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G.R. No.

110668 February 6, 1997 The cargo arrived at the Port of Manila on September 1, 1982 aboard
SMITH, BELL & CO., INC., petitioner, the above-mentioned carrying vessel and landed at port on
vs. September 2, 1982. thereafter, the entire cargo was discharged to
COURT OF APPEALS and JOSEPH BENGZON CHUA,1 respondents. the local arrastre contractor, Metroport Services Inc. with a number
PANGANIBAN, J.: of the cargo in apparent bad order condition. On September 27,
The main issue raised in this case is whether a local claim or settling 1982, the plaintiff secured the services of a cargo surveyor to conduct
agent is personally and/or solidarily liable upon a marine insurance a survey of the damaged cargo which were (sic) delivered by
policy issued by its disclosed foreign principal. plaintiff's broker on said date to the plaintiffs premises at 12th
This is a petition for review on certiorari of the Decision of Avenue, Grace Park, Caloocan City. The surveyor's report (Exh. "E")
respondent Court2 promulgated on January 20, 1993 in CA-G.R. CV showed that of the 1,250 bags of the imported material, 600 were
No. 31812 affirming the decision 3 of the trial court4 which disposed damaged by tearing at the sides of the container bags and the
as follows:5 contents partly empty. Upon weighing, the contents of the damaged
Wherefore, the Court renders judgment condemning the defendants bags were found to be 18,546.0 kg short. Accordingly, on October 16
(petitioner and First Insurance Co. Ltd.) jointly and severally to pay following, the plaintiff filed with Smith, Bell, and Co., Inc. a formal
the plaintiff (private respondent) the amount of US$7,359.78. plus statement of claim (Exh. "G") with proof of loss and a demand for
24% interest thereon annually until the claim is fully paid, 10% as and settlement of the corresponding value of the losses, in the sum of
for attorney's fees, and the cost. US$7,357.78.00. (sic) After purportedly conveying the claim to its
The Facts principal, Smith, Bell, and Co., Inc. informed the plaintiff by letter
The facts are undisputed by the parties,6 and are narrated by dated February 15, 1983 (Exh."G-2") that its principal offered only
respondent Court, quoting the trial court, as follows:7 50% of the claim or US$3,616.17 as redress, on the alleged ground of
The undisputed facts of the case have been succintly (sic) discrepancy between the amounts contained in the shipping agent's
summarized by the lower court(,) as follows: reply to the claimant of only US$90.48 with that of Metroport's. The
. . . in July 1982, the plaintiffs, doing business under the style of Tic offer not being acceptable to the plaintiff, the latter wrote Smith,
Hin Chiong, Importer, bought and imported to the Philippines from Bell, & Co. expressing his refusal to the "redress" offer. contending
the firm Chin Gact Co., Ltd. of Taipei; Taiwan, 50 metric tons of that the discrepancy was a result of loss from vessel to arrastre to
Dicalcium Phosphate, Feed Grade F-15% valued at US$13,000.00 CIF consignees' warehouse\which losses were still within the "all risk"
Manila. These were contained in 1,250 bags and shipped from the insurance cover. No settlement of the claim having been made, the
Port of Kaohsiung, Taiwan on Board S.S. "GOLDEN WEALTH" for the plaintiff then caused the instant case to be filed. (p. 2, RTC Decision;
Port on (sic) Manila. On July 27, 1982, this shipment was insured by p. 142, Record).
the defendant First Insurance Co. for US$19,500.00 "against all risks" Denying any liability, defendant-appellant averred in its answer that
at port of departure under Marine Policy No. 1000M82070033219, it is merely a settling or claim agent of defendant insurance company
with the note "Claim, if any, payable in U.S. currency at Manila (Exh. and as SUCH agent, it is not personally liable under the policy in which
"1", 'D" for the plaintiff) and with defendant Smith, Bell, and Co. it has not even taken part of. It then alleged that plaintiff-appellee
stamped at the lower left side of the policy as "Claim Agent." has no cause of action against it.
Defendant The First Insurance Co. Ltd. did not file an Answer, hence settling or claim agent jointly and severally liable with its principal."
it was declared in default. 11
After due trial and proceeding, the lower court rendered a decision Likewise, private respondent disputed the applicability of the cases
favorable to plaintiff-appellee. It ruled that plaintiff-appellee has fully of E Macias & Co. vs. Warner, Barnes & Co. 12 and Salonga vs.
established the liability of the insurance firm on the subject insurance Warner, Barnes & Co., Ltd. 13 invoked by petitioner in its appeal.
contract as the former presented concrete evidence of the amount According to private respondent, these two cases impleaded only the
of losses resulting from the risks insured against which were "insurance agent" and did not include the principal. While both the
supported, by reliable report and assessment of professional cargo foreign principal — which was declared in default by the trial court
surveyor. As regards defendant-appellant, the lower court held that — and petitioner, as claim agent, were found to be solidarily liable in
since it is admittedly a claim agent of the foreign insurance firm doing this case, petitioner still had "recourse" against its foreign principal.
business in the Philippines justice is better served if said agent is Also, being a contract of adhesion, an insurance agreement must be
made liable without prejudice to its right of action against its strictly construed against the insurer. 14
principal, the insurance firm. . . . The Court's Ruling
The Issue There are three reasons why we find for petitioner.
"Whether or not a local settling or claim agent of a disclosed principal First Reason: Existing Jurisprudence
— a foreign insurance company — can be held jointly and severally Petitioner, undisputedly a settling agent acting within the scope of its
liable with said principal under the latter's marine cargo insurance authority, cannot be held personally and/or solidarily liable for the
policy, given that the agent is not a party to the insurance contract" obligations of its disclosed principal merely because there is allegedly
8 — is the sole issue-raised by petitioner. a need for a speedy settlement of the claim of private respondent. In
Petitioner rejects liability under the said insurance contract, claiming the leading case of Salonga vs. Warner, Barnes & Co., Ltd. this Court
that: (1) it is merely an agent and thus not personally liable to the ruled in this wise: 15
party with whom it contracts on behalf of its principal; (2) it had no We agree with counsel for the appellee that the defendant is a
participation at all in the contract of insurance; and (3) the suit is not settlement and adjustment agent of the foreign insurance company
brought against the real party-in-interest.9 and that as such agent it has the authority to settle all the losses and
On the other hand, respondent Court in ruling against petitioner claims that may arise under the policies that may be issued by or in
disposed of the main issue by citing a case it decided in 1987, where behalf of said company in accordance with the instructions it may
petitioner was also a party-litigant. 10 In that case, respondent Court receive from time to time from its principal, but we disagree with
held that petitioner as resident agent of First Insurance Co. Ltd. was counsel in his contention that as such adjustment and settlement
"authorized to settle claims against its principal. Its defense that its agent, the defendant has assumed personal liability under said
authority excluded personal liability must be proven satisfactorily. policies, and, therefore, it can be sued in its own right. An adjustment
There is a complete dearth of evidence supportive of appellant's non- and settlement agent is no different from any other agent from the
responsibility as resident agent." The ruling continued with the point of view of his responsibility (sic), for he also acts in a
statement that "the interest of justice is better served by holding the representative capacity. Whenever he adjusts or settles a claim, he
does it in behalf of his principal, and his action is binding not upon
himself but upon his principal. And here again, the ordinary rule of liability, and thus no Cause of action against petitioner attaches.
agency applies. The following authorities bear this out: Under Article 1311 17 of the Civil Code, contracts are binding only
"An insurance adjuster is ordinarily a special agent for the person or upon the parties (and their assigns and heirs) who execute them. The
company for whom he acts, and his authority is prima facie subject cargo insurance was between the First Insurance Company,
coextensive with the business intrusted to him. . . ." Ltd. and the Chin Gact Co., Ltd., both of Taiwan, and was signed in
"An adjuster does not discharge functions of a quasi-judicial nature, Taipei, Taiwan by the president of the First Insurance Company, Ltd.
but represents his employer, to whom he owes faithful service, and and the president of the Chin Gact Co., Ltd. 18 There is absolutely
for his acts, in the employer's interest, the employer is responsible so nothing in the contract which mentions the personal liability of
long as the acts are done while the agent is acting within the scope petitioner.
of his employment." (45 C.J.S., 1338- 1340.) Second Reason: Absence of Solidarity Liability
It, therefore, clearly appears that the scope and extent of the May then petitioner, in its capacity as resident agent (as found in the
functions of an adjustment and settlement agent do not include case cited by the respondent Court 19) be held solidarily liable with
personal liability. His functions are merely to settle and adjusts claims the foreign insurer? Article 1207 of the Civil Code clearly provides
in behalf of his principal if those claims are proven and undisputed, that "(t)here is a solidary liability only when the obligation expressly
and if the claim is disputed or is disapproved by the principal, like in so states, or when the law or the nature of the obligation requires
the instant case, the agent does not assume any personal liability. solidarity." The well-entrenched rule is that solidary obligation
The recourse of the insured is to press his claim against the principal. cannot lightly be inferred. It must be positively and clearly expressed.
(Emphasis supplied). The contention that, in the end, it would really be First Insurance
The foregoing doctrine may have been enunciated by this Court in Company, Ltd. which would be held liable is specious and cannot be
1951, but the passage of time has not eroded its value or merit. It still accepted. Such a stance would inflict injustice upon petitioner which
applies with equal force and vigor. would be made to advance the funds to settle the claim without any
Private respondent's contention that Salonga does not apply simply assurance that it can collect from the principal which disapproved
because only the agent was sued therein while here both agent and such claim, in the first place. More importantly, such ,position would
principal were impleaded and found solidarily liable is without merit. have absolutely no legal basis.
Such distinction is immaterial. The agent can not be sued nor held The Insurance Code is quite clear as to the Purpose and role of a
liable whether singly or solidarily with its principal. resident agent. Such agent, as a representative of the foreign
Every cause of action ex contractu must be founded upon a contract, insurance company, is tasked only to receive legal processes on
oral or written, either express or implied. 16 The only "involvement" behalf of its principal and not to answer personally for any insurance
of petitioner in the subject contract of insurance was having its name claims. We quote:
stamped at the bottom left portion of the policy as "Claim Agent." Sec. 190. The Commissioner must require as a condition precedent
Without anything else to back it up, such stamp cannot even be to the transaction of insurance business in the Philippines by any
deemed by the remotest interpretation to mean that petitioner foreign insurance company, that such company file in his office a
participated in the preparation of said contract. Hence, there is no written power of attorney designating some person who shall be a
privity of contract, and correspondingly there can be no obligation or resident of the Philippines as its general agent, on whom any notice
provided by law or by any insurance policy, proof summons and other for the finding of respondent Court that petitioner is the resident
legal processes may be served in all actions or other legal proceedings agent of First Insurance Co., Ltd.
against such company, and consenting that service upon such general Third Reason: Not Real Party-In-Interest
agent shall be admitted and held as valid as if served upon the foreign Lastly, being a mere agent and representative, petitioner is also not
company at its home office. Any such foreign company shall, as the real party-in-interest in this case. An action is brought for a
further condition precedent to the transaction of insurance business practical purpose, that is, to obtain actual and positive relief. If the
in the Philippines, make and file with the Commissioner an party sued is not the proper party, any decision that may be rendered
agreement or stipulation, executed by the proper authorities of said against him would be futile, for the decision cannot be enforced or
company in form and substance as follows: executed. Section 2, Rule 3 of the Rules of Court identifies who the
The (name of company) does hereby stipulate and agree in real parties-in-interest are, thus:
consideration of the permission granted by the Insurance Sec. 2. Parties in interest. — Every action must be prosecuted and
Commissioner to transact business in the Philippines, that if at any defended in the name of the real party in interest. All persons having
time such company shall leave the Philippines, or cease to transact an interest in the subject of the action and in obtaining the relief
business therein, or shall be without any agent in the Philippines on demanded shall be joined as plaintiffs. All persons who claim an
whom any notice, proof of loss, summons, or legal process may be interest in the controversy or the subject thereof adverse to the,
served, then in any action or proceeding arising out of any business plaintiff, or who are necessary to a complete determination or
or transaction which occurred in the Philippines, service of any notice settlement of the questions involved therein shall be joined as
provided by law, or insurance policy, proof of loss, summons, or other defendants.
legal process may be made upon the Insurance Commissioner shall The cause of action of private respondent is based on a contract of
have the same force and effect as if made upon the company. insurance which as already shown was not participated in by
Whenever such service of notice, proof of loss, summons or other petitioner. It is not a "person who claim(s) an interest adverse to the
legal process shall be made upon the Commissioner he must, within plaintiff" nor is said respondent "necessary to a complete
ten days thereafter, transmit by mail, postage paid, a copy of such determination or settlement of the questions involved" in the
notice, proof of loss, summons, or other legal process to the company controversy. Petitioner is improperly impleaded for not being a real-
at its home or principal office. The sending of such copy of the party-interest. It will not benefit or suffer in case the action prospers.
Commissioner shall be necessary part of the service of the notice, 20
proof of loss, or other legal process. (Emphasis supplied). Resort to Equity Misplaced
Further, we note that in the case cited by respondent Court, Finally, respondent Court also contends that "the interest of justice
petitioner was found to be a resident agent of First Insurance Co. Ltd. is better served by holding the settling agent jointly and severally
In the instant case however, the trial court had to order the service liable with its principal." As no law backs up such pronouncement,
of summons upon First Insurance Co., Ltd. which would not have the appellate Court is thus resorting to equity. However, equity which
been necessary if petitioner was its resident agent. Indeed, from our has been aptly described as "justice outside legality," is availed of
reading of the records of this case, we find no factual and legal bases only in the absence of, and never against, statutory law or judicial
pronouncements. 21 Upon the other hand the liability of agents is (a) TEN MILLION (P10,000,000.00) PESOS upon signing of this
clearly provided for by our laws and existing jurisprudence. Contract to Sell;
WHEREFORE, in view of the foregoing considerations, the Petition is (b) The balance of EIGHTEEN MILLION (P18,000,000.00) PESOS shall
GRANTED and the Decision appealed from is REVERSED and SET be paid on or before March 8, 1995 at 9:30 A.M. at a bank to be
ASIDE. designated by the Buyer but upon the complete vacation of all the
No costs. tenants or occupants of the property and execution of the Deed of
SO ORDERED. Absolute Sale. However, if the tenants or occupants have vacated the
premises earlier than March 8, 1995, the VENDOR shall give the
G.R. No. 134241 August 11, 2003 VENDEE at least one week advance notice for the payment of the
DAVID REYES (Substituted by Victoria R. Fabella), petitioner, vs. balance and execution of the Deed of Absolute Sale.
JOSE LIM, CHUY CHENG KENG and HARRISON LUMBER, INC., 2. That in the event, the tenants or occupants of the premises subject
respondents. of this sale shall not vacate the premises on March 8, 1995 as stated
CARPIO, J.: above, the VENDEE shall withhold the payment of the balance of
The Case P18,000,000.00 and the VENDOR agrees to pay a penalty of Four
This is a petition for review on certiorari of the Decision1 dated 12 percent (4%) per month to the herein VENDEE based on the amount
May 1998 of the Court of Appeals in CA-G.R. SP No. 46224. The Court of the downpayment of TEN MILLION (P10,000,000.00) PESOS until
of Appeals dismissed the petition for certiorari assailing the Orders the complete vacation of the premises by the tenants therein.4
dated 6 March 1997, 3 July 1997 and 3 October 1997 of the Regional The complaint claimed that Reyes had informed Harrison Lumber to
Trial Court of Paranaque, Branch 2602 ("trial court") in Civil Case No. vacate the Property before the end of January 1995. Reyes also
95-032. informed Keng5 and Harrison Lumber that if they failed to vacate by
The Facts 8 March 1995, he would hold them liable for the penalty of P400,000
On 23 March 1995, petitioner David Reyes ("Reyes") filed before the a month as provided in the Contract to Sell. The complaint further
trial court a complaint for annulment of contract and damages alleged that Lim connived with Harrison Lumber not to vacate the
against respondents Jose Lim ("Lim"), Chuy Cheng Keng ("Keng") and Property until the P400,000 monthly penalty would have
Harrison Lumber, Inc. ("Harrison Lumber"). accumulated and equaled the unpaid purchase price of P18,000,000.
The complaint3 alleged that on 7 November 1994, Reyes as seller and On 3 May 1995, Keng and Harrison Lumber filed their Answer6
Lim as buyer entered into a contract to sell ("Contract to Sell") a denying they connived with Lim to defraud Reyes. Keng and Harrison
parcel of land ("Property") located along F.B. Harrison Street, Pasay Lumber alleged that Reyes approved their request for an extension
City. Harrison Lumber occupied the Property as lessee with a monthly of time to vacate the Property due to their difficulty in finding a new
rental of P35,000. The Contract to Sell provided for the following location for their business. Harrison Lumber claimed that as of March
terms and conditions: 1995, it had already started transferring some of its merchandise to
1. The total consideration for the purchase of the aforedescribed its new business location in Malabon.7
parcel of land together with the perimeter walls found therein is On 31 May 1995, Lim filed his Answer8 stating that he was ready and
TWENTY EIGHT MILLION (P28,000,000.00) PESOS payable as follows: willing to pay the balance of the purchase price on or before 8 March
1995. Lim requested a meeting with Reyes through the latter’s The trial court denied Reyes’ Motion for Reconsideration in its
daughter on the signing of the Deed of Absolute Sale and the Order13 dated 3 October 1997. In the same order, the trial court
payment of the balance but Reyes kept postponing their meeting. On directed Reyes to deposit the P10 million down payment with the
9 March 1995, Reyes offered to return the P10 million down payment Clerk of Court on or before 30 October 1997.
to Lim because Reyes was having problems in removing the lessee On 8 December 1997, Reyes14 filed a Petition for Certiorari15 with
from the Property. Lim rejected Reyes’ offer and proceeded to verify the Court of Appeals. Reyes prayed that the Orders of the trial court
the status of Reyes’ title to the Property. Lim learned that Reyes had dated 6 March 1997, 3 July 1997 and 3 October 1997 be set aside for
already sold the Property to Line One Foods Corporation ("Line One") having been issued with grave abuse of discretion amounting to lack
on 1 March 1995 for P16,782,840. After the registration of the Deed of jurisdiction. On 12 May 1998, the Court of Appeals dismissed the
of Absolute Sale, the Register of Deeds issued to Line One TCT No. petition for lack of merit.
134767 covering the Property. Lim denied conniving with Keng and Hence, this petition for review.
Harrison Lumber to defraud Reyes. The Ruling of the Court of Appeals
On 2 November 1995, Reyes filed a Motion for Leave to File Amended The Court of Appeals ruled the trial court could validly issue the
Complaint due to supervening facts. These included the filing by Lim assailed orders in the exercise of its equity jurisdiction. The court may
of a complaint for estafa against Reyes as well as an action for specific grant equitable reliefs to breathe life and force to substantive law
performance and nullification of sale and title plus damages before such as Article 138516 of the Civil Code since the provisional
another trial court.9 The trial court granted the motion in an Order remedies under the Rules of Court do not apply to this case.
dated 23 November 1995. The Court of Appeals held the assailed orders merely directed Reyes
In his Amended Answer dated 18 January 1996,10 Lim prayed for the to deposit the P10 million to the custody of the trial court to protect
cancellation of the Contract to Sell and for the issuance of a writ of the interest of Lim who paid the amount to Reyes as down payment.
preliminary attachment against Reyes. The trial court denied the This did not mean the money would be returned automatically to
prayer for a writ of preliminary attachment in an Order dated 7 Lim.
October 1996. The Issues
On 6 March 1997, Lim requested in open court that Reyes be ordered Reyes raises the following issues:
to deposit the P10 million down payment with the cashier of the 1. Whether the Court of Appeals erred in holding the trial court could
Regional Trial Court of Parañaque. The trial court granted this issue the questioned Orders dated March 6, 1997, July 3, 1997 and
motion. October 3, 1997, requiring petitioner David Reyes to deposit the
On 25 March 1997, Reyes filed a Motion to Set Aside the Order dated amount of Ten Million Pesos (P10,000,000.00) during the pendency
6 March 1997 on the ground the Order practically granted the reliefs of the action, when deposit is not among the provisional remedies
Lim prayed for in his Amended Answer.11 The trial court denied enumerated in Rule 57 to 61 of the 1997 Rules on Civil Procedure.
Reyes’ motion in an Order12 dated 3 July 1997. Citing Article 1385 of 2. Whether the Court of Appeals erred in finding the trial court could
the Civil Code, the trial court ruled that an action for rescission could issue the questioned Orders on grounds of equity when there is an
prosper only if the party demanding rescission can return whatever applicable law on the matter, that is, Rules 57 to 61 of the 1997 Rules
he may be obliged to restore should the court grant the rescission. on Civil Procedure.17
The Court’s Ruling Reyes is seeking rescission of the Contract to Sell. In his amended
Reyes’ contentions are without merit. answer, Lim is also seeking cancellation of the Contract to Sell. The
Reyes points out that deposit is not among the provisional remedies trial court then ordered Reyes to deposit in court the P10 million
enumerated in the 1997 Rules of Civil Procedure. Reyes stresses the down payment that Lim made under the Contract to Sell. Reyes
enumeration in the Rules is exclusive. Not one of the provisional admits receipt of the P10 million down payment but opposes the
remedies in Rules 57 to 6118 applies to this case. Reyes argues that order to deposit the amount in court. Reyes contends that prior to a
a court cannot apply equity and require deposit if the law already judgment annulling the Contract to Sell, he has the "right to use,
prescribes the specific provisional remedies which do not include possess and enjoy"26 the P10 million as its "owner"27 unless the
deposit. Reyes invokes the principle that equity is "applied only in the court orders its preliminary attachment.28
absence of, and never against, statutory law or x x x judicial rules of To subscribe to Reyes’ contention will unjustly enrich Reyes at the
procedure."19 Reyes adds the fact that the provisional remedies do expense of Lim. Reyes sold to Line One the Property even before the
not include deposit is a matter of dura lex sed lex.20 balance of P18 million under the Contract to Sell with Lim became
The instant case, however, is precisely one where there is a hiatus in due on 8 March 1995. On 1 March 1995, Reyes signed a Deed of
the law and in the Rules of Court. If left alone, the hiatus will result in Absolute Sale29 in favor of Line One. On 3 March 1995, the Register
unjust enrichment to Reyes at the expense of Lim. The hiatus may of Deeds issued TCT No. 13476730 in the name of Line One.31 Reyes
also imperil restitution, which is a precondition to the rescission of cannot claim ownership of the P10 million down payment because
the Contract to Sell that Reyes himself seeks. This is not a case of Reyes had already sold to another buyer the Property for which Lim
equity overruling a positive provision of law or judicial rule for there made the down payment. In fact, in his Comment32 dated 20 March
is none that governs this particular case. This is a case of silence or 1996, Reyes reiterated his offer to return to Lim the P10 million down
insufficiency of the law and the Rules of Court. In this case, Article 9 payment.
of the Civil Code expressly mandates the courts to make a ruling On balance, it is unreasonable and unjust for Reyes to object to the
despite the "silence, obscurity or insufficiency of the laws."21 This deposit of the P10 million down payment. The application of equity
calls for the application of equity,22 which "fills the open spaces in always involves a balancing of the equities in a particular case, a
the law."23 matter addressed to the sound discretion of the court. Here, we find
Thus, the trial court in the exercise of its equity jurisdiction may the equities weigh heavily in favor of Lim, who paid the P10 million
validly order the deposit of the P10 million down payment in court. down payment in good faith only to discover later that Reyes had
The purpose of the exercise of equity jurisdiction in this case is to subsequently sold the Property to another buyer.
prevent unjust enrichment and to ensure restitution. Equity In Eternal Gardens Memorial Parks Corp. v. IAC,33 this Court held the
jurisdiction aims to do complete justice in cases where a court of law plaintiff could not continue to benefit from the property or funds in
is unable to adapt its judgments to the special circumstances of a case litigation during the pendency of the suit at the expense of whomever
because of the inflexibility of its statutory or legal jurisdiction.24 the court might ultimately adjudge as the lawful owner. The Court
Equity is the principle by which substantial justice may be attained in declared:
cases where the prescribed or customary forms of ordinary law are In the case at bar, a careful analysis of the records will show that
inadequate.25 petitioner admitted among others in its complaint in Interpleader
that it is still obligated to pay certain amounts to private respondent; the sums expended by them in improving the land. (Civil Code, art.
that it claims no interest in such amounts due and is willing to pay 1295.)
whoever is declared entitled to said amounts. x x x The principle that no person may unjustly enrich himself at the
Under the circumstances, there appears to be no plausible reason for expense of another is embodied in Article 2238 of the Civil Code. This
petitioner’s objections to the deposit of the amounts in litigation principle applies not only to substantive rights but also to procedural
after having asked for the assistance of the lower court by filing a remedies. One condition for invoking this principle is that the
complaint for interpleader where the deposit of aforesaid amounts is aggrieved party has no other action based on contract, quasi-
not only required by the nature of the action but is a contractual contract, crime, quasi-delict or any other provision of law.39 Courts
obligation of the petitioner under the Land Development Program can extend this condition to the hiatus in the Rules of Court where
(Rollo, p. 252). the aggrieved party, during the pendency of the case, has no other
There is also no plausible or justifiable reason for Reyes to object to recourse based on the provisional remedies of the Rules of Court.
the deposit of the P10 million down payment in court. The Contract Thus, a court may not permit a seller to retain, pendente lite, money
to Sell can no longer be enforced because Reyes himself paid by a buyer if the seller himself seeks rescission of the sale
subsequently sold the Property to Line One. Both Reyes and Lim are because he has subsequently sold the same property to another
now seeking rescission of the Contract to Sell. Under Article 1385 of buyer.40 By seeking rescission, a seller necessarily offers to return
the Civil Code, rescission creates the obligation to return the things what he has received from the buyer. Such a seller may not take back
that are the object of the contract. Rescission is possible only when his offer if the court deems it equitable, to prevent unjust enrichment
the person demanding rescission can return whatever he may be and ensure restitution, to put the money in judicial deposit.
obliged to restore. A court of equity will not rescind a contract unless There is unjust enrichment when a person unjustly retains a benefit
there is restitution, that is, the parties are restored to the status quo to the loss of another, or when a person retains money or property
ante.34 of another against the fundamental principles of justice, equity and
Thus, since Reyes is demanding to rescind the Contract to Sell, he good conscience.41 In this case, it was just, equitable and proper for
cannot refuse to deposit the P10 million down payment in court.35 the trial court to order the deposit of the P10 million down payment
Such deposit will ensure restitution of the P10 million to its rightful to prevent unjust enrichment by Reyes at the expense of Lim.42
owner. Lim, on the other hand, has nothing to refund, as he has not WHEREFORE, we AFFIRM the Decision of the Court of Appeals.
received anything under the Contract to Sell.36 SO ORDERED.
In Government of the Philippine Islands v. Wagner and Cleland
Wagner,37 the Court ruled the refund of amounts received under a
contract is a precondition to the rescission of the contract. The Court G.R. No. 211737
declared: SERGIO R. OSMEÑA III, Petitioner,
The Government, having asked for rescission, must restore to the vs.
defendants whatever it has received under the contract. It will only DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS
be just if, as a condition to rescission, the Government be required to SECRETARY JOSEPH EMILIO A. ABAYA, MACTAN-CEBU
refund to the defendants an amount equal to the purchase price, plus INTERNATIONAL AIRPORT AUTHORITY (MCIAA), THE PRE-
QUALIFICATION, BIDS AND A WARDS COMMITTEE (PBAC) FOR THE On December 21, 2012, the Pre-qualification, Bids and Awards
MACTAN-CEBU INTERNATIONAL AIRPORT PROJECT THROUGH ITS Committee (PBAC) caused the publication of the invitation to pre-
CHAIRMAN, UNDERSECRETARY JOSE PERPETUO M. LOTILLA, GMR qualify and bid for the MCIA Project.2 PBAC sets as criteria the
INFRASTRUCTURE, LTD. ANDMEGAWIDE CONSTRUCTION following: (1) legal qualification; (2) technical qualification; and (3)
CORPORATION, Respondents. financial capability requirements.3 On December 27, 2012, the DOTC
x-----------------------x and Mactan-Cebu International Airport Authority (MCIAA) issued the
G.R. No. 214756 Instructions to Prospective Bidders (ITPB).4
BUSINESS FOR PROGRESS MOVEMENT as represented by On February 13, 2013, the PBAC conducted a Pre-Qualification
MEDARDO C. DEACOSTA, JR., Petitioner, Conference. In its Resolution5 dated May 14, 2013, the PBAC
vs. recommended the pre-qualification of the following prospective
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, bidders:
GMR-MEGAWIDE CEBU AIRPORT CORPORATION, Respondents. 1. AAA Airport Partners;
DECISION 2. Filinvest-CAI Consortium;
VILLARAMA, JR., J.: 3. First Philippine Airports;
Before us are the consolidated petitions for certiorari and injunction 4. GMR Infrastructure & Megawide Consortium;
to restrain public respondents from awarding the Mactan-Cebu 5. MPIC-JGS Airport Consortium;
International Airport (MCIA) Project to private respondents GMR 6. Premier Airport Group; and
Infrastructure Limited (GMR) and Megawide Construction 7. San Miguel & Incheon Airport Consortium.
Corporation (MCC). Petitioners subsequently prayed for invalidation After the submission and approval of the technical proposals
of the award after private respondents won the public bidding. submitted by the pre-qualified bidders, the PBAC proceeded with
The Facts accepting their financial proposals. The financial bids were ranked in
The MCIA Project consists of the construction of a new passenger terms of "premium" to the government such that "[a]ll bids received
terminal with all associated infrastructure facilities; construction of by the DOTC were 'premium' offers, meaning the money would go
apron for the new passenger terminal; rehabilitation and expansion directly to the government and would come on top of the cost to
of the existing terminal along with all associated infrastructure and develop the airport."6 The seven bids, from highest to lowest, are:
facilities; installation of all the required equipment and other 1
associated facilities; installation of the required information GMR-Megawide Consortium
technology and other equipment commensurate with the Php 14,404,570,002.00
operations; and operation and maintenance of both passenger 2
terminals during the concession period.1 The project is being Filinvest-Changi Airport Consortium
implemented by the Department of Transportation and Php 13 ,999 ,999 ,999 .99
Communications (DOTC) under the provisions of Republic Act (R.A.) 3
No. 6957 as amended by R.A. No. 7718, otherwise known as the Premier Airport Group
"Build-Operate-and-Transfer (BOT) Law." Php 12,500,088,888.88
4 Consortium Member
MPIC-JGS Airport Holdings, Inc. xxxx
Php 11,230,000.000.00 WHEREAS, upon completion of verification of the information,
5 representations and statements made in its Qualification
AAA Airport Partners Documents, Bid Letter, Technical Proposal and Financial Proposal and
Php 11,088,888,889.00 recommendation of the TWG [Technical Working Group] under its
6 report dated 2 April 2014, (i) the PBAC has not found any deficiency
San Miguel & Incheon Airport in the Financial Proposal, (ii) nor has any misrepresentation been
Php 9,050,000,000.00 found in the information, representations and statements made by
7 the GMR Infrastructure & Megawide Consortium in its Qualification
First Philippine Airports Documents, Technical Proposal, Financial Proposal, and (iii) nor has
Php 4, 700,000,000.007 the Consortium been found to have engaged in any Corrupt Practice,
On April 3, 2014, PBAC issued a Resolution8 recommending GMR- Fraud, Collusion, Coercion, Undesirable and Restrictive Practice,
Megawide Consortium as the winning bidder for the MCIA Project. Conflict of Interest, or violated the Lock-up Rules. A copy of the TWG
The resolution reads in part: Report dated 2 April 2014 is attached as Annex "DD";
WHEREAS, the GMR Infrastructure & Megawide Consortium, formed NOW THEREFORE, upon review and deliberation, pursuant to and in
by Megawide Construction Corporation ("Megawide") and GMR accordance with the provisions, constraints and limitations under the
Infrastructure Limited ("GMR") qualified under the Technical and BOT Law, BOT Law IRR, and the rules under the ITPB and ITB, the
Financial Qualification requirements, through the following entities: PBAC hereby resolves to recommend to the Honorable Secretary of
Development Experience the DOTC and the Board of the MCIAA: (i) to designate GMR
Infrastructure & Megawide Consortium as the Winning Bidder for the
* Delhi International Airport (P) Limited (DIAL) Project, and (ii) to consequently issue the Notice of Award to GMR
Affiliate of GMR Infrastructure Limited Infrastructure & Megawide Consortium.9
* GMR Hyderabad International Airport Limited (GHIAL) On the same day, Senator Sergio R. Osmeña III (petitioner Osmeña
Affiliate of GMR Infrastructure Limited III) filed in this Court a petition for certiorari and prohibition with
Operation and Maintenance application for temporary restraining order and/or writ of
preliminary injunction (G.R. No. 211737) praying that this Court (a)
* Delhi International Airport (P) Limited (DIAL) immediately issue an order restraining the public respondents from
Affiliate of GMR Infrastructure Limited further acting on the bid of private respondents; (b) issue an order
* GMR Hyderabad International Airport Limited (GHIAL) enjoining public respondents, their agents, representatives or assigns
Affiliate of GMR Infrastructure Limited from issuing a Notice of A ward and executing a Concession
Financial Qualification Agreement for the MCIA Project for private respondents; and (c) give
due course to his petition, and after due proceedings to render
* Megawide Construction Corp.
judgment declaring private respondents as unqualified bidder and II
making the injunction permanent. THE PBAC ILLEGALLY REFUSED TO DISQUALIFY THE GMR-MEGAWIDE
On April 4, 2014, DOTC and MCIAA issued the Notice of Award10 to CONSORTIUM IN THE FACE OF UNREFUTED EVIDENCE OF GMR'S
GMR-Megawide Consortium. Pursuant to Section 8.1 of the POOR FINANCIAL HEALTH AND TRACK RECORD IN ITS
Instruction to Bidders (ITB), private respondents were directed to INTERNATIONAL AIRPORT OPERATIONS.
submit the required documents and pay the Bid Amount to MCIAA. III
On April 7, 2014, petitioner Osmeña III filed a Supplemental Petition PUBLIC RESPONDENTS ILLEGALLY FAILED TO AND LATER REFUSED TO
reiterating his prayer for injunctive reliefs and for this Court to DISQUALIFY PRIVATE RESPONDENTS FOR VIOLA TING THE CONFLICT
further restrain the implementation of the Notice of A ward and OF INTEREST RULE AND THEIR OTHER INCAPACITIES EVEN IF IT WAS
render judgment declaring the same as null and void. THEIR MINISTERIAL DUTY TO DO SO.
Private respondents GMR and MCC, and public respondents DOTC, IV
MCIAA and PBAC filed their respective Comments. THE PUBLIC RESPONDENTS ILLEGALLY ACCORDED PRIVATE
Meanwhile, private respondents complied with the post-award RESPONDENTS AN UNDUE ADV ANT AGE AND/OR ACTED WITH
requirements, including the payment of the Php 14.4 Billion bid UNDUE BIAS INF A VOR OF PRIVATE RESPONDENTS.
amount to MCIAA. On April 22, 2014, the Concession Agreement was Petitioner Osmeña III argues that PBAC should have disqualified
executed between DOTC and MCIAA, and GMR-Megawide GMR-Megawide Consortium because it violated the conflict of
Consortium. interest rule when it failed to disclose that Mr. Tan Shri Bashir Ahmad
On October 31, 2014, a petition for injunction was filed by Business bin Abdul Majid was a director of two subsidiaries of the GMR-
for Progress Movement (BPM), represented by Medardo C. Deacosta, Megawide Consortium, and is also the Managing Director of Malaysia
Jr. (G.R. No. 214756). Petitioner BPM sought to restrain the turn-over Airport Holdings Berhad (MAHB), which joined the bidding for MCIA
of the operation and maintenance of the MCIA to GMR-Megawide Project as member of the First Philippine Airports Consortium. He
Consortium. With the simultaneous imposition of increased terminal asserts that this rule is mala prohibita; hence, it does not matter
fees, BPM claims that it stands to suffer great and irreparable damage whether the violation was intentional or not, and the penalty of
and injury once GMR-Megawide Consortium takes over the disqualification should be imposed. GMR-Megawide's violation
operation and management of the MCIA. disadvantaged the other bidders as they were restricted from
On November 1, 2014, DOTC turned over to GMR-Megawide entering into similar arrangements, and thus deprived them of an
Consortium the operation and maintenance of the MCIA. even playing field or a fair and competitive bidding.
Petitioners' Arguments Another ground of disqualification raised by petitioner Osmeña III
G.R. No. 211737 concerns the financial and technical capabilities of GMR as his
The following grounds are set forth in the petition: investigation and online research showed that GMR was in dire
I financial health and has been offloading several assets and its stake
THE PBAC ILLEGALLY QUALIFIED THE GMR-MEGA WIDE in various infrastructure projects to meet its financial obligations. He
CONSORTIUM DESPITE ITS PATENT VIOLATION OF THE CONFLICT OF likewise discovered GMR's unsavory record involving the Delhi
INTEREST RULE. International Airport Pvt. Ltd. (DIAL), which is the concessionaire for
GMR's Indira Gandhi International Airport at Delhi. According to the various members of consortia or bidders in order to determine the
Auditor General of India, (i) 27% of the project cost for Delhi Airport existence of conflict of interest; (b) public respondents did not look
was not funded by DIAL but charged to the travelling public; (ii) into cross-directorships or conflict of interest violations of GMR even
outsourcing of contracts to GMR joint venture companies was not on if the rules compel an inspection based on the submission of private
arms-length basis in violation of contract; and (iii) DIAL violated the respondents, and even refused to impose the penalty of
master plan and incurred delay in the completion of the project. The disqualification when the violation was pointed out; (c) GMR
Male International Airport (MIA) case also proves GMR's lack of admitted that MAHB is GMR' s partner in several of its airport
technical qualification to undertake the MCIA Project. GMR Male operations and that the Managing Director of MAHB is indeed a
International Airport Pvt. Ltd. (GMIAL), an indirect subsidiary of GMR, member of at least two subsidiaries of GMR; and (d) granting there
through its direct subsidiary GMR Infrastructure (Mauritius) Limited, was doubt in the existence of a violation of the conflict of interest
entered into a Concession Agreement dated June 28, 2010 with the rule, public respondents did not take the precaution of asking for the
Maldives Airport Company Ltd. (MACL) and the Maldives opinion of the Department of Justice (DOJ).
Government Ministry of Finance and Treasury for the Rehabilitation, Citing the case of Agan v. PIATCO,11 petitioner Osmeña III claims the
Expansion, Modernization, Operation and Maintenance of Male parallelisms between said case and the present controversy are too
International Airport for a period of 25 years. However, on November uncanny to ignore, and as in Agan, the Court should exercise its
27, 2012, the Maldives Government and MACL declared the solemn constitutional duty to nullify the award of the MCIA Project
Concession Agreement void ab initio and gave GMIAL seven days to to private respondents and avert serious damage to a project that the
vacate the MIA, which prompted GMIAL to initiate arbitration Province of Cebu looks forward to. GMR also confirmed its operating
proceedings. GMIAL sought a declaration that it was entitled to losses during the Senate hearings, and its present financial situation
adjust the fees payable to MACL by virtue of the invalidity of portions indicates that GMR Infra may not be earning enough money to meet
of the Concession Agreement, while MACL sought the declaration of its interest payments on time. As to the Airport Development Fund
the Concession Agreement as void ab initio. GMIAL had applied for being levied by DIAL, the Supreme Court of India found that the levy
an injunction before the courts of Singapore to restrain the Maldives made by DIAL during the period March 1, 2009 to April 23, 2010, prior
Government from interfering with the performance of the to the notice from Airport Economic Regulatory Authority (AERA)
Concession Agreement pending arbitration proceedings. On appeal, permitting DIAL to subsequently continue the levy, was made
the Singapore Court of Appeal set aside the preliminary injunction contrary to law.
issued by a High Court judge of Singapore. Thus, effective December Petitioner Osmeña III further avers that during the hearing conducted
8, 2012, the Maldives Government and MACL took control of the by the House of Representatives on the MCIA Project on March 12,
MIA. 2014, it was revealed that MCC failed to complete its school building
Following a privilege speech he delivered at the Senate, petitioner project despite two extensions granted to it. This is relevant because
Osmeña III said that the Senate Committee on Public Services, in fact, under the Procurement Law (R.A. No. 9184), if a bidder is more than
conducted two hearings on the matter where all the respondents 15% delayed in any of its infrastructure projects, it cannot be
were represented. It was alleged that during these hearings, it was awarded a new contract. While the MCIA Project is under the BOT
established that: (a) PBAC did not compare the submissions of the Law, the underlying principle still holds for the simple reason that
what is involved is a public contract. The foregoing negative findings taxpayer has a clear and unmistakable right to be protected as the
affecting both partners in the GMR-Megawide Consortium should imposition of the terminal fees in the increased amount as well as the
have compelled the PBAC, at the very least, to disqualify said turn-over of the MCIA to private respondents despite the fact that
consortium during the post-qualification as they were unable to the latter has no financial capacity will be prejudicial to petitioners.
demonstrate viable commercial operations. There is also an urgent and paramount necessity for the issuance of
G.R. No. 214756 the writ considering the scheduled turn-over on November 1, 2014,
Petitioner BPM also expressed doubts on the financial capacity of the and petitioner has no other plain, speedy and adequate remedy in
winning bidder, GMR-Megawide Consortium, to undertake the the course of law except this petition, for which purpose it is ready,
construction, development, operation and maintenance of the MCIA able and willing to post the necessary bond in the amount that this
in view of several news reports about GMR Infrastructure's state of Court may determine. BMP claims that there appears a clear and
being "debt-ridden," as it had to raise funds through sale, equity issue present danger that the instant petition will be rendered nugatory
and divest a few road and power plants in order to pay its corporate and ineffectual, and that the highest interest of justice will not be
loans. It was also reported that GMR asked the US private equity firm served if the act complained of - that is, the immediate turn-over of
KKR & Co. LP to provide about $175 Million in a debt and equity deal. the operations of the MCIA to private respondents, would not be
Apparently, the cancellation by the Maldives Government of GMR' s enjoined.
contract for modernizing the MIA had greatly affected GMR's In its Consolidated Reply, BPM argues that the petition has not been
revenues coming from its airport business. mooted by the actual turnover of MCIA's operation to private
With GMR's lack of financial capacity, BPM contends that the GMR- respondents since the terminal fees will continue to increase in 2016
Megawide Consortium had come up with a scheme of imposing to defray the cost of the project. GMR's financial incapacity, as
increased terminal fees to cover the operating costs and expansion confirmed by online articles on GMR's moves to bring down its debt
of the MCIA. From a news report published in the Business Mirror on burden and finance its projects, will thus continue to cause grave and
October 13, 2014, BPM learned that the MCIA board approved on irreparable damage to BPM. Direct injury is being suffered by BPM
October 10, 2014 higher passenger service charge (PSC) rates, members who are taxpayers frequently travelling to Cebu and
commonly known as terminal fees, "to help fund the expansion and Mactan from the increased terminal fees.
cover increasing operating costs as well as comply with the 25-year Respondents' Arguments
concession agreement between MCIAA and private airport operator G.R. No. 211737
GMR-Megawide Cebu Airport Corp. (GMCAC)," and that effective Megawide Construction Corp.
November 1, a domestic passenger would have to pay Php220, Php20 On procedural grounds, MCC contends that the petition should be
more than the current Php200 fee, while an international passenger dismissed for fatal defects or infirmities. First, the petition raises
would have to shell out Php750, or Php200 more than the current several factual questions which this Court is not required to
Php550; the domestic PSC rate will increase further to Php300 entertain, particularly in a petition for certiorari and prohibition.
effective January 1, 2016.12 Second, the petition for certiorari under Rule 65 of the Rules of Court
Petitioner maintains that all the requisites for the issuance of a writ is improper and cannot be pursued against the public respondents,
of preliminary injunction are present in this case. Petitioner as more so against GMR and MCC, which do not exercise quasi-judicial
or ministerial functions vis-a-vis the bidding process for the MCIA order to avoid unnecessary costs and, more importantly, delay in the
Project. And third, petitioner has no locus standi to file the petition, enjoyment of benefits from such project. In this case, the
and neither has he shown any justification for this Court to disregard government agencies have regularly performed their duty and the
his lack of personality to maintain this suit. winning Consortium is eager to comply with their orders. All the
MCC argues that the petition lacks merit considering that: (a) the queries raised by the other bidders have been addressed by private
petition assails matters which require to be left to the sole respondents and what remains to be done is the work that ought to
determination of the executive department, particularly the PBAC be the result from the bidding procedure. The MCIA Project, among
and DOTC, and thus is beyond judicial cognizance; (b) petitioner's the present administration's Public-Private Partnership (PPP)
prayer to enjoin the public respondents from issuing a Notice of projects should not be delayed any further on the basis of
Award or executing a Concession Agreement- both of which have unsubstantiated allegations.
already occurred- is already moot and thus is not a proper subject of GMR Infrastructure Ltd.
controversy; (c) even assuming that this Court can take cognizance of GMR points out similar defects in the petition such as the failure to
the petition, petitioner failed to allege, much less establish a violation attach certified true copy of the assailed order, judgment or
of law but rather, merely relies on DOTC and MCIAA issuances - the resolution since petitioner only attached the transcripts of
ITPB and ITB - both of which the PBAC has faithfully applied in this stenographic notes taken during the Senate hearings which are mere
instance, in accordance with its intent and interpretation, thus recording of the proceedings therein; lack of requisite standing of
negating any grave abuse of discretion; (d) contrary to petitioner's petitioner who has not raised any constitutional issue nor alleged any
own interpretation of PBAC's ITPB and ITB, which interpretation finds violation of application of a law, but merely points to a supposed
no basis therein and in law, there is no conflict of interest; and (e) unequal enforcement of PBAC's instructions to the bidders; non-
contrary to petitioner's allegations, GMR-Megawide Consortium is submission of his income tax return, having sued as a taxpayer; no
financially and technically capable of undertaking the MCIA Project, other Filipino, local or foreign bidder, joined his petition despite his
and developing, maintaining, and operating the renovated MCIA. self-serving claim that the petition involves issues of transcendental
Opposing the application for a writ of preliminary injunction, MCC importance; and lack of any allegation whatsoever that respondents
asserts that petitioner failed to show (1) a clear, unmistakable legal usurped legislative powers.
right that demands protection nor a prima facie entitlement to the On the merits of the case, GMR emphasizes that the assailed acts
relief demanded in the petition, and hence no injunctive relief must involve policy decisions that are not subject to judicial review. The
issue; and (2) that he, or even the other bidders, the public and the situation in Agan v. PIATCO is also not the same herein because the
State, will suffer grave and irreparable injury from the continuation public respondents did not disregard any legal requirement when
of the Award, the execution of the Concession Agreement, and/or they determined that GMR-Megawide was the most qualified to
the MCIA Project. On the contrary, grave and irreparable injury will undertake the MCIA Project. Assuming that the assailed acts can be
result should the bidding process be enjoined and, consequently, the reviewed by this Court, petitioner nevertheless chose an improper
project be delayed. MCC contends that under previous and existing remedy as his petition raises several questions of fact while relying
laws, the policy has been that a national government infrastructure merely on online/internet sources. This notwithstanding, GMR
project may not be enjoined save for exceptional circumstances, in addressed the concerns regarding its financial capability in its letter
to PBAC dated December 20, 2013 and also during the Senate protection of the laws." Public respondents' acts in this regard do not
hearings attended by its representatives. Notably, GMR-Megawide amount to violation of the Equal Protection Clause, as the facts do
already paid the upfront premium to the government in the amount not show there was "intentional or purposeful discrimination" when
of Php14,404,570,002.99 which shows the consortium has the they determined that no conflict of interest exists for GMR-
financial strength and capacity to deliver the Project. Megawide Consortium.
On the conflict of interest issue, GMR explains that this was already GMR further contends that petitioner is not entitled to a writ of
clarified by public respondents during the Senate hearings. It points preliminary injunction, as petitioner Osmefia III has no clear and
out that having a "common director" is obviously not the same as a unmistakable right, not being a bidder himself and having failed to
director of one Consortium member being "also directly involved in establish any grave abuse of discretion committed by the public
any capacity related to the Bidding Process" for another Bidder. respondents in the performance of their duty. The alleged grave and
Citing the verified petition of Osmeña III, GMR avers that petitioner irreparable injury, what petitioner feared as "bad precedent" in
could not truthfully allege having information and personal public bidding, is not irreparable but imaginary. On the contrary, it is
knowledge that Mr. Bashir was also directly involved in the Bidding the government and the public who will suffer irreparable injury if an
Process for the GMR-Megawide Consortium, because he was not. To injunction is issued that will further delay the project for the
remove all doubts and as required by PBAC, GMR submitted sworn expansion and development of an international airport in the
certifications to that effect. GMR maintains that the conflict of Province of Cebu.
interest rule and the examples/instances cited therein do not apply G.R. No. 214756
automatically, but are always subject to discretion and evaluation by GMR and Megawide (GMR-Megawide Cebu Airport Corp.)
the PBAC, and more importantly, there has to be a finding by the The consortium now called the GMR-Megawide Cebu Airport Corp.
DOTC/MCIAA that a conflict of interest exists before any Bidder is (GMCAC), reiterates its previous arguments, given the similar
disqualified. procedural infirmities of the present petition, and those addressing
On petitioner's claim that respondents violated the Equal Protection the issue of its alleged lack of financial capacity. The consortium's
Clause, GMR argues that concededly there is no statute or law here financial capability has already been evaluated by the PBAC --
that infringed the constitutional principle. What clearly emerges is including the controversies or issues raised by the other bidders --
petitioner's grievance that the Conflict of Interest provision in the which finally determined that GMR-Megawide Consortium is the
bidding rules was supposedly not followed, and on that premise most qualified to undertake the MCIA Project.
private respondents should be disqualified and the award in their GMCAC asserts that BMP's prayer to enjoin the turn-over of MCIA's
favor set aside. These consequences are not only harsh but operation and maintenance to GMCAC and the imposition of the
unwarranted. For assuming the said rule may be considered as increased PSC rates have already occurred. Hence, this issue is
"statute" that public respondents had breached, such breach is not a already moot and academic, and not the proper subject of this
violation of the Equal Protection Clause that will give rise to a petition for injunction. More, there is no grave and irreparable injury
constitutional issue. Citing jurisprudence, GMR asserts that "an that will be inflicted upon the State and the general public should the
erroneous or mistaken performance of a statutory duty, although a turn-over of the MCIA and increased PSC rates be implemented as
violation of the statute, is not without more a denial of the equal these are part of the MCIA Project and in pursuance of the
Concession Agreement. Since the alleged financial incapacity of GMR become moot and academic with the turn-over of the MCIA to
was unfounded, based merely on news reports and online materials, GMCAC on November 1, 2014. Hence, there is nothing more to enjoin
in contrast to official documents submitted to and evaluated by the and there is no more justiciable controversy to be resolved. Even
PBAC, petitioner's fear that it will be prejudiced by GMR's financial assuming that this case has not become moot, injunction is clearly
incapacity is likewise baseless. not proper as the requisites for the issuance of the writ have not been
G.R. Nos. 211737 & 214756 satisfied.
DOTC, MCIAA and PBAC On the merits of the case, public respondents contend that petitioner
Public respondents argue that a direct resort to this Court is Osmeña's reliance on Agan v. PIATCO is improper as the ruling
premature and improper under the doctrine of hierarchy of courts. therein is not on all fours with the present case. This Court ruled in
Having failed to establish special and important reasons to support Agan that "the crucial issues submitted for resolution are of first
petitioners' invocation of this Court's original jurisdiction, the impression and they entail the proper legal interpretation of key
petitions should be dismissed. It is likewise asserted that the mere provisions of the Constitution, the BOT Law and its Implementing
claim that the case is of transcendental importance or that it has an Rules and Regulations"13 and hence, the specific provisions of law
economic impact would not present a special and important ground violated by PIA TCO were identified. In stark contrast, the present
that would justify the exercise of this Court's original jurisdiction and case does not present constitutional issues. Moreover, this Court in
ignoring the hierarchy of courts. Agan ruled that the PBAC erroneously evaluated PIATCO's financial
There is also no showing that Medardo Deacosta, Jr. was authorized ability to fund the subject project when it speculated on PIATCO's
to file the petition in behalf of petitioner BPM. The certification of future financial ability on the basis of the documents it submitted.
non-forum shopping submitted by Deacosta did not include proof of Here, however, the proper procedure was observed in evaluating the
his authority to sign the said certificate for BPM. qualifications of all the bidders.
Both petitioners have no legal standing to institute the present Public respondents maintain that they exercised due diligence and
petitions. The petition in G.R. No. 211737 does not identify any strictly complied with the rules in evaluating the submitted bids. In
specific constitutional question or issue, the principal requirement concluding that GMR-Megawide Consortium did not violate Conflict
for legal standing in public suits. The invocation of violation of the of Interest Rule, they applied the clear words of the ITPB, ITB and
equal protection clause does not qualify as a constitutional question Special Bid Bulletins. The interpretation of the rule is lodged in the
or issue. Neither has petitioner Osmeña III sufficiently shown that the DOTC being the government agency tasked to implement the MCIA
funds to be expended are derived from taxation and that he will be Project. No advantage was given to GMR-Megawide Consortium or
directly injured by the award of the MCIA Project to GMCAC, and to First Philippine Airports Consortium which had in fact given the
eventually, by the implementation thereof. Further, there is no lowest bid in terms of premium.
allegation of disregard of specific constitutional or statutory As to GMR-Megawide Consortium's qualifications for the MCIA
prohibition, nor of direct injury to be sustained by petitioner. Project, public respondents assert that they exercised due diligence
G.R. No. 214756 should also be dismissed on the same ground as and acted within jurisdiction when the PBAC determined that GMR-
BPM failed to show how the increase in terminal fees will constitute Megawide Consortium is the most qualified in terms of technical
an illegal disbursement of public funds. Besides, the petition has experience and financial capability. It was stressed that under the
ITPB, the detailed evaluation of the compliance by the Prospective the winning bidder, GMCAC, is legal; (3) whether petitioners are
Bidder with the Legal, Technical and Financial Qualification entitled to injunctive relief.
Requirements shall be based solely upon the qualification documents Our Ruling
submitted. The petitions are without merit.
As to the issues concerning GMR's dispute with the Maldives Preliminaries
Government over the Male International Airport, as well as the A. Legal Standing
alleged violations of DIAL, the concessionaire for the Indira Gandhi Legal standing or locus standi refers to a personal and substantial
International Airport, these have already been threshed out and interest in a case such that the party has sustained or will sustain
addressed by GMR during the post-qualification stage. On the other direct injury because of the challenged governmental act.14 The
hand, petitioner's reference to online articles that pertain to MCC requirement of standing, which necessarily sharpens the
deserves no consideration. Said materials are hearsay and unofficial presentation of issues, relates to the constitutional mandate that this
and do not warrant the disqualification of a Bidder. As between those Court settle only actual cases or controversies.15 Thus, generally, a
online articles and the official submissions - certifications, party will be allowed to litigate only when (1) he can show that he
qualifications, documents and financial statements submitted by the has personally suffered some actual or threatened injury because of
bidders, respondent PBAC is mandated by law to give preference and the allegedly illegal conduct of the government; (2) the injury is fairly
weight to the latter in determining the track record or technical traceable to the challenged action; and (3) the injury is likely to be
qualifications of a prospective bidder. Indeed, PBAC would do redressed by a favorable action.16
injustice against a prospective bidder if, notwithstanding that it In David v. Macapagal-Arroyo,17 we explained the rules on locus
passed all the qualifications provided by law and the applicable rules, standi, as follows:
it will be disqualified merely on the basis of hearsay evidence. While Locus standi is defined as "a right of appearance in a court of justice
PBAC has the right to seek clarifications and make inquiries regarding on a given question." In private suits, standing is governed by the
information supplied by the prospective bidders in the qualification "real-parties-in interest rule" as contained in Section 2, Rule 3 of the
documents, it cannot be expected to consider every possible 1997 Rules of Civil Procedure, as amended. It provides that "every
allegation as it would just delay the entire bidding process. Having action must be prosecuted or defended in the name of the real party
exercised its function within the parameters of the law, relevant rules in interest." Accordingly, the "real-party-in interest" is "the party who
