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Contents MAKASIAR, J:
Macariola case ................................................... 1
In a verified complaint dated August 6, 1968
Macariola case digest....................................... 21 Bernardita R. Macariola charged respondent
Proclamation no. 1 ........................................... 23 Judge Elias B. Asuncion of the Court of First
Instance of Leyte, now Associate Justice of the
Proclamation no. 3 ........................................... 24 Court of Appeals, with "acts unbecoming a
Lawyers League ............................................... 28 judge."

In re: Bermudez................................................ 29
In re: Bermudez Digest..................................... 32
The factual setting of the case is stated in the
Letter of Assoc. Justice..................................... 33 report dated May 27, 1971 of then Associate
Proclamation no. 58 ......................................... 37 Justice Cecilia Muoz Palma of the Court of
Appeals now retired Associate Justice of the
De leon vs. Esguerra ......................................... 40 Supreme Court, to whom this case was referred
E.O. 200 ............................................................ 76 on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance


of Leyte was a complaint for partition filed by
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, and Priscilla
Macariola case Reyes, plaintiffs, against Bernardita R.
A.M. No. 133-J May 31, 1982 Macariola, defendant, concerning the
properties left by the deceased Francisco Reyes,
the common father of the plaintiff and
defendant.
BERNARDITA R. MACARIOLA, complainant,

vs.
In her defenses to the complaint for partition,
HONORABLE ELIAS B. ASUNCION, Judge of the Mrs. Macariola alleged among other things
Court of First Instance of Leyte, respondent. that; a) plaintiff Sinforosa R. Bales was not a
daughter of the deceased Francisco Reyes; b)
the only legal heirs of the deceased were

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defendant Macariola, she being the only 1/4 of Lot 1145 as belonging to the conjugal
offspring of the first marriage of Francisco partnership of the spouses Francisco Reyes Diaz
Reyes with Felisa Espiras, and the remaining and Felisa Espiras; (4) Declaring Lot No. 2304
plaintiffs who were the children of the and 1/4 of Lot No. 3416 as belonging to the
deceased by his second marriage with Irene spouses Francisco Reyes Diaz and Irene Ondez
Ondez; c) the properties left by the deceased in common partnership; (5) Declaring that 1/2
were all the conjugal properties of the latter of Lot No. 1184 as belonging exclusively to the
and his first wife, Felisa Espiras, and no deceased Francisco Reyes Diaz; (6) Declaring
properties were acquired by the deceased the defendant Bernardita R. Macariola, being
during his second marriage; d) if there was any the only legal and forced heir of her mother
partition to be made, those conjugal properties Felisa Espiras, as the exclusive owner of one-
should first be partitioned into two parts, and half of each of Lots Nos. 4474, 4475, 4892,
one part is to be adjudicated solely to 5265, 4803, 4581, 4506; and the remaining one-
defendant it being the share of the latter's half (1/2) of each of said Lots Nos. 4474, 4475,
deceased mother, Felisa Espiras, and the other 4892, 5265, 4803, 4581, 4506 and one-half
half which is the share of the deceased (1/2) of one-fourth (1/4) of Lot No. 1154 as
Francisco Reyes was to be divided equally belonging to the estate of Francisco Reyes Diaz;
among his children by his two marriages. (7) Declaring Irene Ondez to be the exclusive
owner of one-half (1/2) of Lot No. 2304 and
one-half (1/2) of one-fourth (1/4) of Lot No.
3416; the remaining one-half (1/2) of Lot 2304
On June 8, 1963, a decision was rendered by and the remaining one-half (1/2) of one-fourth
respondent Judge Asuncion in Civil Case 3010, (1/4) of Lot No. 3416 as belonging to the estate
the dispositive portion of which reads: of Francisco Reyes Diaz; (8) Directing the
division or partition of the estate of Francisco
Reyes Diaz in such a manner as to give or grant
to Irene Ondez, as surviving widow of Francisco
IN VIEW OF THE FOREGOING CONSIDERATIONS, Reyes Diaz, a hereditary share of. one-twelfth
the Court, upon a preponderance of evidence, (1/12) of the whole estate of Francisco Reyes
finds and so holds, and hereby renders Diaz (Art. 996 in relation to Art. 892, par 2, New
judgment (1) Declaring the plaintiffs Luz R. Civil Code), and the remaining portion of the
Bakunawa, Anacorita Reyes, Ruperto Reyes, estate to be divided among the plaintiffs
Adela Reyes and Priscilla Reyes as the only Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
children legitimated by the subsequent Reyes, Ruperto Reyes, Adela Reyes, Priscilla
marriage of Francisco Reyes Diaz to Irene Reyes and defendant Bernardita R. Macariola,
Ondez; (2) Declaring the plaintiff Sinforosa R. in such a way that the extent of the total share
Bales to have been an illegitimate child of of plaintiff Sinforosa R. Bales in the hereditary
Francisco Reyes Diaz; (3) Declaring Lots Nos. estate shall not exceed the equivalent of two-
4474, 4475, 4892, 5265, 4803, 4581, 4506 and fifth (2/5) of the total share of any or each of

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the other plaintiffs and the defendant (Art. 983, The parties, through their respective counsels,
New Civil Code), each of the latter to receive presented to this Court for approval the
equal shares from the hereditary estate, following project of partition:
(Ramirez vs. Bautista, 14 Phil. 528; Diancin vs.
Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9)
Directing the parties, within thirty days after
this judgment shall have become final to submit COMES NOW, the plaintiffs and the defendant
to this court, for approval a project of partition in the above-entitled case, to this Honorable
of the hereditary estate in the proportion above Court respectfully submit the following Project
indicated, and in such manner as the parties of Partition:
may, by agreement, deemed convenient and
equitable to them taking into consideration the
location, kind, quality, nature and value of the
properties involved; (10) Directing the plaintiff l. The whole of Lots Nos. 1154, 2304 and
Sinforosa R. Bales and defendant Bernardita R. 4506 shall belong exclusively to Bernardita
Macariola to pay the costs of this suit, in the Reyes Macariola;
proportion of one-third (1/3) by the first named
and two-thirds (2/3) by the second named; and
(I 1) Dismissing all other claims of the parties
[pp 27-29 of Exh. C]. 2. A portion of Lot No. 3416 consisting of
2,373.49 square meters along the eastern part
of the lot shall be awarded likewise to
Bernardita R. Macariola;
The decision in civil case 3010 became final for
lack of an appeal, and on October 16, 1963, a
project of partition was submitted to Judge
Asuncion which is marked Exh. A. 3. Lots Nos. 4803, 4892 and 5265 shall be
Notwithstanding the fact that the project of awarded to Sinforosa Reyes Bales;
partition was not signed by the parties
themselves but only by the respective counsel
of plaintiffs and defendant, Judge Asuncion
approved it in his Order dated October 23, 4. A portion of Lot No. 3416 consisting of
1963, which for convenience is quoted 1,834.55 square meters along the western part
hereunder in full: of the lot shall likewise be awarded to Sinforosa
Reyes-Bales;

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5. Lots Nos. 4474 and 4475 shall be divided While the Court thought it more desirable for all
equally among Luz Reyes Bakunawa, Anacorita the parties to have signed this Project of
Reyes, Ruperto Reyes, Adela Reyes and Priscilla Partition, nevertheless, upon assurance of both
Reyes in equal shares; counsels of the respective parties to this Court
that the Project of Partition, as above- quoted,
had been made after a conference and
agreement of the plaintiffs and the defendant
6. Lot No. 1184 and the remaining portion of approving the above Project of Partition, and
Lot No. 3416 after taking the portions awarded that both lawyers had represented to the Court
under item (2) and (4) above shall be awarded that they are given full authority to sign by
to Luz Reyes Bakunawa, Anacorita Reyes, themselves the Project of Partition, the Court,
Ruperto Reyes, Adela Reyes and Priscilla Reyes therefore, finding the above-quoted Project of
in equal shares, provided, however that the Partition to be in accordance with law, hereby
remaining portion of Lot No. 3416 shall belong approves the same. The parties, therefore, are
exclusively to Priscilla Reyes. directed to execute such papers, documents or
instrument sufficient in form and substance for
the vesting of the rights, interests and
participations which were adjudicated to the
WHEREFORE, it is respectfully prayed that the respective parties, as outlined in the Project of
Project of Partition indicated above which is Partition and the delivery of the respective
made in accordance with the decision of the properties adjudicated to each one in view of
Honorable Court be approved. said Project of Partition, and to perform such
other acts as are legal and necessary to
effectuate the said Project of Partition.

Tacloban City, October 16, 1963.

SO ORDERED.

(SGD) BONIFACIO RAMO Atty. for the


Defendant Tacloban City
Given in Tacloban City, this 23rd day of October,
1963.

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff


Tacloban City
(SGD) ELIAS B. ASUNCION Judge

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EXH. B.

On March 6, 1965, Dr. Arcadio Galapon and his


wife Sold a portion of Lot 1184-E with an area of
The above Order of October 23, 1963, was around 1,306 sq. meters to Judge Asuncion and
amended on November 11, 1963, only for the his wife, Victoria S. Asuncion (Exh. 11), which
purpose of giving authority to the Register of particular portion was declared by the latter for
Deeds of the Province of Leyte to issue the taxation purposes (Exh. F).
corresponding transfer certificates of title to the
respective adjudicatees in conformity with the
project of partition (see Exh. U).
On August 31, 1966, spouses Asuncion and
spouses Galapon conveyed their respective
shares and interest in Lot 1184-E to "The
One of the properties mentioned in the project Traders Manufacturing and Fishing Industries
of partition was Lot 1184 or rather one-half Inc." (Exit 15 & 16). At the time of said sale the
thereof with an area of 15,162.5 sq. meters. stockholders of the corporation were
This lot, which according to the decision was Dominador Arigpa Tan, Humilia Jalandoni Tan,
the exclusive property of the deceased Jaime Arigpa Tan, Judge Asuncion, and the
Francisco Reyes, was adjudicated in said project latter's wife, Victoria S. Asuncion, with Judge
of partition to the plaintiffs Luz, Anacorita Asuncion as the President and Mrs. Asuncion as
Ruperto, Adela, and Priscilla all surnamed Reyes the secretary (Exhs. E-4 to E-7). The Articles of
in equal shares, and when the project of Incorporation of "The Traders Manufacturing
partition was approved by the trial court the and Fishing Industries, Inc." which we shall
adjudicatees caused Lot 1184 to be subdivided henceforth refer to as "TRADERS" were
into five lots denominated as Lot 1184-A to registered with the Securities and Exchange
1184-E inclusive (Exh. V). Commission only on January 9, 1967 (Exh. E)
[pp. 378-385, rec.].

Lot 1184-D was conveyed to Enriqueta D.


Anota, a stenographer in Judge Asuncion's court Complainant Bernardita R. Macariola filed on
(Exhs. F, F-1 and V-1), while Lot 1184-E which August 9, 1968 the instant complaint dated
had an area of 2,172.5556 sq. meters was sold August 6, 1968 alleging four causes of action, to
on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) wit: [1] that respondent Judge Asuncion
who was issued transfer certificate of title No. violated Article 1491, paragraph 5, of the New
2338 of the Register of Deeds of the city of Civil Code in acquiring by purchase a portion of
Tacloban (Exh. 12). Lot No. 1184-E which was one of those
properties involved in Civil Case No. 3010

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decided by him; [2] that he likewise violated third and fourth causes of action, Justice Palma
Article 14, paragraphs I and 5 of the Code of recommended that respondent Judge be
Commerce, Section 3, paragraph H, of R.A. exonerated.
3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, Section 12, Rule XVIII of
the Civil Service Rules, and Canon 25 of the
Canons of Judicial Ethics, by associating himself The records also reveal that on or about
with the Traders Manufacturing and Fishing November 9 or 11, 1968 (pp. 481, 477, rec.),
Industries, Inc., as a stockholder and a ranking complainant herein instituted an action before
officer while he was a judge of the Court of First the Court of First Instance of Leyte, entitled
Instance of Leyte; [3] that respondent was guilty "Bernardita R. Macariola, plaintiff, versus
of coddling an impostor and acted in disregard Sinforosa R. Bales, et al., defendants," which
of judicial decorum by closely fraternizing with was docketed as Civil Case No. 4235, seeking
a certain Dominador Arigpa Tan who openly the annulment of the project of partition made
and publicly advertised himself as a practising pursuant to the decision in Civil Case No. 3010
attorney when in truth and in fact his name and the two orders issued by respondent Judge
does not appear in the Rolls of Attorneys and is approving the same, as well as the partition of
not a member of the Philippine Bar; and [4] that the estate and the subsequent conveyances
there was a culpable defiance of the law and with damages. It appears, however, that some
utter disregard for ethics by respondent Judge defendants were dropped from the civil case.
(pp. 1-7, rec.). For one, the case against Dr. Arcadio Galapon
was dismissed because he was no longer a real
party in interest when Civil Case No. 4234 was
filed, having already conveyed on March 6,
Respondent Judge Asuncion filed on September 1965 a portion of lot 1184-E to respondent
24, 1968 his answer to which a reply was filed Judge and on August 31, 1966 the remainder
on October 16, 1968 by herein complainant. In was sold to the Traders Manufacturing and
Our resolution of October 28, 1968, We Fishing Industries, Inc. Similarly, the case
referred this case to then Justice Cecilia Muoz against defendant Victoria Asuncion was
Palma of the Court of Appeals, for investigation, dismissed on the ground that she was no longer
report and recommendation. After hearing, the a real party in interest at the time the aforesaid
said Investigating Justice submitted her report Civil Case No. 4234 was filed as the portion of
dated May 27, 1971 recommending that Lot 1184 acquired by her and respondent Judge
respondent Judge should be reprimanded or from Dr. Arcadio Galapon was already sold on
warned in connection with the first cause of August 31, 1966 to the Traders Manufacturing
action alleged in the complaint, and for the and Fishing industries, Inc. Likewise, the cases
second cause of action, respondent should be against defendants Serafin P. Ramento, Catalina
warned in case of a finding that he is prohibited Cabus, Ben Barraza Go, Jesus Perez, Traders
under the law to engage in business. On the Manufacturing and Fishing Industries, Inc.,

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Alfredo R. Celestial and Pilar P. Celestial, (3) adjudging the plaintiff, Mrs. Bernardita R.
Leopoldo Petilla and Remedios Petilla, Salvador Macariola to pay defendant Judge Elias B.
Anota and Enriqueta Anota and Atty. Zotico A. Asuncion,
Tolete were dismissed with the conformity of
complainant herein, plaintiff therein, and her
counsel.
(a) the sum of FOUR HUNDRED THOUSAND
PESOS [P400,000.00] for moral damages;

On November 2, 1970, Judge Jose D.


Nepomuceno of the Court of First Instance of
Leyte, who was directed and authorized on June (b) the sum of TWO HUNDRED THOUSAND
2, 1969 by the then Secretary (now Minister) of PESOS [P200,000.001 for exemplary damages;
Justice and now Minister of National Defense
Juan Ponce Enrile to hear and decide Civil Case
No. 4234, rendered a decision, the dispositive
portion of which reads as follows: (c) the sum of FIFTY THOUSAND PESOS
[P50,000.00] for nominal damages; and

A. IN THE CASE AGAINST JUDGE ELIAS B.


ASUNCION (d) he sum of TEN THOUSAND PESOS
[PI0,000.00] for Attorney's Fees.

(1) declaring that only Branch IV of the


Court of First Instance of Leyte has jurisdiction B. IN THE CASE AGAINST THE DEFENDANT
to take cognizance of the issue of the legality MARIQUITA VILLASIN, FOR HERSELF AND FOR
and validity of the Project of Partition [Exhibit THE HEIRS OF THE DECEASED GERARDO
"B"] and the two Orders [Exhibits "C" and "C- VILLASIN
3"] approving the partition;

(1) Dismissing the complaint against the


(2) dismissing the complaint against Judge Elias defendants Mariquita Villasin and the heirs of
B. Asuncion; the deceased Gerardo Villasin;

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(2) Directing the plaintiff to pay the defendants It is further disclosed by the record that the
Mariquita Villasin and the heirs of Gerardo aforesaid decision was elevated to the Court of
Villasin the cost of the suit. Appeals upon perfection of the appeal on
February 22, 1971.

C. IN THE CASE AGAINST THE DEFENDANT


SINFOROSA R. BALES, ET AL., WHO WERE I
PLAINTIFFS IN CIVIL CASE NO. 3010

WE find that there is no merit in the contention


(1) Dismissing the complaint against defendants of complainant Bernardita R. Macariola, under
Sinforosa R. Bales, Adela R. Herrer, Priscilla R. her first cause of action, that respondent Judge
Solis, Luz R. Bakunawa, Anacorita R. Eng and Elias B. Asuncion violated Article 1491,
Ruperto O. Reyes. paragraph 5, of the New Civil Code in acquiring
by purchase a portion of Lot No. 1184-E which
was one of those properties involved in Civil
Case No. 3010. 'That Article provides:
D. IN THE CASE AGAINST DEFENDANT
BONIFACIO RAMO

Article 1491. The following persons cannot


acquire by purchase, even at a public or judicial
(1) Dismissing the complaint against action, either in person or through the
Bonifacio Ramo; mediation of another:

(2) Directing the plaintiff to pay the defendant xxx xxx xxx
Bonifacio Ramo the cost of the suit.

