. Like a manufacturing concern, a real
estate business is involved in a continuous process
of production and it incurs costs and expenditures
on a regular basis. The only difference is that
"goods" produced by the real estate business are
house and lot units. 84
Again, we disagree.
The equal protection clause under the Constitution
means 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." 85 Stated
differently, all persons belonging to the same class
shall be taxed alike. It follows that the guaranty of
the equal protection of the laws is not violated by
legislation based on a reasonable classification.
Classification, to be valid, 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. 86
The taxing power has the authority to make
reasonable classifications for purposes of taxation.
87 Inequalities which result from a singling out of
one particular class for taxation, or exemption,
infringe no constitutional limitation. 88 The real
estate industry is, by itself, a class and can be
validly treated differently from other business
enterprises.
Petitioner, in insisting that its industry should be
treated similarly as manufacturing enterprises, fails
to realize that what distinguishes the real estate
business from other manufacturing enterprises, for
purposes of the imposition of the CWT, is not their
production processes but the prices of their goods
sold and the number of transactions involved. The
416
income from the sale of a real property is bigger

and its frequency of transaction limited, making it
less cumbersome for the parties to comply with the
withholding tax scheme.
On the other hand, each manufacturing enterprise
may have tens of thousands of transactions with
several thousand customers every month involving
both minimal and substantial amounts. To require
the customers of manufacturing enterprises, at
present, to withhold the taxes on each of their
transactions with their tens or hundreds of suppliers
may result in an inefficient and unmanageable
system of taxation and may well defeat the purpose
of the withholding tax system.
Petitioner counters that there are other businesses
wherein expensive items are also sold infrequently,
e.g., heavy equipment, jewelry, furniture, appliance
and other capital goods yet these are not similarly
subjected to the CWT. 89 As already discussed, the
Secretary may adopt any reasonable method to
carry out its functions. 90 Under Section 57 (B), it
may choose what to subject to CWT.
A reading of Section 2.57.2 (M) of RR 2-98 will also
show that petitioner's argument is not accurate. The
sales of manufacturers who have clients within the
top 5,000 corporations, as specified by the BIR, are
also subject to CWT for their transactions with said
5,000 corporations. 91
SECTION 2.58.2 OF RR NO. 2-98 MERELY
IMPLEMENTS SECTION 58 OF RA 8424
Lastly, petitioner assails Section 2.58.2 of RR 2-98,
which provides that the Registry of Deeds should
not effect the regisration of any document
transferring real property unless a certification is
issued by the CIR that the withholding tax has been
paid. Petitioner proffers hardly any reason to strike
down this rule except to rely on its contention that
the CWT is unconstitutional. We have ruled that it is
not. Furthermore, this provision uses almost exactly
the same wording as Section 58 (E) of RA 8424
and is unquestionably in accordance with it:
Sec. 58. Returns and Payment of Taxes Withheld at
Source.
convincing the Court that the imposition of MCIT

and CWT is unconstitutional.
WHEREFORE, the petition is hereby DISMISSED.
Costs against petitioner.
SO ORDERED. HESCcA
Puno, C.J., Carpio, Carpio Morales, Velasco, Jr.,
Nachura, Leonardo-de Castro, Brion, Bersamin,
Abad, Peralta, Del Castillo, Villarama, Jr., Perez
and Mendoza, JJ., concur.
||| (Chamber of Real Estate and Builders'
Association, Inc. v. Romulo, G.R. No. 160756,
[March 9, 2010], 628 PHIL 508-547)
4. BIRAOGO VS. PHIL TRUTH 637 SCRA 78
(2010)
EN BANC
[G.R. No. 192935. December 7, 2010.]
LOUIS "BAROK" C. BIRAOGO, petitioner, vs. THE
PHILIPPINE TRUTH COMMISSION OF 2010,
respondent.
[G.R. No. 193036. December 7, 2010.]
REP. EDCEL C. LAGMAN, REP. RODOLFO B.
ALBANO, JR., REP. SIMEON A. DATUMANONG,
and REP. ORLANDO B. FUA, SR., petitioners, vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR. and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B.
ABAD, respondents.
DECISION
MENDOZA, J p:
When the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not
in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to
determine conflicting claims of authority under the
Constitution and to establish for the parties in an
actual controversy the rights which that instrument
secures and guarantees to them.
(E) Registration with Register of Deeds. No

registration of any document transferring real
property shall be effected by the Register of Deeds
unless the [CIR] or his duly authorized
representative has certified that such transfer has
been reported, and the capital gains or [CWT], if
any, has been paid: . . . any violation of this
provision by the Register of Deeds shall be subject
to the penalties imposed under Section 269 of this
Code. (Emphasis supplied)
Justice Jose P. Laurel 1

The role of the Constitution cannot be overlooked.
It is through the Constitution that the fundamental
powers of government are established, limited and
defined, and by which these powers are distributed
among the several departments. 2 The Constitution
is the basic and paramount law to which all other
laws must conform and to which all persons,
including the highest officials of the land, must
defer. 3 Constitutional doctrines must remain
steadfast no matter what may be the tides of time.
It cannot be simply made to sway and
accommodate the call of situations and much more
tailor itself to the whims and caprices of
government and the people who run it. 4
CONCLUSION
The renowned genius Albert Einstein was once
quoted as saying "[the] hardest thing in the world to
understand is the income tax." 92 When a party
questions the constitutionality of an income tax
measure, it has to contend not only with Einstein's
observation but also with the vast and wellestablished jurisprudence in support of the plenary
powers of Congress to impose taxes. Petitioner has
miserably failed to discharge its burden of
417
For consideration before the Court are two

consolidated cases 5 both of which essentially
assail the validity and constitutionality of Executive
Order No. 1, dated July 30, 2010, entitled "Creating
the Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil
action for prohibition instituted by petitioner Louis
Biraogo (Biraogo) in his capacity as a citizen and
taxpayer. Biraogo assails Executive Order No. 1 for
being violative of the legislative power of Congress
under Section 1, Article VI of the Constitution 6 as it
usurps the constitutional authority of the legislature
to create a public office and to appropriate funds
therefor. 7
The second case, G.R. No. 193036, is a special
civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr.,
Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of
the House of Representatives.
The genesis of the foregoing cases can be traced
to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon
Aquino III declared his staunch condemnation of
graft and corruption with his slogan, "Kung walang
corrupt, walang mahirap." The Filipino people,
convinced of his sincerity and of his ability to carry
out this noble objective, catapulted the good
senator to the presidency. ITESAc
To transform his campaign slogan into reality,
President Aquino found a need for a special body to
investigate reported cases of graft and corruption
allegedly
committed
during
the
previous
administration.
Thus, at the dawn of his administration, the
President on July 30, 2010, signed Executive Order
No. 1 establishing the Philippine Truth Commission
of 2010 (Truth Commission). Pertinent provisions of
said executive order read:
EXECUTIVE ORDER NO. 1
people's trust and confidence in the Government

and its institutions;
WHEREAS, there is an urgent call for the
determination of the truth regarding certain reports
of large scale graft and corruption in the
government and to put a closure to them by the
filing of the appropriate cases against those
involved, if warranted, and to deter others from
committing the evil, restore the people's faith and
confidence in the Government and in their public
servants;
WHEREAS, the President's battlecry during his
campaign for the Presidency in the last elections
"kung walang corrupt, walang mahirap" expresses
a solemn pledge that if elected, he would end
corruption and the evil it breeds;
WHEREAS, there is a need for a separate body
dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and
corruption during the previous administration, and
which will recommend the prosecution of the
offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of
Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines,
gives the President the continuing authority to
reorganize the Office of the President. cTIESa
NOW, THEREFORE, I, BENIGNO SIMEON
AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by
law, do hereby order:
WHEREAS, Article XI, Section 1 of the 1987

Constitution of the Philippines solemnly enshrines
the principle that a public office is a public trust and
mandates that public officers and employees, who
are servants of the people, must at all times be
accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act
with patriotism and justice, and lead modest lives;
SECTION 1. Creation of a Commission. There is

hereby
created
the
PHILIPPINE
TRUTH
COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and
find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and
magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by
public officers and employees, their co-principals,
accomplices and accessories from the private
sector, if any, during the previous administration;
and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or
favor.
WHEREAS, corruption is among the most

despicable acts of defiance of this principle and
notorious violation of this mandate;
The Commission shall be composed of a Chairman

and four (4) members who will act as an
independent collegial body.
WHEREAS, corruption is an evil and scourge which

seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold
misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
SECTION 2. Powers and Functions. The

Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and
corruption referred to in Section 1, involving third
level public officers and higher, their co-principals,
CREATING
THE
PHILIPPINE
COMMISSION OF 2010
TRUTH
WHEREAS, corruption in the Philippines has

reached very alarming levels, and undermined the
418

sector, if any, during the previous administration
and
thereafter
submit
its
finding
and
recommendations to the President, Congress and
the Ombudsman.
determined by it as necessary to carry out its

mandate;
j) Promulgate its rules and regulations or rules of
procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive
Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including
the presentation of evidence;
In particular, it shall:
a) Identify and determine the reported cases of
such graft and corruption which it will investigate;
k) Exercise such other acts incident to or are

appropriate and necessary in connection with the
objectives and purposes of this Order.
b) Collect, receive, review and evaluate evidence

related to or regarding the cases of large scale
corruption which it has chosen to investigate, and
to this end require any agency, official or employee
of the Executive Branch, including governmentowned or controlled corporations, to produce
documents, books, records and other papers;
SECTION 3. Staffing Requirements. . . . .

SECTION 4. Detail of Employees. . . . .
SECTION 5. Engagement of Experts. . . .
c) Upon proper request or representation, obtain

information and documents from the Senate and
the House of Representatives records of
investigations conducted by committees thereof
relating to matters or subjects being investigated by
the Commission;
SECTION 6. Conduct of Proceedings. . . . .

SECTION
7.
Right
to
Counsel
Witnesses/Resource Persons. . . . .
of
SECTION 8. Protection of Witnesses/Resource

Persons. . . . .
d) Upon proper request and representation, obtain

information from the courts, including the
Sandiganbayan and the Office of the Court
Administrator, information or documents in respect
to corruption cases filed with the Sandiganbayan or
the regular courts, as the case may be;
SECTION 9. Refusal to Obey Subpoena, Take

Oath or Give Testimony. Any government official
or personnel who, without lawful excuse, fails to
appear upon subpoena issued by the Commission
or who, appearing before the Commission refuses
to take oath or affirmation, give testimony or
produce documents for inspection, when required,
shall be subject to administrative disciplinary action.
Any private person who does the same may be
dealt with in accordance with law.
e) Invite or subpoena witnesses and take their

testimonies and for that purpose, administer oaths
or affirmations as the case may be;
f) Recommend, in cases where there is a need to
utilize any person as a state witness to ensure that
the ends of justice be fully served, that such person
who qualifies as a state witness under the Revised
Rules of Court of the Philippines be admitted for
that purpose; TacADE
SECTION 10. Duty to Extend Assistance to the

Commission. . . . . .
SECTION 11. Budget for the Commission. The
Office of the President shall provide the necessary
funds for the Commission to ensure that it can
exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively,
efficiently, and expeditiously as possible. aDSAEI
g) Turn over from time to time, for expeditious

prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report
and recommendation, all evidence on corruption of
public officers and employees and their private
sector co-principals, accomplices or accessories, if
any, when in the course of its investigation the
Commission finds that there is reasonable ground
to believe that they are liable for graft and
corruption under pertinent applicable laws;
SECTION 12. Office. . . . .

SECTION 13. Furniture/Equipment. . . . .
SECTION 14. Term of the Commission. The
Commission shall accomplish its mission on or
before December 31, 2012.
h) Call upon any government investigative or

prosecutorial agency such as the Department of
Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the
discharge of its functions and duties;
SECTION 15. Publication of Final Report. . . . .

SECTION 16. Transfer of Records and Facilities of
the Commission. . . . .
i) Engage or contract the services of resource

persons, professionals and other personnel
SECTION 17. Special Provision Concerning

Mandate. If and when in the judgment of the
President there is a need to expand the mandate of
419
the Commission as defined in Section 1 hereof to

include the investigation of cases and instances of
graft
and
corruption
during
the
prior
administrations, such mandate may be so extended
accordingly by way of a supplemental Executive
Order.
civil strife or authoritarianism to serve as

mechanisms for transitional justice.
Truth commissions have been described as bodies
that share the following characteristics: (1) they
examine only past events; (2) they investigate
patterns of abuse committed over a period of time,
as opposed to a particular event; (3) they are
temporary bodies that finish their work with the
submission of a report containing conclusions and
recommendations; and (4) they are officially
sanctioned, authorized or empowered by the State.
10
"Commission's
members
are
usually
empowered to conduct research, support victims,
and propose policy recommendations to prevent
recurrence of crimes. Through their investigations,
the commissions may aim to discover and learn
more about past abuses, or formally acknowledge
them. They may aim to prepare the way for
prosecutions and recommend institutional reforms."
11
Thus, their main goals range from retribution to
reconciliation. The Nuremburg and Tokyo war crime
tribunals are examples of a retributory or
vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a
reconciliatory
tribunal
is
the
Truth
and
Reconciliation Commission of South Africa, the
principal function of which was to heal the wounds
of past violence and to prevent future conflict by
providing a cathartic experience for victims.
The PTC is a far cry from South Africa's model. The
latter placed more emphasis on reconciliation than
on judicial retribution, while the marching order of
the PTC is the identification and punishment of
perpetrators. As one writer 12 puts it:
The order ruled out reconciliation. It translated the
Draconian code spelled out by Aquino in his
inaugural speech: "To those who talk about
reconciliation, if they mean that they would like us
to simply forget about the wrongs that they have
committed in the past, we have this to say: There
can be no reconciliation without justice. When we
allow crimes to go unpunished, we give consent to
their occurring over and over again."
SECTION 18. Separability Clause. If any

provision of this Order is declared unconstitutional,
the same shall not affect the validity and effectivity
of the other provisions hereof.
SECTION 19. Effectivity. This Executive Order
shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th
day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted
provisions, the Philippine Truth Commission (PTC)
is a mere ad hoc body formed under the Office of
the President with the primary task to investigate
reports of graft and corruption committed by thirdlevel public officers and employees, their coprincipals, accomplices and accessories during the
previous administration, and thereafter to submit its
finding and recommendations to the President,
Congress and the Ombudsman. Though it has
been described as an "independent collegial body,"
it is essentially an entity within the Office of the
President Proper and subject to his control.
Doubtless, it constitutes a public office, as an ad
hoc body is one. 8
To accomplish its task, the PTC shall have all the
powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of
1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or
render awards in disputes between contending
parties. All it can do is gather, collect and assess
evidence of graft and corruption and make
recommendations. It may have subpoena powers
but it has no power to cite people in contempt,
much less order their arrest. Although it is a factfinding body, it cannot determine from such facts if
probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it
cannot impose criminal, civil or administrative
penalties or sanctions. cADaIH
The PTC is different from the truth commissions in
other countries which have been created as official,
transitory and non-judicial fact-finding bodies "to
establish the facts and context of serious violations
of human rights or of international humanitarian law
in a country's past." 9 They are usually established
by states emerging from periods of internal unrest,
The Thrusts of the Petitions

Barely a month after the issuance of Executive
Order No. 1, the petitioners asked the Court to
declare it unconstitutional and to enjoin the PTC
from performing its functions. A perusal of the
arguments of the petitioners in both cases shows
that they are essentially the same. The petitionerslegislators summarized them in the following
manner:
(a) E.O. No. 1 violates the separation of powers as
it arrogates the power of the Congress to create a
public office and appropriate funds for its operation.
cAaTED
(b) The provision of Book III, Chapter 10, Section
31 of the Administrative Code of 1987 cannot
legitimize E.O. No. 1 because the delegated
authority of the President to structurally reorganize
the Office of the President to achieve economy,
simplicity and efficiency does not include the power
420
to create an entirely new public office which was

hitherto inexistent like the "Truth Commission."
appropriation but a mere allocation of funds already

appropriated by Congress.
(c) E.O. No. 1 illegally amended the Constitution

and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers duplicating,
if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution
and the Department of Justice created under the
Administrative Code of 1987.
3] The Truth Commission does not duplicate or

supersede the functions of the Office of the
Ombudsman (Ombudsman) and the Department of
Justice (DOJ), because it is a fact-finding body and
not a quasi-judicial body and its functions do not
duplicate, supplant or erode the latter's jurisdiction.
4] The Truth Commission does not violate the equal
protection clause because it was validly created for
laudable purposes.
(d) E.O. No. 1 violates the equal protection clause

as it selectively targets for investigation and
prosecution officials and personnel of the previous
administration as if corruption is their peculiar
species even as it excludes those of the other
administrations, past and present, who may be
indictable.
The OSG then points to the continued existence

and validity of other executive orders and
presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential
Complaint and Action Commission (PCAC) by
President Ramon B. Magsaysay, Presidential
Committee
on
Administrative
Performance
Efficiency (PCAPE) by President Carlos P. Garcia
and Presidential Agency on Reform and
Government Operations (PARGO) by President
Ferdinand E. Marcos. 18
(e) The creation of the "Philippine Truth

Commission of 2010" violates the consistent and
general international practice of four decades
wherein States constitute truth commissions to
exclusively investigate human rights violations,
which customary practice forms part of the
generally accepted principles of international law
which the Philippines is mandated to adhere to
pursuant to the Declaration of Principles enshrined
in the Constitution.
From the petitions, pleadings, transcripts, and

memoranda, the following are the principal issues
to be resolved:
(f) The creation of the "Truth Commission" is an

exercise in futility, an adventure in partisan hostility,
a launching pad for trial/conviction by publicity and
a mere populist propaganda to mistakenly impress
the people that widespread poverty will altogether
vanish if corruption is eliminated without even
addressing the other major causes of poverty.
1. Whether or not the petitioners have the legal

standing to file their respective petitions and
question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates
the principle of separation of powers by usurping
the powers of Congress to create and to
appropriate funds for public offices, agencies and
commissions;
(g) The mere fact that previous commissions were

not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an
eventual question on the constitutionality and
validity of an executive issuance or even a statute."
13
3. Whether or not Executive Order No. 1 supplants

the powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates
the equal protection clause; and
In their Consolidated Comment, 14 the

respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal
standing of petitioners and defended the assailed
executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of
Congress to create a public office because the
President's executive power and power of control
necessarily include the inherent power to conduct
investigations to ensure that laws are faithfully
executed and that, in any event, the Constitution,
Revised Administrative Code of 1987 (E.O. No.
292), 15 Presidential Decree (P.D.) No. 1416 16 (as
amended by P.D. No. 1772), R.A. No. 9970, 17 and
settled jurisprudence that authorize the President to
create or form such bodies. DIAcTE
5. Whether or not petitioners are entitled to

injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the
constitutionality of Executive Order No. 1, the Court
needs to ascertain whether the requisites for a valid
exercise of its power of judicial review are present.
Like almost all powers conferred by the
Constitution, the power of judicial review is subject
to limitations, to wit: (1) there must be an actual
case or controversy calling for the exercise of
judicial power; (2) the person challenging the act
must have the standing to question the validity of
the subject act or issuance; otherwise stated, 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
2] E.O. No. 1 does not usurp the power of

Congress to appropriate funds because there is no
421
earliest opportunity; and (4) the issue of

constitutionality must be the very lis mota of the
case. 19 AIHDcC
Among all these limitations, only the legal standing
of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the
petitioners-legislators to file their petition for failure
to demonstrate their personal stake in the outcome
of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of
sustaining any personal injury attributable to the
creation of the PTC. Not claiming to be the subject
of the commission's investigations, petitioners will
not sustain injury in its creation or as a result of its
proceedings. 20
The Court disagrees with the OSG in questioning
the legal standing of the petitioners-legislators to
assail Executive Order No. 1. Evidently, their
petition primarily invokes usurpation of the power of
the Congress as a body to which they belong as
members. This certainly justifies their resolve to
take the cudgels for Congress as an institution and
present the complaints on the usurpation of their
power and rights as members of the legislature
before the Court. As held in Philippine Constitution
Association v. Enriquez, 21
To the extent the powers of Congress are impaired,
so is the power of each member thereof, since his
office confers a right to participate in the exercise of
the powers of that institution.
explained the deep-seated rules on locus standi.

Thus: ACcHIa
Locus standi is defined as "a right of appearance in
a court of justice on a given question." In private
suits, standing is governed by the "real-parties-in
interest" rule as contained in Section 2, Rule 3 of
the 1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or
defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party
who stands to be benefited or injured by the
judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff's
standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in
public suits. Here, the plaintiff who asserts a "public
right" in assailing an allegedly illegal official action,
does so as a representative of the general public.
He may be a person who is affected no differently
from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or
"taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection.
In other words, he has to make out a sufficient
interest in the vindication of the public order and the
securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both
"citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a
taxpayer's suit is in a different category from the
plaintiff in a citizen's suit. In the former, the plaintiff
is affected by the expenditure of public funds, while
in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: "In matter of
mere public right, however . . . the people are the
real parties . . . It is at least the right, if not the duty,
of every citizen to interfere and see that a public
offence be properly pursued and punished, and that
a public grievance be remedied." With respect to
taxpayer's suits, Terr v. Jordan held that "the right of
a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to
his injury cannot be denied."
An act of the Executive which injures the institution

of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a
member of Congress. In such a case, any member
of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it
that the prerogative, powers and privileges vested
by the Constitution in their office remain inviolate.
Thus, they are allowed to question the validity of
any official action which, to their mind, infringes on
their prerogatives as legislators. 22
With regard to Biraogo, the OSG argues that, as a
taxpayer, he has no standing to question the
creation of the PTC and the budget for its
operations. 23 It emphasizes that the funds to be
used for the creation and operation of the
commission are to be taken from those funds
already appropriated by Congress. Thus, the
allocation and disbursement of funds for the
commission will not entail congressional action but
will simply be an exercise of the President's power
over contingent funds.
As correctly pointed out by the OSG, Biraogo has
not shown that he sustained, or is in danger of
sustaining, any personal and direct injury
attributable to the implementation of Executive
Order No. 1. Nowhere in his petition is an assertion
of a clear right that may justify his clamor for the
Court to exercise judicial power and to wield the
axe over presidential issuances in defense of the
Constitution. The case of David v. Arroyo 24
However, to prevent just about any person from

seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders
the activities of governmental agencies engaged in
public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex
Parte Levitt, later reaffirmed in Tileston v. Ullman.
The same Court ruled that for a private individual to
invoke the judicial power to determine the validity of
an executive or legislative action, he must show
that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a
general interest common to all members of the
public.
422
This Court adopted the "direct injury" test in our

jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must
have "a personal and substantial interest in the
case such that he has sustained, or will sustain
direct injury as a result." The Vera doctrine was
upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse
Trainers' Association v. De la Fuente, Pascual v.
Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix. [Emphases
included. Citations omitted]
in the Constitution or any specific law that

authorizes the President to create a truth
commission. 33 He adds that Section 31 of the
Administrative Code of 1987, granting the President
the continuing authority to reorganize his office,
cannot serve as basis for the creation of a truth
commission considering the aforesaid provision
merely uses verbs such as "reorganize," "transfer,"
"consolidate," "merge," and "abolish." 34 Insofar as
it vests in the President the plenary power to
reorganize the Office of the President to the extent
of creating a public office, Section 31 is inconsistent
with the principle of separation of powers enshrined
in the Constitution and must be deemed repealed
upon the effectivity thereof. 35
Similarly, in G.R. No. 193036, petitioners-legislators
argue that the creation of a public office lies within
the province of Congress and not with the
executive branch of government. They maintain
that the delegated authority of the President to
reorganize under Section 31 of the Revised
Administrative Code: 1) does not permit the
President to create a public office, much less a
truth commission; 2) is limited to the reorganization
of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the
internal organs of the Office of the President
Proper, transfer of functions and transfer of
agencies; and 4) only to achieve simplicity,
economy and efficiency. 36 Such continuing
authority of the President to reorganize his office is
limited, and by issuing Executive Order No. 1, the
President overstepped the limits of this delegated
authority. HCEaDI
The OSG counters that there is nothing exclusively
legislative about the creation by the President of a
fact-finding body such as a truth commission.
Pointing to numerous offices created by past
presidents, it argues that the authority of the
President to create public offices within the Office
of the President Proper has long been recognized.
37 According to the OSG, the Executive, just like
the other two branches of government, possesses
the inherent authority to create fact-finding
committees to assist it in the performance of its
constitutionally mandated functions and in the
exercise of its administrative functions. 38 This
power, as the OSG explains it, is but an adjunct of
the plenary powers wielded by the President under
Section 1 and his power of control under Section
17, both of Article VII of the Constitution. 39
It contends that the President is necessarily vested
with
the
power
to
conduct
fact-finding
investigations, pursuant to his duty to ensure that
all laws are enforced by public officials and
employees of his department and in the exercise of
his authority to assume directly the functions of the
executive department, bureau and office, or
interfere with the discretion of his officials. 40 The
power of the President to investigate is not limited
to the exercise of his power of control over his
subordinates in the executive branch, but extends
further in the exercise of his other powers, such as
his power to discipline subordinates, 41 his power
for rule making, adjudication and licensing
Notwithstanding, the Court leans on the doctrine

that "the rule on standing is a matter of procedure,
hence, can be relaxed for nontraditional plaintiffs
like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when
the matter is of transcendental importance, of
overreaching significance to society, or of
paramount public interest." 25 cDAITS
Thus, in Coconut Oil Refiners Association, Inc. v.
Torres, 26 the Court held that in cases of
paramount importance where serious constitutional
questions are involved, the standing requirements
may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the
party claiming the right of judicial review. In the first
Emergency Powers Cases, 27 ordinary citizens and
taxpayers were allowed to question the
constitutionality of several executive orders
although they had only an indirect and general
interest shared in common with the public.
The OSG claims that the determinants of
transcendental importance 28 laid down in CREBA
v. ERC and Meralco 29 are non-existent in this
case. The Court, however, finds reason in Biraogo's
assertion that the petition covers matters of
transcendental importance to justify the exercise of
jurisdiction by the Court. There are constitutional
issues in the petition which deserve the attention of
this Court in view of their seriousness, novelty and
weight as precedents. Where the issues are of
transcendental and paramount importance not only
to the public but also to the Bench and the Bar, they
should be resolved for the guidance of all. 30
Undoubtedly, the Filipino people are more than
interested to know the status of the President's first
effort to bring about a promised change to the
country. The Court takes cognizance of the petition
not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but
because the Court stands firm in its oath to perform
its constitutional duty to settle legal controversies
with overreaching significance to society.
Power of the President to Create the Truth
Commission
In his memorandum in G.R. No. 192935, Biraogo
asserts that the Truth Commission is a public office
and not merely an adjunct body of the Office of the
President. 31 Thus, in order that the President may
create a public office he must be empowered by the
Constitution, a statute or an authorization vested in
him by law. According to petitioner, such power
cannot be presumed 32 since there is no provision
423
purposes 42 and in order to be informed on matters

which he is entitled to know. 43
The OSG also cites the recent case of Banda v.
Ermita, 44 where it was held that the President has
the power to reorganize the offices and agencies in
the executive department in line with his
constitutionally granted power of control and by
virtue of a valid delegation of the legislative power
to reorganize executive offices under existing
statutes.
Thus, the OSG concludes that the power of control
necessarily includes the power to create offices.
For the OSG, the President may create the PTC in
order to, among others, put a closure to the
reported large scale graft and corruption in the
government. 45
The question, therefore, before the Court is this:
Does the creation of the PTC fall within the ambit of
the power to reorganize as expressed in Section 31
of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the
following functional and structural lines: (1)
restructuring the internal organization of the Office
of the President Proper by abolishing, consolidating
or merging units thereof or transferring functions
from one unit to another; (2) transferring any
function under the Office of the President to any
other Department/Agency or vice versa; or (3)
transferring any agency under the Office of the
President to any other Department/Agency or vice
versa. Clearly, the provision refers to reduction of
personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of
functions. These point to situations where a body or
an office is already existent but a modification or
alteration thereof has to be effected. The creation
of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the
answer to the question is in the negative.
To say that the PTC is borne out of a restructuring
of the Office of the President under Section 31 is a
misplaced supposition, even in the plainest
meaning attributable to the term "restructure" an
"alteration of an existing structure." Evidently, the
PTC was not part of the structure of the Office of
the President prior to the enactment of Executive
Order No. 1. As held in Buklod ng Kawaning EIIB v.
Hon. Executive Secretary, 46 aSIAHC
But of course, the list of legal basis authorizing the
President to reorganize any department or agency
in the executive branch does not have to end here.
We must not lose sight of the very source of the
power that which constitutes an express grant of
power. Under Section 31, Book III of Executive
Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President,
subject to the policy in the Executive Office and in
order to achieve simplicity, economy and efficiency,
shall have the continuing authority to reorganize the
administrative structure of the Office of the
President." For this purpose, he may transfer the
functions of other Departments or Agencies to the
Office of the President. In Canonizado v. Aguirre
[323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by

reason of economy or redundancy of functions." It
takes place when there is an alteration of the
existing structure of government offices or units
therein, including the lines of control, authority and
responsibility between them. The EIIB is a bureau
attached to the Department of Finance. It falls
under the Office of the President. Hence, it is
subject to the President's continuing authority to
reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not
justified by the President's power of control. Control
is essentially the power to alter or modify or nullify
or set aside what a subordinate officer had done in
the performance of his duties and to substitute the
judgment of the former with that of the latter. 47
Clearly, the power of control is entirely different
from the power to create public offices. The former
is inherent in the Executive, while the latter finds
basis from either a valid delegation from Congress,
or his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of
power from Congress, empowering the President to
create a public office?
According to the OSG, the power to create a truth
commission pursuant to the above provision finds
statutory basis under P.D. 1416, as amended by
P.D. No. 1772. 48 The said law granted the
President the continuing authority to reorganize the
national government, including the power to group,
consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify
functions, services and activities, transfer
appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20,
Title I, Book III of E.O. 292 has been invoked in
several cases such as Larin v. Executive Secretary.
49
The Court, however, declines to recognize P.D. No.
1416 as a justification for the President to create a
public office. Said decree is already stale,
anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority
to reorganize the administrative structure of the
national government including the power to create
offices and transfer appropriations pursuant to one
of the purposes of the decree, embodied in its last
"Whereas" clause:
WHEREAS,
the
transition
towards
the
parliamentary form of government will necessitate
flexibility in the organization of the national
government.
Clearly, as it was only for the purpose of providing
manageability and resiliency during the interim,
P.D. No. 1416, as amended by P.D. No. 1772,
became functus oficio upon the convening of the
First Congress, as expressly provided in Section 6,
Article XVIII of the 1987 Constitution. In fact, even
the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO:
Because P.D. 1416 was enacted was the last
whereas clause of P.D. 1416 says "it was enacted
424
to prepare the transition from presidential to

parliamentary. Now, in a parliamentary form of
government, the legislative and executive powers
are fused, correct?
It would not be accurate, however, to state that

"executive power" is the power to enforce the laws,
for the President is head of state as well as head of
government and whatever powers inhere in such
positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the
Constitution itself provides that the execution of the
laws is only one of the powers of the President. It
also grants the President other powers that do not
involve the execution of any provision of law, e.g.,
his power over the country's foreign relations.
SOLICITOR GENERAL CADIZ:

Yes, Your Honor.
That is why, that P.D. 1416 was issued. Now would
you agree with me that P.D. 1416 should not be
considered
effective
anymore
upon
the
promulgation, adoption, ratification of the 1987
Constitution.
On these premises, we hold the view that although

the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it
maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily,
the powers of the President cannot be said to be
limited only to the specific powers enumerated in
the Constitution. In other words, executive power is
more than the sum of specific powers so
enumerated.

Not the whole of P.D. [No.] 1416, Your Honor.
The power of the President to reorganize the entire
National Government is deemed repealed, at least,
upon the adoption of the 1987 Constitution, correct.
cHSIDa
It has been advanced that whatever power inherent

in the government that is neither legislative nor
judicial has to be executive. . . . . cSATEH
Indeed, the Executive is given much leeway in
ensuring that our laws are faithfully executed. As
stated above, the powers of the President are not
limited to those specific powers under the
Constitution. 53 One of the recognized powers of
the
President
granted
pursuant
to
this
constitutionally-mandated duty is the power to
create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if
laws have been faithfully executed. Thus, in
Department of Health v. Camposano, 54 the
authority of the President to issue Administrative
Order No. 298, creating an investigative committee
to look into the administrative charges filed against
the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In
said case, it was ruled:
The Chief Executive's power to create the Ad hoc
Investigating Committee cannot be doubted.
Having been constitutionally granted full control of
the Executive Department, to which respondents
belong, the President has the obligation to ensure
that all executive officials and employees faithfully
comply with the law. With AO 298 as mandate, the
legality of the investigation is sustained. Such
validity is not affected by the fact that the
investigating team and the PCAGC had the same
composition, or that the former used the offices and
facilities of the latter in conducting the inquiry.
[Emphasis supplied]

Yes, Your Honor. 50
While the power to create a truth commission
cannot pass muster on the basis of P.D. No. 1416
as amended by P.D. No. 1772, the creation of the
PTC finds justification under Section 17, Article VII
of the Constitution, imposing upon the President
the duty to ensure that the laws are faithfully
executed. Section 17 reads:
Section 17. The President shall have control of all
the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed.
(Emphasis supplied).
As correctly pointed out by the respondents, the
allocation of power in the three principal branches
of government is a grant of all powers inherent in
them. The President's power to conduct
investigations to aid him in ensuring the faithful
execution of laws in this case, fundamental laws
on public accountability and transparency is
inherent in the President's powers as the Chief
Executive. That the authority of the President to
conduct investigations and to create bodies to
execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is
bereft of such authority. 51 As explained in the
landmark case of Marcos v. Manglapus: 52
. . . . The 1987 Constitution, however, brought back
the presidential system of government and restored
the separation of legislative, executive and judicial
powers by their actual distribution among three
distinct branches of government with provision for
checks and balances.
It should be stressed that the purpose of allowing

ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled
to know so that he can be properly advised and
guided in the performance of his duties relative to
the execution and enforcement of the laws of the
land. And if history is to be revisited, this was also
425
the objective of the investigative bodies created in

the past like the PCAC, PCAPE, PARGO, the
Feliciano Commission, the Melo Commission and
the Zenarosa Commission. There being no
changes in the government structure, the Court is
not inclined to declare such executive power as
non-existent just because the direction of the
political winds have changed.
On the charge that Executive Order No. 1
transgresses the power of Congress to appropriate
funds for the operation of a public office, suffice it to
say that there will be no appropriation but only an
allotment or allocations of existing funds already
appropriated. Accordingly, there is no usurpation on
the part of the Executive of the power of Congress
to appropriate funds. Further, there is no need to
specify the amount to be earmarked for the
operation of the commission because, in the words
of the Solicitor General, "whatever funds the
Congress has provided for the Office of the
President will be the very source of the funds for
the commission." 55 Moreover, since the amount
that would be allocated to the PTC shall be subject
to existing auditing rules and regulations, there is
no impropriety in the funding.
Power of the Truth Commission to Investigate
The President's power to conduct investigations to
ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section
17 thereof. 56 As the Chief Executive, the president
represents the government as a whole and sees to
it that all laws are enforced by the officials and
employees of his department. He has the authority
to directly assume the functions of the executive
department. 57
Invoking this authority, the President constituted the
PTC to primarily investigate reports of graft and
corruption and to recommend the appropriate
action. As previously stated, no quasi-judicial
powers have been vested in the said body as it
cannot adjudicate rights of persons who come
before it. It has been said that "Quasi-judicial
powers involve the power to hear and determine
questions of fact to which the legislative policy is to
apply and to decide in accordance with the
standards laid down by law itself in enforcing and
administering the same law." 58 In simpler terms,
judicial discretion is involved in the exercise of
these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be
clearly authorized by the legislature in the case of
administrative agencies. caAICE
The distinction between the power to investigate
and the power to adjudicate was delineated by the
Court in Cario v. Commission on Human Rights.
59 Thus:
"Investigate," commonly understood, means to
examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of
"investigate" is "to observe or study closely: inquire
into systematically: "to search or inquire into: . . . to
subject to an official probe . . . : to conduct an
official inquiry." The purpose of investigation, of
course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the

notion of settling, deciding or resolving a
controversy involved in the facts inquired into by
application of the law to the facts established by the
inquiry.
The legal meaning of "investigate" is essentially the
same: "(t)o follow up step by step by patient inquiry
or observation. To trace or track; to search into; to
examine and inquire into with care and accuracy; to
find out by careful inquisition; examination; the
taking of evidence; a legal inquiry;" "to inquire; to
make an investigation," "investigation" being in turn
described as "(a)n administrative function, the
exercise of which ordinarily does not require a
hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry,
judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or
matters."
"Adjudicate," commonly or popularly understood,
means to adjudge, arbitrate, judge, decide,
determine, resolve, rule on, settle. The dictionary
defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits
of issues raised: . . . to pass judgment on: settle
judicially: . . . act as judge." And "adjudge" means
"to decide or rule upon as a judge or with judicial or
quasi-judicial powers: . . . to award or grant
judicially in a case of controversy . . . ." HScaCT
In the legal sense, "adjudicate" means: "To settle in
the exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest
sense;" and "adjudge" means: "To pass on
judicially, to decide, settle or decree, or to sentence
or condemn. . . . . Implies a judicial determination of
a fact, and the entry of a judgment." [Italics
included. Citations Omitted]
Fact-finding is not adjudication and it cannot be
likened to the judicial function of a court of justice,
or even a quasi-judicial agency or office. The
function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial
function. To be considered as such, the act of
receiving evidence and arriving at factual
conclusions in a controversy must be accompanied
by the authority of applying the law to the factual
conclusions to the end that the controversy may be
decided or resolved authoritatively, finally and
definitively, subject to appeals or modes of review
as may be provided by law. 60 Even respondents
themselves admit that the commission is bereft of
any quasi-judicial power. 61
Contrary to petitioners' apprehension, the PTC will
not supplant the Ombudsman or the DOJ or erode
their respective powers. If at all, the investigative
function of the commission will complement those
of the two offices. As pointed out by the Solicitor
General, the recommendation to prosecute is but a
consequence of the overall task of the commission
to conduct a fact-finding investigation." 62 The
actual prosecution of suspected offenders, much
less adjudication on the merits of the charges
426
against them, 63 is certainly not a function given to

the commission. The phrase, "when in the course
of its investigation," under Section 2 (g), highlights
this fact and gives credence to a contrary
interpretation from that of the petitioners. The
function of determining probable cause for the filing
of the appropriate complaints before the courts
remains to be with the DOJ and the Ombudsman.
64
At any rate, the Ombudsman's power to investigate
under R.A. No. 6770 is not exclusive but is shared
with other similarly authorized government
agencies. Thus, in the case of Ombudsman v.
Galicia, 65 it was written:
This power of investigation granted to the
Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies
such as the PCGG and judges of municipal trial
courts and municipal circuit trial courts. The power
to conduct preliminary investigation on charges
against public employees and officials is likewise
concurrently shared with the Department of Justice.
Despite the passage of the Local Government
Code in 1991, the Ombudsman retains concurrent
jurisdiction with the Office of the President and the
local Sanggunians to investigate complaints against
local elective officials. [Emphasis supplied].
predecessors, the Davide Commission, the