and regulations and the ITPB, the PBAC cannot be faulted if it finds stands to be benefited or injured by the judgment in the suit or the
that GMR passed all the qualifications requirements provided by the party entitled to the avails of the suit." Succinctly put, the plaintiffs
rules and the ITPB. Hence, there is no merit in petitioner Osmeña's standing is based on his own right to the relief sought.
argument that public respondents "illegally refused to disqualify" the The difficulty of determining locus standi arises in public suits. Here,
GMR-Megawide Consortium. the plaintiff who asserts a "public right" in assailing an allegedly illegal
Issues official action, does so as a representative of the general public. He
From the foregoing, the core issues to be resolved in the present may be a person who is affected no differently from any other
controversy are: (1) whether GMR-Megawide Consortium is a person. He could be suing as a "stranger," or in the category of a
qualified bidder; (2) whether the increased terminal fees imposed by "citizen," or "taxpayer." In either case, he has to adequately show
that he is entitled to seek judicial protection. In other words, he has League of the Philippines v. Felix.18 (Italics in the original; emphasis
to make out a sufficient interest in the vindication of the public order and underscoring supplied)
and the securing of relief as a "citizen" or "taxpayer." The nature of personal interest in public suits was summarized as
Case law in most jurisdictions now allows both "citizen" and follows:
"taxpayer" standing in public actions. The distinction was first laid For a party to have locus standi, one must allege "such a personal
down in Beauchamp v. Silk, where it was held that the plaintiff in a stake in the outcome of the controversy as to assure that concrete
taxpayer's suit is in a different category from the plaintiff in a citizen's adverseness which sharpens the presentation of issues upon which
suit. In the former, the plaintiff is affected by the expenditure of the court so largely depends for illumination of difficult constitutional
public funds, while in the latter, he is but the mere instrument of the questions."
public concern. As held by the New York Supreme Court in People ex Because constitutional cases are often public actions in which the
rel Case v. Collins: "In matter of mere public right, however .. . the relief sought is likely to affect other persons, a preliminary question
people are the real parties .... It is at least the right, if not the duty, of frequently arises as to this interest in the constitutional question
every citizen to interfere and see that a public offence be properly raised.
pursued and punished, and that a public grievance be remedied." When suing as a citizen, the person complaining must allege that he
With respect to taxpayer's suits, Terr v. Jordan held that "the right of has been or is about to be denied some right or privilege to which he
a citizen and a taxpayer to maintain an action in courts to restrain the is lawfully entitled or that he is about to be subjected to some
unlawful use of public funds to his injury cannot be denied." burdens or penalties by reason of the statute or act complained of.
However, to prevent just about any person from seeking judicial When the issue concerns a public right, it is sufficient that the
interference in any official policy or act with which he disagreed with, petitioner is a citizen and has an interest in the execution of the laws.
and thus hinders the activities of governmental agencies engaged in For a taxpayer, one is allowed to sue where there is an assertion that
public service, the United State Supreme Court laid down the more public funds are illegally disbursed or deflected to an illegal purpose,
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in or that there is a wastage of public funds through the enforcement
Tileston v. Ullman. The same Court ruled that for a private individual of an invalid or unconstitutional law. The Court retains discretion
to invoke the judicial power to determine the validity of an executive whether or not to allow a taxpayer's suit.
or legislative action, he must show that he has sustained a direct In the case of a legislator or member of Congress, an act of the
injury as a result of that action, and it is not sufficient that he has a Executive that injures the institution of Congress causes a derivative
general interest common to all members of the public. but nonetheless substantial injury that can be questioned by
This Court adopted the "direct injury" test in our jurisdiction. In legislators. A member of the House of Representatives has standing
People v. Vera, it held that the person who impugns the validity of a to maintain inviolate the prerogatives, powers and privileges vested
statute must have "a personal and substantial interest in the case by the Constitution in his office.
such that he has sustained, or will sustain direct injury as a result." An organization may be granted standing to assert the rights of its
The Vera doctrine was upheld in a litany of cases, such as, Custodio members, but the mere invocation by the Integrated Bar of the
v. President of the Senate, Manila Race Horse Trainers' Association v. Philippines or any member of the legal profession of the duty to
De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese preserve the rule of law does not suffice to clothe it with standing.
As regards a local government unit (LGU), it can seek relief in order by petitioners, we hold that the same rationale in Agan justifies the
to protect or vindicate an interest of its own, and of the other relaxation of the rules on standing.
LGUs.19 (Emphasis supplied; citations omitted) B. Hierarchy of Courts
Here, BPM alleges a direct personal injury for its members who as While this Court has original jurisdiction over petitions for certiorari,
frequent travelers to Cebu and Mactan will be burdened by the prohibition, mandamus, quo warranto, and habeas corpus, such
increased terminal fees imposed by the private respondents upon jurisdiction is shared with the Court of Appeals and the Regional Trial
taking over the operation and management of MCIA. On the other Courts. It is judicial policy that --
hand, petitioner Osmeña III claims to be suing as a legislator, taxpayer x x x a direct invocation of the Supreme Court's jurisdiction is allowed
and citizen asserting a public right in the stringent application of the only when there are special and important reasons therefor, clearly
bidding rules on the qualifications of private respondents for the and especially set out in the petition. Reasons of practicality, dictated
MCIA Project. by an increasingly overcrowded docket and the need to prioritize in
In any case, locus standi being a mere procedural technicality,20 the favor of matters within our exclusive jurisdiction, justify the existence
Court has, in the exercise of its discretion, relaxed the rules on of this rule otherwise known as the "principle of hierarchy of courts."
standing when the issues involved as of "transcendental importance" More generally stated, the principle requires that recourse must first
to the public.21 The Court, through Associate Justice Florentino P. be made to the lower-ranked court exercising concurrent jurisdiction
Feliciano (retired and now deceased), provided the following with a higher court.25 (Italics omitted; emphasis supplied)
instructive guides as determinants in determining whether a matter The Court thus declared in Heirs of Bertuldo Hinog v. Melicor,26 that
is of transcendental importance: (1) the character of the funds or it will not entertain direct resort to it unless the redress desired
other assets involved in the case; (2) the presence of a clear case of cannot be obtained in the appropriate courts, and exceptional and
disregard of a constitutional or statutory prohibition by the public compelling circumstances, such as cases of national interest and of
respondent agency or instrumentality of the government; and (3) the serious implications, justify the availment of the extraordinary
lack of any other party with a more direct and specific interest in the remedy of writ of certiorari, calling for the exercise of its primary
questions being raised.22 jurisdiction.27
In not a few cases, the Court, in keeping with its duty under the After a thorough study and evaluation of the issues involved, the
Constitution to determine whether the other branches of Court is of the view that exceptional circumstances exist in this case
government have kept themselves within the limits of the to warrant the relaxation of the rule. The Court can resolve the
Constitution and the laws and have not abused the discretion given factual issues from the available evidence on record.
them, has brushed aside technical rules of procedure.23 Mactan-Cebu International Airport is the second busiest airport in
In Agan v. PIATCO, also involving a controversy in the qualifications the country after the Ninoy Aquino International Airport, handling
of the winning bidder for the construction and operation of the millions of passengers and thousands of aircraft movements every
country's premier international airport, the Court resolved to grant year. Opened in the mid-1960s, it is owned by the DOTC and
standing to the petitioners in view of "the serious legal questions managed by the MCIAA.28 The multi-billion expansion and
involved and their impact on public interest."24 Although the factual development project for MCIA is being implemented through the PPP
milieu in this case is not similar and no constitutional issue was raised program. The Government's PPP program has two objectives: (1)
increase private investment in infrastructure through solicited mode; award requirements in the notice of award, the PPP contract shall be
and (2) follow good governance practices in preparing, bidding and executed and signed by the winning bidder and the head of the IA or
implementing the PPP projects.29 There is no dispute then that this LGU.31
case is of paramount national interest for it raises serious questions During the post-qualification evaluation and prior to the final award
on the evaluation of bids by the public respondents. to GMR-Megawide Consortium as the Highest Bidder, the latter's
C. Mootness disqualification was sought by the Second Highest Bidder, Filinvest
Respondents' contention that the case was mooted by the Notice of Development Corporation (FDC), on the following grounds: (a) GMR's
A ward and turnover of operations of the MCIA to GMCAC likewise questionable record in airport construction and development; (2)
deserves scant consideration. For even in cases where the GMR's financial incapacity; and (3) violation of the Conflict of Interest
supervening events had made the cases moot, the Court did not Rule.
hesitate to resolve the legal or constitutional issues raised to In its letters32 dated December 13, 2013 and December 16, 2013
formulate controlling principles to guide the bench and the bar, and addressed to PBAC Chairman Undersecretary Jose Perpetuo M.
the public.30 Hence, the subsequent issuance of Notice of A ward, Lotilla, FDC, citing published newspaper reports, brought up the
execution of the Concession Agreement and turn-over to GMCAC of following issues: (1) cancellation by the Maldives Government of the
the operation and maintenance of MCIA, did not remove the issue of GMR Group's contract for modernizing the Male Ibrahim Nasir
GMCAC's qualifications from the ambit of judicial review. International Airport (Male International Airport) and which
Substantive Issues cancellation was affirmed in a Singapore court; (2) the rapid rise of
No Grave Abuse of Discretion GMR's debt level and MCC's equity of only roughly P8 Billion; (3)
in PBAC's Determination that GMR-Megawide Consortium GMR's exit from the management of Istanbul Gokcen International
was a Qualified Bidder Airport in Istanbul, Turkey, supposedly as part of the GMR Group's
For public biddings of PPP contracts under the BOT Law and articulated strategy of "develop-build-create value-divest," which
Implementing Rules and Regulations (IRR), the evaluation of bids is does not augur well for the long-term commitment intended for the
undertaken in two stages. The first-stage evaluation involves the 25-year concession period of the MCIA Project; (4) critical findings of
assessment of the technical, operational, environmental and the Comptroller and Auditor General of India based on the
financing viability of the proposal as contained in the bidder's first performance audit of the implementation of the public-private
envelopes vis-a-vis the prescribed requirements and partnership for the Indira Gandhi International Airport at Delhi, India,
criteria/minimum standards and basic parameters prescribed in the including the development fee imposed on travelers which was used
bidding documents. The second stage evaluation shall involve the by DIAL (Delhi Airport concessionaire) to finance 27% of the project
assessment and comparison of the financial proposals of the bidders. cost, outsourcing of numerous contracts which are not arms-length
Within three days from completion of the financial evaluation, the transactions and in violation of the Operation Management and
PBAC submits its recommendation to the head of the Implementing Development Agreement (OMDA) because these were given to joint
Agency (IA) or Local Government Unit (LGU). Upon approval of the venture companies in which DIAL had substantial equity interest,
recommendation, the head of the IA or LGU will issue a notice of violation of the Master Plan and delay in project completion, financial
award to a winning proponent. Subject to compliance with the post- documents showing GMR posting net loss from operations in the last
three years and debt levels increasing in relation to its equity; and (4) 1. within the last five (5) years prior to the Qualification Documents
concern as to MCC's equity in view of several PPP projects awarded Submission Date -
to it which involve substantial amount in project costs. a. failure to satisfactorily perform any of its material obligations on
As part of the Technical Qualifications, the ITPB mandates any contract, as evidenced by an imposition of a judicial
compliance with certain supporting documents from entities who pronouncement or arbitration award;
fulfill the requirements for Development Experience, and Operation b. expulsion from any project or contract;
and Maintenance Experience: c. termination or suspension of any of its projects or contracts due to
3. The entity whose experience is being submitted in fulfillment of breach of its obligations; or
this requirement - whether the Prospective Bidder or a Consortium d. material violations of laws and/or regulations applicable to any of
Member and any Affiliates of any of these entities, should submit a its projects or contracts xx x.35
certificate from an Auditor, as per the format provided at Annex QD- Evaluating the information provided by FDC and the explanation
11 to satisfactorily establish its claim. given by private respondents concerning the latter's performance
4. The entity, whose experience is being submitted in fulfillment of record, PBAC in its Resolution dated April 3, 2014, stated its findings
this requirement - whether the Prospective Bidder or a Consortium and conclusion, viz.:
Member and any Affiliates of any of these entities must certify that I. Existence of Unsatisfactory Performance in relation to GMR-Male
they have no Unsatisfactory Performance Record as per the format Pursuant to QD-4A of the ITPB, the relevant project or contract refers
provided at Annex QD-4A or Annex QD-4B.33 (Emphasis supplied) to any project or contract of the entity or entities whose experience
The certificate from an Auditor, as per the format provided in Annex is being used to meet any of the Technical Qualification
QD-11, serves as evidence of having the claimed Development Requirements which was commenced or in the process of
Experience, and in Annex QD-13, a certificate for details of eligible implementation within the last five (5) years before the Qualification
projects for Operation and Maintenance Experience, such as the Documents Submission Date, and not just to the particular projects
number of years in operation of the airport and the annual passenger or contracts being submitted to meet such Technical Qualification
throughout registered by the airport.34 The more relevant document Requirements. Based on the clear reading of the provisions under
is the certificate from the entities whose experience is being QD-4A, the performance record of GMR-Male is not relevant to the
submitted in fulfillment of the Development Experience, and Project, considering its credentials were not used to satisfy any
Operation and Maintenance Experience, of "No Unsatisfactory qualification requirement. The PBAC also appreciated that -
Performance Record." • the information pertaining to the Male Airport Contract was
As per the format prescribed in Annex QD-4A, the Notarized disclosed by GMR during the Pre-qualification process, even if it was
Certification of Absence of Unsatisfactory Performance Record, the not a required submission; and
entity fulfilling the Development Experience, and Operation and • in a letter dated 23 December 2013 addressed to the DOTC,
Maintenance Experience, certifies that it does not have any record of through Undersecretary Rene K. Limcaoco, Isabel Chaterton of the
unsatisfactory performance in any of its projects and contracts. International Finance Corporation ("IFC") Public-Private Partnership
x x x "Unsatisfactory Performance" means any of the following: Advisory Services for South Asia said that "IFC has been consistently
of the view that the sanctity of the Male airport concession
agreement should be upheld and have noted publicly our strong "Ministry of Civil Aviation has gone through the report of the CAG on
belief that the process leading to the award of the concession for that Indira Gandhi International Airport, Delhi as tabled in Parliament
project was conducted in an open and transparent manner and in today and strongly refutes the loss figures and other allegations as
accordance with international best practice. We understand the made in the report.
matter is now under arbitration which is the appropriate dispute "The calculation of presumptive gain from the commercial use of land
resolution mechanism provided for in the concession agreement. We at the Delhi Airport is totally erroneous and misleading as it simply
should also point out, that in June 2013, the Anti-Corruption adds the nominal value of the projected revenue, without taking the
Commission of the Maldives concluded that there was no corruption net present value. In fact the net present value of the figure quoted
involved in the award and concession of the Male airport to GMR- by CAG is Rs 13795 crores only. CAG has further failed to appreciate
MAHB." IFC is a member of the World Bank Group and the largest that 46% of this amount would be payable to AAI as revenue share.
global development institution focused exclusively on the private "It is also pointed out that the levy of Development Fee is under
sector in developing countries. A copy of IFC's letter dated 20 Section 22 (A) of AAI Act, 1994 and was in the knowledge of all the
December 2013 is attached hereto as Annex "AA." bidders prior to the bidding process. Hence, contrary to what the CAG
II. Misrepresentation as to the Absence of Unsatisfactory has said, the levy of Development Fee by DIAL was not a post
Performance of DIAL contractual benefit provided to DIAL at the cost of passengers.
Based on the definition of unsatisfactory performance under the ITPB Further, the levy of the Development Fee has been upheld by the
and ITB, absence of unsatisfactory performance must be evidenced Supreme Court, which has already examined and rejected all the
by the imposition of a judicial pronouncement or arbitration award. issues now being raised by CAG in its report.
The CAG Report is neither a judicial pronouncement nor an "On the issue of lease of Airport land, it is clarified that the land has
arbitration award. Therefore, based on the definition, the CAG not been given to DIAL on rental basis. Rs100 is just a token amount
Report is not sufficient basis for an adverse finding. On further for the purpose of the Conveyance Deed. The determining factor for
evaluation of the documentary submissions and at the close of grant of concession to the bidder was the Gross Revenue share
several discussions, it was determined that the CAG Report is quoted by the bidders. As a result, Airports Authority of India (AAI)
primarily addressed to the relevant government agencies of India. now receives 45.99% share of Gross Revenues of DIAL and 26% of all
The PBAC noted, among others, that the charging of development fee Dividends. Benefit to AAI is likely to be more than Rs 3 lakh crores in
and outsourcing to service providers through a procurement process this process during the entire Concession period. AAI has already got
is allowed under the contract. its revenue share of Rs.2936 crores in the last 6 years and likely to get
It has been reported as well that the Ministry of Civil Aviation has Rs. 1770 crores in the year 2012-13 and Rs. 2287 crores in the year
contested the findings under the CAG Report. Briefly, the Ministry 2013-14. The AAI share of revenue from DIAL is further going to
has said that: (i) the charging of the development fee is authorized constantly rise every year in the balance concession period.
under the relevant law and known to all bidders prior to bid "It may also be noted that the right to use 5% of Airport land for
submission, (ii) there was no deviation from the Master Plan, commercial purpose was also defined in the bid and known to all
particularly as regards the extent of permissible commercial bidders."
development as follows:
III. Misrepresentation as to financial capacity of GMR Infrastructure affect the evaluation of GMR Infrastructure & Megawide
& Megawide Consortium Consortium's qualification to undertake the Project under the terms
Pursuant to the ITPB and ITB, to be financially qualified to bid for the of the Concession Agreement. Divestment or withdrawal by a
Project, a bidder must meet the following Financial Qualification Consortium Member from the Project is permitted, subject to the
requirements: (a) (i) Net Worth of at least Php 2.0 billion, or its applicable Lock-up Rules under V-05 and V -06 of the ITPB, as well, as
equivalent as of its latest audited financial statements, which must under the Concession Agreement. This is an important provision in
be for financial year ending not earlier than 31 December 2011, or (ii) the ITB, ITPB and Concession Agreement, validated in the course of
a Set-Aside Deposit equivalent to the same amount, and (b) a letter the market sounding exercise undertaken for the Project and in
testimonial from a domestic universal/commercial bank or an keeping with the declared policy under the BOT Law to provide the
international bank with a subsidiary/branch in the Philippines or any most appropriate incentives to mobilize private resources for the
international bank recognized by the BSP attesting that the purpose of financing the construction, operation and maintenance of
Prospective Bidder and/or members of the Consortium are banking infrastructure and development projects. Further, under Annex BL-1,
with them, and that they are in good financial standing and/or are GMR Infrastructure & Megawide Consortium has certified that it will
qualified to obtain credit accommodations from such banks to undertake the project in accordance with the Concession Agreement,
finance the Project. These parameters for the determination of including the applicable Lock-up Rules, which undertaking was
financial qualification requirements are consistent with Section 5.4(c) affirmed in a letter addressed to PBAC dated 20 December 2013.
of the BOT Law IRR. There is no reason to doubt the commitment in view of the certificate
On further evaluation, the PBAC determined that, for purposes of of good standing from the Ministry of Defence of Turkey, which
meeting the Financial Qualification requirement, QD-8, with states that the operating company founded by Limak Holding, GMR
supporting information, was submitted by Megawide for the GMR Infrastructure Limited and MAHB has been operating the Istanbul
Infrastructure & Megawide Consortium. Megawide's submission was Sabiha Goeken International Airport Terminal satisfactorily per the
previously determined to have fulfilled these requirements. provisions of the Implementation Agreement executed in 2008 and
Furthermore, in the course of completing the financial evaluation, that the transfer of the forty percent (40%) shares held by GMR and
the PBAC examined the Financial Proposal comprising the Bid its affiliates to Malaysia Airports MSC Sdn Bhd has been duly
Amount and the Final Draft Concession Agreement signed and approved by the Undersecretary for Defense Industries on 20 March
executed by the Authorized Representative of the GMR 2014, consistent with the terms of the Implementation Agreement.
Infrastructure & Megawide Consortium pursuant to the ITB, and the V. Violation of Conflict of Interest
PBAC has not found any deficiency in the financial proposal. The ITB, in Section 5.6(c) states in part:
IV. Long term commitment to Project Each Bidder may submit only one Bid Proposal. To ensure a level
Filinvest-CAI Consortium also shared its observation that it doubts playing field and a competitive Bidding Process, Bidders (in the case
the long term commitment of GMR Infrastructure & Megawide of Consortia, each Consortium Members), including their Affiliates,
Consortium to the Project in view of its reported intention to must not have any Conflict of Interest. Without limiting the generality
withdraw from the ISGIA. The PBAC noted this observation and of what would constitute a Conflict of Interest, any of the following
resolved that the reported divestment from Istanbul Airport does not will be considered a Conflict of Interest:
xxx xxx xxx knowledge I information regarding the bid of such Prospective
c. a member of the board of directors, partner, officer, employee or Bidder."
agent of a Bidder, any Consortium Member, or any of their Affiliates In June 2013, GMR Infrastructure & Megawide Consortium submitted
(of either the Bidder or any of its Consortium Members), is also the following query:
directly involved in any capacity related to the Bidding Process for the PBAC to please confirm our understanding that a conflict of interest
Project for another Bidder, any Consortium Member of any other shall arise with respect to a director, partner, officer, advisor,
Bidder, or any of their Affiliates (of either the Bidder or any of its employee, or agent if:
Consortium Members), within a period of two (2) years prior to the 1. such director, partner, officer, advisor, employee, or agent of a
publication of the Invitation to Pre-Qualify and Bid and one (1) year Bidder (Bidder "A ") is directly involved in the Bidding Process for the
after award of the Project. Project; and
The same conflict of interest arises in case of professional advisors 2. such director, partner, officer, advisor, employee, or agent is also
except when prior written disclosure was made to their client- directly involved in any capacity related to the Bidding Process for the
Bidders, DOTCIMCIAA and the Public-Private Partnership Center, Project for another Bidder ("Bidder B "), any Consortium Member of
including the submission of a Conflict Management Plan for this Bidder B, or any of their Affiliates.
purpose. A written consent or clearance to this effect shall likewise Accordingly, a conflict of interest will arise only if such director,
be secured from DOTC. partner, officer, advisor, employee, or agent is directly involved in the
xxx xxx xxx Bidding Process for the Project with respect to both Bidders A and B.
(This is similar to the Conflict of Interest provision appearing in the PBAC to further confirm that for purposes of Section 5. 6(c) of the
ITPB, Section V04-d.) Instructions to Bidders, "direct involvement" shall mean actual
Consequently, in Annex BL-1 of the ITB, or the Form of Bid Letter, a participation in the deliberations and decision-making for the bidding
bidder is required to state under oath that it "including all of its process of the Bidder that would give the director, officer, advisor,
Consortium Members, and all of the entities it has proposed to employee or agent knowledge or information regarding the bid of the
comply with the Qualification Requirements under the ITPB, have not Bidder, as previously clarified by the PBAC in SBB 6-2013, Query 4.
at any time (i) engaged in any Corrupt Practice, Fraud, Collusion, The Consortium, further suggested the following revision to the ITB:
Coercion, Undesirable Practice, or Restrictive Practice, (ii) have a A member of the board of directors, partner, officer, employee or
Conflict of Interest (iii) violated the Lock-Up Rules or (iv) has agent of a Bidder, any Consortium Member, or any of their Affiliates
Unsatisfactory Performance Record." (of either the Bidder or any of Consortium Members), who is directly
During the pre-qualification stage, a question was submitted seeking involved in the Bidding Process for the Project with respect to a
clarification on Section V04-d of the ITPB on Conflict of Interest. In its Bidder. is also directly involved in any capacity related to the Bidding
answer to the query under SBB No. 06-2013, the PBAC stated that Process for the Project for another Bidder, any Consortium Member
"without limiting the discretion of the PBAC to determine what of any other Bidder, or any of their Affiliates (of either the Bidder or
constitutes Conflict of Interest, direct involvement shall mean actual any of its Consortium Members), within a period of two (2) years
participation in the deliberations and decision-making for the bidding prior to the publication of the Invitation to Pre-Qualify and Bid and
process of the Prospective Bidder that would give the director one (1) year after award of the Project.
The same conflict of interest arises in case of professional advisors would constitute direct involvement in our response to Query No. 4
except when prior written disclosure was made to their client- in SBB No. 06-ANNEX A." There must be (1) common partner,
Bidders, DOTCIMCIAA, and the Public-Private Partnership Centre, director, officer, or employee and (2) direct involvement by such
including the submission of a Conflict Management Plan for this partner, director, officer, or employee, which consists of actual
purpose. A written consent or clearance to this effect shall likewise participation in the deliberations and decision-making for the Bidding
be secured from DOTC. Process of both Bidders affected, that would give the director
For purposes of this provision, direct involvement shall mean actual knowledge or information regarding the bid of such Bidder.
participation in the deliberations and decision-making for the bidding The PBAC adopted and approved the Conflict of Interest provision in
process of the Bidder that would give the director, officer, advisor, the ITPB(V04-d) and later in the ITB (5.6c) pursuant to its authority
employee, or agent knowledge or information regarding the bid of and function under the BOT Law IRR, Section 3.2, which states that
the Bidder. the PBAC shall be responsible for all aspects of the pre-bidding and
The PBAC, under SBB No. 11-2013 Query No. 5 released in August bidding process, including among others, the interpretation of the
2013, replied as follows: rules regarding the bidding. In adopting the ITPB and ITB provisions
Please be guided that in cases of conflict of interest under ITB, Sec. on conflict of interest, the PBAC was aware that in its implementation
5.6(c), Bidders who may be affected are advised to comply with it would require direct involvement or actual participation in the
SBB02-2013, Amendments to the ITPB, No. 10, with respect to the deliberations and decision-making process as to the Bid for both
compliance requirements for professional advisors. Thus, Bidder, is affected bidders, for the following reasons.
advised, so that there will be no conflict of interest, to make a prior • The clear expression of this intention in the use of the adverb
written disclosure to the affected Bidders, DOTC, and the PPPC, and "also," indicating similarity and further action of the same nature, in
submit a Conflict Management Plan. A written consent or clearance the qualifying phrase "is also directly involved," meaning that in
must be likewise secured from DOTC. requiring such action on the part of one bidder, the same action
Based on the relevant rule, there must be direct involvement or should have been taken in behalf of or in relation to another bidder.
participation in the deliberations and decision-making as to the Bid • The PBAC also noted that this meaning has been carried in the
Process of two or more bidders and that mere partnership or language of the provision as used in several other PPP projects
common directorship, or direct involvement in one bidder is not implemented prior to the Project and from which reference
enough. documents the provision was drawn. Significant in this regard is SBB
The rule under Section 5.6(c), as previously explained under SBB No. No. 3, Response No. 4 to Metro Pacific Tollways Corporation (see
06-2013 (Query No. 4), is that the existence of common partners, attached), issued in September 2012 for . the NAIA Expressway
directors or officers between two Bidders is not of itself ground for a Project, where it is clear that for conflict of interest to arise there has
finding of Conflict of Interest. In SBB No. 07-2013 (Query No. 36), the to be actual participation for or in both bidders involved. The
PBAC reiterated that "[t]he position in the ITPB is reiterated. meaning of the provision as explained in the SBB No. 3 has been
However, please note that Section V-04(d) shall only apply if the retained and carried in its use in the Project's ITB and ITPB. A copy of
common director is directly involved in the bidding process for SBB No. 3 issued in September 2012 for the NAIA Expressway Project
another Prospective Bidder. The PBAC provided guidance as to what is attached hereto as Annex "BB."
That this is the proper interpretation is supported by the PBAC's regard to professional advisers without taking action on the rest
application of the same principle in the treatment of professional considering the lack of concrete factual scenario to support the
advisers. The ITPB and ITB in stating that "the same conflict of query, apart from the fact that it is not necessary to adopt the
interest arises in case of professional advisors" has been proposed revision by the bidder under Query No. 5. The provision as
implemented by the PBAC by requiring the disclosure and clearance it appears in the ITPB and ITB sufficiently conveys the meaning that
where the professional adviser is under "the same conflict of for Conflict of Interest to arise under Section 5.6(c) of the ITB there
interest," meaning they are involved in that capacity for two or more must be direct involvement or participation in the deliberations and
bidders. A written consent, clearance and compliance with conflict decision-making as to the Bid Process of two or more bidders. Mere
management plan was required in the case of a professional adviser partnership or common directorship, or direct involvement in only
who was understood to have taken such a role for two bidders in the one bidder is not enough. It is worth recalling Section 6.1 of the BOT
Project. Otherwise, if at least two bidders are not involved, the PBAC Law IRR, which states that the implementing agency concerned shall
would not have required a conflict management plan for the simple not assume any responsibility regarding erroneous interpretations or
reason that a conflict of interest, in that case, would not exist. conclusions by the prospective bidder out of data furnished or
In relation to the history of the conflict of interest provision, the PBAC indicated in the bidding documents.
also discussed that, due to the numerous interlocking directors Applying the foregoing interpretation, therefore, the sworn
prevalent among the Philippine conglomerates, an interpretation not certifications submitted by GMR Infrastructure & Megawide
requiring direct participation in both companies may possibly lead to Consortium set out the required certification on facts which indicate
the disqualification of a large number of bidders. The result would be compliance with the rules on Conflict of Interest.
extremely detrimental for the government, and surely this cannot be Upon further consideration of this issue, the PBAC noted that GMR
the purpose of the provision. Infrastructure & Megawide Consortium, in its comment on Filinvest-
The purpose of specifying Section 5.6(c) as a form of Conflict of CA Consortium's letters dated 2 and 3 January, confirmed that Mr.
Interest is to prevent collusion among the bidders that may arise Tansri Bashir Ahmad bin Abdul Majid ("Mr. Tansri Bashir Ahmad") is
from the specific conflict of interest scenarios (as differentiated from the Managing Director of MAHB, but not a member of the board of
Collusion as defined under the ITPB and ITB), which may prejudice or directors of GMR. While Mr. Tansri Bashir Ahmad sits on the board of
defeat competition in the Bidding Process. Particularly, Section 5.6(c) DIAL, GHIAL, and GMR-Male, as well as ISGIA, GMR Infrastructure &
seeks to prevent a situation in which the common partner, director, Megawide Consortium, in its letter dated 6 January 2014, explained
or officer of two (or more) Bidders will have information and that "[a]side from using the Hyderabad and Delhi airports for meeting
involvement in the preparation of the bids of both Bidders. By actual the technical requirements for the bid, DIAL, GHIAL, [GMR-Male] or
participation, the common partner, director, or officer can influence ISGIA themselves were never involved in the bidding process and
the bids of both bidders, which will not be achieved if a common anything remotely connected with the bid was never discussed in the
director does not have direct involvement in both bids. boards of these companies."
It is, therefore erroneous, to conclude that the PBAC has taken a It is also worth noting that at the time the GMR Infrastructure &
different view solely on the basis of the response given under SBB No. Megawide Consortium submitted its Qualification Documents on 22
11-2013, Query No. 5. The PBAC responded only to the query with April 2013, when it indicated that it is fulfilling the Qualification
Requirements through Affiliates of GMR, namely DIAL and GHIAL, On the basis of the foregoing, the PBAC resolved to recommend to
First Philippine Airport Consortium had as its members First public respondents to designate GMR-Megawide Consortium as the
Philippine Holdings Corporation and Infratil (of New Zealand). The Winning Bidder for the MCIA Project, and to issue the corresponding
First Philippine Airports Consortium requested the change in its Notice of Award.
consortium membership, with the replacement of Infratil by MAHB It is well-settled in our jurisprudence that the government is granted
was approved only in September 2013, following the evaluation of broad discretion in choosing who among the bidders can offer the
the pre-qualification documents submitted by MAHB. In their most advantageous terms and courts will not interfere therewith or
respective Bid Letters (Annex BL-1), each of the GMR Infrastructure direct the committee on bids to do a particular act or to enjoin such
& Megawide Consortium and First Philippine Airport Consortium act within its prerogatives, except when in the exercise of its
declared under oath the absence of Conflict of Interest. The PBAC authority, it gravely abuses or exceeds its jurisdiction,37 or otherwise
further noted that the respective boards of DIAL and GHIAL commits injustice, unfairness, arbitrariness or fraudulent acts.38 We
authorized their respective Chief Financial Officers ("CFO") to sign have recognized that the exercise of that discretion is a policy
and execute relevant documents on their behalf from a board decision that necessitates prior inquiry, investigation, comparison,
meeting back in 2011 and 2012, way before the bid for the MCIA was evaluation, and deliberation. This task can best be discharged by the
published. The same CFOs signed on behalf of each of their boards concerned government agencies, not by the courts.39
for the use of their O&M experience as an affiliate of GMR. The Court thus expounded at length in Bureau Veritas v. Office of the
The PBAC, in its meeting on 6 January 2013, resolved to require GMR President40 :
Infrastructure & Megawide to submit within three (3) days a xx x It must be stressed, as held in the case of A.C. Esguerra & Sons v.
certification affirming under oath the absence of conflict of interest, Aytona, et al., (L-18751, 28 April 1962, 4 SCRA 1245), that in an
specifically that neither MAHB nor Mr. Tansri Bashir Ahmad was "invitation to bid, there is a condition imposed upon the bidders to
directly involved in any capacity related to the Bidding Process for the the effect that the bidding shall be subject to the right of the
Project for both GMR-Megawide Consortium and the Consortium of government to reject any and all bids subject to its discretion. In the
First Philippine Holdings Corporation and MAHB at the same time, or case at bar, the government has made its choice and unless an
any of their respective Consortium members, or any of their unfairness or injustice is shown, the losing bidders have no cause to
respective Affiliates, through actual participation in the deliberations complain nor right to dispute that choice. This is a well-settled
and decision-making for the Bidding Process of both GMR-Megawide doctrine in this jurisdiction and elsewhere."
Consortium and First Philippine Airports Consortium that would give The discretion to accept or reject a bid and award contracts is vested
MAHB or Mr. Tansri Bashir Ahmad knowledge I information regarding in the Government agencies entrusted with that function. The
the bid of both GMR Infrastructure & Megawide Consortium and First discretion given to the authorities on this matter is of such wide
Philippine Airports Consortium, within a period of two (2) years prior latitude that the Courts will not interfere therewith, unless it is
to the publication of the Invitation to Pre-Qualify and Bid. Through its apparent that it is used as a shield to a fraudulent award (Jalandoni
letter dated 8 January 2013, GMR Infrastructure & Megawide v. NARRA, 108 Phil. 486 (1960]). x x x The choice of who among the
Consortium submitted the requested certification.36 bidders is best qualified to perform this task should be left to the
sound discretion of the proper Government authorities in the
executive branch since they are in a better position than the Courts carefully verified and evaluated FDC's allegations regarding GMR's
to make the determination owing to the experience and knowledge expulsion from the Male International Airport by the Maldives
that they have acquired by virtue of their functions. The exercise of Government, DIAL's financing and operation of the Delhi Airport,
this discretion is a policy decision that necessitates prior inquiry, GMR's poor financial health and violation of the Conflict of Interest
investigation, comparison, evaluation, and deliberation. This task can Rule.
best be discharged by the Government agencies concerned, not by On GMR' s supposed fiasco from the cancellation of the concession
the Courts. The role of the Courts is to ascertain whether a branch or agreement of its subsidiary, GMR Male International Airport Private
instrumentality of the Government has transgressed its Ltd. (GMIAL), with the Maldives Government in 2010, more recent
constitutional boundaries. But the Courts will not interfere with online news reports showed that GMIAL had won the arbitration case
executive or legislative discretion exercised within those boundaries. and is seeking compensation from the wrongful termination of its
Otherwise, it strays into the realm of policy decision-making. contract. Two of such published articles/reports reads:
It is only upon a clear showing of grave abuse of discretion that the GMR wins maldives airport case, seeks compensation
Courts will set aside the award of a contract made by a government Anirban Chowdhury, ET Bureau Jun 20, 2014, 04.26AM IST
entity.1avvphi1 Grave abuse of discretion implies a capricious, MUMBAI: GMR Infra on Thursday said it has won a more than 18-
arbitrary and whimsical exercise of power (Filinvest Credit Corp. v. month long legal battle with the Maldives government which started
Intermediate Appellate Court, No. 65935, 30 September 1988, 166 after the government cancelled the company's contract to develop
SCRA 155). The abuse of discretion must be so patent and gross as to and operate the country's main airport.
amount to an evasion of positive duty or to a virtual refusal to According to GMR's filing on the National Stock Exchange, a Maldives'
perform a duty enjoined by law, as to act at all in contemplation of tribunal has judged the government's rejection of the contract
law, where the power is exercised in an arbitrary and despotic "wrongful".
manner by reason of passion or hostility (Litton Mills, Inc. v. Galleon The tribunal has directed Maldives and the state-owned Maldives
Trader, Inc., et al., L-40867, 26 July 1988, 163 SCRA 489).41 (Emphasis Airports Company (MACL) to pay $4 million legal damages to GMR
supplied) within 42 days.
Under the ITPB, the PBAC reserves the right to waive any minor GMR has in addition, demanded a compensation of $1.4 billion for
defects in the Qualification Documents, and accept the offer it deems losses incurred in the last one year on its bid amount and investments
most advantageous to the government.42 Verily, a reservation of the in developing the airport.
government of its right to reject any bid, generally vests in the Hassan Areef, a spokesman for the MACL didn't immediately respond
authorities a wide discretion as to who is the best and most to emailed queries.
advantageous bidder. The exercise of such discretion involves The ruling and possible compensation will bring much-needed relief
inquiry, investigation, comparison, deliberation and decision, which for GMR whose international airport projects have been facing
are quasi-judicial functions, and when honestly exercised, may not be trouble.
reviewed by the court.43 After winning its latest project the Phillipines Mactan-Cebu
We find no patent error or arbitrariness in the DOTC's decision to International airport last year, the company had faced trouble when
award the contract to private respondents after the PBAC had
a rival bidder raised issues of conflict of interest. GMR, however, After detailed proceedings lasting more than 18 months, the tribunal
subsequently bagged the project. has said that Maldives government and MACL should pay GMR $4
Last December, the company sold its 40% stake in its second Turkey's million of compensation within 42 days.
Istanbul Sabiha Gokcen International Airport for 220 million. The GMIAL had signed a concession agreement with the government of
company had invested 90 million (.'737 crore) in the airport but lost.' Maldives and MACL for the $500 million modernisation and
123 crore on it in 2012-13. operation of Ibrahim Nasir International Airport in 2010.
On July 28, 2010, a joint venture between GMR Infra (77%) and However, the Maldives government terminated the contract and
Malaysia Airports (Labuan) Private Limited (23%) bagged a subsequently started off arbitration proceedings on November 29,
development and operations contract for Ibrahim Nasir International 2012, seeking a declaration that the concession agreement was void
Airport a brownfield airport at Male. The venture had bid $511 ab initio. GMIAL had disputed this termination.
million. Shares of the GMR Infrastructure were trading at Rs 33.15, up 0.91
The new terminal development project was on track for an early 2014 per cent on the BSE from their previous close, in a flat Mumbai
commercial opening date before it had to be halted due to a 'Stop- market on Thursday. GMR Infrastructure runs airports in Hyderabad
Work' order by the Maldives aviation ministry in August, 2012, and New Delhi. (Edited by Joby Puthuparampil Johnson)45
according to GMR's latest annual report.44 While the foregoing information was not yet available during the
GMR's Maldives airport concession pact was not void: Singapore- post-qualification stage, we find no unfairness or arbitrariness on the
based tribunal part of public respondents when they relied on the opinion of the IFC
The tribunal has said that Maldives government and MACL should PPP Services for Southeast Asia that the Male project "was conducted
pay GMR $4 million as compensation within 42 days. in an open and transparent manner and in accordance with
BY ANURADHA VERMA international best practice," citing the June 2013 report of the Anti-
GMR Infrastructure Limited's subsidiary GMR Male International Corruption Commission of the Maldives which concluded that "there
Airport Ltd (GMIAL), whose contract for modernisation of Male was no corruption involved in the award and concession of the Male
international airport was unilaterally terminated by the Maldives airport to GMR-MAHB." As the lead advisor for the project, IFC has in
government in 2012, has got relief as an international tribunal has fact, included the Male International Airport as among the successful
declared its concession agreement for Maldives airport as valid. PPPs in various infrastructure sectors.46 Public respondents thus
In a filing to the stock exchanges, GMR Infrastructure said that the committed no grave abuse of discretion in determining that GMR has
Singapore-based Rt Hon Hoffman's Tribunal declared that the complied with the technical qualifications insofar as the absence of
concession agreement "was not void for any mistake of law or Unsatisfactory Performance Record is concerned.
discharged by frustration". As to the financial incapacity of private respondents, this, too, has
"Government of Maldives and Maldives Airport Co. Ltd (MACL) are been sufficiently addressed by PBAC when it further evaluated the
jointly and severally liable in damages to GMIAL for loss caused by financial proposal of MCC prior to the execution of the Final
wrongful repudiation of the agreement as per the concession Concession Agreement. And contrary to the claims of petitioner
agreement," GMR Infrastructure said. Osmeña III, representatives from GMR have satisfactorily answered
the issue raised on their financial capability for the MCIA Project
during the Senate hearing held on March 25, 2014. What petitioner MR. KAPUR. . .. Just give me a moment.
Osmeña III chiefly assailed was DOTC's due diligence which to him, Our GMR's consolidated net loss for the 9-month period ending
fell short because they did not "dig in" and made a more in-depth December of 2013 was about 4 billion Indian rupees.
investigation into GMR' s background, specifically on the negative THE ACTING CHAIRMAN (SEN. OSMEÑA). That's your net loss.
findings of India's Comptroller and General Auditor. Herein MR. KAPUR. Net loss. This is the net loss.
reproduced are relevant portions of the transcript taken during said THE ACTING CHAIRMAN (SEN. OSMEÑA). Okay. And your EBITDA
hearing: increased to 18 billion-
THE ACTING CHAIRMAN (SEN. OSMEÑA). All right. Now, let's go to MR. KAPUR. Yeah. It is about 7 billion profit. There's a positive of 7
GMR so that they'll have a chance to explain. billion Indian rupees.
You wanted to react to a certain point we raised earlier. You're Mr. THE ACTING CHAIRMAN (SEN. OSMEÑA). No. I'm giving you more. I'm
Kapur? giving you 18 billion in EBITDA. That's Earnings Before Income Tax,
MR. KAPUR. Yes, sir. Depreciation and Amortization.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Yes. Yes, please. MR. KAPUR. Ah, okay. That is 17 billion. Nine months is 17 billion-It's
MR. KAPUR. I think there have been three points which were raised. about 18.8 billion.
One was about the financial. THE ACTING CHAIRMAN (SEN. OSMEÑA). Eighteen point eight billion.
And just to react to that point, as far as GMR is concerned, as I had And your interest expenses jumped to 20.5 billion in that same
mentioned in my last hearing also, the group is absolutely financially period.
sound. It's rated BBB investment grade by the rating agencies. It has MR. KAPUR. That's right, that's right.
not departed to any lender. It has got letters of good standing from THE ACTING CHAIRMAN (SEN. OSMEÑA). So, therefore, you don't
Asian Development Bank and Standard Chartered Bank which have even have-generate enough cash, operating profit to cover your
been submitted at the time of our submission. That was primarily interest expense?
about the GMR Group. And, in fact, last time, I had also made a very It's just a simple question. Twenty billion is more than 18 billion,
detailed submission about its financials, its operating profits and its right?
cash profits and the group is very much profitable. It has the ability MR. KAPUR. Your Honor, I think one has to understand this is a
to meet the finances required to complete this project. consolidated balance sheet.
Having said that, the prime criteria of financial capability was that of THE ACTING CHAIRMAN (SEN. OSMEÑA). I'm just asking. I know it's a
Megawide because they were the 60 percent partner as far as this consolidated balance sheet, I know it's a mother company.
project is concerned. MR. KAPUR. So, I think what is really the element is that the GMR has
xxxx the ability to implement this project whether it is credit rating
THE ACTING CHAIRMAN (SEN. OSMEÑA). because everybody has their own discretion to analyze what the
xxxx profitability is and come to their own subjective judgment. But the
Your net losses increased -- surged to 10.7 billion rupees during the subjective judgment has to be based upon a credible third party. And
nine-month period ending December 31st 2013, is that correct? the credible third party in this case are the rating agencies who
xxxx continuously rate any listed entity. And if found giving that
information in public domain, other purpose of consumption of THE ACTING CHAIRMAN (SEN. OSMEÑA). On the ... ?
people who are going to deal with that entity. And the rating of GMR MR. KAPUR. The report of the Comptroller and Auditor General-
is something which is the most important and should be relied upon. Indian government audited.
Because if any point of time, GMR is potentially and financially THE ACTING CHAIRMAN (SEN. OSMEÑA). I think you responded to
distressed, it would impact the rating. And automatically, the rating that already in the previous hearing.
agencies are going to come back and change the rating, and that has MR. KAPUR. We have not responded. Last time we did not respond.
not happened. The rating agencies have maintained consistently the It was not an issue raised last time.
investment credit rating of GMR Group. And I would just like to THE ACTING CHAIRMAN (SEN. OSMEÑA). All right. Please respond to
reiterate that the GMR Group is not in financial distress. It is robust, it.
it has got the ability to meet its long-term debt as well as the short- MR. KAPUR. Let me explain the process of -
term debt. THE ACTING CHAIRMAN (SEN. OSMEÑA). You know, the whole point
THE ACTING CHAIRMAN (SEN. OSMEÑA). By borrowing some more. I'm trying to make is that there's always a response to any charge
MR. KAPUR. I think, sir, that is the- that's made. There are two sides in a question: There is the
THE ACTING CHAIRMAN (SEN. OSMEÑA). I'm not saying you're going prosecutor; there is the defense. You can always come up with a
belly up. What I am saying is that there are always warnings that defense. It will always sound very rational and very logical. But what
those of us who understand the-how to read financial statements can I am questioning is that why the DOTC did not exercise the due
always come to preliminary conclusions. We do ratios, we do diligence to pick up the Comptroller and Auditor General's Report
analysis. And right here, this is very clear that you're spending more with regard to the performance of GMR. That's all I am saying.
in interest than what you are earning. So, if things were to stand still Whether it's valid or not, whether you will dispute it or not, we
today, you wouldn't be able to pay 2 billion in interest, 2 billion expected you to dispute that, we expected you to have answers, and
rupees interest. we have read your answers. But what I am saying is why didn't you
That's all I'm saying. I'm not saying you're not going to pay it because know about it? Why didn't you take the effort to do more in-depth
you can always borrow some more tomorrow. But this is a situation due diligence on whoever bidders came before you in order to
that's been obtaining for some time. This is not just 2013. This protect the interest of the Filipino people. That's what I am saying.
happened in 2012, this happened in 2011. So, you've had operating So, whether you can answer it or not is really beside the point. It's
losses for three years running. why did they not pick it up? And you can answer that, you can answer
MR. KAPUR. The EBITDA is before other income also. If you actually me why DOTC didn't pick it up?
see the financial statement, there is another income also which is MR. KAPUR. No, sir.
below the line after EBITDA. And that is also used to meet the interest THE ACTING CHAIRMAN (SEN. OSMEÑA). So, I think you'll have to
and the payment liabilities. hold your comments first, Mr. Kapur, because we know what you're
THE ACTING CHAIRMAN (SEN. OSMEÑA). I understand what's below going to say, and we are not saying that they're not valid answers.
the line. Thank you for that. Anyway- My concern is why didn't they pick it up.
MR. KAPUR. And sir, I think can I also respond on the CAG report MR. KAPUR. Can I respond to that?
which you raised?
THE ACTING CHAIRMAN (SEN. OSMEÑA). I don't think you can answer resolution of disputes between bidders, and recommendation for the
that question why they didn't pick it up. That's the DOTC's question. acceptance of the bid award and/or for the award of the project.48
MR. KAPUR. No, sir. I just wanted to say something which is relevant Petitioner Osmefia contends that the DOTC may not apply its own
for that purpose. He had submitted a letter which is dated 19 bidding rules in a manner that puts bidders on unequal footing. He
December from the government of India, Ministry of Civil Aviation to emphasizes that the grounds raised to disqualify private respondents
the DOTC and PBAC, which actually is that DIAL bas been operating are not minor defects that may be waived by the PBAC in order to
the airport from May 2006 satisfactorily as per the provisions of the qualify a disqualified bidder. He points out that the arbitrariness of
UNDA, executed between DIAL and airport authority. Further, we PBAC is apparent because despite its knowledge of grounds to
have also been operating the Hyderabad Airport, and the airport also disqualify private respondents, i.e., the existence of a violation of the
has been operating satisfactorily. rule on conflict of interest and a showing of private respondents'
THE ACTING CHAIRMAN (SEN. OSMEÑA). Yes. That's a good side. Did poor financial health and track record, the resulting decision
you disclose it? Did you disclose the CAG findings to DOTC? nevertheless declared them as qualified bidders.49
MR. KAPUR. That is for the letter of good standing from the The contention has no merit.
government of India. As earlier stated, PBAC's interpretation of the Conflict of Interest
THE ACTING CHAIRMAN (SEN. OSMEÑA). And you disclosed that we provision requiring direct involvement or participation in the
were charged by the Comptroller and Auditor General of India with deliberations and decision-making related to the bidding for the
this, and this is our response. Did you disclose that you were charged? MCIA Project was fair, reasonable and practical. The issues regarding
MR. KAPUR. Sir, let me make a correction here, sir, may I request? GMR' s Male airport case and MCC's financial capability have been
THE ACTING CHAIRMAN (SEN. OSMEÑA). No. Just answer the fully ventilated during the post-qualification stage. Both private
question. Yes or no. Did you disclose it? respondents and the second highest bidder, FDC, argued their
MR. KAPUR. We were not charged by the CAG. respective positions which were duly considered, including a detailed
THE ACTING CHAIRMAN (SEN. OSMEÑA). Did you disclose the evaluation of their technical and financial qualification documents.
existence of the CAG report? That PBAC's own inquiry did not yield any concrete evidence of
MR. KAPUR. No, we were not required to disclose. GMR's unsatisfactory performance, as defined in the ITPB, and MCC's
THE ACTING CHAIRMAN (SEN. OSMEÑA). You're not required. poor financial health does not necessarily indicate preference for one
MR. KAPUR. The charge is not on us.47 (Emphasis supplied) bidder over the others, especially as the bidding in this case was
The issues raised against DIAL, as contained in the CAG's report had conducted with transparency.
been addressed and resolved by the PBAC. In the same vein, GMR' s Increased Terminal Fees Valid and Legal
alleged violation of the conflict of interest rule was found to be non- On the legality of the increased terminal fees imposed by GMCAC,
existent. Contrary to petitioners' asseveration, the interpretation this is based on the right granted under the Concession Agreement
made by PBAC on this bidding rule was reasonable, fair and practical. to collect such fees. For this kind of BOT projects, the law expressly
Under the BOT Law IRR, the PBAC shall be responsible for all aspects provides that the project proponent operates the facility over a fixed
of the bidding process, including the interpretation of the rules term during which it is allowed to charge facility users appropriate
regarding the bidding, the conduct of bidding, evaluation of bids, tolls, fees, rentals and charges not exceeding those proposed in its
bid or as negotiated and incorporated in the contract to enable the Annex 21-B (Parametric Formula for Aircraft Parking Fee and Tacking
project proponent to recover its investment and operating and Fee), as the case may be.51
maintenance expenses in the project.50 Petitioners Not Entitled to Preliminary Injunction
At any rate, the Concession Agreement provided for a formula and For the writ of injunction to issue, the existence of a clear and positive
procedure to be applied should there be an increase in Passenger right especially calling for judicial protection must be shown;
Service Charge, Aircraft Parking Fees and Tacking Fees, thus: injunction is not to protect contingent or future rights; nor is it a
24.2.c Unless otherwise provided by any Relevant Rules and remedy to enforce an abstract right. An injunction will not issue to
Procedure promulgated by MCIAA or by any Government Authority, protect a right not in esse and which may never arise or to restrain
the following procedure shall apply for every increase in the an act which does not give rise to cause of action. There must exist
Passenger Service Charge, aircraft Parking Fees, and Tacking Fees, an actual right.52
after the expiration of the first (1st) Contract Year: Petitioners failed to establish such actual right that needs to be
24.2.c (1) The Concessionaire shall file with the MCIAA an application protected by injunctive relief. There being no violation of any law,
for such increase no later than six (6) months prior to the date that regulation or the bidding rules, nor any arbitrariness or unfairness
the relevant increase in the Passenger Service Charge, Aircraft committed by public respondents, the presumption of regularity of
Parking Fees, and Tacking Fees shall take effect. the bidding for the MCIA Project must stand.
24.2.c (2) The Concessionaire shall publish the application in a WHEREFORE, the petition in G.R. No. 211737 is hereby DISMISSED for
newspaper of general circulation at least two (2) weeks before the lack of merit. The petition in G.R. No. 214756 is DENIED for lack of
first hearing on the application. sufficient legal and factual bases.
24.2.c (3) MCIAA shall conduct a public hearing on the said No pronouncement as to costs.
application in accordance with any rule of procedure that it may SO ORDERED.
promulgate.
24.2.c (4) The Concessionaire shall comply with all other
requirements of Relevant Rules and Procedures that may be G.R. No. 225973, November 08, 2016
promulgated by MCIAA or any Government Authority for the SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO
increase of the Passenger Service Charge, Aircraft Parking Fees, and LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES,
Tacking Fees. MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EX-DETAINEES
24.2.c (5) The Grantors and the Concessionaire shall conduct the LABAN SA DETENSYON AT ARESTO (SELDA), REPRESENTED BY
procedure for implementing the increase in Passenger Service DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL
Charge, Aircraft Parking Fees, and Tacking Fees in such a manner as ROSARIO, FELIX C. DALISAY, AND DANILO M. DELAFUENTE,*
to ensure that all Relevant Consents are secured promptly to enable Petitioners, v. REAR ADMIRAL ERNESTO C. ENRIQUEZ (IN HIS
the Concessionaire to implement a timely increase in Passenger CAPACITY AS THE DEPUTY CHIEF OF STAFF FOR RESERVIST AND
Service Charge, Aircraft Parking Fees, and Tacking Fees in accordance RETIREE AFFAIRS, ARMED FORCES OF THE PHILIPPINES), THE GRAVE
with the parametric formula and at such times as contemplated in SERVICES UNIT (PHILIPPINE ARMY), AND GENERAL RICARDO R.
Annex 21-A (Parametric Formula for Passenger Service Charge) or VISAYA (IN HIS CAPACITY AS THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES), DEFENSE SECRETARY DELFIN LORENZANA, C. ENRIQUEZ, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA,
AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO)
SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS, Respondents. ADMINISTRATOR LT. GEN. ERNESTO G. CAROLINA (RET.),
Respondents.
RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C.
SAGUISAG III, Intervenors. G.R. No. 226116

G.R. No. 225984 HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X.