(5) Justices, judges, prosecuting attorneys,


SO ORDERED [pp. 531-533, rec.] clerks of superior and inferior courts, and other
officers and employees connected with the
administration of justice, the property and
rights in litigation or levied upon an execution
before the court within whose jurisdiction or

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territory they exercise their respective


functions; this prohibition includes the act of
acquiring by assignment and shall apply to Furthermore, respondent Judge did not buy the
lawyers, with respect to the property and rights lot in question on March 6, 1965 directly from
which may be the object of any litigation in the plaintiffs in Civil Case No. 3010 but from Dr.
which they may take part by virtue of their Arcadio Galapon who earlier purchased on July
profession [emphasis supplied]. 31, 1964 Lot 1184-E from three of the plaintiffs,
namely, Priscilla Reyes, Adela Reyes, and Luz R.
Bakunawa after the finality of the decision in
Civil Case No. 3010. It may be recalled that Lot
The prohibition in the aforesaid Article applies 1184 or more specifically one-half thereof was
only to the sale or assignment of the property adjudicated in equal shares to Priscilla Reyes,
which is the subject of litigation to the persons Adela Reyes, Luz Bakunawa, Ruperto Reyes and
disqualified therein. WE have already ruled that Anacorita Reyes in the project of partition, and
"... for the prohibition to operate, the sale or the same was subdivided into five lots
assignment of the property must take place denominated as Lot 1184-A to 1184-E. As
during the pendency of the litigation involving aforestated, Lot 1184-E was sold on July 31,
the property" (The Director of Lands vs. Ababa 1964 to Dr. Galapon for which he was issued
et al., 88 SCRA 513, 519 [1979], Rosario vda. de TCT No. 2338 by the Register of Deeds of
Laig vs. Court of Appeals, 86 SCRA 641, 646 Tacloban City, and on March 6, 1965 he sold a
[1978]). portion of said lot to respondent Judge and his
wife who declared the same for taxation
purposes only. The subsequent sale on August
31, 1966 by spouses Asuncion and spouses
In the case at bar, when the respondent Judge Galapon of their respective shares and interest
purchased on March 6, 1965 a portion of Lot in said Lot 1184-E to the Traders Manufacturing
1184-E, the decision in Civil Case No. 3010 and Fishing Industries, Inc., in which respondent
which he rendered on June 8, 1963 was already was the president and his wife was the
final because none of the parties therein filed secretary, took place long after the finality of
an appeal within the reglementary period; the decision in Civil Case No. 3010 and of the
hence, the lot in question was no longer subject subsequent two aforesaid orders therein
of the litigation. Moreover, at the time of the approving the project of partition.
sale on March 6, 1965, respondent's order
dated October 23, 1963 and the amended order
dated November 11, 1963 approving the
October 16, 1963 project of partition made While it appears that complainant herein filed
pursuant to the June 8, 1963 decision, had long on or about November 9 or 11, 1968 an action
become final for there was no appeal from said before the Court of First Instance of Leyte
orders. docketed as Civil Case No. 4234, seeking to

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annul the project of partition and the two It is also argued by complainant herein that the
orders approving the same, as well as the sale on July 31, 1964 of Lot 1184-E to Dr.
partition of the estate and the subsequent Arcadio Galapon by Priscilla Reyes, Adela Reyes
conveyances, the same, however, is of no and Luz R. Bakunawa was only a mere scheme
moment. to conceal the illegal and unethical transfer of
said lot to respondent Judge as a consideration
for the approval of the project of partition. In
this connection, We agree with the findings of
The fact remains that respondent Judge the Investigating Justice thus:
purchased on March 6, 1965 a portion of Lot
1184-E from Dr. Arcadio Galapon; hence, after
the finality of the decision which he rendered
on June 8, 1963 in Civil Case No. 3010 and his And so we are now confronted with this all-
two questioned orders dated October 23, 1963 important question whether or not the
and November 11, 1963. Therefore, the acquisition by respondent of a portion of Lot
property was no longer subject of litigation. 1184-E and the subsequent transfer of the
whole lot to "TRADERS" of which respondent
was the President and his wife the Secretary,
was intimately related to the Order of
The subsequent filing on November 9, or 11, respondent approving the project of partition,
1968 of Civil Case No. 4234 can no longer alter, Exh. A.
change or affect the aforesaid facts that the
questioned sale to respondent Judge, now
Court of Appeals Justice, was effected and
consummated long after the finality of the Respondent vehemently denies any interest or
aforesaid decision or orders. participation in the transactions between the
Reyeses and the Galapons concerning Lot 1184-
E, and he insists that there is no evidence
whatsoever to show that Dr. Galapon had
Consequently, the sale of a portion of Lot 1184- acted, in the purchase of Lot 1184-E, in
E to respondent Judge having taken place over mediation for him and his wife. (See p. 14 of
one year after the finality of the decision in Civil Respondent's Memorandum).
Case No. 3010 as well as the two orders
approving the project of partition, and not
during the pendency of the litigation, there was
no violation of paragraph 5, Article 1491 of the xxx xxx xxx
New Civil Code.

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On this point, I agree with respondent that statement of respondent, his affidavit being the
there is no evidence in the record showing that only one that was presented as respondent's
Dr. Arcadio Galapon acted as a mere "dummy" Exh. 10, certain actuations of Mrs. Macariola
of respondent in acquiring Lot 1184-E from the lead this investigator to believe that she knew
Reyeses. Dr. Galapon appeared to this the contents of the project of partition, Exh. A,
investigator as a respectable citizen, credible and that she gave her conformity thereto. I
and sincere, and I believe him when he testified refer to the following documents:
that he bought Lot 1184-E in good faith and for
valuable consideration from the Reyeses
without any intervention of, or previous
understanding with Judge Asuncion (pp. 391- 1) Exh. 9 Certified true copy of OCT No.
394, rec.). 19520 covering Lot 1154 of the Tacloban
Cadastral Survey in which the deceased
Francisco Reyes holds a "1/4 share" (Exh. 9-a).
On tills certificate of title the Order dated
On the contention of complainant herein that November 11, 1963, (Exh. U) approving the
respondent Judge acted illegally in approving project of partition was duly entered and
the project of partition although it was not registered on November 26, 1963 (Exh. 9-D);
signed by the parties, We quote with approval
the findings of the Investigating Justice, as
follows:
2) Exh. 7 Certified copy of a deed of
absolute sale executed by Bernardita Reyes
Macariola on October 22, 1963, conveying to
1. I agree with complainant that Dr. Hector Decena the one-fourth share of the
respondent should have required the signature late Francisco Reyes-Diaz in Lot 1154. In this
of the parties more particularly that of Mrs. deed of sale the vendee stated that she was the
Macariola on the project of partition submitted absolute owner of said one-fourth share, the
to him for approval; however, whatever error same having been adjudicated to her as her
was committed by respondent in that respect share in the estate of her father Francisco Reyes
was done in good faith as according to Judge Diaz as per decision of the Court of First
Asuncion he was assured by Atty. Bonifacio Instance of Leyte under case No. 3010 (Exh. 7-
Ramo, the counsel of record of Mrs. Macariola, A). The deed of sale was duly registered and
That he was authorized by his client to submit annotated at the back of OCT 19520 on
said project of partition, (See Exh. B and tsn p. December 3, 1963 (see Exh. 9-e).
24, January 20, 1969). While it is true that such
written authority if there was any, was not
presented by respondent in evidence, nor did
Atty. Ramo appear to corroborate the

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In connection with the abovementioned been kept ignorant of the proceedings in civil
documents it is to be noted that in the project case 3010 relative to the project of partition.
of partition dated October 16, 1963, which was
approved by respondent on October 23, 1963,
followed by an amending Order on November
11, 1963, Lot 1154 or rather 1/4 thereof was
adjudicated to Mrs. Macariola. It is this 1/4 Complainant also assails the project of partition
share in Lot 1154 which complainant sold to Dr. because according to her the properties
Decena on October 22, 1963, several days after adjudicated to her were insignificant lots and
the preparation of the project of partition. the least valuable. Complainant, however, did
not present any direct and positive evidence to
prove the alleged gross inequalities in the
choice and distribution of the real properties
Counsel for complainant stresses the view, when she could have easily done so by
however, that the latter sold her one-fourth presenting evidence on the area, location, kind,
share in Lot 1154 by virtue of the decision in the assessed and market value of said
Civil Case 3010 and not because of the project properties. Without such evidence there is
of partition, Exh. A. Such contention is absurd nothing in the record to show that there were
because from the decision, Exh. C, it is clear that inequalities in the distribution of the properties
one-half of one- fourth of Lot 1154 belonged to of complainant's father (pp. 386389, rec.).
the estate of Francisco Reyes Diaz while the
other half of said one-fourth was the share of
complainant's mother, Felisa Espiras; in other
words, the decision did not adjudicate the Finally, while it is. true that respondent Judge
whole of the one-fourth of Lot 1154 to the did not violate paragraph 5, Article 1491 of the
herein complainant (see Exhs. C-3 & C-4). New Civil Code in acquiring by purchase a
Complainant became the owner of the entire portion of Lot 1184-E which was in litigation in
one-fourth of Lot 1154 only by means of the his court, it was, however, improper for him to
project of partition, Exh. A. Therefore, if Mrs. have acquired the same. He should be
Macariola sold Lot 1154 on October 22, 1963, it reminded of Canon 3 of the Canons of Judicial
was for no other reason than that she was wen Ethics which requires that: "A judge's official
aware of the distribution of the properties of conduct should be free from the appearance of
her deceased father as per Exhs. A and B. It is impropriety, and his personal behavior, not only
also significant at this point to state that Mrs. upon the bench and in the performance of
Macariola admitted during the cross- judicial duties, but also in his everyday life,
examination that she went to Tacloban City in should be beyond reproach." And as aptly
connection with the sale of Lot 1154 to Dr. observed by the Investigating Justice: "... it was
Decena (tsn p. 92, November 28, 1968) from unwise and indiscreet on the part of respondent
which we can deduce that she could not have to have purchased or acquired a portion of a

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piece of property that was or had been in With respect to the second cause of action, the
litigation in his court and caused it to be complainant alleged that respondent Judge
transferred to a corporation of which he and his violated paragraphs 1 and 5, Article 14 of the
wife were ranking officers at the time of such Code of Commerce when he associated himself
transfer. One who occupies an exalted position with the Traders Manufacturing and Fishing
in the judiciary has the duty and responsibility Industries, Inc. as a stockholder and a ranking
of maintaining the faith and trust of the officer, said corporation having been organized
citizenry in the courts of justice, so that not only to engage in business. Said Article provides
must he be truly honest and just, but his that:
actuations must be such as not give cause for
doubt and mistrust in the uprightness of his
administration of justice. In this particular case
of respondent, he cannot deny that the Article 14 The following cannot engage in
transactions over Lot 1184-E are damaging and commerce, either in person or by proxy, nor can
render his actuations open to suspicion and they hold any office or have any direct,
distrust. Even if respondent honestly believed administrative, or financial intervention in
that Lot 1184-E was no longer in litigation in his commercial or industrial companies within the
court and that he was purchasing it from a third limits of the districts, provinces, or towns in
person and not from the parties to the which they discharge their duties:
litigation, he should nonetheless have refrained
from buying it for himself and transferring it to
a corporation in which he and his wife were
financially involved, to avoid possible suspicion 1. Justices of the Supreme Court, judges
that his acquisition was related in one way or and officials of the department of public
another to his official actuations in civil case prosecution in active service. This provision
3010. The conduct of respondent gave cause for shall not be applicable to mayors, municipal
the litigants in civil case 3010, the lawyers judges, and municipal prosecuting attorneys nor
practising in his court, and the public in general to those who by chance are temporarily
to doubt the honesty and fairness of his discharging the functions of judge or
actuations and the integrity of our courts of prosecuting attorney.
justice" (pp. 395396, rec.).

xxx xxx xxx


II

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5. Those who by virtue of laws or special de Ultramar," which was extended to the
provisions may not engage in commerce in a Philippines by the Royal Decree of August 6,
determinate territory. 1888, and took effect as law in this jurisdiction
on December 1, 1888.

It is Our considered view that although the


aforestated provision is incorporated in the Upon the transfer of sovereignty from Spain to
Code of Commerce which is part of the the United States and later on from the United
commercial laws of the Philippines, it, however, States to the Republic of the Philippines, Article
partakes of the nature of a political law as it 14 of this Code of Commerce must be deemed
regulates the relationship between the to have been abrogated because where there is
government and certain public officers and change of sovereignty, the political laws of the
employees, like justices and judges. former sovereign, whether compatible or not
with those of the new sovereign, are
automatically abrogated, unless they are
expressly re-enacted by affirmative act of the
Political Law has been defined as that branch of new sovereign.
public law which deals with the organization
and operation of the governmental organs of
the State and define the relations of the state
with the inhabitants of its territory (People vs. Thus, We held in Roa vs. Collector of Customs
Perfecto, 43 Phil. 887, 897 [1922]). It may be (23 Phil. 315, 330, 311 [1912]) that:
recalled that political law embraces
constitutional law, law of public corporations,
administrative law including the law on public
officers and elections. Specifically, Article 14 of By well-settled public law, upon the cession of
the Code of Commerce partakes more of the territory by one nation to another, either
nature of an administrative law because it following a conquest or otherwise, ... those laws
regulates the conduct of certain public officers which are political in their nature and pertain to
and employees with respect to engaging in the prerogatives of the former government
business: hence, political in essence. immediately cease upon the transfer of
sovereignty. (Opinion, Atty. Gen., July 10, 1899).

It is significant to note that the present Code of


Commerce is the Spanish Code of Commerce of While municipal laws of the newly acquired
1885, with some modifications made by the territory not in conflict with the, laws of the
"Commission de Codificacion de las Provincias new sovereign continue in force without the

14
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express assent or affirmative act of the relations of the ceded region are totally
conqueror, the political laws do not. (Halleck's abrogated. "
Int. Law, chap. 34, par. 14). However, such
political laws of the prior sovereignty as are not
in conflict with the constitution or institutions
of the new sovereign, may be continued in There appears no enabling or affirmative act
force if the conqueror shall so declare by that continued the effectivity of the aforestated
affirmative act of the commander-in-chief provision of the Code of Commerce after the
during the war, or by Congress in time of peace. change of sovereignty from Spain to the United
(Ely's Administrator vs. United States, 171 U.S. States and then to the Republic of the
220, 43 L. Ed. 142). In the case of American and Philippines. Consequently, Article 14 of the
Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. Code of Commerce has no legal and binding
[26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice effect and cannot apply to the respondent, then
Marshall said: Judge of the Court of First Instance, now
Associate Justice of the Court of Appeals.

On such transfer (by cession) of territory, it has


never been held that the relations of the It is also argued by complainant herein that
inhabitants with each other undergo any respondent Judge violated paragraph H, Section
change. Their relations with their former 3 of Republic Act No. 3019, otherwise known as
sovereign are dissolved, and new relations are the Anti-Graft and Corrupt Practices Act, which
created between them and the government provides that:
which has acquired their territory. The same act
which transfers their country, transfers the
allegiance of those who remain in it; and the
law which may be denominated political, is Sec. 3. Corrupt practices of public officers. In
necessarily changed, although that which addition to acts or omissions of public officers
regulates the intercourse and general conduct already penalized by existing law, the following
of individuals, remains in force, until altered by shall constitute corrupt practices of any public
the newly- created power of the State. officer and are hereby declared to be unlawful:

Likewise, in People vs. Perfecto (43 Phil. 887, xxx xxx xxx
897 [1922]), this Court stated that: "It is a
general principle of the public law that on
acquisition of territory the previous political

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(h) Directly or indirectly having financial or It does not appear also from the records that
pecuniary interest in any business, contract or the aforesaid corporation gained any undue
transaction in connection with which he advantage in its business operations by reason
intervenes or takes part in his official capacity, of respondent's financial involvement in it, or
or in which he is prohibited by the Constitution that the corporation benefited in one way or
or by any Iaw from having any interest. another in any case filed by or against it in
court. It is undisputed that there was no case
filed in the different branches of the Court of
First Instance of Leyte in which the corporation
Respondent Judge cannot be held liable under was either party plaintiff or defendant except
the aforestated paragraph because there is no Civil Case No. 4234 entitled "Bernardita R.
showing that respondent participated or Macariola, plaintiff, versus Sinforosa O. Bales, et
intervened in his official capacity in the business al.," wherein the complainant herein sought to
or transactions of the Traders Manufacturing recover Lot 1184-E from the aforesaid
and Fishing Industries, Inc. In the case at bar, corporation. It must be noted, however, that
the business of the corporation in which Civil Case No. 4234 was filed only on November
respondent participated has obviously no 9 or 11, 1968 and decided on November 2, 1970
relation or connection with his judicial office. by CFI Judge Jose D. Nepomuceno when
The business of said corporation is not that kind respondent Judge was no longer connected
where respondent intervenes or takes part in with the corporation, having disposed of his
his capacity as Judge of the Court of First interest therein on January 31, 1967.
Instance. As was held in one case involving the
application of Article 216 of the Revised Penal
Code which has a similar prohibition on public
officers against directly or indirectly becoming Furthermore, respondent is not liable under the
interested in any contract or business in which same paragraph because there is no provision
it is his official duty to intervene, "(I)t is not in both the 1935 and 1973 Constitutions of the
enough to be a public official to be subject to Philippines, nor is there an existing law
this crime; it is necessary that by reason of his expressly prohibiting members of the Judiciary
office, he has to intervene in said contracts or from engaging or having interest in any lawful
transactions; and, hence, the official who business.
intervenes in contracts or transactions which
have no relation to his office cannot commit
this crime.' (People vs. Meneses, C.A. 40 O.G.
11th Supp. 134, cited by Justice Ramon C. It may be pointed out that Republic Act No. 296,
Aquino; Revised Penal Code, p. 1174, Vol. 11 as amended, also known as the Judiciary Act of
[1976]). 1948, does not contain any prohibition to that
effect. As a matter of fact, under Section 77 of
said law, municipal judges may engage in

16
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teaching or other vocation not involving the the Anti-Graft and Corrupt Practices Act
practice of law after office hours but with the because the last portion of said paragraph
permission of the district judge concerned. speaks of a prohibition by the Constitution or
law on any public officer from having any
interest in any business and not by a mere
administrative rule or regulation. Thus, a
Likewise, Article 14 of the Code of Commerce violation of the aforesaid rule by any officer or
which prohibits judges from engaging in employee in the civil service, that is, engaging in
commerce is, as heretofore stated, deemed private business without a written permission
abrogated automatically upon the transfer of from the Department Head may not constitute
sovereignty from Spain to America, because it is graft and corrupt practice as defined by law.
political in nature.

On the contention of complainant that


Moreover, the prohibition in paragraph 5, respondent Judge violated Section 12, Rule XVIII
Article 1491 of the New Civil Code against the of the Civil Service Rules, We hold that the Civil
purchase by judges of a property in litigation Service Act of 1959 (R.A. No. 2260) and the Civil
before the court within whose jurisdiction they Service Rules promulgated thereunder,
perform their duties, cannot apply to particularly Section 12 of Rule XVIII, do not
respondent Judge because the sale of the lot in apply to the members of the Judiciary. Under
question to him took place after the finality of said Section 12: "No officer or employee shall
his decision in Civil Case No. 3010 as well as his engage directly in any private business,
two orders approving the project of partition; vocation, or profession or be connected with
hence, the property was no longer subject of any commercial, credit, agricultural or industrial
litigation. undertaking without a written permission from
the Head of Department ..."