Feliciano
Commission
and
the
Zenarosa
Commission, its findings would, at best, be
recommendatory in nature. And being so, the
Ombudsman and the DOJ have a wider degree of
latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not
deprived of their mandated duties but will instead
be aided by the reports of the PTC for possible
indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls
within the investigative power of the President, the
Court
finds
difficulty
in
upholding
the
constitutionality of Executive Order No. 1 in view of
its apparent transgression of the equal protection
clause enshrined in Section 1, Article III (Bill of
Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life,
liberty, or property without due process of law, nor
shall any person be denied the equal protection of
the laws.
The petitioners assail Executive Order No. 1
because it is violative of this constitutional
safeguard. They contend that it does not apply
equally to all members of the same class such that
the intent of singling out the "previous
administration" as its sole object makes the PTC an
"adventure in partisan hostility." 66 Thus, in order to
be accorded with validity, the commission must also
cover reports of graft and corruption in virtually all
administrations previous to that of former President
Arroyo. 67
The petitioners argue that the search for truth
behind the reported cases of graft and corruption
must encompass acts committed not only during
the administration of former President Arroyo but
also during prior administrations where the "same
magnitude of controversies and anomalies" 68
were reported to have been committed against the
Filipino people. They assail the classification
formulated by the respondents as it does not fall
under the recognized exceptions because first,
"there is no substantial distinction between the
group of officials targeted for investigation by
Executive Order No. 1 and other groups or persons
who abused their public office for personal gain;
and second, the selective classification is not
germane to the purpose of Executive Order No. 1
to end corruption." 69 In order to attain
constitutional permission, the petitioners advocate
that the commission should deal with "graft and
grafters prior and subsequent to the Arroyo
administration with the strong arm of the law with
equal force." 70 cEaDTA
Position of respondents
According to respondents, while Executive Order
No. 1 identifies the "previous administration" as the
initial subject of the investigation, following Section
17 thereof, the PTC will not confine itself to cases
of large scale graft and corruption solely during the
said administration. 71 Assuming arguendo that the
commission would confine its proceedings to
officials of the previous administration, the
Also, Executive Order No. 1 cannot contravene the

power of the Ombudsman to investigate criminal
cases under Section 15 (1) of R.A. No. 6770, which
states:
(1) Investigate and prosecute on its own or on
complaint by any person, any act or omission of
any public officer or employee, office or agency,
when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any
investigatory
agency
of
government,
the
investigation of such cases. [Emphases supplied]
AIHDcC
The act of investigation by the Ombudsman as
enunciated above contemplates the conduct of a
preliminary investigation or the determination of the
existence of probable cause. This is categorically
out of the PTC's sphere of functions. Its power to
investigate is limited to obtaining facts so that it can
advise and guide the President in the performance
of his duties relative to the execution and
enforcement of the laws of the land. In this regard,
the PTC commits no act of usurpation of the
Ombudsman's primordial duties.
The same holds true with respect to the DOJ. Its
authority under Section 3 (2), Chapter 1, Title III,
Book IV in the Revised Administrative Code is by
no means exclusive and, thus, can be shared with
a body likewise tasked to investigate the
commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be
inferred that the findings of the PTC are to be
accorded
conclusiveness.
Much
like
its
427
petitioners argue that no offense is committed

against the equal protection clause for "the
segregation of the transactions of public officers
during the previous administration as possible
subjects of investigation is a valid classification
based on substantial distinctions and is germane to
the evils which the Executive Order seeks to
correct." 72 To distinguish the Arroyo administration
from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread
reports of large scale graft and corruption in the
previous administration which have eroded public
confidence in public institutions. There is, therefore,
an urgent call for the determination of the truth
regarding certain reports of large scale graft and
corruption in the government and to put a closure to
them by the filing of the appropriate cases against
those involved, if warranted, and to deter others
from committing the evil, restore the people's faith
and confidence in the Government and in their
public servants.
every
unfair
discrimination
offends
the
requirements of justice and fair play. It has been
embodied in a separate clause, however, to provide
for a more specific guaranty against any form of
undue favoritism or hostility from the government.
Arbitrariness in general may be challenged on the
basis of the due process clause. But if the particular
act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the
equal protection clause. 74
"According to a long line of decisions, equal
protection simply requires that all persons or things
similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed." 75 It
"requires public bodies and institutions to treat
similarly situated individuals in a similar manner."
76 "The purpose of the equal protection clause is to
secure every person within a state's jurisdiction
against intentional and arbitrary discrimination,
whether occasioned by the express terms of a
statue or by its improper execution through the
state's duly constituted authorities." 77 "In other
words, the concept of equal justice under the law
requires the state to govern impartially, and it may
not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate
governmental objective." 78
The equal protection clause is aimed at all official
state actions, not just those of the legislature. 79 Its
inhibitions cover all the departments of the
government including the political and executive
departments, and extend to all actions of a state
denying equal protection of the laws, through
whatever agency or whatever guise is taken. 80
It, however, 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. Indeed, the equal protection
clause permits classification. Such classification,
however, to be valid must pass the test of
reasonableness. The test has four requisites: (1)
The classification rests on substantial distinctions;
(2) It is germane to the purpose of the law; (3) It is
not limited to existing conditions only; and (4) It
applies equally to all members of the same class.
81 "Superficial differences do not make for a valid
classification." 82
For a classification to meet the requirements of
constitutionality, it must include or embrace all
persons who naturally belong to the class. 83 "The
classification will be regarded as invalid if all the
members of the class are not similarly treated, both
as to rights conferred and obligations imposed. It is
not necessary that the classification be made with
absolute symmetry, in the sense that the members
of the class should possess the same
characteristics in equal degree. Substantial
similarity will suffice; and as long as this is
achieved, all those covered by the classification are
to be treated equally. The mere fact that an
individual belonging to a class differs from the other
members, as long as that class is substantially
distinguishable from all others, does not justify the
non-application of the law to him." 84 cSICHD
Second. The segregation of the preceding

administration as the object of fact-finding is
warranted by the reality that unlike with
administrations
long
gone,
the
current
administration will most likely bear the immediate
consequence of the policies of the previous
administration.
Third. The classification of the previous
administration as a separate class for investigation
lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to
recovery of public monies illegally dissipated, the
policy lessons to be learned to ensure that anticorruption laws are faithfully executed, are more
easily established in the regime that immediately
precede the current administration.
Fourth.
Many administrations
subject
the
transactions of their predecessors to investigations
to provide closure to issues that are pivotal to
national life or even as a routine measure of due
diligence and good housekeeping by a nascent
administration like the Presidential Commission on
Good Government (PCGG), created by the late
President Corazon C. Aquino under Executive
Order No. 1 to pursue the recovery of ill-gotten
wealth of her predecessor former President
Ferdinand Marcos and his cronies, and the
Saguisag Commission created by former President
Joseph Estrada under Administrative Order No, 53,
to form an ad-hoc and independent citizens'
committee to investigate all the facts and
circumstances surrounding "Philippine Centennial
projects" of his predecessor, former President Fidel
V. Ramos. 73 [Emphases supplied] TcHEaI
Concept of the Equal Protection Clause
One of the basic principles on which this
government was founded is that of the equality of
right which is embodied in Section 1, Article III of
the 1987 Constitution. The equal protection of the
laws is embraced in the concept of due process, as
428
The classification must not be based on existing

circumstances only, or so constituted as to preclude
addition to the number included in the class. It must
be of such a nature as to embrace all those who
may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain
classification. As elucidated in Victoriano v. Elizalde
Rope Workers' Union 85 and reiterated in a long
line of cases, 86
The guaranty of equal protection of the laws is not
a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional
prohibition against inequality, that every man,
woman and child should be affected alike by a
statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely
as such, but on persons according to the
circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does
not require that things which are different in fact be
treated in law as though they were the same. The
equal protection clause does not forbid
discrimination as to things that are different. It does
not prohibit legislation which is limited either in the
object to which it is directed or by the territory within
which it is to operate.
corruption during the previous administration, and

which will recommend the prosecution of the
offenders and secure justice for all;
SECTION 1. Creation of a Commission. There is
hereby
created
the
PHILIPPINE
TRUTH
COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and
find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and
magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by
public officers and employees, their co-principals,
sector, if any, during the previous administration;
and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or
favor.
SECTION 2. Powers and Functions. The
Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and
corruption referred to in Section 1, involving third
level public officers and higher, their co-principals,
sector, if any, during the previous administration
and
thereafter
submit
its
finding
and
recommendations to the President, Congress and
the Ombudsman. [Emphases supplied] HIaSDc
The equal protection of the laws clause of the

Constitution allows classification. Classification in
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or
practice because they agree with one another in
certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines
the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which
means that the classification should be based on
substantial distinctions which make for real
differences, that it must be germane to the purpose
of the law; that it must not be limited to existing
conditions only; and that it must apply equally to
each member of the class. This Court has held that
the standard is satisfied if the classification or
distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary.
[Citations omitted]
In this regard, it must be borne in mind that the

Arroyo administration is but just a member of a
class, that is, a class of past administrations. It is
not a class of its own. Not to include past
administrations similarly situated constitutes
arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation
clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences
between the Arroyo administration and other past
administrations, these distinctions are not
substantial enough to merit the restriction of the
investigation to the "previous administration" only.
The reports of widespread corruption in the Arroyo
administration cannot be taken as basis for
distinguishing said administration from earlier
administrations which were also blemished by
similar widespread reports of impropriety. They are
not inherent in, and do not inure solely to, the
Arroyo administration. As Justice Isagani Cruz put
it, "Superficial differences do not make for a valid
classification." 88
The public needs to be enlightened why Executive
Order No. 1 chooses to limit the scope of the
intended
investigation
to
the
previous
administration only. The OSG ventures to opine
that "to include other past administrations, at this
point,
may unnecessarily overburden
the
commission and lead it to lose its effectiveness." 89
The reason given is specious. It is without doubt
Applying these precepts to this case, Executive

Order No. 1 should be struck down as violative of
the equal protection clause. The clear mandate of
the envisioned truth commission is to investigate
and find out the truth "concerning the reported
cases of graft and corruption during the previous
administration" 87 only. The intent to single out the
previous administration is plain, patent and
manifest. Mention of it has been made in at least
three portions of the questioned executive order.
Specifically, these are:
WHEREAS, there is a need for a separate body
dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and
429
irrelevant to the legitimate and noble objective of

the PTC to stamp out or "end corruption and the
evil it breeds." 90
The probability that there would be difficulty in
unearthing evidence or that the earlier reports
involving the earlier administrations were already
inquired into is beside the point. Obviously,
deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry
by the PTC. Neither is the PTC expected to
conduct simultaneous investigations of previous
administrations, given the body's limited time and
resources. "The law does not require the
impossible" (Lex non cogit ad impossibilia). 91
Given the foregoing physical and legal impossibility,
the Court logically recognizes the unfeasibility of
investigating almost a century's worth of graft
cases. However, the fact remains that Executive
Order No. 1 suffers from arbitrary classification.
The PTC, to be true to its mandate of searching for
the truth, must not exclude the other past
administrations. The PTC must, at least, have the
authority to investigate all past administrations.
While reasonable prioritization is permitted, it
should not be arbitrary lest it be struck down for
being unconstitutional. In the often quoted
language of Yick Wo v. Hopkins, 92
Though the law itself be fair on its face and
impartial in appearance, yet, if applied and
administered by public authority with an evil eye
and an unequal hand, so as practically to make
unjust and illegal discriminations between persons
in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of
the constitution. [Emphasis supplied]
embrace all persons who naturally belong to the

class. 96 "Such a classification must not be based
on existing circumstances only, or so constituted as
to preclude additions to the number included within
a class, but must be of such a nature as to
embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who
are in situations and circumstances which are
relative to the discriminatory legislation and which
are indistinguishable from those of the members of
the class must be brought under the influence of
the law and treated by it in the same way as are the
members of the class." 97 TaDAIS
The Court is not unaware that "mere
underinclusiveness is not fatal to the validity of a
law under the equal protection clause." 98
"Legislation is not unconstitutional merely because
it is not all-embracing and does not include all the
evils within its reach." 99 It has been written that a
regulation challenged under the equal protection
clause is not devoid of a rational predicate simply
because it happens to be incomplete. 100 In
several instances, the underinclusiveness was not
considered a valid reason to strike down a law or
regulation where the purpose can be attained in
future legislations or regulations. These cases refer
to the "step by step" process. 101 "With regard to
equal protection claims, a legislature does not run
the risk of losing the entire remedial scheme simply
because it fails, through inadvertence or otherwise,
to cover every evil that might conceivably have
been attacked." 102
In Executive Order No. 1, however, there is no
inadvertence. That the previous administration was
picked out was deliberate and intentional as can be
gleaned from the fact that it was underscored at
least three times in the assailed executive order. It
must be noted that Executive Order No. 1 does not
even mention any particular act, event or report to
be focused on unlike the investigative commissions
created in the past. "The equal protection clause is
violated
by
purposeful
and
intentional
discrimination." 103
To disprove petitioners' contention that there is
deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of
large scale graft and corruption committed during
the previous administration. 104 The OSG points to
Section 17 of Executive Order No. 1, which
provides:
SECTION 17. Special Provision Concerning
Mandate. If and when in the judgment of the
President there is a need to expand the mandate of
the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of
graft
and
corruption
during
the
prior
administrations, such mandate may be so extended
accordingly by way of a supplemental Executive
Order.
It could be argued that considering that the PTC is

an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its
focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any
way be circumvented. The Constitution is the
fundamental and paramount law of the nation to
which all other laws must conform and in
accordance with which all private rights determined
and all public authority administered. 93 Laws that
do not conform to the Constitution should be
stricken down for being unconstitutional. 94 While
the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption,
Executive Order No. 1, to survive, must be read
together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of
"substantial distinctions" would only confirm the
petitioners' lament that the subject executive order
is only an "adventure in partisan hostility." In the
case of US v. Cyprian, 95 it was written: "A rather
limited number of such classifications have
routinely been held or assumed to be arbitrary;
those include: race, national origin, gender, political
activity or membership in a political party, union
activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the
requirements of constitutionality, it must include or
The Court is not convinced. Although Section 17

allows the President the discretion to expand the
scope of investigations of the PTC so as to include
the acts of graft and corruption committed in other
past administrations, it does not guarantee that
430
they would be covered in the future. Such

expanded mandate of the commission will still
depend on the whim and caprice of the President. If
he would decide not to include them, the section
would then be meaningless. This will only fortify the
fears of the petitioners that the Executive Order No.
1 was "crafted to tailor-fit the prosecution of officials
and personalities of the Arroyo administration." 105
The Court tried to seek guidance from the
pronouncement in the case of Virata v.
Sandiganbayan, 106 that the "PCGG Charter
(composed of Executive Orders Nos. 1, 2 and 14)
does not violate the equal protection clause." The
decision, however, was devoid of any discussion on
how such conclusory statement was arrived at, the
principal issue in said case being only the
sufficiency of a cause of action.
A final word
The issue that seems to take center stage at
present is whether or not the Supreme Court, in
the exercise of its constitutionally mandated power
of Judicial Review with respect to recent initiatives
of the legislature and the executive department, is
exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of
the Constitution, itself guilty of violating
fundamental tenets like the doctrine of separation
of powers? Time and again, this issue has been
addressed by the Court, but it seems that the
present political situation calls for it to once again
explain the legal basis of its action lest it continually
be accused of being a hindrance to the nation's
thrust to progress.
The Philippine Supreme Court, according to Article
VIII, Section 1 of the 1987 Constitution, is vested
with Judicial Power that "includes the duty of the
courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not there
has been a grave of abuse of discretion amounting
to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government."
SECHIA
Furthermore, in Section 4 (2) thereof, it is vested
with the power of judicial review which is the power
to declare a treaty, international or executive
agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation
unconstitutional. This power also includes the duty
to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations,
orders, instructions, ordinances, and other
regulations. These provisions, however, have been
fertile grounds of conflict between the Supreme
Court, on one hand, and the two co-equal bodies of
government, on the other. Many times the Court
has been accused of asserting superiority over the
other departments.
To answer this accusation, the words of Justice
Laurel would be a good source of enlightenment, to
wit: "And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not
in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to

determine conflicting claims of authority under the
Constitution and to establish for the parties in an
actual controversy the rights which that instrument
secures and guarantees to them." 107
Thus, the Court, in exercising its power of judicial
review, is not imposing its own will upon a co-equal
body but rather simply making sure that any act of
government is done in consonance with the
authorities and rights allocated to it by the
Constitution. And, if after said review, the Court
finds no constitutional violations of any sort, then, it
has no more authority of proscribing the actions
under review. Otherwise, the Court will not be
deterred to pronounce said act as void and
unconstitutional.
It cannot be denied that most government actions
are inspired with noble intentions, all geared
towards the betterment of the nation and its people.
But then again, it is important to remember this
ethical principle: "The end does not justify the
means." No matter how noble and worthy of
admiration the purpose of an act, but if the means
to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it
cannot still be allowed. 108 The Court cannot just
turn a blind eye and simply let it pass. It will
continue to uphold the Constitution and its
enshrined principles.
"The Constitution must ever remain supreme. All
must bow to the mandate of this law. Expediency
must not be allowed to sap its strength nor greed
for power debase its rectitude." 109
Lest it be misunderstood, this is not the death knell
for a truth commission as nobly envisioned by the
present administration. Perhaps a revision of the
executive issuance so as to include the earlier past
administrations would allow it to pass the test of
reasonableness and not be an affront to the
Constitution. Of all the branches of the government,
it is the judiciary which is the most interested in
knowing the truth and so it will not allow itself to be
a hindrance or obstacle to its attainment. It must,
however, be emphasized that the search for the
truth must be within constitutional bounds for "ours
is still a government of laws and not of men." 110
WHEREFORE, the petitions are GRANTED.
Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of
the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby
ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.
SO ORDERED.
Velasco, Jr., Del Castillo, Abad and Villarama, Jr.,
JJ., concur.
Corona, C.J., see separate opinion (concurring).
Carpio, J., see dissenting opinion.
Carpio Morales, J., please see dissenting opinion.
431
Velasco Jr., J., C.J. Corona certifies that Justice

Velasco left his concurring vote.
their revenue targets by providing a system of

rewards and sanctions through the creation of a
Rewards and Incentives Fund (Fund) and a
Revenue Performance Evaluation Board (Board). It
covers all officials and employees of the BIR and
the BOC with at least six months of service,
regardless of employment status.
Nachura, J., see concurring and dissenting opinion.

Leonardo-De Castro, J., see separate concurring
opinion.
Brion, J., see separate opinion (concurring).
The Fund is sourced from the collection of the BIR

and the BOC in excess of their revenue targets for
the year, as determined by the Development
Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and
allocated to the BIR and the BOC in proportion to
their contribution in the excess collection of the
targeted amount of tax revenue.
Peralta, J., see separate concurring opinion.

Bersamin, J., see his separate opinion.
Abad, J., see separate dissenting opinion.
Perez, J., see separate opinion (concurring).
The Boards in the BIR and the BOC are composed

of the Secretary of the Department of Finance
(DOF) or his/her Undersecretary, the Secretary of
the Department of Budget and Management (DBM)
or his/her Undersecretary, the Director General of
the National Economic Development Authority
(NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their
Deputy Commissioners, two representatives from
the rank-and-file employees and a representative
from the officials nominated by their recognized
organization.
Sereno, J., see dissenting opinion.

||| (Biraogo v. Philippine Truth Commission of 2010,
G.R. No. 192935, 193036, [December 7, 2010],
651 PHIL 374-773)
5. BOCEA VS. TEVES 661 SCRA 589 (2011)
EN BANC
[G.R. No. 181704. December 6, 2011.]
BUREAU
OF
CUSTOMS
EMPLOYEES
ASSOCIATION (BOCEA), represented by its
National President (BOCEA National Executive
Council) Mr. Romulo A. Pagulayan, petitioner, vs.
HON. MARGARITO B. TEVES, in his capacity as
Secretary of the Department of Finance, HON.
NAPOLEON L. MORALES, in his capacity as
Commissioner of the Bureau of Customs, HON.
LILIAN B. HEFTI, in her capacity as Commissioner
of the Bureau of Internal Revenue, respondents.
Each Board has the duty to (1) prescribe the rules

and guidelines for the allocation, distribution and
release of the Fund; (2) set criteria and procedures
for removing from the service officials and
employees whose revenue collection falls short of
the target; (3) terminate personnel in accordance
with the criteria adopted by the Board; (4) prescribe
a system for performance evaluation; (5) perform
other functions, including the issuance of rules and
regulations and (6) submit an annual report to
Congress. aCTcDH
DECISION
The DOF, DBM, NEDA, BIR, BOC and the Civil
Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and
regulations of RA [No.] 9335, to be approved by a
Joint Congressional Oversight Committee created
for such purpose. 5
Before this Court is a petition 1 for certiorari and
prohibition with prayer for injunctive relief/s under
Rule 65 of the 1997 Rules of Civil Procedure, as
amended, to declare Republic Act (R.A.) No. 9335,
2 otherwise known as the Attrition Act of 2005, and
its Implementing Rules and Regulations 3 (IRR)
unconstitutional, and the implementation thereof be
enjoined permanently.
The Facts
On January 25, 2005, former President Gloria
Macapagal-Arroyo signed into law R.A. No. 9335
which took effect on February 11, 2005.
In Abakada Guro Party List v. Purisima 4
(Abakada), we said of R.A. No. 9335:
The Joint Congressional Oversight Committee

approved the assailed IRR on May 22, 2006.
Subsequently, the IRR was published on May 30,
2006 in two newspapers of general circulation, the
Philippine Star and the Manila Standard, and
became effective fifteen (15) days later. 6
Contending that the enactment and implementation
of R.A. No. 9335 are tainted with constitutional
infirmities in violation of the fundamental rights of its
members, petitioner Bureau of Customs Employees
Association (BOCEA), an association of rank-andfile employees of the Bureau of Customs (BOC),
duly registered with the Department of Labor and
Employment (DOLE) and the Civil Service
Commission (CSC), and represented by its
National President, Mr. Romulo A. Pagulayan
RA [No.] 9335 was enacted to optimize the

Bureau of Internal Revenue (BIR) and the Bureau
of Customs (BOC). The law intends to encourage
BIR and BOC officials and employees to exceed
432
(Pagulayan), directly filed the present petition

before this Court against respondents Margarito B.
Teves, in his capacity as Secretary of the
Department of Finance (DOF), Commissioner
Napoleon L. Morales (Commissioner Morales), in
his capacity as BOC Commissioner, and Lilian B.
Hefti, in her capacity as Commissioner of the
Bureau of Internal Revenue (BIR). In its petition,
BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the
BOC pursuant to the mandate of R.A. No. 9335 and
its IRR, and in order to comply with the stringent
deadlines thereof, started to disseminate Collection
District Performance Contracts 7 (Performance
Contracts) for the lower ranking officials and rankand-file employees to sign. The Performance
Contract pertinently provided:
xxx xxx xxx
policies on reduced tariff rates and tax breaks to big

businesses, the occurrence of natural calamities
and because of other economic factors. BOCEA
claimed that some BOC employees were coerced
and forced to sign the Performance Contract. The
majority of them, however, did not sign. In
particular, officers of BOCEA were summoned and
required to sign the Performance Contracts but
they also refused. To ease the brewing tension,
BOCEA claimed that its officers sent letters, and
sought several dialogues with BOC officials but the
latter refused to heed them.
In addition, BOCEA alleged that Commissioner
Morales exerted heavy pressure on the District
Collectors, Chiefs of Formal Entry Divisions,
Principal Customs Appraisers and Principal
Customs Examiners of the BOC during command
conferences to make them sign their Performance
Contracts. Likewise, BOC Deputy Commissioner
Reynaldo Umali (Deputy Commissioner Umali)
individually spoke to said personnel to convince
them to sign said contracts. Said personnel were
threatened that if they do not sign their respective
Performance Contracts, they would face possible
reassignment, reshuffling, or worse, be placed on
floating status. Thus, all the District Collectors,
except a certain Atty. Carlos So of the Collection
District III of the Ninoy Aquino International Airport
(NAIA), signed the Performance Contracts.
ESCDHA
BOCEA further claimed that Pagulayan was
constantly harassed and threatened with lawsuits.
Pagulayan approached Deputy Commissioner
Umali to ask the BOC officials to stop all forms of
harassment, but the latter merely said that he
would look into the matter. On February 5, 2008,
BOCEA through counsel wrote the Revenue
Performance Evaluation Board (Board) to desist
from implementing R.A. No. 9335 and its IRR and
from requiring rank-and-file employees of the BOC
and BIR to sign Performance Contracts. 9 In his
letter-reply 10 dated February 12, 2008, Deputy
Commissioner Umali denied having coerced any
BOC employee to sign a Performance Contract. He
also defended the BOC, invoking its mandate of
merely implementing the law. Finally, Pagulayan
and BOCEA's counsel, on separate occasions,
requested for a certified true copy of the
Performance Contract from Deputy Commissioner
Umali but the latter failed to furnish them a copy. 11
This petition was filed directly with this Court on
March 3, 2008. BOCEA asserted that in view of the
unconstitutionality of R.A. No. 9335 and its IRR,
and their adverse effects on the constitutional rights
of BOC officials and employees, direct resort to this
Court is justified. BOCEA argued, among others,
that its members and other BOC employees are in
great danger of losing their jobs should they fail to
meet the required quota provided under the law, in
clear violation of their constitutional right to security
of tenure, and at their and their respective families'
prejudice.
In their Comment, 12 respondents, through the
Office of the Solicitor General (OSG), countered
that R.A. No. 9335 and its IRR do not violate the
WHEREAS, pursuant to the provisions of Sec. 25

(b) of the Implementing Rules and Regulations
(IRR) of the Attrition Act of 2005, that provides for
the setting of criteria and procedures for removing
from the service Officials and Employees whose
revenue collection fall short of the target in
accordance with Section 7 of Republic Act 9335.
xxx xxx xxx
NOW, THEREFORE, for and in consideration of the
foregoing premises, parties unto this Agreement
hereby agree and so agreed to perform the
following:
xxx xxx xxx
2. The "Section 2, PA/PE" hereby accepts the
allocated Revenue Collection Target and further
accepts/commits to meet the said target under the
following conditions:
a.) That he/she will meet the allocated Revenue
Collection Target and thereby undertakes and binds
himself/herself that in the event the revenue
collection falls short of the target with due
regulations promulgated under the Act and its IRR,
he/she will voluntarily submit to the provisions of
Sec. 25 (b) of the IRR and Sec. 7 of the Act; and
b.) That he/she will cascade and/or allocate to
respective Appraisers/Examiners or Employees
under his/her section the said Revenue Collection
Target and require them to execute a Performance
Contract, and direct them to accept their individual
target. The Performance Contract executed by the
respective Examiners/Appraisers/Employees shall
be submitted to the Office of the Commissioner
through the LAIC on or before March 31, 2008.
xxx xxx xxx 8
BOCEA opined that the revenue target was
impossible to meet due to the Government's own
433
right to due process and right to security of tenure

of BIR and BOC employees. The OSG stressed
that the guarantee of security of tenure under the
1987 Constitution is not a guarantee of perpetual
employment. R.A. No. 9335 and its IRR provided a
reasonable and valid ground for the dismissal of an
employee which is germane to the purpose of the
law. Likewise, R.A. No. 9335 and its IRR provided
that an employee may only be separated from the
service upon compliance with substantive and
procedural due process. The OSG added that R.A.
No. 9335 and its IRR must enjoy the presumption
of constitutionality.
In its Reply, 13 BOCEA claimed that R.A. No. 9335
employs means that are unreasonable to achieve
its stated objectives; that the law is unduly
oppressive of BIR and BOC employees as it shifts
the extreme burden upon their shoulders when the
Government itself has adopted measures that
make collection difficult such as reduced tariff rates
to almost zero percent and tax exemption of big
businesses; and that the law is discriminatory of
BIR and BOC employees. BOCEA manifested that
only the high-ranking officials of the BOC benefited
largely from the reward system under R.A. No.
9335 despite the fact that they were not the ones
directly toiling to collect revenue. Moreover, despite
the BOCEA's numerous requests, 14 BOC
continually refused to provide BOCEA the
Expenditure Plan on how such reward was
distributed.
Since BOCEA was seeking similar reliefs as that of
the petitioners in Abakada Guro Party List v.
Purisima, BOCEA filed a Motion to Consolidate 15
the present case with Abakada on April 16, 2008.
However, pending action on said motion, the Court
rendered its decision in Abakada on August 14,
2008. Thus, the consolidation of this case with
Abakada was rendered no longer possible. 16
In Abakada, this Court, through then Associate
Justice, now Chief Justice Renato C. Corona,
declared Section 12 17 of R.A. No. 9335 creating a
Joint Congressional Oversight Committee to
approve the IRR as unconstitutional and violative of
the principle of separation of powers. However, the
constitutionality of the remaining provisions of R.A.
No. 9335 was upheld pursuant to Section 13 18 of
R.A. No. 9335. The Court also held that until the
contrary is shown, the IRR of R.A. No. 9335 is
presumed valid and effective even without the
approval of the Joint Congressional Oversight
Committee. 19
Notwithstanding our ruling in Abakada, both parties
complied with our Resolution 20 dated February 10,
2009, requiring them to submit their respective
Memoranda.
The Issues
BOCEA raises the following issues:
I.
COVERED BIR AND BOC OFFICIALS AND

EMPLOYEES[;]
II.
REPUBLIC ACT [NO.]
9335, AND
ITS
THE RIGHT OF BIR AND BOC OFFICIALS AND
EMPLOYEES TO THE EQUAL PROTECTION OF
THE LAWS[;] AECDHS
III.
AND
ITS
IMPLEMENTING
RULES
AND
REGULATIONS VIOLATE THE RIGHT TO
SECURITY OF TENURE OF BIR AND BOC
OFFICIALS AND EMPLOYEES AS ENSHRINED
UNDER SECTION 2 (3), ARTICLE IX (B) OF THE
CONSTITUTION[;]
IV.
AND
ITS
IMPLEMENTING
RULES
AND
REGULATIONS ARE UNCONSTITUTIONAL AS
THEY CONSTITUTE UNDUE DELEGATION OF
LEGISLATIVE POWERS TO THE REVENUE
PERFORMANCE EVALUATION BOARD IN
VIOLATION
OF
THE
PRINCIPLE
OF
SEPARATION OF POWERS ENSHRINED IN THE
CONSTITUTION[; AND]
V.
IS A BILL OF ATTAINDER AND HENCE[,]
UNCONSTITUTIONAL BECAUSE IT INFLICTS
PUNISHMENT THROUGH LEGISLATIVE FIAT
UPON A PARTICULAR GROUP OR CLASS OF
OFFICIALS AND EMPLOYEES WITHOUT TRIAL.
21
BOCEA manifested that while waiting for the Court
to give due course to its petition, events unfolded
showing the patent unconstitutionality of R.A. No.
9335. It narrated that during the first year of the
implementation of R.A. No. 9335, BOC employees
exerted commendable efforts to attain their revenue
target of P196 billion which they surpassed by as
much as P2 billion for that year alone. However,
this was attained only because oil companies made
advance tax payments to BOC. Moreover, BOC
employees were given their "reward" for surpassing
said target only in 2008, the distribution of which
they described as unjust, unfair, dubious and
fraudulent because only top officials of BOC got the
huge sum of reward while the employees, who did
the hard task of collecting, received a mere pittance
of around P8,500.00. In the same manner, the
Bonds Division of BOC-NAIA collected 400+% of its
designated target but the higher management gave
out to the employees a measly sum of P8,500.00

REPUBLIC ACT [NO.]
9335, AND
ITS
THE RIGHT TO DUE PROCESS OF THE
434
while the top level officials partook of millions of the

excess collections. BOCEA relies on a piece of
information revealed by a newspaper showing the
list of BOC officials who apparently earned huge
amounts of money by way of reward. 22 It claims
that the recipients thereof included lawyers, support
personnel and other employees, including a dentist,
who performed no collection functions at all. These
alleged anomalous selection, distribution and
allocation of rewards was due to the failure of R.A.
No. 9335 to set out clear guidelines. 23
In addition, BOCEA avers that the Board initiated
the first few cases of attrition for the Fiscal Year
2007 by subjecting five BOC officials from the Port
of Manila to attrition despite the fact that the Port of
Manila substantially complied with the provisions of
R.A. No. 9335. It is thus submitted that the
selection of these officials for attrition without
proper investigation was nothing less than arbitrary.
Further, the legislative and executive departments'
promulgation of issuances and the Government's
accession to regional trade agreements have
caused a significant diminution of the tariff rates,
thus, decreasing over-all collection. These
unrealistic settings of revenue targets seriously
affect BIR and BOC employees tasked with the
burden of collection, and worse, subjected them to
attrition. 24
BOCEA assails the constitutionality of R.A. No.
9335 and its IRR on the following grounds:
BOC employees' right to due process because the
termination of employees who had not attained
their revenue targets for the year is peremptory and
done without any form of hearing to allow said
employees to ventilate their side. Moreover, R.A.
No. 9335 and its IRR do not comply with the
requirements under CSC rules and regulations as
the dismissal in this case is immediately executory.
Such immediately executory nature of the Board's
decision negates the remedies available to an
employee as provided under the CSC rules.
unpredictable and therefore

unreasonable. SDaHEc
arbitrary
and
4. R.A. No. 9335 and its IRR violate the 1987

Constitution because Congress granted to the
Revenue Performance Evaluation Board (Board)
the unbridled discretion of formulating the criteria
for termination, the manner of allocating targets, the
distribution of rewards and the determination of
relevant factors affecting the targets of collection,
which is tantamount to undue delegation of
legislative power.
5. R.A. No. 9335 is a bill of attainder because it
inflicts punishment upon a particular group or class
of officials and employees without trial. This is
evident from the fact that the law confers upon the
Board the power to impose the penalty of removal
upon employees who do not meet their revenue
targets; that the same is without the benefit of
hearing; and that the removal from service is
immediately executory. Lastly, it disregards the
presumption of regularity in the performance of the
official functions of a public officer. 25
On the other hand, respondents through the OSG
stress that except for Section 12 of R.A. No. 9335,
R.A. No. 9335 and its IRR are constitutional, as per
our ruling in Abakada. Nevertheless, the OSG
argues that the classification of BIR and BOC
employees as public officers under R.A. No. 9335
is based on a valid and substantial distinction since
the revenue generated by the BIR and BOC is
essentially in the form of taxes, which is the
lifeblood of the State, while the revenue produced
by other agencies is merely incidental or secondary
to their governmental functions; that in view of their
mandate, and for purposes of tax collection, the
BIR and BOC are sui generis; that R.A. No. 9335
complies with the "completeness" and "sufficient
standard" tests for the permissive delegation of
legislative power to the Board; that the Board
exercises its delegated power consistent with the
policy laid down in the law, that is, to optimize the
revenue generation capability and collection of the
BIR and the BOC; that parameters were set in
order that the Board may identify the officials and
employees subject to attrition, and the proper
procedure for their removal in case they fail to meet
the targets set in the Performance Contract were
provided; and that the rights of BIR and BOC
employees to due process of law and security of
tenure are duly accorded by R.A. No. 9335. The
OSG likewise maintains that there was no
encroachment of judicial power in the enactment of
R.A. No. 9335 amounting to a bill of attainder since
R.A. No. 9335 and its IRR merely defined the
offense and provided for the penalty that may be
imposed. Finally, the OSG reiterates that the
separation from the service of any BIR or BOC
employee under R.A. No. 9335 and its IRR shall be
done only upon due consideration of all relevant
factors affecting the level of collection, subject to
Civil Service laws, rules and regulations, and in
BOC employees' right to equal protection of the law
because R.A. No. 9335 and its IRR unduly
discriminates against BIR and BOC employees as
compared to employees of other revenue
generating government agencies like the Philippine
Amusement and Gaming Corporation, Department
of Transportation and Communication, the Air
Transportation Office, the Land Transportation
Office, and the Philippine Charity Sweepstakes
Office, among others, which are not subject to
attrition.
BOC employees' right to security of tenure because
R.A. No. 9335 and its IRR effectively removed
remedies provided in the ordinary course of
administrative procedure afforded to government
employees. The law likewise created another
ground for dismissal, i.e., non-attainment of
revenue collection target, which is not provided
under CSC rules and which is, by its nature,
435
process. The OSG opines that the Performance

Contract, far from violating the BIR and BOC
employees' right to due process, actually serves as
a notice of the revenue target they have to meet
and the possible consequences of failing to meet
the same. More, there is nothing in the law which
prevents the aggrieved party from appealing the
unfavorable decision of dismissal. 26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative
power to the Board;
an exception to this principle. Given the volume and

variety of interactions in today's society, it is
doubtful if the legislature can promulgate laws that
will deal adequately with and respond promptly to
the minutiae of everyday life. Hence, the need to
delegate to administrative bodies the principal
agencies tasked to execute laws in their specialized
fields the authority to promulgate rules and
regulations to implement a given statute and
effectuate its policies. All that is required for the
valid exercise of this power of subordinate
legislation is that the regulation be germane to the
objects and purposes of the law and that the
regulation be not in contradiction to, but in
conformity with, the standards prescribed by the
law. These requirements are denominated as the
completeness test and the sufficient standard test.
32
2. Whether R.A. No. 9335 and its IRR violate the

rights of BOCEA's members to: (a) equal protection
of laws, (b) security of tenure and (c) due process;
and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact
uncontroverted, that BOCEA has locus standi.
BOCEA impugns the constitutionality of R.A. No.
9335 and its IRR because its members, who are
rank-and-file employees of the BOC, are actually
covered by the law and its IRR. BOCEA's members
have a personal and substantial interest in the
case, such that they have sustained or will sustain,
direct injury as a result of the enforcement of R.A.
No. 9335 and its IRR. 27
However, we find no merit in the petition and
perforce dismiss the same.
It must be noted that this is not the first time the
constitutionality of R.A. No. 9335 and its IRR are
being challenged. The Court already settled the
majority of the same issues raised by BOCEA in
our decision in Abakada, which attained finality on
September 17, 2008. As such, our ruling therein is
worthy of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that
each of the three great branches of government
has exclusive cognizance of and is supreme in
matters falling within its own constitutionally
allocated sphere. 28 Necessarily imbedded in this
doctrine is the principle of non-delegation of
powers, as expressed in the Latin maxim potestas
delegata non delegari potest, which means "what
has been delegated, cannot be delegated." This
doctrine is based on the ethical principle that such
delegated power constitutes not only a right but a
duty to be performed by the delegate through the
instrumentality of his own judgment and not through
the intervening mind of another. 29 However, this
principle of non-delegation of powers admits of
numerous exceptions, 30 one of which is the
delegation of legislative power to various
specialized administrative agencies like the Board
in this case. cDACST
The rationale for the aforementioned exception was
clearly explained in our ruling in Gerochi v.
Department of Energy, 31 to wit:
In the face of the increasing complexity of modern
life, delegation of legislative power to various
specialized administrative agencies is allowed as
Thus, in Abakada, we held,

Two tests determine the validity of delegation of
legislative power: (1) the completeness test and (2)
the sufficient standard test. A law is complete when
it sets forth therein the policy to be executed,
carried out or implemented by the delegate. It lays
down a sufficient standard when it provides
adequate guidelines or limitations in the law to map
out the boundaries of the delegate's authority and
prevent the delegation from running riot. To be
sufficient, the standard must specify the limits of the
delegate's authority, announce the legislative policy
and identify the conditions under which it is to be
implemented.
RA [No.] 9335 adequately states the policy and
standards to guide the President in fixing revenue
targets and the implementing agencies in carrying
out the provisions of the law. Section 2 spells out
the policy of the law:
"SEC. 2. Declaration of Policy. It is the policy of
the State to optimize the revenue-generation
capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC)
by providing for a system of rewards and sanctions
through the creation of a Rewards and Incentives
Fund and a Revenue Performance Evaluation
Board in the above agencies for the purpose of
encouraging their officials and employees to
exceed their revenue targets."
Section 4 "canalized within banks that keep it from
overflowing" the delegated power to the President
to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. A
Rewards and Incentives Fund, hereinafter referred
to as the Fund, is hereby created, to be sourced
from the collection of the BIR and the BOC in
excess of their respective revenue targets of the
year, as determined by the Development Budget
and Coordinating Committee (DBCC), in the
following percentages:
436
Excess of Collection
Percent (%) of the
Excess
[Over] the Revenue
Collection to Accrue
to the
Targets
Fund
30% or below
15%
More than 30%
15% of the first 30%

plus
20% of the remaining excess
performance that can be used as basis for

evaluation; and
2. Where the revenue or customs official or
employee is a recent transferee in the middle of the
period under consideration unless the transfer was
due to nonperformance of revenue targets or
potential nonperformance of revenue targets:
Provided, however, That when the district or area of
responsibility covered by revenue or customs
officials or employees has suffered from economic
difficulties brought about by natural calamities or
force majeure or economic causes as may be
determined by the Board, termination shall be
considered only after careful and proper review by
the Board.
The Fund shall be deemed automatically

appropriated the year immediately following the
year when the revenue collection target was
exceeded and shall be released on the same fiscal
year.
Revenue targets shall refer to the original estimated
revenue collection expected of the BIR and the
BOC for a given fiscal year as stated in the Budget
of Expenditures and Sources of Financing (BESF)
submitted by the President to Congress. The BIR
and the BOC shall submit to the DBCC the
distribution of the agencies' revenue targets as
allocated among its revenue districts in the case of
the BIR, and the collection districts in the case of
the BOC.
(c) To terminate personnel in accordance with the

criteria adopted in the preceding paragraph:
Provided, That such decision shall be immediately
executory: Provided, further, That the application of
the criteria for the separation of an official or
employee from service under this Act shall be
without prejudice to the application of other relevant
laws on accountability of public officers and
employees, such as the Code of Conduct and
Ethical Standards of Public Officers and Employees
and the Anti-Graft and Corrupt Practices Act;
xxx xxx xxx"

Revenue targets are based on the original
estimated revenue collection expected respectively
of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF
submitted by the President to Congress. Thus, the
determination of revenue targets does not rest
solely on the President as it also undergoes the
scrutiny of the DBCC.
xxx xxx xxx"

At any rate, this Court has recognized the following
as sufficient standards: "public interest", "justice
and equity", "public convenience and welfare" and
"simplicity, economy and welfare". In this case, the
declared policy of optimization of the revenuegeneration capability and collection of the BIR and
the BOC is infused with public interest. 33
On the other hand, Section 7 specifies the limits of

the Board's authority and identifies the conditions
under which officials and employees whose
least 7.5% may be removed from the service:
We could not but deduce that the completeness

test and the sufficient standard test were fully
satisfied by R.A. No. 9335, as evident from the
aforementioned Sections 2, 4 and 7 thereof.
Moreover, Section 5 34 of R.A. No. 9335 also
provides for the incentives due to District Collection
Offices. While it is apparent that the last paragraph
of Section 5 provides that "[t]he allocation,
distribution and release of the district reward shall
likewise be prescribed by the rules and regulations
of the Revenue Performance and Evaluation
Board," Section 7 (a) 35 of R.A. No. 9335 clearly
mandates and sets the parameters for the Board by
providing that such rules and guidelines for the
allocation, distribution and release of the fund shall
be in accordance with Sections 4 and 5 of R.A. No.
9335. In sum, the Court finds that R.A. No. 9335,
read and appreciated in its entirety, is complete in
all its essential terms and conditions, and that it
contains sufficient standards as to negate BOCEA's
supposition of undue delegation of legislative power
to the Board.
Similarly, we resolve the second issue in the
negative.
Equal protection simply provides that all persons or
things similarly situated should be treated in a
"SEC. 7. Powers and Functions of the Board.