MANGLAPUS, EDILBERTO C. DE JESUS, BELINDA O. CUNANAN,
REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD
CAPACITIES AND AS A MEMBER OF CONGRESS AND AS THE MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P.
HONORARY CHAIRPERSON OF THE FAMILIES OF VICTIMS OF OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M.
INVOLUNTARY DISAPPEARANCE (FIND); FAMILIES OF VICTIMS OF QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA,
INVOLUNTARY DISAPPEARANCE (FIND), REPRESENTED BY ITS AUGUSTO A. LEGASTO, JR., AND JULIA KRISTINA P. LEGASTO,
CO-CHAIRPERSON, NILDA L. SEVILLA; REP. TEDDY BRAWNER Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA,
BAGUILAT, JR.; REP. TOMASITO S. VILLARIN; REP. EDGAR R. ERICE; DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT.
AND REP. EMMANUEL A. BILLONES, Petitioners, v. EXECUTIVE GEN. RICARDO R. VISAYA, AFP DEPUTY CHIEF OF STAFF REAR
SECRETARY SALVADOR C. MEDIALDEA; DEFENSE SECRETARY DELFIN ADMIRAL ERNESTO C. ENRIQUEZ, AND PHILIPPINE VETERANS
N. LORENZANA; AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA; AFFAIRS OFFICE (PVAO) OF THE DND, Respondents.
AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C.
ENRIQUEZ; AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED G.R. No. 226117
BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS,
Respondents. ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE
ROSE SACE LIM, JUAN ANTONIO RAROGAL MAGALANG, Petitioners,
G.R. No. 226097 v. SECRETARY OF NATIONAL DEFENSE DELFIN N. LORENZANA, AFP
CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF THE
LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F. PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA,
SANTOS-MARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE Respondents.
B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR,
MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUIE G. G.R. No. 226120
CRISMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE, AND
ABDULMARI DE LEON IMAO, JR., Petitioners, v. EXECUTIVE ALGAMAR A. LATIPH, Petitioner, v. SECRETARY DELFIN N.
SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, SUED IN HIS CAPACITY AS SECRETARY OF NATIONAL
LORENZANA, AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO DEFENSE, LT. GEN. RICARDO R. VISAYA, IN HIS CAPACITY AS CHIEF
OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND LT. GEN. would allow the burial of former President Ferdinand E. Marcos
ERNESTO G. CAROLINA (RET.), IN HIS CAPACITY AS (Marcos) at the Libingan Ng Mga Bayani (LNMB). He won the May 9,
ADMINISTRATOR, PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO), 2016 election, garnering 16,601,997 votes. At noon of June 30, 2016,
Respondents. he formally assumed his office at the Rizal Hall in the Malacañan
Palace.
G.R. No. 226294
On August 7, 2016, public respondent Secretary of National Defense
LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE REPUBLIC Delfin N. Lorenzana issued a Memorandum to the public respondent
AND AS TAXPAYER, Petitioner, v. HON. SALVADOR C. MEDIALDEA, Chief of Staff of the Armed Forces of the Philippines (AFP), General
DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT. Ricardo R. Visaya, regarding the interment of Marcos at the LNMB, to
GEN. RICARDO R. VISAYA, UNDERSECRETARY ERNESTO G. wit:ChanRoblesVirtualawlibrary
CAROLINA, IN HIS CAPACITY AS PHILIPPINE VETERANS AFFAIRS Subject: Interment of the late Former President Ferdinand Marcos at
OFFICE (PVAO) ADMINISTRATOR AND B/GEN. RESTITUTO L. LNMB
AGUILAR, IN HIS CAPACITY AS SHRINE CURATOR AND CHIEF
VETERANS MEMORIAL AND HISTORICAL DIVISION AND HEIRS OF Reference: Verbal Order of President Rodrigo Duterte on July 11,
FERDINAND EDRALIN MARCOS, Respondent. 2016.
DECISION
PERALTA, J.: In compliance to (sic) the verbal order of the President to implement
In law, as much as in life, there is need to find closure. Issues that his election campaign promise to have the remains of the late former
have lingered and festered for so long and which unnecessarily divide President Ferdinand E. Marcos be interred at the Libingan ng mga
the people and slow the path to the future have to be interred. To Bayani, kindly undertake all the necessary planning and preparations
move on is not to forget the past. It is to focus on the present and the to facilitate the coordination of all agencies concerned specially the
future, leaving behind what is better left for history to ultimately provisions for ceremonial and security requirements. Coordinate
decide. The Court finds guidance from the Constitution and the closely with the Marcos family regarding the date of interment and
applicable laws, and in the absence of clear prohibition against the the transport of the late former President's remains from Ilocos
exercise of discretion entrusted to the political branches of the Norte to the LNMB.
Government, the Court must not overextend its readings of what
may only be seen as providing tenuous connection to the issue before The overall OPR for this activity will [be] the PVAO since the LNMB is
it. under its supervision and administration. PVAO shall designate the
focal person for this activity who shall be the overall overseer of the
Facts event.

During the campaign period for the 2016 Presidential Election, then Submit your Implementing Plan to my office as soon as
candidate Rodrigo R. Duterte (Duterte) publicly announced that he possible.1chanroblesvirtuallawlibrary
On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368
issued the following directives to the Philippine Army (PA) (Human Rights Victims Reparation and Recognition Act of 2013).
Commanding General:ChanRoblesVirtualawlibrary
SUBJECT: Funeral Honors and Service 2. Petition for Certiorari-in-Intervention5 filed by Rene A.V. Saguisag,
Sr. and his son,6 as members of the Bar and human rights lawyers,
TO: Commanding General, Philippine Army and his grandchild.7chanrobleslaw
Headquarters, Philippine Army
Fort Bonifacio, Taguig City 3. Petition for Prohibition8 filed by Representative Edcel C. Lagman,
Attn: Assistant Chief of Staff for RRA, G9 in his personal capacity, as member of the House of Representatives
Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14 July and as Honorary Chairperson of Families of Victims of Involuntary
1992, provide services, honors and other courtesies for the late Disappearance (FIND), a duly-registered corporation and
Former President Ferdinand E. Marcos as indicated: organization of victims and families of enforced disappearance,
mostly during the martial law regime of the former President Marcos,
chanRoblesvirtualLawlibrary [x] Vigil - Provide vigil- and several others,9 in their official capacities as duly-elected
[x] Bugler/Drummer Congressmen of the House of Representatives of the Philippines.
[x] Firing Party
[x] Military Host/Pallbearers 4. Petition for Prohibition10 filed by Loretta Ann Pargas-Rosales,
[x] Escort and Transportation former Chairperson of the Commission on Human Rights, and several
[x] Arrival/Departure Honors others,11 suing as victims of State-sanctioned human rights
violations during the martial law regime of Marcos.
His remains lie in state at Ilocos Norte
5. Petition for Mandamus and Prohibition12 filed by Heherson T.
Interment will take place at the Libingan ng mga Bayani, Ft. Bonifacio, Alvarez, former Senator of the Republic of the Philippines, who
Taguig City. Date: TBAL. fought to oust the dictatorship of Marcos, and several others,13 as
concerned Filipino citizens and taxpayers.
Provide all necessary military honors accorded for a President
6. Petition for Certiorari and Prohibition14 filed by Zaira Patricia B.
POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA2 Baniaga and several others,15 as concerned Filipino citizens and
Dissatisfied with the foregoing issuance, the following were filed by taxpayers.
petitioners:
7. Petition for Certiorari and Prohibition16 filed by Algamar A. Latiph,
chanRoblesvirtualLawlibrary1. Petition for Certiorari and former Chairperson of the Regional Human Rights Commission,
Prohibition3 filed by Saturnino Ocampo and several others,4 in their Autonomous Region in Muslim Mindanao, by himself and on behalf
capacities as human rights advocates or human rights violations
of the Moro17 who are victims of human rights during the martial of Article XI, Section 3(2) of Article XIV, and Section 26 of Article XVIII
law regime of Marcos. of the 1987 Constitution;

8. Petition for Certiorari and Prohibition18 filed by Leila M. De Lima (b) R.A. No. 289;
as member of the Senate of the Republic of the Philippines, public
official and concerned citizen. (c) R.A. No. 10368;

Issues (d) AFP Regulation G 161-375 dated September 11, 2000;

Procedural (e) The International Covenant on Civil and Political Rights;

1. Whether President Duterte's determination to have the remains of (f) The "Basic Principles and Guidelines on the Right to a Remedy and
Marcos interred at the LNMB poses a justiciable controversy. Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law"
2. Whether petitioners have locus standi to file the instant petitions. of the United Nations (U.N.) General Assembly; and cralawlawlibrary

3. Whether petitioners violated the doctrines of exhaustion of (g) The "Updated Set of Principles for Protection and Promotion of
administrative remedies and hierarchy of courts. Human Rights through Action to Combat Impunity" of the U.N.
Economic and Social Council;
Substantive
3. Whether historical facts, laws enacted to recover ill-gotten wealth
1. Whether the respondents Secretary of National Defense and AFP from the Marcoses and their cronies, and the pronouncements of the
Rear Admiral committed grave abuse of discretion, amounting to lack Court on the Marcos regime have nullified his entitlement as a soldier
or excess of jurisdiction, when they issued the assailed memorandum and former President to interment at the LNMB.
and directive in compliance with the verbal order of President
Duterte to implement his election campaign promise to have the 4. Whether the Marcos family is deemed to have waived the burial of
remains of Marcos interred at the LNMB. the remains of former President Marcos at the LNMB after they
entered into an agreement with the Government of the Republic of
2. Whether the Issuance and implementation of the assailed the Philippines as to the conditions and procedures by which his
memorandum and directive violate the Constitution, domestic and remains shall be brought back to and interred in the Philippines.
international laws, particularly:
Opinion
chanRoblesvirtualLawlibrary(a) Sections 2, 11, 13, 23, 26, 27 and 28
of Article II, Section 1 of Article III, Section 17 of Article VII, Section 1 The petitions must be dismissed.
executive branch of the government.25cralawred As they are
Procedural Grounds concerned with questions of policy and issues dependent upon the
wisdom, not legality of a particular measure,26 political questions
Justiciable controversy used to be beyond the ambit of judicial review. However, the scope
of the political question doctrine has been limited by Section 1 of
It is well settled that no question involving the constitutionality or Article VIII of the 1987 Constitution when it vested in the judiciary the
validity of a law or governmental act may be heard and decided by power to determine whether or not there has been grave abuse of
the Court unless the following requisites for judicial inquiry are discretion amounting to lack or excess of jurisdiction on the part of
present: (a) there must be an actual case or controversy calling for any branch or instrumentality of the Government.
the exercise of judicial power; (b) the person challenging the act must
have the standing to question the validity of the subject act or The Court agrees with the OSG that President Duterte's decision to
issuance; (c) the question of constitutionality must be raised at the have the remains of Marcos interred at the LNMB involves a political
earliest opportunity; and (d) the issue of constitutionality must be the question that is not a justiciable controversy. In the exercise of his
very lis mota of the case.19 In this case, the absence of the first two powers under the Constitution and the Executive Order (E.O.) No.
requisites, which are the most essential, renders the discussion of the 292 (otherwise known as the Administrative Code of 1987) to allow
last two superfluous.20chanrobleslaw the interment of Marcos at the LNMB, which is a land of the public
domain devoted for national military cemetery and military shrine
An "actual case or controversy" is one which involves a conflict of purposes, President Duterte decided a question of policy based on
legal rights, an assertion of opposite legal claims, susceptible of his wisdom that it shall promote national healing and forgiveness.
judicial resolution as distinguished from a hypothetical or abstract There being no taint of grave abuse in the exercise of such discretion,
difference or dispute.21 There must be a contrariety of legal rights as discussed below, President Duterte's decision on that political
that can be interpreted and enforced on the basis of existing law and question is outside the ambit of judicial review.
jurisprudence.22 Related to the requisite of an actual case or
controversy is the requisite of "ripeness," which means that Locus standi
something had then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner Defined as a right of appearance in a court of justice on a given
must allege the existence of an immediate or threatened injury to question,27locus standi requires that a party alleges such personal
itself as a result of the challenged action.23 Moreover, the limitation stake in the outcome of the controversy as to assure that concrete
on the power of judicial review to actual cases and controversies adverseness which sharpens the presentation of issues upon which
carries the assurance that the courts will not intrude into areas the court depends for illumination of difficult constitutional
committed to the other branches of government.24 Those areas questions.28 Unless a person has sustained or is in imminent danger
pertain to questions which, under the Constitution, are to be decided of sustaining an injury as a result of an act complained of, such proper
by the people in their sovereign capacity, or in regard to which full party has no standing.29 Petitioners, who filed their respective
discretionary authority has been delegated to the legislative or petitions for certiorari, prohibition and mandamus, in their capacities
as citizens, human rights violations victims, legislators, members of importance, and that the Court's decision would have a profound
the Bar and taxpayers, have no legal standing to file such petitions effect on the political, economic, and other aspects of national life.
because they failed to show that they have suffered or will suffer The ponencia explained that the case was in a class by itself, unique
direct and personal injury as a result of the interment of Marcos at and could not create precedent because it involved a dictator forced
the LNMB. out of office and into exile after causing twenty years of political,
economic and social havoc in the country and who, within the short
Taxpayers have been allowed to sue where there is a claim that public space of three years (from 1986), sought to return to the Philippines
funds are illegally disbursed or that public money is being deflected to die.
to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law.30 In this case, At this point in time, the interment of Marcos at a cemetery originally
what is essentially being assailed is the wisdom behind the decision established as a national military cemetery and declared a national
of the President to proceed with the interment of Marcos at the shrine would have no profound effect on the political, economic, and
LNMB. As taxpayers, petitioners merely claim illegal disbursement of other aspects of our national life considering that more than twenty-
public funds, without showing that Marcos is disqualified to be seven (27) years since his death and thirty (30) years after his ouster
interred at the LNMB by either express or implied provision of the have already passed. Significantly, petitioners failed to demonstrate
Constitution, the laws or jurisprudence. a clear and imminent threat to their fundamental constitutional
rights.
Petitioners Saguisag, et al.,31 as members of the Bar, are required to
allege any direct or potential injury which the Integrated Bar of the As human rights violations victims during the Martial Law regime,
Philippines, as an institution, or its members may suffer as a some of petitioners decry re-traumatization, historical revisionism,
consequence of the act complained of.32 Suffice it to state that the and disregard of their state recognition as heroes. Petitioners'
averments in their petition-in-intervention failed to disclose such argument is founded on the wrong premise that the LNMB is the
injury, and that their interest in this case is too general and shared by National Pantheon intended by law to perpetuate the memory of all
other groups, such that their duty to uphold the rule of law, without Presidents, national heroes and patriots. The history of the LNMB, as
more, is inadequate to clothe them with requisite legal will be discussed further, reveals its nature and purpose as a national
standing.33chanrobleslaw military cemetery and national shrine, under the administration of
the AFP.
As concerned citizens, petitioners are also required to substantiate
that the issues raised are of transcendental importance, of Apart from being concerned citizens and taxpayers, petitioners
overreaching significance to society, or of paramount public Senator De Lima, and Congressman Lagman, et al.37 come before the
interest.34 In cases involving such issues, the imminence and clarity Court as legislators suing to defend the Constitution and to protect
of the threat to fundamental constitutional rights outweigh the appropriated public funds from being used unlawfully. In the absence
necessity for prudence.35 In Marcos v. Manglapus,36 the majority of a clear showing of any direct injury to their person or the
opinion observed that the subject controversy was of grave national institution to which they belong, their standing as members of the
Congress cannot be upheld.38 They do not specifically claim that the determine technical and intricate matters of fact. If petitioners would
official actions complained of, i.e., the memorandum of the Secretary still be dissatisfied with the decision of the Secretary, they could
of National Defense and the directive of the AFP Chief of Staff elevate the matter before the Office of the President which has
regarding the interment of Marcos at the LNMB, encroach on their control and supervision over the Department of National Defense
prerogatives as legislators.39chanrobleslaw (DND).44chanrobleslaw

Exhaustion of Administrative Remedies Hierarchy of Courts

Petitioners violated the doctrines of exhaustion of administrative In the same vein, while direct resort to the Court through petitions
remedies and hierarchy of courts. Under the doctrine of exhaustion for the extraordinary writs of certiorari, prohibition and mandamus
of administrative remedies, before a party is allowed to seek the are allowed under exceptional cases,45 which are lacking in this case,
intervention of the court, one should have availed first of all the petitioners cannot simply brush aside the doctrine of hierarchy of
means of administrative processes available.40 If resort to a remedy courts that requires such petitions to be filed first with the proper
within the administrative machinery can still be made by giving the Regional Trial Court (RTC). The RTC is not just a trier of facts, but can
administrative officer concerned every opportunity to decide on a also resolve questions of law in the exercise of its original and
matter that comes within his jurisdiction, then such remedy should concurrent jurisdiction over petitions for certiorari, prohibition and
be exhausted first before the court's judicial power can be sought.41 mandamus, and has the power to issue restraining order and
For reasons of comity and convenience, courts of justice shy away injunction when proven necessary.
from a dispute until the system of administrative redress has been
completed and complied with, so as to give the administrative agency In fine, the petitions at bar should be dismissed on procedural
concerned every opportunity to correct its error and dispose of the grounds alone. Even if We decide the case based on the merits, the
case.42 While there are exceptions43 to the doctrine of exhaustion petitions should still be denied.
of administrative remedies, petitioners failed to prove the presence
of any of those exceptions. Substantive Grounds

Contrary to their claim of lack of plain, speedy, adequate remedy in There is grave abuse of discretion when an act is (1) done contrary to
the ordinary course of law, petitioners should be faulted for failing to the Constitution, the law or jurisprudence or (2) executed
seek reconsideration of the assailed memorandum and directive whimsically, capriciously or arbitrarily, out of malice, ill will or
before the Secretary of National Defense. The Secretary of National personal bias.46 None is present in this case.
Defense should be given opportunity to correct himself, if warranted,
considering that AFP Regulations G 161-375 was issued upon his I
order. Questions on the implementation and interpretation thereof The President's decision to bury Marcos at the LNMB is in accordance
demand the exercise of sound administrative discretion, requiring with the Constitution, the law or jurisprudence
the special knowledge, experience and services of his office to
Petitioners argue that the burial of Marcos at the LNMB should not They do not embody judicially enforceable constitutional rights but
be allowed because it has the effect of not just rewriting history as to guidelines for legislation."
the Filipino people's act of revolting against an authoritarian ruler but
also condoning the abuses committed during the Martial Law, In the same light, we held in Basco vs. Pagcor that broad
thereby violating the letter and spirit of the 1987 Constitution, which constitutional principles need legislative enactments to implement
is a "post-dictatorship charter" and a "human rights constitution." For them x x x.
them, the ratification of the Constitution serves as a clear
condemnation of Marcos' alleged "heroism." To support their case, xxx
petitioners invoke Sections 2,47 11,48 13,49 23,50 26,51 2752 and
2853 of Article II, Sec. 17 of Art. VII,54 Sec. 3(2) of Art. XIV,55 Sec. 1 The reasons for denying a cause of action to an alleged infringement
of Art. XI,56 and Sec. 26 of Art. XVIII57 of the Constitution. of broad constitutional principles are sourced from basic
considerations of due process and the lack of judicial authority to
There is no merit to the contention. wade "into the uncharted ocean of social and economic policy
making."59chanroblesvirtuallawlibrary
As the Office of the Solicitor General (OSG) logically reasoned out, In the same vein, Sec. 1 of Art. XI of the Constitution is not a self--
while the Constitution is a product of our collective history as a executing provision considering that a law should be passed by the
people, its entirety should not be interpreted as providing guiding Congress to clearly define and effectuate the principle embodied
principles to just about anything remotely related to the Martial Law therein. As a matter of fact, pursuant thereto, Congress enacted R.A.
period such as the proposed Marcos burial at the LNMB. No. 6713 ("Code of Conduct and Ethical Standards for Public Officials
and Employees"), R.A. No. 6770 ("The Ombudsman Act of 1989"),
Tañada v. Angara58 already ruled that the provisions in Article II of R.A. No. 7080 (An Act Defining and Penalizing the Crime of Plunder),
the Constitution are not self-executing. and Republic Act No. 9485 ("Anti--Red Tape Act of 2007"). To
Thus:ChanRoblesVirtualawlibrary complement these statutes, the Executive Branch has issued various
By its very title, Article II of the Constitution is a "declaration of orders, memoranda, and instructions relative to the norms of
principles and state policies." The counterpart of this article in the behavior/code of conduct/ethical standards of officials and
1935 Constitution is called the "basic political creed of the nation" by employees; workflow charts/public transactions; rules and policies
Dean Vicente Sinco. These principles in Article II are not intended to on gifts and benefits; whistle blowing and reporting; and client
be self- executing principles ready for enforcement through the feedback program.
courts. They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII
enactment of laws. As held in the leading case of Kilosbayan, of the Constitution is also misplaced. Sec. 3(2) of Art. XIV refers to the
Incorporated vs. Morato, the principles and state policies constitutional duty of educational institutions in teaching the values
enumerated in Article II x x x are not "self-executing provisions, the of patriotism and nationalism and respect for human rights, while
disregard of which can give rise to a cause of action in the courts. Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze
orders in relation to the recovery of Marcos' ill-gotten wealth. On May 12, 1953, President Elpidio R. Quirino approved the site of
Clearly, with respect to these provisions, there is no direct or indirect the National Pantheon at East Avenue, Quezon City.69 On December
prohibition to Marcos' interment at the LNMB. 23, 1953, he issued Proclamation No. 431 to formally "withdraw from
sale or settlement and reserve as a site for the construction of the
The second sentence of Sec. 17 of Art. VII pertaining to the duty of National Pantheon a certain parcel of land located in Quezon City."
the President to "ensure that the laws be faithfully executed," which However, on July 5, 1954, President Magsaysay issued Proclamation
is identical to Sec. 1, Title I, Book III of the Administrative Code of No. 42 revoking Proclamation Nos. 422 and 431, both series of 1953,
1987,60 is likewise not violated by public respondents. Being the and reserving the parcels of land embraced therein for national park
Chief Executive, the President represents the government as a whole purposes to be known as Quezon Memorial Park.
and sees to it that all laws are enforced by the officials and employees
of his or her department.61 Under the Faithful Execution Clause, the It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard
President has the power to take "necessary and proper steps" to by which a person's mortal remains may be interred at the LNMB,
carry into execution the law.62 The mandate is self-executory by and that AFP Regulations G 161-375 merely implements the law and
virtue of its being inherently executive in nature and is intimately should not violate its spirit and intent. Petitioners claim that it is
related to the other executive functions.63 It is best construed as an known, both here and abroad, that Marcos' acts and deed - the gross
imposed obligation, not a separate grant of power.64 The provision human rights violations, the massive corruption and plunder of
simply underscores the rule of law and, corollarily, the cardinal government coffers, and his military record that is fraught with
principle that the President is not above the laws but is obliged to myths, factual inconsistencies, and lies - are neither worthy of
obey and execute them.65chanrobleslaw perpetuation in our memory nor serve as a source of inspiration and
emulation of the present and future generations. They maintain that
Consistent with President Duterte's mandate under Sec. 17, Art. VII public respondents are not members of the Board on National
of the Constitution, the burial of Marcos at the LNMB does not Pantheon, which is authorized by the law to cause the burial at the
contravene R.A. No. 289, R.A. No. 10368, and the international LNMB of the deceased Presidents of the Philippines, national heroes,
human rights laws cited by petitioners. and patriots.

A. On R.A. No. 28966chanrobleslaw Petitioners are mistaken. Both in their pleadings and during the oral
arguments, they miserably failed to provide legal and historical bases
For the perpetuation of their memory and for the inspiration and as to their supposition that the LNMB and the National Pantheon are
emulation of this generation and of generations still unborn, R.A. No. one and the same. This is not at all unexpected because the LNMB is
289 authorized the construction of a National Pantheon as the burial distinct and separate from the burial place envisioned in R.A. No 289.
place of the mortal remains of all the Presidents of the Philippines, The parcel of land subject matter of President Quirino's Proclamation
national heroes and patriots.67 It also provided for the creation of a No. 431, which was later on revoked by President Magsaysay's
Board on National Pantheon to implement the law.68chanrobleslaw Proclamation No. 42, is different from that covered by Marcos'
Proclamation No. 208. The National Pantheon does not exist at
present. To date, the Congress has deemed it wise not to appropriate For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375
any funds for its construction or the creation of the Board on National by implicitly disqualifying Marcos' burial at the LNMB because the
Pantheon. This is indicative of the legislative will not to pursue, at the legislature, which is a co-equal branch of the government, has
moment, the establishment of a singular interment place for the statutorily declared his tyranny as a deposed dictator and has
mortal remains of all Presidents of the Philippines, national heroes, recognized the heroism and sacrifices of the Human Rights Violations
and patriots. Perhaps, the Manila North Cemetery, the Manila South Victims (HRVVs)71 under his regime. They insist that the intended act
Cemetery, and other equally distinguished private cemeteries of public respondents damages and makes mockery of the
already serve the noble purpose but without cost to the limited funds mandatory teaching of Martial Law atrocities and of the lives and
of the government. sacrifices of its victims. They contend that "reparation" under R.A.
No. 10368 is non-judicial in nature but a political action of the State
Even if the Court treats R.A. No. 289 as relevant to the issue, still, through the Legislative and Executive branches by providing
petitioners' allegations must fail. To apply the standard that the administrative relief for the compensation, recognition, and
LNMB is reserved only for the "decent and the brave" or "hero" memorialization of human rights victims.
would be violative of public policy as it will put into question the
validity of the burial of each and every mortal remains resting We beg to disagree.
therein, and infringe upon the principle of separation of powers since
the allocation of plots at the LNMB is based on the grant of authority Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all
to the President under existing laws and regulations. Also, the Court Filipinos who were victims of summary execution, torture, enforced
shares the view of the OSG that the proposed interment is not or involuntary disappearance, and other gross human rights
equivalent to the consecration of Marcos' mortal remains. The act in violations committed from September 21, 1972 to February 25, 1986.
itself does not confer upon him the status of a "hero." Despite its To restore their honor and dignity, the State acknowledges its moral
name, which is actually a misnomer, the purpose of the LNMB, both and legal obligation72 to provide reparation to said victims and/or
from legal and historical perspectives, has neither been to confer to their families for the deaths, injuries, sufferings, deprivations and
the people buried there the title of "hero" nor to require that only damages they experienced.
those interred therein should be treated as a "hero." Lastly,
petitioners' repeated reference to a "hero's burial" and "state In restoring the rights and upholding the dignity of HRVVs, which is
honors," without showing proof as to what kind of burial or honors part of the right to an effective remedy, R.A. No. 10368 entitles them
that will be accorded to the remains of Marcos, is speculative until to monetary and non-monetary reparation. Any HRVV qualified
the specifics of the interment have been finalized by public under the law73 shall receive a monetary reparation, which is tax-
respondents. free and without prejudice to the receipt of any other sum from any
other person or entity in any case involving human rights
B. On R.A. No. 1036870chanrobleslaw violations.74 Anent the non-monetary reparation, the Department of
Health (DOH), the Department of Social Welfare and Development
(DSWD), the Department of Education (DepEd), the Commission on
Higher Education (CHED), the Technical Education and Skills This Court cannot subscribe to petitioners' logic that the beneficial
Development Authority (TESDA), and such other government provisions of R.A. No. 10368 are not exclusive as it includes the
agencies are required to render the necessary services for the HRVVs prohibition on Marcos' burial at the LNMB. It would be undue to
and/or their families, as may be determined by the Human Rights extend the law beyond what it actually contemplates. With its victim-
Victims' Claims Board (Board) pursuant to the provisions of the oriented perspective, our legislators could have easily inserted a
law.75chanrobleslaw provision specifically proscribing Marcos' interment at the LNMB as
a "reparation" for the HRVVs, but they did not. As it is, the law is silent
Additionally, R.A. No. 10368 requires the recognition of the violations and should remain to be so. This Court cannot read into the law what
committed against the HRVVs, regardless of whether they opt to seek is simply not there. It is irregular, if not unconstitutional, for Us to
reparation or not. This is manifested by enshrining their names in the presume the legislative will by supplying material details into the law.
Roll of Human Rights Violations Victims (Roll) prepared by the That would be tantamount to judicial legislation.
Board.76 The Roll may be displayed in government agencies
designated by the HRVV Memorial Commission (Commission).77 Considering the foregoing, the enforcement of the HRVVs' rights
Also, a Memorial/Museum/Library shall be established and a under R.A. No 10368 will surely not be impaired by the interment of
compendium of their sacrifices shall be prepared and may be readily Marcos at the LNMB. As opined by the OSG, the assailed act has no
viewed and accessed in the internet.78 The Commission is created causal connection and legal relation to the law. The subject
primarily for the establishment, restoration, preservation and memorandum and directive of public respondents do not and cannot
conservation of the Memorial/Museum/ interfere with the statutory powers and functions of the Board and
Library/Compendium.79chanrobleslaw the Commission. More importantly, the HRVVs' entitlements to the
benefits provided for by R.A. No 10368 and other domestic laws are
To memorialize80 the HRVVs, the Implementing Rules and not curtailed. It must be emphasized that R.A. No. 10368 does not
Regulations of R.A. No. 10368 further mandates that: (1) the amend or repeal, whether express or implied, the provisions of the
database prepared by the Board derived from the processing of Administrative Code or AFP Regulations G 161-
claims shall be turned over to the Commission for archival purposes, 375:ChanRoblesVirtualawlibrary
and made accessible for the promotion of human rights to all It is a well-settled rule of statutory construction that repeals by
government agencies and instrumentalities in order to prevent implication are not favored. In order to effect a repeal by implication,
recurrence of similar abuses, encourage continuing reforms and the later statute must be so irreconcilably inconsistent and
contribute to ending impunity;81 (2) the lessons learned from Martial repugnant with the existing law that they cannot be made to
Law atrocities and the lives and sacrifices of HRVVs shall be included reconcile and stand together. The clearest case possible must be
in the basic and higher education curricula, as well as in continuing made before the inference of implied repeal may be drawn, for
adult learning, prioritizing those most prone to commit human rights inconsistency is never presumed. There must be a showing of
violations;82 and (3) the Commission shall publish only those stories repugnance clear and convincing in character. The language used in
of HRVVs who have given prior informed consent.83chanrobleslaw the later statute must be such as to render it irreconcilable with what
had been formerly enacted. An inconsistency that falls short of that February 25, 1986, the three branches of the government have done
standard does not suffice. x x x84chanroblesvirtuallawlibrary their fair share to respect, protect and fulfill the country's human
C. On International Human Rights Laws rights obligations, to wit:

Petitioners argue that the burial of Marcos at the LNMB will violate chanRoblesvirtualLawlibraryThe 1987 Constitution contains
the rights of the HRVVs to "full" and "effective" reparation, which is provisions that promote and protect human rights and social justice.
provided under the International Covenant on Civil and Political
Rights (ICCPR),85 the Basic Principles and Guidelines on the Right to As to judicial remedies, aside from the writs of habeas corpus,
a Remedy and Reparation for Victims of Gross Violations of amparo,89 and habeas data,90 the Supreme Court promulgated on
International Human Rights Law and Serious Violations of March 1, 2007 Administrative Order No. 25-2007,91 which provides
International Humanitarian Law86 adopted by the U.N. General rules on cases involving extra-judicial killings of political ideologists
Assembly on December 16, 2005, and the Updated Set of Principles and members of the media. The provision of the Basic Principles and
for the Protection and Promotion of Human Rights Through Action to Guidelines on the prevention of the victim's re-traumatization
Combat Impunity87 dated February 8, 2005 by the U.N. Economic applies in the course of legal and administrative procedures designed
and Social Council. to provide justice and reparation.92chanrobleslaw

We do not think so. The ICCPR,88 as well as the U.N. principles on On the part of the Executive Branch, it issued a number of
reparation and to combat impunity, call for the enactment of administrative and executive orders. Notable of which are the
legislative measures, establishment of national programmes, and following:
provision for administrative and judicial recourse, in accordance with A.O. No. 370 dated December 10, 1997 (Creating the Inter--Agency
the country's constitutional processes, that are necessary to give Coordinating Committee on Human Rights)
effect to human rights embodied in treaties, covenants and other
international laws. The U.N. principles on reparation expressly E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a
states:ChanRoblesVirtualawlibrary National Committee on the Culture of Peace)
Emphasizing that the Basic Principles and Guidelines contained
herein do not entail new international or domestic legal obligations E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and
but identify mechanisms, modalities, procedures and methods for Every 12th Day of August Thereafter as International Humanitarian
the implementation of existing legal obligations under international Law Day)
human rights law and international humanitarian law which are
complementary though different as to their norms[.][Emphasis E.O. No. 404 dated January 24, 2005 (Creating the Government of the
supplied] Republic of the Philippines Monitoring Committee [GRP-MC] on
The Philippines is more than compliant with its international Human Rights and International Humanitarian Law)
obligations. When the Filipinos regained their democratic institutions
after the successful People Power Revolution that culminated on
A.O. No. 157 dated August 21, 2006 (Creating an Independent
Commission to Address Media and Activist Killings) A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task
Force on Violations of the Right to Life, Liberty and Security of the
A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing Members of the Media)
the Membership of the Presidential Human Rights Committee, and Finally, the Congress passed the following laws affecting human
Expanding Further the Functions of Said rights:
Committee)93chanrobleslaw Republic Act No. 7438 (An Act Defining Certain Rights of Person
Arrested, Detained or Under Custodia/Investigation as well as the
A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and Duties of the Arresting, Detaining and Investigating Officers and
Coordination Between the National Prosecution Service and Other Providing Penalties for Violations Thereof)
Concerned Agencies of Government for the Successful Investigation
and Prosecution of Political and Media Killings) Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997)

A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination Republic Act No. 9201 (National Human Rights Consciousness Week
with PHRC Sub-committee on Killings and Disappearances) Act of 2002)

A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)
Political Violence)
Republic Act No. 9262 (Anti-Violence Against Women and Their
A.O. No. 249 dated December 10, 2008 (Further Strengthening Children Act of 2004)
Government Policies, Plans, and Programs for the Effective
Promotion and Protection of Human Rights on the Occasion of the Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)
60th Anniversary of the Universal Declaration of Human Rights)
Republic Act No. 9372 (Human Security Act of 2007)
E.O. No. 847 dated November 23, 2009 (Creating the Church-Police-
Military-Liaison Committee to Formulate and Implement a Republic Act No. 9710 (The Magna Carta of Women)
Comprehensive Program to Establish Strong Partnership Between
the State and the Church on Matters Concerning Peace and Order Republic Act No. 9745 (Anti-Torture Act of 2009)
and Human Rights)
Republic Act No. 9851 (Philippine Act on Crimes Against International
A.O. No. 35 dated November 22, 2012 (Creating the Inter--Agency Humanitarian Law, Genocide, and Other Crimes Against Humanity)
Committee on Extra-Legal Killings, Enforced Disappearances, Torture
and Other Grave Violations of the Right to Life, Liberty and Security Republic Act No. 10121 (Philippine Disaster Risk Reduction and
of Persons) Management Act of 2010)
develop educational materials in various media, implement historical
Republic Act No. 10168 (The Terrorism Financing Prevention and educational activities for the popularization of Philippine history, and
Suppression Act of 2012) disseminate, information regarding Philippine historical events,
dates, places and personages; and (c) actively engage in the
Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance settlement or resolution of controversies or issues relative to
Act of 2012) historical personages, places, dates and events.96 Under R.A. Nos.
10066 (National Cultural Heritage Act of 2009)97 and 10086
Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of (Strengthening Peoples' Nationalism Through Philippine History
2012) Act),98 the declared State policy is to conserve, develop, promote,
and popularize the nation's historical and cultural heritage and
Republic Act No. 10368 (Human Rights Victims Reparation And resources.99 Towards this end, means shall be provided to
Recognition Act of 2013) strengthen people's nationalism, love of country, respect for its
heroes and pride for the people's accomplishments by reinforcing the
Republic Act No. 10530 (The Red Cross and Other Emblems Act of importance of Philippine national and local history in daily life with
2013) the end in view of raising social consciousness.100 Utmost priority
Contrary to petitioners' postulation, our nation's history will not be shall be given not only with the research on history but also its
instantly revised by a single resolve of President Duterte, acting popularization.101chanrobleslaw
through the public respondents, to bury Marcos at the LNMB.
Whether petitioners admit it or not, the lessons of Martial Law are II.
already engraved, albeit in varying degrees, in the hearts and minds The President's decision to bury Marcos at the LNMB is not done
of the present generation of Filipinos. As to the unborn, it must be whimsically, capriciously or arbitrarily, out of malice, ill will or
said that the preservation and popularization of our history is not the personal bias
sole responsibility of the Chief Executive; it is a joint and collective
endeavor of every freedom-loving citizen of this country. Petitioners contend that the interment of Marcos at the LNMB will
desecrate it as a sacred and hallowed place and a revered national
Notably, complementing the statutory powers and functions of the shrine where the mortal remains of our country's great men and
Human Rights Victims' Claims Board and the HRVV Memorial women are interred for the inspiration and emulation of the present
Commission in the memorialization of HRVVs, the National Historical generation and generations to come. They erred.
Commission of the Philippines (NHCP), formerly known as the
National Historical Institute (NHI),94 is mandated to act as the A. National Shrines
primary government agency responsible for history and is authorized
to determine all factual matters relating to official Philippine As one of the cultural properties of the Philippines, national historical
history.95 Among others, it is tasked to: (a) conduct and support all shrines (or historical shrines) refer to sites or structures hallowed and
kinds of research relating to Philippine national and local history; (b) revered for their history or association as declared by the NHCP.102
The national shrines created by law and presidential issuance include, shrines, monuments, landmarks and heritage houses and to
among others: Fort Santiago (Dambana ng Kalayaan) in Manila;103 determine the manner of their identification, maintenance,
all battlefield areas in Corregidor and Bataan;104 the site of First restoration, conservation, preservation and
Mass in the Philippines in Magallanes, Limasawa, Leyte;105 protection.121chanrobleslaw
Aguinaldo Shrine or Freedom Shrine in Kawit, Cavite;106 Fort San
Antonio Abad National Shrine in Malate, Manila;107 Tirad Pass Excluded, however, from the jurisdiction of the NHCP are the military
National Shrine in Ilocos Sur;108 Ricarte Shrine109 and Aglipay memorials and battle monuments declared as national shrines, which
Shrine110 in Batac, Ilocos Norte; Liberty Shrine in Lapu-Lapu, have been under the administration, maintenance and development
Cebu;111 "Red Beach" or the landing point of General Douglas of the Philippine Veterans Affairs Office (PVAO) of the DND. Among
MacArthur and the liberating forces in Baras, Palo, Leyte;112 Dapitan the military shrines are: Mt. Samat National Shrine in Pilar,
City as a National Shrine City in Zamboanga Del Norte;113 General Bataan;122 Kiangan War Memorial Shrine in Linda, Kiangan,
Leandro Locsin Fullon National Shrine in Hamtic, Antique;114 and Ifugao;123 Capas National Shrine in Capas, Tarlac;124 Ricarte
Mabini Shrine in Polytechnic University of the Philippines - Mabini National Shrine in Malasin, Batac, Ilocos Norte;125 Balantang
Campus, Sta. Mesa, Manila.115 As sites of the birth, exile, Memorial Cemetery National Shrine in Jaro, Iloilo;126 Balete Pass
imprisonment, detention or death of great and eminent leaders of National Shrine in Sta. Fe, Nueva Vizcaya;127 USAFIP, NL Military
the nation, it is the policy of the Government to hold and keep the Shrine and Park in Bessang Pass, Cervantes, Ilocos Sur;128 and the
national shrines as sacred and hallowed place.116 P.O. No. 105117 LNMB in Taguig City, Metro Manila.129chanrobleslaw
strictly prohibits and punishes by imprisonment and/or fine the
desecration of national shrines by disturbing their peace and serenity B. The Libingan Ng Mga Bayani
through digging, excavating, defacing, causing unnecessary noise,
and committing unbecoming acts within their premises. R.A. No. At the end of World War II, the entire nation was left mourning for
10066 also makes it punishable to intentionally modify, alter, or the death of thousands of Filipinos. Several places served as grounds
destroy the original features of, or undertake construction or real for the war dead, such as the Republic Memorial Cemetery, the
estate development in any national shrine, monument, landmark and Bataan Memorial Cemetery, and other places throughout the
other historic edifices and structures, declared, classified, and country. The Republic Memorial Cemetery, in particular, was
marked by the NHCP as such, without the prior written permission established in May 1947 as a fitting tribute and final resting place of
from the National Commission for Culture and the Arts Filipino military personnel who died in World War II.
(NCAA).118chanrobleslaw
On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O.
As one of the cultural agencies attached to the NCAA,119 the NHCP No. 77, which ordered "the remains of the war dead interred at the
manages, maintains and administers national shrines, monuments, Bataan Memorial Cemetery, Bataan Province, and at other places in
historical sites, edifices and landmarks of significant historico-cultural the Philippines, be transferred to, and reinterred at, the Republic
value.120 In particular, the NHCP Board has the power to approve Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to
the declaration of historic structures and sites, such as national minimize the expenses for the maintenance and upkeep, and to make
the remains accessible to the widows, parents, children, relatives, studies on Philippine history and national heroes and maintaining
and friends. national shrines and monuments.131chanrobleslaw

On October 27, 1954, President Magsaysay issued Proclamation No. Pending the organization of the DEC, the functions relative to the
86, which changed the name of Republic Memorial Cemetery to administration, maintenance and development of national shrines
Libingan Ng Mga Bayani to symbolize "the cause for which our tentatively integrated into the PVAO in July 1973.
soldiers have died" and to "truly express the nations esteem and
reverence for her war dead."130chanrobleslaw On January 26, 1977, President Marcos issued P.D. No. 1076. Section
7, Article XV, Chapter I, Part XII of the IRP was repealed on the
On July 12, 1957, President Carlos P. Garcia issued Proclamation No. grounds that "the administration, maintenance and development of
423, which reserved for military purposes, under the administration national shrines consisting of military memorials or battle
of the AFP Chief of Staff, the land where LNMB is located. The LNMB monuments can be more effectively accomplished if they are
was part of a military reservation site then known as Fort Wm removed from the [DEC] and transferred to the [DND] by reason of
McKinley (now known as Fort Andres Bonifacio). the latter s greater capabilities and resources" and that "the
functions of the [DND] are more closely related and relevant to the
On May 28, 1967, Marcos issued Proclamation No. 208, which charter or significance of said national shrines." Henceforth, the
excluded the LNMB from the Fort Bonifacio military reservation and PVAO through the Military Shrines Service (MSS), which was created
reserved the LNMB for national shrine purposes under the to perform the functions of the abolished NSC - would administer,
administration of the National Shrines Commission (NSC) under the maintain and develop military memorials and battle monuments
DND. proclaimed as national shrines.