In addition, although Section 12, Rule XVIII of


the Civil Service Rules made pursuant to the It must be emphasized at the outset that
Civil Service Act of 1959 prohibits an officer or respondent, being a member of the Judiciary, is
employee in the civil service from engaging in covered by Republic Act No. 296, as amended,
any private business, vocation, or profession or otherwise known as the Judiciary Act of 1948
be connected with any commercial, credit, and by Section 7, Article X, 1973 Constitution.
agricultural or industrial undertaking without a
written permission from the head of
department, the same, however, may not fall
within the purview of paragraph h, Section 3 of

17
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Under Section 67 of said law, the power to However, judges cannot be considered as
remove or dismiss judges was then vested in subordinate civil service officers or employees
the President of the Philippines, not in the subject to the disciplinary authority of the
Commissioner of Civil Service, and only on two Commissioner of Civil Service; for, certainly, the
grounds, namely, serious misconduct and Commissioner is not the head of the Judicial
inefficiency, and upon the recommendation of Department to which they belong. The Revised
the Supreme Court, which alone is authorized, Administrative Code (Section 89) and the Civil
upon its own motion, or upon information of Service Law itself state that the Chief Justice is
the Secretary (now Minister) of Justice to the department head of the Supreme Court
conduct the corresponding investigation. (Sec. 20, R.A. No. 2260) [1959]); and under the
Clearly, the aforesaid section defines the 1973 Constitution, the Judiciary is the only
grounds and prescribes the special procedure other or second branch of the government (Sec.
for the discipline of judges. 1, Art. X, 1973 Constitution). Besides, a violation
of Section 12, Rule XVIII cannot be considered
as a ground for disciplinary action against
judges because to recognize the same as
And under Sections 5, 6 and 7, Article X of the applicable to them, would be adding another
1973 Constitution, only the Supreme Court can ground for the discipline of judges and, as
discipline judges of inferior courts as well as aforestated, Section 67 of the Judiciary Act
other personnel of the Judiciary. recognizes only two grounds for their removal,
namely, serious misconduct and inefficiency.

It is true that under Section 33 of the Civil


Service Act of 1959: "The Commissioner may, Moreover, under Section 16(i) of the Civil
for ... violation of the existing Civil Service Law Service Act of 1959, it is the Commissioner of
and rules or of reasonable office regulations, or Civil Service who has original and exclusive
in the interest of the service, remove any jurisdiction "(T)o decide, within one hundred
subordinate officer or employee from the twenty days, after submission to it, all
service, demote him in rank, suspend him for administrative cases against permanent officers
not more than one year without pay or fine him and employees in the competitive service, and,
in an amount not exceeding six months' salary." except as provided by law, to have final
Thus, a violation of Section 12 of Rule XVIII is a authority to pass upon their removal,
ground for disciplinary action against civil separation, and suspension and upon all
service officers and employees. matters relating to the conduct, discipline, and
efficiency of such officers and employees; and
prescribe standards, guidelines and regulations
governing the administration of discipline"
(emphasis supplied). There is no question that a

18
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judge belong to the non-competitive or arouse the suspicion that such relations warp or
unclassified service of the government as a bias his judgment, or prevent his impartial
Presidential appointee and is therefore not attitude of mind in the administration of his
covered by the aforesaid provision. WE have judicial duties. ...
already ruled that "... in interpreting Section
16(i) of Republic Act No. 2260, we emphasized
that only permanent officers and employees
who belong to the classified service come under WE are not, however, unmindful of the fact that
the exclusive jurisdiction of the Commissioner respondent Judge and his wife had withdrawn
of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA on January 31, 1967 from the aforesaid
710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA corporation and sold their respective shares to
619 [1963]). third parties, and it appears also that the
aforesaid corporation did not in anyway benefit
in any case filed by or against it in court as there
was no case filed in the different branches of
Although the actuation of respondent Judge in the Court of First Instance of Leyte from the
engaging in private business by joining the time of the drafting of the Articles of
Traders Manufacturing and Fishing Industries, Incorporation of the corporation on March 12,
Inc. as a stockholder and a ranking officer, is not 1966, up to its incorporation on January 9,
violative of the provissions of Article 14 of the 1967, and the eventual withdrawal of
Code of Commerce and Section 3(h) of the Anti- respondent on January 31, 1967 from said
Graft and Corrupt Practices Act as well as corporation. Such disposal or sale by
Section 12, Rule XVIII of the Civil Service Rules respondent and his wife of their shares in the
promulgated pursuant to the Civil Service Act of corporation only 22 days after the incorporation
1959, the impropriety of the same is clearly of the corporation, indicates that respondent
unquestionable because Canon 25 of the realized that early that their interest in the
Canons of Judicial Ethics expressly declares that: corporation contravenes the aforesaid Canon
25. Respondent Judge and his wife therefore
deserve the commendation for their immediate
withdrawal from the firm after its incorporation
A judge should abstain from making personal and before it became involved in any court
investments in enterprises which are apt to be litigation
involved in litigation in his court; and, after his
accession to the bench, he should not retain
such investments previously made, longer than
a period sufficient to enable him to dispose of III
them without serious loss. It is desirable that he
should, so far as reasonably possible, refrain
from all relations which would normally tend to

19
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With respect to the third and fourth causes of "Now with respect to the allegation of
action, complainant alleged that respondent complainant that respondent is guilty of
was guilty of coddling an impostor and acted in fraternizing with Dominador Arigpa Tan to the
disregard of judicial decorum, and that there extent of permitting his wife to be a godmother
was culpable defiance of the law and utter of Mr. Tan's child at baptism (Exh. M & M-1),
disregard for ethics. WE agree, however, with that fact even if true did not render respondent
the recommendation of the Investigating Justice guilty of violating any canon of judicial ethics as
that respondent Judge be exonerated because long as his friendly relations with Dominador A.
the aforesaid causes of action are groundless, Tan and family did not influence his official
and WE quote the pertinent portion of her actuations as a judge where said persons were
report which reads as follows: concerned. There is no tangible convincing
proof that herein respondent gave any undue
privileges in his court to Dominador Arigpa Tan
or that the latter benefitted in his practice of
The basis for complainant's third cause of action law from his personal relations with
is the claim that respondent associated and respondent, or that he used his influence, if he
closely fraternized with Dominador Arigpa Tan had any, on the Judges of the other branches of
who openly and publicly advertised himself as a the Court to favor said Dominador Tan.
practising attorney (see Exhs. I, I-1 and J) when
in truth and in fact said Dominador Arigpa Tan
does not appear in the Roll of Attorneys and is
not a member of the Philippine Bar as certified Of course it is highly desirable for a member of
to in Exh. K. the judiciary to refrain as much as possible from
maintaining close friendly relations with
practising attorneys and litigants in his court so
as to avoid suspicion 'that his social or business
The "respondent denies knowing that relations or friendship constitute an element in
Dominador Arigpa Tan was an "impostor" and determining his judicial course" (par. 30, Canons
claims that all the time he believed that the of Judicial Ethics), but if a Judge does have
latter was a bona fide member of the bar. I see social relations, that in itself would not
no reason for disbelieving this assertion of constitute a ground for disciplinary action
respondent. It has been shown by complainant unless it be clearly shown that his social
that Dominador Arigpa Tan represented himself relations be clouded his official actuations with
publicly as an attorney-at-law to the extent of bias and partiality in favor of his friends (pp.
putting up a signboard with his name and the 403-405, rec.).
words "Attorney-at Law" (Exh. I and 1- 1) to
indicate his office, and it was but natural for
respondent and any person for that matter to
have accepted that statement on its face value.

20
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In conclusion, while respondent Judge Facts: When the decision in Civil Case No. 3010
Asuncion, now Associate Justice of the Court of rendered by respondent Hon. Judge Elias B.
Appeals, did not violate any law in acquiring by Asuncion of Court of First Instance of Leyte
purchase a parcel of land which was in litigation
became final on June 8, 1863 for lack of an
in his court and in engaging in business by
joining a private corporation during his appeal, a project of partition was submitted to
incumbency as judge of the Court of First him which he later approved in an Order dated
Instance of Leyte, he should be reminded to be October 23, 1963. Among the parties thereto
more discreet in his private and business was complainant Bernardita R. Macariola.
activities, because his conduct as a member of
the Judiciary must not only be characterized
with propriety but must always be above
suspicion. One of the properties mentioned in the project
of partition was Lot 1184. This lot according to
the decision rendered by Judge Asuncion was
adjudicated to the plaintiffs Reyes in equal
WHEREFORE, THE RESPONDENT ASSOCIATE shares subdividing Lot 1184 into five lots
JUSTICE OF THE COURT OF APPEALS IS HEREBY
denominated as Lot 1184-A to 1184-E.
REMINDED TO BE MORE DISCREET IN HIS
PRIVATE AND BUSINESS ACTIVITIES.

On July 31, 1964 Lot 1184-E was sold to Dr.


Arcadio Galapon who later sold a portion of Lot
SO ORDERED.
1184-E to Judge Asuncion and his wife Victoria
Asuncion. Thereafter spouses Asuncion and
Macariola case digest spouses Galapon conveyed their respective
Macariola v. Asuncion Case Digest shares and interests in Lot 1184-E to the
Traders Manufacturing and Fishing Industries
Macariola v. Asuncion, 114 SCRA 77, May 31, Inc. wherein Judge Asuncion was the president.
1982

(En Banc), J. Makasiar


Macariola then filed an instant complaint on
August 9, 1968 docketed as Civil Case No. 4234
in the CFI of Leyte against Judge Asuncion with
"acts unbecoming a judge" alleging that Judge
Asuncion in acquiring by purchase a portion of

21
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Lot 1184-E violated Article 1491 par. 5 of the Ruling: No. The respondent Judge Asuncion's
New Civil Code, Art. 14, pars. 1 and 5 of the actuation does not constitute of an "act
Code of Commerce, Sec. 3 par. H of R.A. 3019, unbecoming of a judge." But he is reminded to
Sec. 12 Rule XVIII of the Civil Service Rules and be more discreet in his private and business
Canon 25 of the Canons of Judicial Ethics. activities.

On November 2, 1970, Judge Jose Nepomuceno SC ruled that the prohibition in Article 1491 par.
of the CFI of Leyte rendered a decision 5 of the New Civil Code applies only to operate,
dismissing the complaints against Judge the sale or assignment of the property during
Asuncion. the pendency of the litigation involving the
property. Respondent judge purchased a
portion of Lot 1184-E on March 6, 1965, the in
After the investigation, report and Civil Case No. 3010 which he rendered on June
recommendation conducted by Justice Cecilia 8, 1963 was already final because none of the
Munoz Palma of the Court of Appeals, she parties therein filed an appeal within the
recommended on her decision dated March 27, reglementary period. Hence, the lot in question
1971 that Judge Asuncion be exonerated. was no longer subject to litigation.
Furthermore, Judge Asuncion did not buy the
lot in question directly from the plaintiffs in Civil
Case No. 3010 but from Dr. Arcadio Galapon
who earlier purchased Lot1184-E from the
Issue: Does Judge Asuncion, now Associate plaintiffs Reyes after the finality of the decision
Justice of Court of Appeals violated any law in in Civil Case No. 3010.
acquiring by purchase a parcel of Lot 1184-E
which he previously decided in a Civil Case No.
3010 and his engagement in business by joining SC stated that upon the transfer of sovereignty
a private corporation during his incumbency as from Spain to the US and later on from the US
a judge of the CFI of Leyte constitute an "act to the Republic of the Philippines, Article 14 of
unbecoming of a judge"? Code of Commerce must be deemed to have
been abrogated because where there is change
of sovereignty, the political laws of the former
sovereign, whether compatible or not with

22
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those of the new sovereign, are automatically On the basis of the peoples mandate
abrogated, unless they are expressly re-enacted clearly manifested last February 7, I and
by affirmative act of the new sovereign. There Salvador H. Laurel are taking power in
appears no enabling or affirmative act that the name and by the will of the Filipino
continued the effectivity of the aforestated
people as President and Vice President,
respectively.
provision of the Code of Commerce,
consequently, Art. 14 of the Code of Commerce
The people expect a reorganization of
has no legal and binding effect and cannot government. Merit will be rewarded. As
apply to the respondent Judge Asuncion. a first step to restore public confidence I
expect all appointed public officials to
submit their courtesy resignations
beginning with the members of the
Respondent Judge cannot also be held liable to
Supreme Court.
par. H, Section 3 of R.A. 3019 because the
business of the corporation in which I pledge to do justice to the numerous
respondent participated had obviously no victims of human rights violations.
relation or connection with his judicial office.
Consistent with the demands of the
sovereign people, we pledge a
government dedicated to uphold truth
SC stated that respondent judge and his wife
and justice, morality and decency in
deserve the commendation for their immediate government, freedom and democracy.
withdrawal from the firm 22 days after its
incorporation realizing that their interest To help me run the government, I have
contravenes the Canon 25 of the Canons of issued Executive Order No. 1 dated
Judicial Ethics. February 25, 1986 appointing key
cabinet ministers and creating certain
task forces.
Proclamation no. 1
I ask our people not to relax but to be
even more vigilant in this one moment of
PROCLAMATION NO. 1 triumph. The Motherland cannot thank
them enough. Yet, we all realize that
Sovereignty resides in the people and more is required of each and everyone
all government authority emanates from of us to redeem our promises and prove
them.

23
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to create a truly just society for our WHEREAS, the heroic action of the
people. people was done in defiance of the
provisions of the 1973 Constitution, as
This is just the beginning. The same amended;
spirit which animated our campaign, and
has led to our triumph, will once more WHEREAS, the direct mandate of the
prevail, by the power of the people and people as manifested by their
by the grace of God. extraordinary action demands the
complete reorganization of the
Done in the City of Manila, this 25th of government, restoration of democracy,
February in the year of Our Lord, protection of basic rights, rebuilding of
nineteen hundred and eighty-six. confidence in the entire government
system, eradication of graft and
(Sgd.) CORAZON C. AQUINO corruption, restoration of peace and
order, maintenance of the supremacy of
President civilian authority over the military, and
the transition to government under a
New Constitution in the shortest time
Proclamation no. 3 possible;
PROCLAMATION NO. 3
WHEREAS, during the period of
DECLARING A NATIONAL POLICY transition to a New Constitution it must
TO IMPLEMENT REFORMS be guaranteed that the government will
MANDATED BY THE PEOPLE respect basic human rights and
PROTECTING THEIR BASIC RIGHTS, fundamental freedoms;
ADOPTING A PROVISIONAL
CONSTITUTION, AND PROVIDING WHEREFORE, I, CORAZON C.
FOR AN ORDERLY TRANSITION TO AQUINO, President of the Philippines,
A GOVERNMENT UNDER A NEW by virtue of the power vested in me by
CONSTITUTION the sovereign mandate of the people; do
hereby promulgate the following
WHEREAS, the new government was Constitution:
installed through a direct exercise of the
power of the Filipino people assisted by PROVISIONAL CONSTITUTION
units of the New Armed Forces of the OF
Philippines; THE REPUBLIC OF THE PHILIPPINES

24
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ARTICLE 1 SECTION 1. Until a legislature is


ADOPTION OF CERTAIN elected and convened under a New
PROVISIONS OF THE Constitution, the President shall
1973 CONSTITUTION, AS AMENDED continue to exercise legislative power.

SECTION 1. The provisions of ARTICLE The President shall give priority to


I (National Territory), ARTICLE III measures to achieve the mandate of the
(Citizenship), ARTICLE IV (Bill of people to:
Rights), ARTICLE V (Duties and
Obligations of Citizens), and ARTICLE a) Completely reorganize the
VI (Suffrage) of the 1973 Constitution, government and eradicate unjust and
as amended, remain in the force and oppressive structures, and all iniquitous
effect and are hereby adopted in toto as vestiges of the previous regime;
part of this Provisional Constitution.
b) Make effective the guarantees of
SECTION 2. The provision of ARTICLE civil, political, human, social, economic
II (Declaration of Principles and State and cultural rights and freedoms of the
Policies), ARTICLE VII (The President), Filipino people, and provide remedies
ARTICLE X (The Judiciary), ARTICLE against violations thereof;
XI (Local Government), ARTICLE XIII
(Accountability of Public Officers), c) Rehabilitate the economy and
ARTICLE XIV (The National Economy promote the nationalist aspirations of
and Patrimony of the Nation), ARTICLE the people;
XV (General Provisions) of the 1973
Constitution, as amended, are hereby d) Recover ill-gotten properties
adopted as part of this Provisional amassed by the leaders and supporters
Constitution, as amended, are hereby of the previous regime and protect the
adopted as part of this Provisional interest of the people through orders of
Constitution, insofar as they are not sequestration or freezing of assets of
inconsistent with the provisions of this accounts;
Proclamation.
e) Eradicate graft and corruption in
ARTICLE II government and punish those guilty
THE PRESIDENT, thereof; and,
THE VICE-PRESIDENT, AND THE
CABINET

25
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f) Restore peace and order, settle Article VII, and in Section 6 and 7 Article
the problem of insurgency, and pursue IX, respectively, of the 1973
national reconciliation based on justice. Constitution, as amended.