The Board in the agency shall have the following
powers and functions: DACIHc
xxx xxx xxx
(b) To set the criteria and procedures for removing
from service officials and employees whose
least seven and a half percent (7.5%), with due
regulations promulgated under this Act, subject to
civil service laws, rules and regulations and
process: Provided, That the following exemptions
shall apply:
1. Where the district or area of responsibility is
newly-created, not exceeding two years in
operation, and has no historical record of collection
437
similar manner, both as to rights conferred and

responsibilities imposed. The purpose of the equal
protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express
terms of a statute or by its improper execution
through the state's duly constituted authorities. In
other words, the concept of equal justice under the
law requires the state to govern impartially, and it
may not draw distinctions between individuals
solely on differences that are irrelevant to a
legitimate governmental objective. 36
Thus, on the issue on equal protection of the laws,
we held in Abakada:
The equal protection clause recognizes a valid
classification, that is, a classification that has a
reasonable foundation or rational basis and not
arbitrary. With respect to RA [No.] 9335, its
expressed public policy is the optimization of the
BIR and the BOC. Since the subject of the law is
the revenue-generation capability and collection of
the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically
pertain to the said agencies. Moreover, the law
concerns only the BIR and the BOC because they
have the common distinct primary function of
generating revenues for the national government
through the collection of taxes, customs duties,
fees and charges.
President upon the recommendation of the

Secretary [of the DOF] and hereinafter referred to
as Commissioner, shall have the following
functions:
(1) Collect custom duties, taxes and
corresponding fees, charges and penalties;
the
(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of
tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and
all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign
mails and the clearance of vessels and aircrafts in
all ports of entry;
(6) Administer all legal requirements that are
appropriate;
(7) Prevent and prosecute smuggling and other
illegal activities in all ports under its jurisdiction;
constituent units;
provided by law.
The BIR performs the following functions: CDaSAE

xxx xxx xxx"
"Sec. 18. The Bureau of Internal Revenue. The
Bureau of Internal Revenue, which shall be headed
by and subject to the supervision and control of the
Commissioner of Internal Revenue, who shall be
appointed
by
the
President
upon
the
recommendation of the Secretary [of the DOF],
shall have the following functions:
Both the BIR and the BOC are bureaus under the
DOF. They principally perform the special function
of being the instrumentalities through which the
State exercises one of its great inherent functions
taxation. Indubitably, such substantial distinction
is germane and intimately related to the purpose of
the law. Hence, the classification and treatment
accorded to the BIR and the BOC under RA [No.]
9335 fully satisfy the demands of equal protection.
37
(1) Assess and collect all taxes, fees and charges

and account for all revenues collected;
(2) Exercise duly delegated police powers for the
proper performance of its functions and duties;
As it was imperatively correlated to the issue on

equal protection, the issues on the security of
tenure of affected BIR and BOC officials and
employees and their entitlement to due process
were also settled in Abakada:
Clearly, RA [No.] 9335 in no way violates the
security of tenure of officials and employees of the
BIR and the BOC. The guarantee of security of
tenure only means that an employee cannot be
dismissed from the service for causes other than
those provided by law and only after due process is
accorded the employee. In the case of RA [No.]
9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of
the target by at least 7.5%) with due consideration
of all relevant factors affecting the level of
collection. This standard is analogous to
inefficiency and incompetence in the performance
of official duties, a ground for disciplinary action
under civil service laws. The action for removal is
(3) Prevent and prosecute tax evasions and all

other illegal economic activities;
constituent and subordinate units; and
provided by law.
xxx xxx xxx"
On the other hand, the BOC has the following
functions:
"Sec. 23. The Bureau of Customs. The Bureau
of Customs which shall be headed and subject to
the management and control of the Commissioner
of Customs, who shall be appointed by the
438
also subject to civil service laws, rules and

regulations and compliance with substantive and
procedural due process. 38 HCTAEc
48 SCRA 382 [1972]; Cummings and Missouri, 4

Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328,
U.S. 303, 90 L.Ed. 1252 [1945]; U.S. v. Brown, 381
U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the
archetypal bill of attainder wielded as a means of
legislative oppression. . . . 47
In addition, the essence of due process is simply an

administrative proceedings, a fair and reasonable
opportunity to explain one's side. 39 BOCEA's
apprehension of deprivation of due process finds its
answer in Section 7 (b) and (c) of R.A. No. 9335.
40 The concerned BIR or BOC official or employee
is not simply given a target revenue collection and
capriciously left without any quarter. R.A. No. 9335
and its IRR clearly give due consideration to all
relevant factors 41 that may affect the level of
collection. In the same manner, exemptions 42
were set, contravening BOCEA's claim that its
members may be removed for unattained target
collection even due to causes which are beyond
their control. Moreover, an employee's right to be
heard is not at all prevented and his right to appeal
is not deprived of him. 43 In fine, a BIR or BOC
official or employee in this case cannot be
arbitrarily removed from the service without
according him his constitutional right to due
process. No less than R.A. No. 9335 in accordance
with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid
to rest. Now, the Court proceeds to resolve the last,
but new issue raised by BOCEA, that is, whether
R.A. No. 9335 is a bill of attainder proscribed under
Section 22, 44 Article III of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a
bill of attainder. A bill of attainder is a legislative act
which inflicts punishment on individuals or
members of a particular group without a judicial
trial. Essential to a bill of attainder are a
specification of certain individuals or a group of
individuals, the imposition of a punishment, penal
or otherwise, and the lack of judicial trial. 45
In his Concurring Opinion in Tuason v. Register of
Deeds, Caloocan City, 46 Justice Florentino P.
Feliciano traces the roots of a Bill of Attainder, to
wit:
Bills of attainder are an ancient instrument of
tyranny. In England a few centuries back,
Parliament would at times enact bills or statutes
which declared certain persons attainted and their
blood corrupted so that it lost all heritable quality
(Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366
[1867]). In more modern terms, a bill of attainder is
essentially a usurpation of judicial power by a
legislative body. It envisages and effects the
imposition of a penalty the deprivation of life or
liberty or property not by the ordinary processes
of judicial trial, but by legislative fiat. While cast in
the form of special legislation, a bill of attainder (or
bill of pains and penalties, if it prescribed a penalty
other than death) is in intent and effect a penal
judgment visited upon an identified person or group
of persons (and not upon the general community)
without a prior charge or demand, without notice
and hearing, without an opportunity to defend,
without any of the civilized forms and safeguards of
the judicial process as we know it (People v. Ferrer,
R.A. No. 9335 does not possess the elements of a

bill of attainder. It does not seek to inflict
punishment without a judicial trial. R.A. No. 9335
merely lays down the grounds for the termination of
a BIR or BOC official or employee and provides for
the consequences thereof. The democratic
processes are still followed and the constitutional
rights of the concerned employee are amply
protected.
A final note.
We find that BOCEA's petition is replete with
allegations of defects and anomalies in allocation,
distribution and receipt of rewards. While BOCEA
intimates that it intends to curb graft and corruption
in the BOC in particular and in the government in
general which is nothing but noble, these intentions
do not actually pertain to the constitutionality of
R.A. No. 9335 and its IRR, but rather in the faithful
implementation thereof. R.A. No. 9335 itself does
not tolerate these pernicious acts of graft and
corruption. 48 As the Court is not a trier of facts, the
investigation on the veracity of, and the proper
action on these anomalies are in the hands of the
Executive branch. Correlatively, the wisdom for the
enactment of this law remains within the domain of
the Legislative branch. We merely interpret the law
as it is. The Court has no discretion to give statutes
a meaning detached from the manifest intendment
and language thereof. 49 Just like any other law,
R.A. No. 9335 has in its favor the presumption of
constitutionality, and to justify its nullification, there
must be a clear and unequivocal breach of the
Constitution and not one that is doubtful,
speculative, or argumentative. 50 We have so
declared in Abakada, and we now reiterate that
R.A. No. 9335 and its IRR are constitutional.
WHEREFORE, the present petition for certiorari
and prohibition with prayer for injunctive relief/s is
DISMISSED.
No costs. cCESaH
SO ORDERED.
Corona, C.J., Carpio, Leonardo-De Castro, Brion,
Peralta, Bersamin, Del Castillo, Abad, Perez,
Mendoza, Sereno, Reyes and Perlas-Bernabe, JJ.,
concur.
Velasco, Jr., J., is on official leave.
||| (Bureau of Customs Employees Association v.
Teves, G.R. No. 181704, [December 6, 2011], 677
PHIL 636-671)
6. DEL CASTILLO VS. PEOPLE 664 SCRA
450 (2012)
THIRD DIVISION
439
[G.R. No. 185128. January 30, 2012.]
examination. The contents of the four (4) heatsealed transparent plastic packs were subjected to
laboratory examination, the result of which proved
positive for the presence of methamphetamine
hydrochloride, or shabu.
Thus, an Information was filed before the RTC
against petitioner, charging him with violation of
Section 16, Article III of R.A. 6425, as amended.
The Information 5 reads:
That on or about the 13th day of September 1997,
at about 3:00 p.m. in the City of Cebu, Philippines
and within the jurisdiction of this Honorable Court,
the said accused, with deliberate intent, did then
and there have in his possession and control four
(4) packs of white crystalline powder, having a total
weight of 0.31 gram, locally known as "shabu," all
containing methamphetamine hydrochloride, a
regulated drug, without license or prescription from
any competent authority.
[Formerly UDK No. 13980]

RUBEN DEL CASTILLO @ BOY CASTILLO,
petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
DECISION
PERALTA, J p:
For this Court's consideration is the Petition for
Review 1 on Certiorari under Rule 45 of Ruben del
Castillo assailing the Decision 2 dated July 31,
2006 and Resolution 3 dated December 13, 2007
of the Court of Appeals (CA) in CA-G.R. CR No.
27819, which affirmed the Decision 4 dated March
14, 2003 of the Regional Trial Court (RTC), Branch
12, Cebu, in Criminal Case No. CBU-46291, finding
petitioner guilty beyond reasonable doubt of
violation of Section 16, Article III of Republic Act
(R.A.) 6425.
The facts, as culled from the records, are the
following:
Pursuant to a confidential information that petitioner
was engaged in selling shabu, police officers
headed by SPO3 Bienvenido Masnayon, after
conducting surveillance and test-buy operation at
the house of petitioner, secured a search warrant
from the RTC and around 3 o'clock in the afternoon
of September 13, 1997, the same police operatives
went to Gil Tudtud St., Mabolo, Cebu City to serve
the search warrant to petitioner.
Upon arrival, somebody shouted "raid," which
prompted them to immediately disembark from the
jeep they were riding and went directly to
petitioner's house and cordoned it. The structure of
the petitioner's residence is a two-storey house and
the petitioner was staying in the second floor. When
they went upstairs, they met petitioner's wife and
informed her that they will implement the search
warrant. But before they can search the area,
SPO3 Masnayon claimed that he saw petitioner run
towards a small structure, a nipa hut, in front of his
house. Masnayon chased him but to no avail,
because he and his men were not familiar with the
entrances and exits of the place.
They all went back to the residence of the petitioner
and closely guarded the place where the subject
ran for cover. SPO3 Masnayon requested his men
to get a barangay tanod and a few minutes
thereafter, his men returned with two barangay
tanods. TIaCAc
In the presence of the barangay tanod, Nelson
Gonzalado, and the elder sister of petitioner named
Dolly del Castillo, searched the house of petitioner
including the nipa hut where the petitioner allegedly
ran for cover. His men who searched the residence
of the petitioner found nothing, but one of the
barangay tanods was able to confiscate from the
nipa hut several articles, including four (4) plastic
packs containing white crystalline substance.
Consequently, the articles that were confiscated
were sent to the PNP Crime Laboratory for
CONTRARY TO LAW. 6
During arraignment, petitioner, with the assistance
of his counsel, pleaded not guilty. 7 Subsequently,
trial on the merits ensued.
To prove the earlier mentioned incident, the
prosecution presented the testimonies of SPO3
Bienvenido Masnayon, PO2 Milo Arriola, and
Forensic Analyst, Police Inspector Mutchit Salinas.
The defense, on the other hand, presented the
testimonies of petitioner, Jesusa del Castillo,
Dalisay del Castillo and Herbert Aclan, which can
be summarized as follows:
On September 13, 1997, around 3 o'clock in the
afternoon, petitioner was installing the electrical
wirings and airconditioning units of the Four
Seasons Canteen and Beauty Parlor at Wacky
Bldg., Cabancalan, Cebu. He was able to finish his
job around 6 o'clock in the evening, but he was
engaged by the owner of the establishment in a
conversation. He was able to go home around
8:30-9 o'clock in the evening. It was then that he
learned from his wife that police operatives
searched his house and found nothing. According
to him, the small structure, 20 meters away from his
house where they found the confiscated items, was
owned by his older brother and was used as a
storage place by his father. TAEDcS
After trial, the RTC found petitioner guilty beyond
reasonable of the charge against him in the
Information. The dispositive portion of the Decision
reads:
WHEREFORE, premises considered, this Court
finds the accused Ruben del Castillo "alyas Boy
Castillo," GUILTY of violating Section 16, Article III,
Republic Act No. 6425, as amended. There being
no mitigating nor aggravating circumstances proven
before this Court, and applying the Indeterminate
Sentence Law, he is sentenced to suffer the penalty
of Six (6) Months and One (1) Day as Minimum and
Four (4) Years and Two (2) Months as Maximum of
Prision Correccional.
The four (4) small plastic packets of white
crystalline substance having a total weight of 0.31
440
gram,
positive
for
the
presence
of
methamphetamine hydrochloride, are ordered
confiscated and shall be destroyed in accordance
with the law.
II
The four (4) packs of shabu seized inside the shop
of petitioner are admissible in evidence against
him.
SO ORDERED. 8
Aggrieved, petitioner appealed his case with the
CA, but the latter affirmed the decision of the RTC,
thus:
WHEREFORE, the challenged Decision is
AFFIRMED in toto and the appeal is DISMISSED,
with costs against accused-appellant.
III
The Court of Appeals did not err in finding him
guilty of illegal possession of prohibited drugs. 11
Petitioner insists that there was no probable cause
to issue the search warrant, considering that SPO1
Reynaldo Matillano, the police officer who applied
for it, had no personal knowledge of the alleged
illegal sale of drugs during a test-buy operation
conducted prior to the application of the same
search warrant. The OSG, however, maintains that
the petitioner, aside from failing to file the
necessary motion to quash the search warrant
pursuant to Section 14, Rule 127 of the Revised
Rules on Criminal Procedure, did not introduce
clear and convincing evidence to show that
Masnayon was conscious of the falsity of his
assertion or representation.
Anent the second argument, petitioner asserts that
the nipa hut located about 20 meters away from his
house is no longer within the "permissible area"
that may be searched by the police officers due to
the distance and that the search warrant did not
include the same nipa hut as one of the places to
be searched. The OSG, on the other hand, argues
that
the
constitutional
guaranty
against
unreasonable searches and seizure is applicable
only against government authorities and not to
private individuals such as the barangay tanod who
found the folded paper containing packs of shabu
inside the nipa hut. EICDSA
As to the third argument raised, petitioner claims
that the CA erred in finding him guilty beyond
reasonable doubt of illegal possession of prohibited
drugs, because he could not be presumed to be in
possession of the same just because they were
found inside the nipa hut. Nevertheless, the OSG
dismissed the argument of the petitioner, stating
that, when prohibited and regulated drugs are
found in a house or other building belonging to and
occupied by a particular person, the presumption
arises that such person is in possession of such
drugs in violation of law, and the fact of finding the
same is sufficient to convict.
This Court finds no merit on the first argument of
petitioner.
The requisites for the issuance of a search warrant
are: (1) probable cause is present; (2) such
probable cause must be determined personally by
the judge; (3) the judge must examine, in writing
and under oath or affirmation, the complainant and
the witnesses he or she may produce; (4) the
applicant and the witnesses testify on the facts
personally known to them; and (5) the warrant
specifically describes the place to be searched and
the things to be seized. 12 According to petitioner,
there was no probable cause. Probable cause for a
SO ORDERED. 9
After the motion for reconsideration of petitioner
was denied by the CA, petitioner filed with this
Court the present petition for certiorari under Rule
45 of the Rules of Court with the following
arguments raised:
1. THE COURT OF APPEALS ERRED IN ITS
APPLICATION OF THE PROVISIONS OF THE
CONSTITUTION, THE RULES OF COURT AND
ESTABLISHED
JURISPRUDENCE
VIS-A-VIS
VALIDITY OF SEARCH WARRANT NO. 570-91197-24;
2. THE COURT OF APPEALS ERRED IN RULING
THAT THE FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER ALLEGEDLY FOUND
ON THE FLOOR OF THE NIPA HUT OR
STRUCTURE ARE ADMISSIBLE IN EVIDENCE
AGAINST THE PETITIONER, NOT ONLY
BECAUSE
THE
SAID
COURT
SIMPLY
PRESUMED THAT IT WAS USED BY THE
PETITIONER OR THAT THE PETITIONER RAN
TO IT FOR COVER WHEN THE SEARCHING
TEAM ARRIVED AT HIS RESIDENCE, BUT ALSO,
PRESUMING THAT THE SAID NIPA HUT OR
STRUCTURE WAS INDEED USED BY THE
PETITIONER AND THE FOUR (4) PACKS OF
WHITE CRYSTALLINE POWDER WERE FOUND
THEREAT. THE SUBJECT FOUR (4) PACKS OF
WHITE CRYSTALLINE POWDER ARE FRUITS OF
THE POISONOUS TREE; and ECaSIT
3. THE COURT OF APPEALS ERRED IN ITS
APPLICATION
OF
THE
ELEMENT
OF
"POSSESSION" AS AGAINST THE PETITIONER,
AS IT WAS IN VIOLATION OF THE ESTABLISHED
JURISPRUDENCE ON THE MATTER. HAD THE
SAID COURT PROPERLY APPLIED THE
ELEMENT IN QUESTION, IT COULD HAVE BEEN
ASSAYED THAT THE SAME HAD NOT BEEN
PROVEN. 10
The Office of the Solicitor General (OSG), in its
Comment dated February 10, 2009, enumerated
the following counter-arguments:
I
SEARCH WARRANT No. 570-9-11-97-24 issued by
Executive Judge Priscilla S. Agana of Branch 24,
Regional Trial Court of Cebu City is valid.
441
search warrant is defined as such facts and

circumstances which would lead a reasonably
discreet and prudent man to believe that an offense
has been committed and that the objects sought in
connection with the offense are in the place sought
to be searched. 13 A finding of probable cause
needs only to rest on evidence showing that, more
likely than not, a crime has been committed and
that it was committed by the accused. Probable
cause demands more than bare suspicion; it
requires less than evidence which would justify
conviction. 14 The judge, in determining probable
cause, is to consider the totality of the
circumstances made known to him and not by a
fixed and rigid formula, 15 and must employ a
flexible, totality of the circumstances standard. 16
The existence depends to a large degree upon the
finding or opinion of the judge conducting the
examination. This Court, therefore, is in no position
to disturb the factual findings of the judge which led
to the issuance of the search warrant. A
magistrate's determination of probable cause for
the issuance of a search warrant is paid great
deference by a reviewing court, as long as there
was substantial basis for that determination. 17
Substantial basis means that the questions of the
examining judge brought out such facts and
circumstances as would lead a reasonably discreet
and prudent man to believe that an offense has
been committed, and the objects in connection with
the offense sought to be seized are in the place
sought to be searched. 18 A review of the records
shows that in the present case, a substantial basis
exists.
With regard to the second argument of petitioner, it
must be remembered that the warrant issued must
particularly describe the place to be searched and
persons or things to be seized in order for it to be
valid. A designation or description that points out
the place to be searched to the exclusion of all
others, and on inquiry unerringly leads the peace
officers to it, satisfies the constitutional requirement
of definiteness. 19 In the present case, Search
Warrant No. 570-9-1197-24 20 specifically
designates or describes the residence of the
petitioner as the place to be searched. Incidentally,
the items were seized by a barangay tanod in a
nipa hut, 20 meters away from the residence of the
petitioner. The confiscated items, having been
found in a place other than the one described in the
search warrant, can be considered as fruits of an
invalid warrantless search, the presentation of
which as an evidence is a violation of petitioner's
constitutional guaranty against unreasonable
searches and seizure. The OSG argues that,
assuming that the items seized were found in
another place not designated in the search warrant,
the same items should still be admissible as
evidence because the one who discovered them
was a barangay tanod who is a private individual,
the constitutional guaranty against unreasonable
searches and seizure being applicable only against
government authorities. The contention is devoid of
merit.
It was testified to during trial by the police officers

who effected the search warrant that they asked
the assistance of the barangay tanods, thus, in the
testimony of SPO3 Masnayon: HCTAEc
Fiscal Centino:
Q For how long did the chase take place?
A Just a very few moments.
Q After that, what did you [do] when you were not
able to reach him?
A I watched his shop and then I requested my men
to get a barangay tanod.
Q Were you able to get a barangay tanod?
A Yes.
Q Can you tell us what is the name of the barangay
tanod?
A Nelson Gonzalado.
Q For point of clarification, how many barangay
tanod [did] your driver get? SICDAa
A Two.
Q What happened after that?
A We searched the house, but we found negative.
Q Who proceeded to the second floor of the
house?
A SPO1 Cirilo Pogoso and Milo Areola went
upstairs and found nothing.
Q What about you, where were you?
A I [was] watching his shop and I was with
Matillano.
Q What about the barangay tanod?
A Together with Milo and Pogoso.
Q When the search at the second floor of the house
yielded negative what did you do?
A They went downstairs because I was suspicious
of his shop because he ran from his shop, so we
searched his shop.
Q Who were with you when you searched the
shop?
A The barangay tanod Nilo Gonzalado, the elder
sister of Ruben del Castillo named Dolly del
Castillo.
Q You mean to say, that when (sic) SPO1 Reynaldo
Matillano, Barangay Tanod Nilo Gonzalado and the
442
elder sister of Ruben del Castillo were together in

the shop?
A After our search in the house, we did not see

anything. The house was clean. IHaECA
A Yes.
Q What did you do afterwards, if any?
Q What happened at the shop?
A We left (sic) out of the house and proceeded to

his electronic shop.
A One of the barangay tanods was able to pick up

white folded paper.
Q Do you know the reason why you proceeded to

his electronic shop?
Q What [were] the contents of that white folded

paper?
A Yes. Because our team leader Bienvenido

Masnayon saw that (sic) Ruben run from that store
and furthermore the door was open.
A A plastic pack containing white crystalline.

DICcTa
Q Was that the only item?
Q How far is the electronic shop from the house of

Ruben del Castillo?
A There are others like the foil, scissor.
A More or less, 5 to 6 meters in front of his house.
Q Were you present when those persons found

those tin foil and others inside the electric shop?
xxx xxx xxx

Q So, who entered inside the electronic shop?
A Yes. 21
A The one who first entered the electronic shop is
our team leader Bienvenido Masnayon.
The fact that no items were seized in the residence

of petitioner and that the items that were actually
seized were found in another structure by a
barangay tanod, was corroborated by PO2 Arriola,
thus:
FISCAL:
Q You mentioned that Masnayon entered first. Do

you mean to say that there were other persons or
other person that followed after Masnayon?
A Then we followed suit.
Q So, upon arriving at the house of Ruben del

Castillo alias Boy, can you still recall what took
place?
Q All of your police officers and the barangay tanod

followed suit?
A We cordoned the area.
A I led Otadoy and the barangay tanod.
Q And after you cordoned the area, did anything

happen?
Q What about you?

A I also followed suit.
A We waited for the barangay tanod.

Q And did anything happen inside the shop of
Ruben del Castillo?
Q And did the barangay tanod eventually appear?

A Yes. And then we started our search in the
presence of Ruben del Castillo's wife.
A It was the barangay tanod who saw the folded

paper and I saw him open the folded paper which
contained four shabu deck.
Q What is the name of the wife of Ruben del

Castillo?
Q How far were you when you saw the folded

paper and the tanod open the folded paper?
cHSIAC
A I cannot recall her name, but if I see her I can

recall [her] face.
A We were side by side because the shop was very

small. 22
Q What about Ruben del Castillo, was she around

when [you] conducted the search?
SPO1 Pogoso also testified on the same matter,

thus:
FISCAL CENTINO:
A No. Ruben was not in the house. But our team

leader, team mate Bienvenido Masnayon saw that
Ruben ran away from his adjacent electronic shop
near his house, in front of his house.
Q And where did you conduct the search, Mr.

Witness?
Q Did you find anything during the search in the

house of Ruben del Castillo?
A At his residence, the two-storey house.

443
Q Among the three policemen, who were with you

in conducting the search at the residence of the
accused?
The Local Government Code also contains a

provision which describes the function of a
barangay tanod as an agent of persons in authority.
Section 388 of the Local Government Code reads:
SEC. 388. Persons in Authority. For purposes of
the Revised Penal Code, the punong barangay,
sangguniang barangay members, and members of
the lupong tagapamayapa in each barangay shall
be deemed as persons in authority in their
jurisdictions, while other barangay officials and
members who may be designated by law or
ordinance and charged with the maintenance of
public order, protection and security of life and
property, or the maintenance of a desirable and
balanced environment, and any barangay member
who comes to the aid of persons in authority, shall
be deemed agents of persons in authority.
A I, Bienvenido Masnayon.
Q And what transpired after you searched the
A Negative, no shabu.
Q And what happened afterwards, if any?
A We went downstairs and proceeded to the small
house.
Q Can you please describe to this Honorable Court,
what was that small house which you proceeded
to?
By virtue of the above provisions, the police

officers, as well as the barangay tanods were
acting as agents of a person in authority during the
conduct of the search. Thus, the search conducted
was unreasonable and the confiscated items are
inadmissible in evidence. Assuming ex gratia
argumenti that the barangay tanod who found the
confiscated items is considered a private individual,
thus, making the same items admissible in
evidence, petitioner's third argument that the
prosecution failed to establish constructive
possession of the regulated drugs seized, would
still be meritorious. AaHTIE
Appellate courts will generally not disturb the
factual findings of the trial court since the latter has
the unique opportunity to weigh conflicting
testimonies,
having
heard
the
witnesses
themselves and observed their deportment and
manner of testifying, 24 unless attended with
arbitrariness or plain disregard of pertinent facts or
circumstances, the factual findings are accorded
the highest degree of respect on appeal 25 as in
the present case.
It must be put into emphasis that this present case
is about the violation of Section 16 of R.A. 6425. In
every prosecution for the illegal possession of
shabu, the following essential elements must be
established: (a) the accused is found in possession
of a regulated drug; (b) the person is not authorized
by law or by duly constituted authorities; and (c) the
accused has knowledge that the said drug is a
regulated drug. 26
In People v. Tira, 27 this Court explained the
concept of possession of regulated drugs, to wit:
This crime is mala prohibita, and, as such, criminal
intent is not an essential element. However, the
prosecution must prove that the accused had the
intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual
possession, but also constructive possession.
Actual possession exists when the drug is in the
immediate physical possession or control of the
accused. On the other hand, constructive
possession exists when the drug is under the
dominion and control of the accused or when he
has the right to exercise dominion and control over
the place where it is found. Exclusive possession or
A It is a nipa hut.
Q And more or less, how far or near was it from the
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that
nipa hut supposed to be?
A That was the electronic shop of Ruben del
Castillo.
Q And what happened when your team proceeded
to the nipa hut?
A I was just outside the nipa hut.
Q And who among the team went inside? CcTIDH
A PO2 Milo Areola and the Barangay Tanod. 23
Having been established that the assistance of the
barangay tanods was sought by the police
authorities who effected the searched warrant, the
same barangay tanods therefore acted as agents of
persons in authority. Article 152 of the Revised
Penal Code defines persons in authority and
agents of persons in authority as:
. . . any person directly vested with jurisdiction,
whether as an individual or as a member of some
court or governmental corporation, board or
commission, shall be deemed a person in authority.
A barangay captain and a barangay chairman shall
also be deemed a person in authority.
A person who, by direct provision of law or by
election or by appointment by competent authority,
is charged with the maintenance of public order and
the protection and security of life and property, such
as barrio councilman, barrio policeman and
barangay leader, and any person who comes to the
aid of persons in authority, shall be deemed an
agent of a person in authority.
444
control is not necessary. The accused cannot avoid

conviction if his right to exercise control and
dominion over the place where the contraband is
located, is shared with another. 28
However,
during
cross-examination,
SPO3
Masnayon admitted that there was an electrical
shop but denied what he said in his earlier
testimony that it was owned by petitioner, thus:
ATTY. DAYANDAYAN:
While it is not necessary that the property to be

searched or seized should be owned by the person
against whom the search warrant is issued, there
must be sufficient showing that the property is
under appellant's control or possession. 29 The CA,
in its Decision, referred to the possession of
regulated drugs by the petitioner as a constructive
one. Constructive possession exists when the drug
is under the dominion and control of the accused or
when he has the right to exercise dominion and
control over the place where it is found. 30 The
records are void of any evidence to show that
petitioner owns the nipa hut in question nor was it
established that he used the said structure as a
shop. The RTC, as well as the CA, merely
presumed that petitioner used the said structure
due to the presence of electrical materials, the
petitioner being an electrician by profession. The
CA, in its Decision, noted a resolution by the
investigating prosecutor, thus:
. . . As admitted by respondent's wife, her husband
is an electrician by occupation. As such, conclusion
could be arrived at that the structure, which housed
the electrical equipments is actually used by the
respondent. Being the case, he has control of the
things found in said structure. 31
Q You testified that Ruben del Castillo has an

electrical shop, is that correct?
A He came out of an electrical shop. I did not say
that he owns the shop.
Q Now, this shop is within a structure?
A Yes.
Q How big is the structure?
A It is quite a big structure, because at the other
side is a mahjong den and at the other side is a
structure rented by a couple. 34
The prosecution must prove that the petitioner had
knowledge of the existence and presence of the
drugs in the place under his control and dominion
and the character of the drugs. 35 With the
prosecution's failure to prove that the nipa hut was
under petitioner's control and dominion, there casts
a reasonable doubt as to his guilt. In considering a
criminal case, it is critical to start with the law's own
starting perspective on the status of the accused
in all criminal prosecutions, he is presumed
innocent of the charge laid unless the contrary is
proven beyond reasonable doubt. 36 Proof beyond
reasonable doubt, or that quantum of proof
sufficient to produce a moral certainty that would
convince and satisfy the conscience of those who
act in judgment, is indispensable to overcome the
constitutional presumption of innocence. 37
WHEREFORE, the Decision dated July 31, 2006 of
the Court of Appeals in CA-G.R. No. 27819, which
affirmed the Decision dated March 14, 2003 of the
Regional Trial Court, Branch 12, Cebu, in Criminal
Case No. CBU-46291 is hereby REVERSED and
SET ASIDE. Petitioner Ruben del Castillo is
ACQUITTED on reasonable doubt. CEDHTa
SO ORDERED.
Velasco, Jr., Mendoza, Reyes * and PerlasBernabe, JJ., concur.
||| (Del Castillo v. People, G.R. No. 185128,
[January 30, 2012], 680 PHIL 447-467)
In addition, the testimonies of the witnesses for the

prosecution do not also provide proof as to the
ownership of the structure where the seized articles
were found. During their direct testimonies, they
just said, without stating their basis, that the same
structure was the shop of petitioner. 32 During the
direct testimony of SPO1 Pogoso, he even
outrightly concluded that the electrical shop/nipa
hut was owned by petitioner, thus: HAaDTI
FISCAL CENTINO:
Q Can you please describe to this Honorable Court,
what was that small house which you proceeded
to?
A It is a nipa hut.
Q And more or less, how far or near was it from the
A 5 to 10 meters.
7. COMMISSIONER
OF
CUSTOMS
v.
HYPERMIX FEEDS 664 SRA 666 (2012)
Q And could you tell Mr. Witness, what was that

nipa hut supposed to be?
SECOND DIVISION
A That was the electronic shop of Ruben del

Castillo.
[G.R. No. 179579. February 1, 2012.]

COMMISSIONER OF CUSTOMS and the
DISTRICT COLLECTOR OF THE PORT OF
SUBIC, petitioners, vs. HYPERMIX FEEDS
CORPORATION, respondent.
Q And what happened when your team proceeded

to the nipa hut?
A I was just outside the nipa hut. 33
DECISION
445
respondent were speculative and premature,

because the Bureau of Customs (BOC) had yet to
examine respondent's products. They likewise
opposed the application for a writ of preliminary
injunction on the ground that they had not inflicted
any injury through the issuance of the regulation;
and that the action would be contrary to the rule
that administrative issuances are assumed valid
until declared otherwise.
On 28 February 2005, the parties agreed that the
matters raised in the application for preliminary
injunction and the Motion to Dismiss would just be
resolved together in the main case. Thus, on 10
March 2005, the RTC rendered its Decision 11
without having to resolve the application for
preliminary injunction and the Motion to Dismiss.
The trial court ruled in favor of respondent, to wit:
WHEREFORE, in view of the foregoing, the Petition
is GRANTED and the subject Customs
Memorandum Order 27-2003 is declared INVALID
and OF NO FORCE AND EFFECT. Respondents
Commissioner of Customs, the District Collector of
Subic or anyone acting in their behalf are to
immediately cease and desist from enforcing the
said Customs Memorandum Order 27-2003.
SERENO, J p:
Before us is a Petition for Review under Rule 45, 1
assailing the Decision 2 and the Resolution 3 of the
Court of Appeals (CA), which nullified the Customs
Memorandum Order (CMO) No. 27-2003 4 on the
tariff classification of wheat issued by petitioner
Commissioner of Customs.
The antecedent facts are as follows:
On 7 November 2003, petitioner Commissioner of
Customs issued CMO 27-2003. Under the
Memorandum, for tariff purposes, wheat was
classified according to the following: (1) importer or
consignee; (2) country of origin; and (3) port of
discharge. 5 The regulation provided an exclusive
list of corporations, ports of discharge, commodity
descriptions and countries of origin. Depending on
these factors, wheat would be classified either as
food grade or feed grade. The corresponding tariff
for food grade wheat was 3%, for feed grade, 7%.
CMO 27-2003 further provided for the proper
procedure
for
protest
or
Valuation
and
Classification Review Committee (VCRC) cases.
Under this procedure, the release of the articles
that were the subject of protest required the
importer to post a cash bond to cover the tariff
differential. 6
A month after the issuance of CMO 27-2003, on 19
December 2003, respondent filed a Petition for
Declaratory Relief 7 with the Regional Trial Court
(RTC) of Las Pias City. It anticipated the
implementation of the regulation on its imported
and perishable Chinese milling wheat in transit from
China. 8 Respondent contended that CMO 27-2003
was issued without following the mandate of the
Revised
Administrative
Code
on
public
participation, prior notice, and publication or
registration with the University of the Philippines
Law Center.
Respondent also alleged that the regulation
summarily adjudged it to be a feed grade supplier
without the benefit of prior assessment and
examination; thus, despite having imported food
grade wheat, it would be subjected to the 7% tariff
upon the arrival of the shipment, forcing them to
pay 133% more than was proper.
Furthermore, respondent claimed that the equal
protection clause of the Constitution was violated
when the regulation treated non-flour millers
differently from flour millers for no reason at all.
Lastly, respondent asserted that the retroactive
application of the regulation was confiscatory in
nature.
On 19 January 2004, the RTC issued a Temporary
Restraining Order (TRO) effective for twenty (20)
days from notice. 9
Petitioners thereafter filed a Motion to Dismiss. 10
They alleged that: (1) the RTC did not have
jurisdiction over the subject matter of the case,
because respondent was asking for a judicial
determination of the classification of wheat; (2) an
action for declaratory relief was improper; (3) CMO
27-2003 was an internal administrative rule and not
legislative in nature; and (4) the claims of
SO ORDERED. 12
The RTC held that it had jurisdiction over the
subject matter, given that the issue raised by
respondent concerned the quasi-legislative powers
of petitioners. It likewise stated that a petition for
declaratory relief was the proper remedy, and that
respondent was the proper party to file it. The court
considered that respondent was a regular importer,
and that the latter would be subjected to the
application of the regulation in future transactions.
With regard to the validity of the regulation, the trial
court found that petitioners had not followed the
basic requirements of hearing and publication in the
issuance of CMO 27-2003. It likewise held that
petitioners had "substituted the quasi-judicial
determination of the commodity by a quasilegislative predetermination." 13 The lower court
pointed out that a classification based on importers
and ports of discharge were violative of the due
process rights of respondent.
Dissatisfied with the Decision of the lower court,
petitioners appealed to the CA, raising the same
allegations in defense of CMO 27-2003. 14 The
appellate court, however, dismissed the appeal. It
held that, since the regulation affected substantial
rights of petitioners and other importers, petitioners
should have observed the requirements of notice,
hearing and publication.
Hence, this Petition.
Petitioners raise the following issues for the
consideration of this Court:
I.
THE COURT OF APPEALS DECIDED A
QUESTION OF SUBSTANCE WHICH IS NOT IN
ACCORD WITH THE LAW AND PREVAILING
JURISPRUDENCE.
446
II. THE COURT OF APPEALS GRAVELY ERRED

IN DECLARING THAT THE TRIAL COURT HAS
JURISDICTION OVER THE CASE.
Accordingly, in considering a legislative rule a court

is free to make three inquiries: (i) whether the rule
is within the delegated authority of the
administrative agency; (ii) whether it is reasonable;
and (iii) whether it was issued pursuant to proper
procedure. But the court is not free to substitute its
judgment as to the desirability or wisdom of the rule
for the legislative body, by its delegation of
administrative judgment, has committed those
questions to administrative judgments and not to
judicial judgments. In the case of an interpretative
rule, the inquiry is not into the validity but into the
correctness or propriety of the rule. As a matter of
power a court, when confronted with an
interpretative rule, is free to (i) give the force of law
to the rule; (ii) go to the opposite extreme and
substitute its judgment; or (iii) give some
intermediate degree of authoritative weight to the
interpretative rule. (Emphasis supplied)
The Petition has no merit.