On September 24, 1972, Marcos, in the exercise of his powers as the On July 25, 1987, President Corazon C. Aquino issued the
AFP Commander-in-Chief, and pursuant to Proclamation No. 1081 Administrative Code. The Code retains PVAO under the supervision
dated September 21, 1972, and General Order No. 1 dated and control of the Secretary of National Defense.132 Among others,
September 22, 1972, as amended, issued Presidential Decree (P.D.) PVAO shall administer, develop and maintain military shrines.133
No. 1 which reorganized the Executive Branch of the National With the approval of PVAO Rationalization Plan on June 29, 2010,
Government through the adoption of the Integrated Reorganization pursuant to E.O. No. 366 dated October 4, 2004, MSS was renamed
Plan (IRP). Section 7, Article XV, Chapter I, Part XII thereof abolished to Veterans Memorial and Historical Division, under the supervision
the NSC and its functions together with applicable appropriations, and control of PVAO, which is presently tasked with the management
records, equipment, property and such personnel as may be and development of military shrines and the perpetuation of the
necessary were transferred to the NHI under the Department of heroic deeds of our nation's veterans.
Education (DEC). The NHI was responsible for promoting and
preserving the Philippine cultural heritage by undertaking, inter alia, As a national military shrine, the main features, structures, and
facilities of the LNMB are as follows:
Tomb of the Unknown Soldiers - The main structure constructed at Vietnam Veterans Memorial Pylon - Dedicated to the members of the
the center of the cemetery where wreath laying ceremonies are held Philippine contingents and Philippine civic action groups to Vietnam
when Philippine government officials and foreign dignitaries visit the (PHILCON--V and PHILCAG-V) who served as medical, dental,
LNMB. The following inscription is found on the tomb: "Here lies a engineering construction, community and psychological workers,
Filipino soldier whose name is known only to God." Behind the tomb and security complement. They offered tremendous sacrifices as
are three marble pillars representing the three main island groups of they alleviated human suffering in war-ravaged Vietnam from 1964-
the Philippines - Luzon, Visayas and Mindanao. Buried here were the 1971. Inscribed on the memorial pylon are the words: "To build and
remains of 39,000 Filipino soldiers who were originally buried in not to destroy, to bring the Vietnamese people happiness and not
Camp O'Donnell Concentration Camp and Fort Santiago, Intramuros, sorrow, to develop goodwill and not hatred."
Manila.
Philippine World War II Guerillas Pylon - Erected by the Veterans
Heroes Memorial Gate - A structure shaped in the form of a large Federation of the Philippines as a testimony to the indomitable spirit
concrete tripod with a stairway leading to an upper view deck and a and bravery of the Filipino guerillas of World War II who refused to
metal sculpture at the center. This is the first imposing structure one be cowed into submission and carried on the fight for freedom
sees upon entering the grounds of the cemetery complex. against an enemy with vastly superior arms and under almost
insurmountable odds. Their hardship and sufferings, as well as their
Black Stone Walls - Erected on opposite sides of the main entrance defeats and victories, are enshrined in this memorial.134
road leading to the Tomb of the Unknown Soldiers and just near the Contrary to the dissent, P.D. No. 105135 does not apply to the LNMB.
Heroes Memorial are two 12-foot high black stone walls which bear Despite the fact that P.D. No. 208 predated P.D. No. 105,136 the
the words, "I do not know the dignity of his birth, but I do know the LNMB was not expressly included in the national shrines enumerated
glory of his death." that General Douglas MacArthur made during his in the latter.137 The proposition that the LNMB is implicitly covered
sentimental journey to the Philippines in 1961. in the catchall phrase "and others which may be proclaimed in the
future as National Shrines" is erroneous because:
Defenders of Bataan and Corregidor Memorial Pylon - Inaugurated
on April 5, 1977 by Secretary Renato S. De Villa in memory of the chanRoblesvirtualLawlibrary(1) As stated, Marcos issued P.D. No. 208
defenders of Bataan and Corregidor during World War II. This prior to P.D. No. 105.
monument is dedicated as an eternal acknowledgment of their valor
and sacrifice in defense of the Philippines. (2) Following the canon of statutory construction known as ejusdem
generis,138 the LNMB is not a site "of the birth, exile, imprisonment,
Korean Memorial Pylon - A towering monument honoring the 112 detention or death of great and eminent leaders of the nation." What
Filipino officers and men who, as members of the Philippine P.D. No. 105 contemplates are the following national shrines: Fort
Expeditionary Forces to Korea (PEFTOK), perished during the Korean Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor
War. and Bataan, the site of First Mass in the Philippines, Aguinaldo Shrine
or Freedom Shrine, Fort San Antonio Abad National Shrine, Tirad Pass
National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty Shrine, "Red and every mortal remains interred therein. Hence, the burial of
Beach" or the landing point of General Douglas MacArthur and the Marcos at the LNMB does not diminish said cemetery as a revered
liberating forces, Dapitan City, General Leandro Locsin Fullon and respected ground. Neither does it negate the presumed
National Shrine, and Mabini Shrine. Excluded are the military individual or collective "heroism" of the men and women buried or
memorials and battle monuments declared as national shrines under will be buried therein. The "nations esteem and reverence for her war
the PVAO, such as: Mt. Samat National Shrine, Kiangan War dead," as originally contemplated by President Magsaysay in issuing
Memorial Shrine, Capas National Shrine, Ricarte National Shrine, Proclamation No. 86, still stands unaffected. That being said, the
Balantang Memorial Cemetery National Shrine, Balete Pass National interment of Marcos, therefore, does not constitute a violation of the
Shrine; USAFIP, NL Military Shrine and Park, and the LNMB. physical, historical, and cultural integrity of the LNMB as a national
military shrine.
(3) Since its establishment, the LNMB has been a military shrine
under the jurisdiction of the PVAO. While P.D. No. 1 dated September At this juncture, reference should be made to Arlington National
24, 1972 transferred the administration, maintenance and Cemetery (Arlington), which is identical to the LNMB in terms of its
development of national shrines to the NHI under the DEC, it never prominence in the U.S. It is not amiss to point that our armed forces
actually materialized. Pending the organization of the DEC, its have been patterned after the U.S. and that its military code
functions relative to national shrines were tentatively integrated into produced a salutary effect in the Philippines' military justice
the PVAO in July 1973. Eventually, on January 26, 1977, Marcos system.139 Hence, relevant military rules, regulations, and practices
issued P.D. No. 1076. The PVAO, through the MSS, was tasked to of the U.S. have persuasive, if not the same, effect in this jurisdiction.
administer, maintain, and develop military memorials and battle
monuments proclaimed as national shrines. The reasons being that As one of the U.S. Army national military cemeteries,140 the
"the administration, maintenance and development of national Arlington is under the jurisdiction of the Department of the Army.141
shrines consisting of military memorials or battle monuments can be The Secretary of the U.S. Army has the responsibility to develop,
more effectively accomplished if they are removed from the [DEC] operate, manage, administer, oversee, and fund the Army national
and transferred to the [DND] by reason of the latter's greater military cemeteries in a manner and to standards that fully honor the
capabilities and resources" and that "the functions of the [DND] are service and sacrifices of the deceased members of the armed forces
more closely related and relevant to the charter or significance of buried or inurned therein, and shall prescribe such regulations and
said national shrines." policies as may be necessary to administer the cemeteries.142 In
addition, the Secretary of the U.S. Army is empowered to appoint an
The foregoing interpretation is neither narrow and myopic nor advisory committee, which shall make periodic reports and
downright error. Instead, it is consistent with the letter and intent of recommendations as well as advise the Secretary with respect to the
P.D. No. 105. administration of the cemetery, the erection of memorials at the
cemetery, and master planning for the cemetery.143chanrobleslaw
Assuming that P.D. No. 105 is applicable, the descriptive words
"sacred and hallowed" refer to the LNMB as a place and not to each
Similar to the Philippines, the U.S. national cemeteries are past Presidents. The allotment of a cemetery plot at the LNMB for
established as national shrines in tribute to the gallant dead who Marcos as a former President and Commander-in-Chief,150 a
have served in the U.S. Armed Forces.144 The areas are protected, legislator,151 a Secretary of National Defense,152 a military
managed and administered as suitable and dignified burial grounds personnel,153 a veteran,154 and a Medal of Valor awardee,155
and as significant cultural resources.145 As such, the authorization of whether recognizing his contributions or simply his status as such,
activities that take place therein is limited to those that are consistent satisfies the public use requirement. The disbursement of public
with applicable legislation and that are compatible with maintaining funds to cover the expenses incidental to the burial is granted to
their solemn commemorative and historic compensate him for valuable public services rendered.156 Likewise,
character.146chanrobleslaw President Duterte's determination to have Marcos' remains interred
at the LNMB was inspired by his desire for national healing and
The LNMB is considered as a national shrine for military memorials. reconciliation. Presumption of regularity in the performance of
The PVAO, which is empowered to administer, develop, and maintain official duty prevails over petitioners' highly disputed factual
military shrines, is under the supervision and control of the DND. The allegation that, in the guise of exercising a presidential prerogative,
DND, in turn, is under the Office of the President. the Chief Executive is actually motivated by utang na loob (debt of
gratitude) and bayad utang (payback) to the Marcoses. As the
The presidential power of control over the Executive Branch of purpose is not self-evident, petitioners have the burden of proof to
Government is a self-executing provision of the Constitution and establish the factual basis of their claim. They failed. Even so, this
does not require statutory implementation, nor may its exercise be Court cannot take cognizance of factual issues since We are not a
limited, much less withdrawn, by the legislature.147 This is why trier of facts.
President Duterte is not bound by the alleged 1992 Agreement148
between former President Ramos and the Marcos family to have the C. AFP Regulations on the LNMB
remains of Marcos interred in Batac, Ilocos Norte. As the incumbent
President, he is free to amend, revoke or rescind political agreements A review of the regulations issued by the AFP Chief of Staff as to who
entered into by his predecessors, and to determine policies which he may and may not be interred at the LNMB underscores the nature
considers, based on informed judgment and presumed wisdom, will and purpose of the LNMB as an active military cemetery/grave site.
be most effective in carrying out his mandate.
On May 13, 1947, the Chief of Staff of the Philippine Army, by the
Moreover, under the Administrative Code, the President has the direction of the President and by order of the Secretary of National
power to reserve for public use and for specific public purposes any Defense, issued General Orders No. 111, which constituted and
of the lands of the public domain and that the reserved land shall activated, as of said date, the Graves Registration Platoon as a unit of
remain subject to the specific public purpose indicated until the Philippine Army.
otherwise provided by law or proclamation.149 At present, there is
no law or executive issuance specifically excluding the land in which On February 2, 1960, the AFP Chief of Staff, by order of the Secretary
the LNMB is located from the use it was originally intended by the of National Defense, issued AFP Regulations G 161-371
(Administrative and Special Staff Services, Grave Registration turpitude. The regulation also stated that the Quartermaster General
Service), which provided that the following may be interred in the shall be responsible for, among other matters, the efficient operation
LNMB: (a) World War II dead of the AFP and recognized guerillas; (b) of the AFP graves registration installations; the interment,
Current dead of the AFP; (c) Retired military personnel of the AFP; (d) disinterment and reinterment of deceased military personnel
Remains of former members of the AFP who died while in the active mentioned above; and the preservation of military cemeteries,
service and in the Retired List of the AFP now interred at different proper marking and official recording of graves therein.
cemeteries and other places throughout the Philippines or the
Secretary of National Defense; and (e) Others upon approval of the On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of
Congress of the Philippines, the President of the Philippines or the National Defense Minister, issued AFP Regulations G 161-373
Secretary of National Defense. The regulation also stated that the (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which
AFP Quartermaster General will be responsible for, among other superseded AFP Regulations G 161-372. It enumerated a list of
matters, the efficient operation of the Graves Registration Service; deceased person who may be interred at the LNMB, namely: (a)
the interment, disinterment and reinterment of the dead mentioned Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief,
above; and preservation of military cemeteries, national cemeteries, AFP; (c) Ministers of National Defense; (d) Chiefs of Staff, AFP; (e)
and memorials. General/Flag Officers of the AFP; (f) Active and retired military
personnel of the AFP; (g) Veterans of Philippine Revolution of 1896,
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of WWI, WWII and recognized guerillas; and (h) Government
National Defense, issued AFP Regulations G 161-372 (Administration Dignitaries, Statesmen, National Artist and other deceased persons
and Operation of AFP Graves Registration Installations), which whose interment or reinterment has been approved by the
superseded AFP Regulations G 161-371. It provided that the following Commander-in-Chief, Batasang Pambansa or the Minister of National
may be interred in the LNMB: (a) Deceased Veterans of the Philippine Defense. The regulation also stated that the Quartermaster General
Revolution of 1896/World War I; (b) Deceased World War II members shall be responsible for the allocation of specific section/areas for the
of the AFP and recognized guerillas; (c) Deceased military personnel said deceased persons, while the Commanding Officer of the
of the AFP who died while in the active duty; (d) Deceased retired Quartermaster Graves Registration Company shall be charged with
military personnel of the AFP; (e) Deceased military personnel of the the preparation of grave sites, supervision of burials at LNMB and the
AFP interred at different cemeteries and other places outside the registration of graves.
LNMB; and (f) Such remains of persons as the Commander-in-Chief
of the AFP may direct. The remains of the following were not allowed On March 27, 1998, the AFP Chief of Staff, by order of the Secretary
to be interred in the LNMB: (a) The spouse of an active, or retired, of National Defense, issued AFP Regulations G 161-374 (Allocation of
deceased military personnel, recognized guerillas who Cemetery Plots at the Libingan Ng Mga Bayani), which superseded
himself/herself is not a military personnel; and (b) AFP personnel AFP Regulations G 161-373. It provided that the following may be
who were retireable but separated/reverted/discharged for cause, or interred in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or
joined and aided the enemy of the Republic of the Philippines, or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d)
were convicted of capital or other criminal offenses, involving moral Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active
and retired military personnel of the AFP; (g) Veterans of Philippine section/area at the LNMB for interment of deceased, the preparation
Revolution of 1890, WWI, WWII and recognized guerillas; (h) of grave sites, and the supervision of burials.
Government Dignitaries, Statesmen, National Artists and other
deceased persons whose interment or reinterment has been Under AFP Regulations G 161-375, the following are eligible for
approved by the Commander-in-Chief, Congress or Secretary of interment at the LNMB: (a) Medal of Valor Awardees; (b) Presidents
National Defense; and (i) Former Presidents, Secretaries of Defense, or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d)
CSAFP, Generals/Flag Officers, Dignitaries, Statesmen, National Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active
Artists, widows of former Presidents, Secretaries of National Defense and retired military personnel of the AFP to include active draftees
and Chief of Staff. The remains of the following were not allowed to and trainees who died in line of duty, active reservists and CAFGU
be interred in the LNMB: (a) Personnel who were dishonorably Active Auxiliary (CAA) who died in combat operations or combat
separated/reverted/discharged from the service; and (b) Authorized related activities; (g) Former members of the AFP who laterally
personnel who were convicted by final judgment of an offense entered or joined the PCG and the PNP; (h) Veterans of Philippine
involving moral turpitude. Like AFP Regulations G 161-373, it stated Revolution of 1890, WWI, WWII and recognized guerillas; (i)
that the Quartermaster General shall be responsible for the Government Dignitaries, Statesmen, National Artists and other
allocation of specific section/areas for the deceased persons, deceased persons whose interment or reinterment has been
whereas the Commanding Officer of the Quartermaster Graves approved by the Commander-in-Chief, Congress or the Secretary of
Registration Unit shall be charged with the preparation of grave sites, National Defense; and G) Former Presidents, Secretaries of Defense,
supervision of burials, and the registration of graves. Dignitaries, Statesmen, National Artists, widows of Former
Presidents, Secretaries of National Defense and Chief of Staff. Similar
Finally, on September 11, 2000, the AFP Chief of Staff, by the order to AFP Regulations G 161-374, the following are not qualified to be
of the Secretary of National Defense, issued AFP Regulations G 161- interred in the LNMB: (a) Personnel who were dishonorably
375 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), separated/reverted/discharged from the service; and (b) Authorized
which superseded AFP Regulations G 161-374. The regulation stated personnel who were convicted by final judgment of an offense
that the Chief of Staff shall be responsible for the issuance of involving moral turpitude.
interment directive for all active military personnel for interment,
authorized personnel (such as those former members of the AFP who In the absence of any executive issuance or law to the contrary, the
laterally entered or joined the Philippine Coast Guard [PCG] and the AFP Regulations G 161-375 remains to be the sole authority in
Philippine National Police [PNP]), and retirees, veterans and determining who are entitled and disqualified to be interred at the
reservists enumerated therein. The Quartermaster General is tasked LNMB. Interestingly, even if they were empowered to do so, former
to exercise over-all supervision in the implementation of the Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who
regulation and the Commander ASCOM, PA through the were themselves aggrieved at the Martial Law, did not revise the
Commanding Officer of Grave Services Unit is charged with the rules by expressly prohibiting the burial of Marcos at the LNMB. The
registration of the deceased/graves, the allocation of specific validity of AFP Regulations G 161-375 must, therefor, be sustained
for having been issued by the AFP Chief of Staff acting under the
direction of the Secretary of National Defense, who is the alter ego To compare, We again refer to the U.S. Army regulations on
of the President. Arlington. In the U.S., the Secretary of the Army, with the approval of
x x x In Joson v. Torres, we explained the concept of the alter ego the Secretary of Defense, determines eligibility for interment or
principle or the doctrine of qualified political agency and its limit in inurnment in the Army national military cemeteries.159 Effective
this wise: October 26, 2016, the rule160 is as
follows:ChanRoblesVirtualawlibrary
chanRoblesvirtualLawlibraryUnder this doctrine, which recognizes Only those who qualify as a primarily eligible person or a derivatively
the establishment of a single executive, all executive and eligible person are eligible for interment in Arlington National
administrative organizations are adjuncts of the Executive Cemetery, unless otherwise prohibited as provided for in §§
Department, the heads of the various executive departments are 553.19161-553.20,162 provided that the last period of active duty of
assistants and agents of the Chief Executive, and, except in cases the service member or veteran ended with an honorable discharge.
where the Chief Executive is required by the Constitution or law to
act in person or the exigencies of the situation demand that he act (a) Primarily eligible persons. The following are primarily eligible
personally, the multifarious executive and administrative functions persons for purposes of interment:
of the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments, chanRoblesvirtualLawlibrary(1) Any service member who dies on
performed and promulgated in the regular course of business, are, active duty in the U.S. Armed Forces (except those service members
unless disapproved or reprobated by the Chief Executive serving on active duty for training only), if the General Courts Martial
presumptively the acts of the Chief Executive. (Emphasis ours, Convening Authority grants a certificate of honorable service.
citation omitted.)157chanroblesvirtuallawlibrary
It has been held that an administrative regulation adopted pursuant (2) Any veteran retired from a Reserve component who served a
to law has the force and effect of law and, until set aside, is binding period of active duty (other than for training), is carried on the official
upon executive and administrative agencies, including the President retired list, and is entitled to receive military retired pay.
as the chief executor of laws.158chanrobleslaw
(3) Any veteran retired from active military service and entitled to
1. Qualification under the AFP Regulations receive military retired pay.

AFP Regulations G 161-375 should not be stricken down in the (4) Any veteran who received an honorable discharge from the
absence of clear and unmistakable showing that it has been issued Armed Forces prior to October 1, 1949, who was discharged for a
with grave abuse of discretion amounting to lack or excess of permanent physical disability, who served on active duty (other than
jurisdiction. Neither could it be considered ultra vires for purportedly for training), and who would have been eligible for retirement under
providing incomplete, whimsical, and capricious standards for the provisions of 10 U.S.C. 1201 had the statute been in effect on the
qualification for burial at the LNMB. date of separation.
(5) Any veteran awarded one of the following decorations:
(b) Derivatively eligible persons. The following individuals are
chanRoblesvirtualLawlibrary(i) Medal of Honor;163chanrobleslaw derivatively eligible persons for purposes of interment who may be
interred if space is available in the gravesite of the primarily eligible
(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross; person:

(iii) Distinguished Service Medal; chanRoblesvirtualLawlibrary(1) The spouse of a primarily eligible


person who is or will be interred in Arlington National Cemetery. A
(iv) Silver Star; or former spouse of a primarily eligible person is not eligible for
interment in Arlington National Cemetery under this paragraph.
(v) Purple Heart.
(2) The spouse of an active duty service member or an eligible
(6) Any veteran who served on active duty (other than active duty for veteran, who was:
training) and who held any of the following positions:
chanRoblesvirtualLawlibrary(i) Lost or buried at sea, temporarily
chanRoblesvirtualLawlibrary(i) President or Vice President of the interred overseas due to action by the Government, or officially
United States; determined to be missing in action;

(ii) Elected member of the U.S. Congress; (ii) Buried in a U.S. military cemetery maintained by the American
Battle Monuments Commission; or
(iii) Chief Justice of the Supreme Court of the United States or
Associate Justice of the Supreme Court of the United States; (iii) Interred in Arlington National Cemetery as part of a group burial
(the derivatively eligible spouse may not be buried in the group burial
(iv) A position listed, at the time the person held the position, in 5 gravesite).
U.S.C. 5312164 or 5313165 (Levels I and II of the Executive Schedule);
or (3) The parents of a minor child or a permanently dependent adult
child, whose remains were interred in Arlington National Cemetery
(v) Chief of Mission of a Category 4, 5, or post if the Department of based on the eligibility of a parent at the time of the child's death,
State classified that post as a Category 4, 5, or 5+ post during the unless eligibility of the non-service connected parent is lost through
person's tenure as Chief of Mission. divorce from the primarily eligible parent.