SECTION 2. The President shall be ARTICLE III


assisted by a Cabinet which shall be GOVERNMENT REORGANIZATION
composed of Ministers with or without
portfolio who shall be appointed by the SECTION 1. In the reorganization of the
President. They shall be accountable to government, priority shall be given to
and hold office at the pleasure of the measures to promote economy,
President. efficiency, and the eradication of graft
and corruption.
SECTION 3. The President shall have
control of and exercise general SECTION 2. All elective and appointive
supervision over all local governments. officials and employees under the 1973
Constitution shall continue in the office
SECTION 4. In case of permanent until otherwise provided by proclamation
vacancy arising from death, incapacity or executive order or upon the
or resignation of the President, the Vice- designation or appointment and
President shall become President. qualification of their successors, if such
is made within a period of one year from
In case of death, permanent incapacity, February 25, 1986.
or resignation of the Vice-President, the
Cabinet shall choose from among SECTION 3. Any public office or
themselves the Minister with portfolio employees separated from the service
who shall act as President. as a result of the reorganization effected
under this Proclamation shall, if entitled
SECTION 5. The Vice-President may be under the laws then in force, receive the
appointed Member of the Cabinet and retirement and other benefits accuring
may perform such other functions as thereunder.
may be assigned to him by the
President. SECTION 4. The records, equipment,
buildings, facilities and other properties
SECTION 6. The President, the Vice- of all government offices shall be
President, and the Members of the carefully preserved. In case any office or
Cabinet shall be subject to the body is abolished or reorganized
disabilities provided for in Section 8, pursuant to this Proclamation, its funds

26
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and properties shall be transferred to draft a New Constitution. The


the office or body to which its powers, Commission shall be composed of not
functions, and responsibilities less than thirty (30) nor more than fifty
substantially pertain. (50) natural born citizens of the
Philippines, of recognized probity,
ARTICLE IV known for their independence,
EXISTING LAWS nationalism and patriotism. They shall
be chosen by the President after
SECTION 1. All existing laws, decrees, consultation with various sectors of
executive orders, proclamations, letters society.
of instruction, implementing rules and
regulations, and other executive SECTION 2. The Commission shall
issuances not inconsistent with this complete its work within as short a
Proclamation shall remain operative period as may be consistent with the
until amended, modified, or repealed by need both to hasten the return of normal
the President or the regular legislative constitutional government to draft a
body to be established under a New document truly reflective of the ideals
Constitution. and aspirations of the Filipino people.

SECTION 2. The President may review SECTION 3. The Commission shall


all contracts, concessions, permits, or conduct public hearings to insure that
other forms of privileges for the the people will have adequate
exploration, development, exploitation, participation in the formulation of the
or utilization of natural resources New Constitution.
entered into, granted, issued, or
acquired before the date of this SECTION 4. The plenary session of the
proclamation and when the national Commission shall be public and fully
interest requires, amend, modify, or recorded.
revoke them.
SECTION 5. The New Constitution shall
ARTICLE V be presented by the Commission to the
ADOPTION OF A NEW President who shall fix the date for the
CONSTITUTION holding of a plebiscite. It shall become
valid and effective upon ratification by a
SECTION 1. Within sixty (60) days from majority of the votes cast in such
date of this Proclamation, a Commission plebiscite which shall be held within a
shall be appointed by the President to period of sixty (60) days following its
submission to the President.
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ARTICLE VI Lawyers League


HOLDING OF ELECTIONS LAWYERS LEAGUE FOR A BETTER PHILIPPINES
vs. PRES. AQUINO
SECTION 1. National elections shall be
held as may be provided by the New G.R. NO. 73748, May 22, 1986
Constitution.

SECTION 2. Local elections shall be


held on a date to be determined by the FACTS:
President which shall be held on a date
to be determined by the President which President Corazon Aquino issued Proclamation
shall not be earlier than the date of the No. 1 on February 25, 1986 announcing that she
plebiscite for the ratification of the New and Vice President Laurel were taking power.
Constitution. On March 25, 1986, proclamation No.3 was
issued providing the basis of the Aquino
ARTICLE VII government assumption of power by stating
EFFECTIVE DATE that the "new government was installed
through a direct exercise of the power of the
SECTION 1. This Proclamation shall Filipino people assisted by units of the New
take effect upon its promulgation by the
Armed Forces of the Philippines."
President.

SECTION 2. Pursuant to the letter and


spirit of this Proclamation, a Petitioners alleged that the Aquino government
consolidated official text of the is illegal because it was not established
Provisional Constitution shall be pursuant to the 1973 Constitution.
promulgated by the President and
published in English and Pilipino in the
official Gazette and in newspapers of
general circulation to insure widespread ISSUE:
dissemination.
Whether or not the government of Corazon
DONE in the City of Manila, the 25thof Aquino is legitimate.
March, in the year of Our Lord, Nineteen
Hundred and Eighty-Six. HELD:

Yes. The legitimacy of the Aquino government is


(Sgd.) CORAZON C. AQUINO
not a justiciable matter but belongs to the

28
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realm of politics where only the people are the In a petition for declaratory relief impleading no
judge. respondents, petitioner, as a lawyer, quotes the
first paragraph of Section 5 (not Section 7 as
erroneously stated) of Article XVIII of the
The Supreme Court further held that: proposed 1986 Constitution, which provides in
full as follows:
The people have accepted the Aquino
government which is in effective control of the
entire country; Sec. 5. The six-year term of the incumbent
It is not merely a de facto government but in President and Vice-President elected in the
fact and law a de jure government; and February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended
The community of nations has recognized the to noon of June 30, 1992.
legitimacy of the new government.

The first regular elections for the President and


In re: Bermudez
Vice-President under this Constitution shall be
G.R. No. 76180 October 24, 1986
held on the second Monday of May, 1992.

IN RE: SATURNINO V. BERMUDEZ, petitioner.


Claiming that the said provision "is not clear" as
to whom it refers, he then asks the Court "to
declare and answer the question of the
R E S O L U T IO N construction and definiteness as to who, among
the present incumbent President Corazon
Aquino and Vice-President Salvador Laurel and
the elected President Ferdinand E. Marcos and
Vice-President Arturo M. Tolentino being
referred to under the said Section 7 (sic) of
PER CURIAM: ARTICLE XVIII of the TRANSITORY PROVISIONS
of the proposed 1986 Constitution refers to, . ...

29
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The petition is dismissed outright for lack of the legitimacy of the government of President
jurisdiction and for lack for cause of action. Corazon C. Aquino was likewise sought to be
questioned with the claim that it was not
established pursuant to the 1973 Constitution.
Prescinding from petitioner's lack of personality The said cases were dismissed outright by this
to sue or to bring this action, (Tan vs. court which held that:
Macapagal, 43 SCRA 677), it is elementary that
this Court assumes no jurisdiction over petitions
for declaratory relief. More importantly, the Petitioners have no personality to sue and their
petition amounts in effect to a suit against the petitions state no cause of action. For the
incumbent President of the Republic, President legitimacy of the Aquino government is not a
Corazon C. Aquino, and it is equally elementary justiciable matter. It belongs to the realm of
that incumbent Presidents are immune from politics where only the people of the Philippines
suit or from being brought to court during the are the judge. And the people have made the
period of their incumbency and tenure. judgment; they have accepted the government
of President Corazon C. Aquino which is in
effective control of the entire country so that it
The petition furthermore states no cause of is not merely a de facto government but in fact
action. Petitioner's allegation of ambiguity or and law a de jure government. Moreover, the
vagueness of the aforequoted provision is community of nations has recognized the
manifestly gratuitous, it being a matter of public legitimacy of tlie present government. All the
record and common public knowledge that the eleven members of this Court, as reorganized,
Constitutional Commission refers therein to have sworn to uphold the fundamental law of
incumbent President Corazon C. Aquino and the Republic under her government. (Joint
Vice-President Salvador H. Laurel, and to no Resolution of May 22, 1986 in G.R. No. 73748
other persons, and provides for the extension of [Lawyers League for a Better Philippines, etc. vs.
their term to noon of June 30, 1992 for President Corazon C. Aquino, et al.]; G.R. No.
purposes of synchronization of elections. 73972 [People's Crusade for Supremacy of the
Hence, the second paragraph of the cited Constitution. etc. vs. Mrs. Cory Aquino, et al.];
section provides for the holding on the second and G.R. No. 73990 [Councilor Clifton U. Ganay
Monday of May, 1992 of the first regular vs. Corazon C. Aquino, et al.])
elections for the President and Vice-President
under said 1986 Constitution. In previous cases,

30
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For the above-quoted reason, which are fully the Draft Constitution adopted by the
applicable to the petition at bar, mutatis Constitutional Commission of 1986.
mutandis, there can be no question that
President Corazon C. Aquino and Vice-President
Salvador H. Laurel are the incumbent and We agree that the petition deserves outright
legitimate President and Vice-President of the dismissal as this Court has no original
Republic of the Philippines.or the above-quoted jurisdiction over petitions for declaratory relief.
reasons, which are fully applicable to the
petition at bar,

As to lack of cause of action, the petitioner's


prayer for a declaration as to who were elected
ACCORDINGLY, the petition is hereby dismissed. President and Vice President in the February 7,
1986 elections should be addressed not to this
Court but to other departments of government
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, constitutionally burdened with the task of
Alampay and Paras, JJ., concur. making that declaration.

MELENCIO-HERRERA, J., concurring: The 1935 Constitution, the 1913 Constitution as


amended, and the 1986 Draft Constitution
uniformly provide 'that boards of canvassers in
GUTIERREZ, Jr., J., concurring: each province and city shall certified who were
elected President and Vice President in their
respective areas. The certified returns are
transmitted to the legislature which proclaims,
FELICIANO, JJ., concurring.
through the designated Presiding Head, who
were duty elected.

The petitioner asks the Court to declare who


are "the incumbent President and Vice
Copies of the certified returns from the
President elected in the February 7, 1986
provincial and city boards of canvassers have
elections" as stated in Article XVIII, Section 5 of
not been furnished this Court nor is there any
need to do so. In the absence of a legislature,

31
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we cannot assume the function of stating, and 300 U.S. 227; PACU vs. Secretary of Education,
neither do we have any factual or legal capacity 97 Phil. 806.)
to officially declare, who were elected President
and Vice President in the February 7, 1986
elections. In re: Bermudez Digest
Political Law De Jure vs De Facto
Government
Bermudez as a lawyer, quotes the first
As to who are the incumbent President and Vice paragraph of Section 5 (not Section 7 as
President referred to in the 1986 Draft erroneously stated) of Article XVIII of the
Constitution, we agree that there is no doubt proposed 1986 Constitution, which provides in
the 1986 Constitutional Commission referred to full as follows:
Sec. 5. The six-year term of the incumbent
President Corazon C. Aquino and Vice President
President and Vice-President elected in the
Salvador H. Laurel.
February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended
to noon of June 30, 1992.
Finally, we agree with the Resolution of the The first regular elections for the President
and Vice-President under this Constitution
Court in G.R. Nos. 73748, 73972, and 73990.
shall be held on the second Monday of May,
1992.
Bermudez claims that the said provision is
For the foregoing reasons, we vote to DISMISS not clear as to whom it refers, he then asks
the instant petition. the Court to declare and answer the question
of the construction and definiteness as to who,
among the present incumbent President
Corazon Aquino and Vice President Salvador
CRUZ, J., concurring: Laurel and the elected President Ferdinand E.
Marcos and Vice President Arturo M.
Tolentino being referred to under the said
Section 7 (sic) of ARTICLE XVIII of the
I vote to dismiss this petition on the ground that TRANSITORY PROVISIONS of the proposed
the Constitution we are asked to interpret has 1986 Constitution refers to, . . .
not yet been ratified and is therefore not yet ISSUE: Whether or not said provision is
effective. I see here no actual conflict of legal ambiguous.
HELD: No. Petitioners allegation of ambiguity
rights susceptible of judicial determination at
or vagueness of the aforequoted provision is
this time. (Aetna Life Insurance Co. vs. Haworth, manifestly gratuitous, it being a matter of

32
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public record and common public knowledge


that the Constitutional Commission refers
RESOLUTION
therein to incumbent President Aquino and
Vice-President Laurel, and to no other
persons, and provides for the extension of PADILLA, J.:
their term to noon of June 30, 1992 for
purposes of synchronization of elections.
Hence, the second paragraph of the cited Petitioner Associate Justice Reynato S. Puno, a
member of the Court of Appeals, wrote a letter
section provides for the holding on the second dated 14 November 1990 addressed to this Court,
Monday of May, 1992 of the first regular seeking the correction of his seniority ranking in
elections for the President and Vice-President the Court of Appeals.
under said 1986 Constitution. In previous It appears from the records that petitioner was
cases, the legitimacy of the government of first appointed Associate Justice of the Court of
President Aquino was likewise sought to be Appeals on 20 June 1980 but took his oath of
office for said position only on 29 November
questioned with the claim that it was not 1982, after serving as Assistant Solicitor General
established pursuant to the 1973 Constitution. in the Office of the Solicitor General since 1974.
The said cases were dismissed outright by 1
this court which held that: Petitioners have no
On 17 January 1983, the Court of Appeals was
personality to sue and their petitions state no reorganized and became the Intermediate
cause of action. For the legitimacy of the Appellate Court pursuant to Batas Pambansa Blg.
Aquino government is not a justiciable matter. 129 entitled "An Act Reorganizing the Judiciary.
Appropriating Funds Therefor and For Other
It belongs to the realm of politics where only Purposes." 2 Petitioner was appointed Appellate
the people of the Philippines are the judge. Justice in the First Special Cases Division of the
And the people have made the judgment; they Intermediate Appellate Court. On 7 November
1984, petitioner accepted an appointment to be
have accepted the government of President ceased to be a member of the Judiciary. 3
Corazon C. Aquino which is in effective
control of the entire country so that it is not The aftermath of the EDSA Revolution in February
1986 brought about a reorganization of the entire
merely a de facto government but in fact and government, including the Judiciary. To effect the
in law a de jure government. Moreover, the reorganization of the Intermediate Appellate
community of nations has recognized the Court and other lower courts, a Screening
Committee was created, with the then Minister of
legitimacy of the present government.
Justice, now Senator Neptali Gonzales as
Chairman and then Solicitor General, now
Philippine Ambassador to the United Nations
Sedfrey Ordoez as Vice Chairman. President
Corazon C. Aquino, exercising legislative powers
Letter of Assoc. Justice by virtue of the revolution, issued Executive
[A.M. No. 90-11-2697-CA. June 29, 1992.] Order No. 33 to govern the aforementioned
reorganization of the Judiciary. 4
LETTER OF ASSOCIATE JUSTICE REYNATO S.
PUNO of the Court of Appeals dated 14 The Screening Committee recommended the
November 1990. return of petitioner as Associate Justice of the

33
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new Court of Appeals and assigned him the rank Court of Appeals to the Ministry of Justice as
of number eleven (11) in the roster of appellate Commissioner of Land Registration and in 1986
court justices. When the appointments were was reappointed to the Court of Appeals.
signed by President Aquino on 28 July 1986, Petitioner states that his (Victorianos) stint in the
petitioners seniority ranking changed, however, Commission of Land Registration did not
from number eleven (11) to number twenty six adversely affect his seniority ranking in the Court
(26). 5 of Appeals, for, in his case, Executive Order No.
33 was correctly applied. 8
Petitioner now alleges that the change in his
seniority ranking could only be attributed to In a resolution of the Court en banc dated 29
inadvertence for, otherwise, it would run counter November 1990, the Court granted Justice Punos
to the provisions of Section 2 of Executive Order request. 9 It will be noted that before the
No. 33, which reads:chan roble s vi rtua l lawl ibra ry issuance of said resolution, there was no written
opposition to, or comment on petitioners
"SECTION 2. Section 3, Chapter 1 of Batas aforesaid request. The dispositive portion of the
Pambansa Blg. 129, is hereby amended to read resolution reads: jgc:chan roble s.com.p h

as follows: jgc:c hanrobles. com.ph

"IN VIEW WHEREOF, the petition of Associate


"SEC. 2. Organization. There is hereby created Justice Reynato S. Puno for correction of his
a Court of Appeals which shall consist of a seniority ranking in the Court of Appeals is
Presiding Justice and fifty Associate Justices who granted. The presiding Justice of the Court of
shall be appointed by the President of the Appeals, the Honorable Rodolfo A. Nocon, is
Philippines. The Presiding Justice shall be so hereby directed to correct the seniority rank of
designated in his appointment and the Associate Justice Puno from number twelve (12) to number
Justice shall have precedence according to the five (5). Let copies of this Resolution be furnished
dates of their respective appointments, or when the Court Administrator and the Judicial and Bar
the appointments of two or more shall bear the Council for their guidance and information." 10
same date, according to the order in which their
appointments were issued by the President. Any A motion for reconsideration of the resolution of
Member who is reappointed to the Court after the Court en banc dated 29 November 1990 was
rendering service in any other position in the later filed by Associate Justices Jose C. Campos,
government shall retain the precedence to which Jr. and Luis A. Javellana, two (2) of the Associate
he was entitled under his original appointment, Justices affected by the ordered correction. They
and his service in the Court shall, for all intents contend that the present Court of Appeals is a
and purpose be considered as continuous and new Court with fifty one (51) members and that
uninterrupted." 6 petitioner could not claim a reappointment to a
prior court; neither can he claim that he was
Petitioner elaborates that President Aquino is returning to his former court, for the courts where
presumed to have intended to comply with her he had previously been appointed ceased to exist
own Executive Order No. 33 so much so that the at the date of his last appointment. 11
correction of the inadvertent error would only
implement the intent of the President as well as The Court en banc in a resolution dated 17
the spirit of Executive Order No. 33 and will not January 1992 required the petitioner to file his
provoke any kind of constitutional confrontation comment on the motion for reconsideration of the
(between the President and the Supreme Court). resolution dated 29 November 1990.
7
In his Comment, petitioner argues that, by virtue
Petitioner points to the case of Justice Oscar of Executive Order No. 33 read in relation to B.P.
Victoriano, former Presiding Justice of the Court Blg. 129, his seniority ranking in the Court of
of Appeals who, according to petitioner, was Appeals is now number five (5) for, though
transferred from his position as Justice of the President Aquino rose to power by virtue of a

34
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revolution, she had pledged at the issuance of approval) is a confirmation that petitioners
Proclamation No. 3 (otherwise known as the seniority ranking at the time of his appointment
Freedom Constitution) that "no right provided by President Aquino was, in fact, deliberate and
under the unratified 1973 Constitution (shall) be not an "inadvertent error" as petitioner would
absent in the Freedom Constitution." 12 have the Court believe. 18