We shall first discuss the propriety of an action for
declaratory relief.
Rule 63, Section 1 provides:
Who may file petition. Any person interested
under a deed, will, contract or other written
instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or
any other governmental regulation may, before
breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a
declaration of his rights or duties, thereunder.
The requirements of an action for declaratory relief
are as follows: (1) there must be a justiciable
controversy; (2) the controversy must be between
persons whose interests are adverse; (3) the party
seeking declaratory relief must have a legal interest
in the controversy; and (4) the issue involved must
be ripe for judicial determination. 15 We find that
the Petition filed by respondent before the lower
court meets these requirements.
First, the subject of the controversy is the
constitutionality of CMO 27-2003 issued by
petitioner Commissioner of Customs. In Smart
Communications v. NTC, 16 we held:
The determination of whether a specific rule or set
of rules issued by an administrative agency
contravenes the law or the constitution is within the
jurisdiction of the regular courts. Indeed, the
Constitution vests the power of judicial review or
the power to declare a law, treaty, international or
executive agreement, presidential decree, order,
instruction, ordinance, or regulation in the courts,
including the regional trial courts. This is within the
scope of judicial power, which includes the authority
of the courts to determine in an appropriate action
the validity of the acts of the political departments.
instrumentality of the Government. (Emphasis
supplied)
Second, the controversy is between two parties that

have adverse interests. Petitioners are summarily
imposing a tariff rate that respondent is refusing to
pay.
Third, it is clear that respondent has a legal and
substantive interest in the implementation of CMO
27-2003. Respondent has adequately shown that,
as a regular importer of wheat, on 14 August 2003,
it has actually made shipments of wheat from China
to Subic. The shipment was set to arrive in
December 2003. Upon its arrival, it would be
subjected to the conditions of CMO 27-2003. The
regulation calls for the imposition of different tariff
rates, depending on the factors enumerated
therein. Thus, respondent alleged that it would be
made to pay the 7% tariff applied to feed grade
wheat, instead of the 3% tariff on food grade wheat.
In addition, respondent would have to go through
the procedure under CMO 27-2003, which would
undoubtedly toll its time and resources. The lower
court correctly pointed out as follows:
. . . As noted above, the fact that petitioner is
precisely into the business of importing wheat, each
and every importation will be subjected to constant
disputes which will result into (sic) delays in the
delivery, setting aside of funds as cash bond
required in the CMO as well as the resulting
expenses thereof. It is easy to see that business
uncertainty will be a constant occurrence for
petitioner. That the sums involved are not minimal
is shown by the discussions during the hearings
conducted as well as in the pleadings filed. It may
be that the petitioner can later on get a refund but
such has been foreclosed because the Collector of
Customs and the Commissioner of Customs are
bound by their own CMO. Petitioner cannot get its
refund with the said agency. We believe and so find
that Petitioner has presented such a stake in the
outcome of this controversy as to vest it with
standing to file this petition. 18 (Emphasis supplied)
Meanwhile, in Misamis Oriental Association of Coco

Traders, Inc. v. Department of Finance Secretary,
17 we said:
. . . [A] legislative rule is in the nature of
subordinate legislation, designed to implement a
primary legislation by providing the details thereof. .
..
In addition such rule must be published. On the
other hand, interpretative rules are designed to
provide guidelines to the law which the
administrative agency is in charge of enforcing.
Finally, the issue raised by respondent is ripe for

judicial determination, because litigation is
inevitable 19 for the simple and uncontroverted
reason that respondent is not included in the
447
enumeration of flour millers classified as food grade

wheat importers. Thus, as the trial court stated, it
would have to file a protest case each time it
imports food grade wheat and be subjected to the
7% tariff.
It is therefore clear that a petition for declaratory
relief is the right remedy given the circumstances of
the case.
Considering that the questioned regulation would
affect the substantive rights of respondent as
explained above, it therefore follows that petitioners
should have applied the pertinent provisions of
Book VII, Chapter 2 of the Revised Administrative
Code, to wit:
Section 3. Filing. (1) Every agency shall file
with the University of the Philippines Law Center
three (3) certified copies of every rule adopted by it.
Rules in force on the date of effectivity of this Code
which are not filed within three (3) months from that
date shall not thereafter be the bases of any
sanction against any party of persons.
Perhaps at no time since the establishment of the

Philippine Republic has the publication of laws
taken so vital significance that at this time when the
people have bestowed upon the President a power
heretofore enjoyed solely by the legislature. While
the people are kept abreast by the mass media of
the debates and deliberations in the Batasan
Pambansa and for the diligent ones, ready
access to the legislative records no such
publicity accompanies the law-making process of
the President. Thus, without publication, the people
have no means of knowing what presidential
decrees have actually been promulgated, much
less a definite way of informing themselves of the
specific contents and texts of such decrees.
(Emphasis supplied)
Because petitioners failed to follow the
requirements enumerated by the Revised
Administrative Code, the assailed regulation must
be struck down.
Going now to the content of CMO 27-2003, we
likewise hold that it is unconstitutional for being
violative of the equal protection clause of the
Constitution.
The equal protection clause means that no person
or class of persons shall be deprived of the same
protection of laws enjoyed by other persons or
other classes in the same place in like
circumstances. Thus, the guarantee of the equal
protection of laws is not violated if there is a
reasonable classification. For a classification to be
reasonable, it must be shown that (1) it rests on
substantial distinctions; (2) it is germane to the
purpose of the law; (3) it is not limited to existing
conditions only; and (4) it applies equally to all
members of the same class. 22
Unfortunately, CMO 27-2003 does not meet these
requirements. We do not see how the quality of
wheat is affected by who imports it, where it is
discharged, or which country it came from.
Thus, on the one hand, even if other millers
excluded from CMO 27-2003 have imported food
grade wheat, the product would still be declared as
feed grade wheat, a classification subjecting them
to 7% tariff. On the other hand, even if the
importers listed under CMO 27-2003 have imported
feed grade wheat, they would only be made to pay
3% tariff, thus depriving the state of the taxes due.
The regulation, therefore, does not become
disadvantageous to respondent only, but even to
the state.
It is also not clear how the regulation intends to
"monitor more closely wheat importations and thus
prevent their misclassification." A careful study of
CMO 27-2003 shows that it not only fails to achieve
this end, but results in the opposite. The application
of the regulation forecloses the possibility that other
corporations that are excluded from the list import
food grade wheat; at the same time, it creates an
assumption that those who meet the criteria do not
import feed grade wheat. In the first case, importers
are unnecessarily burdened to prove the
classification of their wheat imports; while in the
second, the state carries that burden.
xxx xxx xxx

Section 9.
Public Participation. (1) If not
otherwise required by law, an agency shall, as far
as practicable, publish or circulate notices of
proposed rules and afford interested parties the
opportunity to submit their views prior to the
adoption of any rule.
(2) In the fixing of rates, no rule or final order shall
be valid unless the proposed rates shall have been
published in a newspaper of general circulation at
least two (2) weeks before the first hearing thereon.
(3) In case of opposition, the rules on contested
cases shall be observed.
When an administrative rule is merely interpretative
in nature, its applicability needs nothing further than
its bare issuance, for it gives no real consequence
more than what the law itself has already
prescribed. When, on the other hand, the
administrative rule goes beyond merely providing
for the means that can facilitate or render least
cumbersome the implementation of the law but
substantially increases the burden of those
governed, it behooves the agency to accord at least
to those directly affected a chance to be heard, and
thereafter to be duly informed, before that new
issuance is given the force and effect of law. 20
Likewise, in Taada v. Tuvera, 21 we held:
The clear object of the above-quoted provision is to
give the general public adequate notice of the
various laws which are to regulate their actions and
conduct as citizens. Without such notice and
publication, there would be no basis for the
application of the maxim "ignorantia legis non
excusat." It would be the height of injustice to
punish or otherwise burden a citizen for the
transgression of a law of which he had no notice
whatsoever, not even a constructive one.
448
Petitioner Commissioner of Customs also went

beyond his powers when the regulation limited the
customs officer's duties mandated by Section 1403
of the Tariff and Customs Law, as amended. The
law provides:
Section 1403. Duties of Customs Officer Tasked to
Examine, Classify, and Appraise Imported Articles.
The customs officer tasked to examine, classify,
and appraise imported articles shall determine
whether the packages designated for examination
and their contents are in accordance with the
declaration in the entry, invoice and other pertinent
documents and shall make return in such a manner
as to indicate whether the articles have been truly
and correctly declared in the entry as regard their
quantity, measurement,
weight,
and
tariff
classification and not imported contrary to law. He
shall submit samples to the laboratory for analysis
when feasible to do so and when such analysis is
necessary for the proper classification, appraisal,
and/or admission into the Philippines of imported
articles.
WHEREFORE, in view of the foregoing, the Petition

is DENIED.
SO ORDERED.
Carpio, Brion, Perez and Reyes, JJ., concur.
||| (Commissioner of Customs v. Hypermix Feeds
Corp., G.R. No. 179579, [February 1, 2012], 680
PHIL 681-695)
8. MANOTOK VS. HEIRS OF BARQUE 667
SCRA 472 (2012)
EN BANC
[G.R. Nos. 162335 & 162605. March 6, 2012.]
SEVERINO M. MANOTOK IV, FROILAN M.
MANOTOK, FERNANDO M. MANOTOK III, MA.
MAMERTA M.
MANOTOK,
PATRICIA
L.
TIONGSON, PACITA L. GO, ROBERTO LAPERAL
III, MICHAEL MARSHALL V. MANOTOK,
MARYANN MANOTOK, FELISA MYLENE V.
MANOTOK, IGNACIO V. MANOTOK, JR.,
MILAGROS V. MANOTOK, SEVERINO MANOTOK
III, ROSA R. MANOTOK, MIGUEL A.B. SISON,
GEORGE M. BOCANEGRA, MA. CRISTINA E.
SISON, PHILIPP L. MANOTOK, JOSE CLEMENTE
L. MANOTOK, RAMON SEVERINO L. MANOTOK,
THELMA R. MANOTOK, JOSE MARIA MANOTOK,
JESUS JUDE MANOTOK, JR. and MA. THERESA
L. MANOTOK, represented by their Attorney-in-fact,
Rosa R. Manotok, petitioners, vs. HEIRS OF
HOMER L. BARQUE, represented by TERESITA
BARQUE HERNANDEZ, respondents.
Likewise, the customs officer shall determine the

unit of quantity in which they are usually bought
and sold, and appraise the imported articles in
accordance with Section 201 of this Code.
Failure on the part of the customs officer to comply
with his duties shall subject him to the penalties
prescribed under Section 3604 of this Code.
The provision mandates that the customs officer
must first assess and determine the classification of
the imported article before tariff may be imposed.
Unfortunately, CMO 23-2007 has already classified
the article even before the customs officer had the
chance to examine it. In effect, petitioner
Commissioner of Customs diminished the powers
granted by the Tariff and Customs Code with regard
to wheat importation when it no longer required the
customs officer's prior examination and assessment
of the proper classification of the wheat.
It is well-settled that rules and regulations, which
are the product of a delegated power to create new
and additional legal provisions that have the effect
of law, should be within the scope of the statutory
authority granted by the legislature to the
administrative agency. It is required that the
regulation be germane to the objects and purposes
of the law; and that it be not in contradiction to, but
in conformity with, the standards prescribed by law.
23
In summary, petitioners violated respondent's right
to due process in the issuance of CMO 27-2003
when they failed to observe the requirements under
the Revised Administrative Code. Petitioners
likewise violated respondent's right to equal
protection of laws when they provided for an
unreasonable classification in the application of the
regulation. Finally, petitioner Commissioner of
Customs went beyond his powers of delegated
authority when the regulation limited the powers of
the customs officer to examine and assess
imported articles.
RESOLUTION
At bar are the motions for reconsideration
separately filed by the Manotoks, Barques and
Manahans of our Decision promulgated on August
24, 2010, the dispositive portion of which reads:
WHEREFORE, the petitions filed by the Manotoks
under Rule 45 of the 1997 Rules of Civil Procedure,
as amended, as well as the petition-in-intervention
of the Manahans, are DENIED. The petition for
reconstitution of title filed by the Barques is likewise
DENIED. TCT No. RT-22481 (372302) in the name
of Severino Manotok IV, et al., TCT No. 210177 in
the name of Homer L. Barque and Deed of
Conveyance No. V-200022 issued to Felicitas B.
Manahan, are all hereby declared NULL and VOID.
The Register of Deeds of Caloocan City and/or
Quezon City are hereby ordered to CANCEL the
said titles. The Court hereby DECLARES that Lot
823 of the Piedad Estate, Quezon City legally
belongs to the NATIONAL GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES, without
prejudice to the institution of REVERSION
proceedings by the State through the Office of the
Solicitor General.
With costs against the petitioners.
449
SO ORDERED.
under a registered title, may be compelled to

produce the deeds by which the Government had
transferred the property to them, and "failing" which
can be divested of their ownership in favor of the
Government, even if the latter has not demanded a
reversion or brought suit for that purpose.
The Manotoks raised the following grounds in their

motion for reconsideration with motion for oral
arguments:
1. It is unjust and oppressive to deprive the
Manotoks of property they have long held and
acquired from the State, on consideration fully paid
and received, and under registered title issued by
the State itself, on nothing more than the assumed
failure of the State's agents to inscribe a ministerial
"approval" on the transaction deeds.
8. The Honorable Court erred in imposing on the

Manotoks, contrary to Art. 541 of the Civil Code,the
obligation to prove their ownership of the subject
property, and in awarding their title to the
Government who has not even sued to contest that
ownership.
2. The annulment of Friar Land sales, simply

because physical evidence of the Secretary's
ministerial approval can no longer be found, may
void transactions involving thousands of hectares of
land, and affect possibly millions of people to whom
the lands may have since been parceled out, sold
and resold. IACDaS
9. The Honorable Court erred in finding that Sale

Certificate No. 1054, which Severino Manotok
acquired by assignment in 1923, was not approved
by the Director of Lands and the Secretary of
Agriculture and Natural Resources, and in finding
that a Sale Certificate without the Secretary's
approval is void.
3. The Manotoks were given no due notice of the

issue of reversion, which this case on appeal did
not include, and which was thrust upon the
Manotoks only in the final resolution disposing of
the appeal.
It would be error for the Honorable Court to let this
matter go without a serious and full re-examination.
This can be accomplished, among others, by
allowing this motion for reconsideration to be heard
on oral argument, to try to permit all pertinent
considerations to be aired before the Court and
taken into account.
10. The Honorable Court erred in concluding that

the Manotoks had no valid Deed of Conveyance of
Lot 823 from the Government. The original of Deed
of Conveyance No. 29204 gave the register of
deeds the authority to issue the transfer certificate
of title in the name of the buyer Severino Manotok,
which is required by law to be filed with and
retained in the custody of the register of deeds. We
presume that the copy thereof actually transmitted
to and received by the register of deeds did contain
the Secretary's signature because he in fact issued
the TCT. And we rely on this presumption because
the document itself can no longer be found.
4. These G.R. Nos. 162335 and 162605 were an

appeal
from
administrative
reconstitution
proceedings before LRA Reconstitution officer
Benjamin Bustos. But the Resolution dated 18
December 2008 which finally reversed the CA's
rulings, affirmed the denial by Bustos of the
application for administrative reconstitution of the
Barques' purported transfer certificate of title, and
terminated the appeal introduced a new "case" on
the Manotok property. It ordered evidence-taking at
the CA, on which the Supreme Court proposed
itself to decide, in the first instance, an alleged
ownership controversy over the Manotok property.
11. Assuming arguendo that the original Deed of

Conveyance No. 29204 the register of deeds
received did not bear the Department Secretary's
signature, DENR Memorandum Order No. 16-05
dated October 27, 2005 cured the defect. To deny
the Manotoks the benefit of ratification under said
MO, on the erroneous interpretation that it covered
only those found in the records of the "field offices"
of the DENR and LMB, would be discriminatory.
The Department Secretary's (assumed) failure to
affix his signature on the deed of conveyance could
not defeat the Manotoks' right to the lot after they
had fully paid for it.
5. The Manotoks objected to the "remand" on

jurisdictional and due process grounds. The original
and exclusive jurisdiction over the subject matter of
the case is vested by law on the regional trial
courts.
Republic Act No. 9443 must be applied, mutatis

mutandis, to the Manotoks and the Piedad Estate.
12. The Honorable Court erred in denying their right
to be informed of the CA's report and be heard
thereon prior to judgment, as basic requirements of
due process.
6. The Honorable Court erred in proceeding to

judgment divesting the Manotoks of their title to Lot
823 of the Piedad Estate, without a trial in the
courts of original and exclusive jurisdiction, and in
disregard of process which the law accords to all
owners-in-possession.
The
Barques
anchor
their
reconsideration on the following:
motion
for
7. The Honorable Court erred in concluding that the

Manotoks, despite being owners in possession
THE HONORABLE SUPREME COURT GRAVELY

ERRED IN DENYING THE PETITION FOR
450
RECONSTITUTION FILED BY RESPONDENTS

HEIRS OF BARQUE WITHOUT STATING THE
GROUNDS FOR SUCH DENIAL. THIAaD
occupant" who under the law enjoyed preference to

buy the lot, his status as "actual settler and
occupant" must have been verified by the Bureau
of Public Lands because the presumption is that
official duty has been regularly performed. The
administrative determination of the status of
Valentin Manahan as "actual settler and occupant"
can not now be reviewed after the lapse of about
eight (8) decades when parties, witnesses,
documents and other evidence are hardly or no
longer available.
II
ERRED IN INSTANTLY DECLARING IN THE
DISPOSITIVE PORTION OF THE DECISION
THAT ALONG WITH FELICITAS B. MANAHAN'S
TITLE, RESPONDENTS HEIRS OF BARQUE'S
TITLE TCT NO. 210177 IS LIKEWISE NULL AND
VOID, WITHOUT STATING A CLEAR AND
DEFINITE BASIS THEREFOR.
IV. Abundant evidence was submitted by

intervenors that they and their predecessors-ininterest occupied and possessed Lot 823 up to
1948 when they were dispossessed by armed men.
It was error for the Commissioners to ignore the
evidence of the intervenors, there being no
contradicting proof.
III
ERRED
IN
DECLARING
TRANSFER
CERTIFICATE OF TITLE NO. 210177 IN THE
NAME OF HOMER L. BARQUE NULL AND VOID.
V. The Commissioners committed palpable error in

not according evidentiary value to the Investigation
Report of Evelyn dela Rosa because it is allegedly
"practically a replica or summation of Felicitas B.
Manahan's allegations embodied in her petition."
Examination of the dates of the documents will
show that the Investigation Report preceded the
Petition. The Petition, therefore, is based on the
Investigation Report, and not the other way around.
DTcACa
IV
THE HONORABLE COURT OF APPEALS'
FACTUAL FINDINGS, ADOPTED BY THE
HONORABLE SUPREME COURT IN THE
DECISION DATED 24 AUGUST 2010, ARE
CONTRARY TO THE EVIDENCE PRESENTED.
V
VI. The pronouncement of the Commissioners that

Sale Certificate No. 511 is stale is incorrect.
Intervenors made continuing efforts to secure a
deed of conveyance based on Sale Certificate No.
511. Defense of staleness or laches belongs to the
party against whom the claim is asserted; it is only
that party who can raise it. It can also be waived, as
in this case when the LMB which had the sole
authority under Act No. 1120 to convey friar lands,
issued to intervenor Felicitas B. Manahan Deed of
Conveyance No. V-2000-22.
THE
HONORABLE
SUPREME
COURT'S
FINDINGS IN THE DECISION DATED 24 AUGUST
2010 ARE CONTRARY TO LAW.
As to the Manahans, they seek a partial
reconsideration and to allow further reception of
evidence, stating the following grounds:
I. As the original of Sale Certificate No. 511 could
not be found in the files of the LMB or the DENRNCR at the time of the hearings before the
Commissioners, the existence of the certificate was
proven
by
secondary
evidence.
The
Commissioners erred in ignoring secondary
evidence of the contents of Sale Certificate No. 511
because of mere doubt and suspicion as to its
authenticity and in the absence of contradicting
evidence.
VII. The requirement of Act No. 1120 that a deed of

conveyance of friar land must be signed by the
Secretary of Interior was dispensed with pursuant
to law and Presidential issuances which have the
force of law.
VIII. Deeds of conveyance lacking the signature of
the Department Secretary were ratified by
President Joseph Estrada and DENR Secretary
Michael T. Defensor.
II. The OSG which has been tasked by the

Honorable Court to obtain documents from the LMB
and DENR-NCR relative to the conveyance of Lot
823, Piedad Estate, furnished intevenors with a
certified true copy of Sale Certificate No. 511 which
it obtained from the DENR-NCR on September 11,
2010, together with the explanation of DENR-NCR
why the document is available only now. (Certified
true copy of Sale Certificate No. 511 and Sworn
Explanation of Evelyn G. Celzo attached as
Annexes "I" and "II".
The motions are bereft of merit.

Upon the theory that this Court had no power to
cancel their certificate of title over Lot 823, Piedad
Estate in the resolution of the present controversy,
the Manotoks contend that our Resolution of
December 18, 2008 terminated the appeal from the
Land Registration Authority (LRA) administrative
reconstitution proceedings by reversing the CA's
rulings and affirming the denial by LRA
Reconstitution Officer Benjamin M. Bustos of the
III. When Valentin Manahan offered to purchase Lot

823, Piedad Estate, being the "actual settler and
451
application for administrative reconstitution of the

Barques' Transfer Certificate of Title (TCT) No.
210177. The appeal having been terminated, the
Manotoks argued that the remand to the CA for
evidence-taking had introduced a new "case" in
which this Court will decide, in the first instance, an
"alleged" ownership issue over the property. Such
action is legally infirm since the law has vested
exclusive original jurisdiction over civil actions
involving title to real property on the trial courts.
alienation from the Government of the subject friar

land. The declaration of ownership in favor of the
Government was but the logical consequence of
such finding. EDSHcT
We have ruled that the existence of Sale Certificate
No. 1054 in the records of the DENR-LMB was not
duly established. No officer of the DENR-NCR or
LMB having official custody of sale certificates
covering friar lands testified as to the issuance and
authenticity of Exh. 10 submitted by the Manotoks.
And even assuming that Exh. 10 was actually
sourced from the DENR-LMB, there was no
showing that it was duly issued by the Director of
Lands and approved by the Secretary of Agriculture
and Natural Resources (DENR). On this point, the
Manotoks hinted that the LMB's certifying the
document (Exh. 10) at the Manotoks' request was a
deliberate fraud in order to give them either a false
document, the usual unsigned copy of the signed
original, or a fake copy.
The argument is untenable.

In our December 18, 2008 Resolution, we set aside
the December 12, 2005 Decision rendered by the
First Division and recalled the entry of judgment.
We ruled that neither the CA nor the LRA had
jurisdiction to cancel the Manotok title, a relief
sought by the Barques in the administrative
reconstitution proceedings. The Court En Banc
proceeded with the reevaluation of the cases on a
pro hac vice basis. During the oral arguments,
there were controversial factual matters which
emerged as the parties fully ventilated their
respective claims, in the course of which the
Barques' claim of ownership was found to be
exceedingly weak. Indeed, both the LRA and CA
erred in ruling that the Barques had the right to
seek reconstitution of their purported title.
Reevaluation of the evidence on record likewise
indicated that the Manotoks' claim to title is just as
flawed as that of the Barques. Following the
approach in Alonso v. Cebu Country Club, Inc. 1
also involving a Friar Land, Republic v. Court of
Appeals 2 and Manotok Realty, Inc. v. CLT Realty
Development Corporation, 3 the majority resolved
to remand this case for reception of evidence on
the parties' competing claims of ownership over Lot
823 of the Piedad Estate. Given the contentious
factual issues, it was necessary for this Court to
resolve the same for the complete determination of
the present controversy involving a huge tract of
friar land. It was thus not the first time the Court
had actually resorted to referring a factual matter
pending before it to the CA.
The Manotoks further assert that this would imply

that the LMB either did not produce the genuine
article, or could not produce it. This could only
mean that the document which the NBI "found" to
be fake or spurious, if this Court accepts that
finding, was "planted evidence" or evidence
inserted in the LMB files to discredit the Manotok
title. Nonetheless, the Manotoks insist there were
independent
evidence
which
supposedly
established the prior existence of Sale Certificate
No. 1054. These documents are: (a) photocopy of
Assignment of Sale Certificate No. 1054 dated
1929; (b) official receipt of payment for said
certified copy; (c) photocopies of the other
assignment deeds dated 1923; (d) official receipts
of installment payments on Lot 823 issued to
Severino Manotok; (e) file copies in the National
Archives of the Deed of Conveyance No. 29204;
and (f) the notarial registers in which the said Deed
of Conveyance, as well as the assignment
documents, were entered.
The contentions have no merit, and at best
speculative. As this Court categorically ruled in
Alonso v. Cebu Country Club, Inc., 5 "approval by
the Secretary of Agriculture and Commerce of the
sale of friar lands is indispensable for its validity,
hence, the absence of such approval made the sale
null and void ab initio." In that case, the majority
declared that no valid titles can be issued on the
basis of the sale or assignment made in favor of
petitioner's father due to the absence of signature
of the Director of Lands and the Secretary of the
Interior, and the approval of the Secretary of
Natural Resources in the Sale Certificate and
Assignment of Sale Certificate. Applying the Alonso
ruling to these cases, we thus held that no legal
right over the subject friar land can be recognized
in favor of the Manotoks under the assignment
documents in the absence of the certificate of sale
duly signed by the Director of Lands and approved
by the Secretary of Agriculture and Natural
Resources.
Maintaining their objection to the order for reception

of evidence on remand, the Manotoks argue that as
owners in possession, they had no further duty to
defend their title pursuant to Article 541 of the Civil
Code which states that: "[a] possessor in the
concept of owner has in his favor the legal
presumption that he possesses with a just title and
he cannot be obliged to show or prove it." But such
presumption is prima facie, and therefore it prevails
until the contrary is proved. 4 In the light of serious
flaws in the title of Severino Manotok which were
brought to light during the reconstitution
proceedings, the Court deemed it proper to give all
the parties full opportunity to adduce further
evidence, and in particular, for the Manotoks to
prove their presumed just title over the property
also claimed by the Barques and the Manahans. As
it turned out, none of the parties were able to
establish by clear and convincing evidence a valid
452
This belatedly submitted copy of Sale Certificate

No. 511 was not among those official documents
which the Office of the Solicitor General (OSG)
offered as evidence, as in fact no copy thereof can
be found in the records of either the DENR-NCR or
LMB. Moreover, the sudden emergence of this
unauthenticated
document
is
suspicious,
considering that Celzo who testified, as witness for
both the OSG and the Manahans, categorically
admitted that she never actually saw the application
to purchase and alleged Sale Certificate No. 511 of
the Manahans. The relevant portions of the
transcript of stenographic notes of the crossexamination of said witness during the hearing
before the CA are herein quoted:
That a valid certificate of sale was issued to

Severino Manotok's assignors cannot simply be
presumed from the execution of assignment
documents in his favor. Neither can it be deduced
from the alleged issuance of the half-torn TCT No.
22813, itself a doubtful document as its authenticity
was not established, much less the veracity of its
recitals because the name of the registered owner
and date of issuance do not appear at all. The
Manotoks until now has not offered any explanation
as to such condition of the alleged title of Severino
Manotok; they assert that it is the Register of
Deeds himself "who should be in a position to
explain that condition of the TCT in his custody."
But then, no Register of Deeds had testified and
attested to the fact that the original of TCT No.
22813 was under his/her custody, nor that said
certificate of title in the name of Severino Manotok
existed in the files of the Registry of Deeds of
Caloocan or Quezon City. The Manotoks
consistently evaded having to explain the
circumstances as to how and where TCT No.
22813 came about. Instead, they urge this Court to
validate their alleged title on the basis of the
disputable presumption of regularity in the
performance of official duty. Such stance hardly
satisfies the standard of clear and convincing
evidence in these cases. Even the existence of the
official receipts showing payment of the price to the
land by Severino Manotok does not prove that the
land was legally conveyed to him without any
contract of sale having been executed by the
government in his favor. Neither did the alleged
issuance of TCT No. 22183 in his favor vest
ownership upon him over the land nor did it validate
the alleged purchase of Lot 283, which is null and
void. The absence of the Secretary's approval in
Certificate of Sale No. 1054 made the supposed
sale null and void ab initio. 6
ATTY. SAN JUAN:

How about this part concerning Valentin Manahan
having applied for the purchase of the land? Did
you get this from the neighbors or from Felicitas
Manahan?
xxx xxx xxx
WITNESS:
No, sir. Only the Records Section, sir, that Valentin
Manahan applied, sir.
ATTY. SAN JUAN:
You did not see Valentin Manahan's application but
only the Records Section saw it?
WITNESS:
Yes, sir.
ATTY. SAN JUAN:
In the light of the foregoing, the claim of the

Barques who, just like the Manahans, were unable
to produce an authentic and genuine sale
certificate, must likewise fail. The Decision
discussed extensively the findings of the CA that
the Barques' documentary evidence were either
spurious or irregularly procured, which even
buttressed the earlier findings mentioned in the
December 18, 2008 Resolution. The CA's findings
and recommendations with respect to the claims of
all parties, have been fully adopted by this Court,
as evident in our disquisitions on the indispensable
requirement of a validly issued Certificate of Sale
over Lot 823, Piedad Estate. IADaSE
Did they tell you that they saw the application?

WITNESS:
I did not go further, sir.
xxx xxx xxx
ATTY. SAN JUAN:
And this report of yours says that Valentin Manahan
was issued Sale Certificate No. 511 after
completing the payment of the price of P2,140?
WITNESS:
As to the motion of the Manahans to admit an

alleged certified true copy of Sale Certificate No.
511 dated June 23, 1913 in the name of Valentin
Manahan which, as alleged in the attached Sworn
Explanation of Evelyn G. Celzo, the latter had
inadvertently failed to attach to her Investigation
Report forwarded to the CENRO, this Court cannot
grant said motion.
Yes, sir.
ATTY. SAN JUAN:
You also got this from the records of the LMB, is
that correct?
WITNESS:
453
823, Piedad Estate and the Investigation Report

she submitted thereafter, failed to impress the CA
on the validity of the Manahans' claim. Indeed,
records showed that Celzo's findings in her report
were merely based on what Felicitas Manahan told
her about the alleged occupation and possession
by Valentin Manahan of the subject land.
Yes, sir.
ATTY. SAN JUAN:
You actually saw the sale certificate that was
issued to Valentin Manahan after he paid the price
of P2,140?
In their Offer of Additional Evidence, the Manahans

submitted a photocopy of a letter dated December
21, 2010 allegedly sent by Atty. Allan V. Barcena
(OIC, Director) to their counsel, Atty. Romeo C.
dela Cruz, which reads:
WITNESS:
No, sir. I did not go further.
ATTY. SAN JUAN:
This has reference to your letter dated August 20,

2010 addressed to the Secretary of the Department
of Environment and Natural Resources (DENR)
requesting that Deed of Conveyance No. V-200022
issued on October 30, 2000 over Lot 823 of the
Piedad Estate in favor of Felicitas B. Manahan be
ratified or confirmed for reasons stated therein. The
Office of the DENR Secretary in turn referred the
letter to us for appropriate action.
You did not see the sale certificate?

WITNESS:
Yes, Sir, but I asked only.
ATTY. SAN JUAN: cDaEAS
Who did you ask?
Records of this Office on Lot 823 of the Piedad

Estate, show that the Deed of Conveyance No. V200022 covering said lot in favor of Felicitas
Manahan was issued by then Director of the Land
Management Bureau (LMB), now Undersecretary
Ernesto D. Adobo, Jr., on October 30, 2000. The
Deed was issued based on General Memorandum
Order (GMO) No. 1 issued by then Secretary Jose
J. Leido, Jr. of the Department of Natural
Resources on January 17, 1977, which authorized
the Director of Lands, now Director of LMB, to
approve contracts of sale and deeds of conveyance
affecting Friar Lands.
WITNESS:
The records officer, sir.
ATTY. SAN JUAN:
Whose name you can no longer recall, correct?
WITNESS:
I can no longer recall, sir.
ATTY. SAN JUAN:
It is stressed that the confirmation of the Deed by

this office is only as to the execution and issuance
based on the authority of LMB Director under GMO
No. 1. This is without prejudice to the final decision
of the Supreme Court as to its validity in the case of
"Severino Manotok IV, et al. versus Heirs of Homer
L. Barque" (G.R. No. 162335 & 162605).
And the information to you was the Sale Certificate

No. 511 was issued after the price was fully paid?
WITNESS:
Yes, sir.
ATTY. SAN JUAN:
Please be
supplied.)
And it was only after he applied for the purchase of

the lot sometime after the survey of 1939 that he
was issued Sale Certificate No. 511?
guided
accordingly.
(Emphasis
However, in the absence of a valid certificate of

sale duly signed by the Secretary of Interior or
Agriculture and Natural Resources, such alleged
confirmation of the execution and issuance by the
DENR-LMB of Deed of Conveyance No. V-00022 in
favor of Felicitas Manahan on October 30, 2000 is
still insufficient to prove the Manahans' claim over
the subject land. HICcSA
WITNESS:
I am not aware of the issuance of sale certificate. I
am aware only of the deed of assignment, Sir.
xxx xxx xxx 7 (Emphasis supplied.)
In a Supplemental Manifestation dated November

18, 2010, the Manotoks submitted an affidavit
supposedly executed on November 11, 2010 by
former DENR Secretary Michael T. Defensor
("Defensor Affidavit") clarifying that MO 16-05
applies to all Deeds of Conveyance that do not
bear the signature of the Secretary of Natural
In view of the above admission, Celzo's explanation

that the copy of Sale Certificate No. 511 signed by
the Director of Lands and Secretary of the Interior
was originally attached to her Investigation Report,
cannot be given credence. Even her testimony
regarding the conduct of her investigation of Lot
454
Resources, contrary to the CA and this Court's

statement that said issuance refers only to those
deeds of conveyance on file with the records of the
DENR field offices.
override Act No. 1120 which requires that a deed of

conveyance must be signed by the Secretary,
considering that MO 16-05 is based on law and
presidential issuances, particularly EO 131, which
have the force of law.
By its express terms, however, MO 16-05 covered

only deeds of conveyances and not unsigned
certificates of sale. The explanation of Secretary
Defensor stated the avowed purpose behind the
issuance, which is "to remove doubts or dispel
objections as to the validity of all Torrens transfer
certificates of title issued over friar lands" thereby
"ratifying the deeds of conveyance to the friar land
buyers who have fully paid the purchase price, and
are otherwise not shown to have committed any
wrong or illegality in acquiring such lands."
Meanwhile, in compliance with our directive, the

Solicitor General filed his Comment on the
Defensor Affidavit submitted by the Manotoks. The
Solicitor General contends that said document is
hearsay evidence, hence inadmissible and without
probative value. He points out that former DENR
Secretary Defensor was not presented as a witness
during the hearings at the CA, thus depriving the
parties including the government of the right to
cross-examine him regarding his allegations
therein. And even assuming arguendo that such
affidavit is admissible as evidence, the Solicitor
General is of the view that the Manotoks, Barques
and Manahans still cannot benefit from the
remedial effect of MO 16-05 in view of the decision
rendered by this Court which ruled that none of the
parties in this case has established a valid
alienation from the Government of Lot 823 of the
Piedad Estate, and also because the curative effect
of MO 16-05 is intended only for friar land buyers
whose deeds of conveyance lack the signature of
the Secretary of the Interior or Agriculture and
Natural Resources, have fully paid the purchase
price and are otherwise not shown to have
committed any wrong or illegality in acquiring the
friar lands. He then emphasizes that this Court has
ruled that it is not only the deed of conveyance
which must be signed by the Secretary but also the
certificate of sale itself. Since none of the parties
has shown a valid disposition to any of them of Lot
823 of the Piedad Estate, this Court therefore
correctly held that said friar land is still part of the
patrimonial property of the national government.
ASTIED
The Manahans propounded the same theory that

contracts of sale over friar lands without the
approval of the Secretary of Natural Resources
may be subsequently ratified, but pointed out that
unlike the Manotoks' Deed of Conveyance No.
29204 (1932), their Deed of Conveyance No. V2000-22 (2000) was issued and approved by the
Director of Lands upon prior authority granted by
the Secretary.
In their Consolidated Memorandum dated
December 19, 2010, the Manahans reiterated their
earlier argument that the LMB Director himself had
the authority to approve contracts of sale and
deeds of conveyance over friar lands on the basis
of General Memorandum Order No. 1 issued in
1977 by then Secretary of Natural Resources Jose
J. Leido, Jr. delegating such function to the Director
of Lands. This delegated power can also be
gleaned from Sec. 15, Chapter 1, Title XIV of the
Administrative Code of 1987 which provides that
the Director of Lands shall "perform such other
functions as may be provided by law or assigned by
the Secretary." Moreover, former President
Corazon C. Aquino issued Executive Order No. 131
dated January 20, 1987 reorganizing the LMB and
providing that the LMB Director shall, among
others, perform other functions as may be assigned
by the Minister of Natural Resources.
The Court is not persuaded by the "ratification

theory" espoused by the Manotoks and Manahans.
The argument that the Director of Lands had
delegated authority to approve contracts of sale
and deeds of conveyances over friar lands ignores
the consistent ruling of this Court in controversies
involving friar lands. The aforementioned
presidential/executive issuances notwithstanding,
this Court held in Solid State Multi-Products
Corporation v. CA, 10 Liao v. Court of Appeals, 11
and Alonso v. Cebu Country Club 12 that approval
of the Secretary of Agriculture and Commerce (later
the Natural Resources) is indispensable to the
validity of sale of friar land pursuant to Sec. 18 of
Act No. 1120 and that the procedure laid down by
said law must be strictly complied with.
On the basis of Art. 1317 9 of the Civil Code,the

Manahans contend that deeds of conveyance not
bearing the signature of the Secretary can also be
ratified. Further, they cite Proclamation No. 172
issued by former President Joseph Ejercito Estrada
which declared that there should be no legal
impediment for the LMB to issue such deeds of
conveyance since the applicants/purchasers have
already paid the purchase price of the lot, and as
sellers in good faith, it is the obligation of the
Government
to
deliver
to
said
applicants/purchasers the friar lands sold free of
any lien or encumbrance whatsoever. Eventually,
when MO 16-05 was issued by Secretary Defensor,
all these deeds of conveyance lacking the signature
of the Secretary of Natural Resources are thus
deemed signed or otherwise ratified. The CA
accordingly erred in holding that MO 16-05 cannot
As to the applicability of Art. 1317 of the Civil

Code,we maintain that contracts of sale lacking the
approval of the Secretary fall under the class of
void and inexistent contracts enumerated in Art.
1409 13 which cannot be ratified. Section 18 of Act
455
No. 1120 mandated the approval by the Secretary

for a sale of friar land to be valid.
administration and interest upon the purchase

money to the time of sale. When the cost thereof
shall have been thus ascertained, the Chief of the
Bureau of Public Lands shall give the said settler
and occupant a certificate which shall set forth in
detail that the Government has agreed to sell to
such settler and occupant the amount of land so
held by him, at the price so fixed, payable as
provided in this Act at the office of the Chief of
Bureau of Public Lands, in gold coin of the United
States or its equivalent in Philippine currency, and
that upon the payment of the final installment
together with [the] accrued interest the Government
will convey to such settler and occupant the said
land so held by him by proper instrument of
conveyance, which shall be issued and become
effective in the manner provided in section one
hundred and twenty-two of the Land Registration
Act. The Chief of the Bureau of Public Lands shall,
in each instance where a certificate is given to the
settler and occupant of any holding, take his formal
receipt showing the delivery of such certificate,
signed by said settler and occupant. DCAHcT
In his dissenting opinion, Justice Antonio T. Carpio

disagreed with the majority's interpretation of
Section 18 of Act No. 1120, and proposed that
based on Section 12 of the same Act, it is the Deed
of Conveyance that must bear the signature of the
Secretary of Interior/Agriculture and Natural
Resources "because it is only when the final
installment is paid that the Secretary can approve
the sale, the purchase price having been fully paid."
It was pointed out that the majority itself expressly
admit that "it is only a ministerial duty on the part of
the Secretary to sign the Deed of Conveyance once
the applicant had made full payment on the
purchase price of the land", citing jurisprudence to
the effect that "notwithstanding the failure of the
government to issue the proper instrument of
conveyance when the purchaser finally pays the
final installment of the purchase price, the purchase
of the friar land still acquired ownership.
We are unable to agree with the view that it is only
the Director of Lands who signs the Certificate of
Sale.
On the other hand, the first paragraph of Section 15

provides for the reservation of title in the
Government only for the purpose of ensuring
payment of the purchase price, which means that
the sale was subject only to the resolutory condition
of non-payment, while the second paragraph states
that the purchaser thereby acquires "the right of
possession and purchase" by virtue of a certificate
of sale "signed under the provisions [thereof]." The
certificate of sale evidences the meeting of the
minds between the Government and the applicant
regarding the price, the specific parcel of friar land,
and terms of payment. In Dela Torre v. Court of
Appeals, 15 we explained that the non-payment of
the full purchase price is the only recognized
resolutory condition in the case of sale of friar
lands. We have also held that it is the execution of
the contract to sell and delivery of the certificate of
sale that vests title and ownership to the purchaser
of friar land. 16 Where there is no certificate of sale
issued, the purchaser does not acquire any right of
possession and purchase, as implied from Section
15. By the mandatory language of Section 18, the
absence of approval of the Secretary of
Interior/Agriculture and Natural Resources in the
lease or sale of friar land would invalidate the sale.
These provisions read together indicate that the
approval of the Secretary is required in both the
certificate of sale and deed of conveyance,
although the lack of signature of the Secretary in
the latter may not defeat the rights of the applicant
who had fully paid the purchase price.
The official document denominated as "Sale

Certificate" clearly required both the signatures of
the Director of Lands who issued such sale
certificate to an applicant settler/occupant and the
Secretary of the Interior/Agriculture and Natural
Resources indicating his approval of the sale.
These forms had been prepared and issued by the
Chief of the Bureau of Public Lands under the
supervision of the Secretary of the Interior,
consistent with Act No. 1120 "as may be
necessary . . . to carry into effect all the provisions
[thereof] that are to be administered by or under
[his] direction, and for the conduct of all
proceedings arising under such provisions." 14
We reiterate that Section 18 of Act No. 1120, as
amended, is plain and categorical in stating that:
SECTION 18. No lease or sale made by the Chief
of the Bureau of Public Lands under the provisions
of this Act shall be valid until approved by the
Secretary of the Interior.
Section 12 did not mention the requirement of
signature or approval of the Secretary in the sale
certificate and deed of conveyance.
SECTION 12. It shall be the duty of the Chief of the
Bureau of Public Lands by proper investigation to
ascertain what is the actual value of the parcel of
land held by each settler and occupant, taking into
consideration the location and quality of each
holding of land, and any other circumstances giving
[it] value. The basis of valuation shall likewise be,
so far as practicable, such [as] the aggregate of the
values of all the holdings included in each particular
tract shall be equal to the cost to the Government
to the entire tract, including the cost of surveys,
Justice Conchita Carpio Morales' dissent asserted

that case law does not categorically state that the
required "approval" must be in the form of a
signature on the Certificate of Sale, and that there
is no statutory basis for the requirement of the
Secretary's signature on the Certificate of Sale
"apart from a strained deduction of Section 18."
456
As already stated, the official forms being used by

the Government for this purpose clearly show that
the Director of Lands signs every certificate of sale
issued covering a specific parcel of friar land in
favor of the applicant/purchaser while the Secretary
of Interior/Natural Resources signs the document
indicating that the sale was approved by him. To
approve is to be satisfied with; to confirm, ratify,
sanction, or consent to some act or thing done by
another; to sanction officially. 17 The Secretary of
Interior/Natural Resources signs and approves the
Certificate of Sale to confirm and officially sanction
the conveyance of friar lands executed by the Chief
of the Bureau of Public Lands (later Director of
Lands). It is worth mentioning that Sale Certificate
No. 651 in the name of one Ambrosio Berones
dated June 23, 1913, 18 also covering Lot 823 of
the Piedad Estate and forming part of the official
documents on file with the DENR-LMB which was
formally offered by the OSG as part of the official
records on file with the DENR and LMB pertaining
to Lot 823, contains the signature of both the
Director of Lands and Secretary of the Interior. The
Assignment of Sale Certificate No. 651 dated April
19, 1930 was also signed by the Director of Lands.
19
there can be no valid titles issued on the basis of

such sale or assignment. 22
Justice Carpio, however, opined that the ruling in
Alonso "was superseded with the issuance by then
Department of [Environment] and Natural
Resources (DENR) Secretary Michael T. Defensor
of DENR Memorandum Order No. 16-05." It was
argued that the majority had construed a "limited
application" when it declared that the Manotoks
could not benefit from said memorandum order
because the latter refers only to deeds of
conveyance "on file with the records of the DENR
field offices".
We disagree with the view that Alonso is no longer
applicable to this controversy after the issuance of
DENR MO No. 16-05 which supposedly cured the
defect in the Manotoks' title.
First, DENR MO No. 16-05 explicitly makes
reference only to Deeds of Conveyances, not to
Sale Certificates by which, under the express
language of Section 15, the purchaser of friar land
acquires the right of possession and purchase
pending final payment and the issuance of title,
such certificate being duly signed under the
provisions of Act No. 1120. Although the whereas
clause of MO No. 16-05 correctly stated that it was
only a ministerial duty on the part of the Secretary
to sign the Deed of Conveyance once the applicant
had made full payment on the purchase price of the
land, it must be stressed that in those instances
where the formality of the Secretary's approval and
signature is dispensed with, there was a valid
certificate of sale issued to the purchaser or
transferor. In this case, there is no indication in the
records that a certificate of sale was actually issued
to the assignors of Severino Manotok, allegedly the
original claimants of Lot 823, Piedad Estate.
DacASC
Following the dissent's interpretation that the