(7) Any former prisoner of war who, while a prisoner of war, served (4) An honorably discharged veteran who does not qualify as a
honorably in the active military service, and who died on or after primarily eligible person, if the veteran will be buried in the same
November 30, 1993.
gravesite as an already interred primarily eligible person who is a general rule, recognize and reward the military services or military
close relative, where the interment meets the following conditions: related activities of the deceased. Compared with the latter,
however, the former is actually less generous in granting the privilege
chanRoblesvirtualLawlibrary(i) The veteran is without minor or of interment since only the spouse or parent, under certain
unmarried adult dependent children; conditions, may be allowed "if space is available in the gravesite of
the primarily eligible person."
(ii) The veteran will not occupy space reserved for the spouse, a
minor child, or a permanently dependent adult child; It is not contrary to the "well-established custom," as the dissent
described it, to argue that the word "bayani" in the LNMB has
(iii) All other close relatives of the primarily eligible person concur become a misnomer since while a symbolism of heroism may attach
with the interment of the veteran with the primarily eligible person to the LNMB as a national shrine for military memorial, the same
by signing a notarized statement; does not automatically attach to its feature as a military cemetery
and to those who were already laid or will be laid therein. As stated,
(iv) The veteran's spouse waives any entitlement to interment in the purpose of the LNMB, both from the legal and historical
Arlington National Cemetery, where such entitlement might be perspectives, has neither been to confer to the people buried there
based on the veteran's interment in Arlington National Cemetery. the title of "hero" nor to require that only those interred therein
The Executive Director may set aside the spouse's waiver, provided should be treated as a "hero." In fact, the privilege of internment at
space is available in the same gravesite, and all close relatives of the the LNMB has been loosen up through the years. Since 1986, the list
primarily eligible person concur; of eligible includes not only those who rendered active military
service or military-related activities but also non-military personnel
(v) Any cost of moving, recasketing, or revaulting the remains will be who were recognized for their significant contributions to the
paid from private funds. Philippine society (such as government dignitaries, statesmen,
There is a separate list of eligible with respect to the inurnment of national artists, and other deceased persons whose interment or
cremated remains in the Columbarium,166 interment of cremated reinterment has been approved by the Commander-in-Chief,
remains in the Unmarked Area,167 and group burial.168 As a Congress or Secretary of National Defense). In 1998, the widows of
national military cemetery, eligibility standards for interment, former Presidents, Secretaries of National Defense and Chief of Staff
inurnment, or memorialization in Arlington are based on honorable were added to the list. Whether or not the extension of burial
military service.169 Exceptions to the eligibility standards for new privilege to civilians is unwarranted and should be restricted in order
graves, which are rarely granted, are for those persons who have to be consistent with the original purpose of the LNMB is immaterial
made significant contributions that directly and substantially and irrelevant to the issue at bar since it is indubitable that Marcos
benefited the U.S. military.170chanrobleslaw had rendered significant active military service and military-related
activities.
Judging from the foregoing, it is glaring that the U.S. Army regulations
on Arlington and the AFP Regulations G 161-375 on the LNMB, as a
Petitioners did not dispute that Marcos was a former President and
Commander-in-Chief, a legislator, a Secretary of National Defense, a Privilege of obtaining loans in an aggregate amount not exceeding
military personnel, a veteran, and a Medal of Valor awardee. For his Five Hundred Thousand Pesos (P500,000.00) from
alleged human rights abuses and corrupt practices, we may disregard government-owned or controlled financial institutions without
Marcos as a President and Commander-in-Chief, but we cannot deny having to put up any collateral or constitute any pledge or mortgage
him the right to be acknowledged based on the other positions he to secure the payment of the loan;
held or the awards he received. In this sense, We agree with the
proposition that Marcos should be viewed and judged in his totality Twenty (20%) percent discount from all establishments relative to
as a person. While he was not all good, he was not pure evil either. utilization of transportation services, hotels and similar lodging
Certainly, just a human who erred like us. establishments, restaurants, recreation and sport centers and
purchase of medicine anywhere in the country;
Our laws give high regard to Marcos as a Medal of Valor awardee and
a veteran. R.A. No. 9049171 declares the policy of the State "to Twenty (20%) percent discount on admission fees charged by
consistently honor its military heroes in order to strengthen the theaters, cinema houses and concert halls, circuses, carnivals and
patriotic spirit and nationalist consciousness of the military."172 For other similar places of culture, leisure and amusement;
the "supreme self--sacrifice and distinctive acts of heroism and
gallantry,"173 a Medal of Valor awardee or his/her Free medical and dental services and consultation in hospital and
dependents/heirs/beneficiaries are entitled to the following social clinics anywhere in the country;
services and financial rewards:
Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos Exemption from the payment of tuition and matriculation fees in
(P20,000.00), which is separate and distinct from any salary or public or private schools, universities, colleges and other educational
pension that the awardee currently receives or will receive from the institutions in any pre-school, baccalaureate or post- graduate
government of the Philippines;174chanrobleslaw courses such as or including course leading to the degree of Doctor
of Medicine (MD), Bachelor of Laws (LLB), and Bachelor of Science in
Precedence in employment in government agencies or government- Nursing (BSN) or allied and similar courses; and cralawlawlibrary
owned or controlled corporation, if the job qualifications or
requirements are met; If interested and qualified, a quota is given to join the cadet corps of
the Philippine Military Academy or otherwise priority for direct
Priority in the approval of the awardee's housing application under commission, call to active duty (CAD) and/or enlistment in regular
existing housing programs of the government; force of the AFP.
On the other hand, in recognizing their patriotic services in times of
Priority in the acquisition of public lands under the Public Land Act war and peace for the cause of freedom and democracy; for the
and preferential right in the lease of pasture lands and exploitation attainment of national unity, independence, and socioeconomic
of natural resources; advancement; and for the maintenance of peace and order,175 R.A.
No. 6948, as amended,176 grants our veterans177 and their sovereign act, it necessarily includes the power to adjudge him as
dependents or survivors with pension (old age, disability, total dishonorably discharged from the AFP.
administrative disability, and death) and non-pension (burial,
education, hospitalization, and medical care and treatment) benefits Furthermore, according to petitioners, to limit the application of the
as well as provisions from the local governments. Under the law, the disqualifying provisions of AFP Regulations G 161-375 only to soldiers
benefits may be withheld if the Commission on Human Rights would be unfair (since, unlike Presidents, soldiers have an additional
certifies to the AFP General Headquarters that the veteran has been cause for disqualification) and lead to absurd results (because
found guilty by final judgment of a gross human rights violation while soldiers who were dishonorably discharged would be disqualified for
in the service, but this factor shall not be considered taken against his acts that are less atrocious than that committed by Marcos). Also, the
next of kin.178chanrobleslaw AFP regulations would place Marcos in the same class as the other
Philippine Presidents when in fact he is a class of his own, sui generis.
2. Disqualification under the AFP Regulations The other Presidents were never removed by People Power
Revolution and were never subject of laws declaring them to have
Aside from being eligible for burial at the LNMB, Marcos possessed committed human rights violations. Thus, the intended burial would
none of the disqualifications stated in AFP Regulations G 161-375. He be an act of similarly treating persons who are differently situated.
was neither convicted by final judgment of the offense involving
moral turpitude nor dishonorably separated/reverted/discharged Despite all these ostensibly persuasive arguments, the fact remains
from active military service. that Marcos was not convicted by final judgment of any offense
involving moral turpitude. No less than the 1987 Constitution
Petitioners, however, protest that a narrow interpretation of the AFP mandates that a person shall not be held to answer for a criminal
regulations disregards historical context and the rule on statutory offense without due process of law and that, "[i]n all criminal
construction. They urge the Court to construe statutes not literally prosecutions, the accused shall be presum innocent until the
but according to their spirit and reason. contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the
It is argued that Marcos committed offenses involving moral accusation against him, to have a speedy, impartial, and public trial,
turpitude for his gross human rights violations, massive graft and to meet the witnesses face to face, and to have compulsory process
corruption, and dubious military records, as found by foreign and to secure the attendance of witnesses and the production of
local courts as well as administrative agencies. By going into exile, he evidence in his behalf."179 Even the U.N. principles on reparation
deliberately evaded liability for his actions. And by allowing death to and to combat impunity cited by petitioners unequivocally guarantee
overtake him, he inevitably escaped the prospect of facing the rights of the accused, providing that:ChanRoblesVirtualawlibrary
accountability for his crimes. They also contend that his removal in XIII. Rights of others
the 1986 popular uprising is a clear sign of his discharge from the AFP.
The People Power Revolution was the direct exercise of the Filipinos' 27. Nothing in this document is to be construed as derogating from
power to overthrow an illegitimate and oppressive regime. As a internationally or nationally protected rights of others, in particular
the right of an accused person to benefit from applicable standards Also, the equal protection clause is not violated. Generally, there is
of due process. no property right to safeguard because even if one is eligible to be
buried at the LNMB, such fact would only give him or her the privilege
xxx to be interred therein. Unless there is a favorable recommendation
from the Commander--in-Chief, the Congress or the Secretary of
PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED National Defense, no right can be said to have ripen. Until then, such
inchoate right is not legally demandable and enforceable.
Before a commission identifies perpetrators in its report, the
individuals concerned shall be entitled to the following guarantees: Assuming that there is a property right to protect, the requisites of
equal protection clause are not met.181 In this case, there is a real
chanRoblesvirtualLawlibrary(a) The commission must try to and substantial distinction between a military personnel and a
corroborate information implicating individuals before they are former President. The conditions of dishonorable discharge under
named publicly; the Articles of War182 attach only to the members of the military.
There is also no substantial distinction between Marcos and the three
(b) The individuals implicated shall be afforded an opportunity to Philippine Presidents buried at the LNMB (Presidents Quirino, Garcia,
provide a statement setting forth their version of the facts either at and Macapagal). All of them were not convicted of a crime involving
a hearing convened by the commission while conducting its moral turpitude. In addition, the classification between a military
investigation or through submission of a document equivalent to a personnel and a former President is germane to the purposes of
right of reply for inclusion in the commission's file. Proclamation No. 208 and P.D. No. 1076. While the LNMB is a
To note, in the U.S., a person found to have committed a Federal or national shrine for military memorials, it is also an active military
State capital crime (i.e., a crime which a sentence of imprisonment cemetery that recognizes the status or position held by the persons
for life or death penalty may be imposed) but who has not been interred therein.
convicted by reason of not being available for trial due to death or
flight to avoid prosecution, may be ineligible for interment, Likewise, Marcos was honorably discharged from military service.
inurnment, or memorialization in an Army national military PVAO expressly recognized him as a retired veteran pursuant to R.A.
cemetery. Nevertheless, such ineligibility must still observe the No. 6948, as amended. Petitioners have not shown that he was
procedures specified in § 553.21.180chanrobleslaw dishonorably discharged from military service under AFP Circular 17,
Series of 1987 (Administrative Discharge Prior to Expiration of Term
The various cases cited by petitiOners, which were decided with of Enlistment) for violating Articles 94, 95 and 97 of the Articles of
finality by courts here and abroad, have no bearing in this case since War.183 The NHCP study184 is incomplete with respect to his entire
they are merely civil in nature; hence, cannot and do not establish military career as it failed to cite and include the official records of
moral turpitude. the AFP.
With respect to the phrase "[p]ersonnel who were dishonorably It is undeniable that former President Marcos was forced out of office
separated/reverted/discharged from the service," the same should by the people through the so-called EDSA Revolution. Said political
be viewed in light of the definition provided by AFP Regulations G act of the people should not be automatically given a particular legal
161-375 to the term "active service" which is "[s]ervice rendered by meaning other than its obvious consequence- that of ousting him as
a military person as a Commissioned Officer, enlisted man/woman, president. To do otherwise would lead the Court to the treacherous
probationary officer, trainee or draftee in the Armed Forces of the and perilous path of having to make choices from multifarious
Philippines and service rendered by him/her as a civilian official or inferences or theories arising from the various acts of the people. It
employee in the Philippine Government prior to the date of his/her is not the function of the Court, for instance, to divine the exact
separation or retirement from the Armed Forces of the Philippines, implications or significance of the number of votes obtained in
for which military and/or civilian service he/she shall have received elections, or the message from the number of participants in public
pay from the Philippine Government, and/or such others as may be assemblies. If the Court is not to fall into the pitfalls of getting
hereafter be prescribed by law as active service (PD 1638, as embroiled in political and oftentimes emotional, if not acrimonious,
amended)."185 To my mind, the word "service" should be construed debates, it must remain steadfast in abiding by its recognized guiding
as that rendered by a military person in the AFP, including civil stars - clear constitutional and legal rules - not by the uncertain,
service, from the time of his/her commission, enlistment, probation, ambiguous and confusing messages from the actions of the people.
training or drafting, up to the date of his/her separation or
retirement from the AFP. Civil service after honorable separation and Conclusion
retirement from the AFP is outside the context of "service" under AFP
Regulations G 161-375. In sum, there is no clear constitutional or legal basis to hold that there
was a grave abuse of discretion amounting to lack or excess of
Hence, it cannot be conveniently claimed that Marcos' ouster from jurisdiction which would justify the Court to interpose its authority to
the presidency during the EDSA Revolution is tantamount to his check and override an act entrusted to the judgment of another
dishonorable separation, reversion or discharge from the military branch. Truly, the President's discretion is not totally unfettered.
service. The fact that the President is the Commander-in-Chief of the "Discretion is not a free-spirited stallion that runs and roams
AFP under the 1987 Constitution only enshrines the principle of wherever it pleases but is reined in to keep it from straying. In its
supremacy of civilian authority over the military. Not being a military classic formulation, 'discretion is not unconfined and vagrant' but
person who may be prosecuted before the court martial, the 'canalized within banks that keep it from overflowing.'"186 At bar,
President can hardly be deemed "dishonorably President Duterte, through the public respondents, acted within the
separated/reverted/discharged from the service" as contemplated bounds of the law and jurisprudence. Notwithstanding the call of
by AFP Regulations G 161-375. Dishonorable discharge through a human rights advocates, the Court must uphold what is legal and just.
successful revolution is an extra-constitutional and direct sovereign And that is not to deny Marcos of his rightful place at the LNMB. For
act of the people which is beyond the ambit of judicial review, let even the Framers of our Constitution intend that full respect for
alone a mere administrative regulation. human rights is available at any stage of a person's development,
from the time he or she becomes a person to the time he or she Act of 2002. The cases were raffled to Branch 36, a designated special
leaves this earth.187chanrobleslaw court pursuant to R.A. 9165, presided by Judge Victor E. Gelvezon.
Soon after, however, Judge Gelvezon disclosed that Coreen
There are certain things that are better left for history - not this Court Gemarino, the Philippine Drug Enforcement Agency (PDEA) operative
- to adjudge. The Court could only do so much in accordance with the who conducted the entrapment operation against private
clearly established rules and principles. Beyond that, it is ultimately respondent, had close family ties with him. Thus, in order to preserve
for the people themselves, as the sovereign, to decide, a task that the integrity of the court, Judge Gelvezon issued an Order2 dated 17
may require the better perspective that the passage of time provides. February 2009 inhibiting himself from trying the case. The cases were
In the meantime, the country must mov'e on and let this issue rest. then reassigned to the other special court, Branch 25, presided by
Judge Evelyn E. Salao.
WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. On 24 February 2009, Judge Salao also issued an Order3 whereby she
Necessarily, the Status Quo Ante Order is hereby LIFTED. inhibited herself for the reason that Coreen Gemarino was a cousin;
thus, the cases were endorsed to the Office of the Executive Judge
for reassignment.
G.R. Nos. 187117 and 187127 October 12, 2011 Citing Chap. V, Sec. 9 of A.M. No. 03-8-02-SC, Executive Judge Antonio
PEOPLE OF THE PHILIPPINES, Petitioner, M. Natino ordered the Clerk of Court to forward the entire records of
vs. the cases to Branch 37 presided over by public respondent, the
HON. JOSE D. AZARRAGA and JOHN REY PREVENDIDO, pairing judge of Branch 36, which was the special court that originally
Respondents. handled the cases.4
DECISION On 16 March 2009, however, as soon as public respondent
SERENO, J.: proceeded with the cases, Prosecutor Kenneth John Amamanglon
In the present Petition for Prohibition with Prayer for Temporary filed a Motion to Transfer Case to a Branch of Competent
Restraining Order/Preliminary Mandatory Injunction under Rule 65 Jurisdiction.5 He questioned the jurisdiction of public respondent to
of the Rules of Court, petitioner questions the legality of Chapter V, hear the cases, citing Sec. 90 of R.A. 9165. Prosecutor Amamanglon
Section 9 of A.M. No. 03-8-02-SC or the "Guidelines on the Selection also claimed that, as the prosecutor assigned to Branch 37, he was
and Appointment of Executive Judges and Defining Their Powers, not among the prosecutors who had been designated to handle cases
Prerogatives and Duties" issued by this Court on 27 January 2004, in exclusively involving violations of R.A. 9165.
relation to Section 90 of the Comprehensive Dangerous Drugs Act of On the same day, respondent judge denied the motion on three
2002. grounds, to wit:
The antecedent facts are as follows: 1. This motion ought not to have been filed in this court for lack of
On 7 February 2009, petitioner filed two (2) Informations1 before the legal basis;
Regional Trial Court (RTC) of Iloilo City against private respondent 2. This court is not without jurisdiction to hear the instant case;
John Rey Prevendido for Violation of Article II, Sections 5 and 11 of
Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs
3. The matter about the appearance of Trial Prosecutor Kenneth John The present petition raises two (2) issues, to wit:
Amamanglon should have been addressed to the Department I. WHETHER OR NOT RESPONDENT JUDGE HAS JURISDICTION OVER
concerned.6 THE DRUG CASES IN CRIMINAL CASE NOS. 09-68815/16 DESPITE HIS
Respondent judge thus set the hearing on the Motion for Admission ASSIGNMENT TO A REGULAR COURT
to Bail7 filed on 10 February 2008. He directed the city prosecutor to II. WHETHER OR NOT A.M. NO. 03-8-02-SC IS IN CONFORMITY WITH
assign an assistant city prosecutor to handle the case effective 20 SECTION 90 OF REPUBLIC ACT NO. 9165, MANDATING THE
March 2009. DESIGNATION OF SPECIAL COURTS TO EXCLUSIVELY TRY AND HEAR
Prosecutor Amamanglon, however, moved for a reconsideration8 of DRUG CASES12
respondent judge’s Order, contending that the trial court needed a At the outset, it is an established policy that parties must observe the
special designation from this Court in order to have jurisdiction over hierarchy of courts before they can seek relief directly from this
the cases. Thus, Prosecutor Amamanglon concluded, absent the Court. The rationale for this rule is twofold: (a) it would be an
special designation, respondent court should remand the cases to the imposition upon the limited time of this Court; and (b) it would
Office of the Executive Judge for re-raffling to another court specially inevitably result in a delay, intended or otherwise, in the adjudication
designated pursuant to R.A. 9165. To support its contention, of cases, which in some instances, had to be remanded or referred to
petitioner further cited this Court’s 11 October 2005 Resolution in the lower court as the proper forum under the rules of procedure, or
A.M. No. 05-9-03-SC, which clarified whether drug courts should be as better equipped to resolve the issues because this Court is not a
included in the regular raffle. trier of facts.13 It is only for special and compelling reasons that this
Respondent judge denied the Motion for Reconsideration in its Order Court shall exercise its primary jurisdiction over the extraordinary
dated 20 March 2009.9 He held that A.M. No. 03-8-02-SC should be remedy of writ of prohibition. However, in the case at bar, since it is
deemed to have modified the designation of special courts for drug only the Supreme Court itself that can clarify the assailed guidelines,
cases. He declared that, under the circumstances enumerated in petitioner is exempted from this rule.
A.M. No. 03-8-02-SC, Branch 37 itself became a special court. He The petition, however, must fail.
further ruled that A.M. No. 05-9-03-SC was inapplicable. The crux of the matter in the present case is whether or not this Court
On 23 March 2009, the city prosecutor endorsed the assailed Orders violated Sec. 90 of R.A. 9165 when it issued A.M. 03-8-02-SC,
of respondent judge to the Office of the Solicitor General for the particularly Chap. V, Sec. 9, which prescribes the manner in which the
appropriate review and filing of the necessary action.10 Thus, on 24 executive judge reassigns cases in instances of inhibition or
March 2009, petitioner filed the present petition before this Court. disqualification of judges sitting in special courts. Petitioner insists
On 27 March 2009, while the Petition for Prohibition was pending, that should respondent judge (now Judge Fe Gallon-Gayanilo of
respondent judge issued an Order11 inhibiting himself from hearing Branch 35) continue hearing and trying the case, it "would result in
the case after private respondent alleged that the former was biased the circumvention of the legislative conferment of jurisdiction to a
for the prosecution. The cases were thereafter transferred to Branch court to exclusively try and hear drug offenses only."14
35, also a regular court, presided by Judge Fe Gallon-Gayanilo. Contrary to the assertion of petitioner, this Court did not commit any
Absent a temporary restraining order from this Court, the trial court violation of R.A. 9165 when it issued the assailed guidelines. Rather,
proceeded to hear the cases. it merely obeyed Article VIII, Sec. 5(5) of the 1987 Constitution, which
mandates that the rules promulgated by this Court should provide a (ii) Where there are more than two special courts of the same nature
simplified and inexpensive procedure for the speedy disposition of in the station, the Executive Judge shall immediately assign the case
cases, in conformity with the right of all persons to a speedy by raffle to the other or another special court of the same nature. In
disposition of their cases before all judicial, quasi-judicial, or case the Presiding Judge of the other special court is also disqualified
administrative bodies.15 As this Court stated in San Ildefonso Lines v. or inhibits himself/herself, the case shall be forwarded to the pairing
Court of Appeals,16 there must be a renewed adherence to the time- judge of the special court which originally handled the said case. If
honored dictum that procedural rules are designed not to defeat, but the pairing judge is also disqualified or inhibits himself/herself, the
to safeguard, the ends of substantial justice. case shall be raffled to the other regular courts. At the next raffle, an
Petitioner grounds its assertion on Sec. 90 of R.A. 9165, which states: additional case shall be assigned to the disqualified or inhibiting
Jurisdiction. — The Supreme Court shall designate special courts judge/s to replace the case so removed from his/her/their court...
from among the existing Regional Trial Courts in each judicial region (Emphasis supplied.)
to exclusively try and hear cases involving violations of this Act. The Under R.A. 9165, Congress empowered this Court with the full
number of courts designated in each judicial region shall be based on discretion to designate special courts to hear, try and decide drug
the population and the number of cases pending in their respective cases. It was precisely in the exercise of this discretionary power that
jurisdiction. the powers of the executive judge were included in Chap. V, Sec. 9 of
xxx xxx xxx A.M. No. 03-8-02-SC vis-à-vis Sec. 5(5) of Article VIII of the 1987
Trial of the case under this Section shall be finished by the court not Constitution. Thus, in cases of inhibition or disqualification, the
later than sixty (60) days from the date of the filing of the executive judge is mandated to assign the drug case to a regular court
information. Decision on said cases shall be rendered within a period in the following order: first, to the pairing judge of the special court
of fifteen (15) days from the date of submission of the case for where the case was originally assigned; and, second, if the pairing
resolution. judge is likewise disqualified or has inhibited himself, then to another
Petitioner interprets the above provision to mean that a court must regular court through a raffle. Under these exceptional
be specifically designated by the Supreme Court as a special court. circumstances, this Court designated the regular court, ipso facto, as
But what is Chap. V, Sec. 9 of A.M. No. 03-8-02-SC if not an express a special court – but only for that case. Being a "designated special
designation of a special court? court," it is likewise bound to follow the relevant rules in trying and
Chap. V, Sec. 9 of A.M. No. 03-8-02-SC provides: deciding the drug case pursuant to R.A. 9165.
Raffle and re-assignment of cases in special courts where judge is Petitioner also contends that the legislative intent of R.A. 9165 is "to
disqualified or voluntarily inhibits himself/herself from hearing case. make use of the expertise of trial judges in complicated and technical
— (a) Where a judge in a court designated to try and decide rules of the special drug law." Thus, petitioner suggests that in
xxx xxx xxx instances in which all the judges of special courts have inhibited
(3) cases involving violations of the Dangerous Drugs Act, or ... themselves or are otherwise disqualified, the venue for the affected
is disqualified or voluntarily inhibits himself/herself from hearing a drug cases should be transferred to the nearest station that has
case, the following guidelines shall be observed: designated special courts.
xxx xxx xxx
Petitioner’s suggestion is ill-advised. To subscribe to this suggestion As a matter of fact, this Court also issued similar guidelines with
is to defeat the purpose of the law. Undoubtedly, petitioner’s regard to environmental cases,17 election cases involving elective
unwarranted suggestion would entail the use of precious resources, municipal officials,18 and cases that involve killings of political
time and effort to transfer the cases to another station. On the other activists and members of media.19 Foremost in its mind is the speedy
hand, the assailed guidelines provide for a much more practical and and efficient administration of justice.
expedient manner of hearing and deciding the cases. To reiterate, Petitioner further points out that this Court issued A.M. No. 05-9-03-
over and above utilizing the expertise of trial judges, the rationale SC to define the phrase "to exclusively try and hear cases involving
behind Sec. 90 of R.A. 9165 and Chap. V, Sec. 9 of A.M. No. 03-8-02- violations of this Act" to mean "...[c]ourts designated as special
SC is to effect an efficient administration of justice and speedy courts for drug cases shall try and hear drug-related cases only, i.e.,
disposition of cases, as well as to breathe life into the policy cases involving violations of RA 9165, to the exclusion of other
enunciated in Sec. 2 of R.A. 9165, to wit: courts." Hence, petitioner submits, drug cases should not be assigned
Declaration of policy. – It is the policy of the State to safeguard the to regular courts according to the procedure provided in A.M. No. 03-
integrity of its territory and the well-being of its citizenry particularly 8-02-SC; in other words, the two issuances contradict each other.
the youth, from the harmful effects of dangerous drugs on their Again, this Court disagrees.
physical and mental well-being, and to defend the same against acts Petitioner underestimates the rule-making power of this Court.
or omissions detrimental to their development and preservation. In Nothing in A.M. No. 05-9-03-SC or in A.M. No. 03-8-03-SC suggests
view of the foregoing, the State needs to enhance further the efficacy that they contradict each other. In fact, both were issued with a
of the law against dangerous drugs, it being one of today's more common rationale, that is, to "expeditiously resolve criminal cases
serious social ills. involving violations of R.A. 9165," especially in the light of the strict
Toward this end, the government shall pursue an intensive and time frame provided in Sec. 90 of R.A. 9165. Both provide for the
unrelenting campaign against the trafficking and use of dangerous guidelines regarding the assignment of drug cases to special courts.
drugs and other similar substances through an integrated system of Thus, A.M. No. 05-9-03-SC provides for the exemption of special
planning, implementation and enforcement of anti-drug abuse courts from the regular raffle under normal circumstances, while
policies, programs, and projects. The government shall however aim A.M. No. 03-8-02-SC provide for the assignment of drug cases to
to achieve a balance in the national drug control program so that special courts except under special circumstances that would warrant
people with legitimate medical needs are not prevented from being reassignment to a regular court.
treated with adequate amounts of appropriate medications, which Moreover, the exemption of special courts from the regular raffle
include the use of dangerous drugs. was not established as an ironclad rule.1avvphi1 A.M. No. 05-9-03-SC
It is further declared the policy of the State to provide effective does in fact allow special courts to acquire jurisdiction over cases that
mechanisms or measures to re-integrate into society individuals who are not drug cases. In the interest of justice, executive judges may
have fallen victims to drug abuse or dangerous drug dependence recommend to the Supreme Court the inclusion of drug courts in the
through sustainable programs of treatment and rehabilitation. regular raffle, and this Court has the discretion to approve the
(Emphasis supplied.) recommendation, as the Resolution states:
WHEREFORE, Executive Judges and presiding judges of special courts The Facts
for drug cases shall hereby observe the following guidelines: Sometime in August 1990, Spouses Pedro and Rosita de Guzman
xxx xxx xxx (Spouses de Guzman) engaged the legal services of Atty. Francisco L.
4. If, in the opinion of Executive Judges, the caseload of certain drug Rosario, Jr. (petitioner) as defense counsel in the complaint filed
courts allows their inclusion in the regular raffle without adversely against them by one Loreta A. Chong (Chong) for annulment of
affecting their ability to expeditiously resolve the drug cases assigned contract and recovery of possession with damages involving a parcel
to them and their inclusion in the regular raffle becomes necessary of land in Parañaque City, covered by Transfer Certificate of Title
to decongest the caseload of other branches, the concerned (TCT) No. 1292, with an area of 266 square meters, more or less.
Executive Judges shall recommend to this Court the inclusion of drug Petitioner’s legal services commenced from the RTC and ended up in
courts in their jurisdiction in the regular raffle. The concerned drug this Court.3 Spouses de Guzman, represented by petitioner, won
courts shall remain exempt from the regular raffle until the their case at all levels. While the case was pending before this Court,
recommendation is approved. (Emphasis supplied.) Spouses de Guzman died in a vehicular accident. Thereafter, they
In conclusion, the two sets of guidelines are examples of this Court’s were substituted by their children, namely: Rosella de Guzman-
foresight and prudence in the exercise of its rule-making power. Bautista, Lellani de Guzman, Arleen de Guzman, and Philip Ryan de
These guidelines were issued to prevent or address possible Guzman (respondents).4
scenarios that might hinder the proper administration of justice. On September 8, 2009, petitioner filed the Motion to Determine
WHEREFORE, in view of the foregoing, the Petition for Prohibition is Attorney’s Fees5 before the RTC. He alleged, among others, that he
DISMISSED for lack of merit. had a verbal agreement with the deceased Spouses de Guzman that
SO ORDERED. he would get 25% of the market value of the subject land if the
complaint filed against them by Chong would be dismissed. Despite
the fact that he had successfully represented them, respondents
G.R. No. 191247 July 10, 2013 refused his written demand for payment of the contracted attorney’s
FRANCISCO L. ROSARIO, JR., Petitioner, fees. Petitioner insisted that he was entitled to an amount equivalent
vs. to 25% percent of the value of the subject land on the basis of
LELLANI DE GUZMAN, ARLEEN DE GUZMAN, PHILIP RYAN DE quantum meruit.
GUZMAN, and ROSELLA DE GUZMANBAUTISTA, Respondents. On November 23, 2009, the RTC rendered the assailed order denying
DECISION petitioner’s motion on the ground that it was filed out of time. The
MENDOZA, J.: RTC stated that the said motion was filed after the judgment
This petition for review on certiorari under Rule 45 of the Rules of rendered in the subject case, as affirmed by this Court, had long
Court seeks to set aside the November 23, 20091 and the February become final and executory on October 31, 2007. The RTC wrote that
11, 20102 Orders of the Regional Trial Court, Branch 7, Manila (RTC), considering that the motion was filed too late, it had already lost
in Civil Case No. 89-50138, entitled "Loreta A. Chong v. Sps. Pedro jurisdiction over the case because a final decision could not be
and Rosita de Guzman," denying the Motion to Determine Attorney's amended or corrected except for clerical errors or mistakes. There
Fees filed by the petitioner.
would be a variance of the judgment rendered if his claim for law, specifically Article 2208 of the Civil Code, allows the recovery of
attorney’s fees would still be included. attorney’s fees under a written agreement. The alleged
Petitioner filed a motion for reconsideration, but it was denied by the understanding between their deceased parents and petitioner,
RTC for lack of merit. Hence, this petition. however, was never put in writing. They also aver that they did not
The Issues have any knowledge or information about the existence of an oral
This petition is anchored on the following grounds: contract, contrary to petitioner’s claims. At any rate, the respondents
I believe that the amount of 25% of the market value of the lot is
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN DENYING excessive and unconscionable.8
THE MOTION TO DETERMINE ATTORNEY’S FEES ON THE GROUND The Court’s Ruling
THAT IT LOST JURISDICTION OVER THE CASE SINCE THE JUDGMENT Preliminarily, the Court notes that the petitioner filed this petition for
IN THE CASE HAS BECOME FINAL AND EXECUTORY; review on certiorari under Rule 45 of the Rules of Court because of
II the denial of his motion to determine attorney’s fees by the RTC.
THE TRIAL COURT SERIOUSLY ERRED IN DECLARING THAT Apparently, the petitioner pursued the wrong remedy. Instead of a
PETITIONER’S CLAIM FOR ATTORNEY’S FEES WOULD RESULT IN A petition for review under Rule 45, he should have filed a petition for
VARIANCE OF THE JUDGMENT THAT HAS LONG BECOME FINAL AND certiorari under Rule 65 because this case involves an error of
EXECUTORY; jurisdiction or grave abuse of discretion on the part of the trial court.
III Moreover, petitioner violated the doctrine of hierarchy of courts
THE TRIAL COURT ERRED IN NOT DECLARING THAT THE FINALITY OF which prohibits direct resort to this Court unless the appropriate
THE DECISION DID NOT BAR PETITIONER FROM FILING THE MOTION remedy cannot be obtained in the lower tribunals.9 In this case,
TO RECOVER HIS ATTORNEY’S FEES.6 petitioner should have first elevated the case to the Court of Appeals
Petitioner claims that Spouses de Guzman engaged his legal services (CA) which has concurrent jurisdiction, together with this Court, over
and orally agreed to pay him 25% of the market value of the subject special civil actions for certiorari.10 Even so, this principle is not
land. He argues that a motion to recover attorney’s fees can be filed absolute and admits of certain exceptions, such as in this case, when
and entertained by the court before and after the judgment becomes it is demanded by the broader interest of justice.11
final. Indeed, on several occasions, this Court has allowed a petition to
Moreover, his oral contract with the deceased spouses can be prosper despite the utilization of an improper remedy with the
considered a quasi-contract upon which an action can be reasoning that the inflexibility or rigidity of the application of the
commenced within six (6) years, pursuant to Article 1145 of the Civil rules of procedure must give way to serve the higher ends of justice.
Code. Because his motion was filed on September 8, 2009, he insists The strict application of procedural technicalities should not hinder
that it was not yet barred by prescription.7 the speedy disposition of the case on the merits.12 Thus, this Court
For their part, respondents counter that the motion was belatedly deems it expedient to consider this petition as having been filed
filed and, as such, it could no longer be granted. In addition, the RTC under Rule 65.
had already resolved the issue when it awarded the amount of With respect to the merits of the case, the Court finds in favor of
₱10,000.00 as attorney’s fees. Respondents further assert that the petitioner.
In order to resolve the issues in this case, it is necessary to discuss the The two concepts of attorney’s fees are similar in other respects.
two concepts of attorney’s fees – ordinary and extraordinary. In its They both require, as a prerequisite to their grant, the intervention
ordinary sense, it is the reasonable compensation paid to a lawyer by of or the rendition of professional services by a lawyer. As a client
his client for legal services rendered. In its extraordinary concept, it may not be held liable for counsel fees in favor of his lawyer who
is awarded by the court to the successful litigant to be paid by the never rendered services, so too may a party be not held liable for
losing party as indemnity for damages.13 Although both concepts are attorney’s fees as damages in favor of the winning party who
similar in some respects, they differ from each other, as further enforced his rights without the assistance of counsel. Moreover, both
explained below: fees are subject to judicial control and modification. And the rules
The attorney’s fee which a court may, in proper cases, award to a governing the determination of their reasonable amount are
winning litigant is, strictly speaking, an item of damages. It differs applicable in one as in the other.14 [Emphasis and underscoring
from that which a client pays his counsel for the latter’s professional supplied]
services. However, the two concepts have many things in common In the case at bench, the attorney’s fees being claimed by the
that a treatment of the subject is necessary. The award that the court petitioner refers to the compensation for professional services
may grant to a successful party by way of attorney’s fee is an rendered, and not as indemnity for damages. He is demanding
indemnity for damages sustained by him in prosecuting or defending, payment from respondents for having successfully handled the civil
through counsel, his cause in court. It may be decreed in favor of the case filed by Chong against Spouses de Guzman. The award of
party, not his lawyer, in any of the instances authorized by law. On attorney’s fees by the RTC in the amount of ₱10,000.00 in favor of
the other hand, the attorney’s fee which a client pays his counsel Spouses de Guzman, which was subsequently affirmed by the CA and
refers to the compensation for the latter’s services. The losing party this Court, is of no moment. The said award, made in its extraordinary
against whom damages by way of attorney’s fees may be assessed is concept as indemnity for damages, forms part of the judgment
not bound by, nor is his liability dependent upon, the fee recoverable against the losing party and is to be paid directly to
arrangement of the prevailing party with his lawyer. The amount Spouses de Guzman (substituted by respondents) and not to
stipulated in such fee arrangement may, however, be taken into petitioner. Thus, to grant petitioner’s motion to determine attorney’s
account by the court in fixing the amount of counsel fees as an fees would not result in a double award of attorney’s fees. And,
element of damages. contrary to the RTC ruling, there would be no amendment of a final
The fee as an item of damages belongs to the party litigant and not and executory decision or variance in judgment.
to his lawyer. It forms part of his judgment recoveries against the The Court now addresses two (2) important questions: (1) How can
losing party. The client and his lawyer may, however, agree that attorney’s fees for professional services be recovered? (2) When can
whatever attorney’s fee as an element of damages the court may an action for attorney’s fees for professional services be filed? The
award shall pertain to the lawyer as his compensation or as part case of Traders Royal Bank Employees Union-Independent v. NLRC15
thereof. In such a case, the court upon proper motion may require is instructive:
the losing party to pay such fee directly to the lawyer of the prevailing As an adjunctive episode of the action for the recovery of bonus
party. differentials in NLRC-NCR Certified Case No. 0466, private
respondent’s present claim for attorney’s fees may be filed before
the NLRC even though or, better stated, especially after its earlier The records show that the August 8, 1994 RTC decision became final
decision had been reviewed and partially affirmed. It is well settled and executory on October 31, 2007.1âwphi1 There is no dispute that
that a claim for attorney’s fees may be asserted either in the very petitioner filed his Motion to Determine Attorney’s Fees on
action in which the services of a lawyer had been rendered or in a September 8, 2009, which was only about one (1) year and eleven
separate action. (11) months from the finality of the RTC decision. Because petitioner
With respect to the first situation, the remedy for recovering claims to have had an oral contract of attorney’s fees with the
attorney’s fees as an incident of the main action may be availed of deceased spouses, Article 1145 of the Civil Code16 allows him a
only when something is due to the client. Attorney’s fees cannot be period of six (6) years within which to file an action to recover
determined until after the main litigation has been decided and the professional fees for services rendered. Respondents never asserted
subject of the recovery is at the disposition of the court. The issue or provided any evidence that Spouses de Guzman refused
over attorney’s fees only arises when something has been recovered petitioner’s legal representation. For this reason, petitioner’s cause
from which the fee is to be paid. of action began to run only from the time the respondents refused to
While a claim for attorney’s fees may be filed before the judgment is pay him his attorney’s fees, as similarly held in the case of Anido v.
rendered, the determination as to the propriety of the fees or as to Negado:17
the amount thereof will have to be held in abeyance until the main In the case at bar, private respondent’s allegation in the complaint
case from which the lawyer’s claim for attorney’s fees may arise has that petitioners refused to sign the contract for legal services in
become final. Otherwise, the determination to be made by the courts October 1978, and his filing of the complaint only on November 23,
will be premature. Of course, a petition for attorney’s fees may be 1987 or more than nine years after his cause of action arising from
filed before the judgment in favor of the client is satisfied or the the breach of the oral contract between him and petitioners point to
proceeds thereof delivered to the client. the conclusion that the six-year prescriptive period within which to
It is apparent from the foregoing discussion that a lawyer has two file an action based on such oral contract under Article 1145 of the
options as to when to file his claim for professional fees. Hence, Civil Code had already lapsed.
private respondent was well within his rights when he made his claim As a lawyer, private respondent should have known that he only had
and waited for the finality of the judgment for holiday pay six years from the time petitioners refused to sign the contract for
differential, instead of filing it ahead of the award’s complete legal services and to acknowledge that they had engaged his services
resolution. To declare that a lawyer may file a claim for fees in the for the settlement of their parents’ estate within which to file his
same action only before the judgment is reviewed by a higher complaint for collection of legal fees for the services which he
tribunal would deprive him of his aforestated options and render rendered in their favor. [Emphases supplied]
ineffective the foregoing pronouncements of this Court. [Emphases At this juncture, having established that petitioner is entitled to
and underscoring supplied] attorney’s fees and that he filed his claim well within the prescribed
In this case, petitioner opted to file his claim as an incident in the period, the proper remedy is to remand the case to the RTC for the
main action, which is permitted by the rules. As to the timeliness of determination of the correct amount of attorney’s fees. Such a
the filing, this Court holds that the questioned motion to determine procedural route, however, would only contribute to the delay of the
attorney’s fees was seasonably filed. final disposition of the controversy as any ruling by the trial court on
the matter would still be open for questioning before the CA and this Rule 20.01 of the Code of Professional Responsibility lists the
Court. In the interest of justice, this Court deems it prudent to guidelines for determining the proper amount of attorney fees, to
suspend the rules and simply resolve the matter at this level. The wit:
Court has previously exercised its discretion in the same way in Rule 20.1 – A lawyer shall be guided by the following factors in
National Power Corporation v. Heirs of Macabangkit Sangkay:18 determining his fees:
In the event of a dispute as to the amount of fees between the a) The time spent and the extent of the services rendered or required;
attorney and his client, and the intervention of the courts is sought, b) The novelty and difficulty of the questions involved;
the determination requires that there be evidence to prove the c) The importance of the subject matter;
amount of fees and the extent and value of the services rendered, d) The skill demanded;
taking into account the facts determinative thereof. Ordinarily, e) The probability of losing other employment as a result of
therefore, the determination of the attorney’s fees on quantum acceptance of the proffered case;
meruit is remanded to the lower court for the purpose. However, it f) The customary charges for similar services and the schedule of fees
will be just and equitable to now assess and fix the attorney’s fees of of the IBP chapter to which he belongs;
both attorneys in order that the resolution of "a comparatively g) The amount involved in the controversy and the benefits resulting
simple controversy," as Justice Regalado put it in Traders Royal Bank to the client from the service;
Employees Union-Independent v. NLRC, would not be needlessly h) The contingency or certainty of compensation;
prolonged, by taking into due consideration the accepted guidelines i) The character of the employment, whether occasional or
and so much of the pertinent data as are extant in the records.19 established; and
[Emphasis supplied] j) The professional standing of the lawyer.
With respect to petitioner’s entitlement to the claimed attorney’s Petitioner unquestionably rendered legal services for respondents’
fees, it is the Court’s considered view that he is deserving of it and deceased parents in the civil case for annulment of contract and
that the amount should be based on quantum meruit. recovery of possession with damages. He successfully represented
Quantum meruit – literally meaning as much as he deserves – is used Spouses de Guzman from the trial court level in 1990 up to this Court
as basis for determining an attorney’s professional fees in the in 2007, for a lengthy period of 17 years. After their tragic death in
absence of an express agreement. The recovery of attorney’s fees on 2003, petitioner filed a notice of death and a motion for substitution
the basis of quantum meruit is a device that prevents an of parties with entry of appearance and motion to resolve the case
unscrupulous client from running away with the fruits of the legal before this Court.21 As a consequence of his efforts, the respondents
services of counsel without paying for it and also avoids unjust were substituted in the place of their parents and were benefited by
enrichment on the part of the attorney himself. An attorney must the favorable outcome of the case.
show that he is entitled to reasonable compensation for the effort in As earlier mentioned, petitioner served as defense counsel for
pursuing the client’s cause, taking into account certain factors in deceased Spouses de Guzman and respondents for almost seventeen
fixing the amount of legal fees.20 (17) years. The Court is certain that it was not an easy task for
petitioner to defend his clients’ cause for such a long period of time,
considering the heavy and demanding legal workload of petitioner
which included the research and preparation of pleadings, the eruit, the amount of attorney's fees is at the rate of 15% of the
gathering of documentary proof, the court appearances, and the market value of the parcel of land, covered by Transfer Certificate of
various legal work necessary to the defense of Spouses de Guzman. Title No. 1292, at the time of payment.
It cannot be denied that petitioner devoted much time and energy in SO ORDERED.
handling the case for respondents. Given the considerable amount of
time spent, the diligent effort exerted by petitioner, and the quality
of work shown by him in ensuring the successful defense of his G.R. No. 159208 August 18, 2006
clients, petitioner clearly deserves to be awarded reasonable RENNIE DECLARADOR, Petitioner,
attorney’s fees for services rendered. Justice and equity dictate that vs.
petitioner be paid his professional fee based on quantum meruit. HON. SALVADOR S. GUBATON, Presiding Judge, Branch 14, Roxas
The fact that the practice of law is not a business and the attorney City, and FRANK BANSALES, Respondents.
plays a vital role in the administration of justice underscores the need DECISION
to secure him his honorarium lawfully earned as a means to preserve CALLEJO, SR., J.:
the decorum and respectability of the legal profession. A lawyer is as This is a Petition for Certiorari seeking to nullify the portion of the
much entitled to judicial protection against injustice, imposition or Decision 1 of the Regional Trial Court (RTC), Roxas City, Branch 14, in
fraud on the part of his client as the client against abuse on the part Criminal Case No. C-1419-10-2002, suspending the sentence of
of his counsel. The duty of the court is not alone to see that a lawyer respondent Frank Bansales and ordering his commitment to the
acts in a proper and lawful manner; it is also its duty to see that a Regional Rehabilitation Center for Youth at Concordia, Nueva
lawyer is paid his just fees. With his capital consisting of his brains Valencia, Guimaras.
and with his skill acquired at tremendous cost not only in money but Frank Bansales was born on June 3, 1985. He was a student at the
in expenditure of time and energy, he is entitled to the protection of Cabug-Cabug National High School in President Roxas, Capiz. At
any judicial tribunal against any attempt on the part of his client to around 9:45 a.m. on July 25, 2002, Yvonne Declarador was stabbed
escape payment of his just compensation. It would be ironic if after to death. After conducting the autopsy on the cadaver, Rural Health
putting forth the best in him to secure justice for his client he himself Physician Pilar Posadas prepared a Post-Mortem Certificate
would not get his due.22 indicating that the victim sustained 15 stab wounds on different parts
The Court, however, is resistant in granting petitioner's prayer for an of the body. 2
award of 25% attorney's fees based on the value of the property On October 10, 2002, an Information charging Frank Bansales with
subject of litigation because petitioner failed to clearly substantiate murder was filed by the Assistant Provincial Prosecutor with the
the details of his oral agreement with Spouses de Guzman. A fair and Family Court. The accusatory portion reads:
reasonable amount of attorney's fees should be 15% of the market That on or about 9:45 o’clock in the morning of July 25, 2002, inside
value of the property. a classroom in Cabug-Cabug National High School in President Roxas,
WHEREFORE, the petition is GRANTED. Accordingly, the Court grants Capiz, Philippines, and within the jurisdiction of this Honorable Court,
the Motion to Determine Attorney's Fees filed by petitioner Atty. the accused armed with a knife and with intent to kill, did then and
Francisco L. Rosario, Jr. Based on quantum m there, willfully, unlawfully and feloniously attack, assault and stab
with the said knife [his] teacher, one YVONNE DECLARADOR, thereby President Roxas, Capiz, are jointly subsidiarily liable in case of
hitting and inflicting upon the latter multiple fatal stab wounds in the insolvency, as the crime was established to have been committed
different parts of the body which caused the immediate death of the inside the classroom of Cabug-Cabug National High School and during
said Yvonne Declarador. school hours.
The crime was committed with the attendance of the qualifying Pursuant to the provision of P.D. 603, as amended, the sentence is
aggravating circumstances of evident premeditation and abuse of suspended and the Child in conflict with the law (CICL), Frank
superior strength considering that the attack was made by the Bansales is ordered committed to the Regional Rehabilitation Center
accused using a long knife which the latter carried along with him for Youth at Concordia, Nueva Valencia, Guimaras.
from his house to the school against his lady teacher who was Furnish copies of this decision the Office of the Provincial Prosecutor,
unarmed and defenseless at that time and by inflicting upon the the Private Prosecutors, the DSWD Capiz Provincial Office, Roxas City,
latter about fifteen (15) fatal knife wounds resulting to her death. 3 the Regional Rehabilitation for Youth, Concordia, Guimaras, the
In view of the plea of the accused and the evidence presented, the accused and his counsel, Atty. Ramcez John Honrado.
RTC rendered judgment on May 20, 2003 finding Bansales guilty of SO ORDERED. 4
murder. However, the court suspended the sentence of the accused On June 2, 2003, the RTC set a preliminary conference for 10:00 a.m.
and ordered his commitment to the Regional Rehabilitation for Youth of June 10, 2003 with the Public Prosecutor, the Social Welfare
at Concordia, Nueva Valencia, Guimaras. The dispositive portion of Officer of the court, and the Officer-in-Charge of the Regional
the decision reads: Rehabilitation Center for Youth, considering that the accused would
In view of the Plea of Guilty by the accused and the evidence turn 18 on June 3, 2003. 5
presented by the prosecution, the court finds CICL Frank Bansales Rennie Declarador, the surviving spouse of the deceased, filed a
GUILTY beyond reasonable doubt of the crime of Murder being petition for certiorari under Rule 65 of the Rules of Court assailing
charged. Being a minor, 17 years of age at the time of the commission that portion of the decision of the trial court’s decision suspending
of the offense charged, he is entitled to a special mitigating the sentence of the accused and committing him to the rehabilitation
circumstance of minority, and is sentenced to suffer an center.
indeterminate imprisonment of twelve (12) years and one (1) day to Petitioner claimed that under Article 192 of Presidential Decree (P.D.)
seventeen (17) years and four (4) month of reclusion temporal and No. 603, as well as A.M. No. 02-1-18-SC (otherwise known as the Rule
to pay the heirs of Yvonne Declarador, a civil indemnity of Seventy- on Juveniles in Conflict with the Law), the benefit of a suspended
Five Thousand Pesos (P75,000.00), Fifty Thousand Pesos sentence does not apply to a juvenile who is convicted of an offense
(P50,000.00) for moral damages, Forty-Three Thousand Pesos punishable by death, 6 reclusion perpetua or life imprisonment.
(P43,000.00) for funeral expenses, attorney’s fee of One Hundred Citing the ruling of this Court in People v. Ondo, 7 petitioner avers
Thousand Pesos (P100,000.00) and unearned income of One Million that since Bansales was charged with murder punishable by reclusion
Three Hundred Seventy Thousand Pesos and Seventy Centavos perpetua to death, he is disqualified from availing the benefits of a
(P1,370,000.70). suspended sentence.
The parents (father and mother of juvenile Frank Bansales) and his In his Comment, Bansales avers that petitioner has no standing to file
teacher-in-charge at the Cabug-Cabug National High School of the petition, considering that the offense charged is a public crime
brought in the name of the People of the Philippines; only the Office of Appeals in aid of its appellate jurisdiction. 10 A direct invocation of
of the Solicitor General (OSG) is authorized to file a petition in court the original jurisdiction of the Court to issue writs of certiorari may
assailing the order of the RTC which suspended the service of his be allowed only when there are special and important reasons
sentence. He further avers that Section 32 of A.M. No. 02-1-18-SC therefor clearly and specifically set out in the petition. 11 This is an
entitles the accused to an automatic suspension of sentence and established policy necessary to prevent inordinate demands upon
allows the court to commit the juvenile to the youth center; hence, this Court’s time and attention which are better devoted to those
the court did not abuse its discretion in suspending the sentence of matters within its exclusive jurisdiction, and to prevent further
the accused. overcrowding of the Court’s docket. 12
In reply, petitioner maintains that he has sufficient personality to file However, in Fortich v. Corona, 13 the Court held that considering the
the petition. nature and importance of the issues raised and in the interest of
The OSG, for its part, posits that respondent’s sentence cannot be speedy justice, and to avoid future litigations, the Court may take
suspended since he was charged with a capital offense punishable by cognizance of a petition for certiorari directly filed before it. 14
reclusion perpetua to death. It insists that the entitlement of a Moreover, this Court has suspended its own rules and excepted a
juvenile to a suspended sentence does not depend upon the particular case from their operation whenever the interests of justice
sentence actually imposed by the trial court but upon the imposable so require.
penalty for the crime charged as provided for by law. In this case, we resolve to take cognizance of the case, involving as it
The issues for resolution are the following: (1) whether petitioner has does a juvenile and the application of the Rule on Juveniles in Conflict
standing to file the petition; (2) whether petitioner violated the with the Law.
doctrine of hierarchy of courts in filing his petition with this Court; The charge against respondent Bansales was murder with the
and (3) whether respondent court committed grave abuse of qualifying circumstance of either evident premeditation or abuse of
discretion amounting to excess or lack of jurisdiction in ordering the superior strength. Under Article 248 of the Revised Penal Code, as
suspension of the sentence of respondent Bansales and his amended by Republic Act (Rep. Act) No. 7659, the imposable penalty
commitment to the Regional Rehabilitation Center for the Youth. for the crime is reclusion perpetua to death. The trial court found him
The petition is granted. guilty of murder.
On the first issue, we rule for the petitioner. Being the surviving Article 192 of P.D. No. 603, as amended, provides:
spouse of the deceased and the offended party, he has sufficient Art. 192. Suspension of Sentence and Commitment of Youthful
personality to file the instant special civil action for certiorari. 8 This Offender. – If after hearing the evidence in the proper proceedings,
is in line with the underlying spirit of the liberal construction of the the court should find that the youthful offender has committed the
Rules of Court in order to promote their object. 9 Moreover, the OSG acts charged against him, the court, shall determine the imposable
has filed its comment on the petition and has joined the petitioner in penalty, including any civil liability chargeable against him. However,
his plea for the nullification of the assailed portion of the RTC instead of pronouncing judgment of conviction, the court, upon
decision. application of the youthful offender and if it finds that the best
On the second issue, the rule is that a petition for review on certiorari interest of the public, as well as that of the offender will be served
which seeks to nullify an order of the RTC should be filed in the Court thereby, may suspend all further proceedings and commit such minor
to the custody or care of the Department of Social Welfare and activities; Commitment to the Youth Rehabilitation Center of the
Development or to any training institution operated by the DSWD or other centers for juvenile in conflict with the law authorized
government or any other responsible person until he shall have by the Secretary of DSWD.
reached twenty-one years of age, or for a shorter period as the court The Social Services and Counseling Division (SSCD) of the DSWD shall
may deem proper, after considering the reports and monitor the compliance by the juvenile in conflict with the law with
recommendations of the Department of Social Welfare and the disposition measure and shall submit regularly to the Family
Development or the government training institution or responsible Court a status and progress report on the matter. The Family Court
person under whose care he has been committed. may set a conference for the evaluation of such report in the
Upon receipt of the application of the youthful offender for presence, if practicable, of the juvenile, his parents or guardian, and
suspension of his sentence, the court may require the Department of other persons whose presence may be deemed necessary.
Social Welfare and Development to prepare and submit to the court The benefits of suspended sentence shall not apply to a juvenile in
a social case study report over the offender and his family. conflict with the law who has once enjoyed suspension of sentence,
The youthful offender shall be subject to visitation and supervision or to one who is convicted of an offense punishable by death,
by the representative of the Department of Social Welfare and reclusion perpetua or life imprisonment, or when at the time of
Development or government training institution as the court may promulgation of judgment the juvenile is already eighteen (18) years
designate subject to such conditions as it may prescribe. of age or over.
The benefits of this article shall not apply to a youthful offender who Thus, it is clear that a person who is convicted of an offense
has once enjoyed suspension of sentence under its provisions or to punishable by death, life imprisonment, or reclusion perpetua is
one who is convicted for an offense punishable by death or life disqualified from availing the benefits of a suspended sentence.
imprisonment or to one who is convicted for an offense by the "Punishable" is defined as "deserving of, or capable, or liable to
Military Tribunals. punishment; liable to be punished; may be punished; liable to
The law was reproduced in A.M. No. 02-1-18-SC where, except for punishment." 15 The word "punishable" does not mean "must be
those under paragraph 3, Section 32 of the law, the sentence of the punished," but "liable to be punished" as specified. 16 In U.S. v.
accused is automatically suspended: Villalon, 17 the Court defined punishable as "deserving of, or liable
Sec. 32. Automatic Suspension of Sentence and Disposition Orders. – for, punishment." Thus, the term refers to the possible, not to the
The sentence shall be suspended without need of application by the actual sentence. It is concerned with the penalty which may be, and
juvenile in conflict with the law. The court shall set the case for not which is imposed.
disposition conference within fifteen (15) days from the The disqualification is based on the nature of the crime charged and
promulgation of sentence which shall be attended by the social the imposable penalty therefor, and not on the penalty imposed by
worker of the Family Court, the juvenile, and his parents or guardian the court after trial. It is not the actual penalty imposed but the
ad litem. It shall proceed to issue any or a combination of the possible one which determines the disqualification of a juvenile. 18
following disposition measures best suited to the rehabilitation and Despite the disqualification of Bansales, respondent Judge,
welfare of the juvenile: care, guidance, and supervision orders; Drug nevertheless, ordered the suspension of the sentence meted against
and alcohol treatment; Participation in group counseling and similar
him. By this act, respondent Judge committed grave abuse of later statutes are supplementary or complimentary to the earlier
discretion amounting to excess of jurisdiction. enactments and in the passage of its acts the legislature is supposed
We note that, in the meantime, Rep. Act No. 9344 took effect on May to have in mind the existing legislations on the subject and to have
20, 2006. Section 38 of the law reads: enacted the new act with reference thereto. 19 Statutes in pari
SEC. 38. Automatic Suspension of Sentence. – Once the child who is materia should be construed together to attain the purpose of an
under eighteen (18) years of age at the time of the commission of the expressed national policy. 20
offense is found guilty of the offense charged, the court shall IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
determine and ascertain any civil liability which may have resulted Order of the respondent Judge suspending the sentence of
from the offense committed. However, instead of pronouncing the respondent Frank Bansales is NULLIFIED.
judgment of conviction, the court shall place the child in conflict with SO ORDERED.
the law under suspended sentence, without need of application:
Provided, however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen (18) years of age or more at G.R. No. 174385 February 20, 2013
the time of the pronouncement of his/her guilt. REPUBLIC OF THE PHILIPPINES, Petitioner,
Upon suspension of sentence and after considering the various vs.
circumstances of the child, the court shall impose the appropriate HON. RAMON S. CAGUIOA, Presiding Judge, Branch 74, Regional
disposition measures as provided in the Supreme Court on Juveniles Trial Court, Third Judicial Region, Olongapo City, META TRANS
in Conflict with the Law. TRADING INTERNATIONAL CORPORATION, and HUNDRED YOUNG
The law merely amended Article 192 of P.D. No. 603, as amended by SUBIC INTERNATIONAL, INC., Respondents.
A.M. No. 02-1-18-SC, in that the suspension of sentence shall be DECISION
enjoyed by the juvenile even if he is already 18 years of age or more BRION, J.:
at the time of the pronouncement of his/her guilt. The other We resolve in this petition for certiorari and prohibition 1 (the
disqualifications in Article 192 of P.D. No. 603, as amended, and present petition) the challenge to the August 11, 2005 and July 5,
Section 32 of A.M. No. 02-1-18-SC have not been deleted from 2006 orders2 of respondent Judge Ramon S. Caguioa, Regional Trial
Section 38 of Rep. Act No. 9344. Evidently, the intention of Congress Court (RTC) of Olongapo City, Branch 74, in Civil Case No. 102-0-05.
was to maintain the other disqualifications as provided in Article 192 The August 11, 2005 order granted the motion to intervene filed by
of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC. private respondents Metatrans Trading International Corporation
Hence, juveniles who have been convicted of a crime the imposable and Hundred Young Subic International, Inc., while the July 5, 2006
penalty for which is reclusion perpetua, life imprisonment or order denied the motion for reconsideration and the motion to
reclusion perpetua to death or death, are disqualified from having suspend the proceedings filed by the petitioner Republic of the
their sentences suspended. Philippines (Republic).
Case law has it that statutes in pari materia should be read and The Factual Antecedents
construed together because enactments of the same legislature on On March 14, 2005,3 Indigo Distribution Corporation and thirteen
the same subject are supposed to form part of one uniform system; other petitioners (collectively referred to as lower court petitioners)
filed before the respondent judge a petition for declaratory relief The lower court petitioners are importers and traders duly licensed
with prayer for temporary restraining order (TRO) and preliminary to operate inside the Subic Special Economic and Freeport Zone
mandatory injunction4 against the Honorable Secretary of Finance, (SSEFZ).
et al. The petition sought to nullify the implementation of Section 6 By way of background, Congress enacted, in 1992, R.A. No. 7227,
of Republic Act (R.A.) No. 9334, otherwise known as "AN ACT otherwise known as "The BASES CONVERSION AND DEVELOPMENT
INCREASING THE EXCISE TAX RATES IMPOSED ON ALCOHOL AND ACT OF 1992," which provided, among others, for the creation of the
TOBACCO PRODUCTS, AMENDING FOR THE PURPOSE SECTIONS 131, SSEFZ, as well as the Subic Bay Metropolitan Authority (SBMA).
141, 142, 143, 144, 145 AND 288 OF THE NATIONAL INTERNAL Pursuant to this law, the SBMA granted the lower court petitioners
REVENUE CODE OF 1997, AS AMENDED," as unconstitutional. Section Certificates of Registration and Tax Exemption. The certificates
6 of R.A. No. 9334, in part, reads: allowed them to engage in the business of import and export of
SEC. 6. Section 131 of the National Internal Revenue Code of 1997, as general merchandise (including alcohol and tobacco products) and
amended, is hereby amended to read as follows: uniformly granted them tax exemptions for these importations.
SEC. 131. Payment of Excise Taxes on Imported Articles. – On January 1, 2005, Congress passed R.A. No. 9334. Based on Section
(A) Persons Liable. – x x x. 6 of R.A. No. 9334, the SBMA issued a Memorandum on February 7,
xxxx 2005 directing its various departments to require importers in the
The provision of any special or general law to the contrary SSEFZ to pay the applicable duties and taxes on their importations of
notwithstanding, the importation of cigars and cigarettes, distilled tobacco and alcohol products before these importations are cleared
spirits, fermented liquors and wines into the Philippines, even if and released from the freeport. The memorandum prompted the
destined for tax and duty-free shops, shall be subject to all applicable lower court petitioners to bring before the RTC their petition for
taxes, duties, charges, including excise taxes due thereon. This shall declaratory relief (Civil Case No. 102-0- 05). The petition included a
apply to cigars and cigarettes, distilled spirits, fermented liquors and prayer for the issuance of a writ of preliminary injunction and/or a
wines brought directly into the duly chartered or legislated freeports TRO to enjoin the Republic (acting through the SBMA) from enforcing
of the Subic Special Economic and Freeport Zone, created under the challenged memorandum.
Republic Act No. 7227; the Cagayan Special Economic Zone and On May 4, 2005,5 the respondent judge granted the lower court
Freeport, created under Republic Act No. 7922; and the Zamboanga petitioners’ application for preliminary injunction despite the
City Special Economic Zone, created under Republic Act No. 7903, Republic’s opposition, and on May 11, 2005, he issued the
and such other freeports as may hereafter be established or created preliminary injunction.
by law: Provided, further, That importations of cigars and cigarettes, The Republic filed before this Court a petition for certiorari and
distilled spirits, fermented liquors and wines made directly by a prohibition – docketed in this Court as G.R. No. 168584 – to annul the
government- owned and operated duty-free shop, like the Duty-Free respondent judge’s order and the writ issued pursuant to this order.
Philippines (DFP), shall be exempted from all applicable duties only[.] The petition asked for the issuance of a TRO and/or a writ of
[emphasis ours; italics supplied] preliminary injunction. By motion dated July 21, 2005 filed before the
lower court, the Republic asked the respondent judge to suspend the
proceedings pending the resolution of G.R. No. 168584.
On August 5, 2005, the private respondents (in the present petition any copy of the questioned motions and complaints-in-