Moreover, since the last sentence of Section 2 of The resolution of this controversy is not a
Executive Order No. 33 virtually re-enacted the pleasant task for the Court since it involves not
last sentence of Sec. 3, Chapter 1 of B.P. Blg. only members of the next highest court of the
129, statutory construction rules on simultaneous land but persons who are close to members of
repeal and re-enactment mandate, according to this Court. But the controversy has to be
petitioner, the preservation and enforcement of resolved. The core issue in this case is whether
all rights and liabilities which had accrued under the present Court of Appeals is a new court such
the original statute. 13 Furthermore, petitioner that it would negate any claim to precedence or
avers that, although the power of appointment is seniority admittedly enjoyed by petitioner in the
executive in character and cannot be usurped by Court of Appeals and Intermediate Appellate
any other branch of the Government, such power Court existing prior to Executive Order No. 33 or
can still be regulated by the Constitution and by whether the present Court of Appeals is merely a
the appropriate law, in this case, by the limits set continuation of the Court of Appeals and
by Executive Order NO. 33 14 for the power of Intermediate Appellate Court existing prior to said
appointment cannot be wielded in violation of law. Executive Order No. 33.
15
It is the holding of the Court that the present
Justices Javellana and Campos were required by Court of Appeals is a new entity, different and
the Court to file their reply to Justice Punos distinct from the Court of Appeals or the
comment on their motion for reconsideration of Intermediate Appellate Court existing prior to
the resolution of the Court en banc dated 24 Executive Order No. 33, for it was created in the
January 1991. chanro bles. com:cra law:red wake of the massive reorganization launched by
the revolutionary government of Corazon C.
In their Reply and Supplemental Reply, Associate Aquino in the aftermath of the people power
Justices Javellana and Campos submit that the (EDSA) revolution in 1986.
appeal or request for correction filed by the
petitioner was addressed to the wrong party. A resolution has been defined as "the complete
They aver that as petitioner himself had alleged overthrow of the established government in any
the mistake to be an "inadvertent error" of the country or state by those who were previously
Office of the President, ergo, he should have filed subject to it" 19 or as "a sudden, radical and
his request for correction also with said Office of fundamental change in the government or
the President and not directly with the Supreme political system, usually effected with violence or
Court. 16 Furthermore, they point out that at least some acts of violence." 20 In Kelsens
petitioner had indeed filed with the Office of the book, General Theory of Law and State, it is
President a request or petition for correction of defined as that which "occurs whenever the legal
his ranking, (seniority) but the same was not order of a community is nullified and replaced by
approved such that his recourse should have been a new order . . . a way not prescribed by the first
an appropriate action before the proper court and order itself." 21
impleading all parties concerned. The aforesaid
non-approval by the Office of the President they It was through the February 1986 revolution, a
argue, should be respected by the Supreme Court relatively peaceful one, and more popularly
"not only on the basis of the doctrine of known as the "people power revolution" that the
separation of powers but also their presumed Filipino people tore themselves away from an
knowledge ability and even expertise in the laws existing regime. This revolution also saw the
they are entrusted to enforce" 17 for it (the non- unprecedented rise to power of the Aquino

35
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government. whether the then existing legal order was


overthrown by the Aquino government. "A legal
From the natural law point of view, the right of order is the authoritative code of a polity. Such
revolution has been defined as "an inherent right code consists of all the rules found in the
of a people to cast out their rulers, change their enactments of the organs of the polity. Where the
policy or effect radical reforms in their system of state operates under a written constitution, its
government or institutions by force or a general organs may be readily determined from a reading
uprising when the legal and constitutional of its provisions. Once such organs are
methods of making such change have proved ascertained, it becomes an easy matter to locate
inadequate or are so obstructed as to be their enactments. The rules in such enactments,
unavailable." 22 It has been said that "the locus along with those in the constitution, comprise the
of positive law-making power lies with the people legal order of that constitutional state." 29 It is
of the state" and from there is derived "the right assumed that the legal order remains as a
of the people to abolish, to reform and to alter "culture system" of the polity as long as the latter
any existing form of government without regard endures 30 and that a point may be reached,
to the existing constitution." 23 however, where the legal system ceases to be
operative as a whole for it is no longer obeyed by
The three (3) clauses that precede the text of the the population nor enforced by the officials. 31
Provisional (Freedom) Constitution, 24 read: jgc:c hanro bles. com.ph

It is widely known that Mrs. Aquinos rise to the


"WHEREAS, the new government under President presidency was not due to constitutional
Corazon C. Aquino was installed through a direct processes; in fact, it was achieved in violation of
exercise of the power of the Filipino people the provisions of the 1973 Constitution as a
assisted by units of the New Armed Forces of the Batasang Pambansa resolution had earlier
Philippines; declared Mr. Marcos at the winner in the 1986
presidential election. 32 Thus it can be said that
"WHEREAS, the heroic action of the people was the organization of Mrs. Aquinos Government
done in defiance of the provisions of the 1973 which was met by little resistance and her control
Constitution, as amended; of the state evidenced by the appointment of the
Cabinet and other key officers of the
"WHEREFORE, I, Corazon C. Aquino, President of administration, the departure of the Marcos
the Philippines, by virtue of the powers vested in Cabinet officials, revampt of the Judiciary and the
me by the sovereign mandate of the people, do Military signalled the point where the legal system
hereby promulgate the following Provisional then in effect, had ceased to be obeyed by the
Constitution."25cralaw:red Filipino.

These summarize the Aquino governments The Court holds that the Court of Appeals and
position that its mandate is taken from "a direct Intermediate Appellate Court existing prior to
exercise of the power of the Filipino people." 26 Executive Order No. 33 phased out as part of the
legal system abolished by the revolution and that
Discussions and opinions of legal experts also the Court of Appeals established under Executive
proclaim that the Aquino government was Order No. 33 was an entirely new court with
"revolutionary in the sense that it came into appointments thereto having no relation to earlier
existence in defiance of the existing legal appointments to the abolished courts, and that
processes" 27 and that it was a revolutionary the reference to precedence in rank contained in
government "instituted by the direct action of the the last sentence of Sec. 2, BP Blg. No. 129 as
people and in opposition to the authoritarian amended by Executive Order No. 33 refers to
values and practices of the overthrown prospective situations as distinguished from
government." 28 retroactive ones.

A question which naturally comes to mind is But even assuming, arguendo, that Executive

36
CHOCO NOTES

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Order No. 33 did not abolish the precedence or PROCLAIMING THE RATIFICATION
seniority ranking resulting from previous
appointment to the Court of Appeals or
OF THE CONSTITUTION OF THE
Intermediate Appellate Court existing prior to the REPUBLIC OF THE PHILIPPINES
1986 revolution, it is believed that President ADOPTED BY THE CONSTITUTIONAL
Aquino as head of then revolutionary
government, could disregard or set aside such
COMMISSION OF 1986, INCLUDING
precedence or seniority in ranking when she THE ORDINANCE APPENDED
made her appointments to the reorganized Court THERETO
of Appeals in 1986.

It is to be noted that, at the time of the issuance WHEREAS, the Constitutional


of Executive Order No. 33, President Aquino was Commission of 1986 adopted the
still exercising the powers of a revolutionary
government, encompassing both executive and Constitution of the Republic of the
legislative powers, such that she could, if she so Philippines on October 15, 1986,
desired, amend, modify or repeal any part of B.P. together with the Ordinance appended
Blg. 129 or her own Executive Order No. 33. It
should also be remembered that the same thereto, which shall become valid and
situation was still in force when she issued the effective upon ratification by a majority
1986 appointments to the Court of Appeals. In of the votes cast in a plebiscite called for
other words, President Aquino, at the time of the
issuance of the 1986 appointments, modified or the purpose;
disregarded the rule embodied in B.P. Blg. 129 as
amended by Executive Order No. 33, on
precedence or seniority in the case of the
WHEREAS, the Commission on
petitioner, for reasons known only to her. Since Elections, sitting as the national board of
the appointment extended by the President to the canvassers for the February 2, 1987
petitioner in 1986 for membership in the new
Court of Appeals with its implicit ranking in the
plebiscite on the proposed Constitution,
roster of justices, was a valid appointment certified that:
anchored on the Presidents exercise of her then
revolutionary powers, it is not for the Court at
this time to question or correct that exercise. (1) The Commission on Elections
canvassed the returns from 83,288
ACCORDINGLY, the Court GRANTS the Motion for voting precincts throughout the country
Reconsideration and the seniority rankings of
members of the Court of Appeals, including that involving 21,785,216 votes cast; and
of the petitioner, at the time the appointments
were made by the President in 1986, are
recognized and upheld.
(2) On the basis of the canvass made by
the Commission on Elections, the
SO ORDERED. results thereof are as follows:

(a) Affirmative votes: 16,622,111


Proclamation no. 58
PROCLAMATION NO. 58

37
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(Sgd.) JOKER P. ARROYO


(b) Negative Votes: 4,953,375
Executive Secretary
(c) Abstentions: 209,730
CERTIFICATE OF VOTES CAST IN
THE FEBRUARY 2, 1987 PLEBISCITE
A copy of the Certificate of Canvass of ON THE 1986 PROPOSED
the Votes Cast in the Plebiscite Held on CONSTITUTION
February 2, 1987, of the Commission on
Elections dated February 7, 1987 is We, the undersigned Chairman and
hereto attached as Annex A of this Commissioners of the Commission on
Proclamation. Elections, sitting en banc at the Session
Hall of the Commission on Elections,
NOW, THEREFORE, I, CORAZON C. Intramuros, Manila, Philippines, as the
AQUINO, President of the Philippines, National Board of Canvassers for the
by virtue of the powers vested in me by Plebiscite on the 1986 proposed
the sovereign mandate of the people, do Constitution held on February 2, 1987
hereby proclaim that the Constitution of do hereby certify:
the Republic of the Philippines adopted
by the Constitutional Commission of I PLEBISCITE QUESTION
1986, including the Ordinance
appended thereto, has been duly ratified That pursuant to Section 5, Article V of
by the Filipino people and is therefore Proclamation No. 3 and Section 14 of
effective and in full force and effect. Proclamation No. 9, as amended, the
following question was submitted to the
IN WITNESS WHEREOF, I have Filipino people:
hereunto set my hand and caused the
seal of the Republic of the Philippines to QUESTION: DO YOU VOTE FOR THE
be affixed. RATIFICATION OF THE PROPOSED
CONSTITUTION OF THE REPUBLIC
DONE in the City of Manila, this 11th OF THE PHILIPPINES WITH THE
day of February, in the year of Our Lord, ORDINANCE APPENDED THERETO?
Nineteen Hundred and Eighty-Seven.
II CANVASS
(Sgd.) CORAZON C. AQUINO
That on the basis of the certificates of
By the President: canvass duly authenticated, certified
and submitted to the Commission on
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Elections by Seventy (70) Provincial


209,780 0.96%
Boards Of Canvassers, and six (6)
District Boards of Canvassers in , Metro
Manila, we publicly canvassed, with
notice to, and in the presence of the
representatives of the major political
parties and the citizens arm of the QUESTION: DO YOU VOTE FOR THE
Commission, the votes cast in the RATIFICATION OF THE PROPOSED
Plebiscite starting at 10:00 oclock a.m. CONSTITUTION OF THE REPUBLIC
on February 4, 1987 and continuing OF THE PHILIPPINES WITH THE
everyday thereafter until 4:40 oclock ORDINANCE APPENDED THERETO?
P.M. of February 7, 1987;
That the foregoing affirmative votes
III DECLARATION OF RESULTS constitute a majority of the total number
of votes cast in Plebiscite;
That after said canvass, we hereby
declare the results thereof to be as That the above results, represent the
follows: returns from 83,288 out of 86,505
precincts throughout the country and
87.04% percent of the total number of
Affirmative Votes (YES) Percent registered voters nationwide;

16,622,111 76.30% That when the Commission adjourned,


only the certificates of canvess from the
provinces of Eastern Samar, Tawi-Tawi,
Zamboanga del Sur, and Pagadian City
were still unreported and unaccounted
Negative Votes (NO) Percent for, representing a total of 509,173
registered voters, which can not affect
the final outcome of the Plebiscite.
4,953,375 22.74%
IN WITNESS WHEREOF, We, the
Chairman and Commissioners of the
Commission on Elections, have set our
hands and caused the seal of the
Abstentions Percent Commission to be affixed hereunto in
the City of Manila, Philippines, this 7th
day of February, 1987.
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De leon vs. Esguerra


G.R. No. 78059 August 31, 1987
As required by the Court, respondents
submitted their Comment on the Petition, and
petitioner's their Reply to respondents'
ALFREDO M. DE LEON, ANGEL S. SALAMAT, Comment.
MARIO C. STA. ANA, JOSE C. TOLENTINO,
ROGELIO J. DE LA ROSA and JOSE M.
RESURRECCION, petitioners,
In the Barangay elections held on May 17, 1982,
vs. petitioner Alfredo M. De Leon was elected
Barangay Captain and the other petitioners
HON. BENJAMIN B. ESGUERRA, in his capacity as Angel S. Salamat, Mario C. Sta. Ana, Jose C.
OIC Governor of the Province of Rizal, HON. Tolentino, Rogelio J. de la Rosa and Jose M.
ROMEO C. DE LEON, in his capacity as OIC Resurreccion, as Barangay Councilmen of
Mayor of the Municipality of Taytay, Rizal, Barangay Dolores, Taytay, Rizal under Batas
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, Pambansa Blg. 222, otherwise known as the
RICARDO Z. LACANIENTA, TEODORO V. Barangay Election Act of 1982.
MEDINA, ROSENDO S. PAZ, and TERESITA L.
TOLENTINO, respondents.
On February 9, 1987, petitioner Alfredo M, de
Leon received a Memorandum antedated
December 1, 1986 but signed by respondent
OIC Governor Benjamin Esguerra on February 8,
1987 designating respondent Florentino G.
MELENCIO-HERRERA, J.: Magno as Barangay Captain of Barangay
Dolores, Taytay, Rizal. The designation made by
the OIC Governor was "by authority of the
Minister of Local Government."
An original action for Prohibition instituted by
petitioners seeking to enjoin respondents from
replacing them from their respective positions
as Barangay Captain and Barangay Councilmen Also on February 8, 1987, respondent OIC
of Barangay Dolores, Municipality of Taytay, Governor signed a Memorandum, antedated
Province of Rizal. December 1, 1986 designating respondents

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Remigio M. Tigas, Ricardo Z. Lacanienta That said memorandum was further


Teodoro V. Medina, Roberto S. Paz and Teresita deciminated (sic) to all concerned the following
L. Tolentino as members of the Barangay day, February 9. 1987.
Council of the same Barangay and Municipality.

FURTHER AFFIANT SAYETH NONE.


That the Memoranda had been antedated is
evidenced by the Affidavit of respondent OIC
Governor, the pertinent portions of which read: Pasig, Metro Manila, March 23, 1987.

xxx xxx xxx Before us now, petitioners pray that the subject
Memoranda of February 8, 1987 be declared
null and void and that respondents be
That I am the OIC Governor of Rizal having been prohibited from taking over their positions of
appointed as such on March 20, 1986; Barangay Captain and Barangay Councilmen,
respectively. Petitioners maintain that pursuant
to Section 3 of the Barangay Election Act of
That as being OIC Governor of the Province of 1982 (BP Blg. 222), their terms of office "shall
Rizal and in the performance of my duties be six (6) years which shall commence on June
thereof, I among others, have signed as I did 7, 1982 and shall continue until their successors
sign the unnumbered memorandum ordering shall have elected and shall have qualified," or
the replacement of all the barangay officials of up to June 7, 1988. It is also their position that
all the barangay(s) in the Municipality of Taytay, with the ratification of the 1987 Constitution,
Rizal; respondent OIC Governor no longer has the
authority to replace them and to designate
their successors.

That the above cited memorandum dated


December 1, 1986 was signed by me personally
on February 8,1987; On the other hand, respondents rely on Section
2, Article III of the Provisional Constitution,
promulgated on March 25, 1986, which
provided:

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Since the promulgation of the Provisional


Constitution, there has been no proclamation or
SECTION 2. All elective and appointive executive order terminating the term of elective
officials and employees under the 1973 Barangay officials. Thus, the issue for resolution
Constitution shall continue in office until
is whether or not the designation of
otherwise provided by proclamation or respondents to replace petitioners was validly
executive order or upon the designation or made during the one-year period which ended
appointment and qualification of their
on February 25, 1987.
successors, if such appointment is made within
a period of one year from February 25,1986.

Considering the candid Affidavit of respondent


OIC Governor, we hold that February 8, 1977,
By reason of the foregoing provision, should be considered as the effective date of
respondents contend that the terms of office of
replacement and not December 1,1986 to
elective and appointive officials were abolished which it was ante dated, in keeping with the
and that petitioners continued in office by dictates of justice.
virtue of the aforequoted provision and not
because their term of six years had not yet
expired; and that the provision in the Barangay
Election Act fixing the term of office of But while February 8, 1987 is ostensibly still
Barangay officials to six (6) years must be within the one-year deadline, the aforequoted
deemed to have been repealed for being provision in the Provisional Constitution must
be deemed to have been overtaken by Section
inconsistent with the aforequoted provision of
27, Article XVIII of the 1987 Constitution
the Provisional Constitution.
reading.

Examining the said provision, there should be


no question that petitioners, as elective officials SECTION 27. This Constitution shall take
under the 1973 Constitution, may continue in effect immediately upon its ratification by a
office but should vacate their positions upon majority of the votes cast in a plebiscite held for
the occurrence of any of the events mentioned. the purpose and shall supersede all previous
1 Constitutions.

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The 1987 Constitution was ratified in a Barangay Election Act of 1982 5 should still
plebiscite on February 2, 1987. By that date, govern.
therefore, the Provisional Constitution must be
deemed to have been superseded. Having
become inoperative, respondent OIC Governor Contrary to the stand of respondents, we find
could no longer rely on Section 2, Article III, nothing inconsistent between the term of six (6)
thereof to designate respondents to the years for elective Barangay officials and the
elective positions occupied by petitioners. 1987 Constitution, and the same should,
therefore, be considered as still operative,
pursuant to Section 3, Article XVIII of the 1987
Petitioners must now be held to have acquired Constitution, reading:
security of tenure specially considering that the
Barangay Election Act of 1982 declares it "a
policy of the State to guarantee and promote Sec. 3. All existing laws, decrees, executive
the autonomy of the barangays to ensure their orders, proclamations letters of instructions,
fullest development as self-reliant communities. and other executive issuances not inconsistent,
2 Similarly, the 1987 Constitution ensures the with this Constitution shall remain operative
autonomy of local governments and of political until amended, repealed or revoked.
subdivisions of which the barangays form a
part, 3 and limits the President's power to
"general supervision" over local governments. 4
WHEREFORE, (1) The Memoranda issued by
Relevantly, Section 8, Article X of the same 1987
respondent OIC Governor on February 8, 1987
Constitution further provides in part:
designating respondents as the Barangay
Captain and Barangay Councilmen, respectively,
of Barangay Dolores, Taytay, Rizal, are both
Sec. 8. The term of office of elective local declared to be of no legal force and effect; and
officials, except barangay officials, which shall (2) the Writ of Prohibition is granted enjoining
be determined by law, shall be three years ... respondents perpetually from proceeding with
the ouster/take-over of petitioners' positions
subject of this Petition. Without costs.
Until the term of office of barangay officials has
been determined by law, therefore, the term of
office of six (6) years provided for in the SO ORDERED.