Secretary is not required to sign the certificate of
sale while his signature in the Deed of Conveyance
may also appear although merely a ministerial act,
it would result in the absurd situation wherein the
certificate of sale and deed of conveyance both
lacked the signature and approval of the Secretary,
and yet the purchaser's ownership is ratified,
courtesy of DENR Memorandum Order (MO) No.
16-05. It is also not farfetched that greater chaos
will arise from conflicting claims over friar lands,
which could not be definitively settled until the
genuine and official manifestation of the Secretary's
approval of the sale is discerned from the records
and documents presented. This state of things is
simply not envisioned under the orderly and proper
distribution of friar lands to bona fide occupants and
settlers whom the Chief of the Bureau of Public
Lands was tasked to identify. 20
Second, it is basic that an administrative issuance

like DENR Memorandum Order No. 16-05 must
conform to and not contravene existing laws. In the
interpretation and construction of the statutes
entrusted
to
them
for
implementation,
administrative agencies may not make rules and
regulations which are inconsistent with the statute it
is administering, or which are in derogation of, or
defeat its purpose. In case of conflict between a
statute and an administrative order, the former must
prevail. 23 DENR Memorandum Order No. 16-05
cannot supersede or amend the clear mandate of
Section 18, Act No. 1120 as to dispense with the
requirement of approval by the Secretary of the
Interior/Agriculture and Natural Resources of every
lease or sale of friar lands.
The existence of a valid certificate of sale therefore

must first be established with clear and convincing
evidence before a purchaser is deemed to have
acquired
ownership
over
a
friar
land
notwithstanding
the
non-issuance
by
the
Government, for some reason or another, of a deed
of conveyance after completing the installment
payments. In the absence of such certificate of sale
duly signed by the Secretary, no right can be
recognized in favor of the applicant. Neither would
any assignee or transferee acquire any right over
the subject land. EaISDC
But what is worse, as the dissent suggests, is that

MO 16-05 would apply even to those deeds of
conveyances not found in the records of DENR or
its field offices, such as the Manotoks' Deed of
Conveyance No. 29204 sourced from the National
Archives. It would then cover cases of claimants
In Alonso v. Cebu Country Club, Inc., 21 the Court

categorically ruled that the absence of approval by
the Secretary of Agriculture and Commerce in the
sale certificate and assignment of sale certificate
made the sale null and void ab initio. Necessarily,
457
who have not been issued any certificate of sale

but were able to produce a deed of conveyance in
their names. The Bureau of Lands was originally
charged with the administration of all laws relative
to friar lands, pursuant to Act No. 2657 and Act No.
2711. Under Executive Order No. 192, 24 the
functions and powers previously held by the Bureau
of Lands were absorbed by the Lands Management
Bureau (LMB) of the DENR, while those functions
and powers not absorbed by the LMB were
transferred to the regional field offices. 25 As
pointed out by the Solicitor General in the
Memorandum submitted to the CA, since the LMB
and DENR-NCR exercise sole authority over friar
lands, they are naturally the "sole repository of
documents and records relative to Lot No. 823 of
the Piedad Estate." 26
decades involving lands of the public domain and

those lands which form part of the Government's
patrimonial property, whenever necessary in the
complete adjudication of the controversy before it
or where apparent irregularities and anomalies are
shown by the evidence on record. There is nothing
sacrosanct about the landholdings in the Piedad
Estate as even prior to the years when Lot 823
could have been possibly "sold" or disposed by the
Bureau of Lands, there were already reported
anomalies in the distribution of friar lands in
general. 29
Significantly, subsequent to the promulgation of our
decision in Alonso, Republic Act No. (RA) 9443 was
passed by Congress confirming and declaring,
subject to certain exceptions, the validity of existing
TCTs and reconstituted certificates of title covering
the Banilad Friar Lands Estate situated in Cebu.
Alonso involved a friar land already titled but
without a sale certificate, and upon that ground we
declared the registered owner as not having
acquired ownership of the land. RA 9443 validated
the titles "notwithstanding the lack of signatures
and/or approval of the then Secretary of Interior
(later Secretary of Agriculture and Natural
Resources) and/or the then Chief of the Bureau of
Public lands (later Director of Public Lands) in the
copies of the duly executed Sale Certificate and
Assignments of Sale Certificates, as the case may
be, now on file with the Community Environment
and Natural Resources Office (CENRO), Cebu
City". IECcAT
Third, the perceived disquieting effects on titles

over friar lands long held by generations of
landowners cannot be invoked as justification for
legitimizing any claim or acquisition of these lands
obtained through fraud or without strict compliance
with the procedure laid down in Act No. 1120. This
Court, in denying with finality the motion for
reconsideration filed by petitioner in Alonso v. Cebu
Country Club, Inc. 27 reiterated the settled rule that
"[a]pproval by the Secretary of the Interior cannot
simply be presumed or inferred from certain acts
since the law is explicit in its mandate." 28
Petitioners failed to discharge their burden of
proving their acquisition of title by clear and
convincing evidence, considering the nature of the
land involved.
The enactment of RA 9443 signifies the

legislature's recognition of the statutory basis of the
Alonso ruling to the effect that in the absence of
signature and/or approval of the Secretary of
Interior/Natural Resources in the Certificates of
Sale on file with the CENRO, the sale is not valid
and the purchaser has not acquired ownership of
the friar land. Indeed, Congress found it imperative
to pass a new law in order to exempt the already
titled portions of the Banilad Friar Lands Estate
from the operation of Section 18. This runs counter
to the dissent's main thesis that a mere
administrative issuance (DENR MO No. 16-05)
would be sufficient to cure the lack of signature and
approval by the Secretary in Certificate of Sale No.
1054 covering Lot 823 of the Piedad Estate.
As consistently held by this Court, friar lands can

be alienated only upon proper compliance with the
requirements of Act No. 1120. The issuance of a
valid certificate of sale is a condition sine qua non
for acquisition of ownership under the Friar Lands
Act. Otherwise, DENR Memorandum Order No. 1605 would serve as administrative imprimatur to
holders of deeds of conveyance whose acquisition
may have been obtained through irregularity or
fraud.
Contrary to the dissent of Justice Maria Lourdes P.
A. Sereno that our decision has "created dangers
for the system of property rights in the Philippines",
the Court simply adhered strictly to the letter and
spirit of the Friar Lands Act and jurisprudence
interpreting its provisions. Such imagined scenario
of instability and chaos in the established property
regime, suggesting several other owners of lands
formerly comprising the Piedad Estate who are
supposedly similarly situated, remains in the realm
of speculation. Apart from their bare allegations,
petitioners (Manotoks) failed to demonstrate how
the awardees or present owners of around more
than 2,000 hectares of land in the Piedad Estate
can be embroiled in legal disputes arising from
unsigned certificates of sale.
In any event, the Manotoks now seek the

application of RA 9443 to the Piedad Estate,
arguing that for said law to be constitutionally valid,
its continued operation must be interpreted in a
manner that does not collide with the equal
protection clause. Considering that the facts in
Alonso from which RA 9443 sprung are similar to
those in this case, it is contended that there is no
reason to exclude the Piedad Estate from the ambit
of RA 9443.
Justice Carpio's dissent concurs with this view,
stating that to limit its application to the Banilad
Friar Lands Estate will result in class legislation. RA
On the other hand, this Court must take on the task

of scrutinizing even certificates of title held for
458
9443 supposedly should be extended to lands

similarly situated, citing the case of Central Bank
Employees Association, Inc. v. Bangko Sentral ng
Pilipinas. 30
the Interior (later Secretary of Agriculture and

Natural Resources) and/or the then Chief of the
Bureau of Public Lands (later Director of Public
Lands) in the copies of the duly executed Sale
Certificates and Assignments of Sales Certificates,
as the case may be, now on file with the
Community Environment and Natural Resources
Office (CENRO), Cebu City, are hereby confirmed
and declared as valid titles and the registered
owners recognized as absolute owners thereof.
In the aforesaid case, the Court extended the

benefits of subsequent laws exempting all rankand-file employees of other government financing
institutions (GFIs) from the Salary Standardization
Law (SSL)to the rank-and-file employees of the
BSP. We upheld the position of petitioner
association that the continued operation of Section
15 (c), Article II of RA 7653 (the New Central Bank
Act), which provides that the compensation and
wage structure of employees whose position fall
under salary grade 19 and below shall be in
accordance with the rates prescribed under RA
6758 (SSL), constitutes "invidious discrimination on
the 2,994 rank-and-file employees of the [BSP]".
Thus, as regards the exemption from the SSL, we
declared that there were no characteristics peculiar
only to the seven GFIs or their rank-and-file so as
to justify the exemption from the SSL which BSP
rank-and-file employees were denied. The
distinction made by the law is superficial, arbitrary
and not based on substantial distinctions that make
real differences between BSP rank-and-file and the
seven other GFIs. 31 TIaCAc
This confirmation and declaration of validity shall in

all respects be entitled to like effect and credit as a
decree of registration, binding the land and quieting
the title thereto and shall be conclusive upon and
against all persons, including the national
government and all branches thereof; except when,
in a given case involving a certificate of title or a
reconstituted certificate of title, there is clear
evidence that such certificate of title or
reconstituted certificate of title was obtained
through fraud, in which case the solicitor general or
his duly designated representative shall institute the
necessary judicial proceeding to cancel the
certificate of title or reconstituted certificate of title
as the case may be, obtained through such fraud.
Without ruling on the issue of violation of equal
protection guarantee if the curative effect of RA
9443 is not made applicable to all titled lands of the
Piedad Estate, it is clear that the Manotoks cannot
invoke this law to "confirm" and validate their
alleged title over Lot 823. It must be stressed that
the existence and due issuance of TCT No. 22813
in the name of Severino Manotok was not
established by the evidence on record. There is
likewise no copy of a "duly executed certificate of
sale" "on file" with the DENR regional office. In the
absence of an existing certificate of title in the
name of the predecessor-in-interest of the
Manotoks and certificate of sale on file with the
DENR/CENRO, there is nothing to confirm and
validate through the application of RA 9443.
We are of the opinion that the provisions of RA

9443 may not be applied to the present case as to
cure the lack of signature of the Director of Lands
and approval by the Secretary of Agriculture and
Natural Resources in Sale Certificate No. 1054.
The Court has explained the nature of equal
protection guarantee in this manner:
who do not. 32 (Emphasis and underscoring
supplied.)
Moreover, RA 9443 expressly excludes from its

coverage those cases involving certificates of title
which were shown to have been fraudulently or
irregularly issued. As the reconstitution and remand
proceedings in these cases revealed, the
Manotoks' title to the subject friar land, just like the
Barques and Manahans, is seriously flawed. The
Court cannot allow them now to invoke the benefit
of confirmation and validation of ownership of friar
lands under duly executed documents, which they
never had in the first place. Strict application by the
courts of the mandatory provisions of the Friar
Lands Act is justified by the laudable policy behind
its enactment to ensure that the lands acquired
by the government would go to the actual
occupants and settlers who were given preference
in their distribution. 33 CTHDcE
Section 1 of RA 9443 provides:

Section 1. All existing Transfer Certificates of Title
and Reconstituted Certificates of Title duly issued
by the Register of Deeds of Cebu Province and/or
Cebu City covering any portion of the Banilad Friar
Lands Estate, notwithstanding the lack of
signatures and/or approval of the then Secretary of
The dissent reiterates that the existence of Sale

Certificate No. 1054 was clearly and convincingly
459
established by the original of Assignment of Sale

Certificate No. 1054 dated May 4, 1923 between M.
Teodoro and Severino Manotok as assignors and
Severino Manotok as assignee (approved by the
Director of Lands on June 23, 1923), which is on
file with the LMB, as well as the Deed of
Conveyance No. 29204 secured from the National
Archives which is the repository of government and
official documents, the original of Official Receipt
No. 675257 dated 20 February 1920 for certified
copy of Assignment of Sale Certificate No. 1054 on
Lot 823 and the original of the Provincial Assessor's
declaration of title in Severino Manotok's name for
tax purposes on August 9, 1933 assessing him
beginning with the year 1933. The dissent further
listed some of those alleged sale certificates,
assignment deeds and deeds of conveyance either
signed by the Director of Lands only or unsigned by
both Director of Lands and Secretary of
Interior/Natural Resources, gathered by the
Manotoks from the LMB. It was stressed that if MO
16-05 is not applied to these huge tracts of land
within and outside Metro Manila, "[H]undreds of
thousands, if not millions, of landowners would
surely be dispossessed of their lands in these
areas," "a blow to the integrity of our Torrens
system and the stability of land titles in this
country."
so recorded whenever it is not practicable to

produce the originals in court. (Section 1, Act No.
1287).
It is thus the primary duty of the Chief of the Bureau
of Public Lands to record all these deeds and
instruments in sales registry books which shall be
retained in the Bureau of Public Lands.
Unfortunately, the LMB failed to produce the sales
registry book in court, which could have clearly
shown the names of claimants, the particular lots
and areas applied for, the sale certificates issued
and other pertinent information on the sale of friar
lands within the Piedad Estate. Witness Teresita J.
Reyes, a retired Assistant Chief of the Records
Management Division (RMD), LMB who was
presented by the Manahans, testified that when the
LMB was decentralized, the sales registry books
pertaining to friar lands were supposedly turned
over to the regional offices. These consisted of
copies of the appropriate pages of the sales
registry books in the LMB RMD main office which
has an inventory of lots subject of deeds of
conveyance and sales certificates. However, Reyes
said that the sales registry book itself is no longer
with the RMD. On the other hand, the alleged
affidavit of Secretary Defensor dated November 11,
2010 states that MO 16-05 was intended to
address situations when deeds of conveyance
lacked the signature of the Secretary of Agriculture
and Commerce, or such deeds or records from
which the Secretary's signature or approval may be
verified were lost or unavailable.
The Court has thoroughly examined the evidence

on record and exhaustively discussed the merits of
the Manotoks' ownership claim over Lot 823, in the
light of established precedents interpreting the
provisions of the Friar Lands Act. The dissent even
accused the majority of mistakenly denigrating the
records of the National Archives which, under R.A.
No. 9470 enacted on May 21, 2007, is mandated to
store and preserve "any public archive transferred
to the National Archives" and tasked with issuing
certified true copies or certifications on public
archives and for extracts thereof.
Whether the friar lands registry book is still

available in the LMB or properly turned over to the
regional offices remains unclear. With the statutorily
prescribed record-keeping of sales of friar lands
apparently in disarray, it behooves on the courts to
be more judicious in settling conflicting claims over
friar lands. Titles with serious flaws must still be
carefully scrutinized in each case. Thus, we find
that the approach in Alonso remains as the more
rational and prudent course than the wholesale
ratification introduced by MO 16-05.
The Friar Lands Act mandated a system of

recording all sale contracts to be implemented by
the Director of Lands, which has come to be known
as the Friar Lands Sales Registry.
The prospect of litigants losing friar lands they have

possessed for years or decades had never deterred
courts from upholding the stringent requirements of
the law for a valid acquisition of these lands. The
court's duty is to apply the law. Petitioners' concern
for other landowners which may be similarly
affected by our ruling is, without doubt, a legitimate
one. The remedy though lies elsewhere in the
legislature, as what R.A. 9443 sought to rectify.
TDcCIS
SEC. 6. The title, deeds and instruments of

conveyance pertaining to the lands in each
province, when executed and delivered by said
grantors to the Government and placed in the
keeping of the Chief of the Bureau of Public Lands,
as above provided, shall be by him transmitted to
the register of deeds of each province in which any
part of said lands lies, for registration in accordance
with law. But before transmitting the title, deeds,
and instruments of conveyance in this section
mentioned to the register of deeds of each province
for registration, the Chief of the Bureau of Public
Lands shall record all such deeds and instruments
at length in one or more books to be provided by
him for that purpose and retained in the Bureau of
Public Lands, when duly certified by him shall be
received in all courts of the Philippine Islands as
sufficient evidence of the contents of the instrument
WHEREFORE,
the
present
motions
for
reconsideration are all hereby DENIED with
FINALITY. The motions for oral arguments and
further reception of evidence are likewise DENIED.
Let entry of judgment be made in due course.
SO ORDERED.
460
relationship, or with whom the woman has a

common child. 5 The law provides for protection
orders from the barangay and the courts to prevent
the commission of further acts of VAWC; and
outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court
personnel, social workers, health care providers,
and other local government officials in responding
to complaints of VAWC or requests for assistance.
Corona, C.J., Leonardo-de Castro, Peralta,

Bersamin, Perez and Mendoza, JJ., concur.
Carpio, J., See Dissenting Opinion.
Velasco, Jr., Brion, Abad, Sereno, Reyes and
Perlas-Bernabe, JJ., join the Dissent of J. Carpio.
Del Castillo, J., I certify that J. Del Castillo sent his
vote concurring with Justice Villarama.
A husband is now before the Court assailing the

constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and
an undue delegation of judicial power to barangay
officials.
||| (Manotok, IV v. Heirs of Barque, G.R. Nos.

162335 & 162605 (Resolution), [March 6, 2012],
683 PHIL 448-508)
9. GARCIA VS. DRILON 699 SCRA 667
(2013)
The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private
respondent) filed, for herself and in behalf of her
minor children, a verified petition 6 (Civil Case No.
06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary
Protection Order (TPO) against her husband, Jesus
C. Garcia (petitioner), pursuant to R.A. 9262. She
claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of
marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and
of financial support. 7
EN BANC
[G.R. No. 179267. June 25, 2013.]
JESUS C. GARCIA, petitioner, vs. THE
HONORABLE RAY ALAN T. DRILON, Presiding
Judge, Regional Trial Court-Branch 41, Bacolod
City, and ROSALIE JAYPE-GARCIA, for herself
and in behalf of minor children, namely: JO-ANN,
JOSEPH EDUARD, JESSE ANTHONE, all
surnamed GARCIA, respondents.
Private respondent's claims

Private respondent married petitioner in 2002 when
she was 34 years old and the former was eleven
years her senior. They have three (3) children,
namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private
respondent adopted; Jessie Anthone J. Garcia, 6
years old; and Joseph Eduard J. Garcia, 3 years
old. 8
DECISION
PERLAS-BERNABE, J p:
Hailed as the bastion of Christianity in Asia, the
Philippines boasts of 86.8 million Filipinos or 93
percent of a total population of 93.3 million
adhering to the teachings of Jesus Christ. 1 Yet, the
admonition for husbands to love their wives as their
own bodies just as Christ loved the church and
gave himself up for her 2 failed to prevent, or even
to curb, the pervasiveness of violence against
Filipino women. The National Commission on the
Role of Filipino Women (NCRFW) reported that, for
the years 2000-2003, "female violence comprised
more than 90% of all forms of abuse and violence
and more than 90% of these reported cases were
committed by the women's intimate partners such
as their husbands and live-in partners." 3
Private respondent described herself as a dutiful

and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of
Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife and
children. He forbade private respondent to pray,
and deliberately isolated her from her friends.
When she took up law, and even when she was
already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to
just stay at home. He was often jealous of the fact
that his attractive wife still catches the eye of some
men, at one point threatening that he would have
any man eyeing her killed. 9
Thus, on March 8, 2004, after nine (9) years of

spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An
Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for
Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.
4 aHDTAI
Things turned for the worse when petitioner took up

an affair with a bank manager of Robinson's Bank,
Bacolod City, who is the godmother of one of their
sons. Petitioner admitted to the affair when private
respondent confronted him about it in 2004. He
even boasted to the household help about his
sexual relations with said bank manager. Petitioner
told private respondent, though, that he was just
using the woman because of their accounts with
the bank. 10 EHTIcD
R.A. 9262 is a landmark legislation that defines and

criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's
intimate partners, i.e., husband; former husband; or
any person who has or had a sexual or dating
461
respondent through the use of credit cards, which,

in turn, are paid by the same corporation together
with the bills for utilities. 15 cDCIHT
Petitioner's infidelity spawned a series of fights that

left private respondent physically and emotionally
wounded. In one of their quarrels, petitioner
grabbed private respondent on both arms and
shook her with such force that caused bruises and
hematoma. At another time, petitioner hit private
respondent forcefully on the lips that caused some
bleeding. Petitioner sometimes turned his ire on
their daughter, Jo-Ann, who had seen the text
messages he sent to his paramour and whom he
blamed for squealing on him. He beat Jo-Ann on
the chest and slapped her many times. When
private respondent decided to leave petitioner, JoAnn begged her mother to stay for fear that if the
latter leaves, petitioner would beat her up. Even the
small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he
grows up, he would beat up his father because of
his cruelty to private respondent. 11
On the other hand, petitioner receives a monthly

salary of P60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances
and other benefits in hundreds of thousands of
pesos from the corporations. 16 After private
respondent confronted him about the affair,
petitioner forbade her to hold office at JBTC
Building, Mandalagan, where all the businesses of
the corporations are conducted, thereby depriving
her of access to full information about said
businesses. Until the filing of the petition a quo,
petitioner has not given private respondent an
accounting of the businesses the value of which
she had helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an
imminent danger of violence against the private
respondent and her children exists or is about to
recur, the RTC issued a TPO 18 on March 24, 2006
effective for thirty (30) days, which is quoted
hereunder:
All the emotional and psychological turmoil drove

private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted
suicide by cutting her wrist. She was found by her
son bleeding on the floor. Petitioner simply fled the
house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7)
days in which time petitioner never bothered to
visit, nor apologized or showed pity on her. Since
then, private respondent has been undergoing
therapy almost every week and is taking antidepressant medications. 12
Respondent (petitioner herein), Jesus Chua Garcia,

is hereby:
a) Ordered to remove all his personal belongings
from the conjugal dwelling or family home within 24
hours from receipt of the Temporary Restraining
Order and if he refuses, ordering that he be
removed by police officers from the conjugal
dwelling; this order is enforceable notwithstanding
that the house is under the name of 236 Realty
Holdings, Inc. (Republic Act No. 9262 states
"regardless of ownership"), this is to allow the
Petitioner (private respondent herein) to enter the
conjugal dwelling without any danger from the
Respondent. IcADSE
When
private
respondent
informed
the
management of Robinson's Bank that she intends
to file charges against the bank manager, petitioner
got angry with her for jeopardizing the manager's
job. He then packed his things and told private
respondent that he was leaving her for good. He
even told private respondent's mother, who lives
with them in the family home, that private
respondent should just accept his extramarital affair
since he is not cohabiting with his paramour and
has not sired a child with her. 13
After the Respondent leaves or is removed from the

conjugal dwelling, or anytime the Petitioner decides
to return to the conjugal dwelling to remove things,
the Petitioner shall be assisted by police officers
when re-entering the family home.
Private respondent is determined to separate from

petitioner but she is afraid that he would take her
children from her and deprive her of financial
support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not
get a single centavo. 14
The Chief of Police shall also give the Petitioner

police assistance on Sunday, 26 March 2006
because of the danger that the Respondent will
attempt to take her children from her when he
arrives from Manila and finds out about this suit.
Petitioner controls the family businesses involving

mostly the construction of deep wells. He is the
President of three corporations 326 Realty
Holdings, Inc., Negros Rotadrill Corporation, and JBros Trading Corporation of which he and
private respondent are both stockholders. In
contrast to the absolute control of petitioner over
said corporations, private respondent merely draws
a monthly salary of P20,000.00 from one
corporation only, the Negros Rotadrill Corporation.
Household expenses amounting to not less than
P200,000.00 a month are paid for by private
b) To stay away from the petitioner and her

children, mother and all her household help and
driver from a distance of 1,000 meters, and shall
not enter the gate of the subdivision where the
Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or
otherwise communicate with the Petitioner, directly
or indirectly, or through other persons, or contact
directly or indirectly her children, mother and
462
household help, nor send gifts, cards, flowers,

letters and the like. Visitation rights to the children
may be subject of a modified TPO in the future.
renewal of the TPO on the grounds that it did not

(1) comply with the three-day notice rule, and (2)
contain a notice of hearing. He further asked that
the TPO be modified by (1) removing one vehicle
used by private respondent and returning the same
to its rightful owner, the J-Bros Trading Corporation,
and (2) cancelling or reducing the amount of the
bond from P5,000,000.00 to a more manageable
level at P100,000.00.
d) To surrender all his firearms including a .9MM

caliber firearm and a Walther PPK and ordering the
Philippine National Police Firearms and Explosives
Unit and the Provincial Director of the PNP to
cancel all the Respondent's firearm licenses. He
should also be ordered to surrender any unlicensed
firearms in his possession or control.
Subsequently, on May 23, 2006, petitioner moved

22 for the modification of the TPO to allow him
visitation rights to his children.
e) To pay full financial support for the Petitioner and

the children, including rental of a house for them,
and educational and medical expenses.
On May 24, 2006, the TPO was renewed and

extended yet again, but subject only to the following
modifications prayed for by private respondent:
f) Not to dissipate the conjugal business. aCTHEA

g) To render an accounting of all advances,
benefits, bonuses and other cash he received from
all the corporations from 1 January 2006 up to 31
March 2006, which himself and as President of the
corporations and his Comptroller, must submit to
the Court not later than 2 April 2006. Thereafter, an
accounting of all these funds shall be reported to
the court by the Comptroller, copy furnished to the
Petitioner, every 15 days of the month, under pain
of Indirect Contempt of Court.
a) That respondent (petitioner herein) return the

clothes and other personal belongings of Rosalie
and her children to Judge Jesus Ramos, cocounsel for Petitioner, within 24 hours from receipt
of the Temporary Protection Order by his counsel,
otherwise be declared in Indirect Contempt of
Court;
b) Respondent shall make an accounting or list of
furniture and equipment in the conjugal house in
Pitimini St., Capitolville Subdivision, Bacolod City
within 24 hours from receipt of the Temporary
Protection Order by his counsel;
h) To ensure compliance especially with the order

granting support pendente lite, and considering the
financial resources of the Respondent and his
threat that if the Petitioner sues she will not get a
single centavo, the Respondent is ordered to put up
a BOND TO KEEP THE PEACE in the amount of
FIVE MILLION PESOS, in two sufficient sureties.
c) Ordering the Chief of the Women's Desk of the

Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight
(8) hours from receipt of the Temporary Protection
Order by his counsel, and that he cannot return
until 48 hours after the petitioners have left, so that
the petitioner Rosalie and her representatives can
remove things from the conjugal home and make
an inventory of the household furniture, equipment
and other things in the conjugal home, which shall
be submitted to the Court.
On April 24, 2006, upon motion 19 of private

respondent, the trial court issued an amended
TPO, 20 effective for thirty (30) days, which
included the following additional provisions:
i) The petitioners (private respondents herein) are
given the continued use of the Nissan Patrol and
the Starex Van which they are using in Negros
Occidental.
d) Deliver full financial support of Php200,000.00

and Php50,000.00 for rental and Php25,000.00 for
clothes of the three petitioners (sic) children within
24 hours from receipt of the Temporary Protection
Order by his counsel, otherwise be declared in
indirect contempt of Court; DaHSIT
j) The petitioners are given the continued use and

occupation of the house in Paraaque, the
continued use of the Starex van in Metro Manila,
whenever they go to Manila.
e) That respondent surrender his two firearms and

all unlicensed firearms to the Clerk of Court within
24 hours from receipt of the Temporary Protection
Order by his counsel;
k) Respondent is ordered to immediately post a

bond to keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner
provisionally fixed in the sum of One Hundred Fifty
Thousand Pesos (Php150,000.00) per month plus
rental expenses of Fifty Thousand Pesos
(Php50,000.00) per month until the matter of
support could be finally resolved. cAaDCE
f) That respondent shall pay petitioner educational

expenses of the children upon presentation of proof
of payment of such expenses. 23
Claiming that petitioner continued to deprive them
of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment
against her and their children, private respondent
filed another application 24 for the issuance of a
Two days later, or on April 26, 2006, petitioner filed

an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO 21 seeking the denial of the
463
TPO ex parte. She alleged inter alia that petitioner

contrived a replevin suit against himself by J-Bros
Trading, Inc., of which the latter was purportedly no
longer president, with the end in view of recovering
the Nissan Patrol and Starex Van used by private
respondent and the children. A writ of replevin was
served upon private respondent by a group of six or
seven policemen with long firearms that scared the
two small boys, Jessie Anthone and Joseph
Eduard. 25
he will have access to the children through the

schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .
9MM caliber firearm and a Walther PPK to the
Court;
5) Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for
rental for the period from August 6 to September 6,
2006; and support in arrears from March 2006 to
August 2006 the total amount of Php1,312,000.00;
CIaDTE
While Joseph Eduard, then three years old, was

driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy
resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their
daughter, Jo-Ann, by the arm and threatened her.
26 The incident was reported to the police, and JoAnn subsequently filed a criminal complaint against
her father for violation of R.A. 7610, also known as
the "Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act."
6) Directed to deliver educational expenses for

2006-2007 the amount of Php75,000.00 and
Php25,000.00;
7) Directed to allow the continued use of a Nissan
Patrol with Plate No. FEW 508 and a Starex van
with Plate No. FFD 991 and should the respondent
fail to deliver said vehicles, respondent is ordered
to provide the petitioner another vehicle which is
the one taken by J Bros Tading;
Aside from the replevin suit, petitioner's lawyers

initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and
illegal detention against private respondent. This
came about after private respondent, armed with a
TPO, went to said home to get her and her
children's belongings. Finding some of her things
inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for
qualified theft against Jamola. 27 CDTHSI
8) Ordered not to dissipate, encumber, alienate,

sell, lease or otherwise dispose of the conjugal
assets, or those real properties in the name of
Jesus Chua Garcia only and those in which the
conjugal partnership of gains of the Petitioner
Rosalie J. Garcia and respondent have an interest
in, especially the conjugal home located in No. 14,
Pitimini St., Capitolville Subdivision, Bacolod City,
and other properties which are conjugal assets or
those in which the conjugal partnership of gains of
Petitioner Rosalie J. Garcia and the respondent
have an interest in and listed in Annexes "I," "I-1,"
and "I-2," including properties covered by TCT Nos.
T-186325 and T-168814;
On August 23, 2006, the RTC issued a TPO, 28

effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia,
is hereby:
1) Prohibited from threatening to commit or
committing, personally or through another, acts of
violence against the offended party;
9) Ordered that the Register of Deeds of Bacolod

City and E.B. Magalona shall be served a copy of
this TEMPORARY PROTECTION ORDER and are
ordered not to allow the transfer, sale,
encumbrance or disposition of these above-cited
properties to any person, entity or corporation
without the personal presence of petitioner Rosalie
J. Garcia, who shall affix her signature in the
presence of the Register of Deeds, due to the fear
of petitioner Rosalie that her signature will be
forged in order to effect the encumbrance or sale of
these properties to defraud her or the conjugal
partnership of gains.
2)
Prohibited
from
harassing,
annoying,
telephoning,
contacting
or
otherwise
communicating in any form with the offended party,
either directly or indirectly;
3) Required to stay away, personally or through his
friends, relatives, employees or agents, from all the
Petitioners Rosalie J. Garcia and her children,
Rosalie J. Garcia's three brothers, her mother
Primitiva Jaype, cook Novelita Caranzo, driver
Romeo Hontiveros, laundrywoman Mercedita
Bornales, security guard Darwin Gayona and the
petitioner's other household helpers from a
distance of 1,000 meters, and shall not enter the
gate of the subdivision where the Petitioners are
temporarily residing, as well as from the schools of
the three children; Furthermore, that respondent
shall not contact the schools of the children directly
or indirectly in any manner including, ostensibly to
pay for their tuition or other fees directly, otherwise
In its Order 29 dated September 26, 2006, the trial

court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five
(5) days within which to show cause why the TPO
should not be renewed, extended, or modified.
Upon petitioner's manifestation, 30 however, that
he has not received a copy of private respondent's
motion to modify/renew the TPO, the trial court
directed in its Order 31 dated October 6, 2006 that
petitioner be furnished a copy of said motion.
Nonetheless, an Order 32 dated a day earlier,
464
October 5, had already been issued renewing the

TPO dated August 23, 2006. The pertinent portion
is quoted hereunder: AacDHE
THE COURT OF APPEALS COMMITTED

SERIOUS ERROR IN FAILING TO CONCLUDE
THAT R.A. 9262 IS DISCRIMINATORY, UNJUST,
AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
xxx xxx xxx

. . . it appearing further that the hearing could not
yet be finally terminated, the Temporary Protection
Order issued on August 23, 2006 is hereby
renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30)
days, after each expiration, until further orders, and
subject to such modifications as may be ordered by
the court. STHAaD
III.
THE COURT OF APPEALS COMMITTED GRAVE
MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS
CLAUSE OF THE CONSTITUTION.
IV.
After having received a copy of the foregoing Order,

petitioner no longer submitted the required
comment to private respondent's motion for
renewal of the TPO arguing that it would only be an
"exercise in futility." 33
THE COURT OF APPEALS ERRED IN NOT

FINDING THAT THE LAW DOES VIOLENCE TO
THE POLICY OF THE STATE TO PROTECT THE
FAMILY AS A BASIC SOCIAL INSTITUTION.
Proceedings before the CA

During the pendency of Civil Case No. 06-797,
petitioner filed before the Court of Appeals (CA) a
petition 34 for prohibition (CA-G.R. CEB-SP. No.
01698), with prayer for injunction and temporary
restraining
order,
challenging
(1)
the
constitutionality of R.A. 9262 for being violative of
the due process and the equal protection clauses,
and (2) the validity of the modified TPO issued in
the civil case for being "an unwanted product of an
invalid law."
V.
THE COURT OF APPEALS SERIOUSLY ERRED
IN NOT DECLARING R.A. No. 9262 AS INVALID
AND
UNCONSTITUTIONAL
BECAUSE
IT
ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS. 38
The Ruling of the Court
Before delving into the arguments propounded by
petitioner against the constitutionality of R.A. 9262,
we shall first tackle the propriety of the dismissal by
the appellate court of the petition for prohibition
(CA-G.R. CEB-SP. No. 01698) filed by petitioner.
EDIHSC
On May 26, 2006, the appellate court issued a 60day Temporary Restraining Order 35 (TRO) against
the enforcement of the TPO, the amended TPOs
and other orders pursuant thereto.
As a general rule, the question of constitutionality

must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be
raised in the trial, and if not raised in the trial court,
it will not be considered on appeal. 39 Courts will
not anticipate a question of constitutional law in
advance of the necessity of deciding it. 40
Subsequently, however, on January 24, 2007, the

appellate court dismissed 36 the petition for failure
of petitioner to raise the constitutional issue in his
pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the
same. Secondly, the challenge to the validity of
R.A. 9262 through a petition for prohibition seeking
to annul the protection orders issued by the trial
court constituted a collateral attack on said law.
In defending his failure to attack the constitutionality

of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited
authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality." 41
His motion for reconsideration of the foregoing

Decision having been denied in the Resolution 37
dated August 14, 2007, petitioner is now before us
alleging that
We disagree.
The Issues
I.
Family Courts have authority

and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family
Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise
known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear
and decide cases of domestic violence against
women and children. 42 In accordance with said
law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one
THE COURT OF APPEALS ERRED IN

DISMISSING THE PETITION ON THE THEORY
THAT THE ISSUE OF CONSTITUTIONALITY WAS
NOT RAISED AT THE EARLIEST OPPORTUNITY
AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF
THE LAW. EcHIAC
II.
465
Family Court in each of several key cities identified.