now before us) filed before the respondent judge motions for leave intervention.7
to intervene and to admit complaints-in-intervention. They also Further, the Republic posits that the respondent judge abused his
asked in these motions that the respondent judge extend to them the discretion when he extended to the private respondents the benefits
effects and benefits of his May 4, 2005 order, in the lower court of the preliminary injunction earlier issued to the lower court
petitioners’ favor, and the subsequently issued May 11, 2005 writ of petitioners under the same ₱1,000,000.00 bond the lower court
preliminary mandatory injunction. petitioners posted. The Republic labels this action as a violation of
Without acting on the Republic’s motion to suspend the proceedings, Section 4, Rule 58 of the Rules of Court, claiming at the same time
the respondent judge granted on August 11, 2005 the private that the bond is manifestly disproportionate to the resulting damage
respondents’ motions and complaints-in-intervention. The the Republic stood to incur considering the number of the original
respondent judge found the private respondents to be similarly and the additional lower court petitioners.8
situated as the lower court petitioners; they stood, too, to be Finally, in support of its prayer for the issuance of a TRO and/or a writ
adversely affected by the implementation of R.A. No. 9334. of preliminary injunction, the Republic stresses that the assailed
The Republic moved to reconsider6 the respondent judge’s August orders continue to cause it multi-million tax losses. It justifies its
11, 2005 order, arguing that it had been denied due process because prayer for the respondent judge’s inhibition by pointing to the latter’s
it never received copies of the private respondents’ motions and act of continuously allowing parties to intervene despite the absence
complaints-in-intervention. of notice and to the inclusion of non-parties to the original case.
On July 5, 2006, the respondent judge denied the Republic’s motion During the pendency of the present petition, the Court en banc
for reconsideration and the previously filed motion to suspend the partially granted the Republic’s petition in G.R. No. 168584. By a
proceedings. The respondent judge held that all of the parties in the Decision9 dated October 15, 2007, this Court set aside and nullified
case had been duly notified per the records. To justify the denial of the respondent judge’s order of May 4, 2005 and the subsequent
the motion to suspend the proceedings, the respondent judge May 11, 2005 writ of preliminary injunction. On January 15, 2008, the
pointed to the absence of any restraining order in G.R. No. 168584. Court denied with finality the lower court petitioners’ motion for
The Republic responded to the respondent judge’s actions by filing reconsideration.10
the present petition. The Respondent’s Position
The Petition In their defense, the private respondents point to the procedural
The present petition charges that the respondent judge acted with defects in the petition, specifically: first, the petition was filed out of
manifest partiality and with grave abuse of discretion when he issued time, arguing that the Republic only had 53 remaining days to file the
his August 11, 2005 and July 5, 2006 orders. In particular, the petition from notice of the denial of its motion for reconsideration,
Republic contends that the respondent judge violated its right to due maintaining that the 60-day period within which to file the petition is
process when he peremptorily allowed the private respondents’ counted from the notice of the denial of the August 11, 2005 order;
motions and complaints-in-intervention and proceeded with their second, the petition did not comply with the rules on proof of filing
hearing ex parte despite the absence of any prior notice to it. The and service; third, the Republic failed to properly serve their counsel
Republic maintains that it never received any notice of hearing, nor
of record a copy of the petition; and fourth, the Republic did not jurisdiction to issue writs of certiorari on the ground of special and
observe the hierarchy of courts in filing the instant petition.11 important reasons clearly stated in the petition;16 when dictated by
The private respondents further contend that the respondent judge public welfare and the advancement of public policy; when
correctly allowed their complaints-in-intervention as the matter of demanded by the broader interest of justice; when the challenged
intervention is addressed to the courts’ discretion; as noted in the orders were patent nullities;17 or when analogous exceptional and
assailed orders, the records show that the notice of hearing was compelling circumstances called for and justified our immediate and
addressed to all of the parties in the original case.12 direct handling of the case.18
Finally, on the Republic’s prayer for prohibition, the private The Republic claims that the respondent judge violated and
respondents maintain that prohibition is improper since this Court, continues to violate its right to due process by allowing the private
in G.R. No. 168584, denied the Republic’s prayer for a writ of respondents and several others to intervene in the case sans notice
prohibition, noting that the respondent judge had been suspended, to the Republic; by extending to them the benefit of the original
pending resolution of this petition.13 injunction without the requisite injunction bond applicable to them
The Court’s Ruling as separate injunction applicants; and by continuing to suspend the
We resolve to PARTLY GRANT the petition. Republic’s right to collect excise taxes from the private respondents
Relaxation of procedural rules for compelling reasons and from the lower court petitioners, thus adversely affecting the
We disagree with the private respondents’ procedural objections. government’s revenues. To our mind, the demonstrated extent of
First, we find that the present petition was filed within the the respondent judge’s actions and their effects constitute special
reglementary period. Contrary to the private respondents’ position, and compelling circumstances calling for our direct and immediate
the 60- day period within which to file the petition for certiorari is attention.
counted from the Republic’s receipt of the July 5, 2006 order denying Lastly, under our rules of procedure,19 service of the petition on a
the latter’s motion for reconsideration. Section 4, Rule 65 of the Rules party, when that party is represented by a counsel of record, is a
of Court is clear on this point – "In case a motion for reconsideration patent nullity and is not binding upon the party wrongfully served.20
or new trial is timely filed, whether such motion is required or not, This rule, however, is a procedural standard that may admit of
the sixty (60) day period shall be counted from notice of the denial of exceptions when faced with compelling reasons of substantive justice
said motion."14 We find too that the present petition complied with manifest in the petition and in the surrounding circumstances of the
the rules on proof of filing and service of the petition. Attached to the case.21 Procedural rules can bow to substantive considerations
petition – in compliance with Sections 12 and 13, Rule 13 of the Rules through a liberal construction aimed at promoting their objective of
of Court – are the registry receipts and the affidavit of the person securing a just, speedy and inexpensive disposition of every action
who filed and served the petition by registered mail. and proceeding.22
Second, while the principle of hierarchy of courts does indeed require The Republic has consistently and repeatedly maintained that it
that recourses should be made to the lower courts before they are never received a copy of the motions and complaints-in-intervention,
made to the higher courts,15 this principle is not an absolute rule and as evidenced by the certification of the Docket Division of the Office
admits of exceptions under well-defined circumstances. In several of the Solicitor General (OSG); it learned of the private respondents’
cases, we have allowed direct invocation of this Court’s original presence in this case only after it received copies of the assailed
orders, and it even had to inquire from the lower court for the private the latter must then be given the right and opportunity to oppose.28
respondents’ addresses. Although their counsels did not formally The notice of hearing to the adverse party thus directly services the
receive any copy of the petition, the private respondents themselves required due process as it affords the adverse party the opportunity
admitted that they received their copy of the present petition. The to properly state his agreement or opposition to the action that the
records show that the Republic subsequently complied with the rules movant asks for.29 Consequently, our procedural rules provide that
on service when, after the private respondents’ comment, the a motion that does not afford the adverse party this kind of
Republic served copies of its reply and memorandum to the opportunity should simply be disregarded.30
respondents’ counsel of record. The notice requirement is even more mandatory when the movant
Under these circumstances, we are satisfied with the Republic’s asks for the issuance of a preliminary injunction and/or a TRO. Under
explanation on why it failed to initially comply with the rule on service Section 5, Rule 58 of the Rules of Court, no preliminary injunction
of the present petition; its subsequent compliance with the rule after shall be granted without a hearing and without prior notice to the
being informed of the presence of counsels of record sufficiently party sought to be enjoined. The prior notice under this requirement
warrants the rule’s relaxed application.23 The lack of a proper service is as important as the hearing, as no hearing can meaningfully take
– unlike the situation when the Republic was simply confronted with place, with both parties present or represented, unless a prior notice
already-admitted complaints-in-intervention – did not result in any of the hearing is given.
prejudice; the private respondents themselves were actually served Additionally, in the same way that an original complaint must be
with, and duly received, their copies of the present petition, allowing served on the defendant, a copy of the complaint-in-intervention
them to comment and to be heard on the petition. must be served on the adverse party with the requisite proof of
The Republic was denied due process; the respondent judge issued service duly filed prior to any valid court action. Absent these or any
the assailed orders with grave abuse of discretion reason duly explained and accepted excusing strict compliance, the
Due process of law is a constitutionally guaranteed right reserved to court is without authority to act on such complaint; any action taken
every litigant.1âwphi1 Even the Republic as a litigant is entitled to without the required service contravenes the law and the rules, and
this constitutional right, in the same manner and to the same extent violates the adverse party’s basic and constitutional right to due
that this right is guaranteed to private litigants. The essence of due process.
process is the opportunity to be heard, logically preconditioned on In the present case, records show that the OSG had never received –
prior notice, before judgment is rendered.24 contrary to the private respondents’ claim – a copy of the motions
A motion for intervention, like any other motion, has to comply with and complaints-in-intervention.31 The Republic duly and fully
the mandatory requirements of notice and hearing, as well as proof manifested the irregularity before the respondent judge.32 Thus, the
of its service,25 save only for those that the courts can act upon mere statement in the assailed orders that the parties were duly
without prejudice to the rights of the other parties.26 A motion notified is insufficient on the face of the appropriate manifestation
which fails to comply with these requirements is a worthless piece of made and the supporting proof that the Republic submitted. In these
paper that cannot and should not be acted upon.27 The reason for lights, the motions and complaints-in-intervention cannot but be
this is plain: a movant asks the court to take a specific course of mere scraps of paper that the respondent judge had no reason to
action, often contrary to the interest of the adverse party and which
consider; in admitting them despite the absence of prior notice, the Civil Case No. 102-0-05 that underlie the present petition. By a
respondent judge denied the Republic of its right to due process. decision dated June 26, 2009, and while this case was still pending,
While we may agree with the private respondents’ claim that the this Court found the respondent judge guilty of gross ignorance of
matter of intervention is addressed to the sound discretion of the the law and conduct prejudicial to the best interest of the service.
court,33 what should not be forgotten is the requirement that the The Court accordingly dismissed the respondent judge from the
exercise of discretion must in the first place be "sound." In other service.
words, the basic precepts of fair play and the protection of all In light of these supervening events, the Court sees no reason to
interests involved must always be considered in the exercise of resolve the other matters raised in this petition for being moot.
discretion. Under the circumstances of the present case, these WHEREFORE, under these premises, we PARTIALLY GRANT the
considerations demand that the original parties to the action, which petition. We GRANT the writ of certiorari and accordingly SET ASIDE
include the Republic, must have been properly informed to give them the orders dated August 11, 2005 and July 5, 2006 of respondent
a chance to protect their interests. These interests include, among Judge Ramon S. Caguioa in Civil Case No. 102-0-05 for being NULL and
others, the protection of the Republic’s revenue-generating authority VOID. We DISMISS the prayer for writ of prohibition on the ground of
that should have been insulated against damage through the filing of mootness. Costs against Metatrans Trading International
a proper bond. Thus, even from this narrow view that does not yet Corporation and Hundred Young Subic International, Inc.
consider the element of fair play, the private respondents’ case must SO ORDERED.
fail; judicial discretion cannot override a party litigant’s right to due 174385
process.
All told, the respondent judge acted with grave abuse of discretion G.R. No. 205728 January 21, 2015
warranting the issuance of the corrective writ of certiorari. Grave THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV.
abuse of discretion arises when a lower court or tribunal violates the BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS
Constitution or grossly disregards the law or existing PERSONAL CAPACITY, Petitioners,
jurisprudence.34 The term refers to such capricious and whimsical vs.
exercise of judgment equivalent to lack of jurisdiction, as when the COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF
act amounts to an evasion of a positive duty or to a virtual refusal to BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
perform a duty enjoined by law, or to act at all in contemplation of DECISION
law .35 The respondent judge so acted so that the orders he issued LEONEN, J.:
should be declared void and of no effect. "The Philippines is a democratic and republican State. Sovereignty
Petition for prohibition and prayer for inhibition are denied for resides in the people and all government authority emanates from
having been mooted by subsequent events them." – Article II, Section 1, Constitution
On November 9, 2006, the Republic filed an administrative case All governmental authority emanates from our people. No
against the respondent judge for gross ignorance of the law, manifest unreasonable restrictions of the fundamental and preferred right to
partiality and conduct prejudicial to the best interest of the service. expression of the electorate during political contests no matter how
The case, docketed as A.M. No. RTJ-07-2063, is likewise related to seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates Enrile, Jackie
during elections. It is significant and of first impression. We are asked Trillanes, Antonio
to decide whether the Commission on Elections (COMELEC) has the Escudero, Francis
competence to limit expressions made by the citizens — who are not Villar, Cynthia
candidates — during elections. Hontiveros, Risa
Before us is a special civil action for certiorari and prohibition with Party List Buhay
application for preliminary injunction and temporary restraining Legarda, Loren
order1 under Rule 65 of the Rules of Court seeking to nullify Party List Ang Pamilya
COMELEC’s Notice to Remove Campaign Materials2 dated February Party List Gabriela
22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed. Party List Akbayan
On February 21, 2013, petitioners posted two (2) tarpaulins within a
private compound housing the San Sebastian Cathedral of Bacolod. Party List Bayan Muna
Each tarpaulin was approximately six feet (6') by ten feet (10') in size.
They were posted on the front walls of the cathedral within public Party List Anak Pawis
view. The first tarpaulin contains the message "IBASURA RH Law" During oral arguments, respondents conceded that the tarpaulin was
referring to the Reproductive Health Law of 2012 or Republic Act No. neither sponsored nor paid for by any candidate. Petitioners also
10354. The second tarpaulin is the subject of the present case.4 This conceded that the tarpaulin contains names ofcandidates for the
tarpaulin contains the heading "Conscience Vote" and lists 2013 elections, but not of politicians who helped in the passage of
candidates as either "(Anti-RH) Team Buhay" with a check mark, or the RH Law but were not candidates for that election.
"(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her
were classified according to their vote on the adoption of Republic capacity as Election Officer of Bacolod City, issued a Notice to
Act No. 10354, otherwise known as the RH Law.6 Those who voted Remove Campaign Materials8 addressed to petitioner Most Rev.
for the passing of the law were classified by petitioners as comprising Bishop Vicente M. Navarra. The election officer ordered the
"Team Patay," while those who voted against it form "Team Buhay":7 tarpaulin’s removal within three (3) days from receipt for being
TEAM BUHAY oversized. COMELEC Resolution No. 9615 provides for the size
TEAM PATAY requirement of two feet (2’) by three feet (3’).9
Estrada, JV On February 25, 2013, petitioners replied10 requesting, among
Angara, Juan Edgardo others, that (1) petitioner Bishop be given a definite ruling by
Honasan, Gregorio COMELEC Law Department regarding the tarpaulin; and (2) pending
Casiño, Teddy this opinion and the availment of legal remedies, the tarpaulin be
Magsaysay, Mitos allowed to remain.11
Cayetano, Alan Peter On February 27, 2013, COMELEC Law Department issued a letter12
Pimentel, Koko ordering the immediate removal of the tarpaulin; otherwise, it will be
constrained to file an election offense against petitioners. The letter Concerned about the imminent threatof prosecution for their
of COMELEC Law Department was silenton the remedies available to exercise of free speech, petitioners initiated this case through this
petitioners. The letter provides as follows: petition for certiorari and prohibition with application for preliminary
Dear Bishop Navarra: injunction and temporary restraining order.14 They question
It has reached this Office that our Election Officer for this City, Atty. respondents’ notice dated February 22, 2013 and letter issued on
Mavil Majarucon, had already given you notice on February 22, 2013 February 27, 2013. They pray that: (1) the petition be given due
as regards the election propaganda material posted on the church course; (2) a temporary restraining order (TRO) and/or a writ of
vicinity promoting for or against the candidates and party-list groups preliminary injunction be issued restraining respondents from
with the following names and messages, particularly described as further proceeding in enforcing their orders for the removal of the
follows: Team Patay tarpaulin; and (3) after notice and hearing, a decision be
Material size : six feet (6’) by ten feet (10’) rendered declaring the questioned orders of respondents as
Description : FULL COLOR TARPAULIN unconstitutional and void, and permanently restraining respondents
Image of : SEE ATTACHED PICTURES from enforcing them or any other similar order.15
Message : CONSCIENCE VOTE (ANTI RH) TEAM After due deliberation, this court, on March 5, 2013, issued a
BUHAY; (PRO RH) TEAM PATAY temporary restraining order enjoining respondents from enforcing
Location : POSTED ON THE CHURCH VICINITY the assailed notice and letter, and set oral arguments on March 19,
OF THE DIOCESE OF BACOLOD CITY 2013.16
The three (3) – day notice expired on February 25, 2013. On March 13, 2013, respondents filed their comment17 arguing that
Considering that the above-mentioned material is found to be in (1) a petition for certiorari and prohibition under Rule 65 of the Rules
violation of Comelec Resolution No. 9615 promulgated on January of Court filed before this court is not the proper remedy to question
15, 2013 particularly on the size (even with the subsequent division the notice and letter of respondents; and (2) the tarpaulin is an
of the said tarpaulin into two), as the lawful size for election election propaganda subject to regulation by COMELEC pursuant to
propaganda material is only two feet (2’) by three feet (3’), please its mandate under Article IX-C, Section 4 of the Constitution. Hence,
order/cause the immediate removal of said election propaganda respondents claim that the issuances ordering its removal for being
material, otherwise, we shall be constrained to file an election oversized are valid and constitutional.18
offense case against you. During the hearing held on March 19, 2013, the parties were directed
We pray that the Catholic Church will be the first institution to help to file their respective memoranda within 10 days or by April 1, 2013,
the Commission on Elections inensuring the conduct of peaceful, taking into consideration the intervening holidays.19
orderly, honest and credible elections. The issues, which also served as guide for the oral arguments, are:20
Thank you and God Bless! I.
[signed] WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION
ATTY. ESMERALDA AMORA-LADRA OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
Director IV13 COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT I.A
A REVIEW OF THIS COURT VIA RULE 65 PETITION[;] This court’s jurisdiction over COMELEC cases
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS Respondents ask that this petition be dismissed on the ground that
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS the notice and letter are not final orders, decisions, rulings, or
FROM COMELEC DECISIONS; judgments of the COMELEC En Banc issued in the exercise of its
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21
ARE NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule
OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL 65 is applicable especially to raise objections relating to a grave abuse
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE of discretion resulting in the ouster of jurisdiction.22 As a special civil
COGNIZANCE OF THE CASE[;] action, there must also be a showing that there be no plain, speedy,
II. and adequate remedy in the ordinary course of the law.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE Respondents contend that the assailed notice and letter are not
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION subject to review by this court, whose power to review is "limited
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL only to final decisions, rulings and orders of the COMELEC En Banc
CANDIDATE[;] rendered in the exercise of its adjudicatory or quasi-judicial
III. power."23 Instead, respondents claim that the assailed notice and
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION letter are reviewable only by COMELEC itself pursuant to Article IX-C,
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL Section 2(3) of the Constitution24 on COMELEC’s power to decide all
ADVERTISEMENT[;] questions affecting elections.25 Respondents invoke the cases of
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
TO REGULATE THE SAME[;] illustrate how judicialintervention is limited to final decisions, orders,
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;] rulings and judgments of the COMELEC En Banc.31
IV. These cases are not applicable.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE Eastern Samar filed the election protest.32 At issue was the validity
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF of the promulgation of a COMELEC Division resolution.33 No motion
SEPARATION OF CHURCH AND STATE[;] [AND] for reconsideration was filed to raise this issue before the COMELEC
V. En Banc. This court declared that it did not have jurisdiction and
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS clarified:
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF We have interpreted [Section 7, Article IX-A of the Constitution]34 to
SEPARATION OF CHURCH AND STATE. mean final orders, rulings and decisionsof the COMELEC rendered in
I the exercise of its adjudicatory or quasi-judicial powers." This
PROCEDURAL ISSUES decision must be a final decision or resolution of the Comelec en
banc, not of a division, certainly not an interlocutory order of a Ultimately, this court took jurisdiction in Repoland decided that the
division.The Supreme Court has no power to review viacertiorari, an status quo anteorder issued by the COMELEC Division was
interlocutory order or even a final resolution of a Division of the unconstitutional.
Commission on Elections.35 (Emphasis in the original, citations Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
omitted) election protest case involving candidates for the city council of
However, in the next case cited by respondents, Repol v. COMELEC, Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a
this court provided exceptions to this general rule. Repolwas another petition for certiorari against an interlocutory order of the COMELEC
election protest case, involving the mayoralty elections in First
Pagsanghan, Samar.36 This time, the case was brought to this court Division.42 While the petition was pending in this court, the
because the COMELEC First Division issued a status quo ante order COMELEC First Division dismissed the main election protest case.43
against the Regional Trial Court executing its decision pending Sorianoapplied the general rule that only final orders should be
appeal.37 This court’s ponencia discussed the general rule questioned with this court. The ponencia for this court, however,
enunciated in Ambil, Jr. that it cannot take jurisdiction to review acknowledged the exceptions to the general rule in ABS-CBN.44
interlocutory orders of a COMELEC Division.38 However, consistent Blanco v. COMELEC, another case cited by respondents, was a
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified disqualification case of one of the mayoralty candidates of
the exception: Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
This Court, however, has ruled in the past that this procedural petitioner could not qualify for the 2007 elections due to the findings
requirement [of filing a motion for reconsideration] may be glossed in an administrative case that he engaged in vote buying in the 1995
over to prevent miscarriage of justice, when the issue involves the elections.46 No motion for reconsideration was filed before the
principle of social justice or the protection of labor, when the COMELEC En Banc. This court, however, took cognizance of this case
decision or resolution sought to be set aside is a nullity, or when the applying one of the exceptions in ABS-CBN: The assailed resolution
need for relief is extremely urgent and certiorari is the only adequate was a nullity.47
and speedy remedy available.40 Finally, respondents cited Cayetano v. COMELEC, a recent election
Based on ABS-CBN, this court could review orders and decisions of protest case involving the mayoralty candidates of Taguig City.48
COMELEC — in electoral contests — despite not being reviewed by Petitioner assailed a resolution of the COMELEC denying her motion
the COMELEC En Banc, if: for reconsideration to dismiss the election protest petition for lack of
1) It will prevent the miscarriage of justice; form and substance.49 This court clarified the general rule and
2) The issue involves a principle of social justice; refused to take cognizance of the review of the COMELEC order.
3) The issue involves the protection of labor; While recognizing the exceptions in ABS-CBN, this court ruled that
4) The decision or resolution sought tobe set aside is a nullity; or these exceptions did not apply.50
5) The need for relief is extremely urgent and certiorari is the only Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by
adequate and speedy remedy available. respondents do not operate as precedents to oust this court from
taking jurisdiction over this case. All these cases cited involve election
protests or disqualification cases filed by the losing candidate against power whether through the election of representatives in a
the winning candidate. republican government or the revision of the basic text of the
In the present case, petitioners are not candidates seeking for public Constitution. The zeal with which we protect this kind of speech does
office. Their petition is filed to assert their fundamental right to not depend on our evaluation of the cogency of the message. Neither
expression. do we assess whether we should protect speech based on the
Furthermore, all these cases cited by respondents pertained to motives of COMELEC. We evaluate restrictions on freedom of
COMELEC’s exercise of its adjudicatory or quasi-judicial power. This expression from their effects. We protect both speech and medium
case pertains to acts of COMELEC in the implementation of its because the quality of this freedom in practice will define the quality
regulatory powers. When it issued the notice and letter, the of deliberation in our democratic society.
COMELEC was allegedly enforcingelection laws. COMELEC’s notice and letter affect preferred speech. Respondents’
I.B acts are capable of repetition. Under the conditions in which it was
Rule 65, grave abuse of discretion, issued and in view of the novelty of this case,it could result in a
and limitations on political speech "chilling effect" that would affect other citizens who want their voices
The main subject of thiscase is an alleged constitutional violation: the heard on issues during the elections. Other citizens who wish to
infringement on speech and the "chilling effect" caused by express their views regarding the election and other related issues
respondent COMELEC’s notice and letter. may choose not to, for fear of reprisal or sanction by the COMELEC.
Petitioners allege that respondents committed grave abuse of Direct resort to this court is allowed to avoid such proscribed
discretion amounting to lack or excess of jurisdiction in issuing the conditions. Rule 65 is also the procedural platform for raising grave
notice51 dated February 22,2013 and letter52 dated February 27, abuse of discretion.
2013 ordering the removal of the tarpaulin.53 It is their position that Both parties point to constitutional provisions on jurisdiction. For
these infringe on their fundamental right to freedom of expression petitioners, it referred to this court’s expanded exercise of certiorari
and violate the principle of separation of church and state and, thus, as provided by the Constitution as follows:
are unconstitutional.54 Judicial power includes the duty of the courts of justice to settle
The jurisdiction of this court over the subject matter is determined actual controversies involving rights which are legally demandable
from the allegations in the petition. Subject matter jurisdiction is and enforceable, and to determine whether ornot there has been a
defined as the authority "to hear and determine cases of the general grave abuse of discretion amounting to lack or excess of jurisdiction
class to which the proceedings in question belong and is conferred by on the part of any branch or instrumentality of the Government.56
the sovereign authority which organizes the court and defines its (Emphasis supplied)
powers."55 Definitely, the subject matter in this case is different On the other hand, respondents relied on its constitutional mandate
from the cases cited by respondents. to decide all questions affectingelections. Article IX-C, Section 2(3) of
Nothing less than the electorate’s political speech will be affected by the Constitution, provides:
the restrictions imposed by COMELEC. Political speech is motivated Sec. 2. The Commission on Elections shall exercise the following
by the desire to be heard and understood, to move people to action. powers and functions:
It is concerned with the sovereign right to change the contours of ....
(3) Decide, except those involving the right to vote, all questions It will, thus, be manifest injustice if the court does not take
affecting elections, including determination of the number and jurisdiction over this case.
location of polling places, appointment of election officials and I.C
inspectors, and registration of voters. Hierarchy of courts
Respondents’ reliance on this provision is misplaced. This brings us to the issue of whether petitioners violated the
We are not confronted here with the question of whether the doctrine of hierarchy of courts in directly filing their petition before
COMELEC, in its exercise of jurisdiction, gravely abused it. We are this court.
confronted with the question as to whether the COMELEC had any Respondents contend that petitioners’ failure to file the proper suit
jurisdiction at all with its acts threatening imminent criminal action with a lower court of concurrent jurisdiction is sufficient ground for
effectively abridging meaningful political speech. the dismissal of their petition.57 They add that observation of the
It is clear that the subject matter of the controversy is the effect of hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
COMELEC’s notice and letter on free speech. This does not fall under Melicor.58 While respondents claim that while there are exceptions
Article IX-C, Section 2(3) of the Constitution. The use of the word to the general rule on hierarchy of courts, none of these are present
"affecting" in this provision cannot be interpreted to mean that in this case.59
COMELEC has the exclusive power to decide any and allquestions On the other hand, petitioners cite Fortich v. Corona60 on this court’s
that arise during elections. COMELEC’s constitutional competencies discretionary power to take cognizance of a petition filed directly to
during elections should not operate to divest this court of its own it if warranted by "compelling reasons, or [by] the nature and
jurisdiction. importance of the issues raised. . . ."61 Petitioners submit that there
The more relevant provision for jurisdiction in this case is Article VIII, are "exceptional and compelling reasons to justify a direct resort
Section 5(1) of the Constitution.This provision provides for this [with] this Court."62
court’s original jurisdiction over petitions for certiorari and In Bañez, Jr. v. Concepcion,63 we explained the necessity of the
prohibition. This should be read alongside the expanded jurisdiction application of the hierarchy of courts:
of the court in Article VIII, Section 1 of the Constitution. The Court must enjoin the observance of the policy on the hierarchy
Certainly, a breach of the fundamental right of expression by of courts, and now affirms that the policy is not to be ignored without
COMELEC is grave abuse of discretion. Thus, the constitutionality of serious consequences. The strictness of the policy is designed to
the notice and letter coming from COMELEC is within this court’s shield the Court from having to deal with causes that are also well
power to review. within the competence of the lower courts, and thus leave time to
During elections, we have the power and the duty to correct any the Court to deal with the more fundamental and more essential
grave abuse of discretion or any act tainted with unconstitutionality tasks that the Constitution has assigned to it. The Court may act on
on the part of any government branch or instrumentality. This petitions for the extraordinary writs of certiorari, prohibition and
includes actions by the COMELEC. Furthermore, it is this court’s mandamus only when absolutely necessary or when serious and
constitutional mandate to protect the people against government’s important reasons exist to justify an exception to the policy.64
infringement of their fundamental rights. This constitutional
mandate out weighs the jurisdiction vested with the COMELEC.
In Bañez, we also elaborated on the reasons why lower courts are the constitutionality of such action. The consequences, of course,
allowed to issue writs of certiorari, prohibition, and mandamus, citing would be national in scope. There are, however, some cases where
Vergara v. Suelto:65 resort to courts at their level would not be practical considering their
The Supreme Court is a court of lastresort, and must so remain if it is decisions could still be appealed before the higher courts, such as the
to satisfactorily perform the functions assigned to it by the Court of Appeals.
fundamental charter and immemorial tradition. It cannot and should The Court of Appeals is primarily designed as an appellate court that
not be burdened with the task of dealing with causes in the first reviews the determination of facts and law made by the trial courts.
instance. Its original jurisdiction to issue the so-called extraordinary It is collegiate in nature. This nature ensures more standpoints in the
writs should be exercised only where absolutely necessary or where review of the actions of the trial court. But the Court of Appeals also
serious and important reasons exist therefore. Hence, that has original jurisdiction over most special civil actions. Unlike the trial
jurisdiction should generally be exercised relative to actions or courts, its writs can have a nationwide scope. It is competent to
proceedings before the Court of Appeals, or before constitutional or determine facts and, ideally, should act on constitutional issues
other tribunals, bodies or agencies whose acts for some reason or thatmay not necessarily be novel unless there are factual questions
another are not controllable by the Court of Appeals. Where the to determine.
issuance of an extraordinary writ is also within the competence of the This court, on the other hand, leads the judiciary by breaking new
Court of Appeals or a Regional Trial Court, it is in either of these ground or further reiterating — in the light of new circumstances or
courts that the specific action for the writ’s procurement must be in the light of some confusions of bench or bar — existing precedents.
presented. This is and should continue to be the policy in this regard, Rather than a court of first instance or as a repetition of the actions
a policy that courts and lawyers must strictly observe.66 (Emphasis of the Court of Appeals, this court promulgates these doctrinal
omitted) devices in order that it truly performs that role.
The doctrine that requires respect for the hierarchy of courts was In other words, the Supreme Court’s role to interpret the
created by this court to ensure that every level of the judiciary Constitution and act in order to protect constitutional rights when
performs its designated roles in an effective and efficient manner. these become exigent should not be emasculated by the doctrine in
Trial courts do not only determine the facts from the evaluation of respect of the hierarchy of courts. That has never been the purpose
the evidence presented before them. They are likewise competent to of such doctrine.
determine issues of law which may include the validity of an Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68
ordinance, statute, or even an executive issuance in relation to the This court has "full discretionary power to take cognizance and
Constitution.67 To effectively perform these functions, they are assume jurisdiction [over] special civil actions for certiorari . . .filed
territorially organized into regions and then into branches. Their directly with it for exceptionally compelling reasons69 or if warranted
writs generally reach within those territorial boundaries. Necessarily, by the nature of the issues clearly and specifically raised in the
they mostly perform the all-important task of inferring the facts from petition."70 As correctly pointed out by petitioners,71 we have
the evidence as these are physically presented before them. In many provided exceptions to this doctrine:
instances, the facts occur within their territorial jurisdiction, which First, a direct resort to this court is allowed when there are genuine
properly present the ‘actual case’ that makes ripe a determination of issues of constitutionality that must be addressed at the most
immediate time. A direct resort to this court includes availing of the transcendental importance prevents courts from the paralysis of
remedies of certiorari and prohibition toassail the constitutionality of procedural niceties when clearly faced with the need for substantial
actions of both legislative and executive branches of the protection.
government.72 In the case before this court, there is a clear threat to the paramount
In this case, the assailed issuances of respondents prejudice not only right of freedom of speech and freedom of expression which
petitioners’ right to freedom of expression in the present case, but warrants invocation of relief from this court. The principles laid down
also of others in future similar cases. The case before this court in this decision will likely influence the discourse of freedom of
involves an active effort on the part of the electorate to reform the speech in the future, especially in the context of elections. The right
political landscape. This has become a rare occasion when private to suffrage not only includes the right to vote for one’s chosen
citizens actively engage the public in political discourse. To quote an candidate, but also the right to vocalize that choice to the public in
eminent political theorist: general, in the hope of influencing their votes. It may be said that in
[T]he theory of freedom of expression involves more than a an election year, the right to vote necessarily includes the right to
technique for arriving at better social judgments through democratic free speech and expression. The protection of these fundamental
procedures. It comprehends a vision of society, a faith and a whole constitutional rights, therefore, allows for the immediate resort to
way of life. The theory grew out of an age that was awakened and this court.
invigorated by the idea of new society in which man's mind was free, Third, cases of first impression75 warrant a direct resort to this court.
his fate determined by his own powers of reason, and his prospects In cases of first impression, no jurisprudence yet exists that will guide
of creating a rational and enlightened civilization virtually unlimited. the lower courts on this matter. In Government of the United States
It is put forward as a prescription for attaining a creative, progressive, v. Purganan,76 this court took cognizance of the case as a matter of
exciting and intellectually robust community. It contemplates a mode first impression that may guide the lower courts:
of life that, through encouraging toleration, skepticism, reason and In the interest of justice and to settle once and for all the important
initiative, will allow man to realize his full potentialities.It spurns the issue of bail in extradition proceedings, we deem it best to take
alternative of a society that is tyrannical, conformist, irrational and cognizance of the present case. Such proceedings constitute a matter
stagnant.73 of first impression over which there is, as yet, no local jurisprudence
In a democracy, the citizen’s right tofreely participate in the exchange to guide lower courts.77
of ideas in furtherance of political decision-making is recognized. It This court finds that this is indeed a case of first impression involving
deserves the highest protection the courts may provide, as public as it does the issue of whether the right of suffrage includes the right
participation in nation-building isa fundamental principle in our of freedom of expression. This is a question which this court has yet
Constitution. As such, their right to engage in free expression of ideas to provide substantial answers to, through jurisprudence. Thus,
must be given immediate protection by this court. direct resort to this court is allowed.
A second exception is when the issuesinvolved are of transcendental Fourth, the constitutional issues raisedare better decided by this
importance.74 In these cases, the imminence and clarity of the threat court. In Drilon v. Lim,78 this court held that:
to fundamental constitutional rights outweigh the necessity for . . . it will be prudent for such courts, if only out of a becoming
prudence. The doctrine relating to constitutional issues of modesty, to defer to the higher judgmentof this Court in the
consideration of its validity, which is better determined after a direct resort to this court. The lack of other sufficient remedies in the
thorough deliberation by a collegiate body and with the concurrence course of law alone is sufficient ground to allow direct resort to this
of the majority of those who participated in its discussion.79 (Citation court.
omitted) Eighth, the petition includes questionsthat are "dictated by public
In this case, it is this court, with its constitutionally enshrined judicial welfare and the advancement of public policy, or demanded by the
power, that can rule with finality on whether COMELEC committed broader interest of justice, or the orders complained of were found
grave abuse of discretion or performed acts contrary to the to be patent nullities, or the appeal was consideredas clearly an
Constitution through the assailed issuances. inappropriate remedy."82 In the past, questions similar to these
Fifth, the time element presented in this case cannot be ignored. This which this court ruled on immediately despite the doctrine of
case was filed during the 2013 election period. Although the elections hierarchy of courts included citizens’ right to bear arms,83
have already been concluded, future cases may be filed that government contracts involving modernization of voters’ registration
necessitate urgency in its resolution. Exigency in certain situations lists,84 and the status and existence of a public office.85
would qualify as an exception for direct resort to this court. This case also poses a question of similar, if not greater import.
Sixth, the filed petition reviews the act of a constitutional organ. Hence, a direct action to this court is permitted.
COMELEC is a constitutional body. In Albano v. Arranz,80 cited by It is not, however, necessary that all of these exceptions must occur
petitioners, this court held that "[i]t is easy to realize the chaos that at the same time to justify a direct resort to this court. While
would ensue if the Court of First Instance ofeach and every province generally, the hierarchy of courts is respected, the present case falls
were [to] arrogate itself the power to disregard, suspend, or under the recognized exceptions and, as such, may be resolved by
contradict any order of the Commission on Elections: that this court directly.
constitutional body would be speedily reduced to impotence."81 I.D
In this case, if petitioners sought to annul the actions of COMELEC The concept of a political question
through pursuing remedies with the lower courts, any ruling on their Respondents argue further that the size limitation and its
part would not have been binding for other citizens whom reasonableness is a political question, hence not within the ambit of
respondents may place in the same situation. Besides, thiscourt this court’s power of review. They cite Justice Vitug’s separate
affords great respect to the Constitution and the powers and duties opinion in Osmeña v. COMELEC86 to support their position:
imposed upon COMELEC. Hence, a ruling by this court would be in It might be worth mentioning that Section 26, Article II, of the
the best interest of respondents, in order that their actions may be Constitution also states that the "State shall guarantee equal access
guided accordingly in the future. to opportunities for public service, and prohibit political dynasties as
Seventh, petitioners rightly claim that they had no other plain, may be defined by law." I see neither Article IX (C)(4) nor Section 26,
speedy, and adequate remedy in the ordinary course of law that Article II, of the Constitution to be all that adversarial or irreconcilably
could free them from the injurious effects of respondents’ acts in inconsistent with the right of free expression. In any event, the latter,
violation of their right to freedom of expression. being one of general application, must yield to the specific demands
In this case, the repercussions of the assailed issuances on this basic of the Constitution. The freedom of expression concededly holds, it
right constitute an exceptionally compelling reason to justify the
is true, a vantage point in hierarchy of constitutionally-enshrined discussion of factual circumstances, broadly construed in order to
rights but, like all fundamental rights, it is not without limitations. allow for general application by the executive branch. Thus, the
The case is not about a fight between the "rich" and the "poor" or creation of the law is not limited by particular and specific facts that
between the "powerful" and the "weak" in our society but it is to me affect the rights of certain individuals, per se.
a genuine attempt on the part of Congress and the Commission on Courts, on the other hand, rule on adversarial positions based on
Elections to ensure that all candidates are given an equal chance to existing facts established on a specific case-to-case basis, where
media coverage and thereby be equally perceived as giving real life parties affected by the legal provision seek the courts’ understanding
to the candidates’ right of free expression rather than being viewed of the law.
as an undue restriction of that freedom. The wisdom in the The complementary nature of the political and judicial branches of
enactment of the law, i.e., that which the legislature deems to be government is essential in order to ensure that the rights of the
best in giving life to the Constitutional mandate, is not for the Court general public are upheld at all times. In order to preserve this
to question; it is a matter that lies beyond the normal prerogatives of balance, branches of government must afford due respectand
the Court to pass upon.87 deference for the duties and functions constitutionally delegated to
This separate opinion is cogent for the purpose it was said. But it is the other. Courts cannot rush to invalidate a law or rule. Prudence
not in point in this case. dictates that we are careful not to veto political acts unless we can
The present petition does not involve a dispute between the rich and craft doctrine narrowly tailored to the circumstances of the case.
poor, or the powerful and weak, on their equal opportunities for The case before this court does not call for the exercise of prudence
media coverage of candidates and their right to freedom of or modesty. There is no political question. It can be acted upon by
expression. This case concerns the right of petitioners, who are non- this court through the expanded jurisdiction granted to this court
candidates, to post the tarpaulin in their private property, asan through Article VIII, Section 1 of the Constitution.
exercise of their right of free expression. Despite the invocation of A political question arises in constitutional issues relating to the
the political question doctrine by respondents, this court is not powers or competence of different agencies and departments of the
proscribed from deciding on the merits of this case. executive or those of the legislature. The political question doctrine
In Tañada v. Cuenco,88 this court previously elaborated on the is used as a defense when the petition asks this court to nullify certain
concept of what constitutes a political question: acts that are exclusively within the domain of their respective
What is generally meant, when it is said that a question is political, competencies, as provided by the Constitution or the law. In such
and not judicial, is that it is a matter which is to be exercised by the situation, presumptively, this court should act with deference. It will
people in their primary political capacity, or that it has been decline to void an act unless the exercise of that power was so
specifically delegated to some other department or particular officer capricious and arbitrary so as to amount to grave abuse of discretion.
of the government, withdiscretionary power to act.89 (Emphasis The concept of a political question, however, never precludes judicial
omitted) review when the act of a constitutional organ infringes upon a
It is not for this court to rehearse and re-enact political debates on fundamental individual or collective right. Even assuming arguendo
what the text of the law should be. In political forums, particularly that the COMELEC did have the discretion to choose the manner of
the legislature, the creation of the textof the law is based on a general
regulation of the tarpaulin in question, it cannot do so by abridging President’s use of his power to call out the armed forces to prevent
the fundamental right to expression. and suppress lawless violence.
Marcos v. Manglapus90 limited the use of the political question In Estrada v. Desierto,96 this court ruled that the legal question as to
doctrine: whether a former President resigned was not a political question
When political questions are involved, the Constitution limits the even if the consequences would be to ascertain the political
determination to whether or not there has been a grave abuse of legitimacy of a successor President.
discretion amounting to lack or excess of jurisdiction on the part of Many constitutional cases arise from political crises. The actors in
the official whose action is being questioned. If grave abuse is not such crises may use the resolution of constitutional issues as
established, the Court will not substitute its judgment for that of the leverage. But the expanded jurisdiction of this court now mandates a
official concerned and decide a matter which by its nature or by law duty for it to exercise its power of judicial review expanding on
is for the latter alone to decide.91 principles that may avert catastrophe or resolve social conflict.
How this court has chosen to address the political question doctrine This court’s understanding of the political question has not been
has undergone an evolution since the timethat it had been first static or unbending. In Llamas v. Executive Secretary Oscar Orbos,97
invoked in Marcos v. Manglapus. Increasingly, this court has taken this court held:
the historical and social context of the case and the relevance of While it is true that courts cannot inquire into the manner in which
pronouncements of carefully and narrowly tailored constitutional the President's discretionary powers are exercised or into the
doctrines. This trend was followed in cases such as Daza v. Singson92 wisdom for its exercise, it is also a settled rule that when the issue
and Coseteng v. Mitra Jr.93 involved concerns the validity of such discretionary powers or
Daza and Coseteng involved a question as to the application of Article whether said powers are within the limits prescribed by the
VI, Section 18 of the 1987 Constitution involving the removal of Constitution, We will not decline to exercise our power of judicial
petitioners from the Commission on Appointments. In times past, review. And such review does not constitute a modification or
this would have involved a quint essentially political question as it correction of the act of the President, nor does it constitute
related to the dominance of political parties in Congress. However, in interference with the functions of the President.98
these cases, this court exercised its power of judicial review noting The concept of judicial power in relation to the concept of the
that the requirement of interpreting the constitutional provision political question was discussed most extensively in Francisco v.
involved the legality and not the wisdom of a manner by which a HRET.99 In this case, the House of Representatives arguedthat the
constitutional duty or power was exercised. This approach was again question of the validity of the second impeachment complaint that
reiterated in Defensor Santiago v. Guingona, Jr.94 was filed against former Chief Justice Hilario Davide was a political
In Integrated Bar of the Philippines v. Zamora,95 this court declared question beyond the ambit of this court. Former Chief Justice
again that the possible existence ofa political question did not bar an Reynato Puno elaborated on this concept in his concurring and
examination of whether the exercise of discretion was done with dissenting opinion:
grave abuse of discretion. In that case, this court ruled on the To be sure, the force to impugn the jurisdiction of this Court becomes
question of whether there was grave abuse of discretion in the more feeble in light of the new Constitution which expanded the
definition of judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally jurisdiction conferred upon us that now covers, in proper cases, even
demandable and enforceable, and to determine whether or not there the political question.x x x (Emphasis and italics supplied.)
has been a grave abuse of discretion amounting to lack or excess of ....
jurisdiction on the part of any branch or instrumentality of the In our jurisdiction, the determination of whether an issue involves a
Government." As well observed by retired Justice Isagani Cruz, this truly political and non-justiciable question lies in the answer to the
expanded definition of judicial power considerably constricted the question of whether there are constitutionally imposed limits on
scope of political question. He opined that the language luminously powers or functions conferred upon political bodies. If there are,
suggests that this duty (and power) is available even against the then our courts are duty-bound to examine whether the branch or
executive and legislative departments including the President and instrumentality of the government properly acted within such
the Congress, in the exercise of their discretionary powers.100 limits.101 (Citations omitted)
(Emphasis in the original, citations omitted) As stated in Francisco, a political question will not be considered
Francisco also provides the cases which show the evolution of the justiciable if there are no constitutionally imposed limits on powers
political question, as applied in the following cases: or functions conferred upon political bodies. Hence, the existence of
In Marcos v. Manglapus, this Court, speaking through Madame constitutionally imposed limits justifies subjecting the official actions
Justice Irene Cortes, held: The present Constitution limits resort to of the body to the scrutiny and review of this court.
the political question doctrine and broadens the scope of judicial In this case, the Bill of Rights gives the utmost deference to the right
inquiry into areas which the Court,under previous constitutions, to free speech. Any instance that this right may be abridged demands
would have normally left to the political departments to decide. x x x judicial scrutiny. It does not fall squarely into any doubt that a
In Bengzon v. Senate Blue Ribbon Committee, through Justice political question brings.
Teodoro Padilla, this Court declared: I.E
The "allocation of constitutional boundaries" is a task that this Court Exhaustion of administrative remedies
must perform under the Constitution. Moreover, as held in a recent Respondents allege that petitioners violated the principle of
case, "(t)he political question doctrine neither interposes an obstacle exhaustion of administrative remedies. Respondents insist that
to judicial determination of the rival claims. The jurisdiction to delimit petitioners should have first brought the matter to the COMELEC En
constitutional boundaries has been given to this Court. It cannot Banc or any of its divisions.102
abdicate that obligation mandated by the 1987 Constitution, Respondents point out that petitioners failed to comply with the
although said provision by no means does away with the applicability requirement in Rule 65 that "there is no appeal, or any plain, speedy,
of the principle in appropriate cases." (Emphasis and italics supplied) and adequate remedy in the ordinary course of law."103 They add
And in Daza v. Singson, speaking through Justice Isagani Cruz, this that the proper venue to assail the validity of the assailed issuances
Court ruled: was in the course of an administrative hearing to be conducted by
In the case now before us, the jurisdictional objection becomes even COMELEC.104 In the event that an election offense is filed against
less tenable and decisive. The reason is that, even if we were to petitioners for posting the tarpaulin, they claim that petitioners
assume that the issue presented before us was political in nature, we should resort to the remedies prescribed in Rule 34 of the COMELEC
would still not be precluded from resolving it under the expanded Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper administrative agency concerned; (e) when there is irreparable
in this case. injury; (f) when the respondent is a department secretary whose acts
Despite the alleged non-exhaustion of administrative remedies, it is as analter ego of the President bear the implied and assumed
clear that the controversy is already ripe for adjudication. Ripeness is approval of the latter; (g) when to require exhaustion of
the "prerequisite that something had by then been accomplished or administrative remedies would be unreasonable; (h) when it would
performed by either branch [or in this case, organ of government] amount to a nullification of a claim; (i) when the subject matter is a
before a court may come into the picture."106 private land in land case proceedings; (j) whenthe rule does not
Petitioners’ exercise of their rightto speech, given the message and provide a plain, speedy and adequate remedy; or (k) when there are
their medium, had understandable relevance especially during the circumstances indicating the urgency of judicial intervention."111
elections. COMELEC’s letter threatening the filing of the election (Emphasis supplied, citation omitted)
offense against petitioners is already an actionable infringement of The circumstances emphasized are squarely applicable with the
this right. The impending threat of criminal litigation is enough to present case. First, petitioners allegethat the assailed issuances
curtail petitioners’ speech. violated their right to freedom of expression and the principle of
In the context of this case, exhaustion of their administrative separation of church and state. This is a purely legal question.
remedies as COMELEC suggested in their pleadings prolongs the Second, the circumstances of the present case indicate the urgency
violation of their freedom of speech. of judicial intervention considering the issue then on the RH Law as
Political speech enjoys preferred protection within our constitutional well as the upcoming elections. Thus, to require the exhaustion of
order. In Chavez v. Gonzales,107 Justice Carpio in a separate opinion administrative remedies in this case would be unreasonable.
emphasized: "[i]f everthere is a hierarchy of protected expressions, Time and again, we have held that this court "has the power to relax
political expression would occupy the highest rank, and among or suspend the rules or to except a case from their operation when
different kinds of political expression, the subject of fair and honest compelling reasons so warrant, or whenthe purpose of justice
elections would be at the top."108 Sovereignty resides in the requires it, [and when] [w]hat constitutes [as] good and sufficient
people.109 Political speech is a direct exercise of the sovereignty. The cause that will merit suspension of the rules is discretionary upon the
principle of exhaustion of administrative remedies yields in order to court".112 Certainly, this case of first impression where COMELEC
protect this fundamental right. has threatenedto prosecute private parties who seek to participate
Even assuming that the principle of exhaustion of administrative in the elections by calling attention to issues they want debated by
remedies is applicable, the current controversy is within the the publicin the manner they feel would be effective is one of those
exceptions to the principle. In Chua v. Ang,110 this court held: cases.
On the other hand, prior exhaustion of administrative remedies may II
be dispensed with and judicial action may be validly resorted to SUBSTANTIVE ISSUES
immediately: (a) when there is a violation of due process; (b) when II.A
the issue involved is purely a legal question; (c) when the COMELEC had no legal basis to regulate expressions made by private
administrative action is patently illegal amounting to lack or excess citizens
of jurisdiction; (d) when there is estoppel on the part ofthe
Respondents cite the Constitution, laws, and jurisprudence to nor the candidates[,]"120 thus, their right to expression during this
support their position that they had the power to regulate the period may not be regulated by COMELEC.121
tarpaulin.113 However, all of these provisions pertain to candidates Similar to the media, petitioners in the case at bar are neither
and political parties. Petitioners are not candidates. Neither do franchise holders nor candidates. II.A.2
theybelong to any political party. COMELEC does not have the Respondents likewise cite Article IX-C, Section 2(7) of the
authority to regulate the enjoyment of the preferred right to freedom Constitution as follows:122
of expression exercised by a non-candidate in this case. Sec. 2. The Commission on Elections shall exercise the following
II.A.1 powers and functions:
First, respondents cite Article IX-C, Section 4 of the Constitution, ....
which provides: (7) Recommend to the Congress effective measures to minimize
Section 4. The Commission may,during the election period, supervise election spending, including limitation of places where propaganda
or regulate the enjoyment or utilization of all franchises or permits materials shall be posted, and to prevent and penalize all forms of
for the operation of transportation and other public utilities, media election frauds, offenses, malpractices, and nuisance candidates.
of communication or information, all grants, special privileges, or (Emphasis supplied) Based on the enumeration made on actsthat
concessions granted by the Government or any subdivision, agency, may be penalized, it will be inferred that this provision only affects
or instrumentality thereof, including any government-owned or candidates.
controlled corporation or its subsidiary. Such supervision or Petitioners assail the "Notice to Remove Campaign Materials" issued
regulation shall aim to ensure equal opportunity, time, and space, by COMELEC. This was followed bythe assailed letter regarding the
and the right to reply, including reasonable, equal rates therefor, for "election propaganda material posted on the church vicinity
public information campaigns and forums among candidates in promoting for or against the candidates and party-list groups. . . ."123
connection with the objective of holding free, orderly, honest, Section 9 of the Fair Election Act124 on the posting of campaign
peaceful, and credible elections.114 (Emphasis supplied) materials only mentions "parties" and "candidates":
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize
during the plebiscite for the creation of the Cordillera Autonomous political parties and party-list groups to erect common poster areas
Region.116 Columnist Pablito V. Sanidad questioned the provision for their candidates in not more than ten (10) public places such as
prohibiting journalists from covering plebiscite issues on the day plazas, markets, barangay centers and the like, wherein candidates
before and on plebiscite day.117 Sanidad argued that the prohibition can post, display or exhibit election propaganda: Provided, That the
was a violation of the "constitutional guarantees of the freedom of size ofthe poster areas shall not exceed twelve (12) by sixteen (16)
expression and of the press. . . ."118 We held that the "evil sought to feet or its equivalent. Independent candidates with no political
be prevented by this provision is the possibility that a franchise parties may likewise be authorized to erect common poster areas in
holder may favor or give any undue advantage to a candidate in not more than ten (10) public places, the size of which shall not
terms of advertising space or radio or television time."119 This court exceed four (4) by six (6) feet or its equivalent. Candidates may post
found that "[m]edia practitioners exercising their freedom of any lawful propaganda material in private places with the consent of
expression during plebiscite periods are neither the franchise holders the owner thereof, and in public places or property which shall be
allocated equitably and impartially among the candidates. (Emphasis 6 of COMELEC Resolution No. 9615 provides for a similar wording.
supplied) These provisions show that election propaganda refers to matter
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and done by or on behalf of and in coordination with candidates and
regulations implementing the Fair Election Act, provides as follows: political parties. Some level of coordination with the candidates and
SECTION 17. Posting of Campaign Materials. - Parties and candidates political parties for whom the election propaganda are released
may post any lawful campaign material in: would ensure that these candidates and political parties maintain
a. Authorized common poster areasin public places subject to the within the authorized expenses limitation.
requirements and/or limitations set forth in the next following The tarpaulin was not paid for byany candidate or political party.125
section; and There was no allegation that petitioners coordinated with any of the
b. Private places provided it has the consent of the owner thereof. persons named in the tarpaulin regarding its posting. On the other
The posting of campaign materials in public places outside of the hand, petitioners posted the tarpaulin as part of their advocacy
designated common poster areas and those enumerated under against the RH Law. Respondents also cite National Press Club v.
Section 7 (g) of these Rules and the like is prohibited. Persons posting COMELEC126 in arguing that its regulatory power under the
the same shall be liable together with the candidates and other Constitution, to some extent, set a limit on the right to free speech
persons who caused the posting. It will be presumed that the during election period.127
candidates and parties caused the posting of campaign materials National Press Club involved the prohibition on the sale and donation
outside the common poster areas if they do not remove the same of space and time for political advertisements, limiting political
within three (3) days from notice which shall be issued by the Election advertisements to COMELEC-designated space and time. This case
Officer of the city or municipality where the unlawful election was brought by representatives of mass media and two candidates
propaganda are posted or displayed. for office in the 1992 elections. They argued that the prohibition on
Members of the PNP and other law enforcement agencies called the sale and donation of space and time for political advertisements
upon by the Election Officeror other officials of the COMELEC shall is tantamount to censorship, which necessarily infringes on the
apprehend the violators caught in the act, and file the appropriate freedom of speech of the candidates.128
charges against them. (Emphasis supplied) This court upheld the constitutionality of the COMELEC prohibition in
Respondents considered the tarpaulin as a campaign material in their National Press Club. However, this case does not apply as most of the
issuances. The above provisions regulating the posting of campaign petitioners were electoral candidates, unlike petitioners in the
materials only apply to candidates and political parties, and instant case. Moreover, the subject matter of National Press Club,
petitioners are neither of the two. Section 11(b) of Republic Act No. 6646,129 only refers to a particular
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" kind of media such as newspapers, radio broadcasting, or
also states that these are "allowed for all registered political parties, television.130 Justice Feliciano emphasized that the provision did not
national, regional, sectoral parties or organizations participating infringe upon the right of reporters or broadcasters to air their
under the party-list elections and for all bona fide candidates seeking commentaries and opinions regarding the candidates, their
national and local elective positions subject to the limitation on qualifications, and program for government. Compared to
authorized expenses of candidates and political parties. . . ." Section Sanidadwherein the columnists lost their ability to give their
commentary on the issues involving the plebiscite, National Press criticisms against probable candidates proposed to be nominated in
Clubdoes not involve the same infringement. a forthcoming political party convention shall not be construed as
In the case at bar, petitioners lost their ability to give a commentary part of any election campaign or partisan political activity
on the candidates for the 2013 national elections because of the contemplated under this Article. (Emphasis supplied)
COMELEC notice and letter. It was not merelya regulation on the True, there is no mention whether election campaign is limited only
campaigns of candidates vying for public office. Thus, National Press to the candidates and political parties themselves. The focus of the
Clubdoes not apply to this case. definition is that the act must be "designed to promote the election
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as or defeat of a particular candidate or candidates to a public office."
the Omnibus Election Code, defines an"election campaign" as In this case, the tarpaulin contains speech on a matter of public
follows: concern, that is, a statement of either appreciation or criticism on
.... votes made in the passing of the RH law. Thus, petitioners invoke
(b) The term "election campaign" or "partisan political activity" refers their right to freedom of expression.
to an act designed to promote the election or defeat of a particular II.B
candidate or candidates to a public office which shall include: The violation of the constitutional right
(1) Forming organizations, associations, clubs, committees or other to freedom of speech and expression
groups of persons for the purpose of soliciting votes and/or Petitioners contend that the assailed notice and letter for the
undertaking any campaign for or against a candidate; removal of the tarpaulin violate their fundamental right to freedom
(2) Holding political caucuses, conferences, meetings, rallies, of expression.
parades, or other similar assemblies, for the purpose of soliciting On the other hand, respondents contend that the tarpaulin is an
votes and/or undertaking any campaign or propaganda for or against election propaganda subject to their regulation pursuant to their
a candidate; mandate under Article IX-C, Section 4 of the Constitution. Thus, the
(3) Making speeches, announcements or commentaries, or holding assailed notice and letter ordering itsremoval for being oversized are
interviews for or against the election of any candidate for public valid and constitutional.131
office; II.B.1
(4) Publishing or distributing campaign literature or materials Fundamental to the consideration of this issue is Article III, Section 4
designed to support or oppose the election of any candidate; or of the Constitution:
(5) Directly or indirectly soliciting votes, pledges or support for or Section 4. No law shall be passed abridging the freedom of speech, of
against a candidate. expression, or of the press, or the right of the people peaceably to
The foregoing enumerated acts ifperformed for the purpose of assemble and petition the government for redress of grievances.132
enhancing the chances of aspirants for nomination for candidacy to No law. . .
a public office by a political party, aggroupment, or coalition of While it is true that the present petition assails not a law but an
parties shall not be considered as election campaign or partisan opinion by the COMELEC Law Department, this court has applied