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The Court's decision, with the lone dissent of


Mr. Justice Sarmiento, holds that by virtue of
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, the provision of Article XVIII, Section 27 of the
Feliciano, Gancayco, Padilla, Bidin and Cortes, 1987 Constitution that it "shall take effect
JJ., concur. immediately upon its ratification by a majority
of the votes cast in a plebiscite held for the
purpose," the 1987 Constitution took effect on
February 2, 1987, the date of its ratification in
the plebiscite held on that same date.

The thrust of the dissent is that the Constitution


should be deemed to "take effect on the date
Separate Opinions its ratification shall have been ascertained and
not at the time the people cast their votes to
approve or reject it." This view was actually
proposed at the Constitutional Commission
deliberations, but was withdrawn by its
proponent in the face of the "overwhelming"
contrary view that the Constitution "will be
TEEHANKEE, CJ., concurring: effective on the very day of the plebiscite."

The main issue resolved in the judgment at bar The record of the proceedings and debates of
is whether the 1987 Constitution took effect on the Constitutional Commission fully supports
February 2, 1987, the date that the plebiscite the Court's judgment. It shows that the clear,
for its ratification was held or whether it took unequivocal and express intent of the
effect on February 11, 1987, the date its Constitutional Conunission in unanimously
ratification was proclaimed per Proclamation approving (by thirty-five votes in favor and
No. 58 of the President of the Philippines, none against) the aforequoted Section 27 of
Corazon C. Aquino. Transitory Article XVIII of the 1987 Constitution
was that "the act of ratification is the act of
voting by the people. So that is the date of the

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ratification" and that "the canvass thereafter [of On line 2, delete the words "its ratification" and
the votes] is merely the mathematical in lieu thereof insert the following-. "THE
confirmation of what was done during the date PROCLAMATION BY THE PRESIDENT THAT IT
of the plebiscite and the proclamation of the HAS BEEN RATIFIED." And on the last line, after
President is merely the official confirmatory "constitutions," add the following: "AND THEIR
declaration of an act which was actually done AMENDMENTS."
by the Filipino people in adopting the
Constitution when they cast their votes on the
date of the plebiscite." MR. MAAMBONG. Just a moment, Madam
President. If Commissioner Davide is going to
propose an additional sentence, the committee
The record of the deliberations and the voting is would suggest that we take up first his
reproduced hereinbelow: 1 amendment to the first sentence as originally
formulated. We are now ready to comment on
that proposed amendment.
MR. MAAMBONG. Madam President, may we
now put to a vote the original formulation of
the committee as indicated in Section 12, unless The proposed amendment would be to delete
there are other commissioners who would like the words "its ratification and in lieu thereof
to present amendments. insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And
the second amendment would be: After the
MR. DAVIDE. Madam President. word "constitutions," add the words" AND
THEIR AMENDMENTS,"

THE PRESIDENT. Commissioner Davide is


recognized. The committee accepts the first proposed
amendment. However, we regret that we
cannot accept the second proposed
amendment after the word "constitutions"
MR. DAVIDE. May I propose the following
because the committee feels that when we talk
amendments.
of all previous Constitutions, necessarily it
includes "AND THEIR AMENDMENTS."

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this first sentence, and it says that there will be


a proclamation by the President that the
MR. DAVIDE. With that explanation, l will not Constitution has been ratified, the President
insist on the second. But, Madam President, will naturally comply with the law in accordance
may I request that I be allowed to read the
with the provisions in the Article on the
second amendment so the Commission would Executive which we have cited. It would be too
be able to appreciate the change in the first. much to impose on the President a time frame
within which she will make that declaration. It
would be assumed that the President would
MR. MAAMBONG. Yes, Madam President, we immediately do that after the results shall have
can now do that. been canvassed by the COMELEC.

MR. DAVIDE. The second sentence will read: Therefore, the committee regrets that it cannot
"THE PROCLAMATION SHALL BE MADE WITHIN accept the second sentence which the
FIVE DAYS FOLLOWING THE COMPLETION OF Gentleman is proposing, Madam President.
THE CANVASS BY THE COMMISSION ON
ELECTIONS OF THE RESULTS OF SUCH
PLEBISCITE." MR. DAVIDE. I am prepared to withdraw the
same on the assumption that there will be an
immediate proclamation of the results by the
MR. MAAMBONG. Madam President, after President.
conferring with our chairman, the committee
feels that the second proposed amendment in
the form of a new sentence would not be MR. MAAMBONG. With that understanding,
exactly necessary and the committee feels that
Madam President.
it would be too much for us to impose a time
frame on the President to make the
proclamation. As we would recall, Madam
President, in the approved Article on the MR. DAVIDE. I will not insist on the second
Executive, there is a provision which says that sentence.
the President shall make certain that all laws
shall be faithfully complied. When we approve

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FR. BERNAS. Madam President. there should be no need to wait for any
proclamation on the part of the President.

THE PRESIDENT. Commissioner Bernas is


recognized. MR. MAAMBONG. Would the Gentleman
answer a few clarificatory questions?

FR. BERNAS. I would ask the committee to


reconsider its acceptance of the amendment FR. BERNAS. Willingly, Madam President.
which makes the effectivity of the new
Constitution dependent upon the proclamation
of the President. The effectivity of the MR. MAAMBONG. The Gentleman will agree
Constitution should commence on the date of that a date has to be fixed as to exactly when
the ratification, not on the date of the the Constitution is supposed to be ratified.
proclamation of the President. What is
confusing, I think, is what happened in 1976
when the amendments of 1976 were ratified. In
FR. BERNAS. I would say that the ratification
that particular case, the reason the
of the Constitution is on the date the votes
amendments of 1976 were effective upon the
were supposed to have been cast.
proclamation of the President was that the
draft presented to the people said that the
amendment will be effective upon the
proclamation made by the President. I have a MR. MAAMBONG. Let us go to the
suspicion that was put in there precisely to give mechanics of the whole thing, Madam
the President some kind of leeway on whether President. We present the Constitution to a
to announce the ratification or not. Therefore, plebiscite, the people exercise their right to
we should not make this dependent on the vote, then the votes are canvassed by the
action of the President since this will be a Commission on Elections. If we delete the
manifestation of the act of the people to be suggested amendment which says: "THE
done under the supervision of the COMELEC PROCLAMATION BY THE PRESIDENT THAT IT
and it should be the COMELEC who should HAS BEEN RATIFIED," what would be, in clear
make the announcement that, in fact, the votes terms, the date when the Constitution is
show that the Constitution was ratified and

47
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supposed to be ratified or not ratified, as the MR. MAAMBONG. With that statement of
case may be? Commissioner Bernas, we would like to know
from the proponent, Commissioner Davide, if
he is insisting on his amendment.
FR. BERNAS. The date would be the casting
of the ballots. if the President were to say that
the plebiscite would be held, for instance, on MR. DAVIDE. Madam President, I am insisting
January 19, 1987, then the date for the on the amendment because I cannot subscribe
effectivity of the new Constitution would be to the view of Commissioner Bernas, that the
January 19, 1987. date of the ratification is reckoned from the
date of the casting of the ballots. That cannot
be the date of reckoning because it is a
MR. MAAMBONG. In other words, it would plebiscite all over the country. We do not split
not depend on the actual issuance of the results the moment of casting by each of the voters.
by the Commission on Elections which will be Actually and technically speaking, it would be all
doing the canvass? That is immaterial Madam right if it would be upon the announcement of
President the results of the canvass conducted by the
COMELEC or the results of the plebiscite held all
over the country. But it is necessary that there
be a body which will make the formal
FR. BERNAS. It would not, Madam President,
announcement of the results of the plebiscite.
because "ratification" is the act of saying "yes"
So it is either the President or the COMELEC
is done when one casts his ballot.
itself upon the completion of the canvass of the
results of the plebiscite, and I opted for the
President.
MR. MAAMBONG. So it is the date of the
plebiscite itself, Madam President?
xxx xxx xxx

FR. BERNAS. Yes, Madam President.


MR. NOLLEDO. Madam President.

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THE PRESIDENT. Commissioner Nolledo is of the plebiscite and the proclamation of the
recognized. President is merely the official confirmatory
declaration of an act which was actually done
by the Filipino people in adopting the
MR. NOLLEDO. Thank you, Madam President. I Constitution when they cast their votes on the
beg to disagree with Commissioner Davide. I date of the plebiscite.
support the stand of Commissioner Bernas
because it is really the date of the casting of the
"yes" votes that is the date of the ratification of MR. LERUM. Madam President, may I be
the Constitution The announcement merely recognized.
confirms the ratification even if the results are
released two or three days after. I think it is a
fundamental principle in political law, even in THE PRESIDENT. Commissioner Lerum is
civil law, because an announcement is a mere recognized.
confirmation The act of ratification is the act of
voting by the people. So that is the date of the
ratification. If there should be any need for
MR. LERUM. I am in favor of the Davide
presidential proclamation, that proclamation
amendment because we have to fix a date for
will merely confirm the act of ratification.
the effectivity of the Constitution. Suppose the
announcement is delayed by, say, 10 days or a
month, what happens to the obligations and
Thank you, Madam President. rights that accrue upon the approval of the
Constitution? So I think we must have a definite
date. I am, therefore, in favor of the Davide
THE PRESIDENT. Does Commissioner amendment.
Regalado want to contribute?

MR. MAAMBONG. Madam President.


MR. REGALADO. Madam President, I was
precisely going to state the same support for
Commissioner Bernas, because the canvass THE PRESIDENT. Commissioner
thereafter is merely the mathematical Maambong is recognized.
confirmation of what was done during the date

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FR. BERNAS. I would say that the proclamation


made by the President would be immaterial
MR. MAAMBONG. With the theory of the because under the law, the administration of all
Commissioner, would there be a necessity for election laws is under an independent
the Commission on Elections to declare the
Commission on Elections. It is the Commission
results of the canvass? on Elections which announces the results.

FR. BERNAS. There would be because it is the MR. MAAMBONG. But nevertheless, the
Commission on Elections which makes the President may make the proclamation.
official announcement of the results.

FR. BERNAS. Yes, the President may. And if what


MR. MAAMBONG. My next question which is he says contradicts what the Commission on
the final one is: After the Commision on Elections says, it would have no effect. I would
Elections has declared the results of the only add that when we say that the date of
canvass, will there be a necessity for the
effectivity is on the day of the casting of the
President to make a proclamation of the results votes, what we mean is that the Constitution
of the canvass as submitted by the Commission takes effect on every single minute and every
on Elections? single second of that day, because the Civil
Code says a day has 24 hours.So that even if the
votes are cast in the morning, the Constitution
FR. BERNAS. I would say there would be no is really effective from the previous midnight.
necessity, Madam President.

MR. MAAMBONG. In other words, the President So that when we adopted the new rule on
may or may not make the proclamation citizenship, the children of Filipino mothers or
whether the Constitution has been ratified or anybody born on the date of effectivity of the
not. 1973 Constitution, which is January 17, 1973,
are natural-born citizens, no matter what time
of day or night.

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THE PRESIDENT. Commissioner Concepcion is


recognized.
MR. MAAMBONG. Could we, therefore,
safely say that whatever date is the publication
of the results of the canvass by the COMELEC
retroacts to the date of the plebiscite? MR. CONCEPCION. Thank you, Madam
President.

FR. BERNAS. Yes, Madam President.


Whoever makes the announcement as to the
result of the plebiscite, be it the COMELEC or
the President, would announce that a majority
MR. MAAMBONG. I thank the Commissioner. of the votes cast on a given date was in favor of
the Constitution. And that is the date when the
Constitution takes effect, apart from the fact
MR. GUINGONA. Madam President. that the provision on the drafting or
amendment of the Constitution provides that a
constitution becomes effective upon ratification
THE PRESIDENT. Commissioner Guingona is by a majority of the votes cast, although I would
recognized. not say from the very beginning of the date of
election because as of that time it is impossible
to determine whether there is a majority. At the
end of the day of election or plebiscite, the
MR. GUINGONA. Mention was made about the
determination is made as of that time-the
need for having a definite date. I think it is
majority of the votes cast in a plebiscite held on
precisely the proposal of Commissioner Bernas
such and such a date. So that is the time when
which speaks of the date (of ratification that
the new Constitution will be considered ratified
would have a definite date, because there
and, therefore, effective.
would be no definite date if we depend upon
the canvassing by the COMELEC.

THE PRESIDENT. May we now hear Vice-


President Padilla.
Thank you,

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MR. PADILLA. Madam President, I am against MR. DAVIDE. In view of the explanation and
the proposed amendment of Commissioner overwhelming tyranny of the opinion that it will
Davide and I support the view of Commissioner be effective on the very day of the plebiscite, I
Bernas and the others because the ratification am withdrawing my amendment on the
of the Constitution is on the date the people, by assumption that any of the following bodies the
a majority vote, have cast their votes in favor of Office of the President or the COMELEC will
the Constitution. Even in civil law, if there is a make the formal announcement of the results.
contract, say, between an agent and a third
person and that contract is confirmed or ratified
by the principal, the validity does not begin on MR. RAMA. Madam President, we are now
the date of ratification but it retroacts from the ready to vote on the original provision as stated
date the contract was executed. by the committee.

Therefore, the date of the Constitution as MR. MAAMBONG. The committee will read
ratified should retroact to the date that the again the formulation indicated in the original
people have cast their affirmative votes in favor committee report as Section 12.
of the Constitution.

This Constitution shall take effect immediately


MR. MAAMBONG. Madam President. upon its ratification by a majority of the votes
cast in a plebiscite called for the purpose and
shall supersede all previous Constitutions.
THE PRESIDENT. Commissioner
Maambong is recognized
We ask for a vote, Madam President.

MR. MAAMBONG. We will now ask once


more Commissioner Davide if he is insisting on VOTING
his amendment

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THE PRESIDENT. As many as are in favor, please power of replacement could be exercised, this
raise their hand. (Several Members raised their period was shortened by the ratification and
hands.) effectivity on February 2, 1987 of the
Constitution. Had the intention of the framers
of the Constitution been otherwise, they would
As many as are against, please raise their hand. have so provided for in the Transitory Article, as
(No Member raised his hand.) indeed they provided for multifarious transitory
provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the
incumbent President and Vice-President to
The results show 35 votes in favor and none
noon of June 30, 1992 for purposes of
against; Section 12 is approved. 2
synchronization of elections, the continued
exercise of legislative powers by the incumbent
President until the convening of the first
The Court next holds as a consequence of its Congress, etc.
declaration at bar that the Constitution took
effect on the date of its ratification in the
plebiscite held on February 2, 1987, that: (1) the
A final note of clarification, as to the statement
Provisional Constitution promulgated on March
in the dissent that "the appointments of some
25, 1986 must be deemed to have been
seven Court of Appeals Justices, 71 provincial
superseded by the 1987 Constitution on the
fiscals and 55 city fiscals reported extended (by)
same date February 2, 1987 and (2) by and after
the President on February 2, 1987 . . . could be
said date, February 2, 1987, absent any saying
open to serious questions," in view of the
clause to the contrary in the Transitory Article
provisions of Sections 8 (1) and 9, Article VIII of
of the Constitution, respondent OIC Governor
the Constitution which require prior
could no longer exercise the power to replace
endorsement thereof by the Judicial and Bar
petitioners in their positions as Barangay
Council created under the Constitution. It
Captain and Councilmen. Hence, the attempted
should be stated for the record that the
replacement of petitioners by respondent OIC
reported date of the appointments, February 2,
Governor's designation on February 8, 1987 of
1987, is incorrect. The official records of the
their successors could no longer produce any
Court show that the appointments of the seven
legal force and effect. While the Provisional
Court of Appeals Justices were transmitted to
Constitution provided for a one-year period
this Court on February 1, 1987 and they were all
expiring on March 25, 1987 within which the
appointed on or before January 31, 1987. 3

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(Similarly, the records of the Department of Justice Herrera would opt for February 2, 1987,
Justice likewise show that the appointment when the new Constitution was ratified. I yield
papers of the last batch of provincial and city to that better view and agree with her ponencia
fiscals signed by the President in completion of completely.
the reorganization of the prosecution service
were made on January 31, 1987 and
transmitted to the Department on February 1, SARMIENTO, J., Dissenting.
1987.) It is also a matter of record that since
February 2, 1987, no appointments to the
Judiciary have been extended by the President,
With due respect to the majority I register this
pending the constitution of the Judicial and Bar
dissent.
Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the
effective date of the Constitution, as now
expressly declared by the Court. While I agree that the one-year deadline
prescribed by Section 2, Article III of the
Provisional Constitution with respect to the
tenure of government functionaries, as follows:
CRUZ, J., concurring.