43 To achieve harmony with the first mentioned law,
Section 7 of R.A. 9262 now provides that Regional
Trial Courts designated as Family Courts shall have
original and exclusive jurisdiction over cases of
VAWC defined under the latter law, viz.:
determine the same, subject to the review of this

Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on
Violence Against Women and Their Children, lays
down a new kind of procedure requiring the
respondent to file an opposition to the petition and
not an answer. 49 Thus:
SEC. 7. Venue. The Regional Trial Court

designated as a Family Court shall have original
and exclusive jurisdiction over cases of violence
against women and their children under this law. In
the absence of such court in the place where the
offense was committed, the case shall be filed in
the Regional Trial Court where the crime or any of
its elements was committed at the option of the
complainant. (Emphasis supplied) HIAESC
SEC. 20. Opposition to petition. (a) The

respondent may file an opposition to the petition
which he himself shall verify. It must be
accompanied by the affidavits of witnesses and
shall show cause why a temporary or permanent
protection order should not be issued.
(b) Respondent shall not include in the opposition
any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be
the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)
Inspite of its designation as a family court, the RTC

of Bacolod City remains possessed of authority as
a court of general original jurisdiction to pass upon
all kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship,
naturalization, admiralty or insolvency. 44 It is
settled that RTCs have jurisdiction to resolve the
constitutionality of a statute, 45 "this authority being
embraced in the general definition of the judicial
power to determine what are the valid and binding
laws by the criterion of their conformity to the
fundamental law." 46 The Constitution vests the
power of judicial review or the power to declare the
constitutionality or validity of a law, treaty,
international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation
not only in this Court, but in all RTCs. 47 We said in
J.M. Tuason and Co., Inc. v. CA 48 that, "[p]lainly
the Constitution contemplates that the inferior
courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts
in cases where such constitutionality happens to be
in issue." Section 5, Article VIII of the 1987
Constitution reads in part as follows:
We cannot subscribe to the theory espoused by

petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from
the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined
as any claim for money or other relief which a
defending party may have against an opposing
party. 50 A cross-claim, on the other hand, is any
claim by one party against a co-party arising out of
the transaction or occurrence that is the subject
matter either of the original action or of a
counterclaim therein. 51 Finally, a third-party
complaint is a claim that a defending party may,
with leave of court, file against a person not a party
to the action for contribution, indemnity, subrogation
or any other relief, in respect of his opponent's
claim. 52 As pointed out by Justice Teresita J.
Leonardo-de Castro, the unconstitutionality of a
statute is not a cause of action that could be the
subject of a counterclaim, cross-claim or a thirdparty complaint. Therefore, it is not prohibited from
being raised in the opposition in view of the familiar
maxim expressio unius est exclusio alterius.
IHcSCA
SEC. 5. The Supreme Court shall have the

following powers:
xxx xxx xxx
Moreover, it cannot be denied that this issue affects

the resolution of the case a quo because the right
of private respondent to a protection order is
founded solely on the very statute the validity of
which is being attacked 53 by petitioner who has
sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of
R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.
2. Review, revise, reverse, modify, or affirm on

appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower
courts in:
a. All cases in which the constitutionality or validity
of any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
aADSIc
That the proceedings in Civil Case No. 06-797 are

summary in nature should not have deterred
petitioner from raising the same in his Opposition.
The question relative to the constitutionality of a
statute is one of law which does not need to be
supported by evidence. 54 Be that as it may,
Section 25 of A.M. No. 04-10-11-SC nonetheless
xxx xxx xxx

Thus, contrary to the posturing of petitioner, the
issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his
Opposition to the petition for protection order before
the RTC of Bacolod City, which had jurisdiction to
466
allows the conduct of a hearing to determine legal

issues, among others, viz.:
The mere fact that a statute is alleged to be

unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined. 57 In Younger v.
Harris, Jr., 58 the Supreme Court of the United
States declared, thus:
SEC. 25. Order for further hearing. In case the

court determines the need for further hearing, it
may issue an order containing the following:
Federal injunctions against state criminal statutes,

either in their entirety or with respect to their
separate and distinct prohibitions, are not to be
granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the
community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence
of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone
ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable
injury to the plaintiff who seeks its aid. (Citations
omitted)
(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that
have been marked and will be presented;
(d) Names of witnesses who will be ordered to
present their direct testimonies in the form of
affidavits; and
(e) Schedule of the presentation of evidence by
both parties which shall be done in one day, to the
extent possible, within the 30-day period of the
effectivity of the temporary protection order issued.
(Emphasis supplied)
The sole objective of injunctions is to preserve the

status quo until the trial court hears fully the merits
of the case. It bears stressing, however, that
protection orders are granted ex parte so as to
protect women and their children from acts of
violence. To issue an injunction against such orders
will defeat the very purpose of the law against
VAWC.
To obviate potential dangers that may arise

concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC
provides that if a temporary protection order issued
is due to expire, the trial court may extend or renew
the said order for a period of thirty (30) days each
time until final judgment is rendered. It may likewise
modify the extended or renewed temporary
protection order as may be necessary to meet the
needs of the parties. With the private respondent
given ample protection, petitioner could proceed to
litigate the constitutional issues, without necessarily
running afoul of the very purpose for the adoption
of the rules on summary procedure. DcAaSI
Notwithstanding all these procedural flaws, we shall

not shirk from our obligation to determine novel
issues, or issues of first impression, with farreaching implications. We have, time and again,
discharged our solemn duty as final arbiter of
constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment
59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to
rest. And so we shall.
In view of all the foregoing, the appellate court

correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining
order (CA-G.R. CEB-SP. No. 01698). Petitioner
may have proceeded upon an honest belief that if
he finds succor in a superior court, he could be
granted an injunctive relief. However, Section 22 (j)
of A.M. No. 04-10-11-SC expressly disallows the
filing of a petition for certiorari, mandamus or
prohibition against any interlocutory order issued by
the trial court. Hence, the 60-day TRO issued by
the appellate court in this case against the
enforcement of the TPO, the amended TPOs and
other orders pursuant thereto was improper, and it
effectively hindered the case from taking its normal
course in an expeditious and summary manner.
Intent of Congress in
enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to
prevent and criminalize spousal and child abuse,
which could very well be committed by either the
husband or the wife, gender alone is not enough
basis to deprive the husband/father of the remedies
under the law. 60 IHTaCE
A perusal of the deliberations of Congress on
Senate Bill No. 2723, 61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa
Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a
"synthesized measure" 62 an amalgamation of
two measures, namely, the "Anti-Domestic Violence
Act" and the "Anti-Abuse of Women in Intimate
Relationships Act" 63 providing protection to "all
family members, leaving no one in isolation" but at
the same time giving special attention to women as
the "usual victims" of violence and abuse, 64
nonetheless, it was eventually agreed that men be
denied protection under the same measure. We
quote pertinent portions of the deliberations:
As the rules stand, a review of the case by appeal

or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting
permanent protection shall not stay its
enforcement, 55 with more reason that a TPO,
which is valid only for thirty (30) days at a time, 56
should not be enjoined.
467
Wednesday, December 10, 2003
I think that the sponsor, based on our earlier

conversations, concurs with this position. I am sure
that the men in this Chamber who love their women
in their lives so dearly will agree with this
representation. Whether we like it or not, it is an
unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given
equal opportunities especially in the domestic
environment where the macho Filipino man would
always feel that he is stronger, more superior to the
Filipino woman.
Senator Pangilinan. I just wanted to place this on

record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to
me that if we are to include domestic violence apart
from against women as well as other members of
the household, including children or the husband,
they fear that this would weaken the efforts to
address domestic violence of which the main
victims or the bulk of the victims really are the
wives, the spouses or the female partners in a
relationship. We would like to place that on record.
How does the good Senator respond to this kind of
observation?
xxx xxx xxx

The President Pro Tempore. What does the
sponsor say?
Senator Estrada. Yes, Mr. President, there is this

group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want
to include men in this domestic violence. But plenty
of men are also being abused by women. I am
playing safe so I placed here members of the
family, prescribing penalties therefor and providing
protective measures for victims. This includes the
men, children, live-in, common-law wives, and
those related with the family. 65
Senator Estrada. Mr. President, before accepting

this, the committee came up with this bill because
the family members have been included in this
proposed measure since the other members of the
family other than women are also possible victims
of violence. While women are most likely the
intended victims, one reason incidentally why the
measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be
victimized and that children are almost always the
helpless victims of violence. I am worried that there
may not be enough protection extended to other
family members particularly children who are
excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special
needs of abused children. The same law is
inadequate. Protection orders for one are not
available in said law.
xxx xxx xxx

Wednesday, January 14, 2004
xxx xxx xxx
The President Pro Tempore. . . . SDITAC
Also, may the Chair remind the group that there
was the discussion whether to limit this to women
and not to families which was the issue of the AWIR
group. The understanding that I have is that we
would be having a broader scope rather than just
women, if I remember correctly, Madam sponsor.
I am aware that some groups are apprehensive

about granting the same protection to men, fearing
that they may use this law to justify their abusive
behavior against women. However, we should also
recognize that there are established procedures
and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and
whimsically
entertain
baseless
complaints.
cSCADE
Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator
Pangilinan during the interpellation period.
Mr. President, this measure is intended to

harmonize family relations and to protect the family
as the basic social institution. Though I recognize
the unequal power relations between men and
women in our society, I believe we have an
obligation to uphold inherent rights and dignity of
both husband and wife and their immediate family
members, particularly children.
I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in
support of the measure. Do not get me wrong.
However, I believe that there is a need to protect
women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless,
voiceless women who have not had the opportunity
to file a case against their spouses, their live-in
partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the
men, assuming they can at all be abused by the
women or their spouses, then it would not equalize
the already difficult situation for women, Mr.
President. aIcDCA
While I prefer to focus mainly on women, I was

compelled to include other family members as a
critical input arrived at after a series of
consultations/meetings with various NGOs, experts,
sports groups and other affected sectors, Mr.
President.
Senator Sotto. Mr. President.
468
The President Pro Tempore.

permission of the other senators.
Yes,
with
the
Because of the inadequate existing law on abuse of
children, this particular measure will update that. It
will enhance and hopefully prevent the abuse of
children and not only women. DEScaT
Senator Sotto. Yes, with the permission of the two

ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C.
Sotto III is recognized.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes,
we remove the aspect of the men in the bill but not
the children.
Senator Sotto. I presume that the effect of the

proposed amendment of Senator Legarda would be
removing the "men and children" in this particular
bill and focus specifically on women alone. That will
be the net effect of that proposed amendment.
Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito
Estrada, I am not sure now whether she is inclined
to accept the proposed amendment of Senator
Legarda.
Senator Legarda. I agree, Mr. President, with the

Minority Leader.
The President Pro Tempore. Effectively then, it will
be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
I am willing to wait whether she is accepting this or

not because if she is going to accept this, I will
propose an amendment to the amendment rather
than object to the amendment, Mr. President.
EcATDH
Senator Estrada. It is accepted, Mr. President.
xxx xxx xxx
It is settled that courts are not concerned with the

wisdom, justice, policy, or expediency of a statute.
67 Hence, we dare not venture into the real
motivations and wisdom of the members of
Congress in limiting the protection against violence
and abuse under R.A. 9262 to women and children
only. No proper challenge on said grounds may be
entertained in this proceeding. Congress has made
its choice and it is not our prerogative to supplant
this judgment. The choice may be perceived as
erroneous but even then, the remedy against it is to
seek its amendment or repeal by the legislative. By
the principle of separation of powers, it is the
legislative that determines the necessity, adequacy,
wisdom and expediency of any law. 68 We only
step in when there is a violation of the Constitution.
However, none was sufficiently shown in this case.
The President Pro Tempore. Is there any objection?

[Silence] There being none, the amendment, as
amended, is approved. 66
Senator Estrada. The amendment is accepted, Mr.

President.
The President Pro Tempore. Is there any objection?
xxx xxx xxx
Senator Sotto. . . . May I propose an amendment to
the amendment.
The President Pro Tempore. Before we act on the
amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
R.A. 9262 does not violate

the guaranty of equal protection
of the laws.
Equal protection simply requires that all persons or
things similarly situated should be treated alike,
both as to rights conferred and responsibilities
imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union
69 is instructive: cSICHD
Senator Sotto. Mr. President, I am inclined to

believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I
tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka
iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we
remove the children from this particular measure.
So, if I may propose an amendment
The guaranty of equal protection of the laws is not

a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional
prohibition against inequality, that every man,
woman and child should be affected alike by a
statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely
as such, but on persons according to the
circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does
The President Pro Tempore. To the amendment.

Senator Sotto. more than the women, the
children are very much abused. As a matter of fact,
it is not limited to minors. The abuse is not limited
to seven, six, 5-year-old children. I have seen 14,
15-year-old children being abused by their fathers,
even by their mothers. And it breaks my heart to
find out about these things.
469
not require that things which are different in fact be

treated in law as though they were the same. The
equal protection clause does not forbid
discrimination as to things that are different. It does
not prohibit legislation which is limited either in the
object to which it is directed or by the territory within
which it is to operate.
retain that power. And VAW is a form of men's

expression of controlling women to retain power. 71
HSaIET
The United Nations, which has long recognized
VAW as a human rights issue, passed its
Resolution 48/104 on the Declaration on
Elimination of Violence Against Women on
December 20, 1993 stating that "violence against
women is a manifestation of historically unequal
power relations between men and women, which
have led to domination over and discrimination
against women by men and to the prevention of the
full advancement of women, and that violence
against women is one of the crucial social
mechanisms by which women are forced into
subordinate positions, compared with men." 72

Constitution allows classification. Classification in
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or
practice because they agree with one another in
certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines
the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which
means that the classification should be based on
differences; that it must be germane to the purpose
each member of the class. This Court has held that
the standard is satisfied if the classification or
distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary.
(Emphasis supplied)
Then Chief Justice Reynato S. Puno traced the

historical and social context of gender-based
violence and developments in advocacies to
eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing
Rules last October 27, 2004, the pertinent portions
of which are quoted hereunder:
History reveals that most societies sanctioned the
use of violence against women. The patriarch of a
family was accorded the right to use force on
members of the family under his control. I quote the
early studies:
Measured against the foregoing jurisprudential

yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and,
as such, did not violate the equal protection clause
by favoring women over men as victims of violence
and abuse to whom the State extends its
protection. IDAaCc
Traditions subordinating women have a long history

rooted in patriarchy the institutional rule of men.
Women were seen in virtually all societies to be
naturally inferior both physically and intellectually.
In ancient Western societies, women whether
slave, concubine or wife, were under the authority
of men. In law, they were treated as property.
I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women
and men; the fact that women are more likely than
men to be victims of violence; and the widespread
gender bias and prejudice against women all make
for real differences justifying the classification under
the law. As Justice McIntyre succinctly states, "the
accommodation of differences . . . is the essence of
true equality." 70
The Roman concept of patria potestas allowed the

husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism,
Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated
structure of society.
English feudal law reinforced the tradition of male
control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying
husband and wife were one and that one was the
husband. However, in the late 1500s and through
the entire 1600s, English common law began to
limit the right of husbands to chastise their wives.
Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a
rod or stick no thicker than their thumb. TcDAHS
A. Unequal power relationship

between men and women
According to the Philippine Commission on Women
(the National Machinery for Gender Equality and
Women's Empowerment), violence against women
(VAW) is deemed to be closely linked with the
unequal power relationship between women and
men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think
men are the leaders, pursuers, providers, and take
on dominant roles in society while women are
nurturers, men's companions and supporters, and
take on subordinate roles in society. This
perception leads to men gaining more power over
women. With power comes the need to control to
In the later part of the 19th century, legal

recognition of these rights to chastise wives or
inflict corporeal punishment ceased. Even then, the
preservation of the family was given more
importance than preventing violence to women.
470
The metamorphosis of the law on violence in the

United States followed that of the English common
law. In 1871, the Supreme Court of Alabama
became the first appellate court to strike down the
common law right of a husband to beat his wife:
social and economic isolation of women, is also

common.
Many victims of domestic violence remain with their
abusers, perhaps because they perceive no
superior alternative . . . Many abused women who
find temporary refuge in shelters return to their
husbands, in large part because they have no other
source of income. . . Returning to one's abuser can
be dangerous. Recent Federal Bureau of
Investigation statistics disclose that 8.8 percent of
all homicide victims in the United States are killed
by their spouses . . . Thirty percent of female
homicide victims are killed by their male partners.
CHTcSE
The privilege, ancient though it may be, to beat

one's wife with a stick, to pull her hair, choke her,
spit in her face or kick her about the floor, or to
inflict upon her like indignities, is not now
acknowledged by our law. . . In person, the wife is
entitled to the same protection of the law that the
husband can invoke for himself.
As time marched on, the women's advocacy
movement
became
more
organized. The
temperance leagues initiated it. These leagues had
a simple focus. They considered the evils of
alcoholism as the root cause of wife abuse. Hence,
they demonstrated and picketed saloons, bars and
their husbands' other watering holes. Soon,
however, their crusade was joined by suffragette
movements, expanding the liberation movement's
agenda. They fought for women's right to vote, to
own property, and more. Since then, the feminist
movement was on the roll.
Finally in 1994, the United States Congress

enacted the Violence Against Women Act.
In the International front, the women's struggle for
equality was no less successful. The United States
Charter and the Universal Declaration of Human
Rights affirmed the equality of all human beings. In
1979, the UN General Assembly adopted the
landmark Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW).
In 1993, the UN General Assembly also adopted
the Declaration on the Elimination of Violence
Against Women. World conferences on the role and
rights of women have been regularly held in Mexico
City, Copenhagen, Nairobi and Beijing. The UN
itself established a Commission on the Status of
Women. TEaADS
The feminist movement exposed the private

invisibility of the domestic violence to the public
gaze. They succeeded in transforming the issue
into an important public concern. No less than the
United States Supreme Court, in 1992 case
Planned Parenthood v. Casey, noted:
In an average 12-month period in this country,
approximately two million women are the victims of
severe assaults by their male partners. In a 1985
survey, women reported that nearly one of every
eight husbands had assaulted their wives during
the past year. The [American Medical Association]
views these figures as "marked underestimates,"
because the nature of these incidents discourages
women from reporting them, and because surveys
typically exclude the very poor, those who do not
speak English well, and women who are homeless
or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on
family violence agree that the true incidence of
partner violence is probably double the above
estimates; or four million severely assaulted women
per year." cIDHSC
The Philippines has been in cadence with the half

and full steps of all these women's
movements. No less than Section 14, Article II of
our 1987 Constitution mandates the State to
recognize the role of women in nation building and
to ensure the fundamental equality before the law
of women and men. Our Senate has ratified the
CEDAW as well as the Convention on the Rights of
the Child and its two protocols. To cap it all,
Congress, on March 8, 2004, enacted Rep. Act No.
9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties
therefor and for other Purposes." (Citations
omitted)
B. Women are the "usual" and "most likely"
victims of violence.
Studies on prevalence suggest that from one-fifth to

one-third of all women will be physically assaulted
by a partner or ex-partner during their lifetime. . .
Thus on an average day in the United States,
nearly 11,000 women are severely assaulted by
their male partners. Many of these incidents involve
sexual assault. . . In families where wife beating
takes place, moreover, child abuse is often present
as well.
At the time of the presentation of Senate Bill No.

2723, official statistics on violence against women
and children show that
. . . physical injuries had the highest number of
cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of
2003, there were 2,381 reported cases out of 4,354
cases which represent 54.31%. . . . (T)he total
number of women in especially difficult
circumstances served by the Department of Social
Welfare and Development (DSWD) for the year
Other studies fill in the rest of this troubling picture.

Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced
471
2002, there are 1,417 physically abused/maltreated

cases out of the total of 5,608 cases. . . . (T)here
are 1,091 DSWD cases out of a total number of
3,471 cases for the first semester of 2003. Female
violence comprised more than 90% of all forms of
abuse and violence and more than 90% of these
reported cases were committed by the women's
intimate partners such as their husbands and live-in
partners. 73
580
536
382
358
445
485
745
625
Lasciviousness
Recently, the Philippine Commission on Women

presented comparative statistics on violence
against women across an eight-year period from
2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW
categories since its implementation in 2004, 74
thus: ADECcI
Physical
3,553
2,335
1,892
1,505
1,307
1,498
2,018
1,588
Injuries
Table 1. Annual Comparative Statistics on Violence

Against Women, 2004-2011*
Reported
2004
2005
2006
2007
2008
2009
2010
2011
Cases
Sexual
53
37
38
46
18
54
83
63
Harassment
Rape
997
927
659
837
811
770
1,042
832
Incestuous Rape
38
46
26
22
28
27
19
23
Attempted Rape
194
148
185
147
204
167
268
201
Acts of
RA 9262
218
924
1,269
2,387
3,599
5,285
9,974
9,021
Threats
319
223
199
182
472
220
208
374
213
Seduction
62
19
29
30
19
19
25
15
Concubinage
121
102
93
109
109
99
158
128
RA 9208
17
11
16
24
34
152
190
62
Abduction/
29
16
34
23
28
18
25
22
Kidnapping
Total
6,271
5,374
4,881
5,729
6,905
9,485
15,104
12,948
=====
======
======
======
======
======
======
======
*2011 report covers only from January to August
Source: Philippine National Police Women and

Children Protection Center (WCPC)
On the other hand, no reliable estimates may be
obtained on domestic abuse and violence against
men in the Philippines because incidents thereof
are relatively low and, perhaps, because many men
will not even attempt to report the situation. In the
United Kingdom, 32% of women who had ever
experienced domestic violence did so four or five
(or more) times, compared with 11% of the smaller
number of men who had ever experienced
domestic violence; and women constituted 89% of
all those who had experienced 4 or more incidents
of domestic violence. 75 Statistics in Canada show
that spousal violence by a woman against a man is
less likely to cause injury than the other way around
(18 percent versus 44 percent). Men, who
experience violence from their spouses are much
less likely to live in fear of violence at the hands of
their spouses, and much less likely to experience
sexual assault. In fact, many cases of physical
violence by a woman against a spouse are in selfdefense or the result of many years of physical or
emotional abuse. 76 CADSHI
Unjust Vexation
90
50
59
59
83
703
183
155
While there are, indeed, relatively few cases of

violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262
invalid.
In a 1960 case involving the violation of a city
ordinance requiring drivers of animal-drawn
vehicles to pick up, gather and deposit in
receptacles the manure emitted or discharged by
their vehicle-drawing animals in any public
highways, streets, plazas, parks or alleys, said
ordinance was challenged as violative of the
guaranty of equal protection of laws as its
application is limited to owners and drivers of
473
vehicle-drawing animals and not to those animals,

although not utilized, but similarly pass through the
same streets.
The enactment of R.A. 9262 aims to address the

discrimination brought about by biases and
prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of
Discrimination against Women, addressing or
correcting discrimination through specific measures
focused on women does not discriminate against
men. 82 Petitioner's contention, 83 therefore, that
R.A. 9262 is discriminatory and that it is an "antimale," "husband-bashing," and "hate-men" law
deserves scant consideration. As a State Party to
the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and
cultural patterns of conduct of men and women,
with a view to achieving the elimination of
prejudices and customary and all other practices
which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped
roles for men and women." 84 Justice Puno
correctly pointed out that "(t)he paradigm shift
changing the character of domestic violence from a
private affair to a public offense will require the
development of a distinct mindset on the part of the
police, the prosecution and the judges." 85
The ordinance was upheld as a valid classification

for the reason that, while there may be non-vehicledrawing animals that also traverse the city roads,
"but their number must be negligible and their
appearance therein merely occasional, compared
to the rig-drawing ones, as not to constitute a
menace to the health of the community." 77 The
mere fact that the legislative classification may
result in actual inequality is not violative of the right
to equal protection, for every classification of
persons or things for regulation by law produces
inequality in some degree, but the law is not
thereby rendered invalid. 78 TcSHaD
C. Gender bias and prejudices
From the initial report to the police through
prosecution, trial, and sentencing, crimes against
women are often treated differently and less
seriously than other crimes. This was argued by
then United States Senator Joseph R. Biden, Jr.,
now Vice President, chief sponsor of the Violence
Against Women Act (VAWA), in defending the civil
rights remedy as a valid exercise of the U.S.
Congress' authority under the Commerce and
Equal Protection Clauses. He stressed that the
widespread gender bias in the U.S. has
institutionalized historic prejudices against victims
of rape or domestic violence, subjecting them to
"double victimization" first at the hands of the
offender and then of the legal system. 79
II. The classification is germane to the purpose of

the law.
The distinction between men and women is
germane to the purpose of R.A. 9262, which is to
address violence committed against women and
children, spelled out in its Declaration of Policy, as
follows:
SEC. 2. Declaration of Policy. It is hereby
declared that the State values the dignity of women
and children and guarantees full respect for human
rights. The State also recognizes the need to
protect the family and its members particularly
women and children, from violence and threats to
their personal safety and security.
Our own Senator Loi Estrada lamented in her

Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police
treat it as a private matter and advise the parties to
settle the conflict themselves. Once the
complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it
might later be withdrawn. This lack of response or
reluctance to be involved by the police and
prosecution reinforces the escalating, recurring and
often serious nature of domestic violence." 80
Towards this end, the State shall exert efforts to

address violence committed against women and
children in keeping with the fundamental freedoms
guaranteed under the Constitution and the
provisions of the Universal Declaration of Human
Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women,
Convention on the Rights of the Child and other
international human rights instruments of which the
Philippines is a party. DHECac
Sadly, our own courts, as well, have exhibited

prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we
fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and
irreverent language in reference to the complainant
in a petition for TPO and PPO under R.A. 9262,
calling her as "only a live-in partner" and presenting
her as an "opportunist" and a "mistress" in an
"illegitimate relationship." Judge Amila even called
her a "prostitute," and accused her of being
motivated by "insatiable greed" and of absconding
with the contested property. 81 Such remarks
betrayed Judge Amila's prejudices and lack of
gender sensitivity.
In 1979, the U.N. General Assembly adopted the

CEDAW, which the Philippines ratified on August 5,
1981. Subsequently, the Optional Protocol to the
CEDAW was also ratified by the Philippines on
October 6, 2003. 86 This Convention mandates
that State parties shall accord to women equality
with men before the law 87 and shall take all
appropriate measures to eliminate discrimination
against women in all matters relating to marriage
and family relations on the basis of equality of men
and women. 88 The Philippines likewise ratified the
Convention on the Rights of the Child and its two
474
protocols. 89 It is, thus, bound by said Conventions

and their respective protocols.
deprivation of the right to custody and/or visitation

of common children. CDEaAI
III. The classification is not limited to existing

conditions only, and apply equally to all members
D. "Economic abuse" refers to acts that make or

attempt to make a woman financially dependent
which includes, but is not limited to the following:
Moreover, the application of R.A. 9262 is not limited

to the existing conditions when it was promulgated,
but to future conditions as well, for as long as the
safety and security of women and their children are
threatened by violence and abuse.
1. withdrawal of financial support or preventing the

victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73
of the Family Code;
R.A. 9262 applies equally to all women and

children who suffer violence and abuse. Section 3
thereof defines VAWC as:
2. deprivation or threat of deprivation of financial

resources and the right to the use and enjoyment of
the conjugal, community or property owned in
common;
. . . any act or a series of acts committed by any

person against a woman who is his wife, former
wife, or against a woman with whom the person
has or had a sexual or dating relationship, or with
whom he has a common child, or against her child
whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result
in physical, sexual, psychological harm or suffering,
or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited
to, the following acts: SACHcD
3. destroying household property;

4. controlling the victims' own money or properties
or solely controlling the conjugal money or
properties.
It should be stressed that the acts enumerated in
the aforequoted provision are attributable to
research that has exposed the dimensions and
dynamics of battery. The acts described here are
also found in the U.N. Declaration on the
Elimination of Violence Against Women. 90 Hence,
the argument advanced by petitioner that the
definition of what constitutes abuse removes the
difference between violent action and simple
marital tiffs is tenuous.
A. "Physical Violence" refers to acts that include

bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual
in nature, committed against a woman or her child.
It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as a sex object,
making demeaning and sexually suggestive
remarks, physically attacking the sexual parts of the
victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the
woman or her child to do indecent acts and/or
make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep
together in the same room with the abuser;
There is nothing in the definition of VAWC that is

vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily
understood and provide adequate contrast between
the innocent and the prohibited acts. They are
worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct
is prohibited, and need not guess at its meaning
nor differ in its application. 91 Yet, petitioner insists
92 that phrases like "depriving or threatening to
deprive the woman or her child of a legal right,"
"solely controlling the conjugal or common money
or properties," "marital infidelity," and "causing
mental or emotional anguish" are so vague that
they make every quarrel a case of spousal abuse.
However, we have stressed that the "vagueness"
doctrine merely requires a reasonable degree of
certainty for the statute to be upheld not
absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely
because it might have been more explicit in its
wordings or detailed in its provisions. 93
b) acts causing or attempting to cause the victim to

engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical or
other harm or coercion;
c) Prostituting the woman or child.
C."Psychological violence" refers to acts or
omissions causing or likely to cause mental or
emotional suffering of the victim such as but not
limited to intimidation, harassment, stalking,
damage to property, public ridicule or humiliation,
repeated verbal abuse and mental infidelity. It
includes causing or allowing the victim to witness
the physical, sexual or psychological abuse of a
member of the family to which the victim belongs,
or to witness pornography in any form or to witness
abusive injury to pets or to unlawful or unwanted
There is likewise no merit to the contention that

R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be
475
committed "against a woman with whom the person

has or had a sexual or dating relationship." Clearly,
the use of the gender-neutral word "person" who
has or had a sexual or dating relationship with the
woman encompasses even lesbian relationships.
Moreover, while the law provides that the offender
be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship,
it does not preclude the application of the principle
of conspiracy under the Revised Penal Code
(RPC). Thus, in the case of Go-Tan v. Spouses Tan,
94 the parents-in-law of Sharica Mari L. Go-Tan,
the victim, were held to be proper respondents in
the case filed by the latter upon the allegation that
they and their son (Go-Tan's husband) had
community of design and purpose in tormenting her
by giving her insufficient financial support;
harassing and pressuring her to be ejected from the
family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically.
TCIEcH
hearing when the life, limb or property of the victim

is in jeopardy and there is reasonable ground to
believe that the order is necessary to protect the
victim from the immediate and imminent danger of
VAWC or to prevent such violence, which is about
to recur. 100
There need not be any fear that the judge may
have no rational basis to issue an ex parte order.
The victim is required not only to verify the
allegations in the petition, but also to attach her
witnesses' affidavits to the petition. 101
The grant of a TPO ex parte cannot, therefore, be
challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is
issued without notice and hearing because the time
in which the hearing will take could be enough to
enable the defendant to abscond or dispose of his
property, 102 in the same way, the victim of VAWC
may already have suffered harrowing experiences
in the hands of her tormentor, and possibly even
death, if notice and hearing were required before
such acts could be prevented. It is a constitutional
commonplace that the ordinary requirements of
procedural due process must yield to the
necessities of protecting vital public interests, 103
among which is protection of women and children
from violence and threats to their personal safety
and security.
R.A. 9262 is not violative of the

due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262,
specifically in the issuance of POs, of all
protections afforded by the due process clause of
the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no
opportunity to respond, the husband is stripped of
family, property, guns, money, children, job, future
employment and reputation, all in a matter of
seconds, without an inkling of what happened." 95
It should be pointed out that when the TPO is

issued ex parte, the court shall likewise order that
notice be immediately given to the respondent
directing him to file an opposition within five (5)
days from service. Moreover, the court shall order
that notice, copies of the petition and TPO be
served immediately on the respondent by the court
sheriffs. The TPOs are initially effective for thirty
(30) days from service on the respondent. 104
A protection order is an order issued to prevent

further acts of violence against women and their
children, their family or household members, and to
grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm,
minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control
of their life. 96
Where no TPO is issued ex parte, the court will

nonetheless order the immediate issuance and
service of the notice upon the respondent requiring
him to file an opposition to the petition within five
(5) days from service. The date of the preliminary
conference and hearing on the merits shall likewise
be indicated on the notice. 105
"The scope of reliefs in protection orders is

broadened to ensure that the victim or offended
party is afforded all the remedies necessary to
curtail access by a perpetrator to the victim. This
serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated
family or household member safety in the family
residence, and to prevent the perpetrator from
committing acts that jeopardize the employment
and support of the victim. It also enables the court
to award temporary custody of minor children to
protect the children from violence, to prevent their
abduction by the perpetrator and to ensure their
financial support." 97
The opposition to the petition which the respondent

himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not
be issued. 106 HSCcTD
It is clear from the foregoing rules that the
respondent of a petition for protection order should
be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus,
the fear of petitioner of being "stripped of family,
property, guns, money, children, job, future
employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a
mere product of an overactive imagination. The
essence of due process is to be found in the
The rules require that petitions for protection order

be in writing, signed and verified by the petitioner
98 thereby undertaking full responsibility, criminal
or civil, for every allegation therein. Since "time is of
the essence in cases of VAWC if further violence is
to be prevented," 99 the court is authorized to issue
ex parte a TPO after raffle but before notice and
476
reasonable opportunity to be heard and submit any

evidence one may have in support of one's
defense. "To be heard" does not only mean verbal
arguments in court; one may be heard also through
pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded,
there is no denial of procedural due process. 107
appropriate it for herself, as petitioner seems to

suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-themill arguments, instead of encouraging mediation
and counseling, the law has done violence to the
avowed policy of the State to "protect and
strengthen the family as a basic autonomous social
institution." 109
It should be recalled that petitioner filed on April 26,

2006 an Opposition to the Urgent Ex-Parte Motion
for Renewal of the TPO that was granted only two
days earlier on April 24, 2006. Likewise, on May 23,
2006, petitioner filed a motion for the modification
of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order dated
September 26, 2006, gave him five days (5) within
which to show cause why the TPO should not be
renewed or extended. Yet, he chose not to file the
required comment arguing that it would just be an
"exercise in futility," conveniently forgetting that the
renewal of the questioned TPO was only for a
limited period (30 days) each time, and that he
could prevent the continued renewal of said order if
he can show sufficient cause therefor. Having failed
to do so, petitioner may not now be heard to
complain that he was denied due process of law.
Under Section 23 (c) of A.M. No. 04-10-11-SC, the

court shall not refer the case or any issue thereof to
a mediator. The reason behind this provision is
well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family
Violence as follows: 110
This section prohibits a court from ordering or
referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by
which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the
issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties
mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of
issues in a proceeding for an order of protection is
problematic because the petitioner is frequently
unable to participate equally with the person
against whom the protection order has been
sought. (Emphasis supplied)
Petitioner next laments that the removal and

exclusion of the respondent in the VAWC case from
the residence of the victim, regardless of ownership
of the residence, is virtually a "blank check" issued
to the wife to claim any property as her conjugal
home. 108
The wording of the pertinent rule, however, does
not by any stretch of the imagination suggest that
this is so. It states: aIETCA
There is no undue delegation of

judicial power to barangay officials.
Petitioner contends that protection orders involve
the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court
and such other lower courts as may be established
by law" and, thus, protests the delegation of power
to barangay officials to issue protection orders. 111
The pertinent provision reads, as follows: HCDAac
SEC. 11. Reliefs available to the offended party.

The protection order shall include any, some or all
of the following reliefs:
xxx xxx xxx
(c) Removing and excluding the respondent from
the residence of the offended party, regardless of
ownership of the residence, either temporarily for
the purpose of protecting the offended party, or
permanently where no property rights are violated.
If the respondent must remove personal effects
from the residence, the court shall direct a law
enforcement agent to accompany the respondent to
the residence, remain there until the respondent
has gathered his things and escort him from the
residence;
SEC. 14. Barangay Protection Orders (BPOs); Who

May Issue and How. Barangay Protection
Orders (BPOs) refer to the protection order issued
by the Punong Barangay ordering the perpetrator to
desist from committing acts under Section 5 (a) and
(b) of this Act. A Punong Barangay who receives
applications for a BPO shall issue the protection
order to the applicant on the date of filing after ex
parte determination of the basis of the application.
If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted
upon by any available Barangay Kagawad. If the
BPO is issued by a Barangay Kagawad, the order
must be accompanied by an attestation by the
Barangay Kagawad that the Punong Barangay was
unavailable at the time of the issuance of the BPO.
BPOs shall be effective for fifteen (15) days.
Immediately after the issuance of an ex parte BPO,
the Punong Barangay or Barangay Kagawad shall
personally serve a copy of the same on the
xxx xxx xxx

Indubitably, petitioner may be removed and
excluded from private respondent's residence,
regardless of ownership, only temporarily for the
purpose of protecting the latter. Such removal and
exclusion may be permanent only where no
property rights are violated. How then can the
private respondent just claim any property and
477
respondent, or direct any barangay official to effect

its personal service.
Before a statute or its provisions duly challenged

are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful
or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of
the Court. In other words, the grounds for nullity
must be beyond reasonable doubt. 116 In the
instant case, however, no concrete evidence and
convincing arguments were presented by petitioner
to warrant a declaration of the unconstitutionality of
R.A. 9262, which is an act of Congress and signed
into law by the highest officer of the co-equal
executive department. As we said in Estrada v.
Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and
edges of its plenary powers, and passed laws with
full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare
of the majority.
The parties may be accompanied by a non-lawyer

advocate in any proceeding before the Punong
Barangay.
instrumentality of the Government. 112 On the
other hand, executive power "is generally defined
as the power to enforce and administer the laws. It
is the power of carrying the laws into practical
operation and enforcing their due observance." 113
As clearly delimited by the aforequoted provision,
the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad,
merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child;
and (2) threatening to cause the woman or her child
physical harm. Such function of the Punong
Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government
Code to "enforce all laws and ordinances," and to
"maintain public order in the barangay." 114
We reiterate here Justice Puno's observation that

"the history of the women's movement against
domestic violence shows that one of its most
difficult struggles was the fight against the violence
of law itself. If we keep that in mind, law will not
again be a hindrance to the struggle of women for
equality but will be its fulfillment." 118 Accordingly,
the constitutionality of R.A. 9262 is, as it should be,
sustained.
WHEREFORE, the instant petition for review on
certiorari is hereby DENIED for lack of merit.
We have held that "(t)he mere fact that an officer is

required by law to inquire into the existence of
certain facts and to apply the law thereto in order to
determine what his official conduct shall be and the
fact that these acts may affect private rights do not
constitute an exercise of judicial powers." 115
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Bersamin, Del
Castillo, Villarama, Jr., Perez, Mendoza and Reyes,
JJ., concur.
In the same manner as the public prosecutor

ascertains through a preliminary inquiry or
proceeding "whether there is reasonable ground to
believe that an offense has been committed and
the accused is probably guilty thereof," the Punong
Barangay must determine reasonable ground to
believe that an imminent danger of violence against
the woman and her children exists or is about to
recur that would necessitate the issuance of a
BPO. The preliminary investigation conducted by
the prosecutor is, concededly, an executive, not a
judicial, function. The same holds true with the
issuance of a BPO. DHEcCT
Leonardo-de Castro, Abad and Leonen, JJ., see

separate concurring opinion.
Brion, J., see: concurring opinion.
Peralta, J., is on official leave.
||| (Garcia v. Drilon, G.R. No. 179267, [June 25,
2013])
10. AQUINO VS. PPA 696 SCRA 666 (2013)
SECOND DIVISION
We need not even belabor the issue raised by

petitioner that since barangay officials and other
law enforcement agencies are required to extend
assistance to victims of violence and abuse, it
would be very unlikely that they would remain
objective and impartial, and that the chances of
acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement
agencies is consistent with their duty to enforce the
law and to maintain peace and order.
[G.R. No. 181973. April 17, 2013.]