election activity. Public expressions or opinions or discussions of Article III, Section 4 of the Constitution even to governmental acts.
probable issues in a forthcoming electionor on attributes of or
In Primicias v. Fugoso,133 respondent Mayor applied by analogy abridging the freedom of speech." I would like to recommend to the
Section 1119 of the Revised Ordinances of 1927 of Manila for the Committee the change of the word "speech" to EXPRESSION; or if
public meeting and assembly organized by petitioner Primicias.134 not, add the words AND EXPRESSION after the word "speech,"
Section 1119 requires a Mayor’s permit for the use of streets and because it is more expansive, it has a wider scope, and it would refer
public places for purposes such as athletic games, sports, or to means of expression other than speech.
celebration of national holidays.135 What was questioned was not a THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee
law but the Mayor’s refusal to issue a permit for the holding of say?
petitioner’s public meeting.136 Nevertheless, this court recognized FR. BERNAS: "Expression" is more broad than speech. We accept it.
the constitutional right to freedom of speech, to peaceful assembly MR. BROCKA: Thank you.
and to petition for redress of grievances, albeit not absolute,137 and THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
the petition for mandamus to compel respondent Mayor to issue the FR. BERNAS: Yes.
permit was granted.138 THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection?
In ABS-CBN v. COMELEC, what was assailed was not a law but (Silence) The Chair hears none; the amendment is approved.
COMELEC En Banc Resolution No. 98-1419 where the COMELEC FR. BERNAS: So, that provision will now read: "No law shall be passed
resolved to approve the issuance of a restraining order to stop ABS- abridging the freedom of speech, expression or of the press . . . ."141
CBN from conducting exit surveys.139 The right to freedom of Speech may be said to be inextricably linked to freedom itself as
expression was similarly upheld in this case and, consequently, the "[t]he right to think is the beginning of freedom, and speech must be
assailed resolution was nullified and set aside.140 protected from the government because speech is the beginning of
. . . shall be passed abridging. . . thought."142
All regulations will have an impact directly or indirectly on II.B.2
expression. The prohibition against the abridgment of speech should Communication is an essential outcome of protected speech.143
not mean an absolute prohibition against regulation. The primary and Communication exists when "(1) a speaker, seeking to signal others,
incidental burden on speech must be weighed against a compelling uses conventional actions because he orshe reasonably believes that
state interest clearly allowed in the Constitution. The test depends such actions will be taken by the audience in the manner intended;
on the relevant theory of speech implicit in the kind of society framed and (2) the audience so takes the actions."144 "[I]n communicative
by our Constitution. action[,] the hearer may respond to the claims by . . . either accepting
. . . of expression. . . the speech act’s claims or opposing them with criticism or requests
Our Constitution has also explicitly included the freedom of for justification."145
expression, separate and in addition to the freedom of speech and of Speech is not limited to vocal communication. "[C]onduct is treated
the press provided in the US Constitution. The word "expression" was as a form of speech sometimes referred to as ‘symbolic
added in the 1987 Constitution by Commissioner Brocka for having a speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements
wider scope: are combined in the same course of conduct,’ the ‘communicative
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. element’ of the conduct may be ‘sufficient to bring into play the [right
On Section 9, page 2, line 29, it says: "No law shall be passed to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners
continuum of speech from utterances made to conduct enacted, and objected to the classification of the motion picture "Kapit sa Patalim"
even to inaction itself as a symbolic manner of communication. as "For Adults Only." They contend that the classification "is without
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 legal and factual basis and is exercised as impermissible restraint of
students who were members of the religious sect Jehovah’s artistic expression."153 This court recognized that "[m]otion pictures
Witnesses were to be expelled from school for refusing to salute the are important both as a medium for the communication of ideas and
flag, sing the national anthem, and recite the patriotic pledge.149 In the expression of the artistic impulse."154 It adds that "every
his concurring opinion, Justice Cruz discussed how the salute is a writer,actor, or producer, no matter what medium of expression he
symbolic manner of communication and a valid form of may use, should be freed from the censor."155 This court found that
expression.150 He adds that freedom of speech includes even the "[the Board’s] perception of what constitutes obscenity appears to
right to be silent: be unduly restrictive."156 However, the petition was dismissed solely
Freedom of speech includes the right to be silent. Aptly has it been on the ground that there were not enough votes for a ruling of grave
said that the Bill of Rights that guarantees to the individual the liberty abuse of discretion in the classification made by the Board.157
to utter what is in his mind also guarantees to him the liberty not to II.B.3
utter what is not in his mind. The salute is a symbolic manner of Size does matter
communication that conveys its messageas clearly as the written or The form of expression is just as important as the information
spoken word. As a valid form of expression, it cannot be compelled conveyed that it forms part of the expression. The present case is in
any more than it can be prohibited in the face of valid religious point.
objections like those raised in this petition. To impose it on the It is easy to discern why size matters.
petitioners is to deny them the right not to speak when their religion First, it enhances efficiency in communication. A larger tarpaulin
bids them to be silent. This coercion of conscience has no place in the allows larger fonts which make it easier to view its messages from
free society. greater distances. Furthermore, a larger tarpaulin makes it easier for
The democratic system provides for the accommodation of diverse passengers inside moving vehicles to read its content. Compared
ideas, including the unconventional and even the bizarre or eccentric. with the pedestrians, the passengers inside moving vehicles have
The will of the majority prevails, but it cannot regiment thought by lesser time to view the content of a tarpaulin. The larger the fonts
prescribing the recitation by rote of its opinions or proscribing the and images, the greater the probability that it will catch their
assertion of unorthodox or unpopular views as inthis case. The attention and, thus, the greater the possibility that they will
conscientious objections of the petitioners, no less than the understand its message.
impatience of those who disagree with them, are protected by the Second, the size of the tarpaulin may underscore the importance of
Constitution. The State cannot make the individual speak when the the message to the reader. From an ordinary person’s perspective,
soul within rebels.151 those who post their messages in larger fonts care more about their
Even before freedom "of expression" was included in Article III, message than those who carry their messages in smaller media. The
Section 4 of the present Constitution,this court has applied its perceived importance given by the speakers, in this case petitioners,
precedent version to expressions other than verbal utterances. to their cause is also part of the message. The effectivity of
communication sometimes relies on the emphasis put by the First, this relates to the right ofthe people to participate in public
speakers and onthe credibility of the speakers themselves. Certainly, affairs, including the right to criticize government actions.
larger segments of the public may tend to be more convinced of the Proponents of the political theory on "deliberative democracy"
point made by authoritative figures when they make the effort to submit that "substantial, open, [and] ethical dialogue isa critical, and
emphasize their messages. indeed defining, feature of a good polity."159 This theory may be
Third, larger spaces allow for more messages. Larger spaces, considered broad, but it definitely "includes [a] collective decision
therefore, may translate to more opportunities to amplify, explain, making with the participation of all who will beaffected by the
and argue points which the speakers might want to communicate. decision."160 It anchors on the principle that the cornerstone of
Rather than simply placing the names and images of political every democracy is that sovereignty resides in the people.161 To
candidates and an expression of support, larger spaces can allow for ensure order in running the state’s affairs, sovereign powers were
brief but memorable presentations of the candidates’ platforms for delegated and individuals would be elected or nominated in key
governance. Larger spaces allow for more precise inceptions of ideas, government positions to represent the people. On this note, the
catalyze reactions to advocacies, and contribute more to a more theory on deliberative democracy may evolve to the right of the
educated and reasoned electorate. A more educated electorate will people to make government accountable. Necessarily, this includes
increase the possibilities of both good governance and accountability the right of the people to criticize acts made pursuant to
in our government. governmental functions.
These points become more salient when it is the electorate, not the Speech that promotes dialogue on publicaffairs, or airs out
candidates or the political parties, that speaks. Too often, the terms grievances and political discontent, should thus be protected and
of public discussion during elections are framed and kept hostage by encouraged.
brief and catchy but meaningless sound bites extolling the character Borrowing the words of Justice Brandeis, "it is hazardous to
of the candidate. Worse, elections sideline political arguments and discourage thought, hope and imagination; that fear breeds
privilege the endorsement by celebrities. Rather than provide repression; that repression breeds hate; that hate menaces stable
obstacles to their speech, government should in fact encourage it. government; that the path of safety lies in the opportunity to discuss
Between the candidates and the electorate, the latter have the better freely supposed grievances and proposed remedies."162
incentive to demand discussion of the more important issues. In this jurisdiction, this court held that "[t]he interest of society and
Between the candidates and the electorate, the former have better the maintenance of good government demand a full discussion of
incentives to avoid difficult political standpoints and instead focus on public affairs."163 This court has, thus, adopted the principle that
appearances and empty promises. "debate on public issues should be uninhibited, robust,and wide
Large tarpaulins, therefore, are not analogous to time and place.158 open . . . [including even] unpleasantly sharp attacks on government
They are fundamentally part of expression protected under Article III, and public officials."164
Section 4 of the Constitution. Second, free speech should be encouraged under the concept of a
II.B.4 market place of ideas. This theory was articulated by Justice Holmes
There are several theories and schools of thought that strengthen the in that "the ultimate good desired is better reached by [the] free
need to protect the basic right to freedom of expression. trade in ideas:"165
When men have realized that time has upset many fighting faiths, sanctions on erring public officers and employees.172 (Emphasis
they may come to believe even more than they believe the very supplied)
foundations of their own conduct that the ultimate good desired is Fourth, expression is a marker for group identity. For one,
better reached by free trade in ideas - that the best test of truth is "[v]oluntary associations perform [an] important democratic role [in
the power of the thought to get itself accepted in the competition of providing] forums for the development of civil skills, for deliberation,
the market, and that truth is the only ground upon which their wishes and for the formation of identity and community spirit[,] [and] are
safely can be carried out.166 largely immune from [any] governmental interference."173 They also
The way it works, the exposure to the ideas of others allows one to "provide a buffer between individuals and the state - a free space for
"consider, test, and develop their own conclusions."167 A free, open, the development of individual personality, distinct group identity,
and dynamic market place of ideas is constantly shaping new ones. and dissident ideas - and a potential source of opposition to the
This promotes both stability and change where recurring points may state."174 Free speech must be protected as the vehicle to find those
crystallize and weak ones may develop. Of course, free speech is who have similar and shared values and ideals, to join together and
more than the right to approve existing political beliefs and economic forward common goals.
arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] Fifth, the Bill of Rights, free speech included, is supposed to "protect
freedom for the thought that we hate, no less than for the thought individuals and minorities against majoritarian abuses perpetrated
that agrees with us."168 In fact, free speech may "best serve its high through [the] framework [of democratic governance]."175 Federalist
purpose when it induces a condition of unrest, creates dissatisfaction framers led by James Madison were concerned about two potentially
with conditions as they are, or even stirs people to anger."169 It is in vulnerable groups: "the citizenry at large - majorities - who might be
this context that we should guard against any curtailment of the tyrannized or plundered by despotic federal officials"176 and the
people’s right to participate in the free trade of ideas. minorities who may be oppressed by "dominant factions of the
Third, free speech involves self-expression that enhances human electorate [that] capture [the] government for their own selfish
dignity. This right is "a means of assuring individual self- ends[.]"177 According to Madison, "[i]t is of great importance in a
fulfillment,"170 among others. In Philippine Blooming Mills republic not only to guard the society against the oppression of its
Employees Organization v. Philippine Blooming Mills Co., Inc,171 this rulers, but to guard one part of the society against the injustice of the
court discussed as follows: other part."178 We should strive to ensure that free speech is
The rights of free expression, free assembly and petition, are not only protected especially in light of any potential oppression against those
civil rights but also political rights essential to man's enjoyment of his who find themselves in the fringes on public issues.
life, to his happiness and to his full and complete fulfillment.Thru Lastly, free speech must be protected under the safety valve
these freedoms the citizens can participate not merely in the periodic theory.179 This provides that "nonviolent manifestations of dissent
establishment of the government through their suffrage but also in reduce the likelihood of violence[.]"180 "[A] dam about to burst . . .
the administration of public affairs as well as in the discipline of resulting in the ‘banking up of a menacing flood of sullen anger
abusive public officers. The citizen is accorded these rights so that he behind the walls of restriction’"181 has been used to describe the
can appeal to the appropriate governmental officers or agencies for effect of repressing nonviolent outlets.182 In order to avoid this
redress and protection as well as for the imposition of the lawful situation and prevent people from resorting to violence, there is a
need for peaceful methods in making passionate dissent. This On the other hand, petitioners invoke their "constitutional right to
includes "free expression and political participation"183 in that they communicate their opinions, views and beliefs about issues and
can "vote for candidates who share their views, petition their candidates."188 They argue that the tarpaulin was their statement of
legislatures to [make or] change laws, . . . distribute literature alerting approval and appreciation of the named public officials’ act of voting
other citizens of their concerns[,]"184 and conduct peaceful rallies against the RH Law, and their criticism toward those who voted in its
and other similar acts.185 Free speech must, thus, be protected as a favor.189 It was "part of their advocacy campaign against the RH
peaceful means of achieving one’s goal, considering the possibility Law,"190 which was not paid for by any candidate or political
that repression of nonviolent dissent may spill over to violent means party.191 Thus, "the questioned orders which . . . effectively
just to drive a point. restrain[ed] and curtail[ed] [their] freedom of expression should be
II.B.5 declared unconstitutional and void."192
Every citizen’s expression with political consequences enjoys a high This court has held free speech and other intellectual freedoms as
degree of protection. Respondents argue that the tarpaulinis election "highly ranked in our scheme of constitutional values."193 These
propaganda, being petitioners’ way of endorsing candidates who rights enjoy precedence and primacy.194 In Philippine Blooming
voted against the RH Law and rejecting those who voted for it.186 As Mills, this court discussed the preferred position occupied by
such, it is subject to regulation by COMELEC under its constitutional freedom of expression:
mandate.187 Election propaganda is defined under Section 1(4) of Property and property rights can belost thru prescription; but human
COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . . . rights are imprescriptible. If human rights are extinguished by the
.... passage of time, then the Bill of Rights is a useless attempt to limit
4. The term "political advertisement" or "election propaganda" refers the power of government and ceases to be an efficacious shield
to any matter broadcasted, published, printed, displayed or against the tyranny of officials, of majorities, ofthe influential and
exhibited, in any medium, which contain the name, image, logo, powerful, and of oligarchs - political, economic or otherwise.
brand, insignia, color motif, initials, and other symbol or graphic In the hierarchy of civil liberties, the rights of free expression and of
representation that is capable of being associated with a candidate assembly occupy a preferred position as they are essential to the
or party, and is intended to draw the attention of the public or a preservation and vitality of our civil and political institutions; and
segment thereof to promote or oppose, directly or indirectly, the such priority "gives these liberties the sanctity and the sanction not
election of the said candidate or candidates to a public office. In permitting dubious intrusions."195 (Citations omitted)
broadcast media, political advertisements may take the form of This primordial right calls for utmost respect, more so "when what
spots, appearances on TV shows and radio programs, live or taped may be curtailed is the dissemination of information to make more
announcements, teasers, and other forms of advertising messages or meaningful the equally vital right of suffrage."196 A similar idea
announcements used by commercial advertisers. Political advertising appeared in our jurisprudence as early as 1969, which was Justice
includes matters, not falling within the scope of personal opinion, Barredo’s concurring and dissenting opinion in Gonzales v.
that appear on any Internet website, including, but not limited to, COMELEC:197
social networks, blogging sites, and micro-blogging sites, in return for I like to reiterate over and over, for it seems this is the fundamental
consideration, or otherwise capable of pecuniary estimation. point others miss, that genuine democracy thrives only where the
power and right of the people toelect the men to whom they would interests of one type of speech, e.g., political speech, may vary from
entrust the privilege to run the affairs of the state exist. In the those of another, e.g., obscene speech. Distinctionshave therefore
language of the declaration of principles of our Constitution, "The been made in the treatment, analysis, and evaluation ofthe
Philippines is a republican state. Sovereignty resides in the people permissible scope of restrictions on various categories of speech. We
and all government authority emanates from them" (Section 1, have ruled, for example, that in our jurisdiction slander or libel, lewd
Article II). Translating this declaration into actuality, the Philippines is and obscene speech, as well as "fighting words" are not entitled to
a republic because and solely because the people in it can be constitutional protection and may be penalized.199 (Citations
governed only by officials whom they themselves have placed in omitted)
office by their votes. And in it is on this cornerstone that I hold it tobe We distinguish between politicaland commercial speech. Political
self-evident that when the freedoms of speech, press and peaceful speech refers to speech "both intended and received as a
assembly and redress of grievances are being exercised in relation to contribution to public deliberation about some issue,"200
suffrage or asa means to enjoy the inalienable right of the qualified "foster[ing] informed and civicminded deliberation."201 On the
citizen to vote, they are absolute and timeless. If our democracy and other hand, commercial speech has been defined as speech that does
republicanism are to be worthwhile, the conduct of public affairs by "no more than propose a commercial transaction."202 The
our officials must be allowed to suffer incessant and unabating expression resulting from the content of the tarpaulin is, however,
scrutiny, favorable or unfavorable, everyday and at all times. Every definitely political speech. In Justice Brion’s dissenting opinion, he
holder of power in our government must be ready to undergo discussed that "[t]he content of the tarpaulin, as well as the timing of
exposure any moment of the day or night, from January to December its posting, makes it subject of the regulations in RA 9006 and
every year, as it is only in this way that he can rightfully gain the Comelec Resolution No. 9615."203 He adds that "[w]hile indeed the
confidence of the people. I have no patience for those who would RH issue, by itself,is not an electoralmatter, the slant that the
regard public dissection of the establishment as an attribute to be petitioners gave the issue converted the non-election issue into a live
indulged by the people only at certain periods of time. I consider the election one hence, Team Buhay and Team Patay and the plea to
freedoms of speech, press and peaceful assembly and redress of support one and oppose the other."204
grievances, when exercised in the name of suffrage, as the very While the tarpaulin may influence the success or failure of the named
means by which the right itself to vote can only be properly enjoyed.It candidates and political parties, this does not necessarily mean it is
stands to reason therefore, that suffrage itself would be next to election propaganda. The tarpaulin was not paid for or posted "in
useless if these liberties cannot be untrammelled [sic] whether as to return for consideration" by any candidate, political party, or party-
degree or time.198 (Emphasis supplied) list group.
Not all speech are treated the same. In Chavez v. Gonzales, this court The second paragraph of Section 1(4) of COMELEC Resolution No.
discussed that some types of speech may be subject to regulation: 9615, or the rules and regulations implementing Republic Act No.
Some types of speech may be subjected to some regulation by the 9006 as an aid to interpret the law insofar as the facts of this case
State under its pervasive police power, in order that it may not be requires, states:
injurious to the equal right of others or those of the community or 4. The term "political advertisement" or "election propaganda" refers
society. The difference in treatment is expected because the relevant to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo, wording in COMELEC Resolution No. 9615 does not similarly appear
brand, insignia, color motif, initials, and other symbol or graphic in Republic Act No. 9006, the law it implements.
representation that is capable of being associated with a candidate We should interpret in this manner because of the value of political
or party, and is intended to draw the attention of the public or a speech.
segment thereof to promote or oppose, directly or indirectly, the As early as 1918, in United States v. Bustos,205 this court recognized
election of the said candidate or candidates to a public office. In the need for full discussion of public affairs. We acknowledged that
broadcast media, political advertisements may take the form of free speech includes the right to criticize the conduct of public men:
spots, appearances on TV shows and radio programs, live or taped The interest of society and the maintenance of good government
announcements, teasers, and other forms of advertising messages or demand a full discussion of public affairs. Complete liberty to
announcements used by commercial advertisers. Political advertising comment on the conduct of public men is a scalpel in the case of free
includes matters, not falling within the scope of personal opinion, speech. The sharp incision of its probe relieves the abscesses of
that appear on any Internet website, including, but not limited to, official dom. Men in public life may suffer under a hostile and an
social networks, blogging sites, and micro-blogging sites, in return for unjust accusation; the wound can be assuaged with the balm of a
consideration, or otherwise capable of pecuniary estimation. clear conscience. A public officer must not be too thin-skinned with
(Emphasis supplied) reference to comment upon his official acts. Only thus can the
It is clear that this paragraph suggests that personal opinions are not intelligence and dignity of the individual be exalted.206
included, while sponsored messages are covered. Subsequent jurisprudence developed the right to petition the
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. government for redress of grievances, allowing for criticism, save for
9615 states: some exceptions.207 In the 1951 case of Espuelas v. People,208 this
SECTION 1. Definitions - As used in this Resolution: court noted every citizen’s privilege to criticize his or her
1. The term "election campaign" or "partisan political activity" refers government, provided it is "specific and therefore constructive,
to an act designed to promote the election or defeat of a particular reasoned or tempered, and not a contemptuous condemnation of
candidate or candidates to a public office, and shall include any of the the entire government set-up."209
following: The 1927 case of People v. Titular210 involved an alleged violation of
.... the Election Law provision "penaliz[ing] the anonymous criticism of a
Personal opinions, views, and preferences for candidates, contained candidate by means of posters or circulars."211 This court explained
in blogs shall not be considered acts of election campaigning or that it is the poster’s anonymous character that is being
partisan politicalactivity unless expressed by government officials in penalized.212 The ponente adds that he would "dislike very muchto
the Executive Department, the Legislative Department, the Judiciary, see this decision made the vehicle for the suppression of public
the Constitutional Commissions, and members of the Civil Service. opinion."213
In any event, this case does not refer to speech in cyberspace, and its In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
effects and parameters should be deemed narrowly tailored only in individuals to vent their views. According to this court, "[i]ts value
relation to the facts and issues in this case. It also appears that such may lie in the fact that there may be something worth hearing from
the dissenter [and] [t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms dissemination of information to make more meaningful the equally
against their government contributes to every society’s goal for vital right of suffrage.221 (Emphasis supplied, citations omitted)
development. It puts forward matters that may be changed for the Speech with political consequences isat the core of the freedom of
better and ideas that may be deliberated on to attain that purpose. expression and must be protected by this court.
Necessarily, it also makes the government accountable for acts that Justice Brion pointed out that freedomof expression "is not the god
violate constitutionally protected rights. of rights to which all other rights and even government protection of
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. state interest must bow."222
6646, which prohibits mass media from selling print space and air The right to freedom of expression isindeed not absolute. Even some
time for campaign except to the COMELEC, to be a democracy- forms of protected speech are still subjectto some restrictions. The
enhancing measure.216 This court mentioned how "discussion of degree of restriction may depend on whether the regulation is
public issues and debate on the qualifications of candidates in an content-based or content-neutral.223 Content-based regulations can
election are essential to the proper functioning of the government either be based on the viewpoint of the speaker or the subject of the
established by our Constitution."217 expression.
As pointed out by petitioners, "speech serves one of its greatest II.B.6
public purposes in the context of elections when the free exercise Content-based regulation
thereof informs the people what the issues are, and who are COMELEC contends that the order for removal of the tarpaulin is a
supporting what issues."218 At the heart of democracy is every content-neutral regulation. The order was made simply because
advocate’s right to make known what the people need to know,219 petitioners failed to comply with the maximum size limitation for
while the meaningful exercise of one’s right of suffrage includes the lawful election propaganda.224
right of every voter to know what they need to know in order to make On the other hand, petitioners argue that the present size regulation
their choice. is content-based as it applies only to political speech and not to other
Thus, in Adiong v. COMELEC,220 this court discussed the importance forms of speech such as commercial speech.225 "[A]ssuming
of debate on public issues, and the freedom of expression especially arguendo that the size restriction sought to be applied . . . is a mere
in relation to information that ensures the meaningful exercise of the time, place, and manner regulation, it’s still unconstitutional for lack
right of suffrage: of a clear and reasonable nexus with a constitutionally sanctioned
We have adopted the principle that debate on public issues should objective."226
be uninhibited, robust, and wide open and that it may well include The regulation may reasonably be considered as either content-
vehement, caustic and sometimes unpleasantly sharp attacks on neutral or content-based.227 Regardless, the disposition of this case
government and public officials. Too many restrictions will deny to will be the same. Generally, compared with other forms of speech,
people the robust, uninhibited, and wide open debate, the the proposed speech is content-based.
generating of interest essential if our elections will truly be free, clean As pointed out by petitioners, the interpretation of COMELEC
and honest. contained in the questioned order applies only to posters and
We have also ruled that the preferred freedom of expression calls all tarpaulins that may affect the elections because they deliver opinions
the more for the utmost respect when what may be curtailed is the
that shape both their choices. It does not cover, for instance, Content-based restraint or censorship refers to restrictions "based on
commercial speech. the subject matter of the utterance or speech."232 In contrast,
Worse, COMELEC does not point to a definite view of what kind of content-neutral regulation includes controls merely on the incidents
expression of non-candidates will be adjudged as "election of the speech such as time, place, or manner of the speech.233
paraphernalia." There are no existing bright lines to categorize This court has attempted to define "content-neutral" restraints
speech as election-related and those that are not. This is especially starting with the 1948 case of Primicias v. Fugoso.234 The ordinance
true when citizens will want to use their resources to be able to raise in this case was construed to grant the Mayor discretion only to
public issues that should be tackled by the candidates as what has determine the public places that may be used for the procession
happened in this case. COMELEC’s discretion to limit speech in this ormeeting, but not the power to refuse the issuance of a permit for
case is fundamentally unbridled. such procession or meeting.235 This court explained that free speech
Size limitations during elections hit ata core part of expression. The and peaceful assembly are "not absolute for it may be so regulated
content of the tarpaulin is not easily divorced from the size of its that it shall not beinjurious to the equal enjoyment of others having
medium. equal rights, nor injurious to the rights of the community or
Content-based regulation bears a heavy presumption of invalidity, society."236
and this court has used the clear and present danger rule as The earlier case of Calalang v. Williams237 involved the National
measure.228 Thus, in Chavez v. Gonzales: Traffic Commission resolution that prohibited the passing of animal-
A content-based regulation, however, bears a heavy presumption of drawn vehicles along certain roads at specific hours.238 This court
invalidity and is measured against the clear and present danger rule. similarly discussed police power in that the assailed rules carry
The latter will pass constitutional muster only if justified by a outthe legislative policy that "aims to promote safe transit upon and
compelling reason, and the restrictions imposedare neither avoid obstructions on national roads, in the interest and convenience
overbroad nor vague.229 (Citations omitted) of the public."239
Under this rule, "the evil consequences sought to be prevented must As early as 1907, United States v. Apurado240 recognized that "more
be substantive, ‘extremely serious and the degree of imminence or less disorder will mark the public assembly of the people to protest
extremely high.’"230 "Only when the challenged act has overcome against grievances whether real or imaginary, because on such
the clear and present danger rule will it pass constitutional muster, occasions feeling is always wrought to a high pitch of excitement. . .
with the government having the burden of overcoming the presumed ."241 It is with this backdrop that the state is justified in imposing
unconstitutionality."231 restrictions on incidental matters as time, place, and manner of the
Even with the clear and present danger test, respondents failed to speech.
justify the regulation. There is no compelling and substantial state In the landmark case of Reyes v. Bagatsing, this court summarized the
interest endangered by the posting of the tarpaulinas to justify steps that permit applicants must follow which include informing the
curtailment of the right of freedom of expression. There is no reason licensing authority ahead of time as regards the date, public place,
for the state to minimize the right of non-candidate petitioners to and time of the assembly.242 This would afford the public official
post the tarpaulin in their private property. The size of the tarpaulin time to inform applicants if there would be valid objections, provided
does not affect anyone else’s constitutional rights. that the clear and present danger test is the standard used for his
decision and the applicants are given the opportunity to be On the first requisite, it is not within the constitutional powers of the
heard.243 This ruling was practically codified in Batas Pambansa No. COMELEC to regulate the tarpaulin. As discussed earlier, this is
880, otherwise known as the Public Assembly Act of 1985. protected speech by petitioners who are non-candidates. On the
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a second requirement, not only must the governmental interest be
valid content-neutral regulation. In the 2006 case of Bayan v. important or substantial, it must also be compelling as to justify the
Ermita,244 this court discussed how Batas Pambansa No. 880 does restrictions made.
not prohibit assemblies but simply regulates their time, place, and Compelling governmental interest would include constitutionally
manner.245 In 2010, this court found in Integrated Bar of the declared principles. We have held, for example, that "the welfare of
Philippines v. Atienza246 that respondent Mayor Atienza committed children and the State’s mandate to protect and care for them, as
grave abuse of discretion when he modified the rally permit by parens patriae,254 constitute a substantial and compelling
changing the venue from Mendiola Bridge to Plaza Miranda without government interest in regulating . . . utterances in TV
first affording petitioners the opportunity to be heard.247 broadcast."255
We reiterate that the regulation involved at bar is content-based. The Respondent invokes its constitutional mandate to ensure equal
tarpaulin content is not easily divorced from the size of its medium. opportunity for public information campaigns among candidates in
II.B.7 connection with the holding of a free, orderly, honest, peaceful, and
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions credible election.256
imposing a size limit for tarpaulins are content-neutral regulations as Justice Brion in his dissenting opinion discussed that "[s]ize limits to
these "restrict the mannerby which speech is relayed but not the posters are necessary to ensure equality of public information
content of what is conveyed."248 campaigns among candidates, as allowing posters with different sizes
If we apply the test for content-neutral regulation, the questioned gives candidates and their supporters the incentive to post larger
acts of COMELEC will not pass the three requirements for evaluating posters[,] [and] [t]his places candidates with more money and/or
such restraints on freedom of speech.249 "When the speech with deep-pocket supporters at an undue advantage against
restraints take the form of a content-neutral regulation, only a candidates with more humble financial capabilities."257
substantial governmental interest is required for its validity,"250 and First, Adiong v. COMELEC has held that this interest is "not as
it is subject only to the intermediate approach.251 important as the right of [a private citizen] to freely express his choice
This intermediate approach is based on the test that we have and exercise his right of free speech."258 In any case, faced with both
prescribed in several cases.252 A content-neutral government rights to freedom of speech and equality, a prudent course would be
regulation is sufficiently justified: to "try to resolve the tension in a way that protects the right of
[1] if it is within the constitutional power of the Government; [2] if it participation."259
furthers an important or substantial governmental interest; [3] if the Second, the pertinent election lawsrelated to private property only
governmental interest is unrelated to the suppression of free require that the private property owner’s consent be obtained when
expression; and [4] if the incident restriction on alleged [freedom of posting election propaganda in the property.260 This is consistent
speech & expression] is no greater than is essential to the with the fundamental right against deprivation of property without
furtherance of that interest.253 due process of law.261 The present facts do not involve such posting
of election propaganda absent consent from the property owner. In this case, the size regulation is not unrelated to the suppression of
Thus, this regulation does not apply in this case. speech. Limiting the maximum sizeof the tarpaulin would render
Respondents likewise cite the Constitution262 on their authority to ineffective petitioners’ message and violate their right to exercise
recommend effective measures to minimize election spending. freedom of expression.
Specifically, Article IX-C, Section 2(7) provides: The COMELEC’s act of requiring the removal of the tarpaulin has the
Sec. 2. The Commission on Elections shall exercise the following effect of dissuading expressions with political consequences. These
powers and functions: should be encouraged, more so when exercised to make more
.... meaningful the equally important right to suffrage.
(7) Recommend to the Congress effective measures to minimize The restriction in the present case does not pass even the lower test
election spending, including limitation of places where propaganda of intermediate scrutiny for content-neutral regulations.
materials shall be posted, and to prevent and penalize all forms of The action of the COMELEC in thiscase is a strong deterrent to further
election frauds, offenses, malpractices, and nuisance candidates. speech by the electorate. Given the stature of petitioners and their
(Emphasis supplied) This does not qualify as a compelling and message, there are indicators that this will cause a "chilling effect" on
substantial government interest to justify regulation of the preferred robust discussion during elections.
right to freedom of expression. The form of expression is just as important as the message itself. In
The assailed issuances for the removal of the tarpaulin are based on the words of Marshall McLuhan, "the medium is the message."266
the two feet (2’) by three feet (3’) size limitation under Section 6(c) McLuhan’s colleague and mentor Harold Innis has earlier asserted
of COMELEC Resolution No. 9615. This resolution implements the that "the materials on which words were written down have often
Fair Election Act that provides for the same size limitation.263 counted for more than the words themselves."267
This court held in Adiong v. COMELEC that "[c]ompared to the III
paramount interest of the State in guaranteeing freedom of Freedom of expression and equality
expression, any financial considerations behind the regulation are of III.A
marginal significance."264 In fact, speech with political The possibility of abuse
consequences, as in this case, should be encouraged and not Of course, candidates and political parties do solicit the help of
curtailed. As petitioners pointed out, the size limitation will not serve private individuals for the endorsement of their electoral campaigns.
the objective of minimizing election spending considering there is no On the one extreme, this can take illicit forms such as when
limit on the number of tarpaulins that may be posted.265 endorsement materials in the form of tarpaulins, posters, or media
The third requisite is likewise lacking. We look not only at the advertisements are made ostensibly by "friends" but in reality are
legislative intent or motive in imposing the restriction, but more so really paid for by the candidate or political party. This skirts the
at the effects of such restriction, if implemented. The restriction must constitutional value that provides for equal opportunities for all
not be narrowly tailored to achieve the purpose. It must be candidates.
demonstrable. It must allow alternative avenues for the actor to However, as agreed by the parties during the oral arguments in this
make speech. case, this is not the situation that confronts us. In such cases, it will
simply be a matter for investigation and proof of fraud on the part of seeks to effectively communicate a greater purpose, often used for
the COMELEC. "political and social criticism"269 "because it tears down facades,
The guarantee of freedom of expression to individuals without any deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more
relationship to any political candidate should not be held hostage by thoroughly democratic than to have the high-and-mighty lampooned
the possibility of abuse by those seeking to be elected. It is true that and spoofed."270 Northrop Frye, wellknown in this literary field,
there can be underhanded, covert, or illicit dealings so as to hide the claimed that satire had two defining features: "one is wit or humor
candidate’s real levels of expenditures. However, labelling all founded on fantasy or a sense of the grotesque and absurd, the other
expressions of private parties that tend to have an effect on the is an object of attack."271 Thus, satire frequently uses exaggeration,
debate in the elections as election paraphernalia would be too broad analogy, and other rhetorical devices.
a remedy that can stifle genuine speech like in this case. Instead, to The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a
address this evil, better and more effective enforcement will be the list of dead individuals nor could the Archbishop of the Diocese of
least restrictive means to the fundamental freedom. Bacolod have intended it to mean that the entire plan of the
On the other extreme, moved by the credentials and the message of candidates in his list was to cause death intentionally. The tarpaulin
a candidate, others will spend their own resources in order to lend caricatures political parties and parodies the intention of those in the
support for the campaigns. This may be without agreement between list. Furthermore, the list of "Team Patay" is juxtaposed with the list
the speaker and the candidate or his or her political party. In lieu of of "Team Buhay" that further emphasizes the theme of its author:
donating funds to the campaign, they will instead use their resources Reproductive health is an important marker for the church of
directly in a way that the candidate or political party would have petitioners to endorse.
doneso. This may effectively skirt the constitutional and statutory The messages in the tarpaulins are different from the usual messages
limits of campaign spending. of candidates. Election paraphernalia from candidates and political
Again, this is not the situation in this case. parties are more declarative and descriptive and contain no
The message of petitioners in thiscase will certainly not be what sophisticated literary allusion to any social objective. Thus, they
candidates and political parties will carry in their election posters or usually simply exhort the public to vote for a person with a brief
media ads. The message of petitioner, taken as a whole, is an description of the attributes of the candidate. For example "Vote for
advocacy of a social issue that it deeply believes. Through rhetorical [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
devices, it communicates the desire of Diocese that the positions of kami sa Makati."
those who run for a political position on this social issue be This court’s construction of the guarantee of freedom of expression
determinative of how the public will vote. It primarily advocates a has always been wary of censorship or subsequent punishment that
stand on a social issue; only secondarily — even almost incidentally entails evaluation of the speaker’s viewpoint or the content of one’s
— will cause the election or non-election of a candidate. speech. This is especially true when the expression involved has
The twin tarpaulins consist of satire of political parties. Satire is a political consequences. In this case, it hopes to affect the type of
"literary form that employs such devices as sarcasm, irony and deliberation that happens during elections. A becoming humility on
ridicule to deride prevailing vices or follies,"268 and this may target the part of any human institution no matter how endowed with the
any individual or group in society, private and government alike. It
secular ability to decide legal controversies with finality entails that capabilities that may drown out the messages of others. This is
we are not the keepers of all wisdom. especially true in a developing or emerging economy that is part of
Humanity’s lack of omniscience, even acting collectively, provides the majoritarian world like ours.
space for the weakest dissent. Tolerance has always been a The question of libertarian tolerance
libertarian virtue whose version is embedded in our Billof Rights. This balance between equality and the ability to express so as to find
There are occasional heretics of yesterday that have become our one’s authentic self or to participate in the self determination of
visionaries. Heterodoxies have always given us pause. The one’s communities is not new only to law. It has always been a
unforgiving but insistent nuance that the majority surely and philosophical problematique.
comfortably disregards provides us with the checks upon reality that In his seminal work, Repressive Tolerance, philosopher and social
may soon evolve into creative solutions to grave social problems. This theorist Herbert Marcuse recognized how institutionalized inequality
is the utilitarian version. It could also be that it is just part of human exists as a background limitation, rendering freedoms exercised
necessity to evolve through being able to express or communicate. within such limitation as merely "protect[ing] the already established
However, the Constitution we interpret is not a theoretical machinery of discrimination."275 In his view, any improvement "in
document. It contains other provisions which, taken together with the normal course of events" within an unequal society, without
the guarantee of free expression, enhances each other’s value. subversion, only strengthens existing interests of those in power and
Among these are the provisions that acknowledge the idea of control.276
equality. In shaping doctrine construing these constitutional values, In other words, abstract guarantees of fundamental rights like
this court needs to exercise extraordinary prudence and produce freedom of expression may become meaningless if not taken in a real
narrowly tailored guidance fit to the facts as given so as not to context. This tendency to tackle rights in the abstract compromises
unwittingly cause the undesired effect of diluting freedoms as liberties. In his words:
exercised in reality and, thus, render them meaningless. Liberty is self-determination, autonomy—this is almost a tautology,
III.B. but a tautology which results from a whole series of synthetic
Speech and equality: judgments. It stipulates the ability to determine one’s own life: to be
Some considerations We first establish that there are two paradigms able to determine what to do and what not to do, what to suffer and
of free speech that separate at the point of giving priority to equality what not. But the subject of this autonomy is never the contingent,
vis-à-vis liberty.272 private individual as that which he actually is or happens to be; it is
In an equality-based approach, "politically disadvantaged speech rather the individual as a human being who is capable of being free
prevails over regulation[,] but regulation promoting political equality with the others. And the problem of making possible such a harmony
prevails over speech."273 This view allows the government leeway between every individual liberty and the other is not that of finding a
to redistribute or equalize ‘speaking power,’ such as protecting, even compromise between competitors, or between freedom and law,
implicitly subsidizing, unpopular or dissenting voices often between general and individual interest, common and private
systematically subdued within society’s ideological ladder.274 This welfare in an established society, but of creating the society in which
view acknowledges that there are dominant political actors who, man is no longer enslaved by institutions which vitiate self-
through authority, power, resources, identity, or status, have determination from the beginning. In other words, freedom is still to
be created even for the freest of the existing societies.277 (Emphasis But this is usually related also tofair access to opportunities for such
in the original) liberties.287 Fair access to opportunity is suggested to mean
Marcuse suggests that the democratic argument — with all opinions substantive equality and not mere formal equalitysince "favorable
presented to and deliberated by the people — "implies a necessary conditions for realizing the expressive interest will include some
condition, namely, that the people must be capable of deliberating assurance of the resources required for expression and some
and choosing on the basis of knowledge, that they must have access guarantee that efforts to express views on matters of common
to authentic information, and that, on this basis, their evaluation concern will not be drowned out by the speech of betterendowed
must be the result of autonomous thought."278 He submits that citizens."288 Justice Brandeis’ solution is to "remedy the harms of
"[d]ifferent opinions and ‘philosophies’ can no longer compete speech with more speech."289 This view moves away from playing
peacefully for adherence and persuasion on rational grounds: the down the danger as merely exaggerated, toward "tak[ing] the costs
‘marketplace of ideas’ is organized and delimited by those who seriously and embrac[ing] expression as the preferred strategy for
determine the national and the individual interest."279 A slant addressing them."290 However, in some cases, the idea of more
toward left manifests from his belief that "there is a ‘natural right’ of speech may not be enough. Professor Laurence Tribe observed the
resistance for oppressed and overpowered minorities to use need for context and "the specification of substantive values before
extralegal means if the legal ones have proved to be inadequate."280 [equality] has full meaning."291 Professor Catherine A. MacKinnon
Marcuse, thus, stands for an equality that breaks away and adds that "equality continues to be viewed in a formal rather than a
transcends from established hierarchies, power structures, and substantive sense."292 Thus, more speech can only mean more
indoctrinations. The tolerance of libertarian society he refers to as speech from the few who are dominant rather than those who are
"repressive tolerance." not.
Legal scholars Our jurisprudence
The 20th century also bears witness to strong support from legal This court has tackled these issues.
scholars for "stringent protections of expressive liberty,"281 Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the
especially by political egalitarians. Considerations such as validity of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This
"expressive, deliberative, and informational interests,"282 costs or section "prohibits mass media from selling or giving free of charge
the price of expression, and background facts, when taken together, print space or air time for campaign or other political purposes,
produce bases for a system of stringent protections for expressive except to the Commission on Elections."294 This court explained that
liberties.283 this provision only regulates the time and manner of advertising in
Many legal scholars discuss the interest and value of expressive order to ensure media equality among candidates.295 This court
liberties. Justice Brandeis proposed that "public discussion is a grounded this measure on constitutional provisions mandating
political duty."284 Cass Sustein placed political speech on the upper political equality:296 Article IX-C, Section 4
tier of his twotier model for freedom of expression, thus, warranting Section 4. The Commission may, during the election period, supervise
stringent protection.285 He defined political speech as "both or regulate the enjoyment or utilization of all franchises or permits
intended and received as a contribution to public deliberation about for the operation of transportation and other public utilities, media
some issue."286 of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, The textual basis of this view is that the constitutional provision uses
or instrumentality thereof, including any government-owned or negative rather than affirmative language. It uses ‘speech’ as its
controlled corporation or its subsidiary. Such supervision or subject and not ‘speakers’.298 Consequently, the Constitution
regulation shall aim to ensure equal opportunity, time, and space, protects free speech per se, indifferent to the types, status, or
and the right to reply, including reasonable, equal rates therefor, for associations of its speakers.299 Pursuant to this, "government must
public information campaigns and forums among candidates in leave speakers and listeners in the private order to their own devices
connection with the objective of holding free, orderly, honest, in sorting out the relative influence of speech."300
peaceful, and credible elections. (Emphasis supplied) Justice Romero’s dissenting opinion in Osmeña v. COMELEC
Article XIII, Section 1 formulates this view that freedom of speech includes "not only the
Section 1. The Congress shall give highest priorityto the enactment of right to express one’s views, but also other cognate rights relevant to
measures that protect and enhance the right of all the people to the free communication [of] ideas, not excluding the right to be
human dignity, reducesocial, economic, and political inequalities, and informed on matters of public concern."301 She adds:
remove cultural inequities by equitably diffusing wealth and political And since so many imponderables may affect the outcome of
power for the common good. elections — qualifications of voters and candidates, education,
To this end, the State shall regulate the acquisition, ownership, use, means of transportation, health, public discussion, private
and disposition of property and its increments. (Emphasis supplied) animosities, the weather, the threshold of a voter’s resistance to
Article II, Section 26 pressure — the utmost ventilation of opinion of men and issues,
Section 26. The State shall guarantee equal access to opportunities through assembly, association and organizations, both by the
for public service, and prohibit political dynasties as may be defined candidate and the voter, becomes a sine qua non for elections to
by law. (Emphasis supplied) truly reflect the will of the electorate.302 (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s Justice Romero’s dissenting opinion cited an American case, if only to
guarantee for more substantive expressive freedoms that take emphasize free speech primacy such that"courts, as a rule are wary
equality of opportunities into consideration during elections. to impose greater restrictions as to any attempt to curtail speeches
The other view with political content,"303 thus:
However, there is also the other view. This is that considerations of the concept that the government may restrict the speech of some
equality of opportunity or equality inthe ability of citizens as speakers elements in our society in order to enhance the relative voice of the
should not have a bearing in free speech doctrine. Under this view, others is wholly foreign to the First Amendment which was designed
"members of the public are trusted to make their own individual to "secure the widest possible dissemination of information from
evaluations of speech, and government is forbidden to intervene for diverse and antagonistic sources" and "to assure unfettered
paternalistic or redistributive reasons . . . [thus,] ideas are best left to interchange of ideas for the bringing about of political and social
a freely competitive ideological market."297 This is consistent with changes desired by the people."304
the libertarian suspicion on the use of viewpoint as well as content to This echoes Justice Oliver Wendell Holmes’ submission "that the
evaluate the constitutional validity or invalidity of speech. market place of ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, drowning out the speech and the messages of those in the minority.
the majority of the US Supreme Court in the campaign expenditures In a sense, social inequality does have its effect on the exercise and
case of Buckley v. Valeo "condemned restrictions (even if content- effect of the guarantee of free speech. Those who have more will
neutral) on expressive liberty imposed in the name of ‘enhanc[ing] have better access to media that reaches a wider audience than
the relative voice of others’ and thereby ‘equaliz[ing] access to the those who have less. Those who espouse the more popular ideas will
political arena."306 The majority did not use the equality-based have better reception than the subversive and the dissenters of
paradigm. society.To be really heard and understood, the marginalized view
One flaw of campaign expenditurelimits is that "any limit placed on normally undergoes its own degree of struggle.
the amount which a person can speak, which takes out of his The traditional view has been to tolerate the viewpoint of the
exclusive judgment the decision of when enough is enough, deprives speaker and the content of his or her expression. This view, thus,
him of his free speech."307 restricts laws or regulation that allows public officials to make
Another flaw is how "[a]ny quantitative limitation on political judgments of the value of such viewpoint or message content. This
campaigning inherently constricts the sum of public information and should still be the principal approach.
runs counter to our ‘profound national commitment that debate on However, the requirements of the Constitution regarding equality in
public issues should be uninhibited, robust, and wide-open.’"308 opportunity must provide limits to some expression during electoral
In fact, "[c]onstraining those who have funds or have been able to campaigns.
raise funds does not ease the plight of those without funds in the first Thus clearly, regulation of speech in the context of electoral
place . . . [and] even if one’s main concern isslowing the increase in campaigns made by candidates or the members of their political
political costs, it may be more effective torely on market forces parties or their political parties may be regulated as to time, place,
toachieve that result than on active legal intervention."309 According and manner. This is the effect of our rulings in Osmeña v. COMELEC
to Herbert Alexander, "[t]o oppose limitations is not necessarily to and National Press Club v. COMELEC.
argue that the sky’s the limit [because in] any campaign there are Regulation of speech in the context of electoral campaigns made by
saturation levels and a point where spending no longer pays off in persons who are not candidates or who do not speak as members of
votes per dollar."310 a political party which are, taken as a whole, principally advocacies of
III. C. a social issue that the public must consider during elections is
When private speech amounts unconstitutional. Such regulation is inconsistent with the guarantee
to election paraphernalia of according the fullest possible range of opinions coming from the
The scope of the guarantee of free expression takes into electorate including those that can catalyze candid, uninhibited, and
consideration the constitutional respect for human potentiality and robust debate in the criteria for the choice of a candidate.
the effect of speech. It valorizes the ability of human beings to This does not mean that there cannot be a specie of speech by a
express and their necessity to relate. On the other hand, a complete private citizen which will not amount toan election paraphernalia to
guarantee must also take into consideration the effects it will have in be validly regulated by law.
a deliberative democracy. Skewed distribution of resources as well as Regulation of election paraphernalia will still be constitutionally valid
the cultural hegemony of the majority may have the effect of if it reaches into speech of persons who are not candidates or who
do not speak as members of a political party if they are not confronted with this possibility. Respondents agree that the tarpaulin
candidates, only if what is regulated is declarative speech that, taken in question belongs to petitioners. Respondents have also agreed,
as a whole, has for its principal object the endorsement of a during the oral arguments, that petitioners were neither
candidate only. The regulation (a) should be provided by law, (b) commissioned nor paid by any candidate or political party to post the
reasonable, (c) narrowly tailored to meet the objective of enhancing material on their walls.
the opportunity of all candidates to be heard and considering the Even though the tarpaulin is readily seen by the public, the tarpaulin
primacy of the guarantee of free expression, and (d) demonstrably remains the private property of petitioners. Their right to use their
the least restrictive means to achieve that object. The regulation property is likewise protected by the Constitution.
must only be with respect to the time, place, and manner of the In Philippine Communications Satellite Corporation v. Alcuaz:315
rendition of the message. In no situation may the speech be Any regulation, therefore, which operates as an effective
prohibited or censored onthe basis of its content. For this purpose, it confiscation of private property or constitutes an arbitrary or
will notmatter whether the speech is made with or on private unreasonable infringement of property rights is void, because it is
property. repugnant to the constitutional guaranties of due process and equal
This is not the situation, however, in this case for two reasons. First, protection of the laws.316 (Citation omitted)
as discussed, the principal message in the twin tarpaulins of This court in Adiong held that a restriction that regulates where
petitioners consists of a social advocacy. decals and stickers should be posted is "so broad that it encompasses
Second, as pointed out in the concurring opinion of Justice Antonio even the citizen’s private property."317 Consequently, it violates
Carpio, the present law — Section 3.3 of Republic Act No. 9006 and Article III, Section 1 of the Constitution which provides thatno person
Section 6(c) of COMELEC Resolution No. 9615 — if applied to this shall be deprived of his property without due process of law. This
case, will not pass the test of reasonability. A fixed size for election court explained:
posters or tarpaulins without any relation to the distance from the Property is more than the mere thing which a person owns, it
intended average audience will be arbitrary. At certain distances, includes the right to acquire, use, and dispose of it; and the
posters measuring 2 by 3 feet could no longer be read by the general Constitution, in the 14th Amendment, protects these essential
public and, hence, would render speech meaningless. It will amount attributes.
to the abridgement of speech with political consequences. Property is more than the mere thing which a person owns. It is
IV elementary that it includes the right to acquire, use, and dispose of
Right to property it. The Constitution protects these essential attributes of property.
Other than the right to freedom of expression311 and the meaningful Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct.
exercise of the right to suffrage,312 the present case also involves Rep. 383. Property consists of the free use, enjoyment, and disposal
one’s right to property.313 of a person’s acquisitions without control or diminution save by the
Respondents argue that it is the right of the state to prevent the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US
circumvention of regulations relating to election propaganda by 60 [1917])318
applying such regulations to private individuals.314 Certainly, any This court ruled that the regulation in Adiong violates private
provision or regulation can be circumvented. But we are not property rights:
The right to property may be subject to a greater degree of regulation V
but when this right is joined by a "liberty" interest, the burden of Tarpaulin and its message are not religious speech
justification on the part of the Government must be exceptionally We proceed to the last issues pertaining to whether the COMELEC in
convincing and irrefutable. The burden is not met in this case. issuing the questioned notice and letter violated the right of
Section 11 of Rep. Act 6646 is so encompassing and invasive that it petitioners to the free exercise of their religion.
prohibits the posting or display of election propaganda in any place, At the outset, the Constitution mandates the separation of church
whether public or private, except inthe common poster areas and state.320 This takes many forms. Article III, Section 5 of the
sanctioned by COMELEC. This means that a private person cannot Constitution, for instance provides:
post his own crudely prepared personal poster on his own front Section 5. No law shall be made respecting an establishment of
dooror on a post in his yard. While the COMELEC will certainly never religion, or prohibiting the free exercise thereof. The free exercise
require the absurd, there are no limits to what overzealous and and enjoyment of religious profession and worship, without
partisan police officers, armed with a copy of the statute or discrimination or preference, shall forever be allowed. Noreligious
regulation, may do.319 Respondents ordered petitioners, who are test shall be required for the exercise of civil or political rights.
private citizens, to remove the tarpaulin from their own property. There are two aspects of this provision.321 The first is the none
The absurdity of the situation is in itself an indication of the stablishment clause.322 Second is the free exercise and enjoyment
unconstitutionality of COMELEC’s interpretation of its powers. of religious profession and worship.323
Freedom of expression can be intimately related with the right to The second aspect is atissue in this case.
property. There may be no expression when there is no place where Clearly, not all acts done by those who are priests, bishops, ustadz,
the expression may be made. COMELEC’s infringement upon imams, or any other religious make such act immune from any
petitioners’ property rights as in the present case also reaches out to secular regulation.324 The religious also have a secular existence.
infringement on their fundamental right to speech. They exist within a society that is regulated by law.
Respondents have not demonstrated thatthe present state interest The Bishop of Bacolod caused the posting of the tarpaulin. But not all
they seek to promote justifies the intrusion into petitioners’ property acts of a bishop amounts to religious expression. This
rights. Election laws and regulations must be reasonable. It must also notwithstanding petitioners’ claim that "the views and position of the
acknowledge a private individual’s right to exercise property rights. petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is
Otherwise, the due process clause will be violated. inextricably connected to its Catholic dogma, faith, and moral
COMELEC Resolution No. 9615 and the Fair Election Act intend to teachings. . . ."325
prevent the posting of election propaganda in private property The difficulty that often presents itself in these cases stems from the
without the consent of the owners of such private property. reality that every act can be motivated by moral, ethical, and religious
COMELEC has incorrectly implemented these regulations. Consistent considerations. In terms of their effect on the corporeal world, these
with our ruling in Adiong, we find that the act of respondents in acts range from belief, to expressions of these faiths, to religious
seeking to restrain petitioners from posting the tarpaulin in their own ceremonies, and then to acts of a secular character that may, from
private property is an impermissible encroachments on the right to the point of view of others who do not share the same faith or may
property. not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not As aptly argued by COMELEC, however, the tarpaulin, on its face,
conclusive on this court. Certainly, our powers of adjudication cannot "does not convey any religious doctrine of the Catholic church."332
be blinded by bare claims that acts are religious in nature. That the position of the Catholic church appears to coincide with the
Petitioners erroneously relied on the case of Ebralinag v. The Division message of the tarpaulin regarding the RH Law does not, by itself,
Superintendent of Schools of Cebu326 in claiming that the court bring the expression within the ambit of religious speech. On the
"emphatically" held that the adherents ofa particular religion shall be contrary, the tarpaulin clearly refers to candidates classified under
the ones to determine whether a particular matter shall be "Team Patay" and "Team Buhay" according to their respective votes
considered ecclesiastical in nature.327 This court in on the RH Law.
Ebralinagexempted Jehovah’s Witnesses from participating in the The same may be said of petitioners’ reliance on papal encyclicals to
flag ceremony "out of respect for their religious beliefs, [no matter support their claim that the expression onthe tarpaulin is an
how] "bizarre" those beliefsmay seem to others."328 This court ecclesiastical matter. With all due respect to the Catholic faithful, the
found a balance between the assertion of a religious practice and the church doctrines relied upon by petitioners are not binding upon this
compelling necessities of a secular command. It was an early attempt court. The position of the Catholic religion in the Philippines as
at accommodation of religious beliefs. regards the RH Law does not suffice to qualify the posting by one of
In Estrada v. Escritor,329 this court adopted a policy of benevolent its members of a tarpaulin as religious speech solely on such basis.
neutrality: The enumeration of candidates on the face of the tarpaulin precludes
With religion looked upon with benevolence and not hostility, any doubtas to its nature as speech with political consequences and
benevolent neutrality allows accommodation of religion under not religious speech.
certain circumstances. Accommodations are government policies Furthermore, the definition of an "ecclesiastical affair" in Austria v.
that take religion specifically intoaccount not to promote the National Labor Relations Commission333 cited by petitioners finds no
government’s favored form of religion, but to allow individuals and application in the present case. The posting of the tarpaulin does not
groups to exercise their religion without hindrance. Their purpose or fall within the category of matters that are beyond the jurisdiction of
effect therefore is to remove a burden on, or facilitate the exercise civil courts as enumerated in the Austriacase such as "proceedings
of, a person’s or institution’s religion. As Justice Brennan explained, for excommunication, ordinations of religious ministers,
the "government [may] take religion into account . . . to exempt, administration of sacraments and other activities withattached
when possible, from generally applicable governmental regulation religious significance."334
individuals whose religious beliefs and practices would otherwise A FINAL NOTE
thereby be infringed, or to create without state involvement an We maintain sympathies for the COMELEC in attempting to do what
atmosphere in which voluntary religious exercise may flourish."330 it thought was its duty in this case. However, it was misdirected.
This court also discussed the Lemon test in that case, such that a COMELEC’s general role includes a mandate to ensure equal
regulation is constitutional when: (1) it has a secular legislative opportunities and reduce spending among candidates and their
purpose; (2) it neither advances nor inhibits religion; and (3) it does registered political parties. It is not to regulate or limit the speech of
not foster an excessive entanglement with religion.331 the electorate as it strives to participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of actions will have very real secular consequences. Certainly,
those who are running for public office.Their message may be provocative messages do matter for the elections.
construed generalizations of very complex individuals and party-list What is involved in this case is the most sacred of speech forms:
organizations. expression by the electorate that tends to rouse the public to debate
They are classified into black and white: as belonging to "Team Patay" contemporary issues. This is not speechby candidates or political
or "Team Buhay." parties to entice votes. It is a portion of the electorate telling
But this caricature, though not agreeable to some, is still protected candidates the conditions for their election. It is the substantive
speech. content of the right to suffrage.