SECTION 2. All elective and appointive officials


In her quiet and restrained manner, Justice
and employees under the 1973 Constitution
Herrera is able to prove her point with more
shall continue in office until otherwise provided
telling effect than the tones of thunder. She has
by proclamation or executive order or upon the
written another persuasive opinion, and I am
designation or appointment and qualification of
delighted to concur. I note that it in effect
their successors, if such appointment is made
affirms my dissents in the De la Serna, Zamora,
within a period of one year from February 25,
Duquing and Bayas cases, where I submitted
1986.
that the local OICs may no longer be summarily
replaced, having acquired security of tenure
under the new Constitution. Our difference is
that whereas I would make that right was cut short by the ratification of the 1987
commence on February 25, 1987, after the Constitution, I entertain serious doubts whether
deadline set by the Freedom Constitution, or not that cut-off period began on February 2,

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1987, the date of the plebiscite held to approve


the new Charter. To my mind the 1987
constitution took effect on February 11, 1987, I have no doubt that between February 2, and
the date the same was proclaimed ratified February 11, 1987 the government performed
acts that would have been valid under the
pursuant to Proclamation No. 58 of the
President of the Philippines, and not February 2, Provisional Constitution but would otherwise
have been void under the 1987 Charter. I recall,
1987, plebiscite day.
in particular, the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals,
and 55 city fiscals the President reportedly
I rely, first and foremost, on the language of the extended on February 2, 1987. 1 Under Sections
1987 Charter itself, thus: 8 (1) and 9, Article VIII, of the l987 Constitution,
as follows:

Sec. 27. This Constitution shag take effect


immediately upon its ratification by a majority
xxx xxx xxx
of the votes cast in a plebiscite held for the
purpose and shall supersede all previous
Constitutions.
Sec. 8. (I)A Judicial and Bar Council is hereby
created under the supervision of the Supreme
Court composed of the Chief Justice as ex
It is my reading of this provision that the officio Chairman, the Secretary of Justice, and a
Constitution takes effect on the date its representative of the Congress as ex oficio
ratification shall have been ascertained, and not Members, a representative of the Integrated
at the time the people cast their votes to Bar, a professor of law, a retired Member of the
approve or reject it. For it cannot be logically Supreme Court, and a representative of the
said that Constitution was ratified during such a private sector.
plebiscite, when the will of the people as of that
time, had not, and could not have been, vet
determined.
xxx xxx xxx

Other than that, pragmatic considerations


compel me to take the view.

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Sec. 9. The Members of the Supreme Court


and judges of lower courts shall be appointed
by the President from a list of at least three SEC. 16. This Constitution shall take effect
nominees prepared by the Judicial and Bar immediately upon its ratification by a majority
of the votes cast in a plebiscite called for the
Council for every vacancy, Such appointments
need no confirmation. purpose and, except as herein provided, shall
supersede the Constitution of nineteen-
hundred and thirty- five and all amendments
thereto.
xxx xxx xxx

On October 27, 1976, then President Marcos


such appointments could be open to serious promulgated Proclamation no. 1595,
questions. proclaiming the ratification of the 1976
amendments submitted in the plebiscite of
October 16- 17, 1976. The Proclamation states,
Since 1973, moreover, we have invariably inter alia, that.
reckoned the effectivity of the Constitution as
well as the amendments thereto from the date
it is proclaimed ratified. By virtue-of the powers vested in me by law, I
hereby proclaim all the amendments embodied
in this certificate as duly ratified by the Filipino
In Magtoto v. Manguera, 2 we held that the people in the referendum- plebiscite held Oct.
1973 Constitution became in force and effect 16-17, 1976 and are therefore effective and in
on January 17, 1973, the date Proclamation No. full force and effect as of this date.
1102, "Announcing the Ratification by the
Filipino People of the Constitution Proposed by
the 1971 Constitutional Convention," was It shall be noted that under Amendment No. 9
issued, although Mr. Justice, now Chief Justice,
of the said 1976 amendments.
Teehankee would push its effectivity date
further to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, 3 became
final. And this was so notwithstanding Section These amendments shall take effect after the
incumbent President shall have proclaimed that
16, Article XVII, of the 1973 Constitution, thus:

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they have been ratified by a majority of the Effect." The Proclamation, in declaring the said
votes cast in the referendum-plebiscite. amendments duly approved, further declared
them "[e]ffective and in full force and in effect
as of the date of this Proclamation," It shall be
On April 1, 1980, the then Chief Executive noted, in this connection, that under
issued Proclamation no. 1959, "Proclaiming the Resolutions Nos. I and 2 of the Batasang
Ratification by the Filipino People of the Pambansa, Third Regular Session, Sitting as a
Amendments of Section 7, Article X of the Constituent Assembly, which parented these
Constitution" (lengthening the terms of office of amendments, the same:
judges and justices). The Proclamation provides:

. . .shall become valid as part of the Constitution


[t]he above-quoted amendment has been duly when approved by a majority of the votes cast
ratified by a majority of the votes cast in the in a plebiscite to be held pursuant to Section 2,
plebiscite held, together with the election for Article XVI of the Constitution.
local officials, on January 30, 1980, and that said
amendment is hereby declared to take effect
immediately. On the other hand, Batas Pambansa Blg. 122,
"An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the
It shall be noted that under Resolution No. 21, Constitution of the Philippines, Proposed by the
dated December 18, 1979, the proposed Batasang Pambansa, Sitting as a Constituent
amendment shall take effect on the date the Assembly, in its Resolutions Numbered Three,
incumbent President/Prime Minister shall Two, and One, and to Appropriate Funds
proclaim its ratification. Therefore," provides, as follows:

On April 7, 1981, Proclamation No. 2077 was SEC. 7. The Commission on Elections, sitting en
issued "Proclaiming the Ratification in the banc, shad canvass and proclaim the result of
Plebiscite of April 7, 1981 of the Amendments the plebiscite using the certificates submitted to
to the Constitution Embodied in Batas it, duly authenticated and certified by the Board
Pambansa Blg. 122 and Declaring Them of Canvassers of each province or city.
Therefore Effective and in Full Force and

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of the votes cast in an election/plebiscite at


which it is submitted to the people for their
We have, finally, Proclamation No. 2332, ratification pursuant to Section 2 of Article XVI
"Proclaiming the Ratification in the Plebiscite of
of the Constitution, as amended.
January 27, 1984, of the Amendments to the
Constitution Embodied in Batasang Pambansa
Resolutions Nos. 104, 105, 110, 111, 112 and
That a Constitution or amendments thereto
113." It states that the amendments:
take effect upon proclamation of their
ratification and not at the time of the plebiscite
is a view that is not peculiar to the Marcos era.
....are therefore effective and in full force and
effect as of the date of this Proclamation.

The Resolution of Both Houses (of Congress) in


Joint Session on the March 11, 1947 plebiscite
It carries out Resolution no. 104 itself (as well as called pursuant to Republic Act No. 73 and the
Resolutions Nos. 110 and 112 and Section 9, Resolution of Both Houses (of Congress)
Batas Blg. 643), which states, that: adopted on September 18, 1946, was adopted
on April 9,1947. The April 9, 1947 Resolution
makes no mention of a retroactive application.
The proposed amendments shall take effect on
the date the President of the Philippines shall
proclaim that they have been ratified by a Accordingly, when the incumbent President
majority of the votes cast in the plebiscite held (Mrs. Corazon C. Aquino) proclaimed on
for the purpose, but not later than three
February 11, 1987, at Malacanang Palace:
months from the approval of the amendments.

... that the Constitution of the Republic of the


albeit Resolutions Nos. 105, 111, and 113 Philippines adopted by the Constitutional
provide, that: Commission of 1986, including the Ordinance
appended thereto, has been duly ratified by the
Filipino people and is therefore effective and in
These amendments shall be valid as a part of full force and effect. 4
the Constitution when approved by a majority

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the 1987 Constitution, in point of fact, came TEEHANKEE, CJ., concurring:


into force and effect, I hold that it took effect at
no other time.
The main issue resolved in the judgment at bar
is whether the 1987 Constitution took effect on
I submit that our ruling in Ponsica v. Ignalaga 5 February 2, 1987, the date that the plebiscite
in which we declared, in passing, that the new for its ratification was held or whether it took
Charter was ratified on February 2, 1987, does effect on February 11, 1987, the date its
not in any way weaken this dissent. As I stated, ratification was proclaimed per Proclamation
the remark was said in passing-we did not No. 58 of the President of the Philippines,
resolve the case on account of a categorical Corazon C. Aquino.
holding that the 1987 Constitution came to life
on February 2, 1987. In any event, if we did, I
now call for its re-examination. The Court's decision, with the lone dissent of
Mr. Justice Sarmiento, holds that by virtue of
the provision of Article XVIII, Section 27 of the
I am therefore of the opinion, consistent with 1987 Constitution that it "shall take effect
the views expressed above, that the challenged immediately upon its ratification by a majority
dismissals done on February 8, 1987 were valid, of the votes cast in a plebiscite held for the
the 1987 Constitution not being then as yet in purpose," the 1987 Constitution took effect on
force. February 2, 1987, the date of its ratification in
the plebiscite held on that same date.

The thrust of the dissent is that the Constitution


should be deemed to "take effect on the date
its ratification shall have been ascertained and
not at the time the people cast their votes to
approve or reject it." This view was actually
proposed at the Constitutional Commission
Separate Opinions
deliberations, but was withdrawn by its

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proponent in the face of the "overwhelming" there are other commissioners who would like
contrary view that the Constitution "will be to present amendments.
effective on the very day of the plebiscite."

MR. DAVIDE. Madam President.


The record of the proceedings and debates of
the Constitutional Commission fully supports
the Court's judgment. It shows that the clear, THE PRESIDENT. Commissioner Davide is
unequivocal and express intent of the recognized.
Constitutional Conunission in unanimously
approving (by thirty-five votes in favor and
none against) the aforequoted Section 27 of
MR. DAVIDE. May I propose the following
Transitory Article XVIII of the 1987 Constitution
amendments.
was that "the act of ratification is the act of
voting by the people. So that is the date of the
ratification" and that "the canvass thereafter [of
the votes] is merely the mathematical On line 2, delete the words "its ratification" and
confirmation of what was done during the date in lieu thereof insert the following-. "THE
of the plebiscite and the proclamation of the PROCLAMATION BY THE PRESIDENT THAT IT
President is merely the official confirmatory HAS BEEN RATIFIED." And on the last line, after
declaration of an act which was actually done "constitutions," add the following: "AND THEIR
by the Filipino people in adopting the AMENDMENTS."
Constitution when they cast their votes on the
date of the plebiscite."
MR. MAAMBONG. Just a moment, Madam
President. If Commissioner Davide is going to
The record of the deliberations and the voting is propose an additional sentence, the committee
reproduced hereinbelow: 1 would suggest that we take up first his
amendment to the first sentence as originally
formulated. We are now ready to comment on
that proposed amendment.
MR. MAAMBONG. Madam President, may we
now put to a vote the original formulation of
the committee as indicated in Section 12, unless

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The proposed amendment would be to delete ELECTIONS OF THE RESULTS OF SUCH


the words "its ratification and in lieu thereof PLEBISCITE."
insert the words "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And
the second amendment would be: After the MR. MAAMBONG. Madam President, after
word "constitutions," add the words" AND conferring with our chairman, the committee
THEIR AMENDMENTS," feels that the second proposed amendment in
the form of a new sentence would not be
exactly necessary and the committee feels that
The committee accepts the first proposed it would be too much for us to impose a time
amendment. However, we regret that we frame on the President to make the
cannot accept the second proposed proclamation. As we would recall, Madam
amendment after the word "constitutions" President, in the approved Article on the
because the committee feels that when we talk Executive, there is a provision which says that
of all previous Constitutions, necessarily it the President shall make certain that all laws
includes "AND THEIR AMENDMENTS." shall be faithfully complied. When we approve
this first sentence, and it says that there will be
a proclamation by the President that the
MR. DAVIDE. With that explanation, l will not Constitution has been ratified, the President
insist on the second. But, Madam President, will naturally comply with the law in accordance
may I request that I be allowed to read the with the provisions in the Article on the
second amendment so the Commission would Executive which we have cited. It would be too
be able to appreciate the change in the first. much to impose on the President a time frame
within which she will make that declaration. It
would be assumed that the President would
immediately do that after the results shall have
MR. MAAMBONG. Yes, Madam President, we
been canvassed by the COMELEC.
can now do that.

Therefore, the committee regrets that it cannot


MR. DAVIDE. The second sentence will read:
accept the second sentence which the
"THE PROCLAMATION SHALL BE MADE WITHIN
Gentleman is proposing, Madam President.
FIVE DAYS FOLLOWING THE COMPLETION OF
THE CANVASS BY THE COMMISSION ON

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MR. DAVIDE. I am prepared to withdraw the amendments of 1976 were effective upon the
same on the assumption that there will be an proclamation of the President was that the
immediate proclamation of the results by the draft presented to the people said that the
President. amendment will be effective upon the
proclamation made by the President. I have a
suspicion that was put in there precisely to give
MR. MAAMBONG. With that understanding, the President some kind of leeway on whether
Madam President. to announce the ratification or not. Therefore,
we should not make this dependent on the
action of the President since this will be a
manifestation of the act of the people to be
MR. DAVIDE. I will not insist on the second
done under the supervision of the COMELEC
sentence.
and it should be the COMELEC who should
make the announcement that, in fact, the votes
show that the Constitution was ratified and
FR. BERNAS. Madam President. there should be no need to wait for any
proclamation on the part of the President.

THE PRESIDENT. Commissioner Bernas is


recognized. MR. MAAMBONG. Would the Gentleman
answer a few clarificatory questions?

FR. BERNAS. I would ask the committee to


reconsider its acceptance of the amendment FR. BERNAS. Willingly, Madam President.
which makes the effectivity of the new
Constitution dependent upon the proclamation
of the President. The effectivity of the
MR. MAAMBONG. The Gentleman will agree
Constitution should commence on the date of
that a date has to be fixed as to exactly when
the ratification, not on the date of the
the Constitution is supposed to be ratified.
proclamation of the President. What is
confusing, I think, is what happened in 1976
when the amendments of 1976 were ratified. In
that particular case, the reason the

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FR. BERNAS. I would say that the ratification


of the Constitution is on the date the votes
were supposed to have been cast. FR. BERNAS. It would not, Madam President,
because "ratification" is the act of saying "yes"
is done when one casts his ballot.

MR. MAAMBONG. Let us go to the


mechanics of the whole thing, Madam
President. We present the Constitution to a MR. MAAMBONG. So it is the date of the
plebiscite, the people exercise their right to plebiscite itself, Madam President?
vote, then the votes are canvassed by the
Commission on Elections. If we delete the
suggested amendment which says: "THE FR. BERNAS. Yes, Madam President.
PROCLAMATION BY THE PRESIDENT THAT IT
HAS BEEN RATIFIED," what would be, in clear
terms, the date when the Constitution is MR. MAAMBONG. With that statement of
supposed to be ratified or not ratified, as the Commissioner Bernas, we would like to know
case may be? from the proponent, Commissioner Davide, if
he is insisting on his amendment.

FR. BERNAS. The date would be the casting


of the ballots. if the President were to say that MR. DAVIDE. Madam President, I am insisting
the plebiscite would be held, for instance, on on the amendment because I cannot subscribe
January 19, 1987, then the date for the to the view of Commissioner Bernas, that the
effectivity of the new Constitution would be date of the ratification is reckoned from the
January 19, 1987. date of the casting of the ballots. That cannot
be the date of reckoning because it is a
plebiscite all over the country. We do not split
MR. MAAMBONG. In other words, it would the moment of casting by each of the voters.
not depend on the actual issuance of the results Actually and technically speaking, it would be all
by the Commission on Elections which will be right if it would be upon the announcement of
doing the canvass? That is immaterial Madam the results of the canvass conducted by the
President COMELEC or the results of the plebiscite held all
over the country. But it is necessary that there

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be a body which will make the formal


announcement of the results of the plebiscite.
So it is either the President or the COMELEC Thank you, Madam President.
itself upon the completion of the canvass of the
results of the plebiscite, and I opted for the
President. THE PRESIDENT. Does Commissioner
Regalado want to contribute?

xxx xxx xxx


MR. REGALADO. Madam President, I was
precisely going to state the same support for
MR. NOLLEDO. Madam President. Commissioner Bernas, because the canvass
thereafter is merely the mathematical
confirmation of what was done during the date
of the plebiscite and the proclamation of the
THE PRESIDENT. Commissioner Nolledo is President is merely the official confirmatory
recognized. declaration of an act which was actually done
by the Filipino people in adopting the
Constitution when they cast their votes on the
MR. NOLLEDO. Thank you, Madam President. I date of the plebiscite.
beg to disagree with Commissioner Davide. I
support the stand of Commissioner Bernas
because it is really the date of the casting of the MR. LERUM. Madam President, may I be
"yes" votes that is the date of the ratification of recognized.
the Constitution The announcement merely
confirms the ratification even if the results are
released two or three days after. I think it is a
fundamental principle in political law, even in THE PRESIDENT. Commissioner Lerum is
civil law, because an announcement is a mere recognized.
confirmation The act of ratification is the act of
voting by the people. So that is the date of the
ratification. If there should be any need for MR. LERUM. I am in favor of the Davide
presidential proclamation, that proclamation amendment because we have to fix a date for
will merely confirm the act of ratification. the effectivity of the Constitution. Suppose the

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announcement is delayed by, say, 10 days or a of the canvass as submitted by the Commission
month, what happens to the obligations and on Elections?
rights that accrue upon the approval of the
Constitution? So I think we must have a definite
date. I am, therefore, in favor of the Davide FR. BERNAS. I would say there would be no
amendment. necessity, Madam President.

MR. MAAMBONG. Madam President. MR. MAAMBONG. In other words, the President
may or may not make the proclamation
whether the Constitution has been ratified or
THE PRESIDENT. Commissioner not.
Maambong is recognized.

FR. BERNAS. I would say that the proclamation


MR. MAAMBONG. With the theory of the made by the President would be immaterial
Commissioner, would there be a necessity for because under the law, the administration of all
the Commission on Elections to declare the election laws is under an independent
results of the canvass? Commission on Elections. It is the Commission
on Elections which announces the results.

FR. BERNAS. There would be because it is the


Commission on Elections which makes the MR. MAAMBONG. But nevertheless, the
official announcement of the results. President may make the proclamation.

MR. MAAMBONG. My next question which is FR. BERNAS. Yes, the President may. And if what
the final one is: After the Commision on he says contradicts what the Commission on
Elections has declared the results of the Elections says, it would have no effect. I would
canvass, will there be a necessity for the only add that when we say that the date of
President to make a proclamation of the results effectivity is on the day of the casting of the
votes, what we mean is that the Constitution

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takes effect on every single minute and every


single second of that day, because the Civil
Code says a day has 24 hours. MR. GUINGONA. Mention was made about the
need for having a definite date. I think it is
precisely the proposal of Commissioner Bernas
which speaks of the date (of ratification that
So that even if the votes are cast in the would have a definite date, because there
morning, the Constitution is really effective would be no definite date if we depend upon
from the previous midnight. So that when we the canvassing by the COMELEC.
adopted the new rule on citizenship, the
children of Filipino mothers or anybody born on
the date of effectivity of the 1973 Constitution,
which is January 17, 1973, are natural-born Thank you,
citizens, no matter what time of day or night.