AMELIA AQUINO, RODOLFO TAGGUEG, JR., *
ADELAIDA HERNANDEZ
and
LEOPOLDO
BISCOCHO, JR., petitioners, vs. PHILIPPINE
PORTS AUTHORITY, respondent.
DECISION
PEREZ, J p:
Conclusion
478
Before this Court is a Petition for Review on

Certiorari 1 under Rule 45 of the Rules of Court
praying that the Decision 2 dated 29 August 2007
of the Court of Appeals (CA) in CA-G.R. SP No.
91743 be set aside. In the assailed decision, the
CA reversed the 10 August 2005 Decision 3 and 15
September 2005 Order 4 of the Regional Trial
Court (RTC), Branch 55, Manila.
The COA called PPA's attention to Memorandum

No. 90-679 dated 30 October 1990 which provides
that "LOImp No. 97 series of 1979 implementing
Compensation and Position Classification for
Infrastructure/Utilities for GOCC is replaced by
Section 16 of R.A. No. 6758." 10
In view of the disallowances, the affected PPA
officials, represented by the OGCC, filed a petition
before the Supreme Court claiming their entitlement
to the RATA provided for under LOI No. 97. The
case was docketed as G.R. No. 100773 entitled
"Philippine Ports Authority v. Commission on Audit,
et al." 11
Background of the case

The Congress of the Philippines passed on 21
August 1989 5 Republic Act (R.A.) No. 6758
entitled
"An Act
Prescribing
a
Revised
Compensation and Position Classification in the
Government and for Other Purposes" otherwise
known as The Salary Standardization Law.
In a decision dated 16 October 1992, the Supreme

Court ruled in favor of the COA and declared that
an official to be entitled to the continued RATA
benefit under LOI No. 97 must be an incumbent as
of 1 July 1989 and more importantly, was receiving
the RATA provided by LOI No. 97 as of 1 July 1989.
Before the law, or on 31 August 1979, then

President Ferdinand E. Marcos issued Letter of
Implementation No. 97 (LOI No. 97), authorizing
the implementation of standard compensation
position
classification
plans
for
the
infrastructure/utilities group of government-owned
or controlled corporations. On the basis thereof, the
Philippine
Ports
Authority
(PPA)
issued
Memorandum Circular No. 57-87 dated 1 October
1987 which granted to its officials holding
managerial
and
supervisory
positions
representation and transportation allowance
(RATA) in an amount equivalent to 40% of their
basic salary. 6
As a result of the aforesaid ruling, there are at

present two categories of managers and
supervisors at the PPA. The first category is
composed of PPA officials who were occupying
their positions and actually receiving the 40% RATA
under LOI No. 97 as of 1 July 1989 and who
continue to receive such benefit. The second
category consists of officials who were not
incumbents as of 1 July 1989 or were appointed or
promoted to their positions only after 1 July 1989.
The second category officials therefore receive a
lesser RATA under the General Appropriations Act
although they hold the same rank, title and may
have the same responsibilities as their counterparts
in the first category.
Thereafter, on 23 October 1989, PPA issued

Memorandum Circular No. 36-89, which extended
the RATA entitlement to its Section Chiefs or heads
of equivalent units, Terminal Supervisors and senior
personnel at the rate of 20% of their basic pay. 7
And, on 14 November 1990, PPA issued
Memorandum Circular No. 46-90, which adjusted
effective 1 January 1990, the RATA authorized
under Memorandum Circular No. 36-89, from 20%
to 40% based on the standardized salary rate. 8
The Case
On 26 July 2000, petitioners, who are second
category PPA officials filed a Petition for Mandamus
and Prohibition before the RTC of Manila, raffled to
Branch 55. They claim anew that they are entitled
to RATA in the amount not exceeding 40% of their
respective basic salaries. They anchor their petition
on recent developments allegedly brought about by
the decision of the Supreme Court in the case of
De Jesus v. Commission on Audit, et al. 12 which
was decided almost six (6) years after the Court's
decision in PPA v. COA, et al.13 They further claim
that certain issuances were released by the COA
and the Department of Budget and Management
(DBM), which in effect, extended the cut-off date in
the grant of the 40% RATA, thus entitling them to
these benefits. AaDSEC
The continued validity of the RATA grant to the

maximum ceiling of 40% of basic pay finds support
from the Opinions 9 rendered by the Office of the
Government
Corporate
Counsel
(OGCC),
Department of Justice. DECSIT
Finding justification in the increase in salary due
these officials brought about by the standardization
mandated by R.A. No. 6758, PPA paid RATA
differentials to its officials.
The Commission on Audit (COA) Corporate Auditor,
however, in a letter dated 14 November 1990,
addressed to PPA, disallowed in post-audit the
payment of the RATA differentials. It likewise
disallowed in audit the grant of RATA to PPA
Section Chiefs or heads of equivalent units,
Terminal Supervisors and senior personnel
occupying positions with salary grades of 17 and
above who were appointed after the effectivity of
R.A. No. 6758.
PPA filed a motion to dismiss on the ground of res

judicata under paragraph (f), Rule 16 of the Rules
of Court. It argued that a case involving the same
parties, subject matter and cause of action had
already been resolved by this Court in PPA v. COA,
et al. 14
Finding merit in PPA's motion, the RTC ordered the
dismissal of the petition in an Order dated 8
479
November 2000. The dispositive portion of the

Order reads:
same; thus, entitling petitioners who are qualified to

avail of the extraordinary remedy of mandamus."
21
WHEREFORE, premises considered, the Motion to

Dismiss is hereby GRANTED, and the Petition in
this case is hereby DISMISSED on the ground that
it is already barred by the principle of res judicata.
15
PPA raised the matter before the CA which

docketed the case as CA G.R. SP No. 91743. In a
decision dated 29 August 2007, the appellate court
reversed the decision of the trial court and held:
Petitioners elevated the case before the Supreme

Court by way of appeal under Rule 45 of the Rules
of Court. The Supreme Court, however, in a
Resolution 16 dated 28 March 2001 referred the
case to the CA for appropriate action. The case
was docketed as CA G.R. SP No. 64702.
WHEREFORE, premises considered, the August

10, 2005 Decision and the September 15, 2005
Order of the Regional Trial Court, Branch 55,
National Capital Judicial Region, Manila, are
hereby REVERSED. Accordingly, the Amended
Petition in Civil Case No. 00-98161 is hereby
DISMISSED. No costs. 22
On 31 July 2002, a decision was rendered by the

CA on the referred case. It declared that the
principle of res judicata is not applicable to the
case. The appellate court explained that the
existence of DBM and COA issuances which entitle
herein petitioners to the grant of RATA is the
pertinent fact and condition which is material to the
instant case taking it away from the domain of the
principle of res judicata. 17 When new facts or
conditions intervene before the second suit,
furnishing a new basis for the claims and defenses
of the party, the issues are no longer the same;
hence, the former judgment cannot be pleaded as a
bar to the subsequent action. 18 At the time
judgment was rendered in the previous case, the
fact and condition now in existence, which consist
of the DBM and COA issuances, has not yet come
about. In view of the issuances, petitioners are
faced with an entirely separate facts and
conditions, which make the principle of res judicata
inapplicable. 19 The decision ordered the remand
of the case to the court of origin for continuation of
proceedings.
Petitioners filed a motion for reconsideration but

this was denied by the appellate court in a
resolution dated 29 February 2008.
Hence, this petition assailing the 29 August 2007
decision of the CA and its 29 February 2008
resolution.
Issues
Petitioners raise the following issues for resolution:
I.WHETHER OR NOT THE PRINCIPLE OF RES
JUDICATA IS APPLICABLE IN THE INSTANT
CASE TAKING INTO CONSIDERATION THE
FINAL DECISION OF THE COURT OF APPEALS
IN CA. G.R. SP NO. 64702.
II.WHETHER OR NOT PPA IN DENYING THE
CLAIM OF PETITIONERS FOR 40% RATA HAS
COMMITTED
A
VIOLATION
OF
THEIR
CONSTITUTIONAL
RIGHT
TO
EQUAL
PROTECTION; AND
After due proceedings in the trial court, a decision

in favor of petitioners was rendered on 10 August
2005. The dispositive portion of the decision
commanded respondent PPA to pay the claim for
RATA equivalent to 40% of petitioners' standardized
basic salaries authorized under LOI No. 97,
commencing from their respective dates of
appointments or on 23 October 2001 when the
case of Irene V. Cruz, et al. v. COA 20 was
promulgated by the Supreme Court, whichever is
later. aIcDCA
III.WHETHER OR NOT PETITIONERS ARE

ENTITLED TO 40% RATA AND SHOULD NOT BE
MADE TO REFUND THE RATA THEY HAD
ALREADY RECEIVED. cCHITA
Petitioners' Argument
Petitioners submit that the decision of the CA in CA
G.R. SP No. 64702 adequately cited jurisprudence
and authorities on the matter involving the issue of
res judicata. Such decision of the appellate court
was not appealed by the PPA and as such, has
attained finality. In view thereof, petitioners allege
that the case of PPA v. COA, et al.23 can no longer
serve as a ground for the dismissal of the instant
case since such would result in "the sacrifice of
justice to technicality." 24
The trial court ratiocinated that "when the Supreme

Court En Banc ruled on 23 October 2001 in the
IRENE CRUZ case that 'The date of hiring of an
employee cannot be considered as a substantial
distinction,' the so-called first (sic) category
managers and supervisors whose appointments
thereto were made after 01 July 1989 and who
were effectively deprived of the 40% RATA on
account of the Supreme Court's ruling in the PPA v.
COA, et al. case have established a clear legal
right to claim the 40% RATA under LOI No. 97
commencing on 23 October 2001, and the
correlative legal duty of respondent PPA to pay the
Petitioners further submit that the CA in its decision

in CA G.R. SP No. 91743 may have overlooked the
significance of the Supreme Court's ruling in the
case of De Jesus v. Commission on Audit, et al. 25
which extended the prescribed date of effectivity of
R.A. No. 6758 from 1 July 1989 to 31 October
1989, viz.:
480
In the present case under scrutiny, it is decisively

clear that DBM-CCC No. 10, which completely
disallows payment of allowances and other
additional compensation to government officials
and employees starting November 1, 1989 is not a
mere interpretative or internal regulation. It is
something more than that. And why not, when it
tends to deprive government workers of their
allowances and additional compensation sorely
needed to keep body and soul together. . . .
Administrator, NEA, dated October 30, 1993 that

the cut-off date of July 1, 1989 prescribed in R.A.
6758/CCC #10 was extended to October 31, 1989
primarily on consideration that said R.A. 6758/CCC
#10 were formally issued/promulgated only in the
later part of October 1989. . . .
Petitioners claim that the DBM, which is the agency

tasked to implement R.A. No. 6758, amplified this
extension in its 4 May 1992 letter to the
Administrator of the National Electrification
Administration (NEA). The pertinent portion of the
letter reads:
Petitioners likewise raised as their cause of action

the violation of their constitutional right to equal
protection of the law. They contend that this alone
would constitute sufficient justification for the filing
anew of the instant petition. Contrary to the
statement in the assailed decision of the CA to the
effect that they failed to plead or raise such issue in
the trial court, they submit that a perusal of their
amended petition would show that paragraphs 30,
31, 32 and 33 thereof were devoted to that issue.
DBM has authorized certain GOCCs/GFIs to grant

also to officials and employees hired between the
period of July 1, 1989 and October 31, 1989 the
allowances and fringe benefit enumerated in said
Item 5.5 of CCC No. 10.
Finally, as regards the matter of refund of the RATA

being demanded by COA, petitioners submit that
they should not be required to make such refund
since these were received in good faith and on the
honest belief that they were entitled to it.
At this juncture it is pertinent to point out that

although the effectivity date prescribed in R.A. No.
6758 is July 1, 1989, said Act and its implementing
circulars were formally promulgated only in the later
part of October 1989. The preparation of all
required documents, more particularly the Index of
Occupational Services (IOS) and the Position
Allocation List (PAL) for the GOCCs/GFIs was
completed at much later date. Thus, within the
period of transition from July 1, 1989 up to the date
of completion of all the required documents for the
actual implementation by each GOCC/GFI of said
salary standardization, flexibility in the interpretation
of rules and regulations prescribed under R.A. 6758
was necessary. DBM felt it illogical to assume that
during the period R.A. 6758 was not yet issued all
GOCCs/GFIs were already aware of what
implementing guidelines it (DBM) will prescribe and
have their personnel actions accordingly adjusted
to said guidelines. Likewise, it is counter-productive
if at that time, we advised all GOCCs/GFIs to
suspend their personnel actions as same could be
disruptive to their operations and delay the
completion of important projects. cSDIHT
PPA's Argument
Respondent PPA maintains that PPA employees
who were appointed to managerial and supervisory
positions after the effectivity of RA No. 6758 are not
entitled to the 40% RATA benefit provided under
LOI No. 97. Consistent with the ruling of the Court
in PPA v. COA, et al., 28 respondent PPA contends
that only the first category officials or those who
were granted and were receiving RATA equivalent
to 40% of their salaries prior to 1 July 1989 are
entitled to such benefits. Petitioners who are
included in the second category officials or those
who are not incumbents as of 1 July 1989 are not
entitled to the 40% RATA benefit provided under
LOI No. 97.
Our Ruling
There is merit in petitioners' argument that their
petition should not be dismissed on the ground of
res judicata since this is based on jurisprudence
and issuances not yet in existence at the time of
the promulgation of the Court's decision in PPA v.
COA, et al.29 Petitioners are, however, incorrect in
their contention that the decision of the appellate
court in CA-G.R. SP No. 64702 which was not
appealed by the PPA has become final and as
such, barred the appellate court's subsequent
ruling in CA-G.R. SP No. 91743. CHcETA
Premised on the above considerations, we maintain

the position that our action allowing officials and
employees hired between the period of July 1, 1989
and October 31, 1989 to be paid allowances under
Item No. 5.5 of CCC No. 10 is logically tenable and
reasonable since same was made during the
"transitory period" from the old system to the new
system. 26
We note that when the petition was elevated to the

CA in the first instance in CA-G.R. SP No. 64702,
the matter submitted to be resolved by the
appellate court was simply the issue on whether the
trial court was correct in granting the motion to
dismiss and in declaring that the case is barred by
the principle of res judicata. Despite the non-appeal
by PPA of the appellate court's ruling that res
judicata is not applicable, the case did not attain
finality in view of the order of the CA remanding the
case to the trial court for continuation of hearing.
The appellate court's ruling in CA G.R. SP No.
They further claim that even the COA took

cognizance of this extension in the memorandum
27 issued by the officer-in-charge of the COA Audit
Office, to wit:
Moreover, this office gives much weight to the
position of the Secretary, DBM in his letter to the
481
91743, therefore, was not barred by the ruling in

CA G.R. SP No. 64702 since the ruling in the
second instance was already a ruling after trial on
the merits.
entitled to his predecessor's RATA privilege . . . or

to the transition allowance.
Finally, to explain what July 1, 1989 pertained to,
we held in the same case as follows:
Although the principle of res judicata is not

applicable, the petition must still fail because our
ruling must adhere to the doctrine of stare decisis.
In Chinese Young Men's Christian Association of
the Philippine Islands v. Remington Steel
Corporation, 30 the Court expounded on the
importance of this doctrine in securing certainty and
stability of judicial decisions, thus:
. . . . The date July 1, 1989 becomes crucial only to

determine that as of said date, the officer was an
incumbent and was receiving the RATA, for
purposes of entitling him to its continued grant. . . . .
In Philippine International Trading Corporation v.
COA, the Court confirmed the legislative intention
in this wise:
Time and again, the court has held that it is a very

desirable and necessary judicial practice that when
a court has laid down a principle of law as
applicable to a certain state of facts, it will adhere to
that principle and apply it to all future cases in
which the facts are substantially the same. Stare
decisis et non quieta movere. Stand by the
decisions and disturb not what is settled. Stare
decisis simply means that for the sake of certainty,
a conclusion reached in one case should be
applied to those that follow if the facts are
substantially the same, even though the parties
may be different. It proceeds from the first principle
of justice that, absent any powerful countervailing
considerations, like cases ought to be decided
alike. Thus, where the same questions relating to
the same event have been put forward by the
parties similarly situated as in a previous case
litigated and decided by a competent court, the rule
of stare decisis is a bar to any attempt to relitigate
the same issue. (Emphasis supplied)
. . . [T]here was no intention on the part of the

legislature to revoke existing benefits being enjoyed
by incumbents of government positions at the time
of the passage of RA 6758 by virtue of Sections 12
and 17 thereof. . . . .
The Court stressed that in reserving the benefits to
incumbents alone, the legislature's intention was
not only to adhere to the policy of non-diminution of
pay, but also to be consistent with the prospective
application of laws and the spirit of fairness and
justice. 35 (Emphasis omitted)
xxx xxx xxx
The disquisition of the Court in Philippine National
Bank v. Palma 36 is instructive, viz.:
The reliance of the court a quo on Cruz v. COA is
misplaced. It was held in that case that the specific
date of hiring, October 31, 1989, had been not only
arbitrarily determined by the COA, but also used as
an unreasonable and unsubstantial basis for
awarding allowances to employees. The basis for
the Court's ruling was not primarily the resulting
disparity in salaries received for the same work
rendered but, more important, the absence of a
distinction in the law that allowed the grant of such
benefits between those hired before and those
after the said date.
The issues raised by petitioners are no longer

novel. In a catena of cases 31 promulgated after
De Jesus v. COA 32 and Cruz v. COA, 33 this
Court has ruled that the pronouncement it has
established in the earlier case of PPA v. COA, et
al.34 with regard to the interpretation and
application of Section 12 of RA 6758 is still
applicable. The subsequent decisions maintained
that allowances or fringe benefits, whether or not
integrated into the standardized salaries prescribed
by R.A. 6758, should continue to be enjoyed only
by employees who (1) were incumbents and (2)
were receiving those benefits as of 1 July 1989.
Thus, setting a particular date as a distinction was

nullified, not because it was constitutionally infirm
or was against the "equal pay for equal work" policy
of RA 6758. Rather, the reason was that the COA
had acted without or in excess of its authority in
arbitrarily choosing October 31, 1989, as the cutoff
date for according the allowances. It was explained
that "when the law does not distinguish, neither
should the court." And for that matter, neither
should the COA. TSAHIa
In those cases, the Court reiterated that the

intention of the framers of the law was to phase out
certain allowances and privileges gradually, without
upsetting the principle of non-diminution of pay. The
intention of Section 12 to protect incumbents who
were already receiving those allowances on 1 July
1989, when RA 6758 took effect was emphasized
thus:
In consonance with stare decisis, there should be

no more misgivings about the proper application of
Section 12. In the present case, the payment of
benefits to employees hired after July 1, 1989, was
properly withheld, because the law clearly
mandated that those benefits should be reserved
only to incumbents who were already enjoying
them before its enactment. Withholding them from
An incumbent is a person who is in present

possession of an office. SCADIT
The consequential outcome, under sections 12 and
17, is that if the incumbent resigns or is promoted
to a higher position, his successor is no longer
482
the others ensured that the compensation of the

incumbents would not be diminished in the course
of the latter's continued employment with the
government agency.
exemption of those which were authorized to be

continued under Section 12 of RA 6758. 41
Therefore, the aforesaid provision does not infringe
the equal protection clause of the Constitution as it
is based on reasonable classification intended to
protect the rights of the incumbents against
diminution of their pay and benefits. 42
It bears emphasis also that in promulgating the

Irene Cruz case, there was no intention on the part
of the Court to abandon its earlier ruling in PPA v.
COA, et al. 37 The factual circumstances in the
former case are different from those attendant in
the case of herein petitioners. In fine, the Irene
Cruz case is not on all fours with the present case.
The petitioners in the former case, who were
employees of the Sugar Regulatory Administration,
were able to obtain from the Office of the President
a post facto approval or ratification of their social
amelioration benefit. No such authority granted by
the Office of the President has been presented by
the second category officials of the PPA.
Anent the issue of refund, we note that petitioners

were referring to the RATA received by the second
category officials pursuant to PPA Memorandum
Circular No. 36-89 dated 23 October 1989 and PPA
Memorandum Circular No. 46-90 dated 14
November 1990. We deem it no longer necessary
to discuss this issue considering that it was already
ruled upon in the earlier PPA case and was even
part of the dispositive portion 43 of the decision
which became final and executory. Well-settled is
the rule that once a judgment becomes final and
executory, it can no longer be disturbed, altered, or
modified in any respect. It is essential to an
effective administration of justice that once a
judgment has become final, the issue or cause
therein should be laid to rest. 44 The arguments of
petitioners regarding this issue should have been
raised in that case and not in this present petition.
EAICTS
Petitioners further invoked that the denial of their

claim of 40% RATA violated their constitutional right
to equal protection of the laws. We note that the
Constitution does not require that things which are
different in fact be treated in law as though they
were the same. The equal protection clause does
not prohibit discrimination as to things that are
different. It does not prohibit legislation which is
limited either in the object to which it is directed or
by the territory within which it is to operate. 38
We conclude this case with the words borrowed

from former Chief Justice Artemio V. Panganiban:

Constitution allows classification. . . . . A law is not
invalid simply because of simple inequality. The
very idea of classification is that of inequality, so
that it goes without saying that the mere fact of
inequality in no manner determines the matter of
constitutionality. All that is required of a valid
classification is that it be reasonable, which means
that the classification should be based on
differences, that it must be germane to the purpose
each member of the class. 39
During these tough economic times, this Court

understands, and in fact sympathizes with, the
plight of ordinary government employees.
Whenever legally possible, it has bent over
backwards to protect labor and favor it with
additional economic advantages. In the present
case, however, the Salary Standardization Law
clearly provides that the claimed benefits shall
continue to be granted only to employees who were
"incumbents" as of July 1, 1989. Hence, much to its
regret, the Court has no authority to reinvent or
modify the law to extend those benefits even to
employees hired after that date. 45
As explained earlier, the different treatment

accorded the second sentence (first paragraph) of
Section 12 of RA 6758 to the incumbents as of 1
July 1989, on one hand, and those employees
hired on or after the said date, on the other, with
respect to the grant of non-integrated benefits lies
in the fact that the legislature intended to gradually
phase out the said benefits without, however,
upsetting its policy of non-diminution of pay and
benefits. 40
WHEREFORE, the instant Petition for Review on

Certiorari is DENIED. The Decision dated 29
August 2007 and Resolution dated 29 February
2008 of the Court of Appeals in CA-G.R. SP No.
91743 are AFFIRMED. No pronouncement as to
costs.
SO ORDERED.
Carpio, Brion, Del Castillo and Perlas-Bernabe, JJ.,
concur.
The consequential outcome under Sections 12 and

17 is that if the incumbent resigns or is promoted to
a higher position, his successor is no longer entitled
to his predecessor's RATA privilege or to the
transition allowance. After 1 July 1989, the
additional financial incentives such as RATA may
no longer be given by the GOCCs with the
||| (Aquino v. Philippine Ports Authority, G.R. No.

181973, [April 17, 2013], 709 PHIL 636-652)
11. NATIONAL ARTIST VS. EX. SEC. 701
SCRA 269 (2013)
483
EN BANC
MAGNO JOSE CAPARAS, 1 MR. JOSE MORENO,

MR. FRANCISCO MAOSA, AND ALL PERSONS,
PUBLIC AND PRIVATE, ACTING UNDER THEIR
INSTRUCTIONS, DIRECTION, CONTROL AND
SUPERVISION
IN
RELATION
TO
THE
CONFERMENT OF THE ORDER OF THE
NATIONAL ARTIST AND THE RELEASE OF
FUNDS IN RELATION TO THE CONFERMENT OF
THE HONORS AND PRIVILEGES OF THE
ORDER
OF
NATIONAL
ARTISTS
ON
RESPONDENTS GUIDOTE-ALVAREZ, CAPARAS,
MORENO AND MAOSA, respondents.
[G.R. No. 189028. July 16, 2013.]

NATIONAL ARTIST FOR LITERATURE VIRGILIO
ALMARIO, NATIONAL ARTIST FOR LITERATURE
BIENVENIDO LUMBERA, NATIONAL ARTIST FOR
VISUAL
ARTS
(PAINTING)
BENEDICTO
CABRERA, NATIONAL ARTIST FOR VISUAL
ARTS (SCULPTURE) NAPOLEON ABUEVA,
NATIONAL
ARTIST
FOR
VISUAL
ARTS
(PAINTING AND SCULPTURE) ARTURO LUZ,
NATIONAL ARTIST FOR PRODUCTION DESIGN
SALVADOR BERNAL, UNIVERSITY PROFESSOR
EMERITUS GEMINO ABAD, DEAN MARVIC
M.V.F. LEONEN (UP COLLEGE OF LAW), DEAN
DANILO SILVESTRE (UP COLLEGE OF
ARCHITECTURE), DEAN ROLAND TOLENTINO
(UP COLLEGE OF MASS COMMUNICATION),
PROF. JOSE DALISAY, DR. ANTON JUAN, DR.
ALEXANDER CORTEZ, DR. JOSE NEIL GARCIA,
DR. PEDRO JUN CRUZ REYES, PROF. JOSE
CLAUDIO GUERRERO, PROF. MICHAEL M.
COROZA, PROF. GERARD LICO, PROF. VERNE
DE LA PENA, PROF. MARIAN ABUAN, PROF.
THEODORE O. TE, DR. CRISTINA PANTOJAHIDALGO, PROF. JOSE WENDELL CAPILI,
PROF. SIR ANRIAL TIATCO, PROF. NICOLO DEL
CASTILLO, PROF. HORACIO DUMANLIG, PROF.
DANTON REMOTO, PROF. PRISCELINA PATAJOLEGASTO, PROF. BELEN CALINGACION, PROF.
AMIEL Y. LEONARDIA, PROF. VIM NADERA,
PROF. MARILYN CANTA, PROF. CECILIA DELA
PAZ, PROF. CHARLSON ONG, PROF. CLOD
MARLON
YAMBAO,
PROF.
KENNETH
JAMANDRE, PROF. JETHRO JOAQUIN, ATTY.
F.D. NICOLAS B. PICHAY, ATTY. ROSE BEATRIX
ANGELES, MR. FERNANDO JOSEF, MS. SUSAN
S. LARA, MR. ALFRED YUSON, MS. JING
PANGANIBAN-MENDOZA,
MR.
ROMULO
BAQUIRAN, JR., MR. CARLJOE JAVIER, MS.
REBECCA T. ANONUEVO, MR. JP ANTHONY D.
CUNADA, MS. LEAH NAVARRO, MR. MARK
MEILLY, MR. VERGEL O. SANTOS, MR. GIL OLEA
MENDOZA, MR. EDGAR C. SAMAR, MS.
CHRISTINE
BELLEN,
MR.
ANGELO
R.
LACUESTA, MS. ANNA MARIA KATIGBAKLACUESTA, MR. LEX LEDESMA, MS. KELLY
PERIQUET, MS. CARLA PACIS, MR. J. ALBERT
GAMBOA, MR. CESAR EVANGELISTA BUENDIA,
MR. PAOLO ALCAZAREN, MR. ALWYN C.
JAVIER, MR. RAYMOND MAGNO GARLITOS, MS.
GANG BADOY, MR. LESLIE BOCOBO, MS.
FRANCES BRETANA, MS. JUDITH TORRES, MS.
JANNETTE PINZON, MS. JUNE POTICARDALISAY, MS. CAMILLE DE LA ROSA, MR.
JAMES
LADIORAY,
MR.
RENATO
CONSTANTINO, JR., and CONCERNED ARTISTS
OF THE PHILIPPINES (CAP), petitioners, vs. THE
EXECUTIVE SECRETARY, THE SECRETARY OF
THE
DEPARTMENT
OF
BUDGET
AND
MANAGEMENT, THE CULTURAL CENTER OF
THE
PHILIPPINES,
THE
NATIONAL
COMMISSION ON CULTURE AND THE ARTS,
MS. CECILE GUIDOTE-ALVAREZ, MR. CARLO
DECISION
LEONARDO-DE CASTRO, J p:
Art has traditionally been viewed as the expression
of everything that is true, good and beautiful. As
such, it is perceived to evoke and produce a spirit
of harmony. Art is also considered as a civilizing
force, a catalyst of nation-building. The notion of art
and artists as privileged expressions of national
culture helped shape the grand narratives of the
nation and shared symbols of the people. The artist
does not simply express his/her own individual
inspiration but articulates the deeper aspirations of
history and the soul of the people. 2 The law
recognizes this role and views art as something
that "reflects and shapes values, beliefs,
aspirations, thereby defining a people's national
identity." 3 If unduly politicized, however, art and
artists could stir controversy and may even cause
discord, as what happened in this case. IEaATD
The Antecedents
History of the Order of National Artists
On April 27, 1972, former President Ferdinand E.
Marcos issued Proclamation No. 1001 4 and, upon
recommendation of the Board of Trustees of the
Cultural Center of the Philippines (CCP), created
the category of Award and Decoration of National
Artist to be awarded to Filipinos who have made
distinct contributions to arts and letters. In the same
issuance, Fernando Amorsolo was declared as the
first National Artist.
On May 15, 1973, Proclamation No. 1144 5 was
issued. It amended Proclamation No. 1001 "by
creating a National Artists Awards Committee" that
would "administer the conferment of the category of
National Artist" upon deserving Filipino artists. The
Committee, composed of members of the Board of
Trustees of the CCP, was tasked to "draft the rules
to guide its deliberations in the choice of National
Artists, to the end that those who have created a
body of work in the arts and letters capable of
withstanding the test of time will be so recognized."
The authority of the National Artists Awards
Committee to administer the conferment of the
National Artist Award was again reiterated in
Presidential Decree No. 208 6 issued on June 7,
1973.
484
On April 3, 1992, Republic Act No. 7356, otherwise

known as the Law Creating the National
Commission for Culture and the Arts, was signed
into law. It established the National Commission for
Culture and the Arts (NCCA) and gave it an
extensive mandate over the development,
promotion and preservation of the Filipino national
culture and arts and the Filipino cultural heritage.
The NCCA was tasked with the following:
4.3. The National Artist Award Secretariat shall

commission art experts to form a Special Research
Group who shall verify information submitted on
nominees and provide essential data. They shall be
selected for their specialization and familiarity with
the works and accomplishments of nominated
artists.
4.4. The Special Research Group shall be
composed of ten (10) to twenty (20) members who
have expertise in one or more fields or disciplines.
Sec. 8. The Commission. A National

Commission for Culture and Arts is hereby created
to formulate policies for the development of culture
and arts; implement these policies in coordination
with affiliated cultural agencies; coordinate the
implementation of programs of these affiliated
agencies; administer the National Endowment Fund
for Culture and Arts (NEFCA); encourage artistic
creation within a climate of artistic freedom;
develop and promote the Filipino national culture
and arts; and preserve Filipino cultural heritage.
The Commission shall be an independent agency.
It shall render an annual report of its activities and
achievements to the President and to Congress.
4.5. The National Artist Award Council of Experts

shall be created before or during the nomination
period. It is tasked to screen nominees and
recommend to the NCCA and CCP Boards the
candidates for the Order of National Artists. It shall
be composed of highly regarded peers, scholars,
(including cultural philosophers and historians),
academicians, researchers, art critics, and other
knowledgeable individuals. A wider age-range of
experts who would have first-hand knowledge of
achievements of nominees shall be considered.
4.6. The selection of the members of the National
Artist Award Council of Experts shall be based on
the following criteria: acIASE
Among the specific mandates of the NCCA under

Republic Act No. 7356 is to "extend recognition of
artistic achievement through awards, grants and
services to artists and cultural groups which
contribute significantly to the Filipino's cultural
legacy." 7 In connection with this mandate, the
NCCA is vested with the power to "advise the
President on matters pertaining to culture and the
arts, including the creation of a special decoration
or award, for persons who have significantly
contributed to the development and promotion of
Philippine culture and arts." 8 AECacT
(a) should have achieved authority, credibility and

track record in his field(s) of expertise;
(b) should have extensive knowledge in his field(s)
and his views on Philippine art and culture must be
national in perspective;
(c) should be a recognized authority in the study or
research of Philippine art and culture;
As both the CCP Board of Trustees and the NCCA

have been mandated by law to promote, develop
and protect the Philippine national culture and the
arts, and authorized to give awards to deserving
Filipino artists, the two bodies decided to team up
and jointly administer the National Artists Award. 9
Thereafter, they reviewed the guidelines for the
nomination, selection and administration of the
National Artists Award. Pursuant to their respective
powers to draft and promulgate rules, regulations
and measures to guide them in their deliberations
in the choice of National Artists, the CCP and
NCCA adopted the following revised guidelines in
September 2007: 10
(d) must be willing to devote sufficient time and

effort to the work of the Council;
(e) must be willing to sign a non-disclosure
statement in order to safeguard the confidentiality
of the deliberations;
(f) must not have been convicted with finality of any
crime by a court of justice or dismissed for cause
by any organization, whether public or private.
4.7. The National Artist Award Council of Experts
shall be composed of a maximum of seven (7)
members each of the seven (7) areas/disciplines.
The living National Artists will automatically become
members in addition to the forty-nine (49) selected
members. These members will constitute the first
deliberation panel and will be invited to evaluate the
nominations and materials submitted by the Special
Research Group.
4. ADMINISTRATION OF THE AWARD

4.1. The National Commission for Culture and the
Arts (NCCA) shall plan, organize and implement
the Order of National Artists in coordination with the
Cultural Center of the Philippines (CCP).
4.8. Any member of the Council of Experts who is

nominated or related to a nominee up to the fourth
degree of consanguinity or affinity shall inhibit
himself/herself from the deliberation process.
Likewise, any member may decline to participate in
the deliberation for any reason or may be removed
4.2. It shall enlist the support and cooperation of

private sector experts from the various fields of art
to ensure that the awards are implemented in a
successful and impartial manner.
485
for just cause upon recommendation to the NCCA

Board by at least two thirds (2/3) of the members;
in which case, the National Artist Award Secretariat
shall again select the replacements for those who
decline or resigned until the first deliberation panel
is completed.
6.2.2. Music composition, direction, and/or

performance.
6.2.3. Theater direction, performance and/or
production design.
6.2.4. Visual Arts painting, sculpture,
printmaking, photography, installation art, mixed
media works, illustration, comics/komiks, graphic
arts, performance art and/or imaging. cSCTEH
4.9. The list of nominated members of the National

Artist Award Council of Experts shall be reviewed
by the National Artist Award Secretariat as needed,
for purposes of adding new members or
replacements.
6.2.5. Literature poetry, fiction (short story, novel

and play); non-fiction (essay, journalism, literary
criticism and historical literature).
4.10. The members of the National Artist Award

Council of Experts shall serve for a fixed term of
three (3) years.
6.2.6. Film and Broadcast Arts direction, writing,

production design, cinematography, editing, camera
work, and/or performance.
5. CRITERIA FOR SELECTION

The Order of National Artists shall be given to:
6.2.7. Architecture, Design and Allied Arts

architecture design, interior design, industrial arts
design, landscape architecture and fashion design.
5.1. Living artists who are Filipino citizens at the

time of nomination, as well as those who died after
the establishment of the award in 1972 but were
Filipino citizens at the time of their death. ADEaHT
6.3. Nominations for the Order of National Artists

may be submitted by government and nongovernment cultural organizations and educational
institutions, as well as private foundations and
councils.
5.2. Artists who through the content and form of

their works have contributed in building a Filipino
sense of nationhood.
6.4. Members of the Special Research Group, as

well as agencies attached to the NCCA and CCP
shall not submit nominations.
5.3. Artists who have pioneered in a mode of

creative expression or style, thus, earning
distinction and making an impact on succeeding
generations of artists.
6.5. NCCA and CCP Board members and

consultants and NCCA and CCP officers and staff
are
automatically
disqualified
from
being
nominated.
5.4. Artists who have created a substantial and

significant body of works and/or consistently
displayed excellence in the practice of their art form
thus enriching artistic expression or style.
6.6. Nominations shall be accepted only when

these are submitted in writing and with proper
supporting documentation, as follows:
5.5. Artists who enjoy broad acceptance through:

5.5.1. prestigious national and/or international
recognition, such as the Gawad CCP Para sa
Sining, CCP Thirteen Artists Award and NCCA Alab
ng Haraya
6.6.1. A cover letter signed by the head or

designated representative of the nominating
organization.
5.5.3. respect and esteem from peers.
The cover letter shall be accompanied by a Board

Resolution approving the nominee concerned with
the said resolution signed by the organization
President and duly certified by the Board Secretary.
6. NOMINATION PROCEDURE
6.6.2. A duly accomplished nomination form;

announce the opening of nominations through
media releases and letters to qualified
organizations.
6.6.3. A detailed curriculum vitae of the nominee;
6.2. Candidates may be nominated under one or

more of the following categories:
6.6.5. The latest photograph (color or black and

white) of the nominee, either 5["] x 7" or 8["] x 11";
EICSTa
5.5.2. critical acclaim and/or reviews of their works
6.6.4. A list of the nominee's significant works

categorized according to the criteria;
6.2.1. Dance choreography, direction and/or

performance.
6.6.6. Pertinent information materials on the

nominee's significant works (on CDs, VCDs and
DVDs);
486
nominees according to the order of precedence

following the set criteria of the Order of National
Artists. In extreme cases, the Second Deliberation
may add new names to the lists.
6.6.7. Copies of published reviews;

6.6.8. Any other document that may be required.
6.7. Nominations received beyond the announced
deadline for the submission of nominations shall
not be considered.
7.6. The second deliberation panel may

recommend not to give award in any category if no
nominee is found deserving. The number of
awardees shall also depend on the availability of
funds. All decisions and recommendations shall be
in writing.

announce the opening of nominations through
media releases.
6.9. All inquiries
submitted to
and
nominations
shall
7.7. The recommendations from the Second

Deliberation Panel of the National Artist Award
Council of Experts shall then be presented to the
joint boards of NCCA and CCP for final selection.
The presentors shall prepare their presentation in
writing together with an audio-visual presentation or
powerpoint
presentation.
Written
interpellations/opinions will be accepted from
selected critics. The review shall be based on the
ranking done by the Second Deliberation. The
voting shall be across disciplines. The National
Artists will be given the option whether to vote on
all categories or on his/her particular discipline.
be
The NATIONAL ARTIST AWARD SECRETARIAT

Office of the Artistic Director
Cultural Center of the Philippines
Roxas Boulevard, 1300 Pasay City
or
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Deputy Executive Director
National Commission for Culture and the Arts
633 General Luna Street, Intramuros, Manila
7.8. Proxy votes will not be allowed in the Selection

Process. Designation of permanent representatives
of agencies should be made at the outset to make
them regular Board members of NCCA and thus,
may be allowed to cast votes.
7. SCREENING AND SELECTION PROCESS

7.1. The National Artist Award Secretariat shall prescreen the nominees based on technical guideline
items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The prescreening shall not be based on the
accomplishments and merits of the nominee.
7.9. The list of awardees shall be submitted to the

President of the Republic of the Philippines for
confirmation, proclamation and conferral.
7.2. The Special Research Group shall accomplish

its task within six (6) months. The main objective is
to verify the validity of the data, and evaluate the
quality, true value and significance of works
according to the criteria. It shall come up with the
updated and comprehensive profiles of nominees
reflecting their most outstanding achievements.
8. PRESENTATION OF THE AWARDS

8.1. The Order of National Artists shall not be
conferred more frequently than every three (3)
years.
8.2. The Order of National Artists shall be conferred
by the President of the Philippines on June 11 or
any appropriate date in fitting ceremonies to be
organized by the National Artist Secretariat.
7.3. The National Artist Award Secretariat will meet

to review the list of nominees for oversights.
Consequently, deserving nominees shall be added
to the list.
8.3. The medallion of the Order of National Artists

and citation shall be given to the honoree during
the conferment ceremony. The cash award of
P100,000.00 in cheque shall be given immediately
after the ceremony or at another time and place as
requested by the honoree. aDcHIC
7.4. The first deliberation panel (Council of Experts)

shall be intra-disciplinary. The panelists shall be
grouped according to their respective fields of
expertise or disciplines to shortlist the nominees in
their disciplines or categories for presentation to the
second deliberation panel. HEcTAI
8.4. A posthumous conferral consisting of the

medallion and citation shall be given to the family or
legal heir/s of the honoree. The cash award of
P75,000.00 in cheque shall be given to the
honoree's legal heir/s or a representative
designated by the family immediately after the
ceremony or at another time and place as
requested by the family. (Emphases supplied.)
7.5. The second deliberation panel shall be

composed of a different set of experts from the first
deliberation panel [three (3) experts each of the
seven (7) areas/discipline] and may include
members from varying backgrounds such as critics
and academicians. The achievements of each
shortlisted nominee shall be presented by one
designated member of Council of Experts. Then
panel deliberates and ranks the shortlisted
In 1996, the NCCA and the CCP created a National

Artist Award Secretariat composed of the NCCA
487
Executive Director as Chairperson, the CCP

President as Vice-Chairperson, and the NCCA
Deputy Executive Director, the CCP VicePresident/Artistic Director, the NCCA National Artist
Award Officer and the CCP National Artist Award
Officer as members. They also centralized with the
NCCA all financial resources and management for
the administration of the National Artists Award.
They added another layer to the selection process
to involve and allow the participation of more
members of the arts and culture sector of the
Philippines in the selection of who may be
proclaimed a National Artist.
and State Decorations. The Chancellery shall

process nominations for the consideration of the
Committee on Honors. The Committee on Honors
shall screen and recommend these nominations to
the President.
The Committee on Honors shall, as a general rule,
serve as a screening committee to ensure that
nominations received from the various awards
committees meet two tests: that there has not been
an abuse of discretion in making the nomination,
and that the nominee is in good standing. Should a
nomination meet these criteria, a recommendation
to the President for conferment shall be made.
On September 19, 2003, Executive Order No. 236,

s. 2003, entitled Establishing the Honors Code of
the Philippines to Create an Order of Precedence
of Honors Conferred and for Other Purposes, was
issued. The National Artists Award was renamed
the Order of National Artists and raised to the level
of a Cultural Order, fourth in precedence among the
orders and decorations that comprise the Honors of
the Philippines. 11 Executive Order No. 236, s.
2003, recognizes the vital role of the NCCA and the
CCP in identifying Filipinos who have made distinct
contributions to arts and letters and states that the
National Artist recognition is conferred "upon the
recommendation of the Cultural Center of the
Philippines and the National Commission for
Culture and the Arts." 12 Executive Order No. 236,
s. 2003, further created a Committee on Honors to
"assist the President in evaluating nominations for
recipients of Honors," 13 including the Order of
National Artists, and presidential awards. The
Committee on Honors has been allowed to
"authorize relevant department or government
agencies to maintain Honors and/or Awards
Committees to process nominations for Honors
and/or Presidential Awards." 14 In this connection,
Section 2.4 (A) of the Implementing Rules and
Regulations 15 of Executive Order No. 236, s.
2003, states: TDEASC
The President of the Philippines takes the

recommendations of the Committee on Honors in
the highest consideration when making the final
decision on the conferment of awards. (Emphasis
supplied.)
Executive Order No. 435, s. 2005, entitled
Amending Section 5 (IV) of Executive Order No.
236 Entitled "Establishing the Honors Code of the
Philippines to Create an Order of Precedence of
Honors Conferred and for Other Purposes" was
subsequently issued on June 8, 2005. It amended
the wording of Executive Order No. 236, s. 2003,
on the Order of National Artists and clarified that
the NCCA and the CCP "shall advise the President
on the conferment of the Order of National Artists."
EaIcAS
Controversy Surrounding the 2009
Order of National Artists
Petitioners alleged that on January 30, 2007, a joint
meeting of the NCCA Board of Commissioners and
the CCP Board of Trustees was held to discuss,
among others, the evaluation of the 2009 Order of
National Artists and the convening of the National
Artist Award Secretariat. The nomination period
was set for September 2007 to December 31,
2007, which was later extended to February 28,
2008. The pre-screening of nominations was held
from January to March 2008. 16
2.4: Awards Committees

There shall be two types of awards committees: the
Committee on Honors and the various awards
committees in the various units of the government
service.
On April 3, 2009, the First Deliberation Panel met.