That petitioners chose to categorize them as purveyors of death or of This. is a form of speech hopeful of a quality of democracy that we
life on the basis of a single issue — and a complex piece of legislation should all deserve. It is protected as a fundamental and primordial
at that — can easily be interpreted as anattempt to stereo type the right by our Constitution. The expression in the medium chosen by
candidates and party-list organizations. Not all may agree to the way petitioners deserves our protection.
their thoughts were expressed, as in fact there are other Catholic WHEREFORE, the instant petition is GRANTED. The temporary
dioceses that chose not to follow the example of petitioners. restraining order previously issued is hereby made permanent. The
Some may have thought that there should be more room to consider act of the COMELEC in issuing the assailed notice dated February 22,
being more broad-minded and non-judgmental. Some may have 2013 and letter dated February 27, 2013 is declared unconstitutional.
expected that the authors would give more space to practice SO ORDERED.
forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an
enumeration of our fundamental liberties. It is not a detailed code G.R. No. 141407 September 9, 2002
that prescribes good conduct. It provides space for all to be guided LAPULAPU DEVELOPMENT AND HOUSING CORPORATION,
by their conscience, not only in the act that they do to others but also petitioner, vs. GROUP MANAGEMENT CORPORATION, respondent.
in judgment of the acts of others. DECISION
Freedom for the thought we can disagree with can be wielded not PANGANIBAN, J.:
only by those in the minority. This can often be expressed by Having the same power and prerogatives, courts of coequal and
dominant institutions, even religious ones. That they made their coordinate jurisdiction cannot interfere with each others orders and
point dramatically and in a large way does not necessarily mean that judgments. The ultimate test to determine the existence of forum
their statements are true, or that they have basis, or that they have shopping is the vexation caused the courts and the litigants by the
been expressed in good taste. repeated invocation of substantially the same facts, issues and
Embedded in the tarpaulin, however, are opinions expressed by reliefs, thereby unnecessarily clogging court dockets and creating the
petitioners. It is a specie of expression protected by our fundamental possibility of conflicting rulings and decisions.
law. It is an expression designed to invite attention, cause debate, The Case
and hopefully, persuade. It may be motivated by the interpretation Before us is a Petition for Review on Certiorari under Rule 45, seeking
of petitioners of their ecclesiastical duty, but their parishioner’s the annulment of the April 30, 1999 Decision and the December 29,
1999 Resolution of the Court of Appeals (CA).[1] The assailed On February 4, 1974, LLDHC entered into a Project and Loan
Decision disposed as follows: Agreement with GSIS, whereby the latter undertook to extend a loan
WHEREFORE, the petition being partly meritorious, the Court hereby of P25 million to be used by LLDHC in developing, subdividing and
resolves as follows: selling to GSIS members, its property at Marigondon, Lapu-lapu City.
1. To AFFIRM the Orders of May 28, 1998 and August 4, 1998, in Civil To implement the Agreement, GSIS extended to LLDHC an ad interim
Case No. 2203-L insofar as they set aside the order holding medium term loan of P2,500,000.00 of which P710,400.00 was
respondent Register of Deeds guilty of indirect contempt of court and released. To secure payment of the loan, LLDHC executed a real
to NULLIFY said orders insofar as they set aside the directives estate mortgage over its 78 lots at Marigondon, Lapulapu City in favor
contained in paragraphs (a), (b), and (c) of the order dated November of GSIS.
28, 1997; LLDHC having failed to develop the property and defaulted in the
2. To DECLARE without FORCE and EFFECT insofar as petitioner Group payment of its loan, GSIS foreclosed the mortgage. And, being the
Management Corporation is concerned, the decision in Civil Case No. lone bidder in the public auction sale, GSIS acquired the mortgaged
R-82-3429 as well as the orders and writs issued for its execution and lots. After the lapse of the redemption period, GSIS consolidated its
enforcement; and ownership over the mortgaged lots and the corresponding transfer
3. To ENJOIN respondent Lapulapu Development and Housing certificates of title were issued in its name.
Corporation, along with its agents and representatives and/or On February 26, 1980, GSIS, as new owner, executed a Deed of
persons/public officials/employees acting in its interest, specifically Conditional Sale covering its Marigondon lots in favor of GMC.
respondent Regional Trial Court of Manila, Branch 38, and On April 23, 1980, LLDHC filed a complaint for Annulment of
respondent Register of Deeds of Lapulapu City, from obstructing, Foreclosure with Writ of Mandatory Injunction against GSIS.
interfering with or in any manner delaying the Originally docketed as Civil Case No. 131332 of the Regional Trial
implementation/execution/enforcement by the Lapulapu City RTC of Court of Manila, the complaint (re-docketed as Civil Case No. R-82-
its order and writ of execution in Civil Case No. 2203-L. 3429) was assigned to Branch 38 thereof.
4. For lack of sufficient basis, the charge of contempt of court against On November 3, 1989, GMC filed a complaint for Specific
respondent Lapulapu Development and Housing Corporation and the Performance with Damages against GSIS, docketed as Civil Case No.
public respondents is hereby DISMISSED.[2] 2203-L of the Regional Trial Court of Lapu-Lapu City. The complaint
The assailed Resolution denied petitioners Motion for Partial seeks to compel GSIS to execute a Final Deed of Sale in favor of GMC
Reconsideration.[3] covering the Marigondon lots, the purchase price thereof having
The Facts been paid in full by GMC to GSIS.
The procedural and factual antecedents of this case are summarized Allowed to intervene in Civil Case No. 2203-L, LLDHC filed a Motion
by the CA in this wise: to Dismiss the complaint for specific performance. Said motion
LLDHC, formerly known as the B. Sunga Corporation, was the having been denied by the Lapu-Lapu City RTC, LLDHC filed its Answer
registered owner of seventy-eight (78) lots, with an aggregate area in Intervention and thereafter participated in the proceedings as
of 423,117 square meters, located at Barrio Marigondon, Lapu-lapu intervenor.
City.
On February 24, 1992, after a full-blown trial, a decision was 4. ORDERING defendant GSIS to execute a properly registrable
rendered in Civil Case No. 2203-L, the dispositive portion of which release of discharge of mortgage over the parcels of land here
reads: involved after full payment of such amount by the plaintiff.
WHEREFORE, judgment is hereby rendered ordering defendant to: All claims and counterclaims by the parties as against each other are
1. Execute the final deed of absolute sale and deliver the seventy- hereby dismissed.
eight (78) certificates of title covering said seventy-eight (78) parcels No pronouncement as to costs.
of land to the plaintiff: SO ORDERED.
2. Pay plaintiff actual damages, plus attorneys fees and expenses of On July 27, 1994, LLDHC filed a Complaint with this Court, docketed
litigation, in the amount of P285,638.88 and P100,000.00 exemplary as CA-G.R. SP No. 34696, seeking the annulment of the decision in
damages; Civil Case No. 2203-L.
3. dismissing in toto intervenors complaint-in-intervention for lack of In a decision dated December 29, 1994, this Court dismissed the
evidence of legal standing and legal interest in the suit, as well as complaint for annulment of judgment, on the following ground:
failure to substantiate any cause of action against either plaintiff or In fine, there being no showing from the allegations of the petition
defendant. that the respondent court is without jurisdiction over the subject
SO ORDERED. matter and of the parties in Civil Case No. 2309 [2203-L], petitioner
LLDHC, as intervenor, and GSIS as defendant, filed their respective has no cause of action for the annulment of judgment. The complaint
Notices of Appeals on March 11, 1992 and March 20, 1992. However, must allege ultimate facts for the annulment of the decision
on December 6, 1993, their appeals were dismissed by the Lapu-Lapu (Avendana v. Bautista, 142 SCRA 39). We find none in this case.
City RTC. On January 28, 1995, no appeal having been taken by LLHDC, the
On May 10, 1994, a decision was rendered in Civil Case No. R-82-3429 decision of this Court in CA-G.R. SP No. 34696 became final and
of the Manila RTC, Branch 38, the decretal portion of which reads: executory, and entry of judgment was made on August 18, 1995.
WHEREFORE, judgment is hereby rendered: On February 2, 1995, LLDHC filed a petition for certiorari with the
1. ANNULLING the foreclosure by the defendant GSIS of the mortgage Supreme Court, docketed as G.R. No. 118633. Like the complaint in
over the seventy-eight (78) parcels of land here involved: CA-G.R. SP No. 34696, the petition also seeks the annulment of the
2. CANCELLING the consolidated certificates of titles issued in the February 24, 1992 decision in Civil Case No. 2203-L.
name of GSIS and directing the Register of Deeds of Lapu-Lapu City In its Resolution, dated September 6, 1996, the Supreme Court
to issue new certificates of titles over those seventy-eight (78) parcels dismissed LLDHCs petition, in G.R. No. 118633, stating inter alia, thus:
of land in the name of the plaintiff, in exactly the same condition as In a last ditch attempt to annul the February 24, 1992 Decision of the
they were before the foreclosure; respondent court, this petition was brought before us on February 2,
3. ORDERING the plaintiff to pay the GSIS the amount of 1995.
P9,200,000.00 with interest thereon at the rate of twelve (12%) Dismissal of this petition is inevitable.
percent per annum commencing from October 12, 1989 until fully The instant petition which is captioned, For: Certiorari With
paid; and Preliminary Injunction, is actually another Petition for Annulment of
Judgment of the February 24, 1992 Decision of the respondent
Regional Trial Court of Lapu-lapu City, Branch 27 in Civil Case No. the Court of Appeals. Such a petition was brought before the
2203-L. A close perusal of this petition as well as the Petition for appellate court, but due to petitioners failure to nullify Judge Risos
Annulment of Judgment brought by the petitioner before the Court Decision in said forum, LLDHC, apparently at a loss as to what legal
of Appeals in CA-G.R. No. SP 34696 reveals that the instant petition remedy to take, brought the instant petition under the guise of a
is a mere reproduction of the petition/complaint filed before the petition for certiorari under Rule 65 seeking once again to annul the
appellate tribunal for annulment of judgment. Paragraphs two (2) to judgment of Branch 27.
eighteen (18) of this petition were copied verbatim from the Petition Instead of filing this petition for certiorari under Rule 65, which is
for Annulment of Judgment earlier filed in the court a quo, except for essentially another Petition to Annul Judgment, petitioner LLDHC
the designation of the parties thereto, i.e., plaintiff was changed to should have filed a timely Petition for Review under Rule 45 of the
petitioner, defendant to respondent. In fact, even the prayer in this Revised Rules of Court of the decision of the Court of Appeals, dated
petition is the same prayer in the Petition for Annulment of Judgment December 29, 1994, dismissing the Petition for Annulment of
dismissed by the Court of Appeals, to wit: Judgment filed by the petitioner LLDHC before the court a quo. But,
1. That Restraining Order/Writ of Preliminary Injunction issue this is all academic now. The appellate courts decision had become
commanding the Respondent to cease and desist from enforcing the final and executory on January 28, 1995.
judgment of Respondent Judge Teodoro K. Risos in Civil Case No. Nevertheless, it is worthwhile to mention that this petition, which is
2203-L dated February 24, 1992 and all orders and processes truly for annulment of judgment, cannot prosper on its merits. [I]t
pertaining to his decision in the said case. has been settled that a judgment can be annulled only on two (2)
2. Annulling the decision of defendant Judge Teodoro K. Risos of RTC grounds: (a) that the judgment is void for want of jurisdiction or lack
of Cebu, Branch 27, in Civil Case No. 2203-L. of due process of law; or (b) that it has been obtained by fraud.
3. Granting Petitioner such other relief as law and justice may Neither of these grounds obtain in the case at bench. x x x.
warrant in this case. It cannot likewise be successfully argued that there was lack of due
Under Section 9(2) of Batas Pambansa Blg. 129, otherwise known as process in the proceedings before Branch 27 of the RTC of Lapulapu.
The Judiciary Reorganization Act of 1980, it is the Court of Appeals Petitioner had ample participation in Civil Case No. 2203-L as
(then the Intermediate Appellate Court), and not this Court, which intervenor, as it in fact filed a Motion to Dismiss said case on
has jurisdiction to annul judgments of Regional Trial Courts, viz: December 7, 1989 which was, however, denied by respondent Judge.
SEC. 9. Jurisdiction -- The Intermediate Appellate Court shall exercise: Thereafter, a full-blown trial was held which culminated in the
xxxxxxxxx subject decision sought to be annulled by the petitioner.
(2) Exclusive original jurisdiction over actions for annulment of In the same manner, the February 24, 1992 decision of respondent
judgments of Regional Trial Courts; and court cannot be assailed on the ground of fraud. In order for fraud to
xxxxxxxxx serve as a basis for the annulment of judgment, it must be extrinsic
Thus, this Court apparently has no jurisdiction to entertain a petition or collateral in character, otherwise there would be no end to
which is evidently another petition to annul the February 24, 1992 litigations. Extrinsic fraud refers to any fraudulent act of the
Decision of the respondent Branch 27, Regional Trial Court of Lapu- prevailing party which is committed outside of the trial of the case,
lapu City, it appearing that jurisdiction thereto properly pertains to whereby the defeated party [petitioner herein] has been prevented
from exhibiting fully his side of the case, by fraud or deception in said case was affirmed with modification by this Court in its
practiced on him by his opponent. This type of fraud is decidedly Decision of December 27, 1996, in CA-G.R. CV No. 49117.
absent in the case at bench. Petitioner has not pointed to any act of On August 7, 1997, Sheriff-Incharge Regio B. Ruefa, RTC-Manila, sent
the prevailing party (Group Management Corporation) preventing it a letter to the Register of Deeds of Lapu-Lapu City, ordering him to
(petitioner) from fully ventilating its case as intervenor in Civil Case cancel the consolidated certificate of title issued in the name of GSIS
No. 2203-L. If ever the petitioners complaint-in-intervention did not and to issue new certificates of title over subject lots in the name of
prosper in said case, it was because the lower court after due hearing, LLDHC.
did not find the intervenors case meritorious, and not because On August 21, 1997, a writ of possession was issued commanding
petitioner was unduly deprived of its day in court. Thus, having been Sheriff Ruefa to cause GSIS and all persons claiming rights under it to
unable to prove that extrinsic fraud vitiated the orders in question, vacate the lots in question and to place LLDHC in peaceful possession
there lies no cause of action for annulment of said orders. thereof. The corresponding Sheriffs Notice to Vacate, addressed to
LLDHC sought a reconsideration of the above resolution but its GSIS, was served on August 22, 1997.
motion was denied with finality by the Supreme Court on November On October 23, 1997, Judge Risos, acting on various incidents relative
18, 1996. to the execution of the judgments in Civil Case No. R-82-3429 and
Consequently, on November 28, 1996, the Lapu-Lapu City RTC, Civil Case No. 2203-L, issued an Order reiterating the order and writ
through Presiding Judge Teodoro K. Risos, issued an order directing of execution dated November 28, 1996, and December 21, 1996, as
the execution of the judgment in Civil Case No. 2203-L, pursuant to well as the order dated July 21, 1997, directing the Register of Deeds
which the corresponding writ of execution was issued on December of Lapu-Lapu City to effect the transfer of the titles to subject lots in
17, 1996. favor of GMC, declaring any and all acts done by the Register of Deeds
LLDHC and GSIS filed their respective motions to stay execution, of Lapu-Lapu City null and void starting with surreptitious issuance of
dated December 12, 1996 and January 9, 1997, both of which were new titles in the name of LLDHC, and, in the interim, enjoining the
denied by Judge Risos in his Order dated February 19, 1997. Register of Deeds of Lapu-Lapu City from recording and/or registering
On July 21, 1997, on motion of GMC, Judge Risos issued an Order, the any transfer, disposition, or transaction regarding said lots, which
dispositive portion of which reads: may be executed by LLDHC and/or GSIS.
WHEREFORE, the defendant GSIS having refused to implement the Judge Risos held in abeyance all contempt proceedings against the
Order of this Court dated December 17, 1996 the Court in accordance Register of Deeds of Lapu-Lapu City to allow him to forge (sic) himself
with Rule 39. Sec. 10-a of the 1997 Rules of Procedure, hereby directs of the contemptuous act charged by the plaintiff.
the Register of Deeds of Lapu-lapu City to cancel the Transfer On November 13, 1997, respondent Judge Barias issued an order, the
Certificate of Titles of the properties involved in this case and to issue dispositive portion of which, reads:
new ones in the name of the plaintiff and to deliver the same to the WHEREFORE, the Group Management Corporation (GMC) is hereby
latter within ten (10) days after this Order shall have become final. given ten (10) days from notice hereof within which to remove all its
SO ORDERED. structures erected therein, equipment, machineries and other
On August 1, 1997, respondent Judge Barias issued a writ of materials from the plantiffs properties while Jeselito (Rene) Cenabre,
execution in Civil Case No. R-82-3429. Parenthetically, the judgment Gualberto Dao, Gines Lamparaga, all security guards of the 537
Security Agency assigned therein and persons associated with them d) Finally, the Register of Deeds of Lapu-Lapu City is hereby declared
are hereby directed to vacate the premises in controversy also within in contempt of this Court, and his immediate detention and
ten (10) days from notice hereof. confinement at the City Jail of Lapu-lapu City is directed as long as he
Failure to do so as directed, an Order of Demolition shall be issued to persists in his interference, disobedience and obstruction of justice
be implemented by the Deputy Sheriff of this Court authorizing him by not complying with the directives of this Court dated October 23,
to break open any closure with the assistance of police or military 1997 specifically directing the Register of Deeds of Lapu-lapu City to
authorities if necessary. effect the transfer of the titles of the properties subject of this case
Let this Order be served personally by the Deputy Sheriff of the in favor of the plaintiffs, declaring any and all acts done by the
Regional Trial Court of Lapu-Lapu City and the latter to submit the Register of Deeds of Lapu-lapu City NULL AND VOID star[t]ing with
corresponding Sheriffs Return therefor. the surreptitious issuance of the new certificates of title in the name
SO ORDERED. of Lapu-lapu Development and Housing Corporation, contrary to the
Acting on GMCs Omnibus Motion dated October 29, 1997, and the Decision of this Court dated February 24, 1992, its Order and Writ of
Manifestation/Explanation, dated October 30, 1997, of respondent Execution as well as its Order dated July 21, 1997, and if respondent
Register of Deeds, Judge Risos issued an Order dated November 28, Register of Deeds refuses to comply with the order of this Court
1997, the decretal portion of which reads: transferring the titles of the land in question to the plaintiff after ten
a) Intervenor Lapu-lapu Development and Housing Corporation (10) days from receipt of this Order.
(LLDHC) is hereby ordered to show cause in writing within ten (10) e) The Office of the City Sheriff is hereby directed to implement
days from receipt hereof why it should not be declared in contempt compliance with paragraphs (b), (c) and (d) above, particularly the
of this Court: detention and confinement of Atty. Dioscoro Y. Sanchez, Jr., Register
b) Let a writ of preliminary prohibitory injunction issue to restrain of Deeds, Lapu-lapu City, if he continues to refuse to transfer the
immediately all persons acting on orders or by authority of intervenor titles of the land in dispute after ten (10) days from receipt of this
LLDHC from carrying out any and all acts in defiance of this Courts order, authorizing him for these purposes to secure the assistance of
final and executory judgment, orders and writ of execution aforesaid, the Office of the Chief of Police of Lapu-lapu City, who is likewise
specifically acts such as, but not limited to, the demolition of directed to provide a sufficient number of his men in the service to
structures erected by plaintiff upon the properties subject matter of fully and faithfully carry out these orders, including the detention and
this litigation and the removal of plaintiffs machinery, equipment and confinement aforesaid, until further orders from this Court.
supplies thereon, as well as the ouster therefrom of plaintiffs duly SO ORDERED.
authorized representatives, personnel and security guards; Accordingly, on December 4, 1997, the corresponding writ of
c) Further, let a writ of preliminary mandatory injunction preliminary prohibitory injunction was issued.
immediately issue to direct the ouster of intervenor LLDHC; its Meanwhile, LLDHC came to this Court on a petition for certiorari with
agents, representatives and all persons acting on order or by preliminary injunction (docketed as CA-G.R. SP No. 44052), praying
authority of intervenor, as well as the demolition of structures that respondents (GMC and Judge Risos) cease and desist from
erected by intervenor upon the properties subject matter of this proceeding with the execution of the decision in Civil Case No. 2203-
litigation; L dated February 24, 1992, on the theory that the decision of the RTC
of NCJR in Civil Case No. 31323 (renumbered R-82-3429) entitled Ruling of the Court of Appeals
LLDHC, plaintiff, versus GSIS, defendant, for Annulment of The CA affirmed the Orders of the Regional Trial Court (RTC) of
Foreclosure and Mandatory Injunction, is a supervening event which Lapulapu City in Civil Case No. 2203-L freeing the Register of Deeds
makes it mandatory for Respondent Judge Risos to stop execution of from indirect contempt of court. It also declared without force and
the judgment in Civil Case No. 2203-L entitled GMC, plaintiff, versus effect the Decision of the Regional Trial Court (RTC) of Manila in Civil
GSIS, defendant, for Specific Performance. In denying due course to Case No. R-82-3429, as well as the Orders and Writs issued for the
said petition, this Court ratiocinated, thus: execution and enforcement of that Decision. The CA enjoined
The validity of the decision of the respondent judge in Civil Case No. petitioner, its agents and representatives, the RTC of Manila and the
2303-L has thus been brought both before this Court and to the Register of Deeds of Lapulapu City from obstructing or interfering
Supreme Court by the petitioner. In both instances the respondent with the implementation of the Order issued by the Lapu-lapu RTC in
judge has been upheld. The instant petition is petitioners latest Civil Case No. 2203-L.
attempt to resist the implementation or execution of that decision Hence, this Petition.[5]
using as a shield a decision of a Regional Trial Court in the National The Issues
Capital Region. We are not prepared to allow it. The applicable rule In its Memorandum, petitioner urges the Court to resolve the
and jurisprudence are clear. The prevailing party is entitled as a following questions:
matter of right to a writ of execution, and the issuance thereof is a 1. Whether the final and fully implemented decision of the Manila
ministerial duty compellable by mandamus. We do not believe that RTC could be declared and rendered ineffectual and nugatory by the
there exists in this instance a supervening event which would justify judgment of the Lapu-Lapu City RTC.
a deviation from this rule. 2. Whether the herein petitioner and/or the private respondent are
Meanwhile, in Civil Case No. 2203-L, respondent Register of Deeds guilty of forum shopping.
and intervenor LLDHC, through separate motions, sought a 3. Whether the refusal of Justices Verzola and Tuquero to voluntarily
reconsideration of Judge Risos orders dated November 28, 1997 and inhibit or disqualify them from acting on the present case is proper
December 22, 1997. and justifiable.[6]
On May 27, 1998, respondent Judge Fernandez, who succeeded The Courts Ruling
Judge Risos as Presiding Judge of the Lapu-Lapu City RTC (Branch 27), The Petition has no merit.
issued an Order the dispositive portion of which reads: First Issue:
PREMISES CONSIDERED, the two instant motions of the Register of Valid and Binding Decision
Deeds of Lapu-Lapu City Atty. Sanchez, Jr. and the intervenor LLDHC In its Memorandum, petitioner argues that the Decision of the Manila
are hereby granted and the order of this Court dated November 28, RTC is superior to that of the Lapulapu RTC and must therefore
1997 is hereby set aside. Accordingly, the order dated December 22, prevail. It alleges that the former was executed and fully
1997 is likewise recalled. implemented as early as September 15, 1997, but that the latter is
GMC sought a reconsideration of said order. Its motion for yet to attain finality.
reconsideration was, however, denied by respondent Judge We do not agree. The records of the case clearly show that the
Fernandez in his Order of August 4, 1998.[4] Lapulapu Decision has become final and executory and is thus valid
and binding upon the parties. Obviously, petitioner is again trying mandatory. Failure to conform to the rules regarding appeal will
another backdoor attempt to annul the final and executory Decision render the judgment final and executory and, hence,
of the Lapulapu RTC. unappealable.[10] Therefore, since the Lapulapu Decision has
First, it was petitioner that filed on March 11, 1992 a Notice of Appeal become final and executory, its execution has become mandatory
contesting the Lapulapu RTC Judgment in Civil Case No. 2203-L and ministerial on the part of the judge.
rendered on February 24, 1992. The Notice was however rejected by The CA correctly ruled that the Lapulapu Judgment is binding upon
the said RTC for being frivolous and dilatory. Since petitioner had petitioner which, by its own motion, participated as an intervenor. In
done nothing thereafter, the Decision clearly became final and fact, the latter filed an Answer in Intervention and thereafter actively
executory. took part in the trial. Thus, having had an opportunity to be heard
However, upon receipt of the Manila RTC Decision, petitioner found and to seek a reconsideration of the action or ruling it complained of,
a new tool to evade the already final Lapulapu Decision by seeking it cannot claim that it was denied due process of law. What the law
the annulment of the latter in a Petition with the CA. However, the prohibits is the absolute absence of the opportunity to be heard.
appellate court dismissed the action, because petitioner had been Jurisprudence teaches that a party cannot feign denial of due process
unable to prove any of the grounds for annulment; namely lack of if it has been afforded the opportunity to present its side.[11]
jurisdiction or extrinsic fraud. Because no appeal had been taken by Petitioner likewise claims that Private Respondent GMC cannot
petitioner, the ruling of the CA also became final and executory. escape the adverse effects of the final and executory judgment of the
Second, the Supreme Court likewise recognized the finality of the CA Manila RTC.
Decision when it threw out LLDHCs Petition for Certiorari in GR No. Again, we do not agree. A trial court has no power to stop an act that
118633. This Court ruled thus: has been authorized by another trial court of equal rank. As correctly
Instead of filing this petition for certiorari under Rule 65, which is stated by the CA, the Decision rendered by the Manila RTC -- while
essentially another Petition to Annul Judgment, petitioner LLDHC final and executory -- cannot bind herein private respondent, which
should have filed a timely Petition for Review under Rule 45 of the was not a party to the case before the said RTC. A personal judgment
Revised Rules of Court of the decision of the Court of Appeals, dated is binding only upon the parties, their agents, representatives and
December 29, 1994, dismissing the Petition for Annulment of successors in interest.
Judgment filed by the petitioner LLDHC before the court a quo. But Third, petitioner grievously errs in insisting that the judgment of the
this is all academic now. The appellate courts decision had become Manila RTC nullified that of the Lapulapu RTC. As already adverted to
final and executory on January 28, 1995.[7] (Emphasis ours) earlier, courts of coequal and coordinate jurisdiction may not
Jurisprudence mandates that when a decision becomes final and interfere with or pass upon each others orders or processes, since
executory, it becomes valid and binding upon the parties and their they have the same power and jurisdiction.[12] Except in extreme
successors in interest.[8] Such decision or order can no longer be situations authorized by law, they are proscribed from doing so.[13]
disturbed or reopened no matter how erroneous it may have Second Issue:
been.[9] Petitioners failure to file an appeal within the reglementary Forum Shopping
period renders the judgment final and executory. The perfection of Petitioner contends that its Complaint for the annulment of the
an appeal in the manner and within the period prescribed by law is mortgage foreclosure had been filed in the Manila RTC almost ten
years prior to GMCs Complaint for specific performance and damages dismissed the Petition on September 6, 1996. Petitioners Motion for
in the Lapulapu RTC. Thus, petitioner asserts that it cannot be liable Reconsideration was denied with finality on November 18, 1996.
for forum shopping. On November 28, 1996, Judge Risos of the Lapulapu RTC directed the
There is forum shopping whenever, as a result of an adverse opinion execution of the judgment in the case filed before it. The Motion to
in one forum, a party seeks a favorable opinion (other than by appeal Stay Execution filed by petitioner was denied on February 19, 1997.
or certiorari) from another.[14] In Gatmaytan v. CA,[15] the Undaunted, it filed in this Court another Petition for Certiorari,
petitioner therein repeatedly availed itself of several judicial Prohibition and Mandamus. On September 21, 1998, we referred the
remedies in different courts, simultaneously or successively. All those Petition to the CA for appropriate action. This new Petition again
remedies were substantially founded on the same transactions and essentially sought to annul the final and executory Decision rendered
the same essential facts and circumstances; and all raised by the Lapulapu RTC. Needless to say, the new suit was unsuccessful.
substantially the same issues either pending in, or already resolved Still, this rejection did not stop petitioner. It brought before this Court
adversely by, some other court. This Court held that therein the present Petition for Review on Certiorari alleging the same facts
petitioner was trying to increase his chances of obtaining a favorable and circumstances and raising the same issues already decided by
decision by filing multiple suits in several courts. Hence, he was found this Court in GR No. 118633.[16]
guilty of forum shopping. First Philippine International Bank v. CA[17] stresses that what is truly
In the present case, after the Lapulapu RTC had rendered its Decision important to consider in determining whether forum shopping exists
in favor of private respondent, petitioner filed several petitions is the vexation caused the courts and the parties-litigants by one who
before this Court and the CA essentially seeking the annulment asks different courts and/or administrative agencies to rule on the
thereof. True, petitioner had filed its Complaint in the Manila RTC same or related facts and causes and/or to grant the same or
before private respondent filed its own suit in the Lapulapu RTC. substantially the same relief, in the process creating the possibility of
Records, however, show that private respondent learned of the conflicting rulings and decisions.
Manila case only when petitioner filed its Motion for Intervention in Petitioner in the present case sued twice before the CA and thrice
the Lapulapu RTC. When GMC filed its own Motion to Intervene in before this Court, alleging substantially the same facts and
the Manila RTC, it was promptly rebuffed by the judge therein. On circumstances, raising essentially the same issues, and praying for
the other hand, petitioner was able to present its side and to almost identical reliefs for the annulment of the Decision rendered
participate fully in the proceedings before the Lapulapu RTC. by the Lapulapu RTC. This insidious practice of repeatedly bringing
On July 27, 1994, almost two years after the dismissal of its appeal by essentially the same action -- albeit disguised in various
the Lapulapu RTC, petitioner filed in the CA a suit for the annulment nomenclatures -- before different courts at different times is forum
of that RTC judgment. On December 29, 1994, this suit was rejected shopping no less. Because of petitioners actions, the execution of the
by the CA in a Decision which became final and executory on January Lapulapu Decision has been needlessly delayed and several courts
28, 1995, after no appeal was taken by petitioner. However, this vexed.
action did not stop petitioner. On February 2, 1995, it filed with this Third Issue:
Court another Petition deceptively cloaked as certiorari, but which in Voluntary Inhibition
reality sought the annulment of the Lapulapu Decision. This Court
Petitioner claims that Justices Artemio G. Tuquero and Eubolo G. G.R. No. 123050 January 20, 1999
Verzola gravely abused their discretion in refusing to voluntarily SUICO INDUSTRIAL CORPORATION, SPS. ESMERALDO and
inhibit or disqualify themselves from acting on the case at bar while ELIZABETH SUICO, petitioners,
it was pending in the CA. They allegedly participated in the Judgment vs.
rejecting its Petition for Certiorari, docketed as CA-GR SP No. 44052, COURT OF APPEALS and DEVELOPMENT BANK INC., respondents.
assailing the February 24, 1992 Execution Order issued by the MARTINEZ, J.
Lapulapu RTC. On January 19, 1987, petitioner Suico Industrial Corporation,
Again, petitioner is clutching at straws. As a general rule, judges are represented by Esmeraldo Suico, its president, secured a loan of
mandated to hear and decide cases, unless legally disqualified.[18] P2,500,000.00 payable in five (5) years, from respondent Private
However, they may voluntarily recuse themselves on the ground of Development Corporation of the Philippines (now PDCP Bank). As
bias or prejudice,[19] expression of opinions that may show security thereof, petitioner spouses mortgaged their two (2) real
partiality,[20] personal knowledge of the case,[21] or distant affinity estate properties situated at Mandaue City, Cebu covered by
or former association with one of the parties or the latters Transfer Certificate of Title (TCT) Nos. 18324 and 23116. Sometime in
counsel.[22] 1991, petitioners obtained a second loan of P2,000,000.00 payable in
Justices Tuquero and Verzola acted within the bounds of duty when five, (5) years, and secured it with the same real properties, which
they took part in the deliberation of the assailed Decision. By alleging was granted respondent PDCP Bank.
that the appellate magistrates should disqualify themselves because For failure to pay the balance of the loan amounting to P3,900,000.00
of their past participation in CA-GR No. 44052, petitioner merely calls as of 1993, respondent PDCP Bank caused the extrajudicial
attention to the repetitive nature of its pleadings and petitions. If foreclosure of the real estate mortgage. It was adjudged as the
indeed the assailed Decision involves a totally different matter from highest bidder and a Certificate of Sale dated February 29, 1993 was
that disposed of in CA-GR No. 44052, then petitioner should have no duly issued by the Sheriff of Mandaue in its favor. Petitioner failed to
reason to worry about the impartiality of the said justices. redeem the said properties. After expiration of the one (l) year
Without the written consent of all parties in interest, the law bars redemption period, ownership over the properties were
justices from reviewing rulings or decisions rendered by them as consolidated and Nos. 34988 and 34987 were correspondingly issued
lower court judges.[23] This situation does not exist in the case at in the name of respondent PDCP Bank.
bar. On November 16, 1994, respondent PDCP Bank filed with the
WHEREFORE, the Petition is DISMISSED, and the assailed Decision Regional Trial Court (RTC) of Mandaue City, Branch 28 an "Ex Parte
AFFIRMED. Treble costs against petitioner. Motion for the Issuance of Writ of Possession" 1 which was granted
SO ORDERED. in an order dated December 8, 1994. 2 On December 15, 1994, a writ
of possession 3 was thereafter issued. However, the writ could not
be enforced because on December 9, 1994, petitioners filed a
"Complaint for Specific Performance, Injunction and Damages (with
Prayer for Restraining Order)" 4 before the RTC of Mandaue City,
Branch 56 seeking to enjoin respondent PDCP Bank from selling the
mortgaged properties and from taking physical possession over the amply protected not only by the injunction bond which the Court will
same during the pendency of the case. issue but also because the passage of time will certainly enhance the
On January 17, 1995, RTC Branch 56 issued an Orders 5 granting the value of the properties.
injunction sought for by petitioners (therein plaintiffs). It likewise Foregoing considered, the Court in the interest of justice and equity,
deferred resolution of the motion to dismiss petitioner' complaint hereby GRANTS the injunction prayed for and accordingly orders the
filed by respondent PDCP (therein defendant). Pertinent portions of Defendant, its representatives and assigns (enjoined) from disposing
the order state that: of the properties covered by Transfer Certificate of Title Nos. 18324
During the hearing of the plaintiffs' application for preliminary and 23116 including improvements found therein or taking physical
injunction, plaintiffs presented Esmeraldo Suico who testified that possession of the same until further orders from this Court.
per arrangement with the certain Mae Siy and Fajardo, former Bond hereby fixed at fifty thousand Pesos (P50,000.00).
officers of the Defendant Bank, Plaintiff were supposed to Resolution of Defendant's Motion to Dismiss is deferred pending
intentionally default in their payments and eventually consolidate further of evidence.
title in Defendant. In exchange, Defendant was supposed to allow a SO ORDERED.6
repurchase of the property by plaintiffs or their recommendee at Five On January 18, 1995, RTC Branch 56 issued the Writ of Preliminary
Million Pesos (P5,000, 000.00). Injunction, providing therein:
Also presented was Raul Perez, Asset Clerk of the Assessor's Office of Whereas, on December 13, 1994, the Regional Trial Court, Branch 28
Mandaue City, who testified that it was indeed herein Plaintiffs- of Mandaue City, issued a Restraining Order in the above-entitled
spouses who facilitated the transfer of the lots to Defendant whose case, enjoining the defendant PDCP Bank, its attorneys, agents or its
two representatives, even showed up to inquire if Plaintiffs had been duly authorized officer or persons acting for and their behalf from
at Perez' office. selling the mortgaged properties described in the complaint to
After careful consideration of the evidence so far submitted, this person not recommended by plaintiffs and from taking physical
Courts is convinced that there is indeed was an arrangement possession over the same pending resolution of the prayer for
between herein plaintiffs defendant as adverted to by Plaintiffs. This issuance of permanent injection.
conviction by the Court however will naturally be influenced by Whereas, after hearing, this Court on January 17, 1995, issued an
whatever evidence the parties will present in the course of the trial Order expanding the restraining order dated December 13, 1994,
of this case. issued by RTC Branch 28 into an order for the issuance of a writ of
The Court also realizes that a denial of the prayer for preliminary preliminary injunction, upon plaintiffs' posting a bond in the amount
injunction will result in irreparable damage to plaintiffs as a of P50,000.00 conditioned for the payment of damages which the
consequence of the dislocation of their family and business and defendant may suffer by reason of the issuance of the injunction.
possible loss of the properties under litigation should Defendant Whereas, the bond as required was duly filed and approved by the
decide to dispose of the same. Court on January 18, 1995.
On the other hand, maintenance of status quo thru injunction will Whereas, you Private Development Corporation of the Philippines
hardly prejudice the Defendant bank whose name the properties now known as PDCP Bank, your representative and assigns are
have been already titled. Furthermore, Defendant's interest will be hereby ordered not to dispose of the properties covered by Transfer
Certificate of Title Nos. 18324 and 23116 including improvements Here, the respondent court issued an injunction against the
found therein or take physical possession of the same until further enforcement of the writ of possession granted by the Regional Trial
orders from this Court. 7 Court, Branch 28. This cannot be done. It was the ministerial duty of
The Motion for Reconsideration (of the Order dated January 17, the trial court to grant such writ of possession.
1995) and the Motion to Dismiss (petitioners' complaint) both filed Said the Supreme Court.
by respondent PDCP bank were denied by RTC Branch 56 in an Order . . . With more reason, a purchaser can demand writ of possession
dated June 21, 1995. 8 after the expiration of the redemption period. Thus, in F. David
In its petition for certiorari and mandamus with prayer for a writ of Enterprises vs. Insular Bank of Asia & America, we held:
preliminary prohibitory injunction filed with the Court of Appeals on It is settled the buyer in a foreclosure sale becomes the absolute
June 26, 1995, respondent PDCP Bank prayed that the Order dated owner of the property purchased if it is not redeemed during the
January 17, 1995 granting the writ of preliminary injunction be set period of one year after the registration of the sale. As such, he is
aside, declared void and without any further force and effect. It entitled to the possession of the property and can demand it at any
likewise prayed that the Sheriff of Mandaue City be ordered to time following the consolidation of ownership in his name and the
implement the writ of possession. issuance to him of a new transfer certificate of the title. The buyer
On August 28, 1995, respondent Court of Appeals rendered the can in fact demand possession of the land even during the
challenged decision 9 which ruled that RTC Branch 56 exceed its redemption period except that he has to post a bond in accordance
jurisdiction when issued the writ of injunction against the with Section 7 of Act 3135 as amended. No such bond is required
enforcement of the writ of possession granted by RTC Branch 28. It after the redemption period if the property is not redeemed.
ratiocinated in this wise: Possession of the land then becomes an absolute right of the
In a petition for Certiorari, the court must confine itself to the issue purchaser as confirmed owner. Upon proper application and proof of
of whether or not the respondent court lacked of exceeded its the title, the issuance of the writ of possession becomes a ministerial
jurisdiction or committed grave abuse of discretion (San Pedro vs. duty of the court.' (Aurora Gonzales Vda. de Zaballero, et al. v. Hon.
Court of Appeals, 235 SCRA 145). Here, the respondent Regional Trial Court of Appeals, et al G.R.No. 106958, February 9, 1994, 229 SCRA
Court exceeded its jurisdiction when it issued the writ of injunction 810, F. David Enterprises vs. Insular Bank of Asia & America, 184 SCRA
complained of. 294)
Well-settled is the rule that no courts has the power to interfere by Much as We sympathize with the private respondents, it was clearly
injunction with the judgments or orders of another court of petitioner's right to ask for the writ and to acquire possession of
concurrent jurisdiction having the power to grant the relief sought by subject properties and its improper for the respondent court to stay
injunction. . . . (Rafael Aquino, Sr., et al. v. Judge Julito B. Valenciano, implementation of the said writ.
et al., A.M. No. MTJ-93-746, December 27, 1994, 239 SCRA 428; As to the other reasons advanced by petitioner, as stressed by private
Prudential Bank v. Gapultos, No. 41835, 19 January 1990, 181 SCRA respondent, the same are questions of the fact better left for
159; Darwin v. Tokonaga, G.R. No. 54177, 27 May 1991, 197 SCRA respondent court's determination, at this stage of the litigation
442; Santos v. Bayhon, G.R. No. 88643, July 1991, 199 SCRA 525). below.
WHEREFORE, the petition is hereby GRANTED and the questioned the part of petitioners to enjoin the enforcement of the writ of
Order of January 17, 1995 is SET ASIDE. Cost against private possession in favor of respondent PDCP Bank.
respondents. We espoused in Arcega v. Court of Appeals 12 that:
SO ORDERED10 For the issuance of the writ·of preliminary injunction to be proper, it
The motion for reconsideration having been in a Resolution dated must be shown that the invasion of the right sought to be protected
December 12, 1995 11 petitioners filed this instant certiorari petition is material and substantial, that the right of complainant is clear and
praying that the writ of preliminary injunction issued by RTC Branch unmistakable and that there is an urgent and paramount necessity
56 be upheld so that a trial on the merits of the case may ensure. for the writ to prevent serious damage. 13
The focal point of inquiry is whether or not RTC Branch, 56 can enjoin In the absence of a clear legal right, the issuance of the injunctive writ
the enforcement of the writ of possession issued by RTC Branch 28. constitutes grave abuse of discretion. 14 Injunction is not designed
Petitioners alleged in their complaint for specific performance, to protect contingent or future rights. Where the complainants right
injunction and damages filed before RTC Branch 56 that they had or title is doubtful or disputed, injunction is not proper. 15 The
agreed on a plan with respondent PDCP Bank to intentionally default possibility of irreparable damage without proof of actual existing
in their payments so that a foreclosure of mortgage can be effected right is no ground for an injunction. 16
and title to the parcels of land would eventually be consolidated in When petitioners failed to pay the balance of the loan and thereafter
the name of respondent PDCP Bank. Thereafter, respondent PDCP failed to redeem the properties, title to the property had already
Bank was supposed to allow them to purchase the properties for been transferred to respondent PDCP Bank. Respondent PDCP Bank's
P5,000,000.00 thru the latter's recommended buyer. The right to possess the property is clear and is based on its right of
recommendees of petitioners rejected by respondent PDCP Bank. ownership as a purchaser of the properties in the foreclosure sale to
The Selling price thereof was increased thereby preventing whom title has been conveyed. l7 Under Section 7 of Act No. 3135
petitioners from redeeming the properties. In this regard, petitioners and Section 35 of Rule 39, the purchaser in a foreclosure sale is
sought to enjoin the respondent PDCP Bank from selling the said entitled to possession of the property. 18 Respondent PDCP Bank has
mortgaged properties to persons not recommended petitioners and a better right to possess the subject property because of its title over
from taking physical possession thereof during the pendency of the the same. 19
case. Furthermore, petitioners undertook a procedural misstep when it
Thus, petitioners now seek to uphold the propriety of the writ of filed a suit for specific performance injunction and damages before
injunction issued by RTC Branch 56 enjoining the enforcement of the RTC Branch 56 instead of a petition to set aside the sale and
writ of possession granted by RTC Branch 28. cancellation of the writ of possession as provided under Section 8 Act
The petition does not deserve merit. 3135:
First. RTC Branch 56 acted with grave abuse of discretion for having Sec. 8. The debtor may, in the proceedings: in which possession was
issued the writ of injunction which prevented the implementation of requested, but not later than thirty days after the purchaser was
the writ of possession issued by RTC Branch 28. The issuance of the given possession, petitioner that the sale be set aside and the writ of
writ of injunction was not proper in the absence of any legal right on possession canceled, specifying the damages suffered by him,
because the mortgage was not violated or the sale was not made in
accordance with the provisions hereof, and the court shall take orders or judgments issued by another court of concurrent or
cognizance of this petition in accordance with the summary coordinate jurisdiction. 29 In this regard, RTC Branch 56 therefore has
procedure provided for in section one hundred and twelve of Act no power nor authority to nullify or enjoin the enforcement of the
Number Four hundred and ninety six, and if it finds the complaint of writ of possession issued by RTC Branch 28.
the debtor justified, it shall dispose in his favor of all or part of the WHEREFORE, the petition is DENIED. The Decision dated August 28,
bond furnished by the person who obtained possession. Either of the 1995 and the Resolution dated December 12, 1995 of respondent
parties may appeal from the order of the judge in accordance with Court of Appeals are hereby AFFIRMED. Costs against petitioners.
section fourteen of Act Numbered Four hundred and ninety six; but SO ORDERED.
the order of the possession shall continue in effect during the
pendency of the
appeal. 20
Second. Indeed, it is the ministerial duty of the trial court to grant G.R. No. 101041 November 13, 1991
such writ of possession. HON. JUDGE ADRIANO R. VILLAMOR, petitioner,
In Sulit v. Court of Appeals, 21 the rule was applied in this manner: vs.
No discretion appears to be left to the Court. Any question regarding HON. JUDGE BERNARDO LL. SALAS and GEORGE CARLOS,
the regularity and validity of the sale, as well as the consequent respondents.
cancellation of the writ is to be determined in a subsequent G.R. No. 101296 November 13, 1991
proceeding as outlined in Section 8, and it cannot be raised as a HON. JUDGE ADRIANO R. VILLAMOR, petitioner,
justification for opposing the issuance of the writ of possession since, vs.
under the Act, the proceeding for this is ex parte. 22 Such recourse is ANTONIO T. GUERRERO and HON. PEARY G. ALEONAR, Presiding
available to a mortgage, who effects the extrajudicial foreclosure of Judge of RTC, Branch 21, Region VII, Cebu City, respondents.
the mortgage even before the expiration of the period of redemption Ramon Ve Salazar for petitioner.
provided by law and the Rules of Court. 23 Antonio T. Guerrero for private respondent.
This is stated also in A. G. Development Corporation v. Court of Henry R. Savellon for respondent.
Appeals: 24 GRIÑO-AQUINO, J.:
A writ of possession is generally understood to be an order whereby In 1977, Civil Case No. B-398 (Gloria Naval vs. George Carlos) for
the sheriff is commanded to place a person in possession of a real or recovery of ownership of a parcel of coconut land was filed and
personal property, 25 such as when a property is extrajudicially subsequently raffled to the sala of the petitioner, Judge Adriano
foreclosed. 26 In this regard, the issuance of a writ of possession to a Villamor. While the civil case was pending there, respondent Carlos
purchaser in an extrajudicial foreclosure is merely a ministerial filed Criminal Cases Nos. N-989, N-990, N-991, N-992 and N-993 for
function. 27 As such, the Court neither exercises its official discretion qualified theft against Gloria Naval and her helpers. The criminal
nor judgment. 28 cases were also assigned to the sala of Judge Villamor.
Third. The statute books are replete with jurisprudence to the effect Due to the pendency of Civil Case No. B-398, the criminal cases were
that trial courts have no power to interfere by injunction with the temporarily archived.
After trial in Civil Case No. B-398, a decision was rendered in favor of Back to Civil Case No. CEB-6478; Judge Villamor filed a motion to
Naval who was declared the lawful owner and possessor of the dismiss the complaint for lack of jurisdiction. The trial court granted
disputed land. Carlos was ordered to vacate the land. the motion. The order of dismissal was affirmed by the Court of
Thereafter, respondent Carlos, through counsel, moved to activate Appeals (CA-G.R. CV No. 20657, June 26, 1990). Carlos appealed to
the archived criminal cases. Having declared Naval the lawful owner this Court which also denied the petition. (p. 125, Rollo of G.R. No.
and possessor of the contested land in Civil Case No. B-398, Judge 101296.)
Villamor dismissed the criminal cases against her and her co-accused. Unfazed by these setbacks, Carlos and his counsel, Attorney Antonio
Judge Villamor likewise granted execution pending appeal of his Guerrero, filed separate complaints for damages against Judge
decision in Civil Case No. B-398. This order was challenged by Carlos Villamor for knowingly rendering an unjust order of contempt.
in the Court of Appeals and in this Court, both without success. Attorney Guerrero's complaint for damages (Civil Case No. CEB-8802)
Afterwards, Carlos filed an administrative case, A.M. No. RTJ-87-105, was raffled to Branch 21, Regional Trial Court, Cebu City, presided
against Judge Villamor, charging him with having issued illegal orders over by Judge Peary G. Aleonar. Carlos' complaint for damages was
and an unjust decision in Civil Case No. B-398. On November 21, docketed as Civil Case No. CEB-8823 and raffled to Branch 8, Regional
1988, this Court, in an En Banc resolution, summarily dismissed the Trial Court of Cebu City presided over by Judge Bernardo LL. Salas.
administrative case. On March 30, 1990, Judge Villamor filed a motion to dismiss Civil Case
Dissatisfied with the outcome of the administrative case, respondent No. CEB-8802 but it was denied by Judge Aleonar (p. 33, Rollo of G.R.
Carlos filed a civil action for damages (Civil Case No. CEB-6478) No. 101296).
against Judge Villamor for knowingly rendering an unjust judgment Hence, this petition for certiorari and prohibition with restraining
when he dismissed the five (5) criminal cases against Naval, et al. order docketed as G.R. No. 101296.
The summons in Civil Case No. CEB-6478 was served upon Judge On September 19, 1991, this Court issued a temporary restraining
Villamor on December 10, 1987. The next day (December 11, 1987), order against Judge Aleonar to stop him from proceeding in Civil Case
instead of answering the complaint, Judge Villamor issued in Criminal No. CEB-8802 (pp. 45-46, Rollo of G.R. No. 101296).
Cases Nos. N-0989 to 0993 an order of direct contempt against Carlos On May 20, 1991, a Manifestation was filed by Judge Villamor praying
and his lawyer. Attorney Antonio T. Guerrero, "for degrading the Judge Salas to dismiss Civil Case No. CEB-8823 but the motion was
respect and dignity of the court through the use of derogatory and denied by respondent Judge on July 2, 1991 (pp. 13-16, Rollo of G.R.
contemptous language before the court," and sentenced each of No. 101041).
them to suffer the penalty of imprisonment for five (5) days and to Hence, this second petition for certiorari and prohibition with
pay a fine of P500. restraining order (G.R. No. 101041).
Carlos immediately filed in this Court a petition for certiorari with a On August 21, 1991, a Resolution was issued by this Court: 1)
prayer for the issuance of a writ of preliminary injunction against the temporarily restraining Judge Salas from further proceeding in Civil
Judge (G.R. Nos. 82238-42). We promptly restrained Judge Villamor Case No. CEB-8823; and 2) granting the petitioner's prayer that this
from enforcing his Order of Contempt against Carlos and Attorney case be consolidated with G.R. No. 101296 (pp. 37-39, Rollo of G.R.
Guerrero. On November 13, 1989, we annulled the contempt order. No. 101041).
(See pp. 26-34, Rollo of G.R. No. 101041.)
The sole issue here is: whether or not Judges Aleonar and Salas may Nowhere in this Court's decision annulling Judge Villamor's order of
take cognizance of the actions for damages against Judge Villamor for direct contempt (G.R. Nos. 82238-42, November 13, 1989) can there
allegedly having rendered an unjust order of direct contempt against be found a declaration that the erroneous order was rendered
Carlos and Attorney Guerrero which this Court subsequently maliciously or with conscious and deliberate intent to commit an
annulled. injustice. In fact, a previous order of direct contempt issued by Judge
The answer is no. Villamor against Carlos' former counsel was sustained by this Court
As very aptly held by this Court in a Resolution it issued in connection (Jaynes C. Abarrientos, et al. vs. Judge Villamor, G.R. No. 82237, June
with a previous case filed by respondent Carlos against Judge 1, 1988).
Villamor, over a similar action for "Damages and Attorney's Fees At most, the order of direct contempt which we nullified may only be
Arising From Rendering an Unjust Judgment," in dismissing the five considered an error of judgment for which Judge Villamor may not
(5) criminal cases for qualified theft which he (respondent Carlos) had be held criminally or civilly liable to the respondents.
filed against Gloria P. Naval and others — A judge is not liable for an erroneous decision in the absence of
Indeed, no Regional Trial Court can pass upon and scrutinize, and malice or wrongful conduct in rendering it (Barroso vs. Arche, 67
much less declare as unjust a judgment of another Regional Trial SCRA 161).
Court and sentence the judge thereof liable for damages without WHEREFORE, the consolidated petitions for certiorari are GRANTED,
running afoul with the principle that only the higher appellate courts, Civil Cases Nos. CEB-8802 and CEB-8823, respectively, pending in the
namely, the Court of Appeals and the Supreme Court, are vested with salas of respondents Judge Peary G. Aleonar and Judge Bernardo LL.
authority to review and correct errors of the trial courts. (George D. Salas, are hereby dismissed. The temporary restraining orders issued
Carlos vs. CA, G.R. No. 95560, November 5, 1990; p. 125, Rollo of G.R by this Court in these cases are hereby made permanent. No costs.
No. 101296.) SO ORDERED.
To allow respondent Judges Aleonar and Salas to proceed with the
trial of the actions for damages against the petitioner, a co-equal
judge of a co-equal court, would in effect permit a court to review G.R. No. 127371 April 25, 2002
and interfere with the judgment of a co-equal court over which it has PHILIPPINE SINTER CORPORATION and PHIVIDEC INDUSTRIAL
no appellate jurisdiction or power of review. The various branches of AUTHORITY, petitioners,
a Court of First Instance (now the Regional Trial Court) being co- vs.
equal, may not interfere with each other's cases, judgments and CAGAYAN ELECTRIC POWER and LIGHT CO., INC., respondent.
orders (Parco vs. Court of Appeals, 111 SCRA 262). SANDOVAL-GUTIERREZ, J.:
This Court has already ruled that only after the Appellate Court, in a Before this Court is a petition for review1 questioning the Decision2
final judgment, has found that a trial judge's errors were committed of the Court of Appeals dated July 23, 1996 in CA-G.R. SP No. 36943,
deliberately and in bad faith may a charge of knowingly rendering an "Cagayan Electric Power and Light Co., Inc. vs. Hon. Cesar M. Ybañez,
unjust decision be levelled against the latter (Garcia vs. Alconcel, 111 et al." which reversed the decision of the Regional Trial Court of
SCRA 178; Sta. Maria vs. Ubay, 87 SCRA 179; Gahol vs. Riodique, 64 Cagayan de Oro City, Branch 17, in Civil Case No. 94-186 for
SCRA 494). injunction.
The antecedents are: rendered granting relief prayed for. Accordingly, it is hereby declared
On January 21, 1987, President Corazon C. Aquino and her Cabinet that all direct connection of industries to NPC within the franchise
approved a Cabinet Reform Policy for the power sector and issued a area of CEPALCO is no longer necessary. Therefore, all existing NPC
Cabinet Memorandum, Item No. 2 of which provides: (now NAPOCOR) direct supply of power to industrial consumers
"Continue direct connection for industries authorized under the BOI- within the franchise area of CEPALCO is hereby ordered to be
NPC Memorandum of Understanding of 12 January 1981, until such discontinued. x x x."6
time as the appropriate regulatory board determines that direct NAPOCOR filed a motion for reconsideration, which the ERB denied.
connection of industry to NPC is no longer necessary in the franchise Thereafter, NAPOCOR filed a petition for review with the Court of
area of the specific utility or cooperative. Determination shall be Appeals. On October 9, 1992, the Court of Appeals dismissed the
based in the utility or cooperatives meeting the standards of financial petition, holding that the motion for reconsideration filed by
and technical capability with satisfactory guarantees of non- NAPOCOR with the ERB was out of time and therefore, the assailed
prejudice to industry to be set in consultation with NPC and relevant decision became final and executory and could no longer be subject
government agencies and reviewed periodically by the regulatory of a petition for review.1âwphi1.nêt
board." (emphasis ours) On a petition for review on certiorari,7 this Court affirmed the
Pursuant to such Cabinet Memorandum, respondent Cagayan Resolution of the Court of Appeals. Judgment was entered on
Electric Power and Light, Co. (CEPALCO), grantee of a legislative September 22, 1993, thus rendering final the decision of the ERB.8
franchise3 to distribute electric power to the municipalities of To implement the decision in ERB Case No. 89-430, CEPALCO wrote
Villanueva, Jasaan and Tagoloan, and the city of Cagayan de Oro, all Philippine Sinter Corporation (PSC), petitioner, and advised the latter
of the province of Misamis Oriental, filed with the Energy Regulatory of its desire "to have the power supply of PSC, directly taken from
Board (ERB) a petition entitled "In Re: Petition for Implementation of NPC (NAPOCOR), disconnected, cut and transferred" to CEPALCO.9
Cabinet Policy Reforms in the Power Sector," docketed as ERB Case PSC is an entity operating its business within the PHIVIDEC10
No. 89-430. The petition sought the "discontinuation of all existing Industrial Estate (located in the Municipalities of Tagoloan and
direct supply of power by the National Power Corporation (NPC, now Villanueva, Misamis Oriental, covered by CEPALCO's franchise). The
NAPOCOR) within CEPALCO's franchise area."4 Estate is managed and operated by the PHIVIDEC Industrial Authority
The ERB issued a notice of public hearing which was published in the (PIA).11 PSC refused CEPALCO's request, citing its contract for power
newspapers and posted in the affected areas. It likewise furnished supply with NAPOCOR effective until July 26, 1996.
NAPOCOR and the Board of Investments (BOI) copies of the petition To restrain the execution of the ERB Decision, PSC and PIA filed a
and directed them to submit their comments. complaint for injunction against CEPALCO with the Regional Trial
After hearing, the ERB rendered a decision5 granting the petition, the Court of Cagayan de Oro City, Branch 17, docketed as Civil Case No.
dispositive portion reads: 94-186. They alleged, inter alia, that there exists no legal basis to cut-
"WHEREFORE, in view of the foregoing premises, where the off PSC's power supply with NAPOCOR and substitute the latter with
petitioner has been proven to be capable of distributing power to its CEPALCO since: (a) there is a subsisting contract between PSC and
industrial consumers and having passed the secondary NAPOCOR; (b) the ERB decision is not binding on PSC since it was not
considerations with a passing mark of 85%, judgment is hereby impleaded as a party to the case; and (c) PSC is operating within the
PHIVIDEC Industrial Estate, a franchise area of PIA, not CEPALCO, II. THE ERB DECISION INVOLVED ADJUDICATION OF RIGHTS TO THE
pursuant to Sec. 4 (1) of P.D. 538. Moreover, the execution of the ERB PREJUDICE OF PETITIONERS PIA AND PSC.
decision would cause PSC a 2% increase in its electrical bills. III. THE CABINET POLICY REFORM CANNOT AMEND THE CHARTER OF
On April 11, 1994, the trial court rendered judgment12 in favor of PSC PIA, PD 538, AS AMENDED.
and PIA, thus: IV. PETITIONERS PIA AND PSC WERE NOT NOTIFIED BY CEPALCO OF
"WHEREFORE, premises considered, judgment is hereby rendered, ITS PETITION WITH THE ERB.
by preponderance of evidence, in favor of plaintiffs PSC and PIA and V. CIVIL CASE NO. 91-383 ENTITLED PHIVIDEC INDUSTRIAL
against defendant CEPALCO and the petition for injunction should be, AUTHORITY VS. CEPALCO BEFORE BRANCH 17, REGIONAL TRIAL
as it is hereby, GRANTED. Accordingly, the defendant CEPALCO, its COURT OF CAGAYAN DE ORO CITY REINFORCES THE ISSUE THAT THE
agents and/or representative, and all those acting in its behalf, are ERB DECISION MUST NECESSARILY BE ENJOINED FROM BEING
hereby ordered to refrain, cease and desist from cutting and ENFORCED AGAINST PIA AND PSC.
disconnecting and/or causing to be cut and disconnected the direct VI. THE ERB DECISION IS NOT FINAL AND EXECUTORY.17
electric power supply of the plaintiff PSC from the NPC and from Petitioners contend that the ERB decision is contrary to the Cabinet
transferring the same to defendant CEPALCO, now and until July 26, Policy Reform since PIA, one of the relevant government agencies
1996, when the contract between plaintiff PSC and the NPC for direct referred to in the Cabinet Memorandum, was not consulted, much
power supply shall have expired. The counter-claim filed by less notified by the ERB before it rendered its decision; that since PIA
defendant CEPALCO is DISMISSED. No pronouncement as to costs. is not a party in ERB Case No. 89-430, then the decision therein does
SO ORDERED."13 not bind it; that P.D. 538 (the charter of PIA) excluded the
CEPALCO filed a motion for reconsideration but was denied by the municipalities of Tagoloan and Villanueva, Misamis Oriental, from
trial court in its order dated December 13, 1994. Aggrieved, CEPALCO the franchise area of CEPALCO and transferred the same to PIA; and
appealed to the Court of Appeals. On July 23, 1996, the Court of that the ERB decision is not final and executory since the same is
Appeals rendered its decision,14 the dispositive portion of which subject to periodic review under the Cabinet Memorandum.
reads: For its part, respondent CEPALCO maintains that the ERB decision
"WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby shows that it has met the requirements of the Cabinet Policy Reforms
GRANTED. The assailed Decision dated April 11, 1994 and the Order on financial and technical capability of the utility or cooperative.
dated December 13, 1994 are SET ASIDE. The writ of preliminary Anent petitioners' argument that the ERB decision does not bind
injunction earlier issued is DISSOLVED. No pronouncement as to them for lack of personal notice, respondent explains that such
costs. notice is not required since the proceedings in the ERB are in rem.
SO ORDERED."15 Besides, the only issue in the ERB case is whether or not CEPALCO has
PSC and PIA filed a motion for reconsideration, which was denied in met the standards mandated by the Cabinet Policy Reforms. Lastly,
a Resolution16 dated December 2, 1996. Hence the instant petition. respondent contends that what is subject to periodic review under
Petitioners submit the following issues for our resolution: the Cabinet Memorandum is only the capability standards.
I. THE DECISION OF THE ERB IS CONTRARY TO THE CABINET POLICY This is not the first time that a controversy arose involving the
REFORM. franchise of CEPALCO vis-à-vis the authority of NAPOCOR to supply
power directly. In National Power Corporation vs. Court of In Bachrach Corporation vs. Court of Appeals,22 this Court, through
Appeals,18 this Court held that CEPALCO is the lawful provider of the Mr. Justice Jose C. Vitug, pertinently held:
increased power supply to the Philippine Packing Corporation under "The rule indeed is, and has almost invariably been, that after a
PD 4019 promulgated on November 7, 1972. The Court ruled that judgment has gained finality, it becomes the ministerial duty of the
distribution of electric power, whether an increase in existing voltage court to order its execution. No court, perforce, should interfere by
or a new and separate electric service, shall be undertaken by injunction or otherwise to restrain such execution. The rule,
cooperatives, private utilities (such as CEPALCO), local governments however, concededly admits of exceptions; hence, when facts and
and other entities duly authorized subject to state regulation. circumstances later transpire that would render execution
Subsequently, this Court, in Cagayan Electric Power and Light inequitable or unjust, the interested party may ask a competent court
Company, Inc. vs. National Power Corporation,20 sustained the to stay its execution or prevent its enforcement. So, also, a change in
decision of the trial court ordering NAPOCOR to permanently desist the situation of the parties can warrant an injunctive relief."
from continuing the direct supply, sale and delivery of electricity to Clearly, an injunction to stay a final and executory decision is
Ferrochrome Philippines, Inc., an industry operating its business unavailing except only after a showing that facts and circumstances
within the PHIVIDEC Industrial Estate, Tagoloan, Misamis Oriental, exist which would render execution unjust or inequitable, or that a
because it violates the right of CEPALCO under its legislative change in the situation of the parties occurred. Here, no such
franchise. The Court stressed that the statutory authority (PD 395) exception exists as shown by the facts earlier narrated. To disturb the
given to NAPOCOR with respect to sale of energy in bulk directly to final and executory decision of the ERB in an injunction suit is to
BOI-registered enterprises should always be subordinate to the brazenly disregard the rule on finality of judgments. In Camarines
"total-electrification-of-the-entire-country-on-an-area-coverage- Norte Electric Cooperative, Inc. vs. Torres,23 we underscored the
basis policy" enunciated in P.D. No. 40. importance of this principle, thus:
In National Power Corporation vs. Court of Appeals,21 this Court "We have stated before, and reiterate it now, that administrative
struck down as irregular the determination by the NAPOCOR on decisions must end sometime, as fully as public policy demands that
whether or not it should supply power directly to the PIA or the finality be written on judicial controversies. Public interest requires
industries within the PHIVIDEC Industrial Estate-Misamis Oriental that proceedings already terminated should not be altered at every
(PIE-MO); and held that such authority pertains exclusively to the ERB step, for the rule of non quieta movere prescribes that what had
which was transferred to the Department of Energy (DOE) pursuant already been terminated should not be disturbed. A disregard of this
to Republic Act No. 7638. Consequently, the Court remanded the principle does not commend itself to sound public policy."
case to the DOE to determine whether it is CEPALCO or the Corollarily, Section 10 of Executive Order No. 172 (the law creating
NAPOCOR, through the PIA, which should supply electric power to the ERB) provides that a review of its decisions or orders is lodged in
the industries in the PIE-MO. the Supreme Court.24 Settled is the rule that where the law provides
In the present case, the only issue for our determination is whether for an appeal from the decisions of administrative bodies to the
or not injunction lies against the final and executory judgment of the Supreme Court or the Court of Appeals, it means that such bodies are
ERB. co-equal with the Regional Trial Courts in terms of rank and stature,
We rule in the negative. and logically, beyond the control of the latter.25 Hence, the trial
court, being co-equal with the ERB, cannot interfere with the decision such as CEPALCO, operating within a franchise proves to be capable
of the latter. It bears stressing that this doctrine of non-interference of distributing power to the industries therein. In this regard, it is apt
of trial courts with co-equal administrative bodies is intended to to reiterate the pronouncement of this Court in Cagayan Electric
ensure judicial stability in the administration of justice whereby the Power and Light Company, Inc. vs. National Power Corporation:32
judgment of a court of competent jurisdiction may not be opened, "It is likewise worthy of note that the defunct Power Development
modified or vacated by any court of concurrent jurisdiction.26 Council, in implementing P.D. 395, promulgated on January 28, 1977
Granting that the ERB decision has not attained finality, or that the PDC Resolution No. 77-01-02, which in part reads:
ERB is not co-equal with the RTC, still injunction will not lie. As a rule, '1) At any given service area, priority should be given to the
to justify the injunctive relief prayed for, the movant must show: (1) authorized cooperative or franchise holder in the right to supply the
the existence of a right in esse or the existence of a right to be power requirement of existing or prospective industrial enterprises
protected; and (2) the act against which injunction is to be directed (whether BOI-registered or not) that are located or plan to locate
is a violation of such right.27 In the case at bar, petitioners failed to within the franchise area or coop service area as shall be determined
show any clear legal right which would be violated if the power by the Board of Power or National Electrification Administration
supply of PSC from the NAPOCOR is disconnected and transferred to whichever the case may be.'
CEPALCO. If it were true that PSC has the exclusive right to operate The statutory authority given to respondent-appellant NPC in respect
and maintain electric light within the municipalities of Tagoloan and of sales of energy in bulk direct to BOI registered enterprises should
Villanueva pursuant to its charter (PD 538), then this Court would always be subordinate to the "total-electrification-of-the-entire-
have made such pronouncement in National Power Corporation vs. country-on-an-area-coverage-basis policy" enunciated in P.D. No. 40.
Court of Appeals.28 Exclusivity of any public franchise has not been Thus, in NPC vs. CEPALCO, supra, this Court held:
favored by this Court such that in most, if not all, grants by the 'x x x The law on the matter is clear. PD 40 promulgated on 7
government to private corporations, the interpretation of rights, November 1973 expressly provides that the generation of electric
privileges or franchises is taken against the grantee.29 More power shall be undertaken solely by the NPC. However, Section 3 of
importantly, the Constitution prohibits monopoly of franchise.30 the same decree also provides that the distribution of electric power
Another significant fact which militates against the claim of PIA is that shall be undertaken by cooperatives, private utilities (such as
it previously allowed CEPALCO to distribute electric power to CEPALCO), local governments and other entities duly authorized,
industries operating within the PHIVIDEC Industrial Estate. This, to subject to state regulation. x x x.'" (emphasis ours)
our mind, sufficiently indicates PIA's recognition of CEPALCO's WHEREFORE, the petition is DENIED. The challenged Decision of the
franchise. Indeed, it is unimaginable that an implementation of a Court of Appeals in CA-G.R. SP No. 36943 is hereby AFFIRMED.
long-standing government policy which had been sustained by this SO ORDERED.
Court31 can be stalled by an injunctive writ.
Likewise, petitioners' assertion that the ERB decision contradicts the
Cabinet Reform Policy is misplaced. On the contrary, we find the
decision to be in accord with the policy that direct connection with
the NAPOCOR is no longer necessary when a cooperative or utility,