THE PRESIDENT. Commissioner Concepcion is


MR. MAAMBONG. Could we, therefore, recognized.
safely say that whatever date is the publication
of the results of the canvass by the COMELEC
retroacts to the date of the plebiscite? MR. CONCEPCION. Thank you, Madam
President.

FR. BERNAS. Yes, Madam President.


Whoever makes the announcement as to the
result of the plebiscite, be it the COMELEC or
MR. MAAMBONG. I thank the Commissioner. the President, would announce that a majority
of the votes cast on a given date was in favor of
the Constitution. And that is the date when the
Constitution takes effect, apart from the fact
MR. GUINGONA. Madam President. that the provision on the drafting or
amendment of the Constitution provides that a
constitution becomes effective upon ratification
THE PRESIDENT. Commissioner Guingona is by a majority of the votes cast, although I would
recognized. not say from the very beginning of the date of

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election because as of that time it is impossible


to determine whether there is a majority. At the
end of the day of election or plebiscite, the MR. MAAMBONG. Madam President.
determination is made as of that time-the
majority of the votes cast in a plebiscite held on
such and such a date. So that is the time when THE PRESIDENT. Commissioner
the new Constitution will be considered ratified Maambong is recognized
and, therefore, effective.

MR. MAAMBONG. We will now ask once


THE PRESIDENT. May we now hear Vice- more Commissioner Davide if he is insisting on
President Padilla. his amendment

MR. PADILLA. Madam President, I am against MR. DAVIDE. In view of the explanation and
the proposed amendment of Commissioner overwhelming tyranny of the opinion that it will
Davide and I support the view of Commissioner be effective on the very day of the plebiscite, I
Bernas and the others because the ratification am withdrawing my amendment on the
of the Constitution is on the date the people, by assumption that any of the following bodies the
a majority vote, have cast their votes in favor of Office of the President or the COMELEC will
the Constitution. Even in civil law, if there is a make the formal announcement of the results.
contract, say, between an agent and a third
person and that contract is confirmed or ratified
by the principal, the validity does not begin on MR. RAMA. Madam President, we are now
the date of ratification but it retroacts from the ready to vote on the original provision as stated
date the contract was executed. by the committee.

Therefore, the date of the Constitution as MR. MAAMBONG. The committee will read
ratified should retroact to the date that the again the formulation indicated in the original
people have cast their affirmative votes in favor committee report as Section 12.
of the Constitution.

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This Constitution shall take effect immediately same date February 2, 1987 and (2) by and after
upon its ratification by a majority of the votes said date, February 2, 1987, absent any saying
cast in a plebiscite called for the purpose and clause to the contrary in the Transitory Article
shall supersede all previous Constitutions. of the Constitution, respondent OIC Governor
could no longer exercise the power to replace
petitioners in their positions as Barangay
We ask for a vote, Madam President. Captain and Councilmen. Hence, the attempted
replacement of petitioners by respondent OIC
Governor's designation on February 8, 1987 of
their successors could no longer produce any
VOTING
legal force and effect. While the Provisional
Constitution provided for a one-year period
expiring on March 25, 1987 within which the
THE PRESIDENT. As many as are in favor, please power of replacement could be exercised, this
raise their hand. (Several Members raised their period was shortened by the ratification and
hands.) effectivity on February 2, 1987 of the
Constitution. Had the intention of the framers
of the Constitution been otherwise, they would
As many as are against, please raise their hand. have so provided for in the Transitory Article, as
(No Member raised his hand.) indeed they provided for multifarious transitory
provisions in twenty six sections of Article XVIII,
e.g. extension of the six-year term of the
incumbent President and Vice-President to
The results show 35 votes in favor and none
noon of June 30, 1992 for purposes of
against; Section 12 is approved. 2
synchronization of elections, the continued
exercise of legislative powers by the incumbent
President until the convening of the first
The Court next holds as a consequence of its Congress, etc.
declaration at bar that the Constitution took
effect on the date of its ratification in the
plebiscite held on February 2, 1987, that: (1) the
A final note of clarification, as to the statement
Provisional Constitution promulgated on March
in the dissent that "the appointments of some
25, 1986 must be deemed to have been
seven Court of Appeals Justices, 71 provincial
superseded by the 1987 Constitution on the
fiscals and 55 city fiscals reported extended (by)

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the President on February 2, 1987 . . . could be In her quiet and restrained manner, Justice
open to serious questions," in view of the Herrera is able to prove her point with more
provisions of Sections 8 (1) and 9, Article VIII of telling effect than the tones of thunder. She has
the Constitution which require prior written another persuasive opinion, and I am
endorsement thereof by the Judicial and Bar delighted to concur. I note that it in effect
Council created under the Constitution. It affirms my dissents in the De la Serna, Zamora,
should be stated for the record that the Duquing and Bayas cases, where I submitted
reported date of the appointments, February 2, that the local OICs may no longer be summarily
1987, is incorrect. The official records of the replaced, having acquired security of tenure
Court show that the appointments of the seven under the new Constitution. Our difference is
Court of Appeals Justices were transmitted to that whereas I would make that right
this Court on February 1, 1987 and they were all commence on February 25, 1987, after the
appointed on or before January 31, 1987. 3 deadline set by the Freedom Constitution,
(Similarly, the records of the Department of Justice Herrera would opt for February 2, 1987,
Justice likewise show that the appointment when the new Constitution was ratified. I yield
papers of the last batch of provincial and city to that better view and agree with her ponencia
fiscals signed by the President in completion of completely.
the reorganization of the prosecution service
were made on January 31, 1987 and
transmitted to the Department on February 1, SARMIENTO, J., Dissenting.
1987.) It is also a matter of record that since
February 2, 1987, no appointments to the
Judiciary have been extended by the President,
With due respect to the majority I register this
pending the constitution of the Judicial and Bar
dissent.
Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the
effective date of the Constitution, as now
expressly declared by the Court. While I agree that the one-year deadline
prescribed by Section 2, Article III of the
Provisional Constitution with respect to the
tenure of government functionaries, as follows:
CRUZ, J., concurring.

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SECTION 2. All elective and appointive officials It is my reading of this provision that the
and employees under the 1973 Constitution Constitution takes effect on the date its
shall continue in office until otherwise provided ratification shall have been ascertained, and not
by proclamation or executive order or upon the at the time the people cast their votes to
designation or appointment and qualification of approve or reject it. For it cannot be logically
their successors, if such appointment is made said that Constitution was ratified during such a
within a period of one year from February 25, plebiscite, when the will of the people as of that
1986. time, had not, and could not have been, vet
determined.

was cut short by the ratification of the 1987


Constitution, I entertain serious doubts whether Other than that, pragmatic considerations
or not that cut-off period began on February 2, compel me to take the view.
1987, the date of the plebiscite held to approve
the new Charter. To my mind the 1987
constitution took effect on February 11, 1987, I have no doubt that between February 2, and
the date the same was proclaimed ratified February 11, 1987 the government performed
pursuant to Proclamation No. 58 of the acts that would have been valid under the
President of the Philippines, and not February 2, Provisional Constitution but would otherwise
1987, plebiscite day. have been void under the 1987 Charter. I recall,
in particular, the appointments of some seven
Court of Appeals Justices, 71 provincial fiscals,
I rely, first and foremost, on the language of the and 55 city fiscals the President reportedly
1987 Charter itself, thus: extended on February 2, 1987. 1 Under Sections
8 (1) and 9, Article VIII, of the l987 Constitution,
as follows:
Sec. 27. This Constitution shag take effect
immediately upon its ratification by a majority
of the votes cast in a plebiscite held for the xxx xxx xxx
purpose and shall supersede all previous
Constitutions.
Sec. 8. (I)A Judicial and Bar Council is hereby
created under the supervision of the Supreme

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Court composed of the Chief Justice as ex In Magtoto v. Manguera, 2 we held that the
officio Chairman, the Secretary of Justice, and a 1973 Constitution became in force and effect
representative of the Congress as ex oficio on January 17, 1973, the date Proclamation No.
Members, a representative of the Integrated 1102, "Announcing the Ratification by the
Bar, a professor of law, a retired Member of the Filipino People of the Constitution Proposed by
Supreme Court, and a representative of the the 1971 Constitutional Convention," was
private sector. issued, although Mr. Justice, now Chief Justice,
Teehankee would push its effectivity date
further to April 17, 1973, the date our decision
xxx xxx xxx in Javellana v. Executive Secretary, 3 became
final. And this was so notwithstanding Section
16, Article XVII, of the 1973 Constitution, thus:

2Sec. 9. The Members of the Supreme Court


and judges of lower courts shall be appointed
by the President from a list of at least three SEC. 16. This Constitution shall take effect
nominees prepared by the Judicial and Bar immediately upon its ratification by a majority
Council for every vacancy, Such appointments of the votes cast in a plebiscite called for the
need no confirmation. purpose and, except as herein provided, shall
supersede the Constitution of nineteen-
hundred and thirty- five and all amendments
thereto.
xxx xxx xxx

On October 27, 1976, then President Marcos


such appointments could be open to serious
promulgated Proclamation no. 1595,
questions.
proclaiming the ratification of the 1976
amendments submitted in the plebiscite of
October 16- 17, 1976. The Proclamation states,
Since 1973, moreover, we have invariably inter alia, that.
reckoned the effectivity of the Constitution as
well as the amendments thereto from the date
it is proclaimed ratified.
By virtue-of the powers vested in me by law, I
hereby proclaim all the amendments embodied

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in this certificate as duly ratified by the Filipino It shall be noted that under Resolution No. 21,
people in the referendum plebiscite held Oct. dated December 18, 1979, the proposed
16-17, 1976 and are therefore effective and in amendment shall take effect on the date the
full force and effect as of this date. incumbent President/Prime Minister shall
proclaim its ratification.

It shall be noted that under Amendment No. 9


of the said 1976 amendments. On April 7, 1981, Proclamation No. 2077 was
issued "Proclaiming the Ratification in the
Plebiscite of April 7, 1981 of the Amendments
These amendments shall take effect after the to the Constitution Embodied in Batas
incumbent President shall have proclaimed that Pambansa Blg. 122 and Declaring Them
they have been ratified by a majority of the Therefore Effective and in Full Force and
votes cast in the referendum-plebiscite. Effect." The Proclamation, in declaring the said
amendments duly approved, further declared
them "[e]ffective and in full force and in effect
as of the date of this Proclamation," It shall be
On April 1, 1980, the then Chief Executive
noted, in this connection, that under
issued Proclamation no. 1959, "Proclaiming the
Resolutions Nos. I and 2 of the Batasang
Ratification by the Filipino People of the
Pambansa, Third Regular Session, Sitting as a
Amendments of Section 7, Article X of the
Constituent Assembly, which parented these
Constitution" (lengthening the terms of office of
amendments, the same:
judges and justices). The Proclamation provides:

... shall become valid as part of the Constitution


[t]he above-quoted amendment has been duly
when approved by a majority of the votes cast
ratified by a majority of the votes cast in the
in a plebiscite to be held pursuant to Section 2,
plebiscite held, together with the election for
Article XVI of the Constitution.
local officials, on January 30, 1980, and that said
amendment is hereby declared to take effect
immediately.
On the other hand, Batas Pambansa Blg. 122,
"An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the

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Constitution of the Philippines, Proposed by the The proposed amendments shall take effect on
Batasang Pambansa, Sitting as a Constituent the date the President of the Philippines shall
Assembly, in its Resolutions Numbered Three, proclaim that they have been ratified by a
Two, and One, and to Appropriate Funds majority of the votes cast in the plebiscite held
Therefore," provides, as follows: for the purpose, but not later than three
months from the approval of the amendments.

SEC. 7. The Commission on Elections, sitting en


banc, shad canvass and proclaim the result of albeit Resolutions Nos. 105, 111, and 113
the plebiscite using the certificates submitted to provide, that:
it, duly authenticated and certified by the Board
of Canvassers of each province or city.
These amendments shall be valid as a part of
the Constitution when approved by a majority
We have, finally, Proclamation No. 2332, of the votes cast in an election/plebiscite at
"Proclaiming the Ratification in the Plebiscite of which it is submitted to the people for their
January 27, 1984, of the Amendments to the ratification pursuant to Section 2 of Article XVI
Constitution Embodied in Batasang Pambansa of the Constitution, as amended.
Resolutions Nos. 104, 105, 110, 111, 112 and
113." It states that the amendments:
That a Constitution or amendments thereto
take effect upon proclamation of their
....are therefore effective and in full force and ratification and not at the time of the plebiscite
effect as of the date of this Proclamation. is a view that is not peculiar to the Marcos era.

It carries out Resolution no. 104 itself (as well as The Resolution of Both Houses (of Congress) in
Resolutions Nos. 110 and 112 and Section 9, Joint Session on the March 11, 1947 plebiscite
Batas Blg. 643), which states, that: called pursuant to Republic Act No. 73 and the
Resolution of Both Houses (of Congress)
adopted on September 18, 1946, was adopted
on April 9,1947. The April 9, 1947 Resolution
makes no mention of a retroactive application.

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Accordingly, when the incumbent President the 1987 Constitution not being then as yet in
(Mrs. Corazon C. Aquino) proclaimed on force.
February 11, 1987, at Malacanang Palace:
De Leon vs. Esguerra Digest

De Leon v. Esguerra Case Digest


... that the Constitution of the Republic of the
Philippines adopted by the Constitutional De Leon v. Esguerra, 153 SCRA 602, August, 31,
Commission of 1986, including the Ordinance 1987
appended thereto, has been duly ratified by the (En Banc), J. Melencio-Herrera
Filipino people and is therefore effective and in
full force and effect. 4

the 1987 Constitution, in point of fact, came Facts: On May 17, 1982, petitioner Alfredo M.
into force and effect, I hold that it took effect at De Leon was elected Barangay Captain together
no other time. with the other petitioners as Barangay
Councilmen of Barangay Dolores, Muncipality of
Taytay, Province of Rizal in a Barangay election
I submit that our ruling in Ponsica v. Ignalaga 5 held under Batas Pambansa Blg. 222, otherwise
in which we declared, in passing, that the new known as Barangay Election Act of 1982.
Charter was ratified on February 2, 1987, does
not in any way weaken this dissent. As I stated,
the remark was said in passing-we did not On February 9, 1987, petitioner De Leon
resolve the case on account of a categorical received a Memorandum antedated December
holding that the 1987 Constitution came to life 1, 1986 but signed by respondent OIC Governor
on February 2, 1987. In any event, if we did, I Benjamin Esguerra on February 8, 1987
now call for its re-examination. designating respondent Florentino G. Magno as
Barangay Captain of Barangay Dolores and the
other respondents as members of Barangay
I am therefore of the opinion, consistent with Council of the same Barangay and Municipality.
the views expressed above, that the challenged
dismissals done on February 8, 1987 were valid,

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Petitoners prayed to the Supreme Court that Issue: Whether or not the designation of
the subject Memoranda of February 8, 1987 be respondents to replace petitioners was validly
declared null and void and that respondents be made during the one-year period which ended
prohibited by taking over their positions of on Feb 25, 1987.
Barangay Captain and Barangay Councilmen.

Petitioners maintain that pursuant to Section 3


of the Barangay Election Act of 1982 (BP Blg. Ruling: Supreme Court declared that the
222), their terms of office shall be six years Memoranda issued by respondent OIC Gov on
which shall commence on June 7, 1988 and Feb 8, 1987 designating respondents as
shall continue until their successors shall have Barangay Captain and Barangay Councilmen of
elected and shall have qualified. It was also Barangay Dolores, Taytay, Rizal has no legal
their position that with the ratification of the force and effect.
1987 Philippine Constitution, respondent OIC
Governor no longer has the authority to replace
them and to designate their successors. The 1987 Constitution was ratified in a
plebiscite on Feb 2, 1987, therefore, the
Provisional Constitution must be deemed to
On the other hand, respondents contend that have superseded. Having become inoperative,
the terms of office of elective and appointive respondent OIC Gov could no longer rely on Sec
officials were abolished and that petitioners 2, Art 3, thereof to designate respondents to
continued in office by virtue of Sec. 2, Art. 3 of the elective positions occupied by petitioners.
the Provisional Constitution and not because Relevantly, Sec 8, Art 1 of the 1987 Constitution
their term of six years had not yet expired; and further provides in part:
that the provision in the Barangay Election Act
fixing the term of office of Barangay officials to
six years must be deemed to have been "Sec. 8. The term of office of elective local
repealed for being inconsistent with Sec. 2, Art. officials, except barangay officials, which shall
3 of the Provisional Constitution. be determined by law, shall be three years x x
x."

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Until the term of office of barangay officials has the Official Gazette, considering its erratic
been determined by aw, therefore, the term of release and limited readership";
office of 6 years provided for in the Barangay
Election Act of 1982 should still govern.
WHEREAS, it was likewise observed that
"[u]ndoubtedly, newspapers of general
E.O. 200
circulation could better perform the function of
EXECUTIVE ORDER NO. 200 June 18, 1987
communicating the laws to the people as such
periodicals are more easily available, have a
wider readership, and come out regularly"; and
PROVIDING FOR THE PUBLICATION OF LAWS
EITHER IN THE OFFICIAL GAZETTE OR IN A
NEWSPAPER OF GENERAL CIRCULATION IN THE
WHEREAS, in view of the foregoing premises
PHILIPPINES AS A REQUIREMENT FOR THEIR
Article 2 of the Civil Code should accordingly be
EFFECTIVITY
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;
WHEREAS, Article 2 of the Civil Code partly
provides that "laws shall take effect after fifteen
days following the completion of their
NOW, THEREFORE, I, CORAZON C. AQUINO,
publication in the Official Gazette, unless it is
President of the Philippines, by virtue of the
otherwise provided . . .;"
powers vested in me by the Constitution, do
hereby order:

WHEREAS, the requirement that for laws to be


effective only a publication thereof in the
Sec. 1. Laws shall take effect after fifteen days
Official Gazette will suffice has entailed some
following the completion of their publication
problems, a point recognized by the Supreme
either in the Official Gazette or in a newspaper
Court in Taada. et al. vs. Tuvera, et al. (G.R.
of general circulation in the Philippines, unless
No. 63915, December 29, 1986) when it
it is otherwise provided.
observed that "[t]here is much to be said of the
view that the publication need not be made in

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Sec. 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.

Sec. 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.

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