17 A total of 87 nominees 18 were considered
during the deliberation and a preliminary shortlist
19 of 32 names was compiled.
A. The Committee on Honors

On April 23, 2009, the Second Deliberation Panel
purportedly composed of an entirely new set of
Council of Experts met and shortlisted 13 out of the
32 names in the preliminary shortlist. 20 On May 6,
2009, the final deliberation was conducted by the
30-member Final Deliberation Panel comprised of
the CCP Board of Trustees and the NCCA Board of
Commissioners and the living National Artists. 21
From the 13 names in the second shortlist, a final
list of four names was agreed upon. 22 The final
list, according to rank, follows:
The Committee on Honors serves as a National

Awards Committee. It is composed of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards
committees must be submitted to the Committee on
Honors via the Chancellery of Philippine Orders
Name
Art Field/Category
488
Number of Votes
(Sgd.)
VILMA L. LABRADOR
Chairman
National Commission for Culture and the Arts
Manuel Conde ()
Film and Broadcast Arts
(Film)
26
Ramon Santos
Music
19
Lazaro Francisco () Literature
15
Federico Aguilar-Alcuaz
Visual Arts
15
On May 6, 2009, a letter, signed jointly by the
Chairperson of the NCCA, Undersecretary Vilma
Labrador, and the President and Artistic Director of
the CCP, Mr. Nestor Jardin, was sent to the
President. 23 The letter stated, thus:
(Sgd.)
NESTOR O. JARDIN
President and Artistic Director Cultural Center of
the Philippines 24
According to respondents, the aforementioned
letter was referred by the Office of the President to
the Committee on Honors. Meanwhile, the Office of
the President allegedly received nominations from
various sectors, cultural groups and individuals
strongly endorsing private respondents Cecile
Guidote-Alvarez, Carlo Magno Jose Caparas,
Francisco Maosa and Jose Moreno. The
Committee on Honors purportedly processed these
nominations and invited resource persons to
validate the qualifications and credentials of the
nominees. 25 SIHCDA
May 6, 2009
Her Excellency GLORIA MACAPAGAL-ARROYO
President of the Philippines
Malacaang Palace, Manila
Subject:2009 Order of National Artist Awardees
The Committee on Honors thereafter submitted a

memorandum to then President Gloria MacapagalArroyo recommending the conferment of the Order
of National Artists on the four recommendees of the
NCCA and the CCP Boards, as well as on private
respondents Guidote-Alvarez, Caparas, Maosa
and Moreno. Acting on this recommendation,
Proclamation No. 1823 declaring Manuel Conde a
National Artist was issued on June 30, 2009.
Subsequently, on July 6, 2009, Proclamation Nos.
1824 to 1829 were issued declaring Lazaro
Francisco, Federico Aguilar-Alcuaz and private
and Moreno, respectively, as National Artists. This
was subsequently announced to the public by then
Executive Secretary Eduardo Ermita on July 29,
2009. 26
Dear President Arroyo:

We are respectfully submitting a recommendation
of the NCCA Board of Trustees and CCP Board of
Trustees for the Proclamation of the following as
2009 Order of National Artists: HCTEDa
1. Mr. MANUEL CONDE (Posthumous) Film
and Broadcast Arts
2. Dr. RAMON SANTOS Music
3. Mr. LAZARO FRANCISCO (Posthumous)
Literature
4. Mr. FEDERICO AGUILAR-ALCUAZ Visual
Arts
Convinced that, by law, it is the exclusive province

of the NCCA Board of Commissioners and the CCP
Board of Trustees to select those who will be
conferred the Order of National Artists and to set
the standard for entry into that select group,
petitioners instituted this petition for prohibition,
certiorari and injunction (with prayer for restraining
order) praying that the Order of National Artists be
conferred on Dr. Santos and that the conferment of
the Order of National Artists on respondents
Guidote-Alvarez, Caparas, Maosa and Moreno be
enjoined and declared to have been rendered in
grave abuse of discretion. 27
The above persons were identified by experts in the

various fields of arts and culture, including living
National Artists. An intensive selection process was
observed following established practice. In the past,
awards were presented by the President at a
Ceremony held at the Malacaan Palace followed
by a program called "Parangal" at the Cultural
Center of the Philippines. We also propose to
continue with past practice of celebrating the life
and works of the four (4) Order of National Artists
through an exhibit that will open and a
commemorative publication that will be released on
the day of the proclamation.
In a Resolution 28 dated August 25, 2009, the

Court issued a status quo order 29 enjoining "public
respondents" "from conferring the rank and title of
the Order of National Artists on private
respondents; from releasing the cash awards that
accompany such conferment and recognition; and
from holding the acknowledgment ceremonies for
recognition of the private respondents as National
Artists."
We respectfully suggest, subject to Her

Excellency's availability, that the Proclamation be
on June 11, 2009, if possible at the Malacaan
Palace.
Thank you for your kind attention.
Very respectfully yours,
489
The addition of four names to the final list submitted

by the Boards of the CCP and the NCCA and the
deletion of one name from the said list constituted a
substitution of judgment by the President and a
unilateral reconsideration without clear justification
of the decision of the First, Second and Final
Deliberation Panels composed of experts. 34
What is the nature and scope of the power of the

President to confer the Order of the National Artists
and how should it be exercised? This is the
essential issue presented in this case. It will
determine whether the proclamation of respondents
as National Artists is valid. Preliminary procedural
issues on the standing of the petitioners and the
propriety of the remedies taken, 30 however, call
for resolution as a prerequisite to the discussion of
the main question.
Petitioners further argue that the choice of

respondent Guidote-Alvarez was illegal and
unethical because, as the then Executive Director
of the NCCA and presidential adviser on culture
and arts, she was disqualified from even being
nominated. 35 Moreover, such action on the part of
the former President constituted grave abuse of
discretion as it gave preferential treatment to
respondent Guidote-Alvarez by naming the latter a
National Artist despite her not having been
nominated and, thus, not subjected to the
screening process provided by the rules for
selection to the Order of National Artists. Her
inclusion in the list by the President represented a
clear and manifest favor given by the President in
that she was exempted from the process that all
other artists have to undergo. According to
petitioners, it may be said that the President used a
different procedure to qualify respondent GuidoteAlvarez. This was clearly grave abuse of discretion
for being manifest and undue bias violative of the
equal protection clause. 36
Contention of the Parties

A perusal of the pleadings submitted by the
petitioners reveals that they are an aggrupation of
at least three groups, the National Artists, cultural
workers and academics, and the Concerned Artists
of the Philippines (CAP). The National Artists assert
an "actual as well as legal interest in maintaining
the reputation of the Order of National Artists." 31
In particular, they invoke their right to due process
not to have the honor they have been conferred
with diminished by the irregular and questionable
conferment of the award on respondents GuidoteAlvarez, Caparas, Maosa and Moreno. For
petitioners, this would adversely affect their right to
live a meaningful life as it detracts not only from
their right to enjoy their honor as a fruit of their
lifelong labor but also from the respect of their
peers. 32 SHEIDC
The cultural workers, academics and CAP claim to
be Filipinos who are deeply concerned with the
preservation of the country's rich cultural and
artistic heritage. As taxpayers, they are concerned
about the use of public monies for illegal
appointments or spurious acts of discretion. 33
Respondent Caparas refutes the contention of the

petitioning National Artists and insists that there
could be no prejudice to the latter. They remain to
be National Artists and continue to receive the
emoluments, benefits and other privileges
pertaining to them by virtue of that honor. On the
other hand, all the other petitioners failed to show
any material and personal injury or harm caused to
them by the conferment of the Order of National
Artists on respondents Guidote-Alvarez, Caparas,
Maosa and Moreno. The rule on standing may not
be relaxed in favor of the petitioners as no question
of constitutionality has been raised and no issue of
transcendental importance is involved. 37 DTaSIc
All of the petitioners claim that former President

Macapagal-Arroyo gravely abused her discretion in
disregarding the results of the rigorous screening
and selection process for the Order of National
Artists and in substituting her own choice for those
of the Deliberation Panels. According to petitioners,
the President's discretion to name National Artists
is not absolute but limited. In particular, her
discretion on the matter cannot be exercised in the
absence of or against the recommendation of the
NCCA and the CCP. In adding the names of
respondents Caparas, Guidote-Alvarez, Maosa
and Moreno while dropping Dr. Santos from the list
of conferees, the President's own choices
constituted the majority of the awardees in utter
disregard of the choices of the NCCA and the CCP
and the arts and culture community which were
arrived at after a long and rigorous process of
screening and deliberation. Moreover, the name of
Dr. Santos as National Artist for Music was deleted
from the final list submitted by the NCCA and the
CCP Boards without clearly indicating the basis
thereof. For petitioners, the President's discretion to
name National Artists cannot be exercised to defeat
the recommendations made by the CCP and NCCA
Boards after a long and rigorous screening process
and with the benefit of expertise and experience.
Respondent Caparas further argues that the

remedies of prohibition and injunction are improper
as the act sought to be enjoined the declaration
of respondents Guidote-Alvarez, Caparas, Maosa
and Moreno as National Artists had already been
consummated. In particular, respondent Caparas
was already proclaimed National Artist through
Proclamation No. 1827 issued on July 6, 2009. 38
On the merits, respondent Caparas contends that
no grave abuse of discretion attended his
proclamation as National Artist. The former
President
considered
the
respective
recommendations of the NCCA and the CCP
Boards and of the Committee on Honors in
eventually declaring him (Caparas) as National
Artist. The function of the NCCA and the CCP
Boards is simply to advise the President. The
award of the Order of National Artists is the
490
exclusive prerogative of the President who is not

bound in any way by the recommendation of the
NCCA and the CCP Boards. The implementing
rules and regulations or guidelines of the NCCA
cannot restrict or limit the exclusive power of the
President to select the recipients of the Order of
National Artists. 39
rules of Executive Order No. 236, s. 2003.

Moreover, the laws recognize the expertise of the
NCCA and the CCP in the arts and tasked them to
screen and select the artists to be conferred the
Order of National Artists. Their mandate is clear
and exclusive as no other agency possesses such
expertise. 53
For her part, in a letter 40 dated March 11, 2010,

respondent Guidote-Alvarez manifested that she
was waiving her right to file her comment on the
petition and submitted herself to the Court's
discretion and wisdom.
The OSG also assailed the former President's

choice of respondent Guidote-Alvarez for being
contrary to Republic Act No. 7356. 54 Section 11 of
the said law provides:
Sec. 11. Membership Restrictions. During
his/her term as member of the Commission, a
Commissioner shall not be eligible for any grant, or
such other financial aid from the Commission as an
individual: Provided, however, That he/she may
compete for grants and awards on the same level
as other artists one (1) year after his/her term shall
have expired.
Respondent Maosa manifested that his creations

speak for themselves as his contribution to Filipino
cultural heritage and his worthiness to receive the
award. Nonetheless, he expressed his conviction
that the Order of National Artists is not a right but a
privilege that he would willingly relinquish should he
be found not worthy of it. 41
Respondent Moreno did not file any pleading
despite being given several opportunities to do so.
Hence, the Court dispensed with his pleadings. 42
The omission of the word "award" in the first portion

of the above provision appears to be unintentional
as shown by the proviso which states that a
member may compete for grants and awards only
one year after his or her term shall have expired. As
such, respondent Guidote-Alvarez is restricted and
disqualified from being conferred the 2009 Order of
National Artists. 55
The Court's Ruling
Standing of the Petitioners
Standing is the determination of whether a specific
person is the proper party to bring a matter to the
court for adjudication. 56 The gist of the question of
standing is whether a party alleges such personal
stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens
the presentation of issues upon which the court
depends for illumination of difficult constitutional
questions. 57 TCDHIc
In a Resolution dated July 12, 2011, this Court gave

due course to the petition and required the parties
to file their respective memoranda. 43 Respondent
Caparas filed his memorandum on September 8,
2011, 44 the CCP filed its memorandum on
September 19, 2011, 45 respondent Maosa on
September 20, 2011, 46 and the Office of the
Solicitor General filed a manifestation stating that it
is adopting its comment as its memorandum on
September 21, 2011. 47 Respondent Moreno failed
to file a Memorandum, hence, the Court resolved to
dispense with the same. 48 Petitioners filed their
Memorandum on May 14, 2012. 49 ACIESH
On the other hand, the original position of the Office
of the Solicitor General (OSG) was similar to that of
respondent Caparas. 50 In a subsequent
manifestation, 51 however, the OSG stated that the
current Board of Commissioners of the NCCA
agree with the petitioners that the President cannot
honor as a National Artist one who was not
recommended by the joint Boards of the NCCA and
the CCP. The implementing rules and regulations of
Executive Order No. 236, s. 2003, recognized the
binding character of the recommendation of the
NCCA and the CCP Boards and limited the
authority of the Committee on Honors to the
determination that (1) there has been no grave
abuse of discretion on the part of the NCCA and the
CCP Boards in making the nomination, and (2) the
nominee is in good standing. Where a nomination
meets the said two criteria, a recommendation to
the President to confer the award shall be made. 52
The parties who assail the constitutionality or

legality of a statute or an official act must have a
direct and personal interest. They must show not
only that the law or any governmental act is invalid,
but also that they sustained or are in immediate
danger of sustaining some direct injury as a result
of its enforcement, and not merely that they suffer
thereby in some indefinite way. They must show
that they have been or are about to be denied
some right or privilege to which they are lawfully
entitled or that they are about to be subjected to
some burdens or penalties by reason of the statute
or act complained of. 58
In this case, we find that the petitioning National
Artists will be denied some right or privilege to
which they are entitled as members of the Order of
National Artists as a result of the conferment of the
award on respondents Guidote-Alvarez, Caparas,
Maosa and Moreno. In particular, they will be
denied the privilege of exclusive membership in the
Order of National Artists.
The OSG further argued that, while the President

exercises control over the NCCA and the CCP, the
President has the duty to faithfully execute the
laws, including the NCCA-CCP guidelines for
selection of National Artists and the implementing
491
In accordance with Section 2 (a) 59 of Executive

Order No. 236, s. 2003, the Order of National
Artists is "an exclusive association of honored
individuals." To ensure the exclusivity of the
membership in the Order, a rigid nomination and
screening process has been established with
different sets of renowned artists and respected art
critics invited to sit as the Council of Experts for the
First and Second Deliberation Panels. Moreover, all
living National Artists are given a voice on who
should be included in their exclusive club as they
automatically become members of the Final
Deliberation Panel that will vote on who should be
included in the final list to be submitted to the
President for conferment of the Order of National
Artists. To allow the untrammeled discretion and
authority of the President to confer the Order of
National Artists without regard to the stringent
screening and rigorous selection process
established by the NCCA and the CCP will
diminish, if not negate, the exclusive nature of the
said Order. It will unduly subject the selection and
conferment of the Order of National Artists to
politics rather than to principles and procedures. It
will subvert the transparent and rigorous process
and allow entry to the exclusive Order of National
Artists through a secret backdoor of lobbying, back
channeling and political accommodation.
Artists, 61 he is entitled to be given an equal

opportunity to vie for that honor. In view of the
foregoing, there was a violation of petitioner Abad's
right to equal protection, an interest that is
substantial enough to confer him standing in this
case. ADHcTE
As regards the other concerned artists and
academics as well as the CAP, their claim of deep
concern for the preservation of the country's rich
cultural and artistic heritage, while laudable, falls
short of the injury in fact requirement of standing.
Their assertion constitutes a generalized grievance
shared in a substantially equal measure by all or a
large class of citizens. 62 Nor can they take refuge
in their status as taxpayers as the case does not
involve any illegal appropriation or taxation. A
taxpayer's suit is proper only when there is an
exercise of the spending or taxing power of the
Congress. 63
Nonetheless, as a reading of the petition shows
that it has advanced an issue which deserves the
attention of this Court in view of its seriousness,
novelty and weight as precedent, it behooves the
Court to relax the rules on standing and to resolve
the issue presented before it. 64 Moreover, this
issue is of paramount interest, 65 which further
justifies a liberal stance on standing.
Among the other petitioners, Prof. Gemino Abad

presents a unique valid personal and substantial
interest. Like respondents Caparas, Maosa and
Moreno, he was among the 87 nominees for the
2009 Order of National Artists. Like respondent
Moreno, he made it to the preliminary shortlist. As
he did not make it to the second shortlist, he was
not considered by the Final Deliberation Panel,
more so by the former President.
Propriety of the Remedies

The present action is a petition for prohibition,
certiorari, injunction, restraining order and all other
legal, just and equitable reliefs.
It has been held that the remedies of prohibition
and injunction are preventive and, as such, cannot
be availed of to restrain an act that is already fait
accompli. 66 Where the act sought to be prohibited
or enjoined has already been accomplished or
consummated, prohibition or injunction becomes
moot. 67
It should be recalled too that respondent GuidoteAlvarez was disqualified to be nominated for being
the Executive Director of the NCCA at that time
while respondents Maosa and Caparas did not
make it to the preliminary shortlist and respondent
Moreno was not included in the second shortlist.
Yet, the four of them were treated differently and
considered favorably when they were exempted
from the rigorous screening process of the NCCA
and the CCP and conferred the Order of National
Artists. The Committee on Honors and the former
President effectively treated respondents GuidoteAlvarez, Caparas, Maosa and Moreno as a
preferred class. The special treatment accorded to
and Moreno fails to pass rational scrutiny. 60 No
real
and
substantial
distinction
between
respondents and petitioner Abad has been shown
that would justify deviating from the laws,
guidelines and established procedures, and placing
respondents in an exceptional position. The undue
classification was not germane to the purpose of
the law. Instead, it contradicted the law and wellestablished guidelines, rules and regulations meant
to carry the law into effect. While petitioner Abad
cannot claim entitlement to the Order of National
Nevertheless, even if the principal issue is already

moot, this Court may still resolve its merits for the
future guidance of both bench and bar. Courts will
decide a question otherwise moot and academic if
it is "capable of repetition, yet evading review." 68
It is an opportune time for the Court to assert its
role as republican schoolmaster, 69 a teacher in a
vital national seminar. 70 There are times when the
controversy is of such character that, to prevent its
recurrence and to assure respect for constitutional
limitations, this Court must pass on the merits of a
case. 71 This is one such case. More than being a
teaching moment, this is not the first time that the
Order of National Artists was conferred in the
manner that is being assailed in this case. 72 If not
addressed here and now, there is great probability
that the central question involved in this case will
haunt us again in the future. Every President may
invoke absolute presidential prerogative and thrust
upon us National Artists after his or her own heart,
in total disregard of the advise of the CCP and the
492
NCCA and the voice of the community of artists,

resulting to repeated episodes of indignation and
uproar from the artists and the public.
VII of the Constitution prescribes faithful execution

of the laws by the President:
Sec. 17. The President shall have control of all the
executive departments, bureaus and offices. He
shall ensure that the laws be faithfully executed.
(Emphasis supplied.) cSaCDT
Furthermore, if not corrected, such an act would

give rise to mischief and dangerous precedent
whereby those in the corridors of power could avoid
judicial intervention and review by merely speedily
and stealthily completing the commission of an
illegality. 73 TEIHDa
The President's discretion in the conferment of the

Order of National Artists should be exercised in
accordance with the duty to faithfully execute the
relevant laws. The faithful execution clause is best
construed as an obligation imposed on the
President, not a separate grant of power. 79 It
simply underscores the rule of law and, corollarily,
the cardinal principle that the President is not
above the laws but is obliged to obey and execute
them. 80 This is precisely why the law provides that
"[a]dministrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution." 81
In any event, the present petition is also for

certiorari and there is no procedural bar for the
Court to pass upon the question of whether the
proclamations of respondents Guidote-Alvarez,
Caparas, Maosa and Moreno as National Artists
were attended by grave abuse of presidential
discretion.
Limits of the President's Discretion
The respective powers of the CCP Board of
Trustees and of the NCCA Board of Commissioners
with respect to the conferment of the Order of
National Artists are clear. They jointly administer
the said award and, upon their recommendation or
advice, the President confers the Order of National
Artists.
In this connection, the powers granted to the NCCA

and the CCP Boards in connection with the
conferment of the Order of National Artists by
executive issuances were institutionalized by two
laws, namely, Presidential Decree No. 208 dated
June 7, 1973 and Republic Act No. 7356. In
particular, Proclamation No. 1144 dated May 15,
1973 constituted the CCP Board as the National
Artists Awards Committee and tasked it to
"administer the conferment of the category of
National Artist" upon deserving Filipino artists with
the mandate to "draft the rules to guide its
deliberations in the choice of National Artists":
To "recommend" and to "advise" are synonymous.

To "recommend" is "to advise or counsel." 74 To
"advise" is "to give an opinion or counsel, or
recommend a plan or course of action; also to give
notice. To encourage, inform or acquaint." 75
"Advise" imports that it is discretionary or optional
with the person addressed whether he will act on
such advice or not. 76 This has been clearly
explained in Cojuangco, Jr. v. Atty. Palma: 77
Thus, in the matter of the conferment of the Order

of National Artists, the President may or may not
adopt the recommendation or advice of the NCCA
and the CCP Boards. In other words, the advice of
the NCCA and the CCP is subject to the President's
discretion.
Proclamation No. 1001 dated April 27, 1972,

creating the Award and Decoration of National
Artist, is hereby amended by creating a National
Artists Awards Committee, hereinafter to administer
the conferment of the category of National Artist
upon those deserving thereof. The Committee,
which shall be composed of members of the Board
of Trustees of the Cultural Center of the Philippines,
shall organize itself immediately and shall draft the
rules to guide its deliberations in the choice of
National Artists, to the end that those who have
created a body of work in the arts and in letters
capable of withstanding the test of time will be so
recognized. (Emphases supplied.)
Nevertheless, the President's discretion on the

matter is not totally unfettered, nor the role of the
NCCA and the CCP Boards meaningless.
The authority of the CCP Board of Trustees as

National Artists Awards Committee was reiterated
in Presidential Decree No. 208 dated June 7, 1973.
Discretion is not a free-spirited stallion that runs

and roams wherever it pleases but is reined in to
keep it from straying. In its classic formulation,
"discretion is not unconfined and vagrant" but
"canalized within banks that keep it from
overflowing." 78
The function of the CCP Board of Trustees as

National Artists Awards Committee has been
recognized under Republic Act No. 7356:
The "power to recommend" includes the power to

give "advice, exhortation or indorsement, which is
essentially persuasive in character, not binding
upon the party to whom it is made." (Emphasis
supplied.)
Sec. 18. The National Cultural Agencies. The

[NCCA] shall coordinate with the national cultural
agencies including but not limited to the Cultural
Center of the Philippines, the Institute of Philippine
Languages, the National Historical Institute, the
National Library, the National Museum, the Records
The President's power must be exercised in

accordance with existing laws. Section 17, Article
493
Management and Archives Office. However, they

shall continue operating under their respective
charters or as provided by law where provisions
therein are not inconsistent with the provisions of
this Act. They shall serve as the national repository
and/or showcase, as the case may be, of the best
of Philippine culture and arts. For this purpose,
these agencies shall submit periodic reports,
including recommendations to the [NCCA].
(Emphasis supplied.) TAaIDH
law. 82 Thus, the rules, guidelines and policies

regarding the Order of National Artists jointly issued
by the CCP Board of Trustees and the NCCA
pursuant to their respective statutory mandates
have the force and effect of law. Until set aside,
they are binding upon executive and administrative
agencies, 83 including the President himself/herself
as chief executor of laws. In this connection,
Section 2.5 (A) of the Implementing Rules and
Regulations 84 of Executive Order No. 236, s. 2003
provides: ADaEIH
On the other hand, the NCCA has been given the

following mandate in connection with the
conferment of cultural or arts awards:
2.5: General Guidelines for Awards Committees

A. National Orders of Cultural and Scientific Merit
Sec. 12. Mandate. The Commission is hereby

mandated to formulate and implement policies and
plans in accordance with the principles stated in
Title 1 of this Act.
The existing modalities of the NCCA for selecting

recipients for the Order of National Artists, and the
Gawad sa Manlilikha ng Bayan, and of the NAST
for selecting recipients of the Order of National
Scientists, shall remain in force. (Emphases
supplied.)
(a) To encourage the continuing and balanced

development of a pluralistic culture by the people
themselves, it shall:
Section 2.4 (A) of the same implementing rules

further states:
xxx xxx xxx

(4) extend recognition of artistic achievement
through awards, grants and services to artists and
cultural groups which contribute significantly to the
Filipino's cultural legacy;
2.4: Awards Committees

There shall be two types of awards committees: the
Committee on Honors and the various awards
committees in the various units of the government
service.
xxx xxx xxx

Sec. 13. Powers and Functions. To carry out its
mandate, the Commission shall exercise the
following powers and functions:
A. The Committee on Honors

The Committee on Honors serves as a National
Awards Committee. It is composed of the following:
xxx xxx xxx

(j) advise the President on matters pertaining to
culture and the arts, including the creation of a
special decoration or award, for persons who have
significantly contributed to the development and
promotion of Philippine culture and arts;
The Executive Secretary, Chairman

The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
(k) promulgate rules, regulations and undertake any

and all measures as may be necessary to
implement this Act[.] (Emphases supplied.)
All nominations from the various awards

committees must be submitted to the Committee on
Honors via the Chancellery of Philippine Orders
and State Decorations. The Chancellery shall
process nominations for the consideration of the
Committee on Honors. The Committee on Honors
shall screen and recommend these nominations to
the President.
By virtue of their respective statutory mandates in

connection with the conferment of the National
Artist Award, the NCCA and the CCP decided to
work together and jointly administer the National
Artist Award. They reviewed the guidelines for the
nomination, selection and administration of the
National Artist Award, created a National Artist
Award Secretariat, centralized all financial
resources and management for the administration
of the National Artist Award, and added another
layer to the selection process so that more
members of the arts and culture sector of the
Philippines may be involved and participate in the
selection of National Artists.
The Committee on Honors shall, as a general rule,

serve as a screening committee to ensure that
nominations received from the various awards
committees meet two tests: that there has not been
an abuse of discretion in making the nomination,
and that the nominee is in good standing. Should a
nomination meet these criteria, a recommendation
to the President for conferment shall be made.
We have held that an administrative regulation

adopted pursuant to law has the force and effect of
The President of the Philippines takes the

recommendations of the Committee on Honors in
494
the highest consideration when making the final

decision on the conferment of awards. (Emphasis
supplied.)
conferment of the Order of National Artists on

Conde, Dr. Santos, Francisco and Alcuaz was not
binding on the former President but only
discretionary or optional for her whether or not to
act on such advice or recommendation. Also, by
virtue of the power of control, the President had the
authority to alter or modify or nullify or set aside
such recommendation or advice. It was well within
the President's power and discretion to proclaim all,
or some or even none of the recommendees of the
CCP and the NCCA Boards, without having to
justify his or her action. Thus, the exclusion of
Santos did not constitute grave abuse of discretion
on the part of the former President.
Pursuant to the above provision of the

implementing rules of Executive Order No. 236, s.
2003, the authority of the Committee on Honors is
limited to determining whether the nominations
submitted by a particular awards committee, in this
case, the joint NCCA and CCP Boards, have been
tainted by abuse of discretion, and whether the
nominees are in good standing. Should the
nominations meet these two criteria, the Committee
on Honors shall make a recommendation to the
President for conferment of the Order of National
Artists. AECcTS
The conferment of the Order of National Artists on

and Moreno was an entirely different matter.
cCSDaI
In view of the various stages of deliberation in the

selection process and as a consequence of his/her
duty to faithfully enforce the relevant laws, the
discretion of the President in the matter of the
Order of National Artists is confined to the names
submitted to him/her by the NCCA and the CCP
Boards. This means that the President could not
have considered conferment of the Order of
National Artists on any person not considered and
recommended by the NCCA and the CCP Boards.
That is the proper import of the provision of
Executive Order No. 435, s. 2005, that the NCCA
and the CCP "shall advise the President on the
conferment of the Order of National Artists."
Applying this to the instant case, the former
President could not have properly considered
and Moreno, as their names were not
recommended by the NCCA and the CCP Boards.
Otherwise, not only will the stringent selection and
meticulous screening process be rendered futile,
the respective mandates of the NCCA and the CCP
Board of Trustees under relevant laws to administer
the conferment of Order of National Artists, draft the
rules and regulations to guide its deliberations,
formulate and implement policies and plans, and
undertake any and all necessary measures in that
regard will also become meaningless.
There is grave abuse of discretion when an act is

(1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically,
capriciously or arbitrarily, out of malice, ill will or
personal bias. 86
There was a violation of the equal protection clause
of the Constitution 87 when the former President
gave preferential treatment to respondents
Guidote-Alvarez, Caparas, Maosa and Moreno.
The former President's constitutional duty to
faithfully execute the laws and observe the rules,
guidelines and policies of the NCCA and the CCP
as to the selection of the nominees for conferment
of the Order of National Artists proscribed her from
having a free and uninhibited hand in the
conferment of the said award. The manifest
disregard of the rules, guidelines and processes of
the NCCA and the CCP was an arbitrary act that
unduly favored respondents Guidote-Alvarez,
Caparas, Maosa and Moreno. The conferment of
the Order of National Artists on said respondents
was therefore made with grave abuse of discretion
and should be set aside.
Respondent Guidote-Alvarez could not have even

been nominated, hence, she was not qualified to be
considered and conferred the Order of National
Artists at that time. The President's discretion on
the matter does not extend to removing a legal
impediment or overriding a legal restriction.
While the Court invalidates today the proclamation

of respondents Guidote-Alvarez, Caparas, Maosa
and Moreno as National Artists, such action should
not be taken as a pronouncement on whether they
are worthy to be conferred that honor. Only the
President, upon the advise of the NCCA and the
CCP Boards, may determine that. The Court simply
declares that, as the former President committed
grave abuse of discretion in issuing Proclamation
Nos. 1826 to 1829 dated July 6, 2009, the said
proclamations are invalid. However, nothing in this
Decision should be read as a disqualification on the
part of respondents Guidote-Alvarez, Caparas,
Maosa and Moreno to be considered for the honor
of National Artist in the future, subject to
compliance with the laws, rules and regulations
governing said award.
From the foregoing, the advice or recommendation

of the NCCA and the CCP Boards as to the
WHEREFORE, the petition is hereby GRANTED in

PART. Proclamation Nos. 1826 to 1829 dated July
Furthermore, with respect to respondent GuidoteAlvarez who was the Executive Director of the
NCCA at that time, the Guidelines expressly
provides:
6. 5NCCA and CCP Board members and
consultants and NCCA and CCP officers and staff
are
automatically
disqualified
from
being
nominated. 85
495
6, 2009 proclaiming respondents Cecile GuidoteAlvarez, Carlo Magno Jose Caparas, Francisco
Maosa, and Jose Moreno, respectively, as
National Artists are declared INVALID and SET
ASIDE for having been issued with grave abuse of
discretion.
dedicated primarily to limit the awesome powers of

the government and serves as a check on its
unreasonable use and application.
Serving to offset the tremendous powers of the
State, the Bill of Rights serves to protect the
individual liberties of its citizens. It is a statement of
individual liberties which citizens, residents, and
certain sojourners in the country enjoy against
exertions of government power.3 The Bill of Rights
does not concern itself with the relation between a
private individual and another individualthe Bill of
Rights is a charter of liberties for the individual and
a limitation upon the power of the State.4
In a leading Philippine caseRubi vs. Provincial
Board5liberty as guaranteed by the Constitution
was defined by Justice Malcolm to include the right
to exist and the right to be free from arbitrary
personal restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint
of the person of the citizen, but is deemed to
embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject
only to such restraint as are necessary for the
common welfare.6
The Supreme Court in Morfe vs. Mutuc,7 citing
several legal luminaries, continued to state that
the liberty to be safeguarded is, as pointed out by
Chief Justice Hughes, liberty in a social
organization, implying the absence of arbitrary
restraint not immunity from reasonable regulations
and prohibitions imposed in the interest of the
community. It was Lintons view that to belong to a
society is to sacrifice some measure of individual
liberty, no matter how slight the restraints which the
society consciously imposes. The above statement
from Linton, however, should be understood in the
sense that liberty, in the interest of public health,
public order or safety, of general welfare, in other
words through the proper exercise of the police
power, may be regulated. The individual though, as
Justice Cardozo pointed out, has still left a domain
of free activity that cannot be touched by
government or law at all, whether the command is
specially against him or generally against him and
others.
Thus, it can be said that the Bill of Rights serves as
the bedrock of constitutional government
contained as it is in Article III of the Constitution,
and occupies a position of primacy in the
fundamental law way above the articles on
government power.8 The paragraphs found in the
Philippine Bill of Rights are not threadbare
verbiage. The language carries with it all the
applicable jurisprudence of great English and
American Constitutional cases.9
These provisions therefore are primarily limitations
on government, declaring rights that exist without
any governmental grant, that may not be taken
away by government and that government has the
duty to protect.
The Bill of Rights under the 1987 Constitution
begins with the Due Process and Equal Protection
clauses. Observe that the rest of the rights simply
expands
the
substantive
and
procedural
requirements of the first section of Article III.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Peralta,
Bersamin, Abad Villarama, Jr., Perez, Mendoza,
Brion, J., is on leave.
Del Castillo and Leonen, JJ., took no part.
||| (Almario v. Executive Secretary, G.R. No.
189028, [July 16, 2013], 714 PHIL 127-171)
Annotation REVISITING FUNDAMENTAL
CONCEPTS IN CONSTITUTIONA LAW 663 SCRA
661 (2012)
AN N O TAT I O N
REVISITING FUNDAMENTAL CONCEPTS
IN CONSTITUTIONAL LAW
By
DAVID ROBERT C. AQUINO, CSEE*
___________________
The case under annotationBureau of Customs
Employees Association (BOCEA) vs. Teves1
allowed the High Court the opportunity to revisit
several fundamental concepts in Constitutional Law
which to date have been relegated to mere catch
phrases in our local political history.
Phrases such as due process, equal protection,
separation of powers, and even the bill of
attainder have, in recent years been relegated to
mere bywords used by politicians, the media and
even the ordinary man on the street. Thus, it is now
deemed part of ones daily milieu to hear these
phrases uttered by everyonebe it on television, in
a newspaper, on radio or in daily everyday
conversation.
Although the focal issue of the case under
annotation
is
the
constitutionality
or
unconstitutionality of the Attrition Law, the grounds
raised and relied by Petitioner were basic concepts
in Constitutional Law. Thus, unlike the usual fare of
reading interwoven concepts that stretch its
argument to fit their theory of the case, the case at
hand provides us with a fresh outlook on such
conceptsreminiscent of ones initial foray into
legal studies.
This humble annotation, therefore, revisits four (4)
fundamental
and
well-known
concepts in
Constitutional Lawdue process, equal protection,
bill of attainder and separation of powers.
Interestingly enough, the petitioners in the case
under annotation chose concepts found in just one
article of the Constitutionthe Bill of Rights.2 Their
choice of relying on the Bill of Rights is not
surprising considering this part of the Constitution is
496
Due Process
It should be noted that the concept of due process
as well as equal protection are both found in
Section 1, Article III of the 1987 Philippine
Constitution.
Simply put, due process guarantees that no person
shall be deprived of life, liberty or property without
giving the person an opportunity to be heard and
defend himself. Thus, before a person is
permanently incarcerated, there must be a trial.
Same is true before private property is appropriated
by the State for public use.
To reiterate, the most basic tenet espoused in due
process is the right to be heard.10 To state it
differently, it is the right to be given an opportunity
to be heard.
A famous case still cited today views due process
as one which hears before it condemns; which
proceeds upon inquiry, and renders judgment only
after trial.11 It is responsiveness to the supremacy
of reason and obedience to the dictates of
justice.12 It is the embodiment of sporting idea of
fair play.13
It should be noted that the first section of this article
dealing with due process and equal protection
provides a blanket protection to the citizen. It has
been observed that even in the absence of all the
other provisions under the Bill of Rightsthe first
section alone would provide adequate protection of
a persons rights.
The due process of law clause of the Constitution
must be understood to mean that no person shall
be deprived by any form of legislation or
governmental action of life, liberty, or property,
except as a consequence of some judicial
proceeding, appropriately and legally conducted.
Stated differently, due process of law simply means
that before a man can be deprived of his life, liberty
or property, he must be given an opportunity to
defend himself.14 When one speaks of due process of law, a distinction must be made between
matters of procedure and matters of substance
procedural due process refers to the method or
manner by which the law is enforced, while
substantive due process requires that the law
itself, not merely the procedures by which the law
would be enforced, is fair, reasonable, and just.15
Moreover, due process of law implies that
whenever, in a judicial proceeding, a judgment is
rendered by a court of justice affecting the liberty or
condemning the property of another person, he is
entitled to have reasonable notice of such
procedure, trial or contest.16
Equal Protection
This simply refers to the equality in the enjoyment
of similar rights and privileges granted by law.17
Phrased differently, the equal protection clause
under the Constitution means 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.18
Moreover, it is well settled that the equal protection
clause applies only to persons or things identically
situated and does not bar a reasonable

classification of the subjects of legislation.
A classification is reasonable where: (1) it is based
upon substantial distinctions which make real
differences: (2) these are germane to the purpose
of the law; (3) the classification applies, not only to
present conditions, but, also, to future conditions
which are substantially identical to those of the
present; and (4) the classification applies, equally
to all those who belong to the same class.19 This is
the argument which the High Court used to rebut
the argument propounded by the petitioners in the
case under annotation. While it is true that equal
protection guarantees a uniform or equal treatment
to all, it, however, admits of classifications to which
the petitioners belong.
In one landmark case, the Supreme Court had the
occasion to define equal protection in this wise: To
all persons and things similarly situated, the law
shall be applied equally, that is to be treated alike,
both as to right conferred and responsibilities
imposed.20
Note, however, that the Supreme Court had also
warned litigants that equal protection is not a
talismanic formula at the mere invocation of which
a party to a lawsuit can rightfully expect that
success will crown his efforts.21
The law is anything but that. It proceeded to
declare that before this argument can be
appreciated it has to be specially pleaded, insisted
upon, and adequately argued.
Bill of Attainder
A bill of attainder is a legislative act which convicts
a person of, and punishes him for a crime without
the benefit of a judicial trial.
In an old case, the Supreme Court defined a bill of
attainder as a legislative act which inflicts
punishment without trial. Its essence is the
substitution of a legislative for a judicial
determination of guilt. The constitutional ban
against bills of attainder serves to implement the
principle of separation of powers by confining
legislatures to rule-making and thereby forestalling
legislative usurpation of the judicial function.
History in perspective, bills of attainder were
employed to suppress unpopular causes and
political minorities, and it is against this evil that the
constitutional prohibition is directed. The singling
out of a definite class, the imposition of a burden on
it, and a legislative intent, suffice to stigmatize a
statute as a bill of attainder.22
Within the meaning of the Constitution, bills of
attainder include bills of pains and penalties. In
these cases the legislative body, in addition to its
legitimate functions, exercises the powers and
office of judge; it assumes, in the language of the
textbooks, judicial magistracy; it pronounces upon
the guilt of the party, without any of the forms or
safeguards of trial; it determines the sufficiency of
the proofs produced, whether conformable to the
rules of evidence or otherwise; and it fixes the
degree of punishment in accordance with its own
notions of the enormity of the offense.23
Separation of Powers
497
Separation of powers refers to the relationship

between the three (3) branches of government
the executive, the legislative, and the judiciary.
Each branch is considered as co-equal with each
other but whose functions are interwoven and
interconnected. While admittedly, the executive and
the legislative, seemingly have more powers or is
more pro-active in the discharge of its functions and
responsibilities under the Constitution, it is the
judiciary, however, on whose shoulders the
Constitution has reposed the power to check the
excesses of the other more powerful branches.
This is called the power of judicial review. A
provision which has been introduced by the 1987
Constitution is a definition, for the first time in our
fundamental law, of the term judicial power, as
such authority and duty of courts of justice to settle
actual controversies involving rights which are
legally demandable and enforceable and to
determine whether or not there has been a grave
abuse of discretion, amounting to lack or excess of
jurisdiction, on the part of any branch or
instrumentality of the Government.24
As the Constitution vests judicial power in one
Supreme Court and in such lower courts as may be
established by lawjudicial power, by its nature, is
the power to hear and decide causes pending
between parties who have the right to sue and be
sued in the courts of law and equity.25 Although
holding neither purse nor sword and so regarded as
the weakest of the three departments of the
government, the judiciary is nonetheless vested

with the power to annul the acts of either the
legislative or the executive or of both when not
conformable to the fundamental law.
This is the reason for what some quarters call it the
doctrine of judicial supremacy. Even so, this power
is not lightly assumed or readily exercised. The
doctrine of separation of powers imposes upon the
courts a proper restraint, born of the nature of their
functions and of their respect for the other
departments, in striking down the acts of the
legislative and the executive as unconstitutional.26
The ruling made by the High Court in the case
under annotation is illuminating, it states: the
principle of separation of powers ordains that each
of the three great branches of government has
exclusive cognizance of and is supreme in matters
falling within its own constitutionally allocated
sphere.27
Although the petition failed to convince the High
Court, the case gave it the opportunity to take a
fresh look at age-old concepts that have been
enshrined in our fundamental law. It can be said
that these fundamental concepts have weathered
the test of time, technological advancement,
political restructuring and social development. It
has, for all intents and purposes, serve as
unwavering guideposts for future generations as
well as a beacon shining a light for our political
tomorrow.
o0o
498

Constitutional Law 2 CASES (Preliminaries-I)

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ATTY. DJUMEIL GERARD P.

TINAMPAY CASE LIST

The Supreme Court denied the petition for

[G.R. No. L-40779. November 28, 1975.]

Petition for mandamus is denied.

EPICHARIS T. GARCIA, petitioner, vs. THE

Epicharis T. Garcia in her own behalf.

2.ID.; ID.; FREEDOM ENJOYED BY SCHOOL AS

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

FACULTY MEMBER. The Constitution grants the

and not eligible for admission to the seminary.

4.ID.; ID.; ID.; FUNCTION OF A UNIVERSITY. It

3.ID.; ID.; SUPREME COURT NOT A TRIER NOR

6.ID.; ID.; SUFFICIENCY OF GROUNDS FOR

4.ID.; SCHOOLS AND UNIVERSITIES; COURTS

TEEHANKEE, J., concurring:

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

institution can neither exist nor operate. The

5.ID.; ID.; ID.; EXCEPTION. Only after

3.ID.; ID.; INDIVIDUAL HAS INHERENT RIGHT TO

4.ID.; SCHOOLS; OPERATION OF A SCHOOL

MAKASIAR, J., dissenting:

5.ID.; BILL OF RIGHTS; DIGNITY OF HUMAN

2.ID.; ID.; ALSO DEEMED GRANTED TO

6.ID.; ID.; CONSTITUTIONAL RIGHTS MUST BE

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

free speech or free press, freedom of worship and

justifiably denied enrollment in the second

7.ID.; ID.; ISSUE IN AN ACTION TO COMPEL

11.ID.; ID.; AUTHORITY OF PRIVATE SCHOOLS

12.ID.; ID.; NATURE OF FUNCTIONS OF

9.ID.; ID.; SCHOOLS; AFTER STUDENT HAS

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

view of the character of the particular educational

Her petition included the letter of respondent Father

Petitioner alleged: "3. That in summer, 1975,

This Court, in a resolution of June 23, 1975,

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

Lambino, S.J., and/or the Loyola School of

who unfortunately did not have counsel, an attempt

2.Nor is this all. There is, as previously noted, the

1.In respondent's memorandum, it was made clear

3.That is only one aspect though. Such a view does

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

and yet one which sometimes tends to be obscured

especially higher education, belongs to a different,

4.It is not an easy matter then to disregard the

The main issue resolved by the Supreme Court in

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

AGABIN, CARMELITA GUNO, and MARICHU

It is the right of each university teacher, recognized

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

legislators to interfere in academic matters, there

from political or ecclesiastical authority, or from the

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

In order that persons may fulfill their proper

the activities of the United Nations for maintenance

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

(68 SCRA 277 [1975]) that admission to an

Education Act of 1982, nor in the Manual of

ATTY. DJUMEIL GERARD P. TINAMPAY CASE LIST

also: Ateneo University vs. Judge Capulong, 222

standards. The prerogative of the school to provide